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Weekly Update Volume 34, Issue 31

11/08/2004

 LITIGATION

Note: The cases listed are available from the ELR Document Service.

CWA, NPDES, EVIDENTIARY HEARING:

The First Circuit vacated and remanded individuals' convictions for illegally entering waters designated by the U.S. Navy as a danger zone under 18 U.S.C. §1382 during a military training exercise. The Navy's NPDES permit was valid despite being denied its application for a water quality certificate under 33 U.S.C. §401(a) since EPA did not revoke or terminate the permit until after the trespassing incident. Moreover, the citizens were properly charged for a petty offense by a magistrate judge who has authority to try and sentence individuals without their consent. Nevertheless, the lower court erred in denying the individuals an evidentiary hearing on whether the danger zone unreasonably interferes with the food fishing industry per 33 U.S.C. §3.United States v. Zenón-Encarnación, Nos. 03-2517 et al., 34 ELR 20124 (1st Cir. Oct. 25, 2004) (17 pp.).

FEDERAL POWERS ACT (FPA), TUCKER ACT, LICENSING:

The First Circuit denied an electric company's petition for review of three FERC orders that asserted mandatory licensing authority over the company's hydroelectric project, required the company to install gauges to measure stream flow at the project, and required project design revisions to be submitted on microfiche cards. Per §23(b)(1) of the FPA, FERC determined that the project site was located on a waterway suitable for use in interstate commerce and, thus, properly asserted mandatory jurisdiction over the project. In addition, the court lacks jurisdiction to hear the company's takings claim against the federal government because the Tucker Act vests exclusive jurisdiction in the U.S. Court of Federal Claims. Lastly, FERC reasonably ordered project drawings to be submitted on microfiche and the installation of stream flow gauges.Knott v. Federal Energy Regulatory Commission, Nos. 00-1909 et al., 34 ELR 20126 (1st Cir. Oct. 25, 2004) (15 pp.).

SOLID WASTE, COMMERCE CLAUSE, STANDING:

The Fifth Circuit dismissed solid waste disposal companies' claims that local solid waste flow control ordinances violate the Commerce Clause. The companies lack standing to claim that the ordinances are facially discriminatory against out of-state interests. The ordinances prohibit the export of any waste outside of the region, including out of state. Yet the companies' injury is not related to any out-of-state characteristic of their business. And although they have standing to challenge whether the ordinances excessively burden interstate commerce, the ordinances here do not have a disparate impact on interstate commerce.National Solid Waste Management Ass'n v. Pine Belt Regional Solid Waste Management Authority, No. 03-60470, 34 ELR 20132 (5th Cir. Oct. 29, 2004) (22 pp.).

CAA, CONSENT DECREE, RES JUDICATA:

The Sixth Circuit reversed and remanded injunctive relief awarded to landowners on their CAA fugitive dust claims against neighboring steel companies because they failed to establish irreparable harm and failed to comply with the CAA's notice provisions. The lower court properly held that a consent decree between EPA and the steel companies barred the landowners' CAA claims that were filed before and up to the date of the decree's entry. Likewise, the consent decree precluded the landowners' PSD claim against one company, and as for the second company, the landowners' PSD claim constituted a collateral challenge to the state agency's permitting decisions that should not be litigated in federal court. The lower court, however, erred in granting injunctive relief on the landowners' post-consent decree CAA claims. The landowners failed to notify EPA about the violations, never requested enforcement of the consent decree, and did not give the remedial requirements of the consent decree sufficient time to work. Moreover, these alleged post-consent decree violations constitute "new" claims that must separately comply with the notice provisions of CAA §304(b). Nevertheless, the lower court properly awarded of compensatory and punitive damages on the landowners' state nuisance claims. The lower court also properly granted prospective injunctive relief on the nuisance claims based on ample evidence of both the threat of continuing violations and existence of actual violations. Finally, the court upheld the decision not to award the landowners' necessary response costs under CERCLA since the costs were unrelated to any cleanup.Ellis v. Gallatin Steel Co., Nos. 02-6421 et al., 34 ELR 20125 (6th Cir. Oct. 26, 2004) (15 pp.).

CWA, NPDES, STANDING:

The Sixth Circuit reversed and remanded a lower court decision and held that two environmental groups have standing to bring suit against a city for violating its NPDES permit. The permit authorized limited discharges of effluent into a river and imposed monitoring and reporting requirements. One group has representational standing because at least one of its members has standing to sue in his own right. That member has an aesthetic and recreational injury due to pollution in the river as well as an informational injury since the failure to report and monitor pollution in the river deprives him of the ability to make choices about whether it is safe to fish, paddle, and recreate in the waterway. The injuries are fairly traceable to the city's actions, and although a future renovation project will eliminate the discharge problems by the time the case is remanded for a judgment on the merits, the injuries are not moot. Both groups also have organizational standing to sue on their own behalf. The violations hamper the groups' monitoring and reporting obligations to their members and their ability to propose legislation and to bring litigation to prevent permit violations, which are essential to their daily organizational activities and to fulfilling their institutional goals.American Canoe Ass'n v. City of Louisa Water & Sewer Commission, No. 02-6018, 34 ELR 20129 (6th Cir. Nov. 1, 2004) (11 pp.).

NEPA, EAs, TIMBER SALES:

The Ninth Circuit held that BLM's EAs for two timbers sales in the Cascade Mountains in Oregon violated NEPA. The EAs do not sufficiently identify or discuss the incremental impact that can be expected from each successive timber sale, or how those individual impacts might combine or synergistically interact with each other to affect the surrounding environment. In addition, the EAs cannot be tiered to a regional management plan without specific information about the cumulative effects, nor can they be tiered to a non-NEPA watershed analysis. Yet whether the impacts were cumulative and similar was an open question; therefore, the court declined to require BLM to evaluate each individual timber project in a single EA.Klamath-Siskiyou Wildlands Center v. Bureau of Land Management, No. 03-35461, 34 ELR 20127 (9th Cir. Oct. 28, 2004) (26 pp.).

CERCLA, REPORTING REQUIREMENTS, "FACILITY":

The Tenth Circuit held that CERCLA §103, which sets out reporting requirements for the release of hazardous substances from farming facilities, does not require each individual barn, lagoon, and land application area to be considered an individual facility for purposes of the statute. CERCLA §101(9)(b) is a catch-all provision that defines "facility" as "any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located." Thus, CERCLA §103's use of the term "facility" encompasses the entire contiguous farm at issue in this case and requires reporting of its ammonia emissions, which exceed 100 pounds per day.Sierra Club v. Seaboard Farms, Inc., No. 03-6104, 34 ELR 20128 (10th Cir. Oct. 28, 2004) (27 pp.).

ZONING, PORTER-COLOGNE WATER QUALITY CONTROL ACT (WATER CODE):

A California appellate court held that a discretionary decision by the state water resources control board as to whether to review a regional water resources control board's decision imposing administrative penalties is not subject to judicial review. The case arose after landowners were assessed a penalty by the regional board for failing to file a notice of intent to grade property and for failing to submit information. The Water Code makes clear that where the state board denies review, the court exercises independent judgment in reviewing the decision or order of the regional board, not that of the state board. Further, the landowners failed to support their claim that the state board's refusal to undertake review of the regional board order violates their due process and/or equal protection rights. Thus, the lower court correctly sustained the state board's demurrer without leave to amend and dismissed the state board from the proceedings.Johnson v. State Water Resources Control Board, No. D043278, 34 ELR 20130 (Cal. 4th App. Dist. Oct. 7, 2004) (10 pp.).

CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA), ADMINISTRATIVE RECORD, DISMISSAL:

A California appellate court reversed a lower court's dismissal of residents' petition for writ of mandamus challenging a county's approval of a residential development project under CEQA. A "request for a hearing" under CEQA §21167.4 need not include the setting of a hearing date. In addition, the lower court abused its discretion by dismissing the petition because of the residents' noncompliance with §21167.6, which concerns the preparation of the administrative record. Although courts may dismiss a CEQA petition in the appropriate circumstances where the petitioner has elected to prepare an administrative record of proceedings (ROP) but fails to complete the ROP in a timely fashion, dismissal was too severe a sanction under the circumstances of this case.Leavitt v. County of Madera, No. F044068, 34 ELR 20131 (Cal. App. 5th Dist. Nov. 3, 2004) (33 pp.).

Copyright© 2004, Environmental Law Institute, Washington, D.C. All rights reserved.

THE FEDERAL AGENCIES

Note: Citations below are to the Federal Register (FR).

AIR:

  • EPA approved Virginia's municipal waste combustor plan that implements emission limits and monitoring, operating, and recordkeeping requirements for existing large municipal waste combustors with a unit capacity of more than 250 tons per day of municipal solid waste.69 FR 63079(10/29/04).
  • EPA approved Indiana's submittal of a revision to its existing emission reporting rule so that it would be consistent with the emission statement program requirements for stationary sources in the CAA.69 FR 63072(10/29/04).
  • EPA withdrew its approval for reasonable available control technology intended to limit nitrogen oxides emissions from two sources in Fairfax County, Virginia, the Central Intelligence Agency and the National Reconnaissance Office, because EPA received adverse comment.69 FR 64259(11/4/04).
  • EPA approved Georgia's request to implement and enforce state permit terms and conditions that substitute for the NESHAPs from the pulp and paper industry pursuant to CAA §112(l).69 FR 63456(11/2/04).

HAZARDOUS AND SOLID WASTES:

  • EPA revised and corrected provisions in proposed and final rules concerning the RCRA National Environmental Performance Track Program; the changes correct inconsistencies and omissions in a preamble and regulatory language.69 FR 62224(10/25/04).
  • EPA announced the availability of DOE documents that augment the ability of transuranic waste sites to be characterized and certified in accordance with EPA's Waste Isolation Pilot Plant compliance criteria.69 FR 64560(11/5/04).
  • EPA, Washington state's Department of Natural Resources, and Washington proposed an administrative settlement under CERCLA concerning the Pacific Sound Resources Superfund site, which incurred a response cost of about $45 million.69 FR 63150 (10/29/04).
  • EPA proposed an administrative settlement agreement under CERCLA regarding partial recovery costs incurred by EPA after implementing a removal action at the South Central Terminal oil refinery and bulk storage facility in Illinois.69 FR 63150(10/29/04).
  • EPA proposed a de minimis settlement concerning the Florida Petroleum Reprocessors Superfund site in Davie, Florida; EPA will consider public comment on the proposed settlement and may withdraw from or modify it if comments disclose facts that indicate the proposed settlement is inappropriate, improper, or inadequate.69 FR 62692(10/27/04).

POLLUTION:

  • The Coast Guard sought public comment on a petition requesting implementation of regulations establishing thermal and vapor dispersion exclusion zones for marine spills of liquefied natural gas that would be like those formed by the Secretary of Transportation for spills of liquefied natural gas on land.69 FR 63979(11/3/04).

PRESIDENTIAL PROCLAMATION:

  • The president issued proclamation number 7836, which declared October 17 through October 23, 2004, as well as the week beginning on the third Sunday in October of each year, as National Forest Products Week, and stated that during that week the nation should "recognize the many benefits of our forests and continue in our dedication to protecting them."69 FR 62390(10/25/04).

WATER QUALITY:

  • EPA amended the federal regulations that withdraw certain water quality criteria applicable to Alaska, Arkansas, and Puerto Rico by determining that the federally implemented criteria are not necessary for the priority toxic pollutants in the National Toxics Rule, since Alaska, Arkansas, and Puerto Rico now have criteria, effective under CWA, for the same toxic pollutants.69 FR 63083(10/29/04).
  • Maryland revised the administrative penalty authority for the state's public water system supervision program to be consistent with the SDWA and related federal regulations.69 FR 62445(10/26/04).
  • EPA notified the public of its proposal to issue NPDES general permits in New England to cover the discharge of contaminated waters related to groundwater remediation activities, while also covering chemical contamination in construction projects, well development at formerly contaminated sites, industrial sump cleanup, utility vault and manhole pump-outs, hydrostatic testing of pipelines and tanks, and short-term testing at dredging projects not covered by a permit issued by the U.S. Army Corps of Engineers.69 FR 63532(11/2/04).

WILDLIFE:

  • NMFS proposed regulations preventing activities that undermine noteworthy implementation and enforcement of resolutions adopted by the Marine Mammal Protection Act, Dolphin Protection Consumer Information Act, and International Dolphin Conservation Program Act.69 FR 63131(10/29/04).
  • FWS designated 376 acres on the island of Guam as critical habitat for the Mariana fruit bat and the Guam Micronesian kingfisher, and 376 acres on the island of Guam and 6,033 acres on the island of Rota in the Commonwealth of the Northern Mariana Islands as critical habitat for the Mariana crow.69 FR 62943(10/28/04).
  • FWS published an interim rule allowing trade in beluga sturgeon and its byproducts, provided that specimens are accompanied by valid permits issued under the Convention on International Trade in Endangered Species of Wild Fauna and Flora, until a final rule concerning such trade is published pursuant to the ESA.69 FR 62415(10/26/04).
  • USDA's Animal and Plant Health Inspection Service requested public comment on the implications of adding aquatic plants of the genusCaulerpa(approximately 75 species of seaweed, all of which inhabit warm waters and many of which are considered invasive) to the list of noxious weeds that are prohibited or restricted from entering the United States or are subject to restrictions on interstate movement, under the Plant Protection Act.69 FR 62419(10/26/04).
  • FWS announced that a revised draft comprehensive conservation plan and environmental impact statement for Kodiak National Wildlife Refuge, prepared pursuant to the Alaskan National Interest Lands Conservation Act, National Wildlife Refuge System Administration Act, and NEPA, is available for review and comment.69 FR 62285(10/25/04).
  • FWS announced the availability of a draft revised recovery plan for the Laysan duck, an endangered species endemic to Laysan Island in the northwestern Hawaiian islands and threatened by habitat degradation, disease, and severe weather incidents.69 FR 64317(11/4/04).
  • NMFS announced its considerations on a proposal to control future access to the open access vessel permit category Atlantic sea scallop fishery if a management regime is developed and implemented under the Magnuson-Stevens Fishery Conservation and Management Act that would limit the number of participants in this sector of the scallop fishery.69 FR 63342(11/1/04).

DOJ NOTICES OF SETTLEMENT:

  • United States v. Hummel, No. 00 C 5184 (N.D. Ill. Oct. 25, 2004). Settling CWA defendants that filled a wetland without a permit must pay a civil penalty, remove and reroute a 500 feet sewer line that was illegally placed through a wetland, and restore the affected wetland.69 FR 64321(11/4/04).
  • United States v. City of Postville, No. C04-1040-LRR (N.D. Iowa Oct. 15, 2004). A defendant settling under CERCLA, the CWA, and the Park System Resource Protection Act that violated CWA provisions and requirements of its NPDES permit at its POTW must perform injunctive relief, including continuous monitoring and reporting of discharges into a nearby river, pay civil penalties for CWA violations, pay natural resource damages to the United States and the state of Iowa, and pay attorneys fees and costs incurred by an environmental group, the Northeast Iowa Citizens for Clean Water.69 FR 64321(11/4/04).
  • United States v. CITGO Petroleum Corp., No. H-04-3883 (S.D. Tex. Oct. 6, 2004). A settling defendant that violated CAA provisions at petroleum refineries in Savannah, Georgia; Lemont, Illinois; Lake Charles, Louisiana; Paulsboro, New Jersey; and Corpus Christi, Texas must implement innovative pollution control technologies to reduce nitrogen oxides and sulfur dioxide emissions from refinery process units and to reduce the number and impact of flaring events, as well as adopt facility-wide enhanced monitoring and fugitive emissions control programs, pay a civil penalty of $3.6 million, and perform a supplemental environmental project with a value of at least $5 million.69 FR 62916(10/28/04).

Copyright© 2004, Environmental Law Institute, Washington, D.C. All rights reserved. 

THE CONGRESS

Congress is currently in recess but will reconvene November 16, 2004.

Copyright© 2004, Environmental Law Institute, Washington, D.C. All rights reserved. 

IN THE STATES

Click on a state name below to see its information in ELR UPDATE. Or go to http://www.elr.info/State/stateupdate.cfmto view the complete section.

Copyright© 2004, Environmental Law Institute, Washington, D.C. All rights reserved.

INTERNATIONAL

GENERAL:

CLIMATE CHANGE:

  • Russian President Vladimir Putin signed legislation ratifying the Kyoto Protocol.
  • The chairman of the U.N.'s Intergovernmental Panel on Climate Change, Rajendra Pachauri, said that while he welcomed Russia's ratification of the Kyoto Protocol more needs to be done to address global warming. "This mustn't lull us into thinking that the problem is solved," he said. "Kyoto is not enough. We now have to look at the problem afresh."
  • Researcherswritingin the journalNaturedescribed a significant decline in the number of krill, with potential adverse effects upon the Antarctic food chain.
  • U.K. Environment Secretary Margaret Beckettincreasedthe cap on carbon dioxide emissions over the next three years, from 736 million tons to 756 million tons.
  • Beckett alsosaidthat despite President George W. Bush's reelection, she believes the United States will moderate its position on Kyoto and global climate change initiatives.
  • Sir Crispin Tickell, an advisor to the U.K. government,saidthat an aggressive global response to climate change threats is inevitable.
  • Professor John Schellnhuber of the University of East Anglia, research director of the Tyndall Centre for Climate Change Research,saidthat the costs of global implementation of effective climate change control strategies would likely not exceed 0.3% of world gross domestic product.
  • The Energy Saving Trust, a U.K. group, issued areportthat paints a pessimistic picture of the likely effects of climate change.

Copyright© 2004, Environmental Law Institute, Washington, D.C. All rights reserved. 

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