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Weekly Update Volume 34, Issue 33

11/22/2004

 LITIGATION

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

CAA, OPERATING PERMITS PROGRAM, FEES:

The Delaware Supreme Court held that the state environmental agency lawfully determined the "base fee" to be paid by a company under Delaware's CAA Title V operating permits program. The assessment was neither a regulation nor a case decision. Rather, the agency implemented a statutory directive by categorizing all air polluters based on the estimated hours it spent performing stated types of activities. Here, the $18,000 base fee was founded on the agency's determination that the company is a "complex" source requiring 401-625 hours of services, and the record supports this determination.Free-Flow Packaging International, Inc. v. Secretary of the Department of Natural Resources & Environmental Control, No. 1, 2004, 34 ELR 20137 (Del. Nov. 15, 2004) (10 pp.).

UST, PENALTIES, PRELIMINARY INJUNCTION:

The First Circuit upheld the dismissal of an oil company's lawsuit seeking to enjoin the Puerto Rico Environmental Quality Board from imposing a fine against it for releasing fuel from a leaking UST system into the environment. Because the proceedings are ongoing before the board, the district court properly abstained from the company's suit. Although the board may be biased against the company, the company failed to demonstrate irreparable harm; thus, federal intervention is not warranted. Moreover, the company may seek interlocutory judicial review of its due process claim in state court.Esso Standard Oil Co. v. Cotto, No. 04-2055, 34 ELR 20139 (1st Cir. Nov. 16, 2004) (29 pp.).

FALSE CLAIMS ACT (FCA), JURISDICTION:

The Tenth Circuit upheld the dismissal of an individual's qui tam action under the FCA against a company for allegedly presenting false valuations of royalties owed for carbon dioxide production. Although the individual's complaint is based on a publicly disclosed transaction, the character of his discovery and investigation is insufficient to qualify him as an original source. Thus, he failed to establish subject matter jurisdiction under the FCA. The case, however, was remanded on the issue of attorneys fees.United States v. Praxair, Inc., Nos. 01-1214, -1242, 34 ELR 20138 (10th Cir. Nov. 15, 2004) (43 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 entered into a proposed settlement agreement addressing a lawsuit filed by the Louisiana Environmental Action Network (LEAN) objecting to two permits, issued by Louisiana's Department of Environmental Quality to the Dow Chemical Company, that did not receive a response within 60 days; EPA agreed to respond to the group's objection petition by December 22, 2004, and to pay LEAN $1,641.50 in attorney's fees, and LEAN agreed to dismiss the suit with prejudice.69 FR 67348(11/17/04).
  • EPA dismissed a petition requesting review of a permit issued by the Minnesota Pollution Control Agency to the Rochester Public Utilities' Silver Lake Plant after the EPA Environmental Appeals Board found that the state agency did not need to require best available control technology for the permitted major modification.69 FR 67144(11/16/04).
  • EPA was notified by the California Air Resources Board about amendments to the California heavy-duty diesel regulations for 2007 and subsequent model year vehicles and engines and related test procedures to determine compliance with applicable standards.69 FR 65596(11/15/04).

NATURAL RESOURCES:

  • The National Park Service proposed to designate areas where personal watercraft may be used in Pictured Rocks National Lakeshore, Michigan, which would implement the provisions of the Service's general regulations authorizing park areas to allow the use of personal watercraft by implementing a special regulation.69 FR 65563(11/15/04).

SOLID AND HAZARDOUS WASTES :

  • EPA granted a site-specific treatment standard variance for a selenium-bearing hazardous waste produced by the glass manufacturing industry because the chemical properties of this waste differ significantly from those of the waste used to establish the current treatment standards for selenium.69 FR 67654(11/19/04).

TOXIC SUBSTANCES:

  • EPA considered new procedures and regulations, outlining four identification elements, for naming enzymes and proteins when listing them on the TSCA chemical substances inventory.69 FR 65570(11/15/04).

WATER QUALITY:

  • EPA promulgated water quality criteria for bacteria for coastal and Great Lakes recreation waters not currently regulated by specific states and territories under standards that comply with CWA §303(i)(1)(A).69 FR 67217(11/16/04).

WILDLIFE:

  • NMFS authorized an incidental take by harassment of small numbers of marine mammals for wall replacement and bluff improvement projects in La Jolla, California.69 FR 67711(11/19/04).
  • NOAA's Office of Ocean and Coastal Resources Management announced plans to evaluate the performance of coastal programs in California, Louisiana, and South Carolina, pursuant to CZMA requirements for the continuing review of the extent to which states have met national objectives, adhered to their NOAA-approved coastal management program documents or reserve final management plans, and adhered to the terms of financial assistance for CZMA funding.69 FR 67534(11/18/04).
  • NMFS determined that the stock assessment reports for marine mammal stocks in the Alaska and Atlantic regions did not indicate any change in stock status or suggest that the status could not be determined more accurately; revised the report concerning marine mammals in the Pacific region pursuant to new information; and proposed changes in the guidelines for preparing stock assessment reports.69 FR 67541(11/18/04).
  • NMFS implemented international trade tracking recommendations of the International Commission for the Conservation of Atlantic Tunas and the Inter-American Tropical Tuna Commission for bluefin tuna, swordfish, and frozen bigeye tuna, regardless of ocean area of origin; these recommendations address trade monitoring requirements, including the highly migratory species international trade permit.69 FR 67284(11/17/04).
  • NMFS renewed the affirmative finding that allows the continued importation of yellowfin tuna and yellowfin tuna products into the United States from the Republic of Ecuador under the Marine Mammal Protection Act.69 FR 65583(11/15/04).

DOJ NOTICES OF SETTLEMENT:

  • United States v. Atlantic Richfield Co., No. 2:04CV01028 BSJ (D. Utah Nov. 5, 2004). A settling CERCLA defendant must implement the remedy for the Eureka Mills NPL Superfund site in Eureka, Utah, selected by EPA for portions of the site where the defendant is responsible for the release or threatened release of hazardous substances; EPA estimates the remedy will cost in excess of $6.1 million.69 FR 67606(11/18/04).
  • United States v. Atlantic Richfield Co., No. CV-89-39-SEH (D. Mont. Nov. 4, 2004). The proposed CERCLA settlement would simultaneously resolve, subject to certain reservations, most of the defenses and counterclaims asserted by the defendant against United States for past and future response costs and future response actions associated with certain Superfund sites within the Clark Ford River Basin in southwestern Montana that have not been subject to prior settlements with the United States, including the Anaconda Smelter, Clark Ford River, Warm Springs Ponds, and Butte Superfund sites.69 FR 67607(11/18/04).
  • United States v. Esso Standard Oil Co., No. 2004/0139 (D.V.I. Oct. 25). A settling CERCLA defendant must pay $3 million in response costs associated with the Tutu Wellfield Superfund site in St. Thomas, U.S. Virgin Islands.69 FR 67607(11/18/04).

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

THE CONGRESS

PUBLIC LAWS:

  • S. 33 (national forests), which authorizes the Secretary of Agriculture to sell or exchange all or part of certain administrative sites and other land in the Ozark-St. Francis and Ouachita National Forests and to use funds derived from the sale or exchange to acquire, construct, or improve administrative sites, was signed into law on October 21, 2004. Pub. L. No. 108-350.
  • S. 551 (Native Americans; air quality), which provides for the implementation of air quality programs developed in accordance with an Intergovernmental Agreement between the Southern Ute Indian Tribe and the state of Colorado concerning Air Quality Control on the Southern Ute Indian Reservation, was signed into law on October 18, 2004. Pub. L. No. 108-336.
  • S. 1421 (Alaska natives), which authorizes the subdivision and dedication of restricted land owned by Alaska Natives, was signed into law on October 18, 2004. Pub. L. No. 108-337.
  • S. 1663 (coastal resources), which replaces certain Coastal Barrier Resources System maps, was signed into law on October 18, 2004. Pub. L. No. 108-339.
  • S. 1687 (National Park System), which directs the Secretary of the Interior to conduct a study on the preservation and interpretation of the historic sites of the Manhattan Project for potential inclusion in the National Park System, was signed into law on October 18, 2004. Pub. L. No. 108-340.
  • S. 1721 (Native American lands), which amends the Indian Land Consolidation Act to improve provisions relating to probate of trust and restricted land, was signed into law on October 27, 2004. Pub. L. No. 108-374.
  • S. 1791 (reclamation fund), which amends the Lease Lot Conveyance Act of 2002 to provide that the amounts received by the United States under that Act shall be deposited in the reclamation fund, was signed into law on October 21, 2004. Pub. L. No. 108-351.
  • S. 1814 (land transfer), which transfers federal lands between the Secretary of Agriculture and the Secretary of the Interior, was signed into law on October 18, 2004. Pub. L. No. 108-341.
  • S. 2052 (National Trails System Act), which amends the National Trails System Act to designate El Camino Real de los Tejas as a National Historic Trail, was signed into law on October 18, 2004. Pub. L. No. 108-342.
  • S. 2178 (National Park System), which makes technical corrections to laws relating to certain units of the National Park System and to National Park programs, was signed into law on October 21, 2004. Pub. L. No. 108-352.
  • S. 2180 (national forests), which directs the Secretary of Agriculture to exchange certain lands in the Arapaho and Roosevelt National Forests in the state of Colorado, was signed into law on October 18, 2004. Pub. L. No. 108-346.
  • S. 2319 (hydroelectric power), which authorizes and facilitates hydroelectric power licensing of the Tapoco Project, was signed into law on October 18, 2004. Pub. L. No. 108-343.
  • S. 2511 (water supply), which directs the Secretary of the Interior to conduct a feasibility study of a Chimayo water supply system, to provide for the planning, design, and construction of a water supply, reclamation, and filtration facility for Espanola, New Mexico, was signed into law on October 21, 2004. Pub. L. No. 108-354.
  • H.R. 2408 (national wildlife refuges), which amends the Fish and Wildlife Act of 1956 to reauthorize volunteer programs and community partnerships for national wildlife refuges, was signed into law on October 16, 2004. Pub. L. No. 108-327.
  • H.R. 2771 (SDWA), which amends the SDWA to reauthorize the New York City Watershed Protection Program, was signed into law on October 16, 2004. Pub. L. No. 108-328.
  • H.R. 2828 (water resources), which authorizes the Secretary of the Interior to implement water supply technology and infrastructure programs aimed at increasing and diversifying domestic water resources, was signed into law on October 25, 2004. Pub. L. No. 108-361.
  • H.R. 3056 (coastal boundary), which clarifies the boundaries of the John H. Chafee Coast Barrier Resources System Cedar Keys Unit P25 on Otherwise Protected Area P25P, was signed into law on October 30, 2004. Pub. L. No. 108-380.
  • H.R. 3217 (land conveyance), which provides for the conveyance of several small parcels of National Forest System land in the Apalachicola National Forest, Florida, to resolve boundary discrepancies involving the Mt. Trial Primitive Baptist Church of Wakulla County, Florida, was signed into law on October 30, 2004. Pub. L. No. 108-381.
  • H.R. 3391 (land conveyance), which authorizes the Secretary of the Interior to convey certain lands and facilities of the Provo River Project, was signed into law on October 30, 2004. Pub. L. No. 108-382.
  • H.R. 3706 (boundary adjustment), which adjusts the boundary of the John Muir National Historic Site, was signed into law on October 30, 2004. Pub. L. No. 108-385.
  • H.R. 3819 (national park), which redesignates Fort Clatsop National Memorial as the Lewis and Clark National Historical Park to include in the park sites in the state of Washington as well as the state of Oregon, was signed into law on October 30, 2004. Pub. L. No. 108-387.
  • H.R. 4066 (land conveyance), which provides for the conveyance of certain land to the United States and to revise the boundary of Chickasaw National Recreation Area, Oklahoma, was signed into law on October 30, 2004. Pub. L. No. 108-389.
  • H.R. 4115 (Salt River Pima-Maricopa Indian Reservation), which amends the Act of November 2, 1966 (80 Stat. 1112), to allow binding arbitration clauses to be included in all contracts affecting the land within the Salt River Pima-Maricopa Indian Reservation, was signed into law on October 16, 2004. Pub. L. No. 108-329.
  • H.R. 4481 (boundary expansion), which amends Public Law 86-434 establishing Wilson's Creek National Battlefield in the state of Missouri to expand the boundaries of the park, was signed into law on October 30, 2004. Pub. L. No. 108-394.
  • H.R. 4731 (FWPCA), which amends FWPCA to reauthorize the National Estuary Program, was signed into law on October 30, 2004. Pub. L. No. 108-399.
  • H.R. 4827 (conservation area), which amends the Colorado Canyons National Conservation Area and Black Ridge Canyons Wilderness Act of 2000 to rename the Colorado Canyons National Conservation Area as the McInnis Canyons National Conservation Area, was signed into law on October 30, 2004. Pub. L. No. 108-400.

CHAMBER ACTION:

  • S. 434 (Idaho Panhandle National Forest Improvement Act of 2003), which would authorize the Secretary of Agriculture to sell or exchange all or part of certain parcels of National Forest System land in the state of Idaho and use the proceeds derived from the sale or exchange for National Forest System purposes, was passed by the House, clearing the measure for the President. 150 Cong. Rec. H9837 (daily ed. Nov. 17, 2004).
  • S. 1241 (Kate Mullany National Historic Site Act), which would establish the Kate Mullany National Historic Site in the state of New York, was passed by the House, clearing the measure for the President. 150 Cong. Rec. H9835 (daily ed. Nov. 17, 2004).
  • S. 1466 (Alaska Land Transfer Acceleration Act of 2003), which would facilitate the transfer of land in the state of Alaska, was passed by the House, clearing the measure for the President. 150 Cong. Rec. H9838 (daily ed. Nov. 17, 2004).
  • S. 1727 (Reclamation Safety of Dams Act; appropriations), which would authorize additional appropriations for the Reclamation Safety of Dams Act of 1978, was passed by the House, clearing the measure for the President. 150 Cong. Rec. H9836 (daily ed. Nov. 17, 2004).
  • S. 2280 (National Ocean Exploration Program Act), which would establish a coordinated national ocean exploration program within NOAA, was passed by the Senate. 150 Cong. Rec. S11389 (daily ed. Nov. 16, 2004).
  • S. 2489 (Coastal and Ocean Mapping Integration Act), which would establish a program within NOAA to integrate federal coastal and ocean mapping activities, was passed by the Senate. 150 Cong. Rec. S11386 (daily ed. Nov. 16, 2004).
  • H.R. 1113 (Fort Frederica National Monument), which would authorize an exchange of land at Fort Frederica National Monument, was passed by the House, clearing the measure for the President. 150 Cong. Rec. H9826 (daily ed. Nov. 17, 2004).
  • H.R. 1284 (Reclamation Projects Authorization and Adjustment Act of 1992), which would amend the Reclamation Projects Authorization and Adjustment Act of 1992 to increase the federal share of the costs of the San Gabriel Basin demonstration Project, was passed by the House, clearing the measure for the President. 150 Cong. Rec. H9837 (daily ed. Nov. 17, 2004).
  • H.R. 1964 (conservation), which would assist the states of Connecticut, New Jersey, New York, and Pennsylvania in conserving priority lands and natural resources in the Highlands region, was passed by the House, clearing the measure for the President. 150 Cong. Rec. H9826 (daily ed. Nov. 17, 2004).
  • H.R. 4794 (Tijuana River Valley Estuary and Beach Sewage Clean Up Reauthorization), which would amend the Tijuana River Valley Estuary and Beach Sewage Cleanup Act of 2000 to extend the authorization of appropriations, was passed by the Senate, clearing the measure for the President. 150 Cong. Rec. S11390 (daily ed. Nov. 16, 2004).

COMMITTEE ACTION:

  • S. 2647 (oceans), was reported by the Committee on Commerce, Science, and Transportation. S. Rep. No. 108-407, 150 Cong. Rec. S11377 (daily ed. Nov. 16, 2004). The bill would establish a national ocean policy, set forth the missions of NOAA, and ensure interagency coordination.
  • H.R. 4908 (land transfer), was reported by the Committee on Resources. H. Rep. No. 108-777, 150 Cong. Rec. 9962 (daily ed. Nov. 17, 2004). The bill would transfer certain land in Riverside County, California, from BLM to the United States to be held in trust for the Pechanga Band of Luiseno Mission Indians.

BILLS INTRODUCED:

  • H.R. 5361 (Rahall, D-W.Va.) (wildlife refuges), would require the Secretary of the Interior to provide public access to Navassa National Wildlife Refuge and Desecheo National Wildlife Refuge. 150 Cong. Rec. H9744 (daily ed. Nov. 16, 2004). The bill was referred to the Committee on Resources.
  • H.R. 5369 (Sherwood, R-Pa.) (natural gas pipeline), would authorize the Secretary of the Interior to allow the Columbia Gas Transmission Corporation to increase the diameter of a natural gas pipeline located in the Delaware Water Gap National Recreation Area. 150 Cong. Rec. H9745 (daily ed. Nov. 16, 2004). The bill was referred to the Committee on Resources.
  • H.R. 5377 (Garratt, R-N.J.) (national park), would establish the Thomas Edison National Historical Park in the state of New Jersey as the successor to the Edison National Historic Site. 150 Cong. Rec. H9745 (daily ed. Nov. 16, 2004). The bill was referred to the Committee on Resources.

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

CLIMATE CHANGE:

  • The United Nations announced that the Kyoto Protocol is to become a legally binding treaty on February 16, 2004, thanks to Russia's ratification of the protocol. The protocol required the agreement of countries responsible for at least 55% of global emissions measured in 1990. After the United States pulled out, the protocol could not be ratified without Russia, responsible for 17% of emissions. The protocol commits 55 industrialized nations to making significant cuts in the emission of gases such as carbon dioxide by the year 2012. Seehttp://news.bbc.co.uk/2/hi/europe/4022283.stm
  • U.S. companies, including General Motors Corp., DuPont Co. and Xerox Corp., are cutting carbon dioxide emissions to remain competitive in European countries that have adopted Kyoto Protocol limits rejected by President George W. Bush. U.S. manufacturers are concerned they may lose their ability to operate factories or sell products in countries that have ratified the treaty, said Richard Sandor, chairman of Chicago Climate Exchange, which certifies companies that reduce greenhouse gas emissions. Visithttp://www.bloomberg.com/apps/news?pid=71000001&refer=us&sid=aSedVkbj0CwQfor more details.

CHEMICAL POLLUTION:

  • The European Union (EU) ratified the Stockholm Convention on Persistent Organic Pollutants (POPs). According to an EUpress release, this Convention is the most important global effort to ban the use of toxic chemicals. EU legislation already implements all its provisions, but by becoming a Party to the Convention, it can push for its efficient implementation all over the world and for inclusion of additional substances to be banned globally. POPs are toxic, persist for generations, can travel long distances, and accumulate in human and animal bodies. They have been widely used in industry and as pesticides. Traces of these substances can be found in humans and animals all over the planet. Environment Commissioner Margot Wallström commented: "I welcome the ratification of the Convention as an important step to rid the world of the worst manmade substances. As a Party to the Convention, we can push for higher global chemicals safety--not only for our own sake, but also for the sake of people living in countries where some of these nasty substances are still being used. It also gives us the possibility to propose additional POPs to be banned under the Convention. The Commission has already prepared a list of such substances that should be the next generation of phase-outs. I am urgently waiting for the go-ahead from Council to submit this list to the Convention."

WILDLIFE:

  • The IUCN-The World Conservation Union reported that 15,589 species are now known to be in a perilous position. According to BBC News, the IUCN, which can call on the expertise of some 10,000 scientists across the globe, believes the threat facing global biodiversity is escalating. The IUCN's "Red List" lists 15,589 species --7,266 animals and 8,323 plants and lichens--as either critically endangered, endangered, or vulnerable. Seehttp://news.bbc.co.uk/2/hi/science/nature/4013719.stm

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

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