Jump to Content

Weekly Update Volume 34, Issue 34

12/06/2004

LITIGATION

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

CERCLA, CONTRIBUTION, FUTURE COSTS:

The Sixth Circuit affirmed a lower court judgment requiring a company to pay 70% of the clean-up costs associated with a landfill, but remanded the case on the issue of future costs. The contribution claim was not barred by the statute of limitations, and the company was a PRP because it "arranged for disposal" of hazardous waste. In addition, the lower court's allocation of contribution liability was proper. However, the case was remanded to determine whether a case or controversy exists with respect to continuing clean-up costs, and if that jurisdictional requirement is satisfied, for the entry of a declaratory judgment.GenCorp, Inc. v. Olin Corp., Nos. 03-3019, -3211, 34 ELR 20141 (6th Cir. Nov. 22, 2004) (13 pp.).

CERCLA, TRESPASS, STATUTE OF LIMITATIONS:

The Sixth Circuit held that although a town's trespass claim against a factory was barred by the statute of limitations, the lower court incorrectly applied CERCLA and the Michigan Natural Resources and Environmental Protection Act (NREPA) to deny the town recovery of any of its costs resulting from groundwater contamination. The town knew or should have known of its potential cause of action against the factory more than three years prior to bringing its trespass claim. Thus, the lower court properly dismissed the town's trespass claim. The court, however, erred in dismissing the town's CERCLA claim because the response costs the town incurred were "necessary." Likewise, the court erred in dismissing the town's NREPA claim because the factory caused a release of hazardous substances and at least some of town's costs were "required." In addition, the court's award of attorneys fees was too restrictive.Village of Milford v. K-H Holding Corp., No. 03-1597, 34 ELR 20143 (6th Cir. Nov. 23, 2004) (8 pp.).

IMPOUNDED WATER, CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA):

A California appellate court held that under the state constitution and the state Water Code, an application for a permit to impound water in a reservoir must state, and the Water Board must determine, that an actual, intended beneficial use, in estimated amounts, will be made of the impounded waters. A general statement of potential beneficial use is insufficient and the Board may not satisfy its statutory and constitutional obligations by conditioning a permit on a particular use and in amounts to be specified at some later date. In addition, CEQA requires that the environmental consequences of the specific intended beneficial use of the impounded water before issuance of a permit.Central Delta Water Agency v. State Water Resources Control Board, No. C041749, 34 ELR 20140 (Cal. App. 3d Dist. Nov. 19, 2004) (42 pp.).

LAND USE, FLOODWATERS, IMMUNITY:

A California appellate court upheld the dismissal of a campground's suit against a reclamation district after intentional levee cuts by the district released floodwater onto the campground property. The district is entitled to immunity under the California Emergency Services Act and under the police power exception to inverse condemnation liability.Thousand Trails, Inc. v. California Reclamation District Number 17, No. C042328, 34 ELR 20144 (Cal. App. 3d Dist. Nov. 29, 2004) (26 pp.).

LAND USE, SURFACE MINING, COUNTY INITIATIVE:

A California appellate court dismissed a preservation group's suit to enjoin a quarry project under a county initiative that requires new quarries outside an urban zone to be sanctioned by voters. The initiative does not apply to preexisting legal land uses and rights to development. Here, the county issued a surface mining permit for the project prior to the initiative's passage. The project, therefore, had already been approved by the county and is not a new quarry subject to voter approval.Save Our Sunol, Inc. v. Mission Valley Rock Co., No. A105160, 34 ELR 20142 (Cal. App. 1st Dist. Nov. 19, 2004) (10 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 proposed a Clean Air Mercury Rule under the CAA that presents two alternative approaches to regulating mercury and nickel from power plants, representing the first federal action regulating mercury from this source category.69 FR 69878(12/1/04).
  • EPA amended the list of hazardous air pollutants contained in CAA §112(b)(1) by removing the compound ethylene glycol monobutyl ether from the group of glycol ethers.69 FR 69320(11/29/04).
  • EPA revised its definition of volatile organic compounds (VOCs) for purposes of federal regulations related to attaining the NAAQS for ozone.69 FR 69298(11/29/04).
  • EPA revised its definition of VOCs for purposes of preparing SIPs to attain the NAAQS for ozone.69 FR 69290(11/29/04).
  • EPA denied a petition submitted by the Glynn Environmental Coalition and the Center for a Sustainable Coast to object to a state operating permit issued by the Georgia Environmental Protection Division to Hercules, Inc. located in Brunswick, Glynn County, Georgia.69 FR 68350(11/24/04).

ANIMAL HEALTH:

  • USDA's Animal and Plant Health Inspection Service amended the swine health protection regulations by removing Kentucky from the list of states that permit the feeding of treated garbage to swine and adding it to the list of states that prohibit garbage feeding, which facilitates the administration of the swine health protection regulations.69 FR 70180(12/3/04).

HAZARDOUS WASTES & SUBSTANCES:

  • EPA announced the availability of and requested public comment concerning DOE documents characterizing transuranic radioactive solid waste from the plutonium finishing plant at the Hanford Superfund site; this notice is part of an after-the-fact expedited review of one of the elements of Hanford's waste characterization processes.69 FR 69569(11/30/04).
  • The Agency for Toxic Substances and Disease Registry announced those sites for which it has completed public health assessments during the period from July through September 2004.69 FR 69371(11/29/04).
  • EPA deleted phosmet from the extremely hazardous substances list under EPCRA.69 FR 68809(11/26/04).
  • EPA proposed to modify a conditional exclusion from the lists of hazardous waste previously granted to BMW Manufacturing Co. in Greer, South Carolina, concerning wastewater treatment sludge.69 FR 68851(11/26/04).
  • DOT's Research and Special Programs Administration issued an advisory bulletin to owners and operators of natural gas and hazardous liquid pipeline systems concerning the minimum requirements for operator qualification programs for personnel performing covered tasks on a pipeline facility.69 FR 69028(11/26/04).

FISHERIES:

  • NMFS gave notice that Glenn R. VanBlaricom has requested renewal of his incidental harassment authorization to take small numbers of marine mammals by harassment incidental to the assessment of black abalone populations at San Nicolas Island, California.69 FR 70252(12/3/04).
  • NMFS published the proposed 2005 List of Fisheries, an annual categorization of each fishery in the United States into three categories specified by the Marine Mammal Protection Act, based upon the level of serious injury and mortality of marine mammals incidental to the fishery.69 FR 70094(12/2/04).
  • NMFS issued a temporary authorization so that shrimp trawlers use limited tow times instead of turtle excluder devices (TEDs) in the state waters of Alabama and Louisiana, since conditions resulting from Hurricane Ivan have prevented the fishermen from using TEDs effectively.69 FR 69828(12/1/04).
  • NMFS proposed to revise regulations governing the Western Alaska Community Development Quota (CDQ) Program that would simplify the processes for making quota transfers, for authorizing vessels as eligible to participate in the CDQ fisheries, and for obtaining approval of alternative fishing plans.69 FR 68865(11/26/04).

MINING:

  • OSM approved an amendment to Indiana's regulatory program under SMCRA.69 FR 69280(11/29/04).

NATURAL RESOURCES:

  • USDA's Natural Resources Conservation Service announced plans to deauthorize federal funding for proposed improvements at the White Tank Mountains Watershed project in Maricopa County, Arizona, after the state conservationist determined that the improvements should not be installed and sponsoring local organizations concurred with this determination.69 FR 70119(12/2/04).

OCCUPATIONAL SAFETY:

  • OSHA amended the occupational injury and illness recording and reporting requirements applicable to federal agencies, including the forms used by federal agencies to record those injuries and illnesses.69 FR 68793(11/26/04).

PERMITTING:

  • The U.S. Army Corps of Engineers proposed to amend its nationwide permit regulations so that district engineers can issue a permit verification letter that expires on the same date the associated permit expires, and such that the 30-day pre-construction notification review period is extended to 45 days, in conformance with nationwide permit general condition 13.69 FR 69563(11/30/04).

PESTICIDES:

  • EPA announced the availability of its risk assessments, preliminary risk reduction options, and other documents for the ethylenbisdithiocarbamates pesticides mancozeb, maneb, metiram, and ethylen ehiourea.69 FR 68352(11/24/04).

WATER QUALITY:

  • EPA announced the availability for comment of the administrative record files for four TMDLs and the calculations for them for waters listed in the Barataria river basin of Louisiana under §303(d) of the CWA.69 FR 69924(12/1/04).
  • EPA announced the availability of EPA decisions identifying water quality limited segments and associated pollutants in Arizona to be listed under CWA §303(d)(2) and seeks public comment.69 FR 68902(11/26/04).
  • EPA proposed a rule that would establish national requirements, implemented through NPDES, suggesting three possible options for defining what existing facilities would be subject to uniform national requirements, based on design intake flow threshold and source waterbody type, under §316(b) of the CWA for certain facilities that use a cooling water intake structure and are designed to withdraw water above a certain design intake flow from certain waters of the United States for cooling purposes.69 FR 68565. (11/24/04).

WILDLIFE:

  • FWS notified the public of its intentions to gather the necessary information to prepare a comprehensive conservation plan and EA pursuant to NEPA and its regulations.69 FR 70276(12/3/04).
  • The Federal Subsistence Board, a unit of the USDA and FWS, announced adjustments to seasons, harvest limits, methods, and means allowed for moose subsistence hunting on units 22 and 24 of public lands in Alaska governed by federal subsistence management regulations issued in July 2004; the adjustments are intended to protect the declining bull and antlerless moose populations in those units.69 FR 70074(12/2/04).
  • FWS designated 11,180 acres of critical habitat for the California tiger salamander located in Santa Barbara County, California.69 FR 68609(11/24/04).
  • FWS granted Elizabeth Cross Roads LLC an incidental take permit for the Preble's meadow jumping mouse after FWS determined that granting the permit would not disadvantage the threatened species and would be consistent with policy set forth in the ESA.69 FR 67934(11/22/04).

DOJ NOTICES OF SETTLEMENTS:

  • United States v. Iowa Turkey Products, Inc, No. C04-1045-LRR (N.D. Iowa Nov. 15, 2004). A settling CWA, CERCLA, and EPCRA defendant must refrain from future violations of the CWA, CERCLA, and EPCRA, pay civil penalties for the CWA, EPCRA, and CERCLA violations, and pay natural resource damages, including compensatory restoration costs for failure to give notice of the release of anhydrous ammonia during a fire at the defendant's facility as well as unlawfully discharging substances in a POTW later resulting in the release of hazardous substances.69 FR 69957(12/1/04).
  • United States v. America & Wainwright Industries, Inc, No. 02-CV-1548-SNL (E.D. Mo. Nov. 18, 2004). A settling CERCLA defendant must pay $542,000 plus interest in two installments and future EPA oversight costs at its former property; the defendant will also receive a covenant not to sue for past and future costs related to known contamination at the site since the amount the defendant must pay is based on its inability to pay more.69 FR 69958(12/1/04).
  • United States v. CanadianOxy Offshore Production Co., No. CV04-2220-S (W.D. La. Oct. 28, 2004). A settling CERCLA defendant must perform all the work required by EPA's September 2000 Record of Decision for the Highway 71/72 Refinery site in Bossier City, Louisiana; pay $5,689,192.06 towards the response costs incurred by EPA in connection with the site on or before September 30, 2003, plus interest from September 30, 2003, to the date the Consent Decree is entered; and pay all response costs incurred by EPA in connection with the site after September 30, 2003.69 FR 68978(11/26/04).
  • United States v. Chuchua, No. 3:01CV1479 DMS (AJB) (S.D. Cal. Nov. 8, 2004). A settling CWA defendant must mitigate the environmental impacts it caused when it discharged pollutants without a permit into U.S. waters by purchasing mitigation credits at the Pilgrim Creek Mitigation Bank and pay a civil penalty.69 FR 68979(11/26/04).
  • In re Met-Coil Systems, LLC, No. 03-12676 (Bankr. D. Del. Nov. 12, 2004). A settling CERCLA defendant shall continue its cleanup of the Lockformer site in Lisle, Illinois, under the existing Unilateral Administrative Order, and the United States shall be allowed a general unsecured claim in the amount of $415,000, with a cash value of $290,500 and shall be allowed an administrative expense claim in the amount of $120,000 to be paid in full, for a total payment of $410,500 as partial reimbursement for U.S. response costs.69 FR 68979(11/26/04).
  • United States v. Orange County Sanitation District, No. SACV04-1317 AHS (MLGx) (C.D. Cal. Nov. 15, 2004). A CWA defendant that violated secondary treatment standards and its NPDES permit must construct secondary treatment facilities to allow it to achieve compliance with the terms and conditions of its NPDES permit and the Act, comply with interim effluent limitations while undergoing secondary treatment upgrades, report its progress to EPA and the California Regional Water Quality County Board, and be subject to stipulated penalties.69 FR 68979(11/26/04).

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

THE CONGRESS

CHAMBER ACTION:

  • S. 1530 (Tribal Parity Act of 2004), which would provide compensation to the Lower Brule and Crow Creek Sioux Tribes of South Dakota for damage to tribal land caused by Pick-Sloan projects along the Missouri River, was passed by the Senate. 150 Cong. Rec. S11577 (daily ed. Nov. 19, 2004).
  • S. 1996 (Oglala Sioux Tribe Angostura Irrigation Project Rehabilitation and Development Act of 2004), which would enhance and provide to the Oglala Sioux Tribe and Angostura Irrigation Project certain benefits of the Pick-Sloan Missouri River basin program, was passed by the Senate. 150 Cong. Rec. S11577-79 (daily ed. Nov. 19, 2004).
  • S. 2488 (Marine Debris Research and Reduction Act of 2004), which would establish a program within NOAA and the U.S. Coast Guard to help identify, determine sources of, assess, reduce, and prevent marine debris and its adverse impacts on the marine environment and navigation safety, in coordination with non-federal entities, was passed by the Senate. 150 Cong. Rec. S11840 (daily ed. Nov. 20, 2004).
  • S. 2605 (Snake River Water Rights Act of 2004), which would direct the Secretary of the Interior and the heads of other federal agencies to carry out an agreement resolving major issues relating to the adjudication of water rights in the Snake River Basin, Idaho, was passed by the Senate. 150 Cong. Rec. S11566-72 (daily ed. Nov. 19, 2004).

COMMITTEE ACTION:

  • H.R. 885 (water rights), was reported by the Committee on Resources. H. Rep. No. 108-793, 150 Cong. Rec. 10232 (daily ed. Nov. 20, 2004). The bill would provide for adjustments to the Central Arizona Project in Arizona, to authorize the Gila River Indian Community water rights settlement, to reauthorize and amend the Southern Arizona Water Rights Settlement Act of 1982.
  • H.R. 1662 (ESA), was reported by the Committee on Resources. H. Rep. No. 108-785, 150 Cong. Rec. 10078 (daily ed. Nov. 19, 2004). The bill would amend the ESA to require the Secretary of the Interior to give greater weight to scientific or commercial data that is empirical or has been field-tested or peer-reviewed.
  • H.R. 2933 (ESA), was reported by the Committee on Resources. H. Rep. No. 108-786, 150 Cong. Rec. 10078 (daily ed. Nov. 19, 2004). The bill would amend the ESA to reform the process for designating critical habitat under that Act.
  • H.R. 5104 (Marine Mammal Rescue Assistance Grant Program), was reported by the Committee on Resources. H. Rep. No. 108-787, 150 Cong. Rec. 10078 (daily ed. Nov. 19, 2004). The bill would amend the Marine Mammal Protection Act of 1972 to authorize appropriations for the John H. Prescott Marine Mammal Rescue Assistance Grant Program.

BILLS INTRODUCED:

  • S. 3001 (Talent, R-Mo.) (hybrid high occupancy vehicles (HOVs)), would approve the "Hybrid HOV Access Act." 150 Cong. Rec. S11496 (daily ed. Nov. 18, 2004). The bill was referred to the Committee on Environment and Public Works.
  • S. 3003 (Reid, D-Nev.) (land conveyance), would require the Secretary of the Interior to convey to the city of Henderson, Nevada, certain federal land located in the city. 150 Cong. Rec. S11496 (daily ed. Nov. 18, 2004). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 3008 (Lincoln, D-Ark.) (National Park System), would require the Secretary of the Interior to study the suitability and feasibility of designating the Wolf House, located in Norfolk, Arkansas, as a unit of the National Park System. 150 Cong. Rec. S11639 (daily ed. Nov. 19, 2004). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 3009 (Bond, R-Mo.) (National Science Foundation), would establish a Division of Food and Agricultural Science within the National Science Foundation and to authorize funding for the support of fundamental agricultural research of the highest quality. 150 Cong. Rec. S11639 (daily ed. Nov. 19, 2004). The bill was referred to the Committee on Agriculture, Nutrition, and Forestry.
  • S. 3024 (Dodd, D-Conn.) (National Center for Transportation Solutions), would establish the National Center for Transportation Solutions. 150 Cong. Rec. 11799 (daily ed. Nov. 20, 2004). The bill was referred to the Committee on Commerce, Science, and Transportation.
  • H.R. 5387 (Crane, R-Ill.) (Wauconda Sand and Gravel Superfund site), would require the Administrator of EPA to provide remedial actions and other assistance to affected residents near the Wauconda Sand and Gravel Superfund site. 150 Cong. Rec. H9999 (daily ed. Nov. 18, 2004). The bill was referred to the Committee on Energy and Commerce, and to the Committee on Transportation and Infrastructure.
  • H.R. 5418 (Tancredo, R-Colo.) (Fryingpan-Arkansas Project), would authorize the Secretary of the Interior to enter into new and renewal contracts with the city of Aurora, Colorado, or an enterprise of the city, for the use of excess capacity water in the Fryingpan-Arkansas Project. 150 Cong. Rec. H10079 (daily ed. Nov. 19, 2004). The bill was referred to the Committee on Resources.
  • H.R. 5417 (Sherman, D-Cal.) (HOV lanes), would amend title 23, United States Code, relating to HOV lanes. 150 Cong. Rec. H10079 (daily ed. Nov. 19, 2004). The bill was referred to the Committee on Transportation and Infrastructure.
  • H.R. 5421 (Stupak, D-Mich.) (POTWs), would prohibit the Administrator of the Environmental Protection Agency from taking certain actions that would allow a POTW to divert flows to bypass a portion of its treatment facility. 150 Cong. Rec. H10232 (daily ed. Nov. 20, 2004). The bill was referred to the Committee on Transportation and Infrastructure.

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 annual United Nations (UN) climate change conference will begin on December 6, 2004, in Argentina. At the conference, which is taking place against the background of the recent ratification of the Kyoto Protocol by Russia, the European Union will present its Emissions Trading System due to be launched on January 1, 2005. Seehttp://europa.eu.int/rapid/pressReleasesAction.
  • The 16th meeting of the Parties to the Montreal Protocol met in Prague from November 22 to 27, 2004. In a further effort to protect the world's ozone layer, the Parties agreed to carry out a survey on the use of methyl bromide, a key ozone-damaging pesticide in food shipments. The quantities of methyl bromide used by farmers for fumigating soils is well known, but the precise levels used to treat shipments of big commodity crops such as rice and maize and consignments in wooden pallets is unclear. The survey is aimed at resolving these uncertainties and may be a first step toward controlling the levels of methyl bromide used in quarantine and pre-shipment. It will be carried out by scientific and technical experts to the Montreal Protocol, the 17-year-old international agreement set up under the auspices of the UN Environment Programme to protect the ozone layer from chemical attack. Seehttp://www.un.org/apps/news/story.asp?NewsID=12656&Cr=ozone&Cr1=

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

Note: To order documents or request additional information, please call (800) 433-5120 or (202) 939-3844. Orders may also be sent by e-mail to orders@eli.org or by fax to (202) 939-3817. Please specify the issue of UPDATE about which you are inquiring. In most instances, for the cost of copying and postage, ELR can supply copies of materials cited. Charges for ELR Subscribers are 25 cents/page, $10 minimum; all others, 50 cents/page, $20 minimum. Documents may also be available free or at a nominal charge from the applicable court or agency. Copyright© 2004, Environmental Law Institute, Washington, D.C. All rights reserved.

ELR STAFF

Leslie Carothers, Publisher
John H. Turner, Editor-in-Chief
Linda L. Johnson, Managing Editor
Rachel Jean-Baptiste, Associate Editor
Caroline Hermann, Assistant Editor
Sarah Burt, Contributing Editor
Dante Figueroa, Contributing Editor
Carolyn Fischer, Editorial Associate
William J. Straub, Desktop Publisher
April King, Editorial Assistant
Rachel Harris, Editorial Assistant