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Weekly Update Volume 34, Issue 36

12/27/2004

 LITIGATION

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

CERCLA, CONTRIBUTION, VOLUNTARY CLEANUP:

The U.S. Supreme Court held that a private party voluntarily cleaning contaminated property may not sue to recover costs from a PRP unless the private party had been sued or civilly compelled to clean the site under CERCLA. The case arose after a property owner learned of contamination on its land that it and the prior owner caused. It notified state and federal authorities, but neither took judicial or administrative measures to compel cleanup. The company cleaned the property under state supervision, and is now seeking contribution from the prior owner. Section 113(f)(1) specifies that a party may obtain contribution "during or following any civil action" under CERCLA §106 or §107(a). The natural meaning of this sentence is that contribution may only be sought subject to the specified conditions, namely, "during or following" a specified civil action. In the alternative to an action for contribution under §113(f)(1), the company argued that it may recover costs under §107(a)(4)(B) even though it is a PRP. But this claim had not been heard in the lower courts. It also declined to decide whether the company has an implied right to contribution under §107. The Court remanded the case for further hearings on the §107 claims. Thomas, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O'Connor, Scalia, Kennedy, Souter, and Breyer, JJ., joined. Ginsburg, J., filed a dissenting opinion, in which Stevens, J., joined.Cooper Industries, Inc. v. Aviall Services, Inc., No. 02-1192, 34 ELR 20154 (U.S. Dec. 13, 2004) (19 pp.).

CWA, WHOLE EFFLUENT TOXICITY (WET) TESTING:

The D.C. Circuit denied a petition for review of EPA's WET tests for water quality. While EPA concedes that its WET tests do not incorporate every one of its usual criteria and procedures for ensuring the scientific validity of the test methods, EPA adequately accounted for any departures.Edison Electric Institute v. Environmental Protection Agency, No. 96-1062, 34 ELR 20152 (D.C. Cir. Dec. 10, 2004) (14 pp.).

CWA, WETLANDS, TAKINGS:

The Federal Claims Court held that landowners are not entitled to just compensation under the Fifth Amendment in their action against the U.S. Army Corps of Engineers for requiring them to set aside a portion of their property as mitigation wetlands in exchange for a §404 permit to fill and impact other wetlands on their land. The Corps' issuance of a 1999 permit, and the related Deed of Restrictions, resulting in 220.85 acres of the landowners' property being set aside as wetlands, did not effect a physical taking of plaintiffs' property nor a categorical taking of plaintiffs’ property under the Fifth Amendment. Furthermore, due to the lack of a severe economic impact and the landowners' failure to show that the nature of the governmental action in this instance unduly burdened them or was otherwise inappropriate, the court found that no regulatory taking of property occurred.Norman v. United States, No. 95-667 L, 34 ELR 20157 (Fed. Cl. Dec. 10, 2004) (Bush, J.) (94 pp.).

REGULATORY TAKINGS, ESA, RIPENESS:

The Federal Circuit affirmed a lower court decision finding property owners' takings claim against the NMFS unripe. The owners sought to harvest redwood trees on their property. After learning that the cost of an incidental take permit (ITP) under the ESA would cost more than the potential profits earned from harvesting the trees, the owners did not apply for an ITP and instead sued under the Fifth Amendment alleging a regulatory taking in the requirement that they comply with the ESA's permitting process. But the cost of an ITP application is unknowable until the agency has had some meaningful opportunity to exercise its discretion to assist in the process. Thus, their case is unripe.Morris v. United States, No. 04-5029, 34 ELR 20156 (Fed. Cir. Dec. 16, 2004) (10 pp.).

FEDERAL TORT CLAIMS ACT (FTCA), DISCRETIONARY FUNCTION EXCEPTION, JURISDICTION:

The D.C. Circuit affirmed the dismissal of FTCA claims brought against the U.S. government for burying dangerous munitions and toxic chemicals on property in Washington, D.C., during World War I, failing to issue warnings about the buried munitions and chemicals and the resulting dangerous conditions, and failing to investigate and remedy the hazards and contamination it caused. The court properly dismissed the claims under the discretionary function exception. The parties had a full and fair opportunity to determine the relevant jurisdictional facts and the court had an adequate record upon which to rest its judgment. The individuals also brought negligence actions under local law against a university that leased the land at issue, and the lower court erred in denying the university's motion to dismiss. The court had no subject matter jurisdiction over the FTCA claims and, therefore, had no supplemental jurisdiction to entertain nonfederal claims.Loughlin v. United States, No. 03-5284, 34 ELR 20158 (D.C. Cir. Dec. 21, 2004) (28 pp.).

WATER RIGHTS, NATIVE AMERICANS, AUTOMATIC STAY:

The Ninth Circuit upheld a district court decision staying a Nevada State Engineer's ruling granting the United States' and the Pyramid Lake Paiute Tribe of Indians' applications to make temporary changes to two water rights set forth in theOrr Ditch Decree, a 1944 federal court decree quieting title to certain water rights in the Truckee River. The changes would allow water formerly used for irrigation of Indian lands to flow into Pyramid Lake where it would help preserve the Tribe's fishery. A city and a local irrigation district appealed the State Engineer's decision and sought to stay the ruling pursuant to Nev. Rev. Stat. §533.450, which provides for an automatic stay of the State Engineer's decisions. The United States and the Tribe argued that the stay was a procedural matter that should be decided according to Fed. R. Civ. P. 65, which governs the availability of injunctions. The statute, however, is an integral part of Nevada water law rather than a generally applicable rule of civil procedure. The state statute, therefore, applies to federal proceedings under the decree.United States v. Orr Water Ditch Co., Nos. 03-16654, -16941, 34 ELR 20155 (9th Cir. Dec. 14, 2004) (11 pp.).

CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA), ENVIRONMENTAL IMPACT REPORT (EIR):

A California appellate court held that EIRs prepared for two retail shopping center projects violated CEQA. The EIRs do not fulfill their informational obligations because they failed to consider the projects' individual and cumulative potential to indirectly cause urban/suburban decay by precipitating a downward spiral of store closures and long-term vacancies in existing shopping centers. Furthermore, the cumulative impacts analyses are defective because they did not treat the other shopping center as a relevant project or consider the combined environmental impacts of the two shopping centers. Finally, failure to correlate the acknowledged adverse air quality impacts to resulting adverse effects on human respiratory health was erroneous. These defects are prejudicial and compel decertification of the EIRs and rescission of project approvals and associated land use entitlements.Bakersfield Citizens for Local Control v. City of Bakersfield, Nos. F044943, F045035, 34 ELR 20153 (Cal. App. 5th Dist. Dec. 13, 2004) (47 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 amended the NESHAP for the source category entitled Organic Hazardous Air Pollutants from the Synthetic Organic Chemical Manufacturing Industry and Other Processes Subject to the Negotiated Regulation for Equipment Leaks, also known as the Hazardous Organic NESHAP.69 FR 76859(12/23/04).
  • EPA exempted the production and import of methyl bromide for critical uses from the accelerated phaseout regulations that govern the production, import, export, transformation, and destruction of substances that deplete the ozone layer under the authority of the CAA.69 FR 76981(12/23/04).
  • EPA announced the availability of documents setting forth the requirements of the federally enforceable SIPs in each state.69 FR 76617(12/22/04).
  • EPA proposed to amend procedures for validating alternative emissions test methods, to rewrite EPA's Method 301 in plain language, reorganize the method for clarity, correct technical errors, and revise the technical procedures.69 FR 76642(12/22/04).
  • EPA proposed to allocate essential use allowances for import and production of class I stratospheric ozone depleting substances for calendar year 2005.69 FR 76655(12/22/04).
  • EPA proposed options for consideration of localized emissions impacts of individual transportation projects on particulate matter nonattainment and maintenance areas after EPA recently authorized a final rule that includes most of the transportation conformity requirements for the new eight-hour ozone and fine particulate matter NAAQS.69 FR 72156(12/13/04).
  • EPA proposed a settlement agreement, making certain corrections to a rule at issue, to address a lawsuit filed by Automotive Refrigeration Products Institute, Automotive Aftermarket Industry Association, and Interdynamics after they filed petitions for review challenging EPA's final rule entitled "Protection of Stratospheric Ozone; Refrigerant Recycling Substitute Refrigerants."69 FR 72195(12/13/04).
  • EPA authorized the Louisiana Department of Environmental Quality (LDEQ) to implement and enforce NESHAPs for certain sources; LDEQ has submitted updated regulations applying to NESHAPs implemented by EPA.69 FR 74985(12/15/04).

ENERGY:

  • DOE announced the availability of the fiscal year 2003 report that summarizes the department's compliance with annual alternative-fueled vehicle acquisition requirements for its vehicle fleet and documents DOE's efforts to reduce petroleum consumption.69 FR 76459(12/21/04).

FISHERIES:

  • NOAA announced temporary restrictions that apply to lobster trap/pot and anchored gillnet fisherman in an area of about 1,889 square nautical miles to provide protection to a group of North Atlantic right whales.69 FR 75864(12/20/04).
  • NOAA announced that Daniel Costa, Ph.D., of the University of California, Santa Cruz, Long Marine Lab has been issued an amendment to conduct scientific research on southern elephant seals.69 FR 75047(12/15/04).
  • NOAA authorized Lamont-Doherty Earth Observatory to take small numbers of marine mammals by harassment incidental to conducting oceanographic seismic surveys in the eastern tropical Pacific Ocean off Central America.69 FR 72180(12/13/04).
  • NMFS issued 2005 interim total allowable catch amounts for each category of groundfish, Community Development Quota reserve amounts, American Fisheries Act pollock allocations, and sideboard limits, and prohibited species catch allowances and prohibited species quota reserves for the groundfish fisheries of the Bering Sea and Aleutian Islands management area.69 FR 76870(12/23/04).
  • NMFS implemented the 2005-2006 fishery specifications and management measures for groundfish taken in the U.S. exclusive economic zone off the coasts of California, Oregon, and Washington.69 FR 77011(12/23/04).

HAZARDOUS AND SOLID WASTES:

  • EPA announced the availability of revised guidance on the procedures for the submission and review of CERCLA §106(b) reimbursement petitions.69 FR 76739(12/22/04).
  • EPA proposed an administrative settlement with NEC Acquisition Company so that NEC could pay $1,700,000 to the EPA Hazardous Substance Superfund for past response costs incurred by EPA at the site.69 FR 75537(12/17/04).
  • EPA named the Rhode Island Sound Disposal site as a designated dredged material ocean disposal site for the current and future disposal of such material from Rhode Island, southeastern Massachusetts, and the surrounding harbors; the site will be subject to continuing monitoring to ensure that significant, unacceptable, and adverse environmental impacts do not occur.69 FR 75256(12/16/04).
  • EPA entered into a proposed administrative agreement under CERCLA concerning the MichCon Mercury Regulators Superfund site in Detroit, Michigan; the settling party must pay $160,000 to the Hazardous Substances Superfund to reimburse past EPA response costs.69 FR 75310(12/16/04).
  • EPA entered into a proposed administrative settlement under CERCLA concerning the Whitehouse Oil Pits Superfund site near Jacksonville, Florida; the settling defendant must deed certain property and grant a temporary easement over other property necessary to site remediation to the city of Jacksonville, and place well drilling restrictions on certain property to ensure that the remedy being implemented at the site is not disturbed.69 FR 75310(12/16/04).
  • EPA gave final authorization for changes to North Carolina's hazardous waste program under RCRA.69 FR 74444(12/14/04).
  • EPA requested public comment on Ohio's request for approval of a sewage sludge management program that would address the land application of sewage sludge, surface disposal of sewage sludge, and landfilling of sewage sludge; the program would be administered by the Ohio EPA.69 FR 74522(12/14/04).
  • EPA withdrew a site-specific variance from the land disposal restrictions granted to Chemical Waste Management Chemical Services LLC for selenium-bearing hazardous waste generated by a glass manufacturing company.69 FR 76863(12/23/04).

NEPA:

  • The Federal Aviation Administration proposed to revise the NEPA implementing instructions for airport development projects and other airport actions under the authority of the Office of Airports, and requested public comment on the revisions.69 FR 75374(12/16/04).

OCEAN POLICY:

  • The President issued Executive Order No. 13,366 on December 17, 2004, establishing the Committee on Ocean Policy as part of the Council on Environmental Quality.69 FR 76589(12/21/04).

TOXIC SUBSTANCES:

  • The Agency for Toxic Substances and Disease Registry announced the availability of theGuidance Manual for the Assessment of Joint Toxic Action of Chemical Mixturesand nine interaction profiles CD-ROM.69 FR 76768(12/22/04).

WATER QUALITY:

  • EPA requested scientific information, data, and views of a draft aquatic life criteria document for selenium, which contains draft water quality criteria recommendations for the protection of freshwater and saltwater aquatic life.69 FR 75546(12/17/04).
  • The Reclamation Bureau received a water conservation plan that was developed and submitted by the Chippewa Cree Tribe and the North Central Montana Regional Water Authority after construction of the Rocky Boy's/North Central Montana Regional Water System was authorized by the Rocky Boy's/North Central Montana Regional Act of 2002.69 FR 72216(12/13/04).
  • EPA published guidelines for awarding CWA §319 nonpoint source grants to Indian Tribes in fiscal year 2005.69 FR 76733(12/22/04).
  • EPA published a notice of availability for the draft NPDES general permits for discharges from groundwater remediation and miscellaneous surface water discharge activities in Massachusetts and New Hampshire.69 FR 75541(12/17/04).
  • EPA announced that EPA Region 4 reissued the NPDES general permit for operators located in the outer continental shelf of the eastern portion of the Gulf of Mexico for discharges in the Offshore Subcategory of the Oil and Gas Extraction Point Source Category.69 FR 76740(12/22/04).
  • EPA announced a modification to permit conditions specific to construction activities covered under EPA's NPDES general permit for storm water discharges from construction activities.69 FR 76743(12/22/04).
  • DOI's Bureau of Reclamation developed and published the criteria for evaluating water management plans to meet the requirements of the Central Valley Project Improvement Act of 1992 and the Reclamation Reform Act of 1982; water management plans for Citrus Heights Water District, Del Puerto Water District, Fair Oaks Water District, Orange Vale Water District, and Shasta View Irrigation District are up for review.69 FR 76008(12/20/04).

WILDLIFE:

  • NMFS proposed to list Southern Resident killer whales as threatened.69 FR 76673(12/22/04).
  • FWS withdrew its proposal, issued in September 2001 (66 FR 46575), to list the Sacramento Mountains checkerspot butterfly, a species found only in high mountain meadows in certain areas of New Mexico, as federally endangered with critical habitat; FWS determined that the threats to the species identified in the proposed rule as not as significant as earlier believed.69 FR 76428(12/21/04).
  • FWS proposed to designate about 17,299 acres of critical habitat along the coasts of California, Oregon, and Washington for the Pacific coast population segment of the western snowy plover after evaluating lands to determine if they contained habitat features essential to the conservation of this population of the western snowy plover.69 FR 75771(12/17/04).
  • FWS proposed to designate approximately 3,583 acres in Riverside and San Bernadino Counties, California, as critical habitat for the Coachella Valley milk-vetch, a federally endangered flowering plant species found in dunes and sand flats in certain areas of California.69 FR 74468(12/14/04).
  • NMFS proposed to designate approximately 27,553 miles of lake, riverine, and estuarine habitat in Washington, Oregon, and Idaho, as well as 2,121 miles of marine nearshore habitat in the Puget Sound, as critical habitat for 13 evolutionarily significant units of Pacific salmon; however, the Service noted that it is considering excluding many of the proposed areas from the final designation because of habitat protection offered by existing land management plans and policies, voluntary conservation efforts, and other factors.69 FR 74571(12/14/04).
  • NOAA granted an incidental harassment authorization to the Lamont-Doherty Earth Observatory, permitting small takes incidental to specified activities associated with oceanographic seismic surveys on the Blanco Fracture and Gorda Ridge zones in the northeastern Pacific Ocean.69 FR 74905(12/14/04).
  • FWS intended to gather information necessary to prepare Comprehensive Conservation Plans for Monomoy and Nomans Land Island National Wildlife Refuges and an associated Environmental Impact Statement, which will present management alternatives and analyze the effects of implementing the management actions.69 FR 72211(12/13/04).
  • FWS proposed a draft post-delisting monitoring plan to monitor the status of the Tinian monarch over a five-year period from 2005-2010 through regular field surveys of the distribution and abundance of the Tinian monarch, regular field surveys for brown treesnakes on Tinian, and tracking land use and development on Tinian.69 FR 72212(12/13/04).

DOJ NOTICES OF SETTLEMENTS:

  • United States v. Cabot Corp., No. 2:04-cv-5317 (E.D. Pa. Nov. 16, 2004). Settling CERCLA defendants must pay $929,530.92 to cover past EPA response costs associated with the Revere Chemical Superfund site in Nockamixon Township, Pennsylvania.69 FR 75343(12/16/04).
  • United States v. Knoxville Utilities Board, Nos. 3:04-CV-568, 3:03-CV-497 (E.D. Tenn. N.D. Dec. 1, 2004). A settling CWA defendant that discharged a pollutant from a point source to navigable U.S. waters without a permit, and, in some cases, in excess of permit limitations, must perform injunctive measures valued at more than $500 million; pay a civil penalty of $334,000 ($167,000 to the United States and $167,000 to the state of Tennessee in the form of an environmental project); and perform a supplemental environmental project valued at $2 million that involves installing new private sewer laterals in low- and middle-income households within the defendant's service area.69 FR 75344(12/16/04).
  • United States v. Marzon Inc., No. 7:02-CV-43 (M.D. Ga. Dec. 6, 2004). Settling CERCLA defendants must pay $3.3 million to a Superfund special account established for the Marzon Inc./Chevron Chemical Co. Superfund site in Tifton, Georgia.69 FR 75344(12/16/04).
  • United States v. Alcoa, Inc., No. 6:04-cv-00119 (S.D. Tex. Dec. 10, 2004). Settling CERCLA and CWA defendants must operate a groundwater recovery system at a former chlorine-alkali plant, dredge mercury-contaminated sediments, and cap portions of the plant and monitor sediments and fish to confirm the recovery of sediment and fish tissue to acceptable levels, pay past costs of $404,726 to the United States and $100,000 to Texas, and pay the governments' future costs; in addition, the defendants, in natural resource damages, must construct new fishing piers, a 10.9-acre oyster reef, and new timber docks, and must replace an existing auxiliary boat ramp, modify an existing jetty, create a 69.3-acre intertidal marsh, convey to the United States approximately 729 acres of property adjacent to the Aransas National Wildlife Refuge for inclusion in the Refuge, and must pay about $800,000 in additional past costs, plus $195,000 for future costs that the federal and state trustees expect to incur.69 FR 76957(12/23/04).
  • United States v. MW Custom Papers, LLC, No. 1:04-CV-383 (E.D. Tenn. Dec. 10, 2004). Settling CERCLA defendants that arranged for the disposal of hazardous substances at the Tennessee Products Superfund site in Chattanooga, Tennessee, must perform the EPA-selected remedy at the site and pay $6.35 million toward the cleanup and partial reimbursement of EPA's past response costs; the United States will pay $17.4 million in settlement of its liability at the site.69 FR 76958(12/23/04).
  • United States v. City of Reading, Pennsylvania, No. 04-5696 (E.D. Pa. Dec. 9, 2004). A settling CWA defendant must pay a $239,000 civil penalty, must make extensive remedies to or replacements of parts of its existing sewage treatment plant, and must perform a supplemental environmental project in the Angelica Park wetlands.69 FR 76958(12/23/04).
  • United States v. U.S. Ceramic Tile Co., No. 5:04 CV 2394 (N.D. Ohio Dec. 3, 2004). A settling RCRA defendant that operates a ceramic tile manufacturing plant in East Sparta, Ohio, must undertake certain additional work to correct the improper closure of its facility's surface impoundment and waste pile, pay $1.27 million in stipulated penalties for all of its violations of a prior court filed consent decree, and conduct investigations of and perform all corrective measures necessary at its facility solid waste management units.69 FR 76958(12/23/04).

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

THE CONGRESS

Congress is currently not in session but will meet again January 4, 2005, to convene the 109th Congress.

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:

  • On December 21, 2004, the European Commission adopted the final piece of legislation foreseen under the Emissions Trading Directive, in preparation for the European Union greenhouse gas emissions trading scheme to begin on January 1, 2005. This regulation lays the foundation for an electronic registries system that will keep track of the ownership of emission allowances as they change hands in the market. The emissions trading scheme is one of the key policies and measures developed under the European Climate Change Programme to ensure that the European Union and Member States limit or reduce emissions of climate-changing greenhouse gases in line with their commitments under the Kyoto Protocol. Seehttp://europa.eu.int/rapid/pressReleasesAction

PUBLIC PARTICIPATION:

  • On December 20, 2004, the Environment Council for the European Union gave the European Commission the green light to ratify the Aarhus Convention. The Council also reached a political agreement on a regulation that will apply the Convention's provisions to Community institutions and bodies. The Aarhus Convention lays down a set of basic rules to promote citizens' involvement in environmental matters and improve enforcement of environmental law. It grants the public access to environmental information, provides for participation in environmental decisionmaking, and allows the public to seek redress when environmental law is infringed, including breaches of the two previous rights. Seehttp://europa.eu.int/rapid/pressReleasesAction.

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

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