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Weekly Update Volume 34, Issue 4

02/20/2013

 LITIGATION

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

CWA, U.S. SENTENCING GUIDELINES:

The Ninth Circuit affirmed an individual's conviction under the CWA for filling ponds and disturbing a creek in Montana but vacated and remanded his sentence. Contrary to the individual's assertions, the district court did not err in refusing to dismiss the indictment for lack of jurisdiction on the ground that the creek was not a navigable water under the CWA and in so instructing the jury. Nevertheless, the district court erred during sentencing. A district court must consider all reliable evidence of cleanup costs in its determination of whether a defendant's actions caused a substantial expenditure for cleanup pursuant to U.S. Sentencing Guidelines (U.S.S.G.) §2Q1.3(b)(3). Additionally, the government need only show an attempt to influence a witness to trigger U.S.S.G. §3C1.1's obstruction of justice enhancement. As for the district court's U.S.S.G. §5K2.0 heartland determination, the district court improperly considered the individual's prior prosecution for the same conduct, as well as internal agency memoranda and legislative history in its heartland analysis. Finally, the government may be a victim entitled to restitution pursuant to U.S.S.G. §5E1.1. In that context, site investigation costs necessary to determine the extent of the environmental damage and the appropriate cleanup actions may be recoverable. United States v. Phillips, Nos. 02-30035, -20046 (9th Cir. Jan. 28, 2004) (29 pp.).

NATIONAL HISTORIC PRESERVATION ACT (NHPA), NEPA, ATTORNEYS FEES:

The Second Circuit held that the Federal Transit Administration (FTA) must pay attorneys fees under the NHPA to a historic preservation group for costs associated with obtaining a court order compelling the preparation of a supplemental EIS (SEIS). In the underlying suit, the group argued that the FTA and two state agencies violated NEPA and the NHPA in connection with a Buffalo, New York, waterfront project that involved the historic Erie Canal. The court declined to issue an injunction, but it ordered the preparation of a new SEIS. The parties eventually entered into a court-approved stipulation and order that settled the claims. The group attained prevailing party status when it obtained the court order because the SEIS was judicially sanctioned and effectuated a substantive, material alteration in the legal relationship of the parties. Although the SEIS was relief made available by the NEPA, it was also a form of NHPA relief under June 1999 regulations. The group was therefore entitled to attorneys fees and costs under the NHPA fee-shifting provisions for its expenses in obtaining the court order. The stipulation and order, however, is functionally a private settlement agreement that does not provide prevailing party status to the group because, by its own terms, it eliminated the ongoing judicial oversight in favor of restarting the review process from scratch. Nor is the group entitled to recover expenses for activities after the court order because no court-ordered alteration of the parties' legal relationship resulted from those efforts. In addition, the group is not entitled to recover fees and costs against state agencies because non-federal agencies are not liable for NHPA violations. Accordingly, the district court's award of attorneys fees against the state agencies was vacated, and the award of attorneys fees against the FTA was remanded for a recalculation. Preservation Coalition of Erie County v. Federal Transit Administration, Nos. 02-6198, -6208 (2d Cir. Jan. 26, 2004) (26 pp.).

WHISTLEBLOWER PROVISIONS, SOVEREIGN IMMUNITY:

The Second Circuit affirmed a district court decision enjoining OSHA from holding a hearing to adjudicate an individual's CAA, CWA, and Solid Waste Disposal Act whistleblower claims against the Connecticut Department of Environmental Protection so long as OSHA is not itself a party to the proceedings, but reversed the injunction insofar as it enjoined OSHA from conducting an investigation based on the administrative complaint and from conducting an administrative adjudication in which it participates as a party. OSHA did not violate Connecticut's sovereign immunity by engaging in a preliminary investigation. While an OSHA investigation may have repercussions for the state, these collateral consequences are insufficient to transform an investigation into an adversarial adjudication akin to a civil trial. Therefore, the injunction was overbroad insofar as it prevented OSHA from investigating the individual's claim. Likewise, Connecticut's sovereign immunity does not bar OSHA from intervening as a party in a case originally brought by a private citizen against a nonconsenting state agency. The injunction was therefore overbroad insofar as it prevented OSHA from doing so. Connecticut Department of Environmental Protection v. Occupational Safety & Health Administration, No. 01-6217 (2d Cir. Jan. 22, 2004) (8 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 allocated essential use allowances for the import and production of Class I stratospheric ozone depleting substances (ODS) for the calendar year 2004; these allowances grant exemptions from the regulatory ban on production and import of these chemicals that was effective January 1, 1996, to individuals who need to obtain controlled Class I ODS for designated essential purposes.69 FR 4059(1/28/04).
  • EPA proposed to find that 29 states and the District of Columbia contribute significantly to nonattainment of the NAAQS for fine particles and/or 8-hour ozone in downwind states.69 FR 4565(1/30/04).
  • EPA proposed a rule concerning national emission standards for new stationary sources classified as electric utility steam generating units. 69 FR 4651 (1/30/04). [link unavailable at time of posting]

ALTERNATIVE ENERGY:

  • DOE decided not to adopt regulatory requirements mandating that owners and operators of certain private and local government fleets acquire alternative fueled vehicles because such requirements would not appreciably increase the percentage of alternative fuel and replacement fuel used by motor vehicles in the United States.69 FR 4219(1/29/04).

HAZARDOUS AND SOLID WASTES:

  • EPA entered into a proposed administrative settlement and prospective purchaser agreement with Kelly Development LLC (Kelly) and a proposed settlement agreement with potentially responsible parties (PRPs) at the Frontier Hard Chrome National Priorities List Superfund site in Vancouver, Washington; the PRPs plan to sell the site property to Kelly for light industrial use, offices, and storage space, and must pay $180,000 less 87.5% of their closing costs to the EPA Superfund special account for site cleanup, as well as create and fund a Frontier Hard Chrome Environmental Trust with $30,000 and site insurance policies.69 FR 3917(1/27/04).
  • EPA entered into a proposed administrative settlement under CERCLA concerning the NL Industries (Taracorp) site in Illinois that requires the 78 settling parties to pay $1,960,888.51 to the EPA Hazardous Substance Superfund.69 FR 3583(1/26/04).
  • EPA entered into a proposed settlement under CERCLA resolving the liability of Materia Medica Inc. (formerly known as Polysciences Inc.) for response costs associated with the Malvern TCE Superfund site in Chester County, Pennsylvania.69 FR 4515(1/30/04).

HAZARDOUS AND TOXIC SUBSTANCES:

  • EPA announced the availability of and the beginning of a 30-day public comment period for a tolerance reassessment and risk management decision for the chemical lactofen.69 FR 4129(1/28/04).
  • EPA announced the availability of and requested public comment on human health, environmental fate, and effects risk assessments for the pesticide thiram.69 FR 3581(1/26/04).
  • DOT's Research and Special Programs Administration amended hazardous materials regulations concerning the transport of radioactive materials in order to harmonize the regulations with international standards and promulgate other DOT requirements.69 FR 3631(1/26/04).

RESOURCE MANAGEMENT:

  • The U.S. Forest Service issued an interim directive providing guidance for stewardship end result contract (also called "stewardship contracting") that provides administrative direction to Forest Service employees; the directive expands upon interim guidelines issued by the Forest Service and the BLM on June 27, 2003 (68 FR 38285), as required by the Consolidated Appropriations Resolution of 2003, and reflects comments received concerning the guidelines.69 FR 4107(1/28/04).
  • The BLM issued guidance to its field offices on stewardship end result contracting that provides administrative direction for BLM employees engaged in collaborative planning, implementing, and monitoring of stewardship contracting projects.69 FR 4174(1/28/04).

WATER QUALITY:

  • EPA tentatively approved and requested public comment on a revision to New Jersey's public water system supervision primacy program that incorporates revisions that are no less stringent than federal national primary drinking water regulations.69 FR 3917(1/27/04).
  • EPA promulgated designated uses and associated water quality criteria for 6 water bodies and coastal waters from 500 meters to 3 miles seaward of the "coastal ring" in Puerto Rico; the areas are designated for primary contact recreation.69 FR 3514(1/26/04).

WILDLIFE:

  • FWS and the National Marine Fisheries Service (Services), following coordination with EPA and the USDA, proposed joint counterpart regulations for consultation on regulatory actions under FIFRA; the counterpart regulations are intended to provide flexibility in the ways EPA and the Services meet their ESA §7 obligations by allowing EPA the option of neither conducting informal consultation nor obtaining written concurrence from the Services for FIFRA actions EPA determines are "not likely to adversely affect" any listed species or critical habitat, and by providing the Services the option of engaging in formal consultation with EPA concerning the ecological effects of FIFRA on species and habitats protected by the ESA.69 FR 4465(1/30/04).
  • The National Marine Fisheries Service determined that a petition to list under the ESA winter flounder and cunner, fishes found in western Long Island Sound, does not present sufficient substantial scientific or commercial information to warrant listing.69 FR 4491(1/30/04).
  • FWS proposed to expand designated critical habitat for the Braun's rock-cress, a bird list as endangered under the ESA in 1995, to include two areas in Tennessee's Rutherford and Wilson counties.69 FR 4274(1/29/04).
  • FWS announced the availability of and requested public comment on a draft economic analysis and environmental assessment for the proposed designation of critical habitat for the desert yellowhead, a perennial herb in the sunflower family found only in Wyoming; the designation would affect approximately 360 acres of federal land in Fremont County, Wyoming, and would prohibit destruction or adverse modification of the critical habitat by any federal agency.69 FR 3871(1/27/04).
  • FWS determined, after a 12-month review upon petition of available scientific and commercial information, that listing the midvalley fairy shrimp as endangered under the ESA is not warranted.69 FR 3592(1/26/04).
  • FWS announced the availability of a draft revised recovery plan for the Paiute Cutthroat Trout, a species native to California listed under the ESA in 1985 and primarily threatened by hybridization with non-native salmonids.69 FR 3598(1/26/04).
  • FWS announced the availability of a draft comprehensive conservation plan for the Hobe Sound National Wildlife Refuge in Marin County, Florida, which describes the Service's plans for managing the refuge over the next 15 years.69 FR 3590(1/26/04).

DOJ NOTICE OF SETTLEMENT:

  • United States v. Village of Orland Park, No. 04 C 220 (N.D. Ill. Jan. 21, 2004). Settling CWA defendants who discharged pollutants without a permit into U.S. waters must restore the affected areas and pay a civil penalty.69 FR 4318(1/29/04).

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

THE CONGRESS

BILLS INTRODUCED:

  • H.R. 373 (Rehberg, R-Mont.) (agriculture), would amend the Agricultural Marketing Act of 1946 to repeal the recently enacted two-year delay in the implementation of the country of origin labeling requirements of such Act for certain agricultural commodities. 150 Cong. Rec. H127 (daily ed. Jan. 27, 2004). The bill was referred to the Committee on Agriculture.
  • H.R. 3743 (Ney, R-Ohio) (rural roads), would improve the safety of rural roads. 150 Cong. Rec. H244 (daily ed. Jan. 28, 2004). The bill was referred to the Committee on Transportation and Infrastructure.
  • H.R. 3744 (Ross, D-Ark.) (National Forests), would authorize 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. 150 Cong. Rec. H244 (daily ed. Jan. 28, 2004). The bill was referred to the Committees on Resources and on Agriculture.
  • H.R. 3745 (Shays, R-Conn.) (Indian Gaming Regulatory Act), would amend the Indian Gaming Regulatory Act to require state legislature approval of new gambling facilities, to provide for minimum requirements for federal regulation of Indian gaming, and to set up a commission to report to Congress on current living and health standards in Indian country. 150 Cong. Rec. H244 (daily ed. Jan. 28, 2004). The bill was referred to the Committee on Resources.
  • H.R. 3747 (Walden, R-Or.) (Wallowa Lake Dam), would authorize the Bureau of Reclamation to participate in the rehabilitation of the Wallowa Lake Dam in Oregon. 150 Cong. Rec. H244 (daily ed. Jan. 28, 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

GENERAL:

  • The World Bank announced that the European Union (EU) had agreed to donate $1.2 million to the African Stockpiles Program (ASP), a project that seeks to remove around 50,000 tons of stockpiled pesticides in Africa. "The EU is proud to support this worthy program in its efforts to dispose of obsolete pesticides in Africa," said Francisco De Angelis, director of the European Commission's (EC's) EuropeAid Cooperation Office. "Environment is one of the pillars of sustainable development and is a guiding principle of our development-cooperation policy. We hope that with this program, African countries will rid themselves of this deplorable threat." World Bank Vice President for Sustainable Development Ian Johnson noted that "[t]he ASP is precisely the sort of local initiative with global impact the World Bank envisioned when we recently articulated the principles of our Environment Strategy, particularly by channeling funds to developing countries to help them meet the costs of global environment challenges." Seehttp://www.africastockpiles.org/

EUROPE:

  • The EC adopted an action plan to improve the development and wider use of environmental technologies. Examples of environmental technologies sought to be promoted range from recycling systems for wastewater in industrial processes, to energy-saving car engines, which allow cars to use less fuel, to soil remediation techniques. The plan contains 11 priority actions for the Commission, national and regional governments, industry, and other stakeholders to improve the development and uptake of environmental technologies. These include: (1) the launch of three technology platforms bringing together researchers, industry, financial institutions, decisionmakers, and other relevant stakeholders to build a long-term vision on the research needs in this area and future market developments; the technology platforms on hydrogen and fuel cells and on photovoltaics are already planned to start in early 2004, and a similar platform on water supply and sanitation technologies will be launched in early 2005; (2) developing and agreeing on ambitious environmental performance targets for key products, processes and services; and (3) mobilizing financial instruments, both within and outside the EU, to share the risks of investing in environmental technologies, with a focus on climate change, energy, and small and medium-size enterprises. The European Investment Bank, the European Bank for Reconstruction and Development, and the funding mechanisms resulting from the Kyoto Protocol (the Clean Development Mechanism and Joint Implementation) should play a role in this action. Seehttp://europa.eu.int/comm/environment/etap/
  • The EC brought legal actions against Austria, Belgium, Greece, Ireland, Italy, Luxembourg, Spain, and the United Kingdom for alleged violations of natural habitat and wild bird directives.
  • The EC endorsed a proposal to authorize the use of a genetically modified sweet maize, Bt11, for food use.

CLIMATE CHANGE:

  • Spanish Energy Secretary Jose Folgado said his country wanted to open an EU-wide discussion about whether to retain the existing Kyoto commitment on carbon dioxide reductions (8% reduction from 1990 levels). "It would do no good to seek to comply with environmental commitments if it brings on unemployment and the relocation of businesses," he said. Similarly, EU Transport and Energy Commissioner Loyola de Palacio said the cuts could harm European competitiveness if Russia does not engage in similar reductions.
  • German economics minister Wolfgang Clement said the EU's carbon trading scheme ought not harm his country's ability to use coal to replace nuclear power as an energy source. "I don't want any structural changes from the emissions trade scheme. I think Germany's present energy mix [for power generation] is reasonable," he said. "We must safeguard coal's role as an alternative source to replace nuclear energy."
  • Russian Foreign Minister Igor Ivanov said that his country is still considering whether to ratify the Protocol, but said it was "unfair to say that Russia holds the key to the success" of the treaty. "There are a considerable number of countries which have not ratified the protocol for one reason or another," Ivanov said. Russian ratification would allow the Protocol to come into force.
  • Similarly, Deputy Prime Minister Viktor Khristenko said that "the internal economic situation has changed [since the government signed the Protocol] and we need more time to evaluate more precisely the consequences and possibilities of Russia complying with its obligations under the Kyoto Protocol."
  • Alcoa, Anglo American, Cemex, Holcim, HP, Lafarge, RAO, UESR, RWE, Scottish Power, and Vattenfall agreed to participate in the new Global Greenhouse Gas Register, which was launched at the recent World Economic Forum meeting in Switzerland. The companies will voluntarily disclose their greenhouse gas emissions. They are collectively responsible for the emission of around 800 million tons of carbon dioxide-equivalents each year, about 5% of the global total. Other companies are expected to join. Seehttp://www.weforum.org/site/homepublic.nsf/Content/Global+Greenhouse+Gas+Register

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

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