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Weekly Update Volume 34, Issue 5

02/09/2013

LITIGATION

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

CWA, COOLING WATER STRUCTURES, WILDLIFE PROTECTION:

The Second Circuit upheld all but one aspect of an EPA regulation designed to protect fish and other wildlife from harm by structures that withdraw cooling water from the nation's waterbodies. For the most part, the regulation is based on a reasonable interpretation of the CWA and is sufficiently supported by a factual record. Insofar as the regulation allows compliance through restoration measures, however, the regulation contradicts Congress' clearly expressed intent. A new facility may comply with the rule in one of two ways. Under track I, a facility is bound by certain capacity and velocity requirements. Under track II, a facility may take any steps or "restoration measures" provided it can show "that the technologies employed will reduce the level of adverse environmental impact . . . to a comparable level to that which" would be achieved applying track I's capacity and velocity requirements. CWA §316(b) instructs EPA to "minimiz[e] adverse environmental impact" by regulating the "location, design, construction, and capacity of cooling water intake structures." By allowing compliance through restoration measures that are unrelated to the "location, design, construction, and capacity of cooling water intake structures" that the EPA is charged with regulating, track II is plainly inconsistent with the CWA. Reclaiming abandoned mines to reduce acid mine drainage into the waterbody, removing barriers to fish migration, and creating buffers to reduce destructive runoff from agricultural lands, however beneficial to the environment they may be, have nothing to do with the location, the design, the construction, or the capacity of cooling water intake structures because they are unrelated to the structures themselves. EPA exceeded its authority by allowing compliance with §316(b) through restoration methods, and the court remanded that aspect of the rule. All other aspects of the rule, however, including other challenges to the track II system, were upheld. Riverkeeper, Inc. v. United States Environmental Protection Agency, Nos. 02-4005 et al. (2d Cir. Feb. 3, 2004) (46 pp.).

CAA, RCRA, LANDFILLS:

The Ninth Circuit held that a district court erred in holding that residents living across from a county dump lacked standing to bring CAA claims based on ozone degradation against a county health department and in granting the county summary judgment on the residents' RCRA claims concerning cover, open burning, explosive gases, and uncontrolled access. The court correctly held that the residents had standing for their RCRA claims but erred in holding that they lacked standing on their CAA claims. The residents' evidence of leakage of white goods is sufficient to show injury in fact; the county's failure to follow CAA procedure, which allowed ozone-depleting substances to be released in the landfill, demonstrates causation; and redressability is satisfied by the fines and penalties applicable for CAA violations. In addition, although the district court properly granted summary judgment to the county on the residents' RCRA claim of underground water contamination, it erred in granting the county summary judgment on the residents' remaining RCRA claims. The court erroneously disregarded Idaho's cover and open burning regulations when analyzing whether there had been a violation of RCRA because the state regulations are no stricter than the federal RCRA requirements. The residents also presented sufficient evidence to withstand summary judgment on their claims that the county violated RCRA's cover, open burning, explosive gas, and open access requirements. Last, the district court erred when it ruled that RCRA §3004, which concerns standards applicable to owners and operators of hazardous waste treatment, storage, and disposal facilities, is merely an enabling statute, containing no substantive requirements. Covington v. Jefferson, Nos. 02-36000, -36035 (9th Cir. Feb. 5, 2004) (42 pp.).

CAA, SIP, OZONE:

The D.C. Circuit held that EPA violated the CAA when it conditionally approved SIPs for the D.C.-metropolitan ozone nonattainment area based solely on commitment letters from the District of Columbia, Maryland, and Virginia, but otherwise denied an environmental group's petition to review the SIP approvals. The states did not identify specific enforcement measures that could be adopted, as mandated by the CAA, but merely promised to adopt measures at some future point if needed. This has the effect of postponing the SIP deadline, which contravenes the CAA's intent. EPA, however, correctly determined that the states adequately demonstrated that the D.C. area would attain proper ozone levels by the 2005 deadline. EPA's use of photochemical grid modeling was reasonable despite adjustments made to the results to reflect actual ozone observations. Moreover, even though the MOBILE 5 model has been updated to MOBILE 6, EPA's decision to use its MOBILE 5 model to determine the states' rate of progress plans was reasonable because it was the most recent model available when the plans were initially prepared. Finally, EPA's deadline extension for the states to revise their SIPs when EPA reclassified the D.C. area from serious to severe was proper. Sierra Club v. Environmental Protection Agency, No. 03-1084 (D.C. Cir. Feb. 3, 2004) (22 pp.).

NEPA, ENVIRONMENTAL JUSTICE, RIPENESS:

The D.C. Circuit denied a community activist group's request to review an FAA order approving changes to the new layout plan for Boston's Logan International Airport. The FAA did not violate NEPA when it used a contractor to prepare the EIS for the project because the selection did not compromise the objectivity or integrity of the environmental review, the contractor stated that it had no financial or other interests in the project, and the FAA gave adequate guidance and participation in the EIS preparation. Nor did the FAA violate NEPA by failing to disclose federal funding approval by the Massachusetts Port Authority. The Port Authority did not request funding at the time the record of decision was issued, such funding would not have any bearing on the environmental review, and the FAA was not required to undertake a cost-benefit analysis as part of the EIS. Further, the contractor was not obligated to produce its draft work product, contrary to the group's assertions. The court also rejected an intervenor's claim that the FAA's environmental justice study was arbitrary and capricious. The study was reasonable and adequately determined that noise from the airport's improvements would not increase if the action was undertaken. Finally, the group's argument that the FAA violated the Airport and Airway Improvement Act was not ripe for review because federal funding had not yet been approved.Communities Against Runway Expansion, Inc. v. Federal Aviation Administration, No. 02-1267 (D.C. Cir. Jan. 30, 2004) (18 pp.).

HAZARDOUS WASTE, GROUNDWATER CONTAMINATION, STATUTE OF LIMITATIONS:

The Eighth Circuit held that a commercial property owner was barred from bringing tort and Arkansas Hazardous Waste Management Act claims against its lessee under the Arkansas three-year statute of limitations. Contrary to the district court ruling, the owner learned of the existence and source of groundwater environmental quality violations in June 1996, and that is when its private right of action accrued. The owner's tort and statutory claims were therefore barred when it filed suit in July 1999. Similarly, the owner's claims that the lessee broke covenants in its lease by violating state environmental regulations was barred by Arkansas' five-year statute of limitations for breach of covenant claims. Any violations of these covenants ceased with the lessee stopped illegal dumping and burning at the property in February 1989. Thus, the statute of limitations period expired in 1994. However, the owner's claim that the lessee returned the property in a deteriorated condition in violation of the lease is not barred by the five-year statute of limitations because the covenant could not have been broken until the lessee vacated the property, and the limitations period has not yet passed. The court therefore remanded this issue. Because the claims on which the district court's damage award was based are barred, the award of damages was vacated. The award of attorneys fees were vacated as well. If, on remand, the owner prevails on the remaining claim, it may be eligible for damages and attorneys fees as to that claim only.Highland Industrial Park, Inc. v. BEI Defense Systems Co., Nos. 02-4024, 03-1276 (8th Cir. Feb. 4, 2004) (10 pp.).

NATIONAL FORESTS, OFF-ROAD VEHICLE USE, MOOTNESS:

The Tenth Circuit held that the 1998 forest plan for the Routt National Forest in Colorado moots an off-road vehicle group's appeal of a 1997 U.S. Forest Service decision to limit cross-country off-road vehicle use to designated roads and trails. Enjoining the 1997 decision notice would be futile. The 1998 forest plan limits off-road vehicle use to designated roads and trails unless otherwise allowed. Thus, if the court were to enjoin the 1997 decision notice, as the group requests, off-road vehicle use in the disputed area would still be limited to designated roads and trails as mandated by the 1998 forest plan. The district court's decision upholding the Forest Service's decision was therefore vacated and the case was dismissed for lack of jurisdiction. Colorado Off-Highway Vehicle Coalition v. United States Forest Service, No. 02-1536 (10th Cir. Feb. 4, 2004) (5 pp.).

NATIONAL FORESTS, FIRE MANAGEMENT, CONSTITUTIONAL LAW:

The Tenth Circuit held that congressional legislation concerning the Black Hills National Forest that specifies forest management techniques for these lands in minute detail, overrides otherwise applicable environmental laws and attendant administrative review procedures, and explicitly supersedes a settlement agreement between the U.S. Forest Service and various environmental groups regarding management of these lands intrudes on neither executive nor judicial authority. Article IV, §3, cl. 2 of the U.S. Constitution expressly grants Congress "Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States." With respect to this power--like most of its enumerated powers--Congress is permitted to be as specific as it deems appropriate. Further, the legislation comports with the current view of executive branch officials regarding forest management. Although it overrides a settlement agreement entered by the district court, that agreement was forged by a private group with a former administration without serious judicial involvement. To overturn the legislation would thus serve not to vindicate the constitutionally entrusted prerogatives of the judicial and executive branches, but rather to keep in place a private group's own preferences about forest preservation policy in the face of contrary judgments by the executive branch and Congress.Biodiversity Associates v. Cables, No. 03-1002 (10th Cir. Feb. 4, 2004) (18 pp.).

INSURANCE, UNDERGROUND STORAGE TANKS (USTs):

The Ninth Circuit held that an insurance company could not rescind an insurance policy it issued to a gas station when the station misrepresented the existence of contaminated soil around its USTs. EPA's UST regulations preclude the remedy of rescission for UST insurance policies. Instead, the regulations provide for the exclusive remedy of prospective cancellation of a UST insurance policy in the event of an insured's misrepresentation. To allow the insurer to rescind the policy would run counter to the intent of the regulations, which seek to avoid any gaps in insurance coverage. However, the insurer is not precluded from seeking contract or tort damages from the gas station if warranted.Zurich American Insurance Co. v. Whittier Properties, Inc., No. 02-36101 (9th Cir. Jan. 29, 2004) (11 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 promulgated NESHAPs for new and existing non-gasoline organic liquids distribution (OLD) operations executed at storage terminals, refineries, crude oil pipeline stations, and manufacturing facilities; these standards are expected to reduce hazardous air pollutant emissions from major sources with OLD operations by 60%.69 FR 5038(2/3/04).
  • EPA announced three public hearings for the review of a proposed rule to reduce interstate transport of fine particular matter and ozone (the "interstate air quality rule") and a proposed rule concerning NESHAPs and the associated, alternative proposed performance standards for new and existing stationary sources classified as electric utility steam generating units (the "utility mercury reductions rule").69 FR 4901(2/2/04).
  • EPA entered into a proposed settlement agreement addressing one of four issues briefed inSierra Club v. Leavitt, Nos. 03-10262-F, -10263-F, andGeorgia ForestWatch v. Leavitt, Nos. 03-10264-F, -10265-F (11th Cir. Jan. 16, 2003), by jointly agreeing with the petitioners to request that the court stay upcoming oral arguments and hold the consolidated cases in abeyance while the Georgia Environmental Protection Division proposes to reopen and revise the title V permit granted to the Monroe Power facility of Walton County, Georgia, to require continuous monitoring of carbon monoxide emissions from two combustion turbines and implement related stipulations.69 FR 5854(2/6/04).

ENERGY:

  • DOE announced that the National Renewable Energy Laboratory will review the current state of on-board fuel processing activities in the Hydrogen, Fuel Cells, and Infrastructure Technologies Program and will submit written recommendations to DOE on or before June 18, 2004, that will inform a technical decision (also called a "go/no-go decision") regarding the future of such on-board processing activities.69 FR 5331(2/4/04).
  • DOE announced the availability of and requested public comment on an interim report by the U.S.-Canada Power System Outage Task Force entitledInterim Report: Causes of the August 14th Blackout in the United States and Canada.69 FR 5330(2/4/04).

ENFORCEMENT:

  • EPA entered into a proposed administrative settlement under the CWA, CAA, and EPCRA with a respondent that did not have a spill prevention control and countermeasure plan or other required controls at facilities in Georgia, Maryland, Michigan, Nebraska, North Dakota, Ohio, and Virginia; stored an aggregate quantity of more than 10,000 pounds of ammonia in its refrigeration systems without having submitted a risk management plan at facilities in Michigan, North Carolina, and Ohio; failed to notify the relevant state emergency response committee and/or local emergency planning committee of an emergency coordinator available to participate in the emergency planning process at 16 sites in various states; and failed to submit a material safety data sheet for all hazardous chemicals, or a list of such chemicals, and failed to prepare and submit emergency and chemical inventory forms to the relevant state and local emergency planning committees and the fire department at 17 facilities in various states.69 FR 5346(2/4/04).

HAZARDOUS AND SOLID WASTES:

  • EPA announced the availability of, a public meeting for, and the start of a 60-day public comment period on a document entitledDraft Model CERCLA Application/Information Request for Service Station Dealers.69 FR 5147(2/3/04).
  • EPA entered into a proposed de minimis settlement under CERCLA concerning the Florida Petroleum Reprocessors Superfund site.69 FR 4934(2/2/04).
  • EPA entered into a proposed administrative settlement under CERCLA concerning the Uravan Uranium Superfund site in Uravan, Colorado, which would require the settling party to pay EPA $125,000 for past and future response costs associated with the deletion of the site from the NPL.69 FR 4935(2/2/04).
  • EPA announced a proposed amendment to an administrative agreement under CERCLA §122(h) concerning the Amenia Town Landfill Superfund site in the Town of Amenia, New York. The proposed amendment would add two parties to the prior cost recovery settlement and would require them each to pay $11,000 in past EPA costs.68 FR 5544(2/5/04).

NATURAL RESOURCES:

  • USDA's Natural Resources Conservation Service announced 10 revised and 2 new conservation practice standards for Indiana's field office technical guide.69 FR 5313(2/4/04).

PESTICIDES:

  • EPA announced that it has determined the specific substances it will include in the cumulative assessment group for the N-methyl carbamate pesticide cumulative risk assessment.69 FR 5340(2/4/04).

SMCRA PROGRAM:

  • OSM proposed to approve a revision to Texas' program under SMCRA that would clarify how the use and disposal of coal combustion byproducts and coal combustion products are regulated at mine sites in the state.69 FR 5102(2/3/04).

WILDLIFE:

  • FWS issued a 90-day finding on a petition to delist the southern sea otter, listed under the ESA as a threatened species in 1977, in which the Service determined that available information does not warrant delisting.69 FR 5861(2/6/04).
  • NOAA's National Marine Fisheries Service (NMFS) issued regulations governing the unintentional takings of small numbers of marine mammals incidental to space vehicle and test flight activities from California's Vandenberg Air Force Base over a five-year period, as required by the Marine Mammal Protection Act.69 FR 5720(2/6/04).
  • NOAA's NMFS proposed to prohibit the use of all pound net leaders, all leaders with stretched mesh greater than or equal to 20.3 cm, and leaders with stringers from May 6 to June 15 of each year in certain waters of the Virginia mainstem of the Chesapeake Bay and the James and York Rivers, in order to conserve sea turtles as required by the ESA.69 FR 5810(2/6/04).
  • FWS established regulations for seasons, harvest limits, methods, and means related to subsistence takings of fish and shellfish on Alaskan public lands for the 2004-2005 regulatory year; this final rule clarifies trade prohibitions on limited entry and crew permit holders, eliminates text relating to waters not under federal jurisdiction, and revises regulations for specific management areas.69 FR 5018(2/3/04).

DOJ NOTICES OF SETTLEMENTS:

  • United States v. Ace Ethanol, LLC, No. 04 C 0034 S (W.D. Wis. Jan. 22, 2004). A settling CAA defendant that violated the Act's prevention of significant deterioration (PSD) provisions, new source performance standards, and NESHAPs, as well as the Wisconsin SIP, at its ethanol mill in Stanley, Wisconsin, must, among other things, install a regenerative thermal oxidizer to control volatile organic compounds (VOCs), particulate, and carbon monoxide emissions from its dryer; must achieve at least 95% removal of VOCs; must meet a stringent limit on nitrogen oxide emissions from its gas boilers and a new, plantwide cap on hazardous air pollutant emissions; must implement programs to reduce emissions during loading and transport operations and to manage dust on roads at the facility; must comply with various monitoring and recordkeeping requirements; must apply for a PSD permit from the state; and must pay a civil penalty of over $300,000 to the state.68 FR 5576(2/5/04).
  • United States v. A-L Processors, No. C-3-91-309 (S.D. Ohio Jan. 27, 2004). Settling CERCLA defendants must pay $137,499.18 in past EPA response costs incurred at the United Scrap Lead Superfund site in Troy, Ohio; the settling parties must also pay $38,782.55 in response costs incurred by a respondent group.68 FR 5575(2/5/04).
  • United States v. Central Maine Power Co., No. 90-302B (D. Me. Jan. 27, 2004). A prior consent decree concerning the F. O'Connor Superfund site was amended to make it consistent with necessary changes to the original remedy and to provide enforcement for these changes.68 FR 5576(2/5/04).
  • United States v. Dominick's Finer Foods, LLC, No. 04C 0471 (N.D. Ill. Jan. 21, 2004). A settling CAA defendant that violated EPA's commercial refrigerant repair, recordkeeping, and reporting requirements at numerous stores in the Chicago, Illinois, area must replace or retrofit all commercial refrigeration units in the stores within two years to use only non-ozone depleting refrigerants; must use only non-ozone depleting refrigerant systems in all stores that it constructs in the future; must participate in an EPA study of refrigeration systems in the food industry; and must pay a civil penalty of $85,000 to the United States.68 FR 5577(2/5/04).
  • United States v. Wal-Mart Stores, Inc., No. 04-0086-CV-SOW (W.D. Mo. Jan. 22, 2004). Settling CAA defendants that sold class I or class II refrigerant to people who are not certified technicians to maintain, service, repair, or dispose of appliances that use refrigerant must pay a $400,000 civil penalty and must cease all sales of refrigerants containing class I and class II substances.68 FR 5578(2/5/04).

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

THE CONGRESS

BILLS INTRODUCED:

  • S. 2046 (Graham, D-Fla.) (Everglades National Park), would authorize the exchange of certain land in the Everglades National Park. 150 Cong. Rec. S370 (daily ed. Feb. 2, 2004). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2049 (Spector, R-Pa.) (SMCRA), would amend SMCRA to reauthorize collection of reclamation fees, revise the abandoned mine reclamation program, promote remining, authorize the Office of Surface Mining to collect the black lung excise tax, and make sundry other changes. 150 Cong. Rec. S541 (daily ed. Feb. 3, 2004). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2051 (Cantwell, D-Wash.) (bovine spongiform encephalopathy), would promote food safety and protect the animal feed supply from bovine spongiform encephalopathy. 150 Cong. Rec. S649 (daily ed. Feb. 5, 2004). The bill was referred to the Committee on Agriculture, Nutrition, and Forestry.
  • S. 2052 (Hutchison, R-Tex.) (National Trails System Act), would amend the National Trails System Act to designate El Camino Real de los Tejas as a National Historic Trail. 150 Cong. Rec. S649 (daily ed. Feb. 5, 2004). The bill was referred to the Committee on Energy and Natural Resources.
  • H.R. 3768 (Crenshaw, R-Fla.) (ecological and historic preserve), would expand the Timucuan Ecological and Historic Preserve in Florida. 150 Cong. Rec. H392 (daily ed. Feb. 4, 2004). The bill was referred to the Committee on Resources.
  • H.R. 3778 (Peterson, R-Pa.) (SMCRA), would amend SMCRA to reauthorize collection of reclamation fees, revise the abandoned mine reclamation program, promote remining, authorize the Office of Surface Mining to collect the black lung excise tax, and make sundry other changes. 150 Cong. Rec. H392 (daily ed. Feb. 4, 2004). The bill was referred to the Committee on Resources.

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

IN THE STATES

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

INTERNATIONAL

GENERAL:

  • Speakers at the January 29-30 National Conference on Science, Policy and the Environment in Washington, D.C., urged increases in pricing for water use, particularly in developing countries, and reduced or eliminated government subsidies, but split on the issue of privatization of water supplies or delivery services.
  • Japanese Environment Minister Yuriko Koike said his country was considering Iraq "aid in areas such as disposing of garbage and monitoring water quality."
  • The International Maritime Organization plans to begin inspections of vessels of member countries beginning in July.
  • Black rhinos have become completely extinct in Angola, according to authorities at the Iona National Park, due to poaching and loss of natural habitat caused by civil war.
  • A report published by the United Nations University's Institute of Advanced Studies,The International Regime for Bioprospecting: Existing Policies and Emerging Issues for Antarctica, concludes that the current Antarctic Treaty System is inadequate to prevent a "21st century gold rush" by bioprospectors. "If bioprospecting is done properly, it can be useful and beneficial for all and can have a minimum impact on the environment, but you want it to be controlled to prevent companies from causing significant environmental damage or disrupting the scientific operations down there," said Sam Johnston, a researcher with the Institute of Advanced Studies. "It's a pristine, global park and it needs to be preserved."
  • The World Wide Fund for Nature (WWF) issued a statement calling on the International Maritime Organization to adopt a convention on ballast water to deal with the release of invasive species. Seehttp://www.panda.org/about_wwf/what_we_do/marine/news/news.cfm?uNewsID=11022

EUROPE:

  • The WWF issued a report,Causes for Concern: Chemicals and Wildlife, which urges European Union (EU) adoption of the REACH proposal governing consumer products that might be injurious to humans and animals. The report contends that common consumer products contain perfluorinated compounds, phthalates, phenolic compounds, and brominated flame retardants. "Scientific research is increasingly documenting the extent of wildlife and human exposure to chemicals. Future dangers will only be averted if the effects of chemicals are exposed and then the dangerous ones are never used," said Clifton Curtis, Director of WWF Toxics Program. "Perfluorinated compounds are a perfect example of the need of REACH. Manufacturers like 3M and DuPont conducted research on these substances for 30 years but they were not willing to share the results. REACH would not allow that."

CLIMATE CHANGE:

  • Germany's environment minister, Juergen Trittin, and France's, Roselyne Bachelot, issued a joint statement urging Russia to ratify the Kyoto Protocol.
  • Russian Deputy Foreign Minister Alexander Losyukov said his country "would determine its attitude toward the Protocol based on national interests." He added that "as we examine this question, we are making sure that our country does not end up in a disadvantageous situation compared to other countries, both signatories and non-signatories to the protocol."
  • Trittin released a proposal for the allocation of pollution credits to German industry. It was criticized by both business and environmental groups. The Economics Ministry voiced concern that the plan would harm the country's coal industry. Business groups objected to a part of the plan that would require the further reduction of carbon dioxide emissions by 7.5% below levels previously agreed to. The Federation of German Industries urged that no plan be submitted to the EU prior to a consensus, but denied published reports that it was preparing to abandon discussions with the government. Environmental groups were, for different reasons, opposed. "We can hardly still go along with it," said Regine Günther, a climate expert for the WWF. "Industry got everything, I mean everything, they demanded. Nothing more was demanded of them than what they already voluntarily agreed to do on their own." Seehttp://www.dw-world.de/english/0,3367,1446_A_1103957_1_A,00.html
  • Liana Bratasida, the assistant for global environmental affairs at Indonesia's Ministry of Environment, said that her country needs to promptly ratify the Protocol in order to qualify for Clean Development Mechanism funding. Seehttp://www.thejakartapost.com/detailbusiness.asp?fileid=20040205.L03&irec=3

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

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