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Weekly Update Volume 35, Issue 14

05/16/2005

LITIGATION

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

EPCRA, TOXIC RELEASE INVENTORY (TRI):

The D.C. Circuit held that EPA's determination that methyl ethyl ketone (MEK) should not be delisted from the TRI was based on an impermissible construction of EPCRA. There is no dispute that ozone itself is a toxic chemical under the criteria of EPCRA §313(d)(2) or that MEK, to some degree, contributes to the creation of ozone. But its contribution to the creation of a concededly toxic chemical is inadequate to support listing on the TRI. EPCRA §§313(d)(2)(B) and (C) allow only for the listing of toxic chemicals, substantially as the term "toxic" is used in ordinary parlance. At a minimum, the chemical must cause harm via exposure. Because EPA's own analysis demonstrates that MEK fails this test, EPA's denial of a petition to delist was improper. The court therefore remanded the case so that the district court could order EPA to delist MEK from the TRI. American Chemistry Council v. Johnson, No. 04-5189, 35 ELR 20096 (D.C. Cir. May 10, 2005) (12 pp.).

CAA, ASBESTOS:

The Eighth Circuit upheld an EPA Environmental Appeals Board decision finding a county liable under the CAA for asbestos violations at a county landfill. EPA had jurisdiction under CAA §113(d)(1) to bring an administrative action against the county. Further, the evidence in the record established that the landfill is an active waste disposal site and that inspectors observed emissions emanating from regulated asbestos-containing material at the site. And EPA properly calculated the penalty imposed. In re Lyon County Landfill, No. 04-2689, 35 ELR 20094 (8th Cir. May 9, 2005) (10 pp.).

CERCLA, CWA, HAZARDOUS SUBSTANCES:

The First Circuit held that it lacked jurisdiction over an electric company's challenge to an EPA determination that ferric ferrocyanide is a hazardous substance under CERCLA. Ferric ferrocyanide is not listed on any of the lists incorporated by CERCLA, but the category "cyanides" is included on the CWA's list of toxic pollutants. In the underlying CERCLA litigation, the court referred the issue of whether the term "cyanides" included ferric ferrocyanide to EPA under the primary jurisdiction doctrine. Not liking EPA's decision, the company appealed. Yet direct appellate review of the precise action here--an interpretation of an already listed toxic pollutant in response to a primary jurisdiction referral--is not within the scope of CWA §509(b). Rather than dismissing the petition, however, the court transferred it to the U.S. District Court of Massachusetts, thereby consolidating it with the underlying environmental litigation that generated the primary jurisdiction referral. Narragansett Electric Co. v. United States Environmental Protection Agency, No. 04-1127, 35 ELR 20093 (1st Cir. May 6, 2005) (17 pp.).

LAND USE, STATUTE OF LIMITATIONS:

The Seventh Circuit held that a residential treatment facility's §1983 action against a city for denying the facility's request for a land use variance was time-barred by Indiana's two-year personal injury statute of limitations. The facility advanced an interrelated set of arguments drawing on the principles of ripeness, exhaustion of remedies, and equitable abstention, all involving an implicit claim that it could not have brought this action earlier, or alternatively, that the statute of limitations was tolled during the pendency of its state court litigation. But none of these arguments have merit. Behavioral Institute of Indiana, Limited Liab. Co. v. Hobart City of Common Council, No. 04-2360, 35 ELR 20095 (7th Cir. May 9, 2005) (12 pp.).

WATER LAW, ENFORCEMENT AUTHORITY:

New York's highest court held that the New York City Department of Environmental Protection (DEP) Water Supply Police are authorized to enforce traffic laws within the city's watershed. The DEP officers were authorized as police officers under the state's criminal procedure law to stop the defendants for speeding infractions. And defendants' claim that DEP police should be restricted to law enforcement activities related specifically to the protection of water facilities or a direct water source (a lake or reservoir, for example) is inconsistent with the express delegation of police power to this force. Protection of the water supply cannot be accomplished by guarding lakes and reservoirs alone since watershed lands are "water sources" that the DEP police are required to protect. People v. Van Buren, Nos. 52, 53, 35 ELR 20098 (N.Y. May 10, 2005) (18 pp.).

Copyright© 2005, 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 NESHAPs for miscellaneous coating manufacturing by providing additional compliance options and clarifications. 70 FR 25683 (5/13/05).
  • EPA amended the NESHAPs for pharmaceuticals production; the rule includes provisions for planned routine maintenance of wastewater tanks and alternative monitoring provisions for caustic scrubbers and condensers, and references general standards for containers. 70 FR 25670 (5/13/05).
  • EPA required 28 states and the District of Columbia to revise their SIPs to include control measures to reduce emissions of sulfur dioxide and/or nitrogen oxides after finding that they contribute significantly to nonattainment of the NAAQS for fine particles and/or ozone in downwind states. 70 FR 25405 (5/12/05).
  • EPA proposed to amend the NESHAPs for miscellaneous coating manufacturing by providing additional compliance options and clarifications; EPA also approved the amendments as a direct final rule (see above). 70 FR 25686 (5/13/05).
  • EPA proposed to amend the NESHAPs for pharmaceuticals production; EPA also approved the amendments as a direct final rule (see above). 70 FR 25673 (5/13/05).
  • EPA proposed to extend the global laboratory and analytical use exemption for the production and import of class I ozone depleting substances from December 31, 2005, to December 31, 2007, consistent with recent actions by the Parties to the Montreal Protocol on Substances that Deplete the Ozone Layer. 70 FR 25730 (5/13/05).
  • EPA proposed to conditionally approve revisions to the prevention of significant deterioration and nonattainment new source review construction permit programs submitted by the Ohio Environmental Protection Agency. 70 FR 24740 (5/11/05).
  • EPA approved revisions to the District of Columbia, Maryland, and Virginia SIPs; the revisions include the 1996-1999 and 1999-2005 rate-of-progress plans, changes to the 1990 base year inventory, a contingency measures plan, certain transportation control measures, and a demonstration that the SIPs contain necessary transportation control measures. 70 FR 25719 (5/13/05).
  • EPA disapproved a SIP revision for the Metropolitan Washington, D.C., severe one-hour ozone nonattainment area and issued a protective finding allowing the motor vehicle emissions budgets identified in that plan to be used in future conformity determinations. 70 FR 25724 (5/13/05).
  • EPA proposed to approve a revision to Oklahoma's SIP that will incorporate a memorandum of understanding between the Oklahoma Department of Environmental Quality and the Association of Central Oklahoma Governments into the SIP and include a demonstration of attainment for the eight-hour NAAQS for ozone. 70 FR 25520 (5/13/05).
  • EPA approved revisions to the Maryland and Virginia SIPs that establish a number of nonregulatory measures for which both states seek SIP credit in rate-of-progress and attainment planning for the Metropolitan Washington, D.C., one-hour ozone nonattainment area; this action would include the use of low-or-no volatile organic compound (VOC) content paints by certain state and local government agencies, auxiliary power units on locomotives, the sale of reformulated consumer products in Northern Virginia, accelerated retirement of portable fuel containers by state and local government agencies, and renewable energy measures (wind-power purchases by certain local government agencies). 70 FR 24991 (5/12/05).
  • EPA approved an SIP revision submitted by the District of Columbia that pertains to the VOC emission standards for architectural and industrial maintenance coatings. 70 FR 24970 (5/12/05).
  • EPA approved a Maryland SIP revision that pertains to the control of VOC emissions from architectural and industrial maintenance coatings. 70 FR 24987 (5/12/05).
  • EPA approved a Virginia SIP that pertains to the control of VOC emissions from architectural and industrial maintenance coatings. 70 FR 24979 (5/12/05).
  • EPA approved Georgia SIP revisions that pertain to the state's rules for air quality control and reclassify the Atlanta one-hour ozone nonattainment area from serious to severe. 70 FR 24314 (5/9/05).
  • EPA proposed to include Delaware and New Jersey in the Clean Air Interstate Rule for fine particles based on a preliminary assessment that they contribute significantly to a downwind state's nonattainment. 70 FR 25423 (5/12/05).
  • EPA proposed to approve Texas SIP revisions that would incorporate the Texas Emission Reduction Plan, which is currently used in each of the nonattainment areas and near nonattainment areas in the state to achieve reductions in the emissions of nitrogen oxides from on-road and non-road mobile sources. 70 FR 25010 (5/12/05).
  • EPA proposed to approve Georgia SIP revisions that pertain to the state's rules for air quality control and reclassify the Atlanta one-hour ozone nonattainment area from serious to severe; EPA also approved this rule as a direct final rule (see above). 70 FR 24348 (5/9/05).
  • EPA proposed to grant limited approval of revisions to the Texas SIP concerning excess emissions during startup, shutdown, and malfunction activities. 70 FR 24350 (5/9/05).

FISHERIES:

  • NOAA issued temporary restrictions for lobster trap/pot and anchored gillnet fishing operations in an area totaling approximately 1,235 nanometers squared, southeast of Chatham, Massachusetts, for 15 days to provide protection to an aggregation of northern right whales. 70 FR 25495 (5/13/05).
  • NMFS renewed the affirmative finding for the Republic of Ecuador under the Marine Mammal Protection Act that will allow yellowfin tuna harvested in the Eastern Tropical Pacific by Ecuadorian-flag purse seine vessels to continue to be imported into the United States. 70 FR 25549 (5/13/05).
  • NMFS renewed the affirmative finding allowing yellowfin tuna harvested in the Eastern Tropical Pacific by El Salvadorian-flag purse seine vessels to continue to be imported into the United States. 70 FR 25549 (5/13/05).
  • NMFS issued a permit to the Cornell Lab of Ornithology to take marine mammals during photographic activities for commercial and educational purposes. 70 FR 24539 (5/10/05).
  • NMFS completed a comprehensive status review of elkhorn and staghorn corals and determined that fused-staghorn coral is a hybrid and, therefore, does not warrant listing. 70 FR 24365 (5/9/05).

MINING:

  • OSM approved, with certain exceptions, a proposed amendment to Pennsylvania's regulatory program under SMCRA that would revise regulations concerning bonding, remining and reclamation, postmining discharges, and water supply protection/replacement. 70 FR 25491 (5/13/05).

NATURAL RESOURCES:

  • USDA established a petitioning process that will provide governors an opportunity to seek establishment of or adjustment to management requirements for National Forest System inventoried roadless areas within their states. 70 FR 25662 (5/13/05).

PESTICIDES:

  • EPA announced the availability of risk assessments and related documents for the dicarboxylic acid herbicide endothall. 70 FR 24785 (5/11/05).
  • EPA announced the availability of risk assessments and related documents for the pesticide thidiazuron. 70 FR 24787 (5/11/05).

WATER QUALITY:

  • EPA proposed a class II consent agreement under CWA §311(B)(6)(C) after determining that the Kinder Morgan facility in Sparks, Nevada, did not conduct all of the spill response exercises and drills required by its response plan; the agreement requires the facility to pay a $26,630 civil penalty and to provide emergency response equipment to the Truckee Fire Department as a supplemental environmental project. 70 FR 24413 (5/9/05).

WILDLIFE:

  • FWS proposed to reclassify the federally endangered Gila trout to threatened status under the ESA. 70 FR 24764 (5/11/05).
  • FWS presented an updated list of plant and animal species native to the United States that the Service regards as candidates or that have been proposed for addition to the lists of endangered and threatened wildlife and plants under the ESA. 70 FR 24934 (5/11/05).

DOJ NOTICES OF SETTLEMENT:

  • United States v. E.I. du Pont de Nemours, No. 3-05 0345 (M.D. Tenn. May 2, 2005). A settling CWA defendant must provide injunctive relief valued at $1,700,000, must pay a civil penalty of $250,000, and must perform a supplemental environmental project valued at $1,200,000 for alleged violations at the defendant's titanium dioxide manufacturing facility in New Johnsonville, Tennessee. 70 FR 25109 (5/12/05).
  • United States v. Kerr-McGee Chemical LLC, No. 05 C 2318 (N.D. Ill. Apr. 27, 2005). A settling CERCLA defendant must perform EPA-selected remedial actions at the Kress Creek site and the Sewage Treatment Plant River Operable Unit; must implement a natural resources restoration plan for the stream bed, stream banks, and riparian areas that will be damaged by the remedial work at these two sites; must perform minor, remaining remedial action, monitoring, and restoration work at the Residential Areas site, the Reed-Keepler Park site, and the Sewage Treatment Plant Upland Operable Unit; must undertake additional restoration activities costing approximately $800,000; must pay $6,000,000 in past EPA response costs; must pay EPA 100% of future, non-oversight response costs; must pay EPA up to $1,675,000 for future oversight costs; and must pay the state of Illinois $100,000 and DOI $75,000 for natural resource damage-related costs. 70 FR 25110 (5/12/05).
  • United States v. Nudel, No. 04-20015-CIV (S.D. Fl. May 5, 2005). Settling Park System Restoration Protection Act defendants must restore seagrass damaged by the grounding of the M/V GI Jack in Biscayne National Park, must pay $3,272.58 in U.S. damage assessment and response costs, and must pay $7,000 toward the cost of oversight and restoration work by the National Park Service. 70 FR 25110 (5/12/05).

Copyright© 2005, Environmental Law Institute, Washington, D.C. All rights reserved.

THE CONGRESS

BILLS INTRODUCED:

  • H.R. 2070 (Kucinich, D-Ohio) (fuel efficiency incentive), would amend the Internal Revenue Code of 1986 to impose a windfall profit tax on oil and natural gas (and products thereof), allow an income tax credit for purchases of fuel-efficient passenger vehicles, and allow grants for mass transit. 151 Cong. Rec. H2975 (daily ed. May 4, 2005). The bill was referred to the Committee on Ways and Means and the Committee on Transportation and Infrastructure.
  • H.R. 2130 (Gilchrest, R-Md.) (marine mammals), would amend the Marine Mammal Protection Act of 1972 to authorize research programs to better understand and protect marine mammals, and for other purposes. 151 Cong. Rec. H3052 (daily ed. May 5, 2005). The bill was referred to the Committee on Resources.
  • H.R. 2211 (Capuano, D-Mass.) (CERCLA), would limit liability under CERCLA for service station dealers with respect to the release or threatened release of recycled oil. 151 Cong. Rec. H3112 (daily ed. May 10, 2005). The bill was referred to the Committee on Energy and Commerce and the Committee on Transportation and Infrastructure.
  • H.R. 2231 (Lowey, D-N.Y.) (environmental research), would amend the Public Health Service Act to authorize the Director of the National Institute of Environmental Health Sciences to make grants for the development and operation of research centers regarding environmental factors that may be related to the etiology of breast cancer. 151 Cong. Rec. H3112 (daily ed. May 10, 2005). The bill was referred to the Committee on Energy and Commerce.
  • S. 977 (Burns, R-Mont.) (forest land), would direct the Secretary of Agriculture to convey certain land in the Beaverhead-Deerlodge Forest, Montana, to Jefferson County, Montana, for use as a cemetery. 151 Cong. Rec. S4936 (daily ed. May 11, 2005). The bill as referred to the Committee on Energy and Natural Resources.
  • S. 998 (Crapo, R-Idaho) (radiation), would include the state of Idaho as an affected area under the Radiation Exposure Compensation Act. 151 Cong. Rec. S4936 (daily ed. May 11, 2005). The bill was referred to the Committee on the Judiciary.
  • H.R. 2283 (Ferguson, D-N.J.) (heritage trail), would provide for the extension of the New Jersey Coastal Heritage Trail into the Township of Woodbridge, New Jersey. 151 Cong. Rec. H3196 (daily ed. May 11, 2005). The bill was referred to the Committee on Resources.
  • H.R. 2297 (McKinney, D-Ga.) (land designation), would establish the Arabia Mountain National Heritage Area, and for other purposes. 151 Cong. Rec. H3196 (daily ed. May 11, 2005). The bill was referred to the Committee on Resources.
  • S. 1017 (Chafee, R-R.I.) (water resources), would reauthorize grants from the water resources research and technology institutes established under the Water Resources Research Act of 1984. 151 Cong. Rec. S5071 (daily ed. May 12, 2005). The bill was referred to the Committee on Environment and Public Works.
  • S. 1022 (Smith, R-Or.) (energy efficiency), would amend the Internal Revenue Code of 1986 to allow for an energy efficient appliance credit. 151 Cong. Rec. S5071 (daily ed. May 12, 2005). The bill was referred to the Committee on Finance.
  • S. 1025 (Roberts, R-Kan.) (natural resources), would amend the Act entitled "An Act to provide for the construction of the Cheney division, Wichita Federal reclamation project, Kansas, and for other purposes" to authorize the Equus Beds Division of the Wichita Project. 151 Cong. Rec. S5071 (daily ed. May 12, 2005). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 1026 (Landrieu, D-La.) (offshore energy), would ensure that offshore energy development on the outer continental shelf continues to serve the needs of the United States, create opportunities for new development and the use of alternative resources, and for other purposes. 151 Cong. Rec. S5071 (daily ed. May 12, 2005). The bill was referred to the Committee on Energy and Natural Resources.
  • H.R. 2323 (Farr, D-Cal.) (species recovery), would establish a program of research and other activities to provide for the recovery of the southern sea otter. 151 Cong. Rec. H3260 (daily ed. May 12, 2005). The bill was referred to the Committee on Resources.
  • H.R. 2332 (Beauprez, R-Colo.) (land acquisition), would amend the National Trails System Act to clarify federal authority relating to land acquisition from willing sellers for the majority of the trails in the system, and for other purposes. 151 Cong. Rec. H3260 (daily ed. May 12, 2005). The bill was referred to the Committee on Resources.
  • H.R. 2334 (Capps, D-Cal.) (water quality), would amend the Reclamation Wastewater and Groundwater Study and Facilities Act to authorize the Secretary of the Interior to participate in the design, planning, and construction of permanent facilities for the GREAT project to reclaim, reuse, and treat impaired waters water in the area of Oxnard, California. 151 Cong. Rec. H3260 (daily ed. May 12, 2005). The bill was referred to the Committee on Resources.
  • H.R. 2341 (Doggett, D-Tex.) (water quality), would amend the Reclamation Wastewater and Groundwater Study and Facilities Act to authorize the Secretary of the Interior to participate in the design, planning, and construction of a project to reclaim and reuse wastewater within and outside of the service area of the City of Austin Water and Wastewater Utility, Texas. 151 Cong. Rec. H3260 (daily ed. May 12, 2005). The bill was referred to the Committee on Resources.

Copyright© 2005, Environmental Law Institute, Washington, D.C. All rights reserved.

IN THE STATES

New State Development Highlights:

  • The California Water Resources Control Board is proposing a revision to its Municipal Landfill Policy that would allow the state to permit limited-term exemptions from the federal liquid waste acceptance rule. The state would grant such an exemption to promote experimentation with advanced operation methods for hastening the waste's biological stabilization
  • The Massachusetts Department of Environmental Protection is holding another meeting in its series on asbestos-in-soil. The meeting will address notification thresholds, soil management pilot projects, and risk assessment issues.
  • Texas Commission on Environmental Quality is proposing to extend alternative language notice requirements. The new measure would require authorities to publish air, waste, and water quality public notices of permitting activities in both English and the applicable alternative language if either the elementary or middle school nearest to the facility provides a bilingual education program.
  • The Virginia Air Pollution Control Board is proposing amendments to regulations for the control and abatement of air pollution concerning the minor new source review program.

The following states contain new information in this issue:

Click on a state name below to see its information in ELR UPDATE. Or go to http://www.elr.info/State/stateupdate.cfm to view the complete section.

Copyright© 2005, Environmental Law Institute, Washington, D.C. All rights reserved.

INTERNATIONAL

UNEP WORKING GROUP ON LIABILITY AND REDRESS UNDER THE BIOSAFETY PROTOCOL:

  • The United Nations Environment Programme will host the First Meeting of the Ad Hoc Open-ended Working Group on Liability and Redress under the Biosafety Protocol May 25 through 27, 2005, in Montreal, Canada. See http://www.biodiv.org/doc/meeting.aspx?mtg=BSWGLR-01

RAMSAR ASIA REGIONAL MEETING:

  • The Ramsar Convention on Wetlands hosted the Asia Regional Meeting on Ramsar's 9th Meeting of the Conference of the Contracting Parties in Beijing, China, from May 13 to 16, 2005. Topics covered include COP9 Resolutions that have relevance to Asia, enhancing wetland conservation, the Himalayan Wetlands Conservation Initiative, and peatland and mangrove management. See http://www.ramsar.org/mtg_reg_asia2005_index.htm

CHILE ENVIRONMENTAL PERFORMANCE REPORT:

  • On May 9, 2005, the Organisation for Economic Co-operation and Development published a report evaluating Chile's environmental performance. While the report celebrates recent improvements and supports the current environmental programs of the government, it also makes 52 recommendations to improve the environment. See http://www.oecd.org/document/32/0,2340,en_2649_37465_34856224_1_1_1_37465,00.htm

Copyright© 2005, Environmental Law Institute, Washington, D.C. All rights reserved.

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