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Weekly Update Volume 35, Issue 15

05/23/2005

LITIGATION

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

CERCLA, CONTRIBUTION, RESPONSE COSTS:

The Second Circuit affirmed in part a lower court's grant of summary judgment in favor of a corporation, which operated a fuel production facility in the 1950s under a government contract, in the current property owners' suit to recover costs related to the cleanup of hazardous substances on that property. The property owners are not eligible to seek contribution under CERCLA §113(f) because they have not been sued under CERCLA §§106 or 107(a). However, a genuine issue of material fact exists as to whether the property owners incurred recoverable necessary response costs in admitting government officials and contractors onto its property. This aspect of the lower court's decision was therefore vacated and remanded. But the remaining response costs allegedly incurred are not recoverable under CERCLA because they were not necessary to address a threat to human health or the environment. And the radioactive contamination claims under CERCLA, as well as the Federal Tort Claims Act claims, are time-barred. Syms v. Olin Corp., No. 03-6234, 35 ELR 20104 (2d Cir. May 18, 2005) (28 pp.).

MAGNUSON-STEVENS FISHERY CONSERVATION AND MANAGEMENT ACT:

The Ninth Circuit held that an NMFS amendment to the Bering Sea and Aleutian Islands fishery management plan does not violate the Magnuson-Stevens Fishery Conservation and Management Act. The NMFS decided to limit the number of boats fishing in the fishery by granting licenses only to boats that caught a prescribed amount of fish during any two years between 1995 and 1998. Had the NMFS included 1999 as a qualifying year, the owner of a fishing vessel--the plaintiff in this case--would have qualified to secure a license to fish for Pacific cod in the fishery. Contrary to the plaintiff's claims, however, the NMFS' failure to include 1999 as a qualifying year for pot catcher/processors was not arbitrary and capricious. It adequately articulated a justification for the exclusion. Nor is the exclusion of 1999 as a qualifying year unfair and inequitable. Yakutat, Inc. v. Gutierrez, No. 03-35400, 35 ELR 20103 (9th Cir. May 18, 2005) (31 pp.).

TRANSURANIC WASTE, DISPOSAL:

A district court expanded a preliminary injunction already in place to prevent DOE from shipping any low-level or mixed low-level transuranic waste to the Hanford Nuclear Reservation in Washington. The risks associated with disposal of low-level or mixed low-level waste at Hanford outweigh the additional costs and schedule delays. But the court dissolved the injunction to the extent that it enjoined DOE from shipping transuranic waste from the Battelle West Jefferson site in Columbus, Ohio, to Hanford. However, to the extent there is transuranic mixed waste (TRUM) in that intended shipment, as little as it may be, DOE continues to be preliminarily enjoined until DOE establishes that additional shipments of TRUM to Hanford will not result in a violation of the Washington state Hazardous Waste Management Act. Washington v. Bodman, No. CV-03-5018-AAM, 35 ELR 20099 (E.D. Wash. May 13, 2005) (McDonald, J.) (35 pp.).

NEPA, PIPELINES:

A district court held that the BLM improperly segmented its analysis of a petroleum pipeline construction project in violation of NEPA. The BLM erroneously determined that the pipeline segment had independent utility from another proposed pipeline project. By excluding the other pipeline project from its analysis, it allowed the impact of that project to be considered in a separate environmental review process, thereby preventing the full environmental impacts of the combined projects from being considered adequately in the decisionmaking process. Claims that the final EIS failed to address environmental impacts of the pipeline at issue, however, as well as claims under the ESA, the Mineral Leasing Act, and the National Forest Management Act, were without merit. Hammond v. Norton, No. 01-2345 (PLF), 35 ELR 20100 (D.D.C. May 13, 2005) (Friedman, J.) (70 pp.).

CONSENT DECREES, MODIFICATION, LANDFILL:

A district court denied New Jersey's motion to amend a 1997 consent decree concerning the Gloucester Environmental Management Services, Inc., Landfill and ordered it to comply with the terms of the decree. The state alleged that the detection of the presence of radionuclides requires a new remedy for the landfill. The state, however, failed to establish any change in circumstances sufficient to justify modification of the decree. Reliance on the New Jersey legislature's enactment of P.L.2003--which would prohibit any discharge of treated groundwater to the local POTW from the site--as a basis for failing to implement the selected remedy fails because the law itself is preempted by CERCLA. In addition, the state has no reasonable basis for refusing to comply with its obligations under the decree. Thus, it must honor its obligations under the decree, including interposing no further unreasonable interference with the selected remedy. New Jersey v. Gloucester Environmental Management Services, Inc., Nos. 84-0152 (JBS), 92-3860, 35 ELR 20101 (D.N.J. May 11, 2005) (Simandle, J.) (25 pp.).

NEGLIGENCE, REPOSE STATUTE:

A district court held that a railroad company's negligence claim against a tank installer is barred by Texas' repose statute. The case arose after a tank located on a chemical company's property ruptured and released chemicals onto neighboring railroad property. The state's repose statute bars the railroad's claims because more than 10 years have passed from the completion of construction of the tanks. Nor is the repose statute preempted by CERCLA in this case. The installer does not qualify as a "responsible person" under CERCLA; thus, CERCLA's preemption provision does not apply. Likewise, the installer does not qualify as an "arranger" under CERCLA. Burlington Northern & Santa Fe Railway Co. v. Poole Chemical Co., No. Civ.A. 5:04CV047-C, 35 ELR 20102 (N.D. Tex. May 10, 2005) (Cummings, J.) (7 pp.).

CALIFORNIA COASTAL ACT, DEVELOPMENT:

The Supreme Court of California held that the California Coastal Commission's approval of a coastal development permit that straddles the coastal zone boundary conforms with the California Coastal Act of 1976. The Commission considered the ways in which the proposed development outside the coastal zone would produce impacts within the coastal zone, and the ways in which the proposed development inside the coastal zone, as further conditioned by the Commission to implement the Coastal Act's standards, would address those impacts. Given the Commission's finding that the proposed development within the coastal zone, as conditioned, is in conformity with the Coastal Act, a denial of the permit request for that development would simply be a means of effectuating change in the portion of the project outside the coastal zone. Thus, the Commission correctly declined to deny the permit request solely on the basis of the impacts within the coastal zone. Sierra Club v. California Coastal Commission, No. S116081, 35 ELR 20105 (Cal. May 19, 2005) (33 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 iron and steel foundries by clarifying and adding flexibility to the work practice requirements for materials certification and scrap selection/inspection programs. 70 FR 29405 (5/20/05).
  • EPA finalized the Clean Air Mercury Rule and established standards of performance for mercury for new and existing coal-fired electric utility steam generating units. 70 FR 28700 (5/18/05).
  • EPA approved amendments to the NESHAPs for asphalt processing and asphalt roofing manufacturing that correct minor errors and add a clarifying exemption. 70 FR 28365 (5/17/05).
  • EPA proposed to amend the NESHAPs for iron and steel foundries by clarifying and adding flexibility to the work practice requirements for materials certification and scrap selection/inspection programs; the rule was also approved in a direct final rule (see above). 70 FR 29407 (5/20/05).
  • EPA proposed amendments to correct minor errors and add a clarifying exemption to the NESHAPs for asphalt processing and asphalt roofing manufacturing; EPA approved these amendments as a direct final rule (see above). 70 FR 28367 (5/17/05).
  • EPA approved a revision to the ground-level ozone SIP for the Southeast Michigan area. 70 FR 29207 (5/20/05).
  • EPA approved revisions to Virginia's SIP to clarify the applicability of the solvent metal cleaning operations using non-halogenated solvents provisions. 70 FR 28217 (5/17/05).
  • EPA proposed to approve revisions to Colorado's SIP concerning the Denver early action ozone plan, the associated attainment demonstration, and the common provisions regulation. 70 FR 28252 (5/17/05).
  • EPA proposed to approve revisions to Colorado's SIP concerning the Greeley carbon monoxide revised maintenance plan and transportation conformity budgets. 70 FR 28239 (5/17/05).
  • EPA proposed to approve a Maryland SIP revision that will enable the Washington County early action compact area to demonstrate attainment and maintenance of the eight-hour ozone NAAQS standard. 70 FR 28260 (5/17/05).
  • EPA proposed to approve a revision to the ground-level ozone SIP for the Southeast Michigan area; EPA also approved the revision in a direct final rule (see above). 70 FR 29239 (5/20/05).
  • EPA proposed to approve a revision to the visible emissions portion of the North Carolina SIP. 70 FR 28497 (5/18/05).
  • EPA proposed to approve Texas SIP revisions concerning the Northeast Texas Early Action Compact area. 70 FR 25798 (5/16/05).
  • EPA proposed to approve revisions to Virginia's SIP to clarify the applicability of the solvent metal cleaning operations using non-halogenated solvents provisions; EPA approved these revisions as a direct final rule (see above). 70 FR 28268 (5/17/05).
  • EPA proposed to approve a revision to Virginia's SIP concerning attainment and maintenance of the eight-hour ozone NAAQS in the Northern Shenandoah Valley ozone early action compact area. 70 FR 28264 (5/17/05).
  • EPA proposed to approve a revision to Virginia's SIP concerning attainment and maintenance of the eight-hour ozone NAAQS in the Roanoke metropolitan statistical area early action compact area. 70 FR 28256 (5/17/05).
  • EPA proposed to approve a revision to the West Virginia SIP concerning attainment and maintenance of the eight-hour ozone NAAQS standard in the Eastern Panhandle Region ozone early action compact area. 70 FR 28267 (5/17/05).

FISHERIES:

  • NMFS announced that it will conduct a status review of eastern oysters to determine whether a petition to list the species as endangered or threatened under the ESA is warranted. 70 FR 28513 (5/18/05).
  • NMFS lifted the trade restrictions on importing bigeye tuna from Cambodia, Equatorial Guinea, and Sierra Leone; bluefin tuna from Equatorial Guinea and Sierra Leone; and swordfish from Sierra Leone. 70 FR 28219 (5/17/05).
  • NMFS proposed to recommend that an exempted fishing permit be issued to allow three fishing vessels to conduct fishing operations that are otherwise restricted by the regulations regarding the fisheries of the northeastern United States for the Gulf of Maine Rolling Closure Areas II and III. 70 FR 25814 (5/16/05).

HAZARDOUS AND SOLID WASTES:

  • EPA entered into a proposed de minimis administrative agreement concerning the Li Tungsten Superfund site in Glen Cove, New York; the settlement requires 22 settling parties to pay a total of $210,970 into a special account established for the site. 70 FR 29312 (5/20/05).
  • EPA entered into a proposed administrative settlement concerning the Pittsburgh Metal and Equipment Superfund site; the settling parties will pay a total of approximately $370,000 to reimburse EPA for response costs incurred at the site. 70 FR 29313 (5/20/05).
  • EPA proposed to authorize changes to Idaho's hazardous waste program under RCRA after determining that they would satisfy all requirements needed to qualify for final authorization. 70 FR 25801 (5/16/05).

SATELLITES:

  • NOAA proposed to amend regulations governing the licensing of private earth remote sensing space systems under the Land Remote Sensing Policy Act. 70 FR 29386 (5/20/05).

MINING:

  • OSM approved an amendment to Illinois' regulatory program under SMCRA that provides additional safeguards and clarifies ambiguities regarding the surface mining advisory council, citation references, typographical errors, procedures for relocating or closing public roads, and subsidence control. 70 FR 28824 (5/19/05).

NATURAL RESOURCES

  • FERC amended its regulations governing standards for conducting business practices with interstate natural gas pipelines. 70 FR 28211 (5/17/05).

WATER QUALITY:

  • EPA intended to approve Oregon's revisions to its State Public Water Supply Supervision Primacy Program that adopted drinking water regulations for public notification, radionuclides, filter backwash recycling, arsenic, variances and exemptions, and enhanced surface water treatment for systems serving less than 10,000 people. 70 FR 25828 (5/16/05).

WILDLIFE:

  • FWS announced its 90-day finding on a petition to list the pygmy rabbit as threatened or endangered under the ESA and determined that listing the pigmy rabbit is not warranted at this time. 70 FR 29265 (5/20/05).
  • FWS proposed to delist the Mexican bobcat after finding that the Mexican bobcat may not constitute a separate subspecies, does not constitute a distinct population segment, and, despite habitat modification by humans, remains abundant throughout Mexico. 70 FR 28900 (5/19/05).

DOJ NOTICES OF SETTLEMENT:

  • United States v. Abeldgaard, No. A-01-378 (D. Alaska May 10, 2005). A settling CWA defendant that discharged pollutants without a permit into waters of the United States must restore the impacted areas and pay a civil penalty. 70 FR 28956 (5/19/05).
  • United States v. Gorman Park Properties, L.L.L.P., No. 05-cv-00649-JNE-JGL (D. Minn. Apr. 1, 2005). Settling defendants that violated the Lead-based Paint Hazard Act must abate all lead-based paint hazards in each of their units located in 12 residential properties in Minneapolis, Minnesota, must pay an administrative penalty of $7,500 to the United States, and must perform a $50,000 child health improvement project to provide a mobile lead-screening van for use in the Minneapolis area. 70 FR 28956 (5/19/05).
  • United States v. Moghul, No. 05-cv-00649-JNE-JGL (D. Minn. Mar. 30, 2005). A settling defendant that violated the Lead-based Paint Hazard Act must abate the lead-based paint hazards and replace all the windows in each of the houses it owns in Indiana, Minnesota, and Wisconsin, and must pay an administrative penalty of $5,000 to the United States. 70 FR 28956 (5/19/05).
  • United States v. Sherard, No. 05-C-0486 (E.D. Wis. May 2, 2005). Settling defendants that violated the Lead-based Paint Hazard Act must provide the required notice and disclosures to tenants in rental properties located principally in Milwaukee, Wisconsin, must perform inspections at the buildings for the presence of lead-based paint, must perform lead-based paint abatement, and must pay a penalty of $15,000 to the United States. 70 FR 28957 (5/19/05).

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

THE CONGRESS

BILLS INTRODUCED:

  • S. 1077 (Lincoln, D-Ark.) (renewable fuels), would amend the Internal Revenue Code of 1986 to provide a renewable liquid fuels tax credit, and for other purposes. 151 Cong. Rec. S5531 (daily ed. May 19, 2005). The bill was referred to the Committee on Finance.
  • S. 1078 (Lincoln, D-Ark.) (renewable resource), would amend the Internal Revenue Code of 1986 to expand and extend the renewable resource credit and nonconventional source credit for landfill gas facilities. 151 Cong Rec. S5531 (daily ed. May 19, 2005). The bill was referred to the Committee on Finance.
  • S. 1079 (Lincoln, D-Ark.) (renewable resource), would amend the Internal Revenue Code of 1986 to expand and extend the renewable resource credit for trash combustion facilities. 151 Cong. Rec. S5531 (daily ed. May 19, 2005). The bill was referred to the Committee on Finance.
  • S. 1080 (Jeffords, I-Vt.) (drinking water), would amend the SDWA to require the use of nontoxic products in the case of hydraulic fracturing that occurs during oil or natural gas production activities. 151 Cong. Rec. S5531 (daily ed. May 19, 2005). The bill was referred to the Committee on Environment and Public Works.
  • H.R. 2362 (Gibbons, R-Nev.) (mapping), would reauthorize and amend the National Geologic Mapping Act of 1992. 151 Cong. Rec. H3330 (daily ed. May 16, 2005). The bill was referred to the Committee on Resources.
  • H.R. 2364 (Rohrabacher, R-Cal.) (research), would establish a Science and Technology Scholarship Program to award scholarships to recruit and prepare students for careers in the National Weather Service and in NOAA marine research, atmospheric research, and satellite programs. 151 Cong. Rec. H3330 (daily ed. May 16, 2005). The bill was referred to the Committee on Science.
  • H.R. 2376 (Case, D-Haw.) (marine refuge), would designate the Northwestern Hawaiian Islands National Marine Refuge, and for other purposes. 151 Cong. Rec. H3330 (daily ed. May 16, 2005). The bill was referred to the Committee on Resources and the Committee on Transportation and Infrastructure.
  • H.R. 2410 (McDermott, D-Wash.) (contamination), would require certain studies regarding the health effects of exposure to depleted uranium munitions, to require the cleanup and mitigation of depleted uranium contamination at sites of depleted uranium munition use and production in the United States, and for other purposes. 151 Cong. Rec. H3434 (daily ed. May 17, 2005). The bill was referred to the Committee on Energy and Commerce and the Committee on Armed Services.
  • H.R. 2417 (Wilson, R-N.M.) (drinking water), would amend the SDWA to establish a program to provide assistance to small communities for use in carrying out projects and activities necessary to achieve or maintain compliance with drinking water standards, and for other purposes. 151 Cong. Rec. H3435 (daily ed. May 17, 2005). The bill was referred to the Committee on Energy and Commerce.
  • H.R. 2491 (Gillmor, R-Ohio) (solid waste), would amend the Solid Waste Disposal Act to authorize states to restrict receipt of foreign municipal solid waste and implement the Agreement Concerning the Transboundary Movement of Hazardous Waste between the United States and Canada, and for other purposes. 151 Cong. Rec. H3693 (daily ed. May 19, 2005). The bill was referred to the Committee on Energy and Commerce.
  • H.R. 2509 (Norton, Delegate-D.C.) (water quality), would amend the FWPCA and the Water Resources Development Act of 1992 to provide for the restoration, protection, and enhancement of the environmental integrity and social and economic benefits of the Anacostia Watershed in the state of Maryland and the District of Columbia. 151 Cong. Rec. H3694 (daily ed. May 19, 2005). The bill was referred to the Committee on Transportation and Infrastructure.
  • H.R. 2514 (Simpson, R-Idaho) (land), would promote the economic development and recreational use of National Forest System lands and other public lands in central Idaho, to designate the Boulder-White Cloud Management Area to ensure the continued management of certain National Forest System lands and BLM lands for recreational and grazing use and conservation and resource protection, to add certain National Forest System lands and BLM lands in central Idaho to the National Wilderness Preservation System, and for other purposes. 151 Cong. Rec. H3694 (daily ed. May 19, 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 Iowa Environmental Protection Commission is proposing to add new definitions of various fuels including biodiesel, diesel, number 1 fuel oil, and number 2 fuel oil to the Iowa Administrative Code.
  • The Massachusetts Department of Environmental Protection is proposing three major regulatory packages to streamline and strengthen environmental requirements for Massachusetts' biotechnology facilities. These include air quality regulations that will create permits by rule for engines and turbines, amendments to hazardous waste regulations, and amendments to air quality and industrial wastewater regulations.
  • The New Jersey Department of Environmental Protection is proposing to designate certain violations of the Toxic Catastrophe Prevention Act (TCPA) rules as minor and assign a grace period to come into compliance before a penalty is assessed. The Department is also proposing various non-Grace Period Law amendments to the TCPA penalty provisions.
  • The Washington Department of Ecology is adopting a rule amendment that changes the definitions of "clean soils and dredged material" and "contaminated soils and dredged material." It also changes the current approach to managing soil-containing contaminants.

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

TSUNAMI RECOVERY EFFORTS:

  • More than 500,000 people were left homeless in Aceh, Indonesia, as a result of the December 26, 2004, tsunami. Although the government has yet to begin efforts to rebuild housing, several nongovernmental organizations have started. The Washington Post reports that the World Wildlife Fund and Greenomics estimate that the recovery effort will require between 1.15 million and 4 million cubic meters of logs over the next five years. Most of the wood for the initial buildings has been locally and illegally logged, and environmentalists fear this will have unintended consequences, such as landslides and flooding, and will damage the habitat of animals and plants. See http://www.washingtonpost.com/wp-dyn/content/article/2005/05/14/AR2005051400967.html

U.S. CITIES TO ADOPT KYOTO STANDARDS:

  • Over 100 mayors across the United States have committed their cities to meeting the standards of the Kyoto Protocol. These mayors, led by Seattle mayor Greg Nickels and joined last week by New York's Michael R. Bloomberg, have promised that their cities will reduce heat-trapping gas emissions to levels 7% below those of 1990 by 2012. Although experts expect the coalition to have little effect on global emissions, the bipartisan and geographically diverse effort hopes to send a message to the Bush Administration that the United States is ready to engage with solutions for climate change. See http://www.nytimes.com/2005/05/14/national/14kyoto.html?

CHINA RATIFIES CARTAGENA PROTOCOL ON BIOSAFETY:

  • China Daily reported that on May 18, 2005, China became the 120th nation to ratify the Cartagena Protocol on Biosafety. Environmental leaders in China, one of the world's largest importers of genetically modified organisms (GMOs), announced that the country is preparing a national law regarding GMOs and biosafety based on the protocol and World Trade Organization rules. See http://www.chinadaily.com.cn/english/doc/2005-05/19/content_444122.htm

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

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