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Weekly Update Volume 35, Issue 2

01/24/2005

LITIGATION

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

OIL AND GAS DRILLING, PREEMPTION, TAKINGS:

The Fifth Circuit held that a local ordinance that prevents a corporation that owns state-granted mineral interests under and around a lake from drilling within 1,000 feet of that lake is preempted by Louisiana's comprehensive regulation of oil and gas drilling. The ordinance, therefore, is invalid to the extent that it purports to prohibit the drilling of oil and gas wells in an area within the state of Louisiana, an authority granted exclusively by state statute and regulations to the Louisiana Office of Conservation. The corporation's takings claim, however, is barred by prescription. Energy Management Corp. v. City of Shreveport, No. 03-30677, 35 ELR 20013 (5th Cir. Jan. 13, 2005) (14 pp.).

CERCLA, NPL:

The D.C. Circuit denied a company's petition challenging EPA's decision to place it on the NPL. Neither EPA's interpretation nor its application of the disputed regulation was unreasonable. Further, EPA reviewed the data the company submitted and correctly concluded the data did not cast doubt on its decision to list the site. Carus Chemical Co. v. United States Environmental Protection Agency, No. 03-1455, 35 ELR 20010 (D.C. Cir. Jan. 11, 2005) (14 pp.).

NATIVE AMERICANS, NEPA, CAA:

A California district court upheld the environmental reviews performed by the Bureau of Indian Affairs and the National Indian Gaming Commission in connection with the proposed construction of a hotel and gaming facility on an Indian reservation and an interchange and access road connecting the reservation to a highway. The agencies' decision to segment review into two separate EAs did not violate NEPA, the EAs adequately considered environmental impacts on traffic, air quality, and water quality, and their consideration of alternative projects and the cumulative impacts of the projects was adequate. Nor did the agencies violate NEPA’s procedural requirements. In addition, the agencies complied with the conformity requirements of the CAA when they found that both the casino and interchange projects would conform to California’s SIP. El Dorado County v. Norton, No. S-02-1818 GEB DAD, 35 ELR 20014 (E.D. Cal. Jan. 10, 2005) (Burrell Jr., J.) (42 pp.) (Counsel for intervening tribe included Nicholas C. Yost of Sonnenschein Nath & Rosenthal).

CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA), "PROJECT":

A California appellate court held that a local airport commission's adopting of an airport land use compatibility plan was a "project" under CEQA. Adoption of the plan was a project because it has the potential to result in physical change to the environment by displacing housing development to elsewhere in the region. Because the commission did not comply with CEQA, it must set aside its adoption of the plan. Muzzy Ranch Co. v. Solano County Airport Land Use Commission, No. A104955, 35 ELR 20011 (Cal. App. 1st Dist. Jan. 5, 2005) (21 pp.).

CEQA, CATEGORICAL EXEMPTION:

A California appellate court affirmed a trial court decision ordering a county to set aside its approval of a single-family residence within a riparian area designated as an environmental resource of critical concern. The county found generally that any adverse environmental impacts were eliminated by mitigation measures adopted as conditions for project approval and therefore exempted the project from CEQA review. Mitigation measures, however, may never support a categorical exemption to CEQA, which is required if a project may have a significant effect on the environment. Salmon Protection & Watershed Network v. County of Marin, No. A105592, 35 ELR 20015 (Cal. App. 1st Dist. Jan. 18, 2005) (12 pp.).

CEQA, PETITIONS, TIMELY SERVICE:

A California appellate court affirmed a trial court decision dismissing a petition challenging a city's issuance of a negative environmental declaration under CEQA and grant of a conditional use permit to a developer to construct an apartment building in an industrialized area of the city. Although the petition was timely filed, it was not timely served under Government Code §65009. Royalty Carpet Mills, Inc. v. City of Irvine, No. G033763, 35 ELR 20017 (Cal. App. 4th Dist. Jan. 18, 2005) (17 pp.).

LAND USE, RESIDENTIAL HOUSING PROJECT:

A California appellate court reversed a lower court decision ordering a county to set aside its decision extending the expiration date of the tentative subdivision map for a residential housing project. Contrary to the lower court's interpretation, §66452.6 of the California Government Code authorizes the county to act on a timely filed application for an extension even after the tentative map had expired. Bodega Bay Concerned Citizens v. County of Sonoma, Nos. A105590, A105787, 35 ELR 20016 (Cal. App. 1st Dist. Jan. 14, 2005) (13 pp.).

RECLAMATION, PUBLIC WORKS:

A California appellate court held that maintenance work done on a levee to protect an island in the Delta in San Joaquin County from flooding was not a public works project subject to the prevailing wage laws. The work did not involve the operational work of a reclamation district, nor is there any showing the work had anything to do with irrigation or drainage. Reclamation District No. 684 v. State Department of Industrial Relations, No. C044814, 35 ELR 20012 (Cal. App. 3d Dist. Jan. 13, 2005) (16 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 rule on mandatory leak repair of appliances, promulgated under CAA §608, to clarify how the requirements of §608 extend to appliances using substitutes for chlorofluorocarbon and hydrochlorofluorocarbon refrigerants. 70 FR 1971 (1/11/05).
  • EPA amended NESHAPs for pushing, quenching, and battery stacks at new and existing coke oven batteries, and issued a parallel proposal to be used as the basis for final action if EPA received significant adverse comments on the final amendments. 70 FR 1671 (1/10/05).
  • EPA proposed to determine that the marginal one-hour ozone nonattainment area of Washoe County, Nevada attained the one-hour ozone NAAQS by the date of 1993 and continued to attain since that time. 70 FR 3174 (1/21/05).
  • EPA proposed to find that the Las Vegas Valley nonattainment area in the state of Nevada attained the NAAQS for carbon monoxide by the December 31, 2000, attainment date and proposed to determine that the CAA's requirements for contingency provisions no longer apply to the area. 70 FR 3178 (1/21/05).
  • EPA tentatively scheduled a public hearing addressing the California Air Resources Board's (CARB's) requests to confirm that CARB's amendments, affecting model years 2003-2006, are within the scope of previous waivers of preemption and that EPA issues CARB a new waiver of preemption so that the amendments are applicable to the 2007 and subsequent model years. 70 FR 2861 (1/18/05).
  • EPA announced the opportunity for a public hearing and requested public comment on CARB's request to enforce California's marine spark ignition engine regulations for outboard marine engines, personal watercraft, and inboard and sterndrive marine engines, and to enforce California's off-road large spark ignition engine regulations. 70 FR 2154 (1/12/05).
  • EPA approved a negative declaration submitted by Albuquerque (Bernalillo County), New Mexico, certifying that there are no existing commercial and industrial solid waste incineration units in Bernalillo County subject to the requirements of CAA §§111(d) and 129. 70 FR 1670 (1/10/05).

FISHERIES:

  • NOAA's assistant administrator for fisheries announced temporary restrictions for lobster trap/pot and anchored gillnet fishermen in a 1,889 square nautical mile area east of Portland, Maine, to provide protection to a gathering of North Atlantic right whales for 15 days. 70 FR 2369 (1/13/05).
  • NOAA introduced, for public review and comment, a Routine Road Maintenance Program, submitted by Washington County, Oregon, which affects six evolutionarily significant units of threatened salmonids. 70 FR 2391 (1/13/05).
  • The Department of State certified that Venezuela adopted a program, comparable to that of the United States, that reduces the incidental capture of sea turtles in its shrimp fisheries, and it withdrew its certification for Panama, Tobago, and Trinidad because none of their programs for protecting sea turtles in its shrimp fisheries has proven to be comparable to the program in the United States. 70 FR 2205 (1/12/05).
  • NOAA granted an incidental harassment authorization to the California department of transportation so that it can take small numbers of California sea lions, Pacific harbor seals, and gray whales, by harassment, incidental to construction of a replacement bridge for the East Span of the San Francisco-Oakland Bay Bridge. 70 FR 2127 (1/12/05).

HAZARDOUS AND SOLID WASTES:

  • The Department of Health and Human Services notified the public of the availability of the 16th set of final toxicological profiles of priority hazardous substances, which is comprised of two new profiles and three updated profiles. 70 FR 3205 (1/21/05).
  • BLM, pursuant to FLPMA and NEPA, proposed to amend the Challis Resource Management Plan by allowing for the potential disposal of public land to Custer County for a solid waste disposal and transfer area near Mackay, Idaho. 70 FR 3062 (1/19/05).
  • EPA proposed approval of the Hanford Central Characterization Project that would characterize retrievably stored, contact-handled, transuranic debris waste for disposal at the Waste Isolation Pilot Plant. 70 FR 2105 (1/12/05).
  • EPA approved revisions to New York's hazardous waste program under RCRA. 70 FR 1825 (1/11/05).
  • EPA signed the proposed agreement for recovery of past response costs under CERCLA in regards to the R&R Foundry Superfund site located in Topeka, Kansas. 70 FR 2633 (1/14/05).
  • EPA, pursuant to §122 of CERCLA, proposed to enter into a settlement for the partial reimbursement of past response costs with Custom Drum Services, Inc., McManus and Son Drum Company, and Tallent Drum Company, Inc., concerning the Carolina Steel Drum Superfund site in Rock Hill, South Carolina. 70 FR 3033 (1/19/05).
  • EPA proposed to entered into an agreement for recovery of response costs under CERCLA in connection with the Camelot Cleaners West Fargo Superfund site in West Fargo, North Dakota. 70 FR 1891 (1/11/05).

PESTICIDES:

  • EPA announced the availability of its tolerance reassessment decision for the pesticide carbon dioxide, and opened a public comment period on this document, its related risk assessments, and other support documents. 70 FR 3021 (1/19/05).
  • EPA announced the availability of its revised risk assessments for the phenoxy herbicide, 2,4-dichlorophenoxyacetic acid (2,4-D) and started a public comment period on its preliminary risk reduction options for 2,4-D so that the public can also suggest risk management ideas or proposals to address the risks identified. 70 FR 2160 (1/12/05).
  • EPA received and intends to approve several amendments to Utah's state plan for certification of pesticide applicators that add new subcategories as well as a memorandum of understanding regarding future application of an EPA federal pesticide certification program for the Navajo Indian Country. 70 FR 1710 (1/10/05).

TOXIC SUBSTANCES:

  • EPA received a petition from People for the Ethical Treatment of Animals requesting that EPA revoke the TSCA developmental neurotoxicity test guideline in 40 CFR §799.9630 and withdraw a test guideline issued by the Office of Prevention, Pesticides and Toxic Substances. 70 FR 2404 (1/13/05).
  • EPA proposed to revise certain requirements for the toxic chemical release inventory under §313 of EPCRA to reduce reporting burden associated with the toxic chemical release inventory reporting requirements without compromising the usefulness of the information to the public. 70 FR 1686 (1/10/05).

WATER QUALITY:

  • EPA approved revisions, with an exception to the variance provisions, to Utah's Public Water System Supervision Primacy Program when Utah proposed to adopt regulations corresponding to six federal rules of the National Primary Drinking Water Regulations. 70 FR 3034 (1/19/05).
  • EPA approved two ocean dumping sites for the disposal of suitable dredged material, which will be monitored regularly to insure that adverse environmental impacts do not occur in the area of Palm Beach Harbor and Port Everglades Harbor in the Atlantic Ocean offshore Southeast Florida. 70 FR 2817 (1/18/05).
  • EPA proposed amend the rule on NPDES storm water permits to postpone until June 12, 2006, the requirement to obtain permit coverage for oil and gas construction activity disturbing one to five acres of land. 70 FR 2836 (1/18/05).
  • EPA is seeking comment on water metering and billing systems that promote full cost and conservation pricing to achieve water conservation within the drinking water industry. 70 FR 1892 (1/11/05).

WILDLIFE:

  • FWS designated critical habitat for the Colorado butterfly plant under the ESA. 70 FR 1939 (1/11/05).
  • FWS proposed to remove the plant Agave arizonica from the list of endangered and threatened plants. 70 FR 1858 (1/11/05).
  • FWS announced the availability for public review of the draft revised recovery plan for the whooping crane. 70 FR 1902 (1/11/05).
  • FWS announced that the final comprehensive conservation plans, describing how FWS intends to manage refuges over the next 15 years, are available for the Assabet River, Great Meadows, and Oxbow National Wildlife Refuges. 70 FR 1735 (1/10/05).

DOJ NOTICE OF SETTLEMENT:

  • United States v. Weyerhaeuser Co., No. 1:05CV0003 (Jan. 3, 2005, W.D. Mich.). A settling CERCLA defendant must perform the EPA-selected remedy for the landfill area at the Allied Paper/Portage Creek/Kalamazoo River Superfund site in Kalamazoo and Portage Counties, Michigan, and investigate and perform the subsequently selected remedy for the mill on the site, using at least in part $6,200,000 obtained from a bankruptcy settlement; must pay all of EPA's costs of overseeing the work; must pay about $138,000 for EPA's past costs and put $6,200,000 into a special account available to EPA to fund remedial investigations and work in the Kalamazoo River; and must withdraw its objections to a bankruptcy settlement and its pending appeals from the approval of the settlement. 70 FR 2186 (1/12/05).

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

THE CONGRESS

BILLS INTRODUCED:

  • H.R. 106(Green, D-Tex.) (railroads), would require the Surface Transportation Board to consider certain issues when deciding whether to authorize the construction of a railroad line. 151 Cong. Rec. H135 (daily ed. Jan. 6, 2005). The bill was referred to the Committee on Transportation and Infrastructure.
  • H.R. 227(Sweeney, R-N.Y.) (CAA), would reduce acid deposition under the CAA. 151 Cong. Rec. H136 (daily ed. Jan. 6, 2005). The bill was referred to the Committee on Energy and Commerce.
  • H.R. 249(Baker, R-La.) (mineral rights), would repeal the reservation of mineral rights made by the United States when certain lands in Livingston Parish, Louisiana, were conveyed by Public Law No. 102-562. 151 Cong. Rec. H136 (daily ed. Jan. 6, 2005). The bill was referred to the Committee on Resources.
  • H.R. 274(Davis, R-Va.) (out-of-state municipal solid waste), would impose certain limitations on the receipt of out-of-state municipal solid waste. 151 Cong. Rec. H137 (daily ed. Jan. 6, 2005). The bill was referred to the Committee on Energy and Commerce.
  • H.R. 280(Miller, R-Cal.) (brownfields), would facilitate the provision of assistance by the Department of Housing and Urban Development for the cleanup and economic redevelopment of brownfields. 151 Cong. Rec. H137 (daily ed. Jan. 6, 2005). The bill was referred to the Committee on Financial Services.

Copyright© 2005, 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.cfm to view the complete section.

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

INTERNATIONAL

BIODIVERSITY:

EMISSIONS TRADING:

  • The International Emissions Trading Association has published guidelines for the creation of a reference price index for European Union emissions allowance (EUA) trading. The guidelines have been developed: to help build liquidity in the developing EUA market; enhance confidence in the reference price information available; standardize the new commodity; and create a reference price for use as a benchmark for "Over The Counter" derivatives deals and for accounting purposes. See http://www.ieta.org/ieta/www/pages/index.php?IdSitePage=566

INTERNATIONAL ENVIRONMENTAL LAW:

  • Dr. Alejandro Iza has been appointed to head the International Union for Conservation of Nature and Natural Resources (IUCN) Environmental Law Programme and Director of the IUCN Environmental Law Centre. Alejandro obtained a Doctorate in Law from the University of Buenos Aires in 1999, and has worked with the IUCN Environmental Law Programme since that time, most recently as Senior Legal Officer. See http://www.iucn.org/themes/law/

INTERNATIONAL OIL AND GAS:

  • The International Herald Tribune reported that the first trans-Siberian oil pipeline, stretching from Lake Baikal to the Japan Sea, is to run 4,150 kilometers--more than three times as long as the trans-Alaska pipeline. At a cost of $15.5 billion, it is modern Russia's biggest infrastructure investment. Russia's last-minute switch of the Pacific terminal site from an existing oil port to this pristine bay is putting Japanese banks in the midst of a growing global environmental protest movement. The oil terminal project also presents a test between Japan's energy anxieties and its environmental concerns. See http://www.iht.com/articles/2005/01/21/business/russoil.html

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

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