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Weekly Update Volume 35, Issue 24

08/29/2005

LITIGATION

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


CWA, PERMITS, INACTIVE MINES:

The Tenth Circuit held that the owners of inactive mines can be liable under CWA §§301(a) and 402 for unpermitted discharges that occur from their land. When viewed as a whole, it is apparent the liability and permitting sections of the CWA focus on the point of discharge, not the underlying conduct that led to the discharge. Furthermore, the Act consistently refers to the obligations of the "owners and operators" of a point source, suggesting that successor land owners, such as the owner of the inactive mine in this case, are covered by the Act if they are responsible for a functional point source. The lower court, therefore, did not err in holding that the owner could be liable for discharges occurring at the inactive mine's shaft. In addition, the plaintiffs made a good-faith allegation of continuous or intermittent violations under the CWA sufficient to grant the court jurisdiction. Yet genuine issues of material fact exist as to whether pollutants actually were discharged into a creek. This portion of the lower court decision was therefore reversed. Sierra Club v. El Paso Gold Mines, Inc., No. 03-1105, 35 ELR 20175 (10th Cir. Aug. 24, 2005) (39 pp.).


CWA, ESA, WATER POLLUTION PERMITTING AUTHORITY:

The Ninth Circuit held that when deciding whether to transfer water pollution permitting authority to state governments under the CWA, EPA must consider impacts on endangered species and their habitat under the ESA. The case arose after Arizona sought to run the pollution permitting program within its jurisdiction. In granting Arizona's transfer application, EPA relied on a FWS biological opinion premised on the proposition that EPA lacked the authority to consider jeopardy to listed species. However, approving Arizona's transfer application was an agency action "authorized" by EPA that triggered ESA §7(a)(2)'s consultation requirement and its mandate that agencies not affirmatively take actions that are likely to jeopardize listed species. EPA may have complied with its obligations under the CWA, but compliance with a complementary statute cannot relieve EPA of its independent obligations under ESA §7(a)(2). ESA §7(a)(2) imposes a duty on EPA to "insure" that its transfer decision is not likely to jeopardize protected species or adversely modify their habitat, and this duty exists alongside the CWA provisions. In addition, EPA's transfer decision will cause whatever harm may flow from the loss of §7 consultation on the many projects subject to a water pollution permit, and that harm constitutes an indirect effect of the transfer. The biological opinion, which ignored this effect while recognizing that §7 consultations concerning pollution permits have saved species' critical habitat in the past, was therefore deficient, and EPA erred by relying on this fatally deficient biological opinion. EPA's approval of Arizona's pollution permitting application was therefore vacated. Defenders of Wildlife v. United States Environmental Protection Agency, Nos. 03-71439, -72894, 35 ELR 20172 (9th Cir. Aug. 22, 2005) (61 pp.).


CWA, SOVEREIGN IMMUNITY, NAVIGATION EXCEPTION, PREEMPTION:

The Eighth Circuit upheld the dismissal of North Dakota's suit to enjoin the U.S. Army Corps of Engineers from releasing water from Lake Sakakawea to support downstream navigation on the Missouri River pursuant to the Flood Control Act of 1944. North Dakota alleged that the releases violate state-law water quality standards established under the CWA. CWA §511(a), however, exempts the Corps from complying with the CWA when its authority to maintain navigation would be affected. Here, North Dakota is attempting to use its state water-quality standards to affect the Corps' authority to release water from Lake Sakakawea to support navigation, and there are no exceptional circumstances to indicate that Congress would not have intended the §511(a) "navigation exception" to the waiver of sovereign immunity to apply in this case. Moreover, allowing individual states to use their water quality standards to control how the Corps balances water-use interests would frustrate the design of the Flood Control Act. Thus, it preempts the enforcement of state water quality standards against the Corps' release of water from Lake Sakakawea. North Dakota v. United States Department of the Army, No. 04-2204, 35 ELR 20168 (8th Cir. Aug. 16, 2005) (9 pp.).


FLOOD CONTROL ACT, ESA, NEPA:

The Eighth Circuit dismissed various parties' challenges to the U.S. Army Corps of Engineers' operation of the Missouri River main stem reservoir system and associated FWS wildlife assessments. The court dismissed as moot several claims concerning the conditional summer low flow element of the 2003 biological opinion for the river. The Corps has constructed 1,200 acres of shallow water habitat allowing it to avoid the summer low flow requirement, and the Corps has no plans to implement summer low flows in the foreseeable future. And the lower court properly dismissed the remaining claims. The Flood Control Act imposes no duty to maintain a minimum level of downstream navigation independent of consideration of other interests. In addition, the Corps properly consulted with the FWS to produce the 2003 biological opinion, and the biological opinion complies with the ESA. Last, the Corps adequately explained why its preferred alternative was superior to another evaluated alternative under NEPA. American Rivers, Inc. v. United States Army Corps of Engineers, Nos. 04-2737 et al., 35 ELR 20173 (8th Cir. Aug. 16, 2005) (33 pp.).


FISHING QUOTAS, OVERFISHED SPECIES:

The Ninth Circuit held that the NMFS' 2002 fishing quota for darkblotched rockfish was based on an impermissible construction of the Magnuson-Stevens Fishery Conservation and Management Act. In adopting a rebuilding plan for an overfished species, the time period must be "as short as possible." Moreover, Congress set a presumptive cap of 10 years on any rebuilding period, subject to exceptional circumstances beyond the agency's control. Here, the NMFS determined that the minimum rebuilding period was 14 years due to the biology of the fish. Thus, the 10-year cap did not apply. The Agency, however, relied on an interpretation of the Act set forth in the 1998 National Standards Guidelines that added "one mean generation time" to the minimum rebuilding period, making the total rebuilding period for the darkblotched rockfish 47 years. It then raised the fishing level harvest from 130 metric tons to 168 metric tons. This quota reflects no proportionality between the needs of a species and of fishing communities, and it lacks statutory justification. The lower court decision upholding the agency's decision was therefore reversed. The NMFS' fishing limits for three other species of Pacific groundfish, however, were upheld. Natural Resources Defense Council v. National Marine Fisheries Service, No. 03-16842, 35 ELR 20174 (9th Cir. Aug. 24, 2005) (18 pp.).


NEPA, STANDING, ZONE OF INTERESTS:

The Ninth Circuit held that a phosphate mining company lacks standing to challenge a competitor's phosphate mining project under NEPA. The company had no environmental interests at stake. Rather, it challenged the project because it might become an alternative supplier of phosphate should the project not go forward. The company's interests, therefore, are purely economic. But a purely economic injury that is not intertwined with an environmental interest does not fall within NEPA §102's zone of interests. Ashley Creek Phosphate Co. v. Norton, No. 04-35640, 35 ELR 20171 (9th Cir. Aug. 22, 2005) (20 pp.).


FIFRA, TORT LAW, PREEMPTION:

The Eighth Circuit held that individuals' state-law tort claims against a pesticide manufacturer are not preempted by FIFRA or a related EPA regulation. The individuals were injured after using the pesticide, which is designed to be applied to seeds before planting. Because the pesticide was the same color as the soil in the individuals' geographic region, they argued the product is defective since they were unable to tell whether they had soil or the pesticide on their skin. FIFRA §136v(b) does not expressly preempt their claims because the legal rules that underlie the individuals' claims do not require the manufacturer to label or package the pesticide in any particular way. Instead, the rules set requirements for product design. Nor does an EPA regulation that specifically authorizes the distribution of the pesticide without any coloration impliedly preempt the individuals' claims. Nothing in the regulation's language or its history shows whether EPA intended it to be a minimum standard that could be supplemented by the states or whether EPA intended for it to be the full extent of coloration regulation. Wuebker v. Wilbur-Ellis Co., No. 04-3721, 35 ELR 20167 (8th Cir. Aug. 15, 2005) (8 pp.).


NATIONAL FORESTS, TIMBER, WILDLIFE:

The Tenth Circuit vacated the U.S. Forest Service's approval of a timber harvesting project in the Fishlake National Forest in Utah. The Service did not properly select and monitor the management indicator species (MIS) populations used to determine the effects of management activities on other species. The Service must use actual, quantitative population data to meet its MIS monitoring obligations. Here, the Service failed to meet its obligations with respect to the sage-nester guild, riparian guild, cavity-nester guild, and the Mexican spotted owl. Utah Environmental Congress v. Bosworth, No. 03-4251, 35 ELR 20170 (10th Cir. Aug. 19, 2005) (30 pp.).


ENVIRONMENTAL CLEANUP AND REMEDIATION, DEFAULT JUDGMENTS:

The Second Circuit held that a district court did not abuse its discretion in refusing to set aside a default judgment against a manufacturing company in a case concerning environmental cleanup and remediation at the company's manufacturing plant. Among other things, the default judgment ordered the company to provide the state of New York with access to the site, entered a $1,872,846.80 judgment against the company, and declared it liable for all future response costs incurred in remediating the site. Nearly a year after the default judgment was entered, the company filed a motion to set aside the default order. The district court applied a three-part test in assessing the motion to set aside the default judgment and found that the company's willfulness, its lack of a meritorious defense, and the resulting prejudice to the non-defaulting party all weighed against vacating the default judgment. The company appealed, but despite the company's claims to the contrary, the court's factual conclusions are amply supported by the record. New York v. Green, No. 04-4070-cv, 35 ELR 20169 (2d Cir. Aug. 18, 2005) (19 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 revised the NESHAPs for reinforced plastic composites production under CAA §112. 70 FR 50117 (8/25/05).

  • EPA allocated essential use allowances for 2005 for the import and production of class I stratospheric ozone depleting substances. 70 FR 49835 (8/24/05).

  • EPA approved a negative declaration submitted under CAA §§111(D) and 129 certifying that there are no existing hospital/medical/infectious waste incinerators in the state of Maine. 70 FR 48654 (8/19/05).

  • EPA entered into a proposed consent decree in Interstate Natural Gas Ass'n of America v. EPA, No. 04-1296 (D.D.C.), that would require EPA to make amendments within 60 days to the final rule, Standards of Performance for Stationary Gas Turbines (69 FR 41346), which was challenged by the petitioner. 70 FR 47838 (8/15/05).

  • EPA proposed actions to address the interstate transport of nitrogen oxide and sulfur dioxide emissions that contribute significantly to nonattainment and maintenance problems with respect to the NAAQS for fine particulate matter and eight-hour ozone. 70 FR 49707 (8/24/05).

  • EPA proposed to clarify the applicability provisions, emissions standards, and testing, maintenance, and reporting requirements of the NESHAPs for hydrochloric acid production facilities. 70 FR 49530 (8/24/05).

  • EPA proposed to approve a negative declaration submitted under CAA §§111(D) and 129 certifying that there are no existing hospital/medical/infectious waste incinerators in the state of Maine (see above for direct final rule). 70 FR 48662 (8/19/05).

  • EPA proposed to revise the NESHAPs for reinforced plastic composites production (see above for direct final rule). 70 FR 50113 (8/25/05).

  • EPA granted California's request for a waiver of federal preemption for its heavy-duty diesel regulations for 2007 and subsequent model year vehicles and engines and related test procedures. 70 FR 50322 (8/26/05).

  • EPA redesignated the Wallula, Washington, nonattainment area to attainment for particulate matter. 70 FR 50212 (8/26/05).

  • EPA announced that the Environmental Appeals Board (EAB) denied review of a petition for review of a PSD permit issued to BP West Coast Products, L.L.C., for the construction and operation of a natural gas-fired cogeneration facility. 70 FR 50324 (8/26/05).

  • EPA announced that the EAB denied review of a petition for review of a PSD permit issued to Cardinal FG Company for the construction and operation of a flat glass production plant. 70 FR 50324 (8/26/05).

  • EPA announced that the EAB denied review of a petition for review of a PSD permit amendment issued to Sumas Energy 2, Inc., that extends the construction and operation of an electric generating facility. 70 FR 50325 (8/26/05).

  • SIP Approvals: Colorado (ozone eight-hour NAAQS; Denver area), 70 FR 48652 (8/19/05); (carbon monoxide NAAQS; Greeley area), 70 FR 48650 (8/19/05). Georgia (Early Action Compact areas), 70 FR 50195, 70 FR 50199 (8/26/05). Iowa (Linn County air quality ordinance), 70 FR 48073 (8/16/05). Kentucky (major source thresholds), 70 FR 49493 (8/24/05). Louisiana (ozone eight-hour NAAQS; Shreveport-Bossier City area), 70 FR 48880 (8/22/05). Maryland (ozone eight-hour NAAQS; Washington County) 70 FR 48283 (8/17/05). New Mexico (ozone eight-hour NAAQS; San Juan County), 70 FR 48285 (8/17/05). North Carolina (ozone eight-hour NAAQS), 70 FR 48874 (8/22/05). Oklahoma (ozone eight-hour NAAQS; central Oklahoma), 70 FR 48078 (8/16/05); (ozone eight-hour NAAQS; Tulsa metropolitan area), 70 FR 48645 (8/19/05). Pennsylvania (volatile organic compounds, nitrogen oxides), 70 FR 49496 (8/24/05). South Carolina (Early Action Compact areas), 70 FR 50195 (8/26/05). Tennessee (Knox County), 70 FR 49878 (8/25/05); (Early Action Compact areas), 70 FR 50199 (8/26/05); (format revision), 70 FR 50192 (8/26/05). Texas (ozone eight-hour NAAQS, San Antonio area), 70 FR 48877 (8/22/05); (nitrogen oxide emissions), 70 FR 48647 (8/19/05); (ozone eight-hour NAAQS; Northeast Texas area), 70 FR 48642 (8/19/05); (ozone eight-hour NAAQS; Austin area), 70 FR 48640 (8/19/05); (startup, shutdown, and malfunction activities), 70 FR 50205 (8/26/05); (Dallas-Fort Worth; ozone), 70 FR 50208 (8/26/05). Virginia (ozone eight-hour NAAQS; Northern Shenandoah Valley), 70 FR 48280 (8/17/05); (ozone eight-hour NAAQS; Roanoke metropolitan area), 70 FR 48277 (8/17/05). Washington (particulate matter maintenance plan), 70 FR 50212 (8/26/05). West Virginia (ozone eight-hour NAAQS; Eastern Panhandle Region), 70 FR 48287 (8/17/05).

  • SIP Proposals: Kentucky (major source thresholds; see above for direct final rule), 70 FR 49525 (8/24/05). Iowa (Linn County air quality ordinance; see above for direct final rule), 70 FR 48093 (8/16/05). Maine (ozone, nitrogen oxides; Northern Maine), 70 FR 49526 (8/24/05). Maryland (volatile organic compounds), 70 FR 47757 (8/15/05).

  • SIP Withdrawal: Minnesota (sulfur dioxide; Dakota County), 70 FR 49498 (8/24/05).

DRINKING WATER:



  • EPA proposed the design for the second unregulated contaminant monitoring regulation cycle under the SDWA and proposed to require monitoring of 26 chemicals using nine different analytical methods. 70 FR 49093 (8/22/05).

ENFORCEMENT:



  • EPA announced the changes it will implement in its calculation of the economic benefit of noncompliance in civil penalty enforcement cases. 70 FR 50326 (8/26/05).

ENVIRONMENTAL RESEARCH:



  • EPA announced the availability of a draft institutional controls data standard. 70 FR 48952 (8/22/05).

  • EPA announced the availability of draft revised data standards for chemical identification and latitude/longitude measurements. 70 FR 48706 (8/19/05).

  • EPA announced the availability of draft data standards for environmental sampling, analysis, and results. 70 FR 48417 (8/17/05).

HAZARDOUS & SOLID WASTE:



  • EPA announced a proposed administrative settlement under CERCLA that requires the settling party to pay $95,000 in past EPA response costs incurred at the Perris Drum Superfund Removal site in Perris, California. 70 FR 48707 (8/19/05).

  • EPA announced a proposed administrative settlement under CERCLA that requires the settling party to pay $175,000 in past EPA response costs incurred at the U.S. Cap and Jacket Superfund site in Prospect, Connecticut. 70 FR 48707 (8/19/05).

  • EPA announced a proposed administrative settlement under CERCLA that requires the settling party to pay $897,690 in past EPA response costs incurred at the General Motors Corporation-Central Foundry Division Superfund site in Massena, New York. 70 FR 48132 (8/16/05).

  • EPA announced a proposed administrative de minimis settlement under CERCLA concerning the Florida Petroleum Reprocessors Superfund site in Davie, Florida. 70 FR 49611 (8/24/05).

  • EPA announced a proposed administrative settlement under CERCLA that requires the settling party to pay $2,050,000 into an escrow account to be used to implement response actions at the Garvey Elevator site in Hastings, Nebraska. 70 FR 49281 (8/23/05).

  • EPA announced a proposed administrative settlement under CERCLA that requires 31 settling parties to pay a total of $259,472 in U.S. response costs incurred at the A-American Environmental Removal site in Alhambra, California. 70 FR 49280 (8/23/05).

  • DOJ approved a proposed administrative settlement under CERCLA that requires the settling party to pay $285,000 to reimburse the United States for costs incurred in response to contamination on a portion of the National Capitol Parks-East, located beside the Anacostia River in Washington, D.C. 70 FR 49952 (8/25/05).

  • FWS, on behalf of the Palmerton Natural Resource Trustee Council, announced the release of the Palmerton natural resource damage assessment plan to assess potential injury to natural resources as a result of a release of hazardous substances from the Palmerton Zinc Pile Superfund site in Palmerton, Pennsylvania. 70 FR 47848 (8/15/05).

  • EPA granted a petition to exclude certain wastes generated by the Shell Oil Company's Deer Park facility in Houston, Texas, from the RCRA list of hazardous wastes. 70 FR 49187 (8/23/05).

MINING:



  • OSM proposed to approve amendments to West Virginia's regulatory program under SMCRA. 70 FR 50244 (8/26/05).

PESTICIDES:



  • EPA announced the availability of a draft schedule for the registration review of pesticides mandated in FIFRA §3(g). 70 FR 48356 (8/17/05).

PUBLIC LANDS:



  • The Forest Service issued an interim directive to enumerate measures, other than service days, that may be used to allocate use for outfitting and guiding activities on National Forest System lands. 70 FR 49555 (8/24/05).

  • The Forest Service issued two revised interim directives concerning grazing permits and agreements to replace those issued on July 19, 2005 (70 FR 41370). 70 FR 48663 (8/19/05).

  • The National Park Service (NPS) announced the availability of the record of decision for the revised comprehensive management plan and supplemental EIS for an 81-mile segment of the Merced River in Yosemite National Park, California. 70 FR 47855 (8/15/05).

  • NPS announced the availability of the record of decision for the general management plan and final EIS for the Big South Fork National River and Recreation Area in Kentucky and Tennessee. 70 FR 47854 (8/15/05).

RADIOACTIVE WASTE:



  • EPA proposed to revise its public health and environmental radiation protection standards for Yucca Mountain, Nevada. 70 FR 49013 (8/22/05).

TOXIC SUBSTANCES:



  • EPA announced the program review of the dibasic esters enforceable consent agreement testing program. 70 FR 48418 (8/17/05).

WATER:



  • EPA proposed to amend its guidelines establishing test procedures for the analysis of pollutants under CWA §304(h) by adding analytical test procedures for enumerating bacteria in wastewater and sewage sludge to the list of Agency-approved methods. 70 FR 48255 (8/16/05).

WILDLIFE:



  • FWS removed Eggert's sunflower from the list of threatened plants. 70 FR 48482 (8/18/05).

  • FWS announced the availability of the draft post-delisting monitoring plan for Eggert's sunflower. 70 FR 48577 (8/18/05).

  • FWS designated 199,109 acres of critical habitat for the central population of the California tiger salamander in 19 counties in California. 70 FR 49379 (8/23/05).

  • FWS announced the availability of the final recovery plan for the Catesbaea melanocarpa, an endangered shrub found on islands in the Caribbean Sea. 70 FR 48579 (8/18/05).

  • FWS announced the availability of the draft revised recovery plan for Hawaiian waterbirds. 70 FR 49668 (8/24/05).

  • FWS announced the availability of a draft national management plan for the invasive marine algae genus Caulerpa. 70 FR 48433 (8/17/05).

  • FWS announced the availability of the draft comprehensive conservation plan and EA for Crocodile Lake National Wildlife Refuge in Monroe County, Florida. 70 FR 48187 (8/16/05).

  • FWS announced the availability of the final comprehensive conservation plan and EA for the Agassiz National Wildlife Refuge in Minnesota. 70 FR 50393 (8/26/05).

  • FWS announced the availability of the final comprehensive conservation plan and EA for the Squaw Creek National Wildlife Refuge in Missouri. 70 FR 50394 (8/26/05).

  • FWS announced the availability of the draft economic analysis for the proposed designation of critical habitat for the Pacific coast distinct population segment of the western snowy plover. 70 FR 48094 (8/16/05).

  • FWS announced a five-year review of the Tooth Cave ground beetle under the ESA. 70 FR 48191 (8/16/05).

  • FWS announced the restoration planning phase of a natural resource damage assessment undertaken in response to the February 1996 discharge of oil from the M/V Citrus into the Bering Sea, Alaska. 70 FR 47846 (8/15/05).

  • FWS issued a revised definition of authentic native articles of handicrafts and clothing to comply with a court ruling that its prior definition was inconsistent with the Marine Mammal Protection Act. 70 FR 48321 (8/17/05).

  • FWS approved shot formulated of 62% iron, 25% tungsten, and 13% nickel as nontoxic for waterfowl and coot hunting in the United States. 70 FR 49194 (8/23/05).

  • FWS proposed to approve four shot types or alloys as nontoxic for hunting waterfowl and coots. 70 FR 49541 (8/24/05).

  • NMFS proposed requirements for attending protected species workshops, for handling, resuscitating, and releasing sea turtles that are hooked or entangled in fishing gear, and for fishing gear configuration in order to reduce and mitigate interactions between sea turtles and vessels in the pelagic fisheries of the Western Pacific Region. 70 FR 47777 (8/15/05).

  • NMFS proposed rules for 2005 and 2006 to prevent overfishing of eastern tropical Pacific Ocean tuna stocks, consistent with recommendations by the Inter-American Tropical Tuna Commission. 70 FR 47774 (8/15/05).

  • NMFS issued revised guidelines for the implementation of community-based coastal and marine habitat restoration programs. 70 FR 49578 (8/24/05).

  • NMFS issued an incidental harassment authorization to the University of Fairbanks, Alaska, to take marine mammals while conducting a marine seismic survey across the Arctic Ocean from northern Alaska to Svalbard. 70 FR 47792 (8/15/05).

  • NMFS issued two one-year letters of authorization to take marine mammals by harassment incidental to the U.S. Navy's use of towed low frequency active sonar arrays. 70 FR 49914 (8/25/05).

  • NMFS issued a permit for the incidental taking of marine mammals by harassment to Eglin Air Force Base in Florida. 70 FR 48675 (8/19/05).

  • NMFS proposed to issue a one-year permit to the U.S. Army Corps of Engineers, Jacksonville District, for the incidental taking by harassment of bottlenose dolphins as a result of expanding and deepening the Port Sutton navigation channel in Tampa Harbor, Florida. 70 FR 48541 (8/18/05).

DOJ NOTICES OF SETTLEMENT:



  • United States v. Wellsford, No. 05-4158 (E.D. Pa. Aug. 4, 2005). A settling CERCLA defendant must pay $20,000 to resolve claims related to the Recticon/Allied Steel Superfund site in Parkerford, Pennsylvania, must exercise due care to avoid exacerbating existing contamination, and must file deed restrictions. 70 FR 48590 (8/18/05).

  • United States v. Del Monte Fresh Produce (Hawaii), Inc., No. 05-0049 5 (D. Haw. Aug. 4, 2005). A settling CERCLA defendant must fund and perform response actions and reimburse the United States for its costs to resolve claims related to the Del Monte Fresh Produce (Hawaii), Inc., Superfund site in Oahu, Hawaii. 70 FR 48590 (8/18/05).

  • United States v. Degussa Initiators, LLC, No. 1:05CV1915 (N.D. Ohio Aug. 3, 2005). A settling CWA defendant must pay a civil penalty of $345,200, must perform a supplemental environmental project valued at $27,500, and must maintain continuous compliance with effluent limits to resolve alleged violations of CWA §§307(d) and 308. 70 FR 48589 (8/18/05).

  • United States v. Atlantic Richfield Co., No. CV-89-39-BU-SEH (D. Mont. Aug. 2, 2005). Settling CERCLA defendants must implement EPA's cleanup plan, must reimburse past response costs, and must contribute toward the state of Montana's natural resource restoration plan to resolve claims related to the release and threatened release of hazardous substances from the Milltown Reservoir Sediments Operable Unit Superfund site in southwestern Montana. 70 FR 48589 (8/18/05).

  • United States v. Cosmed Group, Inc., No. 05353ML (D.R.I. Aug. 18, 2005). A settling CAA defendant must pay a $500,000 civil penalty and fund supplemental environmental projects in and around Camden, New Jersey, Lake County, Illinois, Dallas, Texas, and San Diego, California, at a cost of $1 million to settle claims relating to six of the defendant's current or former facilities. 70 FR 49950 (8/25/05).

  • United States v. Standard Detroit Paint Co., No. 04-71442 (E.D. Mich. Aug. 8, 2005). Settling CERCLA defendants must pay a total of approximately $289,000 in past U.S. response costs incurred at the Standard Detroit Paint Co. site in Detroit, Michigan; the defendant in possession of the site must also submit and comply with a hazardous substance management plan for the site. 70 FR 49951 (8/25/05).

  • United States v. Union Pacific Railroad Co., No. 2:05CV00650 BD (D. Utah Aug. 2, 2005). A settling CERCLA defendant must pay $270,690 in future response costs to be incurred at the Eureka Mills NPL site in Eureka, Utah, must undertake quarry operations to produce rock and construction material needed by EPA, and must implement EPA's remedy for the site; the total value of the defendant's work under this consent decree is estimated at over $4.3 million. 70 FR 49951 (8/25/05).

  • United States v. City & County of Denver, No. 02-cv-1341-EWN-MJW (D. Colo. Aug. 22, 2005). Settling CERCLA defendants must pay $13.9 million in past U.S. response costs incurred at the Lowry Landfill Superfund site in Arapahoe County, Colorado, and must perform the cleanup work as set forth in the consent decree. 70 FR 50406 (8/26/05).

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


THE CONGRESS

Congress is currently in recess but will reconvene September 6, 2005.


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


IN THE STATES

New State Development Highlights:



  • The Florida Department of Environmental Protection is developing a statewide invasive species management plan to coordinate the responsibilities of state agencies to manage and prevent biological invasions.

  • The Maine Board of Pesticides Control proposed a rule that requires pesticide applicators to employ integrated pest management technique and requires notification of pending pesticide applications to residents of rented space, employees of agencies, businesses, and institutions, patients in nursing homes and long-term care facilities, and parents or guardians of children in licensed child care facilities and nursery schools.

  • The Maine Department of Environmental Protection has amended its new motor vehicle emission standards that requires, as of September 4, 2005, automobile manufacturers to meet the zero emission vehicle sales requirements set forth in California Code of Regulations, Title 13, Section 1962.

  • The Oregon Department of Environmental Quality proposed to adopt recent revisions to the NESHAPs, new source performance standards, definition of volatile organic compounds, list of hazardous air pollutants, and two general permits to ensure that Oregon remains consistent with the federal requirements.

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

INDIAN STATE BANS PLASTIC BAGS



  • The Indian state of Maharashtra has decided to ban the sale and use of plastic bags, attributing its recent devastating floods to water outlets and drains clogged by bags. Retailers who use plastic bags will be fined, and third-time offenders could face imprisonment of up to three months. The ban will become effective after a 30-day comment period. See http://www.hindustantimes.com/news/181_1471047,000900040001.htm

AFRICAN FISHING INDUSTRY FACES CRISIS



  • Overfishing and lack of investment is threatening the future of Africa's fisheries. The fishing industry is vital to the continent, providing $3 billion of annual revenue from exports, a source of inexpensive protein for 200 million Africans, and employment for 10 million people. According to the research organization WorldFish Center, a 20% increase in fish farming will be necessary to maintain current consumption levels. Investment and fish population recovery plans to protect Africa's food security will be discussed at the international Fish For All summit in Nigeria. See http://news.bbc.co.uk/1/hi/business/4172280.stm

AD FOR TURTLE CONSERVATION SPARKS CONTROVERSY



  • Environmentalists' efforts to use sex appeal to discourage poaching of turtle eggs in Mexico have been denounced as promoting a sexist stereotype by the National Institute for Women, a government agency. The environmentalists planned a $30,000 campaign featuring provocative ads designed to stop men from eating turtle eggs as an aphrodisiac. The federal and local Mexican governments have withdrawn their support for the campaign since the women's institute voiced its opposition. See http://www.nytimes.com/2005/08/25/international/americas/25mexico.html

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


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