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Weekly Update Volume 35, Issue 3

01/31/2005

LITIGATION

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

NEPA, NATIONAL FORESTS, WINTER SPORTS:

A district court held that the U.S. Forest Service complied with NEPA and its implementing regulations when it issued EAs in its decision to reissue two special use permits allowing snowmobiling and helicopter skiing on the Okanogan National Forest in northern Washington. The Forest Service did not act arbitrarily in deciding not to evaluate the impacts of each project in a single document. In addition, the Forest Service adequately evaluated the cumulative effects of each proposed action, alone and together. Consequently, the Forest Service's and intervenors' motions for summary judgment were granted, and the environmental groups' motion for summary judgment was denied. Methow Forest Watch v. United States Forest Service, No. 04-114-KI, 35 ELR 20019 (D. Or. Jan. 20, 2005) (King, J.) (9 pp.).

LAND USE, GRAZING MANAGEMENT AREAS, APA:

A district court granted summary judgment against environmental groups on their claim that BLM violated the APA by failing to perform assessment, evaluation, and determination duties within the Jordan Resource Area in Oregon. The groups failed to allege a discrete agency action that BLM failed to take in regard to seven of eight geographic management areas in the Jordan Resource Area. The court, however, deferred ruling on cross-motions for summary judgment in regard to the groups' second claim for relief that BLM's failure to implement a final revised grazing management strategy for the Louse Canyon geographic management area and instead employing an interim strategy for at least three grazing seasons, after having made an initial determination that the area failed to meet applicable standards, is arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law. Oregon Natural Desert Ass'n v. Taylor, No. 04-334-KI, 35 ELR 20018 (D. Or. Jan. 18, 2005) (King, J.) (6 pp.).

CERCLA, LIABILITY, EXPERT TESTIMONY:

A district court granted in part and denied in part a company's motion in limine to exclude an environmental group's proffered expert testimony in a CERCLA case. At issue in the trial is the group's claim that the company was a "direct operator" of the pollution-causing facilities or a "direct arranger" of the disposal of wastes from those facilities. Only those experts whose testimony concerns the determination of operator and arranger liability is relevant. Evidence of the corporate relationship between the company and the facilities is relevant to provide important factual background in this matter. All other testimony concerning what the law is and how the law should be applied to the facts of this case is irrelevant and is excluded. Pinal Creek Group v. Newmont Mining Corp., No. CV911764PHXDAELOA, 35 ELR 20021 (D. Ariz. Jan. 24, 2005) (Anderson, J.) (7 pp.).

CERCLA, EXPERT TESTIMONY, PREEMPTION:

A district court granted an oil company's motion to strike a report submitted by individuals' expert witness and denied the individuals' motions for reconsideration of the court's previous summary judgment decision concerning liability for response costs the company incurred cleaning up environmental contamination at a gas station in Puerto Rico. Given the failure to comply with the requirements of Fed. R. Civ. P. Rule 26(a)(2)(B), and because of the witness' attempt to extort from the company an exorbitant amount in exchange for his testimony at the deposition, the court granted the company's motion to strike the expert report. Additionally, the individuals are precluded from calling the expert to testify at trial. In addition, the individuals' motions for the court to reconsider or correct its previous decision lack merit. The only issue not addressed below concerned a state immunity statute, and the court determined that the law was preempted by CERCLA. Esso Standard Oil Co. v. Pérez, No. Civ.01-2012 SEC JA, 35 ELR 20020 (D.P.R. Jan. 20, 2005) (Arenas, J.) (9 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 informed the public that it found that the motor vehicle emissions budgets for volatile organic compounds and nitrogen oxides in the Missouri portion of the St. Louis area adequate for conformity purposes. 70 FR 3702 (1/26/05).

FISHERIES:

  • NOAA issued an amendment to permit no. 881-1710-02 so that Alaska SeaLife Center can conduct research on harbor seals. 70 FR 3365 (1/24/05).
  • NOAA issued a permit to the Wildlife Conservation Society to obtain and import/export marine mammal specimens for purposes of scientific research. 70 FR 3366 (1/24/05).

HAZARDOUS AND SOLID WASTES:

  • EPA proposed to enter into a de minimis settlement, pursuant to CERCLA §122(g)(4), that is intended to resolve the liability of Technitrol, Inc., for response costs incurred and to be incurred at the Malvern TCE Superfund site in Pennsylvania. 70 FR 3706 (1/26/05).
  • EPA proposed to extend the expiration date of the hazardous waste management systems final rule for New York public utilities since the requirements outlined in this rule do not become effective until New York adopts equivalent requirements through state rulemaking and receives EPA authorization for the state requirements. 70 FR 3504 (1/25/05).

NATURAL RESOURCES:

  • BLM rejected and published its reasons for rejecting the Governor of New Mexico's appeal regarding the Resource Management Plan Amendment for Fluid Minerals Leasing and Development in Sierra and Otero Counties, New Mexico. 70 FR 3557 (1/25/05).

PESTICIDES:

  • EPA announced and requested public comment on its risk assessments and related technical support documents for the pesticide fluazifop-P-butyl, which is a selective, post-emergent herbicide registered for the control of annual and perennial grass weeds. 70 FR 3704 (1/26/05).

TOXIC SUBSTANCES:

  • EPA proposed to amend the TSCA §8(a) inventory update reporting regulations by extending the reporting cycle, modifying the timing of the submission period, and further clarifying the new partial exemption for chemicals of low interest. 70 FR 3666 (1/26/05).

WILDLIFE:

  • FWS announced the availability of and requested comments on the draft recovery plan for the Barton Springs salamander; FWS also announced a five-year status review of the salamander ensuring that the classification of the species as threatened or endangered is accurate. 70 FR 3550 (1/25/05).
  • FWS designated approximately 84 acres of critical habitat, located in the Central Valley floor of Kern County, California, for the Buena Vista Lake shrew. 70 FR 3461 (1/24/05).

DOJ NOTICES OF SETTLEMENT:

  • United States v. U.S. Energy Partners, LLC, No. 05-1011-JTM (D. Kan. Jan. 12, 2005). A settling CAA defendant must pay $30,000 and perform injunctive relief by installing control technology to address CAA violations for its failure to obtain permits and install best achievable control technology as required by the regulations for the prevention of significant deterioration at the defendant's ethanol plant. 70 FR 3730 (1/26/05).
  • United States v. Reichhold Limited, No. 5:03-CV-0077-3 (D. Ga. Jan. 3, 2005). Settling CERCLA defendants must pay $5,000,000 in four annual installments of $1,250,000 each, plus interest from the first payment due; funds will be place into a Superfund special account for the site. 70 FR 3730 (1/26/05).
  • Unites States v. N.P. Industrial Center, No. 00-CV-5119 (E.D. Pa. Jan. 5, 2005). Settling CERCLA defendants must make a cash payment to the United States of $35,000 plus interest to address their liability for past response costs incurred by the United States. 70 FR 3730 (1/26/05).
  • United States v. Chevron U.S.A. Inc., No. 1:05CV0021 (E.D. Tex. Jan. 13, 2005). Settling CERCLA, CWA, and Oil Pollution Act defendants must construct and plan an 85-acre estuarine marsh, a 30-acre coastal wet prairie, and some water control structures near Port Arthur, Texas, and pay approximately $150,000 in past assessment costs incurred by the federal trustees, additional future costs federal trustees expect to incur, and costs incurred by state trustees. 70 FR 3729 (1/26/05).
  • United States v. AT&T Corp., No. 2004-174 (D.V.I. Dec. 17, 2004). Settling CWA defendants must pay a civil penalty of $450,000, ensure that the violation area is restored, grant a conservation easement over the beach area to an environmental organization, and abide by certain corporate compliance procedures to help avoid future violations. 70 FR 3387 (1/24/05).
  • In re Outboard Marine Corp., No. 00-37405 (Bankr. N.D. Ill. Jan. 12, 2005). Settling CERCLA and RCRA defendants must pay $2,600,000 towards work relating to a groundwater plume from Plant 2 of the OMC Waukegan Facility, and EPA shall also be allowed general unsecured claims of $243,000 for the HOD Landfill Facility, $100,000 for the Marina Cliffs/Northwestern Barrel Facility, $45,000 for the Aqua-Tech Environmental Facility, and $1,612,000 for Plant 2 and the Waukegan Harbor Facility. 70 FR 3387 (1/24/05).

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

THE CONGRESS

BILLS INTRODUCED:

  • S. 41(Nelson, D-Neb.) (SDWA), would amend the SDWA to exempt nonprofit small public water systems from certain drinking water standards relating to naturally occurring contaminants. 151 Cong. Rec. S143 (daily ed. Jan. 24, 2005). The bill was referred to the Committee on Environment and Public Works.
  • S. 47(Bingaman, D-N.M.) (land exchange), would provide for the exchange of certain federal land in the Santa Fe National Forest and certain non-federal land in the Pecos National Historical Park in the state of New Mexico. 151 Cong. Rec. S143 (daily ed. Jan. 24, 2005). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 48(Lautenberg, D-N.J.) (New Jersey Coastal Heritage Trail Route), would reauthorize appropriations for the New Jersey Coastal Heritage Trail Route. 151 Cong. Rec. S143 (daily ed. Jan. 24, 2005). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 49(Stevens, R-Ark.) (Federal-State Floodplain and Erosion Mitigation Commission for Alaska), would establish a joint Federal-State Floodplain and Erosion Mitigation Commission for the state of Alaska. 151 Cong. Rec. S143 (daily ed. Jan. 24, 2005). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 50(Inouye, D-Haw.) (tsunami detection), would authorize and strengthen NOAA's tsunami detection, forecast, warning, and mitigation program. 151 Cong. Rec. S143 (daily ed. Jan. 24, 2005). The bill was referred to the Committee on Commerce, Science, and Transportation.
  • S. 52(Hatch, R-Utah) (land conveyance), would direct the Secretary of the Interior to convey a parcel of real property to Beaver County, Utah. 151 Cong. Rec. S143 (daily ed. Jan. 24, 2005). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 53(Hatch, R-Utah) (Mineral Leasing Act), would amend the Mineral Leasing Act to authorize the Secretary of the Interior to issue separately, for the same area, a lease for tar sand and a lease for oil and gas. 151 Cong. Rec. S143 (daily ed. Jan. 24, 2005). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 54(Hatch, R-Utah) (National Trails System Act), would amend the National Trails System Act to require the Secretary of the Interior to update the feasibility and suitability studies of four national historic trails. 151 Cong. Rec. S143 (daily ed. Jan. 24, 2005). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 55(Allard, R-Colo.) (Rocky Mountain National Park), would adjust the boundary of Rocky Mountain National Park in the state of Colorado. 151 Cong. Rec. S143 (daily ed. Jan. 24, 2005). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 56(Allard, R-Colo.) (Rio Grande Natural Area), would establish the Rio Grande Natural Area in the state of Colorado. 151 Cong. Rec. S143 (daily ed. Jan. 24, 2005). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 57(Allard, R-Colo.) (Sand Creek Massacre National Historic Site Establishment Act of 2000), would further the purposes of the Sand Creek Massacre National Historic Site Establishment Act of 2000. 151 Cong. Rec. S143 (daily ed. Jan. 24, 2005). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 63(Bingaman, D-N.M.) (Northern Rio Grande National Heritage Area), would establish the Northern Rio Grande National Heritage Area in the state of New Mexico. 151 Cong. Rec. S143 (daily ed. Jan. 24, 2005). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 64(Bingaman, D-N.M.) (decommissioning pilot program), would direct the Secretary of Energy to establish a decommissioning pilot program to decommission and decontaminate the sodium-cooled fast breeder experimental test-site reactor located in northwest Arkansas. 151 Cong. Rec. S143 (daily ed. Jan. 24, 2005). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 73(Cantwell, D-Wash.) (bovine spongiform encephalopathy), would promote food safety and to protect the animal feed supply from bovine spongiform encephalopathy. 151 Cong. Rec. S143 (daily ed. Jan. 24, 2005). The bill was referred to the Committee on Agriculture, Nutrition, and Forestry.
  • S. 74(Cantwell, D-Wash.) (White Salmon River), would designate a portion of the White Salmon River as a component of the National Wild and Scenic Rivers System. 151 Cong. Rec. S144 (daily ed. Jan. 24, 2005). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 95(Lautenberg, D-N.J.) (federal-aid highways), would amend titles 23 and 49, United States Code, concerning length and weight limitations for vehicles operating on federal-aid highways. 151 Cong. Rec. S144 (daily ed. Jan. 24, 2005). The bill was referred to the Committee on Environment and Public Works
  • S. 99(Enzi, R-Wyo.) (water storage), would authorize the Secretary of the Interior to contract with the city of Cheyenne, Wyoming, for the storage of the city's water in the Kendrick Project, Wyoming. 151 Cong. Rec. S144 (daily ed. Jan. 24, 2005). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 100(Allard, R-Colo.) (land exchange), would authorize the exchange of certain land in the state of Colorado. 151 Cong. Rec. S144 (daily ed. Jan. 24, 2005). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 113(Feinstein, D-Cal.) (tribal land), would modify the date as of which certain tribal land of the Lytton Rancheria of California is deemed to be held in trust. 151 Cong. Rec. S144 (daily ed. Jan. 24, 2005). The bill was referred to the Committee on Indian Affairs.
  • S. 126(Lincoln, D-Ark.) (Animal and Plant Health Inspection Service), would improve the administration of the Animal and Plant Health Inspection Service of the Department of Agriculture. 151 Cong. Rec. S145 (daily ed. Jan. 24, 2005). The bill was referred to the Committee on Environment and Public Works.
  • S. 128(Boxer, D-Cal.) (wilderness lands), would designate certain public land in Del Norte, Humboldt, Lake, Mendocino, and Napa Counties in the state of California as wilderness and designate certain segments of the Black Butte River in Mendocino County, California, as a wild or scenic river. 151 Cong. Rec. S145 (daily ed. Jan. 24, 2005). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 131(Inhofe, R-Okla.) (CAA), would amend the CAA to reduce air pollution through expansion of cap-and-trade programs and provide an alternative regulatory classification for units subject to the cap-and-trade program. 151 Cong. Rec. S145 (daily ed. Jan. 24, 2005). The bill was referred to the Committee on Environment and Public Works.
  • S. 134(Feinstein, D-Cal.) (Redwood National Park), would adjust the boundary of Redwood National Park in the state of California. 151 Cong. Rec. S145 (daily ed. Jan. 24, 2005). The bill was referred to the Committee on Energy and Natural Resources.

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

IN THE STATES

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

INTERNATIONAL

PRIOR INFORMED CONSENT:

GREENHOUSE GAS PROTOCOL FORUM:

SUSTAINABLE DEVELOPMENT SUMMIT 2005:

  • On February 3-5, 2005, the Delhi Sustainable Development Summit 2005 will revolve around the theme Beyond Universal Goals: Steering Development Towards Global Sustainability. It will treat as a threshold the Millennium Development Goals adopted by the United Nations in 2000 and reach beyond them. The summit will take place in New Delhi, India. See http://www.teriin.org/dsds/2005/programme.htm

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

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