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Weekly Update Volume 35, Issue 7

03/07/2005

LITIGATION

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

CWA, CONFINED ANIMAL FEEDING OPERATIONS (CAFOs):

The Second Circuit held that certain aspects of EPA's CAFO rule violate the CWA or are otherwise arbitrary and capricious under the APA. The court vacated provisions that allow permitting authorities to issue permits without reviewing the terms of the nutrient management plans; allow permitting authorities to issue permits that do not include the terms of the nutrient management plans and that do not provide for adequate public participation; and require CAFOs to apply for NPDES permits or otherwise demonstrate that they have no potential to discharge. Other aspects of the rule were remanded so that EPA can definitively select a "best conventional pollutant control technology" standard for pathogen reduction and clarify the statutory and evidentiary basis for allowing CAFOs for swine, poultry, and veal calves to comply with the new source performance standard. Additionally, EPA must clarify the statutory and evidentiary basis for failing to promulgate water quality based effluent limitations for discharges other than agricultural stormwater discharges and must clarify whether states may develop water quality based effluent limitations on their own. All other aspects of the rule were upheld. Waterkeeper Alliance, Inc. v. United States Environmental Protection Agency, Nos. 03-4470 (L) et al., 35 ELR 20049 (2d Cir. Feb. 28, 2005) (65 pp.).

ASBESTOS, OSH ACT:

The Fifth Circuit upheld the Occupational Safety & Health Review Commission's final order against an individual, who allowed workers to be exposed to asbestos during a building renovation project, for various violations of the OSH Act and associated safety and health regulations. The individual's illegal asbestos abatement activities at the worksite affected interstate commerce, thereby supporting the OSH Act's jurisdictional reach over the individual as an employer. In addition, substantial evidence supported the Commission's findings that the individual's corporations were not alter egos of the individual to support reverse corporate piercing. Further, the Commission's legal determination that the individual's lack of willfulness under the OSH Act's general duty clause was neither arbitrary, capricious, nor an abuse of discretion, and the Commission properly assessed citations against the individual for training and respirator violations on a per-instance rather than per-employee basis. Last, the Commission did not abuse its discretion in assessing the maximum penalty amounts. Chao v. Occupational Safety & Health Review Commission, No. 03-60958, 35 ELR 20050 (5th Cir. Feb. 21, 2005) (53 pp.).

NEPA, NATIONAL FOREST MANAGEMENT ACT (NFMA), RES JUDICATA:

The Ninth Circuit vacated its earlier decision in which it affirmed a lower court's dismissal of an environmental group's NEPA and NFMA challenges to U.S. timber sales on res judicata grounds, and reversed and remanded the case for full consideration of the preclusion question. Pertinent facts necessary to make a privity determination were not investigated by the district court. The vacated decision can be found at 34 ELR 20094. Headwaters Inc. v. U.S. Forest Service, No. 01-35898, 35 ELR 20051 (9th Cir. Feb. 23, 2005) (16 pp.).

LAND USE, REDEVELOPMENT PLANS, BLIGHTED AREAS:

A California appellate court affirmed a lower court decision invalidating an amendment to a redevelopment plan due to insufficient evidence of blight. The amendment was proposed 14 years after the initial plan was adopted. The trial court properly found that the requirement of a blight finding to support the amendment was indeed warranted. And although California Community Redevelopment Law §33368 gives preclusive effect to an original blight finding to establish a redevelopment plan, it does not bar judicial review of blight findings attacking subsequent amendments to redevelopment plans. Boelts v. City of Lake Forest, No. G033549, 35 ELR 20048 (Cal. App. 4th Dist. Feb. 24, 2005) (22 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, under a proposed consent decree, must sign a notice of proposed rulemaking no later than August 1, 2005, and a notice of final rulemaking no later than March 15, 2006, in connection with complaints filed against it by North Carolina and Environmental Defense in which they seek to compel the Agency to take action on a petition submitted to EPA under CAA §126. 70 FR 10089 (3/2/05).
  • EPA found the Second Portland Area Carbon Monoxide Maintenance Plan adequate for transportation conformity purposes; the plan affects future transportation conformity determinations prepared, reviewed, and approved by the Portland Metro, Oregon Department of Transportation, Federal Highway Administration, and the Federal Transit Administration. 70 FR 10614 (3/4/05).
  • EPA approved a revision to Maine's plan for controlling air pollution that changes state regulations controlling the emission of total reduced sulfur from existing kraft paper mills by making April 17, 2007, the compliance date for brownstock washers. 70 FR 9875 (3/1/05).
  • EPA proposed to approve revisions to the particulate matter and sulfur dioxide emission requirements as an amendment to Indiana's SIP for Pfizer, Inc., which operates a medicinal chemical manufacturing facility in Vigo County, Indiana. 70 FR 9575 (2/28/05).

FISHERIES:

  • NMFS determined that an application for exempted fishing permits (EFPs) in connection with the Northeast Multispecies Fishery Management Plan contains all of the required information and warrants further consideration; it proposed that the EFPs conduct experimental fishing to determine if hook-and-line gear could be used to target haddock with minimal bycatch of cod in order to establish potential future special access programs. 70 FR 10075 (3/2/05).

HAZARDOUS AND SOLID WASTES:

  • EPA established new requirements that revise the Uniform Hazardous Waste Manifest regulations by standardizing the content and appearance of the manifest and continuation sheet, making the forms available from a greater number of sources, and adopting new procedures for tracking certain types of waste shipments with the manifest. 70 FR 10825 (3/4/05).
  • EPA proposed to enter into an administrative order on consent in connection with the Andela and River Bend Superfund sites in Warwick Township, Pennsylvania. 70 FR 10636 (3/4/05).
  • EPA approved delegation of the federal plan for commercial and industrial solid waste incinerator units to the Pennsylvania Department of Environmental Protection and the Allegheny County Health Department. 70 FR 10493 (3/4/05).

PESTICIDES:

  • EPA announced the availability of its revised risk assessments for the fungicide pentachloronitrobenzene and solicited public comment on risk reduction options for the fungicide. 70 FR 10092 (3/2/05).

TOXIC SUBSTANCES:

  • EPA announced the 2005 Integrated Risk Information System agenda and requested scientific information on health effects that may result from exposure to the chemical substances. 70 FR 10620 (3/4/05).
  • EPA proposed a significant new use rule under TSCA §5(a)(2) requiring persons to notify EPA at least 90 days before commencing the manufacture, import, or processing of more than 10,000 pounds per year of 2-ethoxyethanol, 2-ethoxyethanol acetate, 2-methoxyethanol, or 2 methoxyethanol acetate since these chemicals may be hazardous to human health. 70 FR 9909 (3/1/05).

WATER QUALITY:

  • EPA finalized its proposal to undesignate four existing ocean dredged material disposal sites located off of the mouth of the Columbia River near the states of Oregon and Washington and to designate two new sites, the Shallow Water site and the Deep Water site, which are needed for long-term use by Columbia River navigation projects. 70 FR 10057 (3/2/05).
  • EPA determined revisions to Louisiana's public water system supervision program concerning its variance and exemption regulation, disinfectants/disinfection byproducts regulation, and the lead and copper minor revisions regulation are no less stringent than the corresponding federal regulations and intends to approve the revisions. 70 FR 10093 (3/2/05).

WILDLIFE:

  • FWS implemented a special rule under ESA §4(d) to exempt the import and export of and foreign and interstate commerce in certain products of beluga sturgeon, known to occur only in the Caspian and Black Seas and rivers connected to these basins, from threatened species permits normally required. 70 FR 10507 (3/4/05).

DOJ NOTICES OF SETTLEMENT:

  • United States v. Adam Bros. Farming Inc., No. 00-cv-7409 CAS (C.D. Cal. Feb. 25, 2005). A settling CWA defendant that violated CWA §§301 and 309 must restore portions of the impacted area, pay for off-site mitigation, and pay a civil penalty. 70 FR 10411 (3/3/05).
  • United States v. FTR, LP, No. 04-CV-930 (D.S.C. Feb. 11, 2005). Settling CERCLA defendants must make a collective payment of $3,536,394.82 to resolve their liability for EPA costs incurred in connection with the Carolina Steel Drum Superfund site in Rock Hill, South Carolina. 70 FR 10411 (3/3/05).

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

THE CONGRESS

COMMITTEE ACTION:

  • S. 47 (federal land), was reported by the Committee on Energy and Natural Resources. S. Rep. No. 109-7, 151 Cong. Rec. S1794 (daily ed. Feb. 28, 2005). The bill would provide for the exchange of certain federal land in the Santa Fe National Forest and certain nonfederal land in the Pecos National Historical Park in the state of New Mexico.
  • S. 74 (National Wilds and Scenic Rivers System), was reported by the Committee on Energy and Natural Resources. S. Rep. No. 109-8, 151 Cong. Rec. S1794 (daily ed. Feb. 28, 2005). The bill would designate a portion of the White Salmon River as a component of the National Wilds and Scenic Rivers System.
  • S. 153 (Rim of the Valley Corridor, California), was reported by the Committee on Energy and Natural Resources. S. Rep. No. 109-10, 151 Cong. Rec. S1794 (daily ed. Feb. 28, 2005). The bill would direct the Secretary of the Interior to conduct a resource study of the Rim of the Valley Corridor in the state of California to evaluate alternatives for protecting the resources of the Corridor.
  • S. 156 (national wilderness), was reported by the Committee on Energy and Natural Resources. S. Rep. No. 109-13, 151 Cong. Rec. S1794 (daily ed. Feb. 28, 2005). The bill would designate the Ojito Wilderness Study Area as wilderness, to take certain land into trust for the Pueblo of Zia.
  • S. 212 (Valles Caldera Preservation Act), was reported by the Committee on Energy and Natural Resources. S. Rep. No. 109-10, 151 Cong. Rec. S1794 (daily ed. Feb. 28, 2005). The bill would amend the Valles Caldera Preservation Act to improve the preservation of the Valles Caldera.
  • S. 225 (avalanches), was reported by the Committee on Energy and Natural Resources. S. Rep. No. 109-11, 151 Cong. Rec. S1794 (daily ed. Feb. 28, 2005). The bill would direct the Secretary of the Interior to undertake a program to reduce the risks from and mitigate the effects of avalanches on recreational users of public land.
  • S. 254 (land conveyance), was reported by the Committee on Energy and Natural Resources. S. Rep. No. 109-12, 151 Cong. Rec. S1794 (daily ed. Feb. 28, 2005). The bill would direct the Secretary of the Interior to convey certain land to Lander County, Nevada, and the Secretary of the Interior to convey certain land to Eureka County, Nevada, for continued use as cemeteries.

BILLS INTRODUCED:

  • S. 476 (Hatch, R-Utah) (land exchange), would authorize the Boy Scouts of America to exchange certain land in the state of Utah acquired under the Recreation and Public Purposes Act. 151 Cong. Rec. S1866-7 (daily ed. Mar. 1, 2005). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 482 (Conrad, D-N.D.) (environmental assistance), would provide environmental assistance to nonfederal interests in the state of North Dakota. 151 Cong. Rec. S1867 (daily ed. Mar. 1, 2005). The bill was referred to the Committee on Environment and Public Works.
  • S. 485 (Craig, R-Idaho) (National Geologic Mapping Act of 1992), would reauthorize and amend the National Geologic Mapping Act of 1992. 151 Cong. Rec. S1867 (daily ed. Mar. 1, 2005). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 492 (Frist, R-Tenn.) (water and sanitation; developing countries), would make access to safe water and sanitation for developing countries a specific policy objective of the United States foreign assistance programs. 151 Cong. Rec. S1930 (daily ed. Mar. 2, 2005). The bill was referred to the Committee on Foreign Relations.
  • S. 505 (Kyl, R-Ariz.) (boundary adjustment), would amend the Yuma Crossing National Heritage Area Act of 2000 to adjust the boundary of the Yuma Crossing National Heritage Area. 151 Cong. Rec. S2003 (daily ed. Mar. 3, 2005). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 507 (DeWine, R-Ohio) (National Invasive Species Council), would establish the National Invasive Species Council. 151 Cong. Rec. S2003 (daily ed. Mar. 3, 2005). The bill was referred to the Committee on Environment and Public Works.
  • S. 508 (DeWine, R-Ohio) (Great Lakes), would provide for the environmental restoration of the Great Lakes. 151 Cong. Rec. S2003 (daily ed. Mar. 3, 2005). The bill was referred to the Committee on Environment and Public Works.
  • S. 510 (Wyden, D-Or.) (electronic waste), would reduce and eliminate electronic waste through recycling. 151 Cong. Rec. S2004 (daily ed. Mar. 3, 2005). The bill was referred to the Committee on Finance.
  • S. 514 (Byrd, D-W.Va.) (federal highway system), would complete construction of the 13-state Appalachian development highway system. 151 Cong. Rec. S2004 (daily ed. Mar. 3, 2005). The bill was referred to the Committee on Environment and Public Works.
  • S. 519 (Hutchison, R-Tex.) (Lower Rio Grande Valley Water Resources Conservation and Improvement Act of 2000), would amend the Lower Rio Grande Valley Water Resources Conservation and Improvement Act of 2000 to authorize additional projects and activities under that Act. 151 Cong. Rec. S2004 (daily ed. Mar. 3, 2005). The bill was referred to the Committee on Energy and Natural Resources.
  • H.R. 1007 (Calvert, R-Cal.) (land conveyance), would provide for the conveyance of a small parcel of Natural Resources Conservation Service property in Riverside, California. 151 Cong. Rec. H846 (daily ed. Mar. 1, 2005). The bill was referred to the Committee on Agriculture.
  • H.R. 1008 (Calvert, R-Cal.) (Riverside-Corona Feeder), would authorize the Secretary of the Interior to participate in the design and construction of the Riverside-Corona Feeder in cooperation with the Western Municipal Water District of Riverside, California. 151 Cong. Rec. H846 (daily ed. Mar. 1, 2005). The bill was referred to the Committee on Resources.
  • H.R. 1019 (Renzi, R- Ariz.) (national momument), would modify the boundary of the Casa Grande Ruins National Monument. 151 Cong. Rec. H846 (daily ed. Mar. 1, 2005). The bill was referred to the Committee on Resources.
  • H.R. 1044 (Capito, R-W.Va.) (coal), would amend title 23, United States Code, to permit the state of West Virginia to allow the operation of certain vehicles for the hauling of coal and coal byproducts on Interstate Route 77 in Kanawha County, West Virginia. 151 Cong. Rec. H940 (daily ed. Mar. 2, 2005). The bill was referred to the Committee on Transportation and Infrastructure.
  • H.R. 1046 (Cubin, 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. H940 (daily ed. Mar. 2, 2005). The bill was referred to the Committee on Resources.
  • H.R. 1086 (Burgess, R-Tex.) (highways), would require the Secretary of Transportation to develop and implement an environmental review process for safety emergency highway projects. 151 Cong. Rec. H981 (daily ed. Mar. 3, 2005). The bill was referred to the Committee on Transportation and Infrastructure, and to the Committee on Resources.
  • H.R. 1087 (Butterfield, D-N.C.) (heritage area), would direct the Secretary of the Interior to conduct a study of the suitability and feasibility of establishing the Northeastern North Carolina Heritage Area in North Carolina. 151 Cong. Rec. H981 (daily ed. Mar. 3, 2005). The bill was referred to the Committee on Resources.
  • H.R. 1096 (Garrett, R-N.J.) (national historical park), would establish the Thomas Edison National Historical Park in the state of New Jersey as the successor to the Edison National Historic Site. 151 Cong. Rec. H982 (daily ed. Mar. 3, 2005). The bill was referred to the Committee on Resources.
  • H.R. 1101 (Hunter, R-Cal.) (national wildlife refuge), would revoke a public land order concerning certain lands erroneously included in the Cibola National Wildlife Refuge, California. 151 Cong. Rec. H982 (daily ed. Mar. 3, 2005). The bill was referred to the Committee on Resources.
  • H.R. 1103 (Johnson, R-Conn.) (fuel economy), would require accurate fuel economy testing procedures. 151 Cong. Rec. H982 (daily ed. Mar. 3, 2005). The bill was referred to the Committee on Energy and Commerce.
  • H.R. 1105 (Kelly, R-N.J.) (National Dam Safety Program Act), would amend the National Dam Safety Program Act to establish a program to provide grant assistance to states for the rehabilitation and repair of deficient dams. 151 Cong. Rec. H982 (daily ed. Mar. 3, 2005). The bill was referred to the Committee on Transportation and Infrastructure.
  • H.R. 1124 (Souder, R-Ind.) (national parks), would eliminate the annual operating deficit and maintenance backlog in the national parks. 151 Cong. Rec. H983 (daily ed. Mar. 3, 2005). The bill was referred to the Committee on Resources, and to the Committee on Ways and Means.
  • H.R. 1126 (Stupak, D-Mich.) (CWA), would amend the CWA to prohibit a publicly owned treatment works from diverting flows to bypass any portion of its treatment facility. 151 Cong. Rec. H983 (daily ed. Mar. 3, 2005). The bill was referred to the Committee on Transportation and Infrastructure.
  • H.R. 1127 (Terry, R-Neb.) (renewable energy), would reauthorize the renewable energy production incentive and to provide that a qualified renewable energy facility shall not be assigned a priority for eligibility or allocation of appropriated funds on the basis of the energy source used at such facility. 151 Cong. Rec. H983 (daily ed. Mar. 3, 2005). The bill was referred to the Committee on Energy and Commerce.
  • H.R. 1129 (Udall, D-Colo.) (land exchange), would authorize the exchange of certain land in the state of Colorado. 151 Cong. Rec. H983 (daily ed. Mar. 3, 2005). The bill was referred to the Committee on Resources.

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

CONAMA MINING ENERGY EFFICIENCY CONFERENCE:

  • On March 14, 2005, in Antofagasta, Chile, CONAMA (the National Environmental Council) will host a conference on "Energy Efficiency in the Mining Sector--Opportunities in the Carbon Market." The program will be held in Spanish. See http://www.ieta.org/ieta/www/pages/getfile.php?docID=791

ENGLAND TO REWARD "GREEN" FARMERS:

U.N. COMMITTEE ON FISHERIES MEETING:

  • The Food and Agriculture Organization of the United Nations will hold the 26th session of its Committee on Fisheries on March 7-11, 2005 in Rome, Italy. The conference title is "Rehabilitation of the Fishing Communities and the Fisheries and Aquaculture Sectors affected by the tsunami in the Indian Ocean." See ftp://ftp.fao.org/FI/DOCUMENT/COFI/COFI_26/default.htm

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

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