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Weekly Update Volume 36, Issue 33

11/20/2006

LITIGATION

NEPA, FLPMA, NATIVE AMERICANS:

The Ninth Circuit upheld the dismissal of Native American tribes' claims against the U.S. government for authorizing the expansion of certain gold mines. Specifically, the tribes argued that the government violated its obligation to protect tribal trust resources--primarily water rights--by authorizing the creation or expansion of two cyanide heap-leach gold mines located upriver from the tribes' reservation. But because none of the statutes or treaties cited by the tribes imposed a specific duty on the government to manage non-tribal resources for their benefit, the tribes did not have a common law claim for breach of trust. Consequently, the tribes had to rely on the APA for a private right of action. But the tribes' NEPA and FLPMA claims, subject to the APA, were either barred by statute of limitation, failed to present a "final agency action," or did not involve a controversy for which the tribes had standing to pursue. The lower court, therefore, properly dismissed their claims. Gros Ventre Tribe v. United States, No. 04-36167, 36 ELR 20230 (9th Cir. Nov. 13, 2006) (24 pp.).

FEDERAL TORT CLAIMS ACT, CWA, RCRA:

The First Circuit dismissed individuals' Federal Tort Claims Act (FTCA) suit against the U.S. military for personal injury and property damage resulting from the U.S. Navy's operation of a training facility on Vieques Island, Puerto Rico. It is undisputed that the discretionary function exception generally precludes FTCA claims based on the Navy’s operation of the training facility. Moreover, the Navy did not violate any federal statutes in a way that would render the discretionary function exception inapplicable: the Navy had a valid NPDES permit prior to conducting ship-to-ship and ship-to-shore live fire exercises; allowing the recovery of damages in a FTCA suit based on the violation of a mandatory RCRA permitting requirement would undermine the intent of Congress to preclude compensatory damages awards for RCRA violations; and the Noise Control Act does not apply to the Navy's live-fire exercises. The court, therefore, lacked subject matter jurisdiction. Abreu v. Rumsfeld, No. 05-1889, 36 ELR 20231 (1st Cir. Nov. 14, 2006) (27 pp.).

CALIFORNIA ENVIRONMENTAL QUALITY ACT, ENVIRONMENTAL IMPACT REPORT:

A California appellate court reversed a lower court decision dismissing a citizen groups' petition for writ of mandate challenging a city's approval of a shopping center. The group claimed that the city's certification of the final environmental impact report and its approval of a use permit for the shopping center violated the California Environmental Quality Act. The lower court dismissed the petition because the group failed to file a notice of appeal of the planning commission's decision to the city council. However, a representative of the group appeared and objected to the city's proposed actions at each of the hearings before the planning commission and city council. Hence, the group has exhausted its administrative remedies and it has standing. Citizens for Open Government v. City of Lodi, No. C051419, 36 ELR 20228 (Cal. App. 3d Dist. Oct. 11, 2006) (22 pp.).

CALIFORNIA ENVIRONMENTAL QUALITY ACT, ENVIRONMENTAL IMPACT REPORT:

A California appellate court upheld a county's environmental impact report (EIR) for a proposed sand, gravel, and granite mine located on ranchland near a stream. An environmental group argued that the county violated the California Environmental Quality Act (CEQA) by failing to include and analyze a slightly revised project description submitted by the applicant after the final EIR was prepared and by inadequately analyzing water supply issues. But CEQA does not per se require that a revised project description be included in the final EIR itself, and substantial evidence in the record demonstrated that the changed phasing of aggregate mining and reclamation was not significant new information requiring additional analysis in, or recirculation of, the final EIR. Further, the record contains sufficient evidence to support the county's findings that there would be sufficient water to supply the project's needs through its mining life and its reclamation requirements. Western Placer Citizens for an Agricultural & Rural Environment v. County of Placer, No. C049364, 36 ELR 20229 (Cal. App. 3d Dist. Nov. 9, 2006) (34 pp.).

Copyright© 2006, Environmental Law Institute, Washington, D.C. All rights reserved.

THE FEDERAL AGENCIES

Note: Citations below are to the Federal Register (FR).

AIR:

  • EPA promulgated a facility-specific nitrogen oxides (NOx) standard for a steam generating unit that simultaneously combusts fossil fuel and chemical byproduct offgas at the Innovene USA LLC facility in Lima, Ohio. 71 FR 66681 (11/16/06).
  • EPA proposed a facility-specific NOx standard for a steam generating unit which simultaneously combusts fossil fuel and chemical by-product/waste at the Innovene USA facility located in Lima, Ohio; see above for direct final rule 71 FR 66720 (11/16/06).
  • SIP Approvals: Louisiana (low enhanced vehicle inspection/maintenance program) 71 FR 66113 (11/13/06). Virginia (sulfur dioxide emissions control) 71 FR 66679 (11/16/06).
  • SIP Proposal: Louisiana (low enhanced vehicle inspection/maintenance program; see above for direct final rule) 71 FR 66153 (11/13/06).

HAZARDOUS & SOLID WASTE:

  • EPA entered into a settlement under CERCLA for reimbursement of past response costs concerning the Industrial Metal Alloys Superfund site in Winston-Salem, North Carolina. 71 FR 66945 (11/17/06).
  • EPA authorized revisions to Louisiana's hazardous waste program under RCRA. 71 FR 66116 (11/13/06).
  • EPA proposed to authorize revisions to Louisiana's hazardous waste program under RCRA; see above for immediate final rule. 71 FR 66154 (11/13/06).

MINING:

  • OSM announced receipt of a proposed amendment to the Indiana regulatory program under SMCRA. 71 FR 66148 (11/13/06).
  • OSM announced receipt of a proposed amendment to the Texas abandoned mine land reclamation plan under SMCRA. 71 FR 66150 (11/13/06).

PUBLIC LAND:

  • The U.S. Forest Service proposed to amend the Forest Service Manual and Forest Service Handbook, along with corresponding sections of the Code of Federal Regulations, to provide an efficient and standardized national approach for the application of piscicides by state agencies on National Forest System lands. 71 FR 66715 (11/16/06).

WATER:

  • EPA announced that it intends to approve certain revisions to Minnesota's public water system supervision program. 71 FR 66946 (11/17/06).

WILDLIFE:

  • FWS announced a 12-month finding on a petition to list the island marble butterfly under the ESA; the agency determined that listing is not warranted at this time. 71 FR 66292 (11/14/06).
  • FWS designated critical habitat in Los Angeles, Orange, and Ventura counties, California, for the Braunton's milk-vetch and in Los Angeles and Ventura counties, California, for the Lyon's pentachaeta. 71 FR 66373 (11/14/06).
  • FWS withdrew its October 3, 2006, notice of availability (71 FR 58426) of the revised technical agency draft recovery plan for the Puerto Rican Parrot. 71 FR 66341 (11/14/06).
  • NOAA announced temporary restrictions that apply to lobster trap/pot and anchored gillnet fishermen in an area south of Portland, Maine, to provide protection to an aggregation of northern right whales. 71 FR 66690 (11/16/06).
  • NOAA announced temporary restrictions that apply to lobster trap/pot and anchored gillnet fishermen in an area southeast of Portland, Maine, to provide protection to an aggregation of northern right whales. 71 FR 66688 (11/16/06).
  • NMFS, to prevent a significant risk to the well-being of endangered right whales from entanglement in gillnet gear during the calving season, announced that it is prohibiting gillnet fishing or gillnet possession in Atlantic Ocean waters just south of New Smyrna Beach, Florida, the approximate state boundary between Georgia and South Carolina, and within 35 nautical miles of the South Carolina coast. 71 FR 66469 (11/15/06).
  • NMFS proposed to revise the regulations implementing the Atlantic Large Whale Take Reduction Plan by expanding the southeast U.S. restricted area and modifying regulations pertaining to gillnetting within the southeast U.S. restricted area; in addition, the agency proposed to prohibit gillnet fishing or gillnet possession during annual restricted periods associated with the right whale calving season. 71 FR 66482 (11/15/06).

DOJ NOTICES OF SETTLEMENT:

  • United States v. Stallings Salvage, Inc., No. 3:05CV247-H (W.D.N.C. Oct. 31, 2006). Settling CERCLA defendants must pay a principal sum of $150,000, plus accrued interest, to the EPA Hazardous Substance Superfund for past costs incurred at the Stallings Salvage Superfund site in Monroe, North Carolina, and must establish an escrow account through which annual payments will be funded. 71 FR 66195 (11/13/06).
  • United States v. Bunge North America, Inc., No. 2:06-cv-02209- MPM-DGB (C.D. Ill. Oct. 26, 2006). Settling CAA defendants must reduce emissions of volatile organic compounds from its soybean processing plants and corn dry mill plant by complying with interim limits, and setting and complying with final limits, on each plant's solvent loss ratio; must undertake specified additional pollution control projects at various plants to reduce emissions of sulfur dioxide, nitrogen oxides, and particulate matter; must pay a civil penalty of $625,000; and must spend at least $1.25 million performing state supplemental environmental projects to achieve additional environmental benefits. 71 FR 66196 (11/13/06).
  • United States v. Cummins Engine Co., Inc., No. 98-- 02546 (D.D.C.). A settling CAA defendant who allegedly used illegal emissions-control defeat devices on its 1998 and prior heavy-duty diesel engines must retire all of the Averaging, Banking, and Trading program credits improperly generated, plus a premium, and must pay a penalty of $2,170,000 for the non-compliance of a 1999 consent decree. 71 FR 66197 (11/13/06).
  • United States v. Greater Lawrence Sanitary District, No. 06-11975-PBS (D. Mass. Oct. 31. 2006). A settling CWA defendant must pay a $254,000 civil penalty and must institute necessary improvements at its wastewater treatment plant at an estimated cost of $18 million for failure to comply with its wastewater treatment discharge permit at its combined sewer overflow outfalls. 71 FR 66197 (11/13/06).

Copyright© 2006, Environmental Law Institute, Washington, D.C. All rights reserved.

THE CONGRESS

Note: Citations below are to the Congressional Record (Cong. Rec.).

CHAMBER ACTION:

  • S. 101 (land conveyance), which would convey to the town of Frannie, Wyoming, certain land withdrawn by the Commissioner of Reclamation, was passed by the House, clearing the measure for the President. 152 Cong. Rec. H8645 (daily ed. Nov. 15, 2006).
  • S. 435 (Lower Farmington River and Salmon Brook Wild and Scenic River Study Act of 2005), which would amend the Wild and Scenic Rivers Act to designate a segment of the Farmington River and Salmon Brook in the state of Connecticut for study for potential addition to the National Wild and Scenic Rivers System, was passed by the House, clearing the measure for the President. 152 Cong. Rec. H8587 (daily ed. Nov. 13, 2006).
  • S. 819 (Pactola Reservoir Reallocation Authorization Act of 2005), which would authorize the Secretary of the Interior to reallocate costs of the Pactola Dam and Reservoir, South Dakota, to reflect increased demands for municipal, industrial, and fish and wildlife purposes, was passed by the House, clearing the measure for the President. 152 Cong. Rec. H8588, H8605 (daily ed. Nov. 13, 2006).
  • S. 1131 (Idaho Land Enhancement Act), which would authorize the exchange of certain federal land within the state of Idaho, was passed by the House, clearing the measure for the President. 152 Cong. Rec. H8584 (daily ed. Nov. 13, 2006).
  • S. 3501 (water rights), which would amend the Shivwits Band of the Paiute Indian Tribe of Utah Water Rights Settlement Act to establish an acquisition fund for the water rights and habitat acquisition program, was passed by the Senate. 152 Cong. Rec. S10884 (daily ed. Nov. 13, 2006).
  • S. 4001 (New England Wilderness Act of 2006), which would designate certain land in New England as wilderness for inclusion in the National Preservation System and certain land as a National Recreation Area, was passed by the House, clearing the measure for the President. 152 Cong. Rec. H8646 (daily ed. Nov. 15, 2006).
  • S. Res. 599 (lead), which would designate the week of October 23, 2006, through October 27, 2006, as "National Childhood Lead Poisoning Prevention Week," was passed by the Senate. 152 Cong. Rec. S11097 (daily ed. Nov. 16, 2006).
  • S. Res. 600 (alternative fuel), which would designate October 12, 2006, as "National Alternative Fuel Vehicle Day," was passed by the Senate. 152 Cong. Rec. S11097 (daily ed. Nov. 16, 2006).
  • H.R. 409 (Sierra National Forest Land Exchange Act of 2006), which would provide for the exchange of land within the Sierra National Forest, California, was passed by the House, clearing the measure for the President. 152 Cong. Rec. H8582 (daily ed. Nov. 13, 2006).
  • H.R. 1129 (Pitkin County Land Exchange Act of 2006), which would authorize the exchange of certain land in the state of Colorado, was passed by the House, clearing the measure for the President. 152 Cong. Rec. H8586 (daily ed. Nov, 13, 2006).
  • H.R. 3085 (National Trails System Act), which would amend the National Trails System Act to update the feasibility and suitability study originally prepared for the Trail of Tears National Historical Trail and provide for the inclusion of new trail segments, land components, and campgrounds associated with that trail, was passed by the House, clearing the measure for the President. 152 Cong. Rec. H8583, H 8604 (daily ed. Nov. 13, 2006).
  • H.R. 3699 (Federal and District of Columbia Government Real Property Act), which would provide for the sale, acquisition, conveyance, and exchange of certain real property in the District of Columbia to facilitate the utilization, development, and redevelopment of such property, was passed by the Senate, clearing the measure for the President. 152 Cong. Rec. S10981 (daily ed. Nov. 16, 2006).
  • H.R. 3817 (Valle Vidal Protection Act), which would withdraw the Valle Vidal Unit of the Carson National Forest in New Mexico from location, entry, and patent under the mining laws, was passed by the Senate, clearing the measure for the President. 152 Cong. Rec. S11106 (daily ed. Nov. 16, 2006).
  • H.R. 4559 (National Forest System), which would provide for the conveyance of certain National Forest System land to the towns of Laona and Wabeno, Wisconsin, was passed by the Senate, clearing the measure for the President. 152 Cong. Rec. S11096 (daily ed. Nov. 16, 2006).
  • H.R. 5061 (fish hatcheries), which would direct the Secretary of the Interior to convey Paint Bank National Fish Hatchery and Wytheville National Fish Hatchery to the state of Virginia, was passed by the Senate, clearing the measure for the President. 152 Cong. Rec. S11095 (daily ed. Nov. 16, 2006).
  • H.R. 5842 (natural resources), which would compromise and settle all claims in the case of Pueblo of Isleta v. United States and restore, improve, and develop the valuable on-reservation land and natural resources of the Pueblo, was passed by the Senate, clearing the measure for the President. 152 Cong. Rec. S10884 (daily ed. Nov. 13, 2006).
  • H.R. 5682 (United States and India Nuclear Cooperation Promotion Act), which would exempt from certain requirements of the Atomic Energy Act of 1954 a proposed nuclear agreement for cooperation with India, was passed by the Senate. 152 Cong. Rec. S10982 (daily ed. Nov. 16, 2006).
  • H.R. 5690 (national forests), which would adjust the boundaries of the Ouachita National Forest in the states of Oklahoma and Arkansas, was passed by the Senate, clearing the measure for the President. 152 Cong. Rec. S11096 (daily ed. Nov. 16, 2006).
  • H.R. 6121 (CWA), which would amend the CWA to reauthorize a program relating to the Lake Pontchartrain Basin, was passed by the House, 152 Cong Rec. H8589 (daily ed. Nov. 13, 2006), and the Senate, clearing the measure for the President. 152 Cong. Rec. S11096 (daily ed. Nov. 16, 2006).

COMMITTEE ACTION:

  • S. 1838 (land conveyance) was reported by the Committee on Homeland Security and Governmental Affairs. S. Rep. No. 109-339, 152 Cong. Rec. S10879 (daily ed. Nov. 13, 2006). The bill would provide for the sale, acquisition, conveyance, and exchange of certain real property in the District of Columbia to facilitate the utilization, development, and redevelopment of such property.
  • S. 3591 (green building) was reported by the Committee on Environment and Public Works. S. Rep. No. 109-358, 152 Cong. Rec. S10879 (daily ed. Nov. 13, 2006). The bill would improve efficiency in the federal government through use of high-performance green buildings.

BILLS INTRODUCED:

  • S. 4057 (Allen, R-Va.) (national parks) would protect the second amendment rights of individuals to carry firearms in units of the National Park System. 152 Cong. Rec. S11057 (daily ed. Nov. 16, 2006). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 4058 (Boxer, D-Cal.) (marine sanctuaries) would expand the boundaries of the Gulf of the Farallones National Marine Sanctuary and the Cordell Bank National Marine Sanctuary. 152 Cong. Rec. S11057 (daily ed. Nov. 16, 2006). The bill was referred to the Committee on Commerce, Science, and Transportation.
  • H.R. 6321 (Kolbe, R-Ariz.) (land conveyance) would provide for the conveyance of certain public land near the city of Douglas, Arizona, for use as a shooting range. 152 Cong. Rec. H8640 (daily ed. Nov. 14, 2006). The bill was referred to the Committee on Resources.
  • H.R. 6331 (Everett, R-Ala.) (agriculture) would amend the environmental quality incentives program of the USDA to authorize the Secretary of Agriculture to provide assistance to active agricultural producers for the construction of reservoirs as part of their agricultural operations for the storage of water. 152 Cong. Rec. H8672 (daily ed. Nov. 15, 2006). The bill was referred to the Committee on Agriculture.
  • H. Res. 1079 (Kind, D-Wis.) (conservation) would recognize and celebrate the commitment of the Student Conservation Associate to the United States' national parks and public lands. 152 Cong. Rec. H8609 (daily ed. Nov. 13, 2006). The resolution was referred to the Committee on Resources.

Copyright© 2006, Environmental Law Institute, Washington, D.C. All rights reserved.

IN THE STATES

Note: The entries below cover state developments since the last issue of Update. The entries are arranged by state, and within each section, entries are further subdivided by subject matter area. For a cumulative listing of materials reported in 2006, visit our list of Cumulative State Developments Arranged by State, or our list of Cumulative State Developments Arranged by Subject Matter. For state material reported prior to 2006, visit the ELR Archives.

The states below have updates this week:

Alaska Iowa Pennsylvania Colorado Maryland Utah Florida Mississippi Washington Illinois New York  

ALASKA

Fisheries:

  • The Department of Commerce, Community & Economic Development adopted, as emergency regulations, changes in Title 3 of the Alaska Administrative Code dealing with relief money that the state receives from the Pacific Coastal Salmon Treaty Recovery Fund through the U.S. Department of Commerce under Public Laws 106-113, 106-553, 107-77, 108-7, 108-199, and 108-447 to carry out commercial fisheries-related projects to improve infrastructure, conduct economic and business development, and increase processing activity. The emergency regulations took effect November 9, 2006, and will expire March 8, 2007. Comments are due December 11, 2006. See http://notes4.state.ak.us/pn/pubnotic.nsf/1604e1912875140689256785006767f6/82a219508171c67f8925722200087d69?OpenDocument

COLORADO

Water:

FLORIDA

Water:

  • The Department of Environmental Protection will hold a public hearing to allow the following five rules to be repromulgated as new or revised water quality standards: Rule Nos. 62-303.150, Relationship Between Planning and Verified Lists; 62-303.351, Nutrients in Streams; 62-303.410, Determination of Aquatic Life Use Support; 62-303.600, Evaluation of Pollution Control, Mechanisms; and 62-303.810, Impairment of Interstate and Tribal Waters. The hearing will be held December 5, 2006. See http://faw.dos.state.fl.us/fawframes.html (p. 5327)

ILLINOIS

Water:

IOWA

Water:

  • The Natural Resource Commission will hold three public hearings on a proposal to rescind Chapter 16, Public, Commercial, Private Docks and Dock Management Areas, and adopt new Chapter 16, Docks and Other Structures on Public Waters, of the Iowa Administrative Code. The hearings will be held November 28, 29, and 30, 2006. See http://www.legis.state.ia.us/Rules/Current/Bulletin/IAB061108.htm

MARYLAND

Fisheries:

  • The Joint Committee on Administrative, Executive, and Legislative Review has granted emergency status to amendments the General Restrictions regulation, .12, under COMAR 08.02.15, Striped Bass. Emergency status began October 16, 2006, and expires December 1, 2006. See http://www.dsd.state.md.us/mdregister/3323/main_register.htm (p. 1793)

MISSISSIPPI

Water:

NEW YORK

Air:

PENNSYLVANIA

Water:

  • The Department of Environmental Protection announces the modification and finalization of Chapter 105, General Permit BWM-GP-11, and the reissuance of the CWA §401 Water Quality Certification for the Maintenance, Testing, Repair, Rehabilitation, or Replacement of Existing Water Obstructions and Encroachments. The modified general permit will become effective December 11, 2006. See http://www.pabulletin.com/secure/data/vol36/36-45/2203.html

UTAH

Water:

  • The Department of Environmental Quality is soliciting public comment on proposed amendments to Rule 317, Water Quality. The proposed amendments to Rule 317-1-1, General Requirements, will provide a uniform and objective process for producers, state regulators, and government service agencies to determine the appropriate liner for any liquid waste storage facility at an animal feeding operation. Comments are due December 15, 2006. See http://www.rules.utah.gov/publicat/bulletin/2006/20061115/29186.htm

WASHINGTON

Hazardous and Solid Waste:

  • The Department of Ecology has adopted Chapter 173-900, WAC, Electronic Product Recycling Program, which requires manufacturers of covered electronic products to register with the department, pay an annual administrative fee to cover the agency's costs, and brand their products sold in or into Washington state. The rule requires retailers to only sell branded products belonging to registered manufacturers.  Collectors and transport registration requirements are also included.  The rule prescribes the enforcement process and associated penalties for noncompliance. This rule was adopted November 7, 2006. See http://www.ecy.wa.gov/laws-rules/activity/erecycle.html

Copyright© 2006, Environmental Law Institute, Washington, D.C. All rights reserved.

INTERNATIONAL

INDIA’S NEW WILDLIFE LAW COULD HURT TIGERS

According to conservationists, India's new Wildlife (Protection) Amendment Act 2006 threatens to undermine efforts to protect an endangered population of tigers by offering too much protection to humans living in forests. While the Act aims to protect tigers, activists say that the law, which requires authorities to ensure "the agricultural, livelihood, development and other interests of the people living in tiger-bearing forests or a tiger reserve," might have the opposite effect. Also under its provisions, forest-dwellers could "sell, give or occupy forest land, hunt animals that are not protected and even set up hotels in reserves and parks." Indian officials say that the provision is an attempt to address the needs of tens of thousands of poor people who live in forests and earn their livelihoods by selling firewood and simple farming. See http://today.reuters.co.uk/news/CrisesArticle.aspx?storyId=B58293&WTmodLoc=World-R5-Alertnet-3

NEW UN PLAN ADDRESSES CLIMATE CHANGE IN AFRICA

United Nations Secretary-General Kofi Annan has launched a plan by six U.N. agencies called the "Nairobi Framework" to help developing countries, particularly in Africa, obtain funding for clean energies to fight global warming. Annan also said the U.N.'s environment and development agencies will be launching a plan "to help poor nations factor climate change into development plans, such as building roads, bridges or buildings to withstand more floods or droughts." See http://www.enn.com/today.html?id=11660

UK CLIMATE BILL SETS LEGALLY BINDING CARBON TARGET

The Queen has announced that the government's planned legislation for the forthcoming parliamentary session includes a climate change bill that will make the United Kingdom's long-term goal of a 60% reduction in carbon dioxide emissions by 2050 a legally binding goal. However, the bill does not make reference to annual reductions targets, which environmentalists and opposition parties deem necessary. Instead, the bill would establish a "Carbon Committee" to ensure that the target is met. See http://news.bbc.co.uk/2/hi/science/nature/6148416.stm

Copyright© 2006, Environmental Law Institute, Washington, D.C. All rights reserved.

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