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Weekly Update Volume 40, Issue 23

08/16/2010

LITIGATION 

CAA, PREVENTION OF SIGNIFICANT DETERIORATION:

The Eighth Circuit upheld a lower court decision dismissing an environmental group's CAA citizen suit against a coal-fired power plant for failing to obtain permits for a series of modifications to the plant and exceeding applicable emission limits. Because the last of the modifications at issue was done in 2001 and the group did not file suit until 2008, its prevention of signification deterioration (PSD) civil penalty claims are barred by the five-year statute of limitations. The group argued that the CAA and its regulations impose ongoing operational requirements, but the CAA and its regulations prohibit only construction or modification of a facility without a PSD permit. Nothing in the statute gives any indication that the CAA imposes ongoing operational conditions under the PSD program. The group also argued that the applicable regulations impose an ongoing duty to employ best achievable control technology (BACT) regardless of whether a facility obtained a PSD permit before construction or modification. But the command to apply BACT is not a freestanding requirement. Rather, it is tied specifically to the construction process.Sierra Club v. Otter Tail Power Co., No. 09-2862, 40 ELR 20213 (8th Cir. Aug. 12, 2010).

WILDLIFE, WETLANDS:

The Ninth Circuit upheld the FWS' designation of about 850,000 acres of land as critical habitat for 15 endangered or threatened vernal pool species. The court rejected claims that the FWS erred in classifying, as critical habitat, areas in which the physical or biological features essential to the conservation of the species do not occur simultaneously. In vernal pool complexes, the elements necessary to species survival are present in distinct areas. Accordingly, there is no reason that two elements essential for the conservation of a species need be present in the same area. Nor did the FWS err in failing to determine when the protected species will be conserved. There is no reason why the FWS cannot determine what elements are necessary for conservation without determining exactly when conservation will be complete. In addition, the FWS' method for delineating protected areas, as well as its consideration of economic impacts, were proper.Home Builders Association of Northern California v. United States Fish & Wildlife Service, No. 07-16732, 40 ELR 20210 (9th Cir. Aug. 9, 2010).

RCRA, SPENT MATERIAL:

The D.C. Circuit held that used potassium hydroxide (KOH) shipped for reuse to a fertilizer company is a "waste" under RCRA. EPA filed suit against an aerospace casings manufacturer under RCRA after it shipped used KOH to a fertilizer company. The manufacturer argued that the used KOH was not waste because it was not a "spent material." In determining whether a material is spent, EPA argued that the initial use of the material is determinative; the manufacturer contended the initial use is irrelevant. Although EPA's regulatory definition of "spent material" is ambiguous, the Agency's overall regulatory framework under RCRA, as well as the regulatory history of the definition, establish that EPA's interpretation is reasonable and consistent with prior interpretations. In addition, EPA's explanation of spent material in its Guidance Manual should have put the manufacturer on notice as to the Agency's interpretation.Howmet Corp. v. Environmental Protection Agency, No. 09-5360, 40 ELR 20211 (D.C. Cir. Aug. 6, 2010).

NATIONAL FLOOD INSURANCE ACT, APA:

The Eighth Circuit upheld a lower court decision dismissing on jurisdictional grounds environmental groups' claims that FEMA's approval of a levee violated the National Flood Insurance Act (NFIA) and the APA. In essence, the groups were challenging FEMA's flood elevation determination. Accordingly, the groups' APA claims were dismissed because the APA only grants judicial review of final agency action in cases "for which there is no other adequate remedy in a court." Here, 42 U.S.C. §4104(g), which concerns flood elevation determinations, provides an adequate legal remedy. As for the NFIA claim, the groups failed to exhaust their administrative remedies by filing a proper appeal with FEMA. Nor was the groups' challenge based upon the scientific or technical accuracy of the flood elevation decision, which would have rendered it an appeal under §4104(b).Great Rivers Habitat Alliance v. Federal Emergency Management Agency, No. 09-3183, 40 ELR 20212 (8th Cir. Aug. 12, 2010).

CLASS ACTION FAIRNESS ACT, JURISDICTION:

The Fifth Circuit affirmed a lower court decision remanding to state court residents' class action lawsuit against a chemical company in connection with a chemical release at one of its facilities. The Class Action Fairness Act authorizes federal jurisdiction over class actions where, among other things, the allegations demonstrate that the aggregate quantum of damages suffered by members of the plaintiff class will exceed $5 million. Based on the allegations contained in the pleadings in this case, the company simply failed to meet this burden.Berniard v. Dow Chemical Co. , No. 10-30497, 40 ELR 20214 (5th Cir. Aug. 6, 2010).

SOLID WASTE, NEPA:

A district court issued a temporary restraining order enjoining the shipment of Hawaiian garbage to a landfill located on lands ceded by the Yakama Nation in Washington state near the Columbia River. There are serious questions as to whether the USDA adequately analyzed the environmental impacts of shipment and receipt of Hawaiian waste into the mainland, and in particular, receipt into a Washington or Oregon port followed by transport and burial into the landfill. There are also serious questions regarding whether the USDA complied with the National Historic Preservation Act. In addition, the tribes are likely to suffer irreparable harm in the absence of a temporary injunction. The landfill is located in the area in which tribal members exercise their protected hunting, gathering, and fishing rights. Moreover, the balance of equities tips sharply in the tribes' favor, and a temporary restraining order is in the public interest.Confederated Tribes & Bands of the Yakama Nation v. United States Department of Agriculture, No. CV-10-3050, 40 ELR 20215 (E.D. Wash. July 30, 2010) (Shea, J.).

CERCLA, FRAUD, CORPORATE VEIL:

A district court dismissed a landfill owner's CERCLA §§107 and 113 claims against a company for recovery of costs and other damages it allegedly incurred or will incur in connection with its landfill in Maryland Heights, Missouri. The company's subsidiary, which is now insolvent, operated the site's gas collection system, which was the source of the pollution. The landfill owner claimed that the subsidiary was a fraudulent effort by the company to avoid liability for its involvement in the site. But this claim is conclusory and fails to set out sufficient facts to establish the necessary fraud or injustice. In addition, the complaint fails to sufficiently set out the requisite allegations to state a claim against the company under an alter ego theory for piercing the corporate veil. While the landfill owner does allege that the officers from the company made decisions concerning the operation of the subsidiary, attended meetings on its behalf, and failed to provide sufficient capital to operate, the owner failed to sufficiently allege that the company and the subsidiary operated as a single entity.BFI Waste Systems of North America, LLC v. Shaw Environmental & Infrastructure, Inc., No. 4:09CV1379, 40 ELR 20218 (E.D. Mo. July 30, 2010) (Autrey, J.).

ESA, DISTINCT POPULATION SEGMENTS:

A district court set aside a FWS rule partially delisting the northern Rocky Mountain gray wolf distinct population segment (DPS). The ESA unambiguously prohibits the FWS from listing or protecting part of a DPS. By listing and/or protecting something less than a DPS, the FWS violated the plain terms of the ESA. Even if the FWS' solution is pragmatic, or even practical, it is at its heart a political solution that does not comply with the ESA. Accordingly, the rule must be set aside.Defenders of Wildlife v. Salazar, Nos. 09-77, -82, 40 ELR 20219 (D. Mont. Aug. Aug. 5, 2010) (Molloy, J.).

NEPA, OUTER CONTINENTAL SHELF:

A district court held that the Minerals Management Service's (MMS') decision to offer approximately 29.4 million acres of public lands on the outer continental shelf of the Chukchi Sea for oil and gas leasing violated NEPA. Although much of the agency's extensive investigation was appropriate, it failed to analyze the environmental impact of natural gas development despite industry interest and specific lease incentives for such development; failed to determine whether missing information identified by the agency was relevant or essential; and failed to determine whether the cost of obtaining the missing information was exorbitant, or the means of doing so unknown. This does not necessarily require the MMS to completely redo the permitting process, but merely to address the three concerns addressed above. In all other respects, the MMS complied with NEPA.Native Village of Point Hope v. Salazar, No. 1:08-cv-0004, 40 ELR 20220 (D. Alaska Aug. 5, 2010) (Beistline, J.).

OIL SPILL, MULTIDISTRICT LITIGATION:

The U.S. Judicial Panel on Multistate Litigation consolidated and transferred to the U.S. District Court for the Eastern District of Louisiana 77 lawsuits related to the Deepwater Horizon oil spill in the Gulf of Mexico. The actions indisputably share factual issues concerning the cause (or causes) of the Deepwater Horizon explosion/fire and the role, if any, that each defendant played in it. In addition, it makes sense to include the personal injury/wrongful death actions in the litigation. Similarly, there is no reason to treat claims brought under the OPA separately. The court also ruled that the Eastern District of Louisiana is the most appropriate district for this litigation. Without discounting the spill's effects on other states, if there is a geographic and psychological "center of gravity" in this docket, then the Eastern District of Louisiana is closest to it.In re Oil Spill by the Oil Rig "Deepwater Horizon", No. 2179, 40 ELR 20216 (J.P.M.L. Aug. 10, 2010).

HAZARDOUS WASTE, NUISANCE:

The Vermont Supreme Court affirmed a lower court decision dismissing the state's attempt to hold prior and past owners liable for its costs of responding to and cleaning up a hazardous waste contamination site. The state failed to demonstrate that the trial court erred in dismissing its common law public nuisance claim. The mere fact of pollution migrating offsite is not, in and of itself, sufficient to show a public nuisance. Rather, a public nuisance must impact a right common to the general public.State v. Howe Cleaners, Inc., No. 2009-110, 40 ELR 20217 (Vt. Aug. 6, 2010).

LOGGING, ATTORNEYS FEES:

A California appellate court held that environmental groups were not entitled to attorneys fees in an underlying suit challenging the state forestry departments' approval of three timber harvest plans for logging in Tuolumne County. The groups argued that the department had not followed the law in approving the plans, but the California Supreme Court disagreed and upheld the plans. Despite this defeat, the groups argued that they are the "successful party" entitled to attorney fees of $250,819 under the private attorney general doctrine contained in Cal. Code of Civil Procedure §1021.5. But the groups did not receive a favorable judgment nor did they achieve their strategic objectives of overturning the plans' approval and halting timber operations until additional environmental assessments were performed. Accordingly, the groups failed to meet their burden to show they were successful within the meaning of §1021.5.Ebbetts Pass Forest Watch v. California Department of Forestry & Fire Protection, No. F058062, 40 ELR 20209 (Cal. App. 5th Dist. Aug. 10, 2010).

Copyright© 2010, Environmental Law Institute, Washington, D.C. All rights reserved.

THE FEDERAL AGENCIES

Note: Citations below are to theFederal Register(FR).

AIR:

  • EPA denied petitions to reconsider its endangerment and cause or contribute findings for greenhouse gases under CAA §202(a).75 FR 49556(8/13/10).
  • EPA proposed to clarify specific provisions in the greenhouse gas reporting rule, which went into effect on December 29, 2009.75 FR 48744(8/11/10).
  • EPA proposed to restructure several sections of the transportation conformity rule for new or revised NAAQS.75 FR 49435(8/13/10).
  • EPA proposed to determine that the Dallas/Fort Worth moderate nonattainment area failed to attain the 1997 eight-hour ozone NAAQS by the regulatory deadline and that Texas submit SIP revisions.75 FR 47746(8/9/10).
  • EPA proposed to approve the Gila River Indian Community's tribal implementation plan to regulate air pollution within the exterior boundaries of the tribe's reservation.75 FR 48880(8/12/10).
  • SIP Approvals:Delaware (administrative revisions)75 FR 48566(8/11/10). Missouri (new rule on particulate matter (PM))75 FR 48579(8/11/10). Minnesota (sulfur dioxide (SO2) content)75 FR 48864(8/12/10). Nebraska (definition of volatile organic compounds (VOCs) and terminology)75 FR 48582(8/11/10). New Mexico (emissions inventory regulations and definition of significant figures)75 FR 48860(8/12/10).
  • SIP Proposals:Delaware (administrative revisions; see above for direct final rule)75 FR 48627(8/11/10). Minnesota (SO2 content; see above for direct final rule)75 FR 48895(8/12/10). Missouri (new rule on PM; see above for direct final rule)75 FR 48628(8/11/10). Nebraska (definition of VOCs and terminology; see above for direct final rule)75 FR 48628(8/11/10). New Mexico (emissions inventory regulations and definition of significant figures; see above for direct final rule)75 FR 48894(8/12/10).
  • SIP Withdrawals:Maryland (transportation and general conformity regulations)75 FR 48627(8/11/10); (transportation and general conformity regulations)75 FR 48860(8/12/10).

DRINKING WATER:

  • EPA announced its voluntary Tribal Drinking Water Operator Certification Program, which will go into effect October 1, 2010.75 FR 48329(8/10/10).

HAZARDOUS & SOLID WASTE:

  • EPA entered into a proposed administrative settlement under CERCLA that requires respondents to pay past U.S. response costs incurred at the VIP Cleaners Superfund site in Morristown, New Jersey.75 FR 48967(8/12/10).

MINING:

  • OSM partially approved an amendment to Pennsylvania's regulatory program under SMCRA that addresses financial guarantees for treatment of post-mining discharges and land reclamation of sites.75 FR 48526(8/10/10).

TOXIC SUBSTANCES:

  • EPA proposed to amend the Inventory Update Reporting rule under TSCA §8(a).75 FR 49656(8/13/10).

WILDLIFE:

  • FWS proposed to remove the Tennessee purple coneflower from the list of endangered and threatened plants under the ESA due to its recovery.75 FR 48896(8/12/10).
  • FWS announced a 90-day finding on a petition to remove the tiger from the list of endangered and threatened wildlife under the ESA; the Agency found that removal is not warranted.75 FR 48914(8/12/10).

DOJ NOTICES OF SETTLEMENT:

  • United States v. Mascot Mines, Inc., No. 08-383-EJL (D. Idaho Aug. 6, 2010). A settling CERCLA defendant must pay $150,000 in past and future U.S. response costs incurred at the Bunker Hill Mining and Metallurgical Complex Superfund site in northern Idaho, must provide $50,000 worth of construction materials to EPA, must grant an easement to the state of Idaho, and must assign its interest in applicable insurance policies to the Coeur d'Alene Basin Insurance Recovery Trust.75 FR 48992(8/12/10).
  • United States v. CF Industries, Inc., No. 8:10-CV-1756T24EAJ (M.D. Fla. Aug. 6, 2010). A settling RCRA defendant that commingled hazardous wastewater with other wastes at its facility in Plant City, Florida, must pay a $701,500 civil penalty to the United States and Florida, must install a neutralization system to treat residual hazardous waste, must implement a comprehensive leak detection and reduction program, must install synthetic protective barriers beneath its production plants, and must provide $163.5 million to guarantee appropriate closure and long-term care of the facility.75 FR 48726(8/11/10).
  • United States v. Massachusetts Bay Transportation Authority, No. 1:10-cv-11311 (D. Mass. Aug. 4, 2010). Settling CAA defendants that violated idling requirements for diesel-powered locomotives must pay a $225,000 civil penalty, must install electric plug-in stations for layovers throughout its rail system, must implement a fuel-switch supplemental environmental project two years prior to federal regulations, and must retrofit 14 diesel locomotives with increased emission controls.75 FR 48361(8/10/10).

Copyright© 2010, Environmental Law Institute, Washington, D.C. All rights reserved.

THE CONGRESS

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

Bills Introduced

  • H.R. 6087 (Lucas, R-Okla.) (pesticides)would amend FIFRA to improve the use of certain registered pesticides. 156 Cong. Rec. H6626 (daily ed. Aug. 10, 2010). The bill was referred to the Committee on Agriculture.
  • H.R. 6092 (Bishop, D-N.Y.) (fisheries)would amend the Atlantic Striped Bass Conservation Act to allow recreational fishing for Atlantic Striped Bass in the Block Island Sound transit zone. 156 Cong. Rec. H6626 (daily ed. Aug. 10, 2010). The bill was referred to the Committee on Natural Resources.
  • H.R. 6101 (Sestak, D-Pa.) (weatherization)would amend part A of title IV of the Energy Conservation and Production Act to require the Secretary of Energy to determine whether there are systemic impediments to carrying out the weatherization program under that part. 156 Cong. Rec. H6627 (daily ed. Aug. 10, 2010). The bill was referred to the Committee on Energy and Commerce.

Copyright© 2010, 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. To access material previously reported in 2010, visit our list ofCumulative State Developments. For state material reported prior to 2010, visit theELR Archives.

The states below have updates this week:

ColoradoIllinoisIndianaIowaKentuckyTexas

COLORADO

Air:

Water:

ILLINOIS

Toxic Substances:

INDIANA

Water:

IOWA

Air:

  • The Environmental Protection Commission proposed to amend Iowa Admin. Code chs. 23 and 33, pertaining to air pollution and stationary sources. New rules would ensure that sources of greenhouse gas emissions in Iowa are regulated in the same way and at the same levels as regulations specified in U.S. EPA's recent tailoring rule. There will be a public hearing on September 13, 2010, and the deadline for comments is September 14. Seehttp://www.legis.state.ia.us/aspx/ACODOCS/DOCS/08-11-2010.Bulletin.pdf(pp. 153-58).

KENTUCKY

Air:

Land Use:

TEXAS

Hazardous & Solid Waste:

Copyright© 2010, Environmental Law Institute, Washington, D.C. All rights reserved.

INTERNATIONAL

CHEVRON FACES ALLEGATIONS IN NIGERIA

On the heels of a U.S. court decision that may place the company before an Ecuadorian court for Texaco's pollution, Chevron faces a new lawsuit in the Niger Delta. Delta State Deputy Governor Amos Utuama threatened to sue over a recent oil spill that destroyed a fish farm in the city of Warri. While Chevron has denied responsibility for the spill, claiming that less than two gallons was spilled by Chevron, the Commissioner for the Environment threatened to sue if Chevron Nigeria Limited refused to clean up the spill. The spill was estimated to have killed 6,000 fish. The contaminated fish pond is the source of livelihood for 2,000 families. For the lawsuit, seehttp://allafrica.com/stories/201008100383.html. For the spill, seehttp://allafrica.com/stories/201008090688.html. For Chevron's response to the allegations, seehttp://www.independentngonline.com/DailyIndependent/Article.aspx?id=18660.

FIRST CO2 EMISSION DECLINE IN DECADE; INCREASE IN CHINA

Global carbon dioxide emissions dropped 1.3 percent in 2009 to 31.3 billion tons, the German renewable energy institute IWR announced Friday. The institute attributed much of the decrease in emissions to global investment in renewable energy, which rose by 5 billion euros in 2009 to 125 billion euros. However, Norway's sovereign wealth fund released a survey on Friday indicating that companies in energy intensive industries were doing too little to combat climate change. In a survey of 476 firms across six sectors, the fund cited chemical and transport firms as the worst performers. The IWR said that overall global emissions reduction was hampered by a significant rise in emissions from Asia and the Middle East. The regions had not overcompensated emissions savings by reductions in Europe, the United States, Russia, and Japan, but China became the largest emitter of CO2 in 2009, the IWR said. The institute recommended spending on renewables be quadrupled to 500 billion euros. For the IWR story, seehttp://www.reuters.com/article/idUSTRE67C1IU20100813?type=GCA-GreenBusiness. For the story on Norway's sovereign wealth fund, seehttp://www.reuters.com/article/idUSTRE67C2JC20100813?type=GCA-GreenBusiness.

EU ENVIRONMENT COMMISSION CALLS FOR RESOURCE EFFICIENCY

Commissioner Janez Potočnik called trends and data in the recently published 2009 Environmental Policy Review "worrying." Despite efforts by a number of member states to implement environmental policy measures, high levels of waste and resource depletion, in addition to decreased biodiversity, indicate the need to move toward low carbon and resource efficient economies, according to the Commission. In the report, Austria ranked highest in renewable energy produced, with 62 percent coming from hydropower, wind, and biomass in 2008. Bulgaria ranked worst in terms of energy intensity and per GDP greenhouse gas emissions, in addition to total waste generated per capita. Countries in Eastern Europe performed much worse in categories such as waste production and emissions, while Denmark received high marks in renewable energy production. For the report, seehttp://ec.europa.eu/environment/policyreview.htm. For the Commission's press release, seehttp://europa.eu/rapid/pressReleasesAction.do?reference=IP/10/1047&format=HTML&aged=0&language=EN&guiLanguage=en

Copyright© 2010, Environmental Law Institute, Washington, D.C. All rights reserved.

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