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Weekly Update Volume 40, Issue 35

12/13/2010

LITIGATION 

CAA, PREEMPTION:

The Ninth Circuit held that the CAA does not preempt a California air pollution district rule requiring development sites to reduce the amount of pollutants they emit. CAA §209(e)(1) only preempts those standards or requirements relating to the control of emissions from "new" construction equipment. The CAA does not define what "new" means, but EPA has interpreted it to mean "showroom new," that is, never sold. Under this interpretation, §209(e)(1) would not preempt the rule because none of the construction equipment that it regulates could possibly be showroom new. In addition, even if the rule establishes standards or requirements, the rule escapes preemption because its regulation of construction equipment is indirect. The rule does not measure emissions by fleets or groups of vehicles; it measures emissions on a facility-by-facility basis. Its unit of measurement is the indirect source, not the fleet. The rule regulates development sites directly, but as the term "indirect source" implies, it regulates mobile emissions only indirectly. Consequently, the rule is an indirect source review program that is not preempted by CAA §209(e)(1).National Association of Home Builders v. San Joaquin Valley Unified Air Pollution Control District, No. 08-17309, 41 ELR 20038 (9th Cir. Dec. 7, 2010).

ESA, BIOLOGICAL OPINIONS:

The Ninth Circuit held that FWS' biological opinion addressing a hatchery project's impact on the bull trout in the Columbia River violates the ESA. Although the hatchery project is intended to mitigate a dam's impacts on Chinook salmon, it has seriously disrupted the migration and spawning activity of the bull trout. Nevertheless, the FWS' 2008 biological opinion concluded that the hatchery's operations were not likely to jeopardize the continued existence of the bull trout. The court, however, held that the biological opinion was arbitrary and capricious because the FWS limited the analysis to a five-year period, failed to articulate a rational connection between the facts found and the no jeopardy conclusion, and issued an incidental take statement lacking adequate monitoring and reporting requirements. In addition, the hatchery's reliance on a legally flawed biological opinion was arbitrary and capricious. It therefore violated its substantive duty to ensure that its operations and maintenance did not jeopardize the continued existence of the bull trout. The court therefore reversed and remanded a lower court decision in favor of the FWS.Wild Fish Conservancy v. Salazar, No. 09-35531, 41 ELR 20037 (9th Cir. Dec. 7, 2010).

CIVIL PROCEDURE, FORUM NON CONVENIENS:

The Ninth Circuit reversed a lower court decision dismissing a Peruvian Achuar indigenous group's lawsuit against an oil company for environmental contamination and the release of hazardous wastes. The complaint alleges that, during its 30 years in the Achuar territories, the oil company knowingly utilized out-of-date methods for separating crude oil that contravened United States and Peruvian law, resulting in the discharge of millions of gallons of toxic oil byproducts into the area's waterways. The lower court granted the company's motion to dismiss based on the doctrine of forum non conveniens. But because the company failed to meet its burden of demonstrating that Peru is a more convenient forum, and because the lower court gave insufficient weight to the strong presumption in favor of a domestic plaintiff's choice of forum, the lower court's dismissal was reversed and remanded.Carijano v. Occidental Petroleum Corp., Nos. 08-56187, -56270, 41 ELR 20039 (9th Cir. Dec. 6, 2010).

CERCLA, STATUTE OF LIMITATIONS, INITIAL ACTION:

A district court held that CERCLA's statute of limitations does not bar the United States from recovering certain costs it incurred in 1993 and 1995 responding to soil and ground water contamination at the Fletcher Paint Works and Storage Facility Superfund site in Milford, New Hampshire. After filing suit in 1991, the United States and an electric company entered into a consent decree in February 1994 requiring the company to reimburse the EPA for the response costs it had incurred as of April 30, 1993. The consent decree did not include a finding of liability. The United States then filed the current action in 2006. The case turns on whether the current action is classified as an "initial action" to recover removal costs, which ordinarily must be commenced within three years of the completion of the removal action, or a "subsequent action" for the recovery of such costs, which may be delayed until as late as three years after the date of completion of all response action. The company argued that the entry of a declaratory judgment on liability, or some equivalent court order, is a definitional requirement for an initial action under CERCLA §113(g)(2). But in light of the statutory language, as well as the underlying policies of both CERCLA in particular and statutes of limitations in general, the declaratory judgment requirement in §113(g)(2) is best understood as a directive to courts when an initial action has actually been litigated to conclusion, not as a requirement for creating initial actions in the first place. The United States' 1991 complaint was thus an initial action, and the 2006 claim is a subsequent action as those terms are used in §113. Because response actions at the site are ongoing, the government's claim for costs stemming from the 1993 and 1995 removal activities is timely.United States v. General Electric Co., No. 06-cv-354-PB, 41 ELR 20042 (D.N.H. Dec. 3, 2010) (Barbadoro, J.).

INVASIVE SPECIES, PRELIMINARY INJUNCTION:

A district court denied various states' motion to issue a preliminary injunction compelling the U.S. Army Corps of Engineers to take all available measures to prevent the emigration of invasive silver and bighead carp through the Chicago Area Waterway System into Lake Michigan. In the face of multi-agency efforts to prevent Asian carp migration--efforts that have only increased and expanded in the months since this lawsuit was filed--the states have not shown either a sufficient likelihood of success on the merits of their substantive APA or nuisance claims or a sufficient prospect of irreparable harm absent the requested injunction. The evidence does not support the view that the Corps' actions were wrong at all, much less arbitrary and capricious. In fact, there is no evidence that Asian carp have entered Lake Michigan through the system, that the barrier system has not operated with reasonable effectiveness, or that the operation of a lock has adversely affected the states' interests. And because the level of certainty of harm is low based on the evidence adduced to date, it cannot be said that irreparable injury is likely, as must be the case to justify the entry of any preliminary injunction.Michigan v. United States Army Corps of Engineers, No. 10-CV-4457, 41 ELR 20041 (N.D. Ill. Dec. 2, 2010) (Dow, Jr., J.).

RADIOACTIVE WASTE, CONTRACTS, DAMAGES:

The Federal Claims court ordered DOE to pay three utility companies $10,632,454.83 for failing to collect spent nuclear fuel from the Wolf Creek Generating Station in Kansas in violation of their contract. The utilities' damages derive from their investigation of alternative spent nuclear fuel storage options and their implementation of a reracking project at Wolf Creek. The government conceded that it breached its duty under the contract; therefore, the only issue was damages. The utilities sought $14,148,967.10, but the court accepted the government's suggestion that the construction overhead award be reduced by the approximate percentage amount of material charges relating to the rerack project compared with the total cost of the project. Direct and overhead costs therefore total $11,432,454.83. The court then offset that amount by $800,000.00 for net benefits received from the reracking project.Kansas Gas & Electric Co. v. United States, No. 04-99C, 41 ELR 20040 (Fed. Cl. Nov. 30, 2010) (Miller, J.).

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

THE FEDERAL AGENCIES

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

AIR:

  • EPA and the National Highway Traffic Safety Administration issued a supplemental notice of intent on their joint proposed rulemaking to reduce greenhouse gas emissions of light-duty vehicles for model years 2017-2025.75 FR 76337(12/8/10).
  • EPA seeks public comment on its decision to allow emergency stationary engines to operate for up to 15 hours per year.75 FR 75937(12/7/10).
  • EPA entered into a proposed settlement agreement that establishes deadlines for the Agency to take action on NAAQS for the Baton Rouge, Louisiana, area.75 FR 75672(12/6/10).
  • SIP Proposals: Alaska (update of PSD program)75 FR 75658(12/6/10). Illinois (nitrogen oxide waiver request for the Chicago-Gary-Lake County, Illinois-Indiana, and St. Louis, Missouri-Illinois, eight-hour ozone nonattainment areas)75 FR 76332(12/8/10). New Hampshire (attainment of the 1997 eight-hour ozone NAAQS for the Boston-Manchester-Portsmouth nonattainment area)75 FR 75656(12/6/10).

ENERGY:

  • EPA established annual percentage standards under CAA §211(o) for cellulosic biofuel, biomass-based diesel, advanced biofuel, and renewable fuels produced or imported in calendar year 2011.75 FR 76790(12/9/10).

OFFICE OF THE PRESIDENT:

  • The president proclaimed December 6, 2010, as the 50th anniversary of the Arctic National Wildlife Refuge.75 FR 76611(12/9/10).

WATER:

  • EPA finalized minimum requirements under the SDWA for underground injection of carbon dioxide for the purpose of geologic sequestration.75 FR 77230(12/10/10).
  • EPA announced issuance of the final NPDES general permit for discharges incidental to the normal operation of vessels for Pennsylvania and Iowa.75 FR 76984(12/10/10).
  • EPA established criteria for nitrogen/phosphorus pollution in the lakes, flowing waters, and springs of Florida.75 FR 75762(12/6/10).

WILDLIFE:

  • FWS designated approximately 13 miles of stream in the Turkey Creek Watershed in Jefferson County, Alabama, as critical habitat for the vermilion darter under the ESA.75 FR 75913(12/7/10).
  • FWS designated approximately 187,157 square miles in Alaska and adjacent territorial and U.S. waters as critical habitat for the polar bear under the ESA.75 FR 76086(12/7/10).
  • NOAA-Fisheries announced a 12-month finding on a petition to list the ringed seal as a threatened or endangered species under the ESA; the agency found that listing of the Arctic, Okhotsk, Baltic, and Ladoga subspecies as threatened is warranted.75 FR 77476(12/10/10).
  • NOAA-Fisheries announced a 12-month finding on a petition to list the bearded seal as a threatened or endangered species under the ESA; the agency found that listing of the Beringia and Okhotsk distinct population segments as threatened is warranted.75 FR 77496(12/10/10).

DOJ NOTICES OF SETTLEMENT:

  • United States v. Great American Financial Resources, Inc., No. 6:10-cv-01783 (M.D. Fla. Dec. 1, 2010). A settling CERCLA defendant responsible for violations at the Sprague Electric Company Superfund Alternative site in Longwood, Florida, must pay all past and future U.S. response costs incurred at the site.75 FR 77000(12/10/10).
  • United States v. Combined Development Co. I, LLC, No. 1:10-cv-853 (S.D. Ohio Dec. 3, 2010). Settling Residential Lead-Based Paint Hazard Reduction Act defendants that failed to make proper disclosures at housing units in or near Cincinnati, Ohio, must pay an administrative penalty of $7,500, must certify compliance with residential lead paint notification requirements, must submit a plan for replacement of all windows that are not certified lead-based paint free, and must abate lead-based paint hazards on friction and impact surfaces and stabilize other lead-based paint hazards.75 FR 76754(12/9/10).
  • United States v. Beazer Homes USA, Inc., No. 3:10-cv-01133 (M.D. Tenn. Dec. 2, 2010). A settling CWA defendant responsible for violations at home sites in 21 states must pay civil penalties; must develop improved pollution prevention plans for each construction site; must conduct additional site inspections and promptly correct any problems detected; must properly train construction managers and contractors; and must implement a management and internal reporting system to improve oversight of on-the-ground operations.75 FR 76487(12/8/10).
  • United States v. NCR Corp., No. 10-C-910 (E.D. Wis. Dec. 1, 2010). Settling CERCLA defendants, Brown County, Green Bay, Wisconsin, and the United States, who are responsible for polychlorinated biphenyl contamination at the Lower Fox River and Green Bay Superfund site in northeastern Wisconsin, must pay a total of $5.2 million into a set of site-specific special accounts to finance future cleanup and natural resource restoration work at the site.75 FR 76025(12/7/10).
  • United States v. Interprint, Inc., No. 3:10-cv-30223 (D. Mass. Nov. 30, 2010). A settling CAA defendant responsible for violations at a printing facility in Pittsfield, Massachusetts, must pay an $80,000 civil penalty, must institute injunctive relief in the form of production limits and restrictions while seeking plan approval under the Massachusetts SIP, and must perform a supplemental environmental project valued at $305,000.75 FR 75698(12/6/10).
  • United States v. City of Newburgh, No. 08 Civ. 7378 (S.D.N.Y. Nov. 30, 2010). Under a modified consent decree, 27 additional settling CERCLA parties responsible for the transportation of hazardous scrap metal materials to the Consolidated Iron and Metal Co. Superfund site in Newburgh, New York, must pay $276,655 to both the United States and to five of the parties to the original consent decree.75 FR 75698(12/6/10).

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

THE CONGRESS

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

Chamber Action

  • H.R. 6184 (water permits), which would amend the Water Resources Development Act of 2000 to extend and modify the program allowing the Secretary of the Army to accept and expend funds contributed by non-federal public entities to expedite the evaluation of permits, was passed by the Senate. 156 Cong. Rec. S8605 (daily ed. Dec. 7, 2010).

Committee Action

  • S. 4016 (water restoration)was reported by the Committee on Environment and Public Works. S. Rep. No. 111-358, 156 Cong. Rec. S8641 (daily ed. Dec. 8, 2010). The bill would amend the Federal Water Pollution Control Act to establish within EPA a Columbia Basin Restoration Program.

Bills Introduced

  • S. 4014 (Cantwell, D-Wash.) (fisheries)would provide for the replacement or rebuilding of a vessel for the Non-American Fisheries Act trawl catcher processors that comprise the Amendment 80 fleet. 156 Cong. Rec. S8599 (daily ed. Dec. 7, 2010). The bill was referred to the Committee on Commerce, Science, and Transportation.
  • H.R. 6511 (Poe, R-Tex.) (cap-and-trade)would prohibit funding for EPA to be used to implement or enforce a cap-and-trade program for greenhouse gases. 156 Cong. Rec. H8286 (daily ed. Dec. 9, 2010). The bill was referred to the Committee on Energy and Commerce.
  • H.R. 6515 (Linda Sanchez, D-Cal.) (wind energy) would amend the Internal Revenue Code of 1986 to modify the energy credit for microturbine property. 156 Cong. Rec. H8286 (daily ed. Dec. 9, 2010). The bill was referred to the Committee on Ways and Means.

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:

CaliforniaMarylandMontanaNew JerseyOhioVermont

CALIFORNIA

Toxic Substances:

MARYLAND

Water:

  • The Department of the Environment proposed to amend Md. Code Regs 26.04.01, Water Supply, Sewage Disposal, and Solid Waste. The rules are intended to reduce the risk of viruses in ground water systems, update the unregulated contaminant list, enhance the implementation of existing rules to protect public water system customers from exposure to lead and copper in drinking water, and clarify the requirements of current state regulations to control disinfectants and disinfection byproducts and surface water treatment. There will be a public hearing January 3, 2011.Seehttp://www.dsd.state.md.us/mdregister/3725.pdf(pp. 1752-62).

MONTANA

Wildlife:

NEW JERSEY

Toxic Substances:

  • The Department of Community Affairs proposed to readopt N.J. Admin. Code §8.60, Asbestos Licenses and Permits, set to expire on April 25, 2011. There will be a public hearing December 28, 2010, and the deadline for comments is February 4, 2011.Seehttp://www.lexisnexis.com/njoal/(42 N.J.R. 2882(a)).

OHIO

Hazardous & Solid Waste:

  • The Environmental Protection Agency seeks public comment on proposed changes to Ohio Admin. Code 3745.27, pertaining to research, development, and demonstration projects to stabilize waste through bulk liquid addition, frequently referred to as bioreactor landfills. The deadline for public comment is January 5, 2011.Seehttp://www.registerofohio.state.oh.us/pdfs/phn/3745_NO_126187_20101130_1530.pdf.

Water:

  • The Environmental Protection Agency seeks public comment on proposed changes to Ohio Admin. Code 3745, pertaining to water quality standards for surface waters of the state and the administrative and technical requirements for wastewater discharge permits. Significant amendments include revision to mixing zone requirements, clarification on facilities required to obtain wastewater discharge permits, revision to imposition of standards of performance for wastewater facilities, revision to the fish tissue mercury value, and revision to minimum monitoring requirements for whole effluent toxicity testing. The deadline for public comment is January 6, 2011.Seehttp://www.registerofohio.state.oh.us/pdfs/phn/3745_NO_126081_20101130_0917.pdf.

VERMONT

Water:

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

INTERNATIONAL

PUBLIC AND REGULATORY TROUBLES FOR ALBERTA OILSANDS

Canadian oilsands projects fell under fire as a range of critics launched campaigns against expanded development. The No Tar Sands Coalition, a body of several environmental groups, launched a $500,000 campaign of radio, print, and television ads calling on Canadian and American politicians and citizens to reject TransCanada's proposed Keystone XL pipeline, which would cross one of the country's main aquifers, the Ogallala. Federal agencies suffered criticism as well. In Alberta, Canada's federal environment commissioner said that Environment Canada has not acted on its own internal recommendation to increase its monitoring of oilsands pollutants and surface water resources near oilsands extraction sites. Environment Canada's year-old report on water from a monitoring station in Wood Buffalo National Park, 150 kilometers downstream from oilsands, indicated that the station was set up to do long-term tracking of nutrients in the river that could be affected by pulp and paper production, but not pollutants related to oilsands development. The report recommended expanding monitoring parameters to include oilsands pollutants, a recommendation that is still under consideration. In addition to pressure within federal agencies, First Nations groups have called for a cessation of certain development. Last Thursday, two aboriginal bands in Alberta demanded First Nations veto power over certain new oilsands projects, saying that low river levels affect how much they can use their lands, most of which are accessible only by boat. Alberta Environment is currently reviewing claims that oilsands development has restricted the ability of area aboriginal bands to exercise traditions and rights. In the face of public ire for expanded development, industry groups have launched their own ad campaigns. Advertising Standards Canada, an industry group, rejected a request from the Sierra Club of Canada to stop an ad from the Canadian Association of Petroleum Producers, which likened toxic waste from oilsands production to yogurt. In response to a decision by the Energy Resources Conservation Board to exempt Syncrude from certain tailings laws, Ecojustice released a report calling the regulator's rules "toothless." For the story on Environment Canada's criticism, seehttp://www.vancouversun.com/travel/Oilsands+monitoring+falling+short+environment+commissioner/3940593/story.html. For the story on the No Tar Sands Coalition's campaign, seehttp://green.blogs.nytimes.com/2010/12/08/backers-rev-up-oil-sands-campaign/?src=twrhp. For the story on First Nations rights, seehttp://www.cbc.ca/canada/edmonton/story/2010/12/09/edmonton-treaty-rights-athabasca-river.html. For the story on Syncrude, seehttp://www.canadianbusiness.com/markets/headline_news/article.jsp?content=b5366372. For the story on the "yogurt" ad campaign, seehttp://mediadecoder.blogs.nytimes.com/2010/11/30/like-yogurt-but-not-as-tasty/.

BINDING CO2 CUTS PROVE STOPPING BLOCK FOR CANCUN TALKS

Climate talks stalled after Japan refused to agree to extend Kyoto beyond 2012 without binding agreements from developing nations, and several developing nations called for commitments from wealthy nations before they wouldsign up for curbs that would damage their drive to end poverty. Prime Minister David Cameron spoke to Japanese Prime Minister Naoto Kan by telephone to attempt to end the standoff, which has angered many developing countries. Spokespeople from Tuvalu, Micronesia, and other island countries pleaded with nations in the talks to enter into agreements. "We're talking about survival,"said Marcus Stephen, president of Nauru and head of the group of 14 Pacific Small Island Developing States at the UN negotiations.Meanwhile, India revised its long-held stance that it will not enter into any binding agreements;Environment Minister Jairam Ramesh said it was time to shift India's stance by accepting the need for cuts as part of a new legally binding climate pact. "All countries must make binding commitments in appropriate legal form. This does not mean that India is for a legally binding commitment at this stage. That's our position. There are changing realities that we have to understand. Increasingly, more and more developing countries are asking questions of India, China and the United States, the three big countries saying they will not accept an international legally binding agreement. I have nuanced our position." For the story on Japan, seehttp://www.reuters.com/article/idUSTRE6AR1OI20101210. For the story on India, seehttp://www.reuters.com/article/idUSTRE6B91F720101210. For the story on Pacific island nations, seehttp://www.reuters.com/article/idUS67308569520101209.

AUSTRALIA, DENMARK, AND GERMANY DEAL WITH HAZARDOUS WASTE

As Australia and Denmark deal with a shipment of hazardous waste due to sail north, Germany has halted a shipment due to travel east to Russia. After an outcry in Denmark at a plan to accept some 44 containers of hexachlorobenzene from Australia at a facility in Nyborg, the Danish government postponed an agreement until it could discuss the plan with Australia, which has no acceptable facilities to treat the waste. Greenpeace has said that the facility in Nyborg is out of date, and that a newer facility should be made available in Australia, as shipping toxic chemicals around the world poses an unacceptable risk. In Germany, Environment Minister Norbert Roettgen decided last week that nuclear waste from a former East German nuclear plant would stay in Germany for the time being, until he could be assured that the facilities that will treat them in Russia can safely handle the waste. For the story on the Denmark/Australia waste, seehttp://www.google.com/hostednews/afp/article/ALeqM5jyycNRPVB-ow5K5rTgpf45sbtg3w?docId=CNG.33be1f10f106ddf0b556268c38d6abda.851. For the story on German nuclear waste, seehttp://www.dw-world.de/dw/article/0,,6298814,00.html.

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

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