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Weekly Update Volume 40, Issue 7

03/01/2010

FORESTS, TIMBER HARVESTING, CONTRACTS

The Federal Circuit reversed in part and affirmed in part a lower court decision that held that the United States breached express and implied warranties to a timber harvesting company when it suspended certain timber harvesting contracts in order to comply with a court order that prohibited harvesting until, as required under ESA §7, the U.S. Forest Service had consulted with the FWS about the relevant land resource management plans. Based on the plain language of the contracts, there is no express warranty that the Forest Service will follow any particular procedures or will comply with any particular statutory requirements in devising the “special measures” listed in the contracts. In fact, the contracts disclaim any explicit or implicit suggestion that listed “special measures” are complete, unchanging, or assured to be adequate. The Forest Service also did not breach any implied duties: the plain terms of the contracts authorize the Forest Service to suspend operations under the contracts to comply with a court order. Moreover, the Forest Service’s actions during the suspension and, more particularly, during consultations with FWS did not breach any implied duty because they did not specifically target a benefit of the contracts nor did they re-appropriate any benefit guaranteed by the contracts since uninterrupted contract performance following an ESA listing was not a benefit guaranteed by the contracts. The company was, however, entitled to damages with respect to the one harvesting contract that did not contain any authority for the Forest Service to suspend operations. For that contract, substantial evidence supported the lower court’s calculation of damages, and the lower court did not abuse its discretion in refusing to reopen the record.Precision Pine & Timber, Inc. v. United States, Nos. 2008-5092, -5093, 40 ELR 20055 (Fed Cir. Feb. 19, 2010).

CERCLA, CONTRIBUTION, CONSENT ORDER

The Second Circuit affirmed in part and reversed in part a lower court judgment relating to a PRP’s action against defendants under CERCLA and state law for contribution costs resulting from the identification and cleanup of hazardous substances on certain parcels of real property. The PRP settled its CERCLA liability with the New York State Department of Environmental Conservation (DEC) through a consent order. EPA, which was not a party to the order, did not expressly authorize the DEC to settle. Based on the plain text of the statute, the court held that the consent order qualified as an administrative settlement of liability under CERCLA §113(f)(3)(B). The provisions of the statute come into play once a PRP resolves its liability to the United Statesor a state: the statute does not require the United States to acquiesce in an administrative settlement. Nor does it require federal delegation of authority to a state to settle claims. The PRP was therefore entitled to seek contribution under CERCLA. At the same time, since the PRP’s claim fits squarely within the more specific requirements of §113(f)(3)(B), the PRP cannot seek recovery costs under CERCLA §107(a)(4)(B). As to NCP compliance, one way to establish compliance is to conduct a response under the monitoring, and with the ultimate approval, of the state’s environmental agency. Here, the PRP’s compliance with the consent order established its NCP compliance. As to the summary judgment motions, the analysis of a “genuine dispute of material fact” in the context of a CERCLA §113 claim may seem limited and constrained: the party seeking contribution need not establish the precise amount of hazardous material discharged or prove with certainty that a PRP defendant discharged the hazardous material to get its CERCLA claims past the summary judgment stage. Indeed, summary judgment is only proper when a defendant establishes it is not liable at all under CERCLA – namely, it is not a PRP under the statute, there is no plausible evidence that it discharged hazardous materials, or it is eligible for one of the three affirmative defenses available under §107. Here, summary judgment should not have been granted in favor of the defendants for certain of their claims as there were genuine issues of material fact as to defendants’ liability. Finally, the PRP’s state claims for contribution, indemnification and unjust enrichment were preempted under CERCLA.Niagara Mohawk Power Corp. v. Chevron U.S.A., Inc., Nos. 08-3843, -4007, 40 ELR 20060 (2d Cir. Feb. 24, 2010).

OIL SPILL, CLASS CERTIFICATION

The First Circuit vacated a lower court decision that denied class certification to property owners in their action against the owners and operators of a barge that discharged a substantial amount of oil into a Massachusetts bay. The court held that, although the lower court’s fact finding was too sparse to provide a prudent basis to say that a class should have been certified, the property owners had presented substantial evidence of predominating common issues that called for a searching evaluation. Ruling on certification without grappling in detail with the parties’ contending proffers and arguments stopped short of exercising informed discretion. The judgment is therefore vacated and remanded for plenary consideration that precedent requires.Gintis v. Bouchard Transp. Co., No. 09-1717, 40 ELR 20057 (1st Cir. Feb. 23, 2010).

ESA, BIOLOGICAL OPINION, TEMPORARY RESTRAINING ORDER

A district court denied water districts’ motion for a temporary restraining order against the implementation of a reasonable and prudent alternative (RPA) set forth in a NMFS biological opinion prepared pursuant to the ESA. The RPA, which put in place certain pumping restrictions, was implemented to address the impacts of a water project’s operations on the delta smelt. In considering the likelihood of success on the merits, the court held that, although the United States had failed to comply with NEPA, the court’s authority to issue an injunction against implementation of the RPA based on a NEPA violation is limited. Injunctive relief is precluded where enjoining government action allegedly in violation of NEPA might actually jeopardize natural resources. Nor may an injunction issue if it would cause violation of another law, here the ESA. Moreover, no ESA violation has been found in this case: the FWS scientists opine that jeopardy to the species and/or adverse modification of its critical habitat is imminent and occurring, while the districts’ experts have not discredited the FWS’s affirmative finding that that the implementation of the RPA is necessary to avoid jeopardy and/or adverse modification. Since the court is without authority to balance the equities under the ESA, the motion for a TRO is denied without prejudice. Delta Smelt Consolidated Cases, No. 1:09-cv-407, 40 ELR 20051 (E.D. Cal. Feb. 12, 2010) (Wanger, J.).

CWA, SMCRA, CITIZEN SUITS

A district court granted in part and denied in part environmental groups’ motion for summary judgment on certain CWA and SMCRA claims against a mining company. Prior to the filing of the lawsuit, the company had entered into a consent order with the West Virginia Department of Environmental Protection (WVDEP) for violations of permits that imposed effluent limitations. The court held that the groups’ claims were not precluded as a collateral attack on the civil penalties imposed by the order. This is not one of those instances in which a state enforcement action is to be given preclusive effect. While the WVDEP’s decision warrants deference, deference does not become a bar. The groups are therefore not barred from seeking additional penalties for violations within the consent order or those occurring afterwards. In addition, with respect to those violations occurring after the consent order, the groups’ claims do not usurp the WVDEP’s role as the primary enforcer of the CWA. If an agency is unable to compel compliance and the alleged violator continues to violate the CWA following a 60-day period, citizens are empowered to enforce the terms of the CWA through a citizen suit. The groups complied with this time frame here. On the merits, although modification orders were issued by the WVDEP that extended the compliance date for aluminum effluent, the orders did not comply with the requisite procedures. They were therefore defective and the citizen suit may proceed based on the terms of the original permits. For certain post-suit violations, the groups were able to establish that there is no genuine dispute of material fact based on discharge monitoring reports submitted by the company to the WVDEP. For the remaining post-suit violations, there is still a genuine dispute of material fact as to whether the trier of fact could find a continuing likelihood of a recurrence in intermittent or sporadic violations. An affidavit and the company’s expectation that the problem is resolved are insufficient to make it absolutely clear that the violations could not reasonably be expected to recur.Sierra Club v. Powellton Coal Co., LLC, No. 2:08-1363, 40 ELR 20052 (S.D.W. Va. Feb. 3, 2010) (Copenhaver, Jr., J.).

APA, FORESTS, MANAGEMENT PLAN

A district court granted the United States’ motion for summary judgment to find that certain timber harvesting provisions of a forest management plan did not violate the Alaska National Interest Lands Conservation Act (ANILCA) and the Tongass Timber Reform Act (TTRA). Plaintiffs – several Alaskan cities and regional, non-profit corporations – brought suit under the APA to challenge the management plan on three grounds: (1) the “old growth reserves” land use designation “withdraws” land in violation of ANILCA; (2) the strategy to allow timber harvest to proceed in phases makes it improbable that the United States will be able to fulfill its obligation under the TTRA to seek to meet market demand for an integrated timber industry; and (3) the management plan imposes “non-statutory” constraints on the United States’ obligation under TTRA to seek to meet market demand for an integrated timber industry. The court disagreed on each ground. First, a “withdrawal” exempts covered land from the operation of laws that otherwise authorize the transfer of federal lands to the private domain for private use. Land use designations neither exempt lands from the operation of public land laws nor suspend the operation of those laws on certain lands. Accordingly, the land use designation of “old growth reserves” is not a withdrawal. Second, the TTRA only instructs the United States to seek to provide a supply of timber from the Tongass National Forest that meets the annual market demand for timber from such forest and meets the market demand from such forest for each planning cycle. It says nothing at all about an integrated timber industry. The United States is therefore not obligated to seek to meet the market demand of an integrated timber industry in its management plan. And, even if plaintiffs had properly challenged the United States’ projections of market demand, they failed to provide sufficient evidence to show that the United States was incorrect in concluding that the management plan would permit it to meet these projections. Third, plaintiffs present no argument that the “non-statutory” constraints specifically limit the United States’ ability to meet market demand, but cast their argument in terms of market demand for an integrated timber industry. Accordingly, this argument must also fail.Southeast Conference v. Vilsack, No. 08-1598, 40 ELR 20047 (D.D.C. Feb. 17, 2010) (Bates, J.).

WILDERNESS, NEPA, INJUNCTIVE RELIEF

A district court denied environmental groups’ motion for injunctive relief and found that the use of helicopters by the U.S. Forest Service to dart and collar wolves in the Frank Church Wilderness did not violate the Wilderness Act or NEPA. The Forest Service issued a special permit to the Idaho Department of Game and Fish (IDFG) to use helicopters to dart and collar wolves over a two-week period with a maximum of 20 landings. The flights coincided with IDFG’s annual big game survey. The court held that the collaring project and its use of helicopters are sufficiently limited and focused on restoring the wilderness character of the area such that they are necessary to meet the minimum requirements for the administration of the area as required under the Wilderness Act. And, even though the Forest Service did not conduct an EA or EIS, the collaring operation falls into the categorical exclusion for a “research activity” or “study” that is properly limited in context and intensity. Although the use of helicopters in a wilderness area is highly intrusive and controversial and must be deemed intense, their use appears to be properly limited so as to fall within the exclusion: the fly-overs are restricted to 20 landings over a two-week period during which fly-overs for the annual big game survey will be occurring. As well, the use of helicopters is designed to restore a specific aspect of the wilderness character of the Frank Church Wilderness that had been earlier destroyed by man. In this context, the helicopter flights for this particular operation are consistent with the exclusion.Wolf Recovery Found. v. U.S. Forest Service, No. 09-0686, 40 ELR 20056 (D. Idaho, Feb. 19, 2010) (Winmill, J.).

CERCLA, CLEAN-UP COSTS, OWNER/OPERATOR

A district court granted the United States’ motion for summary judgment to recover under CERCLA costs it incurred to clean up hazardous substances from a metal plating facility. First, on the issue of responsible party, the court held that, although it was a disputed question of fact as to whether defendant was a responsible party under CERCLA as a past operator of the facility, defendant was a current owner for purposes of CERCLA. Specifically, the court held that defendant was a facility owner at the time of the cleanup based on his ownership of equipment used in the plating process. Just as CERCLA extends liability to a landowner who may not even be aware of pollution-producing activities by a lessee, it also extends liability to an equipment owner like defendant whose lessee is using the equipment in a similar manner. The United States need not show that any specific piece of equipment he owned was responsible for specific releases of hazardous chemicals or specific cleanup costs. Second, on the issue of release or a threatened release of a hazardous substance, it was undisputed that thousands of gallons of hazardous waste were being stored unsafely in a building with a deteriorating concrete floor. This is sufficient to show a threatened release of hazardous waste. Third, on the costs incurred in response to the release or threatened release, it was sufficient to show that the material the government cleaned up was threatening a release. Once the requisite connection between the defendant and a hazardous waste site has been established, it is enough that response costs resulted from “a” release or threatened release – not necessarily the defendant’s release or threatened release. Finally, based on the facts of the case, all of defendant’s defenses fail, including defendant’s CERCLA third-party defense. The goals of CERCLA would not be advanced by holding that an equipment owner exercises due care merely by including a provision in the equipment lease requiring the equipment user to comply with the law. Defendant’s defenses related to apportionment and government misconduct also fail.United States v. Saporito, No. 07C3169, 40 ELR 20053 (N.D. Ill. Feb. 9, 2010) (Pallmeyer, J.).

CERCLA, CLEANUP COSTS, PREEMPTION

A district court denied a company’s motion to dismiss the claims of the Pennsylvania Department of Environmental Protection (PADEP) to recover under CERCLA costs it incurred to cleanup Strontium-90 (Sr-90), a radioactive and hazardous nuclear byproduct material, from the Quehanna Wild Area Nuclear Site. As a preliminary matter, the court held that, based on statutory language and legislative history, CERCLA cost recovery actions are permitted for the clean-up of NRC decommissioned sites so long as the actions otherwise meet the requirements for cost recovery imposed by CERCLA. As to these other requirements, although Sr-90 is excluded from the CERCLA definition of “disposal” as a byproduct material under the Atomic Energy Act (AEA), it is included in the CERCLA definition of “hazardous substance.” The fact that Congress chose to give EPA discretion to define specifically what substances constitute “hazardous substances” means that the court can appropriately infer an implicit congressional delegation of interpretative authority of CERCLA to EPA. Deferring to EPA, the disposal of Sr-90 can constitute a “disposal of a hazardous substance” for purposes of CERCLA liability. At this stage of the proceeding, (1) PADEP has adequately alleged that the company disposed of Sr-90 during its operation of the site; (2) it cannot be concluded whether the “release” exemption found in CERCLA §101(22) applied to the release of Sr-90 at the site because there is a factual dispute as to whether the contract at issue required financial protection; and (3) it cannot be concluded whether the release of Sr-90 at the site was “in compliance with” the byproduct materials license at issue and, as such, subject to the exclusion of CERCLA liability for “federally permitted releases.” As to state law claims, such claims are not preempted by the AEA because they do not directly involve nuclear safety concerns, there is no direct and substantial effect on the decisions made by those who run nuclear facilities, and there are no irreconcilable conflicts between the claims and the AEA.Pennsylvania Dep’t of Envt’l Prot. v. Lockheed Martin Corp., No. 1:09-CV-0821, 40 ELR 20050 (M.D. Pa. Feb. 1, 2010) (Rambo, J.).

MINING, CITATION QUOTA

A district court granted in part and denied in part the motion of the Mine Safety and Health Administration (MSHA) to dismiss a mine operator’s action relating to the MSHA’s use of a citation quota, which allegedly caused mine inspectors to issue baseless citations to the operator. As a preliminary matter, the court held that the claims were ripe for adjudication: a final disposition of the citations was not necessary, and the quota had enough legal consequence to be a final agency action. District court review was proper because the operator’s claims were outside administrative jurisdiction and wholly collateral to the review provisions of the Federal Coal Mine Health and Safety Act (Mine Act). Additionally, a finding that the district court lacked jurisdiction would preclude any meaningful adjudication of the operator’s claims. At the same time, the Mine Act does not vest jurisdiction in the courts of appeals over the quota since the quota is not a mandatory health or safety standard promulgated under Mine Act §101. As to the merits, the operator failed to state a claim because (1) increased litigation costs do not constitute a deprivation of a property right so as to establish a due process claim; (2) there is no patent inconsistency with a large quota and the Mine Act; and (3) the quota is a rule of agency organization, procedure or practice and a personnel matter and, as such, is exempt from the notice and comment procedure required for mandatory health and safety standards.Am. Coal Co. v. Mine Safety and Health Admin., No. 08-CV-0814, 40 ELR 20058 (S.D. Ill. Feb. 19, 2010) (Reagan, J.).

DREDGING, INJUNCTIVE RELIEF

A district court granted in part and denied in part the state of Delaware’s motion for a preliminary injunction to enjoin the U.S. Army Corps of Engineers from dredging the Delaware River in order to deepen a navigational channel. In its complaint, Delaware alleged that the Corps’ plan to deepen the navigational channel without obtaining the requisite federal and state approval violated the CWA, the CAA, and the CZMA. On the likelihood of success on the merits, the court upheld the Corps’ invocation of the navigation exception contained in CWA §404(t), which allowed the Corps to proceed with dredging in order to “maintain navigation” due to delays in the state permitting process. In addition, Delaware may not revoke its previous concurrence with the Corps’ consistency determination under the CZMA. Once it concurred, it waived any objections to the deepening project with respect to the Delaware coastal management plan. The Corps failed to demonstrate, however, that it's plan conformed to the applicable SIPs because it did not sufficiently identify a specific source and amount of emission reduction credits to offset excess NOx emissions from the project. In assessing the likelihood of irreparable injury, there was a lack of evidence in the record demonstrating environmental harm, and the balance of equities and the public interest weighed in the Corps’ favor because, based on the volume of business passing through the Delaware ports, any loss in market share due to the ports’ incapacity to handle ships of a certain draft will harm the local economy. Nonetheless, with the exception of deepening one section of the project, the court enjoined the remainder of the dredging project until further order of the court.Delaware Dep’t of Natural Res. and Envt’l Control v. U.S. Army Corps of Engineers, No. 09-821, 40 ELR 20059 (D. Del. Jan. 29, 2010) (Robinson, J.).

CERCLA, CONTRIBUTION

A district court found a vehicle salvage company liable under CERCLA and the Indiana Environmental Legal Actions law (ELA) for contribution toward response and remediation costs related to releases of lead into the soil at the real property site now owned by the city of Gary. Although the city was unable to show that the company leaked lead from vehicle batteries onto or into the soil at the site, it showed that the company had committed a disposal or release of a hazardous substance by moving a small amount of lead-contaminated soil when it removed piles of tires at the site. Whether the company knew that the soil was contaminated when it caused the soil to be moved is irrelevant. The amount or volume of soil moved is also irrelevant. At the same time, the company was unable to invoke the innocent landowner defense. Although the company was able to prove that there was no contractual relationship between itself and the city relating to the release of lead onto the site, it was unable to prove the other elements of the defense: because the city has sufficiently proven that the owner committed a disposal of lead-contaminated soil at the site, albeit a minimal one, the company is necessarily unable to prove that the release or disposal of lead contamination at the site wassolelycaused by the city. Moreover, the company made no attempt to test the site for, or remove, hazardous substances resulting from a previous owner’s operations. It therefore failed to prove that it exercised due care with regard to hazardous substances at the site. The company was, however, able to establish a contribution claim against the city under CERCLA §113(f) and the ELA. Although there was no evidence that the company had incurred any response costs to date, the court held that it would incur future response costs based on the court’s holding that the company must contribute towards cleanup costs. The court further granted the company’s third-party complaint against a former owner of the site finding that the owner committed a disposal or release of a hazardous substance by moving lead-contaminated soil at the site when it graded the soil.City of Gary v. Shafter d/b/a Paul’s Auto Yard, No. 2:07-cv-00056, 40 ELR 20061 (N.D. Ind. Feb. 10, 2010) (Cherry, M.J.).

MINING, ESA, INCIDENTAL TAKE PERMIT

A district court granted environmental groups’ motion for summary judgment finding that the NMFS and the FWS (collectively, the Services) acted arbitrarily and capriciously in failing to consider a mining company’s preexisting reclamation obligations as part of their environmental baseline analysis in preparing a biological opinion and an EIS for an incidental take permit (ITP). After completing its earlier mining activities, the company failed to comply with state requirements for reclaiming the affected mining areas. The company proposed to meet its preexisting reclamation obligations as part of the commitments it made to the Services in order to be granted ITPs. The court held that, in establishing the baseline for their analysis, the Services should, at a minimum, consider the state of the land as it should have been if the company had met its state reclamation obligations. These obligations were not “hypothetical” but rather legal requirements binding the company to reclaim the property subject to the original permit. The Services’ biological opinions were therefore set aside for failing to apply the proper environmental baseline, and the matter remanded to the Services for further consideration.Friends of the East Fork, Inc. v. Thom, No. C05-0189, 40 ELR 20063 (W.D. Wash. Feb. 11, 2010) (Robart, J.).

CERCLA, OPERATOR LIABILITY

A district court held that the inspector and loader of an oil tank car that ultimately spilled were not operators for purposes of CERCLA. Based on the clear statutory language, legislative history and caselaw, operator liability is limited to those who operated a facility at the time of disposal. As neither the inspector nor loader had any ability to manage, direct or conduct operation of the tank car at the time of disposal, they cannot be found to be operators. Nonetheless, tank owner is granted leave to amend its complaint in order to assert state law claims for indemnity against the inspector and loader because CERCLA does not preclude liability for those outside of the statutory scheme of covered persons.Veolia Es Special Servs., Inc. v. Hiltop Invs. Inc., No. 3:07-0153, 40 ELR 20062 (S.D.W. Va. Feb. 18, 2010) (Chambers, J.).

CALIFORNIA ENVIRONMENTAL QUALITY ACT, STATUTE OF LIMITATIONS

The California Supreme Court reversed a lower court decision to hold that an environmental group’s mandamus petition, which challenged a county’s approval of an agreement between the county and a university relating to the alignment of certain trails, was time barred under the California Environmental Quality Act (CEQA). The university applied for a permit to add buildings on its campus. In order to mitigate the environmental impacts of this project, the permit required the university to, among other things, identify trail easements and reach agreements with the county on issues of trail construction, management and maintenance. An agreement was reached with the county with respect to certain trail alignments. After determining that no environmental review was presently required, the county approved the agreement and disclosed its findings in a notice of determination (NOD). One hundred and seventy one days after the NOD was filed, the group filed a mandamus petition, asserting that the agreement violated the CEQA because it approved a trail alignment without conducting the necessary environmental review. The county demurred on the ground that the petition was barred by the statute of limitations (SOL) under §21167 of the California Public Resources Code. The group countered that subdivision (a) of that provision, which set a 180 day limitation period, applied since the agreement constituted a “project” and the county approved this project without determining its environmental effects. The court disagreed, holding that the 30-day SOL applied. In determining which SOL applies, the determinative question is not what type of violation the plaintiff has alleged, but whether the action complained of was disclosed in a public notice. The limitations period cannot be extended based on the nature of the CEQA violation. This interpretation is consistent with the plain language of §21167, the regulatory guidelines implementing CEQA, the relevant legislative history and the key policy objectives of the statute. Here, because an NOD was filed, the group had only 30 days to challenge any decisions announced in the notice. Its petition was therefore time barred.Comm. for Green Foothills v. Santa Clara County Board of Supervisors, No. S163680, 40 ELR 20045 (Cal. Feb. 11, 2010).

WATER QUALITY, JURISDICTION

New York’s highest court affirmed a lower court decision that denied petitioners, who own and operate a hydroelectric dam, a CPLR article 78 petition in the nature of prohibition to prevent the New York State Department of Environmental Conservation (DEC) from bringing an administrative enforcement proceeding against them for the violation of a variety of state water quality laws. DEC commenced an enforcement proceeding against petitioners related to an alleged release of sediment from a dam. Petitioners argued that DEC’s authority over a federally regulated dam was preempted by federal law, and DEC was therefore proceeding in excess of its jurisdiction. The court held that petitioners failed to establish a clear legal right to relief or that prohibition would provide a more complete and efficacious remedy than the administrative proceeding and resulting judicial review. Petitioners have not clearly established that DEC’s enforcement action is in excess of its jurisdiction. Whether the causes of action fall within the state’s power to determine that construction and operation of the project as planned would be inconsistent with one of the designated uses of the water should be determined, in the first instance, through the administrative process.Chasm Hydro, Inc. v. N.Y.S. Dep’t of Envt’l Conservation, No. 10, 40 ELR 20046 (N.Y. Feb. 16, 2010).

BROWNFIELD SITE, CLEANUP

New York’s highest court reversed a lower court decision to hold that the New York State Department of Environmental Conservation (DEC) acted arbitrarily and capriciously and contrary to law when it determined that certain real property did not fall within the statutory definition of a brownfield site. A developer planned to develop two sites into a mixed-use development and filed requests for acceptance into the Brownfield Cleanup Program (BCP). DEC denied these requests on the ground that the properties were not brownfield sites within the meaning of §27-1405(2) of the New York Environmental Conservation Law. The court disagreed, holding that real property qualifies as a brownfield site for purposes of acceptance into the BCP so long as the presence or potential presence of a contaminant within its boundaries makes redevelopment or reuse more complex, involved, or difficult in some way. This low eligibility threshold is consistent with the statute’s legislative history. Here, the developer has produced undisputed evidence demonstrating that the presence of contaminants at the properties has complicated redevelopment or reuse in several ways.Lighthouse Pointe Prop. Assocs. LLC v. N.Y.S. Dep’t of Envt’l Conservation, No. 3, 40 ELR 20048 (N.Y. Feb. 18, 2010).

COAL REMOVAL, TAX

A Colorado appellate court reversed a lower court decision to hold that the Colorado Taxpayer Bill of Rights (TABOR) prevented the state from increasing the coal removal tax rate without prior voter approval. The tax rate is determined by a statutory formula, whereby a base rate is periodically adjusted based on changes to a broad economic index. This formula was in effect at the time voters passed TABOR. Fifteen years later, the state promulgated regulations providing that, in accordance with the statute, the tax rate would be adjusted based on the economic index. Plaintiffs – several coal companies and a mining association – challenged the state’s decision to use the statutory formula on the grounds that it violated TABOR by, among other things, causing a “tax rate increase” without voter approval. The court agreed. Nothing in TABOR distinguishes between whether a tax rate is increased directly by a statute or indirectly through application of a statutory formula tied to an outside index beyond the taxpayers’ control. A tax rate increase requires voter approval in either situation.Colorado Mining Ass’n v. Huber, No. 09CA0132, 40 ELR 20054 (Colo. Ct. App. Feb. 18, 2010).

GREENHOUSE GASES, WRIT OF MANDAMUS

A Michigan appellate court affirmed a lower court’s grant of summary judgment in favor of the Michigan Department of Environmental Quality to dismiss an environmental group’s request for a writ of mandamus with respect to the regulation of CO2 emissions. The group did not establish that it had a clear legal right to the promulgation of specific rules regarding CO2 emissions: it has not alleged a special injury distinct from the injury suffered by the general public and, as such, is not entitled to a writ of mandamus. Moreover, the administrative decision not to promulgate specific rules regarding the regulation of CO2 emissions did not constitute wrongful conduct under the Michigan Environmental Policy Act (MEPA). The group therefore failed to state a claim under MEPA and, as such, its motion for reconsideration was properly denied.Citizens for Envt’l Inquiry v. Dep’t of Envt’l Quality, No. 286773, 40 ELR 20049 (Mich. Ct. App. Feb. 9, 2010).

THE FEDERAL AGENCIES

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

AIR:

  • EPA amended NESHAPs for source categories in Maricopa County, Arizona, and Washoe County, Nevada.75 FR 8807(2/26/10).
  • EPA proposed to amend NESHAPs for source categories in Maricopa County, Arizona, and Washoe County, Nevada; see above for direct final rule.75 FR 8888(2/26/10).
  • The CEQ announced the availability of its draft guidance,Consideration of the Effects of Climate Change and Greenhouse Gas Emissions.75 FR 8046(2/23/10).
  • SIP Approvals:Indiana (volatile organic compound control rules for the Lake and Porter County eight-hour ozone nonattainment area)75 FR 8246(2/24/10). Ohio (PSD and nonattainment new source review construction permit programs)75 FR 8496(2/25/10). Virginia (compliance with opacity standards for stationary sources)75 FR 8249(2/24/10).
  • SIP Proposals:California (coarse particulate matter for the Imperial County air pollution control district)75 FR 8008(2/23/10). Ohio (attainment of the eight-hour ozone NAAQS, base year emissions inventory, and motor vehicle emission budgets for the Ohio and Indiana portions of the Cincinnati-Hamilton nonattainment area)75 FR 8871(2/26/10). Rhode Island (attainment of the 1997 8-hour NAAQS for ozone for the Providence moderate nonattainment area)75 FR 8571(2/25/10). Virginia (compliance with opacity standards for stationary sources; see above for direct final rule)75 FR 8292(2/24/10).
  • EPA proposed to review the emission standards for light-duty vehicles and trucks and the gasoline sulfur control requirements for small entities.75 FR 7426(2/19/10).

HAZARDOUS & SOLID WASTE:

  • EPA entered into a proposed administrative settlement under CERCLA that requires the settling party to pay $1,362,800 in U.S. removal costs at the Anderson-Calhoun Mine and Mill Superfund site in Leadpoint, Washington, and to conduct all future post-removal control at the site.75 FR 8346(2/24/10).

NEPA:

  • The CEQ announced the availability of its draft guidance,Establishing, Applying, and Revising Categorical Exclusions Under the National Environmental Policy Act.75 FR 8045(2/23/10).
  • The CEQ announced the availability of its draft guidance,NEPA Mitigation and Monitoring.75 FR 8046(2/23/10).

TOXIC SUBSTANCES:

  • EPA proposed revisions to the procedures used to generate test data on chemical substances under TSCA.75 FR 7428(2/19/10).

WATER:

  • EPA Region 6 announced the availability of 10 TMDLs for the Atchafalaya and Mississippi River Basins in Louisiana.75 FR 8698(2/25/10).

WILDLIFE:

  • FWS announced a 12-month finding on a petition to list the Sonoran Desert area population of the bald eagle as a distinct population segment; the Agency found that listing is not warranted.75 FR 8601(2/25/10).
  • FWS withdrew its proposed rule to list the Southwestern Washington/Columbia River distinct population segment of coastal cutthroat trout as a threatened species under the ESA.75 FR 8621(2/25/10).

DOJ NOTICES OF SETTLEMENT:

  • United States v. Belson Steel Center Scrap, Inc., No. 10 C 581 (N.D. Ill. Feb. 16, 2010). A settling CAA defendant must pay a $54,000 civil penalty for violations at its facility in Bourbonnais, Illinois; must acquire chlorofluorocarbon (CFC) removal equipment; must have properly trained operators evacuate CFCs from scrap appliances containing refrigerant; must maintain a log documenting CFC removal activities; must collect verification statements when accepting appliances that already had CFCs removed; and must provide periodic reports to EPA regarding implementation of its obligations under the decree.75 FR 8994(2/26/10).
  • United States v. ITT Corp., No. 4:10-cv-00053-SPM-WCS (N.D. Fla. Feb. 17, 2010). A settling CERCLA defendant must pay $23,308.01 in past U.S. response costs incurred at the ITT Thompson Industries Superfund site in Madison, Florida, must pay all future response costs, must conduct the EPA-selected remedial action at the site, and must maintain a performance guarantee in the amount of $2.2 million.75 FR 8402(2/24/10).
  • United States v. Magellan Pipeline Co. LP, No. 10-CV-28-CVE-FHM (N.D. Okla. Jan. 19, 2010). Settling CWA defendants must pay a $418,000 civil penalty for the discharge of gasoline from its pipeline in Oologah, Oklahoma.75 FR 7626(2/22/10).
  • United States v. Reading Co., No. 10-413 (E.D. Pa. Jan. 29, 2010). Settling CERCLA defendants must pay $93,295 in U.S. response costs incurred at the Modena Yard Superfund site in Chester County, Pennsylvania.75 FR 7626(2/22/10).
  • United States v. Bunge North America, Inc., No. 2:06-cv-02209-MPM-DGB (C.D. Ill. Feb. 4, 2010). Under a modified 2007 consent decree, a settling CAA defendant must meet revised requirements for air pollutant emissions and wastewater discharges at its facilities in Illinois, Indiana, Louisiana, and Ohio.75 FR 7627(2/22/10).
  • United States v. City of West Point, No. 08-00293 (D. Neb. Feb. 16, 2010). Settling CWA defendants must pay a $175,000 civil penalty to both the United States and to the state of Nebraska for discharges to the POTW in West Point, Nebraska.75 FR 7627(2/22/10).

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

THE CONGRESS

Committee Action

  • S. 1224 (NOAA)was reported by the Committee on Commerce, Science, and Transportation. S. Rep. No. 111-126, 156 Cong. Rec. S698 (daily ed. Feb 23, 2010). The bill would reauthorize the Chesapeake Bay Office of the National Oceanic and Atmospheric Administration.

Bills Introduced

  • S. 3016 (Bennett, D-Colo.) (monuments)would prohibit the further extension or establishment of national monuments in Utah except by express authorization of Congress.156 Cong. Rec. S620 (daily ed. Feb. 22, 2010). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 3021 (Feingold, D-Wis.) (energy)would amend the Public Utility Regulatory Policies Act of 1978 to authorize the Secretary of Energy to promulgate regulations to allow electric utilities to use renewable energy to comply with any Federal renewable electricity standard, and for other purposes. 156 Cong. Rec. S698 (daily ed. Feb. 23, 2010). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 3025 (Merkley, D-Ore.) (FWPCA)would amend the Federal Water Pollution Control Act to provide assistance for programs and activities to protect and restore the water quality of the Columbia River Basin, and for other purposes. 156 Cong. Rec. S698 (daily ed. Feb. 23, 2010). The bill was referred to the Committee on Environment and Public Works.
  • S. 3032 (Barrasso, R-Wyo.) (climate change)would prohibit the enforcement of a climate change interpretive guidance issued by the Securities and Exchange Commission. 156 Cong. Rec. S742 (daily ed. Feb. 24, 2010). The bill was referred to the Committee on Banking, Housing, and Urban Affairs.
  • S. 3038 (Inhofe, R-Okla.) (SDWA)would amend the Safe Drinking Water Act to prevent the enforcement of certain national primary drinking water regulations unless sufficient funding is available. 156 Cong. Rec. S795 (daily ed. Feb. 25, 2010). The bill was referred to the Committee on Environment and Public Works.
  • S. 3041 (Ensign, R-Nev.) (national monuments)would prohibit the further extension or establishment of national monuments in Nevada except by express authorization of Congress. 156 Cong. Rec. S795 (daily ed. Feb. 25, 2010). The bill was referred to the Committee on Energy and Natural Resources.
  • H.R. 4634 (Brown, D-Fla.) (fisheries)would limit the authority of the Secretary of Commerce to implement certain fishery closures unless the Secretary certifies that closure is the only option available for maintaining a fishery at a sustainable level. 156 Cong. Rec. H646 (daily ed. Feb. 22, 2010). The bill was referred to the Committee on Natural Resources.
  • H.R. 4651 (Bishop, R-Utah) (national monuments)would prohibit the further extension or establishment of national monuments in Utah except by express authorization of Congress. 156 Cong. Rec. H754 (daily ed. Feb. 23, 2010). The bill was referred to the Committee on Natural Resources.
  • H.R. 4658 (Duncan, R-Tenn.) (land)would authorize the conveyance of a small parcel of National Forest System land in the Cherokee National Forest and to authorize the Secretary of Agriculture to use the proceeds from that conveyance to acquire a parcel of land for inclusion in that national forest. 156 Cong. Rec. H754 (daily ed. Feb. 23, 2010). The bill was referred to the Committee on Agriculture.
  • H.R. 4671 (Sarbanes, D-Md.) (National Trails System Act)would amend the National Trails System Act to include national discovery trails, and to designate the American Discovery Trail. 156 Cong. Rec. H754 (daily ed. Feb. 23, 2010). The bill was referred to the Committee on Natural Resources.
  • H.R. 4672 (Young, R-Alaska) (land)would provide for the conveyance of certain property located in Anchorage, Alaska, from the United States to the Alaska Native Tribal Health Consortium. 156 Cong. Rec. H754 (daily ed. Feb. 23, 2010). The bill was referred to the Committees on Natural Resources, and Energy and Commerce.
  • H.R. 4674 (Boswell, D-Iowa) (renewable fuels)would authorize loan guarantees for projects to construct renewable fuel pipelines. 156 Cong. Rec. H832 (daily ed. Feb. 24, 2010). The bill was referred to the Committees on Energy and Commerce, and Transportation and Infrastructure.
  • H.R. 4686 (Sablan, D-M.P.) (national forests)would authorize the Secretary of Interior to study the suitability and feasibility of designating prehistoric, historic, and limestone forest sites on Rota, Commonwealth of the Northern Mariana Islands, as a unit of the National Park System. 156 Cong. Rec. H833 (daily ed. Feb. 24, 2010). The bill was referred to the Committee on Natural Resources.
  • H.R. 4703 (Herger, R-Cal.) (national monuments)would prohibit the further extension or establishment of national monuments in California except by express authorization of Congress. 156 Cong. Rec. H931 (daily ed. Feb. 25, 2010). The bill was referred to the Committee on Natural Resources.
  • H.R. 4711 (Connolly, D-Va.) (electric vehicles)would provide that the delivery vehicle fleet of the United States Postal Service be replaced by electric motor vehicles. 156 Cong. Rec. H971 (daily ed. Feb. 26, 2010). The bill was referred to the Committee on Oversight and Government Reform.
  • H.R. 4712 (Franks, R-Ariz.) (Radiation Exposure Compensation Act)would include the county of Mohave, in the State of Arizona, as an affected area for purposes of making claims under the Radiation Exposure Compensation Act based on exposure to atmospheric nuclear testing. 156 Cong. Rec. H971 (daily ed. Feb. 26, 2010). The bill was referred to the Committee on the Judiciary.
  • H.J. Res. 76 (Skelton, D-Mo.) (greenhouse gases)would disapprove a rule submitted by the Environmental Protection Agency relating to the endangerment finding and the cause or contribute findings for greenhouse gases under section 202(a) of the Clean Air Act. 156 Cong. Rec. H931 (daily ed. Feb. 25, 2010). The bill was referred to the Committee on Energy and Commerce.
  • H. Res. 1123 (Barrett, R-Md.) (nuclear waste)would express the sense of the House of Representatives with respect to the use of Yucca Mountain as the Nation's primary permanent nuclear waste storage site. 156 Cong. Rec. H971 (daily ed. Feb. 26, 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:

AlabamaCaliforniaIllinoisAlaskaColoradoIndiana

ALABAMA

Hazardous & Solid Waste:

  • The Department of Environmental Management will hold a public hearing on proposed amendments to Ala. Admin. Code r. 335-13, Solid Waste Program. The proposed amendments would require subject facilities semi-annually report quantities of recycled or re-used materials so as to monitor the progress toward achieving the previously-established statewide waste reduction and recycling goal.The hearing will be April 2, 2010. See http://www.adem.state.al.us/newsEvents/notices/feb10/2div13.htm

ALASKA

Water:

  • The Alaska Department of Environmental Conservation seeks public comment on the 2010 Draft Integrated Water Quality Monitoring and Assessment Report. The draft 2010 Integrated Report reflects changes to previous years’ reports, including addition of ten waters to the impaired waters list, removal of waters from this list because they now have a Total Maximum Daily Load or other acceptable pollution controls will ensure waterbody recovery. Comments are due March 25, 2010. Seehttp://notes4.state.ak.us/pn/pubnotic.nsf/cc52605f7c156e7a8925672a0060a91b/48f7e7e74286f851892576d300636a62?OpenDocument

CALIFORNIA

Water:

COLORADO

Water:

ILLINOIS

General:

  • The Illinois Environmental Protection agency seeks public comment on proposed amendments to 35 Ill. Admin. Code 186, Accreditation of Environmental Laboratories. Proposed amendments to update the incorporations by reference to reflect federal regulations currently being used to accredit environmental laboratories. Comments are due April 5, 2010. Seehttp://www.cyberdriveillinois.com/departments/index/register/register_volume34_issue8.pdf(pp. 2603-7)

Water:

INDIANA

Air:

Fisheries:

  • The Natural Resources Commission will hold a public hearing on proposed amendments to312 Ind. Admin. Code 9-5to 9-11, which govern definitions, restrictions, standards, licensure and permits applicable to reptiles, amphibians, sport fishing, commercial fishing, and invertebrates, to modify and reorder language for improved clarity, simplicity, and continuity. The hearing will be March 30, 2010. Seehttp://www.in.gov/legislative/iac/irtoc.htm?view=list&lsadocnum=09-616

Hazardous & Solid Waste:

Toxic Substances:

  • The Department of Environmental Management will hold a public hearing on proposed amendments to 318 Ind. Admin. Code 1, concerning inspection and cleanup of properties contaminated with chemicals used in the illegal manufacture of controlled substances. The hearing will be April 14, 2010. Seehttp://www.in.gov/legislative/iac/irtoc.htm?view=list&lsadocnum=09-671

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

INTERNATIONAL

CARBON INVESTORS FRUSTRATED BY SLOW RECOVERY

Trading in voluntary carbon markets continues to be sporadic as buyers focus on either high-quality credits or large volumes of lower-quality ones. "There are deals out there but you have the entire market going after them," said Grattan MacGiffin, head of voluntary carbon at brokers MF Global. Investors remain cautious due to hurdles to a U.S. federal emissions trading scheme, uncertainty about the future of the global carbon markets and pessimism about a global climate deal this year. Lenny Hochschild, who manages Evolution Markets' Carbon America's Group, told Reuters, the market "has picked up since the low point of 2009 but it is clearly not going back to being a robust voluntary market. We are just beginning to see the signs of economic recovery," For the full story, visithttp://www.reuters.com/article/idUSTRE61N4MC20100224

GALAPAGOS FUR SEALS GAIN FOOTHOLD IN WARMING PERU

Fur seals from the Galapagos Islands have established a colony some 900 miles from their normal habitat, on the Pacific Coast of Peru. The seals have been sporadically sighted along South America's northwest coast for several years; however, this is the first time scientists have found evidence of seals are mating in Peru. Carlos Yaipen-Llanos, of the Orca research center in Peru, believes climate change has allowed the fur seals to expand beyond their traditional home. "This is a unique species that used to live exclusively in the Galapagos Islands of Ecuador," he said. "The scientific importance of the Galapagos fur seals establishing a resident colony in Peru is that the animals have extended their range and found a new habitat. This is associated with warmer water temperatures." Data from Peru's geophysics institute indicates that water temperatures off the coast of Peru have varied from 17 degrees Celsius (63 Fahrenheit) in 2000 to 23 Celsius (74 F) last month and temperatures in the Galapagos are around 25 Celsius (77 F). For the full story, visithttp://www.reuters.com/article/idUSTRE61N4OI20100224

SCIENTISTS WARN THAT WHALING WORSENS CARBON RELEASE

U.S. scientist estimate that a century of whaling may have released more than 100 million tonnes of carbon into the atmosphere the equivalent to burning 130,000 sq km of temperate forests, or to driving 128,000 Humvees continuously for 100 years. Whales store large amounts of carbon in their bodies, which is released when they die. Dr Andrew Pershing of the University of Maine described whales as the "forests of the ocean". He and his colleagues from the Gulf of Maine Research Institute calculated the capacity of whales to store carbon as they grow. Dr Pershing stressed that this was still a relatively tiny amount of carbon when compared to what is produced by human activity; however, whales play an important role in storing and transporting carbon in the marine ecosystem and leaving large groups of whales to grow could sequester carbon in amounts comparable to some reforestation schemes that earn and sell carbon credits. For the full story, seehttp://news.bbc.co.uk/2/hi/science/nature/8538033.stm

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

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