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Weekly Update Volume 39, Issue 9




The Second Circuit held that PRPs who have not been subject to a civil action under CERCLA §§106 or 107 but who have remediated a contaminated site pursuant to a consent order entered with a state agency may bring a cause of action for response costs under CERCLA §107(a). In United States v. Atlantic Research Corp., 127 S. Ct. 2331, 37 ELR 20139 (2007), the U.S. Supreme Court held that CERCLA provides a PRP who has incurred response costs cleaning a contaminated site with a cause of action to recover those costs from other PRPs. Here, the PRP incurred costs due to compliance with a consent order. Because the consent order did not resolve CERCLA claims that could be brought by the federal government, the PRP may not seek contribution under §113(f)(3)(B). The company, however, has incurred response costs within the meaning of §107(a). The fact that a party enters into a consent order before beginning remediation is of no legal significance with respect to whether or not the party has incurred response costs as required under §107(a). The relevant inquiry is whether the party undertook the remedial actions without the need for the type of administrative or judicial action that would give rise to a contribution claim under §113(f). Here, the PRP chose to enter into an agreement with the state to investigate and remediate a contaminated site. The PRP saved the parties and the government litigation costs, and presumably also limited ongoing contamination by promptly remediating the site. That it entered into a consent order with the state does not preclude it from bringing an action pursuant to §107(a). The case was therefore remanded to the district court for further proceedings. W.R. Grace & Co. v. Zotos International, Inc., No. 05-2798, 39 ELR 20066 (2d Cir. Mar. 4, 2009).


A district court held that a seller of land is liable under CERCLA for response costs the purchaser incurred cleaning up groundwater contamination at one site but is not liable for remedial investigation costs the purchaser incurred at another. Investigatory costs, like other response costs, are recoverable under CERCLA only if they are consistent with the NCP. This includes consistency with the NCP's public participation requirement. Because the purchaser failed to provide all foreseeably affected parties with a meaningful opportunity to participate in the site's remedial investigation, it did not substantially comply with the NCP's public participation requirement. The court therefore dismissed the purchaser's claims for remedial investigation costs. As for response costs incurred at the other site, however, all foreseeably affected parties were given notice. The court rejected the seller's argument that the presence of contamination on one property creates "environmental stigma" that tends to depress the market values of surrounding, uncontaminated properties. The court therefore granted the purchaser's motion for partial summary judgment as to the seller's CERCLA liability at that site. Whether the site was cleaned up in compliance with the NCP, however, must be decided at trial. Aviall Services, Inc., v. Cooper Industries, LLC, No. 3:97-CV-1926-D, 39 ELR 20065 (N.D. Tex. Feb. 27, 2009) (Fitzwater, J.).


The Ninth Circuit upheld NOAA-Fishery's Hatchery Listing Policy for Pacific salmon and steelhead trout and held that the agency may distinguish between natural and hatchery-spawned fish when determining their level of protection under the ESA. Environmental groups argued that because hatchery fish pose threats to wild fish, they should be split into separate evolutionarily significant units (ESUs). But the groups' emphasis on the threats hatchery fish pose to natural fish collapses two analytically distinct phases of agency action: (1) the initial decision regarding the composition of the ESU, concerned only with the "neutral" task of defining a species; and (2) the subsequent decision whether to list the ESU, which takes into account the effects, positive or negative, of hatchery salmon on natural fish to determine whether the ESU is endangered or threatened. Here, NOAA-Fisheries met its statutory duty to consider the effects of hatchery salmon on natural populations; it merely conducted that inquiry at the listing stage rather than at the definitional phase. This is a permissible construction of the ESA and is entitled to deference. The court also rejected the groups' argument that the 2005 Hatchery Listing Policy, which resulted in the downlisting of the Upper Columbia River steelhead, violates the ESA because listing determinations are based on the status of the entire ESU rather than the status of only the natural fish within the ESU. The policy is consistent with the plain language of the ESA and its statutory goal of preserving natural populations. The ESA requires NOAA-Fisheries to "determine whether any species is an endangered species or a threatened species." A species, in turn, includes "any subspecies of fish or wildlife or plants, and any distinct population segment." Consistent with the plain language of the ESA, the policy conducts a status review of the entire "species"—no more, and no less. The court therefore reversed and remanded a lower court's ruling that the policy violated the ESA. Trout Unlimited v. Lohn, Nos. 07-35623, -35750, 39 ELR 20061 (9th Cir. Mar. 16, 2009).


The Fifth Circuit held that FWS was not required to prepare an EIS in conjunction with its establishment of a conservation easement on city land. After FWS prepared an EA for a proposed wildlife refuge in eastern Texas, it announced its FONSI, obviating the need to prepare an EIS. It then set an acquisition boundary for the refuge and accepted a conservation easement within that boundary, thereby precluding the construction of a water reservoir that a city had proposed for the same site. The city filed suit, arguing that the EA should have considered an alternative that would allow the refuge and the reservoir to coexist. The city also argued that the FWS should have analyzed the refuge's impact on the city's water supply. Plans for the reservoir, however, were speculative. And given the uncertainty over whether the reservoir will be constructed, the effects of establishing the refuge on water supplies are not concrete enough to require that they be included in the EA. Nor do CEQ regulations mandate the preparation of an EIS in this case. The action at issue is the establishment of an acquisition boundary for the refuge. The establishment of that boundary does not effect any change in the physical environment, but merely authorizes the purchase of property from willing buyers or the acceptance of conservation easements. Once sufficient land is acquired, FWS will be required to comply with NEPA in formulating a Comprehensive Conservation Plan to guide refuge forest management. The court also rejected claims that FWS' establishment of the refuge violated the Tenth Amendment. City of Dallas v. Hall, No. 08-10890, 39 ELR 20062 (5th Cir. Mar. 12, 2009).


The D.C. Circuit held that a state agency lacked standing to challenge two FERC orders conditionally approving a company's application to site, construct, and operate a liquid natural gas terminal near the mouth of the Delaware River. FERC conditionally approved the project because it is subject to coastal zone consistency reviews in New Jersey, Delaware, and Pennsylvania. FERC's order, therefore, is explicitly conditioned on Delaware's approval under the CZMA. Because FERC's order—as it stands now—cannot possibly authorize the project absent the approval of Delaware, the state has suffered no injury-in-fact and it lacks standing. Delaware Department of Natural Resources & Environmental Control v. Federal Energy Regulatory Commission, No. 07-1007, 39 ELR 20063 (D.C. Cir. Mar. 13, 2009).


The D.C. Circuit upheld FERC's decision to grant a state agency a new 50-year license to operate a hydroelectric facility near Niagara Falls. Several communities in western New York argued that FERC's licensing decision was arbitrary and capricious and unsupported by substantial evidence. Petitioners argued that FERC should have required the mitigation of certain adverse environmental impacts allegedly caused by the project. But FERC reasonably concluded that the project's contribution to shoreline erosion would be insignificant. Petitioners also argued that a 50-year license is too long and inconsistent with agency practice regarding the terms of licenses. But FERC possesses express statutory authority to set license terms between 30 and 50 years, and FERC typically issues licenses for even longer time periods. In addition, FERC's valuation of the project's output was well reasoned, and it properly refused to consider off-license agreements in deciding whether to reissue the license. Eastern Niagara Public Power Alliance v. Federal Energy Regulatory Commission, No. 07-1472, 39 ELR 20064 (D.C. Cir. Mar. 13, 2009).

Copyright© 2009, Environmental Law Institute, Washington, D.C. All rights reserved.


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


  • EPA amended the sulfur dioxide air emission standards for stationary combustion turbines that burn biogas (landfill gas, digester gas, etc.). 74 FR 11858 (3/20/09).

  • EPA proposed to delay the effective date for reconsideration of the PSD and nonattainment new source review amendments on aggregation. 74 FR 11509 (3/18/09).

  • EPA announced the availability of and seeks comment on two planning documents titled Particulate Matter National Ambient Air Quality Standards: Scope and Methods Plan for Health Risk and Exposure Assessment and Particulate Matter National Ambient Air Quality Standards: Scope and Methods Plan for Urban Visibility Impact Assessment. 74 FR 11580 (3/18/09).

  • EPA proposed to update a portion of the outer continental shelf air regulations for the Ventura County, California, air pollution control district. 74 FR 11330 (3/17/09).

  • SIP Approvals: Pennsylvania (redesignation to attainment for the 1997 eight-hour ozone NAAQS, maintenance plan, 2002 base-year inventory, and motor vehicle emission budgets (MVEBs) for the Clearfield/Indiana nonattainment area) 74 FR 11674 (3/19/09); (redesignation to attainment for the 1997 eight-hour ozone NAAQS, maintenance plan, 2002 base-year inventory, and MVEBs for the Greene County nonattainment area) 74 FR 11671 (3/19/09). Texas (permits for new construction or modification) 74 FR 11851 (3/20/09). Virginia (amendments to the open burning regulation) 74 FR 11661 (3/19/09).

  • SIP Proposals: Texas (permits for new construction or modification; see above for direct final rule) 74 FR 11888 (3/20/09). Virginia (reasonably available control technology for nitrogen oxide and volatile organic compounds under the eight-hour ozone NAAQS for Northern Virginia) 74 FR 11702 (3/19/09).


  • DOE amended its procedural rules for DOE nuclear activities to make the rules consistent with §610 of the Energy Policy Act of 2005. 74 FR 11839 (3/20/09).


  • EPA Region 3 approved Virginia's research, development, and demonstration permit requirements for certain municipal solid waste landfills. 74 FR 11540 (3/18/09).


  • EPA revised the existing fees for the Agency's lead-based paint activities regulations and established new fees for the renovation, repair, and painting rule. 74 FR 11863 (3/20/09).


  • EPA announced final action on New Mexico's CWA §303(d) list of water bodies and pollutants. 74 FR 11546 (3/18/09).

  • EPA determined that adequate facilities for the safe and sanitary removal and treatment of sewage from all vessels are reasonably available for the waters of Lynn, Nahant, Revere, Saugus, and Swampscott, Massachusetts. 74 FR 11547 (3/18/09).

  • EPA proposed to approve revisions to Arkansas' public water system supervision program. 74 FR 11557 (3/18/09).


  • FWS determined that the plant phyllostegia hispida should be listed as endangered under the ESA throughout its range. 74 FR 11319 (3/17/09).

  • FWS announced the availability of Birds of Conservation Concern 2008, which identifies species, subspecies, and populations of migratory and nonmigratory birds in need of additional conservation actions. 74 FR 11128 (3/16/09).

Copyright© 2009, Environmental Law Institute, Washington, D.C. All rights reserved.


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

Bills Introduced

  • S. 598 (Bingaman, D-N.M) (Energy Policy and Conservation Act) would amend the Energy Policy and Conservation Act to improve appliance standards. 155 Cong. Rec. S3113 (daily ed. Mar. 16, 2009). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 625 (Cornyn, R-Tex.) (National Monument) would authorize the Secretary of the Interior to establish the Waco Mammoth National Monument in the state of Texas. 155 Cong. Rec. S3163 (daily ed. Mar. 17, 2009). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 626 (Landrieu, D-La.) (National Park System) would direct the Secretary of the Interior to study the suitability and feasibility of designating sites in the Lower Mississippi River Area in the state of Louisiana as a unit of the National Park System. 155 Cong. Rec. S3163 (daily ed. Mar. 17, 2009). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 636 (Thune, R-S.D.) (CAA) would amend the CAA to conform the definition of "renewable biomass" to the definition given the term in the Farm Security and Rural Investment Act of 2002. 155 Cong. Rec. S3163 (daily ed. Mar. 17, 2009). The bill was referred to the Committee on Environment and Public Works.

  • S. 637 (Baucus, D-Mont.) (water) would authorize the construction of the Dry-Redwater Regional Water Authority System in the state of Montana and in a portion of McKenzie County, North Dakota. 155 Cong. Rec. S3163 (daily ed. Mar. 17, 2009). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 661 (Bingaman, D-N.M) (energy) would strengthen American manufacturing through improved industrial energy efficiency. 155 Cong. Rec. S3550 (daily ed. Mar. 19, 2009). The bill was referred to the Committee on Energy and Natural Resources.

  • H.R. 1550 (Sutton, D-Ohio) (fuel efficiency) would accelerate motor fuel savings nationwide and provide incentives to registered owners of high-polluting automobiles to replace such automobiles with new fuel efficient and less polluting automobiles or public transportation. 155 Cong. Rec. H3526 (daily ed. Mar. 17, 2009). The bill was referred to the Committee on Energy and Commerce and the Committee on Transportation and Infrastructure.

  • H.R. 1573 (Van Hollen, D-Md.) (energy) would establish the National Home Energy Savings Revolving Fund within DOE to provide funds for general local governments to make loans to homeowners for qualified home energy audits and certified energy savings improvements. 155 Cong. Rec. H3526 (daily ed. Mar. 17, 2009). The bill was referred to the Committee on Energy and Commerce.

  • H.R. 1580 (Gordon, D-Tenn.) (electronic waste) would  authorize the Administrator of EPA to award grants for electronic waste reduction research, development, and demonstration projects. 155 Cong. Rec. H3640 (daily ed. Mar. 18, 2009). The bill was referred to the Committee on Science and Technology.

  • H.R. 1622 (Sullivan, R-Okla.) (natural gas) would provide for a research, development, and demonstration program on natural gas vehicles. 155 Cong. Rec. H3703 (daily ed. Mar. 19, 2009). The bill was referred to the Committee on Science and Technology.

Copyright© 2009, Environmental Law Institute, Washington, D.C. All rights reserved.


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 2009, visit our list of Cumulative State Developments. For state material reported prior to 2009, visit the ELR Archives.

The following states have updates this week:






Hazardous & Solid Waste:

  • The Department of Health has begun rule development on proposed amendments to 64E-6.001 through 64E-6.001. Areas to be discussed include but are not limited to: onsite sewage treatment and disposal system design, permitting, construction, modification, repair, and maintenance; septic tank contractor registration and training standards; septage treatment and disposal; and performance-based treatment standards. All aspects of the rule are open for discussion by the Technical Review and Advisory Panel. See https://www.flrules.org/Faw/FAWDocuments/FAWVOLUMEFOLDERS2009/3510/3510doc.pdf


Toxic Substances:



  • The Environmental Protection Commission seeks public comment on proposed amendments to Chapter 23, Emission Standards for Contaminants; Chapter 25, Measurement of Emissions; and Chapter 34, Provisions for Air Quality Emissions Trading Programs. The purpose of the proposed amendments is to remove from the state air quality rules the U.S. EPA Clean Air Mercury Rule provisions that were vacated by the U.S. Court of Appeals for the D.C. Circuit. Comments are due April 13, 2009. See http://www.legis.state.ia.us/aspx/ACODOCS/DOCS/03-11-2009.Bulletin.pdf (pp. 1934-37)

  • The Environmental Protection Commission adopted amendments to Chapter 23, Emission Standards for Contaminants. The amendments remove from the state air quality rules the NESHAPs for industrial, commercial, and institutional boilers and process heaters and the NESHAPs for brick and structural clay products manufacturing because they were recently vacated. See http://www.legis.state.ia.us/aspx/ACODOCS/DOCS/03-11-2009.Bulletin.pdf (pp. 2022-24)

Toxic Substances:

  • The Environmental Protection Commission will hold a series of public hearings on proposed amendments to Chapter 134, UST Licensing and Certification Programs. The proposed amendments would add a licensing scheme for UST removers and require that soil and groundwater sampling at the time of UST closure be performed by a certified groundwater professional; raise the required insurance liability coverage for UST professionals from $250,000 to $1 million; clarify the type of work that must be performed by a licensed professional or by service technicians and clarify when an installation inspection is required; add a requirement for installation inspections using a Department-authorized checklist with submittal for review; increase the license fee for companies and individuals to $200 biennially; expand the reciprocity criteria to recognize training and examinations from other states or equipment manufacturers on the basis of Department approval; include a requirement for UST professionals to report suspected and confirmed releases; clarify conflict of interest activities; and provide that a cathodic protection tester must be trained and maintain certification with the National Association of Corrosion Engineers, the Steel Tank Institute, or equivalent certification approved by the Department. The hearings will be held April 2, 6, and 7, 2009. See http://www.legis.state.ia.us/aspx/ACODOCS/DOCS/03-11-2009.Bulletin.pdf (pp. 1942-52)

  • The Environmental Protection Commission adopted amendments to Chapter 135, Technical Standards and Corrective Action Requirements for Owners and Operators of USTs. See http://www.legis.state.ia.us/aspx/ACODOCS/DOCS/03-11-2009.Bulletin.pdf (pp. 2062-64)


  • The Environmental Protection Commission will hold a series of public hearings on proposed amendments to Chapter 61, Water Quality Standards. The amendments would revise and list approximately 33 river and stream segments as Class A2 Secondary Contact Recreational Use designated waters, approximately 83 river and stream segments as Class A2 Secondary Contact Recreational Use and Class B Warm Water-Type 2 designated waters, four stream segments as Class A2 Secondary Contact Recreational Use and Class B Warm Water-Type 3 designated waters, six river and stream segments as Class A3 Children's Recreational Use and Class B Warm Water-Type 2 designated waters, 11 river and stream segments as Class A3 Children's Recreational Use designated waters, and one stream segment as Class HH Human Health designated water. The hearings will be April 7, 9, 14, and 16, 2009. See http://www.legis.state.ia.us/aspx/ACODOCS/DOCS/03-11-2009.Bulletin.pdf (pp. 1937-41)

  • The Environmental Protection Commission adopted amendments to Chapter 60, Scope of Title-Definitions-Forms-Rules of Practice; Chapter 62, Effluent and Pretreatment Standards: Other Effluent Limits or Prohibitions; Chapter 63, Monitoring, Analytical, and Reporting Requirements; and Chapter 64, Wastewater Construction and Operation Permits. See http://www.legis.state.ia.us/aspx/ACODOCS/DOCS/03-11-2009.Bulletin.pdf (pp. 2024-61)



  • The Department of Environmental Protection adopted amendments to 310 CMR 7.00, Air Quality Regulations: Consumer Product Volatile Organic Compounds (VOCs). The regulations add an Alternative Compliance Plan option to existing consumer products regulations that allows manufacturers of consumer products to average VOC emissions among products to meet a VOC limit cap; add the compound HFE-7300 to the list of exempt compounds in the current definition of VOC in order to be consistent with U.S. EPA's definition of VOC; and amend the paint spray booth regulations by deleting a sentence to clarify the regulations' intent. See http://www.mass.gov/dep/air/laws/regulati.htm#vocamend

Copyright© 2009, Environmental Law Institute, Washington, D.C. All rights reserved.



The European Commission expects to publish European energy-intensive industry's preliminary 2008 carbon emissions data on Wednesday, April 1. A Commission spokeswoman told Reuters it will appear on the Commission's website (http://ec.europa.eu/environment/ets/welcome.do) once 80 percent of the data has been collected from the nearly 12,000 participating installations. Under the 27-nation bloc's Emissions Trading Scheme, greenhouse gas emissions from heavy industry are capped and participants are issued a corresponding amount of permits which they can trade among themselves. Last year marked the first year of the scheme's second phase, which runs until 2012, and market players will be watching closely to see how the economic slowdown has affected the European Union's industrial emissions. Carbon market analysts expect 2008 emissions to have dropped to around 2.10 billion tonnes of carbon dioxide, down from 2.17 billion in 2007. For the full story, see http://www.reuters.com/article/GCA-GreenBusiness/idUSTRE52J2TI20090320


Ideas about tackling China's myriad environmental woes, from soil erosion to polluted waterways, tend to come in outsized packages. Bold environmental solutions are as appealing to policymakers as they are to engineers who want to put their stamp on the cities of tomorrow. One such project is Dongtan, a planned eco-city on an alluvial island near Shanghai. Designed by Arup, a British design firm, to house 500,000 people on a 21,250 acre site, it was billed as a low-carbon alternative to urban sprawl and a blueprint for other eco-cities, reports The Economist. But four years on, not a single green building has gone up on the site. The reason lies not in the spluttering global economy but in the political corridors of Shanghai, the powerful city to which Chongming Island belongs. A prime mover behind Dongtan was a former Shanghai Communist Party chief, Chen Liangyu, who steered the land into the hands of Shanghai Industrial Investment Corporation (SIIC), a state-owned developer, and lent his prestige to the project. Then, in 2006, Mr. Chen was sacked for property-related corruption. He was later convicted and is under house arrest. Arup’s original plan had 50,000 residents moving in by 2010, when Shanghai hosts the World Expo. That has now been quietly dropped. Arup's Roger Wood says SIIC has opted to put construction on hold, pending further permits. He denies, however, that the project has been cancelled. For the full story, see http://www.economist.com/research/articlesBySubject/displaystory.cfm?subjectid=348924&story_id=13330904


The United Nation's climate change chief has accused Europe's politicians of shifting the goalposts in global talks on climate change. The European Union (EU) agreed at the Bali climate summit in December 2007 to bankroll clean technology in developing countries if they agreed to take appropriate actions to curb emissions growth. The fragile deal was reached after marathon talks. But EU politicians are now asking for more action for their money. They want developing countries to produce plans to cut emissions across their entire economy before getting cash help from the EU. Yvo de Boer, secretary of the United Nations climate program told BBC News, "Quite frankly the language from [EU] ministers re-writes some of the fundamental agreements we made in Bali." For the full story, see http://news.bbc.co.uk/2/hi/science/nature/7950211.stm

Copyright© 2009, Environmental Law Institute, Washington, D.C. All rights reserved.

Note: To request additional information, please call (800) 433-5120 or (202) 939-3844. Documents may also be available free or at a nominal charge from the applicable court or agency. Copyright© 2009, Environmental Law Institute, Washington, D.C. All rights reserved.


Leslie Carothers, Publisher
Scott Schang, Editor-in-Chief
Rachel Jean-Baptiste, Managing Editor
Erin Webreck, Associate Editor
William J. Straub, Desktop Publisher
Garrett VanPelt, Editorial Associate
Russell Husen, Legal Intern
Clint Morrison, Publications Intern
Hilary Nakasone, Publications Intern