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With the advent of the new Bush administration and the end of the U.S. Supreme Court term, there is much to report in environmental law. The President has already faced such difficult
issues as carbon dioxide emissions, arsenic levels in drinking water, global warming and the Kyoto Protocol. His administration is also reviewing EPA's enforcement initiative against
utilities under the Clean Air Act's new source review program, and has proposed the devolution of some of EPA's science and enforcement functions to the states, to be assisted by new
federal grants.
The Supreme Court decided two Clean Water Act cases, in one case rejecting an attempt to extend regulatory jurisdiction to waters whose sole interstate connection was the occasional
presence of migratory birds, and in the other holding that a developer's "takings" claim was not barred by virtue of the fact that he bought the property after restrictive
wetlands regulations were enacted. Under the Clean Air Act, the court also found no improper delegation of legislative power in EPA's establishment of federal air standards for ozone and
particulate matter, and rejected a claim that costs to the regulated community should have been considered by EPA in setting those standards. Astounding court-watchers, the latter opinion
by Justice Scalia was a unanimous decision, an alignment some insisted would never happen in these fractious days.
Air Quality
In Whitman v. American Trucking Associations,121 S. Ct. 903 (2001), the court held that the Clean Air Act's requirements for EPA to establish federal air
standards at levels "requisite to protect public health" were within the constitutional scope of discretion that Congress can delegate to a federal agency, rejecting the Court
of Appeals' finding of unconstitutional delegation because the statute had provided "no intelligible principle" to guide the agency. The court also ruled that the Act
"unambiguously bars" EPA from considering the potential costs to regulated entities when setting national ambient air quality standards.
Since the Clean Air Act requires that challenges to emission or performance standards be filed in the U.S. Court of Appeals for the District of Columbia, that court has been busy as well. National Lime Association v. EPA, 233 F.3d 625 (D.C. Cir. 2000) involved a challenge to a rule covering hazardous air pollutant ("HAP") emissions from Portland cement manufacturers. The court held that EPA's failure to set maximum achievable control technology ("MACT") standards for mercury, hydrogen chloride and total hydrocarbons was contrary to the Clean Air Act, and remanded to the agency for further proceedings. In Arizona Public Service Co. v. EPA, 211 F.3d 1280 (D.C. Cir. 2000), the court upheld EPA regulations under the Clean Air Act concerning tribal authority, specifically those which: (1) asserted jurisdiction over fee lands owned by non-members within a reservation's boundary; (2) included tribal trust lands within the definition of "reservation;" and (3) allowed tribes to issue Tribal Implementation Plans and redesignations under the prevention of significant deterioration program to both lands within the reservations and to non-reservation areas over which a tribe has demonstrated inherent jurisdiction (e.g., allotted lands and dependent Indian communities). And in American
Petroleum Institute v. EPA, 198 F.3d 275 (D.C. Cir. 2000), the court held that it was improper for EPA to allow certain areas of the country (ozone standard sub-marginal
non-attainment and non-attainment because of inadequate data) to opt-in to the reformulated gasoline program.
Two other recent cases raise an issue best introduced here by illustration. A statute is passed with general language, followed by regulations of broad language, interpreted by a guidance
document with expansive language, enforced under directive of a policy memo with firm, assertive language, followed by a second policy memo of cautionary language, carried then through a
series of enforcement actions, judicial and administrative, each with an agency "official position," creating in turn a body of letters, pleadings, administrative and judicial
orders and appellate opinions, all constituting a minefield of contradictory language which compels us back, once again, to the original statute, where each of us, we insist -as befits
our client's interests -finds clarity and comfort.
Such use of guidance or policy documents as the basis for enforcement actions is a sore subject with the regulated community, which finds itself asking the question: what language is
authoritative? Thus, in Appalachian Power Co. v. EPA, 208 F.3d 1015 (D.C. Cir. 2000), the court held invalid EPA's "Periodic Monitoring Guidance" document because it effectively
changed existing monitoring rules without complying with rule-making procedures. The court rejected EPA's boilerplate disclaimer that the guidance was not intended to create legal rights,
noting that the guidance gave states their "marching orders" and that "EPA expects the states to fall in line." And closer to home, in Public Service Co. of
Colorado v. EPA, 225 F.3d 1144 (10th Cir. 2000), a power company brought an appeal to challenge two EPA letters opining that a proposed new power plant and an existing plant would
together constitute a single major source of air emissions for permitting purposes. The appeal was dismissed because the letters did not constitute final agency action from which an
appeal could be taken (they were written by EPA and not the ultimate state permitting authority). Still, given the complex nature of environmental regulatory schemes -not limited to air
quality, of course -the attempted enforcement of policy or guidance documents is an issue which all practitioners, on either side of the enforcement "aisle," should be wary of.2
Bankruptcy
Several recent bankruptcy cases involved environmental issues worth noting. In Southern Pacific Transportation Co. v. Voluntary Purchasing Groups, Inc., 252 B.R. 373 (E.D. Tex. 2000), the proposed reorganization plan provided that the bankruptcy court would have authority to approve any settlements, between debtor and State, of CERCLA liability issues for several contaminated sites. Upon objection by Southern Pacific, the district court ordered withdrawal of the case to district court under 28 U.S.C. 157(d). The court held that CERCLA was the type of law covered by the mandatory withdrawal language in the statute, i.e., that determining the nature of the remedies to be imposed under any settlement, and the complex allocation of fault issues between the potentially responsible parties (PRPs) under CERCLA, was the sort of issue that Congress intended to be left to an Article III judge.
Olin Corporation v. Riverwood International Corporation, 209 F.3d. 125 (2nd Cir. 2000) involved contractual indemnification claims relating to the sale of a former wood preserving plant. The court held that the claims arose pre-petition and were thus discharged upon approval of the confirmation plan, despite the party's argument that its claims didn't actually arise until years later, when the state of Louisiana passed its environmental quality act. In the case In re 229 Main Street Limited Partnership v. Commonwealth of Massachusetts, Dept. of Environmental Protection, 2000 WL 1059359 (D. Mass. 7/26/00), state law provided for a super-priority lien for state monies spent on cleanup of contaminated properties. The debtor sought to have a lien hearing stayed, but the bankruptcy court and district court on appeal both held that the State's actions to perfect its lien were exempt from the automatic stay under Code 362(b)(3).
Contaminated Properties: Superfund and Transactions
Contaminated properties or "brown fields" continued to generate cases. In Geraghty and Miller, Inc. v. Conoco Inc.,
234 F.3d 917 (5th Cir. 2000), cert. denied 2001 WL 410175 (U.S. 2001), the court followed the Tenth Circuit's reasoning in Sun Co. v. Browning-Ferris, Inc., 124 F.3d 1187 (10th Cir. 1997) that a CERCLA 113(f)3 claim for contribution is not a new cause of action, but instead is a mechanism for apportioning costs recoverable under 107.4 Factual review of an environmental consultant's work led the court to conclude that monitoring wells, though capable of ultimately being used in a permanent remedy, were part of removal, rather than remedial, activities and Conoco's claims were thus not time-barred because they were filed "within three years after completion of the removal action" under 113(g)(2)'s limitations period. In United States, et al. v. Southeastern Pennsylvania Transportation Authority, et al., 235 F.3d 817 (3rd Cir. 2000), the court approved a CERCLA consent decree, including section 113(f)(2) contribution protection for the settling parties, over the objection of another party subjected to an EPA administrative order to perform part of the requirements of the record of decision. In Boeing Co. v. Cascade Corp.,
207 F.3d 1177 (9th Cir. 2000), the Ninth Circuit upheld the trial court's apportionment of liability between owners of adjacent properties based on volumetric or mass contribution to
groundwater, rejecting an argument that each party should pay the expenses associated with its own land.
In Schuylkill County Industrial Development Authority v. Tonolli Co. of Canada, 51 ERC (BNA) 2025 (3rd Cir. 2001), a party exempt from CERCLA liability under the secured lender
exemption could not pursue a 1075 cost recovery action to recoup payments it made to a PRP, as those payments were not "necessary to the cleanup," a requisite characteristic for recovery under the section. NutraSweet Co. v. X-L Engineering Co., 227 F.3d 776 (7th Cir. 2000) affirmed liability for CERCLA contribution (and 100% apportionment) against the operator of a machine shop which contaminated adjacent property, and also held that the company had waived the right to challenge the amount of cleanup costs when it failed to claim at summary judgment stage that the claimant's costs were inconsistent with the National Contingency Plan. Gould
v. A & M Battery & Tire Service, 232 F.3d 162 (3rd Cir. 2000) held that the CERCLA recycler exemption applied retroactively, i.e., to a contribution action pending when the exemption was enacted. And in Carson
Harbor Village Ltd. v. Unocal Corp., 227 F. 3d 1196 (9th Cir. 2000), the Ninth Circuit found that "disposal" under CERCLA included passive migration of hazardous substances, thereby opening the door to liability for a former site owner for passive migration which occurred during its ownership of the site. As of this writing, however, the Ninth Circuit has granted rehearing, so it remains to be seen whether it will continue to join the Fourth Circuit in embracing a passive migration theory. The Second, Third and Sixth Circuits have instead ruled that liability for "disposal" requires active human conduct.
Recent legislative activity has included U.S. House Resolution 3194, exempting scrap metal recyclers from Superfund liability, and several attempts at brownfields restoration assistance
bills. While none is yet final, the most notable of the latter is U.S. Senate Bill 350, which would provide grants for planning and remediation relating to brown field sites.
Emergency Planning and Community Right-to-Know
In a new rule, the Toxic Release Inventory (TRI) reporting threshold for lead was reduced to 100 pounds per year. In National
Mining Association v. EPA, 51 ERC (BNA) 2104 (D.Colo. 2001), the coal and metal mining industries challenged the EPCRTKA 3136 chemical release reporting requirements. The Court held that reporting was not required for naturally-occurring substances released from waste rock through the extraction and beneficiation of ore, as these activities were not properly included in the statute's triggering events of "manufacturing" or "processing." In a similar challenge, the D.C. Circuit in Barrick Goldstrike Mines, Inc. v. EPA, 215 F.3d 45 (D.C. Cir. 2000) held that EPA's revisions to the TRI, made through guidance and an enforcement letter applying the program to mining, were final agency action subject to judicial review, but remanded to district court for further proceedings. The company had challenged EPA's positions that (1) waste rock was not eligible for the de minimis exception; and (2) that the conversion of trace amounts of metal compounds from oxides to sulfides in the course of extraction constituted reportable "manufacturing."
Endangered Species
In Coalition for Sustainable Resources v. U. S. Forest Service, (10th Cir. Aug. 7, 2001), available at http://laws.findlaw.com/ 10th/998060.html, the court held that the Coalition's challenge to U. S. Forest Service inaction in implementing forest management practices (with alleged consequences on water supplies, and thus endangered species, in the Platte River) was not ripe for review. In Charles Gilbert Gibbs v. Bruce Babbitt, 214 F.3d 483 (4th Cir. 2000) the Court upheld, under a commerce clause challenge, regulations placing restrictions on "taking" red wolves, reintroduced into North Carolina as an experimental population of a threatened species. Tourism, scientific research and potential markets for pelts all added up to considerable impacts upon interstate commerce, according to the court.
Litigation and Attorneys' Fees
A recent Supreme Court case dealt a blow to the use of Title VI of the 1964 Civil Rights Act in "environmental justice" cases. Alexander v. Sandoval, 121 U.S. 1511 (2001), dealing with an Alabama law requiring that drivers' license tests be administered in English, restricted the Act's applicability to only those cases alleging intentional discrimination by states. It effectively gutted the recent district court ruling in South
Camden Citizens in Action, et al. v. New Jersey Department of Environmental Protection, 145 F. Supp.2d 505 (D.N.J. 2001), which found that New Jersey environmental officials had violated the civil rights law when they issued an air emissions permit to a cement facility in the largely minority community of Camden, New Jersey.
The Americans with Disabilities Act (ADA) has also been invoked by environmental plaintiffs, although so far to little avail. In an action filed in Washington under both the Clean Air Act
and the ADA in an attempt to force the state to regulate the practice of wheat stubble burning, Save Our Summers v. Washington Department of Ecology (E.D. Wash., No. CS-99-269-RHW), the court granted the state's motion for summary judgment, holding that the ADA did not create a substantive right in disabled persons to protection from air pollution. And in a similar case filed in Idaho, the court granted the state's motion to dismiss the ADA claims for money damages. Save Our Summers v. State of Idaho
(D. Idaho, No. CV00p-430-N-ELJ).
There have been several notable awards of attorneys fees. Environmental Technology Council v. South Carolina, 215 F.3d 1318 (4th Cir. 2000) confirmed an award of over $400,000 in attorneys' fees and costs to a trade association that successfully challenged South Carolina's regulation of waste imports under the commerce clause of the U.S. Constitution. The fee award was based on 42 U.S.C. 1988. Community
Association for Restoration of the Environment v. Henry Bosma Dairy, 65 F. Supp. 2d 1129 (E.D. Wash. 1999) was a Clean Water Act citizen suit resulting in the district court's assessment of civil penalties of $171,500 and attorneys' fees of approximately $428,000.
In a citizens suit for missing reporting deadlines under EPCRTKA, the targeted company was a "prevailing party" in the case by successfully arguing before the Supreme Court that
there was no justiciable controversy because any civil penalty would be paid to the government. Upon remand, both the trial court and the Seventh Circuit nevertheless denied attorneys's
fees to the defendant company. In its opinion, Citizens for a Better Environment v. Steel Company, 230 F. 3d 923 (7th Cir. 2000), the Seventh Circuit held that while Steel Company was the prevailing party, it could not get a fees award because the suit was not frivolous, unreasonable or pursued in bad faith, as required by the rule of Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978).
And in United States v. James M. Knott and Riverdale Mills Corporation, 106 F. Supp.2d 174 (E.D. Mass. 2000), a Clean Water Act prosecution, a federal district court held, for the
first time in the country, that an EPA criminal enforcement action was "vexatious" and that United States must pay defendant $68,726 in attorneys fees and expenses, as
authorized by the "Hyde Amendment" to a 1997 appropriations act. Codified at 18 U.S.C.
3006A and patterned after the Equal Access to Justice Act, the Hyde Amendment provides for an award of attorneys fees in a criminal prosecution "where the court finds that the position of the United States was vexatious, frivolous, or in bad faith." Harmon
Industries v. Browner revisited: The infamous case dealing with "overfiling" by EPA after (in addition to) a state enforcement action was distinguished, if not rejected, by several courts, including: United States v. Power Engineering Co., No. 97-B-1654 (D.Colo. 2000)(appeal pending before 10th Cir.), United States v. City of Youngstown, 109 F.Supp. 2d 739 (N.D. Ohio 2000) United States v. LTV Steel Co., Inc., 118 F.Supp.2d 827 (N.D. Ohio 2000), Citizens
Legal Environmental Action Network, Inc. v. Premium Standard Farms, Inc., 2000 U.S. Dist. LEXIS 1990 (W.D. Mo. 2000), and United States v. Flanagan, No. 99-423 (C.D. Cal. 2000).
NEPA
Anne Cantrell et al. v. City of Long Beach et al, 241 F.3d 674 (9th Cir. 2001) held that birdwatchers had standing to challenge an EIS on Long Beach Naval Station property
containing habitat for endangered bird species and planned for sale and commercial development. Citing Friends of the Earth v. Laidlaw Environmental Services, 528 U.S. 167 (2000),
the Court found that the plaintiffs had demonstrated sufficient concrete injury by virtue of the fact that each had visited the area on numerous occasions for birdwatching, and planned to
do so in the future.
Policies and Guidance
EPA's Office of Policy, Economics and Innovation recently released a set of cost-benefit guidelines, which some hope will lead to more consistency in the
application of economic methods to EPA rules. EPA's Audit Policy was revised: (1) lengthening the allowed disclosure time from 10 to 21 days after discovery, (2) allowing a facility to qualify for policy benefits even though another facility owned by same organization is already the subject of an inspection, investigation or information request, (3) providing for the 21-day disclosure period for violations discovered at newly-acquired facilities, and (4) clarifying that repeat violations will not disqualify newly-acquired facilities if the prior violations were not by the acquiring company. See www.epa.gov.oeca/polguid/enfdock.html. EPA's Improving Air Quality Through Land-Use Activities guidance, designed to help states develop strategies for air quality in growing urban areas, was issued by EPA January 11, 2001. See http://www.epa.gov/otaq/traq.
EPA has produced a new document entitled Public Involvement in Environmental Permits: A Reference Guide, available via the RCRA / Superfund hotline, 1-800-424-9346, document number
500-R-00-007. EPA's Office of Wastewater Management has produced draft guidelines for septic systems, entitled Guidelines for Management of Onsite/Decentralized Wastewater Systems. See www.epa.gov/owm/decent.html EPA's Small
Business Compliance Policy was revised: (1) lengthening the allowed disclosure time from 10 to 21 days after discovery, and (2) expanding the number of ways that violations can be discovered and still qualify for policy benefits. It applies to businesses with 100 or fewer employees. See www.epa.gov/oeca/smbusi.html. EPA has published Audit Protocols providing technical guidance for conducting environmental audits under RCRA, CERCLA, EPCRTKA and portions of TSCA and SDWA. Obtain copies through www.epa.gov/oeca/ ccsmd/profile.html. The Optional Form for Disclosure Submittal is
found at www.epa.gov/oeca/ore/checklist.pdf.
Solid and Hazardous Waste
American Petroleum Institute et al. v. EPA, 216 F.3d 50 (D.C. Cir. 2000) vacated EPA's regulation declining to exclude oil-bearing waste waters
from the definition of "solid waste," and remanded to the agency for further proceedings. In Association of Battery Recyclers, Inc. v. EPA, 208 F.3d 1047 (D.C. Cir.
2000), the Court rejected EPA's definition of "solid waste" in the Phase IV Land Disposal Restrictions dealing with residual or secondary materials generated in mining and
mineral processing operations, and also struck down the rule's application of the Toxicity Characteristic Leaching Procedure to manufactured gas plant waste. The RCRA Hazardous Waste
Identification Rule was not among the several rules withdrawn by the Bush administration in mid-February and remains under review and on pace for finalization.
Statistics and Trends
Audit Policy Disclosures: In FY 2000, 425 companies disclosed to EPA potential violations at 2,200 facilities (up from 1000 facilities in FY 1999); 215
companies corrected and received penalty relief for violations at 435 facilities. Enforcement Actions by EPA: During FY 2000, EPA issued a record 1,763 administrative complaints and 3,660
administrative compliance orders and field citations (almost double the FY 1999 figures); EPA brought 32 enforcement actions against federal agencies for violations of CAA, CWA, RCRA and
SDWA. Fines and Penalties: During EPA's FY 2000, criminal sentences imposed in federal courts for environmental violations included $122 million in fines (almost double the FY 1999
number) and prison terms totaling 146 years (down from 208 years in FY 1999); civil penalties attained by EPA totaled $102 million (a decrease from $166 million in FY 1999).
Toxic Substances
In Utility Solid Waste Activity Group v. EPA, 236 F.3d 749 (D.C. Cir. 2001), the court rejected EPA's technical amendment to a 1999 rule setting cleanup
standards for certain PCB spills, because the amendment made substantial changes without providing for public notice and comment.
Water Quality and Wetlands
Friends of the Earth, Inc., et al v. Laidlaw Environmental Services, Inc., 528 U.S. 167, 120 S.Ct. 693 (2000) was a citizen suit under Clean Water Act 505, alleging noncompliance with the Laidlaw facility permit's mercury discharge limits and reporting requirements, and seeking civil penalties, declaratory and injunctive relief. The district court imposed civil penalties but denied injunctive relief because, after the lawsuit began, Laidlaw achieved substantial compliance with the permit. The Fourth Circuit vacated and remanded with instructions to dismiss the action, holding that the case had become moot once Laidlaw complied with the permit and Friends of the Earth ("FOE") failed to appeal the denial of equitable relief. The Fourth Circuit reasoned that the only remedy then available to FOE, civil penalties payable to the government, would not redress any injury FOE had suffered.
The Supreme Court reversed and remanded, holding that (1) FOE had standing to sue because (a) the injury-in-fact requirement was satisfied by plaintiffs' "concerns" about the
discharges' potential impacts upon the environment and upon FOE members' recreational, aesthetic and economic interests and (b) the redressability requirement was satisfied because civil
penalties sought by FOE would carry deterrent effects and would redress injuries by abating current violations and preventing future ones; and (2) the case was not rendered moot by
Laidlaw's voluntary compliance with the permit, absent a showing that violations could not reasonably be expected to recur.
Two other Supreme Court cases are of note. The first, Solid Waste Agency of Northern Cook County v. U. S. Army Corps of Engineers, 531 U.S. 159 (2001), held that Clean Water Act section 404(a), which regulates the discharge of dredge and fill material into "navigable waters" (defined as "the waters of the United States, including the territorial seas"), could not by regulation be extended to cover an intrastate wetland where the only jurisdictional connection was the presence of migratory birds. And the other was a wetlands "takings" case testing the boundaries of private property rights, Palazzolo v. Rhode Island, 121 S.Ct. 2448 (2001). There, the court held that the landowner's acquisition of title after the wetlands regulations' effective date did not bar (as the Rhode Island Supreme Court had ruled) a takings claim, and that because the property still retained significant economic value (for construction of a residence on a non-wetlands portion of the property) the case should be remanded for further valuation of the takings claim under Penn
Central Transp. Co. v. New York City, 438 U.S. 104 (1978).
In American Wildlands v. Browner, No. 00-1224 (10th Cir. Aug. 8, 2001), the court upheld EPA's approval of Montana's statutory exemption from antidegradation review of nonpoint sources of pollution and the state's mixing zone policies and procedures, according due deference to EPA's interpretation under the directives of Chevron
U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 842 (1984). In United States v . Deaton, 209 F.3d 331 (4th Cir. 2000), the court held that dredging wetlands and "sidecasting" the materials in the same wetlands was subject to a Clean Water Act 404 permit, as redeposit of dredged soil may harm the environment by releasing pollutants or increasing the amount of suspended sediments. And in a rare, perhaps unique, complement to Harmon Industries Inc. v. Browner, 191 F3d 894 (8th Cir. 1999), the Virginia Supreme Court in State Water Control Board v. Smithfield Foods, Inc.,
542 SE 2nd 766, ruled that the doctrine of res judicata barred the state's action against Smithfield Foods for discharge of pollutants into the Pagan River where EPA had brought a prior federal action for similar violations. The court found the state and EPA to be "in privity" in enforcing the terms of the facility's discharge permit under the Clean Water Act, and to share an identity of interests through "the permits issued by the Board pursuant to this joint program."
In addition to court activity, the water quality regulations are in flux. Pollutant limits for impaired water bodies set by the Total Maximum Daily Load (TMDL) rule issued on July 13, 2000
are on hold until further action by the Bush administration or the expiration of a legislative stranglehold set by H.R. 4425 (through October 1, 2001). Tulloch rule revisited: The
use of mechanized earth-moving equipment to conduct land-clearing, ditching, channelization, in-stream mining or other earth-moving activity in waters of the U.S. is a "discharge of
dredged material," unless project-specific evidence shows that the activity results only in incidental fallback. The new regulation also defines "incidental fallback" as
"the redeposit of small volumes of dredged material that is incidental to excavation activity in waters of the United States when such material falls back to substantially the same
place as the initial removal." A Concentrated Animal Feeding Operation (CAFO) rule revision has been proposed, with changes including two alternative definitions of CAFOs, extended
applicability of the rule to new animal types, and additional permit requirements such as demonstration that groundwater beneath the site is not linked to surface water.
Conclusion
Should we venture a look towards the future, topics of EPA actions to watch for would include: national air toxics assessment; the air toxics program's full
implementation of the maximum achievable control technology (MACT) program by the statutory deadline of May, 2002, followed by development of a framework for considering risks not
addressed by MACT standards; the draft cancer risk assessment; pollution caps on water bodies, or total maximum daily loads (TMDLs); "ecoregional" water quality nutrient
criteria; the toxics office's compilation of hazard data on High Production Volume (HPV) chemicals; the pesticides program's assessment of cumulative exposure risks as mandated by the
Food Quality Protection Act; sanitary sewer overflows; publicly-owned treatment works bypass/blending practices; and continued consideration by EPA regional offices of risk-based
approaches for RCRA corrective action decisions.
Devolution of enforcement activities from federal to state governments may accelerate, by virtue of anticipated budget cuts for EPA and other federal agencies. Expect continuance of the
last decade's shift away from command-and-control regulation to newer models such as "stakeholder processes," including consensus-based regulatory approaches and formal
negotiated rulemaking, and "market-based regulation," as appears in such areas as acid rain and trading-based regulation of ozone-depleting substances and lead in gasoline. EPA
has also presented a draft five-year "sector-based" environmental protection plan, which would transition from experimental into mainstream use the regulation of environmental
performance by industrial sectors, rather than by environmental media.
Footnotes
1.
This installment of Utah Law Developments was adapted by the author from his presentation to the Energy, Natural Resources and Environmental Law Section of the Utah State Bar. The views expressed in this article are those of the author and not official positions of the Attorney General's Office of the State of Utah.
2. On the administrative and legislative fronts, air quality issues continue to rage. Standards for ozone in ambient air, corporate average fuel economy, reformulated fuels and
MTBE (methyl tertiary butyl ether, a gasoline additive), new source review and power plant emissions all currently bear the scrutiny of Congress and various administrative agencies. A
specialist in this area of law could fill the rest of this Utah Bar Journal on these topics; the rest of us can instead refer to an excellent web site for further details. Produced by
EPA's Office of Air Quality Planning and Standards, the site provides quick access to recent regulations and guidance documents issued for the previous six-month period:
http://www.epa.gov/ttn/oarpg.ramain.html.
3. 42 USC 9613(c).
4. 42 USC 9607.
5. Id.
6. Emergency Planning Community Right to Know Act of 1986, 42 UCS 11001-11050.
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