Legal News

Appeals Court Rules Against North Dakota In Missouri River Suit

The U.S. Court of Appeals for the 8th Circuit found that North Dakota cannot use federal water laws to challenge the U.S. Army Corps of Engineers' management of the Missouri River (State Of North Dakota vs. U.S. Department Of Army, No. 042204P, August 16, 2005).

The state wants to prevent the Corps from releasing water from Lake Sakakawea to support downstream navigation on the Missouri River. North Dakota's complaint alleges that the releases violate water quality standards for Lake Sakakawea established pursuant to the Clean Water Act (CWA).

Lake Sakakawea is a reservoir in North Dakota formed by the enclosure of the Garrison Dam, part of the Missouri River main stem reservoir system established by the Flood Control Act of 1944 (FCA). The FCA assigns to the Corps the task of managing the main stem reservoir system. The Corps releases water from Lake Sakakawea into the Missouri River to support downstream navigation in accord with the goals of the FCA. North Dakota filed suit to enjoin the releases from Lake Sakakawea on the grounds that lowering the level of the lake would violate state-law water-quality standards established pursuant to the Clean Water Act. The states of Nebraska and South Dakota also filed complaints as intervenors.

A federal district court dismissed the North Dakota complaint, holding that the CWA preserves sovereign immunity from suit for the Corps when the Corps' authority to maintain navigation is at issue. The district court also dismissed the appeals of the intervenors as moot.

The appeals court stated that allowing individual states to use their water-quality standards to control how the Corps balances water-use interests would frustrate the design of the FCA. "Accordingly, the enforcement of state water-quality standards against the Corps' release of water from Lake Sakakawea is preempted," the court stated.

U.S. Court of Appeals for the 8th Circuit: http://www.ca8.uscourts.gov/index.html

Wal-Mart Reaches $1.15 Settlement With Connecticut Officials

Connecticut officials reached a $1.15 million settlement with Wal-Mart involving environmental violations at 22 stores related to stormwater and other water management issues.

The state sued Wal-Mart in 2001 after the company failed to comply with stormwater management requirements at numerous stores. The violations threatened to expose the environment to sediments, fertilizers, oil and other pollutants -- products often stored outside the stores and carried by rain into nearby bodies of water. It also sold an improper sewer additive at several stores.

The state later amended the lawsuit after it discovered that -- at numerous stores -- Wal-Mart also operated without appropriate permits needed for photographic wastewater and vehicle maintenance activities, as well as discharged wastewater from several dumpsters and garden centers.

"Wal-Mart's environmental record here seems as low as its prices -- proven violations at 22 stores in Connecticut," state Attorney General Richard Blumenthal said. "Big as it is, Wal-Mart failed to get it right. Now they need to change their corporate culture -- and correct their systems. Giant corporations are not above the law. We're holding Wal-Mart accountable for systemic, repeated violations across the state. Wal-Mart should use its corporate clout to set a high standard for sound environmental and employment conduct. At minimum, it must obey the law. This significant settlement should send a stark message to the industry: environmental disregard carries consequences."

Of the $1.15 million settlement, $600,000 satisfies a civil penalty to the Treasury; $500,000 will assist municipal compliance with stormwater regulations; and $50,000 will be used to protect the Connecticut River Watershed.

Wal-Mart also has agreed to correct the improper discharges; submit plans to address stormwater management; hire a consultant to conduct seven bi-annual audits to ensure compliance and fix all violations; hire a stormwater consultant for all Wal-Mart construction sites in Connecticut for five years; cease using improper sewer additive; and obtain all proper permits.

Additional information about state stormwater regulations can be found at the Connecticut Department of Environmental Protection's Web site at http://dep.state.ct.us/index.htm.

California Regional Water Board Approves $7.375 Million Settlement Of Groundwater Pollution Case In Downtown Lodi

On Aug. 5, the Central Valley Water Board approved a series of settlements with the city of Lodi and the other parties responsible for groundwater pollution in downtown Lodi.

In the settlements, the city of Lodi agreed to take responsibility for cleaning up the soils and the groundwater plume in exchange for cash contributions toward the cleanup by the other responsible parties totaling $7.375 million. Lodi also will contribute $2.2 million to the cleanup fund and pay whatever additional funds are needed in the future to operate and maintain the cleanup systems.

In April 2004, the Regional Water Board issued a Cleanup and Abatement Order to the City, Guild Cleaners, the Lodi News Sentinel and others responsible for the discharge of the cleaning solvent perchloroethene (PCE) to the groundwater in the downtown Lodi area. The PCE had forced the closure of one municipal water supply well and is now starting to appear in another supply well. To comply with the Cleanup and Abatement Order, the City took responsibility for the project and completed the investigation of the extent of the PCE plume.

"The Regional Water Board appreciates that the parties are leaving the litigation behind them and putting their resources into actually cleaning up the contamination. The city of Lodi has shown real leadership in this effort and we are pleased that we also were able to help facilitate this development," said Bob Schneider, chairman of the Central Valley Regional Water Quality Control Board.

Central Valley Regional Water Quality Control Board: http://www.waterboards.ca.gov/centralvalley

Lewes, Del., Settles Clean Water Act Violations At Wastewater Treatment Plant

The city of Lewes, Del., will pay a $33,000 penalty and complete a $22,000 project to improve water quality monitoring under a consent agreement with EPA over alleged violations at the city's wastewater treatment plant.

Under a Clean Water Act permit issued by Delaware Department of Natural Resources and Environmental Control, the plant discharges treated wastewater into the Lewes-Rehoboth Canal, which flows into Rehoboth Bay.

EPA cited the plant for exceeding permit discharge limits on several pollutants, including fecal coliform, total suspended solids, total residual chlorine, and biochemical oxygen demand during at least 23 months over a five-year period. EPA also alleged significant illegal bypasses of the plant's treatment system where sewage was discharged without full treatment.

In addition to the $33,000 penalty, Lewes will complete a $22,000 supplemental environmental project to monitor the level of dissolved oxygen in Lewes-Rehoboth Canal. This monitoring, which exceeds the requirements of federal and state law, will improve the water quality data available to government agencies and citizens.

This action, announced on Aug. 16, addresses the penalty portions of EPA's response to the alleged violations. The city has complied thus far with EPA's January 2003 administrative order that requires it to upgrade the treatment plant so that it is in compliance with EPA discharge regulations by April 2007. As part of the settlement, the city of Lewes has neither admitted nor denied liability for the cited violations.

EPA Region 3: http://www.epa.gov/region03/index.htm

This article originally appeared in the 08/01/2005 issue of Environmental Protection.

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