Legal News

News Item 1: Nation's High Court Upholds States' Power To Regulate Rivers

On May 15, the U.S. Supreme Court upheld state governments' authority to regulate water quality impacts of hydroelectric dams and other federally licensed activities within their borders (S. D. Warren Co. vs. Maine Board of Environmental Protection, 04-1527).

The issue in this case is whether operating a dam to produce hydroelectricity "may result in any discharge into the navigable waters" of the United States. If so, a federal license under Section 401 of the Clean Water Act requires state certification that water protection laws will not be violated. In a 9-0 vote, the high court held that a dam does raise a potential for a discharge, and state approval is needed.

"This is a significant victory that ensures Pennsylvania and other states have all the tools necessary to protect public health and the environment in the years ahead," Pennsylvania Environmental Protection Secretary Kathleen A. McGinty said. Pennsylvania was among the states that filed an amicus (friend of the court) brief in the case. "State governments play a central role in making sure waterways are clean, healthy and readily available for the use and enjoyment of residents and businesses."

Warren owns and operates five contiguous hydroelectric run-of-river dams that provide electricity to one of its paper mills. In renewing the hydroelectric licenses, the company applied for water quality certification under the Clean Water Act. In 2003, Maine's board approved certification with conditions to mitigate the water quality impacts of the dams. Warren appealed the conditions, claiming the state overextended its authority.

The court rejected three arguments put forth by Warren, which hinged on the meaning of the word "discharge."

Officials with the National Hydropower Association (NHA) stated that they were disappointed that the Court did not comment on what happens when a state, through its 401 process, establishes a condition that conflicts with federal policy or a federally imposed condition. Several justices raised the policy question during oral arguments, they said.

"The issue of a possible disagreement between the federal government and a state is a serious matter of national importance, especially as the United States desperately searches for more domestic sources of climate-friendly energy and works to protect environmental resources," officials said. "NHA is concerned that a state, using 401, could shut down a clean, non-polluting hydropower project; a situation Congress did not envision when it passed the Clean Water Act."

The opinion can be accessed at the Web site of the U.S. Supreme Court: http://www.supremecourtus.gov.

News Item 2: U.S. Seeks Court Approval on Dredging Agreement with GE

On May 16, the U.S. Department of Justice (DOJ) and EPA asked the US District Court - Northern District of New York to approve the October 2005 consent decree with the General Electric Co. (GE) for the river dredging called for in EPA's 2002 Record of Decision for the Hudson River PCBs (polychlorinated biphenyls) Superfund site.

The government made its written request to the court after considering the public comments submitted during the comment period, eventually concluding that the settlement reached last year by the government and GE remains appropriate, EPA officials said. The submission to the court includes detailed and comprehensive responses to the public comments.

"The settlement reached with GE was designed to meet the immediate and future needs of the people of New York-- by removing a large amount of PCBs from the Upper Hudson River and expediting PCB cleanup to improve the health and safety of the environment and citizens," said Sue Ellen Wooldridge, assistant attorney general of the Justice Department's Environment and Natural Resources Division. "We are pleased to seek the court's approval of this settlement and we look forward to seeing the benefits of this landmark action."

Dredging of the Hudson River will be done in two phases. The first phase of the dredging will last one year and will remove about 10 percent of the total volume of PCB-contaminated sediment slated for dredging during the full cleanup project. The remaining phase of the dredging is expected to take five years.

If accepted by the court, the consent decree would require that GE construct the sediment transfer/processing facility needed for the project and perform the first phase of the dredging according to design plans being reviewed by EPA.

The government's submission requesting entry of the consent decree will soon be available on the EPA's Hudson River Web site at http://www.epa.gov/hudson.

News Item 3: Cheese Factory Pays $3 Million In California Water Quality Settlement Agreement

Hilmar Cheese, among the world's largest cheese factories, has paid $3 million as part of its settlement with the state of California stemming from a water pollution case against the cheese maker, state officials announced on May 11.

The settlement is the largest payment ever made resulting from Regional Water Board enforcement action. Earlier this year the Central Valley Regional Water Quality Control Board settled an Administrative Civil Liability complaint against Hilmar Cheese Co. and Hilmar Whey Protein Inc. of Merced County for $3 million.

The settlement will fund the following:

  • $1.85 million to fund a supplemental environmental project.
  • $1 million (a civil liability) to the State's Waste Discharge Permit Fund.
  • $150,000 reimbursement to the California attorney general's office for work on the case.

A major component of the settlement is the environmental project. Hilmar is responsible for financing an independent environmental study, focused on water quality, the food industry and its salt waste issues. The information will be useful to the Water Board in developing a comprehensive salt management strategy for the Central Valley.

For additional information, contact the California State Water Resources Control Board at http://www.swrcb.ca.gov.

This article originally appeared in the 05/01/2006 issue of Environmental Protection.

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