United States
                        Environmental Protection
                        Agency
                Office of Enforcement and
                Compliance Assurance
                (2201A)
        EPA 300-R-9-007
        September 1999
             Water Enforcement Bulletin
Issue 16
Water Enforcement Division
       September 1999
Eric V. Schaeffer
Director, Office of
Regulatory Enforcement
  Brian J. Maas
  Director, Water
  Enforcement Division
Editor: Joseph G. Theis
(202) 564-4053
Theis.Joseph@epa.gov
        An Update of Cases Relating to Water Enforcement
                October 1998 - June  1999
                        Cases  in Review

                              In This Issue
            Second Circuit holds that discharge of waste slurry through drain into
            storm water discharge system that led into natural tributary of a
            navigable water constituted discharge of pollutants to waters of the
            U.S.: United States v. TGR Corp	
                                      1
            District court holds that the purposeful relocation of materials within
            wetland does not constitute incidental fallback, but is more similar to
            sidecasting, which is subject to Section 404 of the CWA: United
            States v. Bay-Houston Towing Co.	15

            D.C. Circuit finds that EPA reasonably interpreted the CWA as
            precluding challenge to a state- issued  permit in a federal
            enforcement action and upholds administrative penalty for violations
            of NPDES storm water permit related to discharges from roofs of
            buildings and gutters: GMC v. U.S. EPA	28
            This publication can be found on the Internet at http://www.epa.gov/oeca/ore/water/waterbull.html
      Recycle / Recyclable. Printed with Soy/Canola Ink on paper that contains at least 30% recycled fiber.

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Issue 16
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                    Recent Fourth Circuit Decision in U.S. v. Smithfield Foods, Inc.

In a decision issued too late to include in this publication of the Water Enforcement Bulletin, the Fourth Circuit
Court of Appeals upheld the finding of liability and wrongful profits (economic benefits) analysis used by the
District Court for the Eastern District of Virginia in assessing the largest civil penalty in the history of the Clean
Water Act. U.S. v. Smithfield Foods. Inc.. No. 97-2709, 1999 U.S. App. LEXIS 22,092 (4th Cir. Sept. 14, 1999),
decision below reported at 972 F. Supp. 338 (E.D. Va. 1998). The Court of Appeals remanded the decision to the
District Court solely to correct an admitted error of approximately 4% in the government expert's calculation of
the penalty. The Fourth Circuit specifically upheld the District Court's assessment of a separate penalty for each
type of violation (i.e., monthly, daily maximum) finding that "this method of counting violations creates the proper
incentive for polluters to comply."
                   Note:  The Water Enforcement Bulletin is available on the Internet at:
                          http://www.epa.gov/oeca/ore/water/waterbull.html

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Issue 16
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                                            Disclaimer

The Water Enforcement Bulletin is intended primarily for the use of EPA employees. The summaries contained
in the Water Enforcement Bulletin do not represent an official Agency position with respect to matters in litigation,
nor are they intended to create any rights, duties or obligations, either implied or otherwise, in any third parties.
To make inquiries with regard to the Water Enforcement Bulletin please contact Joseph G. Theis (2243A), U.S.
EPA, 401 M Street, SW, Washington, DC 20460, (202) 564-4053, e-mail: theis.joseph@epa.gov.

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 Issue 16                             Water Enforcement Division                     September 1999
                                     TABLE OF CONTENTS

I.   Clean Water Act (CWA)	  1
    A.  Jurisdictional Scope of the CWA	  1
        1.   Second Circuit holds that discharge of waste slurry through drain into storm water discharge
            system that led into natural tributary of a navigable water constituted discharge of pollutants to
            waters of the U.S.:  United States v. TGR Corp.  	  1
        2.   District court holds isolated wetlands provide a sufficient basis for CWA regulation: United
            States v. Krilich	  1
        3.   District court holds that groundwater is not included within the definition of "navigable waters":
            Patterson Farm. Inc. v. City of Britton  	  2
        4.   District court dismisses challenge to USAGE CWA Section 404 jurisdiction over wetlands
            adjacent to navigable waters:  United States v. Hartz Construction Co.. Inc.  	  3
    B.  Discharge of Pollutants/Point Sources	  4
        1.   District court holds trap shooting facility and each firing station is a point source:  Stone v.
            Naperville Park District  	  4
        2.   District court holds that CAFOs include not only the ground where the animals are confined but
            also the lagoons and systems used to transfer the animal wastes to the lagoons as well as
            equipment which distributes and/or applies the animal wastes produced at the confinement area
            to fields outside the animal confinement area: Community Ass'n for Restoration of the Env't v.
            Sid Koopman Dairy 	  5
        3.   District court holds that violations were not caused by "single operational upsets" and that EPA
            could enforce effluent limits for internal outfalls: United States v. Gulf States Steel. Inc.  	  6
    C.  State/Tribe Water Quality Standards	  6
        1.   District court holds that EPA has discretion to determine at what point it is appropriate for the
            Agency to deem a State's failure to submit TMDLs a constructive submission meriting
            intervention, but that EPA's duty to establish TMDLs where a State fails to do so is not
            committed to Agency discretion by law, but must be fulfilled promptly: Natural Resources
            Defense Council v.  Fox	  6
        2.   District court holds that, with regard to when EPA must act given no State submission of
            TMDLs, the  CWA provides a readily ascertainable deadline for EPA action and, as a result, at
            some point beyond July 26, 1979 the delay becomes unreasonable and EPA's duty to act is
            triggered: American Canoe Ass'n v. U.S.  EPA	  7
        3.   ALJ holds that use of the trophic index to  determine level of Section 303(b) impairment
            constitutes a "binding norm" and should have been subject to formal notice and comment:
            Western Carolina Regional Sewer Authority v. South Carolina Department of Health and
            Environmental Control 	  9
    D.  NPDES Permits 	  9
        1.   Fifth Circuit holds that EPA did not violate the APA when it set zero discharge limits on
            produced water and produced sand in the coastal oil and gas effluent limitation guidelines, nor
            did EPA act in a manner contrary to the CWA when it set separate limits for Cook Inlet without
            designating it as a separate subcategory: Texas Oil & Gas Ass'n v. U.S. EPA  	  9
        2.   Tenth Circuit holds that plaintiff cannot use CWA citizen suit provisions to challenge a NPDES
            permit that does not address the discharge of pollutants to groundwater where EPA determined
            during permit renewal that the permittee did not need a permit for groundwater seepage:

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          Notice: Rules of the Tenth Circuit Court of Appeals may limit citation to unpublished opinions.
          Please refer to the rule of the U.S. Court of Appeals for this Circuit (10th Cir. R. 36.3).  Amigos
          Bravos v. Molycorp	  11
       3.  District court holds that a NPDES storm water permit is not required for the construction of
          farming access roads, and that construction activities that disturb less than five acres and are not
          part of a larger common plan of development, are not subject to NPDES permit requirements:
          Mamo v. Galiher	  11
   E.  Section 404/Wetlands 	  12
       1.  Court of Appeals for the Federal District holds that denial of Section 404 permit for the dredge
          and fill of underwater lake-bottom property did not constitute a compensable government taking:
          Forest Properties. Inc. v. United States	  12
       2.  Court of Federal Claims holds that USAGE denial of permit to fill lake bottom for residential
          development does not constitute a taking requiring compensation under the Fifth Amendment:
          Palm Beach Isles Ass'n v. United States 	  14
       3.  District court dismisses suit to enforce violation of Section 404 permit terms for lack of subject
          matter jurisdiction where violation resulted in discharge of pollutants but not a discharge of
          dredge and fill material: United States v. United Homes  	  14
       4.  District court holds that the purposeful relocation of materials within wetland does not constitute
          incidental fallback, but is more similar to sidecasting, which is subj ect to Section 404 of the
          CWA: United States v. Bay-Houston Towing Co.  	  15
       5.  District court denies defendant's motion to bar $1,257,500 penalty for wetlands violations:
          United States v. Krilich	  16
       6.  District court rejects Home Builders Association's claims that agreement between USAGE and
          other federal, state and  local agencies designed to coordinate various programs to regulate soil
          erosion and sediment control exceeds USAGE statutory and regulatory authority: Home Builders
          Ass'n of Greater Chicago v.  USAGE, et al. 	  16
       7.  District court approves  settlement agreement regarding future regulation and study of
          mountaintop mining operations: Bragg v. Robertson 	  17
       8.  District court dismisses challenge to USAGE CWA Section 404 jurisdiction over wetlands
          adjacent to navigable waters: United States v. Hartz  Construction Co.. Inc. 	  19
       9.  District court holds that the continuing presence of a reconstructed fishpond wall without any
          current governing permit does not violate the CWA since the original placement was conducted
          pursuant to proper authorization under a nationwide permit: Harold Wright v.
          Lance Dunbar et al.	  19
   F.  Citizen Suits	  20
       1.  Standing	  20
          a.  Fourth Circuit holds that two non-profit environmental organizations lacked standing because
              they failed to establish injury in fact and failed to  establish that the alleged injuries in fact
              were fairly traceable to defendant's conduct:  Friends of the Earth. Inc. v. Gaston Copper
              Recycling Corp.	  20
          b.  District court holds  that civil penalties sought for  ongoing violations of the CWA specifically
              deter such violations sufficient to satisfy the redressibility requirement for purposes of
              establishing standing:  Natural Resources Defense Council v. Southwest Marine	  21

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       2.  Enforcement Under Comparable Law as Bar to Citizen Suit  	  22
          a. Sixth Circuit holds that series of four administrative enforcement orders constituted diligent
             prosecution under a comparable State law sufficient to bar citizen suit: Jones v. City of
             Lakeland	  22
          b. Ninth Circuit holds that a CWA citizens' suit, for violations that continued beyond the
             timeframe specified in a State enforcement action, is not barred by such enforcement action
             where no penalty was imposed under the State action and environmental enhancement
             projects imposed under the State action did not address the continuing violations:  Northern
             California River Watch v.  Sonoma County Water Agency	  22
          c. District court holds that the prosecution of a State enforcement action that addresses the same
             claims as a citizen suit does not bar the citizen suit where the State action is filed after the
             citizen suit has been filed:  Long Island Soundkeeper Fund. Inc. v. New York City Dep't of
             Envtl. Protection 	  23
          d. District court holds that CWA citizen suit not precluded by State Notice of Violation and
             Cease and Desist Order issued prior to filing of action, despite the fact that State took further
             administrative action with  a penalty assessed and collected after the suit was filed:  Old
             Timer. Inc. v. Black-Hawk Central Sanitation District, et al. 	  24
          e. District court grants summary j udgment motion of citizen suit plaintiff regarding CWA
             liability of defendant wastewater treatment plant based on finding that defendant had
             discharged heat exceeding upstream temperature of receiving waters, despite the fact that
             defendant's NPDES permit did not include any limitation for heat: Pinev Run Preservation
             Ass'n v.  County Comm'rs of Carroll County  	  26
   G.  Enforcement Actions/Liabilities/Penalties  	  28
       1.  D.C. Circuit finds that EPA reasonably interpreted the CWA as precluding challenge to a state-
          issued permit in a federal enforcement action and upholds administrative penalty for violations of
          NPDES storm water permit related to discharges from roofs of buildings  and gutters: GMC v.
          U.S. EPA	  28
       2.  District court holds ALJ finding of liability was based on substantial evidence: Smith v.
          Hankinson	  28
       3.  District court places 176 sewage treatment facilities in receivership based on overwhelming
          evidence of repeated, unabated violations of the CWA and the LEQA over an extended period of
          time, as well as defendant's blatant and continued violation of a consent decree intended to
          remediate such violations:  United States v. Acadia Woods  	  29
       4.  District court holds that violations were not caused by "single operational upsets" and that EPA
          could enforce effluent limits for internal outfalls:  United States v. Gulf States Steel. Inc.  	  30
       5.  EAB holds no reversible error or abuse of discretion occurred where ALJ imposed $2,000
          penalty for wetlands violation: In re: Britton Construction Co.. BIC Investments. Inc.. and
          William and Mary Hammond	  32
   H.  Criminal Cases	  33
       1.  Second Circuit affirms criminal convictions for knowing discharge of pollutants and for the
          negligent discharge of oil:  Notice:  Rules of the Second Circuit Court of Appeals may limit
          citation to unpublished opinions. Please refer to the rules of the  United States Court of Appeals
          for this circuit.  United States v. Superior Block & Supply Co.	  33
       2.  Sixth Circuit reverses grant of motion for judgment of acquittal and reinstates conviction for
          discharge of pollutants from a ship without a NPDES permit:  United States v. M/G Transport
          Services. Inc.	  34
                                                  in

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        3.   Ninth Circuit affirms criminal conviction for improper indirect discharge:  United States v.
            Iverson	 35
        4.   Ninth Circuit upholds sewage sludge hauler's sentence and conviction for aiding and abetting the
            unlawful disposal of sewage sludge, for conspiracy and mail fraud:  United States v. Cooper	36
        5.   District court denies motion by CWA defendant to suppress evidence as unconstitutionally
            obtained:  United States v. Johnson, et al.  	 37
    I.  Section 311 (Oil and Hazardous Substance Liability)	 38
        1.   District court holds that § 311 is not the exclusive CWA enforcement authority available to
            address an accidental spill of petroleum, but that § 309 also provides such authority: United
            States v. Texaco Exploration & Production Co.: United States v. Mobil Exploration and
            Production. Co.	 39
        2.   District court upholds $5,000 CWA penalty assessment imposed by U.S. Coast Guard against an
            oil terminal facility that discharged a harmful quantity of oil into an adjacent bay based on
            finding that Coast Guard's determination was supported by substantial evidence in the
            administrative record and was not an abuse of discretion:
            BP Exploration & Oil. Inc. v. U.S. DOT and USCG 	 40
        3.   ALJ assesses a civil penalty of $24,876 for violations of SPCC requirements and oil discharge
            prohibitions: In the Matter o/Tepperell Associates  	 41

II.  Other Statutes	 42
    A.  Oil Pollution Act (OPA) 	 42
        1.   Fourth Circuit holds that, under the OPA, compensable removal costs and damages are those that
            result from the discharge of oil or substantial threat of discharge into navigable waters or
            adjacent shorelines: Gatlin Oil Company. Inc. v. U.S. DOT	 42
        2.   District court holds that, in the case of abandonment, the OPA provides for liability of both
            previous and current lessees/operators:  United States v. Bois D' Arc Operating Corp.	 43
    B.  Emergency Planning and Community Right-To-Know Act (EPCRA)  	 43
        1.   EAB finds that use  of EPA self-disclosure settlement policy in litigation was inappropriate, but
            affirms civil penalty amount calculated based on policy due to concerns regarding fairness: In
            re:  Bollman Hat Company	 43
        2.   EAB holds that "justice" penalty adjustment factor may only be applied to recognize
            environmentally beneficial projects when other penalty adjustment factors are insufficient or
            inappropriate to achieve fair and just result:  In re: Catalina Yachts. Inc. 	 44
    C.  Clean Air Act (CAA)	 45
        1.   D.C. Circuit remands revised NAAQSs for particulate matter and ozone based on
            unconstitutional delegation of legislative authority: American Trucking Ass'n v. U.S. EPA  	45
    D.  Surface Mining Control and Reclamation Act (SMCRA)	 47
        1.   Court of Federal Claims holds that Secretary of Interior's denial of a surface mining permit does
            not result in a compensable taking where mining activity would be enjoinable as public nuisance
            under State law: Rith Energy. Inc. v. United States	 47
                                                   IV

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I.   Clean Water Act (CWA)

    A. Jurisdictional Scope of the CWA

       1.   Second Circuit holds that discharge
           of waste slurry through drain into
           storm water discharge system that
           led   into  natural  tributary  of  a
           navigable   water   constituted
           discharge of pollutants to waters of
           the U.S.:

United States v. TGR Corp., No. 171 F.3d 762 (2nd
Cir. Mar. 26, 1999).

Defendant TGR Corp., appealed its conviction for
knowingly discharging pollutants into waters of the
U.S. in violation of the CWA. Defendant's company
was in the business of removing and disposing of
materials that contained asbestos, and employees
of defendant's company had discharged  a waste
slurry containing asbestos and other pollutants into
a drain that led to a storm water discharge system
and subsequently to Grasmere Brook, which the
district court had found to be a tributary of Ash
Creek, a navigable water of the U.S.  On appeal,
defendant argued that Grasmere Brook was not
part of "waters   of the U.S.," but rather was a
municipal separate storm sewer.  Defendant also
asserted  that Grasmere Brook  was  part  of a
municipal waste treatment system and, thus, was
expressly excluded from coverage under the CWA.

After  observing  that several Circuit Courts  have
found that  Congress  intended the definition  of
"waters of  the  United  States" to be  construed
broadly and that use of the term "navigable" in the
CWA was of limited import, the court considered
defendant's arguments.     The   court   found
defendant's arguments that Grasmere Brook was
part of a municipal separate storm sewer or a
municipal waste  treatment system to be without
merit.  The court observed that  pursuant  to 40
C.F.R. § 122.26(b)(8), a municipal separate storm
sewer must be a conveyance "owned or operated
by a  State, city, town, borough, county,  parish,
district, association or other public body," and must
              be "[d]esigned or used for collecting or conveying
              storm water." The court found that testimony had
              clearly established that the Brook was not owned or
              operated by any public body.   Further, the court
              found that the waste treatment system exclusion
              applied only to "manmade bodies of water which
              neither were  originally created in  waters  of the
              United States... nor resulted from the impoundment
              of waters of the U.S." The court concluded that,
              given the evidence presented that Grasmere Brook
              was a natural waterway that housed "aquatic life
              and water fowl" and flowed into Ash Creek, an
              undisputed  navigable waterway, Grasmere Brook
              could not be considered a waste treatment system.
              The court concluded that Grasmere Brook was
              a natural tributary of a navigable water, and that
              tributaries of navigable waters constitute waters
              of the U.S.  for purposes of the CWA.  The court
              affirmed defendant's conviction.

                     2.   District   court    holds    isolated
                         wetlands provide a sufficient basis
                         for CWA regulation:

              United States v. Krilich. 1999 U.S. Dist. LEXIS4191
              (N.D. II. Mar. 24, 1999).

              The parties had previously entered  into a consent
              decree that addressed CWA violations  involving
              wetlands in an  area developed by defendants.
              Subsequently,  defendants were  held  to  have
              violated the terms of the consent decree (deadlines
              for  a mitigation plan)  and were   subject to a
              substantial penalty under the terms of the decree.
              (See,  United States  v. Krilich, 948  F. Supp. 719
              (N.D. II.  1996)),  which was upheld on appeal with
              the exception of a  miscalculation  of the penalty
              amount. (See, United States  v. Krilich, 126 F.3d
              1035  (7th  Cir.  1997)).   The  final  penalty of
              $1,257,500 was entered  December 15, 1997. In
              the present action,  defendants moved to bar
              enforcement of this penalty.

              Defendants argued that the district court had lacked
              subject matter jurisdiction to enforce the mitigation
              plan deadlines because the land improperly filled
              did not constitute a wetland under the CWA or did

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not have  a sufficient connection with  interstate
commerce to invoke federal jurisdiction. The court
considered this second point and found that
"both presently and in 1996, precedent in this
circuit supports that  isolated wetlands are a
sufficient basis for CWA regulation."  The court
acknowledged  that  the Ninth  Circuit was   in
agreement and that the Fourth Circuit had reached
a  contrary  position,  but  concluded that there
continued to be a  "colorable basis for exercising
jurisdiction over the decree's subject matter."

Defendants also argued that the decree should
have  been  modified  to   reflect  more recent
precedents that suggest that filled lands  do not fall
within the scope of the CWA.  (See, United States
v. Lopez, 514 U.S. 549 (1995) and United States v.
Wilson.  133 F.3d 251 (4th Cir., 1991)).  The court
dismissed  this argument,  noting that even  if
defendants were correct, the  decree would have
been vacated as of the effective date of the court's
decision. The court explained that the rule that
consent decrees  may or must be modified to
reflect  changed   circumstances,  including
significant  changes  in the  law, is limited to
relief from prospective application of the decree
and, thus, here would not affect defendants'
violation or penalty. The court denied defendants'
motion to bar enforcement of the penalty.

       3.  District   court    holds   that
           groundwater is not included within
           the definition of "navigable waters":

Patterson Farm, Inc. v.  City of Britton, 22 F. Supp.
2d 1085 (D. S.D. Sept. 29, 1998).

Plaintiff, Patterson Farm, Inc., a farming corporation
located near Britton, South Dakota, instituted this
action against the  City of Britton (City)  under the
citizen's suit provision of the CWA.  Plaintiff also
included  pendent  State law  claims  and sought
injunctive relief and damages.

In Counts I and V of the complaint, plaintiff asserted
as a pendent State law claim that the City violated
the one-time irrigation order issued by the South
              Dakota  Department of Environment and  Natural
              Resources (DENR) by  irrigating water from its
              industrial lagoons that may have exceeded effluent
              standards when  the ground was both frozen and
              saturated and posting  no warning signs.  Plaintiff
              also claimed that the  municipal  lagoons  were
              negligently  maintained  which  resulted  in  the
              unlawful drainage of  sewage,  pollutants,  and
              contaminants onto plaintiff's property.   These
              alleged  circumstances constituted nuisance under
              State law.

              In Counts  II and  VI, plaintiff asserted  another
              pendant State law claim that the City was negligent
              in its operation and maintenance of the industrial
              and municipal lagoons based on the same claimed
              facts. Counts III  and VII alleged violations of State
              environmental law. In Counts IV and VIII,  plaintiff
              claimed the City  violated the federal CWA when it
              violated 1) the order  issued by DENR; 2) other
              effluent  standards or limitations;  and  3)  best
              management practices  as  they  relate  to  the
              municipal lagoons. Plaintiff also claimed the City
              violated federal law when it operated the industrial
              lagoons without a NPDES permit and allowed an
              unauthorized discharge of sewage and pollutants
              into navigable waters.

              The  City filed a motion for summary judgment
              claiming the court lacked subject matter jurisdiction
              to hear the federal  and pendent State law claims;
              plaintiff   lacked  standing  because  all  alleged
              violations were past violations; and the City was
              immune from liability for the State  law claims of
              nuisance and negligence because it had no liability
              insurance.   Plaintiff  filed  a cross  motion  for
              summary judgment restating the  claims in the
              complaint.

              The  court,  granting in part the City's motion for
              summary judgment as  to Counts IV and VIII, found
              the following:  1) the industrial lagoon facility fell
              within the regulatory definition of a POTW, and as
              such was specifically  excluded from the NPDES
              permit requirement provisions; 2) the court lacked
              subject matter jurisdiction over the alleged violation
              of the DENR order because, even if true, it was a

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wholly past violation of the CWA for which citizen
suits cannot be maintained; 3) the court lacked
subject matter jurisdiction  over the alleged
discharges  into  the  groundwater  because
groundwater is not included within the CWA's
definition  of "navigable waters;"  and 4) the
alleged  municipal lagoon violations were without
merit because storm sewer systems were exempt
from federal and State regulations for a municipality
of less that 100,000 people, as well as falling within
the  exclusion of groundwater  from  the  CWA.
Because  material  facts were  in  dispute  as to
whether the industrial  lagoon facility had been in
compliance with the CWA, the court held neither
party was  entitled to summary judgment as to this
aspect of Counts IV and VIII. Finally, with respect
to Counts  IV  and VIII,  the court  granted plaintiff's
motion for an order compelling  the production of
documents because the documents sought were
not privileged material and were  relevant  to the
claim of ongoing NPDES permit violations.

In addition,  the court found  that the  City was
immune from  liability for the State law claims of
nuisance  and  negligence  because  liability for
pollution was expressly not covered by the City's
insurance  policy. Therefore, the court granted the
City's motion for summary judgment as to Counts I,
II, III, V,  VI, and VII.

       4.   District court dismisses challenge to
           USAGE CWA Section 404 jurisdiction
           over wetlands adjacent to navigable
           waters:

United States v. Hartz Construction Co.,  Inc., 1999
U.S. Dist.  LEXIS 9126 (N.D. II. June 14, 1999).

This matter arose out of a CWA civil enforcement
action  in  which the  government alleged that
defendant Hartz Construction Co.,  Inc. (Hartz) had
discharged dredged or fill material into waters of the
U.S. without a Section  404 permit.  Hartz also was
sued for failing to report information requested by
EPA pursuant to an  information  request  made
under CWA Section 308 to assist in  the Agency
investigation of Hartz's alleged discharges.
              The  matter revolved  around the  scope of the
              USAGE'S statutory authority to regulate discharges
              to waters  of the  U.S.  under the  Section  404
              program. Section 404(a) of the CWA prohibits the
              discharge of dredged orfill materials into "navigable
              waters" without a permit.  "Navigable waters" are
              defined in Section 502 as "waters of the United
              States, including the territorial seas." Although the
              CWA does not define "waters of the United States,"
              EPA and the USAGE have promulgated regulations
              at  33   C.F.R.   328.3(a)(3)   and   33  C.F.R.
              230.3(3)(s)(3) defining the term  as  follows: "all
              waters such as  intrastate lakes,  rivers,  streams
              (including intermittent streams), mudflats, sandflats,
              wetlands, sloughs ...  the use or destruction of
              which could affect interstate or foreign commerce
              ...."  In what has become  known as the "migratory
              bird  rule," in the preamble to the regulation, the
              USAGE explained that the term "other waters"
              includes  those which  "are or would  be  used as
              habitat by other migratory birds which cross state
              lines." Under 33 C.F.R. 328.3(a)(7) and 40 C.F.R.
              230.3(s)(7), 232.2, wetlands adjacent to navigable
              waters (other than wetlands) are also subject to
              CWA requirements.

              Based  on  the  above statutory  and regulatory
              authority, the government asserted that wetlands
              that  Hartz planned to use for development were
              wetlands  under  the  "other  waters"  provision
              because at least one of the wetlands was used by
              migratory birds and because one of the wetlands
              was  adjacent to navigable waters. Because Hartz
              failed to obtain a  Section  404  permit for his
              discharges  of   dredged   or  fill  material,  the
              government pursued enforcement.

              Hartz brought a motion to dismiss the government's
              complaint, alleging  that the district court lacked
              jurisdiction. Hartz's motion relied  on two theories:
              1) that the regulation under which the government
              brought its  action was unconstitutional under the
              Commerce Clause; and 2) that there was no factual
              basis for jurisdiction.

              Hartz's Commerce Clause challenge relied on the
              Supreme Court's  decision in  United States v.

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Lopez. 514 U.S. 549. 131 L Ed. 2d 626, 115S. Ct.
1624 (1995).  Based on Lopez, Hartz asserted that
the  "other waters" regulation under  which  the
government   asserted  jurisdiction   exceeded
congressional authority  because  it lacked  the
jurisdictional  nexus to interstate commerce,  the
basis for all CWA jurisdiction.  In Lopez, a case
dealing with a Federal law that made it a Federal
offense to knowingly possess a fire arm in a school
zone, the Supreme Court held that the statute was
beyond the scope of the Commerce Clause's grant
of authority to Congress.

The district court rejected Hartz's argument that
Lopez should be read to override existing case law
on the jurisdictional scope of the CWA.  First, the
court restated relevant law on this issue from other
Circuits.  The court stated that in Hoffman Homes
Inc., vAdministrator, U.S. Environmental Protection
Agency, 999  F.2d 256 (7th Cir. 1993), Leslie Salt
Co. v. United States, 896 F.2d 354 (9th Cir.) cert.
denied, 516 U.S. 955 (1995) and  Utah v. Marsh.
740 F.2d 799 (10th Cir. 1984), the Seventh,  Ninth
and Tenth Circuits had reviewed the "other waters"
provisions  and determined that  migratory  birds
created a jurisdictional nexis  between  a wetland
and interstate commerce. The district court also
stated that in United States v. Riverside Bayview
Homes. Inc..  474 U.S. 121, 88 L. Ed. 419, 106 S.
Ct.  455  (1985),  the  Supreme  Court clearly
supported a broad reading of the term "navigable
waters" to include adjacent wetlands.

In regard to the impact of Lopez on past Commerce
Clause cases, the district court  noted that  the
Supreme Court had made it clear that in the Lopez
decision  it did not intend to  overrule  any  of its
Commerce Clause precedent, but instead viewed
its decision as a refusal to extend the application of
the Commerce Clause further than it already had.
The court also stated that the Seventh Circuit in
United States v. Black. 125 F.3d 454 (7th Cir.  1997)
had given Lopez a narrow reading, and in several
cases, Seventh Circuit district courts addressing the
"other waters" issue since Lopez had continued to
follow  the  precedent   in  Hoffman  Homes.
Following this lead, the district court stated that
              it, too, would follow Hoffman Homes and uphold
              the  government's  regulatory authority.    In
              making  its decision,  the court  did note that the
              Fourth Circuit in United States v. Wilson, 133 F.3d
              251 (4th Cir.  1997) had  chose to strike down the
              "other waters" provision in light of Lopez.

              The   district  court then  turned  to  two other
              jurisdictional challenges  made by Hartz. First, the
              district court  rejected Hartz's assertions that the
              court lacked jurisdiction  because the government
              had not shown that the wetlands were "waters  of
              the United States." The  district court stated that if
              Hartz believed that the government's complaint
              failed to include allegations adequate to support  its
              right to recovery, the correct vehicle for raising the
              question would be a motion under Rule 12(b)(6)  of
              the Federal Rules of  Civil Procedure for failure  to
              state a claim.

              Second,  regarding Hartz's assertion that the court
              had  no  subject matter jurisdiction  regarding the
              Section 308 action, the district court rejected Hartz
              argument that EPA could not demand information
              under Section 308 until the Agency established
              jurisdiction over the land in question. The district
              court stated that on its face, Section 308 gives
              EPA jurisdiction to determine whether there  is
              a CWA violation resulting from alleged improper
              activities.

                  B. Discharge of Pollutants/Point Sources

                     1.  District court holds trap shooting
                         facility and  each firing station is a
                         point source:

              Stone v.  Naperville Park District, 38 F. Supp. 2d
              651 (N.D. II. Feb. 17,  1999).

              Plaintiff Roger Stone  brought a CWA citizen's suit
              against  defendant Naperville  Park  District  that
              alleged defendant violated the CWA by discharging
              lead  shot into navigable waters of the U.S. without
              a  NPDES  permit.   Defendant argued  that the
              shooting range and firing stations did not constitute
              a "point  source"  and therefore  plaintiff could not

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establish a violation.   The court rejected this
argument and found that "the trap shooting
range,  as  well  as  each  firing  station,"
constituted  a  point source  as defined in the
CWA.   The court observed  that the  facility's
purpose was to discharge lead shot (a pollutant);
the facility was discernable, confined and discrete;
and that the facility "channels"  shooting by its
design and purpose.

Plaintiff   sought  an  injunction  against future
violations, remediation, civil penalties and attorneys
fees and costs.  Upon balancing the competing
interests, the court granted an injunction against
any future trap shooting without a NPDES permit.
It denied plaintiffs request for an injunction ordering
remediation,  but  requested  the  parties  work
together to develop such a plan.

       2. District court  holds that  CAFOs
          include not only the ground where
          the animals are confined but also
          the lagoons  and systems used to
          transfer the  animal wastes to the
          lagoons as well as equipment which
          distributes and/or applies the animal
          wastes produced at the confinement
          area  to fields  outside  the  animal
          confinement area:

Community Ass'n for Restoration of the Env't v. Sid
Koopman Dairy; 1999 U.S. Dist. LEXIS 8348 (E.D.
Wash., May 17, 1999).

Plaintiff, Community Association for Restoration of
the Environment (CARE), had moved  for partial
summary judgment on issues that were common to
all four cases.  Plaintiff asked the Court  to grant
summary judgment declaring that the defendant's
facilities,  including  manure  spreading operations
outside confinement pens,  are Confined Animal
Feeding Operations ("CAFOs") and as such are
point sources of  pollution subject to the  NPDES
permitting program.

The court noted that defendants were incorrect
in  asserting that only the  area where the
              animals are confined and the adjacent areas
              without vegetation can be considered a point
              source.  The  court stated that  defendant's
              position would be  contrary to the  intent of
              Congress as expressed in the CWA and by EPA
              in its  NPDES  regulations.   The definition of
              "point  source" has been  subject to  broad
              interpretation   including   manure-spreading
              vehicles, bulldozers  and  backhoes.   (See,
              Concerned Area Residents for the Environment v.
              Southview Farm. 34 F.3d 114, 115 (2nd Cir. 1994);
              Avoyelles Sportmen's League, Inc. v. Marsh,  715
              F.2d 897, 922 (5th Cir. 1983); United States v. Tull.
              615 F. Supp. 610, 622 (E.D. Va. 1983); and United
              States v. Weisman, 489 F. Supp. 1331, 1337 (M.D.
              Fla. 1980)).

              The court held that CAFOs include not only the
              ground where the animals are confined but also
              the lagoons and systems used to transfer the
              animal wastes to  the  lagoons  as  well  as
              equipment which distributes and/or applies the
              animal wastes produced at the confinement
              area to fields outside the animal confinement
              area.

              To that extent, the  court granted plaintiff's motion
              for partial summary judgment.  However, the court
              ruled that  there remained  genuine issues of
              material fact regarding the extent to which the
              defendant's lands, the operation of the facilities and
              the actions  of  manure-spreading equipment are
              point sources, which were questions of fact for trial.

                     3. District court holds that violations
                       were   not  caused  by   "single
                       operational upsets"  and that EPA
                       could  enforce  effluent limits  for
                       internal outfalls:

              United States v. Gulf  States Steel, Inc., 1999 U.S.
              Dist. LEXIS  8834 (N.D. Ala. June 8,  1999). See
              case summary on page 30.

                 C.  State/Tribe Water Quality Standards

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       1. District court holds  that EPA has
          discretion to determine at what point
          it  is appropriate for the Agency to
          deem  a State's failure to submit
          TMDLs a constructive submission
          meriting intervention, but that EPA's
          duty to establish TMDLs where a
          State fails to do so is not committed
          to Agency  discretion by law,  but
          must be fulfilled promptly:

Natural Resources Defense  Council v. Fox, 30 F.
Supp. 2d 369  (S.D.N.Y.  Nov. 12, 1998).

Plaintiffs brought suit under the CWA and the APA
against EPA claiming that,  in light of New York
State's failure for 19 years to establish TMDLs  for
impaired  State waters as required  under CWA §
303(d),  EPA  unlawfuly failed to  intervene and
establish these TMDLs itself.  Plaintiffs also claimed
that EPA acted in  violation of the CWA and in an
arbitrary and capricious manner with regard to New
York  State's  recent  TMDL  submissions   for
reservoirs supplying drinking water to New York
City. Plaintiffs further claimed that EPA's  failure to
intervene violated  the APA  because such  failure
was "arbitrary, capricious, an abuse of discretion,
and otherwise not  in accordance with law."

EPA  argued  that its  duty  to  intervene was
discretionary  and  that  plaintiffs were therefore
barred from enforcing any  such duty under the
CWA or the APA.  Alternatively, EPA argued that
New York State's recent submission  of TMDLs
rendered EPA intervention unnecessary.  Plaintiffs
argued that EPA's duty to intervene was mandatory
and that the law of the case precluded EPA from
now  raising  the  argument that  its  duty was
discretionary.  Despite previously ruling that New
York State's failure to establish TMDLs  could  be
considered a constructive submission of  deficient
TMDLs, the  court here agreed to examine the
proper characterization of EPA's duty to intervene
when a State fails to submit TMDLs.  The court
reasoned that this  question had not been  precisely
or directly addressed in its prior  decision, that
resolution of the question could affect jurisdiction,
              and  that  an  incorrect  finding  (i.e.,  wrongly
              presuming the existence of a  mandatory duty)
              would constitute clear error.

              EPA maintained that its decision as to when to
              deem a State's inaction  regarding TMDLs as a
              constructive   submission   was   and  is
              discretionary.   The court agreed.   The court
              stated that the  CWA does not establish any duty
              under which EPA must deem  State inaction in
              developing and submitting TMDLs a constructive
              submission.  It added that  neither does the Act
              specify a date  by which EPA must exercise  any
              such "deeming" duty. The court  observed that the
              CWA provides for the first submission of completed
              TMDLs by June 26, 1979, and for subsequent
              submissions to be completed according to priority
              ranking and submitted  from time to time.  As a
              consequence of this statutory framework, the
              court concluded that  EPA had at  least some
              discretion to decide when it was appropriate to
              deem the State's  inaction as a constructive
              submission.   Based on this  conclusion,  the
              court  found  that  it had  no  subject  matter
              jurisdiction over plaintiff's CWA claims.

              With regard to  the APA claims,  EPA argued that
              plaintiffs failed to  exhaust their administrative
              remedies, that the decision to deem submissions of
              TMDLs as  insufficient  is committed to Agency
              discretion and,  that irrespective  of these first two
              points, subsequent submission of TMDLs by New
              York State established that EPA need not have
              intervened.  The  court rejected each of these
              arguments. The court found that there was no
              requirement  that  plaintiffs  exhaust  their
              administrative remedies (i.e., petition EPA) prior
              to bringing suit. Similarly, the  court found that
              EPA's  discretion  in  this instance  was  not
              unfettered.  Rather, the court found that  the
              States, or EPA in their absence, must establish
              TMDLs "promptly," meaning "within months, or
              perhaps, within a very few years." Therefore, the
              court concluded that claims 6 and 7 stated a cause
              of  action  under  the APA.   Finally,  the court
              concluded  that the  facts established  by EPA,

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although probative of whether New York State's
actions in submitting TMDLs reduced or eliminated
EPA's duty to intervene, did not eliminate any and
all genuine issues of material fact and, therefore,
did not justify summary judgment.

With regard to the reservoir  TMDLs, EPA  had
approved eight TMDLs for phosphorus and deemed
ten more to  be "informational  TMDLs" that were
neither approved nor disapproved.  EPA argued
that its decision to approve the eight TMDLs
was discretionary and that, therefore, plaintiffs
had  no basis to challenge the decision  under
the CWA. The court  agreed, holding that the
CWA "leaves review of TM DL submission to the
sound judgment of EPA."  As to whether EPA
violated the APA in approving the eight TMDLs, the
court examined whether the TMDLs achieved the
applicable water quality standard, whether they
contained an adequate margin of  safety, whether
they contained wasteload allocations and load
allocations, whether the annual   loads specified
satisfied the statutory  requirement of  a "total
maximum daily load," and whether the TMDLs
satisfied the requirement for seasonal variations.
The court found that several issues of material fact
existed  and, therefore,  denied   EPA summary
judgment on this claim.

In addressing the "informational TMDLs," the court
denied summary judgment to EPA, finding  that
given that the relevant waters were listed by New
York State at the time as  water-quality limited, it
was  not clear that under the CWA EPA  had
discretion to  neither approve or disapprove of the
TMDLs, even though the TMDLs ultimately showed
that the waters were no longer impaired. The court
also denied  EPA judgment on the pleadings with
regard to plaintiff's claim that EPA failed to fulfill its
duty to oversee and effectuate the TMDL program.

        2. District court holds that, with regard
          to when EPA must act given no State
          submission of  TMDLs,  the  CWA
          provides  a  readily  ascertainable
          deadline for EPA action and, as a
          result, at some point beyond July 26,
                        1979   the   delay   becomes
                        unreasonable and EPA's duty to act
                        is triggered:

              American Canoe Ass'n v. U.S. EPA, 30 F. Supp. 2d
              908 (Dec. 18, 1998).

              Plaintiffs  American   Canoe   Association   and
              American Littoral Society brought suit against EPA
              alleging that the Agency had failed to comply with
              various duties imposed under the CWA, ESA, and
              APA. Plaintiffs alleged 1) EPA violated CWA § 106
              by making grants to Virginia absent an adequate
              State program for monitoring water quality (count
              1); 2)  EPA failed to implement § 303(d)(2) and
              abused it discretion in violation of the APA when it
              approved Virginia's inadequate 1996 303(d) list of
              Water Quality Limited Streams (WQLSs) (counts 2
              and 3);  3) EPA failed to establish  TMDLs and
              TMDTLs for Virginia waters  as required by the
              CWA  and, alternatively,  that failure to develop
              TMDLs was an  abuse of discretion under the APA
              (counts 4 and 5); 5) EPA's failure to approve  or
              disapprove of a  CPP and review it from time to time
              constituted the failure to perform a mandatory duty
              under the CWA (count 6); 6) EPA failed to perform
              a mandatory,  nondiscretionary duty because it
              failed to  disapprove of Virginia's  proposed 1987
              CPP (count  7);  7)  EPA failed  to  perform  a
              mandatory, nondiscretionary duty because it failed
              to  revoke Virginia's NPDES  permitting authority
              based  on the lack of an approved CPP (count 8); 8)
              Actions under counts 6, 7, and 8 violated the APA
              (count 9); 9) EPA failed to  provide notice and
              opportunity for comment on its approval of Virginia's
              § 303(d)  list, its approval of Virginia's TMDLs and
              TMDTLs, and  it  approval of Virginia's CPP  in
              contravention of the APA's procedural requirements
              for agency rulemaking (count 10); 10) EPA failed to
              comply with the ESA in reviewing, approving and
              promulgating WQLSs,  TMDLs, TMDTLs,  and a
              CPP for Virginia, and such failures are reviewable
              under the APA (count 12).

              With regard to count 1,  EPA  asserted plaintiffs
              lacked standing because they failed to plead facts
              that demonstrated any injury had been caused by

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EPA's  actions  or that  such  injury  would  be
redressed by the declaratory and injunctive relief
sought. The court agreed and dismissed this cause
of action.

The court treated counts  2 and 3 as alternative
causes of action.   EPA asserted that both were
moot  because  Virginia's  1998  WQLS  list  had
subsequently  been   submitted   and  partially
approved and partially disapproved by EPA.  The
court observed that the mootness doctrine did not
apply in situations where there was insufficient time
to litigate the challenged action and there was a
reasonable expectation the complaining party would
be subject to the  same action again.  The court
found that there had  not been sufficient time for
plaintiffs to challenge the 1996 list of WQLSs, and
that further briefing was needed to address whether
the alleged deficiencies in the 1996 list had been
remedied in the 1998  list.  The court also rejected
EPA's argument that its approval of Virginia's 1996
list could not violate the CWA or APA because EPA
had no duty to reach a particular result.  Rather, the
court found  that EPA's regulations required the
Agency to approve a list if it met the requirements
of40C.F.R. § 130.7(d)(2).

With regard to count 4, EPA argued that the court
lacked subject matter jurisdiction because EPA was
under no mandatory duty to establish TMDLs in the
face of inaction by a state.  EPA argued that the
CWA creates a mandatory, nondiscretionary duty
only where it provides a date-certain deadline for
Agency action. EPA alleged the CWA establishes
no such deadline with regard to when EPA must act
given no  state submission of TMDLs.  The court
disagreed, and found that the CWA did provide
a readily ascertainable deadline for EPA action.
Based on the language of § 303(d), the court
viewed July 26, 1979 as the deadline for EPA
approval  of State  submissions.  The court
recognized that a reasonable delay beyond this
date would  not  necessarily  be  deemed  a
constructive submission that no TMDLs were
necessary, but noted that at some point beyond
July 26, 1979 the delay becomes unreasonable
and EPA's duty to act was triggered. The court
              also rejected EPA's  argument that this cause of
              action was not ripe for review.  Given that count 4
              survived, count 5, which was an alternative cause
              of action brought under the APA, was dismissed.

              With regard to count 6, EPA argued that plaintiffs
              failed  to state  a claim because  EPA  approved
              Virginia's CPP on September, 12, 1973.  Noting an
              issue of fact that needed to be  resolved, the court
              allowed this claim to the extent that it alleged EPA
              had never  approved  a CPP  for Virginia,  but
              dismissed it to the extent it sought to enforce a
              discretionary duty to review an approved CPP. On
              count  7, EPA argued that § 303(e) only requires
              EPA to approve an initial CPP. The court found
              that  EPA  was under no  mandatory duty  to
              disapprove  of   a  CPP  that  failed  to  include
              mandatory elements  and therefore dismissed this
              count.

              On  count  8,  EPA argued  that  under CWA  §
              509(b)(1)(D) proper subject matter jurisdiction was
              in the court of appeals.  The court agreed and
              dismissed this  count.  The court  also dismissed
              count 9 based on multiple jurisdictional defects.

              EPA moved to dismiss  count  10  on various
              grounds.  EPA asserted that this claim was moot
              because EPA had partially approved Virginia's 1998
              TMDLs.  The court  found  that it was  not clear
              whether notice  and opportunity for comment had
              been provided regarding the 1998 submission, and
              accordingly requested further briefing.   EPA also
              argued that the challenge to EPA's approval of
              Virginia's CPP was  time-barred,  and the court
              agreed.  Finally, the court allowed the portion of
              count  10 related to  whether EPA had provided
              notice  and comment  on  final  agency  action
              regarding approval  or  disapproval of TMDLs to
              survive, since plaintiffs lacked knowledge regarding
              the status of TMDLs due to EPA alleged failure to
              make proposed TMDLs and TMDTLs public.

              Count 12 was dismissed because the ESA provides
              for review of compliance through citizen suits, and
              the  APA applies only  to agency action made

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reviewable by statute and final agency action for
which there is no other adequate remedy in a court.

       3. ALJ holds that use of the trophic
          index to determine level of Section
          303(b)  impairment  constitutes   a
          "binding  norm"  and  should have
          been subject to  formal  notice and
          comment:

Western  Carolina Regional  Sewer Authority v.
South  Carolina   Department  of   Health  and
Environmental  Control,  No. 98-ALJ-07-0267-CC
(June 21, 1999).

In an administrative matter in South Carolina, the
Western  Carolina  Regional Sewer  Authority
(Authority) successfully  challenged the method
used by the South Carolina Department of Health
and Environmental Control (DHEC) to add water
bodies  to the  Clean Water  Act Section 303(d)
impaired list.

The Authority argued that DHEC relied too heavily
on a "trophic state index" to determine the level of
impairment from phosphorus. The  Authority also
contended that the trophic state index was not a
satisfactory means to translate the State's narrative
water quality criteria for  nutrients to the numeric
criteria  used to declare the waters impaired.

The  listing had  important  implications for  the
Authority. With the water body on the impaired list,
the State would  be  required to  develop Total
Maximum Daily Loads (TMDLs) to allocate pollutant
loadings among dischargers at levels sufficient to
ensure that State water quality standards were
attained.  This would  mean more stringent NPDES
permit  limits  for  the Authority and  possibly  a
moratorium  on  construction  of   new  sewage
treatment facilities.

DEHC  argued that   it  relied on  a  number  of
indicators  to conclude  that  the  waters were
impaired for the aquatic life use for which they were
designated, and that the trophic state index was
only one of these indicators.
              The State's Chief Administrative  Law  Judge
              (ALJ)  agreed with the Authority, holding that
              use of the trophic index constituted a "binding
              norm" similar to a regulation that should have
              been subject to formal notice  and comment.
              Accordingly,  the  ALJ  granted   summary
              judgment  to  the Authority  based on the
              "unpromulgated regulation" argument, finding
              that although DHEC  asserted that the trophic
              State  index was a tool used, it was in fact a
              binding norm and a de facto numeric criterion:

              The action was the first time a regulated entity has
              successfully challenged a Section  303(d) listing for
              nutrients based on narrative criteria.

                  D.  NPDES Permits

                     1.  Fifth Circuit holds that EPA did not
                        violate  the  APA when  it set  zero
                        discharge limits on produced water
                        and produced sand in the coastal oil
                        and  gas   effluent  limitation
                        guidelines,  nor did  EPA act  in a
                        manner contrary to the CWA when it
                        set separate limits  for Cook  Inlet
                        without designating  it as a separate
                        subcategory:

              Texas Oil & Gas Ass'n v. U.S. EPA. 161 F.3d 923
              (5th Cir. Dec. 17,  1998).

              Eighteen petitioners challenged EPA's final effluent
              limitation guidelines (ELGs)  for the coastal oil and
              gas producing industry, which were promulgated
              January 15,  1997.  Three  of the petitions also
              sought review of  a  NPDES  general permit for oil
              and gas producing facilities issued by EPA Region
              6 on January 9, 1995.  Petitioners  challenged
              EPA's promulgation of zero discharge limits on
              produced water and produced sand, EPA's decision
              to set more  lenient limits for coastal facilities  in
              Cook Inlet, Alaska,  and Region 6's issuance of a
              general  permit  that  banned the  discharge of
              produced water from coastal facilities in Texas.

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Texas petitioners asserted that in developing the
zero discharge limit on produced water in the final
ELG, EPA relied on a flawed  analysis of the
economic achievability of the limit and the Agency
based its pollutant reduction estimates on a limited
and unrepresentative study (the "10-facility study").
Petitioners  argued that EPA excluded  from  its
consideration wells  drilled before 1980  and not
recompleted since then.  The court rejected this
argument, finding that although the fact that EPA
did not consider pre-1980 wells in this action may
have had some effect on EPA's analysis,  it did not
rise  to the level of an "arbitrary and capricious
agency  action."   Rather,  the court found that
because marginally producing wells similar to the
pre-1980 wells had been adequately represented in
the Agency's Section 308  survey data, EPA had
established  a rational relationship  between  its
decision and the  basis for that decision.  Similarly,
the court rejected petitioners arguments regarding
the 10-facility study, finding that the study only was
used to estimate pollution reduction benefits. The
court stated that the "benefit to be achieved from
adopting a particular pollution control technology is
not an element of that technology's cost," and found
that such benefits were not a required part of the
BAT determination.   Given this fact, the  court
observed that even serious flaws in the study would
not have provided "grounds for remanding the zero
discharge limit."

Cook Inlet petitioners asserted that in setting the
zero discharge  limit on  produced  sand,  EPA
improperly  refused  to  consider  a "no  free oil"
alternative  based on a  sand washing treatment
technology.  The court dismissed this argument
based  on  the  fact  that  every coastal facility
surveyed except one was practicing zero discharge
at the time of the rulemaking, and the Agency had
considered sand washing and concluded that it was
not always  effective in eliminating pollutants from
produced sand.

Alaska petitioners argued  that EPA violated the
CWA when the Agency established different limits
for Coastal facilities outside Alaska than for those in
Cook Inlet  without establishing  Cook Inlet as a
              separate subcategory. The court, however, found
              that EPA had engaged in a permissible construction
              of the CWA because the Agency had appropriately
              balanced the need for nationally uniform standards
              with the need for some flexibility to address one
              group of point sources within a long-established
              category that were "dramatically different from all
              other  point sources within  that   subcategory.
              (Chem. Mfrs. Ass'n v. Natural Resources Defense
              Council, 470 U.S. 116 (1984)).  The court found it
              significant that  EPA  had concluded that  due to
              geography and the circumstances of Cook Inlet, the
              cost of complying with zero discharge would have
              been "substantially higher for Cook  Inlet facilities."
              Ultimately, the court  found that, based on these
              facts,  EPA  had sufficient  plenary rulemaking
              authority to set different  effluent limits  for these
              facilities.

              Finally, the court found the challenge to the Region
              6 general permit was moot, since even if the permit
              was remanded the final result would be governed
              by the  final  ELGs and,  thus, the same  zero
              discharge standard would be imposed.

                     2.  Tenth  Circuit holds   that plaintiff
                         cannot   use  CWA   citizen   suit
                         provisions  to challenge a NPDES
                         permit that  does  not address the
                         discharge   of   pollutants   to
                         groundwaterwhere EPA determined
                         during  permit  renewal  that  the
                         permittee did not need a permit for
                         groundwater seepage:

              Notice: Rules of the Tenth Circuit Court of Appeals
              may limit citation to unpublished opinions.  Please
              refer to the rule of the U.S. Court of Appeals for this
              Circuit (10th dr. R. 36.3).

              Amigos  Bravos v. Molvcorp, 1998 U.S. App.  Lexis
              28567(1 Oth Cir.  1998).

              Plaintiffs,  two   non-profit  corporations  whose
              members are interested in protecting New Mexico's
              water resources, brought a citizen suit  against
              defendant Molycorp, who operated a molybdenum
                                              10

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mine  that discharged  pollutants  pursuant  to  a
NPDES permit  into the Red River, alleging that
pollutants were being leached from waste rock piles
at defendant's mine and discharged into the Red
River  through  groundwater  flow, seeps,  and
springs,  and that  these  discharges  were  not
authorized under defendant's NPDES permit. The
district court  had previously dismissed plaintiff's
claims for lack of subject matter jurisdiction, finding
that such claims should have been brought before
the court of appeals in connection with defendant's
permit renewal in 1993.

On appeal, plaintiffs argued that EPA did not follow
the procedures necessary to include the discharges
from the waste rock piles to groundwater in the final
permit, EPA's response to comments regarding
groundwater issues pertained to issues other than
the alleged discharges from the waste  rock piles,
EPA did not take any "action" regarding waste rock
pile  discharges to groundwater because EPA's
response neither issued, denied, nor required an
NPDES permit  for these discharges,  and EPA's
response to  comments  on   discharges  to
groundwater  did  not  reflect  EPA's position on
groundwater  discharges  that are  hydrologically
connected to surface  waters.    The court  of
appeals rejected these arguments and affirmed
the decision of the district  court.  The court
agreed that plaintiffs should have pursued their
present  claims  during  the  permit renewal
process.  The  court stated that plaintiff's claims
were  not viable  because  several opportunities
existed for plaintiffs to  challenge EPA's decision
through administrative  and judicial review.  The
court noted that plaintiffs could have requested that
the Regional Administrator grant an  evidentiary
hearing to reconsider or contest the decision, and
could have petitioned the U.S. Court of Appeals for
review of that decision. With regard to the plaintiff's
arguments  that EPA  focused  on groundwater
issues other than discharges from the waste rock
piles and, therefore, did not consider the discharges
at issue, the  court found that the  issue of waste
rock drainage was raised in the public  comments
and that EPA addressed this concern by stating that
it understood the concern for possible impact of
              seepage to the Red River,  but that groundwater
              seepage was not considered a "point source" under
              the NPDES permitting program but is regulated by
              the State through the New Mexico Environmental
              Department.

                     3.  District court  holds that  a NPDES
                         storm water permit is not required
                         for  the construction of farming
                         access roads, and that construction
                         activities that disturb less than five
                         acres  and are  not part of a larger
                         common  plan of development,  are
                         not   subject  to  NPDES   permit
                         requirements:

              Mamo v. Galiher,  28 F. Supp. 2d  1258 (Dist. Ct.
              Haw., Nov.  25, 1998).

              Plaintiff Na Mamo O 'Aha' Ino brought an action
              under  the  CWA that  alleged   that  various
              construction activities on  defendants' property
              triggered the need for a NPDES stormwater permit
              and that defendants failed to obtain a dredge and
              fill permit prior to  filling a portion  of an adjacent
              wetland and stream.  The construction activities
              alleged included building a helipad and utility barn,
              creating terraces, erecting water tanks for irrigation,
              storing road building materials, filling wetlands,
              clearing a turnaround area, and constructing, using
              and maintaining access roads. Defendants argued
              that  their activities were not subject to permit
              requirements.

              The court reviewed the definitions  of construction
              under 40 CFR 122.26(b)(14)(x)  and  33  U.S.C.
              1362(14), and the permit exclusions under 40 CFR
              122.3(e)  for  non-point source  agricultural and
              silvicultural activities.  The court then determined
              whether each of defendants' activities constituted
              "construction  activities"   or "non-point  source
              discharges  and/or  development  of   land  for
              agriculture."

              With  regard to  defendants  construction  of
              access roads, the court held that no permit was
              required.  The court found that the farming
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roads at issue were analogous to logging roads,
which have been held by the Ninth Circuit to be
excluded from NPDES permit requirements. The
court also found that both principles of statutory
construction and the legislative history of the CWA
supported this conclusion.

As for the defendants' other construction activities,
the court considered  whether these activities fell
within the exception for activities that disturb less
than 5 acres  and which are not part of a larger
common plan of development.   (40 C.F.R. §
122.26(b)((14)(x)).  The court calculated the area
disturbed by the building of the helipad, utility barn,
terrace construction, water tank installation, clearing
for a turn around area, stockpiles of road building
material, and filling of  wetlands, and  found the
disturbance to be 1.61  acres, less than the  five
acres needed to trigger a  NPDES permit.  With
regard to the existence of a common plan of
development, the court observed that such a
plan  is  broadly defined  by  EPA  as  an
announcement or piece of documentation or
physical demarcation  indicating construction
activities may  occur on a specific plot.  The
court observed  that a plan is also defined as a
contiguous area  where  multiple  separate  and
distinct construction activities may be taking place
at different times on different schedules under one
plan. The court did not  consider the construction,
use, and maintenance  of  the access roads a
"construction  activity" and  thus did not consider
them in this determination.  In addition, the court
found that a plan submitted to the County of
Maui and  a  cooperative agreement with  the
local soil and water conservation district, filed
two and a half years apart, were insufficient to
establish a common plan of development. The
court asserted that plaintiff confused development
with construction as a large part of defendants' plan
discussed planting trees and raising animals. The
court concluded that defendant's activities were not
undertaken pursuant to  a "larger common  plan of
development."

The court denied plaintiff's motion  for  partial
summary judgment and granted in part defendant's
              motion  for  summary  judgment,  holding  that
              defendants were not required to secure  NPDES
              permits  for their activities.  Because a genuine
              issue  of material  fact  existed  as to whether
              defendants placed  fill material into the adjacent
              stream, defendant's motion for summary judgment
              on this issue was denied.

                  E. Section 404/Wetlands

                     1. Court of Appeals for the Federal
                        District holds that denial of Section
                        404 permit for the dredge and fill of
                        underwater lake-bottom property did
                        not  constitute  a   compensable
                        government taking:

              Forest Properties, Inc. v. United States, 177 F.3d
              1360 (May 18,  1999).

              This case stemmed from the planned development
              of two properties, one upland tract and a 9.4 acre
              piece  of contiguous lake-bottom  property  that
              constituted wetlands.  Plans called for the fill of the
              lake-bottom land property to create peninsulas on
              which homes  would  be built.   In 1988,  Forest
              Properties, Inc., acquired title to the upland property
              and entered into a contract for the purchase of the
              lake-bottom  property.  Forest also took over a
              previously filed Section 404 permit application that
              requested authorization to dredge and fill the lake-
              bottom property.  In 1989, the U.S. Army Corps of
              Engineers (USAGE) informed Forest that if it were
              to make  a final decision on the permit application at
              that time, the recommendation would to deny the
              permit because the  project did not meet the criteria
              established at 40 CFR § 230.10(a)(3).  Despite the
              fact that  Forest modified his plans and had secured
              necessary State permits, in 1992 the USACOE
              denied the Section 404  permit application.  In
              response, Forest revised its development plan to
              eliminate the lake-bottom property and proceeded
              with the  development of the upland area, creating
              106 lots with a market price of about $12 million, at
              a cost of $7.1 million.
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Forest did not seek administrative or judicial review
of the USAGE action, but did file a takings action in
the Court of Federal Claims, which  held that no
taking  had  occurred.   On appeal, the  Court  of
Appeals affirmed the decision. The court framed its
analysis by outlining relevant Federal takings law,
citing Loveladies Harbor, Inc. v. United States, 28
F.3d  1171  (Fed.  Cir.  1994),  stating  that  a
determination on whether the government's denial
of the permit constituted a taking of Forest's real
property for which the Fifth Amendment mandated
payment of just compensation involved  three
inquires:    1)  whether the  taking alleged  was
physical or regulatory; 2) if the alleged  taking was
regulatory,  what  was the  relevant  parcel  for
determining the economic impact of the regulation;
and 3) did the regulatory action actually constitute
a taking.  The Court of Appeals held that the permit
denial should be considered an alleged regulatory
taking, as there was neither a physical taking  or
invasion of the lake-bottom land, with the impact of
the USACOE action simply being that Forest was
not able to make a particular  use of the property.

Regarding the issue of the "relevant parcel" for the
takings analysis, the Court of Appeals concurred
with  the decision  of lower court that the relevant
parcel was the entire 62 acre project, not, as Forest
claimed, the 9.4 acres of submerged lands. Key to
the court was the fact that from the outset of the
project,  the   two  parcels   were  treated  as
components of a single integrated project and that
Forest's economic intentions were to utilize the
upland parcel in conjunction  with the lake-bottom
land as one income producing unit.

On the issue of whether the USAGE'S denial of the
permit was a regulatory taking  of the  62 acre
parcel, the court, citing Penn Central Transp. Co. v.
New York City. 438 U.S. 104, 57 L.Ed.  2d 631, 98
S.Ct. 2646 (1978),  stated the following relevant
factors  to  determine whether  a  government
regulation constitutes a regulatory taking:  1) the
economic impact of the regulation on the claimant;
2) the extent to which the regulation has interfered
with  distinct investment-backed expectations; and
3) the  character of  the governmental action.
              Applying this criteria, the Court of Appeals upheld
              the  lower   court's  decision,  finding  that  any
              diminution in the value of Forest's property related
              to the permit denial was not substantial enough to
              protect as a taking.  First, the court found that the
              character of the action did not  have an impact in
              this  case,  as  the  dredging and  filling of the
              submerged area would not constitute a nuisance
              under State law. Second, the court stated that the
              denial had not significantly interfered with Forest's
              reasonable investment backed expectations, largely
              basing its finding on the fact that at the time Forest
              purchased  the  property, it had  knowledge of the
              existing regulatory requirements and knew  three
              years  before  permit  denial that the  USACOE
              planned to deny the permit application.  Finally, the
              court  stated  that  Forest  failed  to  introduce
              convincing evidence to show the amount, if any, by
              which the value of the relevant parcel, the 62 acres,
              was  reduced by the  permit.

                     2.  Court of Federal Claims holds that
                         USAGE  denial  of permit to fill  lake
                         bottom for residential  development
                         does   not  constitute   a  taking
                         requiring  compensation  under the
                         Fifth Amendment:

              Palm Beach Isles Ass'n v. United States, 42  Fed.
              Cl. 340 (Oct. 19, 1998).

              Plaintiffs owned 50.7 acres of real property in Palm
              Beach County, Florida that primarily  existed as
              submerged land below the mean high water mark.
              Plaintiff's filed a complaint against the U.S. seeking
              compensation  in  excess  of $10,000,000 for an
              alleged  taking   of  property   without   just
              compensation.  Plaintiffs claimed that when the
              U.S. Army Corps of Engineers (USAGE) denied a
              dredge and fill  permit for the property, defendant
              took plaintiff's  property in  violation of the  Fifth
              Amendment.

              In 1958, the plaintiffs purchased  a 311.7  acre
              parcel of property that included the 50.7 acres at
              issue for $380,190.  In 1968, plaintiffs sold a 261
              acre upland oceanfront portion of  the  parcel for
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approximately $1 million but retained ownership of
50.7 acres, consisting of 49.3 acres of lake bottom
that  is below  the  mean  high water mark, and
1.4 acres of adjoining shoreline of red mangrove/
saltmarsh  cordgrass wetlands that is above the
mean high water mark.

On May 31,1989, plaintiffs filed a permit application
with the USAGE pursuant to the Rivers and Harbors
Act § 10 and the CWA  § 404.   The application
sought permission  to fill  the  49.3 acres of lake
bottom and 1.4 acres of adjoining shoreline for the
purpose of constructing a residential development.
The USAGE denied the permit application as being
contrary to the 404(b)(1) guidelines and contrary to
the public interest.  USAGE concluded the project
would have resulted in the elimination of 50.7 acres
of important Lake Worth shallow water habitat. The
parties filed cross-motions for summary judgment
on  plaintiffs  claim  that  the  USAGE actions
constituted  a  taking  in  violation  of the  Fifth
Amendment.

The court found that plaintiffs' taking claim was not
viable in that the U.S. government's navigational
servitude rights removed from the takings inquiry
some 49.3 acres of plaintiffs' property within the
navigational servitude waters below the mean high
watermark. In addition, the claim for the remaining
1.4 acres  was  not found to constitute  a per se
taking of land when  the entire parcel of either the
311.7  acres or  50.7  acres  was considered.
Moreover,   the  court found  plaintiffs lacked  a
reasonable investment-backed exception in the
value of this 1.4 acres when assessed in the
context of the entire parcel, of which 49.3 acres was
subject to the navigational servitude and 261 acres
were sold for a substantial gain.  Finally, the court
observed that plaintiffs could still apply for a permit
from the USAGE and a zoning variance from state
and  local  authorities that would  allow for water
dependent  used of the 50.7 acre parcel, thereby
providing   other  viable  development   options.
Accordingly, the court denied plaintiffs' motion for
summary judgment, and granted defendant's cross-
motion for summary judgment.
                     3.  District  court  dismisses suit  to
                         enforce  violation  of  Section 404
                         permit terms  for  lack of subject
                         matter jurisdiction where violation
                         resulted in discharge of pollutants
                         but not a discharge of dredge and fill
                         material:

              United States v. United Homes,  1999 U.S. Dist.
              LEXIS 2354 (N.D. II. Feb. 24, 1999).

              Plaintiff United States brought suit on behalf of the
              U.S. Army  Corps of Engineers (USAGE) against
              defendant United Homes for failing to comply with
              terms of defendant's Section 404 permit, which had
              been issued to fill a portion of a wetland located on
              land that was  being  developed  by defendant.
              Plaintiff  alleged  defendant failed  to develop
              adequate or properly maintain the required soil and
              siltation controls, and that such actions resulted in
              the discharge of pollutants to waters of the U.S.

              Defendant moved to dismiss the case, arguing that
              the  USAGE  lacked  jurisdiction  because  the
              pollutants discharged  were not "dredge and  fill
              materials,"  as those materials are defined  in the
              CWA and corresponding regulations. The  court
              agreed.  The court observed that the USAGE
              only has jurisdiction over issuing permits for
              dredge and  fill activities,  whereas EPA has
              authority to issue permit for the discharge of all
              other pollutants.  The court then examined
              whether   the   pollutants  discharged   here
              constituted  dredge   and  fill  material,  and
              concluded that they did not. The court found that
              the "pollution complained of by the Government" did
              not  constitute  dredge  and  fill   material, and
              reiterated that the USAGE lacked  jurisdiction over
              non-dredge and fill discharges. The court observed
              that although  the  defendants may  have  been
              violating the CWA, the violations were not within the
              jurisdiction  of the USAGE,  the  party  on whose
              behalf the government brought the suit. Thus, the
              court granted defendant's motion to dismiss.

                     4.  District   court  holds  that  the
                         purposeful relocation  of materials
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             within  wetland   does   not
             constitute incidental fallback, but
             is more similar  to  sidecasting,
             which is subject to Section 404 of
             the CWA:

United States v. Bay-Houston Towing Co., 33 F.
Supp. 2d 596 (E.D. Mich. Jan. 14, 1999).

The United States sought injunctive relief and civil
penalties against defendant Bay-Houston Towing
Co., for discharging pollutants without a  NPDES
permit (count   I),  discharging dredge  and full
materials  into  wetlands without a  Section  404
permit (count II),  and violating an administrative
compliance order (count III).  All violations were
associated  with  defendant's  peat  harvesting
activities  in Sanilac County, Michigan.  Defendant
sought summary judgment with regard to counts I
and II.

Defendant argued that count I was moot because
on July 24,  1998, the Michigan Department of
Environmental Quality (MDEQ) issued it a NPDES
permit that authorized the discharge of peat bog
drainage  water  into the Black River.  The United
States argued that the injunction  sought would
require defendant to reduce the number of outfalls
discharging pollutants, and to comply with other
requirements in the MDEQ-issued  permit.  The
court allowed review of defendant's compliance with
specified   violations of the  permit, which the
government was required to identify within 60 days.

With regard to count II, defendant argued that
its peat harvesting operation did not constitute
a  discharge   or  addition   of  pollutants to
wetlands and, therefore, it did not fall within the
government's jurisdiction under Section 404 of
the CWA. The court disagreed.  The court found
that this case did not involve incidental fallback,
since  defendant's   activities  involved  the
"purposeful relocation" of different materials in
the peat  bog.   Rather, the court observed that
defendant's activities were more consistent
with sidecasting, which,  the court observed,
has always  been subject  to Section 404.  The
              court discussed the decision in United States v.
              Wilson. 133 F.3d 251 (4th Cir. 1997), and found the
              reasoning  of  Judge  Payne  to  be  the more
              persuasive (arguing that sidecasting did constitute
              the addition of a pollutant to the water, and stating
              that in National Mining Assoc., v. U.S. Army Corps
              of Engineers, 330 U.S. App.  D.C. 329, 145 F.3d
              1399 (D.C. Cir. 1998), the court did  not hold  that
              the USAGE may not legally regulate some forms of
              redeposit  under  its  Section  404  permitting
              authority).   The court  similarly concluded  that
              defendant's  spreading  of the sidecasted  bog
              material from the side of the ditch into the bog for
              future harvest,  and discing of the wetlands, could
              constitute an addition of pollutants.

              Defendant also argued that it had not discharged
              pollutants because the materials were ultimately
              removed from the wetland. The court found  that
              whether defendant's  activities could have been
              categorized as "discharges" when the bog material
              was only temporarily displaced into other areas of
              the  bog before being removed raised a genuine
              issue of material fact. Similarly, the court found the
              question of whether the haul roads were temporary
              to be a question of fact.  Finally, the court found
              that defendant's use of indigenous bog vegetation
              and clays to create haul roads and foundations for
              windrows could  constitute the discharge of fill
              material under the CWA.    The  court denied
              defendant's motion for summary judgment.

                     5.  District  court  denies  defendant's
                        motion to bar $1,257,500 penalty for
                        wetlands violations:

              United States v. Krilich. 1999 U.S. Dist. LEXIS4191
              (N.D. II. Mar. 24,  1999).  See case  summary on
              page 1.

                     6.  District court rejects Home Builders
                        Association's claims that agreement
                        between USAGE and other federal,
                        state and local agencies designed to
                        coordinate  various  programs  to
                        regulate soil erosion and sediment
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           control  exceeds  USAGE statutory
           and regulatory authority:

Home  Builders  Ass'n of  Greater  Chicago  v.
USAGE, etal.. 1999 U.S. Dist. LEXIS 9453 (N.D. II,
June 15, 1999).

This case involves an action brought by the Home
Builders Association of Greater Chicago, a group of
construction companies and residential developers
doing business  in  the Chicago  area, seeking
declaratory and injunctive relief against the USAGE.
In its action, the Association claimed that  the
USAGE exceeded its authority when it entered into
an  "Interagency Coordination Agreement"  (ICA)
with other federal, state and  local agencies, under
which the parties would coordinate their respective
regulatory  actions to  regulate soil erosion and
sediment control in Lake County, Illinois. Parties to
the ICA  were  the  USAGE,  the  Lake County
Stormwater Management Commission (SMC), the
Lake County Soil and Water Conservation District
(SWCD) and the U.S. Department of Agriculture
Natural Resources Conservation Service (NRCS).

ICA  conditions  that  applied to the  USAGE all
involved actions to be taken in the Section 404
permitting process.  The USAGE  agreed to  the
following: 1) wherever appropriate, when issuing a
Section 404 permit, include as a special condition
that the permittee consult with the SMC on soil
erosion  and sediment control plans;  2)  at  the
USAGE'S discretion, require the permittee to submit
a soil erosion and sediment control plan to the SMC
for  review  and  approval;  3)  at  the USAGE'S
discretion,  require the permittee to schedule a
preconstruction  meeting with the SMC to review
implementation  of the soil erosion and sediment
control plan; 4) if the  USAGE (or  the SWCD or
NRCS) received a report of a soil erosion and
sediment issue on the site, it would contact SMC,
who would then take action to correct the problem
with possible USAGE  assistance; and 5) request
that SMC conduct on-site inspections during  the
construction phases  of  land development  to
determine whether the site was in compliance with
              approved   plans  and   Section   404   permit
              requirements.

              The Association's primary complaint was that the
              procedural  obligations imposed on the USAGE
              under the ICA unlawfully expanded the USAGE'S
              narrow authority over dredge and fill erosion and
              siltation controls  to  encompass  regulation  of
              general site construction and siltation controls and
              stormwater management plans for developed sites,
              none of which fell under the USAGE'S regulatory
              jurisdiction. The Association also claimed that the
              ICA impermissibly expanded the other agencies
              limited authority to cover Section  404 activities.
              Accordingly, the Association asked that the court
              declare the ICA invalid and require the USAGE to
              rescind it  on  the ground  that  it  exceeded  the
              USAGE statutory and  regulatory  authority and
              violated the APA.

              The USAGE presented three defenses: 1) that the
              Association's claims were  not "ripe;"  2) that  the
              Association did not have "standing;" and 3) that the
              ICA was not a "final agency action," therefore it was
              not subject to judicial review because only final
              agency actions come within the limited waiver of
              sovereign immunity of the APA.  The district court
              stated that if it decided the USAGE'S motion on the
              first two grounds, it need not address the third.

              Presenting  a  brief summary  of  the  ripeness
              doctrine, citing Abbott Laboratories v. Gardner, 397
              U.S. 136, 18 L Ed. 681,875. Ct. 1507 (1967), the
              district court stated that the basic rationale of the
              doctrine was  "to  prevent  the  courts,  through
              avoidance   of  premature   adjudication,   from
              entangling themselves in abstract  disagreements
              over  administrative policies"  and "to  protect  the
              agencies   from  judicial  interference  until  an
              administrative decision has been formalized and its
              effect felt  in a concrete way by the  challenging
              parties." Citing Ohio Forestry Ass'n v. Sierra Club,
              523 U.S. 726, 118 S.  Ct. 1665,  140 L.  Ed. 2d 921
              (1998), in  which  the Supreme Court rejected on
              ripeness grounds a challenge to a  Forest Service
              resource management plan that set logging goals,
              but did not authorize the cutting of any trees,  the
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district court stated that ripeness depends on "'the
fitness of the issues for judicial decision' and 'the
hardship  to the  parties  of  withholding  court
consideration.'"

The Association argued that the matter was  ripe
because  the  ICA  "crystalized"  the  USAGE'S
position, that the USAGE intended to "federalize"
construction and  that  the  ICA would  force
Association members to  modify their behavior to
avoid  the procedural  burdens and  substantive
consequences   that   would   result   from
implementation of the ICA. The court, drawing
parallels to the Ohio Forestry case, disagreed
with the Association's assertions that the suit
was ripe, focusing on the discretionary nature
of the USAGE'S obligations and, due to the non-
mandatory language  of the ICA, whether the
procedural burdens cited by the Association as
the basis for its action would ever occur.

Turning to the hardship issue, again relying on Ohio
Forestry, the district court rejected the Association's
claims of hardship, stating that the Association had
failed  to prove that its members would have to
change its  behavior from  the outset or  modify
existing activities. Accordingly, the court stated
that it was not  convinced  that withholding
review of  the  ICA would cause  substantial
hardship to the Association's  members, and,
therefore, it would withhold review until the suit
ripened with the USAGE'S implementation of the
ICA and exercise of its authorities.

On  the standing issue, the court, citing Lujan v.
Defenders of Wildlife. 504 U.S.  555, 119 L Ed. 2d
351, 112  S. Ct.  2130 (1992), stated that that the
Association needed to establish three elements to
satisfy the constitutional elements for standing: 1)
injury  in fact, i.e.,  invasion of a legally  protected
interest which is concrete and particularized  and
actual or imminent,  not conjectural or speculative;
2) causation;  and 3) redressability.  Based on
these criteria, the district court held that the
Association did not have standing, since the
nature and imminence of the alleged injury was
too speculative.  In so holding, the district court
              focused on the fact that concerns regarding more
              burdensome  permitting procedure and additional
              regulatory  requirements  depended  on  how  the
              USAGE  actually  implemented  the ICA,  and
              although it was possible that the USAGE could take
              inappropriate action, imagining such circumstances
              only amounted to speculation and conjecture. The
              court granted the USAGE'S motion to  dismiss,
              and dismissed the Association's case without
              prejudice.

                     7.  District court approves  settlement
                        agreement   regarding   future
                        regulation and study of mountaintop
                        mining operations:

              Bragg v. Robertson, 1999 U.S. Dist. LEXIS 9254,
              48 ERG (BNA) 1913.

              This  action   involved  a  proposed  Settlement
              Agreement to resolve claims against EPA, USAGE,
              the Office of Surface Mining  (OSM) and the Fish
              and  Wildlife  Service  (FWS) arising from their
              alleged failure to carry out respective CWA Section
              404,  SMCRA  and  NEPA  duties  to  regulate
              mountaintop  mining operations  in West Virginia.
              The  Settlement  Agreement   had   two  main
              components. First, the Federal defendants and the
              West Virginia  Department  of  Environmental
              Protection  (WVDEP)  agreed  to  enter into  an
              agreement to prepare  an Environmental  Impact
              Statement  (EIS)  on   a  proposal  to  consider
              developing   agency   policies,   guidance  and
              coordinated agency decision-making processes, the
              "long term approach,"  to minimize  the adverse
              effects  of  mountaintop  mining  operations and
              excess   spoil  disposal  sites.    Second,  the
              Agreement  provided  an "interim approach"  to
              regulation  of  mountaintop mining activities,  the
              focus of which was the  creation of an interagency
              coordination process, primarily aimed at meshing
              the USACOE Section 404 permitting process with
              the WVDEP's  NPDES program and the State
              permitting  process  for  surface  mining  and
              reclamation.
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September 1999
The Settlement Agreement also provided that prior
to the completion of the EIS,  any application for
mountaintop mining operations in West Virginia that
would result in "more than minimal adverse effects"
in waters of the U.S. would require a Section 404
permit for all overburden and fill material in waters
of the U.S.   Any application for  West  Virginia
mountaintop mining operations that proposed to
discharge fill  in  waters of the  U.S.  draining a
watershed  of  250 acres or more  would  be
considered to have more than a "minimal adverse
impact" and would, therefore, require an individual
Section  404  permit.    Similarly,  if the  USAGE
determined that a discharge into waters draining a
watershed of less than 250 acres would have more
than a "minimal adverse impact," the USAGE would
require an individual Section 404 permit.

The main focus of the decision was the challenge to
the Settlement Agreement  by several industry
associations  representing entities involved in
surface mining and reclamation activities in  West
Virginia.  First, the court addressed the standing of
the Associations to bring  their challenge, stating
that under Alumax Mill Prods., Inc. v. Congress Fin.
Corp..  912   F.2d 996  (8th  Cir.  1990)   and
Quad/Graphics, Inc. v. Fass,  724 F.2d 1230 (7th
Cir. 1983), the Associations would have standing if
they could demonstrate that they would "suffer
formal legal   prejudice"  from  the  Settlement
Agreement, with "formal legal prejudice" occurring
when a nonsettling defendant "is stripped of a legal
claim or cause of action." The Associations claimed
"formal legal  prejudice" had  occurred  because
companies could not challenge the agreed  upon
individual,  rather  than  Nationwide,   permitting
approach because the  USAGE'S decision was not
a "formal  agency action." The court held that the
Associations had failed to establish formal legal
prejudice,  because:     1)   they   had   not
demonstrated that once the USAGE made a final
determination  on  an  individual permit,  an
applicant could not challenge the decision; and
2) that the companies' expectations regarding
the Section 404 permitting process based on
the USAGE previous  behavior "are  not rights
established by contract, statute or regulation,"
              but  instead,   "simply  expectations  and
              assumptions that cannot bind the Corps from
              exercising  its  administrative discretion and
              duties."  Thus, the court held that,  without
              legally cognizable  injuries, the Associations
              lacked standing to  challenge the terms of the
              Agreement.

              Addressing  the Associations'  claim that  the
              Settlement Agreement constituted an  invalid
              rulemaking under the Administrative Procedure
              Act (APA) because the Federal Defendants did
              not  follow  proper  notice  and  comment
              procedures in its adoption, the court held that
              formal APA requirements did not apply because
              the  Settlement Agreement contained only
              "interpretive,"  not   "substantive,"   rules.
              Regarding  the  "long  term  resolution"  of  the
              permitting issue through the NEPA  process,  the
              court held that the Settlement Agreement did not
              constitute a substantive rule, but rather a general
              statement  of  policy.   In regard to the "interim
              approach"  to  permitting, the court held  that the
              provisions  were clearly  within  the ambit  of
              interpretive  rules, focusing on the fact  that  the
              Settlement Agreement simply better defined  an
              existing process, the discretionary nature of many
              of the USAGE'S determinations, the fact that the
              procedures were recognized as "interim,"  and that
              the provisions regarding inter-agency coordination
              were simply agreements as to the process  the
              agencies would use,  without binding the agencies'
              discretion.

              Turning  to  the  Associations' final  arguments,
              regarding  the  contention  that  the Settlement
              Agreement violated NEPA because it provided for
              the retention of consultants mutually acceptable to
              the agencies and the plaintiffs, the court found no
              violation,  stating that nothing  in the Settlement
              Agreement stated or implied that anyone other than
              the  agencies would be preparing  the  EIS  or
              suggested that should the agencies  determine to
              hire a contractor, anyone other than the agencies
              would perform the selection process or that anyone
              otherthan an unbiased contractorwould be chosen.
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The court also rejected the Associations argument
that the Settlement Agreement was invalid because
it violated the equal protection component of the
Fifth Amendment's Due Process clause and the
Equal  Protection  clause  of  the   Fourteenth
Amendment  by  applying  to  surface  mining
operations in West Virginia, but not other States,
and that  the Federal Defendants had "no rational
basis"  for treating surface mining  operations  in
West Virginia differently, thus not  satisfying the
constitutional criteria for taking such action. The
district court held that the Associations failed  to
meet the burden  of  proving  that the  Federal
Defendants  had "no rational basis related to a
legitimate government  interest to  support their
decision," the standard of review in this type  of
case.  The court noted that the prevalence of the
regulated activity in West Virginia fully justified the
action. Finally, the court rejected the Associations'
argument  that  the  Settlement  Agreement
constituted  an   impermissible  delegation   of
executive   authority   because   the  Federal
Defendants  had agreed to allow the plaintiffs  to
participate in the EIS  development process, the
right to comment on individual permits and the right
to participate in a dispute resolution process, stating
that it was permissible to allow the  Plaintiffs to be
involved  in the  EIS contractor  selection process,
that the Settlement Agreement simply recognized
the rights of the general public to be  involved in the
permitting process under existing regulations, and
that the Associations had offered no  justification on
why   the  dispute  resolution   process  was
impermissible.

       8. District court dismisses challenge to
          USAGE CWA Section 404 jurisdiction
          over wetlands adjacent to navigable
          waters:

United States v. Hartz Construction Co., Inc., 1999
U.S. Dist. LEXIS 9126 (N.D. II. June  14,  1999).
See case summary on page 3.

       9. District   court   holds   that  the
          continuing   presence  of   a
          reconstructed fishpond wall without
                         any current governing permit does
                         not  violate  the  CWA  since  the
                         original placement was conducted
                         pursuant  to proper authorization
                         under a nationwide permit:

              Harold Wright v.  Lance Dunbar et al., Civ. No. 97-
              00137 HG (Hawaii, April 27, 1999).

              Plaintiff  brought   numerous   claims   against
              defendants  concerning  erosion and  pollution
              damage  to  plaintiff's  seaside  property allegedly
              caused by  defendant's  restoration  of  an ancient
              Hawaiian  fishpond   wall,   and   defendant's
              participation in a stream cleaning  and dredging
              project.  Count II constituted a CWA  citizen suit
              claim that sought an injunction for removal of the
              pond,  civil  penalties, costs,  and attorney's  fees.
              Defendant  Dunbar argued that the court lacked
              jurisdiction  because plaintiff  failed to provide the
              proper notification of the violation to the defendant,
              and plaintiff failed to allege any ongoing violation.

              The  court found  that plaintiff had properly served
              notice on defendant Dunbar,  and that such notice
              contained  sufficient  information to  satisfy the
              requirements of 40 C.F.R. §  135.3(a).  Defendant
              Dunbar also asserted that there were no continuing
              violations of the CWA  at the time plaintiff filed the
              complaint (2/6/97) because  construction of the
              fishpond  wall had been completed  several years
              prior. Plaintiff made three arguments in response.

              First, plaintiff argued  that Dunbar  had failed to
              obtain a  §  401 water  quality certification prior to
              applying  for authorization for the fishpond project
              under a USAGE DA nationwide permit 3, and this
              resulted  in  a continuing violation.   The  court
              disagreed.   The court found  that because the
              USAGE had applied for State § 401  certification of
              the relevant nationwide permit in 1989 and the
              State  of  Hawaii  had  waived  the  certification
              requirement by failing  to respond to the USAGE'S
              request, the nationwide permit was valid in Hawaii
              and  individuals covered  under that permit  were
              covered under the USAGE'S certification and did
              not need  to obtain an individual certification.
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Second, plaintiff asserted that construction of the
fish pond had not complied with the terms of the
USAGE nationwide  permit.   Again,  the court
disagreed.   The court found that, although the
USAGE eventually revoked Dunbar's authorization
to restore the fishpond under the nationwide permit,
all worked conducted on the fishpond  during the
period  covered by  the  complaint   had been
conducted in conformance with the permit.

Finally, plaintiff argued that the ponds presence
without a  valid authorized  permit  constituted  a
continuing violation because the fishpond wall was
a  conduit   from  which  silt  was  intermittently
discharged.   The court considered whether the
failure  to  obtain  an  individual   water  quality
certificate for the fishpond wall after the USAGE
revoked coverage  under the nationwide permit
constituted   a  continuing violation, as  well  as
whether the  intermittent discharge from the wall of
silt  into the ocean  constituted an unpermitted
discharge. On the first issue, the court found that
because reconstruction of the wall was covered by
the  nationwide  permit  when it  occurred,  the
continued  presence  of the  reconstructed wall
without any "current governing permit" did  not
violate the CWA, "as the original placement was
done pursuant to proper... authorization under the
nationwide permit." On the second issue, the court
found that plaintiff had not substantiated his claim
that  the  fishpond  wall  continued  to  discharge
sediment and cause turbidity.  The  court thus
concluded the no material issue of fact existed on
this  issue.   The court held that defendant was
entitled  to  summary judgment with  respect to
plaintiff's CWA claims.

    F.  Citizen Suits

       1.  Standing

       a.  Fourth Circuit  holds that two non-
          profit  environmental  organizations
          lacked standing because they failed
          to establish injury in fact  and failed
          to establish that the alleged injuries
                         in  fact were  fairly traceable  to
                         defendant's conduct:

              Friends of the  Earth,  Inc. v. Gaston Copper
              Recycling Corp.. 179 F.3d 107;(4th Cir. 1999).

              Plaintiffs brought a citizen  suit under the CWA
              against defendant Gaston  Copper  Recycling
              Corporation alleging various violations of its N PDES
              permit.  The district court dismissed the citizen's
              suit for lack of subject matter jurisdiction concluding
              that plaintiffs lacked standing. On appeal, plaintiffs
              contended that they established that their members
              suffered injuries in fact that were fairly traceable to
              defendant's conduct. The Fourth Circuit Court of
              Appeals reviewed the case de novo.

              In regard to plaintiffs' claim of injury in  fact, the
              court concluded that  the concerns of plaintiffs'
              members were based on mere speculation as to the
              presence  of  pollution  without any  evidence  to
              support their fears or establish the presence of
              pollutants in the allegedly affected waters. There
              were no toxicity tests, or tests or studies of any
              kind, performed on the allegedly affected waters.
              None of plaintiffs' members testified that there was
              an observable negative impact on the waters that
              they used or the surrounding ecosystems of such
              water.  While recognizing that recreational and
              economic  interests of plaintiff members are
              legally protected interests, the court concluded
              that  the member's concerns, standing alone,
              simply failed to  establish  that  their legally
              protected interest were actually, or imminently
              threatened of being adversely affected.

              The  court  proceeded  assuming  arguendo that
              plaintiffs established that their members suffered
              injuries in fact and reviewed plaintiff's claim that the
              alleged injuries  in fact were  fairly  traceable  to
              defendant's conduct. The court concluded that
              plaintiffs  did not  present evidence that the
              allegedly  affected   waterways   contained
              effluents of the type that defendant discharged
              and that the distances between the source of
              the alleged pollution and the waterways used by
              plaintiffs' members was simply too great  to
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infer causation. As such, the court concluded
that plaintiffs had failed to establish that the
injuries were fairly traceable to  defendant's
conduct.

The court therefore concluded that plaintiffs lacked
standing and affirmed the district court's judgment
dismissing plaintiffs' action for lack of jurisdiction.

In a dissent,  Chief Judge Wilkinson opined that the
majority had  encroached on congressional authority
by  establishing standing hurdles  so high as to
effectively remove the citizen suit provision from the
Clean Water Act.  The dissent would reverse the
judgment  and  remand for a determination of
whether defendant  has discharged  pollutants in
excess of its permit limits.

          b. District  court  holds  that  civil
             penalties  sought  for  ongoing
             violations of the CWA specifically
             deter such violations sufficient to
             satisfy   the   redressibility
             requirement  for  purposes  of
             establishing standing:

Natural  Resources Defense Council  v. Southwest
Marine,  39 F. Supp. 24 1235 (S.D.  Cal.  Jan. 27,
1999).

Defendant  Southwest   Marine   sought
reconsideration of an order that denied defendant's
prior motion  to preclude imposition of  civil penalties
for  violations of the CWA.  Defendant argued that
Steel Co. v. Citizens for a Better Env't, 523 U.S. 83
(1998) dictated that citizen suit plaintiffs never have
standing to  seek penalties for violations of an
environmental statute if those penalties are paid to
the U.S Treasury.  The court disagreed. The court
distinguished Steel Co., from the  instant  case
based on the fact that Steel Co., dealt with wholly
past violations, whereas, the instant case involved
ongoing violations.  The court observed that the
possible imposition  of monetary penalties in this
case could specifically deter current and ongoing
violations.    Based  on  this finding,  the court
concluded that "civil penalties awarded to the
              U.S  Treasury  may  remedy  the  Plaintiff's
              injuries" and thus were sufficient to satisfy the
              redressibility requirement of current standing
              law.

              The court also rejected defendant's argument that
              plaintiffs must not only have standing to bring their
              case  but must have standing  to  seek  each
              particular remedy.  (Citing the City of Los Angeles
              v. Lyons, 461 U.S. 95 (1983)). The court observed
              that  in  effect  defendant  was  arguing  that
              irrespective  of  ongoing  violations a citizen  suit
              plaintiff could never seek civil penalties. The court
              rejected this argument as well, holding that "Lyons
              and its progeny are not applicable" because those
              cases typically involved requests for injunctive relief
              to  remedy  allegations of harm from officials or
              quasi-official  conduct, and  in  such cases the
              interests in standing had to be weighed against the
              government's interest in  being able to conduct its
              affairs.  The court found no analogous concern
              here.

                     2.  Enforcement Under Comparable Law
                         as Bar to Citizen Suit

                         a. Sixth Circuit holds that series of
                           four administrative enforcement
                           orders   constituted   diligent
                           prosecution  under a comparable
                           State law sufficient to bar citizen
                           suit:

              Jones v.  City of Lakeland, 175 F.4d  410 (6th Cir.
              April 20, 1999).

              Plaintiffs  brought a citizen  suit under the CWA
              against defendant City of Lakeland alleging the City
              discharged  pollution  from its stabilization  lagoon
              into State waters in violation of its NPDES permits.
              The district court, having found that the Tennessee
              Department of Environmental Conservation (TDEC)
              was diligently prosecuting a civil action against the
              City, had dismissed the action  for lack of  subject
              matter jurisdiction.  The TDEC had issued four
              administrative orders in an attempt to require the
              City to come into compliance. On appeal, the Sixth
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Circuit Court of Appeals reviewed whether either
bar to citizen suits contained in CWA § 1365(b) or
1319(g)(6)(A) applied.

The court first examined whether the TDEC's action
constituted diligent prosecution, and concluded that
it did because the TDEC had made repeated efforts
to require compliance, and such efforts resulted in
progress towards such compliance, even though
practical  difficulties  encountered  by  the  City
resulted in continued noncompliance.  The court
observed that the TDEC  had imposed a fine in its
fourth order and that this  order provided for further
fines  if  the  City   failed  to  comply  with   the
requirements  of the  order.   The court  then
examined whether the administrative orders issued
by TDEC constituted an "action in a federal or state
court."  The court  concluded that administrative
proceedings of  the  State's water quality control
board  or  TDEC  that   sought  to  enforce   the
Tennessee Water Quality Control Act (TWQCA) did
not constitute actions taken in court for purposes of
CWA § 1365(b).  Thus,  the court concluded the
district court  had  improperly concluded  that §
1365(b) barred plaintiffs  suit.

The court then examined whether § 1319(g)(6)(A)
barred plaintiff's action. Since the court had already
found that the TDEC's actions constituted diligent
prosecution, the court  focused on whether the
requirements of TWQCA were comparable to those
in § 1319(g).  The court  concluded that the State
law  provisions  were comparable to  the CWA
requirements. The court found  that the State law
contained similar enforcement goals to the CWA,
comparable penalty provisions, and provided a
meaningful opportunity for public participation.

In a dissent, Judge Krupansky found that the CWA
and the TWQCA were not comparable, and that the
record did not establish  that  the TDEC  had
diligently prosecuted an enforcement action under
the TWQCA.

          b. Ninth Circuit holds that a CWA
             citizens' suit,  for violations  that
             continued beyond the timeframe
                           specified in a State enforcement
                           action,  is  not barred  by  such
                           enforcement  action  where  no
                           penalty was imposed under the
                           State action and  environmental
                           enhancement projects imposed
                           under  the  State  action did not
                           address   the   continuing
                           violations:

              Northern California River Watch v. Sonoma County
              Water Agency, 1998  U.S. Dist. Lexis 19921 (9th
              Cir., Dec. 17, 1998).

              Plaintiff Northern California River Watch brought a
              citizen's suit that claimed defendants violated the
              CWA (33 U.S.C. § 1251) by failing to comply with
              their NPDES permit as a result of allowing certain
              discharges  of pollutants  into  their wastewater
              collection, treatment, and disposal system. Plaintiff
              sought civil penalties as well as declaratory and
              injunctive relief. Defendants claimed that plaintiff's
              claims  should be  barred  under CWA §  1319
              because  the State  of  California  (through  its
              Regional  Water  Quality  Control   Board),  on
              November 14, 1997, had brought an administrative
              enforcement  action  against  defendants for the
              same violations addressed under the citizen's suit.
              The State enforcement action had resulted  in an
              $8,000 fine and an agreement for the defendants to
              perform two environmental enhancement projects.
              By  its  terms,  the  consent agreement covered
              violations that had occurred from January  1994
              through July 1997.

              Plaintiff argued that its claims were not barred by
              the  State enforcement action because the  State
              action only  addressed violations  that  occurred
              through  July  1977,  whereas,  plaintiff's  claim
              addressed violations that occurred since that date.
              Defendants responded that, despite the fact that
              the  State enforcement action was limited by its
              terms to violations that occurred up to July 1977,
              and the fact that the State  action had resulted in a
              penalty   and agreement  to  perform   two
              environmental enhancement projects,  the  State
              enforcement action was an ongoing proceeding at
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the time  plaintiffs filed  their  complaint and  it
therefore barred plaintiff's citizen suit.   In effect,
defendant argued  that  because the State had
continued to monitor defendant's compliance and
was considering further action, the  State's action
constituted "diligent prosecution" under the CWA.

The   court   disagreed  with   defendant's
arguments and held  that plaintiffs claims for
those violations that occurred after July  1997
were  not  barred by the  State's  continued
monitoring  of  the   defendant's compliance
status.  The court observed that for  a citizen
suit to be barred the comparable state  law must
"contain penalty provisions and a penalty must
actually have been assessed under state law."
(See, Knee Deep Cattle Co. v. Bindana Investment
Co. 94  F.3d 514 (9th Cir.  1996).)  The  court
recognized that, with respect to the post-July  1997
violations, no penalty  had been assessed by the
State.

The court also rejected defendant's  argument that
citizen suit enforcement should have been barred
because  part of the  State  settlement  required
defendants to perform environmental enhancement
projects (i.e., creating  a fish passage and funding
agricultural stormwater runoff monitoring).  The
court added that because none of the terms of the
State   administrative  enforcement agreement,
including those  requirements that imposed the
environmental enhancement projects, addressed
the ongoing violations asserted in plaintiffs suit, the
State enforcement action  could not be considered
diligent prosecution of the violations that continued
beyond July 1997.

          c. District  court  holds  that  the
             prosecution of a State  enforce-
             ment action that addresses the
             same claims as a citizen suit does
             not bar the citizen suit where the
             State action  is  filed  after the
             citizen suit has been filed:
              Long Island Soundkeeper Fund, Inc. v. New York
              City Dep't of Envtl. Protection, 27 F. Supp. 2d 380
              (E.D.N.Y., Nov. 23, 1998).

              Plaintiff brought an  action under the citizen suit
              provisions of the CWA that alleged the New York
              City Department of Environmental Protection (DEP)
              violated conditions (i.e., fecal coliform,  nitrogen,
              settleable solids, biological oxygen) of discharge
              permits issued by the New York State Department
              of Environmental  Conservation (DEC)  at eight
              sewage treatment plants that discharged into the
              East River and Jamaica Bay. Defendants moved to
              dismiss or stay the proceeding based on a State
              enforcement  action  that addressed the  same
              violations but was filed  approximately 30 minutes
              after the citizen suit.  After providing 60 days notice
              of their intent to file the citizen  suit, plaintiff had
              twice  agreed with DEC  to  delay  filing  the suit
              pending discussions between plaintiffs, defendants,
              and DEC.  Plaintiffs declined a third request by
              DEC to delay filing the citizen suit.

              Defendants argued  that the DEC  was diligently
              prosecuting an enforcement  action in State court
              that addressed the same violations brought by the
              plaintiff, and that pursuant to § 1365(b)(1)(B) of the
              CWA,  plaintiff's citizen suit must therefore be
              dismissed. The court disagreed and found that
              given that the DEC action was filed in  state
              court after the citizen suit had been filed, it was
              not barred under § 1365(b)(1)(B).  The  court
              observed that the  language of the CWA bars
              citizen   suits  only  where  diligent  State
              prosecution is initiated  prior to  a citizen suit.
              Here,   the court  observed,  the  DEC  had  the
              opportunity to file its action prior to  plaintiff's claim
              but did not  do so.   The court held that  "state
              prosecution of the same claims no matter how
              diligent, will not preclude a properly filed private
              action, or require its dismissal."  Defendants cited
              two cases in which citizen suits were dismissed
              even  though  they  were   filed   before  State
              enforcement  actions.    Atlantic   States  Legal
              Foundation v. Eastman  Kodak Co., 933 F.2d 124
              (2nd Cir. 1991) and United States Environmental
              Protection Agency v. City of Green Forest, 921 F.2d
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1394  (8th Cir.  1991).   The court,  however,
distinguished these  cases since  they  involved
dismissal based on settlement of the issues (with
no  likelihood of  continuing  violations),  not  on
diligent prosecution.

Defendant's also argued the court should refrain
from exercising jurisdiction over plaintiff's citizen
suit  under  the  doctrine of  abstention. (See,
Colorado  River  Water  Conservation  District  v.
United States, 424 U.S.  800 (1976).  The  court
declined, finding that the citizen suit was authorized
under   federal   law  and   enforced   federal
requirements designed  to protect  water quality.
Moreover, the court stated that defendant's position
was "undermined by its own inaction."

Finally, defendants contended that plaintiff's claim
that the Jamaica sewage plant violated its permit
limits for settleable solids could not be enforced
because the settleable solids  limit was  imposed
under state law  and was stricter than federal
requirements.     (See,   Atlantic   States  Legal
Foundation v. Kodak Co., 12 F.3d 353 (2nd Cir.
1993).   The court agreed, and found  that under
Atlantic  States plaintiff's lacked standing to  bring
this claim.

           d. District  court  holds that CWA
             citizen suit not precluded by State
             Notice of Violation and Cease and
             Desist Order issued prior to filing
             of  action, despite  the  fact that
             State took further administrative
             action with  a  penalty assessed
             and collected  after the suit was
             filed:

Old Timer, Inc. v. Black-Hawk Central Sanitation
District,  etal., 1999 U.S. Dist. Lexis 9366.

Plaintiff  The Old Timer, Inc. was a riverside facility
in  Colorado at which  tourists panned for  gold.
Plaintiff  Grisenti was  the owner of The Old Timer.
Defendant Black-Hawk Central Sanitation District
operated a sewage treatment plant that discharged
its wastewater to the river seven miles upstream to
              The Old  Timer.  Other defendants included past
              operators of the plant and the operator at the time
              of the suit.

              After several months of NPDES noncompliance by
              the County,  on September 8, 1992, the Colorado
              Water Quality Control Division (WQCD)  of the
              Colorado Department of Health (CDH) issued a
              Notice of Violation and Cease and Desist Order for
              July and  August 1992 violations.  On September
              22, 1992, The Old Timer gave the District notice
              that it intended to file a CWA citizen suit.  The Old
              Timer filed the CWA  citizen suit on January 29,
              1993.  To bring itself into compliance, the District
              devised a plan that included immediate actions,
              interim improvements and a large-scale expansion.
              Despite  these  attempts,  discharge violations
              continued.    The   following  federal  and state
              enforcement actions ensued:  1)  EPA issued a
              Notice of Violation  on August 26, 1993;  2) the
              WQCD issued a second Notice of Violation  and
              Cease and Desist Order on October 20, 1993, for
              violations that occurred between August  1, 1992,
              and September 30,  1993; 3) the WQCD  issued a
              "Public Notice of Intended Penalty" on October 20,
              1993, giving notice of its proposed negotiated civil
              penalty of $85,000 against the District; 4) the CDH
              approved the agreement and  issued  an order
              imposing the $85,000 penalty on  September 19,
              1995.

              Based on the above facts, the District argued that
              The Old Timer's CWA suit was barred either under
              Section 309(g)(6)(A)(ii), which precludes citizens
              suits  for violations for  which "the  State  has
              commenced and is diligently prosecuting an action
              under  a  State  law comparable  to [the  CWA
              administrative penalty subsection], or under Section
              309(g)(6)(A)(iii), which precludes suits for violations
              "for which the ...  State has issued a final order not
              subject to judicial review and the violator  has paid
              a penalty assessed under ... such comparable
              State law."   Based on its analysis  of the statutory
              language, CWA legislative  history and  relevant
              case law, the district court concluded that neither of
              the Section 309 provisions precluded The  Old
              Timer's action.
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The court noted  that  before The Old  Timer
commenced its suit, the only action initiated by the
WQCD was the issuance of the Notice of Violation
and Cease and Desist Order, which did not include
any assessment of penalties. Noting a split in case
law regarding whether  this type of action  was
sufficient to preclude a citizen suit under Section
309(g)(6)(A)(ii), relying heavily on legislative history,
the court  concluded  that it was  Congress's
intention  to  preclude citizen suits only when
EPA or a State had  already commenced an
"administrative  penalty  action"   against  an
alleged violator.  Accordingly, it held that The
Old Timer's action was not barred by the  pre-
suit Notice of Violation and Cease and Desist
Order  issued by the WQCD.

The district court  then  addressed  the issue  of
whether  the   1995  CDH  order assessing  the
$85,000 penalty against the District "retroactively"
barred the suit under Section 309(g)(6).   Again
looking to CWA legislative history, the court
held that the State's later assessment of an
administrative  penalty   and  the  District's
payment  thereof did  not defeat  the court's
jurisdiction.  Reiving on Long Island Soundkeeper
Fund,  Inc. v.  New York  City  Dep't  of  Envtl.
Protection. 27 F. Supp. 2d 380 (E.D.N.Y. 1998) and
Natural Resources  Defense  Council,  Inc.  v.
Lowengart & Co., 776  F.  Supp. 996 (M.D. Pa.
1991),  the court  stated that  the  provisions  of
Sections 309(g)(6)(A)  and 505  only prevent a
citizen  from "commencing" an action, and once an
action  has been  properly filed, the court  has
jurisdiction, notwithstanding a State's subsequent
assessment of an administrative penalty

Turning to the District's claims that its subsequent
improvements to the treatment plant rendered The
Old Timer's  citizen suit "moot"  by  bringing the
District into compliance, the district court split its
analysis for the claim for injunctive relief and the
claim for civil penalties. Regarding The Old Timer's
claim for injunctive relief,  the court stated that under
Gwaltney  of  Smithfield,  Ltd v. Chesapeake  Bay
Found.. Inc.. 484 U.S. 60 L Ed. 2d 306, 108 S. Ct.
376 (1987), a claim for  injunctive relief becomes
              moot when there is no reasonable expectation that
              the polluter will continue to pollute in the future.
              The court concluded  that  the  District's  plant
              upgrades  had corrected the problem  causing the
              violations  that were the subject of the action and
              that permanent improvements made it unlikely that
              the discharge violations at issue would continue.
              Thus, the court  found  the request for injunctive
              relief to be moot.  The court, however, held that
              the fixed  District's post complaint compliance
              did not moot The Old Timer's claim for civil
              penalties, stating  that  the  overwhelming
              number of circuits considering this issue have
              held that a defendant's actions after citizen suit
              filing that result in compliance, with no threat of
              repeat violations, while mooting the claim for
              injunctive relief, do not do the same for civil
              penalty claims.

              Addressing which of The Old Timer's penalty claims
              could proceed, the court stated that although it had
              concluded that the civil  penalty action was not
              precluded either under Section 309(g)(6)(A) or the
              mootness doctrine, The Old Timer's claims relating
              to violations that were specifically covered by the
              CDH's final  penalty order (i.e.,  those occurring
              between July  1992 and May 16, 1994) were barred
              under the principle of  res judicata.   Although it
              determined that  The Old Timer could pursue its
              penalty claims, the district court stated although it
              was seeking penalties for violations that occurred
              before and after July 1992 and May 16,1994, many
              of these violations were not included in the notice of
              intent to sue, which had incorporated by reference
              the WQCD's  initial Notice of Violation and Cease
              and Desist Order to identify violations. Because the
              notice did  not identify any pre-July 1992 violations,
              and there was no  evidence  that such episodic
              violations were related to the discharges identified
              in the notice, the district  court held that The Old
              Timer could not seek civil penalties for any of the
              pre-July 1992 violations. Regarding violations after
              May 16,  1994, the district court held that these
              violations were still actionable if they were related to
              the violations covered in the Notice of Violation and
              Cease and Desist Order.
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Turning to the final issues, regarding the liability of
past and current plant operators, the court stated
that because The Old Timer did not serve any of
the current operators of the plant with the required
Section 505 notice, the operators were not proper
defendants,  and because under Gwaltney citizen
suits cannot be brought for wholly past violations,
the operators of the plant prior to the date The Old
Timer filed its suit were also not proper defendants,
as their alleged violations had occurred wholly in
the past (i.e., before the suit). Regarding The Old
Timer's request for attorney fees, citing Beard v.
Teska.  31  F.3d  942 (10th  Cir.  1994),  the court
stated that for The Old Timer to be entitled to such
fees,  it must show  that its citizen action was a
substantial factor leading to the relief obtained,  and
that defendant's actions were required by law. The
court determined that the question of whether The
Old Timer's action was a substantial factor bringing
about the District's compliance action was a factual
question that could  not be  decided by summary
judgment.

The   court  referred  the case   back  for a
determination on attorney fees, along with a
determination  on  both   liability  issues  for
violations after May 16, 1994 and imposition of
appropriate penalties, and a determination on
the liability of the District on The Old Timer's
state law claims.

           e. District  court grants  summary
             judgment motion of citizen suit
             plaintiff regarding CWA liability of
             defendant wastewater treatment
             plant  based on  finding  that
             defendant  had discharged heat
             exceeding upstream temperature
             of receiving waters, despite  the
             fact  that   defendant's  NPDES
             permit   did   not  include  any
             limitation for heat:

Piney Run Preservation Ass'n v.  County Comm'rs
of Carroll County, 50 F. Supp. 2d 443 (D. Maryland,
May 20, 1999).
              The Piney Run Preservation Association, a non-
              profit association whose activities included efforts to
              protect the Piney Run Stream, filed suit against the
              County Commissioners of Carroll County, Maryland,
              the operator  of a  sewage treatment  plant that
              discharged to  the  Piney  Run  Stream.    The
              Association then brought a motion for summary
              judgment to establish the County's liability under
              CWA Section 505, with the County filing a similar
              motion requesting that the court find that no liability
              existed.

              The  case involved  a long battle  involving  the
              Association,   the   County  and  the  Maryland
              Department of the Environmental (MDE) over the
              volume  of the  discharge from  the  County's
              treatment plant and appropriate limits on discharges
              of heat that MDE should impose  in the County's
              State-issued NPDES permit.  The County held an
              NPDES permit originally issued by the MDE in 1991
              that was set to expire in February 1995.  Because
              at the time of the lawsuit the MDE had not reissued
              the permit, the 1991 permit was in place.   The
              County's  permit had no  specific limit on effluent
              temperature.

              The  citizen   suit  was  preceded   by  years  of
              administrative and judicial wrangling between the
              Association, the County and the MDE. In 1991, the
              County had  requested an increase in permitted
              effluent from  500,000  to 900,000  gpd.    In
              administrative actions, the Association challenged
              the MDE's decision to reissue the County's NPDES
              permit allowing the increase on the grounds that
              this action would  continue and exacerbate  the
              "thermal  pollution"  of  the  stream.   Despite  the
              Association's objections, the MDE determined that
              it  would  issue the permit with   the  increased
              discharge allowance.    After   exhausting  all
              administrative appeals, the Association challenged
              the permitting decision in  Maryland State court.
              This resulted  in action  remanding  the case to the
              MDE for further determinations regarding the nature
              of the discharge and associated impact to the Piney
              River Stream.
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After a hearing but before the MDE made any final
determination regarding the proposed changes to
the NPDES permit, the Association initiated its
CWA citizen suit by giving the required notice under
Section 505 of alleged CWA violations to the
County, the MDE and to EPA. The Association
subsequently filed suit, alleging that the County had
violated the  terms  of  its  NPDES  permit  by
discharging heat into the Piney Run Stream.

Recounting the factual issues pertinent to the case,
the district court noted that the County's permit had
no specific limit on  effluent temperature.   The
permit did include a requirement that the County
submit monthly reports to the MDE.  Such reports
included the temperatures of the  plant influent,
plant effluent, stream above the outfall and stream
sixty feet  below the  outfall.   The Association
presented  summaries of the reports that showed
that  the temperature  of the  plant effluent  had
exceeded the upstream temperature on 371 of 397
days.

Citing Atlantic States Legal Foundation v. Eastman
Kodak Co.. 12 F3d 353 (2d Cir. 1994), the County
argued that the district court lacked jurisdiction to
hear the case because the County's  NPDES permit
did not include any effluent limitation for heat. In
the Atlantic States case, the Second Circuit held
that "once within the NPDES or SPDES scheme,
polluters may discharge pollutants not specifically
listed in their permits  so long as they comply with
the appropriate  reporting requirements and abide
by any new limitations when  imposed  on  such
pollutants." The district court, however, noted
that the Ninth Circuit in Northwest Advocates v.
City of Portland. 56 F.3d 979 (9th Cir. 1995) had
held that  the  CWA  "allowed a citizen suit to
enforce water  quality standards  that had not
been translated into numerical effluent limits on
the permit."

The  district court  found that based  on the
language   of   the   CWA  Section  505,   the
Association had the authority to bring the action
against the County.  The court focused on the
language  in  Section 505 that states that  an
              action may be brought against "any person ...
              who is  alleged  to  be in violation of (A) an
              effluent  standard  or limitation  under  this
              chapter," with the term  "effluent standard or
              limitation underthis chapter" defined in Section
              505(f) as, among other things, " an unlawful act
              under subsection (a) of [CWA Section 301]."
              Section 301 provides that except in compliance with
              sections 301, 306, 307, 318, 402 and 404 of the
              CWA, the discharge of any pollutant by any person
              shall be unlawful. Based on its reading  of this
              statutory language, the court determined that the
              County's discharge created a cause of action under
              Section 505.
                  G.  Enforcement
                     Penalties
Actions/Liabilities/
                     1.  D.C.   Circuit   finds   that   EPA
                        reasonably interpreted the CWA as
                        precluding  challenge  to  a state-
                        issued  permit   in   a   federal
                        enforcement action  and  upholds
                        administrative penalty for violations
                        of NPDES storm water permit related
                        to  discharges  from  roofs  of
                        buildings and gutters:

              GMCv. U.S. EPA.  168 F.3d 1377 (D.C. Cir. March
              23, 1999).

              Petitioners General  Motors  Corp.  (GM), sought
              review  of an  administrative penalty  of  $62,500
              imposed for 92 violations of its stormwater NPDES
              permit  (Outfall  002).    In  the   administrative
              enforcement proceeding GM had argued primarily
              that EPA had erred in refusing to consider GM's
              collateral attack on the validity of the State-issued
              permit.

              In the Court of Appeals, GM first argued that the
              ALJ erred by following federal rather than Michigan
              law,  the latter of which arguably would  have
              permitted a collateral attack upon a state-issued
              permit.  The court rejected this argument  because
              in this instance there was a federal statute, the
              CWA, to apply. GM then argued that there was not
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substantial evidence supporting the ALJ's decision
because the permit "was invalid from the outset" but
EPA refused to hear an attack on the validity of the
permit. The court found that in the CWA Congress
has not explicitly addressed the question of whether
a State permittee may collaterally attack the validity
of its State-issued permit in a federal enforcement
proceeding.  The court then found that EPA had
reasonably interpreted the CWA by holding that
GM could not challenge the validity of the State-
issued  permit  in the  federal enforcement
proceeding because the proper forum for such
a challenge was before the State administrative
agency and in State court, and GM had failed to
seek review in either forum.

GM also argued that the ALJ  erred in concluding
GM's permit for Outfall  002  did not  expire  on
October 1,  1990,  the  termination  date for  the
permit, since GM had not applied for a new permit
(the plant had ceased operation August 1988). The
court dismissed this argument because the ALJ had
explicitly stated that GM's penalty would remain the
same even if the  EAB or this court were  to
ultimately conclude  that GM's  permit expired  on
October 1,  1990 and GM failed to challenge the
penalty calculation before the EAB or in this court.

Finally, GM claimed it was denied its due process
rights because  it lacked notice  that  the  metals
present in rainfall or leached from the roofs of its
buildings would  be considered  pollutants  for
purposes of the CWA and its NPDES permit. The
court rejected this argument as well, finding that
GM's permit contained  specific limits  for copper,
lead and zinc discharged from Outfall 002, and that
GM, in  informing the  MDNR of the  violations,
included  the ambient  and leached  metals  as
contributing to those violations.  Hence,  the court
found GM's lack of notice argument unpersuasive.
The  court  concluded that  substantial  evidence
supported EPA's finding of  violations and  denied
the petition  for review.

       2.   District  court holds ALJ finding of
           liability  was  based  on  substantial
           evidence:
              Smith v. Hankinson. 1999 U.S. Dist. LEXIS 5151
              (S.D.Ala. Mar. 31, 1999).

              Plaintiff P. Smith sought judicial review of a $12,000
              administrative  penalty assessed by EPA for  two
              violations that involved discharging pollutants into a
              wetland without a  permit in an effort to  fill  the
              wetland and construct an access road.  The court
              reviewed the violations to determine if there was
              substantial  evidence in the  record to support the
              violations,  as well  as to determine whether  the
              penalty constituted an abuse of discretion. Both
              parties sought summary judgment.  Plaintiff argued
              that the total area involved was less than 1,000
              square feet and that such a small area qualified for
              coverage under a Nationwide permit,  and was
              therefore exempt from any violation of the CWA.
              The court rejected this argument since the plaintiff
              had not raised  this claim during the administrative
              hearing. The court also rejected the introduction of
              an affidavit of B. Vittor, which supported plaintiffs
              new  claim  and opposed the EPA's  motion for
              summary judgment. The court acknowledged there
              were  four   exceptions  to   the   prohibition  on
              consideration of extra-record material, but found
              that plaintiff had not demonstrated that any of those
              exceptions applied in this instance.

              Plaintiff also disputed whether the wetlands  into
              which the discharge occurred were waters of the
              U.S., and asserted that he  had  not controlled or
              directed the activity that resulted in the discharge.
              The  court  found  that both elements had been
              established by substantial evidence. The wetlands
              determination had been based on the location of
              the site,  the  regulatory definition of the term
              "wetlands,"  and the three  key characteristics of
              wetlands (i.e., hydric soil, wetlands vegetation,  and
              wetlands hydrology).  In addition, the court noted
              that the wetlands was only yards away from Terry
              Cove Harbor, a navigable cove connected to the
              Gulf of Mexico.  With regard to control over the
              discharge, plaintiff asserted he did not own the
              property, but  the court found this contrary to
              the evidence, and observed that ownership was
              of  no consequence,  since   plaintiff  had
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responsibility for, or control over, performance
of the work that resulted in the discharge.

Lastly, the court reviewed the penalty amount. The
court  found  that  the  ALJ  had "meticulously
addressed" each of the statutory penalty factors
and imposed a penalty of $12,000, which the court
found to be appropriate.   The court entered
judgment for EPA.

       3.  District  court places 176 sewage
           treatment facilities  in receivership
           based on overwhelming evidence of
           repeated, unabated violations of the
           CWA  and   the  LEQA   over  an
           extended period of time, as well as
           defendant's  blatant and continued
           violation of  a  consent decree
           intended  to   remediate   such
           violations:

United States v.  Acadia  Woods, Civ. Action No.
6:98-0687 (W.D.  La., Mar. 22, 1999).

On July 31,1998, a consent decree was entered by
the parties  that required defendants to undertake
remedial measures at 176 sewage treatment plants
to bring  the  sewage  treatment facilities  into
compliance with  the CWA and NPDES program
requirements. In December 1998, inspections at 73
of these  plants  revealed  661  violations of the
consent decree. The U.S., and the Louisiana DEQ
as intervenor, originally  sought an injunction  and
then requested  that the court  issue  an order
appointing a receiver with full powers to oversee
operations of defendant's sewage treatment plants.
Following  a  hearing  on  the  merits,  Judge
Tucker L.  Melancon issued a memorandum
ruling and  judgment that appointed a receiver
for defendant's sewage sludge treatment plants.

Key findings of fact included the following.  The
consent decree required  compliance with effluent
limitations specified in each NPDES permit issued
to defendants by the Louisiana DEQ.  Inspections
conducted at 73  of the  176 plants identified  661
violations of the consent decree; none of the plants
              were found to be in compliance with the consent
              decree. Plants were found to be in critical disrepair,
              with one-third of the facilities requiring replacement.
              Defendants had  continued  to discharge  large
              quantities  of  potentially  harmful   pollutants,  in
              excess of permit limits, into local waters, streams
              and bayous. Such pollutants included raw sewage,
              solids, and sludge that had not been adequately
              treated or disinfected.   Defendants committed
              numerous operational violations, and lacked a basic
              understanding or had a blatant disregard for the
              public health  components of operating of sewage
              treatment  plants.  The violations showed  that
              injunctive relief was  inadequate to remedy  the
              violations and protect the public health. Defendants
              lacked the financial ability to conduct their business
              in  an  environmentally sound manner.    The
              extraordinary relief sought was needed to protect
              the citizens and environment of Louisiana.

              Key conclusions of law included the following.
              Section 362(b)(4) of the  Bankruptcy Code  did
              not operate as a stay to  the enforcement of a
              "... governmental unit's police and regulatory
              power, including the enforcement of a judgment
              other than a money judgment, obtained in an
              action or proceeding by the governmental unit
              to   enforce   such  governmental  unit's   or
              organization's police  or regulatory  power."
              Jurisdictional tension between the bankruptcy court
              and  the  district  court was  resolved  by  the
              appointment of the same individual as receiver and
              bankruptcy trustee.    Defendants  discharge  of
              pollutants into waters of the U.S. were violations of
              the CWA and the Louisiana EQA.

              The court concluded  that the appointment  of a
              receiver  was  necessary   because   of   the
              overwhelming evidence of repeated,   unabated
              violations of  the  CWA  and the LEQA over an
              extended period of time as well  as due to  the
              considerable violations of the consent decree. The
              court noted given the magnitude of the problems,
              the prolonged noncompliance, and the fact that the
              defendants had  failed to make progress toward
              abating what were clearly flagrant violations of the
              law since the consent degree was entered, it was
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appropriate to appoint a receiver and grant him or
her broad powers. The court stated that it believed
that the regulatory process for sewage treatment
facilities  in  the  State  of Louisiana may have
systemic problems that are state wide.  Based on
this concern, the court's order went so far as to
require  that the  Secretary  of  Louisiana,  with
counsel, meet with the State Governor, the Speaker
of the  House,  the President of the Senate, and
other officials to inform them about this case and to
examine  the State's  ability to better ensure that
similar situations do not arise in the future.

       4.  District court holds that violations
           were  not  caused   by  "single
           operational upsets"  and  that EPA
           could enforce  effluent limits  for
           internal outfalls:

United States v. Gulf States Steel, Inc., 1999 U.S.
Dist. LEXIS 8834 (N.D. Ala. June 8,  1999).

This action was brought against Gulf States Steel,
Inc. (GSSI) alleging  CWA  violations  at GSSI's
manufacturing facility. The Alabama Department of
Environmental Management (ADEM) had issued an
NPDES permit to GSSI's predecessor in December
1987  that authorized discharges  from a  single
outfall, 001. On September28,1994, ADEM issued
a new  NPDES  permit to GSSI's predecessor that
imposed  additional conditions,  including effluent
limits, on six outfalls located at various points along
the facility's internal wastewater treatment system.
Upon GSSI's formation in April 1995 and acquisition
of the facility, the  1994 permit was administratively
transferred to GSSI.  In 1997,  the government filed
this action against GSSI seeking civil penalties and
injunctive relief, alleging that GSSI had violated its
NPDES permit  effluent limitations. In its motion for
partial summary judgment, the government  sought
an Order holding GSSI liable for 1,000 violations,
from   May  1,  1995  to  September 30,   1998,
comprising 4,290 days of violation.

GSSI   offered  two   arguments  to defeat  the
government's claims of  CWA violations.   First,
GSSI  argued  in  its  motion for  partial summary
              judgment that the government could not bring its
              action for any of the alleged violations  of the
              effluent  limitations for outfalls in GSSI's  internal
              wastewater treatment system because the internal
              outfalls were not discharges into waters of the U.S.
              The government argued that GSSI was improperly
              attempting to challenge  its  obligations under its
              NPDES permit, stating that the proper procedure to
              challenge the conditions would have been to apply
              for federal review in  the United States Court of
              Appeals  under  CWA Section  509.    In the
              alternative, the government argued that even if the
              court found that GSSI's challenge was not improper
              under Section 509, still GSSI was prevented from
              contesting the effluent limitations on the  internal
              waste streams because neither  GSSI  nor its
              predecessor,  availed  itself of  administrative and
              judicial review available under Alabama state law.
              The court rejected the government's first argument,
              stating that because GSSI's  permit was issued by
              ADEM, not the EPA, the terms and conditions of the
              permits were not subject to federal review, and that
              under the plain language of  Section 509(b)(2), an
              alleged  violator is prohibited  from litigating the
              terms of its NPDES permit in an enforcement action
              only if the alleged violator chose to forego review
              available under Section  509(b)(1).  The  court,
              however, agreed with the government that GSSI
              was precluded understate law from contending
              that  the permit  terms  were not enforceable,
              stating  that Alabama state  law, like Section
              509(b)(2), expressly prohibited an alleged CWA
              violator from collaterally attacking the terms of
              its permit in an enforcement  proceeding.

              GSSI also argued that its challenge to the internal
              outfall effluent limitations did not constitute an
              impermissible  collateral  attack,  but  instead
              challenged the "enforcement" of the limitations by
              contesting whether the discharges were to waters
              of the U.S., an element of CWA liability, relying on
              language in  40 CFR  Section 122.2 that states
              "Waste  treatment systems,  including  treatment
              ponds   or   lagoons   designed   to   meet  the
              requirements of the [Clean Water Act]  ...  are not
              waters of the United  States."  The Court again
              concluded that GSSI's failure to timely petition
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Water Enforcement Division
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for review of the permit precluded GSSI's attack
on   the  conditions  therein,   stating  that
regardless  of whether  the  internal waste
streams were themselves waters of the  U.S.,
GSSI was required to comply with all conditions
of its NPDES  permit, including the limitations
for the internal outfalls which eventually made
their way to the receiving stream.

Addressing  other  GSSI   challenges   to  the
enforcement of the limits on the internal outfalls, the
court rejected  GSSI's argument because the
company had no legal existence until after the 1994
permit was  issued  to its  predecessor, it was
impossible for  it to administratively challenge the
internal  waste stream  limits,  stating  that GSSI
assumed  the  liabilities  and  obligations  of  its
predecessor as part of the business transaction and
that  it now stood in the shoes of its predecessor
regarding  the  NPDES permit.  The  court also
rejected GSSI claims that it should be excused from
having to comply with the permit effluent limitations
on the internal  waste streams because, allegedly,
ADEM representatives made verbal representations
that the limitations would not be enforced, stating by
its terms the  permit required compliance with all its
terms   and   conditions,   and  that  verbal
representations by ADEM officials  without formal
modifications in the permit do not excuse the holder
from permit terms. The Court thus concluded that
permit effluent limitations on the internal outfalls
were enforceable  and that the government had
established that there were no genuine issues of
material fact with respect  to  GSSI's  liability for
permit  violations   from  the  internal  outfalls.
Accordingly,  the Court denied GSSI's motion for
partial  summary judgment on the issue of  its
alleged  non-liability  for  violations  concerning
internal waste stream effluent limitations.

Turning  to this issue  of the number of alleged
violations,  GSSI  argued  that the government
"over-counted" the number of violations for which
GSSI was liable,  contending that a  substantial
number of its alleged  violations were caused by
"single operational upsets" and should have been
counted as single violations. GSSI basically argued
              that under Section 309(d),  if an upset,  a term
              defined at 40 CFR Section 122(n)(1), is found to
              have occurred, then the upset should be counted as
              one violation, not all effluent limitation violations that
              result from the upset.  The court noted that under
              CWA Section 309(d), which sets out the factors a
              court must consider when determining the amount
              of a civil penalty, the concluding sentence provides:
              "For  purposes  of  this  subsection,  a   single
              operational  upset  which  leads to simultaneous
              violations of  more than one  pollutant parameter
              shall  be treated  as a single violation." The court
              stated that the "single operational upset" defense,
              citing U.S. v. Smithfield  Foods, Inc., 972 F.Supp.
              338, 342 n. 7 (E.D.Va.1997),  was not a complete
              defense to liability, but relates, rather, only to the
              amount of penalties the district court may impose.

              The court concluded that GSSI had not presented
              sufficient evidence to establish the defense. GSSI
              had contended that a number of single parameter
              violations that occurred for a number of consecutive
              days should be counted  as single violations under
              that defense. The Court noted that, contrary to
              GSSI's  interpretation,  Section  309(d) did not
              mandate that multiple-day violations of a single
              pollutant parameter be  counted  as  a  single
              violation when such multiple-day violations are
              attributable to single operational upsets; rather,
              that the language provided that simultaneous
              multiple pollutant parameter violations are to be
              counted as  if  they were a single pollutant
              parameter violation where the multiple pollutant
              parameter violations were caused by a single
              operational upset. The court stated that in its
              estimation,   the   Section  309(d)   single
              operational upset defense was not intended to
              mitigate violations caused by upsets where the
              polluter experiences noncompliance with one
              pollutant parameter due to some extraordinary
              event and then fails to take immediate remedial
              steps and thereby allows that noncompliance to
              continue over an extended period, and  that to
              hold  otherwise would  actually give a polluter
              incentive   to   delay   action   to  correct
              noncompliance resulting from  an upset. The
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court also rejected GSSI's assertion of the defense
on the basis that some of the events claimed as
"upset"  were neither  exceptional or beyond its
reasonable control; and rejected GSSI's arguments
that Section 309(d) required that every one of its
daily maximum violations that were attributable to a
single cause be counted as only one violation for
each cause  and that Section 309 precluded the
counting of monthly violations of per day average
effluent limitations as violations occurring each day
of the month, where  the  monthly violation has a
single cause.

       5. EAB holds no reversible  error or
          abuse of discretion occurred where
          ALJ  imposed  $2,000  penalty  for
          wetlands violation:

In re: Britton Construction Co.,  BIG  Investments,
Inc.,  and William and Mary Hammond, 1999 EPA
App. LEXIS 9 (Mar. 30, 1999).

EPA Region III  appealed the  assessment  of a
$2,000 penalty against respondents  for  filling, as
part  of  a  construction  joint venture,  wetlands
located  on Chincoteague Island,  Virginia.   The
Region  had  sought  a $125,000 administrative
penalty.  Respondents also appealed the penalty.

EPA made several arguments on appeal.  First,
EPA argued that the ALJ failed to articulate the
nature and extent of  specific reductions  made in
decreasing the proposed penalty. The EAB found
that the ALJ made a good faith effort to consider all
the  requisite  statutory  factors, and ultimately
provided a sufficient  sense of  the reasons  for
reducing the penalty.

Second,  EPA  maintained that  the  ALJ   had
improperly reduced the penalty assessed based on
EPA's  enforcement and respondent's mitigation.
The  EAB did not agree, and found that it was
entirely  appropriate for the ALJ to  consider the
government's action regarding this matter and that,
EPA's  own  general   penalty framework policy
provides for penalty reduction based  on corrective
action.
              Third, EPA argued that admitting respondent's tax
              records after the hearing and reducing respondent's
              penalty  based on those  records was reversible
              error. The EAB observed that the ALJ  had not
              reduced the penalty based on the respondent's tax
              records, but that those records were used to bolster
              previously submitted affidavits  that characterized
              respondent's ability to pay. In addition, it observed
              that final penalty was predominantly based on the
              small area of wetland affected, and the successful
              mitigation of the site.  The EAB found that, although
              the ALJ could be criticized for how this material was
              admitted, "no material prejudice and, hence,  no
              reversible error resulted from denying the Region
              an opportunity  to have  experts  analyze  these
              particular tax returns."

              Fourth,  EPA argued that the ALJ  had failed to
              consider the increased property value as measure
              of economic benefit. The EAB declined to consider
              this argument because EPA had not adequately
              raised it before the ALJ. Finally, EPA asserted that
              the ALJ calculated respondent's wrongful profits
              improperly.  The  EAB found  that because the
              USAGE  had authorized respondents to build on the
              sites, it would have been unjust for the ALJ to allow
              the government to recoup any "wrongful" profits that
              resulted from the construction.

              Respondents argued that no regulated fill activities
              had occurred on the site after November 28, 1989,
              and,  therefore, the five-year general federal statute
              of limitations barred the government's claims. The
              EAB disagreed, and found that the record indicated
              that respondents had placed fill material on the site
              just prior to February 6, 1990, within five years of
              when the complaint was filed (November 28,1994).
              Respondent also argued that EPA had not provided
              fair notice of the requirements that were enforced,
              since respondent viewed EPA's  standards for
              remediating wetlands violations as different from
              those of the  USAGE.   The EAB rejected  this
              argument because respondent had failed to raise it
              in the administrative  hearing.  Respondent also
              argued  that the penalty  initially sought  by EPA
              ($125,000) was arbitrary and violated respondent's
              due process rights. The EAB found no error on the
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part of the ALJ.  Finally, respondents argued that
they lacked the ability to pay the penalty. The EAB
concluded the Region had established respondents'
ability to pay, and  respondents  had not rebutted
that fact.

    H.  Criminal Cases

        1.  Second  Circuit  affirms  criminal
           convictions for knowing discharge
           of pollutants and for the negligent
           discharge of oil:

Notice:   Rules of the Second Circuit Court of
Appeals may limit citation to unpublished opinions.
Please refer to the rules of the United States Court
of Appeals for this circuit.

United States v. Superior Block & Supply Co., 1999
U.S. App. LEXIS 14013 (2nd Cir. June 22, 1999).

In this matter before the Second Circuit Court of
Appeals, Superior Block & Supply Co.  and its
president,  Ralph  Crispino,  Jr.  appealed their
convictions in the  district  court for the knowing
discharge of industrial pollutants into  navigable
waters  without  a  permit  under CWA Sections
309(c)(2), 311 and 402 and the negligent discharge
of a "harmful" quantity of oil into a navigable river
under CWA  Sections  309(c)(1) and 311(b)(3).
Superior was also convicted of killing  migratory
birds through the discharge of oil in violation of the
Migratory Bird Act,  16 U.S.C. Section 703.

The case involved two types of discharges into the
Quinnipiac River from the Superior facility. The first
type was discharges for concrete-block grinding
operations that occurred from 1993 through 1995.
The district court record indicated that beginning in
1993, officials  at  Superior, including Crispino,
became aware that the company had not obtained
necessary permits for its wastewater discharges. In
early   1995,  officials   from  the   Connecticut
Department of  Environmental  Protection  (DEP)
inspected Superior's  operations  and  issued  a
Notice of Violation noting the lack of a permit for the
discharges from the grinding operations. Between
              March and June 1995, Superior's environmental
              engineer met several times with DEP officials to
              discuss the facility's permit application, at which
              Superior alleged that DEP acknowledged that the
              discharges were occurring and did not indicate that
              such  discharges should  be stopped.  Superior
              submitted its permit application in June 1995 and
              waited for further DEP action.

              The second type of discharge was the spilling of oil
              from  Superior's  boilers into the Quinnipiac.  In
              October 1995, a small quantity of oil spilled into a
              trench on the floor reached the river through the
              storm drain system. It was alleged that employees
              were aware that some oil reached the river. On the
              day following this  first incident,  a  more serious
              incident occurred, as a boiler seal broke resulting in
              the discharge of between 5,500 and 6,000 gallons
              of industrial fuel oil into the  Quinnipiac.  Most of the
              oil flowed through  the  interior drains, but some
              flowed out of a window and into external floor drains
              that also fed into the storm drain system.

              On appeal, the defendants challenged their CWA
              convictions for the knowing discharge of pollutants
              and for the negligent discharge of oil. Superior did
              not challenge its conviction under the Migratory Bird
              Act,   and  neither  defendant  challenged  the
              sentences  imposed by the district court.    The
              Second Circuit affirmed the convictions, addressing
              each of the defendant's arguments as follows.

              First,  the  defendants  argued that  the evidence
              presented at trial was insufficient to support the
              necessary  finding  that they were  aware of the
              nature of the pollutants discharged through the
              concrete grinding process. The court rejected this
              argument, stating that the government argued
              to the jury that   it  could  infer  defendants'
              awareness of  the nature  of  the wastewater
              discharge from the defendants' knowledge that
              they  needed  a  permit  from DEP for  the
              discharges.   The court  found that  under the
              circumstances presented,  such an inference was
              permissible.
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Second,  Superior and  Crispino challenged  their
conviction relating to the negligent discharge of oil
on the grounds that they were only negligent as to
the discharge into the internal drains,  not  the
discharge of the oil to the Quinnipiac.  They also
argued that even if the internal drains had been
plugged,  some lesser amount of oil would still have
flowed out of the window and "nonnegligently" into
external  drains.  Accordingly, the  defendants
argued that the proscribed  injury,  the "riparian
release of a 'harmful' quantity of oil" under CWA
Section 311(b)(3) would have occurred regardless
of their negligent failure to plug the internal drains.

The court  rejected this argument, stating  that
even if some harmful amounts of oil would have
reached   the   river  with  or  without  the
defendants'  negligence, there was enough
evidence that less oil would have reached the
river if they had plugged the drains. Accordingly,
the court found that the defendants should  be
punished  for  the harmful  quantity  that  was
negligently released.

Finally, the defendants challenged two aspects of
the jury  instructions.    In  addressing these
contentions, the court first stated that because the
defendants failed to object to the charges at trial
and the alleged error was not "structural," its review
of the trial  court's instruction would be for "plain
error" under United States v. Zvi, 168  F.3d 49,  58
(2d Cir. 1999), with the standard being to determine
"whether the instruction caused a miscarriage of
justice when viewed as a whole and in the context
of the entire trial." Based on these guidelines, the
court  found that no error  met this standard.
Accordingly,  the Second  Circuit  affirmed   the
judgment of the district court.

       2.  Sixth Circuit   reverses  grant   of
           motion for judgment of acquittal and
           reinstates conviction for discharge
           of pollutants from a ship without a
           NPDES permit:

United States v. M/G Transport Services, Inc., 173
F.3d 584 (6th Cir. April 22, 1999).
              The  United  States  appealed  a district court's
              decision  that  granted  defendant's  motion  for
              judgment of acquittal on various charges (counts
              4-9) related to the dumping of ash and  other
              pollutants into federal waterways without a permit.
              A jury  had previously convicted M/G  Transport
              Services  Inc., and J.H. Thomassee, a company
              Vice-President  with  operational   control,   of
              conspiracy to violate the CWA (count  1) and  of
              failure to report an oil spill from the M/V  Richard A
              Main on July 2, 1990 (count 2); and convicted M/G
              Transport  Services  Inc.,  Thomassee,   and two
              captains of discharging or aiding and abetting in the
              discharge of pollutants without a permit (counts
              4-9).   In  granting  the motion  for judgment  of
              acquittal,  the district court  had  found that the
              government had failed to produce evidence that the
              crimes  had been committed on or about the  dates
              alleged,  and that  principles  of due process
              precluded holding the defendants criminally liable
              for discharging pollutants "when no permit would
              have  ever  been  issued"  for  the discharges
              undertaken by the defendants.

              The  Sixth Circuit  Court reviewed  defendants
              alleged due process violation first.  Defendants
              had argued that under United States v. Dalton.
              960 F.2d 121 (10th Cir.  1992) (conviction for
              failure to register a firearm reversed because by
              law that firearm could not be registered under
              any  circumstances)  counts   4-9  must  be
              dismissed. The court distinguished Dalton from
              the present case, finding that  here  the  CWA
              does not provide that a permit for the discharge
              of pollutants could never be issued,  only that
              the quantity and quality of the pollutants may
              have needed to be regulated to conform with
              the requirements imposed under the CWA.

              In addressing the sufficiency of the evidence,
              the court found that the government had indeed
              shown that the alleged violations had occurred
              reasonably near the dates  established in the
              indictment, and the court concluded that this
              was sufficient.   The  court  found  that it was
              reasonable  for the  jury to infer from  testimony
              describing how burn barrels were dumped within
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days of becoming filled with ash and residue that
such dumping occurred within  a short period  of
when the captain's log indicted a barrel of trash was
burned.  In addition, the court found  that the
testimony  presented to  the effect that  various
pollutants were among the items burned in the burn
barrels was sufficient to support the inference that
the residue remaining in the barrels, which were
ultimately dumped into various  rivers, contained
pollutants regulated under the CWA.

       3.   Ninth   Circuit   affirms  criminal
           conviction  for  improper  indirect
           discharge:

United  States v. Iverson, 162 F.3d 1015 (9th Cir.
Dec. 11, 1998).

Defendant appealed his conviction of four counts of
having  violated the CWA,  the Washington [State]
Administrative Code  (WAC),  and  the  City  of
Olympia's Municipal Code (Olympia Code), and one
count of conspiring to violate the WAC or the CWA.
Defendant was founder, company President, and
Chairman of the Board, of CH20, a company that
blended chemicals.  The violations stemmed from
defendant's  having  discharged drum-cleaning
wastes to the sanitary sewer without  a permit  or
other approval during 1992 - 1995.   On  appeal,
defendant  argued:     1)   the  district  court
misinterpreted the relevant laws; 2) the relevant
provisions are unconstitutionally vague;   3) the
district  court erred in formulating its "responsible
corporate officer" jury instruction; and 4) the district
court erred  in  its  admission  of  evidence  of
defendant's prior discharges of industrial wastes.

Defendant  first  argued  that  the  court erred
because it did not allow defendant to address
the issue of the effect of his discharge on water.
Defendant  argued that the WAC and Olympia
Code allow discharges of industrial waste that
do  not  affect   water   quality.    The  court
disagreed, and found that the WAC and Olympia
Code  incorporated the federal standard  by
reference and that this standard prohibited the
discharge of hauled or trucked industrial waste
              except at a discharge point designated by the
              POTW.

              With regard to defendant's vagueness challenge,
              defendant argued that the three definitions of the
              term "pollutant"  in the CWA, the WAC and the
              Olympia Code created  vagueness.  The court
              again disagreed, and found that the WAC and
              the Olympia Code properly incorporated  by
              reference   the  federal  prohibition   on  the
              discharge of trucked or hauled industrial waste,
              and  that  a  reasonable person  or  ordinary
              intelligence would understand from reading the
              relevant provisions this prohibition.

              Defendant also argued that the court had erred in
              formulating  its "responsible corporate officer" jury
              instruction  because  it did not adopt defendant's
              instruction, which provided that a corporate officer
              is responsible only when the officer "in fact exercise
              control over the activity  causing the discharge or
              has an express corporate duty to oversee the
              activity." The court,  in interpreting this term for
              the first time, rejected  defendant's instruction
              and held based on the wording of the CWA, the
              Supreme Court's  interpretation  (see, United
              States v. Dotterweich.  320 U.S. 277 (1943) and
              United States v. Park. 421 U.S. 658 (1975)) and
              this  court's   interpretation   of   similar
              requirements, that, underthe CWA, "a person is
              'responsible corporate officer' if the person has
              the authority to exercise  control  over the
              corporation's  activity  that is  causing  the
              discharges.  There  is no requirement that the
              officer in fact exercise such authority or that the
              corporation expressly vest a duty in the officer
              to oversee the activity."   The  court further
              rejected defendant's  arguments regarding the rule
              of lenity, the wording of the  instruction, and the
              need to specifically find a violation  of the CWA.
              The court concluded  that the jury instructions were
              not erroneous.

              With respect to the admissibility of the defendant's
              prior acts, the court rejected defendant's arguments
              that  prior discharges did not tend to  prove  a
              material fact or were too  remote. Rather,  the court
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found  that such  discharges tended  to prove
familiarity and knowledge because they were the
result of the same drum  cleaning activities,  and
because such  prior acts  were so similar to the
present violations and defendant's knowledge of the
CH20's industrial waste had not changed,  the fact
that the prior acts had occurred seven years before
did not make them too remote. The court affirmed
the convictions.

       4.  Ninth Circuit upholds sewage sludge
          hauler's sentence and conviction for
          aiding  and abetting  the  unlawful
          disposal  of  sewage  sludge,  for
          conspiracy and mail fraud:

United States v. Cooper,  No. 97-50296  (9th Cir.
Apr. 9, 1999).

Defendant Gordon Paul Cooper was a part owner
of Chino Corona  Farms  (CCF)  a company  that
handled sewage sludge generated by San Diego
wastewater treatment plants.  Under its contract
with the City, CCF removed sewage sludge for a
fixed amount per ton. CCF was required to submit
weighmaster certificates for each truckload hauled,
to obtain City approval to haul  to a proposed use or
disposal site and to submit bills of lading to show
each truckload's ultimate destination. The contract
did not refer to the City's NPDES permit issued by
the California Water Quality Board, which required
the City to give prior written notice of any planned
changes in its  sewage sludge  use or  disposal
practice and to regularly  report  on its  sewage
sludge disposal, describing the location, the rate of
application  in  pounds  per acre per year  and
subsequent uses of the land. Soon after beginning
work, with City and Water Quality Board approval,
CCF began shipping city sewage sludge to Mexico.
When logistical  problems arose, Cooper switched
disposal sites, without  notifying the City or the
Water Quality Board, to a California farm.  At the
same time Cooper was land applying the  sewage
sludge at the new site, CCF continued to receive
weighmaster certificates indicating that the sludge
was  being shipped to  Mexico and sent the false
certificates to the City to support its invoices.
              The City subsequently discovered that Cooper had
              been hauling sewage sludge to the new site and
              that the weighmaster certificates were false and
              canceled the CCF contract.  Cooper resigned, was
              investigated by the FBI, indicted, and after a jury
              trial, convicted of conspiracy, aiding and abetting
              the unlawful disposal of sewage sludge and mail
              fraud related to his involvement in the disposal of
              sewage sludge.  After a sentencing hearing, the
              district  court adopted  the  presentence report's
              recommendations  and  sentenced Cooper to fifty-
              one months' imprisonment.

              Cooper appealed,  arguing the  following: that he
              complied  with  Federal regulations  governing
              sewage sludge; that he could not be  criminally
              liable for violating  an NPDES permit  to which he
              was not a party;  that the CWA  was  void for
              vagueness; that the prosecution failed to disclose
              an exculpatory  FBI report; that a  government
              witness falsely testified that he  had no agreement
              with the government; that the prosecutor committed
              misconduct during final argument; and  that the
              district court improperly enhanced his  sentence.

              The  Ninth  Circuit rejected each of  Cooper's
              arguments  and   affirmed  the  conviction  and
              sentence based on the following analysis.   First,
              stating  that by  their  own  terms the  Part  503
              regulations and the CWA do not usurp local control
              over sewage sludge disposal decisions, the Ninth
              Circuit  rejected Cooper argument that he did not
              need City or Water Board  approval to apply the
              sewage sludge at  the farm  site because the Part
              503 standards preempted or superceded the notice
              requirements in the City's NPDES permit and that
              compliance with Part 503 relieved him of the duty to
              comply with the terms of the City's NPDES permit.
              Second, addressing Cooper's argument that he
              could not  be held liable for violating the  City's
              NPDES permit  because he  was not  a  party
              thereto, the  court   disagreed,  stating  that
              § 309(c)(2)(A) imposes criminal liability on "any
              person who knowingly violates ...  any permit
              condition  or limitation implementing any of
              such sections [of the Clean Water Act] in  a
              permit issued under" §  402.   Citing United
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States v. Brittain. 931 F.2d 1413 (10th Cir. 1991)
and United States v. Iverson. 162 F.3d 1015 (9th
Cir 1994), the court  held that the phrase "any
person"  was  broad  enough  to  include  both
permittees and nonpermittees. Third, regarding
the "knowledge"  requirement  necessary for a
criminal conviction, the Ninth Circuit held that there
was  ample evidence  that Cooper knew of  the
NPDES permit and its application to his conduct,
making him liable under § 309(c)(2).  Fourth, the
court rejected Cooper's contention that §§ 309
and  402 should be considered  "void  for
vagueness" because the  provisions do not
distinguish between different grades of sewage
sludge.   Finally,  the court  rejected Cooper's
argument that CCF's contract with the City required
CCF to comply with the later enacted Part 503,
stating that Cooper's  actions  did not comply with
the new regulations because  the new regulations
did not supercede the City's NPDES permit.

After rejecting several  evidentiary and procedural
challenges by Cooper regarding the admissibility of
evidence, witness testimony and  allegations of
prosecutorial misconduct during closing arguments,
the court upheld the district court's interpretations of
the Federal Sentencing guidelines, finding that the
court's application of the facts to the guidelines and
corresponding   enhancement decisions to  be
appropriate.

       5.  District court denies motion by CWA
           defendant to suppress evidence as
           unconstitutionally obtained:

United States v. Johnson, et al.,  1999 U.S. Dist
LEXIS 9432 (June 18,  1999).

This  motion was one of several  brought in a
criminal action involving eleven defendants charged
with  31  counts  of criminal violations, including
conspiracy to violate the CWA; violations of NPDES
permit conditions for  failing to  provide proper
operation and  maintenance  and failing to take
samples  and perform  other required analyses;
making false statements; witness tampering; and
obstruction  of the criminal investigation. Prior to
              trial, one of the defendants, Glenn Kelly Johnson,
              made a motion  to the  court to suppress  oral
              evidence   that  Johnson   claimed   was
              unconstitutionally  obtained.   The  government
              opposed the motion.

              Johnson was not formally arrested.  In his motion,
              however, he claimed that during the exercise of the
              valid search warrant at his place of employment,
              the government "effected an unconstitutional arrest
              of his person" through the use of a large number of
              armed  agents to execute the  search  warrant.
              Through this  "thinly veiled threat of violence,"
              Johnson alleged that the government obtained oral
              statements from him that he contended "may lead
              to other evidence that the prosecution might use at
              trial."   The government contended that at the
              beginning  of  the execution of  the warrant,  all
              employees were  informed that they were free to
              stay on or leave the premises at their discretion and
              that several employees did actually leave.

              The district court's analysis focused on whether
              the  facts  alleged by Johnson constituted  a
              "custodial   interrogation."   If   the  court
              determined   that  Johnson   was   in   the
              government's custody at the time he made his
              statements,  then such  statements would  be
              considered unconstitutionally obtained.

              The court first stated that the Supreme Court in a
              line of cases has defined a "custodial interrogation"
              as "questioning initiated by law enforcement officers
              after a  person has been  taken into custody"  and
              that a person is "in custody" when he is formally
              arrested or when a  reasonable person in  the
              suspect's position would understand the situation to
              constitute a restraint on his freedom of movement
              that  is consistent with  the  constraint  typically
              associated with formal arrest."  The court stated
              that the relevant inquiry to determine whether
              there has been  such a  restraint is  how  "a
              reasonable person in  the suspect's position
              would  have  understood the situation," with a
              "reasonable person" being "a  person who is
              neutral to the purposes of the  investigation -
              that  is, neither  guilty of  criminal conduct or
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overly apprehensive nor  insensitive to the
seriousness of the circumstances." The court
added that the key issue "was not what did the
defendant think was happening to him when he
gave the damaging information, but what would the
reasonable person have thought under the same
circumstances."

Turning to relevant case law, the district court
stated that the Fifth Circuit, under United States
v.  Paul.  142 F.3d 836 (5th Cir  1998), United
States v. Fike. 82 F.3d 1315 (5th Cir. 1996), and
United States v. Bengivenga. 845 F2d 593 (5th
Cir 1988), had formulated a four-factor test to
determine  when  questioning  amounts to
custodial interrogation:  1)  the  length  of the
detention  and questioning; 2) whether the
interrogation took place in a private or public
setting; 3) the number of government agents
conducting  the  interview;   and  4)  the
surrounding circumstances of the detention.

Applying these factors, the district court found
that the defendant was not in the custody of the
government at the time of his questioning.
Thus,    his   statements  were   not
unconstitutionally obtained.  The court focused
on the fact that Johnson's detention was brief, that
the  questions  were  asked  at  his place of
employment, that the number of agents used  in
executing the warrant was reasonable,  and that the
circumstances surrounding the alleged arrest, for
example, the fact that Johnson was informed that
he was free to leave the premises and  the fact that
the warrant was executed during the workday,
militated against a finding that he was in custody.
The court concluded by stating that even if Johnson
was in custody at the time of his statement, his
questioning by government officials did not amount
to  an interrogation.  Based on this analysis, the
district court denied Johnson's motion.

    I.  Section  311   (Oil   and   Hazardous
       Substance Liability)

       1.  District court holds that § 311 is not
          the  exclusive CWA enforcement
                        authority available  to  address  an
                        accidental spill  of  petroleum,  but
                        that  §  309  also  provides  such
                        authority:

              United States v. Texaco Exploration & Production
              Co., Case  No. 2:98-CV-0213S;  United States v.
              Mobil Exploration  and Production. Co., Case No.
              2:98-CV-0220S (May 27, 1999, D. Utah).

              The  U.S.  brought  claims  against defendants
              Texaco  and  Mobil  that alleged  defendants'
              "pipelines and onshore facilities ruptured, leaked,
              and/or overflowed causing  oil and/or produced
              water to spill into the environment" in violation of §§
              309 and 311 of the CWA.  Defendants moved to
              dismiss the claims brought under § 309 of the
              CWA.    Defendants  argued  that the  remedial
              schemes set forth in §§ 309 and 311 of the CWA
              are mutually exclusive, and that § 309 applied only
              to   "chronic,   continuous,   and   anticipated
              discharges..."  that  can  be  controlled through
              treatment and can be regulated through the "CWA's
              discharge permitting program."

              Defendants argued that  because the discharges
              here were  not anticipated, were not from typical
              point sources, and were not amenable to NPDES
              permitting,  § 309  should  not apply.  Defendants
              made three primary arguments.

              First, defendants argued that because § 309 does
              not  enumerate   §  311  as within  its  basic
              enforcement framework,  and  because §  311
              proscribes  the discharge of oil and hazardous
              substances (including providing its own definitions),
              § 311 "governs enforcement of the Spill Program."
              The court  did not agree. The  court observed
              that nothing in the CWA specified that §§  309
              and 311 were mutually exclusive, but that the
              Act did specify  that a  person could not  be
              subject to  civil penalties under both §§ 309 and
              311, which would not be possible if they were
              mutually exclusive. The court further observed
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that § 309(a)(3) authorizes actions for injunctive
relief for violations of § 301 (a) generally, and
that §  301 (a) applies  to  any person who
discharges a pollutant, not just permittees.

Second,  defendants  argued   that  the  1978
amendments to § 311  of the CWA that excluded
discharges that were in compliance with a permit
indicated   Congresses'   intent  to  address
unanticipated discharges under § 311  exclusively.
The court allowed that this argument supported
defendants' position to some degree, but found that
the amendments did not go so far as to suggest
that § 311 was  intended to be "the exclusive
remedy for accidental spills."

Finally, defendants argued that case law supported
their position,  however, the court observed that
defendants cited no case in which a § 301 or § 309
claim had been dismissed on the grounds that §
311 was the exclusive  remedy for a "classic spill."
The court noted that in Marathon Oil v. U.S. EPA,
No. 97CV-267D (D. Wyo. Aug. 20,1998) the district
court rejected defendants' argument.   It  also
observed that in United States v. Hamel, 551 F.2d
107 (5th Cir.  1977),  the court concluded that
discharged  gasoline was  a pollutant  and §§ 301
and 309 were  alternative  provisions.  The  court
added that if § 309 did  not  apply  to an
accidental discharge, then a whole category of
spills (i.e., accidental spills from point sources)
could  pollute   the   Nation's  waters  with
"impunity."

       2.  District court upholds $5,000 CWA
          penalty assessment imposed by U.S.
          Coast Guard against an  oil terminal
          facility that discharged  a harmful
          quantity of oil into an adjacent bay
          based on finding that Coast Guard's
          determination was  supported  by
          substantial   evidence   in   the
          administrative record and was not
          an  abuse of discretion:
              BP Exploration & Oil, Inc. v. U.S. DOT and USCG,
              44 F. Supp. 2d 34 (D.D.C. 1999).

              In this matter, BP Exploration & Oil, Inc. challenged
              the Coast Guard's assessment of a $5,000 penalty
              under the CWA for discharging a harmful quantity
              of oil from its oil terminal facility into adjacent Curtis
              Bay.   CWA  Section  311(b)(3)  prohibits the
              discharge of oil in harmful quantities into navigable
              waters, with "discharge" defined to include "spilling,
              leaking, pumping, pouring, emitting, emptying, or
              dumping...." Section 311  does, however, exempt
              certain  discharges  from  coverage  if  such
              discharges fall within one of three exemptions set
              out in Section 311 (a)(2). The exemption relevant to
              this case was "Exemption C," which provides that
              "continuous or anticipated intermittent discharges
              from a point source, identified in a [NPDES permit
              or  application], which  are  caused  by events
              occurring within the scope of relevant operating
              systems"  are  not  discharges  prohibited under
              Section 311.   EPA  regulations  at 40  CFR
              117.12(d)(2)(iii) provide  that  a  discharge  is
              permitted under Exemption C if it  is caused  by "a
              control problem, an operator error,  a system failure
              or malfunction, an equipment or system startup or
              shutdown,  an  equipment wash,  or a production
              schedule  change, provided that  such upset or
              failure  is not  caused by  an on-site  spill  of  a
              hazardous substance."

              BP's terminal  included  an Oil  Water Separator
              (OWS), a storm sewer line, storage tanks and a
              truck-loading ramp.  The storm sewer line carried
              storm  water and entrained oil from nearby storage
              tanks and the truck loading rack to the OWS.  The
              incident giving  rise to the violation occurred when
              heavy  rains caused BP's storage tank areas to
              flood, prompting BP to drain the storage tank areas
              into the OWS.  Simultaneously, a  BP customer
              spilled  oil on  the truck loading rack.   While the
              storage tanks  were  draining, stormwater flowed
              through the OWS at a rate of approximately 1,865
              gallons per minute (gpm), with oil entering the bay.

              The Coast Guard initiated civil proceedings against
              BP  for illegally discharging oil.  At hearing, BP
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argued that the discharge resulted from "operator
error" when BP employees  disturbed already-
separated oil in  the OWS during their attempt to
cleanup the oil with absorbent pads.  Accordingly,
BP argued that Exemption C under CWA Section
311  should apply.   Both  parties agreed in  the
administrative proceeding that the OWS functioned
most efficiently at a flow rate of 300  gpm, and at
that  rate,  oil  would  not  collect in the third
compartment and subsequently be discharged to
receiving  waters.  Although the  hearing officer
found that the cleanup efforts did contribute to the
problem, he concluded that the increased flow rate
caused the oil spill and assessed a $5,000 penalty.
BP appealed the penalty assessment to the Coast
Guard Commandant, who found that Exemption C
did not apply because the record did  not indicate
that BP's OWS was designed to, nor was it capable
of, processing the spilled oil and rainwater.  BP paid
the penalty and  filed an action seeking a  refund.
Both parties submitted for summary judgment, with
the district court ruling as follows.

First  addressing   Coast  Guard  jurisdictional
arguments, the court rejected the contention that
it lacked  jurisdiction to hear the case because
the CWA has no refund provision and that BP
failed  to  identify any  waiver of sovereign
immunity that would permit its refund action,
stating that the  Commandant's decision to
impose a penalty constituted a "final  agency
action," that BP properly filed a notice of appeal
under Section 311(b)(6)(G)(i), and that BP was,
therefore, entitled to a review of the decision
under  the Administrative Procedure   Act, 5
U.S.C.  Section  704.  The  court also stated that
Section 311(b)(6)(G) expressly permits any person
against whom a penalty has been  assessed to
obtain review of the assessment in the U.S. District
Court for the District of Columbia, and that BP had
followed all procedural requirements necessary to
obtain  this  review.  Next,  regarding  the Coast
Guard's argument  that BP's  action was moot
because it had already paid the  penalty, the court
held  that BP was under a statutory and regulatory
obligation to make the  payment immediately and
              that such action did not preclude it from taking the
              action under Section 311(b)(6)(G).

              The court then turned to BP's  challenges to the
              Coast Guard's enforcement and penalty decisions.
              First, regarding BP's allegations that the Coast
              Guard improperly relied upon its "Marine Safety
              Manual"  in  its  regulatory and  enforcement
              decision making because the Manual was not
              promulgated in accordance with the notice and
              comment  requirements the  APA,  the  court,
              noting that while APA Section 553 expressly
              requires agencies to afford notice and comment
              of a proposed rulemaking and an opportunity
              for public comment prior to promulgating  a
              "substantive rule," the issuance of "interpretive
              rules and policy statements and guidance" was
              not subject to these same requirements. The
              court  concluded that  the Manual was  not
              intended  to be  a  "binding"  document, and,
              therefore, the Coast Guard was not required to
              follow APA procedures before relying  on the
              Manual.

              Next, the court turned to BP's contention that the
              Coast Guard's penalty decision  was not based on
              substantial evidence in  the record and was an
              abuse of  discretion because the hearing  officer
              failed to consider evidence related to the flow rate
              of the OWS. The court stated that under Section
              311 (b)(6)(G), a court can not overturn a decision
              imposing a civil  penalty "unless there  is not
              substantial evidence in the record, taken as a
              whole, to support the finding of a violation or
              unless the Administrator's or the  Secretary's
              assessment of the penalty constitutes an abuse
              of discretion." The court also stated that the
              "substantial   evidence"   and   "abuse  of
              discretion" standards mirror those in the APA
              and should be interpreted in the same way. The
              court noted that for it to find that there was not
              "substantial evidence"  in the record for the
              Coast Guard to make its decision, it must find
              that there was "no reasonable interpretation of
              the evidence could justify it."  In addressing the
              "abuse of discretion" argument, the court stated that
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its review must be "highly deferential" to the Coast
Guard, and, although its inquiry into the facts must
be "searching and careful," it was "not empowered
to substitute its judgement"  for that of the Coast
Guard.  Based on these standards of review, the
court determined that the Coast Guard considered
the relevant evidence submitted by BP on the
applicability of Exemption C to  the facts of the
discharge and simply rejected BP's position, based
largely on  testimony that indicated  that increased
flow rate caused the discharge into Curtis Bay, not
operator error.   The court  also found  that the
Commandant's  imposition of the $5,000 penalty
was not an abuse of discretion.

       3.  ALJ  assesses  a civil  penalty  of
          $24,876 for  violations  of  SPCC
          requirements  and  oil  discharge
          prohibitions:

In the Matter of Pepperell Associates, 1999 EPA
ALJ LEXIS (Feb. 26, 1999).

EPA Region  I  filed a complaint  that charged
Pepperell Associates with violations of the CWA §
311(j)(1) or, in the alternative, § 307(d).  Count I of
the complaint charged that respondent operated a
facility regulated under the Oil Pollution Prevention
regulations, 40  C.F.R.  Part  112, without a Spill
Prevention Control and  Countermeasure  Plan
(SPCC Plan) from December 1985 to July 14,1997.
Count II charged that respondent failed to prepare
an SPCC Plan from October 16,  1997 to April 16,
1998, and failed to implement the SPCC Plan within
six months of installing a new above-ground oil
storage tank  on October 16,  1997.   Count III
charged that  respondent  on October 17, 1996,
discharged oil into or upon a navigable water of the
U.S. in  a  quantity that was  determined may  be
harmful or,  in  the alternative,  that respondent
discharged oil  into a POTW  in  violation  of  a
Pretreatment Standard. An  Order  on the parties'
cross-motions for accelerated decision entered on
October 9, 1998 was incorporated by reference,
and any inconsistent findings were superseded by
the findings in this decision.
              An oil spill on October 17, 1996 at respondent's
              facility, Pepperell Mill, resulted in 350 to 400 gallons
              of number six heating oil reaching Gully Brook and
              Androscoggin River.  Approximately 300 gallons
              were recovered from Gully Brook and Androscoggin
              River,  while 50  to  100  gallons   remained
              unrecovered. As a result of the spill, 100 to 200
              gallons   reached  the  Lewiston  Wastewater
              Treatment Plant.   The POTW, designed to treat
              domestic waste, did not have the capacity to treat
              industrial waste such as water contaminated with
              number  six heating oil.  In order to maintain the
              integrity  of the treatment process, the POTW was
              forced to decelerate severely its treatment process
              while  oil  was   removed  from   the  incoming
              wastewater, wet wells, and primary sedimentation
              basins.   No noticeable oil  passed through the
              POTW into the Androscoggin River.

              The ALJ concluded that respondent violated the
              CWA §  311(j)(1) and the implementing SPCC
              regulations for the period from December 1985
              to October 31,1996 for its failure to prepare and
              implement an SPCC Plan.  From November 1,
              1996 to July 14, 1997, respondent's facility was not
              subject  to   EPA  jurisdiction    because   the
              underground buried oil storage  capacity of the
              facility which could  reasonably  be expected to
              discharge to navigable waters was 30,000 gallons,
              which was  below the jurisdictional threshold of
              42,000 gallons. Thus, respondent was not liable for
              such violations during that period.  Since the facility
              was  not subject  to EPA jurisdiction for SPCC
              regulation  purposes from November 1, 1996 to
              October  16, 1997, when a new  20,000 gallon
              above-ground oil  tank was installed, respondent
              was  not required  to prepare and  implement an
              amended SPCC Plan as opposed to a new SPCC
              Plan  during this period. Thus, respondent was not
              liable for an SPCC Plan  violation as alleged in
              Count II of the complaint.  The ALJ also concluded
              that respondent violated the CWA § 311(b)(3) on
              October  17,1996 by discharging oil into a  navigable
              water of the U.S. in a quantity that was determined
              to be harmful.
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A  civil  administrative penalty  of $15,385  was
assessed for respondent's violation of the CWA §
311(j)(1) and the implementing SPCC regulations
for failure to prepare and implement an SPCC Plan;
a penalty of $9,491 was assessed for respondent's
violation of § 311(b)(3) for its discharge of oil into
navigable water as alleged in Count III for a total
civil administrative penalty of $24,876.

II.  Other Statutes

    A. Oil Pollution Act (OPA)

       1.  Fourth Circuit holds that, under the
          OPA, compensable removal costs
          and damages are those that result
          from  the  discharge   of   oil  or
          substantial threat of discharge into
          navigable  waters  or   adjacent
          shorelines:

Gatlin Oil Company, Inc. v. U.S. DOT, 169 F.3d 207
(4th Cir. Mar. 2, 1999).

Gatlin Oil Company sought compensation from the
Oil Spill Liability Trust Fund for  oil  spill related
damages  caused by vandals.   Gatlin sought
$850,000 but the U.S. Coast Guard allowed only
$6,959.  The District Court for the Eastern District
of North Carolina set aside the Coast Guard's
decision  and  remanded the case for further
consideration.   The  United  States appealed the
district court's  remand  of the Coast  Guard's
decision.

On appeal, the central issue was which damages
were  compensable  under § 2702  of the  OPA.
Gatlin argued  that it was entitled to costs that
resulted from the "incident," as that term is defined
in the OPA.  The Coast Guard argued that only
costs  and damages that result from any such
"incident" (i.e., the discharge or substantial threat of
discharge  into navigable  waters  or  adjacent
shorelines) were compensable. The court agreed,
and held that the compensable removal costs
and damages were those that resulted from the
discharge or substantial threat of discharge into
              navigable  waters  or  adjacent  shorelines.
              However,  the  court observed  that  Gatlin was
              entitled to reasonable compensation, including full
              compensation for removal costs the federal on-site
              coordinator determined were consistent with the
              N.P., and for cost resulting from actions he or she
              directed.   The court also noted that Gatlin was
              entitled to  compensation for loss of earnings and
              earnings capacity caused by the need to comply
              with directions. The court found that Gatlin was not
              entitled to compensation for fire damage, because
              there was no  evidence that the fire  caused  or
              threatened to cause the discharge of oil. Nor did
              the court allow compensation for Gatlin complying
              with  directives from State  officials,  since  such
              actions were  not ordered by the federal on-site
              coordinator or determined to be consistent with the
              N.P.    The court found that Gatlin's costs  of
              assessing   damages  should  have  been
              compensated provided these were reasonable, but
              that Gatlin was not due  interest because there was
              no clear waiver of sovereign immunity for interest
              under the OPA. The Fourth  Circuit Court vacated
              the  district court's judgment, and remanded the
              case for further proceedings.

                     2.  District court holds that, in the case
                        of abandonment, the OPA provides
                        for liability of  both previous and
                        current lessees/operators:

              United States v. Bois D' Arc Operating Corp., 1999
              U.S. Dist. LEXIS 3199 (E.D. La.  Mar. 9, 1999).

              Plaintiff United States sought the recovery of costs
              on behalf  of the oil  spill liability trust fund from
              defendant Bois D' Arc (BDA) for two discharges of
              crude oil and petroleum from a capped but leaking
              well and abandoned platforms located on land
              leased  by  defendant.  The United States sought
              $95,331,  and  in this  action,  sought  summary
              judgment.  The court observed that the well and
              tank battery platform were off-shore facilities and
              were  located  within  defendant's  lease  area.
              Therefore, the court found that defendant BDA was
              a responsible party under the OPA.  BDA argued
              that the capped well and platform constituted an
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abandoned off-shore facilities, and that the OPA,
under 33 U.S.C. § 2701 (32)(F), provides that in the
case  of  abandonment,  the responsible  parties
immediately prior  to  abandonment remain  the
responsible  parties.   The court  viewed this
argument  as asserting that Section (C)  (which
defines responsible party for off-shore facilities) and
Section (F) (which defines responsible party in the
case of abandonment) are mutually exclusive. The
court disagreed. Based on the language of the
OPA, the legislative history  of the Act, and
Congresses desire in passing the Act to expand
government oversight of  cleanups, the court
found  that  Section (F) "expands, rather than
contracts, the definition of responsible party."
Based on this finding, the court held that BDA was
a responsible party under the  OPA.  BDA also
argued that the U.S. Coast Guard did not comply
with the N.P. in  responding to the spill by plugging
the well, but the court again disagreed. The court
granted the United States'  motion for summary
judgment.

    B. Emergency Planning  and  Community
       Right-To-Know Act (EPCRA)

       1.  EAB finds that use of EPA self-
           disclosure   settlement  policy  in
           litigation  was  inappropriate, but
           affirms  civil   penalty   amount
           calculated based on policy due  to
           concerns regarding fairness:

In re:  Bollman Hat Company, 1999 EPA App.
LEXIS 4 (Feb. 11, 1999).

EPA appealed an initial decision that addressed the
proper civil penalty for seven violations of EPCRA
(i.e., failing to file toxic chemical release forms for
several chemicals over several years). The central
issue on appeal arose out of the EPA Region Ill's
use of the  self-disclosure  policy—a settlement
policy—to calculate  the  penalty  reductions for
respondent's self-disclosure of the violations. In the
original complaint, EPA proposed a civil penalty of
$39,716.  The ALJ applied the self-disclosure policy
and concluded  that respondent had satisfied  all
              nine of the criteria needed to obtain a complete
              waiver of the gravity-based penalty and granted a
              waiver of 100 percent of the gravity-based penalty.
              Based on this finding, the ALJ imposed a penalty of
              $8,166.

              On appeal, Region III argued that the ALJ erred in
              applying the self-disclosure policy to reduce the civil
              penalty for counts I-V  to $0.  Alternatively, the
              Region argued that even if the self-disclosure policy
              was  property  applied,  the facts did not support
              reduction in the penalty beyond that given in the
              complaint. Lastly, the Region maintained that ALJ
              erred in sanctioning  the Region through a penalty
              reduction  of 25  percent  for counts VI and VII
              because the Region  had denied respondent a due
              process   right  to litigate  the  use of the  self-
              disclosure policy.  Respondent opposed each of the
              grounds for appeal.

              The EAB observed that the Region was correct
              that the self-disclosure policy should not have
              been applied to  a litigated penalty assessment
              and  that such use was  inconsistent with the
              express terms of the policy.  The EAB observed
              that such application did not promote consistency
              and was  a disincentive for settlement.  The  EAB
              stated that "to sustain  the Region's appeal, we
              would be required to find that it was clear error for
              the  Presiding  Officer  to  have relied  upon the
              Region's   own misreading,  misapplication,  and
              misinterpretation  of the Self-Disclosure Policy. We
              do not believe that this finding would be justified,
              particularly where the Region was unwilling to admit
              in its post-hearing brief that its use of the  self-
              disclosure policy  in this litigation was clear error."
              The  EAB thus  found,  that although the ALJ's
              reliance   on  the   policy was  not  unreasonable,
              because it did  not want to promote further improper
              application, the EAB declined  to adopt the ALJ's
              penalty rationale. The  EAB deemed the penalty
              amount calculated by the ALJ appropriate and fair,
              and stated that although respondent had not been
              denied due process,  Region Ill's failure to disclose
              use  of  the settlement policy  was  unfair  and
              inappropriate.
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       2.  EAB holds  that  "justice"  penalty
           adjustment  factor  may  only  be
           applied to recognize environmentally
           beneficial  projects   when   other
           penalty   adjustment  factors   are
           insufficient  or   inappropriate  to
           achieve fair and just  result:

In re:  Catalina Yachts, Inc., 1999 EPA App. LEXIS
7 (March 24, 1999).

The  U.S. EPA Region  IX and Catalina Yachts
appealed the assessment of a $39,792 civil penalty
for seven violations  of EPCRA § 313 reporting
requirements.  The Region had sought $175,000.
The ALJ had reduced the gravity-based penalty
amount (calculated by the ALJ to be $173,274)
based on Catalina's  "attitude"  (reduction  of
$51,982) the delisting of one  chemical of  concern
(acetone)  (reduction  of  $12,500),  and   in
consideration of "other  matters  as justice may
require" (reduction of $69,000). The adjustment for
the "justice" factor was based on  environmentally
beneficial activities undertaken by Catalina.

On  appeal, Catalina  argued  that the ALJ  erred
because he rigidly applied EPA's penalty policy, did
not fully account for the statutory penalty factors,
and improperly limited credit for the environmentally
beneficial projects.  EPA argued that the ALJ erred
because   there  was  inadequate   support  for
downward adjustments for the "cooperation" and
"compliance" components of  the "attitude" factor;
and the adjustments for environmentally beneficial
projects were not factually supported in the record
and were inconsistent with the EAB decision in In.
re Spang & Co.. 6 E.A.D. 226 (EAB 1995).

The EAB found no error with regard to the ALJ's
use of the penalty policy or consideration of the
statutory penalty factors. The EAB found that the
ALJ had not applied the ERP as a rule, but  rather
had used both the ERP and  the statutory factors
listed  in TSCA § 16 to calculate the penalty, and
had  in  fact  made  adjustments  based  on  the
statutory factors not contemplated in the ERP.
              In  examining  application of the statutory penalty
              factors, the EAB found that the ALJ's application of
              the penalty policy provided an adequate basis for
              the gravity-based penalty.  In addition,  the Board
              found no error in the ALJs refusal to consider the
              fact that Catalina submitted chemical use data to
              local agencies and that Catalina had conducted
              public outreach. The EAB also upheld the delisting
              adjustment, having found no basis  for  Catalina's
              desired 80 percent reduction of the  gravity-based
              penalty for the acetone violations. With regard to
              adjustment factors, the EAB focused its discussion
              on "attitude"  and "other matters  as justice  may
              require."  With regard to attitude, the EAB upheld
              the 30 percent downward adjustment imposed by
              the ALJ. The  EAB found that the record  supported
              the  ALJ's  finding   that  Catalina had   been
              cooperative in most respects. The EAB observed
              that cooperation during settlement  was just one
              aspect that should be considered in determining
              whether an adjustment for cooperation  should be
              granted.  As  for compliance, the  EAB similarly
              found the record supported the ALJ's adjustment.

              Finally, with  respect to the ALJ's reduction for
              Catalina's environmentally beneficial  projects,
              the EAB found it was error for the ALJ to have
              reduced  the  penalty based on these  projects.
              The EAB cited Spang  for the proposition that
              "use of the justice factor should be far from
              routine,   since  application   of   the  other
              adjustment factors normally produces a penalty
              that is fair and just." The Board continued,  " [i]f,
              and  only  if,  despite application  of  the  other
              adjustment factors,  an  assessed penalty  is so
              disproportionate to the violations at issue as to be
              manifestly unjust, should a presiding officer apply
              the justice factors  to recognize environmentally
              beneficial projects." The Board found that here,
              because Catalina had received the full benefit of
              the "attitude" adjustment factor,  as  well as  a
              significant adjustment  for the  delisting of
              acetone, it believed the resulting penalty of
              $108,792 was fair and just. The EAB reversed the
              ALJ  $69,000  downward  penalty adjustment for
              "other matters as justice may require" and ordered
              Catalina to pay a civil  penalty of $108,792.
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The EAB observed in a footnote that it questioned
whether  two  of three  projects  qualified  as
environmentally beneficial projects. In one case, it
was  not clear that the project  affected either
acetone or styrene, the chemicals that triggered the
underlying violations. In the other, the costs and
benefits of the project  were  largely speculative.
The EAB observed  that the ALJ  had improperly
considered the prospective costs and benefits of a
program that had been  in place only four months
and covered only 30  percent  of Catalina's gel
coating activities.

    C. Clean Air Act (CAA)

        1. D.C.   Circuit   remands   revised
          NAAQSs for participate matter and
          ozone based  on  unconstitutional
          delegation of legislative authority:

American Trucking Ass'nv. U.S.  EPA, No. 97-1441
(D.C. Cir. 1999).

Petitioners challenged  numerous  aspects of the
final  revised primary   and  secondary  National
Ambient Air Quality  Standards  (NAAQS) for
particulate matter (PM) and ozone, which had been
promulgated during  July 1997.  62  Fed. Reg.
38,652 (1997) and 62  Fed. Reg.  38,856 (1997),
respectively. This summary focuses only on three
of the issues raised by petitioners:  that EPA's
construction  of  §§  108 and 109  of  the CAA
constituted  an  unconstitutional  delegation  of
legislative power;  that the NAAQS revisions violated
the Unfunded Mandates Reform Act (UMRA); and
that the  NAAQS revisions violated the Regulatory
Flexibility Act (RFA).

Petitioners asserted that with regard to both the
PM and the ozone rules, EPA had construed §§
108 and 109 of the CAA "so loosely as to render
them unconstitutional delegations of legislative
power." The court agreed  and  remanded the
regulations  to EPA for further  consideration.
(The court did not vacate the new ozone standards
because the court found they could not be enforced
under CAA § 181(a). Ultimately, based on issues
              not discussed here, the court vacated the coarse
              PM standards, and it invited briefing on the remedy
              for the fine PM standard). The court observed that
              § 109(b)(1) of the CAA provides  that  EPA  must
              establish the PM and ozone NAAQSs at a  level
              "requisite to protect the  public  health"  with  an
              "adequate  margin of safety."   The court  then
              found, that although the criteria used by EPA in
              assessing health effects for purposes of setting
              the NAAQSs for these non-threshold pollutants
              were sufficient (i.e., they focused the inquiry on
              the pollutants'  effects  on public health),  no
              intelligible  principle  for  distinguishing
              acceptable levels from unacceptable levels had
              been derived by EPA from the CAA.  The  court
              observed  that,   in  effect,   EPA  had   merely
              established that less stringent NAAQS levels would
              allow greater harm and more stringent levels would
              allow less harm, without articulating or establishing
              a rationale for why the  selected level satisfied the
              statutory standard.   The  court stated that  EPA
              "[l]acked determinate criteria for drawing lines" and
              that the Agency had "[fjailed to state intelligibly how
              much is too much."

              The court  discounted the fact that the NAAQSs
              were  recommended  by  the  Clean Air FACA
              because  the  court  concluded  the  FACA's
              recommendations  lacked a sufficiently  specific
              basis.  The court  observed that "the question
              whether EPA acted pursuant to lawfully delegated
              authority is not a scientific one."  The court also
              rejected EPA's argument that the NAAQSs were set
              slightly higher  than  background for the two
              pollutants,  since EPA had "not explicitly adopted"
              this rationale. Additionally, the court rejected EPA's
              argument that the Agency had not adopted a lower
              standard because of the greater uncertainty that
              health effects exist at such lower levels. The  court
              stated that "the increasing uncertainty argument is
              helpful only if some principle reveals how much is
              too much."  Here, the court stated, "[n]one does."

              The court  indicated that here EPA had  claimed
              broader  latitude   than  OSHA  asserted  in
              International   Union,  UAW,   v.   OSHA,
              ("Lockout/Tagoutl")938F.2d1310,1317 (D.C. Cir.
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1991) (Regulations remanded to OSHA for a more
precise definition of § 3(8) of the Occupation Safety
and  Health  Act).  The court  found that  EPA's
approach could justify the selection of any standard,
and was, thus, too unconstrained. The court added
that here, because the standards in question affect
"the whole economy," a more  precise delegation
that at issue in Lockout/Tagout I is required. The
court also distinguished cases cited by EPA that
supported the  proposition that when there  is
uncertainty about the health effects of a pollutant
within a particular range, EPA may make policy
judgments to establish appropriate standards within
that range.  The  court found such cases were not
controlling because they did not involve a claim of
undue  delegation.  The court  also distinguished
South Terminal Corp., v. EPA,  504 F.2d 646 (1st
Cir.  1974)  (rejecting  nondelegation challenge
regarding EPA's  adoption of a plan for preventing
violations of Boston's NAAQSs), since the NAAQSs
were already established and served as the goals
against which the means of compliance (i.e., the
plan) could be assessed.

The dissent by Justice Tatel argued that the court
had ignored the  last 50 years  of Supreme Court
non-delegation jurisprudence, § 109's delegation
was  "narrower and more  principled" than other
delegations upheld by the Supreme Court and this
court,  and the  record  demonstrated that EPA
discretion  was  properly  limited  by  §   109   in
developing the NAAQSs. Judge Tatel identified at
least six Supreme  Court  decisions  that  upheld
delegations of authority similar to § 109 (e.g., "to
regulate broadcast licensing in 'the public interest',"
"to fix 'fair and equitable' commodity prices," and "to
regulate new drugs that pose an 'imminent hazard
to public  safety'.")    He also  observed  that,
consistent with these Supreme Court decisions, the
First Circuit had  rejected a similar  nondelegation
challenge  to  the  CAA's "requisite to protect the
public health" language. South Terminal Corp., v.
EPA. 504  F.2d 646 (1st Cir.  1974).  Judge Tatel
added  that  he  disagreed that the  decision  in
Lockout/Tagout I required  a  different result.  He
viewed the standard in § 109 of the CAA as more
precise than the standard in  Lockout/Tagout  I.
              Finally, he  stated and  articulated why EPA had
              adhered to  a "disciplined decisionmaking process
              constrained by  the statute's  directive  to  set
              standard  'requisite to protect public health' based
              on   criteria  reflecting  the  'latest   scientific
              knowledge'." Judge Tatel distinguished the issue of
              nondelegation from that of EPA having promulgated
              an arbitrary and capricious standard, and allowed
              that the concerns raised by the court may be better
              viewed under the latter theory.  With regard to
              nondelegation, however, Judge Tatel stated that"
              the Constitution requires that Congress articulate
              intelligible principles." He concluded that "Congress
              has done so here."

              With regard to UMRA claim, petitioners asserted
              that  EPA was required to prepare a Regulatory
              Impact Statement (RIS) when it set the NAAQSs.
              They also argued that EPA's failure to develop a
              RIS rendered the NAAQSs arbitrary and capricious.
              The court rejected both  of these arguments.  The
              court found that even if EPA failed to prepare a
              RIS, UMRA did not provide a basis for staying,
              enjoining, or invalidating an agency rule based
              on such  failure.  In addition, the court observed
              that  a  RIS  would only contain information on the
              costs of implementation, and given  that EPA was
              precluded from considering  costs  in setting  the
              NAAQSs,  no information  in  a RIS could have
              rendered the NAAQSs arbitrary and capricious.

              Petitioners  also  asserted that EPA improperly
              certified that the revised  NAAQSs would not have a
              significant impact on a substantial number of small
              entities, in violation of the RFA.  The court rejected
              this  argument as well,  finding that the  revised
              NAAQSs did  not regulate small  entities  directly.
              Rather, the court observed that it is the States that
              regulate small entities through SIPs.  (See, Mid-Tex
              Elec. Coop.. Inc. v. FERC. 773 F.2d 327, 342 (D.C.
              Cir.  1985).   The  court concluded that EPA's
              certification was not improper.

                  D.  Surface Mining Control and Reclamation
                     Act (SMCRA)
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 Issue 16
Water Enforcement Division
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       1. Court of Federal Claims holds that
          Secretary  of  Interior's  denial of a
          surface  mining permit does not
          result in  a  compensable taking
          where  mining  activity  would  be
          enjoinable as public nuisance under
          State law:

Rith  Energy,  Inc. v.  United States, 1999  U.S.
Claims LEXIS 146 (BNA) 1951 (June 25, 1999).

This takings case arose from the denial of a surface
mining permit by the Department of Interior's Office
of Surface Mining Reclamation and Enforcement
(OSM).   The plaintiff,  Rith  Energy,  was the
prospective  permittee.   Pursuant  to  SMCRA
requirements,  before  proceeding  with mining
operations,  Rith  applied to OSM for a surface-
mining permit.   As  part  of its application, Rith
obtained  soil  samples to determine the level  of
toxicity of the soil to be mined and prepared a Toxic
Materials Handling Plan  explaining  how it would
treat overburden that exhibited a potential to cause
acid mine drainage to an underlying aquifer. Based
on the results  of the  soil  samples  and the
sufficiency of the plan,  OSM  found that  Rith's
operations were  expected to produce little  or no
adverse change in the prevailing hydrologic balance
and  issued  Rith a  permit.    In  response  to
complaints, OSM resampled the overburden  in
Rith's permit area and found  substantially more
environmental  risk  from  the  operation   than
demonstrated by the  sampling submitted  Rith's
permit application. Accordingly, OSM suspended
Rith's permit pending submission of a new handling
plan.    While the  re-permitting  process  was
proceeding, Rith received approval to mine another
portion of it  lease  areas  until ultimately  OSM
ordered Rith to cease all mining operations.  Rith
then submitted a  series of handling plans to  OSM,
each of which was rejected, and OSM ultimately
denied Rith's final attempt to  obtain  a  permit
revision.

After a series of administrative appeals and judicial
challenges  and  appeals, the  Court  of  Federal
Claims addressed Rith's claims  that OSM's permit
              denials constituted a compensable taking.   The
              court  stated that  in general,  regulatory takings
              cases involve a three part "fairness inquiry." Citing
              Penn  Central Transp. Co. v. New York City, 438
              U.S. 104, 57 L.Ed. 2d 631, 98 S. Ct. 2646 (1978),
              the court noted that under this inquiry, a court must
              examine the character of the government action
              that gave rise to the claimed loss,  the extent to
              which that  action interfered  with  the owner's
              reasonable  investment backed expectations, and
              the extent of the economic harm occasioned by the
              government's actions. The court, citing Lucas v
              South Carolina Coastal Council. 505 U.S. 1003,
              120 L.Ed. 2d 798, 112  S. Ct. 2886 (1992), then
              noted that an alleged regulatory taking  that
              restrains an owner from the beneficial uses of
              his property, even a restraint that bars all such
              use,  cannot  be  the basis of a compensable
              taking where the restraint that is imposed is
              grounded "in the restrictions that background
              principles of the State's law  of property  and
              nuisance   already   in   place   upon   land
              ownership."
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Water Enforcement Division
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Based on this rule,  the  court examined whether
OSM's denial of Rith's mining permit by federal
officials acting  under the authority of SMRCA
paralleled a result that could  have been achieved
under Tennessee nuisance law. The court noted
that if it found that Tennessee nuisance law would
allow the issuance of an injunction restraining Rith
from proceeding with a surface mining operation
given  a finding  that, because of the inadequate
handling plans, there would be a high probability of
acid drainage to the drinking  water aquifer,  which
was the basis for the permit denial, there could be
no compensable taking.

The court found that under the Tennessee Water
Quality Control  Act, Rith would not be issued  a
permit and was  subject to injunctive action for the
adverse  impact  of  its  operations  on  the  State
waters.  The court stated that OSM's denial of  a
mining permit because of the high probability of
acid mine drainage into the aquifer "represented  a
exercise of regulatory authority indistinguishable in
purpose and result  from  that which plaintiff was
always subject  under Tennessee  nuisance law."
Because  Rith's conduct would  constitute an
enjoinable nuisance under State law, the court
concluded that no compensable taking had
occurred.
                                              48

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 Issue 16                         Water Enforcement Division                  September 1999
                                     INDEX OF CASES
American Canoe Ass'n v. U.S. EPA, 30 F. Supp. 2d 908 (Dec. 18, 1998)  	  7
American Trucking Ass'n v. U.S. EPA, No. 97-1441 (D.C. Cir. 1999)	  45
Amigos Bravos v. Molycorp, 1998 U.S. App. Lexis 28567 (10th Cir. 1998)	  11
BP Exploration & Oil. Inc. v. U.S. DOT and USCG. 44 F. Supp. 2d 34 (D.D.C. 1999)	  40
Bragg v. Robertson. 1999 U.S. Dist. LEXIS 9254, 48 ERC (BNA) 1913	  17
Community Ass'n for Restoration of the Env't v. Sid Koopman Dairy: 1999 U.S. Dist. LEXIS
    8348 (E.D. Wash., May 17, 1999) 	  5
Forest Properties, Inc. v. United States, 177 F.3d 1360 (May 18, 1999)	  12
Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 179 F.3d 107;(4th Cir. 1999)	  20
Gatlin Oil Company. Inc. v. U.S. DOT. 169 F.3d 207 (4th Cir. Mar. 2, 1999)	  42
GMCv. U.S.  EPA. 168 F.3d 1377 (D.C. Cir. March 23, 1999)  	  28
Harold Wright v. Lance Dunbar et al.. Civ. No. 97-00137 HG (Hawaii, April 27, 1999)  	  19
Home Builders Ass'n of Greater Chicago v. USAGE, et al., 1999 U.S. Dist. LEXIS 9453
    (N.D. II, June 15, 1999) 	  16
In re:  Bollman Hat Company. 1999 EPA App. LEXIS 4 (Feb. 11, 1999)	  43
In re:  Britton Construction Co., BIC Investments, Inc., and William and  Mary Hammond,
    1999 EPA App. LEXIS 9 (Mar. 30, 1999)	  32
In re:  Catalina Yachts. Inc.. 1999 EPA App. LEXIS 7 (March 24, 1999)	  44
In the Matter ofPepperell Associates, 1999 EPA ALJ LEXIS (Feb. 26, 1999)  	  41
Jones v. City of Lakeland. 175 F.4d 410 (6th Cir. April 20, 1999)	  22
Long Island Soundkeeper Fund, Inc. v. New York City Dep't of Envtl.  Protection, 27 F.
    Supp. 2d 380  (E.D.N.Y., Nov. 23, 1998)	  23
Mamo v. Galiher. 28 F. Supp. 2d 1258 (Dist. Ct.  Haw., Nov. 25, 1998)	  11
Natural Resources Defense Council v. Southwest Marine, 39 F. Supp. 24 1235
    (S.D. Cal. Jan. 27, 1999) 	  21
Natural Resources Defense Council v. Fox, 30 F. Supp. 2d 369 (S.D.N.Y. Nov. 12,  1998)  	  6
Northern California River Watch v. Sonoma County Water Agency, 1998 U.S. Dist.
    Lexis 19921 (9th Cir., Dec.17, 1998) 	  22
Old Timer, Inc. v.  Black-Hawk Central Sanitation District, et al.,  1999  U.S. Dist. Lexis 9366	  24
Palm Beach Isles Ass'n v. United States, 42 Fed. Cl. 340 (Oct. 19, 1998)  	  14
                                            49

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 Issue 16
Water Enforcement Division
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Patterson Farm, Inc. v. City of Britton, 22 F. Supp. 2d 1085 (D. S.D. Sept. 29, 1998)  	  2
Piney Run Preservation Ass'n v. County Comm'rs of Carroll County, 50 F. Supp. 2d 443
    (D. Maryland, May 20, 1999) 	  26
Rith Energy. Inc. v.  United States. 1999 U.S. Claims LEXIS 146 (BNA) 1951  (June 25, 1999)	  47
Smith v. Hankinson. 1999 U.S. Dist. LEXIS 5151  (S.D. Ala. Mar. 31, 1999)	  28
Stone v. Naperville  Park District, 38 F. Supp. 2d 651 (N.D. II. Feb. 17, 1999)	  4
Texas Oil & Gas Ass'n v. U.S. EPA. 161 F.3d 923 (5th Cir. Dec. 17, 1998) 	  9
United States v. Acadia Woods, Civ. Action No. 6:98-0687 (W.D. La.,  Mar. 22, 1999)	  29
United States v. Bay-Houston Towing Co., 33 F. Supp. 2d 596 (E.D. Mich. Jan. 14, 1999)  	  15
United States v. Bois D' Arc Operating Corp., 1999 U.S.  Dist. LEXIS 3199 (E.D. La. Mar. 9, 1999)  . .  43
United States v. Cooper,  No. 97-50296 (9th Cir. Apr. 9, 1999)	  36
United States v. Gulf States Steel. Inc.. 1999 U.S. Dist. LEXIS 8834 (N.D. Ala. June 8, 1999)	   6, 30
United States v. Hartz Construction  Co., Inc., 1999  U.S.  Dist. LEXIS 9126 (N.D. II. June 14, 1999)   3, 19
United States v. Iverson,  162 F.3d 1015 (9th Cir.  Dec. 11, 1998)	  35
United States v. Johnson, et al., 1999 U.S. Dist LEXIS 9432 (June 18, 1999)  	  37
United States v. Krilich. 1999 U.S. Dist. LEXIS 4191 (N.D. II. Mar. 24,  1999)	   1,16
United States v. M/G Transport Services, Inc., 173 F.3d  584 (6th Cir. April 22, 1999)  	  34
United States v. Mobil Exploration and Production. Co., Case No. 2:98-CV-0220S
    (May 27, 1999, D.  Utah)	  39
United States v. Superior Block & Supply Co., 1999 U.S. App. LEXIS 14013
    (2nd Cir. June 22,  1999)  	  33
United States v. Texaco Exploration & Production Co., Case No. 2:98-CV-0213S
    (May 27, 1999, D.  Utah)	  39
United States v.TGR Corp.. No. 171 F.3d 762 (2nd Cir.  Mar. 26, 1999)  	  1
United States v. United Homes.  1999 U.S. Dist. LEXIS 2354 (N.D. II.  Feb. 24, 1999)  	  14
Western Carolina Regional Sewer Authority v. South Carolina Department of Health and
    Environmental Control, No. 98-ALJ-07-0267-CC (June 21, 1999)  	  9
                                             50

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