The courts decision to defer to the DOE on the issue of earthquake safety was a reflection of the court giving a lot of weight and credibility to the decisions of the agency, as stipulated in statute 5 U.S.C. 706(2). Based on the opinion, it appears the DOE performed an assessment of the potential threat an earthquake could have to the environment, but no analysis was done with regards to a terrorist threat. Since it appears the DOE actually analyzed the threat an earthquake could pose, the court decided to show deference to that particular aspect of the agencys decision.
The plaintiffs claimed that the DOE failed to provide the documents requested within a timely manner, as required under 5 U.S.C. 552. The Court held that since DOA eventually provided all of the documents requested, the FOIA claim is moot. The Court also cited Papa v. United States, 281 F.3d 1004 because that Court held that as long as the party receives the documents, the timeless of the receipt of the documents will not be litigated. There did not appear to be any acts of bad faith or FOIA violations by the DOE. Therefore, the appellate court affirmed the lower courts decision that the DOEs compliance with FOIA was adequate.
A facility like this is not a good idea for a highly populated, earthquake-prone area near San Francisco. A biological weapons research laboratory is an extremely dangerous facility. Biological weapons can pose great harm to the population and inflict irreparable damage in a fairly short period of time if the necessary safety and security precautions are not followed. The possibility of the facility being a target of a terrorist threat should be a major concern. If terrorists were able to penetrate that facility, they would be able to inflict a lot of damage considering the concentration of people in the area. The fact that the DOE did not perform an analysis of the effects a potential terrorist threat could have on the area raises the question of whether the facility was going to be built with the necessary safety precautions in place to handle that type of threat.
The court may not think it is a good idea to place the facility in that location, but the role of the court is to only assess whether the DOE performed an adequate EA. The court is required to be highly deferential of the decisions made by the DOE. The court does not have the authority to just say no to the plans of the DOE. The court took into consideration the type of facility being built and the demographic and geological factors of the area when determining that the DOE should assess the potential threat of a terrorist attack. The court was able to utilize its authority to require the DOE to perform a more comprehensive assessment of a terrorist threat, but the court would be exceeding its authority and its limited standard of review if it completely deterred the DOEs plans.
Assignment 8-2
Boone County, Campbell County, and Kenton County in Kentucky are nonattainment areas with ozone (8-hour) pollutants. Boone County, Boyd County, Bullitt County, Campbell County, Jefferson County, Kenton County and Lawrence County in Kentucky are nonattainment areas with particulate pollutants greater than 2.5 micrometers.
The Kentucky Division for Air Quality monitors air quality in the state. The director of the division is John S. Lyons. John Lyonss email address is HYPERLINK mailtojohn.lyonsky.gov john.lyonsky.gov. The office is located at 200 Fair Oaks Lane, 1st Floor, Frankfort, KY 40601 and the telephone number is (502) 564-3999.
Based on the information provided on the Environmental Protection Agency website at, the state implementation plan for Kentucky was last updated on January 10, 2006.
The Kingsford Manufacturing Company located in Metcalfe County in Kentucky has a water discharge permit.
Assignment 8-6
In Massachusetts v. Environmental Protection Agency, 549 U.S. 497, the EPA claimed they did not have the authority under CAA to regulate greenhouse gas emissions. Even though the CAA does not explicitly state that the EPA is authorized to regulate greenhouse gas emissions, the Supreme Court held that based on the language in the statute, the EPA can regulate emissions of any air pollutant that could present a danger to the population and the environment. According to the Supreme Courts interpretation of legislative intent, there was no indication that Congress wanted to limit the EPAs ability to regulate greenhouse gas emissions.
The particular source of greenhouse gases at issue in this case is the emissions from new motor vehicles. The petitioners were concerned about the danger these types of emissions can inflict on the environment if they are not regulated.
There could be a conflict between the Department of Transportations mileage regulations and the ability of the EPA to regulate emissions, if each department sets different standards for mileage and emission limits for vehicles. Since the goal of the regulations for both agencies is to reduce the gas emissions from vehicles, any potential conflicts could be mitigated if a uniform standard of mileage and emission limits are set. If the two agencies worked together, they could address and deal with any anticipated conflicts. It would also make it easier for manufacturers in the auto industry to create vehicles that will abide by the new guidelines, if the agencies worked together to create a uniform standard.
Assignment 9-1
A permit for a point source may be required to conduct aerial pesticide spraying over a large area. In League of Wilderness DefendersBlue Mountains Biodiversity Project v. Forsgren, 309 F.39 1181 (9th Cir. 2002), the U.S. Forest Service sprayed an aerial pesticide over a national forest to keep moths from killing the trees. The pesticide spread over the trees and also polluted the streams. Clean Water Act 33 U.S.C. 1311(a) defines the discharge of a pollutant as adding pollutants to the water from any point source other than a vessel or floating craft. Under 33 U.S.C. 1362(14), a point source is defined as any discernable conveyance from which pollutants are discharged. Even though the EPA defines activities in a forest as nonpoint sources that do not require a permit, the court held that the EPAs definition was not applicable to this situation. Since the Forest Service polluted the water by discharging the pesticide from an aircraft, the activity constituted a point source and a permit would be needed.
The state of Kentucky does not have one set definition for protected waters but it has definitions for different types of water sources, and the various protection plans utilized to prevent and control water pollution, under Title 401 of the Kentucky Administrative Regulations.
According to 40 CFR 125.58(u), publicly owned treatment works (POTW) means a treatment works owned by a State, municipality, or intermunicipal or interstate agency. 40 CFR 125.58(j) defines industrial discharger as any source of non-domestic pollutants regulated under section 307(b) or (c) of the Clean Water Act which discharges into a POTW. Under 40 CFR 125.58(q), pretreatment means the reduction of the amount of pollutants, the elimination of pollutants, or the alteration of the nature of pollutant properties in wastewater prior to or in lieu of discharging or otherwise introducing such pollutants into a POTW.
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