Monday, August 11, 2008

TSG Inc. v. U.S. EPA

Aug 8: In the U.S. Court of Appeals, Third Circuit, Case No. 07-1116 . TSG, Inc. (TSG) filed a petition to challenge the validity of U.S. EPA's Applicability Determination, which found that TSG was a fabric “finishing operation” under Subpart OOOO of the National Emission Standards for Hazardous Air Pollutants (NESHAP). TSG argues that its fabric treating process should not be required to abide by the finishing operation standards and should instead qualify as a coating operation under the regulations. The Appeals Court concluded that the EPA did not "clearly err" in its determination that TSG was a finishing operation and denied the petition.

In TSG’s process, stain-repellant chemicals are diluted in a solvent, trichloroethene (TCE), which is then sprayed onto the fabric as it passes through the spraying machinery. This method allows TSG to process many different fabric weights, widths, colors, and constructions, as the solvent is generally gentler on a wider variety of fabrics than is a water-based system. As TSG characterizes it, the solvent acts as a “carrier” for the stain-repellant chemicals as they are sprayed onto the fabric and then evaporates when the fabric passes through the heating and drying machinery. A solvent recovery system then captures the evaporated solvent for reuse.

As a key part of its ruling, the Third Circuit said, "We agree with the EPA’s determination that '[t]he solvent that TSG uses to dilute stain repellent finishes is a transfer agent that is added to the finish as an auxiliary to improve the finishing process, and therefore, is a finishing material.' As the regulation states, the definition of finishing materials 'includ[es] auxiliaries,' so long as they are 'added to the finish to improve the finishing process.' 40 C.F.R. § 63.4371."

Access the complete opinion (
click here).

Navajo Nation v. U.S. Forest Service

Aug 8: In the U.S. Court of Appeals, Ninth Circuit, Case Nos. 06-15371, 06-15436, 06-15455. In these consolidated cases, involving claims of violations of the Religious Freedom Restoration Act (RFRA), with numerous parties, the en banc Appeals Court issued a split decision with three Justices issuing a lengthy dissent. As summarized in the dissenting opinion, "The en banc majority today holds that using treated sewage effluent to make artificial snow on the most sacred mountain of southwestern Indian tribes does not violate the Religious Freedom Restoration Act (RFRA). It also holds that a supposed pleading mistake prevents the tribes from arguing under the National Environmental Protection Act (NEPA) that the Forest Service failed to consider the likelihood that children and others would ingest snow made from the effluent."

The majority defines the case saying, American Indians ask us to prohibit the Federal government from allowing the use of artificial snow for skiing on a portion of a public mountain sacred in their religion. At the heart of their claim is the planned use of recycled wastewater, which contains 0.0001% human waste, to make artificial snow. The Plaintiffs claim the use of such snow on a sacred mountain desecrates the entire mountain, deprecates their religious ceremonies, and injures their religious sensibilities.

The majority says, "We are called upon to decide whether this government approved use of artificial snow on government-owned park land violates the Religious Freedom Restoration Act of 1993 (RFRA) . . ., the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. §§ 4321 et seq., and the National Historic Preservation Act (NHPA), 16 U.S.C. §§ 470 et seq. We hold that it does not, and affirm the district court’s denial of relief on all grounds."

Access the complete opinion and dissent (
click here).