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Weekly Update Volume 37, Issue 35

12/17/2007

LITIGATION


CAA, PARTICULATE MATTER

The D.C. Circuit granted in part environmental groups' petition for review of a final rule promulgated by EPA to regulate "hot spot" analyses undertaken as part of the State Implementation Plan for National Ambient Air Quality Standards transportation project conformity determinations required by the CAA. Where the term "any area" is interpreted by EPA to mean "a local area" in two sections (176(c)(1)(B)(i) and (B)(ii)) of the CAA, it is arbitrary and capricious not to define the term similarly in a third related section (176(c)(1)(B)(iii)) or to explain why it need not do so. Environmental Defense, Inc. v. Environmental Protection Agency, No. 06-1164, 37 ELR 20307 (D.C. Cir. Dec. 11, 2007) (16 pp.).


NEPA, ATOMIC ENERGY ACT, EIS SUFFICIENCY

The D.C. Circuit denied citizen advocacy groups' claim that the Nuclear Regulatory Commission violated NEPA and the Atomic Energy Act when it granted a license for a new, privately owned facility in New Mexico to produce enriched uranium as fuel for nuclear reactors. An EIS is “prepared” for purposes of the Atomic Energy Act even when it is supplemented after the close of licensing hearings. Further, the EIS is sufficient as the Commission adequately considered the environmental consequences of the facility's waste disposal. Finally, there is no reason to doubt the Commission’s acceptance of cost estimates for waste disposal, and one commissioner’s outspoken views on the petitioner did not disqualify him from hearing the case. Nuclear Information and Resource Service v. NRC, No. 06-1301, 37 ELR 20308 (D.C. Cir. Dec. 11, 2007) (16 pp.).


NEPA, CATEGORICAL EXCLUSIONS, PRESCRIBED BURNING

The Ninth Circuit reversed a lower court's grant of summary judgment for the U.S. Forest Service in a challenge to three prescribed burns in California that plaintiffs alleged violated NEPA by establishing a categorical exclusion for all fuel reduction projects up to 1,000 acres and certain prescribed burn projects on national forests. Where federal agencies fail to follow proper procedures for establishing categorical exclusions including demonstration that the proposed categorical exclusion will not individually nor cumulatively have a significant impact on the environment, and where they fail to make a "reasoned decision" based on relevant factors and information, such actions are arbitrary and capricious. Sierra Club v. U.S. Forest Service, No. 05-16989, 37 ELR 20297 (9th Cir. Dec. 5, 2007) (30 pp.).


CWA, GENERAL PERMITS, WETLANDS

The Eleventh Circuit upheld defendant's issuance of a general permit authorizing landowners engaged in "suburban development" in a large contiguous area of the Florida panhandle to discharge limited dredged and fill material into federal waters as proper exercise of defendant's general permitting authority. Where the permit's special conditions significantly constrain the scope of permitted discharge activities and require mitigation of any environmental impacts, and where additional agreements and environmental safeguards are in place, application of the Corp's general permitting authority under CWA §404(e) is consistent with the CWA and tailored to the unique issues presented within the permit area. Sierra Club v. U.S. Army Corps of Engineers, No. 06-16505, 37 ELR 20299 (11th Cir. Dec. 7, 2007) (11 pp.).


NEPA, SUBJECT MATTER JURISDICTION

The Ninth Circuit affirmed dismissal of an action against EPA and others under NEPA in which an environmental group sought injunctive, declaratory, and other relief relating to the preparation of certain environmental assessments prior to the implementation of the Missoula wastewater facilities plan update. A grant of federal funds in support of a local action will not constitute a major federal action under NEPA where the proportion and nature of the federal funding is insignificant in the overall project and where the federal government does not exert power, authority, and control over the state project. Congressional appropriation of funds in support of a specific project within the plan does not constitute a final agency action and the court therefore lacks subject matter jurisdiction with respect to the second claim. The Rattlesnake Coalition v. U.S. Environmental Protection Agency, No. 05-36097, 37 ELR 20300 (9th Cir. Dec. 7, 2007) (17 pp.).


CAA, PREEMPTION, GREENHOUSE GAS EMISSIONS

A federal district court upheld California’s authority to regulate greenhouse gas emissions from motor vehicles, rejecting an industry association's challenge based on the preemptive effect of both the Energy Policy and Conservation Act ("EPCA") and federal foreign policy. Where EPA regulations under the CAA incidentally require greater fuel efficiency than that required by the National Highway Traffic Safety Administration ("NHTSA") pursuant to EPCA, such overlap does not preclude EPA from promulgating emissions control regulations. Where a regulation promulgated by California is granted a waiver of preemption under section 209 of the CAA, it becomes a "law of the Government" under EPCA and must be considered by NHTSA in setting fuel economy standards. The EPCA does not invalidate the California regulations through either express or conflict preemption, and there is not sufficient evidence to support a claim of foreign policy preemption. The court's analysis does not consider the extent to which California’s standards are "federalized" when approved by EPA as set forth by the Vermont federal district court in Green Mountain Chrysler Plymouth, but describes the approach as an alternative ground for upholding California’s regulations. Central Valley Chrysler Jeep v. Goldstone, No. CV F 04-6663, 37 ELR 20309 (E.D. Cal. Dec. 11, 2007) (Ishii, J.) (57 pp.).


CERCLA, ARBITRATION, CONTRIBUTION

A district court ordered certain disputes over the environmental provisions of an asset purchase agreement to be subject to arbitration and found that future Superfund claims are included within a contract’s assumption of “all liabilities and obligations.” Where a dispute is on its face governed by a contract’s dispute resolution provision calling for arbitration, a court will honor that provision. Further, a broadly written provision in an asset contribution agreement stating that an acquiring company assumes "all liabilities and obligations" related to another company's assets is broad enough to encompass future Superfund claims, but will not encompass claims of negligence. In addition, CERCLA does not preempt common law negligence or indemnification claims, and the economic loss doctrine does not preclude recovery under a negligence claim. Rhodia Inc. v. Bayer CropScience Inc., No. 04-6424, 37 ELR 20304 (D. N.J. Dec. 7, 2007) (Brown, J.) (24 pp.).


NEPA, NATURAL GAS WELL DEVELOPMENT

A district court denied a request by five conservation groups to block the Bureau of Land Management's approval of roughly 90 new wells in a 2,000-well natural gas development southwest of Rawlins, Wyoming, based on the agency's evidence that it followed NEPA procedures for public participation, examined a range of mitigation measures for the Atlantic Rim area sage grouse population, and undertook the required "hard look" analysis. There is sufficient opportunity for public comment when notice of the permit applications were posted in the BLM regional reading room and notice of preparation of an EA was posted for a few weeks on BLM’s website. Further, plaintiffs are barred from raising CWA claims they failed to raise prior to filing suit, and even if such claims were allowed, plaintiffs are unlikely to prevail as discharges are likely to intermittent or ephemeral streams not considered waters of the United States under Rapanos. Finally, plaintiffs fail to demonstrate irreparable harm as claims are based on potential effects from gas development in the area as a whole as opposed to the wells at issue or that the public interest is served by issuing a preliminary injunction. Natural Resources Defense Council v. Kempthorne, No. 07-1709, 37 ELR 20305 (D.D.C. Nov. 30, 2007) (Leon, J.) (23 pp.).


ESA, BEST SCIENCE


A federal district court ruled that the U.S. Fish and Wildlife Service's (FWS) decision not to list the Greater Sage Grouse under the ESA was arbitrary and capricious and ordered the agency to reconsider the petition. Where the FWS excludes information provided by expert consultants, fails to provide a detailed record of experts' opinions, and ignores experts' opinions, the ESA listing determination violates the statutory requirement to apply "best science" as required by the ESA. Documented interference by a Deputy Assistant Secretary in the decision process taints that process and requires reconsideration without her involvement. Western Watershed Project v. U.S. Fish and Wildlife Service, No. CV-06-277, 37 ELR 20306 (D. Idaho Dec. 4, 2007) (Winmill, J.) (35 pp.).


INVERSE CONDEMNATION, WETLANDS

A federal district court ordered city officials to pay a property owner nearly $37 million for creating wetlands on a 25-acre parcel of undeveloped land tentatively zoned for residential development. Where evidence indicates a lack of ponded water on the property prior to the construction of a nearby public improvement project, which included excavation of dirt on the property for the project, and the lack of municipal maintenance of stormwater diversions that caused new wetlands formation, the city's subsequent denial of a residential development permit on the property due to the presence of new wetlands constitutes a physical taking, and plaintiff is entitled to the appraised value of the property as of the trial date. Yamagiwa v. City of Half Moon Bay, No. C-05-4149, 37 ELR 20302 (N.D. Cal. Nov. 28, 2007) (Walker, J.) (35 pp.).


CEQA, HOUSING SUBDIVISION PLAN

A California appellate court reversed a lower court's grant of a peremptory writ of mandamus in favor of an environmental group that set aside defendant city's approval of a housing project subdivision map and that required a focused Environmental Impact Report (EIR) or equivalent analysis to be conducted in relation to the development plan. Where the record before the city council does not contain substantial evidence supporting a fair argument that the proposed housing project, as mitigated, may have adverse environmental impacts pursuant to the California Environmental Quality Act (CEQA), and where plaintiff failed to exhaust its administrative remedies with respect to its prima facie CEQA violation claim, such claims and others relating to consistency and adequacy of the general plan are forfeited. Porterville Citizens for Responsible Hillside Development v. City of Porterville, No. F051953, 37 ELR 20298 (Cal. Ct. App. Nov. 9, 2007) (32 pp.).

Copyright© 2007, Environmental Law Institute, Washington, D.C. All rights reserved.

THE FEDERAL AGENCIES

Note: Citations below are to the Federal Register (FR).

AIR:

  • EPA proposed that no revisions to the national emission standards regulating eight polymer/resin industrial source categories be required under CAA §§112(f)(2) or 112(d)(6) and requested public comment on the residual risk and technology reviews for the categories regulated by four national emission standards for hazardous air pollutants. 72 FR 70543 (12/12/07).  
  • EPA approved the St. Regis Mohawk Tribe (SRMT) tribal implementation plan, which is intended to protect air quality and population within the exterior boundaries of the SRMT Reservation. 72 FR 66918 (12/10/07).
  • EPA found that the Imperial Valley, California, serious nonattainment area for particulate matter having a diameter of 10 microns or less (PM10) did not attain the PM10 NAAQS by the CAA's December 31, 2001, deadline; the state must submit a revised SIP by December 11, 2008, that provides for attainment of the standard. 72 FR 70222 (12/11/07).
  • EPA proposed to determine that the Kewaunee County, Wisconsin, nonattainment area has attained the eight-hour ozone NAAQS and to redesignate the area to attainment. 72 FR 70255 (12/11/07).
  • EPA issued a notice of data availability in support of the proposed rule published on May 14, 2007, (72 FR 27177) entitled Standards of Performance for Petroleum Refineries. 72 FR 69175 (12/7/07).
  • EPA issued an advance notice of proposed rulemaking to invite comment from all interested parties on its plan to propose new emission standards and other related provisions for new compression-ignition marine engines with per cylinder displacement at or above 30 liters per cylinder. 72 FR 69521 (12/7/07).
  • EPA adopted a new deadline from that of April 27, 2007, to that of December 17, 2009, for rulemaking to address the control of emissions from new marine compression-ignition engines at or above 30 liters per cylinder. 72 FR 68518 (12/5/07).
  • SIP Approvals: Georgia (enhanced inspection and maintenance plan) 72 FR 69148 (12/7/07). Illinois (incorporation of site-specific volatile organic compound (VOC) regulations for the Corrosion Inhibiting packaging production facility) 72 FR 70804 (12/13/07). Maryland (VOC emissions control from consumer products) 72 FR 66921 (12/10/07). Massachusetts (clean air interstate rule (CAIR)) 72 FR 66754 (12/3/07). Minnesota (sulfur dioxide (SO2) emission limits) 72 FR 68508 (12/5/07). Missouri (clean air interstate rule) 72 FR 71073 (12/14/07); (amendment to the general conformity rule) 72 FR 68072 (12/4/07). Virginia (amendments to extend the geographic applicability of four consumer and commercial product regulations to the Fredericksburg volatile organic compound (VOC) emissions control area) 72 FR 68511 (12/5/07).
  • SIP Proposals: Georgia (enhanced inspection and maintenance plan; see above for direct final rule) 72 FR 69175 (12/7/07). Illinois (incorporation of site-specific VOC regulations for the Corrosion Inhibiting packaging production facility; see above for direct final rule) 72 FR 70811 (12/13/07). Maryland (VOC emissions control from portable fuel containers) 72 FR 67878 (12/3/07).  Minnesota (SO2 emission limits; see above for direct final rule) 72 FR 68551 (12/5/07). Missouri (amendment to the general conformity rule; see above for direct final rule) 72 FR 68118 (12/4/07). Montana (administrative rule revisions) 72 FR 70540 (12/12/07). Nevada (clean air mercury rule) 72 FR 70812 (12/13/07); (rescissions and updated statutory and regulatory provisions) 72 FR 71095 (12/14/07). Wisconsin (eight-hour ozone NAAQS; motor vehicle emission budgets) 72 FR 70255 (12/11/07); (approval of construction permit waiver) 72 FR 68119 (12/4/07).
  • SIP Withdrawal: Ohio (CAIR) 72 FR 68515 (12/5/07).    

WATER:

  • EPA promulgated water quality standards for Puerto Rico that establish methods to implement the territory’s existing antidegradation policy for waters within the Commonwealth of Puerto Rico. 72 FR 70517 (12/12/07).
  • EPA announced its intention to approve revisions to New York’s Public Water System Supervision Program and announced an opportunity to request a hearing. 72 FR 67932 (12/3/07).

WILDLIFE:

  • FWS announced a 12-month finding on a petition to list the Jollyville Plateau salamander as endangered and to designate critical habitat under the ESA; the agency found that listing the salamander as threatened or endangered is warranted at this time but that listing it is precluded by higher priority actions to amend the Lists of Endangered and Threatened Wildlife and Plants and, therefore, added the salamander to its candidate species list with further actions to follow as the agency's priorities allow. 72 FR 71039 (12/13/07).
  • FWS designated revised final critical habitat in Orange and San Diego counties, California, for the San Diego fairy shrimp. 72 FR 70647 (12/12/07).
  • FWS proposed to designate critical habitat in Lancaster and Saunders counties, Nebraska, for the Salt Creek tiger beetle and announced the availability of a draft EA and draft economic analysis for its proposed designation of critical habitat for the beetle. 72 FR 70715 (12/12/07).    
  • FWS announced the availability of the recovery plan for the showy stickseed. 72 FR 70602 (12/12/07).
  • FWS announced the availability of the final comprehensive conservation plan and EA for the Souris River basin national wildlife refuges in North Dakota. 72 FR 69703 (12/10/07).
  • FWS promulgated a candidate notice of review (CNOR) that presents an updated list of native plant and animal species that are candidates for listing as endangered or threatened under the ESA; in addition, the CNOR includes the agency’s findings on resubmitted petitions and describes its progress in revising the Lists of Endangered and Threatened Wildlife and Plants during the period September 26, 2006, through September 30, 2007. 72 FR 69033 (12/6/07).
  • FWS announced its intention to gather information necessary to prepare a comprehensive conservation plan and EA for the Banks Lake National Wildlife Refuge located in Lanier County, Georgia. 72 FR 68892 (12/6/07).
  • NOAA-Fisheries announced the availability of a five-year review for Johnson's seagrass that recommends no change in listing and concludes that the seagrass remains a threatened species likely to become endangered within the foreseeable future. 72 FR 68129 (12/4/07).
  • FWS announced its intentions to gather information necessary to prepare a comprehensive conservation plan and EIS for the Charles M. Russell National Wildlife Refuge, including UL Bend National Wildlife Refuge, located in north-central Montana. 72 FR 68174 (12/4/07).
  • NOAA-Fisheries announced temporary restrictions that apply to lobster trap/pot and anchored gillnet fishermen in an area south of Portland, Maine, in order to protect an aggregation of northern right whales. 72 FR 67859 (12/3/07).   
  • NOAA-Fisheries announced temporary restrictions that apply to lobster trap/pot and anchored gillnet fishermen in an area south of Rockland, Maine, in order to protect an aggregation of northern right whales. 72 FR 67861 (12/3/07). 

DOJ NOTICES OF SETTLEMENT:

  • United States v. Creftcon Industries, No. 07-07812 (C.D. Cal. Nov. 29, 2007). A settling CERCLA and RCRA defendant involved with the releases and threatened releases of hazardous substances at the Puente Valley Operable Unit of the San Gabriel Valley Area 4 Superfund site in Los Angeles County, California, must pay $1,750,000 to the United States and $12,000 to the California Department of Toxic Substances Control to resolve its liability for past costs, future costs, and work associated with the remedial action required for the site. 72 FR 70612 (12/12/07).
  • United States v. Essroc Cement Corp., No. 4:07-cv-157 (S.D. Ind. Dec. 3, 2007). A settling CAA defendant who operated a portland cement manufacturing facility in Speed, Indiana, in violation of the NESHAPs must pay $750,000 in civil penalties, must certify test results that demonstrate that a newly installed fabric filter baghouse will consistently control emissions from the main stack at one of the facility's kilns, and must perform two supplementary environmental projects (collectively valued at $900,000) that are designed to eliminate or minimize fugitive particulate emissions from specified areas of the facility. 72 FR 70612 (12/12/07).    
  • United States v. Liberty Property Limited Partnership, No. 07-cv-5119 (E.D. Pa. Dec. 5, 2007). Settling CERCLA defendants must perform cleanup work at a portion of the Crater Resources Superfund site in Montgomery County, Pennsylvania, and must reimburse EPA for future response costs related to the work being performed. 72 FR 70613 (12/12/07).
  • United States v. Losada, No. 07-10027 (S.D. Fla. Nov. 28, 2007). A settling National Marine Sanctuaries Act defendant involved with the destruction of natural resources in the Florida Keys National Marine Sanctuary must pay $5,000 and must not operate a vessel or fish within the Sanctuary for a period of five years. 72 FR 68592 (12/5/07).   

 Copyright© 2007, Environmental Law Institute, Washington, D.C. All rights reserved.

THE CONGRESS

Citations below are to the Congressional Record (Cong. Rec.).

Public Laws

  • H.R. 50 (conservation), which reauthorizes the African Elephant Conservation Act and the Rhinoceros and Tiger Conservation Act of 1994, was signed into law by President Bush on December 6, 2007. Pub. L. No. 110-132, 153 Cong. Rec. D1560 (daily ed. Dec. 7, 2007).
  • H.R. 465 (conservation), which reauthorizes the Asian Elephant Conservation Act of 1997, was signed into law by President Bush on December 6, 2007. Pub. L. No. 110-133, 153 Cong. Rec. D1560 (daily ed. Dec. 7, 2007).

Chamber Action

  • H.R. 2085 (McGee Creek Project Pipeline and Associated Facilities Conveyance Act), which would authorize the Secretary of the Interior to convey to the McGee Creek Authority certain facilities of the McGee Creek Project, Oklahoma, was passed by the House. 153 Cong. Rec. H14444-45 (daily ed. Dec. 6, 2007).

Committee Action

  • S. 506 (green building) was reported by the Committee on Environment and Public Works. S. Rep. No. 110-241, 153 Cong. Rec. S15233 (daily ed. Dec. 12, 2007). The bill would improve efficiency in the Federal Government through the use of high-performance green buildings.
  • S. 1429 (SDWA) was reported by the Committee on Environment and Public Works. S. Rep. No. 110-242, 153 Cong. Rec. S15233 (daily ed. Dec. 12, 2007). The bill would amend the SDWA to reauthorize the provision of technical assistance to small public water systems.
  • H.R. 123 (San Gabriel Basin Restoration Fund) was reported by the Committee on Natural Resources. H Rep. No. 110-483, 153 Cong. Rec. H15314 (daily ed. Dec. 11, 2007). The bill would authorize appropriations for the San Gabriel Basin Restoration Fund.
  • H.R. 236 (water management) was reported by the Committee on Natural Resources. H. Rep. No. 110-458, 153 Cong. Rec. H14155 (daily ed. Dec. 4, 2007). The bill would authorize the Secretary of the Interior to create a Bureau of Reclamation partnership with the North Bay Water Reuse Authority and other regional partners to achieve objectives relating to water supply, water quality, and environmental restoration.
  • H.R. 2058 (McGee Creek Project) was reported by the Committee on Natural Resources. H. Rep. No. 110-460, 153 Cong. Rec. H14155 (daily ed. Dec. 4, 2007). The bill would authorize the Secretary of the Interior to convey to the McGee Creek Authority certain facilities of the McGee Creek Project, Oklahoma.
  • H.R. 2246 (land conveyance) was reported by the Committee on Natural Resources. H. Rep. No. 110-461, 153 Cong. Rec. H14155 (daily ed. Dec. 4, 2007). The bill would validate certain conveyances made by the Union Pacific Railroad Company of lands located in Reno, Nevada, that were originally conveyed by the United States to facilitate construction of transcontinental railroads.
  • H.R. 2537 (CWA) was reported by the Committee on Transportation and Infrastructure. S. Rep. No. 110-491, 153 Cong. Rec. H15412 (daily ed. Dec, 12, 2007). The bill would amend the CWA relating to beach monitoring.
  • H.R. 3739 (Arizona Water Settlements Act) was reported by the Committee on Natural Resources. H. Rep. No. 110-484, 153 Cong. Rec. H15314 (daily ed. Dec. 11, 2007). The bill would amend the Arizona Water Settlements Act to modify the requirements for the statement of findings.
  • H.R. 3998 (resources studies) was reported by the Committee on Natural Resources. H. Rep. No. 110-462, 153 Cong. Rec. H14155 (daily ed. Dec. 4, 2007). The bill would authorize the Secretary of the Interior to conduct special resources studies of certain lands and structures to determine the appropriate means for preservation, use, and management of the resources associated with such lands and structures.
  • House Resolution 846 (energy) was reported by the Committee on Rules. H. Rep. No. 110-474, 153 Cong. Rec. H14249 (daily ed. Dec. 5, 2007). The resolution would provide for the consideration of the Senate amendments to the bill (H.R. 6) to reduce our Nation's dependence on foreign oil by investing in clean, renewable, and alternative energy resources; promoting new emerging energy technologies; developing greater efficiency; and creating a Strategic Energy Efficiency and Renewables Reserve to invest in alternative energy.

Bill Introduced

  • S. 2423 (Feinstein, D-Cal.)(emission allowances) would facilitate price transparency in markets for the sale of emission allowances. 153 Cong. Rec. S14847 (daily ed. Dec. 6). The bill was referred to the Committee on Environment and Public Works.
  • S. 2429 (Boxer, D-Cal.)(Oil Pollution Act of 1990) would amend the Oil Pollution Act of 1990 to equalize the limit on the liability for oil tankers and cargo vessels and would provide for investment in the Damage Assessment Restoration Revolving Fund. 153 Cong. Rec. S14847 (daily ed. Dec. 6, 2007). The bill was referred to the Committee on Environment and Public Works.
  • S. 2438 (Baucus, D-Mont.)(Federal Lands Recreation Enhancement Act) would repeal certain provisions of the Federal Lands Recreation Enhancement Act. 153 Cong. Rec. S15062 (daily ed. Dec. 10, 2007). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2443 (Ensign, R-Nev.)(land use) would provide for the release of any revisionary interest of the United States in and to certain lands in Reno, Nevada. 153 Cong. Rec. S15138 (daily ed. Dec. 11, 2007). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2444 (Murray, D-Wash.)(sustainability program grants and summits) would direct the Secretary of Education to provide grants to establish and evaluate sustainability programs charged with developing and implementing integrated environmental, economic, and social sustainability initiatives, and would direct the Secretary of Education to convene a summit of higher education experts in the area of sustainability. 153 Cong. Rec. S15138 (daily ed. Dec. 11, 2007). The bill was referred to the Committee on Health, Education, Labor, and Pensions.
  • S. 2468 (Barrasso, R-Wyo.)(restoration services) would authorize the Secretary of Agriculture (acting through the Chief of the Forest Service) to enter into a cooperative agreement with the State of Wyoming to allow the State of Wyoming to conduct certain forest and watershed restoration services. 153 Cong. Rec. S15460 (daily ed. Dec. 13, 2007). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2475 (Roberts, R-Kan.)(Surface Mining Control and Reclamation Act of 1977) would amend the Surface Mining Control and Reclamation Act of 1977 to provide an exception for certain States with respect to the distribution of amounts by the Secretary of the Interior from the Abandoned Mine Reclamation Fund. 153 Cong. Rec. S15460 (daily ed. Dec. 13, 2007). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2483 (Bingaman, D-N.M.)(program and activity authorization) would authorize certain programs and activities in the Forest Service, the Department of the Interior, and the Department of Energy. 153 Cong. Rec. S15460 (daily ed. Dec. 13, 2007). The bill was read for the first time.
  • H.R. 4271 (Shadegg, R-Ariz.)(CAA) would amend the CAA to provide for a waiver of certain prohibitions and limitations on fuels and fuel additives. 153 Cong. Rec. H14156 (daily ed. Dec. 4, 2007). The bill was referred to the Committee on Energy and Commerce.
  • H.R. 4285 (Butterfield, D-N.C.)(Northeastern North Carolina Heritage Area) would direct the Secretary of the Interior to conduct a study of the suitability and feasibility of establishing the Northeastern North Carolina Heritage Area in North Carolina. 153 Cong. Rec. H14249 (daily ed. Dec. 5, 2007). The bill was referred to the Committee on Natural Resources.
  • H.R. 4291 (Oberstar, D-Minn.)(North Country National Scenic Trail) would revise the authorized route of the North Country National Scenic Trail in northeastern Minnesota to include existing hiking trails along Lake Superior's north shore and in Superior National Forest and Chippewa National Forest. 153 Cong. Rec. H14249 (daily ed. Dec. 5, 2007). The bill was referred to the Committee on Natural Resources.
  • H.R. 4292 (Oberstar, D-Minn.)(Superior National Forest) would authorize the sale of certain National Forest System lands in the Superior National Forest in Minnesota. 153 Cong. Rec. H14249-50 (daily ed. Dec. 5, 2007). The bill was referred to the Committees on Agriculture, Natural Resources, Energy and Commerce, and Transportation and Infrastructure.
  • H.R. 4297 (Shuster, R-Pa.)(energy) would amend the Internal Revenue Code of 1986 to extend certain expiring energy conservation provisions and would provide a tax credit for certain individuals using home heating oil. 153 Cong. Rec. H14250 (daily ed. Dec. 5, 2007). The bill was referred to the Committee on Ways and Means.
  • H.R. 4304 (Boozman, R-Ariz.)(recreation fees) would authorize the Secretary of the Army to establish, modify, charge, and collect recreation fees at lands and waters administered by the Corps of Engineers. 153 Cong. Rec. H14492 (daily ed. Dec. 6, 2007). The bill was referred to the Committee on Transportation and Infrastructure.
  • H.R. 4306 (King, R-Iowa)(CAA) would amend the CAA and the Internal Revenue Code of 1986 to increase the use of ethanol and bio-diesel. 153 Cong. Rec. H14492 (daily ed. Dec. 6, 2007). The bill was referred to the Committees on Energy and Commerce, Ways and Means, and the Judiciary.
  • H.R. 4310 (Baca, D-Cal.)(energy assistance grants) would authorize the Secretary of Energy to establish a program of energy assistance grants to local educational agencies. 153 Cong. Rec. H14492 (daily ed. Dec. 6, 2007). The bill was referred to the Committee on Education and Labor.
  • H.R. 4333 (Matheson, D-Utah)(Uintah Water Conservancy District) would direct the Secretary of the Interior to allow for prepayment of repayment contracts between the United States and the Uintah Water Conservancy District. 153 Cong. Rec. H14493 (daily ed. Dec. 6, 2007). The bill was referred to the Committee on Natural Resources.
  • H.R. 4353 (Cubin, R-Wyo.)(Surface Mining Control and Reclamation Act of 1977) would amend the Surface Mining Control and Reclamation Act of 1977 to make certain technical corrections. 153 Cong. Rec. H15314 (daily ed. Dec. 11, 2007). The bill was referred to the Committee on Natural Resources.
  • H.R. 4455 (Young, R-Alaska)(Wildlife Without Borders Program) would authorize the Secretary of the Interior to provide international wildlife management and conservation programs through the Wildlife Without Borders Program in the United States Fish and Wildlife Service. 153 Cong. Rec. H15316 (daily ed. Dec. 11, 2007). The bill was referred to the Committee on Natural Resources.
  • H.R. 4457 (Thompson, D-Miss.)(National Heritage Areas) would establish the Mississippi Delta National Heritage Area and the Mississippi Hills National Heritage Area. 153 Cong. Rec. H15412 (daily ed. Dec. 12, 2007). The bill was referred to the Committee on Natural Resources.
  • H.R. 4504 (Hinojosa, D-Tex.)(water project reimbursement) would authorize the International Boundary and Water Commission to reimburse state and local governments of the states of Arizona, California, New Mexico, and Texas for expenses incurred by such a government in designing, constructing, and rehabilitating water projects under the jurisdiction of such commission. 153 Cong. Rec. H15413 (daily ed. Dec. 12, 2007). The bill was referred to the Committee on Transportation and Infrastructure.
  • H.R. 4571 (Baca, D-Cal.)(water conservation) would amend the Internal Revenue Code of 1986 to allow individuals a credit against income tax for home water conservation. 153 Cong. Rec. H15466 (daily ed. Dec. 13, 2007). The bill was referred to the Committee on Ways and Means.
  • H.R. 4652 (Hastings, D-Fla.)(Environmental Justice Office) would direct each Federal agency to establish an Environmental Justice Office. 153 Cong. Rec. H15467 (daily ed. Dec. 13, 2007). The bill was referred to the Committee on Energy and Commerce, and in addition to the Committee on Natural Resources.
  • H.R. 4685 (Pearce, R-N.M.)(Minerals Reclamation Foundation) would establish the Minerals Reclamation Foundation. 153 Cong. Rec. H15468 (daily ed. Dec. 13, 2007). The bill was referred the Committee on Natural Resources.
  • H. Con. Res. 266 (Schakowsky, D-Ill.)(freshwater resources) would express the sense of the Congress with regard to the world's freshwater resources. 153 Cong. Rec. H14494 (daily ed. Dec. 6, 2007). The bill was referred to the Committees on Foreign Affairs, Ways and Means, and Financial Services.
  • H. Res. 845 (Hastings, D-Fla.)(Everglades National Park) would recognize the 60th anniversary of Everglades National Park. 153 Cong. Rec. H14250 (daily ed. Dec. 5, 2007). The bill was referred to the Committee on Natural Resources, and in addition to the Committee on Transportation and Infrastructure.
  • H. Res. 853 (Pelosi, D-Cal.)(oil spill) would honor those who have volunteered to assist in the cleanup of the November 7, 2007, oil spill in San Francisco Bay. 153 Cong. Rec. H15215 (daily ed. Dec. 10, 2007). The bill was referred to the Committee on Transportation and Infrastructure.
  • H. Res. 868 (Woolsey, D-Cal.)(Muir Woods National Monument) would recognize the 100th anniversary of the declaration of Muir Woods National Monument by President Theodore Roosevelt. 153 Cong. Rec. H15317 (daily ed. Dec. 11, 2007). The bill was referred to the Committee on Natural Resources.

Copyright© 2007, Environmental Law Institute, Washington, D.C. All rights reserved.

IN THE STATES

Note: The entries below cover state developments since the last issue of Update. The entries are arranged by state, and within each section, entries are further subdivided by subject matter area. For a cumulative listing of materials reported in 2007, visit our list of Cumulative State Developments Arranged by State, or our list of Cumulative State Developments Arranged by Subject Matter. For state material reported prior to 2007, visit the ELR Archives.

The states below have updates this week:

Alabama California Idaho Louisiana Minnesota Utah Alaska Colorado Illinois Maryland New Jersey Vermont Arizona Delaware Indiana Massachusetts New Mexico Virginia Arkansas Hawaii Kentucky Michigan Oklahoma Wisconsin

ALABAMA

Air:

  • The Alabama Department of Environmental Management is soliciting public comment on an amendment to the Alabama SIP to adopt contingency measures for the maintenance of the 8-hour ozone NAAQS. If requested by January 8, 2008, a hearing will be held January 23, 2008. Comments are due January 25, 2008. See http://www.adem.state.al.us//PublicNotice/Dec/12SIP.htm

ALASKA

Air:

Water:

ARIZONA

Air:

  • The Arizona Department of Environmental Quality has amended a number of rules to include new and updated incorporations by reference of the following federal regulations in state rules: acid rain, new source performance standards, and NESHAPs. The changes become effective January 5, 2008. See http://www.azsos.gov/public_services/Register/2007/48/final.pdf

ARKANSAS

Solid & Hazardous Wastes:

CALIFORNIA

Air:

  • The Air Resources Board will conduct a public hearing at the time and place noted below to consider adoption of amendments to the Verification Procedure, Warranty and In–Use Compliance Requirements for In–Use Strategies to Control Emissions from Diesel Engines rule. The proposed amendments would revise, clarify and make specific requirements that pertain to the process for obtaining the Board’s verification of devices or strategies to control emissions from diesel engines. The hearing will be held January 24, 2008. See http://www.oal.ca.gov/pdfs/notice/49z-2007.pdf (pp. 2057-2061)

COLORADO

Air:

Water:

DELAWARE

Hazardous & Solid Wastes:

  • The Department of Natural Resources and Environmental Control, Division of Air and Waste Management has adopted amendments to the Delaware Regulations Governing Solid Waste. These amendments are intended to add consistency and/or clarification to the existing solid waste regulations, as well as to improve or enhance the performance of Delaware’s solid waste management program. Rules become effective December 21, 2007. See http://regulations.delaware.gov/register/december2007/final/11%20DE%20Reg%20807%2012-01-07.htm#P43_4498
  • The Department of Natural Resources and Environmental Control, Division of Air and Waste Management, has adopted amendments to the Delaware Regulations Governing Solid Waste which incorporate certain RCRA amendments promulgated by U.S. EPA into Delaware’s hazardous waste management program. Additionally, the State is also making miscellaneous changes to the existing regulations for the purpose of correcting errors and to add consistency or clarification to the existing regulations. Some amendments are being made to the existing regulations in order to improve or enhance the performance of the hazardous waste management program. The rules become effective December 21, 2007. See http://regulations.delaware.gov/register/december2007/final/11%20DE%20Reg%20809%2012-01-07.htm#P44_6450

HAWAII

Water:

IDAHO

Air:

Hazardous and Solid Wastes:

  • The Board of Environmental Quality has adopted amendments to 58.01.05 - Rules and Standards for Hazardous Waste to update federal regulations incorporated by reference. See http://adm.idaho.gov/adminrules/bulletin/bul/07dec.pdf (p. 169)
  • The Board of Environmental Quality has adopted amendments to IDAPA 58.01.10 - Disposal of Radioactive Materials Not Regulated under the Atomic Energy Act. This rulemaking is intended to further limit the types of radioactive materials that are eligible for unrestricted disposal in Idaho by adding a new category of radioactive materials that must be disposed of at a permitted hazardous waste disposal facility. See http://www.deq.idaho.gov/rules/radioactive_materials/58_0110_0701_pending.cfm

Water:

  • The Board of Environmental Quality has adopted 58.01.04 - Rules for Administration of Wastewater Treatment Facility Grants. The provisions of these rules will establish administrative procedures and requirements for establishing, implementing and administering a state grant program for providing financial assistance to prepare an engineering report or facility plan. See http://adm.idaho.gov/adminrules/bulletin/bul/07dec.pdf (pp. 161-168)
  • The Board of Environmental Quality has adopted amendments to 58.01.08 - Idaho Rules for Public Drinking Water Systems, including incorporation by reference of the following federal regulations: Stage 2 Disinfectants and Disinfection Byproducts Rule and Long Term 2 Enhanced Surface Water Treatment Rule. See http://adm.idaho.gov/adminrules/bulletin/bul/07dec.pdf (pp. 170-171)
  • The Board of Environmental Quality has adopted amendments to IDAPA 58.01.20 - Drinking Water Loan Program. The purpose of this rulemaking is to revise the conditions and qualifications for disadvantaged loans set out in IDAPA 58.01.20, Rules for Administration of Drinking Water Loan Program. See http://adm.idaho.gov/adminrules/bulletin/bul/07dec.pdf (pp. 173-178)
  • The Board of Environmental Quality has adopted amendments to 58.01.22 - Rules for Administration of Planning Grants for Public Drinking Water Facilities. See http://adm.idaho.gov/adminrules/bulletin/bul/07dec.pdf (pp. 179-186)

ILLINOIS

Hazardous & Solid Wastes:

Toxic Substances:

INDIANA

Water:

General:

KENTUCKY

Air:

  • The Kentucky Environmental and Public Protection Cabinet will conduct a public hearing to receive comments on a revision to the Kentucky SIP. This revision provides a second 10 year maintenance plan for the following eight-hour ozone attainment/one-hour ozone maintenance areas: Kentucky portion of the Huntington-Ashland Area (a portion of Greenup county); Lexington Area (Fayette and Scott counties); Owensboro Area (Daviess and a portion of Hancock county); Edmonson County Area (Edmonson county); and Paducah Area (Marshall county and a portion of Livingston county). The hearing will be held January 15, 2008. See http://www.air.ky.gov/homepage_repository/Public+Hearings.htm

LOUISIANA

Air:

  • The Department of Environmental Quality will conduct a public hearing on the proposed revisions to the Ambient Air Standards for Particulate Matter (LAC 33:III.701, 703, and 711). The hearing will be held January 24, 2008. Comments are due January 31, 2008. See http://www.deq.louisiana.gov/portal/portals/0/planning/regs/pdf/AQ288pro.pdf
  • The Department of Environmental Quality has adopted numerous final air quality rules, including Comprehensive Toxic Air Pollutant Emission Control Program (LAC 33:III.211, 223, 551, 5101, 5103, 5105, 5107, 5109, 5111, and 5112), Periodic Monitoring (LAC 33:III.507), and Repeal of Incorporation by Reference of 40 CFR 63, Subpart DDDDD (LAC 33:III.501, 3003, and 5122). See http://www.deq.louisiana.gov/portal/tabid/2644/Default.aspx

Hazardous & Solid Wastes:

Toxic Substances:

MARYLAND

Air:

MASSACHUSETTS

Water:

  • The Department of Environmental Protection will hold public hearings on proposed amendments to 310 CMR 1.01 - Adjudicatory Proceedings Regulations and 310 CMR 9.00 - Waterways Regulations. The hearings will be held January 3-7, 2008. Comments are due January 17, 2008. See http://www.mass.gov/dep/public/hearings/31019.htm

MICHIGAN

Land Use:

  • The Michigan Department of Natural Resources will conduct a public hearing on a proposed administrative rule amendment that would add the Algonac Prairie and Savanna Natural Area at Algonac State Park to the list of wilderness and natural areas in the Michigan Administrative Code. The hearing will be held December 17, 2007. Comments are due December 26, 2007. See http://www.michigan.gov/documents/dleg/MR21_120107_217256_7.pdf (p. 33)

MINNESOTA

Fisheries:

NEW JERSEY

Fisheries:

  • Department of Environmental Protection will conduct a public hearing to consider the adoption of amendments to N.J.A.C. 7:25-6 Fish Code for the 2008-2009 fishing season. The Fish Code states when, by what means, at which locations, in what numbers, and at what sizes fish may be pursued, caught, killed, or possessed. The proposed amendments to the rule attempt to balance opportunities for recreational fishing with adequate protection of the natural resource. The hearing will be held January 8, 2008. Comments are due February 1, 2008. See http://www.nj.gov/dep/rules/notices/120307c.html

NEW MEXICO

Climate:

  • The New Mexico Energy, Minerals and Natural Resources Department will hold a public hearing to consider the adoption of amended rule 3.3.28 NMAC for administration of the Solar Market Development Tax Credit. The hearing will be held December 26, 2007. Comments are due December 26, 2007. See http://www.nmcpr.state.nm.us/nmregister/xviii/xviii22/Energynotice.htm

OKLAHOMA

Fisheries:

Water:

UTAH

Air:

  • The Department of Environmental Quality is soliciting public comment on proposed amendments to air quality rule R307-101 - General Requirements. The purpose of the change is to update the incorporation by reference of 40 Code of Federal Regulation (CFR) Part 51.100(s)(1), in Section R307-101-2 to the most recent version of the CFR, and to update the definition of Acute Hazardous Air Pollutant, Carcinogenic Hazardous Air Pollutant, and Chronic Hazardous Air Pollutant to reference the 2007 version of the American Conference of Governmental Industrial Hygienists "Threshold Limit Values for Chemical Substances and Physical Agents and Biological Exposure Indices." If requested, a hearing will be held December 19, 2007. Comments are due December 31, 2007. See http://www.rules.utah.gov/publicat/bull_pdf/2007/b20071201.pdf (pp. 21-28)
  • The Department of Environmental Quality is soliciting public comment on proposed amendments to air quality rules R307-115, -170-7, -221, -222, -417, -801, and -840. The purpose of the change is to remove the specific version date for the CFR found in those rules. The rules will now default to Section R307-101-3 that establishes the version of the CFR that is incorporated throughout Title R307. If requested, a hearing will be held December 19, 2007. Comments are due December 31, 2007. See http://www.rules.utah.gov/publicat/bull_pdf/2007/b20071201.pdf (various pp. 28-50)
  • The Department of Environmental Quality is soliciting public comment on proposed amendments to air quality rule R307-215 - Acid Rain Requirements. The purpose of the change is to move the incorporation by reference of 40 CFR Part 76 in Rule R307-215 to Rule R307-417, so that all rules that deal with the acid rain program are in one rule. If requested, a hearing will be held December 19, 2007. Comments are due December 31, 2007. See http://www.rules.utah.gov/publicat/bull_pdf/2007/b20071201.pdf (pp. 31-32)
  • The Department of Environmental Quality is soliciting public comment on proposed amendments to air quality rule R307-401-14 - Used Oil Fuel Burned for Energy Recovery. The purpose of the change is to ensure the definition of "boiler" is consistent in the air quality rules an in the Solid and Hazardous Waste rules. If requested, a hearing will be held December 19, 2007. Comments are due December 31, 2007. See http://www.rules.utah.gov/publicat/bull_pdf/2007/b20071201.pdf (pp. 42-43)

VERMONT

Climate:

  • The Department of Environmental Conservation held a public hearing to consider the adoption of the Vermont CO2 Budget Trading Program Regulations, which are being proposed to establish the Vermont component of the Regional Greenhouse Gas Initiative (RGGI). Comments are due December 27, 2007. See http://www.anr.state.vt.us/air/htm/ProposedAmendments.htm

VIRGINIA

Water:

  • The State Water Control Board is soliciting public comment on the amendment of 9 VAC 25-260-30 concerning the designation of particular waters under the exceptional state waters category and the eligibility decision criteria for these waters. Public comments are due February 8, 2008. See http://legis.state.va.us/codecomm/register/vol24/iss07/v24i07.pdf (pp. 906-910)

WISCONSIN

Water:

  • The Department of Natural Resources will hold a public hearing on the repeal of ch. NR 209, revisions to ch. NR 102 and the creation of subchs. V and VI to ch. NR 106, Wis. Adm. Code, relating to thermal standards for Wisconsin surface waters. The proposed rule will establish water quality standards for temperature and procedures to calculate water quality-based effluent limitations to regulate the discharge of heated wastewater to prevent adverse impacts to fish and other aquatic life. The hearings will be held January 15, 17, 25, and 28, 2008. Comments are due February 28, 2008. See http://www.dnr.state.wi.us/org/caer/ce/news/hearmeet.html

Copyright© 2007, Environmental Law Institute, Washington, D.C. All rights reserved.

INTERNATIONAL

BALI CLIMATE TALKS CONCLUDE

  • Negotiations among almost 200 nations successfully concluded over the weekend as delegates agreed to a roadmap for the next two years of talks towards a successor agreement to the Kyoto Protocol that would include "deep cuts in global emissions" to combat climate change. While the agreement does not specify levels of emissions reductions, developing nations whose emissions are rapidly increasing are called upon to take mitigating action under the agreement, which also provides a mechanism for nations that preserve their tropical forests to generate and sell emission credits. In addition, the agreement calls for increased funding for adaptation in and technology transfer to developing nations. See http://www.reuters.com/article/topNews/idUSSP18660020071215?sp=true

COMMERCIAL USE OF GENETICALLY MODIFIED ORGANISMS TEMPORARILY BANNED IN FRANCE

STUDY PREDICTS DECLINE IN AUSTRALIAN AGRICULTURE DUE TO CLIMATE CHANGE

  • The Australian Bureau of Agricultural and Resource Economics released a study that predicts a dramatic drop in agricultural productivity in Australia over the next 50 years as a result of climate change. The authors conclude that combined wheat, beef, dairy, and sugar production may decline by as much as 9-10 percent by 2030, and 13-19 percent by 2050. Severe droughts have already crippled production multiple times in the past six years. The consequences of such a decline would extend to agricultural commerce worldwide, as Australia is one of the world’s top exporters of wheat, beef, dairy, and sugar. See http://www.planetark.org/dailynewsstory.cfm/newsid/45874/story.htm

Copyright© 2007, Environmental Law Institute, Washington, D.C. All rights reserved.

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