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Weekly Update Volume 40, Issue 1

01/11/2010

LITIGATION

CWA, NPDES PERMITS, PENALTY ASSESSMENT:

The Eighth Circuit reversed an EPA Environmental Appeals Board order imposing a $35,640 civil penalty against a construction site owner for failing to submit a stormwater permit application in a timely manner. Specifically, EPA sought a civil penalty from the owner for failing to apply for a permit before commencing construction at the site and for failing to comply with the permit's terms once it was issued. Although the owner conceded that it was subject to a penalty for certain discharges and permit violations after the permit was issued, it argued that the failure to apply for a permit prior to construction did not violate CWA §308(a) and, as such, could not be the basis for a civil penalty under §309(g)(1). The court agreed, finding that the owner's failure to comply with EPA's permit regulations, which required the owner to submit a permit applicationbeforeany discharge, could not be a violation of §308(a) since that provision only applies to “the owner or operator of any point source.” Before any discharge, there is no point source. Accordingly, the court granted the petition for review, vacated the order assessing a civil penalty, and remanded the case to the EPA for redetermination of the amount of the penalty.Service Oil, Inc. v. Environmental Protection Agency, No. 08-2819, 40 ELR 20002 (8th Cir. Dec. 28, 2009).

CERCLA, RESPONSE COSTS:

The Tenth Circuit affirmed a lower court decision holding an aircraft company liable under CERCLA for costs associated with EPA's attempt to list an airfield on the NPL. The costs at issue stem primarily from EPA's decision to conduct an expanded site inspection at the airfield. Although the company did not object to the lower court's conclusion that the inspection was a "removal or remedial action" for purposes of CERCLA, it argued that the costs were not recoverable because EPA abandoned its efforts to list the site on the NPL. The court disagreed, holding that a party who simply points to the government's decision to discontinue its efforts to list a site has failed to overcome the presumption that the inspection is consistent with the NCP.Raytheon Aircraft Co. v. United States, No. 08-3237, 40 ELR 20003 (10th Cir. Dec. 29, 2009).

NEPA, NUCLEAR WASTE:

The Second Circuit denied a petition for review challenging the NRC's decision not to reverse its 1996 EIS finding that spent fuel pools at nuclear power plants do not create a significant environmental impact within the meaning of NEPA. Because the NRC has given due consideration to the relevant studies concerning the rulemaking petitions, the court must defer to the NRC's expertise in determining the proper risk level associated with the storage of nuclear material in spent fuel pools. The relevant studies cited by the NRC constitute a sufficient "substantial basis in fact" for its conclusion that the overall risk is low. The petitioners simply disagree with the NRC's interpretation of those studies. And while the NRC relies in part upon mitigation at nuclear power plants to conclude that the risk of an accidental or terrorist-caused fire in the pools is uniformly low, an agency may take into account attempts to mitigate an environmental impact when determining that an environmental impact is small enough to not require an EIS so long as the effectiveness of the mitigation is demonstrated by substantial evidence. Here, the NRC relies on numerous studies detailing the effectiveness of its required mitigation measures. The petition was therefore denied.New York v. Nuclear Regulatory Commission, No. 08-3903, 40 ELR 20006 (2d Cir. Dec. 21, 2009).

CWA, NATURAL GAS ACT:

The Fourth Circuit dismissed a petition for review challenging Maryland's denial of a water quality certification request under CWA §401(a)(1) for a proposed large-scale liquefied natural gas (LNG) marine import terminal and pipeline project. Petitioners argued that Maryland waived its right to grant or deny the water quality certification request by failing to act within the CWA's one-year waiver period. But the initial request was not complete, and only a valid request for §401(a)(1) water quality certification will trigger the one-year waiver period. Here, Maryland acted within one year of the applicants' valid request for certification--the date the Corps verified that the certifying agency received a valid request for certification. Petitioners also argued that the state's denial was arbitrary and capricious. Maryland relied on four independent and alternative grounds for its denial, one of which was that the dredging required to accommodate the LNG tankers would create additional deep water areas where dissolved oxygen levels would fail to meet Maryland water quality standards. The court concluded that Maryland examined the relevant data pertaining to the effect on water quality in the areas of the proposed deep channel dredging and articulated a satisfactory explanation for its denial on that basis sufficient to pass muster under the narrow arbitrary and capricious standard of review. Accordingly, the court denied the petition without reaching the remaining grounds for Maryland’s denial.AES Sparrows Point LNG, LLC v. Wilson, No. 09-1539, 40 ELR 20007 (4th Cir. Dec. 22, 2009).

ESA, CANDIDATE SPECIES:

The Ninth Circuit, in an unpublished opinion, held that FWS did not arbitrarily or capriciously conclude that the West Coast range of the fisher--a medium-sized mammal also referred to as the "fisher cat"--is a distinct population segment (DPS) that should be listed as a candidate for protection under the ESA. Because the fisher is comprised of three subspecies, a company argued that the FWS erred by failing to specify whether the listing concerned a "DPS of species" or a "DPS of a subspecies." Here, the record shows that the FWS concluded that the fisher in its West Coast range was a "DPS of a species." This finding is amply supported with evidence and explanation in the existing record. The FWS' conclusion, therefore, is not arbitrary, capricious, or an abuse of discretion under the APA.Sierra Forest Products, Inc. v. Kempthorne, No. 08-16721, 40 ELR 20009 (9th Cir. Jan. 6, 2009).

BANKRUPTCY, JURISDICTION, ASBESTOS:

The Third Circuit affirmed a lower court decision denying a mining company's motion to expand a preliminary injunction and enjoin asbestos claims against the state of Montana arising from the company's mining operations. The company filed for Chapter 11 under the Bankruptcy Code in 2001. The same day it filed its Chapter 11 petition, it moved to preliminarily enjoin asbestos-related litigation against it and its non-debtor affiliates. The company's motion was granted. Prior to the company's filing for bankruptcy, the asbestos plaintiffs filed lawsuits against Montana in state court alleging that the state was liable to them for failing to warn them of the risks of asbestos from the mine. The mining company filed a motion in bankruptcy court asking that the preliminary injunction be expanded to include the plaintiffs' claims against the state, but the bankruptcy court properly denied the motion for lack of jurisdiction. A federal bankruptcy court does not have related-to jurisdiction over a third-party lawsuit if that lawsuit would affect the bankruptcy proceeding only through the intervention of yet another lawsuit.In re W.R. Grace & Co., Nos. 08-3697, -3720, 40 ELR 20001 (3d Cir. Dec. 31, 2009).

BANKRUPTCY, GOOD FAITH:

The Third Circuit affirmed a lower court order dismissing oil and gas exploration companies' bankruptcy petition for lack of good faith. The companies failed to show that their Chapter 11 bankruptcy petitions served valid bankruptcy purposes because the bankruptcies did not maximize the estates. Moreover, the timing of the filings, two months prior to a trial in which they faced substantial liability in a hazardous waste contamination case, show that the bankruptcy petitions were filed primarily as a litigation tactic. Indeed, the bankruptcy court found that the contamination case was the "principal factor” in the companies' filing for bankruptcy. At that time, discovery in the contamination case was already complete and the companies were worried that their dissolution defense would fail, exposing them to at least $189 million in damages.15375 Memorial Corp. v. Bepco L.P., Nos. 09-1391 et al., 40 ELR 20010 (3d Cir. Dec. 22, 2009).

CWA, SETTLEMENTS:

The Sixth Circuit remanded a lower court decision disapproving a proposed settlement in a CWA civil enforcement action brought by the United States and Kentucky against a county for sanitary and storm sewer system violations. The lower court found that the proposed civil penalty of $425,000 could be better directed toward alleviating the conditions that violated the CWA. Such a concern by itself cannot support rejection of an otherwise proper settlement in light of the express provision for civil penalties in the CWA. On remand, the lower court may approve the consent decree or explain more fully the exercise of its discretion in declining to approve the consent decree.United States v. Lexington-Fayette Urban County Government, No. 08-6296, 40 ELR 20011 (6th Cir. Jan. 7, 2010).

FOIA, EXEMPTIONS:

A district court denied the U.S. Army Corps of Engineers' motion to dismiss an environmental group's FOIA action seeking records pertaining to permits for development on two islands in the in the Magothy River, a tributary of the Chesapeake River. The Corps argued that it properly withheld the records from disclosure under FOIA exemptions 5 and 7. But the Corps' declarations in support of withholding the records are nothing more than "vague, broad, and wholesale claims of exempt status." The court, therefore, cannot assess the propriety of the Corps' withholdings on the basis of these declarations. The Corps also submitted a "Vaughn" index, providing dates and brief descriptions of the withheld records. But the index does not describe how the asserted exemptions apply to the withheld documents. Nevertheless, the asserted justifications may be valid as to at least some of the withheld records. Accordingly, the court did not grant summary judgment in favor of the group on their FOIA claims. Rather, if the Corps wishes to maintain its exemption claims, it must supplement its Vaughn index and declarations, adequately describing the records withheld and specifically detailing how the claimed exemptions apply to the withheld information.Chesapeake Bay Foundation v. U.S. Army Corps of Engineers, No. 09-1054, 40 ELR 20013 (D.D.C. Dec. 30, 2009) (Bates, J.).

CIVIL PROCEDURE, VENUE:

A district court denied EPA's and the U.S. Army Corps of Engineers' motion to transfer to Arizona a lawsuit brought by housing and construction associations challenging the agencies' designation of two reaches of the Santa Cruz River in Arizona as "traditional navigable waters" under the CWA. Although there is some local interest in deciding this case in the district of Arizona, this consideration is outweighed by the need to grant deference to the associations' choice of forum given that their claims arose in the District of Columbia.National Ass'n of Home Builders v. United States Environmental Protection Agency, No. 09-0548, 40 ELR 20012 (D.D.C. Dec. 30, 2009) (Urbina, J.).

CALIFORNIA ENVIRONMENTAL QUALITY ACT, "PROJECT":

The California Supreme Court held that a county's decision not to renew a conditional use permit for a private airport is not a "project" subject to environmental review under the California Environmental Quality Act (CEQA). Declining to renew the conditional use permit was not a public project under CEQA because the county did not "directly undertake" to close the airport. Instead, it decided not to reauthorize a private activity that required the issuance of a permit. The airport operation was the project in question, and projects rejected by a public agency are specifically exempted from CEQA requirements.Sunset Sky Ranch Pilots Ass'n v. County of Sacramento, No. S165861, 40 ELR 20004 (Cal. Dec. 28, 2009).

LAND USE, COASTAL DEVELOPMENT:

A California appellate court affirmed the California Coastal Commission's denial of an individual's application for a coastal development permit for a residential and commercial project. The project, approved by the city, was located in an area zoned for commercial visitor-serving uses. Despite the city's recommendations that the project be approved with conditions, the Commission voted unanimously to deny the project as inconsistent with the city's local coastal plan policies with respect to bluff development, visual resources, parking, visitor-serving priorities, and community character. The individual filed a petition for writ of mandate. The trial court properly denied the petition. The Commission's interpretation of the city's local coastal plan and Coastal Act Provisions is reasonable, and substantial evidence supports its decision. The record also shows that the Commission considered but was not persuaded by the individual's revised plans. In addition, the individual's claim for damages for a regulatory taking of property is not ripe. The Commission has indicated its willingness to review a revised proposal and there is nothing in the record to presume that the Commission will fail to do so. Nor did the trial court err in dismissing the complaint.Reddell v. California Coastal Commission, No. B206428, 40 ELR 20005 (Cal. Ct. 2d Dist. Dec. 29, 2009).

HAZARDOUS WASTE, CRIMINAL LAW:

A California appellate court upheld an individual's conviction for the unlawful disposal of hazardous waste but reversed his sentence. There was sufficient evidence to support his conviction and the trial court did not abuse its discretion in ordering him to pay the local hazardous materials management agency for the costs of investigation as a condition of probation. However, the individual's sentence was reversed. The trial court erred in imposing restitution fines under the California Health and Safety Code, which resulted in duplicate fines. Imposing duplicate fines constitutes multiple punishment for the same act or course of conduct in violation of the Penal Code. The court also erred in imposing excessive court security fees and in assessing a court construction fee.People v. Tarris, No. E046290, 40 ELR 20008 (Cal. App. 4th Dist. Dec. 21, 2009).

Copyright© 2010, Environmental Law Institute, Washington, D.C. All rights reserved.

THE FEDERAL AGENCIES

Note: Citations below are to theFederal Register(FR).

AIR:

  • EPA promulgated NESHAPs for the chemical preparations area source category.74 FR 69194(12/30/09).
  • EPA issued NESHAPs for the prepared feeds manufacturing area source category.75 FR 522(1/5/10).
  • EPA proposed to revise the NAAQS for lead and associated monitoring requirements.74 FR 69050(12/30/09).
  • EPA granted in part and denied in part a petition to object to a merged PSD and state operating permit issued by the Kentucky Division for Air Quality to East Kentucky Power Cooperative, Inc., for its Hugh L. Spurlock generating station in Maysville, Kentucky.74 FR 68057(12/22/09).
  • EPA proposed to update outer continental shelf air regulations for the South Coast air quality management district in California.74 FR 67845(12/21/09).
  • SIP Approvals:Arizona (2008 carbon monoxide limited maintenance plan for the Tucson air planning area and vehicle emissions inspection program through 2016)74 FR 67819(12/21/09). California (volatile organic compound (VOC) emissions for the South Coast air quality management district)74 FR 67821(12/21/09); (failure to submit SIPs for three nonattainment areas)75 FR 232(1/5/10). Indiana (continuous emission monitoring rule and alternative monitoring requirements)74 FR 68541(12/28/09). Iowa (SIP and operating permits program)74 FR 68692(12/29/09). Missouri (visible air contaminants)74 FR 68689(12/29/09). North Carolina (1997 fine particulate matter NAAQS for the Greensboro-Winston Salem-High Point nonattainment area)75 FR 54(1/4/10); (1997 fine particulate matter NAAQS for the Hickory-Morganton-Lenoir nonattainment area)75 FR 230(1/5/10). Tennessee (1997 eight-hour ozone NAAQS for the Shelby County, Tennessee, and Crittenden County, Arkansas, nonattainment area)75 FR 56(1/4/10).
  • SIP Proposals:California (VOC emissions for the South Coast air quality management district; see above for direct final rule)74 FR 67844(12/21/09); (VOC emissions for the South Coast air quality management district and the Ventura County air pollution control district)74 FR 68759(12/29/09). Indiana (continuous emission monitoring rule and alternative monitoring requirements; see above for direct final rule)74 FR 68557(12/28/09). Iowa (SIP and operating permits program; see above for direct final rule)74 FR 68761(12/29/09). Kentucky (1997 eight-hour ozone NAAQS for the Paducah area through 2020)75 FR 97(1/4/10). Maryland (1997 eight-hour ozone NAAQS for the Baltimore moderate nonattainment area)75 FR 953(1/7/10). Missouri (visible air contaminants; see above for direct final rule)74 FR 68758(12/29/09).

ENERGY:

  • DOE announced that it is accepting claims in FY 2010  from eligible active uranium and thorium processing site licensees for reimbursement of remedial action costs under Title X of the Energy Policy Act of 1992.74 FR 68598(12/28/09).

HAZARDOUS & SOLID WASTE:

  • The Pipeline and Hazardous Materials Safety Administration adjusted the maximum and minimum civil penalties for a knowing violation of the federal hazardous material transportation laws, as required by 28 U.S.C. §2461.74 FR 68701(12/29/09).
  • EPA amended its hazardous waste regulations under RCRA concerning the transboundary movement of hazardous waste among countries belonging to the Organization for Economic Cooperation and Development, notice and consent requirements for spent lead-acid batteries intended for reclamation in a foreign country, exception reports for hazardous waste exports, and import consent documentation for incoming hazardous waste.75 FR 1236(1/8/10).
  • EPA identified the classes of facilities within the chemical manufacturing industry, the petroleum and coal products manufacturing industry, and the electric power generation transmission and distribution industry as those for which the Agency plans to develop, as necessary, a proposed regulation identifying appropriate financial responsibility requirements under CERCLA §108(b).75 FR 816(1/6/10).
  • EPA announced the availability of draft recommended interim preliminary remediation goals for dioxin in soil at CERCLA and RCRA sites.75 FR 984(1/7/10).
  • EPA authorized revisions to Oregon's hazardous waste management program.75 FR 918(1/7/10).
  • EPA entered into a proposed administrative settlement under CERCLA for U.S. response costs incurred at the East 23rd Battery Superfund site in Tampa, Florida.74 FR 68267(12/23/09).
  • EPA entered into a proposed administrative settlement under CERCLA that requires 122 settling parties to pay $3,103,173 in U.S. response costs incurred at the Malone Service Company Superfund site in Texas City, Texas.74 FR 68844(12/29/09).
  • EPA entered into a proposed administrative settlement under CERCLA that requires the settling parties to pay $320,000 in U.S. response costs incurred at the Howe Cleaners Superfund site in Barre, Vermont.75 FR 146(1/4/10).
  • EPA granted a petition to delist up to 140 cubic yards of sludge per year generated by Professional Plating, Inc., at its wastewater treatment plant in Brillion, Wisconsin, from the list of hazardous wastes.74 FR 69028(12/30/09).

OFFICE OF THE PRESIDENT:

  • The president proclaimed January 1, 2010, as the 40th anniversary of NEPA.75 FR 885(1/7/10).

TOXIC SUBSTANCES:

  • EPA amended the electronic reporting requirements for TSCA §5 submissions.75 FR 773(1/6/10).
  • EPA proposed to revoke a significant new use rule under TSCA §5(a)(2) for the chemical substance polyalkyl phosphate.74 FR 69320(12/31/09).

WATER:

  • EPA Region 6 determined that it will not reissue the NPDES general permit for egg production operations in New Mexico and Oklahoma.74 FR 68844(12/29/09).

WILDLIFE:

  • FWS determined that the Galapagos petrel and the Heinroth's shearwater should be listed as threatened under the ESA throughout their range.75 FR 235(1/5/10).
  • FWS proposed to list six foreign species of birds found in Africa, Europe, French Polynesia, and Southeast Asia as endangered under the ESA.75 FR 286(1/5/10).
  • FWS proposed to list six bird species in Bolivia and Peru as endangered under the ESA throughout their range.75 FR 606(1/5/10).
  • NOAA-Fisheries announced its 90-day finding on a petition to list Atlantic sturgeon as endangered, or to list multiple distinct population segments as threatened or endangered, and to designate critical habitat under the ESA. The Agency found that listing may be warranted and is preparing a final determination.75 FR 838(1/6/10).
  • NOAA-Fisheries announced a 90-day finding on a petition to list the insular population of Hawaiian false killer whales as endangered under the ESA; the agency found that listing may be warranted and initiated a status review.75 FR 316(1/5/10).
  • NOAA-Fisheries proposed to designate approximately 70,600 additional square miles as critical habitat for the leatherback sea turtle along the California, Oregon, and Washington coast.75 FR 319(1/5/10).

DOJ NOTICES OF SETTLEMENT:

  • United States v. Newell Holdings Delaware, Inc., No. 5:07-cv-164 (N.D. W. Va. Dec. 18, 2009). A settling CERCLA defendant must pay $800,000 in U.S. response costs incurred at the Eighth and Plutus Streets Pottery Superfund site in Chester, West Virginia.74 FR 68430(12/24/09).
  • United States v. United Technologies Corp., No. 2:09-cv-2801-BBD-cgc (W.D. Tenn. Dec. 11, 2009). A settling CERCLA defendant must undertake the EPA-selected remedial action at the Sixty One Industrial Park Superfund site in Memphis, Tennessee, and must pay all past and future oversight costs incurred at the site, plus interest.74 FR 68283(12/23/09).
  • United States v. Littlestown Foundry, Inc., No. 1:08-cv-00314 (D.N.J. Dec. 15, 2009). A settling CERCLA defendant must pay $200,000 in U.S. response costs incurred at the Pioneer Smelting Superfund site in Chatsworth, New Jersey.74 FR 67899(12/21/09).
  • United States v. Ausimont Industries, Inc., No. 1:09-cv-12169 (D. Mass. Dec. 22, 2009). Twenty settling CERCLA defendants must pay all future response and remedy oversight costs incurred at the Sutton Brook Disposal Area Superfund site in Tewksbury, Massachusetts, to the United States and Massachusetts; must pay $512,000 in past response costs to Massachusetts; must pay $825,000 in costs to the DOI; and must pay $825,000 in costs to Massachusetts. Also, 29 additional settling CERCLA defendants must pay their allocated share into a trust for remedial cleanup, response costs, and natural resource damages.74 FR 69147(12/30/09).
  • United States v. Cinergy Corp., No. 1:99-cv-01693-LJM-JMS (S.D. Ind. Dec. 22, 2009). A settling CAA defendant must pay a $1.75 million civil penalty, must fund $6.25 million in environmental mitigation projects, and must reduce sulfur dioxide emissions at the Gallagher generating station in New Albany, Indiana.74 FR 68866(12/29/09).
  • United States v. Thoro Products Co., No. 04-M-2330 (D. Colo. Dec. 22, 2009). A settling CERCLA defendant must pay $573,355.54 in past and future U.S. response costs incurred at the Rocky Flats Industrial Park Superfund site in Jefferson County, Colorado.75 FR 1082(1/8/10).
  • United States v. Jose & Guillermina Sierra, No. 1:09-CV-1149 (W.D. Mich. Dec. 28, 2009). Settling Lead Hazard Reduction Act defendants must pay a $6,000 administrative penalty, must certify compliance with residential lead paint notification requirements, must submit an ongoing operations and maintenance plan, and must abate lead-based paint hazards identified in all their residential properties in the Grand Rapids, Michigan, area.75 FR 159(1/4/10).

Copyright© 2010, Environmental Law Institute, Washington, D.C. All rights reserved.

THE CONGRESS

Citations below are to theCongressional Record(Cong. Rec.).

Committee Action

  • H.R. 2188 (wildlife)was reported by the Committee on Environment and Public Works. S. Rep. No. 111-111, 155 Cong. Rec. S13698 (daily ed. Dec. 21, 2009). The bill would authorize the Secretary of the Interior, through the FWS, to conduct a joint venture program to protect, restore, enhance, and manage migratory bird populations, their habitats, and the ecosystems they rely on through voluntary actions on public and private lands.

Bills Introduced

  • S. 2906 (Cantwell, D-Wash.) (land)would amend the Act of August 9, 1955, to modify a provision relating to leases involving certain Indian tribes. 155 Cong. Rec. S13458 (daily ed. Dec. 18, 2009). The bill was referred to the Committee on Indian Affairs.
  • S. 2907 (Murkowski, R-Alaska) (land use)would establish a coordinated avalanche protection program. 155 Cong. Rec. S13458 (daily ed. Dec. 18, 2009). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2908 (Kohl, D-Wis.) (Energy Policy and Conservation Act)would amend the Energy Policy and Conservation Act to require the Secretary of Energy to publish a final rule that establishes a uniform efficiency descriptor and accompanying test methods for covered water heaters. 155 Cong. Rec. S13458 (daily ed. Dec. 18, 2009). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2913 (Collins, R-Me.) (toxic substances)would establish a national mercury monitoring program. 155 Cong. Rec. S13458 (daily ed. Dec. 18, 2009). The bill was referred to the Committee on Environment and Public Works.
  • S. 2921 (Feinstein, D-Cal.) (energy)would provide for the conservation, enhanced recreation opportunities, and development of renewable energy in the California Desert Conservation Area and require the Secretary of the Interior to designate certain offices to serve as Renewable Energy Coordination Offices for coordination of federal permits for renewable energy projects and transmission lines to integrate renewable energy development. 155 Cong. Rec. S13698 (daily ed. Dec. 21, 2009). The bill was referred to the Committee on Energy and Natural Resources
  • H.R. 4411 (Roskam, R-Ill.) (energy)would amend the Internal Revenue Code of 1986 to clarify and make permanent the accelerated depreciation of natural gas distribution property. 155 Cong. Rec. H15508 (daily ed. Dec. 23, 2009). The bill was referred to the Committee on Ways and Means.
  • H. Res. 995 (Boozman, R-Ariz.) (water)would request the President to transmit to the House of Representatives all information relating to nutrient management of the Illinois River Watershed, Arkansas and Oklahoma, in the possession of the EPA Administrator. 155 Cong. Rec. H15508 (daily ed. Dec. 23, 2009). The resolution was referred to the Committee on Transportation and Infrastructure.

Copyright© 2010, 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. To access material previously reported in 2009, visit our list ofCumulative State Developments. For state material reported prior to 2009, visit theELR Archives.

The states below have updates this week:

AlaskaIndianaNevadaCaliforniaMissouriNew MexicoFloridaMontana 

ALASKA

Water:

  • The Department of Environmental Conservation adopted amendments to Alaska Admin. Code tit. 18, §§72.440, 72.955, 72.956, 72.957, 72.959, regulations dealing with wastewater disposal. Wastewater fees were amended to reflect the average actual and direct costs of providing the regulatory service for which the fees are collected, including fees for wastewater discharges under individual permits and fees for authorizations under general permits. New fees were added for sewage lagoons, fire training centers, commercial car washes, Arctic oil and gas facilities, and underground injection wells, as well as a late fee that reflects the direct cost of processing a late payment. Seehttp://notes4.state.ak.us/pn/pubnotic.nsf/cc52605f7c156e7a8925672a0060a91b/a924207fe9165dd0892576780066b71e?OpenDocument

CALIFORNIA

Water:

  • The State Water Resources Control Board will hold a public hearing on proposed amendments to Cal. Code Regs. tit. 23, §27, Regulations for the Implementation of the Environmental Control Act of 1970. The principal substantive changes to the existing regulations include clarifying the roles among the state and regional water boards when acting as lead or responsible agency; requiring early public consultation prior to the review of draft substitute environmental documentation (SED); and setting forth the processes for preparing a draft SED, the submittal of public comments on the draft SED, agency approval of a final SED, and the issuance of a notice of decision. The hearing will be February 17, 2009. Seehttp://www.oal.ca.gov/res/docs/pdf/notice/1z-2010.pdf(pp. 19-21)

FLORIDA

Air:

  • The Department of Environmental Protection proposed amendments to Fla. Admin. Code Ann. r. 62-210.200, Definitions; 62-210.900, Forms and Instructions; 62-213.205, Annual Emissions Fee; 62-213.420, Permit Applications; 62-213.440, Permit Content; 62-213.460, Permit Shield; 62-214.320, Applications; 62-296.412, Dry Cleaning Facilities; 62-296.418, Bulk Gasoline Plants; and 62-296.500, Reasonably Available Control Technology–Volatile Organic Compounds and Nitrogen Oxides Emitting Facilities. The proposed rule updates the department's air regulatory requirements for electric power plants resulting from discontinuance of the federal mercury emissions trading program, eliminates the federal mercury trading provisions in Title V air operation permits for electric power plants, clarifies and corrects provisions related to the department's implementation of the federal Acid Rain Program, and updates the department's stationary source air pollutant emission standards to eliminate obsolete language. Seehttps://www.flrules.org/Faw/FAWDocuments/FAWVOLUMEFOLDERS2009/3552/3552doc.pdf(pp. 6763-70)

Water:

  • The Southwest Florida Water Management District proposed amendments to Fla. Admin. Code Ann. r. 40D-2.091, Publications Incorporated by Reference; 40D-2.301, Conditions for Issuance of Permits; and 40D-2.801, Water Use Caution Areas. The proposed amendments revise the Conditions for Issuance of Permits, Part B of the Water Use Permit Information Manual, and the Northern Tampa Bay Water Use Caution Area provisions to reflect the permitting criteria for wetlands, lakes, streams, springs, saltwater intrusion/aquifers levels and minimum flows and levels applicable to water withdrawals within the Northern Tampa Bay Water Use Caution Area through the year 2020. Seehttps://www.flrules.org/Faw/FAWDocuments/FAWVOLUMEFOLDERS2009/3552/3552doc.pdf(pp. 6733-57)

INDIANA

Air:

MISSOURI

Air:

  • The Department of Natural Resources adopted amendments to Mo. Code Regs. Ann. tit. 10, §§10-6.362, Clean Air Interstate Rule Annual Nitrogen Oxide (NOx) Trading Program; 10-6.364, Clean Air Interstate Rule Seasonal NOx Trading Program; 10-6.366, Clean Air Interstate Rule SO2 Trading Program; and 20-10.010, Applicability. Seehttp://www.sos.mo.gov/adrules/moreg/current/2010/v35n1/v35n1a.pdf(pp. 21-24).

Toxic Substances:

  • The Department of Natural Resources adopted amendments to Mo. Code Regs. Ann. tit. 10, §§20-10.011, Interim Prohibition for Deferred UST Systems; 20-10.012, Definitions; 20-10.020, Performance Standards for New UST Systems; 20-10.021, Upgrading of Existing UST Systems; 20-10.022, Notification Requirements; 20-10.030, Spill and Overfill Control; 20-10.031, Operation and Maintenance of Corrosion Protection; 20-10.032, Compatibility; 20-10.033, Repairs Allowed; 20-10.034, Reporting and Recordkeeping; 20-10.040, General Requirements for Release Detection for All UST Systems; 20-10.041, Requirements for Petroleum UST Systems; 20-10.042, Requirements for Hazardous Substance UST Systems; 20-10.043, Methods of Release Detection for Tanks; 20-10.044, Methods of Release Detection for Piping; 20-10.045, Release Detection Recordkeeping; 20-10.050, Reporting of Suspected Releases; 20-10.051, Investigation Due to Off-Site Impacts; 20-10.052, Release Investigation and Confirmation Steps; 20-10.053, Reporting and Cleanup of Spills and Overfills; 20-10.060, Release Response and Corrective Action; 20-10.061, Initial Release Response; 20-10.062, Initial Abatement Measures and Site Check; 20-10.063, Initial Site Characterization; 20-10.064, Free-Product Removal; 20-10.065, Investigations for Soil and Groundwater; 20-10.066, Corrective Action Plan; 20-10.067, Public Participation Cleanup; 20-10.068, Risk-Based Clean-Up Levels; 20-10.070, Temporary Closure; 20-10.071, Permanent Closure and Changes in Service; 20-10.072, Assessing the Site at Closure or Change in Service; and 20-10.073, Applicability to Previously Closed UST Systems. Seehttp://www.sos.mo.gov/adrules/moreg/current/2010/v35n1/v35n1a.pdf(pp. 23-53)

MONTANA

Air:

  • The Department of Environmental Quality will hold a public hearing on proposed amendments to Mont. Admin. RR. 17.8.501, 17.8.504, 17.8.601, 17.8.740, 17.8.743, 17.8.744, 17.8.745, 17.8.801, 17.8.901, and 17.8.1201, pertaining to definitions, fees, and permits, and the adoption of New Rules I through XX pertaining to temporary greenhouse gas emission rules. The hearing will be held January 22, 2010. Seehttp://deq.mt.gov/dir/legal/Notices/17-299pro.pdf

NEVADA

Energy:

NEW MEXICO

Air:

  • The New Mexico Environmental Improvement Board will hold a publichearing onproposed new regulations and the amendment of various other sections in N.M. Code R. §§20.2.1, 20.2.2, 20.2.70 and 20.2.72.The regulations wouldregulate greenhouse gas emissions statewide as an air pollutant and public nuisance through the imposition of an emissions cap.The hearing will be March 1, 2010. Seehttp://www.nmcpr.state.nm.us/nmregister/xx/xx24/Environotice.htm

Copyright© 2010, Environmental Law Institute, Washington, D.C. All rights reserved.

INTERNATIONAL

CHINA'S SOLARFUN TO INCREASE CAPACITY IN 2010

Chinese photovoltaic (PV) cell maker Solarfun Power Holdings Co. Ltd announced it would increase its production capacity this year, anticipating higher demand. The company said it would increase its PV module production capacity from 500 megawatts (MW) to 700 MW by April and its PV cell production capacity from 360 MW to 480 MW by July."We are expecting to see strong demand from areas with increased subsidies to solar projects such as China and the United States," Solarfun President Peter Xie said in a press release. Demand for solar power products has rebounded after a difficult 2009, when the global credit crisis dried up available financing for new projects and panel prices plummeted. Chinese players in particular have seized on rising demand, turning their low cost structures into sales, and several plan to boost production capacity in 2010.For the full story, visithttp://www.reuters.com/article/idUSTRE60718U20100108.

COPEHAGEN ACCORD IS A FIRST STEP, SAYS EU ENVIRONMENT COMMISSIONER

European Union (EU) Environment Commissioner Stavros Dimas concluded that the Copenhagen Accord is a first step toward a legally binding global climate agreement. Commissioner Dimas said: "A lot of work still needs to be done. We must now ensure that the Copenhagen Accord becomes operational and as such constitutes the core of a new climate treaty. Regardless of what happens internationally, the EU will continue to implement its climate policy. As well as contributing to Europe's environmental sustainability, this will help the EU gain a first mover advantage on the road to building a low-carbon economy." He said that although the Accord fell well short of the level of ambition that was needed to prevent dangerous climate change, it contained many of the elements the EU had fought for. This includes recognition of the 2 degree Celsius objective, economy-wide emission reduction targets for developed countries and mitigation action by developing countries by January 31, 2010, and a substantial finance package of $30 billion (USD) for the coming three years and $100 billion (USD) by 2020. It also provides for a mechanism to accelerate technology cooperation. He said a crucial first step would be to ensure that all key parties confirm their endorsement of the Accord and notify their targets or actions by January 31, 2010.For the full story, visithttp://europa.eu/rapid/pressReleasesAction.do?reference=IP/09/1997&format=HTML&aged=0&language=EN&guiLanguage=enUNITED KINGDOM WIND FARM ZONES ARE ANNOUNCEDSuccessful bids for nine new offshore wind farm zone licenses within U.K. waters have been announced. A consortium including Npower and Norway's Statkraft won the license for the biggest zone, in Dogger Bank, which could produce nine gigawatts of energy. Turbines in the nine zones could generate up to 32 gigawatts of power, a quarter of the United Kingdom's electricity needs. The winners have signed exclusive agreements with the Crown Estate, which owns the U.K. seabed. For the full story, seehttp://news.bbc.co.uk/2/hi/business/8448203.stm

Copyright© 2010, Environmental Law Institute, Washington, D.C. All rights reserved.

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