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Weekly Update Volume 40, Issue 11

04/12/2010

LITIGATION 

CAA, EMISSION STANDARDS, MOBILE SOURCES

The D.C. Circuit denied a trucking association’s petition to review an EPA decision authorizing under the CAA a California rule that regulated emissions from transportation refrigeration units (TRUs) in trucks. The rule required all TRUs carried on trucks operating in California to comply with the emission standards. Considering whether California needed the rule to meet compelling and extraordinary conditions in California, the court held that the CAA’s expansive statutory language gives California (and in turn EPA) a good deal of flexibility in assessing California’s regulatory needs. There is therefore no basis to disturb EPA’s reasonable interpretation of this criterion. In addition, considering the rule’s impact on the other states’ ability to follow or decline to follow California’s lead, the court held that the rule does not require any other state to adopt California’s approach: if the association’s members operate trucks in California, they must comply while operating in California; if they do not operate in California, they need not comply. In addition, EPA gave appropriate consideration to the cost of compliance with the rule. Although the costs of the rule are not insignificant, EPA’s duty under this portion of the statute is simply to consider the costs. It did so here.American Trucking Ass'ns, Inc. v. Environmental Protection Agency, No. 09-1090, 40 ELR 20110 (D.C. Cir. Apr. 2, 2010).

ESA, JEOPARDY, CUMULATIVE EFFECTS

The Fifth Circuit denied an environmental group’s petition to review a Surface Transportation Board (STB) decision that granted an exemption to a railroad company to construct and operate a rail line to service a proposed limestone quarry, which was to be developed in phases, without meeting certain approval requirements. At issue was whether the STB and the FWS complied with their obligations under ESA §7 to ensure that the proposed rail was not likely to jeopardize the continued existence of certain endangered species before approving the exemption. The group asserted, among other things, that the decision was arbitrary and capricious because it relied on a biological assessment that assessed only the proposed rail and the first phase of the project, and not the proposed development of the entire project. To start, the court held that the STB’s and FWS’s refusal to consider the proposed development of the entire project as an “interrelated action” did not render the decision arbitrary and capricious. The issue, for purposes of determining whether the proposed development of the entire project was an interrelated action, is whether, but for the proposed rail, development of the quarry would occur. Here, STB specifically found that the quarry could feasibly be operated without a rail line. At the same time, STB’s and FWS’s refusal to consider the proposed development of the entire project as a “cumulative effect” of the proposed rail line did not render the decision arbitrary and capricious: the group had not shown that the future phases of the quarry were free from regulatory and financial contingencies such that their occurrence would be reasonably foreseeable, much less reasonably certain. Finally, the record does not support the conclusion that the STB’s and FWS’s refusal to consider the proposed development of the entire project as an “indirect effect” rendered the decision arbitrary and capricious. As determined in the cumulative effects analysis, the development of the remaining phases of the quarry is not “reasonably certain to occur” – the same standard applicable to “indirect effects.”Medina County Environmental Action Ass’n v. Surface Transportation Board, No. 09-60108, 40 ELR 20113 (5th Cir. Apr. 6, 2010).

CAA, PREVENTION OF SIGNIFICANT DETERIORATION, POWER PLANT

A district court entered judgment for the Tennessee Valley Authority (TVA) with respect to environmental groups’ claims that the TVA violated the CAA and the Tennessee SIP in its operation of a fossil fuel-fired electricity generating facility. The groups argued that two projects, the economizer replacement and the superheater replacement, constituted “major modifications” and, as a result, the TVA was liable for failing to comply with the PSD requirements applicable to such major modifications. The court disagreed, holding that the projects fell within the routine maintenance, repair, and replacement exception. First, considering the nature and extent of the projects, the projects, although not small, were not extraordinary tasks. Second, the purpose of the projects was to reduce the number of forced outages resulting from boiler tube leaks in the economizer and secondary superheater; any “life extension” effected as a result of the projects was thus a byproduct of, rather than the primary purpose of, the replacements. Third, the replacements were common in the industry and not unusual at the facility. Finally, the cost of the projects was not uncommonly high. Since the projects were classified as a capital expenditure, the relevant comparison is to other capital projects. Compared with that category of projects, the replacements were unremarkable. Indeed, the actual cost of these projects was a small fraction of the TVA ’s $300 million annual capital budget.National Parks Conservation Ass’n, Inc. v. Tennessee Valley Authority, No. 3:01-cv-71, 40 ELR 20111 (E.D. Tenn. Mar. 31, 2010) (Varlan, J.).

RCRA, CITIZEN SUIT, ADMINISTRATIVE ORDER

A district court denied defendants’ motion to dismiss an environmental group’s claims under the citizen suit provisions of RCRA to abate an alleged imminent and substantial endangerment to human health and the environment posed by trichloroethylene and perchloroethylene disposed at a landfill. Defendants asserted that the group’s claims should be dismissed because, among other things, Tennessee stepped into the shoes of the EPA administrator for purposes of enforcing the federally-mandated hazardous waste program based on a memorandum of understanding (MOU) between the state and EPA. Because the state issued an order that required certain actions be taken with regard to the landfill, the group’s action was therefore barred under RCRA §7002(b)(2)(B)(iv). The court disagreed, finding that the subchapter cited by the MOU did not authorize the state to step into the shoes of the EPA administrator for purposes of bringing an action or issuing an order regarding an imminent hazard. That authority is retained by the EPA administrator, who is required to simply provide notice to the affected state. The state order therefore did not preclude the group’s suit. The court went on to find that, despite defendants’ assertions otherwise, the group had standing to sue, its claims were not moot and the doctrines of abstention and primary jurisdiction did not warrant dismissal of the case.Natural Resources Defense Council v. County of Dickson, Tennessee, No. 3:08-0229, 40 ELR 20115 (M.D. Tenn. Apr. 1, 2010) (Campbell, J.).

CALIFORNIA ENVIRONMENTAL QUALITY ACT, STATUTE OF LIMITATIONS

The California Supreme Court reversed a lower court decision to find that a citizen group’s suit challenging a city’s approval of a Wal-Mart was time barred under the California Environmental Quality Act (CEQA). The city filed a notice of exemption (NOE) announcing its determination that the approval came within CEQA’s exemption for ministerial action. Nearly six months later, the group challenged the approval under CEQA and argued that, because the approval was invalid and ineffective for various procedural and substantive reasons, the NOE was void and could not trigger the 35-day statute of limitations (SOL). The court disagreed, holding that flaws in the decision-making process underlying a facially valid and properly filed NOE do not prevent the NOE from triggering the SOL. By describing the project in question, setting forth the agency’s action or decision and detailing the reasons for the exemption finding, the notice tells the public that the brief period within which a CEQA challenge to the propriety of the noticed action or decision may be commenced has begun to run. The court further held that the NOE in this case was not defective in form and content, but demonstrated minimal compliance with CEQA.Stockton Citizens for Sensible Planning v. City of Stockton, No. S159690, 40 ELR 20109 (Cal. Apr. 1, 2010).

HYDROELECTRIC POWER, PREEMPTION, ATTORNEYS FEES

A California appellate court affirmed a lower court decision that held that the California Regional Water Quality Control Board (Board) had no authority to enforce state law governing waste discharge to several hydroelectric dams operating under a federal license. The United States Supreme Court, followed by the Ninth Circuit, has twice validated expansive federal authority in the form of the Federal Power Act over the conditions governing operation of hydroelectric projects. The lower court therefore correctly recognized that it should not compel the Board to upset this long-settled applecart. At the same time, the lower court abused its discretion in granting attorneys fees to the plaintiffs because the statutory prerequisites under Code of Civil Procedure §1021.5 are absent. From a realistic appreciation of the entirety of the litigation, plaintiffs did not prevail on a significant issue and do not qualify as successful parties; they did not enforce an important public right; and they did not confer a significant benefit on the general public or a large class of persons.Karuk Tribe of Northern California v. California Regional Water Quality Control Board, Nos. A124351 et al., 40 ELR 20107 (Cal. Ct. App. Mar. 30, 2010).

WATER RIGHTS, PRIOR ADJUDICATION, PERMITS

A California appellate court affirmed a lower court order clarifying and enforcing a prior decision, which had defined the rights of parties interested in the production of groundwater from the Seaside Basin, by restricting a water management district’s authority to require environmental review of permit applications from the water-producing parties. As a preliminary matter, the court held that the motion for declaratory relief was procedurally proper: the issue addressed in the motion was whether the district’s decision involved subject matter already covered by the prior decision and reserved for future adjudication. Consideration of the motion required the court to revisit its prior decision and clarify its scope; it did not call for a ruling on the merits of the underlying application. As to the merits, the court held that the lower court did not err in ruling that certain of the district’s findings, in which it denied the water producing parties’ permit application, contravened the prior decision to the extent they purported to adjudicate water rights in the Seaside Basin. The lower court acted within its jurisdiction and properly exercised its discretion in adhering to its prior rulings to minimize conflict with and frustration of the prior decision. In so doing, it facilitated both the exercise of the parties’ water rights and the beneficial use of the Seaside Basin. The court therefore properly directed the district to reconsider its findings in a manner consistent with the prior decision.California American Water v. City of Seaside, No. H034335, 40 ELR 20112 (Cal. Ct. App. Apr. 1, 2010).

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

THE FEDERAL AGENCIES

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

AIR:

  • EPA revised its regulations relating to the CAA requirement that federal actions conform to the appropriate state, tribal, or federal implementation plan for attaining clean air.75 FR 17254(4/5/10).
  • SIP Approvals:Arizona (particulate matter (PM) emissions for Pinal County)75 FR 17307(4/6/10). California (volatile organic compound (VOC) emissions for the Sacramento metropolitan air quality management district)75 FR 18068(4/9/10). Delaware (various revisions to the Delaware portion of the Philadelphia 1997 eight-hour ozone NAAQS moderate nonattainment area)75 FR 17863(4/8/10). New Mexico (interstate transport of pollution)75 FR 17868(4/8/10). Texas (control of air pollution from motor vehicles)75 FR 18061(4/9/10). Wisconsin (update of PM standards)75 FR 17865(4/8/10).
  • SIP Proposals:California (VOC emissions for the Sacramento metropolitan air quality management district; see above for direct final rule)75 FR 18143(4/9/10). New Mexico (interstate transport of pollution; see above for direct final rule)75 FR 17894(4/8/10). Texas (control of air pollution from motor vehicles; see above for direct final rule)75 FR 18142(4/9/10). Wisconsin (update of PM standards; see above for direct final rule)75 FR 17894(4/8/10).

HAZARDOUS & SOLID WASTE:

  • EPA entered into a proposed cost recovery settlement agreement under CERCLA that requires the settling party to pay $82,000 in U.S. response costs incurred at the Kentucky Avenue Wellfield Superfund site in Horseheads, New York.75 FR 17139(4/5/10).

MINING:

  • OSM approved an amendment to Oklahoma's regulatory program under SMCRA regarding the abatement period for notices of a violation.75 FR 18048(4/9/10).

TOXIC SUBSTANCES:

  • EPA proposed adding 16 chemicals to the list of toxic chemicals subject to reporting under EPCRA and the Pollution Prevention Act.75 FR 17333(4/6/10).

WATER:

  • EPA Region 6 announced the availability of seven TMDLs for the Atchafalaya River Basin in Louisiana.75 FR 17917(4/8/10).

WILDLIFE:

  • FWS designated approximately 1,933 acres in Lancaster and Saunders counties, Nebraska, as critical habitat for the Salt Creek tiger beetle under the ESA.75 FR 17466(4/6/10).
  • FWS announced a 12-month finding on a petition to reclassify the delta smelt from a threatened to an endangered species under the ESA; the Agency found that reclassification is warranted but precluded by other higher priority listing actions.75 FR 17667(4/7/10).
  • FWS announced a 12-month finding on a petition to list the mountain whitefish in the Big Lost River, Idaho, as endangered or threatened under the ESA; the Agency found that listing is not warranted.75 FR 17352(4/6/10).
  • FWS announced a 90-day finding on a petition to list the stonefly and mayfly as threatened or endangered under the ESA; the Agency found that listing is not warranted.75 FR 17363(4/6/10).
  • FWS announced a 90-day finding on a petition to list Thorne's hairstreak butterfly as endangered under the ESA and to designate critical habitat; the Agency found that listing may be warranted and initiated a status review.75 FR 17062(4/5/10).
  • NOAA-Fisheries announced initiation of a five-year review of Southern Resident killer whales under the ESA.75 FR 17377(4/6/10).

DOJ NOTICES OF SETTLEMENT:

  • United States v. Shell Chemical LP/Shell Chemical Yabucoa, Inc., Nos. 4:10-cv-01042/3:10-cv-1268 (S.D. Tex./D.P.R. Mar. 31, 2010). A settling CAA defendant must pay a civil penalty and must perform injunctive relief to reduce emissions at petroleum refineries in Saraland, Alabama; St. Rose, Louisiana; and Yabucoa, Puerto Rico.75 FR 18239(4/9/10).
  • United States v. Exxon Mobil Corp., No. 3:10-cv-00222-RET-CN (M.D. La. Apr. 1, 2010). Settling CERCLA co-defendants must pay a total of $4,800,000 in U.S. response costs incurred from radioactive contamination at the Coastal Radiation Services Superfund site in San Gabriel, Louisiana.75 FR 17770(4/7/10).
  • United States v. Pennsylvania, No. 10-cv-1382 (E.D. Pa. Mar. 30, 2010). A settling CERCLA defendant must pay 60% of the past and future U.S. response costs incurred from asbestos contamination at the Valley Forge Asbestos Release Superfund site within the Valley Forge National Historical Park in Montgomery County, Pennsylvania.75 FR 17159(4/5/10).
  • In re Lyondell Chemical Co., No. 09-10023 (REG) (S.D.N.Y. Bankr. Mar. 30, 2010). A settling CAA, CERCLA, and RCRA defendant and its affiliates must grant the DOI, EPA, and NOAA allowed general unsecured claims totaling $1,135,895,990 in U.S. response costs, natural resource damages, and related assessment costs at various facilities nationwide; must pay the United States an additional $53,628,150 for six sites; must provide general unsecured claims for potential response costs and natural resource damages for approximately 380 additional non-debtor-owned sites, of which nine might require injunctive relief; and must transfer title to nine debtor-owned properties to a custodial trust and contribute approximately $108.4 million to fund cleanups and administrative expenses.75 FR 17160(4/5/10).

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

THE CONGRESS

Congress is currently in recess but will reconvene on April 12, 2010.

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 2010, visit our list ofCumulative State Developments. For state material reported prior to 2010, visit theELR Archives.

The states below have updates this week:

IllinoisOregonUtahIowaPennsylvaniaVirginiaMassachusettsTennesseeWashington

ILLINOIS

Air:

  • The Pollution Control Board will hold public hearings on proposed amendments to Ill. Admin. Code tit. 35 §211, Definitions and General Provisions; §218, Organic Material Emission Standards and Limitations for the Chicago Area; and §219, Organic Material Emission Standards and Limitations for the Metro East Area. The proposed amendments are to satisfy Illinois' obligation to submit a SIP to address requirements under the federal CAA for sources of volatile organic material emissions in areas designated as nonattainment with respect to the ozone NAAQS. The hearings will be April 28 and May 19, 2010. Comments are due May 17, 2010. Seehttp://www.cyberdriveillinois.com/departments/index/register/register_volume34_issue14.pdf(pp. 4281-609)

IOWA

Toxic Substances:

  • The Environmental Protection Commission will hold public hearings on proposed amendments to amend Iowa Admin. Code r.135, Technical Standards and Corrective Action Requirements for Owners and Operators of Underground Storage Tanks. The hearings will be April 28, 29, and 30, 2010. Seehttp://www.legis.state.ia.us/aspx/ACODOCS/DOCS/04-07-2010.Bulletin.pdf(pp. 2319-32)

MASSACHUSETTS

Air:

  • The Department of Environmental Protection adopted amendments to 310 Mass. Code Regs. 7.40, the Low Emission Vehicle (LEV) Program. The amendments adopt the 2009 revisions to the California Zero Emission Vehicle program requirements under the LEV Program regulations. Seehttp://www.mass.gov/dep/air/laws/regulati.htm#lev

OREGON

Air:

  • The Department of Environmental Quality adopted amendments to Or. Admin. R. 340-200-0040, 340-252-0030, 340-252-0060, 340-252-0070, and 340-252-0230, State of Oregon CAA Implementation Plan. The rules establish requirements for transportation planning agencies including metro (in the Portland area), the Oregon Department of Environmental Quality, and several councils of government. Seehttp://arcweb.sos.state.or.us/rules/0410_Bulletin/0410_ch340_bulletin.html

Land Use:

PENNSYLVANIA

Water:

TENNESSEE

Toxic Substances:

  • The Department of Environment and Conservation will hold a public hearing on proposed amendments to Tenn. Comp. R. & Regs. 1200-01-17, Drycleaner Environmental Response Program. The hearing will be May 4, 2010. Seehttp://state.tn.us/sos/rules_filings/02-25-10.pdf
  • The Department of Environment and Conservation will hold public hearings on proposed amendments to Tenn. Comp. R. & Regs.1200-01-15, Underground Storage Tank Program. The hearings will be April 14 and 21, 2010. Seehttp://state.tn.us/sos/rules_filings/01-16-10.pdf

UTAH

Air:

  • The Department of Environmental Quality will hold a public hearing on proposed amendments to Utah Admin. Code r. 307-214, NESHAPs. The amendments will incorporate by reference several sections of 40 C.F.R. Parts 61 and 63. The hearing will be April 28, 2010. Comments are due May 3, 2010. Seehttp://www.rules.utah.gov/publicat/bulletin/2010/20100401/33427.htm

Water:

  • The Department of Environmental Quality seeks public comment on proposed amendments to Utah Admin. Code r. 309-515-6, Ground Water - Wells. The amendments would allow other qualified individuals, besides state engineers, to become authorized to witness the grouting of wells during construction and issue well seal certifications letters. Comments are due May 3, 2010. Seehttp://www.rules.utah.gov/publicat/bulletin/2010/20100401/33462.htm

VIRGINIA

Fisheries:

  • The Marine Resources Commission adopted amendments to 4 Va. Admin. Code §20-380, Pertaining to Grey Trout (Weakfish). The amendments modify the landing limit for out-of-state trawl from 300 to 100 for grey trout less than 12 inches in length, establish open seasons for all gear types that harvest grey trout as time periods when there are not closed harvest periods, and establish limits for grey trout. The amendments are effective May 1, 2010. Seehttp://legis.state.va.us/codecomm/register/vol26/iss15/v26i15.htm#f4v20380

WASHINGTON

Water:

  • The Department of Ecology adopted emergency amendments to Wash. Admin. Code 173-539A, Management of Exempt Groundwater Wells in Kittitas County. The amendments withdraw from appropriation all ground water in Upper Kittitas County with the exception of uses for structures for which a building permit have been granted and vested prior to July 16, 2009, and uses that are determined to be water budget neutral. Seehttp://www.ecy.wa.gov/biblio/0911021.html

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

INTERNATIONAL

ECO-CENTER SETS SIGHTS ON CARBON-FREE BRITAIN

In June, the Center for Alternative Technology (CAT) will publish proposals to eliminate greenhouse gas emissions from oil, gas, and coal. Although Britain was the first country to set legally binding emissions limits, the CAT's proposals will go much farther. "We are saying 100 percent by 2030," CAT researcher Alex Randall told Reuters. Under the plans, energy demand would be halved and renewable energy, which currently makes up 6 percent of Britain's electricity, would be expanded. Wind, wave, solar, and other renewable sources would replace coal, gas, and nuclear power, while electric cars and more energy-efficient homes would help to cut emissions. Both parties in parliament support a move away from carbon producing energy sources but want to keep more nuclear power. For the full story, visithttp://www.reuters.com/article/idUSTRE63831H20100409

MULTILATERAL BANKS READY TO MOBILIZE CLIMATE FINANCE

Leading Multilateral Development Banks (MDBs) and the International Monetary Fund recently mapped out their plans to support a sustainable global recovery and agreed the Copenhagen Accord is an opportunity for action to finance measures to combat climate change. They welcomed the commitment of developed countries as part of the Copenhagen Accord to provide additional fast track financing for developing countries of $30 billion in the period 2010-12 and they pledged to mobilize $100 billion by 2020 to help developing countries cope with the impacts of climate change and achieve the deep cuts necessary in global emissions. For the full story, visithttp://europa.eu/rapid/pressReleasesAction.do?reference=BEI/10/55& format=HTML&aged=0&language=EN&guiLanguage=en

CHINESE APOLOGIZE FOR AUSTRALIAN REEF ACCIDENT

Chinese owners expressed regret that the Shen Neng 1 coal carrier strayed off course and on to a coral shoal on the Great Barrier Reef. Shenzhen Energy Transport shipping chief Hu Wei said in a statement the company was sorry and appreciated "the environmental and economic significance of the Great Barrier Reef." The apology came as the custodian of the Great Barrier Reef warned that dredging and port expansion for Queensland's booming resources industry was a greater risk than shipping to the world heritage area. For the full story, seehttp://www.theaustralian.com.au/news/nation/as-oil-pumps-chinese-apologise-for-reef-accident/story-e6frg6nf-1225852026612

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

Note: To request additional information, please call (800) 433-5120 or (202) 939-3844. Documents may also be available free or at a nominal charge from the applicable court or agency. Copyright© 2010, Environmental Law Institute, Washington, D.C. All rights reserved.

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Leslie Carothers, Publisher
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