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Weekly Update Volume 40, Issue 12

04/26/2010

LITIGATION 

CERCLA, CONTRIBUTION, STATUTE OF LIMITATIONS

The Third Circuit vacated and remanded a lower court decision finding a defendant liable for costs incurred at the Boarhead Farms Superfund site. The plaintiffs filed their cost recovery and contribution action under CERCLA and the Pennsylvania Hazardous Sites Cleanup Act to recover costs that they had paid to EPA pursuant to certain consent decrees or that plaintiffs had provided with respect to the cleanup of millions of gallons of toxic waste at the site. The defendant argued that no common liability existed because when EPA brought suit against plaintiffs to enforce a consent decree that suit (and, therefore, any suit against defendant) was time barred. The court held that because the lower court did not make a factual finding sufficient to determine whether or not EPA’s suit against plaintiffs was timely under the three-year statute of limitations (SOL), the judgment was vacated and remanded to make an unequivocal finding as to the date or time period within which EPA completed its removal action. Likewise, it cannot be determined whether the six-year SOL exception contained in CERCLA §113(g)(2)(B) applies since it is dependent on the time that EPA completed its removal work. The court, however, affirms the lower court in allowing certain plaintiffs to pursue CERCLA §107(a) claims for the amount they paid into group trust accounts for cleanup work pursuant to private settlement agreements with other plaintiffs. In regards to plaintiffs that had entered into consent decrees with EPA, these plaintiffs did not have any §107(a) claims for costs incurred pursuant to consent decrees since these plaintiffs would be shielded from contribution counterclaims under CERCLA §113(f)(2) if permitted to bring a §107(a) claim. Finally, in proceeding under §113(f) in allocating liability among the parties, the lower court may not consider a stipulation as evidence against defendant that did not join in that stipulation. There may, however, be other evidence in the record that the lower court may rely on to perform its equitable allocation.Agere Systems, Inc. v. Advanced Environmental Technology Corp., No. 09-1814, 40 ELR 20119 (3d Cir. Apr. 12, 2010).

WATER LAW, RECOUPMENT, INTEREST

The Ninth Circuit affirmed in part and vacated in part a lower court decision related to the United States’ effort to recoup under the Fallon Paiute Shoshone Indian Tribes Water Rights Settlement Act of 1990 (Settlement Act) excess diversions of water that an irrigation district permitted over many years. Specifically, the United States sought to recoup over one million acre-feet of water diverted from 1973 to 1988 in excess of certain operating criteria and procedures (OCAPs). Based on the language, history and purpose of the Settlement Act, the lower court did not err in finding that the Settlement Act unambiguously authorizes the United States to seek recoupment for the district’s past violations of OCAPs through the present action. The court nonetheless remands the case to the lower court to explain the basis in the record for its legal or equitable award of “water interest” – that is, water over the amount wrongfully diverted each year. Because neither case authority nor statutory authority authorizes the lower court’s award of water interest, there appears to be no legal basis for an award. Although the court does not foreclose the possibility of an equitable basis for such an award, water interest is not appropriate unless there is some factual basis for awarding more water than was originally taken so as to provide complete relief. The court therefore vacates the award of post-judgment interest and remands for further consideration by the lower court. As to the challenges to the amount of water ordered recouped, the court affirms all of the calculations except for the calculation of gauge error. The court remands for the lower court to recalculate the amount of the diversions without regard to confidence intervals.United States v. Bell, Nos. 05-16154 et al., 40 ELR 20126 (9th Cir. Apr. 20, 2010).

APA, MINING

The Tenth Circuit affirmed a lower court’s denial of a mining company’s petition for review under the APA a notice of noncompliance that the U.S. Forest Service issued to the company with respect to its pumice mining activities. As a preliminary matter, the expiration of the company’s plan of operations has completely and irrevocably eradicated the effects of the plan modification requirement set forth in the notice. The company’s challenge to this requirement is therefore moot. This does not, however, moot the company’s challenge to the notice’s record production requirement since, unlike the modification requirement, it did not expire with the plan of operations. On the merits, it was not plainly erroneous or inconsistent for the U.S. Forest Service to conclude from its regulations that an uncommon variety mineral becomes a common variety mineral when it is no longer used in an application that emphasizes its distinct and special value. To qualify as an uncommon variety mineral under the regulations, a mineral must be suitable and used in an application for which no other mineral can be substituted due to the unique properties giving the particular mineral a distinct and special value. The portion of the pumice that the company sold for common variety uses does not meet this definition because it is not being used in an application that emphasizes its distinct and special value. In this situation, the pumice becomes a common variety mineral that, as the company acknowledges, it has no authority to mine. Finally, because there is no support in the administrative record, the court rejects all of the company’s arguments that the notice’s record production requirement should be set aside as arbitrary and capricious.Copar Pumice Co. v. Tidwell, No. 07-2211, 40 ELR 20127 (10th Cir. Apr. 19, 2010).

ANIMAL WELFARE ACT, STANDING

The Sixth Circuit affirmed a lower court decision that dismissed plaintiffs’ pre-enforcement challenge to the anti-animal-fighting provisions of the Animal Welfare Act (AWA) on the grounds that plaintiffs lacked standing. The court held that none of plaintiffs’ claimed injuries were sufficient to confer standing. First, plaintiffs’ alleged economic injuries due to restrictions on cockfighting are not traceable only to the AWA: cockfighting is banned to a greater or lesser degree in all 50 states and Washington, D.C. And while cockfighting remains legal in Puerto Rico and some U.S. territories, the complaint does not allege that plaintiffs have ever derived any income from or engaged in any trade with individuals in those locales. The bald assertion that plaintiffs have suffered economic injury due to the AWA is insufficient to confer standing based on the continued legality of cockfighting there. Second, the risk of prosecution under the AWA is too speculative to confer standing on plaintiffs. Plaintiffs’ decision to curtail their activities based on their subjective fear of prosecution – the alleged “chill” on their constitutional rights – does not affect this analysis. Third, none of the purported “constitutional” injuries actually implicates the Constitution and, as such, are insufficient to confer standing. Finally, even if the provisions at issue violated the principles of federalism contained in the Ninth, Tenth, and Eleventh Amendments by favoring the policies of states that ban cockfighting in a manner that imposes burdens on those states that have not enacted such bans, plaintiffs do not have standing to challenge it. Any injury here is to the impacted states and perhaps to their citizens or to the citizens of the United States in general. Plaintiffs cannot be said to have personally suffered the alleged federalism violation in a manner that would confer standing.White v. United States, No. 09-3158, 40 ELR 20118 (6th Cir. Apr. 9, 2010).

ESA, CONSULTATION, MOOTNESS

The Tenth Circuit reversed a lower court decision to find that environmental groups’ claim – that the failure of the Bureau of Reclamation to weigh its discretion to reallocate water from agricultural and municipal contract users to maintain stream flows for the benefit of an endangered minnow in its consultations with the FWS violated ESA §7 – was moot. Specifically, the court held that the FWS’s issuance of a new biological opinion (BO) mooted the groups’ prayer for both injunctive and declaratory relief. The new BO, which superseded the two BOs at issue, established a new regulatory framework under which the propriety of Reclamation’s actions must be judged. The groups have not argued that the new BO is a mirror image of the two BOs at issue, nor could they. Nor have they asserted that the changes are only superficial. In addition, a review of the record shows that the voluntary-cessation exception to the mootness doctrine does not apply. Finally, the lower court abused its discretion in declining to vacate its orders because, among other things, it relied on an improper and irrelevant factor (Congress’ legislative action) in denying vacatur.Rio Grande Silvery Minnow v. Bureau of Reclamation, No. 05-2399 et al., 40 ELR 20128 (10th Cir. Apr. 21, 2010).

CWA, ENFORCEMENT

A district court granted in part plaintiffs’ various motions to compel state and federal defendants to comply with a prior court order related to the implementation of water quality based effluent limitations (WQBELs) for phosphorus in the Everglades. Under the CWA, EPA is obligated to require the state of Florida to establish the manner and method of obtaining WQBELs within a time certain. Here, EPA failed to proceed with the utmost diligence required to discharge its statutory duty. It has chosen to “drag its feet” on issuing a court-ordered determination while allowing Florida to continue to rely on old permits and issue new administrative orders (AOs) laden with “avoidance mechanisms.” This dereliction of duty is contrary to the CWA. At the same time, the defendants’ suggestion that the violative AOs, which are incorporated into the NPDES permits at issue, cannot be disturbed is rejected. Florida has failed to fulfill its duties by issuing NPDES permits that do not comply with the CWA and its implementing regulations. As such, the NPDES permits, including the AOs, must be overridden and/or modified as necessary to ensure compliance with the CWA. Relying on its equitable powers, the court therefore directs defendants to take specific steps set out in the judgment in order to ensure compliance with the CWA.Miccosukee Tribe of Indians of Florida v. United States, Nos. 04-21448 et al., 40 ELR 20122 (S.D. Fla. Apr. 14, 2010) (Gold, J.).

NEPA, PREEMPTION

In a case arising from a catastrophic oil spill in Buzzards Bay, a district court granted summary judgment in favor of the United States to find that aspects of the Massachusetts Oil Spill Prevention Act (MOSPA) were preempted by the federal Ports and Waterways Safety Act of 1972 (PWSA). The U.S. Coast Guard, which has primary federal responsibility for implementing the PWSA, issued a final rule containing a provision purporting to preempt the MOSPA expressly. Massachusetts nonetheless asserted that the rulemaking violated NEPA. The court held that although the Coast Guard failed to prepare an EIS, the substance of the Coast Guard’s actual rulemaking analysis was the functional equivalent of what an EIS would have generated. The procedural error of not following NEPA formalities was therefore essentially harmless. In the final analysis, the law of preemption leaves the last word under federal law regarding the formulation of regulations to control vessel traffic, to enhance vessel safety and to decrease environmental hazards in Buzzards Bay to the Coast Guard.United States v. Massachusetts, No. 05-10112, 40 ELR 20123 (D. Mass. Mar. 31, 2010) (Woodlock, J.).

RCRA, CRIMINAL PENALTIES, ADMISSIBILITY OF PRIOR CONVICTION

A district court granted defendant’s motions to exclude evidence of defendant’s prior conviction under, and involvement with, certain environmental laws in a case where defendant was charged with violating RCRA §3008(d)(2)(A). Although defendant’s prior conviction could be probative as to whether defendant “knowingly” stored hazardous material, defendant is not contesting the fact that he was aware that waste materials generated by the chrome plating process were considered to be hazardous. Given this concession, any probative value from the conviction is substantially outweighed by the danger of unfair prejudice. At the same time, the conviction was not admissible to show that defendant was a “person” under RCRA. RCRA defines “person” as, among other things, “an individual.” It cannot be disputed that defendant is a “person” under RCRA §3008(d)(2)(A) as he is an individual. The conviction is also inadmissible for purposes of cross-examination under Rule 609(a)(1) of the Federal Rules of Evidence unless defendant, in direct examination, testifies as to some fact that gives the conviction probative value.United States v. Hoffman, No. 5:09-cr-00216, 40 ELR 20124 (S.D.W. Va. Apr. 5, 2010) (Berger, J.).

CALIFORNIA ENVIRONMENTAL QUALITY ACT, DEVELOPMENT PLAN, ENVIRONMENTAL IMPACT REPORT

A California appellate court affirmed a lower court’s issuance of a writ of mandate directing the city of Watsonville to, among other things, set aside its certification of a final environmental impact report (EIR) and its approval of a plan to develop a residential area in an area located adjacent to an airport. Plaintiffs, environmental groups and a pilot’s association, argued that the plan violated the State Aeronautics Act (SAA) and the city’s certification of the EIR violated the California Environmental Quality Act (CEQA) because it failed to consider a reasonable range of alternatives, and failed to adequately analyze the impact of the plan on aviation, traffic, and the water supply. Considering the SAA, the court held that, in the circumstances at issue here where a county has neither established an airport land use commission nor adopted a no-issues resolution and an alternative procedure, there was nothing in the statutory language that indicates that the legislature intended to grant discretion to a city to decide which of the criteria in the airport planning land use handbook should be incorporated into a city’s development plan. Nor is there anything in the legislative history to suggest that the legislature did not intend to mandate the adoption of all of the handbook’s criteria. At the same time, the city violated the CEQA because the EIR failed to adequately analyze the airport-related impacts of the plan. The EIR also failed to consider a reasonable range of alternatives because it did not consider a reduced development alternative. The key to the selection of the range of alternatives is to identify alternatives that meet most of the project’s objectives but have a reduced level of environmental impacts. Here, given the significant environmental impacts of the project, the alternatives analysis should have included an assessment of a reduced growth alternative.Watsonville Pilots Ass’n v. City of Watsonville, No. H033097, 40 ELR 20120 (Cal. Ct. App. Apr. 12, 2010).

CALIFORNIA ENVIRONMENTAL QUALITY ACT, ENVIRONMENTAL IMPACT REPORT, ALTERNATIVES

A California appellate court reversed a lower court decision that granted in part a citizen group’s petition for a writ of mandate under the California Environmental Quality Act challenging the certification of an environmental impact report (EIR) by a university board in regards to the development of a research campus. Although an EIR must consider a reasonable range of potentially feasible alternatives and compare their environmental impacts, it does not have to identify and analyze alternatives that would not meet a project’s objectives nor does it have to discuss every possible permutation of alternatives. Here, if a partial off-site alternative would not meet the project’s objectives of creating a more campus-like setting and fostering a collaborative work environment, the EIR was not deficient in failing to consider a complete off-site alternative. Likewise, the substantial evidence supports the EIR’s conclusion that the off-site alternative would not meet the project’s objectives. At the same time, the group failed to exhaust its administrative remedies on issues of (1) whether the water quality analysis in the draft EIR was deficient for failing to consider numerical water quality standards and the research campus’s alleged violation of those standards; and (2) whether the research campus was required to recirculate the draft EIR after adding a discussion about greenhouse gas emissions in response to public comments.Jones v. Regents of the University of California, No. A123948, 40 ELR 20117 (Cal. Ct. App. Apr. 7, 2010).

CALIFORNIA ENVIRONMENTAL QUALITY ACT, WATER QUALITY CONTROL PLAN, TMDLs

A California appellate court affirmed a lower court decision that denied in part petitions for writ of mandate of plaintiffs, public agencies and mutual water companies, challenging certain amendments made to a water quality control plan by a state water quality control board. Plaintiffs asserted that the amendments, which established TMDLs for salt and boron and required studies from entities responsible for oxygen demand, violated state and federal water law and the California Environmental Quality Act. Affirming the lower court decision in full, the court denied the petitions except on one issue: whether the substitute for the salt and boron TMDL was as effective as a TMDL. Specifically, because the technical report for the salt and boron TMDL did not clearly indicate that the substitute used – total maximum monthly load – was as effective as a TMDL, the lower court properly issued a peremptory writ of mandate.San Joaquin River Exchange Contractors Water Authority v. State Water Resources Control Board, No. C060697, 40 ELR 20121 (Cal. Ct. App. Apr. 13, 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 and supplemented its initial proposal to require monitoring and reporting of fluorinated GHG emissions from certain source categories.75 FR 18652(4/12/10).
  • EPA proposed to amend requirements for the Mandatory Greenhouse Gas (GHG) Reporting Rule under CAA §114.75 FR 18455(4/12/10).
  • EPA proposed reconsideration of the new source review aggregation amendments that were promulgated January 15, 2009, and to stay the effective date of the rules until November 18, 2010.75 FR 19567(4/15/10).
  • EPA proposed a rule to require monitoring and reporting of carbon dioxide injection and geologic sequestration.75 FR 18576(4/12/10).
  • EPA proposed a supplemental rule to require monitoring and reporting of GHG emissions from petroleum and natural gas systems.75 FR 18608(4/12/10).
  • EPA granted Louisiana delegation of authority to implement and enforce certain NESHAPs and new source performance standards in the state.75 FR 19252(4/14/10).
  • EPA granted in part a citizen petition asking the Agency to object to an operating permit issued to the Public Service Company of Colorado/dba Xcel Energy--Hayden Power Station.75 FR 19968(4/16/10).
  • SIP Approvals: Kentucky (transportation conformity)75 FR 20780(4/21/10). New Mexico (transportation conformity requirements for Bernalillo County)75 FR 20922(4/22/10); (transportation conformity)75 FR 21169(4/23/10). Texas (disapproval of revisions to the Qualified Facilities Program)75 FR 19468(4/14/10). Wyoming (unavoidable equipment malfunction and credible evidence)75 FR 19886(4/16/10).
  • SIP Proposals: Arizona (opacity standards for Maricopa County)75 FR 19921(4/16/10). California (emissions from burning rice straw for the Yolo-Solano air quality management district)75 FR 19923(4/16/10). New Mexico (transportation conformity requirements for Bernalillo County; see above for direct final rule)75 FR 20942(4/22/10); (transportation conformity; see above for direct final rule)75 FR 21197(4/23/10). New Jersey (reasonably available control technology for ozone and particulate matter NAAQS)75 FR 21197(4/23/10). Wyoming (unavoidable equipment malfunction and credible evidence; see above for direct final rule)75 FR 19920(4/16/10).

ENERGY:

  • The Minerals Management Service amended its regulations regarding oil and natural gas production requirements; the amendments are a complete rewrite of the existing regulations, addressing issues such as production rates, burning oil, and venting and flaring natural gas, to ensure appropriate development of these natural resources.75 FR 20271(4/19/10).

HAZARDOUS & SOLID WASTE:

  • EPA entered into a proposed administrative settlement under CERCLA concerning the Aerovox site in New Bedford, Massachusetts.75 FR 21292(4/23/10).
  • EPA proposed to amend its regulations under RCRA and CERCLA by removing saccharin and its salts from the lists of hazardous wastes and substances.75 FR 20942(4/22/10).

MINING:

  • EPA announced the availability of the draft documentsThe Effects of Mountaintop Mines and Valley Fills on Aquatic Ecosystems of the Central Appalachian CoalfieldsandA Field-Based Aquatic Life Benchmark for Conductivity in Central Appalachian Streamsfor public comment.75 FR 18499(4/12/10).
  • EPA seeks public comment on two guidance memoranda pertaining to environmental review of Appalachian surface coal mining operations under the CWA, NEPA, and Executive Order 12898--Environmental Justice.75 FR 18500(4/12/10).

OFFICE OF THE PRESIDENT:

  • The President proclaimed April 17 through April 25, 2010, as National Park Week.75 FR 20885(4/21/10).
  • The President issued the Memorandum of April 16, 2010--A 21st Century Strategy for America's Great Outdoors--establishing an initiative to reconnect Americans to the nation's rivers and waterways, landscapes of national significance, ranches, farms and forests, great parks, and coasts and beaches.75 FR 20765(4/20/10).

WATER:

  • EPA proposed to designate the Guam Deep Ocean Disposal Site as a permanent ocean dredged material disposal site under the Marine Protection, Research, and Sanctuaries Act.75 FR 19311(4/14/10).
  • EPA announced the availability of a draft NPDES general permit for stormwater discharges in the Charles River, Massachusetts, watershed.75 FR 20592(4/20/10).
  • EPA announced the availability of one TMDL prepared by EPA Region 6 for waters listed in Arkansas under CWA §303(d); the TMDL was completed in response to a lawsuit against the Agency titledSierra Club v. EPA, No. LR-C-99-114.75 FR 20351(4/19/10).

WILDLIFE:

  • FWS designated approximately 26,531.8 acres of critical habitat for the Hine's emerald dragonfly in Illinois, Michigan, Missouri, and Wisconsin.75 FR 21393(4/23/10).
  • FWS reclassified the Oregon chub from endangered to threatened status; the species is not currently in danger of extinction throughout all or a significant portion of its range.75 FR 21179(4/23/10).
  • FWS determined endangered status for 48 species on the island of Kauai in the Hawaiian Islands under the ESA and designated 26,582 acres in Kauai County as critical habitat for 47 of these species.75 FR 18960(4/13/10).
  • FWS issued its 90-day finding on a petition to list a distinct population segment of the fisher in its Northern Rocky Mountain range, including portions of Montana, Idaho, and Wyoming, as endangered or threatened and to designate critical habitat under the ESA; FWS found that listing may be warranted and is initiating status review.75 FR 19925(4/16/10).
  • FWS announced a 12-month finding on a petition to list the Wyoming pocket gopher as endangered or threatened and to designate critical habitat under the ESA; the Agency found that listing is not warranted.75 FR 19592(4/15/10).
  • FWS announced the initiation of a status review of the North American wolverine in the contiguous United States.75 FR 19591(4/15/10).

DOJ NOTICES OF SETTLEMENTS:

  • United States v. Honeywell International Inc., No. 1:10CV203 (S.D. Ohio Mar. 31, 2010). A settling CERCLA defendant must pay all interim and future U.S. response costs incurred at the Allied Chemical and Ironton Coke Superfund site in Ironton, Ohio, and must perform the EPA-selected remedy for the contaminated soil at the site.75 FR 18550(4/12/10).
  • United States v. Union Pacific Railroad Co., No. 5:10cv251-FB (W.D. Tex. Apr. 2, 1010). A settling CERCLA defendant must pay $480,000 in U.S. response costs incurred from the release of chlorine gas in a 2004 train derailment near Macdona, Texas.75 FR 18550(4/12/10).
  • United States v. Westward Seafoods, Inc., No. 3:10-cv-00073-JWS (D. Alaska Apr. 19, 2010). A settling CAA and EPCRA defendant that burned diesel fuel with excessive sulfur; operated three diesel generators while air pollution control devices were inoperable, and failed to respond to repeated information requests must pay a $570,000 penalty and must improve operation and maintenance procedures and employee training.75 FR 21349 (4/23/10).
  • United States v. Wall Herald Corp., No. 3:07-cv-04345 (D.N.J. Apr. 15, 2010). A settling CERCLA defendant must pay $19,761,812.93, plus interest, to resolve its liability for past and future U.S. response costs incurred at the Monitor Devices/Intercircuits, Inc. Superfund site in Wall Township, New Jersey; the United States will pay $225,000 to EPA on behalf of settling federal agencies, including the U.S. Army Corps of Engineers and the U.S. Air Force.75 FR 20862(4/21/10).
  • United States v. Mobil Oil Guam, Inc., No. 10-00006 (D. Guam Apr. 16, 2010). Settling CAA defendants that violated new source performance standards and NESHAPs at their bulk gasoline terminals in Guam and Siapan must pay a $2.4 million penalty and must bring their storage tanks and loading racks into compliance with the regulations by no later than December 31, 2011.75 FR 20863(4/21/10).

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

THE CONGRESS

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

Public Law

  • H.R. 3433 (North American Wetlands Conservation Act),which establishes requirements regarding payment of the non-federal share of the costs of wetlands conservation projects in Canada that are funded under that Act, was signed into law on March 25, 2010. Pub. L. No.111-149, 156 Cong. Rec. D340 (daily ed. Apr. 12, 2010).

Committee Action:

  • S. 878 (water)was reported by the Committee on Environment and Public Works. S. Rep. No. 111-170, 156 Cong. Rec. S2476 (daily ed. Apr. 20, 2010). The bill would amend the Federal Water Pollution Control Act to modify provisions relating to beach monitoring.
  • S. 933 (water)was reported by the Committee on Environment and Public Works. S. Rep. No. 111-171, 156 Cong. Rec. S2476 (daily ed. Apr. 20, 2010). The bill would amend the Federal Water Pollution Control Act and the Great Lakes Legacy Act of 2002 to reauthorize programs to address remediation of contaminated sediment.
  • S. 937 (water)was reported by the Committee on Environment and Public Works. S. Rep. No. 111-172, 156 Cong. Rec. S2476 (daily ed. Apr. 20, 2010). The bill would amend the Federal Water Pollution Control Act to ensure that sewage treatment plants monitor for and report discharges of raw sewage.
  • S. 1397 (recycling)was reported by the Committee on Environment and Public Works. S. Rep. No. 111-168, 156 Cong. Rec. S2421 (daily ed. Apr. 19, 2010). The bill would authorize the Administrator of EPA to award grants for electronic device recycling research, development, and demonstration projects.
  • S. 1660 (toxic substances)was reported by the Committee on Environment and Public Works. S. Rep. No. 111-169, 156 Cong. Rec. S2421 (daily ed. Apr. 19, 2010). The bill would amend TSCA to reduce the emissions of formaldehyde from composite wood products.
  • S. 1830 (energy)was reported by the Committee on Homeland Security and Governmental Affairs. S. Rep. No. 111-167, 156 Cong. Rec. S2208 (daily ed. Apr. 12, 2010). The bill would establish the Chief Conservation Officers Council to improve the energy efficiency of federal agencies.
  • H. Res. 1248 (water)was reported by the Committee on Rules. H. Rep. No. 111-463, 156 Cong. Rec. H2555 (daily ed. Apr. 20, 2010). The bill would provide for consideration of the bill H.R. 4715 to amend the Federal Water Pollution Control Act to reauthorize the National Estuary Program.

Bills Introduced:

  • S. 3209 (Lautenberg, D-N.J.) (TSCA)would amend TSCA ensure that risks from chemicals are adequately understood and managed. 156 Cong. Rec. S2377 (daily ed. Apr. 15, 2010). The bill was referred to the Committee on Environment and Public Works.
  • S. 3226 (Brown, R.-Mass.) (energy)would require the Secretary of Energy to take actions to stimulate the emergence of an offshore wind power industry in the United States. 156 Cong. Rec. S2423 (daily ed. Apr. 19, 2010). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 3230 (Inhofe, R-Ok.) (NEPA)would prohibit the use of NEPA to document, predict, or mitigate the climate effects of specific federal actions. 156 Cong. Rec. S2477 (daily ed. Apr. 20, 2010). The bill was referred to the Committee on Environment and Public Works.
  • S. 3231 (Grassley, R-Iowa) (fuel)would amend the Internal Revenue Code of 1986 to extend certain tax incentives for alcohol used as fuel and amend the Harmonized Tariff Schedule of the United States to extend additional duties on ethanol. 156 Cong. Rec. S2477 (daily ed. Apr. 20, 2010). The bill was referred to the Committee on Finance.
  • S. 3251 (Carper, D-Del.) (energy)would seek to improve energy efficiency and the use of renewable energy by federal agencies. 156 Cong. Rec. S2587 (daily ed. Apr. 22, 2010). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 3252 (Tester, D-Mont.) (SMCRA)would amend SMCRA to limit the liability of a state performing reclamation work under an approved state abandoned mine reclamation plan. 156 Cong. Rec. S2587 (daily ed. Apr. 22, 2010). The bill was referred to the Committee on Energy and Natural Resources.
  • H.R. 4996 (Foxx, R-N.C.) (national monuments)would provide for congressional approval of national monuments and restrictions on the use of national monuments. 156 Cong. Rec. H2503 (daily ed. Apr. 13, 2010). The bill was referred to the Committee on Natural Resources.
  • H.R. 5009 (Matheson, R-Utah) (wilderness)would designate certain lands in the Wasatch Mountains of Salt Lake County, Utah, as wilderness. 156 Cong. Rec. H2503 (daily ed. Apr. 13, 2010). The bill was referred to the Committee on Natural Resources.
  • H.R. 5026 (Markey, D-Colo.) (energy)would amend the Federal Power Act to protect the bulk-power system and electric infrastructure critical to the defense of the United States from cybersecurity and other threats and vulnerabilities. 156 Cong. Rec. H2578 (daily ed. Apr. 14, 2010). The bill was referred to the Committee on Energy and Commerce.
  • H.R. 5039 (Sanchez, D-Cal.) (wastewater)would amend the Reclamation Wastewater and Groundwater Study and Facilities Act to authorize the Secretary of the Interior to participate in the design, planning, and construction of the Groundwater Replenishment System Expansion to reclaim and reuse municipal wastewater in the Orange County, California, region. 156 Cong. Rec. H2640 (daily ed. Apr. 15, 2010). The bill was referred to the Committee on Natural Resources.
  • H.R. 5061 (Speier, D-Cal.) (water)would amend the Federal Water Pollution Control Act to provide assistance for programs and activities to protect the water quality of the San Francisco Bay. 156 Cong. Rec. H2641 (daily ed. Apr. 15, 2010). The bill was referred to the Committee on Transportation and Infrastructure and the Committee on the Budget.
  • H.R. 5062 (Teague, D-N.M.) (energy)would amend the Energy Policy Act of 2005 to promote domestic natural gas research and development. 156 Cong. Rec. H2641 (daily ed. Apr. 15, 2010). The bill was referred to the Committee on Science and Technology.
  • H.R. 5088 (Oberstar, D-Minn.) (water)would amend the Federal Water Pollution Control Act to reaffirm the jurisdiction of the United States over waters of the United States. 156 Cong. Rec. H2798 (daily ed. Apr. 21, 2010). The bill was referred to the Committee on Transportation and Infrastructure.
  • H.R. 5100 (Grijalva, D-Ariz.) (land)would provide for the conveyance of certain federal lands in Yuma County, Arizona. 156 Cong. Rec. H2798 (daily ed. Apr. 21, 2010). The bill was referred to the Committee on Natural Resources.
  • H.R. 5101 (Holt, D-N.J.) (wildlife)would expand the science and stewardship of America's most important wildlife corridors. 156 Cong. Rec. H2798 (daily ed. Apr. 21, 2010). The bill was referred to the Committees on Natural Resources, Transportation and Infrastructure, and Agriculture.
  • H.R. 5102 (Markey, D-Mass.) (oil and gas)would direct the Secretary of the Interior to establish an annual production incentive fee with respect to federal onshore and offshore lands that are subject to a lease for production of oil or natural gas under which production is not occurring. 156 Cong. Rec. H2798 (daily ed. Apr. 21, 2010). The bill was referred to the Committee on Natural Resources.
  • H.R. 5110 (Kirkpatrick, D-Ariz.) (national monument)would modify the boundary of the Casa Grande Ruins National Monument. 156 Cong. Rec. H2842 (daily ed. Apr. 22, 2010). The bill was referred to the Committee on Natural Resources.
  • H.R. 5118 (Moran, R-Kan.) (CAA)would amend the CAA to require the exclusion of data of an exceedance or violation of a NAAQS caused by a prescribed fire in the Flint Hills Region. 156 Cong. Rec. H2842 (daily ed. Apr. 22, 2010). The bill was referred to the Committee on Energy and Commerce.
  • H.R. 5124 (Ellison, D-Minn.) (toxic substances)would prohibit the use, production, sale, importation, or exportation of any pesticide containing atrazine. 156 Cong. Rec. H2842 (daily ed. Apr. 22, 2010). The bill was referred to the Committees on Agriculture, Energy and Commerce, Ways and Means, and Foreign Affairs.
  • H.R. 5135 (Walden, R-Or.) (national monuments)would provide for congressional approval of national monuments in Oregon and restrictions on the use of national monuments. 156 Cong. Rec. H2843 (daily ed. Apr. 22, 2010). The bill was referred to the Committee on Natural Resources.

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:

CaliforniaIowaNew JerseyIllinoisNevadaNew MexicoIndiana  

CALIFORNIA

Toxic Substances:

  • The Department of Pesticide Regulation seeks public comment on proposed amendments to Cal. Code Regs. tit. 3, §§6447, 6447.2, 6784, 6502, 6511, and 6530. The proposed action pertains to the use of methyl bromide when used to fumigate soil prior to the planting of agricultural crops and Qualified Applicator Licensing and Certification Subcategories. The hearing will be June 1, 2010. Seehttp://www.oal.ca.gov/res/docs/pdf/notice/16z-2010.pdf(pp. 574-82)

ILLINOIS

Energy:

INDIANA

Hazardous & Solid Waste:

  • The Solid Waste Management Board will hold a public hearing on listed rules that have been effective seven years, including rules required to receive or maintain delegation, primacy, or approval for implementation or operation of a program established under federal law; or rules required to begin or continue receiving federal funding for implementation or operation of a program. The hearing will be July 20, 2010. Seehttp://www.in.gov/legislative/iac/irtoc.htm?view=list&lsadocnum=10-229

Toxic Substances:

IOWA

Land Use:

NEVADA

Air:

Energy:

Water:

NEW JERSEY

Wildlife:

  • The Department of Environmental Protection will hold a public hearing on proposed amendments to N.J. Admin. Code §7:25-5.6, 2010 New Jersey Comprehensive Black Bear Management Policy. The hearing will be May 11, 2010. Seehttp://www.nj.gov/dep/rules/notices/041910a.html

NEW MEXICO

Air:

  • The New Mexico Environmental Improvement Board will hold additional public hearings on proposed new regulations N.M. Code R. 20.2, Statewide Air Quality Regulations, establishing greenhouse gas emissions reduction requirements. The Boardbegan a public hearing on March 1, 2010. The hearing will continue June 20 and 21, 2010, then again on July12-16, 19-23, 26-30, and subsequent days as necessary to complete the hearing. Seehttp://www.nmcpr.state.nm.us/nmregister/xxi/xxi07/Environotice.htm

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

INTERNATIONAL

TWO BIGGEST CARBON EMITTERS FIND COMMON GROUND

America's relationship with China may be a swinging pendulum, but energy cooperation between the two greenhouse gas-spewing giants appears to be on a steady track, Energy Department officials and others familiar with the programs say. While flare-ups over specific issues like President Obama's meeting with the Dalai Lama have strained the relationship, Trevor Houser, a former senior adviser to State Department Special Envoy on Climate Change Todd Stern said, "I don't think that's had a material impact on clean energy cooperation." Prior to the Copenhagen climate change conference last year, the United States and China agreed on a package of energy measures, including a jointly funded $150 million clean-energy research center aimed at boosting cooperation between the countries. It also included initiatives between private companies and collaborations on everything from electric cars to shale gas. For the full story, visithttp://www.nytimes.com/cwire/2010/04/23/23climatewire-the-2-biggest-carbon-emitters-find-common-gr-53598.html

HONDA, VOLVO PLAN GREEN CAR LAUNCHES IN CHINA

Honda and Volvo have joined a growing crowd of domestic Chinese producers developing clean-energy cars for the Chinese market in an effort to take advantage of expected generous government incentives. Honda Motor Co said it would introduce a hybrid model under its premium Acura brand in China within three years, and its Insight and CR-Z hybrids from 2012. Volvo unit said it planned to sell its c30 electric cars in China. China's fifth largest carmaker, Beijing Automotive Industry Holding Co. has plans to invest 3.7 billion Yuan ($540 million) in the field, developing hybrid, pure-electric, and plug-in hybrid vehicles, said President Wang Dazong. The buzz around electric cars came as carmakers boosted their overall sales targets for China this year on turbocharged sales fueled by tax incentives from Beijing. China's car sales have defied falling sales in the rest of the world and have continued to show strong growth this year, up 76 percent in the first three months, according to government data. For the full story, visithttp://www.reuters.com/article/idUSTRE63M0WU20100423

UNITED KINGDOM WATER USE 'WORSENING GLOBAL CRISIS'

The amount of water used to produce food and goods imported by developed countries is worsening water shortages in the developing world, a report says. The report, focusing on the UK, says two-thirds of the water used to make UK imports is used outside its borders. Developing countries are already using significant proportions of their water to grow food and produce goods for consumption in the West, the report says. "The burgeoning demand from developed countries is putting severe pressure on areas that are already short of water," said Professor Peter Guthrie, head of the Centre for Sustainable Development at Cambridge University. For the full story, seehttp://news.bbc.co.uk/2/hi/science/nature/8628832.stm

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

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