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Weekly Update Volume 40, Issue 16

06/07/2010

LITIGATION 

RADIOACTIVE WASTE, BREACH OF CONTRACT:

The U.S. Supreme Court held that North Carolina should not be held liable or subject to monetary sanctions for failing to fulfill its obligations to an interstate radioactive waste compact. Under the agreement, North Carolina was to take "appropriate steps" to obtain a license and then construct and operate a low-level radioactive waste storage facility by 1991. Yet by the mid 1990s, North Carolina was still many years—and many tens of millions of dollars—away from obtaining even a license. In 1997, the commission overseeing the compact ceased providing financial assistance to North Carolina, and the state began a shutdown of the project. In 1999, North Carolina withdrew from the compact. The commission then demanded that the state repay approximately $80 million in addition to other monetary penalties. North Carolina did not comply. The Supreme Court assigned the case to a Special Master, and the Court adopted its recommendations. The terms of the Compact do not authorize the commission to impose monetary sanctions against North Carolina. Nor did North Carolina breach its contractual obligation to take “appropriate steps” toward the issuance of a license. The parties' course of performance establishes that it was not appropriate for North Carolina to proceed with the very expensive licensing process without external-financial assistance. Nothing in the compact's text or structure requires North Carolina to cover all licensing and building costs on its own. And the state did not breach an implied duty of good faith and fair dealing when it withdrew from the compact. The compact by its terms imposes no limitation on North Carolina's right to withdraw from the compact. Scalia, J., delivered the opinion of the Court, in which Stevens, Ginsburg, and Alito, JJ., joined, in which Roberts, C.J., joined in all but Parts II–D and III–B, in which Kennedy and Sotomayor, JJ., joined in all but Part II–E, in which Thomas, J., joined in all but Part III–B, and in which Breyer, J., joined in all but Parts II–C, II–D, and II–E. Kennedy, J., filed an opinion concurring in part and concurring in the judgment, in which Sotomayor, J., joined. Roberts, C.J., filed an opinion concurring in part and dissenting in part, in which Thomas, J., joined. Breyer, J., filed an opinion concurring in part and dissenting in part, in which Roberts, C.J., joined.Alabama v. North Carolina, No. 132, 40 ELR 20148 (U.S. June 1, 2010).

CLIMATE CHANGE, RECUSAL:

The Fifth Circuit vacated an earlierrulingin which a panel reversed a lower court decision dismissing Mississippi residents' class action lawsuit against several energy, fossil fuel, and chemical companies for their alleged contribution to climate change. When the court first granted rehearing en banc, seven of the court's 16 active judges recused themselves from the case due to ties from the defendant companies. The nine remaining judges granted rehearing and reversed the panel's decision. But after argument before the en banc court, new circumstances arose that caused the disqualification and recusal of one of the nine judges, leaving only eight judges in regular active service who are not disqualified in this en banc case. Due to this late recusal, the en banc court lost its quorum. Absent a quorum, no court is authorized to transact judicial business. Accordingly, the appeal was dismissed and the lower court decision, which dismissed the action for lack of standing, was reinstated.Comer v. Murphy Oil USA, No. 07-60756, 40 ELR 20147 (5th Cir. May 28, 2010).

CWA, WETLANDS:

The Ninth Circuit upheld the U.S. Army Corps of Engineers' and the FWS' approval of a business park construction project on protected wetlands in California. The Corps' decision to issue a city a CWA §404 permit for the project was not arbitrary or capricious. The Corps stated a rational connection between the facts found and the conclusion that the proposed site was the least environmentally damaging practicable alternative. After acknowledging that the proposed project was not water dependent, the Corps reasonably concluded, based on a review of over a dozen alternative sites, that the city had "clearly demonstrated that there are no practicable alternative sites available." In addition, the Corps' consideration of the project's stated purpose was not unreasonable, and the Corps did not improperly rely on the city's proposed off-site mitigation as part of its analysis. Likewise, the FWS’ finding of no "adverse modification" was neither arbitrary nor capricious.Butte Environmental Council v. United States Army Corps of Engineers, No. 09-15363, 40 ELR 20144 (9th Cir. June 1, 2010).

CERCLA, NONSETTLING PRPs, MOTION TO INTERVENE:

The Ninth Circuit held that a non-settling PRP may intervene in litigation to oppose a consent decree incorporating a settlement that, if approved, would bar contribution from the settling PRP. The applicants have significant protectable interests that support intervention as of right. As non-settling PRPs, the applicants are potentially liable for response costs under CERCA §107(a). Because CERCLA §113(f)(2) provides that approval of a consent decree will cut off their contribution rights under §113(f)(1), the proposed consent decree in EPA's suit will therefore directly affect the applicants' interest in maintaining their right to contribution. Further, because nonsettling PRPs may be held liable for the entire amount of response costs minus the amount paid in a settlement, the applicants have an obvious interest in the amount of any judicially approved settlement.United States v. Aerojet General Corp., No. 08-55996, 40 ELR 20151 (9th Cir. June 2, 2010).

INJUNCTIONS, BONDS:

The Seventh Circuit upheld a lower court decision denying an environmental group's request to rescind or modify a court order requiring it to post a $10,000 bond after it asked for and was granted a preliminary injunction preventing the U.S. Forest Service from allowing several thousand acres of a national forest in Wisconsin to be logged. The group argued that it should be exempt from having to post an injunction bond because it is a nonprofit entity. But this argument flies in the face of Fed. R. Civ. P. Rule 65(c), which not only contains no such exception but also states flatly that "the court may issue a preliminary injunction or a temporary restraining order only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained." The court also ruled that the $10,000 bond amount was not excessive in relation to the Forest Service's likely loss from a one-year delay in logging.Habitat Education Center v. United States Forest Service, No. 09-2785, 40 ELR 20145 (7th Cir. May 27, 2010).

CWA, TMDLS, VACATUR:

A district court vacated certain TMDLs promulgated by EPA for the waters of the District of Columbia, but issued a stay of vacatur in order to permit EPA an opportunity to correct the deficient TMDLs. Although EPA is correct that a district court has discretion to order a remand without vacatur, that remedy is unavailable given the deficiencies in the TMDLs here. EPA's erroneous conclusion that it could express TMDLs in terms of annual or seasonal pollutant limits is unquestionably a material deficiency in the regulation. As EPA acknowledges, the error requires it to develop entirely new TMDLs, based on several years of new data collection. The court then concluded it will stay vacatur of the tier one TMDL until May 31, 2011; the tier two TMDLs until December 31, 2014; and the tier three and four TMDLs until January 1, 2017. Although the length of the stays of vacatur is somewhat out of the ordinary, neither the Court, nor the parties, wants the District of Columbia waters at issue in this action to go without pollutant limits while EPA develops new pollutant limits, which will take some time.Anacostia Riverkeeper, Inc. v. Jackson, No. 09-0098, 40 ELR 20149 (D.D.C. May 25, 2010) (Bates, J.).

CAA, PSD PERMIT, CARBON DIOXIDE:

The Virginia Court of Appeals upheld a lower court decision affirming a decision of the State Air Pollution Control Board to issue a PSD permit allowing an electric company to build and operate a coal-fired electric generating plant. The lower court did not err in concluding that carbon dioxide (CO2) is not a pollutant "subject to regulation" by the Board and under the federal CAA. Because no provision of the CAA or Virginia law controls or limits CO2 emissions, CO2 is not a pollutant "subject to regulation." Therefore, CO2 is not a regulated new source review pollutant under the PSD permitting program, and the Board was not required to complete a "best available control technology" analysis to establish permit limits for CO2 emissions at the time it issued the PSD permit. Nor did the court err in approving the Board's use of the more coarse particulate matter pollutant, PM10, as a surrogate for the regulation and control of the more fine particulate matter pollutant, PM2.5. Substantial evidence supported the Board’s approach.Appalachian Voices v. State Air Pollution Control Board, No. 2199-09-2, 40 ELR 20150 (Va. Ct. App. May 25, 2010).

CALIFORNIA ENVIRONMENTAL QUALITY ACT, ENVIRONMENTAL IMPACT REPORT:

A California appellate court upheld a lower court decision decertifying a county's environmental impact report (EIR) for an open-air human waste composting facility under the California Environmental Quality Act (CEQA). Substantial evidence does not support the EIR's position that an enclosed facility alternative is infeasible. The EIR's economic analysis is based on the costs associated with the development of only one enclosed composting facility. As a result, there is no meaningful comparative data pertaining to a range of economic issues. Nor does the EIR contain any information that an enclosed facility is technologically infeasible, other than the observation that there is no electricity at the proposed site. The EIR does not address the cost of bringing electricity to the site or the time involved in doing so. The EIR also failed to include a water supply assessment as required by Cal. Water Code §10910.Center for Biological Diversity v. County of San Bernardino, Nos. D056652, D056648, 40 ELR 20146 (Cal. App. 4th Dist. May 25, 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 adopted new source performance standards and emission guidelines for commercial and industrial solid waste incineration units.75 FR 31938(6/4/10).
  • EPA proposed NESHAPs for the industrial boiler and the commercial and institutional boiler area source categories.75 FR 31896(6/4/10).
  • EPA, in response to a 2007 D.C. Circuit Court vacatur and remand of NESHAPs for industrial/commercial/institutional boilers and process heaters, proposed that all major sources meet NESHAPs that reflect application of the maximum achievable control technology.75 FR 32006(6/4/10).
  • EPA issued the PSD and Title V Greenhouse Gas Tailoring Rule, which sets forth the applicability criteria that determine which stationary sources and modification projects are subject to permitting requirements for greenhouse gas emissions under the two CAA programs.75 FR 31514(6/3/10).
  • EPA amended the NESHAPs for the paints and allied products manufacturing area source rule promulgated December 3, 2009.75 FR 31317(6/3/10).
  • EPA proposed to revise the process used by manufacturers of clean alternative fuel conversion systems for demonstrating compliance with vehicle and engine emissions requirements.75 FR 29606(5/26/10).
  • EPA seeks public comment on a draft transportation conformity guidance document for quantitative fine particulate matter (PM2.5) and PM10 hot-spot analyses of highway and transit projects.75 FR 29537(5/26/10).
  • SIP Approvals:Colorado (partial approval of 1997 eight-hour ozone NAAQS revisions)75 FR 31306(6/3/10). Delaware (nitrogen oxide emissions from industrial boilers)75 FR 31711(6/4/10). District of Columbia (transportation conformity regulations)75 FR 29894(5/28/10). Florida (1997 eight-hour ozone NAAQS through the year 2014 for the Jacksonville, Tampa Bay, and southeast Florida areas)75 FR 29671(5/27/10). Maryland (1997 eight-hour ozone NAAQS revisions for the Baltimore moderate nonattainment area)75 FR 31709(6/4/10). New York (volatile organic compound emissions)75 FR 29897(5/28/10). North Dakota (PSD rules and interstate transport of air pollution)75 FR 31290(6/3/10). Rhode Island (attainment of the 1997 eight-hour ozone NAAQS for the Providence moderate nonattainment area)75 FR 31288(6/3/10).
  • SIP Proposals:Connecticut (attainment of the 1997 eight-hour ozone NAAQS for the greater Connecticut moderate nonattainment area)75 FR 30310(6/1/10). Delaware (1997 8-hour ozone and fine particulate matter (PM2.5) NAAQS and 2006 PM2.5 NAAQS)75 FR 31340(6/3/10). District of Columbia (transportation conformity regulations; see above for direct final rule)75 FR 29965(5/28/10). Florida (1997 eight-hour ozone NAAQS through the year 2014 for the Jacksonville, Tampa Bay, and southeast Florida areas; see above for direct final rule)75 FR 29699(5/27/10).
  • SIP Withdrawal:Wisconsin (PM rule of April 8, 2010)75 FR 30710(6/2/10).

ENERGY:

  • DOE proposed rulemaking concerning the use of sustainable design principles for siting, design, and construction, and the use of water conservation technologies to achieve energy efficiency, in the construction and renovation of federal buildings.75 FR 29933(5/28/10).

HAZARDOUS & SOLID WASTE:

  • EPA proposed a definition for nonhazardous secondary materials that are used as fuels or ingredients in combustion units to determine whether they should be considered "solid waste" under RCRA.75 FR 31844(6/4/10).
  • EPA entered into a proposed administrative settlement under CERCLA that requires the settling party to pay U.S. response costs incurred at the Cooksey Brothers Landfill Fire Superfund site in Ashland, Kentucky.75 FR 30831(6/2/10).

OFFICE OF THE PRESIDENT:

  • The president issued a memorandum to establish fuel efficiency and greenhouse gas emissions standards for commercial medium-duty and heavy-duty vehicles beginning with model year 2014 and for passenger cars and light-duty trucks of model years 2017-2025.75 FR 29399(5/26/10).

TOXIC SUBSTANCES:

  • EPA revoked a significant new use rule for the chemical substance identified generically as polyalkyl phosphate.75 FR 29429(5/26/10).
  • EPA announced the availability of a final report on flame retardants in the home, titled "An Exposure Assessment of Polybrominated Diphenyl Ethers."75 FR 28804(5/24/10).

WATER:

  • EPA, in response to a 2009 Sixth Circuit ruling that vacated EPA's 2006 NPDES Pesticides Rule, proposed a draft NPDES general permit for all 10 Regions for point source discharges from the application of certain pesticides to waters of the United States.75 FR 31775(6/4/10).
  • EPA withdrew the federal antidegradation policy for the commonwealth of Pennsylvania as redundant.75 FR 29899(5/28/10).

WILDLIFE:

  • FWS announced a 12-month finding on a petition to list the white-tailed prairie dog as endangered or threatened under the ESA; the Agency found that listing is not warranted.75 FR 30338(6/1/10).
  • FWS announced a 12-month finding on a petition to remove the Sacramento Mountains thistle from the list of threatened and endangered plants under the ESA; the Agency found that delisting is not warranted.75 FR 30757(6/2/10).
  • FWS proposed to remove the Lake Erie watersnake from the list of threatened and endangered wildlife under the ESA due to its recovery.75 FR 30319(6/1/10).
  • FWS proposed to designate 1,957 acres in Forrest, Harrison, Jackson, and Perry Counties, Mississippi, as critical habitat for the Mississippi gopher frog.75 FR 31387(6/3/10).
  • NOAA-Fisheries issued a final rule establishing take prohibitions for the threatened southern distinct population segment of North American green sturgeon.75 FR 30714(6/2/10).
  • NOAA-Fisheries proposed to affirm the protective status listing under the ESA of the Oregon coast evolutionarily significant unit of coho salmon that was promulgated on February 11, 2008.75 FR 29489(5/26/10).

DOJ NOTICES OF SETTLEMENT:

  • United States v. Kansas City, Missouri, No. 4:10-cv-0497 (W.D. Mo. May 18, 2010). A settling CWA defendant that discharged pollutants from its sewer system without a permit and violated its NPDES permit must pay a $600,000 civil penalty, must implement sewer system remedial measures and post-construction monitoring, and must perform a supplemental environmental project valued at $1.6 million.75 FR 29782(5/27/10).
  • United States v. Schurkman, No. 07-915 (S.D.N.Y. May 17, 2010). Settling CERCLA and Federal Debt Collections Procedures Act defendants must pay the United States the appraised value of five parcels of real property in return for past and future U.S. response costs incurred at the Shenandoah Road Groundwater Contamination Superfund site in East Fishkill, New York.75 FR 29583(5/26/10).
  • United States v. Allegheny Ludlum Corp., No. 10-0673 (W.D. Pa. May 17, 2010). A settling CAA defendant must pay a $1.6 million civil penalty for violations at its steel manufacturing facility in Natrona, Pennsylvania, must cease operation of the facility no later than November 30, 2010, and must apply interim measures to control visible air emissions until operations are ceased.75 FR 29584(5/26/10).
  • United States v. Rineco Chemical Industries, Inc., No. 4-07-CV-01189SWW (E.D. Ark. May 19, 2010). A settling RCRA defendant that failed to obtain an ownership and operating permit at its fuel blending facility in Benton, Arkansas, must pay a $1,350,000 civil penalty, must apply for a RCRA permit and control any fugitive emissions, must perform trial and risk burns for the unit, must file a notification and description of hazardous waste activity, and must establish financial assurances for the unit.75 FR 29584(5/26/10).
  • United States v. Semitropic Water Storage Dist., No. 1:10-cv-909-AWI-JLT (E.D. Cal. May 20, 2010). A settling CWA defendant that discharged fill material into waters of the United States must pay a civil penalty and must pay a $78,000 fee in lieu of mitigation for the impact of the violations.75 FR 29585(5/26/10).
  • United States v. AK Steel, No. 10-cv-996 (N.D. Ohio May 4, 2010). Settling CERCLA defendants must implement injunctive measures at an estimated cost of $2.1 million to remediate contaminated soil and groundwater at the Chemical Recovery Systems Superfund alternative site in Elyria, Ohio, must implement institutional controls, must pay $475,000 in past U.S. response costs, and must pay future U.S. response costs at the site.75 FR 28819(5/24/10).
  • United States v. Precious Metals, Inc., No. 1:10-cv-02387 (JEI-AMD) (D.N.J. May 10, 2010). A settling CERCLA defendant must make an initial payment of $70,000 and a contingency payment not to exceed $80,000, based on ability to pay, for U.S. response costs incurred at the Pioneer Smelting Superfund site in Chatsworth, New Jersey.75 FR 28820(5/24/10).
  • United States v. Tanana Oil Corp., No. 05-2540 (D. Md. May 17, 2010). Settling RCRA defendants must pay a $760,000 civil penalty for UST violations at Tanana Oil Station 409 in Edgemere, Maryland; two previously unnamed defendants must pay a $69,000 civil penalty and must perform cleanup work in accordance with a corrective action plan.75 FR 28820(5/24/10).
  • United States v. Shoshone Silver Mining Co., No. 2:08-00495-EJL-CWD (D. Idaho May 7, 2010). Settling CERCLA defendants must pay $50,000 in U.S. response costs incurred at the Idaho Lakeview Mine Superfund site in Bonner County, Idaho, and must pay a share of any property sales within the next three years.75 FR 31464(6/3/10).
  • United States v. Lifoam Industries, LLC, No. 10-CV-03825-AHM-FFM (C.D. Cal. May 24, 2010). A settling CAA defendant that violated management district rules and permit conditions at its foam manufacturing facility in Vernon, California, must pay a $450,000 civil penalty to the United States and the management district and must perform injunctive relief for emissions from its facility.75 FR 30859(6/2/10).
  • United States v. Sensient Colors Inc., No.07cv1275 (D.N.J. May 25, 2010). A settling CERCLA defendant must pay $7,100,000 in U.S. response costs incurred at its pigment and dye manufacturing facility, the General Color Superfund site in Camden, New Jersey.75 FR 30859(6/2/10).

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

THE CONGRESS

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

Committee Action

  • S. 1562(Arctic Ocean)was reported by the Senate Commerce, Science, and Transportation Committee. 156 Cong. Rec. S4143 (daily ed. May 24, 2010). The bill would provide for a study and report on research on the U.S. Arctic Ocean.
  • S. 2856(fisheries)was reported by the Senate Commerce, Science, and Transportation Committee. 156 Cong. Rec. S4143 (daily ed. May 24, 2010). The bill would allow the United States-Canada Transboundary Resource Sharing Understanding to be considered an international agreement for the purposes of §304(e)(4) of the Magnuson-Stevens Fishery Conservation and Management Act.
  • S. 3099(hydroelectric power)was reported by the Committee on Energy and Natural Resources.156 Cong. Rec. S4143 (daily ed. May 24, 2010). The bill would reinstate and extend the deadline for commencement of construction of a hydroelectric project involving the American Falls Reservoir.
  • S. 3100(hydroelectric power)was reported by the Committee on Energy and Natural Resources.156 Cong. Rec. S4143 (daily ed. May 24, 2010). The bill would reinstate and extend the deadline for commencement of construction of a hydroelectric project involving the Little Wood River Ranch.
  • H.R. 934 (land use)was reported by the Committee on Natural Resources. S. Rep. No. 111-197, 156 Cong. Rec. S4143 (daily ed. May 24, 2010). The bill would convey certain submerged lands to the Commonwealth of the Northern Mariana Islands in order to give that territory the same benefits in its submerged lands as Guam, the Virgin Islands, and American Samoa have in their submerged lands.

Bills Introduced

  • S. 3396 (Bingaman, D-N.M.) (energy efficiency) would amend the Energy Policy and Conservation Act to establish within the DOE a Supply Star program to identify and promote practices, companies, and products that use highly efficient supply chains in a manner that conserves energy, water, and other resources. 156 Cong. Rec. S4143 (daily ed. May 24, 2010). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 3403 (Murkowski, R-Alaska) (fish taking)would amend the Fish and Wildlife Improvement Act of 1978 to exempt subsistence users in the state of Alaska from the prohibition on taking.156 Cong. Rec. S4143 (daily ed. May 24, 2010). The bill was referred to the Committee on Public Works and the Environment.
  • S. 3404 (Udall, D-Colo.) (mining)would amend the Reclamation Projects Authorization and Adjustment Act of 1992 to require the Secretary of the Interior, acting through the Bureau of Reclamation, to take actions to improve environmental conditions in the vicinity of the Leadville Mine Drainage Tunnel in Lake County, Colorado.156 Cong. Rec. S4143 (daily ed. May 24, 2010). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 3405 (Menendez, D-N.J.) (oil and gas taxes)would amend the Internal Revenue Code of 1986 to eliminate oil and gas company preferences. Cong. Rec. S4143 (daily ed. May 24, 2010). The bill was referred to the Committee on Finance.
  • S. 3408 (Reid, D-Nev.) (land conveyance)would provide for the conveyance of certain public land in and around historic mining townsites located in Nevada. 156 Cong. Rec. S4211 (daily ed. May 25, 2010). The bill was referred to the Committee on Energy and Natural Resources.
  • S.3408 (Reid, D-Nev.) (propane) would make certain adjustments to the price analysis of propane prepared by the Secretary of Commerce. 156 Cong. Rec. S4211 (daily ed. May 25, 2010). The bill was referred to Senate Energy and Natural Resources Committee.
  • S.3410 (Vitter, R-La.) (oil spill)would create a fair and efficient system to resolve claims of victims for economic injury caused by the Deepwater Horizon incident and direct the Secretary of the Interior to renegotiate the terms of the lease known as "Mississippi Canyon 252" with respect to claims relating to the Deepwater Horizon explosion and oil spill that exceed existing applicable economic liability limitations. 156 Cong. Rec. S4211 (daily ed. May 25, 2010). The bill was read for the first time.
  • S.3412 (Dodd, D-Conn.) (public transportation)would provide emergency operating funds for public transportation. 156 Cong. Rec. S4211 (daily ed. May 25, 2010). The bill was referred to the Committee on Banking, Housing, and Urban Affairs.
  • S.3417 (Vitter, R-La.) (aquaculture)would prohibit offshore aquaculture until three years after the submission of a report on its impacts. 156 Cong. Rec. S4211 (daily ed. May 25, 2010). The bill was referred to the Committee on Commerce, Science, and Transportation.
  • S.3431 (Menendez, D-N.J.) (minerals) would improve the administration of the Minerals Management Service. 156 Cong. Rec. S4442 (daily ed. May 26, 2010). The bill was referred to the Committee on Energy and Natural Resources.
  • S.3433 (Sanders, I-Vt.) (land use, fuel economy) would prohibit the leasing of the Pacific, Atlantic, Eastern Gulf of Mexico, and Central Gulf of Mexico Regions of the outer continental shelf and increase fuel economy standards. 156 Cong. Rec. S4528 (daily ed. May 27, 2010). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 3434 (Bingaman, D-N.M.) (energy efficiency) would provide for the establishment of a Home Star Retrofit Rebate Program. 156 Cong. Rec. S4528 (daily ed. May 27, 2010). The bill was referred to the Committee on Finance.
  • S. 3436 (Lincoln, D-Ark.) (fuel efficiency)would amend the Energy Policy and Conservation Act to establish a motor efficiency rebate program.156 Cong. Rec. S4528 (daily ed. May 27, 2010). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 3438 (Reid, D-Nev.) (clean energy)would promote clean energy infrastructure for rural communities. 156 Cong. Rec. S4528 (daily ed. May 27, 2010). The bill was referred to the Committee on Finance.
  • S. 3439(Reid, D-Nev.) (clean energy)would promote clean energy infrastructure for rural communities. 156 Cong. Rec. S4528 (daily ed. May 27, 2010). The bill was referred to the Committee on Agriculture, Nutrition, and Forestry.
  • S. 3440 (Grassley, R-Iowa) (tax credit)would amend the Internal Revenue Code of 1986 to extend the incentives for biodiesel and renewable diesel. 156 Cong. Rec. S4528 (daily ed. May 27, 2010). The bill was referred to the Committee on Finance.
  • S. 3442 (Dorgan, D-N.D.) (electric cars) would promote the deployment of plug-in electric drive vehicles. 156 Cong. Rec. S4528 (daily ed. May 27, 2010). The bill was referred to the Committee on Finance.
  • S. 3443 (Lautenberg, D-N.J.) (land use) would amend the Outer Continental Shelf Lands Act to eliminate the 30-day time limit for exploration plans. 156 Cong. Rec. S4529 (daily ed. May 27, 2010). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 3450 (Rockefeller, D-W. Va.) (coal)would require publicly traded coal companies to include certain safety records in their reports to the Commission. 156 Cong. Rec. S4529 (daily ed. May 27, 2010). The bill was referred to the Committee on Health, Education, Labor, and Pensions.
  • S. 3452 (Bingaman, D-N.M.) (land use)would designate the Valles Caldera National Preserve as a unit of the National Park System. 156 Cong. Rec. S4529 (daily ed. May 27, 2010). The bill was referred to the Committee on Energy and Natural Resources.
  • H.R. 5370 (Heller, R-Nev.) (public land)would provide for the conveyance of certain public land in and around historic mining townsites located in the state of Nevada. 156 Cong. Rec. H3744 (daily ed. May 24, 2010). The bill was referred to the Committee on Natural Resources.
  • H.R.5372 (Meek, D-Fla.) (renewable energy)would amend the Internal Revenue Code of 1986 to treat any business credit attributable to wind, solar, or biomass electricity production and investment in solar energy property as refundable to the extent the taxpayer makes new wind, solar, and other renewable energy investments.156 Cong. Rec. H3744 (daily ed. May 24, 2010). The bill was referred to the House Committee on Ways and Means.
  • H.R. 5435 (Baley, D-Iowa) (renewable energy)would amend the Internal Revenue Code of 1986 to extend certain renewable fuel, and energy, tax incentives, and to deny the deduction for income attributable to domestic production of oil, or primary products thereof. 156 Cong. Rec. H4021 (daily ed. May 27, 2010). The bill was referred to the Committee on Ways and Means.
  • H.R. 5436 (Buchanan, R-Fla.) (oil spill)would prohibit the Minerals Management Service from issuing permits or environmental or safety waivers for any deepwater drilling rig in the Gulf of Mexico until the discharge of oil from the last Deepwater Horizon well has stopped and a congressional committee has issued a report finding the cause of the explosion on and sinking of the Deepwater Horizon. 156 Cong. Rec. H4021 (daily ed. May 27, 2010). The bill was referred to the Committee on Natural Resources.
  • H.R. 5438(Donnelly, D-Ind.) (auto emissions) would amend title 23, U.S. Code, to direct the Administrator of EPA to publish annually a list of vehicles that satisfy requirements for certification as a low emission and energy-efficient vehicle. 156 Cong. Rec. H4022 (daily ed. May 27, 2010). The bill was referred to the Committee on Transportation and Infrastructure.
  • H.R. 5442 (Markey, D-Mass.) (electric cars)would establish programs to accelerate, provide incentives for, and examine the challenges and opportunities associated with the deployment of electric drive vehicles. 156 Cong. Rec. H4022 (daily ed. May 27, 2010). The bill was referred to the Committees on Energy and Commerce, Oversight and Government Reform, Science and Technology, Ways and Means, and Transportation and Infrastructure.
  • H.R. 5459 (Capps, D-Cal.) (continental shelf)would increase the limits on liability under the Outer Continental Shelf Lands Act. 156 Cong. Rec. H4214 (daily ed. May 28, 2010). The bill was referred to the Committee on Natural Resources.
  • H.R. 5464 (Giffords, D-Ariz.) (solar power)would amend the Internal Revenue Code of 1986 to provide that solar electric property need not be located on the property with respect to which it is generating electricity in order to qualify for the residential energy efficient property credit. 156 Cong. Rec. H4214 (daily ed. May 28, 2010). The bill was referred to the Committee on Ways and Means.
  • H.R. 5470 (Pallone, D-N.J.) (energy efficiency)would exclude an external power supply for certain security or life safety alarms and surveillance system components from the application of certain energy efficiency standards under the Energy Policy and Conservation Act. 156 Cong. Rec. H4214 (daily ed. May 28, 2010). The bill was referred to the Committee on Energy and Commerce.
  • H.R. 5476 (Welch, D-Vt.) (energy efficiency)would provide financial incentives for owners of commercial buildings and multifamily residential buildings to retrofit their buildings with energy efficient building equipment and materials. 156 Cong. Rec. H4215 (daily ed. May 28, 2010). The bill was referred to the Committee on Energy and Commerce.

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:

AlabamaArizonaCaliforniaDelawareFloridaIowaLouisianaMaineMarylandMassachusettsMinnesotaMissouriMontanaNevadaNew MexicoNew YorkNorth CarolinaNorth DakotaOklahomaOregonSouth CarolinaTexasUtahVirginiaWashingtonWest VirginiaWisconsinWyoming  

ALABAMA

Water:

Wildlife:

ARIZONA

Air:

  • The Department of Environmental Quality adopted a one-time emissions-based fee for all regulated air pollutants emitted in 2008. All bodies that were ordered to pay emissions-based fees will now be required to pay an additional $20.82 per ton of emissions. Seehttp://www.azsos.gov/public_services/Register/2010/21/exempt.pdf(pp. 844-845)

Hazardous and Solid Waste:

  • The Department of Environmental Quality raised fees for hazardous and solid waste permits for 2011, including a seven-fold increase in hazardous waste generation per ton for large quantity generators, the adoption of fees for small quantity generators, and an increase in landfill registration fees. The fees become effective July 1, 2010. Seehttp://www.azsos.gov/public_services/Register/2010/21/exempt.pdf(pp. 846-50)

Water:

  • The Department of Environmental Quality has increased water quality protection fees for FY2011. Among other increases, the Department has raised per hour and maximum individual permit fees and the Gallons of Permitted Discharge or Influent per day fees. The increases take effect July 1, 2010. Seehttp://www.azsos.gov/public_services/Register/2010/21/exempt.pdf(pp. 850-854)
  • The Water Infrastructure Finance Authority proposes to amend Ariz. Rev. Stat. §49-1203(B)(16), which determines eligibility for water infrastructure project grants. There will be a public hearing on June 17, 2010, and the deadline for written comments is June 18. Seehttp://www.azsos.gov/public_services/Register/2010/20/proposed.pdf(pp. 769-814)

CALIFORNIA

Air:

  • The Office of Environmental Health Hazard Assessment is seeking public comment on a draft of reference exposure levels of caprolactam and of a methodology to protect infants and children from exposure. All comments must be received by close of business July 6, 2010. Seehttp://www.oal.ca.gov/res/docs/pdf/notice/21z-2010.pdf(p. 756)
  • The Air Resources Board has filed a regulation with the Secretary of State that requires measurement of the effectiveness of on-board diagnostic (OBD) systems in heavy-duty engines. It also specifies the required capabilities of OBD systems installed in passenger cars, light duty trucks, and medium duty vehicles, and updates the regulation that specifies the emission standards pertinent to OBD systems. The affected code is Cal. Code Regs. tit. 13, §§1971.5, 1968.2, and 1971.1. It was filed on May 18 and becomes effective June 17, 2010. Seehttp://www.oal.ca.gov/res/docs/pdf/notice/22z-2010.pdf(pp. 794-795)

Water:

  • The Office of Environmental Health Hazard Assessment has published its annual list of chemicals known to the state to cause cancer or reproductive toxicity. The office has added dimethylacetamide to the reproductive toxicity list. For the list, seehttp://www.oal.ca.gov/res/docs/pdf/notice/21z-2010.pdf(pp. 737-55)
  • The Office of Environmental Health Hazard Assessment is requesting information as to whether tributyl phosphorotrithioate meets criteria for listing under the Safe Water and Toxic Enforcement Act of 1986. Comments must be received by July 20, 2010. Seehttp://www.oal.ca.gov/res/docs/pdf/notice/21z-2010.pdf (pp. 756-58)

Wildlife:

  • The Department of Food and Agriculture has amended Cal. Code Regs. tit. 3, §3591.5(a) to add Imperial County to the list of areas designated for the eradication of the Mediterranean fruit fly. The amendment was filed on May 17, 2010, and became effective on that date. Seehttp://www.oal.ca.gov/res/docs/pdf/notice/22z-2010.pdf(p. 796)
  • The Department of Food and Agriculture has amended Cal. Code Regs. tit. 3, §3437, to expand the quarantine area for the European Grapevine Moth by over 1,000 square miles to prevent the artificial spread of the moth to uninfested areas of California. The amendment was filed on May 13, 2010, and became effective on that date. Seehttp://www.oal.ca.gov/res/docs/pdf/notice/22z-2010.pdf(pp. 796-797)

DELAWARE

Wildlife:

FLORIDA

Wildlife:

IOWA

Water:

  • The Department of Natural Resources intends to change Chapter 9, Groundwater Hazard Documentation, of the Iowa Administrative Code. The amendments would incorporate changes to the private sewage disposal requirements contained in Iowa Admin. Code r. 455B.172(11) and the groundwater hazard statement requirements contained in Iowa Admin. Code r. 558.69. Seehttp://www.legis.state.ia.us/aspx/ACODOCS/DOCS/06-02-2010.Bulletin.pdf(pp. 2699-700)

LOUISIANA

Air:

  • The Department of Agriculture and Forestry has declared an emergencyrule changing La. Admin. Code 7:XXIII.143 and altering the restrictions on the use of the pesticides 2, 4-D and ULV Malathion/Pyrethroid to combat insects infesting rice and cotton crops. Seehttp://www.doa.la.gov/osr/reg/1005/1005.pdf(pp. 914-16).

Wildlife:

  • The Department of Wildlife and Fisheries has declared an emergency rule closing all commercial and recreational fishing in large portions of Louisiana waters affected by the Deepwater Horizon spill in order to protect existing aquatic life and ensure that no fish harvested for consumption is tainted with hydrocarbons. In addition, the department has closed certain waters to shrimping while instituting a special shrimp season in others. Seehttp://www.doa.la.gov/osr/reg/1005/1005.pdf(963-66).

MAINE

Hazardous Waste:

Wildlife:

  • The Department of Marine Resources has proposed changes to 13-188 Me. Code R. §§26.07(1) and 26.07(2) to institute season limits of 45 days for the taking of sea urchins, and changes to 13-188 Me. Code R. §8.20(P), which would institute mandatory trip and area level harvest reporting by urchin harvesters. The public hearings will be on June 15 and 16, 2010, and the deadline for written comment is June 28, 2010. Seehttp://www.maine.gov/sos/cec/rules/notices/2010/052610.html
  • The Department of Inland Fisheries and Wildlife has adopted restrictions on antlerless deer hunting and has established permit allocations for 29 Wildlife Management Districts. Seehttp://www.maine.gov/sos/cec/rules/notices/2010/060210.html

MARYLAND

Water:

  • The Department of the Environment has proposed changes to Md. Code Regs. 26.17.02, Stormwater Management, to allow municipalities to grandfather in projects started before the May 2010 code changes and to assist in smart growth. A public hearing will be held on June 2, 2010, and the deadline for comments is June 21, 2010. Seehttp://www.dsd.state.md.us/mdregister/3711.pdf(pp.774-776).

Wildlife:

  • The Department of Natural Resources proposed to change regulations regarding which individuals with a limited crab catcher permit can upgrade to an unlimited Tidal Fish License. A public hearing will be held on June 2, 2010, and the deadline for written comments is June 21, 2010. Seehttp://www.dsd.state.md.us/mdregister/3711.pdf(pp. 770-71).
  • The Department of Natural Resources has proposed changes to Md. Code Regs. 08.02.05, Fish. The changes would remove sharks from the list of species that can be taken by spear gun, spear, bow and arrow, and snagging. The deadline for comments is June 21, 2010. Seehttp://www.dsd.state.md.us/mdregister/3711.pdf(pp. 771-72)

MASSACHUSETTS

Hazardous and Solid Waste:

  • The Department of Environmental Protection seeks public comment on a proposed ban of clean gypsum wallboard disposal. This would amend 310 Mass. Code Regs. 19.000, Solid Waste Management Regulations, to add the wallboard to the restricted materials list. It would also require waste management facilities to submit waste ban compliance plans regarding the substance. The hearings will be on June 14 and 16, 2010, and the deadline for public comments is July 6. Seehttp://www.mass.gov/dep/public/hearings/gypsum.htm.

General:

  • The Executive Office of Environmental Affairs will be holding hearings throughout the month of June in various locations in Massachusetts in compliance with the Massachusetts Global Warming Solutions Act on the state's plan for greenhouse gas reduction and its goal of 80 percent reduction by 2050. Seehttp://www.mass.gov/dep/public/hearings/gwsa0610.htm.

MINNESOTA

Hazardous and Solid Waste:

  • The Minnesota Pollution Control Agency (MPCA) proposed to remove two sites from the State Superfund List. The MPCA has determined that proper response actions have been taken under the Minnesota Environmental Response and Liability Act and that the sites no longer pose a threat to public health or the environment. Written comments must be received by June 30, 2010. Seehttp://www.comm.media.state.mn.us/bookstore/stateregister/34_48.pdf(pp. 1699-1700)

MISSOURI

Air:

  • The Department of Natural Resources proposed changes to the list of chemicals in Mo. Code Regs. Ann. tit. 10, §10-6.020, Definitions and Common Reference Tables. The changes would add propylene carbonate and dimethyl carbonate to the list of compounds that are not considered volatile organic compound (VOC) emissions while adding a number of compounds to the list that are considered to be VOCs. There will be a public hearing on July 28, 2010, and the deadline for comments is August 4, 2010. Seehttp://www.sos.mo.gov/adrules/moreg/current/2010/v35n11/v35n11a.pdf(pp. 858-62).
  • The Department of Natural Resources amended Mo. Code Regs. Ann. tit. 10, §10-6.050, which now requires operations to notify the Missouri Department
    of Natural Resources’ Air Pollution Control Program of any start up, shutdown, or maintenance that is expected to cause an excess release of emissions. Seehttp://www.sos.mo.gov/adrules/moreg/current/2010/v35n11/v35n11a.pdf(p. 896).

Wildlife:

  • The Department of Conservation proposed to amend Mo. Code Regs. Ann. tit. 3, §10-7.410, Hunting Methods, to remove the atlatl exception as a method to take deer. In addition, the department proposes to make changes to §10-7.431, Deer Hunting Seasons: General Provisions, adding atlatl as a legal means to take deer. The deadline for comments on both changes is June 25, 2010. Seehttp://www.sos.mo.gov/adrules/moreg/current/2010/v35n11/v35n11a.pdf(p. 857).
  • The Department of Conservation amended Mo. Code Regs. Ann. tit. 3, §10-7.432 to establish an archery deer hunting season. It also amended §10-7.433 to establish firearm deer hunting seasons, limits, and provisions for hunting, and §§10-7.435 and 10-7.437 to add deer harvesting limits and regulations for antlerless hunting. All changes take effect July 1, 2010. Seehttp://www.sos.mo.gov/adrules/moreg/current/2010/v35n11/v35n11a.pdf(pp. 882-83).

MONTANA

Air:

NEVADA

Wildlife:

NEW MEXICO

Land Use:

Water:

  • The Water Quality Control Commission seeks public comment on proposed amendments to N.M. Code R. §20.1.3, the Water Quality Control Commission Adjudicatory Regulations. The changes relate to statutory changes that were made to N.M. Stat. Ann. § 74-6-5 (1978), relating to appeals of permitting actions. The hearing will be on July 13, 2010.See http://www.nmcpr.state.nm.us/nmregister/xxi/xxi10/WaterQualnotice1.pdf
  • The Water Quality Control Commission seeks public comment on proposed amendments to N.M. Code R. §20.6.4.9 submitted by the New Mexico Environment Department, the New Mexico Department of Game and Fish, and the New Mexico Energy, Minerals and Natural Resources Department, which nominate all perennial waters within United States Forest Service Wilderness Areas as outstanding national resource waters. The hearing will be September 14, 2010. Seehttp://www.nmcpr.state.nm.us/nmregister/xxi/xxi10/WaterQualnotice2.pdf
  • The Water Trust Board amended N.M. Code R. §19.25.10, which governs review and eligibility of proposed water projects. The amendments require plans to be submitted to the Environment Department and change the appeals process. The changes took effect May 28, 2010. Seehttp://www.nmcpr.state.nm.us/nmregister/xxi/xxi10/19.25.10amend.pdf

NEW YORK

Water:

NORTH CAROLINA

Water:

  • The Department of Environment and Natural Resources proposed changes to 15A N.C. Admin. Code 02H.0901, which governs local pretreatment programs. Among other changes, the amendments would give greater flexibility to Department of Water Quality oversight. The public hearing will be June 16, 2010, and the comment period ends August 2. The proposed effective date is January 1, 2011. Seehttp://www.ncoah.com/rules/register/Volume24Issue23June12010.pdf(pp. 2015-33)

NORTH DAKOTA

Air:

OKLAHOMA

Air:

Water:

OREGON

Air:

  • The Department of Environmental Quality is proposing to adopt a new air toxic ambient benchmark concentration for ethyl benzene and to revise three current benchmarks for lead, manganese, and mercury. These changes are in response to new findings by the U.S. EPA and the California Environmental Protection Agency. The last day for public comment is June 30, 2010. Seehttp://arcweb.sos.state.or.us/rules/0510_Bulletin/0510_rulemaking_bulletin.html.

Energy:

  • The Department of Energy seeks public comment on rules for a voluntary building energy rating system for use in new and existing commercial and residential buildings based upon task force recommendations. These rules would establish the building energy rating criteria. There will be a public hearing on June 22, 2010, which is the last day for comment. Seehttp://arcweb.sos.state.or.us/rules/0610_Bulletin/0610_rulemaking_bulletin.html

Water:

Wildlife:

SOUTH CAROLINA

Air:

  • The Department of Health and Environmental Control submitted documents demonstrating attainment status of York County, South Carolina, which was previously classified as a moderate nonattainment area for the eight-hour ozone NAAQS, to U.S. EPA. Seehttp://www.scdhec.gov/administration/regs/sip-rfats.htm

TEXAS

Wildlife:

UTAH

Wildlife:

  • The Department of Environmental Resources proposed an amendment to Utah Admin. Code r.657-5 that removes the primitive weapon restriction for taking antlerless elk in conjunction with an antlered tag and allows the opportunity to holders with any legal weapon permits. The last day for comment is July 1, 2010, and the rule may become effective on July 8, 2010. Seehttp://www.rules.utah.gov/publicat/bull_pdf/2010/b20100601.pdf(pp. 119-21)

VIRGINIA

Wildlife:

WASHINGTON

Climate:

WEST VIRGINIA

Air:

Water:

WISCONSIN

General:

  • The Department of Natural Resources proposed to create a rule to establish procedures by which mercury-containing products may be exempt from the sales ban contained in 2009 Wisconsin Act 44: Products Containing Mercury. Seehttp://www.legis.state.wi.us/rsb/code/register/reg653b.pdf(pp. 18-19)

Hazardous and Solid Waste:

Water:

WYOMING

Air:

  • The Environmental Quality Council seeks public comment on proposed revisions to Wyoming Air Quality Standards and Regulations Chapter 2, Ambient Standards; Chapter 3, General Emission Standards; Chapter 5, National Emission Standards; Chapter 6, Permitting Requirements; and Chapter 11, National Acid Rain Program. The public comment period ends June 28, 2010, and there will be a public hearing on July 8, 2010. Seehttp://deq.state.wy.us/aqd/proposedrules_files/EQC%20Public%20Notice_R18_7-8-10.pdf

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

INTERNATIONAL

INTERNATIONAL COURT OF JUSTICE DEMANDS ENVIRONMENTAL IMPACT ASSESSMENTS

In a recent decision on a treaty violation stemming from pollution in the River Uruguay, the International Court of Justice (ICJ) stated that environmental impact assessments have become such standard practice that they may now be considered "a requirement under general international law." The decision regards a suit filed by Argentina against the nation of Uruguay for authorizing the construction of two pulp mills that violated the Treaty of the River Uruguay by polluting the river's water. Argentina contended, and the ICJ agreed, that without an adequate environmental impact assessment, complete with alternative sites and the potential adverse effects on the local population, the nations' agreement the river was violated. For the decision, seehttp://www.icj-cij.org/docket/files/135/15877.pdf(esp. paragraph 204).

EU/UN REPORT CALLS FOR TAXATION TO REFLECT ENVIRONMENTAL IMPACT

A recent report published by the European Commission and the United Nations Environment Program ranks products, materials, and economic and lifestyle activities according to their impact on the environment, and calls for a tax incentives to reduce the use of fossil fuels and harmful agriculture practices. The report also finds that a doubling of wealth leads to a 60 to 80 percent increase in environmental pressure, and that tax regimes should reflect the impact goods and practices have on the environment. Agriculture and food production are among the highest priorities for change, as over half of the world's food supply is currently fed to animals and increased demand for certain products has led to habitat degradation and fish population depletion. The study also finds that electrical utilities are by far the largest contributor to acidification. For the full report, seehttp://www.unep.fr/shared/publications/pdf/DTIx1262xPA-PriorityProductsAndMaterials_Report.pdf. For the summary, seehttp://www.unep.fr/scp/rpanel/producsandmaterials.htm.

UK FACES LEGAL ACTION FOR FINE PARTICLE EMISSIONS

The European Commission has sent a final written warning to the United Kingdom for its failure to comply with European Union standards on air quality. According to the European Commission, two areas of the UK, the Greater London Urban Area and Gibraltar, have failed to meet standards for PM10, which is emitted mainly by industry, traffic, and domestic heating, and which has been linked to asthma, cardiovascular problems, lung cancer, and premature death. Since 2005, the EU's binding limit values on PM10 have been an annual average concentration value of 40 micrograms per cubic meter and a daily concentration value of 50 micrograms per cubic meter. Zones cannot exceed the daily limit more than 35 times in a year. For the full story, seehttp://europa.eu/rapid/pressReleasesAction.do?reference=IP/10/687&format=HTML&aged=0&language=EN&guiLanguage=en

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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