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Weekly Update Volume 40, Issue 17

06/14/2010

LITIGATION 

ESA, CRITICAL HABITAT DESIGNATION:

The Ninth Circuit upheld the FWS' designation of critical habitat for the Mexican Spotted Owl. A cattle growers' association argued that the FWS unlawfully designated areas containing no owls as "occupied" habitat. But the FWS's interpretation of the word "occupied" in the ESA was permissible. The FWS has authority to designate as "occupied" areas that the owl uses with sufficient regularity that it is likely to be present during any reasonable span of time. Nor did the FWS arbitrarily and capriciously treat unoccupied areas as occupied. The process that the FWS used to select habitat for designation, the measures it took to exclude areas where owls were absent or use by owls was infrequent, and its careful work to confirm the presence of owls in the designated areas demonstrate that the FWS designated areas that correspond to habitat where the owl is likely to be found. In addition, the FWS' economic analysis of the critical habitat designation was proper.Arizona Cattle Growers' Ass'n v. Salazar, No. 08-15810, 40 ELR 20154 (9th Cir. June 4, 2010).

CERCLA, COST ALLOCATION:

The Fifth Circuit affirmed in part a lower court's equitable allocation of costs among various parties involved in the cleanup of a hazardous waste dump near the Houston Ship Channel. Both sides to the appeal concede liability for environmental cleanup at the site but they disagreed with the lower court's allocation of the associated costs. The court rejected concerns about the reliability of expert witness testimony underDaubert, the lower court’s choice of methodologies in allocating costs, and some of the court’s factual findings. But the lower court erred by admitting an expert report that relied on evidence submitted solely for the purposes of settlement. Effective dispute resolution requires frank and full discussion of relevant evidence. Making the content of such a discussion available for use in related litigation would invite the very situation that Rule 408 is designed to avoid, and worse, in CERCLA litigation, reduce the likelihood that responsible parties would volunteer to right their environmental wrongs.Lyondell Chemical Co. v. Occidental Chemical Co., 40 ELR 20152, No. 08-40060 (5th Cir. June 8, 2010).

CWA, WETLANDS:

A district court dismissed a property owner's CWA citizen suit against his neighbor for grading an easement area that contains wetlands. A CWA citizens suit may not be maintained if it only involves past violations of the CWA. Here, there is no evidence of any ongoing violation--either continuous or intermittent--of the CWA. The one and only time the easement was graded was on August 3, 2006--more than a year before the U.S. Army Corps of Engineers determined that wetlands were on the easement area--and the neighbor has made it quite clear that she will not do any future grading or other similar work in the easement area without first obtaining a permit. The neighbor, therefore, is entitled to summary judgment dismissing the claim.Catchpole v. Wagner, 40 ELR 20155, No. 09-5065 (W.D. Wash. June 1, 2010) (Strombom, J.).

RCRA, CWA, ABSTENTION:

A district court dismissed, on grounds of abstention, an environmental group's RCRA and CWA citizen suit against a company seeking remediation of contaminated sediments in the Raritan River located adjacent to a site formerly owned by the company. The complaint asks the court to enter an injunction requiring immediate remediation of the contaminated river sediments adjacent to the site. Although a split in authority exists regarding when abstention is appropriate in RCRA and CWA cases, the court found that abstention is appropriate based on the facts of this case. The agency charged with implementation of environmental protection policy in the state has technical expertise in the matter, there exists a substantial danger of inconsistent rulings if the court exercises jurisdiction over the case, and proceedings before the state agency have already begun. Accordingly, technical and policy considerations weigh in favor of the application of the doctrine of primary jurisdiction, and the matter should be referred to the state agency for resolution. In addition, given the availability of timely and adequate state-court review of the issues raised in this case, and the danger of interference with the important state policies of brownfield rehabilitation and regional remediation of river sediments, abstention under theBurforddoctrine is appropriate.Raritan Baykeeper, Inc. v. NL Industries, Inc., 40 ELR 20156, No. 09-4117 (D.N.J. May 26, 2010) (Pisano, J.).

WATER LAW, FINES:

A California appellate court affirmed a lower court's denial of a petition challenging a regional water board's imposition of a $25,000 fine against a company for a chemical spill on its property that infiltrated the groundwater. The company argued that the board abused its discretion in imposing the fine because neither the law nor the facts supported the imposition of the fine. But the board properly applied the relevant statutes. Evidence supports the board's conclusion that the company "caused or permitted" the discharge into the groundwater in violation of Water Code §13350. The company TWC was strictly liable for the discharge. Therefore, it cannot be absolved simply because its contractors were negligent or also could be held liable for the discharge. The company also failed to report the spill in violation of Water Code §13264. Nor was the company deprived of due process and a fair hearing at the administrative hearing before the board.TWC Storage, LLC v. State Water Resources Control Board, No. H033228, 40 ELR 20153 (Cal. App. 6th Dist. June 3, 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 found that 29 states or territories failed to meet attainment and maintenance requirements related to the interstate transport of pollution and set a two-year deadline for compliance.75 FR 32673(6/9/10).
  • EPA proposed revisions to the standards of performance for new stationary compression ignition internal combustion engines.75 FR 32612(6/8/10).
  • EPA proposed to amend its Protocol Gas Verification Program and the minimum competency requirements for air emission testing to improve the accuracy of emissions data.75 FR 33392(6/11/10).
  • EPA announced the availability of a final document titled,Quantitative Risk and Exposure Assessment for Carbon Monoxide.75 FR 32178(6/7/10).
  • SIP Approvals:California (continuous emission monitoring system standards for the South Coast air quality management district)75 FR 32293(6/8/10). Maryland (2002 base-year emissions inventory, reasonable further progress plan, contingency and reasonably available control measures, and transportation conformity motor vehicle emissions budgets for the Philadelphia moderate 1997 eight-hour ozone nonattainment area)75 FR 33172(6/11/10). New Mexico (interstate transport of pollution)75 FR 33174(6/11/10).
  • SIP Proposal:California (continuous emission monitoring system standards for the South Coast air quality management district; see above for direct final rule)75 FR 32353(6/8/10).

WATER:

  • EPA announced approval of 12 alternative testing methods to measure the levels of contaminants in drinking water and to determine compliance with national primary drinking water regulations.75 FR 32295(6/8/10).

WILDLIFE:

  • FWS announced a 90-day finding on a petition to list a distinct population segment of the gray wolf in five northeastern states as endangered under the ESA; the Agency found that listing is not warranted.75 FR 32869(6/10/10).
  • FWS announced a 90-day finding on a petition to list the van Rossem's gull-billed tern as an endangered or threatened species under the ESA and to designate critical habitat; the Agency found that listing may be warranted and initiated a status review.75 FR 32728(6/9/10).

DOJ NOTICES OF SETTLEMENT:

  • United States v. Romano, No. 1:08-cv-00314 (D.N.J. June 2, 2010). A settling CERCLA defendant must pay $12,000 in U.S. response costs incurred at the Pioneer Smelting Superfund site in Chatsworth, New Jersey.75 FR 32503(6/8/10).
  • United States v. American Municipal Power, Inc., No. 2:10-cv-438 (S.D. Ohio May 18, 2010). A settling CAA defendant that violated PSD, new source review, and Title V permit provisions at its coal-fired power plant in Marietta, Ohio, must pay a $850,000 civil penalty, must permanently shut down and retire all four units at the Gorsuch Station, and must spend $15 million on energy efficiency projects to mitigate the alleged adverse effects of its past violations.75 FR 32504(6/8/10).
  • United States v. Scrap Yard, LLC, No. 1:10-cv-01206 (N.D. Ohio May 28, 2010). A settling CAA defendant that failed to recover or verify recovery of refrigerant from appliances accepted for disposal at its Cleveland, Ohio, facility must pay a $5,000 civil penalty, must purchase equipment to recover refrigerant or contract for such services at no additional cost, must no longer accept appliances without verification of no leakage, must require a verification statement from suppliers, and must keep a log of refrigerant recovered.75 FR 32210(6/7/10).

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

THE CONGRESS

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

Chamber Action

  • S. 3473 (oil spill), which would amend the Oil Pollution Act of 1990 to authorize advances from the Oil Spill Liability Trust Fund for the Deepwater Horizon oil spill, was passed by the Senate, 156 Cong. Rec. S4744 (daily ed. June 9, 2010), and the House. 156 Cong. Rec. H4336, H4365 (daily ed. June 10, 2010).
  • H.R. 1061 (Hoh Indian Tribe Safe Homelands Act), which would transfer certain land to the United States to be held in trust for the Hoh Indian Tribe and to place land into trust for the Hoh Indian Tribe, was passed by the House. 156 Cong. Rec. H4222 (daily ed. June 8, 2010).
  • H.R. 2008 (Bonneville Unit Clean Hydropower Facilitation Act), which would authorize the Secretary of the Interior to facilitate the development of hydroelectric power on the Diamond Fork System of the Central Utah Project, was passed by the House. 156 Cong. Rec. H4222 (daily ed. June 8, 2010).
  • H.R. 4349 (Hoover Power Allocation Act of 2010 ), which would further allocate and expand the availability of hydroelectric power generated at Hoover Dam, was passed by the House. 156 Cong. Rec. H4219 (daily ed. June 8, 2010).

Committee Action

  • S. 1388 (Cantwell, D-Wash.) (hydroelectric power)was reported by the Committee on Indian Affairs. S. Rep. No. 111-204, 156 Cong. Rec. S4849 (daily ed. June 10, 2010). The bill would provide for equitable compensation to the Spokane Tribe of Indians of the Spokane Reservation for the use of tribal land for the production of hydropower by the Grand Coulee Dam.

Bills Introduced

  • S.3457 (Levin, D-Mich.) (energy) would allow for the development of energy parks on former nuclear defense facilities and authorize additional defense funds. 156 Cong. Rec. S4621 (daily ed. June 7, 2010).
  • S. 3460 (Sanders, I-Vt.) (solar power)would require the Secretary of Energy to provide funds to states for rebates, loans, and other incentives to eligible individuals or entities for the purchase and installation of solar energy systems for properties located in the United States. 156 Cong. Rec. S4621 (daily ed. June 7, 2010). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 3461 (Vitter, R-La.) (oil spill)would create a 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. S4621 (daily ed. June 7, 2010). The bill was referred to the Committee on the Judiciary.
  • S. 3462 (Shaheen, D-N.H.) (oil spill) would provide subpoena power to the National Commission on the British Petroleum Oil Spill in the Gulf of Mexico. 156 Cong. Rec. S4358 (daily ed. June 8, 2010). The bill was referred to the Committee on the Judiciary.
  • S. 3464 (Lugar, R- Ind.) (energy and climate)would establish an energy and climate policy framework to reach measurable gains in reducing dependence on foreign oil. 156 Cong. Rec. S4744 (daily ed. June 9, 2010). The bill was referred to the Committee on Finance.
  • S. 3466 (Leahy, D-Vt.) (water pollution)would require restitution for victims of criminal violations of the Federal Water Pollution Control Act. 156 Cong. Rec. S4744 (daily ed. June 9, 2010). The bill was referred to the Committee on the Judiciary.
  • S. 3470 (Alexander, R-Tenn.) (land use)would designate as wilderness certain public land in the Cherokee National Forest in the state of Tennessee.156 Cong. Rec. S4745 (daily ed. June 9, 2010). The bill was referred to the Committee on Agriculture, Nutrition, and Forestry.
  • S. 3472 (Menendez, D-N.J.) (oil spill)would amend the Oil Pollution Act of 1990 to require oil polluters to pay the full costs of oil spills. 156 Cong. Rec. S4745 (daily ed. June 9, 2010). The bill was referred to the Committee on Environment and Public Works.
  • S. 3481 (Cardin, D-Md.) (water pollution)would amend the Federal Water Pollution Control Act to clarify federal responsibility for stormwater pollution. 156 Cong. Rec. S4850 (daily ed. June 10, 2010). The bill was referred to the Committee on Environment and Public Works.
  • S. 3482 (Reid, D-Nev.) (solar power)would provide for the development of solar pilot project areas on public land in Lincoln County, Nevada. 156 Cong. Rec. S4850 (daily ed. June 10, 2010). The bill was referred to the Committee on Energy and Natural Resources.
  • H.R. 5478 (Blumenauer, D-Or.) (railcar fuel efficiency)would provide tax incentives for the replacement of outdated freight railcars with more fuel efficient vehicles. 156 Cong. Rec. H4246 (daily ed. June 8, 2010). The bill was referred to the Committee on Ways and Means.
  • H.R. 5481(Capps, D-Cal.) (oil spill)would give subpoena power to the National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling. 156 Cong. Rec. S4358 (daily ed. June 8, 2010). The bill was referred to the Committee on Natural Resources.
  • H.R. 5482 (Jones, R-N.C.) (wildlife)would direct the Secretary of the Interior to enter into an agreement to provide for management of the free-roaming wild horses in and around the Currituck National Wildlife Refuge. 156 Cong. Rec. S4358 (daily ed. June 8, 2010). The bill was referred to the Committee on Natural Resources.
  • H.R. 5487 (Napolitano, D-Cal.) (water supply research)would amend the Water Resources Research Act of 1984 to reauthorize grants for and require applied water supply research regarding the water resources research and technology institutes established under that Act. 156 Cong. Rec. H4330 (daily ed. June 8, 2010). The bill was referred to the Committee on Natural Resources.
  • H.R. 5494 (Norton, D-D.C.) (land transfer)would direct the Director of the National Park Service and the Secretary of the Interior to transfer certain properties to the District of Columbia. 156 Cong. Rec. H4330 (daily ed. June 8, 2010). The bill was referred to the Committee on Natural Resources.
  • H.R. 5499 (Mica, R-Fla.) (oil spill)would amend the Oil Pollution Act of 1990 to authorize advances from Oil Spill Liability Trust Fund for the Deepwater Horizon oil spill. 156 Cong. Rec. H4386 (daily ed. June 10, 2010). The bill was referred to the Committee on Transportation and Infrastructure.
  • H.R. 5505 (Burgess, R-Tex.) (nuclear energy)would authorize the Secretary of Energy to establish monetary prizes for achievements in designing and proposing nuclear energy used fuel alternatives. 156 Cong. Rec. H4386 (daily ed. June 10, 2010). The bill was referred to the Committee on Science and Technology.
  • H.R. 5506 (Connolly, D-Va.) (offshore drilling)would amend the Outer Continental Shelf Lands Act to require that treatment of the issuance of any exploration plans, development production plans, development operation coordination documents, and lease sales required under federal law for offshore drilling activity on the outer continental shelf as a major federal action under NEPA. 156 Cong. Rec. H4386 (daily ed. June 10, 2010). The bill was referred to the Committee on Natural Resources.
  • H.R. 5507 (Heller, R-Nev.) (renewable energy)would require the Secretary of Defense to identify areas on military installations and certain other properties as acceptable, unacceptable, or unassessed regarding their suitability for placement of geothermal, wind, solar photovoltaic, or solar thermal trough systems. 156 Cong. Rec. H4386 (daily ed. June 10, 2010). The bill was referred to the Committee on Armed Services.
  • H.R. 5508 (Heller, R-Nev.) (solar power)would provide for the development of solar pilot project areas on public land in Lincoln County, Nevada. 156 Cong. Rec. H4386 (daily ed. June 10, 2010). The bill was referred to the Committee on Natural Resources.
  • H.R. 5509 (Holden, D-Pa.) (Chesapeake Bay)would support efforts to reduce pollution of the Chesapeake Bay watershed and to verify that reductions in pollution have been achieved. 156 Cong. Rec. H4386 (daily ed. June 10, 2010). The bill was referred to the Committee on Transportation and Infrastructure.
  • H.R. 5513 (Pedigree, R-Me.) (offshore drilling)would amend the Outer Continental Shelf Lands Act to require payment of royalty on all oil and gas saved, removed, sold, or discharged under a lease under that Act. 156 Cong. Rec. H4386 (daily ed. June 10, 2010). The bill was referred to the Committee on Natural Resources.
  • H.R. 5518 (Titus, D-Nev.) (energy investment tax credit)would amend the Internal Revenue Code of 1986 to allow the energy investment tax credit and the credit for residential energy efficient property with respect to natural gas heat pumps. 156 Cong. Rec. H4386 (daily ed. June 10, 2010). The bill was referred to the Committee on Ways and Means.

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:

AlaskaCaliforniaColoradoIdahoIllinoisIndianaKansasMaineNebraskaNew JerseyNew YorkNorth DakotaPennsylvaniaRhode IslandTexasVirginiaWest VirginiaWyoming

ALASKA

Air:

Hazardous and Solid Waste.:

CALIFORNIA

Air:

  • The Air Resources Board seeks public comment on proposed amendments to Cal. Code Regs. tit. 17, §§95150, 95151, 95152, 95153, 95154, 95155, 95156, 95157, 95158, 94159, 95160, 95161, and 95162. Proposed changes would have significant impact on many stationary industrial facilities located in the state, as the amendments would force the largest emitters of greenhouse gases to submit information on energy efficiency improvement opportunities that are available and quantify the associated emission reductions for greenhouse gas, criteria pollutants, and toxic air contaminants. The rules are meant to comply with the state's Global Warming Solutions Act and will help the Board determine emissions standards and greenhouse gas reductions plans, in addition to aiding to development of a state cap-and-trade program. The public hearing will be on July 22, 2010, and written comments are due July 21. Seehttp://www.oal.ca.gov/res/docs/pdf/notice/23z-2010.pdf(pp. 825-29)
  • The Air Resources Board seeks public comment on proposed amendments to Cal. Code Regs. tit. 17, §§97000, 97001, 97002, 97003, 97004, 97005, 97006, 97007, 97008, 97009, 97010, 97011, and 97012. The amendments would create a California Renewable Energy Standard requiring providers of electricity to demonstrate, by 2020, that at least 33 percent of the electricity produced came from a renewable energy source, and allowing for providers to bank and trade renewable energy credits. The law would affect all energy providers who sell 200,000 MWh or more per year. There will be a public hearing on July 22, 2010, and the deadline for written comments is July 21. Seehttp://www.oal.ca.gov/res/docs/pdf/notice/23z-2010.pdf(pp. 829-35)
  • The Office of Environmental Health Hazard and Assessment seeks public comment on a draft of revised reference exposure levels for nickel and nickel compounds for the Air Toxics Hot Spots Program. The Office also seeks comment on revised methodology to protect infants, children, and other sensitive subpopulations. The public review period will end on August 3, 2010. Seehttp://www.oal.ca.gov/res/docs/pdf/notice/23z-2010.pdf(pp. 861-860)

Wildlife:

  • The Department of Food and Agriculture amended Cal. Code Regs. tit. 3, §3423(b), pertaining to the Oriental Fruit Fly interior quarantine. The amendments remove 84 square miles of land from the area under quarantine, and removes authority from the state of California to regulate movement of the fly in the recently de-quarantined zone. The public comment period ends July 19, 2010, and the Department intends to submit a Certificate of Compliance for this action no later than August 31, 2010.Seehttp://www.oal.ca.gov/res/docs/pdf/notice/23z-2010.pdf(pp. 811-813)
  • The Fish and Game Commission has determined that the addition of the addition of the California tiger salamander (Ambystoma californiense) to the list of threatened species list is warranted. The finding is pursuant to Cal. Fish & Game Code §2050. Seehttp://www.oal.ca.gov/res/docs/pdf/notice/23z-2010.pdf (pp. 855-60)

COLORADO

Hazardous and Solid Waste:

Water:

Wildlife:

IDAHO

Water:

  • The Board of Environmental Quality adopted a revision to Idaho Admin. Code r. 58.01.20, Rules for Administration of Drinking Water Loan Program. The change allows the Department of Environmental Quality to collect a fee in the form of a percentage of each loan, as is designed to substitute State General Fund monies to support infrastructure programs. The revision is pending review by the Idaho state legislature. Seehttp://adm.idaho.gov/adminrules/bulletin/bul/10bul/10jun.pdf(p. 65)

ILLINOIS

Wildlife:

  • The Department of Natural Resources adopted amendments to Ill. Admin. Code tit. 17, ch. I, pt. 750, regarding who may lawfully possess a deer killed by a motor vehicle. Among many changes to the criteria for ownership of a dead deer, no one who is delinquent in child support may now possess or transport a carcass. The driver of the vehicle that struck the deer still has priority in claiming the animal, and there is still no limit to the number of dead deer that may be possessed, but those who wish to claim deers must report relevant information, such as the location of the kill and the new owner's identifying information, to the Department. The rules took effect May 20, 2010. Seehttp://www.cyberdriveillinois.com/departments/index/register/register_volume34_issue23.pdf(pp. 7715-7719)

INDIANA

Air:

  • The Air Pollution Control Board seeks public comment on draft rule amendments to 326 Ind. Admin. Code §§1-4-16, 1-4-46, and 1-4-65, which would give some areas of the state attainment status for the eight-hour ozone NAAQS. The deadline for comments is July 2, 2010. Seehttp://www.in.gov/legislative/iac/20100602-IR-326100342FDA.xml.pdf

Hazardous and Solid Waste:

Water:

KANSAS

Air:

  • The Department of Health and Environment adopted permanent changes to Kan. Admin. Regs. tit. 28, §19, which pertains to ambient air quality standards. Changes set certain limits on idle times and nitrogen oxide emissions for heavy-duty diesel vehicles. The changes become effective June 25, and owners of vehicles must demonstrate compliance within 24 months. Seehttp://www.kssos.org/pubs/register%5C2010%5CVol_29_No_23_June_10_2010_p_857-976.pdf(pp. 866-68)

MAINE

Wildlife:

  • The Department of Marine Resources proposed changes to Ch. 41.30. Changes would limit vessel size in the Menhaden Pilot Program. There will be public hearings on June 28 and June 29, 2010, and the deadline for written comments is July 9. Seehttp://www.maine.gov/sos/cec/rules/notices/2010/060910.html
  • The Department of Inland Fisheries and Wildlife has proposed changes to Ch. 1.02, Ice Fishing Regulations. Changes would alter both season length and bag limits. There will be a public hearing on June 30, 2010, and the deadline for written comments is July 12. Seehttp://www.maine.gov/sos/cec/rules/notices/2010/060910.html

NEBRASKA

Water:

NEW JERSEY

Water:

  • The Pinelands Commission has proposed amendment to N.J. Admin. Code §§7:50-2.11, 6.84, 10.21, 10.22 and 10.23, which relate to the Pilot Program for Alternate Design Wastewater Treatment Systems. Among other changes stemming from an eight-year efficacy study of the program, the Commission intends to reduce nitrogen in wastewater, require manufacturers of new systems to submit to EPA verification and certification, and extend the period of the pilot program. There will be a public hearing on July 15, 2010, and the public comment period ends August 6. Seehttp://www.lexisnexis.com/njoal/(42 N.J.R. 987(a)).

NEW YORK

Energy:

Land Use:

NORTH DAKOTA

Wildlife:

PENNSYLVANIA

Water:

RHODE ISLAND

General:

  • The Department of Environmental Management seeks public comment on a draft of its Environmental Equity Policy, which is meant to ensure that no person or particular group of persons suffers disproportionately from environmental degradation or intentional discrimination, or is denied enjoyment of a fair share of environmental improvements. Seehttp://www.dem.ri.gov/pubs/eequity.htm

Air:

  • The Department of Environmental Management proposed changes to Air Pollution Control Regulations No. 9, Air Pollution Control Permits. Changes would affect all permits related to development that are set to expire before June 30, 2011, and would extend the period of validity to June 30, 2011. There will be a public hearing on June 23, 2010. Seehttp://www.dem.ri.gov/programs/director/legal/tollregs/air09_09.pdf

Hazardous and Solid Waste:

  • The Department of Environmental Management amended Regulation #DEM OWM-HW10-01, Hazardous Waste Regulations. Among other changes, the Department has added stricter documentation requirements for the transportation of hazardous waste and has designated different classes for landfills. For the amended regulations, seehttp://www.dem.ri.gov/pubs/regs/regs/waste/hwregs10.pdf.

Water:

  • The Department of Environmental Management proposed changes to certain regulations that govern freshwater wetlands, dredging management, and water quality regulations. Changes would affect all permits related to development that are set to expire before June 30, 2011 and would extend the period of validity to June 30, 2011. There will be a public hearing on June 23, 2010. Seehttp://www.dem.ri.gov/programs/director/legal/tollregs/dred1209.pdf

TEXAS

Energy:

  • The Comptroller of Public Accounts adopted the new 34 Tex. Admin. Code §19.53, concerning building energy efficiency performance standards. The changes are designed to make the Texas code as stringent as the International Energy Conservation Code. The new law will take effect April 1, 2011. Seehttp://www.sos.state.tx.us/texreg/pdf/backview/0604/index.shtml(pp. 4727-29)

Water:

  • The Water Development Board proposed to amend 31 Tex. Admin. Code §363.33, which governs interest rates in state participation projects. Changes would affect the way that interest rates are set. The proposal has been reviewed by legal counsel and found to be within the agency’s legal authority to adopt. The earliest date the amendment may take effect is July 4, 2010. Seehttp://www.sos.state.tx.us/texreg/pdf/backview/0604/index.shtml(pp. 4614-16)
  • The Water Development Board proposed the adoption a new 31 Tex. Admin. Code ch. 371, pertaining to the Drinking Water State Revolving Fund. Changes are meant to streamline federal capitalization funds. There will be a public hearing on June 28, 2010, and written comments are due by July 4, 2010. Seehttp://www.sos.state.tx.us/texreg/pdf/backview/0604/index.shtml(pp. 4616-26)
  • The Commission on Environmental Quality adopted an amendment to 30 Tex. Admin. Code §290.46, which governs regulations for public water systems. The new rules require the regulatory authority for a public utility to adopt standards for installing fire hydrants adequate to protect public safety in residential areas in a municipality with a population of 1,000,000 or more. The regulation took effect June 10, 2010. Seehttp://www.sos.state.tx.us/texreg/pdf/backview/0604/index.shtml(pp. 4726-27)

VIRGINIA

Wildlife:

  • The Marine Resources Commission has instituted an emergency amendment to 4 Va. Admin. Code §28.2-201, pertaining to blue crab sanctuaries. The amendment is in response to a reduced stock of the crab and is intended to conserve the population in the Chesapeake Bay system. It expands the area designated as sanctuary. The rule is in effect through June 24, 2010. Seehttp://legis.state.va.us/codecomm/register/vol26/iss20/v26i20.pdf(pp. 2506-07)

WEST VIRGINIA

Water:

WYOMING

Water:

  • The Environmental Quality Council seeks public comment on a proposal to adopt Water Quality Rules and Regulations Chapter 24, Class VI Injection Wells and Facilities. The proposed rule is being developed pursuant to Wyo. Stat. Ann. §35-11-313 (carbon sequestration; permit requirements) and describes the requirements for the content of applications for the geologic sequestration of carbon dioxide. The hearing will be on July 8, 2010. Seehttp://deq.state.wy.us/wqd/events/public%20notices/UIC/Star%20Tribune%20PN%20Proof.pdf

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

INTERNATIONAL

EUROPEAN COMMISSION CALLS FOR EU BIOFUEL SUSTAINABILITY CERTIFICATION BY DEC. 2010

As part of the 2009 Renewable Energy Directive, the European Commission has released a memo that sets goals and standards to encourage industry, governments, and nongovernmental organizations to set up certification schemes for sustainability in biofuels. According to Günther Oettinger, Commissioner responsible for energy, the scheme proposed is the most stringent in the world; it includes a mandate that member nations, which must meet binding targets for renewable energy, must use biofuels that deliver greenhouse gas savings of at least 35% compared to fossil fuels, rising to 50% in 2017 and to 60% for biofuels from new plants in 2018. The Commission also warned against using raw materials from tropical forests or recently deforested areas, drained peatland, wetlands, or highly biodiverse areas in the production of biofuels. According to the former Ambassador to the GATT Alan Oxley, this means that palm oil-based biodiesel is likely to become much more difficult to import into the European Union, though Neste Oil, which produces renewable diesel largely from vegetable oil and waste fat, released a statement in favor of the new guidelines. For the full story, seehttp://europa.eu/rapid/pressReleasesAction.do?reference=IP/10/711&format=HTML&aged=0&language=en&guiLanguage=en
For the memo, which includes data on member nations' increase in biofuel use, seehttp://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/10/247&format=HTML&aged=0&language=en&guiLanguage=en

RUSSIA, AUSTRALIA, AND CANADA ACCUSED OF "CARBON CHEATING" AT UN CLIMATE CONVENTION

New proposed rules that allow nations to account for emissions based on land use change have led to some developed countries being accused of "cheating" at the United Nations Climate Convention. Proposed rules would base total emissions changes for nations that fall under the Kyoto Protocol against an expected land use baseline--meaning nations that engaged in less deforestation than expected could count that as a net emissions reduction. Russia's proposal would also allow nations to decide which aspects of land use change to include in its emissions report. Some European Union delegates have said that developed nations with large forests--such as Austria, Finland, and Sweden--have been pushing for looser regulations. Kevin Conrad, lead negotiator for Papua New Guinea, said that the proposed rules amount to "climate fraud," and the European Commission's chief negotiator Artur Runge-Metzger cautioned against tighter rules for developing countries than developed ones. For the full story, seehttp://news.bbc.co.uk/2/hi/science_and_environment/10286334.stm.

INDIAN COURT CONVICTS SEVEN FOR 1984 BHOPAL DISASTER; NUCLEAR PROGRAM IN QUESTION

Twenty six years after one of the worst industrial disasters in history, India has convicted seven people believed to be responsible for the Central Indian pesticide plant gas leak estimated to have killed between 7,000 and 10,000 people. Those convicted face jail sentences of two years, after charges warranting 10 year sentences were dropped. The seven were granted bail and were assessed a US$2,000 fine. Lingering effects of the leak are estimated by Amnesty International to have killed an additional 15,000 people and led to thousands of birth defects in children born since the event. Warren Anderson, then the chairman of Carbide International, has remained in the United States. As the Civil Nuclear Liability Bill is debated in the Indian Parliament, anti-nuclear activists have lamented the absence of criminal liability for lethal pollution in the nation and in the bill, which provides compensation to victims from taxpayer money instead of private profits. For the story on the conviction, seehttp://www.enn.com/pollution/article/41406. For the story on India's nuclear future, seehttp://news.xinhuanet.com/english2010/world/2010-06/11/c_13345843.htm.

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