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Weekly Update Volume 40, Issue 19

07/06/2010

LITIGATION 

 NEPA, INJUNCTIONS:

The U.S. Supreme Court held that a district court abused its discretion in enjoining the Animal and Plant Health Inspection Service (APHIS) from effecting a partial deregulation of Roundup Ready Alfalfa (RRA), a variety of alfalfa genetically engineered to tolerate the herbicide Roundup, and in prohibiting the planting of RRA pending the Agency's completion of an EIS under NEPA. Petitioners and the government do not dispute that APHIS' deregulation decision violated NEPA, but they challenge the scope of the relief granted. None of the four factors for granting permanent injunctive relief supports the district court’s order enjoining APHIS from partially deregulating RRA during the pendency of the EIS process. Most importantly, respondents cannot show that they will suffer irreparable injury if APHIS is allowed to proceed with any partial deregulation. And because it was inappropriate for the district court to foreclose even the possibility of a partial and temporary deregulation, it follows that it was inappropriate to enjoin planting in accordance with such a deregulation decision. An injunction is a drastic and extraordinary remedy that should not be granted as a matter of course. If, as respondents concede, a less drastic remedy (such as partial or complete vacatur of APHIS' deregulation decision) was sufficient to redress their injury, no recourse to the additional and extraordinary relief of an injunction was warranted. The Court, therefore, reversed and remanded the Ninth Circuit decision affirming the district court. Alito, J., delivered the opinion of the Court, in which Roberts, C.J., and Scalia, Kennedy, Thomas, Ginsburg, and Sotomayor, JJ., joined. Stevens, J., filed a dissenting opinion. Breyer, J., took no part in the consideration or decision of the case. Monsanto Co. v. Geertson Seed Farms, No. 09-475, 40 ELR 20167 (U.S. June 21, 2010).

CERCLA, UNILATERAL ADMINISTRATIVE ORDERS:

The D.C. Circuit upheld the constitutionality of EPA's authority under CERCLA to issue unilateral administrative orders (UAOs) directing companies and others to clean up hazardous waste for which they are responsible. A company argued that the statute, as well as the way in which EPA administers it, violates the Due Process Clause because EPA issues UAOs without a hearing before a neutral decisionmaker. The court disagreed. To the extent the UAO regime implicates constitutionally protected property interests by imposing compliance costs and threatening fines and punitive damages, it satisfies due process because UAO recipients may obtain a pre-deprivation hearing by refusing to comply and forcing EPA to sue in federal court. The company argued that the UAO scheme and EPA's implementation of it nonetheless violate due process because the mere issuance of a UAO can inflict immediate, serious, and irreparable damage by depressing the recipient's stock price, harming its brand value, and increasing its cost of financing. But such consequential injuries--injuries resulting not from EPA's issuance of the UAO, but from market reactions to it--are insufficient to merit Due Process Clause protection. General Electric Co. v. Jackson, No. 09-5092, 40 ELR 20170 (D.C. Cir. June 29, 2010).

NEPA, MINING:

The Ninth Circuit held that the BLM violated NEPA when it approved a mining company's amendment to a plan of operations for an existing mineral exploration project in Nevada. The BLM took a hard look at the direct impacts of the amendment and its discussion of reasonable alternatives was proper, but the agency failed to conduct a proper analysis of the cumulative impacts of the amendment on Native American cultural resources in the area. In order for plaintiffs to demonstrate that the BLM failed to conduct a sufficient cumulative impact analysis, they need not show what cumulative impacts would occur. They must show only the potential for cumulative impact. The plaintiffs more than carried their burden here. The BLM's approval, however, did not violate FLPMA or the National Historic Preservation Act. Te-Moak Tribe of Western Shoshone of Nevada v. United States Department of the Interior, No. 07-1633, 40 ELR 20165 (9th Cir. June 18, 2010).

NEPA, MINING:

The Tenth Circuit rejected environmental and citizens' groups challenge to a 2003 BLM resource management plan amendment allowing natural gas development in Wyoming's Powder River Basin. The groups alleged that BLM violated NEPA when it refused to study in detail their proposal to phase development in the Basin over decades. The Bureau’s final EIS studied in detail several alternative development plans, including a “no-action” alternative. But BLM refused to give phased development detailed study because it was impractical and would not meet the project’s purposes. This ground is an adequate basis for BLM's decision. Biodiversity Conservation Alliance v. Bureau of Land Management, Nos. 09-8011, -8013, 40 ELR 20168 (10th Cir. June 18, 2010).

NEPA, TIMBER SALES:

The Seventh Circuit affirmed a lower court decision dismissing an environmental group's suit challenging the U.S. Forest Service's EIS for a timber sale in the Chequamegon-Nicolet National Forest in northern Wisconsin. The group argues that the EIS failed to describe the reasonably foreseeable cumulative effects of another proposed timber sale, known as the "Twin Ghost" project. But at the time the EIS was being prepared, the Twin Ghost project was too nebulous to be discussed in any meaningful way. An agency decision may not be reversed for failure to mention a project not capable of meaningful discussion. So while some notice of Twin Ghost in the EIS would have improved the document, it is not a substantial enough ground to invalidate the EIS and start over. Habitat Education Center v. United States Forest Service, No. 09-1672, 40 ELR 20169 (7th Cir. June 29, 2010).

DEEPWATER DRILLING, MORATORIUM:

A district court granted an offshore service company's motion to enjoin the federal government's six-month general moratorium on deepwater drilling for oil in the Gulf of Mexico. The company established a likelihood of successfully showing that the federal government acted arbitrarily and capriciously in issuing the moratorium. There is no evidence presented indicating that the Secretary of Interior balanced the concern for environmental safety with the policy of making leases available for development. Nor is there any suggestion that the Secretary considered any alternatives. And while the implementation of regulations and a new culture of safety are supportable by the record, the blanket moratorium, with no parameters, seems to assume that because one rig failed and although no one yet fully knows why, all companies and rigs drilling new wells over 500 feet also universally present an imminent danger. In sum, the government failed to cogently reflect on its decision to issue a blanket, generic, indeed punitive, moratorium. The company also demonstrated it has suffered and will continue to suffer irreparable harm as a result of the moratorium. And the public interest weighs in the company's favor. The court, therefore, granted the company's motion for a preliminary injunction. Hornbeck Offshore Services v. Salazar, No. 2:10-cv-01663, 40 ELR 20173 (E.D. La. June 22, 2010) (Feldman, J.).

CERCLA, HIGHWAY STORMWATER RUNOFF:

A district court held a state transportation agency may be held liable for cleanup costs incurred at the Commencement Bay-Nearshore Tideflats Superfund Site in Tacoma, Washington, for contamination stemming from a highway construction project and highway stormwater runoff. The agency argued it could not be held liable as an arranger under CERCLA because it did not have control over the release of hazardous substances and it did not intend to dispose of hazardous substances. But the agency arranged for disposal by designing, constructing, and operating drainage systems whose sole function was to collect highway runoff and dispose of it into nearby waterbodies. The agency also had knowledge that the runoff contained hazardous substances and there was an actual release of the hazardous substances into the environment. Although the agency may not have had control of the hazardous substances, it did have control over how the collected runoff was disposed of. It designed the drainage system and had the ability to redirect, contain, or treat its contaminated runoff. The agency, therefore, is a PRP under CERCLA. United States v. Washington State Department of Transportation, No. C08-5722, 40 ELR 20174 (W.D. Wash. June 7, 2010) (Bryan, J.).

CAA, FUEL STANDARDS, PREEMPTION:

A district court denied California's motion to dismiss a lawsuit challenging its low carbon fuel standard (LCFS) regulations under the state's Global Warming Solutions Act of 2006. The regulations focus on the "carbon intensity" of fuels to estimate emissions related to a fuel's lifecycle. In response to plaintiffs' preemption and Commerce Clause claims, the state argued that because CAA §211(c)(4)(B) explicitly authorizes California to enact regulations related to fuels, and because the regulation is a fuels regulation targeting the lifecycle of carbon emissions related to motor vehicle fuels, the regulations are neither preempted nor subject to the Commerce Clause. But CAA §211(c)(4)(B) does not grant California unfettered authority to regulate fuels, and the plaintiffs successfully pled that the LCFS regulations do not come within the §211(c)(4)(B) preemption exception. Lifecycle analysis of the LCFS does not regulate a component of a fuel. Rather, the LCFS regulates how fuels that have identical chemical compositions are made. Further, plaintiffs sufficiently state a claim that implementation of the LCFS regulations would frustrate the full effectiveness of the CAA. The state also failed to establish by clear and unmistakable evidence that Congress intended to exempt the regulations from scrutiny under the Commerce Clause. Rocky Mountain Farmers Union v. Goldstene, Nos. CV-F-09-2234, CV-F-10-163, 40 ELR 20175 (E.D. Cal. June 16, 2010) (O'Neill, J.).

NEGLIGENCE, ECONOMIC LOSS:

The Florida Supreme Court held that commercial fishermen can recover for economic losses caused by the negligent release of pollutants even if they do not own any property damaged by that pollution. The case arose after waste from a fertilizer company entered a pond, resulting in a loss of underwater plant life, fish, bait fish, crabs, and other marine life. The fishermen did not claim an ownership in the damaged marine and plant life, but claim that it resulted in damage to the reputation of the fishery products the fishermen are able to catch and sell. The lower court dismissed their case. But contrary to the findings of the lower court, the company did owe a duty of care to the fishermen, a duty that was not shared by the public as a whole. Moreover, the release of pollutants constituted a tortious invasion that interfered with the special interest of the commercial fishermen to use those public waters to earn their livelihood. This breach of duty gives rise to a cause of action sounding in negligence. Curd v. Mosaic Fertilizer, LLC, No. SC08-1920, 40 ELR 20172 (Fla. June 17, 2010).

NEGLIGENCE, ECONOMIC LOSS:

An Indiana appellate court held that the economic loss doctrine does not preclude a property owner from pursuing negligence claims against a company that previously operated a manufacturing site on adjacent property. If a plaintiff is not seeking damages involving the benefit of the bargain or other matters governed by contract and/or related principles, the economic loss doctrine does not bar a negligence action. In this case, it is undisputed that the property owner did not contract with the company to purchase property or a product. The owner did not assert any product liability or comparable claim, and there is no showing that it is seeking to circumvent any contractual, statutory, or other limits on the nature or scope of its permissible recovery against the company. Accordingly, the economic loss doctrine does not apply and the court reversed the lower court's grant of summary judgment for the company on the owner's negligence claim against it. The lower court, however, properly granted summary judgment in favor of the company on the owner's trespass and nuisance claims. The case, therefore, was reversed in part, affirmed in part, and remanded. KB Home Indiana, Inc. v. Rockville TBD Corp., No. 49A02-0909-CV-881, 40 ELR 20171 (Ind. Ct. App. June 18, 2010).

CALIFORNIA ENVIRONMENTAL QUALITY ACT, CLIMATE CHANGE:

A California appellate court held that a local development agency was not required to prepare a subsequent or supplemental environmental impact report (EIR) under the California Environmental Quality Act (CEQA) regarding the potential impact of a redevelopment project on global climate change. CEQA requires a public agency to prepare an EIR whenever the agency undertakes a discretionary project that may have a significant impact on the environment. The "touchstone" for determining whether an agency has undertaken such a discretionary action is whether the agency would be able to meaningfully address the environmental concerns that might be identified in the EIR. Here, the development agency lacks authority to address the project's impact on climate change. Environmental review would thus be a meaningless exercise. San Diego Navy Broadway Complex Coalition v. City of San Diego, No. D055699, 40 ELR 20164 (Cal. App. 4th Dist. June 17, 2010).

CALIFORNIA ENVIRONMENTAL QUALITY ACT, EXEMPTIONS:

A California appellate court held that a subdivision development project is not exempt from environmental review under the California Environmental Quality Act (CEQA). The county deemed the project exempt from CEQA under the categorical exemption for in-fill development. But the proposed subdivision does not satisfy the exemption's "within city limits" requirement. Although the development would occur in an established urbanized area, it would be located in an unincorporated area of the municipality. Accordingly, the project is not exempt from CEQA review. Tomlinson v. County of Alameda, No. A125471, 40 ELR 20166 (Cal. App. 1st Dist. June 18, 2010).

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

THE FEDERAL AGENCIES

Note: Citations below are to the Federal Register (FR).

AIR:

  • EPA established a new one-hour primary NAAQS for sulfur dioxide. 75 FR 35520 (6/22/10).
  • EPA proposed to amend the NPDES permit program to require that only "sufficiently sensitive" analytical test methods be used for application and monitoring requirements. 75 FR 35712(6/23/10).
  • EPA proposed to approve the California's request to redesignate to attainment the Coso Junction planning area. 75 FR 36023 (6/24/10).
  • EPA entered into a proposed consent decree under the CAA that requires the Agency to take final action no later than November 15, 2010, on a proposed SIP revision to control particulate matter (PM) emissions from beef feedlot operations within the Imperial Valley, California. 75 FR 38519 (7/2/10).
  • EPA entered into a proposed consent decree under the CAA that requires the Agency to take final action by January 28, 2011, on the 5% Plan for the Maricopa County, Arizona, serious PM10 nonattainment area. 75 FR 38520 (7/2/10).
  • EPA entered into a proposed settlement agreement under the CAA that requires the Agency to reexamine its policies for future model year 2011 and later heavy-duty diesel engines within a specific time frame. 75 FR 36654 (6/28/10).
  • SIP Approvals: California (Yolo-Solano air quality management district) 75 FR 37308 (6/29/10); (disapproval of opacity standards revision for the Monterey Bay unified air pollution control district) 75 FR 37727 (6/30/10); (vehicle inspection and maintenance program) 75 FR 38023 (7/1/10). Ohio (carbon monoxide and volatile organic compound (VOC) regulations)75 FR 34939 (6/21/10).
  • SIP Proposals: Louisiana (attainment of 1997 eight-hour ozone NAAQS for the Baton Rouge, Louisiana, moderate nonattainment area) 75 FR 36316 (6/25/10). Pennsylvania (VOCs in consumer products and maintenance coatings) 75 FR 34964 (6/21/10).

ENERGY:

  • EPA and the U.S. Coast Guard suspended oil spill response time, identification, and location requirements to assist in response efforts related to the Deepwater Horizon oil spill in the Gulf of Mexico. 75 FR 37712 (6/30/10).
  • EPA withdrew several provisions of the Renewable Fuel Standard program promulgated on May 10, 2010, due to adverse comment. 75 FR 37733 (6/30/10).

HAZARDOUS & SOLID WASTE:

  • EPA promulgated significant new use rules under TSCA for 17 chemical substances that were the subject of premanufacture notices. 75 FR 35977 (6/24/10).
  • EPA proposed to regulate coal combustion residuals under RCRA to address the risks from their disposal at electric utilities and independent power producers. 75 FR 35128 (6/21/10).
  • EPA revised the 2011 brownfields guidelines for assessment, revolving loan fund, and cleanup grants. 75 FR 35456 (6/22/10).
  • EPA gave final authorization to Arkansas' hazardous waste management program. 75 FR 36538 (6/28/10).
  • EPA gave final authorization to Massachusetts' hazardous waste management program. 75 FR 35660 (6/23/10).
  • EPA gave final authorization to Oklahoma's hazardous waste management program. 75 FR 36546 (6/28/10).
  • EPA proposed giving final authorization to Arkansas' hazardous waste management program; see above for direct final rule. 75 FR 36609 (6/28/10).
  • EPA proposed giving final authorization to Massachusetts' hazardous waste management program; see above for direct final rule. 75 FR 35720 (6/23/10).
  • EPA proposed giving final authorization to Oklahoma's hazardous waste management program; see above for direct final rule. 75 FR 36609 (6/28/10).

MINING:

  • OSM announced receipt of a request to remove a required amendment under SMCRA on cessation orders from Pennsylvania's regulatory program and requested comment. 75 FR 34960(6/21/10).
  • OSM announced receipt of a proposed amendment to Pennsylvania's regulatory program under SMCRA that adds another category to the list of preferred sites and requested comment. 75 FR 34962 (6/21/10).

WATER:

  • EPA announced availability for public review and comment of the draft website, 2010 Causal Analysis/Diagnosis Decision Information System, which would be used to identify the causes of biologically impaired water bodies. 75 FR 35457 (6/22/10).
  • EPA Region 4 determined that adequate and reasonably available pumpout facilities exist for the designation of the coastal waters of Brunswick and Pender Counties in North Carolina as a no discharge zone. 75 FR 35024 (6/21/10).

WILDLIFE:

  • FWS determined endangered status under the ESA for two species of Hawaiian damselflies. 75 FR 35990 (6/24/10).
  • FWS established regulations for seasons, harvest limits, methods, and means related to taking of wildlife for subsistence uses in Alaska during the 2010-2011 and 2011-2012 regulatory years. 75 FR 37918 (6/30/10).
  • FWS proposed to reinstate its December 5, 2002, proposal to list the mountain plover as threatened under the ESA and requested public comment. 75 FR 37353 (6/29/10).
  • FWS proposed to list the Cumberland darter, rush darter, yellowcheek darter, chucky madtom, and laurel dace as endangered under the ESA. 75 FR 36035 (6/24/10).
  • FWS proposed to list the plant Pagosa skyrocket as endangered under the ESA throughout its range in southwestern Colorado and to list the plants Parachute beardtongue and DeBeque phacelia as threatened under the ESA throughout their ranges in western Colorado. 75 FR 35721 (6/23/10).
  • FWS proposed to designate approximately 25 acres as critical habitat for the Tumbling Creek cavesnail in Taney County, Missouri. 75 FR 35751 (6/23/10).
  • FWS proposed to reclassify the tulotoma snail from endangered to threatened under the ESA due to a substantial improvement in the species' distribution and numbers. 75 FR 35424(6/22/10).
  • FWS announced a 90-day finding on a petition to list the Honduran emerald hummingbird as endangered under the ESA; the Agency found that listing may be warranted and initiated a status review. 75 FR 35746 (6/23/10).
  • FWS announced a 12-month finding on a petition to list the least chub as threatened or endangered and to designate critical habitat under the ESA; the Agency found that listing is warranted but precluded by higher priority actions. 75 FR 35398 (6/22/10).
  • NOAA-Fisheries announced a five-year review of the eastern distinct population segment of the Steller sea lion under the ESA. 75 FR 37385 (6/29/10).

DOJ NOTICES OF SETTLEMENT:

  • United States v. Kasper Irrevocable Trusts, No. CV-08-4780 (E.D.N.Y. June 16, 2010). Settling CERCLA defendants must pay $350,000, plus accrued interest, in U.S. response costs incurred at the American Drive-In Cleaners Superfund site in Levittown, New York. 75 FR 35506 (6/22/10).
  • United States v. Silgan Containers LLC, No. 2:1-cv-00498 (E.D. Wis. June 14, 2010). A settling CAA defendant responsible for violations at 16 canning facilities nationwide must pay a $365,000 civil penalty, must undertake injunctive relief at a cost of approximately $1.1 million, must obtain a Non-Title V minor source permit, must shut down two manufacturing lines, and must retire certain emission credits issued by the San Joaquin Valley air pollution control district. 75 FR 35506 (6/22/10).
  • United States v. Alaska, No. 3:10-cv-00115-JWS (D. Alaska June 2, 2010). A settling CWA defendant that violated regulations on the discharge of fill material and stormwater must pay a $140,000 civil penalty, must pay $850,000 in mitigation to acquire and protect valuable riparian areas, must revegetate three sites at which unpermitted fill was discharged, and must increase the training of its employees and efforts to comply with stormwater regulations. 75 FR 35087 (6/21/10).
  • United States v. El Dorado County, No. S-01-1520 MCE GGH (E.D. Cal. June 28, 2010). A settling CERCLA defendant responsible for the release of hazardous substances must pay $1,651,000 in U.S. response costs incurred at the Meyers Landfill Superfund site in Meyers, California, and must pay $1,612,349 to the county for implementation of the proposed remedy. 75 FR 38550 (7/2/10).
  • United States v. West Side Metals Corp., No. 1:10-cv-01427 (N.D. Ohio June 28, 2010). A settling CAA defendant that failed to recover or verify recovery of refrigerant from appliances at its disposal facility in Cleveland, Ohio, must pay a $10,000 civil penalty, must purchase equipment to recover refrigerant or contract for such services at no additional cost, must not accept appliances without verification of no leakage, must require a verification statement from suppliers, and must keep a refrigerant recovery log. 75 FR 38550 (7/2/10).
  • United States v. Colaska, Inc., No. 3:10-cv-00116-RRB (D. Alaska June 2, 2010). A settling CWA defendant that violated stormwater discharge requirements at a construction site in Anchorage, Alaska, must pay a $50,000 civil penalty and must take measures to train employees, increase the frequency and quality of inspections, and ensure compliance with stormwater regulations. 75 FR 37837 (6/30/10).
  • United States v. Granite Construction Co., No. 3:10-cv-00117-RRB (D. Alaska June 2, 2010). A settling CWA defendant that violated stormwater discharge requirements at construction sites in Anchorage and Soldotna, Alaska, must pay a $250,000 civil penalty and must take measures to train employees, increase the frequency and quality of inspections, and ensure compliance with stormwater regulations. 75 FR 37838 (6/30/10).
  • United States v. Williamsport Sanitary Authority, No. 4:10-cv-01304 (M.D. Pa. June 22, 2010). A settling CWA defendant responsible for violations at its wastewater treatment plant must pay a $160,000 civil penalty to both the United States and Pennsylvania, must expand the treatment capacity of its plant, and must increase its storage capacity to guard against combined sewer overflows to the Susquehanna River. 75 FR 36679 (6/28/10).

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

THE CONGRESS

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

Chamber Action:

  • S. 1660 (formaldehyde), which would amend TSCA to reduce the emissions of formaldehyde from composite wood products, was passed by the House. 156 Cong. Rec. H4701 (daily ed. June 23, 2010).
  • H.R. 5481 (oil spill), which would give subpoena power to the National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling, was passed by the House. 156 Cong. Rec. H4721 (daily ed. June 23, 2010).

Committee Action:

  • H.R. 4805 (formaldehyde) was reported by the Committee on Energy and Commerce. H. Rep. No. 111-509, Pt. 1, 156 Cong. Rec.H4676 (daily ed. June 22, 2010). The bill would amend TSCA to reduce the emissions of formaldehyde from composite wood products.
  • H.R. 1554 (land conveyance) was reported by the Committee on Natural Resources. H. Rep. No. 111-513, 156 Cong. Rec. H4904 (daily ed. June 28, 2010). The bill would require the Secretary of the Interior to transfer land in McIntosh County, Oklahoma, to the Muscogee Creek Tribe, and require the tribe to pay fair market value for the land.
  • H.R. 4805 (formaldehyde) was reported by the Committee on Energy and Commerce. H. Rep. No. 111-509, Pt. 1, 156 Cong. Rec.H4676 (daily ed. June 22, 2010). The bill would amend TSCA to reduce the emissions of formaldehyde from composite wood products.
  • H.R. 1554 (land conveyance) was reported by the Committee on Natural Resources. H. Rep. No. 111-513, 156 Cong. Rec. H4904 (daily ed. June 28, 2010). The bill would require the Secretary of the Interior to transfer land in McIntosh County, Oklahoma, to the Muscogee Creek Tribe, and require the tribe to pay fair market value for the land.
  • H.R. 5503 (oil spill) was reported by the Committee on the Judiciary. H. Rep. No. 111-521, 156 Cong. Rec. H5302 (daily ed. June 30, 2010). The bill would repeal certain limitations on liability in the Oil Pollution Act of 1990.
  • H.R. 5320 (water pollution) was reported by the Committee on Energy and Commerce. H. Rep. No. 111-524, 156 Cong. Rec. H5500 (daily ed. July 1, 2010). The bill would amend the SDWA to increase assistance for states, water systems, and disadvantaged communities, encourage good financial and environmental management of water systems, strengthen EPA's ability to enforce the requirements of the Act, reduce lead in drinking water, and strengthen the endocrine disruptor screening program.

Bills Introduced:

  • S. 3511 (Dorgan, D-N.D.) (electric cars) would promote the deployment of plug-in electric drive vehicles. 156 Cong. Rec. S5153 (daily ed. June 18, 2010). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 3514 (Begich, D-Alaska) (oil spill) would amend the Outer Continental Shelf Lands Act to prohibit a person from entering into any federal oil or gas lease or contract unless the person pays into an Oil Spill Recovery Fund, or posts a bond, in an amount equal to the total of the outstanding liability of the person and any removal costs incurred by, or on behalf of, the person with respect to any oil discharge for which the person has outstanding liability. 156 Cong. Rec. S5201 (daily ed. June 21, 2010). The bill was referred to the Committee on Environment and Public Works.
  • S. 3515 (Shaheen, D-N.H.) (oil spill) would authorize and enhance the programs of the DOI relating to the detection of, response to, and mitigation and cleanup of oil spills on federal land managed by the Department. 156 Cong. Rec. S5202 (daily ed. June 21, 2010). The bill was referred to the Committee on Environment and Public Works.
  • S. 3516 (Bingaman, D-N.M.) (outer continental shelf) would amend the Outer Continental Shelf Lands Act to reform the management of energy and mineral resources on the outer continental shelf. 156 Cong. Rec. S5202 (daily ed. June 21, 2010). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 3521 (Murkowski, R-Alaska) (rare earth materials) would provide for the reestablishment of a domestic rare earths materials production and supply industry in the United States. 156 Cong. Rec. S5268 (daily ed. June 22, 2010). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 3528 (Snowe, R-Me.) (fisheries) would promote coastal jobs creation, promote sustainable fisheries and fishing communities, and revitalize waterfronts. 156 Cong. Rec. S5439 (daily ed. June 24, 2010). The bill was referred to the Committee on Commerce, Science, and Transportation.
  • S. 3532 (Dodd, D-Conn.) (hydroelectricity) would reinstate and transfer certain hydroelectric licenses and extend the deadline for commencement of construction of certain hydroelectric projects. 156 Cong. Rec. S5439 (daily ed. June 24, 2010). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 3535 (Burr, R-N.C.) (renewable energy) would promote the production of natural gas, nuclear energy, and renewable energy.156 Cong. Rec. S5439 (daily ed. June 24, 2010). The bill was referred to the Committee on Finance.
  • S. 3537 (Udall, D-Colo.) (land exchange) would provide for certain land exchanges in Gunnison County, Colorado, and Uintah County, Utah. 156 Cong. Rec. S5439 (daily ed. June 24, 2010). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 3539 (Feinstein, D-Cal.) (water pollution) would amend the Federal Water Pollution Control Act to establish a grant program to assist in the restoration of San Francisco Bay. 156 Cong. Rec. S5461 (June 25, 2010). The bill was referred to the Committee on Environment and Public Works.
  • S. 3540 (Whitehouse, D-R.I.) (estuaries) would amend the Federal Water Pollution Control Act to reauthorize the National Estuary Program. 156 Cong. Rec. S5488 (daily ed. June 28, 2010). The bill was referred to the Committee on Environment and Public Works.
  • S. 3541 (Feinstein, D-Calif.) (deepwater drilling) would prohibit royalty incentives for deepwater drilling. 156 Cong. Rec. S5489 (daily ed. June 28, 2010). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 3545 (Landrieu, D-La.) (deepwater drilling) would require a study of the effect of a 6-month moratorium on new deepwater drilling in the Gulf of Mexico on small businesses. 156 Cong. Rec. S5538 (daily ed. June 29, 2010). The bill was referred to the Committee on Small Business and Entrepreneurship.
  • S. 3550 (Merkley, D-Or.) (water pollution) would amend the Federal Water Pollution Control Act to establish within EPA a Columbia Basin Restoration Program. 156 Cong. Rec. S5538 (daily ed. June 29, 2010). The bill was referred to the Committee on Environment and Public Works.
  • S. 3553 (Stabenow, D-Mich.) (hydrological separation) would require the Secretary of the Army to study the feasibility of the hydrological separation of the Great Lakes and Mississippi River Basin. 156 Cong. Rec. S5699 (daily ed. June 30, 2010). The bill was referred to the Committee on Environment and Public Works.
  • S. 3561 (Udall, D-N.M.) (infrastructure) would establish centers of excellence for green infrastructure. 156 Cong. Rec. S5699 (daily ed. June 30, 2010). The bill was referred to the Committee on Environment and Public Works.
  • H.R. 5572 (Buchanan, R-Fla.) (offshore drilling) would reform the Minerals Management Service and offshore drilling for oil and gas to repeal the limitation of liability of a responsible party for discharge of oil from an offshore facility. 156 Cong. Rec. H4677 (daily ed. June 22, 2010). The bill was referred to the Committee on Natural Resources and the Committee on Transportation and Infrastructure.
  • H.R. 5581 (Kind, D-Wis.) (biogas) would amend the Internal Revenue Code of 1986 to make qualified biogas property eligible for the energy credit and to permit new clean renewable energy bonds to finance qualified biogas property. 156 Cong. Rec. H4779 (daily ed. June 23, 2010). The bill was referred to the Committee on Ways and Means.
  • H.R. 5607 (Markey, D-Mass.) (oil spill) would provide for the establishment of a program to support the development, demonstration, and commercialization of innovative technologies to prevent, stop, or capture large-scale accidental discharges of oil or other hydrocarbons from offshore oil and gas drilling operations, including deepwater and ultra-deepwater operations. 156 Cong. Rec. H4876 (daily ed. June 25, 2010). The bill was referred to the Committee on Science and Technology
  • H.R. 5608 (Markey, D-Mass.) (oil spill) would amend the Federal Water Pollution Control Act and the Outer Continental Shelf Lands Act to improve oil spill response plans. 156 Cong. Rec. H4876 (daily ed. June 25, 2010). The bill was referred to the Committee on Transportation and Infrastructure
  • H.R. 5612 (Blumenauer, D-Or.) (geothermal energy) would amend the Internal Revenue Code of 1986 to temporarily increase the investment tax credit for geothermal energy property. 156 Cong. Rec. H4904 (daily ed. June 28, 2010). The bill was referred to the Committee on Ways and Means.
  • H.R. 5617 (McDermott, D-Wash.) (energy conservation) would amend the Internal Revenue Code of 1986 to provide for home energy conservation bonds. 156 Cong. Rec. H4904 (daily ed. June 28, 2010). The bill was referred to the Committee on Ways and Means.
  • H.R. 5621 (Linda Sanchez, D-Calif.) (navigation) would amend the Water Resources Development Act of 1986 to authorize funds in the Harbor Maintenance Trust Fund to be used to pay up to 100 percent of the eligible costs of preparing federal EISs for certain navigation projects. 156 Cong. Rec. H4905 (daily ed. June 28, 2010). The bill was referred to the Committee on Ways and Means.
  • H.R. 5625 (Camp, R-Mich.) (hydrological separation) would require the Secretary of the Army to study the feasibility of the hydrological separation of the Great Lakes and Mississippi River Basins. 156 Cong. Rec. H4974 (daily ed. June 29, 2010). The bill was referred to the Committee on Transportation and Infrastructure.
  • H.R. 5626 (Waxman, D-Calif.) (oil and gas drilling) would require the use of safe well control technologies and practices for the drilling of high-risk oil and gas wells in the United States. 156 Cong. Rec. H4974 (daily ed. June 29, 2010). The bill was referred to the Committee on Natural Resources.
  • H.R. 5629 (Oberstar, D-Minn.) (oil spill) would attempt to ensure full recovery from responsible parties of damages for physical and economic injuries, adverse effects on the environment, and clean up of oil spill pollution; improve the safety of vessels and pipelines supporting offshore oil drilling; and ensure that there are adequate response plans to prevent environmental damage from oil spills. 156 Cong. Rec. H4974 (daily ed. June 29, 2010). The bill was referred to the Committees on Transportation and Infrastructure, the Judiciary, and Natural Resources.
  • H.R. 5631 (Hastings, D-Fla.) (oil spill) would establish the Gulf Coast Conservation Corps under the direction of the President in order to create jobs cleaning up the oil spill and restoring the Gulf of Mexico and surrounding areas. 156 Cong. Rec. H4974 (daily ed. June 29, 2010). The bill was referred to the Committee on Education and Labor, and in addition to the Committee on Transportation and Infrastructure.
  • H.R. 5634 (Inslee, D-Wash.) (offshore drilling) would amend the Outer Continental Shelf Lands Act to require that oil and gas drilling and production operations on the outer continental shelf must have in place the best available technology for blowout preventers and emergency shutoff equipment. 156 Cong. Rec. H4974 (daily ed. June 29, 2010). The bill was referred to the Committee on Natural Resources and the Committee on Energy and Commerce.
  • H.R. 5635 (Maffei, D-N.Y.) (water pollution) would amend the Federal Water Pollution Control Act to direct the Administrator of EPA to carry out activities for the restoration, conservation, and management of Onondaga Lake, New York. 156 Cong. Rec. H4974 (daily ed. June 29, 2010). The bill was referred to the Committee on Transportation and Infrastructure.
  • H.R. 5638 (Sestak, D-Pa.) (energy tax credit) would amend the Internal Revenue Code of 1986 to extend the qualifying advanced energy project credit. 156 Cong. Rec. H4974 (daily ed. June 29, 2010). The bill was referred to the Committee on Ways and Means.
  • H.R. 5643 (DeFazio, D-Or.) (toxic substances) would amend TSCA to prohibit the use, production, sale, importation, or exportation of the poison sodium fluoroacetate and to prohibit the use of sodium cyanide for predator control. 156 Cong. Rec. H5302 (daily ed. June 30, 2010). The bill was referred to the Committee on Energy and Commerce.
  • H.R. 5644 (Blumenauer, D-Or.) (oil subsidies) would amend the Internal Revenue Code of 1986 to repeal fossil fuel subsidies for large oil companies. 156 Cong. Rec. H5302 (daily ed. June 30, 2010). The bill was referred to the Committee on Ways and Means.
  • H.R. 5657 (Quigley, D-Ill.) (offshore drilling) would amend the Outer Continental Shelf Lands Act to ensure that protection of the marine and coastal environment is of primary importance in making areas of the outer continental shelf available for leasing, exploration, and development rather than expeditious development of oil and gas resources and to prohibit oil and gas leasing, exploration, and development in important ecological areas of the outer continental shelf. 156 Cong. Rec. H5302 (daily ed. June 30, 2010). The bill was referred to the Committee on Natural Resources.
  • H.R. 5661 (Polis, D-Colo.) (oil spill) would amend the Outer Continental Shelf Lands Act to require the making of royalty and other payments for oil that is removed under an offshore oil and gas lease under that Act and discharged into waters of the United States or ocean waters. 156 Cong. Rec. H5500 (daily ed. July 1, 2010). The bill was referred to the Committee on Natural Resources.
  • H.R. 5665 (Franks, R-Ariz.) (mining in public lands) would prohibit the withdrawal of certain public lands and National Forest System lands in Arizona from location and entry under the Mining Law of 1872. 156 Cong. Rec. H5500 (daily ed. July 1, 2010). The bill was referred to the Committee on Natural Resources.
  • H.R. 5666 (Grayson, D-Fla.) (offshore drilling) would amend the Outer Continental Shelf Lands Act to require the drilling of emergency relief wells. 156 Cong. Rec. H5500 (daily ed. July 1, 2010). The bill was referred to the Committee on Natural Resources.
  • H.R. 5668 (Jones, R-N.C.) (fisheries) would amend the Magnuson-Stevens Fishery Conservation and Management Act to require the use of sums received as fines, penalties, and forfeitures of property for violations of that Act or other marine resource laws to be used to reduce the federal deficit and debt. 156 Cong. Rec. H5500 (daily ed. July 1, 2010). The bill was referred to the Committee on Natural Resources.
  • H.R. 5669 (Latham, R-Iowa) (land conveyance) would direct the Secretary of Agriculture to convey certain federally owned land located in Story County, Iowa. 156 Cong. Rec. H5501 (daily ed. July 1, 2010). The bill was referred to the Committee on Agriculture.
  • H.R. 5670 (Adler, D-N.J.) (estuaries) would require the Administrator of EPA to make grants for the improvement of stormwater retention basins in the watersheds of estuaries in the National Estuary Program. 156 Cong. Rec. H5501 (daily ed. July 1, 2010). The bill was referred to the Committee on Transportation and Infrastructure.
  • H.R. 5673 (Broun, D-Ga.) (hunting) would require that hunting activities be a land use in all management plans for federal land under the jurisdiction of the Secretary of the Interior or the Secretary of Agriculture to the extent that such use is not clearly incompatible with the purposes for which the federal land is managed. 156 Cong. Rec. H5501 (daily ed. July 1, 2010). The bill was referred to the Committee on Natural Resources
  • H.R. 5674 (Costa, D-Calif.) (mercury emissions) would amend the CAA to require reductions in mercury emissions from electric utility steam generating units. 156 Cong. Rec. H5501 (daily ed. July 1, 2010). The bill was referred to the Committee on Energy and Commerce.
  • H.R. 5677 (Young, R-Fla.) (oil spill) would amend the Outer Continental Shelf Lands Act and the Federal Water Pollution Control Act to modernize and enhance the federal government's response to oil spills and to improve oversight and regulation of offshore drilling. 156 Cong. Rec. H5501 (daily ed. July 1, 2010). The bill was referred to the Committee on Transportation and Infrastructure, and in addition to the Committee on Natural Resources.
  • H.R. 5695 (Lowey, D-N.Y.) (recycling) would amend the Internal Revenue Code of 1986 to allow retail businesses a credit against income tax for a portion of the cost of recycling plastic carry-out bags and certain other types of plastic. 156 Cong. Rec. H5502 (daily ed. July 1, 2010). The bill was referred to the Committee on Ways and Means.
  • H.R. 5697 (Markey, D-Mass.) (offshore drilling) would amend the Outer Continental Shelf Lands Act to prohibit leasing in the North Atlantic Planning Area. 156 Cong. Rec. H5502 (daily ed. July 1, 2010). The bill was referred to the Committee on Natural Resources.
  • H.R. 5698 (Melancon, D-La.) (oil spill) would amend the Oil Pollution Act of 1990 and the Outer Continental Shelf Lands Act to protect employees from retaliation for notifying government officials of violations of those Acts. 156 Cong. Rec. H5502 (daily ed. July 1, 2010). The bill was referred to the Committee on Transportation and Infrastructure and the Committee on Natural Resources.
  • H.R. 5705 (Ryan, R-Wis.) (electric cars) would amend the Internal Revenue Code of 1986 to increase the credit amount for 2- and 3-wheeled electric highway vehicles. 156 Cong. Rec. H5502 (daily ed. July 1, 2010). The bill was referred to the Committee on Ways and Means.
  • H.R. 5709 (Tsongas, D-Mass.) (oil spill) would amend the Outer Continental Shelf Lands Act to require, as a condition and term of any exploration plan or development and production plan submitted under that Act, that the applicant for the plan must submit an oil spill containment and cleanup plan capable of handling a worst-case scenario oil spill. 156 Cong. Rec. H5502 (daily ed. July 1, 2010). The bill was referred to the Committee on Natural Resources.
  • H. Res. 1466 (Sensenbrenner, R-Wis.) (nuclear waste) would request the President and direct the Secretary of Energy to provide certain documents to the House of Representatives relating to DOE's application to foreclose use of Yucca Mountain as a high level nuclear waste repository. 156 Cong. Rec. H4677 (daily ed. June 22, 2010). The resolution was referred to the Committee on Energy and Commerce.
  • H. Res. 1503 (Castor, D-Fla.) (estuaries) expresses support for the goals and ideals of National Estuaries Day. 156 Cong. Rec. H5503 (daily ed. July 1, 2010). The bill was referred to the Committee on Natural Resources.
  • H. Res. 1506 (Lowey, D-Mass.) (recycling) encourages state and local governments to establish plastic bag recycling programs. 156 Cong. Rec. H5503 (daily ed. July 1, 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 of Cumulative State Developments. For state material reported prior to 2010, visit the ELR Archives.

The states below have updates this week:

AlabamaAlaskaArizonaArkansasCaliforniaColoradoConnecticutDelawareGeorgiaIllinoisIndianaIowaLouisianaMaineMarylandMinnesotaMissouriMontanaNebraskaNevadaNew HampshireNew JerseyNew YorkOklahomaPennsylvaniaRhode IslandTennesseeTexasVermontVirginiaWest Virginia

ALABAMA

Water:

  • The Department of Environmental Management proposed the adoption of Ala. Admin. Code div. 335-11, which would expand eligibility of water quality improvement projects for loan assistance from the Clean Water State Revolving Fund. There will be a public hearing on August 4, 2010. For the public notice, seehttp://www.adem.state.al.us/newsEvents/notices/jun10/6div6-11.htm. For the proposed regulation, see http://www.adem.state.al.us/newsEvents/notices/jun10/pdfs/6div6-11.pdf.
  • The Department of Environmental Management seeks public comment regarding Ala. Admin. Code Ch. 335-6-7--NPDES Best Management Practices, Registration Requirements, Technical Standards and Guidelines, Construction and Operation Requirements, Waste/Wastewater and Waste Product Treatment, Storage, Handling, Transport, and Disposal/Land Application, Nutrient Management, and Animal Mortality Management Requirements For Owners and Operators of Animal Feeding Operations and Concentrated Animal Feeding Operations. There will be a public hearing on August 10, 2010. See http://www.adem.state.al.us/newsEvents/notices/jun10/6cafo.htm

ALASKA

Air:

  • The Department of Environmental Conservation proposed to amend Alaska Admin. Code tit. 18, §50.030, to adopt a number of changes to the Air Quality Control Program's carbon monoxide (CO) measures. Among other changes, the department proposed to remove its vehicle inspection and maintenance program as a CO control measure and to implement a plan to demonstrate compliance with particulate matter laws. There will be a public hearing on August 2, 2010, and comments must be received by August 6. Seehttp://notes4.state.ak.us/pn/pubnotic.nsf/1604e1912875140689256785006767f6/d4c61d5394e0865c8925775000764530?OpenDocument

Water:

ARIZONA

Water:

  • The Arizona Department of Environmental Quality proposed additions under Ariz. Rev. Stat. §49-305 to the list of pesticides and active ingredients that have the potential to pollute groundwater. Among the new potential pollutants, the department has added Chlorantraniliprole, Flazasulfuron, and Saflufenacil. Chemicals on the list are regulated by the department. The comment period ends July 25, 2010, and the list will become effective December 1, 2010. See http://www.azsos.gov/public_services/Register/2010/26/pubinfo.pdf (pp. 1007-09)

ARKANSAS

Water:

CALIFORNIA

Air:

  • The Department of Pesticide Regulations proposed Cal. Code Regs. tit. 3, §6860, to designate the pesticide chemical chloropicrin as a toxic air contaminant in a subsection designated for listing pollutants that may pose a health hazard. There will be a public hearing on August 10, 2010, at which point the comment period will close. Seehttp://www.oal.ca.gov/res/docs/pdf/notice/26z-2010.pdf (pp. 977-80)

Wildlife:

  • The Fish and Game Commission intends to amend Cal. Code Regs. tit. 14, §§502 and 507, which pertain to waterfowl hunting. There will be a public hearing on August 5, 2010, and written comments must be received by August 2. See http://www.oal.ca.gov/res/docs/pdf/notice/25z-2010.pdf (pp. 948-51)

COLORADO

Air:

  • The Department of Public Health and Environment proposed to amend 5 Colo. Code Regs. §1001-13, pertaining to the motor vehicle emissions inspection program. Changes would add nitrogen oxides tailpipe emission limits to the selection criteria used in the Clean Screen Program. There will be a public hearing on August 19, 2010. Seehttp://www.sos.state.co.us/CCR/DisplayHearingDetails.do?trackingNumber=2010-00385

CONNECTICUT

Hazardous and Solid Waste:

  • The Department of Environmental Protection seeks public comment on a proposal to amend Conn. Gen. Stat. §22a-449(d)-1, -101, -102, and -108. Changes relate to new federal guidelines under the Energy Policy Act that mandate state requirements for secondary containment for USTs. In addition, the department proposes further revisions to protect state drinking water. There will be a public hearing on July 28, 2010, at which point the comment period closes. See http://www.ct.gov/dep/cwp/view.asp?A=2586&Q=461976.

DELAWARE

Water:

GEORGIA

Water:

  • The Environmental Protection Department proposed amendments to Chapter 391-3-6, Rules and Regulations for Water Quality Control. Changes reduce monitoring frequencies, add requirements for including best management practices compliance information in monitoring reports, and update requirements for notification. There will be a public hearing on July 19, 2010, and the comment period closes on July 23. See http://www.gaepd.org/environet/6/notice201006.pdf

ILLINOIS

Water:

  • The Drycleaner Environmental Response Trust Fund Council of Illinois proposed changes to 35 Ill. Admin. Code tit. 1500, §§30, 55 and 60, regarding the Drycleaner Environmental Response Trust Fund. Changes affect those who sell drycleaning solvents to those who fail to pay taxes into the fund. Seehttp://www.cyberdriveillinois.com/departments/index/register/register_volume34_issue25.pdf (pp.7989-8004)
  • The Illinois Environmental Protection Agency proposed changes to 35 Ill. Admin. Code §365, which pertains to the procedure for issuing loans from the Water Pollution Control Loan Program, and 35 Ill. Adm. Code §662, which pertains to the Public Water Supply Loan Program. Changes will amend the interest rate charged for loans, allow principal forgiveness, streamline the loan application process, and add provisions to address green infrastructure projects in accordance with the Agency's Capitalization Grant Agreement with U.S. EPA. Seehttp://www.cyberdriveillinois.com/departments/index/register/register_volume34_issue26.pdf (pp. 8131-35)

INDIANA

Air:

Water:

IOWA

Wildlife:

LOUISIANA

Air:

  • The Department of Environmental Quality proposes to amend La. Admin. Code tit. 33, pt. III, §1101, which mandates that the shade or appearance of emissions from a combustion unit are not darker than 20 percent average opacity. The change modifies the list of activities that may be excepted from the rule, such as cleaning a fire box. Seehttp://www.doa.la.gov/osr/reg/1006/1006.pdf (pp. 1321-1322)
  • The Department of Environmental Quality proposes to amend La. Admin. Code tit. 33, pt. III, §509.B to establish a significance level for direct PM2.5 emissions equivalent to the federal level. The comment period will end July 28, 2010. See http://www.doa.la.gov/osr/reg/1006/1006.pdf (pp. 1322-1323)

General:

  • The Department of Environmental Quality has amended La. Admin. Code tit. 33, pt. I, §§3913, 3915, 3917, 3923, 3925; pt. VII, §§315, 713; and pt. XI, §713 to change reporting requirements for the discharge of substances that may cause emergency conditions. See http://www.doa.la.gov/osr/reg/1006/1006.pdf (pp. 1239-41)

Hazardous and Solid Waste:

  • The Department of Environmental Quality has amended the Hazardous Waste Regulations, La. Admin. Code tit. 33, pt. V, §§109, 1109, 1901, 1907, 1909.D and E, and 4437.D. The rule sets standards for the use of concrete as an external secondary containment system for hazardous waste tanks. See http://www.doa.la.gov/osr/reg/1006/1006.pdf (pp. 1234-39)

Water:

  • The Department of Environmental Quality amended La. Admin. Code tit. 33, pt. I, §§3905 and 3931.B, which will provide a new definition for brine from solution mining of salt from underground deposits, which was previously a subset of the definition of produced water. As the environmental hazards from brine are much lower than those of produced water, the reportable quantity will be 5,000 pounds for unauthorized discharges. See http://www.doa.la.gov/osr/reg/1006/1006.pdf (pp. 1241-42)
  • The Department of Conservation amended La. Admin. Code tit. 43, pt. XIX, subpt. 1, ch. 3, repealing the one-time use limitation on exploration and production waste. The purpose of the rule, according to the department, is to aid in the development of the Haynesville Shale, which relies on multi-stage hydraulic fracture stimulation technology. The technology requires large amounts of freshwater to operate, placing a strain on reservoirs and groundwater aquifers. The rule change allows the use of exploration and production waste to act as a substitute for necessary fluids. See http://www.doa.la.gov/osr/reg/1006/1006.pdf (pp. 1264-1265)

Wildlife:

  • The Department of Wildlife and Fisheries proposes to amend La. Admin. Code tit. 76:V, §305, to allow use of pheasants on licensed hunting preserves in areas of the state containing high to medium wild turkey populations provided the pheasants are free of the parasite Heterakis gallinarum. The comment period ends August 5, 2010. Seehttp://www.doa.la.gov/osr/reg/1006/1006.pdf (pp. 1399-1401)

MAINE

Land Use:

  • The Department of Natural Resources has proposed to amend Ch. 5, Rules for the Conduct of Public Hearings, and Ch. 10, Land Use Districts and Standards. Changes would affect criteria for land use standards and permit approval. The deadline for comments is July 23, 2010. See http://www.maine.gov/sos/cec/rules/notices/2010/062310.html.

Toxic Substances:

  • The Department of Environmental Protection adopted a change to Ch. 811, which establishes the process by which the Department will assess fees to cover the cost of managing information gathered on chemical use in children's products. The rule becomes effective July 15, 2010. See http://www.maine.gov/sos/cec/rules/notices/2010/062310.html.

Wildlife:

MARYLAND

Wildlife:

  • The Department of Natural Resources amended Md. Code Regs. 08.02.05, Fish. Changes relate to weakfish management in response to depleted populations and restrict catches. The new laws went into effect June 28, 2010. See http://www.dsd.state.md.us/mdregister/3713.pdf (p. 851)

MINNESOTA

Hazardous and Solid Waste:

  • The Pollution Control Agency proposed amendments to Rules Governing Subsurface Sewage Treatment Systems, Minnesota Rules, chapters 7080, 7081, 7082 and 7083. Changes would require additional treatment to waste containing oil and grease and alter code requirements for septic tank design. The comment period ends July 21, 2010. Seehttp://www.comm.media.state.mn.us/bookstore/stateregister/34_51.pdf (pp. 1789-1821).

MISSOURI

Wildlife:

MONTANA

Hazardous and Solid Waste:

NEBRASKA

Wildlife:

NEVADA

Water:

NEW HAMPSHIRE

Water:

NEW JERSEY

Hazardous and Solid Waste:

  • The Department of Community Affairs proposes to readopt the Lead Hazard Evaluation and Abatement Code, N.J. Admin. Code §5:17, which is scheduled to expire on May 29, 2011. Among other rules proposed for readoption, a fee of $2,268 is imposed for a lead-free certification. The comment period ends August 20, 2010. See http://www.lexisnexis.com/njoal/(N.J. OAL 42 N.J.R. 1121(a))

Water:

  • The Department of Environmental Protection readopted the Safe Water Drinking Act rules that establish the state primary and secondary drinking water regulations for public and nonpublic water systems, construction standards, fees, requirements for physical connections between an approved and an unapproved water supply, and provisions regarding civil administrative penalties and adjudicatory hearings under the New Jersey Safe Drinking Water Act, N.J. Stat. Ann. 58:12A-1 et seq. The rules were readopted without amendment. Seehttp://www.lexisnexis.com/njoal/ (N.J. OAL 42 N.J.R. 1170(a))

NEW YORK

Air:

  • The Department of Environmental Conservation adopted revisions to the Low Emission Vehicle Greenhouse Gas Standards to incorporate revisions the California Air Resource Board made to its state's standards. Standards for vehicle manufacturers face new recordkeeping, reporting, and compliance regulations, and dealerships must maintain records to demonstrate that their cars are California certified. The rules go into effect July 8, 2010. See http://www.dos.state.ny.us/info/register/2010/jun23/pdfs/rules.pdf (pp. 6-7)
  • The Department of Environmental Conservation has revised N.Y. Comp. Codes R. & Regs. tit. 6, §200, to reduce emissions limits for all boilers and combustion turbines, redefine the mid-size boiler size, and allow a replacement option. New rules go into effect July 8, 2010. See http://www.dos.state.ny.us/info/register/2010/jun23/pdfs/rules.pdf (pp. 7-10)
  • The Department of Environmental Conservation has revised N.Y. Comp. Codes R. & Regs. tit. 6, §200, to reduce volatile organic compound emissions from graphic arts facilities by requiring reasonably available emission control technology. New laws go into effect July 8, 2010. See http://www.dos.state.ny.us/info/register/2010/jun23/pdfs/rules.pdf (pp. 10-13)

OKLAHOMA

Hazardous and Solid Waste:

PENNSYLVANIA

Air:

  • The Environmental Quality Board amended Pa. Code Ch. 145, relating to interstate pollution transport reduction. The rule change relates to nitrogen oxide emissions from the Commonwealth's 21 cement kilns and require conversion units to improve air quality. The rules took effect June 19, 2010. See http://www.pabulletin.com/secure/data/vol40/40-25/1115.html.
  • The Environmental Quality Board amended Pa. Code Chs. 121 and 129, relating to glass furnaces. New laws require glass-producing facilities to reduce nitrogen oxide emissions to reduce ambient ozone concentrations. The rules took effect June 19, 2010. See http://www.pabulletin.com/secure/data/vol40/40-25/1114.html.

RHODE ISLAND

Wildlife:

TENNESSEE

Wildlife:

TEXAS

Air:

  • The Commission on Environmental Quality amended 30 Tex. Admin. Code §101.27, relating to the payment process for air quality permit fees. The new rules took effect June 24, 2010. See http://www.sos.state.tx.us/texreg/pdf/currview/0618is.pdf (pp. 5281-84)
  • The Commission on Environmental Quality adopted 30 Tex. Admin. Code §§101.150, 101.151, 101.153, and 101.155, which creates a new voluntary supplemental leak program. The new rules took effect June 24, 2010. See http://www.sos.state.tx.us/texreg/pdf/currview/0618is.pdf (pp. 5284-93)
  • The Commission on Environmental Quality amended 30 Tex. Admin. Code §§115.322 -115.326, 115.352 -115.357, 115.781, 115.782, 115.786 -115.788, and 115.358 and 115.784, which pertain to control of air pollution from volatile organic compounds. New laws allow owners of operations to use alternative methods of monitoring potential volatile organic compound sources and update recordkeeping requirements. Changes took effect June 24, 2010. See http://www.sos.state.tx.us/texreg/pdf/currview/0618is.pdf (pp. 5293-316)
  • The Commission on Environmental Quality amended 30 Tex. Admin. Code §§115.352 -115.358, which concern fugitive emission control in petroleum refining, natural gas processing, and petrochemical processes in ozone nonattainment areas. The rules took effect June 24. See http://www.sos.state.tx.us/texreg/pdf/currview/0618is.pdf (pp. 5316-23)

General:

  • The Commission on Environmental Quality adopted the repeal of 30 Tex. Admin. Code §§39.402, 39.404, and 39.606; adopted new §39.402; and also adopted the amendments to §§39.106, 39.403, 39.405, 39.409, 39.411, 39.418 39.420, 39.501, 39.551, 39.601 -39.605, 39.651, 39.653, and 39.709. Rules relate to public participation in environmental permit processes, and include requirements for public notice of waste applications, stricter requirements for public notice of air quality permit applications, expansion of permit types requiring public notice, and a mandate that the directors of certain agencies encourage public participation. The rules took effect June 24, 2010. Seehttp://www.sos.state.tx.us/texreg/pdf/currview/0618is.pdf (pp. 5198-273)

Hazardous and Solid Waste:

  • The Commission on Environmental Quality proposed an amendment to 30 Tex. Admin. Code §37.9105 that would eliminate a requirement of environmental impairment insurance policies for Class B sewage sludge facilities. The comment period ends July 19, 2010. See http://www.sos.state.tx.us/texreg/pdf/currview/0618is.pdf (pp. 5172-75)

Land Use:

  • The General Land Office proposed a new 31 Tex. Admin Code §15.17. The section would concern local governments' erosion response plans. Written comments must be received by July 18, 2010, which is also the earliest possible date of adoption. See http://www.sos.state.tx.us/texreg/pdf/currview/0618is.pdf (pp. 5175-82)

VERMONT

Water:

VIRGINIA

General:

  • The Department of Environmental Quality has proposed the adoption of 9 Va. Admin. Code §15-40, which would introduce permit requirements for small wind energy projects. There will be a public hearing August 3, 2010, and the comment period ends August 20. See http://legis.state.va.us/codecomm/register/vol26/iss21/v26i21.pdf (pp. 2562-73)

Water:

  • The Pesticide Control Board amended 2 Va. Admin. Code §20-51, exempting certain government employees and other individuals from certification requirements under the Virginia Pesticide Control Act when the intended use of the products is to prevent immediate personal harm from stinging or biting insects. Examples of those exempt include scientists engaging in laboratory research and doctors attempting to control pests in corpses. The rules take effect July 21, 2010. See http://legis.state.va.us/codecomm/register/vol26/iss21/v26i21.pdf (p. 2557)

Wildlife:

WEST VIRGINIA

Hazardous and Solid Waste:

Water:

Wildlife:

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

INTERNATIONAL

UP TO ONE-THIRD OF CERTIFIED EMISSIONS REDUCTIONS MAY BE FRAUDULENT

Loopholes within the Clean Development Mechanism, a "flexibility" measure of the Kyoto Protocol, may have led a number of Asia- and Latin America-based coolant firms to intentionally increase creation of the greenhouse gas HFC-23 in order to obtain offsets by reducing the production to normal levels. A number of North American and European activists have demanded an inquiry into the practices of the firms, based largely in India and China, after an analysis indicated that companies were producing false documentation to prove that emissions reductions projects were "additional" to usual business, which is a requirement of the mechanism. This is the most recent of a host of troubles to the market and the mechanism in the past year. Europol released a report in December indicating that fraud cost taxpayers up to five billion euros, and in some markets, fraud accounted for up to 90 percent of market value. The European Union carbon market, estimated to be worth about 90 billion euros a year, seems a ripe breeding ground for illegal activities--in addition to institutional fraud by firms and organized crime groups, six German firms lost almost three billion euros in credits in a phishing scheme in February. For news on intentional production increase, see http://www.triplepundit.com/2010/06/more-fraud-within-the-clean-development-mechanism/. For the story on false documentation, seehttp://www.businessgreen.com/business-green/news/2227429/cdm-applicants-falsifying. For Europol's fraud report, see http://www.europol.europa.eu/index.asp?page=news&news=pr091209.htm.

MINING CLEARANCE CLASHES IN SOUTHERN AFRICA

The Environmental and Mining Ministers appointed a special environmental task force to investigate a number of mine approvals in sensitive areas. This came during a meeting last week that was convened to discuss a controversial new Coal of Africa project next to a World Heritage Site. Coal of Africa maintains that all environment-affecting work done so far, including clearing brush and building new structures, has been within the terms of its permit. But it must now present a case to the government on why it should not be prosecuted. The ministers have been applauded by South African environmental activists for investigating the "avalanche" of new permits. Meanwhile, the national and local governments of Zimbabwe have raised anger in local industries by allowing a mine to threaten livelihoods. A $100 million coal mining project in Gwayi has cause outrage among local residents and businesses as initial development indicates the project, located adjacent to a dam and on a wildlife preserve, could damage safari and fishing operations. A conservancy association official expressed concern that there had not been an environmental impact assessment before commencement of the project, though a mine spokesman said that the report would clarify the project's impact. The project will also take up almost three times the land initially allotted. For South Africa's investigation, seehttp://www.mg.co.za/article/2010-07-01-environmental-probe-for-dodgy-mining-rights. For the story on Gwayi's mine, see http://www.theindependent.co.zw/local/27115-furore-over-us100m-coal-mining-project.html.

BELGIUM FACES "SUBSTANTIAL" FINES FOR WASTEWATER

The European Commission announced this week that it plans on bringing Belgium to the Court of Justice for repeated failure to comply with European Union wastewater regulations. The Commission is asking the Court for a lump sum penalty of 15 million euros and a daily penalty payment of almost 62,000 euros. The Commission first sued in 2004 under the Waste Water Treatment Directive, which mandates that wastewater generated by agglomerations of over 10,000 people must be treated before being discharged into the environment. The Commission found that 40 agglomerations in three regions are still not in compliance, and full compliance is not expected until 2013. Luxembourg received a fresh warning for its water use--according to the Commission, seven different agglomerations have been discharging water with high levels of nitrogen and phosphate into sensitive water bodies. For the full story, see http://europa.eu/rapid/pressReleasesAction.do?reference=IP/10/835&format=HTML&aged=0&language=EN&guiLanguage=en.

 

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