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Weekly Update Volume 40, Issue 2

01/18/2010

LITIGATION

CWA, FEDERAL JURISDICTION:

A district court remanded to state court a city's CWA and state law claims against another city challenging its imposition of a 25% surcharge on wastewater treatment services. The plaintiff city seeks a declaration that the surcharge violates the CWA. Although the plaintiff city referred to the federal CWA and its implementing regulations in its complaint, that alone is not enough to confer federal jurisdiction. A complaint alleging the violation of a federal statute as an element of a state cause of action does not necessarily state a claim arising under the laws of the United States when Congress created no private, federal right of action for the violation of the federal law. With the limited exception of a citizen's suit under 33 U.S.C. §1365(a), the CWA contains no private right of action. Here, there is no private right of action under the CWA applicable to the case and the complaint does not implicate a substantial question of federal law. Nor can it be said that the CWA and its regulations completely preempt state law. The court, therefore, remanded the case to state court.City of Treasure Island v. City of St. Petersburg, No. 8:09-cv-1317, 40 ELR 20016 (M.D. Fla. Jan. 6, 2010) (Hernandez Covington, J.).

HAZARDOUS WASTE, TORT LAW, SOVEREIGN IMMUNITY:

 A district court dismissed a landowner’s fraud and conspiracy counterclaims against the Virgin Islands on grounds of sovereign immunity. The Virgin Islands government filed suit against the landowner under CERCLA and state law for allegedly releasing hazardous substances onto its land and into the water. The landowner brought several counterclaims alleging, among other things, that the government knew of serious environmental violations on the land at issue but fraudulently withheld that information while the landowner was in negotiations to purchase it. The government argued that it was immune from suit, but the landowner claimed that the Virgin Islands Tort Claims Act does not waive sovereign immunity for fraud claims. The landowner’s fraud claim, however, was time barred. In addition, because the counterclaim arose from a transaction separate from the main claim (i.e., the counterclaim related to the sale of land and not the release of hazardous substances), the landowner’s claim did not sound in recoupment and, as such, did not fall into an exception to the rule barring its claim on grounds of sovereign immunity.Commissioner of the Department of Planning & Natural Resources v. Century Alumina Co., No. 05-0062, 40 ELR 20015 (D.V.I. Jan. 5, 2010).

RCRA, PENALTY, ACCELERATED DECISION:

An EPA administrative law judge (ALJ) granted EPA's motion for accelerated decision as to a company's liability for violating RCRA's closure requirements, but denied its motion for accelerated decision as to the penalty. The company conceded liability for the RCRA violation. EPA argued that if there is liability, the penalty is simply a "matter of agency policy and discretion" and there can be no factual dispute over the calculation of the penalty amount, as it is simply a legal or policy issue. But disputes of material fact raised in response to a motion for accelerated decision render the granting of such motion inappropriate, whether the issue for determination is the fact of violation or the proper application of a given penalty policy. Here, there are material facts in dispute as to the appropriate penalty. The company claims that its failure to carry out the drip pad closure plan stems from its financial inability to continue its business, as opposed to any unwillingness to comply with the closure plan, and it vigorously contests the $287,441 civil penalty EPA seeks. The ALJ also is of the view that, either through discovery or through the exercise of cross-examination, a respondent should be afforded the right to explore EPA’s penalty proposal analysis in order to make its own determination as to whether the policy was in fact properly applied. A hearing on the penalty issue is therefore warranted.In re John A. Biewer Co. of Ohio, RCRA No. 05-2008-0007, 40 ELR 47891 (EPA ALJ Dec. 23, 2009).

CALIFORNIA ENVIRONMENTAL QUALITY ACT, ZONING:

A California appellate court upheld the dismissal of developers' petition to set aside design guidelines for a development project in North Hollywood. The design guidelines are not a zoning ordinance and, therefore, need not comply with the procedural and individualized notice requirements of the state Planning and Zoning Law. In addition, the developers failed to demonstrate how the guidelines are inconsistent with the general plan or conflict with state density bonus laws. And claims that the guidelines were adopted in violation of the California Environmental Quality Act are time barred.PR/JSM Rivara LLC v. Community Redevelopment Agency of Los Angeles, No. B213051, 40 ELR 20014 (Cal. Ct. 2d Dist. Dec. 17, 2009).

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

THE FEDERAL AGENCIES

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

AIR:

  • EPA entered into a proposed consent decree that requires the Agency to respond to a petition seeking EPA's objection to a CAA Title V operating permit for the Hayden Station power plant in Colorado by March 25, 2010.75 FR 1770(1/13/10).
  • SIP Approvals:California (permitting of new or modified sources for the Ventura County air pollution control district)75 FR 1284(1/11/10); (nitrogen oxide and particulate matter (PM) emissions for the San Joaquin Valley unified air pollution control district)75 FR 1715(1/13/10); (limited approval of local fee rule for the San Joaquin Valley unified air pollution control district)75 FR 1716(1/13/10); (limited approval of revisions for volatile organic compound (VOC) emissions for the San Joaquin Valley air pollution control district)75 FR 2079(1/14/10). Puerto Rico (limited maintenance plan and attainment of PM NAAQS for the Guaynabo nonattainment area)75 FR 1543(1/12/10).
  • SIP Proposals:Arkansas (1997 eight-hour ozone NAAQS for the Crittenden County nonattainment area)75 FR 2091(1/14/10). Delaware (1997 eight-hour ozone NAAQS for the Delaware portion of the Philadelphia moderate nonattainment area)75 FR 2452(1/15/10). Indiana (VOC automobile refinishing rules)75 FR 2090(1/14/10).

HAZARDOUS & SOLID WASTE:

  • EPA entered into a proposed administrative settlement under CERCLA that requires the settling party to pay $120,000, plus accrued interest, in U.S. response costs incurred at the Commerce Street Plume Superfund site, in Williston, Vermont.75 FR 2543(1/15/10).

WILDLIFE:

  • FWS proposed to designate approximately 22,679 miles of streams and 533,426 acres of reservoirs or lakes in Idaho, Montana, Nevada, Oregon, and Washington as critical habitat for the bull trout.75 FR 2270(1/14/10).
  • FWS, upon reconsideration, determined that the designation of critical habitat for the jaguar is prudent and that it will prepare a proposed designation this fiscal year.75 FR 1741(1/13/10).
  • FWS announced a 12-month finding on a petition to revise critical habitat for the Florida manatee under the ESA; the Agency found that revisions are warranted but precluded by higher priority actions and insufficient funds.75 FR 1574(1/12/10).

DOJ NOTICES OF SETTLEMENT:

  • United States v. Anderson & Sons, No. 3:09-cv-2096 (D. Conn. Jan. 4, 2010). A settling CERCLA defendant must pay $53,290 in U.S. response costs incurred at the Solvents Recovery Service of New England, Inc. Superfund site in Southington, Connecticut, and must pay $19,710 in response costs incurred at the Old Southington Landfill Superfund site, also in Southington.75 FR 1412(1/11/10).
  • United States v. Highview Gardens, No. 2:09-cv-02827-PD (E.D. Pa. Jan. 4, 2010). A settling CERCLA defendant must pay $300,000 in U.S. response costs incurred at the Allied/Recticon Superfund site in Parker Ford, Pennsylvania.75 FR 1412(1/11/10).
  • United States v. Union Pacific Railroad Co., No. 2:09-00392 (D. Idaho Dec. 23, 2009). Settling CERCLA defendants must pay a total of $1,082,094 in U.S. response costs incurred at the Wallace Yard and Spur Lines Superfund site in the Coeur d'Alene Basin of Idaho, must perform the EPA-selected cleanup at the site, and must contribute to a basinwide cleanup program to address contamination of residential properties.75 FR 1412(1/11/10).
  • United States v. Vinagro, No. 07-264S (D.R.I. Jan. 5, 2010). A settling CERCLA defendant must sell property he owns and must pay $1,975,000 from the proceeds toward U.S. response costs incurred at the Green Hill Road Superfund site in Johnston, Rhode Island.75 FR 1413(1/11/10).
  • United States v. Mascot Mines, Inc., No. 08-383-EJL (D. Idaho Dec. 18, 2009). Settling CERCLA defendants must pay a total of $90,000 in U.S. response costs incurred at the Bunker Hill Mining and Metallurgical Complex Superfund site in northern Idaho, must assign interest in insurance policies to a trust, and must pay 2% of net smelter returns generated from any future mining activities.75 FR 1413(1/11/10).

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

THE CONGRESS

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

Committee Action

  • H.R. 3759 (timber)was reported by the Committee on Natural Resources. H. Rep. No. 111-394, 155 Cong. Rec. H39 (daily ed. Jan. 12, 2010). The bill would authorize the Secretary of the Interior to grant economy-related contract extensions of certain timber contracts between the Secretary of the Interior and timber purchasers.
  • H.R. 3254 (water)was reported by the Committee on Natural Resources. H. Rep. No. 111-395, 155 Cong. Rec. H39 (daily ed. Jan. 12, 2010). The bill would approve the Taos Pueblo Indian Water Rights Settlement Agreement.
  • H.R. 3342 (water)was reported by the Committee on Natural Resources. H. Rep. No. 111-390, 155 Cong. Rec. H39 (daily ed. Jan. 12, 2010). The bill would authorize the Secretary of the Interior, acting through the Commissioner of Reclamation, to develop water infrastructure in the Rio Grande Basin and to approve the settlement of the water rights claims of the Pueblos of Nambe, Pojoaque, San Ildefonso, and Tesuque.
  • H.R. 1065 (water)was reported by the Committee on Natural Resources. H. Rep. No. 111-391, 155 Cong. Rec. H39 (daily ed. Jan. 12, 2010). The bill would resolve water rights claims of the White Mountain Apache Tribe in the state of Arizona.
  • H.R. 3644 (climate)was reported by the Committee on Natural Resources. H. Rep. No. 111-392, 155 Cong. Rec. H39 (daily ed. Jan. 12, 2010). The bill would direct NOAA to establish education and watershed programs which advance environmental literacy, including preparedness and adaptability for the likely impacts of climate change in coastal watershed regions.
  • H.R. 3650 (algae) was reported by the Committee on Science and Technology. H. Rep. No. 111-396, 155 Cong. Rec. H138 (daily ed. Jan. 13, 2010). The bill would establish a National Harmful Algal Bloom and Hypoxia Program to develop and coordinate a comprehensive and integrated strategy to address harmful algal blooms and hypoxia and to provide for the development and implementation of comprehensive regional action plans to reduce harmful algal blooms and hypoxia.

Bills Introduced

  • H.R. 4416 (Miller, D-Cal.) (wildlife)would reauthorize the Great Ape Conservation Act. 155 Cong. Rec. H39 (daily ed. Jan 12, 2010). The bill was referred to the Committee on Natural Resources.
  • H.R. 4424 (Sestak, D-Pa.) (energy)would increase the energy credit for equipment used to generate electricity by geothermal power to extend the grants for specified energy property. 155 Cong. Rec. H39 (daily ed. Jan 12, 2010). The bill was referred to the Committee on Ways and Means and the Committee on Energy and Commerce.
  • H.R. 4438 (Rodriguez, D-Tex.) (national parks)would authorize the Secretary of the Interior to enter into an agreement to lease space from a nonprofit group or other government entity for a park headquarters at San Antonio Missions National Historical Park, to expand the boundary of the park, and to conduct a study of potential land acquisitions. 155 Cong. Rec. H138 (daily ed. Jan 13, 2010). The bill was referred to the Committee on Natural Resources.
  • H.R. 4445 (Heinrich, D-N.M.) (land)would amend Public Law 95-232 to repeal a restriction on treating as Indian country certain lands held in trust for Indian pueblos in New Mexico. 155 Cong. Rec. H139 (daily ed. Jan 13, 2010). The bill was referred to the Committee on Natural Resources.
  • H.R. 4451 (Murphy, D-Conn.) (energy)would reinstate and transfer certain hydroelectric licenses and extend the deadline for commencement of construction of certain hydroelectric projects. 155 Cong. Rec. H139 (daily ed. Jan 13, 2010). The bill was referred to the Committee on Energy and Commerce.
  • H.R. 4455 (Thompson, D-Cal.) (energy)would amend the Internal Revenue Code of 1986 to extend certain energy-related tax provisions. 155 Cong. Rec. H139 (daily ed. Jan 13, 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 2009, visit our list ofCumulative State Developments. For state material reported prior to 2010, visit theELR Archives.

The states below have updates this week:

CaliforniaIndianaNorth DakotaColoradoNevadaOregonConnecticutNew YorkVirginia

CALIFORNIA

Air:

  • The Air Resources Board will hold a public hearing on proposed amendments to California’s greenhouse gas emission standards. These standards apply on a fleetwide basis to large-volume manufacturers of 2009 through 2016 model year new passenger motor vehicles certified for sale in California. The proposed amendments would allow manufacturer compliance with U.S. EPA standards to be deemed compliant with California’s standards for the 2012 through 2016 model years. The hearing will be February 25, 2010. Seehttp://www.arb.ca.gov/regact/2010/ghgpv10/ghgpv10.htm
  • The Air Resources Board will hold a public hearing on proposed adoption of a new regulation to reduce sulfur hexafluoride emissions from gas insulated switchgear used in electric power systems. The hearing will be February 25, 2010. Seehttp://www.arb.ca.gov/regact/2010/sf6elec/sf6elec.htm

COLORADO

Water:

CONNECTICUT

Water:

  • The Department of Environmental Protection will hold a public hearing on proposed amendments to Connecticut’s Water Quality Standards. Changes and amendments proposed for revision include numeric criteria for toxic pollutants, standards for temperature, standards for dissolved oxygen in marine waters, standards for biological condition, allowable discharges to Class A water bodies, the antidegradation implementation policy, surface water quality classification maps, and other minor changes or clarifications. The hearing will be February 3, 2010. Seehttp://www.ct.gov/dep/cwp/view.asp?a=2719&q=452434&depnav_gid=165

INDIANA

Air:

NEVADA

General:

  • The Department of Motor Vehicles adopted amendments to Nevada Admin. Code §360A, relating to motor vehicles. The amendments make special fuel manufacturers subject to provisions relating to the licensing, reporting requirements, and tax obligations applicable to special fuel users, suppliers, and dealers; make the imposition of administrative fines for violations of law mandatory; and provide other matters properly relating thereto. Seehttp://www.leg.state.nv.us/register/2009Register/R160-09P.pdf

NEW YORK

Air:

  • The Department of Environmental Conservation seeks public comment on proposed amendments to N.Y. Comp. Codes R. & Regs. tit. 6, §§200, 201, and 234, Graphic Arts. The proposed revisions expand the current regulation's applicability to include letterpress printing and establish more stringent reasonably available control technology (RACT) for volatile organic compounds (VOCs) for facilities that engage in flexographic, offset lithographic, and rotogravure printing. Comments are due February 17, 2010. Seehttp://www.dec.ny.gov/regulations/60627.html
  • The Department of Environmental Conservation seeks public comment on proposed amendments to §228, Surface Coating Processes, Commercial and Industrial Adhesives, Sealants and Primers; and Part 200, General Provisions. The revisions will limit VOC emissions from commercial and industrial adhesives, sealants, and primers. Comments are due February 17, 2010. Seehttp://www.dec.ny.gov/regulations/60692.html
  • The Department of Environmental Conservation seeks public comment on proposed amendments to §227-2, Reasonably Available Control Technology for Oxides of Nitrogen (NOx); Subpart 201-3, Exempt & Trivial activities; and Part 200, General Provisions. The changes would lower the NOx RACT emission limits for very large boilers, large boilers, mid-size boilers, and small boilers, and require a case-by-case RACT analysis for combined cycle/cogeneration combustion turbines. Comments are due February 17, 2010. Seehttp://www.dec.ny.gov/regulations/60842.html
  • The Department of Environmental Conservation seeks public comment on proposed amendments to §220, Portland Cement Plants and Glass Plants. The regulation imposes RACT requirements on NOx emissions from portland cement kilns. Comments are due February 17, 2010. Seehttp://www.dec.ny.gov/regulations/60962.html
  • The Department of Environmental Conservation seeks public comment on proposed amendments to §218, Emission Standards for Motor Vehicles and Motor Vehicle Engines, and Part 200, General Provisions. The proposed amendments would incorporate California's revisions to the greenhouse gas emission standards that have been adopted as part of the low emission vehicle program. Comments are due February 17, 2010. Seehttp://www.dec.ny.gov/regulations/60521.html
  • The Department of Environmental Conservation seeks public comment on proposed amendments to Part 212, General Process Emission Sources. The amendments would add control requirements for NOx emissions at hot mix asphalt production plants. Comments are due February 17, 2010. Seehttp://www.dec.ny.gov/regulations/61021.html

NORTH DAKOTA

Water:

  • The Department of Health will hold a public hearing on proposed amendments to N.D. Admin. Code 33-16-02.1, Standards of Quality for Waters of the State. The purpose of the proposed amendments is to complete the Department’s triennial review of the Standards of Quality for Water of the State. The hearing will be February 17, 2009. Seehttp://www.ndhealth.gov/PublicComment/WQStandards20100301.pdf

OREGON

Air:

  • The Department of Energy adopted amendments to Or. Admin. R. 345-024-0590 and 345-001-0010, Carbon Dioxide Emission Standard for Non Base Load Electric Generating Facilities. The changes provide an alternate means of measuring "actual gross carbon emissions" every five years during the operation of a non-base load power plant. The amendments also revise the definition of "non-base load power plant" to provide that for facilities designed to operate at variable load, the annual limit of 6,600 hours of operation could be determined by dividing the annual electric output of the facility by the nominal electric generating capacity of the facility.Seehttp://arcweb.sos.state.or.us/rules/0110_Bulletin/0110_ch345_bulletin.html

VIRGINIA

Water:

  • The Department of General Services adopted amendments to 1 Va. Admin. Code §30-40, Regulations for the Certification of Laboratories Analyzing Drinking Water. The amendments conform the regulations to current federal requirements for test methods, sampling, and laboratory certification. Seehttp://legis.state.va.us/codecomm/register/vol26/iss09/v26i09.htm#DGS1VAC3040
  • The Soil and Water Conservation Board adopted amendments to 4 Va. Admin. Code §50-60. Virginia Stormwater Management Program Permit Regulations. This regulatory action establishes a statewide base fee schedule for stormwater management projects and establishes the fee assessment and the collection and distribution systems for those fees. Permit fees are established for: Municipal Separate Storm Sewer Systems (new coverage); Municipal Separate Storm Sewer Systems (major modifications); Construction activity general permit coverage; Construction activity individual permits; Construction activity modifications or transfers; and Municipal Separate Storm Sewer System and Construction activity annual permit maintenance fees. Seehttp://legis.state.va.us/codecomm/register/vol26/iss09/v26i09.htm#DRC4VAC5060

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

INTERNATIONAL

CARMAKERS MAY FACE TOUGHER CO2 CURBS IN EU

The nominee for European Union climate commissioner said that curbs on carbon dioxide emissions from new cars should be reviewed and possibly tightened as they may be insufficiently ambitious. The 27-country bloc has set a goal of cutting emissions from new cars by around 15 percent by 2015, after a lengthy battle that pitted environmentalists against automaking nations France, Germany, and Italy. "It can be important to try and review--did we go far enough at the time? Because this is a field where technology is really moving very fast," Connie Hedegaard told a European Parliament hearing to evaluate her for the job of climate chief. For the full story, visithttp://www.reuters.com/article/idUSTRE60E21220100115.

BRAZIL, CHINA, INDIA, AND SOUTH AFRICA TO TACKLE CLIMATE DEAL

Four of the world's largest and fastest-growing carbon emitters--Brazil, China, India, and South Africa--will meet in New Delhi this month ahead of a January 31 deadline for countries to submit their action plans to combat climate change. The meeting could see the four countries emerge with a coordinated approach on emissions reduction commitments agreed to at last month's United Nations (UN) climate talks in Copenhagen. Countries that support the Copenhagen accord, which the four helped broker, are to submit their "mitigating actions" to the UN Framework Convention on Climate Change secretariat by January 31. China has pledged to cut the amount of carbon dioxide produced for each unit of economic growth by 40%-45% from 2005 levels by 2020. For India, that figure is as much as 25% from 2005 levels by 2020. South Africa committed to cut emissions 34% by 2020, conditional on a finance agreement. For the full story, visithttp://allafrica.com/stories/201001140033.htmlMIDEAST WATER CRISIS BRINGS MISERY, UNCERTAINTYThe Middle East is facing its worst water crisis in decades. For three summers, the annual rains have failed to come. Farmland has dried up across the region in Iraq, Syria, southeast Turkey, and Lebanon. While oil was the resource that defined the last century, water and its scarcity may define this one. Experts say the climate is warming in the Fertile Crescent, the area of the Tigris and Euphrates rivers, contributing to the water shortage and helping to create a new phenomenon--water refugees. This winter, rain has barely settled into the hard, cracked farmland in northern Syria. There was a time when the fields were green most of the year, but the summer droughts have taken a toll. For the full story, seehttp://www.npr.org/templates/story/story.php?storyId=122294630

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

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