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Weekly Update Volume 40, Issue 20

07/12/2010

LITIGATION 

NEPA, ALTERNATIVES:

The Second Circuit held that the USDA complied with NEPA and the Plant Protection Act when it adopted new regulations for the importation of solid wood packaging material into the United States. The final rule required that all solid wood packaging material be either heat treated to a minimum wood core temperature of 56°C for a minimum of 30 minutes or fumigated with methyl bromide prior to being used in connection with the importation of goods into the United States. An environmental group and a handful of states argued that the USDA failed to adequately consider the reasonable alternative of a phased-in substitute-materials-only requirement. But the agency reasonably concluded that while a phased-in substitute-materials-only requirement would provide maximum plant protection with minimal adverse environmental consequences, it is not currently a workable alternative to an urgent problem in need of an immediate response. Nor did the agency act arbitrarily or capriciously in adopting the rule.Natural Resources Defense Council, Inc. v. United States Department of Agriculture, No. 09-2021, 40 ELR 20178 (2d Cir. July 8, 2010).

NEPA, TIMBER SALES:

The Ninth Circuit affirmed a lower court decision denying an environmental group's motion to preliminarily enjoin a timber sale in the Tongass National Forest. The district court did not abuse its discretion in holding that the group had a very low likelihood of succeeding on the merits of its NEPA claim. The Forest Service considered the impacts on the aquatic environment from open, stored, and decommissioned roads over the length of the project, and reasonably concluded that the impacts would be minor. The record likewise indicates that the Forest Service considered these impacts in the context of the existing, degraded conditions of the affected watersheds. The Forest Service also took a hard look at the potential impacts of the sale on wolves and deer. Nor did the lower court abuse its discretion in holding that the group had a low likelihood of success on its National Forest Management Act claims that the Forest Service failed to comply with the requirements of the Tongass Land and Resource Management Plan.Tongass Conservation Society v. United States Forest Service, No. 10-35232, 40 ELR 20181 (9th Cir. June 28, 2010).

MIGRATORY BIRD TREATY ACT, DUE PROCESS:

The Tenth Circuit held that the Migratory Bird Treaty Act (MBTA) applies a strict liability standard to the taking or killing of migratory birds but that it requires a defendant to proximately cause the statute's violation for the statute to pass constitutional muster. The case arose when two oil drilling operators were convicted after dead migratory birds were discovered lodged in a piece of oil drilling equipment known as a "heater-treater." A federal district court affirmed the convictions, concluding that violations of §703 of the MBTA are strict liability offenses, which do not require that defendants knowingly or intentionally violate the law. As a matter of statutory construction, the "take" provision of the Act does not contain a scienter requirement. But when the MBTA is stretched to criminalize predicate acts that could not have been reasonably foreseen to result in a proscribed effect on birds, the statute reaches its constitutional breaking point. Here, the record shows one of the operators had notice of the heater-treater problem for nearly a year-and-a-half before the bird death resulting in its conviction. But the second operator did not learn of the problem until April 2007. Accordingly, the second operator cannot be convicted for violations prior to that date. The court, therefore, affirmed in part and reversed in part the convictions.United States v. Apollo Energies, Inc., Nos. 09-3037, -3038, 40 ELR 20176 (10th Cir. June 30, 2010).

WETLANDS, NEPA, CWA:

A district court held that the U.S. Army Corps of Engineers violated NEPA and the CWA when it issued a dredge-and-fill permit for a 500-acre multi-use development project near Tampa, Florida. The project site includes 155.46 acres of wetlands. While the Corps took a hard look at some of the environmental consequences of the issuance of the permit, it failed to make a "convincing case" that the potential environmental impact is not significant enough to require preparation of an EIS. Moreover, its determination that there would not be significant environmental impacts is so contrary to the record that the court found it to be nothing short of arbitrary and capricious. In addition, the Corps violated the CWA. It failed to require practicable alternatives, and it arbitrarily and capriciously concluded there would be no significant degradation of a creek and its wetlands and no violations of state water quality standards. But the court rejected claims that the Corps and the FWS violated the ESA by failing to engage in formal consultation on the development's impact on protected species.Sierra Club v. VanAntwerp, No. 07-1756, 40 ELR 20180 (D.D.C. June 30, 2010) (Lamberth, J.).

CERCLA, DISPOSAL:

A district court dismissed, with leave to amend, an insurer's CERCLA action against companies that sought recovery of costs it incurred on behalf of one of its insureds. The insurer's allegations failed to state a claim under CERCLA 107(a). The allegations, among other things, failed to show that the companies arranged for the disposal of their own or anyone else's hazardous waste at the site. In fact, the allegations show that the only thing one of the companies did at the site was attempt to clean it up. Allegations describing a company's removal and remediation efforts do not meet CERCLA's definition of "disposal."Chubb Custom Insurance Co. v. Space Systems/Loral, Inc., No. 09-4485, 40 ELR 20182 (N.D. Cal. June 23, 2010) (Fogel, J.).

OIL DRILLING, INJUNCTIONS:

The Fifth Circuit refused to reinstate the six-month moratorium on deepwater drilling in the Gulf of Mexico. In June, a district courtgrantedan offshore service company's motion to enjoin the moratorium. The DOI sought a stay of that injunction, but it failed to demonstrate a likelihood of irreparable injury if the stay is not granted. It made no showing that there is any likelihood that drilling activities will be resumed pending appeal. The DOI may apply for emergency relief if it can show that drilling activity by deepwater rigs has commenced or is about to commence.Hornbeck Offshore Services, LLC v. Salazar, No. 10-30585, 40 ELR 20183 (5th Cir. July 8, 2010).

INSURANCE, DUTY TO DEFEND:

The Wisconsin Supreme Court held that an insurance company must defend a manufacturing company in an underlying contamination case even though the company's policy was a indemnity-only excess umbrella policy. Based on the language of the policy, the insurer had a duty to defend. Although the excess umbrella policy does not have a duty to defend provision, it does contain a follow form provision that incorporates the duty to defend found in underlying insurance policies. In addition, its duty to defend was not conditioned upon exhaustion of the underlying policies. Rather, under the terms of the "other insurance" provision, the insurer's duty to defend was triggered when the underlying insurer "denie[d] primary liability under its policy."Johnson Controls, Inc. v. London Market, No. 2007AP001868, 40 ELR 20179 (Wis. June 24, 2010).

CALIFORNIA ENVIRONMENTAL QUALITY ACT, ENVIRONMENTAL REVIEW:

A California appellate court held that a siting agreement between a county and the state corrections department that identified potential locations for a state prison reentry facility is not subject to environmental review under the California Environmental Quality Act (CEQA). The agreement was not a commitment to either a reentry facility or any jail facility. The siting agreement did not as a practical matter preclude any alternatives, mitigation measures, or the alternative of not going forward with any facility. Rather, the record shows all the facilities that were the subject of the siting agreement might be modified or not implemented at all, depending on a number of factors, including environmental review. Accordingly, the trial court properly sustained the county's demurrer to a city's CEQA petition.City of Santee v. County of San Diego, No. D055310, 40 ELR 20177 (Cal. App. 4th Dist. June 29, 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 proposed confidentiality determinations for data required under the Mandatory Greenhouse Gas Reporting Rule and for certain information obtained under the CAA.75 FR 39094(7/7/10).
  • EPA announced the availability of two final documents titledQuantitative Health Risk Assessment for Particulate MatterandParticulate Matter Urban-Focused Visibility Assessment.75 FR 39252(7/8/10).
  • EPA seeks public comment on the draft document titledPolicy Assessment for the Review of the Particulate Matter National Ambient Air Quality Standards--Second External Review Draft.75 FR 39253(7/8/10).
  • EPA entered into a proposed consent decree under the CAA that requires the Agency to respond to an administrative petition seeking EPA's objection to a Title V operating permit issued to the Edgewater Generating Station in Sheboygan County, Wisconsin, by August 10, 2010.75 FR 39014(7/7/10).
  • SIP Approvals:California (coarse particulate matter emissions for the Imperial County air pollution control district)75 FR 39366(7/8/10). Iowa (air pollution rules for Polk County)75 FR 38745(7/6/10).
  • SIP Proposal:Iowa (air pollution rules for Polk County; see above for direct final rule)75 FR 38757(7/6/10).

OFFICE OF THE PRESIDENT:

  • The president announced a long-term economic and environmental restoration support plan for the Gulf Coast region.75 FR 38913(7/6/10).

PESTICIDES:

  • EPA announced a draft proposed rule under FIFRA that would add prion to the list of pests in the Agency's regulations.75 FR 38958(7/7/10).
  • EPA established a tolerance exemption under the Federal Food, Drug, and Cosmetic Act for residues of terpene constituents of the extract of chenopodium ambrosioides near ambrosioides.75 FR 39450(7/9/10).
  • EPA established a tolerance exemption under the Federal Food, Drug, and Cosmetic Act for residues of homobrassinolide.75 FR 39455(7/9/10).

WILDLIFE:

  • NOAA-Fisheries announced a 90-day finding on a petition to list Puget Sound populations of coho salmon as an endangered or threatened species and to designate critical habitat under the ESA; the Agency found that listing is not warranted.75 FR 38776(7/6/10).

DOJ NOTICES OF SETTLEMENT:

  • United States v. CSX Transportation, Inc., No. 2:10-cv-418-FtM-29SPC (M.D. Fla. July 1, 2010). A settling CERCLA defendant responsible for violations at the Nocatee Hull Creosote Superfund site in Hull, Florida, must pay all past and future U.S. oversight costs incurred, plus interest, and must undertake the EPA-selected remedial action at the site .75 FR 39278(7/8/10).
  • In re Quebecor World (USA) Inc., No. 08-10152(JMP) (Bankr. S.D.N.Y. July 1, 2010). Settling CAA and CERCLA debtors must provide EPA with allowed general unsecured claims of $374,613.88 for violations at Superfund sites in Connecticut, Illinois, Kentucky, and Rhode Island; must pay an additional $38,617.58 for the site in Illinois; must implement remedial action at sites in Illinois and Pennsylvania; must provide EPA with a general unsecured claim of $183,109 in civil penalties for violations at a facility in Massachusetts; and must pay a distribution amount to EPA with respect to any additional sites.75 FR 39278(7/8/10).
  • United States v. Jim's Water Services, Inc., No. 2:10-CV-00128-ABJ (D. Wyo. June 24, 2010). A settling SWDA defendant that failed to take certain actions to abate an imminent and substantial endangerment to wildlife must pay $125,000 in U.S. response costs incurred at its commercial oilfield waste disposal facility in Campbell County, Wyoming.75 FR 39041(7/7/10).
  • United States v. JBS Souderton, Inc., No. 08-5999 (E.D. Pa. June 16, 2010). A settling CWA defendant that discharged pollutants into waters of the United States from its beef processing and rendering facility near Philadelphia must pay a $2 million civil penalty to the United States and Pennsylvania, must reconstruct its wastewater collection system, and must modernize operation and maintenance of its treatment plant.75 FR 39041(7/7/10).

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

THE CONGRESS

Note: Congress has been on recess since the last issue ofWeekly Updatebut will reconvene July 12.

Public Law:

  • S.1660 (Formaldehyde Standards for Composite Wood Products Act), which amends TSCA to adopt certain formaldehyde emissions, was signed into law by President Obama on July 7, 2010. Pub. L. No. 111-199.

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:

AlaskaFloridaIdahoIllinoisKansasMaineMarylandMassachusettsMinnesotaNevadaNew JerseyNew MexicoNorth DakotaRhode IslandSouth CarolinaTexasVirginia 

ALASKA

Water:

FLORIDA

Water:

  • The Department of Agriculture and Consumer Services proposed to adopt the Water Quality/Quantity Best Management Practices for Florida Specialty Fruit and Nut Crops manual as law. There will be public hearings on July 12, 13, and 14, 2010. Seehttps://www.flrules.org/gateway/ruleNo.asp?id=5M-13.001.

IDAHO

Water:

  • The Department of Water Resources proposed to change Idaho Admin. Code r. 37.03.10, which regards well driller licensing rules. Changes would alter definitions in the section "Well Construction Standards Rules." The comment period ends July 15, 2010. Seehttp://adm.idaho.gov/adminrules/bulletin/bul/10bul/10jul.pdf(p. 105).

ILLINOIS

Air:

KANSAS

Water:

  • The Department of Health and Environment seeks public comment on the proposed Kansas Public Water Supply Loan Fund 2011 Intended Use Plan. This plan describes proposed revisions to the fund to comply with new federal requirements including prevailing wage rates, awarding additional subsidy in the form of principal forgiveness, and green project types, and adds new projects to the project priority list. The hearing will be on August 17, 2010. Seehttp://www.kssos.org/pubs/register%5C2010%5CVol_29_No_27_July_8_2010_p_1069-1106.pdf(p. 1089).

MAINE

Energy:

  • The Public Utilities Commission proposed to adopt rules to implement recently enacted legislation that requires the Commission to arrange for green power supply to be available to the state's residential and small commercial electricity customers. There will be a public hearing on July 27, 2010, and the comment period ends August 9, 2010. Seehttp://www.maine.gov/sos/cec/rules/notices/2010/070710.html.

MARYLAND

Air:

  • The Department of the Environment proposed to amend Md. Code Regs 26.11.01 to remove the word "furnace" from the definition of "fuel-burning equipment." There will be a public hearing on August 4, 2010. Seehttp://www.dsd.state.md.us/mdregister/3714.pdf(p. 961).
  • The Department of the Environment proposed to amend Md. Code Regs 26.11.09, which regards nitrogen oxide allowances. Changes would require load shaving units to install meters to record total operating time. Seehttp://www.dsd.state.md.us/mdregister/3714.pdf(pp. 962-64).
  • The Department of the Environment proposed to amend Md. Code Regs 26.11.19, which regards volatile organic compounds from specific processes. Changes would affect standards for lithographic and letter press printing. Seehttp://www.dsd.state.md.us/mdregister/3714.pdf(pp. 966-68).

Energy:

MASSACHUSETTS

Hazardous and Solid Waste:

  • The Department of Environmental Protection seeks public comment on its Solid Waste Master Plan. Massachusetts is currently bound by law to reduce greenhouse gas emissions by 80 percent by 2050 and seeks to implement rules to aid in achieving such a reduction. The plan calls for a continued moratorium on new municipal solid waste combustion units, new performance standards for waste-to-energy facilities, and a dramatic increase in recycling assistance. In addition, the Department calls for a 30 percent reduction in solid waste disposal by 2020, an 80 percent reduction by 2050, and the elimination of all products containing toxic chemicals from disposal facilities. The Department will hold five public hearings throughout the months of July and September for comment on the plan. The comment period will end September 15, 2010. For the draft plan, seehttp://www.mass.gov/dep/recycle/solid/dswmp10.pdf. For the public notice, seehttp://www.mass.gov/dep/public/hearings/2010swmp.htm.

MINNESOTA

Wildlife:

NEVADA

Air:

Energy:

  • The Office of Energy amended Nev. Admin. Code §§701.2-.22, which outline the requirements for receiving loans from the Fund for Renewable Energy and the Energy Efficiency and Energy Conservation Fund. Changes implement stipulations of the American Recovery and Reinvestment Act, and, among other new requirements, mandate that the interest rate for loans will not exceed three percent and that projects must develop or expand renewable energy systems in Nevada. It also adds job creation to the list of criteria for loan consideration. Seehttp://www.leg.state.nv.us/register/2009Register/R161-09A.pdf.
  • The Energy Commissioner seeks public comment on a proposed amendment to Nev. Admin. Code §§701A.390, which outlines the requirements for partial tax abatements for renewable energy projects. Seehttp://www.leg.state.nv.us/register/2010Register/R094-10RP1.pdf.

NEW JERSEY

Solid and Hazardous Waste:

  • The Department of Transportation proposed to readopt with amendments the expiring N.J. Admin. Code §16:49, which pertains to the transportation of hazardous materials. Seehttp://www.lexisnexis.com/njoal/(N.J. OAL 42 N.J.R. 1339(a)).

NEW MEXICO

Water:

  • The Water Quality Control Commission seeks public comment on proposed changes to N.M. Admin. Code §20.7.4, which pertains to utility operator certification requirements. The amendment would alter the classification criteria for certification. Classification is currently based on population. The changes would make it based on the complexity and difficulty of the laboratory analyses that are required to be performed by the system's laboratory technicians. There will be a public hearing on August 10, 2010. Seehttp://www.nmcpr.state.nm.us/nmregister/xxi/xxi12/WaterQualnotice.htm.

NORTH DAKOTA

Air:

RHODE ISLAND

Water:

  • The Department of Environmental Management amended Groundwater Quality Rules to update the wellhead protection area and groundwater classification maps and to clarify the intent and applicability of the rules. The rules took effect July 7, 2010. Seehttp://www2.sos.ri.gov/cgi-bin/topdf/tmp/6069tmp.pdf.

SOUTH CAROLINA

Air:

  • The Department of Health and the Environment has published a list of exempt sources in accordance with S.C. Reg. 61-62.1, § II(B)(3). The list outlines sources the Department considers "insignificant activity," meaning they emit less than 5 tons per year of any criteria pollutant or less than 1,000 pounds per year of any compound listed as a toxic air pollutant. Exempt sources do not require air pollution operating permits and include many heating and cooling systems and motor vehicles. The Department also published activities and sources that it has exempted from Title V permit requirements, a 27-item list that includes all farming equipment, domestic sewage treatment facilities, and brazing, soldering, and welding. Seehttp://www.scdhec.gov/administration/regs/air-exempt-sources.htm.

TEXAS

Air:

  • The Commission on Environmental Quality proposed amendments to 30 Tex. Admin. Code §§114.2, 114.51, and 114.64; and the repeal of §114.52, as revisions to the SIP for air pollution from motor vehicles. Changes attempt to help dealerships and inspection stations comply with state and federal laws. There will be public hearings on July 20, 21, and 22, 2010, and the comment period closes July 26. Seehttp://www.sos.state.tx.us/texreg/pdf/currview/0702is.pdf(pp. 5718-29).
  • The Commission on Environmental Quality proposed amendments to 30 Tex. Admin. Code §§116.13, 116.710, 116.711, 116.715 -116.718, 116.720, 116.721, 116.730, 116.740, and 116.750; and new §116.765. Changes relate to air pollution permits for construction and minor new source review programs that the Commission is attempting to alter under the SIP. There will be a public hearing on July 29, 2010, and the comment period ends August 2. Seehttp://www.sos.state.tx.us/texreg/pdf/currview/0702is.pdf(pp. 5729-44).

Water:

  • The Water Development Board proposed the adoption of a new 31 Tex. Admin. Code §375 and the simultaneous repeal of the existing statute. The law governs the state's Clean Water State Revolving Fund and would change streamline procedures for applying for and receiving grants and loans. In addition, for the first time, the Board proposed subsidies: new U.S. EPA requirements mandate that 30 percent of a capitalization grant be allotted in subsidies for entities otherwise unable to afford fund loans. In addition, 20 percent of the grant must be spent on green projects. There will be a public hearing on July 27, 2010, and the comment period closes August 2, 2010. Seehttp://www.sos.state.tx.us/texreg/pdf/currview/0702is.pdf(pp. 5747-85).

VIRGINIA

Wildlife:

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

INTERNATIONAL

EUROPEAN PARLIAMENT BANS ILLEGAL TIMBER

Illegally forested timber, estimated to be about 20 percent of the supply passing through Europe, will be banned in EU nations beginning in 2012. The ban passed after two years of debate, with member states agreeing to a ban but disagreeing fiercely over its proper implementation. In response to the regulation, a Finnish timber trade group released a statement that it worried the legislation created unnecessary red tape that would prevent timely border crossing of legal timber. Much of the legal timber imported comes from deforestation in protected areas; in May, Brazilian police arrested 70 people--including environmental officials employed to protect the rainforest--for logging in national parks. The EU is not the first major body to ban illegal timber: the legislation passed by the Union is similar the Lacey Act of the United States, and the U.N. ban on Liberian timber is thought to be one of the causes of the end of the regime of Charles Taylor, whose money and arms flowed into the country through the sale of wood. International environmental and human rights activists have lauded the decision while urging the federal government of Australia to deliver on campaign promises to halt the nearly $1 billion worth of illegal timber crossing the border every year. The forestry minister has voiced his support for a ban. For the full story, seehttp://news.bbc.co.uk/2/hi/science_and_environment/10557228.stm.

SOLAR POWER FACES TROUBLE IN EUROPE, SUBSIDIES IN AFRICA

While the federal government of Italy announced plans to slash solar incentives by up to 30 percent, heads of governments in the Economic Community of West African States endorsed an initiative by President Abdoulaye Wade of Senegal to include budgetary provisions for new solar plants. Meanwhile, the parliament of Germany, the world's largest market for photovoltaic panels, backed cuts to solar subsidies by as much as 16 percent. The industry as a whole received a boost when China announced a planned $5.3 billion loan to an energy firm that is expected to double the world's total cell capacity. For the story on Italy, seehttp://www.reuters.com/article/idUSTRE6681R720100709. For Germany, seehttp://www.businessweek.com/news/2010-07-09/german-solar-power-subsidy-cuts-passed-by-upper-house.html. For Africa:, seehttp://allafrica.com/stories/201007080011.html. And for China, seehttp://www.thestreet.com/story/10802697/1/china-solar-pops-on-mega-loans-adr-roundup.html?cm_ven=GOOGLEN.

NEW INDUSTRIAL EMISSIONS DIRECTIVE IN EU

The European Parliament voted overwhelmingly for a new directive that would require power plants to demonstrate that they are using best available techniques to limit environmental impact in order to receive licenses. In addition, plants will face much stricter limits on emissions. The implementation of the new laws was criticized by European Parliament member Holger Krahmer because of the flexible deadlines: the regulations do not take effect until 2016, or 2023 for some older plants. Members voted to allow for significant national governance over the implementation of the laws. For the full story, seehttp://www.guardian.co.uk/environment/2010/jul/09/pollution-fossil-fuels.

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

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