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Weekly Update Volume 40, Issue 22

08/09/2010

LITIGATION 

CWA, COOLING WATER INTAKE STRUCTURES:

The Fifth Circuit remanded the existing-facilities portion of EPA's rule for regulating the use of cooling water intake structures (CWIS) for both existing and new offshore oil and gas extraction facilities, but affirmed the portion of the rule that regulates new offshore facilities. EPA established three phases for the CWIS regulation: Phase I applies to all new CWIS facilities above a particular intake threshold size, except new offshore oil rigs; Phase II applies to existing large power plants that take in more than 50 millions gallons of water a day; and Phase III applies to existing facilities, new oil rigs, new offshore liquefied natural gas facilities, and new seafood processing vessels. EPA and an environmental group filed a motion to remand Phase III of the rule in light of the U.S. Supreme Court's decision inEntergy Co. v. Riverkeeper, 129 S. Ct. 1498,39 ELR 20067(2009), in which the Court remanded Phase II. Because it is imminently reasonable to address together the substantial similarities of fact between that aspect of the Phase II Rule and the instant Phase III Rule in light ofEntergy Corp., the court granted their motion for remand. Pending a new rule, EPA's CWA §316(b) case-by-case permitting procedure, which was in place before the Phase III Rule was promulgated, will remain in effect. But the court affirmed the portion of the rule that regulates new offshore facilities, denying industry's petition for review. The Final Phase III Rule for new facilities is substantially supported by the record and is rationally related to the statutory purpose of §316(b). EPA gave sufficient notice that it could but was not bound to engage in cost-benefit analyses when promulgating the final rule for new facilities, and the Agency's decision to regulate on the basis of economic achievability was borne out by the existence of cost information but not benefit information.ConocoPhillips Co. v. United States Environmental Protection Agency, No. 06-60662, 40 ELR 20200 (5th Cir. July 23, 2010).

CERCLA, "OWNER":

The Ninth Circuit held that the owner of the property at the time cleanup costs are incurred is the current owner for purposes of determining CERCLA liability. The case arose after the California Department of Toxic Substance Control sought cleanup costs under CERCLA from a developer for costs incurred cleaning PCB contamination. The developer argued it was not responsible for the cleanup costs because it sold the property before the Department filed suit. CERCLA’s definition of “owner,” however, does not specify the proper date from which to measure ownership. But considering the broader context of CERCLA liability, the view that ownership is measured at the time of cleanup best aligns with CERCLA’s statute of limitations. And an analysis of CERCLA's purposes yields the same conclusion—that current ownership is measured at the time of cleanup. Accordingly, "owner" status is determined at the time a response-recovery claim accrues, not at the time the lawsuit is initiated.California v. Hearthside Residential Corp., No. 09-55389, 40 ELR 20201 (9th Cir. July 22, 2010).

CONSTITUTIONAL LAW, LAND USE:

The Ninth Circuit held that a 2007 voter-approved initiative that overturned a 2004 initiative giving property owners relief from development restrictions under Oregon land-use laws, or payment for the lost value of their land, did not violate the Contract Clause of the U.S. Constitution. Waivers granted under the 2004 initiative--known as "Measure 37"--were not contracts between the property owners and the county. The waivers do not show that there was any offer by the county, acceptance by the property owners, or consideration. Because there is no contract, there was no Contracts Clause violation when the measure was overturned three years later.Citizens for Constitutional Fairness v. Jackson County, No. 09-35653, 40 ELR 20202 (9th Cir. July 20, 2010).

FUEL ECONOMY, INJUNCTIONS:

The Second Circuit upheld a preliminary injunction that enjoined the enforcement of New York City's revised taxicab lease rate rules that effectively shifted fuel costs from taxicab fleet drivers to taxicab fleet owners to incentivize the use of hybrid-engine and fuel-efficient vehicles. The rules, based expressly on the fuel economy of a leased vehicle, plainly fall within the scope of the Energy Policy and Conservation Act (EPCA) preemption provision. Because preemption under the EPCA is sufficient to affirm the preliminary injunction, the court did not reach the question of whether the preemption provision of the CAA would invalidate the city's new rules.Metropolitan Taxicab Board of Trade v. City of New York, No. 09-2901, 40 ELR 20193 (2d Cir. July 27, 2010).

CERCLA, NATIONAL CONTINGENCY PLAN, DECLARATORY RELIEF:

The Ninth Circuit held that a city was not entitled to response costs incurred as a result of perchlorate contamination in its water supply. In response to the contamination, the city implemented a wellhead recovery program. It now seeks recovery of costs associated with that program. But the city failed to show that such costs were necessary and consistent with the national contingency plan (NCP). And because the city could not show that it was entitled to recover any of its past costs, its claim for declaratory relief as to its future costs also failed. Declaratory relief is available only if liability for past costs has been established under CERCLA §107. Providing declaratory relief based on mere assurances of future compliance with the NCP would create little incentive for parties to ensure that their initial cleanup efforts are on the right track.City of Colton v. American Promotional Events, Inc.-West, No. 06-56718, 40 ELR 20190 (9th Cir. Aug. 2, 2010).

PESTICIDES, TOLERANCES:

The D.C. Circuit granted in part and denied in part a petition challenging an EPA regulation revoking all tolerances for the pesticide carbofuran. EPA's decision to revoke import tolerances for carbofuran was arbitrary and capricious. EPA acknowledged that exposure to carbofuran from imported foods alone is safe. It nonetheless revoked all carbofuran tolerances for imported foods, contending the petitioners failed to make a timely request that import tolerances alone be left in effect. This position is untenable, for the petitioners made such a request on two occasions. But in all other respects, the petition was denied.National Corn Growers Ass'n v. Environmental Protection Agency, No. 09-1284, 40 ELR 20198 (D.C. Cir. July 23, 2010).

NEPA, FLPMA, DRILLING:

The D.C. Circuit denied environmental organizations' petitions for declaratory and injunctive relief arguing that the BLM's record of decision, accompanying EIS, and subsequent drilling permits for a natural gas field in south-central Wyoming violated NEPA, FLPMA, and the APA. The project was designed to manage the resources of more than 270,000 acres of publicly and privately owned land. The BLM reasonably concluded that the project was covered by the Great Divide resource management plan (RMP). Accordingly, the project did not improperly pre-commit resources as it revised the RMP. In addition, BLM's methodology for estimating ozone concentrations in its EIS was reasonable. NEPA does not require agencies to reevaluate their existing environmental analyses each time the original methodologies are surpassed by new, cutting-edge developments. And the BLM did not violate NEPA when it concluded that certain projects were too preliminary to meaningfully estimate their cumulative impacts in the EIS. The court also rejected arguments that the adaptive management plan violated NEPA's mandate to discuss possible mitigation measures, that the project violated the multiple use and sustained yield goals of FLPMA, and that BLM failed to provide sufficient public notice and opportunity for comment.Theodore Roosevelt Conservation Partnership v. Salazar, No. 09-5162, 40 ELR 20199 (D.C. Cir. July 23, 2010).

INJUNCTIONS, SLIDING SCALE TEST:

The Ninth Circuit reversed a lower court decision denying an environmental group's motion to preliminarily enjoin a timber salvage sale in the Beaverhead-Deerlodge National Forest. The group showed that there was a likelihood of irreparable harm; that there were at least serious questions on the merits concerning the validity of the Forest Service's Emergency Situation Determination; that the balance of hardships tips sharply in its favor; and that the public interest favors a preliminary injunction. In so ruling, the court clarified that the "serious questions" version of the sliding scale test for preliminary injunctions remains viable after the U.S. Supreme Court's decision inWinter v. Natural Resources Defense Council, 129 S. Ct. 365,38 ELR 20279(2008).Alliance for the Wild Rockies v. Cottrell, No. 09-35756, 40 ELR 20196 (9th Cir. July 28, 2010).

NATIVE AMERICANS, GEOTHERMAL POWER, LEASES:

The Ninth Circuit affirmed in part and reversed in part a lower court decision that leases between a power company and various governmental agencies for a geothermal power plant near Medicine Lake, an area of spiritual significance to Native American tribes in the region, could be extended. The original leases were issued in 1988 but were extended in 1998. A Native American tribe filed suit, arguing that the agencies had violated various federal laws during the leasing and development process and that the leasing process should begin anew due to past NEPA violations. Contrary to the tribes' assertion, the district court did not "reinstate" the original 1988 leases when it ruled that the leases were capable of extension on remand to the agencies. Instead, the district court placed the parties as closely as possible to where they would and should have been in 1998: the company seeks extensions of its leases, and the agencies must now properly act on that request. Accordingly, the district court did not abuse its equitable powers in ordering that the original 1988 leases be treated as capable of extension. However, the judgment was reversed in part with instructions to correct an inconsistency in the district court's order.Pit River Tribe v. United States Forest Service, No. 09-15385, 40 ELR 20191 (9th Cir. Aug. 2, 2010).

APA, GRAZING PERMITS:

The Tenth Circuit affirmed in part a lower court decision dismissing an individual's APA claim seeking to set aside certain U.S. Forest Service actions that impacted the individual's livestock grazing permits on the Gila National Forest. In 2002, the Forest Service temporarily cancelled 25 percent of his grazing permit due to noncompliance. In 2004, he was granted a new grazing permit that permanently reduced the grazing by 25 percent. Because he failed to administratively appeal the terms of the 2004 permit, the individual's claim that the Forest Service arbitrarily and capriciously cancelled 25 percent of his grazing permit is moot. On remand, the lower court should dismiss this claim. The individual also challenged the Forest Service's "decision notice" authorizing the permit. The Forest Service's alleged failure to consult with the “planning committee” does not provide a basis for setting aside the decision notice under the APA. Moreover, it is impossible to determine precisely what Forest Service actions the individual believes have aggrieved him with respect to the decision notice.McKeen v. United States Forest Service, No. 08-2290, 40 ELR 20192 (10th Cir. Aug. 2, 2010).

NUISANCE, INJUNCTIONS:

The Fourth Circuit reversed and remanded a lower court injunction requiring the immediate installation of emissions controls at four TVA generating plants in Alabama and Tennessee. TVA is in compliance with the NAAQS, the corresponding SIPs, and the permits that implement them. Because these standards impose more stringent requirements than state nuisance law, TVA's plants cannot logically be public nuisances under Alabama and Tennessee law.North Carolina v. Tennessee Valley Authority, No. 09-1623, 40 ELR 20194 (4th Cir. July 26, 2010).

FALSE CLAIMS ACT, WASTE DISPOSAL:

The Tenth Circuit reversed a lower court's dismissal of a False Claims Act action brought against a government contractor by one of its former employees alleging that the contractor falsely represented to the government that it had fulfilled its hazardous and radioactive waste disposal obligations and, based on its false representations, improperly received payment from the government. The employee asserted claims based on both implied and express false-certification theories. The employee's complaint contained sufficient factual allegations to support the implied false certification claims. The complaint contained sufficient factual allegations to show that the contractor knowingly submitted legally false requests for payment to the government, that the government paid the requests, and that the government may not have paid had it known of the falsity. Contrary to the lower court's reasoning, implied false certification claims do not involve—let alone require—an explicit certification of regulatory compliance. And to sustain the express false certification claims, the employee only needed to have alleged—with sufficient factual basis—that the requests contained a false statement and that the statement was material to the government's decision to pay. The employee met that burden here.United States v. Envirocare of Utah, Inc., No. 09-4079, 40 ELR 20203 (10th Cir. Aug. 4, 2010).

TAX CREDITS, INJUNCTION:

The D.C. Circuit denied an environmental group's motion to preliminarily enjoin federal tax credits granted to an energy company for using "clean coal" technology at a new power plant. An injunction suspending the allocation of the tax credit will not prevent the company from moving forward with its project. Indeed, the group does not assert that the allocation of the tax credit will directly cause them irreparable harm; rather, the group predicts that it will be harmed when the plant becomes operational, which it concedes is not expected to occur until the summer of 2012. Because the group's asserted injury is not imminent, and because the court will be able to render a decision on the merits of the group's claims before the anticipated injury becomes imminent, the group is not entitled to injunctive relief.Appalachian Voices v. Chu, No. 08-0380, 40 ELR 20207 (D.C. Cir. July 26, 2010).

LEAD PAINT, DISCLOSURE:

The Eleventh Circuit upheld an EPA Environmental Appeal Board decision finding a property owner liable for failing to comply with EPA's lead-based paint disclosure regulations. EPA had the authority to issue regulations under the Lead Hazard Act, which requires specific language to be provided in sales transactions, and the property owner failed to comply with those requirements. The court also upheld the EAB's $97,545 civil penalty assessment.Vidiksis v. Environmental Protection Agency, No. 09-12544, 40 ELR 20197 (11th Cir. July 28, 2010).

INSURANCE, CLEANUP COSTS:

The Fifth Circuit held that an insurance company had no obligations to a lead refinery under four environmental impairment liability policies that the insurance company's predecessor in interest had sold to the refinery years earlier. The policies contained an "other insurance" clause that deprived the refinery of any right to recover more than it had already obtained from settlement agreements with other insurance companies. Because it had already recovered fully for the cleanup costs of the site at issue from settlements with its other insurers, the policies barred the refinery from any further recovery from the insurance company.RSR Corp. v. International Insurance Co., No. 09-10405, 40 ELR 20195 (5th Cir. July 26, 2010).

ESA, NEPA:

A district court dismissed various parties' NEPA and ESA claims against the FWS and the U.S. Army Corps of Engineers in connection with operations at the southernmost dam in the Apalachicola-Chattahoochee-Flint river basin system. The FWS' biological opinion contained incidental take statements for the Gulf sturgeon, purple bankclimber mussel, and fat threeridge mussel. Although the parties may have disagreed with the FWS' conclusions, the incidental take statements were supported by the record and are not arbitrary and capricious. Nor did the Corps' and the FWS' focus on the interim operations plan improperly "segment" the Corps' basinwide actions in violation of the ESA. And the NEPA claims concerning the interim operations plan are prudentially moot. It makes little practical sense for the Corps to dedicate its limited resources to developing an EIS for a plan that is destined to be replaced within two years.In re Tri-State Water Rights Litigation, No. 3:07-md-01, 40 ELR 20204 (M.D. Fla. July 21, 2010) (Magnuson, J.).

CWA, CONFINED ANIMAL FEEDING OPERATIONS:

A district court held that an "integrator" that contracts with farmers to raise its chickens may be held liable under the CWA. An environmental group filed suit against a farm and an integrator, alleging CWA violations stemming from the discharge of poultry manure from the farm's confined animal feeding operation (CAFO) to U.S. waters. The integrator argued that it cannot be a defendant because it was not required to obtain a discharge permit. But having a permit is not the basis of an integrator’s potential liability. Rather, an integrator's liability is determined on the basis of its level of control over their contractors' chicken operations. Here, the groups allege that the integrator owns the chickens and provides all of the feed, fuel, litter, medications, vaccinations and other supplies necessary for the CAFO to grow the chickens; that it dictates the aspects of care for the chickens such as the type of buildings, equipment, and other facilities used in the operation; and that it makes periodic site visits to ensure compliance with its dictates. Because these allegations are not conclusory and are sufficient to state a plausible claim against the integrator at the motion to dismiss stage, the motion to dismiss was denied. In addition, the groups have sufficiently pleaded an ongoing violation, and the complaint raises a reasonable inference that the CAFO is the source of the pollutants discovered.Assateague Coastkeeper v. Alan & Kristen Hudson Farm, No. WMN-10-cv-0487, 40 ELR 20208 (D. Md. July 21, 2010) (Nickerson, J.).

ESA, CANADA LYNX:

A district court held that the FWS' revised designation of critical habitat for the contiguous U.S. distinct population segment of the Canada lynx violated the ESA. The designation identified approximately 39,000 square miles of habitat in Maine, Minnesota, Montana, Wyoming, Idaho, and Washington and consists solely of geographic areas occupied by lynx with the necessary physical and biological features essential to its conservation. But the FWS failed to determine whether areas occupied by lynx in Colorado possess the physical or biological features essential to the conservation of the species. It also improperly and arbitrarily excluded areas occupied by lynx in Idaho and Montana when it considered the absence of reproductive proof but did not consider the actual physical and biological features of the areas.Alliance for the Wild Rockies v. Lyder, No. CV 09-73-M-DWM, 40 ELR 20206 (D. Mont. July 28, 2010) (Molloy, J.).

LAND USE, WETLANDS:

A Connecticut appellate court upheld a local wetlands commission decision denying a developer's application to construct 221 residential housing units, a golf course, a roadway network, associated structures, and infrastructure improvements on a 934-acre piece of property. The land contains 114.5 acres of wetlands. The developer argued that the denial should be reversed because the commission improperly exercised jurisdiction over activities not occurring within a wetland or watercourse or within 100 feet of a wetland or watercourse and over impacts to species. But the commission found regulated activities within the 100 foot upland review area that impacted wetlands and watercourses. This is sufficient for the commission to have jurisdiction under the Inland Wetlands and Watercourses Act. Nor did the commission improperly exercise jurisdiction over impacts to species. There was substantial evidence in the record that the loss of wood frogs would have a negative consequential effect on the physical characteristics of the wetlands, which falls squarely within the commission’s jurisdiction. In addition, the commission’s denial of the application, as well as its finding that the developer had not sufficiently established the absence of prudent and feasible alternative uses for the property, was supported by the evidence.River Sound Development, LLC v. Inland Wetlands & Watercourses Commission of Old Saybrook, No. AC 30042, 40 ELR 20205 (Conn. App. Ct. July 27, 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 supplemented its July 7, 2010, proposed confidentiality determinations for data required under the Mandatory Greenhouse Gas Reporting Rule.75 FR 43889(7/27/10).
  • EPA announced that technical amendments to California's Low Emission Vehicle program concerning test procedures and label requirements fall within the scope of previous waivers of exemption.75 FR 44948(7/30/10).
  • EPA proposed to approve the redesignation of the Las Vegas Valley nonattainment area in Nevada to attainment for the carbon monoxide NAAQS.75 FR 44734(7/29/10).
  • EPA determined that the Fort Hall Indian Reservation moderate nonattainment area in Idaho has attained the 24-hour particulate matter NAAQS.75 FR 44142(7/28/10).
  • SIP Approvals:Arizona (opacity standards)75 FR 44141(7/28/10). California (nitrogen oxide (NOx) emissions for the South Coast air quality management district)75 FR 46845(8/4/10). Kentucky (attainment of the 1997 eight-hour ozone NAAQS for the tri-state Cincinnati-Hamilton nonattainment area)75 FR 47218(8/5/10). Minnesota (sulfur dioxide (SO2) emissions)75 FR 45480(8/3/10). Nevada (attainment of particulate matter (PM10) NAAQS for the Las Vegas Valley nonattainment area)75 FR 45485(8/3/10). New Jersey (reasonably available control technology and measures for NAAQS)75 FR 45483(8/3/10). New York/New Jersey (transportation conformity requirements)75 FR 45057(8/2/10).
  • SIP Proposals:California (NOx emissions for the San Joaquin Valley unified air pollution control district)75 FR 45080(8/2/10); (limited approval of NOx revisions for the Santa Barbara County air pollution control district)75 FR 45082(8/2/10); (NOx emissions for the South Coast air quality management district; see above for direct final rule)75 FR 46880(8/4/10). Minnesota (SO2 emissions; see above for direct final rule)75 FR 45568(8/3/10). New Mexico (transport of pollution)75 FR 44731(7/29/10). New York (PSD and nonattainment new source review regulations)75 FR 43892(7/27/10). Nevada (attainment of PM10 NAAQS for the Las Vegas Valley nonattainment area; see above for direct final rule)75 FR 45571(8/3/10). New York/New Jersey/Connecticut (attainment of the 1997 fine particulate matter NAAQS for the NY-NJ-CT nonattainment area)75 FR 45076(8/2/10). Rhode Island (attainment of the 1997 eight-hour ozone NAAQS for the Providence moderate nonattainment area)75 FR 44179(7/28/10). Tennessee (attainment of the 1997 eight-hour ozone NAAQS for the Knoxville nonattainment area)75 FR 45568(8/3/10).

ENERGY:

  • EPA announced the availability of its proposed life-cycle analysis of canola oil biodiesel under the Renewable Fuel Standard program.75 FR 43522(7/26/10).

HAZARDOUS & SOLID WASTE:

  • EPA proposed to extend the compliance date for spill prevention, control, and countermeasure requirements until November 10, 2011.75 FR 45572(8/3/10).
  • EPA seeks public comment on a list of 13 proposed acute exposure guideline levels for hazardous substances.75 FR 44249(7/28/10).
  • EPA approved revisions to Washington's hazardous waste management program.75 FR 44144(7/28/10).
  • EPA approved revisions to New York's hazardous waste management program.75 FR 45489(8/3/10).
  • EPA approved revisions to Rhode Island's hazardous waste management program.75 FR 43409(7/26/10).
  • EPA approved revisions to Louisiana's hazardous waste management program.75 FR 47223(8/5/10).
  • EPA proposed to approve revisions to Louisiana's hazardous waste management program; see above for direct final rule.75 FR 47256(8/5/10).
  • EPA proposed to approve revisions to Rhode Island's hazardous waste management program; see above for direct final rule.75 FR 43478(7/26/10).
  • EPA proposed to approve revisions to New York's hazardous waste management program; see above for direct final rule.75 FR 45583(8/3/10).
  • EPA entered into a proposed administrative settlement under CERCLA that requires the settling party to pay certain U.S. response costs incurred at the Turnpike Dump No. 5 Superfund site in Jersey City, New Jersey.75 FR 44250,75 FR 44251(7/28/10).

MINING:

  • OSM proposed to approve an amendment to Pennsylvania's regulatory program under SMCRA concerning required program revisions and the remining financial guarantee program.75 FR 46877(8/4/10).
  • OSM proposed to approve revisions to Montana's regulatory program under SMCRA that would exempt certain facilities from the 10-year revegetation responsibility period.75 FR 43476(7/26/10).

PESTICIDES:

  • EPA announced the availability of "Product Performance of Skin-Applied Insect Repellents of Insect and Other Arthropods Test Guidelines."75 FR 47592(8/6/10).

WILDLIFE:

  • FWS determined threatened status for five species of penguins under the ESA.75 FR 45497(8/3/10).
  • FWS determined endangered status under the ESA for the Ecuadorian black-breasted puffleg throughout its range.75 FR 43844(7/27/10).
  • FWS determined endangered status under the ESA for the Ecuadorian medium tree-finch throughout its range.75 FR 43853(7/27/10).
  • FWS announced a 90-day finding on two petitions to list the Mexican gray wolf as an endangered subspecies and to designate critical habitat under the ESA; the Agency found that listing may be warranted and initiated a status review.75 FR 46894(8/4/10).

DOJ NOTICES OF SETTLEMENT:

  • United States v. B.C.F. Oil Refining Inc., No. CV- 05-0562 (E.D.N.Y. Aug. 2, 2010). A settling CERCLA defendant must pay $1.5 million in past U.S. response costs incurred at the B.C.F. Oil Refining Superfund site in Brooklyn, New York.75 FR 47626(8/6/10).
  • United States v. Hoosier Energy Rural Electric Cooperative, Inc., No. 1:10-cv-0935-LJM-TAB (S.D. Ind. July 23, 2010). A settling CAA defendant that violated PSD and Title V permit requirements at coal-fired power plants in Indiana must pay a $950,000 civil penalty, must fund environmental projects at a cost of at least $5 million to mitigate the alleged adverse effects, and must install, upgrade, and operate certain pollution control devices at the plants through 2013.75 FR 47627(8/6/10).
  • United States v. Crosby, No. 2:10-cv-00715-BCW (D. Utah July 28, 2010). A settling CERCLA defendant must pay $100,000 in U.S. response costs incurred at the South West Assay Superfund site near Leeds, Utah.75 FR 47028(8/4/10).
  • United States v. Anacomp, Inc., No. 3:10-cv-1158 (D. Conn. July 28, 2010). Seven settling CERCLA defendants must pay $389,003 in U.S. response costs incurred at the Solvents Recovery Service of New England, Inc. Superfund site in Southington, Connecticut.75 FR 45666(8/3/10).
  • United States v. BIM Investment Corp., No. 1:10-cv-11263 (D. Mass. July 28, 2010). Settling CERCLA defendants must pay $1,431,860 in past U.S. response costs incurred at the Blackburn and Union Privileges Superfund site in Walpole, Massachusetts, must pay up to $2 million in future oversight costs, and must implement the EPA-selected remedy at the site.75 FR 45666(8/3/10).
  • United States v. Nassau Chromium Plating Co., Inc., No. CV-09-2706 (E.D.N.Y. July 28, 2010). A settling CAA defendant responsible for violations at its spray painting and chromium application facility in Mineola, New York, must pay a $4,000 civil penalty, must maintain compliance with implementing regulations, and must submit reports demonstrating such compliance for a three-year period.75 FR 45667(8/3/10).
  • United States v. Champion Chemical Co., Nos. 96cv1521 et al. (D.N.J. July 22, 2010). Settling CERCLA defendants must pay $1.4 million in U.S. response costs incurred at the Imperial Oil Company, Inc./Champion Chemical Company Superfund site in Marlboro Township, New Jersey, and must pay all proceeds from the sale of the site and from remaining insurance coverage to the United States.75 FR 44283(7/28/10).
  • United States v. PPL Electric Utilities Corp., No. 10-cv-3477 (E.D. Pa. July 15, 2010). Settling CERCLA defendants must pay $606,114.53 in past U.S. response costs incurred at the UGI Columbia Gas Plant Superfund site in Lancaster County, Pennsylvania, must pay $17,430.94 in past response costs to Pennsylvania, must pay future U.S. response costs, and must perform long-term monitoring, operation, and maintenance of the remedy for the site.75 FR 44284(7/28/10).
  • United States v. Fafard Real Estate & Development Corp., No. 10-40131 (D. Mass. July 21, 2010). Settling FWPCA defendants that discharged pollutants into stormwater at 13 facilities in Massachusetts without a permit must pay a $150,000 civil penalty, must perform a supplemental environmental project, and must implement injunctive relief to ensure compliance at all of their facilities.75 FR 43554(7/26/10).

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

THE CONGRESS

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

Public Laws:

  • S. 3372 (vessel discharge), which modifies the date on which the EPA Administrator and applicable states may require permits for discharges from certain vessels, was signed into law on July 30, 2010. Pub. Law No. 111-215, 156 Cong. Rec. D883 (daily ed. Aug. 2, 2010).

Chamber Action:

  • S. 3372 (vessel discharge), which would modify the date on which the EPA Administrator and applicable states may require permits for discharges from certain vessels, was passed by the House. 156 Cong. Rec. H6428 (daily ed. July 29, 2010).
  • H.R. 1796 (carbon monoxide), which would amend the Consumer Product Safety Act to require residential carbon monoxide detectors to meet the applicable ANSI/UL standard by treating that standard as a consumer product safety rule and encourage states to require the installation of such detectors in homes, was passed by the House. 156 Cong. Rec. H6190 (daily ed. July 28, 2010).
  • H.R. 3534 (minerals management), which would consolidate administration of various federal energy minerals management and leasing programs into one entity to be known as the Office of Federal Energy and Minerals Leasing of the DOI, was passed by the House. 156 Cong. Rec. H6493, H6498, H6555 (daily ed. July 30, 2010).
  • H.R. 4658 (federal land), which would authorize the conveyance of a small parcel of National Forest System land in the Cherokee National Forest and authorize the Secretary of Agriculture to use the proceeds from that conveyance to acquire a parcel of land for inclusion in that national forest, was passed by the House. 156 Cong. Rec. H6259 (daily ed. July 28, 2010).
  • H.R. 5156 (energy), which would provide for the establishment of a Clean Energy Technology Manufacturing and Export Assistance Fund to assist U.S. businesses with exporting clean energy technology products and services, was passed by the House. 156 Cong. Rec. H6179 (daily ed. July 28, 2010).
  • H.R. 5414 (federal land), which would provide for the conveyance of a small parcel of National Forest System land in the Francis Marion National Forest in South Carolina, was passed by the House. 156 Cong. Rec. H6485 (daily ed. July 30, 2010).
  • H.R. 5669 (federal land), which would direct the Secretary of Agriculture to convey certain federally owned land located in Story County, Iowa, was passed by the House. 156 Cong. Rec. H6260 (daily ed. July 28, 2010).

Committee Action:

  • S. 553 (federal land)was reported by the Committee on Energy and Natural Resources. S. Rep. No. 111-252, 156 Cong. Rec. S6397 (daily ed. Aug. 5, 2010). The bill would revise the authorized route of the North Country National Scenic Trail in northeastern Minnesota to include existing hiking trails along Lake Superior's north shore and in Superior National Forest and Chippewa National Forest
  • S. 1017 (federal land)was reported by the Committee on Energy and Natural Resources. S. Rep. No. 111-253, 156 Cong. Rec. S6397 (daily ed. Aug. 5, 2010). The bill would reauthorize the Cane River National Heritage Area Commission and expand the boundaries of the Cane River National Heritage Area in the state of Louisiana.
  • S. 1270(federal land)was reported by the Committee on Energy and Natural Resources. S. Rep. No. 111-256, 156 Cong. Rec. S6398 (daily ed. Aug. 5, 2010). The bill would modify the boundary of the Oregon Caves National Monument.
  • S. 1272(federal land)was reported by the Committee on Energy and Natural Resources. S. Rep. No. 111-257, 156 Cong. Rec. S6398 (daily ed. Aug. 5, 2010). The bill would provide for the designation of the Devil's Staircase Wilderness Area in the state of Oregon, and designate segments of Wasson and Franklin Creeks in the state as wild or recreation rivers.
  • S. 1311 (Gulf of Mexico) was reported by the Committee on Environment and Public Works. S. Rep. No. 111-241, 156 Cong. Rec. S6583 (daily ed. Aug. 2, 2010). The bill would amend the CWA to reestablish the Program Office of the Gulf of Mexico Program as an office of EPA.
  • S. 1719(federal land) was reported by the Committee on Environment and Public Works. S. Rep. No. 111-241, 156 Cong. Rec. S6583 (daily ed. Aug. 2, 2010). The bill would provide for the conveyance of certain parcels of land to the town of Alta, Utah.
  • S. 1787 (federal land)was reported by the Committee on Energy and Natural Resources. S. Rep. No. 111-270, 156 Cong. Rec. S6398 (daily ed. Aug. 5, 2010). The bill would to reauthorize the Federal Land Transaction Facilitation Act.
  • S. 2726(federal land)was reported by the Committee on Energy and Natural Resources. S. Rep. No. 111-260, 156 Cong. Rec. S6398 (daily ed. Aug. 5, 2010). The bill would modify the boundary of the Minuteman Missile National Historic Site in the state of South Dakota.
  • S. 3305 (oil spills)was reported by the Committee on Environment and Public Works. S. Rep. No. 111-249, 156 Cong. Rec. S6881 (daily ed. Aug. 5, 2010). The bill would amend the Oil Pollution Act of 1990 to require oil polluters to pay the full cost of oil spills.
  • S. 3515(oil spills)was reported by the Committee on Environment and Public Works. S. Rep. No. 111-242, 156 Cong. Rec. S6583-84 (daily ed. Aug. 2, 2010). The bill would authorize and enhance DOI programs relating to the detection of, response to, and mitigation and cleanup of oil spills on federal land managed by the Department.
  • S. 3516 (outer continental shelf)was reported by the Committee on Energy and Natural Resources. S. Rep. No. 111-236, 156 Cong. Rec. S6397 (daily ed. July 27, 2010). The bill would amend the Outer Continental Shelf Lands Act to reform the management of energy and mineral resources on the outer continental shelf.
  • H.R. 601 (federal land)was reported by the Committee on Energy and Natural Resources. S. Rep. No. 111-271, 156 Cong. Rec. S6882 (daily ed. Aug. 5, 2010). The bill would provide for the conveyance of parcels of land to Mantua, Utah.
  • H.R. 1043(federal land)was reported by the Committee on Energy and Natural Resources. S. Rep. No. 111-273, 156 Cong. Rec. S6882 (daily ed. Aug. 5, 2010). The bill would provide for a land exchange involving certain National Forest System lands in the Mendocino National Forest in the state of California.
  • H.R. 1796 (carbon monoxide)was reported by the Committee on Energy and Commerce. H. Rep. No. 111-573, 156 Cong. Rec. H6162 (daily ed. July 27, 2010). The bill would amend the Consumer Product Safety Act to require residential carbon monoxide detectors to meet the applicable ANSI/UL standard by treating that standard as a consumer product safety rule, and encourage states to require the installation of such detectors in homes.
  • H.R. 2008 (hydroelectric power)was reported by the Committee on Energy and Natural Resources. S. Rep. No. 111-274, 156 Cong. Rec. S6882 (daily ed. Aug. 5, 2010). The bill would authorize the Secretary of the Interior to facilitate the development of hydroelectric power on the Diamond Fork System of the Central Utah Project.
  • H.R. 2741 (water reclamation)was reported by the Committee on Energy and Natural Resources. S. Rep. No. 111-275, 156 Cong. Rec. S6882 (daily ed. Aug. 5, 2010). The bill would amend the Reclamation Wastewater and Groundwater Study and Facilities Act to authorize the Secretary of the Interior to participate in the City of Hermiston, Oregon, water recycling and reuse project.
  • H.R. 3534 (minerals management)was reported by the Committee on Natural Resources. H. Rep. No. 111-575, 156 Cong. Rec. H6282 (daily ed. July 28, 2010). The bill would consolidate administration of various federal energy minerals management and leasing programs into one entity to be known as the Office of Federal Energy and Minerals Leasing of the DOI.
  • H.R. 5626 (oil spill)was reported by the Committee on Energy and Commerce. H. Rep. No. 111-581, 156 Cong. Rec. H6402 (daily ed. July 29, 2010). The bill 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.
  • H.R. 5629 (oil spill)was reported by the Committee on Transportation and Infrastructure. H. Rep. No. 111-567, 156 Cong. Rec. H6162 (daily ed. July 27, 2010). The bill would 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.
  • H. Res. 1574 (minerals management)was reported by the Committee on Natural Resources. H. Rep. No. 111-582, 156 Cong. Rec. H6402 (daily ed. July 29, 2010). The bill would provide for consideration ofH.R. 3534.

Bills Introduced:

  • S. 3643 (McConnell, R-Ky.) (oil spill) would amend the Outer Continental Shelf Lands Act to reform the management of energy and mineral resources on the outer continental shelf, improve oil spill compensation, and terminate the moratorium on deepwater drilling. 156 Cong. Rec. S6244 (daily ed. July 26, 2010).
  • S. 3648 (Dorgan, D-N.D.) (Pick-Sloan Program)would establish a commission to conduct a study and provide recommendations on a comprehensive resolution of impacts caused to certain Indian tribes by the Pick-Sloan Program. 156 Cong. Rec. S6245 (daily ed. July 26, 2010). The bill was referred to the Committee on Indian Affairs.
  • S. 3655 (Johanns, R-Neb.) (climate)would bar the Senate from considering any conference report or other legislation that originates in the House of Representatives as a message, bill, amendment, or motion, or any Senate bill or related conference report to which the House of Representatives added a provision, that addresses climate change through the inclusion of a cap-and-trade program if the Senate has not considered and approved a bill addressing climate change that included such a cap-and-trade program.156 Cong. Rec. S6302 (daily ed. July 27, 2010). The bill was referred to the Committee on Rules and Administration.
  • S. 3661 (Lautenberg, D-N.J.) (oil spill) would amend the Federal Water Pollution Control Act to ensure the safe and proper use of dispersants in the event of an oil spill or release of hazardous substances. 156 Cong. Rec. S6397 (daily ed. July 30, 2010). The bill was referred to the Committee on Environment and Public Works.
  • S. 3670 (Specter, D-Pa.) (toxic substances)would establish standards limiting the amounts of arsenic and lead contained in glass beads used in pavement markings. 156 Cong. Rec. S6520 (daily ed. July 29, 2010). The bill was referred to the Committee on Environment and Public Works.
  • S. 3682 (Kohl, D-Wis.) (federal land)would establish the Fox-Wisconsin Heritage Parkway National Heritage Area. 156 Cong. Rec. S6584 (daily ed. Aug. 2, 2010). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 3687 (Nelson, D-Fla.) (deep water drilling)would provide royalty relief. 156 Cong. Rec. S6584 (daily ed. Aug. 2, 2010). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 3699 (Vitter, R-La.) (climate)would prohibit the regulation of carbon dioxide emissions in the United States until China, India, and Russia implement similar reductions. 156 Cong. Rec. S6736 (daily ed. Aug. 4, 2010). The bill was referred to the Committee on Environment and Public Works.
  • S. 3714 (Conrad, D-N.D.) (coal)would amend the Internal Revenue Code of 1986 to provide tax incentives for clean coal technology. 156 Cong. Rec. S6883 (daily ed. Aug. 5, 2010). The bill was referred to the Committee on Finance.
  • S. 3715 (Stabenow, D-Mich.) (tax incentives) would amend the Internal Revenue Code of 1986 to modify certain tax incentives for alternative vehicles and establish a battery insurance program within the DOE. 156 Cong. Rec. S6883 (daily ed. Aug. 5, 2010). The bill was referred to the Committee on Finance.
  • S. 3716 (Gillibrand, D-N.Y.) (mechanical insulation) would amend the Internal Revenue Code of 1986 to provide a tax incentive for the installation and maintenance of mechanical insulation property. 156 Cong. Rec. S6883 (daily ed. Aug. 5, 2010). The bill was referred to the Committee on Finance.
  • S. 3735 (Lincoln, D-Ark.) (pesticides) would amend FIFRA to improve the use of certain registered pesticides. 156 Cong. Rec. S6883 (daily ed. Aug. 5, 2010). The bill was referred to the Committee on Agriculture, Nutrition, and Forestry.
  • S. 3736 (Inhofe, R-Okla.) (ethanol) would amend the CAA to allow states to opt out of the corn ethanol portions of the renewable fuel standard. 156 Cong. Rec. S6883 (daily ed. Aug. 5, 2010). The bill was referred to the Committee on Environment and Public Works.
  • S. 3738 (Kerry, D-Mass.) (tax incentives)would amend the Internal Revenue Code of 1986 to provide incentives for clean energy manufacturing to reduce emissions, to produce renewable energy, to promote conservation. 156 Cong. Rec. S6883 (daily ed. Aug. 5, 2010). The bill was referred to the Committee on Finance.
  • S. 3750 (Brown, D-Ohio) (coastal monitoring) would amend the Federal Water Pollution Control Act to include certain inland lakes within a coastal water monitoring and grant program. 156 Cong. Rec. S6884 (daily ed. Aug. 5, 2010). The bill was referred to the Committee on Environment and Public Works.
  • S. 3762 (Reid, D-Nev.) (federal land)would reinstate funds to the Federal Land Disposal Account. 156 Cong. Rec. S6884 (daily ed. Aug. 5, 2010). The bill was read the first time.
  • S.3763 (Landrieu, D-La.) (oil spill)would improve safety and preparedness surrounding offshore energy production and to respond to the blowout and explosion of the mobile offshore drilling unit Deepwater Horizon that occurred on April 20, 2010, and resulting hydrocarbon releases into the environment. 156 Cong. Rec. S6884 (daily ed. Aug. 5, 2010). The bill was referred to the Committee on Natural Resources.
  • H.R. 5780 (Peters, D-Mich.) (energy)would remove federal subsidies for oil recovery and production; direct the Secretary of Energy to discontinue efforts to obtain a license to construct a high-level nuclear waste geologic repository at Yucca Mountain, Nevada; and direct the Secretary to sell power generating assets working with the Southeastern Power Administration. 156 Cong. Rec. H5818 (daily ed. July 23, 2010). The bill was referred to the Committees on Energy and Commerce, Natural Resources, Ways and Means, Transportation and Infrastructure, and Science and Technology.
  • H.R. 5851 (George Miller, D-Calif.) (oil spill)would provide whistleblower protections to certain offshore gas and oil workers. 156 Cong. Rec. H6042 (daily ed. July 26, 2010). The bill was referred to the Committee on Education and Labor.
  • H.R. 5856 (Doggett, D-Tex.) (waste-to-energy)would amend the Internal Revenue Code of 1986 to provide for an investment tax credit for waste-to-energy facilities. 156 Cong. Rec. H6042 (daily ed. July 26, 2010) The bill was referred to the Committee on Ways and Means.
  • H.R. 5863 (Polis, D-Colo.) (offshore drilling)would amend the Outer Continental Shelf Lands Act with regard to oversight and judicial review in connection with offshore oil production and exploration. 156 Cong. Rec. H6042 (daily ed. July 26, 2010) The bill was referred to the Committee on Natural Resources.
  • H.R. 5866 (Gordon, D-Tenn.) (nuclear power)would to amend the Energy Policy Act of 2005 to require the Secretary of Energy to carry out initiatives to advance innovation in nuclear energy technologies, make nuclear energy systems more competitive, and increase efficiency and safety of civilian nuclear power. 156 Cong. Rec. H6162 (daily ed. July 27, 2010). The bill was referred to the Committee on Science and Technology.
  • H.R. 5876 (Bishop, D-N.Y.) (watershed)would amend the Federal Water Pollution Control Act to reauthorize and improve activities for the protection of the Long Island Sound watershed. 156 Cong. Rec. H6163 (daily ed. July 27, 2010). The bill was referred to the Committee on Transportation and Infrastructure and the Committee on the Budget.
  • H.R. 5883 (Inslee, D-Wash.) (renewable electricity)would attempt to spur rapid and sustainable growth in renewable electricity generation in the United States through priority interconnection and renewable energy payments. 156 Cong. Rec. H6163 (daily ed. July 27, 2010). The bill was referred to the Committees on Energy and Commerce, Science and Technology, and Ways and Means.
  • H.R. 5887 (Lowey, D-N.Y.) (hazardous substances)would amend the Federal Hazardous Substances Act to require the inclusion of warning labels on Internet and catalogue advertising of certain toys and games. 156 Cong. Rec. H6163 (daily ed. July 27, 2010). The bill was referred to the Committee on Energy and Commerce.
  • H.R. 5892 (Oberstar, D-Minn.) (water)would provide for the conservation and development of water and related resources and authorize the Secretary of the Army to construct various projects for improvements to rivers and harbors of the United States. 156 Cong. Rec. H6282 (daily ed. July 28, 2010). The bill was referred to the Committee on Transportation and Infrastructure.
  • H.R. 5899 (Nunes, R-Calif.) (energy)would expand domestic fossil fuel production, develop more nuclear power, and expand renewable electricity. 156 Cong. Rec. H6282 (daily ed. July 28, 2010). The bill was referred to the Committees on Natural Resources, Energy and Commerce, Ways and Means, Oversight and Government Reform, Armed Services, and Transportation and Infrastructure.
  • H.R. 5911 (Markey, D-Colo.) (federal land)would modify the boundary of Rocky Mountain National Park. 156 Cong. Rec. H6283 (daily ed. July 28, 2010). The bill was referred to the Committee on Natural Resources.
  • H.R. 5992 (Young, R-Alaska) (water pollution)would amend the Federal Water Pollution Control Act to eliminate the authority of the EPA Administrator to deny or restrict the use of a defined area as a dredged or fill material disposal site. 156 Cong. Rec. H6568 (daily ed. July 30, 2010). The bill was referred to the Committee on Transportation and Infrastructure.
  • H.R. 5995 (Grijalva, D-Ariz.) (oil spill)would amend the Internal Revenue Code of 1986 to deny the trade or business expense deduction for damages paid pursuant to the Oil Pollution Act of 1990; to the Committee on Ways and Means.
  • H.R. 6028 (Edwards, D-Tex.) (endangered species)would amend the ESA to prohibit treatment of the Gray wolf as an endangered or threatened species. 156 Cong. Rec. H6569 (daily ed. July 30, 2010). The bill was referred to the Committee on Natural Resources.
  • H.R. 6035 (Holden, D-Pa.) (fuel) would amend the Internal Revenue Code of 1986 to provide an investment credit to promote the conversion of U.S. coal and domestic carbonaceous feedstocks into synthetic fuels and synthetic gas. 156 Cong. Rec. H6569 (daily ed. July 30, 2010). The bill was referred to the Committee on Ways and Means.
  • H.R. 6051 (Markey, D-Mass.) (oil spill)would prohibit the Secretary of the Interior from issuing any new lease that authorizes the production of oil or natural gas under the Outer Continental Shelf Lands Act to a person that does not renegotiate existing leases held by the person to incorporate limitations on royalty relief based on market price that are equal to or less than price thresholds that apply to other leases under that Act. 156 Cong. Rec. H6570 (daily ed. July 30, 2010). The bill was referred to the Committee on Natural Resources.
  • H.R. 6067 (Linda Sanchez, D-Calif.) (coal)would increase by $25 million the funding available for individual development accounts for each of fiscal years 2011 and 2012, and amend the Internal Revenue Code of 1986 to eliminate the domestic production deduction for coal and other hard mineral fossil fuels. 156 Cong. Rec. H6570 (daily ed. July 30, 2010). The bill was referred to the Committee on Ways and Means.
  • H.R. 6075 (Tierney, D-Mass.) (fisheries)would amend the Magnuson-Stevens Fishery Conservation and Management Act to require payment of costs, fees, and expenses incurred by certain prevailing parties in proceedings under such Act from sums received as fines, penalties, and forfeitures. 156 Cong. Rec. H6571 (daily ed. July 30, 2010). The bill was referred to the Committee on Natural Resources.
  • H.R. 6077 (Whitfield, R-Ky.) (energy)would amend the Energy Policy Act of 2005 to clarify policies regarding ownership of pore space. 156 Cong. Rec. H6571 (daily ed. July 30, 2010). The bill was referred to the Committee on Natural Resources.

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:

AlabamaArizonaCaliforniaDistrict of ColumbiaIdahoIndianaLouisianaMaineMinnesotaMissouriMontanaNevadaNew MexicoNew YorkNorth CarolinaOregonVirginiaWashingtonWisconsin  

ALABAMA

Hazardous & Solid Waste:

Water:

Wildlife:

ARIZONA

General:

  • An executive order of Governor Brewer created a new Climate Change Oversight Group, staffed and coordinated by the Department of Environmental Quality, tasked with monitoring Arizona's participation in the Western Climate Initiative and any potential cap-and-trade initiatives. The executive order also mandated that, in consultation with the Department of Environmental Quality, all state agencies must purchase vehicles that meet fuel and emissions requirements with the goal that by January 2012 all state owned vehicles will be hybrids, meet low-greenhouse gas (GHG) emission standards, or use low-GHG alternative fuels. Seehttp://www.azsos.gov/public_services/Register/2010/31/governor.pdf(pp. 1424-26).

CALIFORNIA

Land Use:

  • The Department of Forestry and Fire Protection proposed to amend Calif. Code Regs. tit. 14, §898.2, which governs conditions requiring disapproval of timber harvesting plans. Changes would require disapproval of a plan that would result in adverse slope stability impacts, which could affect the health and safety of the public as determined by the California Geological Survey. The written comment period ends September 7, 2010. Seehttp://www.oal.ca.gov/res/docs/pdf/notice/30z-2010.pdf(pp. 1113-15).

Hazardous & Solid Waste:

  • The Department of Toxic Substances Control proposed to amend Calif. Code Regs. tit. 22, division 4.5, chapter 14, article 6, pertaining to water quality monitoring for hazardous waste disposal units. The department intends the changes to provide regulatory flexibility in meeting requirements that may not be feasible. The comment period ends September 15, 2010. Seehttp://www.oal.ca.gov/res/docs/pdf/notice/31z-2010.pdf(pp. 1170-74).

Toxic Substances

  • The Office of Health Hazard Assessment proposed to establish a regulatory "no significant risk level" for the carcinogens glycidol and trinitrotoluene pursuant to Proposition 65. The comment period ends September 13, 2010. Seehttp://www.oal.ca.gov/res/docs/pdf/notice/31z-2010.pdf(pp. 1174-79).

DISTRICT OF COLUMBIA

Air:

  • The Department of the Environment seeks public comment on a proposed SIP revision for regional haze. The District has until January 15, 2011, to submit its SIP under the Regional Haze Rule. The SIP also addresses the determination of the Benning Road Generating Station for best available retrofit technology. The hearing will be on August 30, 2010. Seehttp://newsroom.dc.gov/show.aspx/agency/os/section/37/release/20232/year/2010(p. 6422).

IDAHO

Water:

INDIANA

Hazardous & Solid Waste:

LOUISIANA

Air:

  • The Department of Environmental Quality amended La. Admin. Code tit. 33:III §2131, Gasoline Handling. The updated regulation mirrors the corresponding federal regulation and alters Louisiana's SIP. Seehttp://www.doa.la.gov/osr/reg/1007/1007.pdf(pp. 1534-35).
  • The Department of Environmental Quality amended La. Admin. Code tit. 33:III §317, regarding regulatory permits for concrete manufacturing facilities. Seehttp://www.doa.la.gov/osr/reg/1007/1007.pdf(pp. 1540-42).

MAINE

Toxic Substances:

  • The Department of Environmental Protection proposed to adopt Ch. 882, which would designate bisphenol A as a priority chemical in children's products. The regulation would require manufacturers of childcare items and food sold in packaging containing bisphenol A to report on chemical usage and known alternatives. It would also ban the sale of food in packaging containing bisphenol starting January 1, 2012. The deadline for comments is August 26, 2010, and there will be a public hearing on August 19. Seehttp://www.maine.gov/sos/cec/rules/notices/2010/072810.html.

MINNESOTA

Hazardous & Solid Waste:

  • The Pollution Control Agency seeks public comment on possible amendments to rules governing the siting, design, and operation of yard and solid waste compost facilities. Changes would authorize and regulate the operation of a compost facility that accepts source-separated food waste, yard waste, and other source-separated bulking agents such as nonrecyclable paper. The public comment period ends August 31, 2010. Seehttp://www.comm.media.state.mn.us/bookstore/stateregister/35_04.pdf(pp. 106-07).

Water:

  • The Pollution Control Agency seeks public comment on planned amendment to rules governing wastewater and stormwater treatment assistance. Changes would amend Minn. Code. Reg. §116.182, subdiv. 5, to enhance the ability of stormwater projects to receive financial assistance. Seehttp://www.comm.media.state.mn.us/bookstore/stateregister/35_05.pdf(pp. 143-44).

MISSOURI

Air:

MONTANA

Land Use:

Water:

NEVADA

General:

  • The State Public Works Board proposed to amend Nev. Admin. Code §341, relating to capital improvement projects. New regulations would mandate that certain buildings achieve certain levels of water and energy efficiency and require that contractors recycle at least 50 percent of solid waste generated by the project. Seehttp://www.leg.state.nv.us/register/2009Register/R207-09P.pdf.

Air:

  • The State Environmental Commission repealed Nev. Admin. Code §445B, the Nevada Clean Air Mercury Rule Program. Seehttp://www.leg.state.nv.us/register/2010Register/R040-10A.pdf.
  • The State Environmental Commission proposed to amend Nev. Admin. Code § 445B, relating to air pollution. Changes would revise the definition of “stationary source” to include special mobile equipment, and revise certain provisions concerning the measurement of maximum heat input for the purpose of determining the effects of a Class I source on the quality of ambient air, in addition to other changes. Seehttp://www.leg.state.nv.us/register/2010Register/R126-10P.pdf.

Energy:

  • The State Environmental Commission adopted amendments to Nev. Admin. Code §486A, altering the definitions and regulations of fuels classified as "alternative" or "clean." The amendments clarified the requirement that at least 90 percent of new vehicles acquired or replaced by the operator of a fleet consist of clean vehicles, hybrid electric vehicles, or motor vehicles that are capable of using alternative fuel, and redefined various types of alternative fuel. Seehttp://www.leg.state.nv.us/register/2010Register/R022-10A.pdf.
  • The Public Utilities Commission adopted a new regulation under Nev. Admin. Code §704 prescribing the requirements for electric utilities to recover certain amounts based on the measurable and verifiable effects of the implementation of energy efficiency and conservation programs approved by the Commission. Seehttp://www.leg.state.nv.us/register/2010Register/R042-10A.pdf.

Water:

  • The State Environmental Commission amended Nev. Admin. Code § 445A, which governs public water systems. Among other changes, all public water systems using solely groundwater will now be subject to a sanitary survey at least once a year. Seehttp://www.leg.state.nv.us/register/2010Register/R061-10A.pdf.

NEW MEXICO

Land Use:

  • The Energy, Minerals and Natural Resources Department adopted amendments to N.M. Code R. §19.1.3, pertaining to the administration of the Natural Heritage Conservation Act. Changes establish application and selection procedures for conservation projects that may receive grants from the natural heritage conservation fund. Seehttp://www.nmcpr.state.nm.us/nmregister/xxi/xxi14/19.1.3new.pdf.

NEW YORK

Air:

  • The Department of Environmental Conservation proposed amendments to N.Y. Comp. Codes R. & Regs. tit. 6, §217, ending the Transient Emissions Short Test program and updating the vehicle inspection program. The test program is specific to nine counties, while the vehicle inspection program is statewide. In addition to other inspection criteria updates, the department proposed the addition of new requirements that a vehicle fail inspection if it was tampered with by the installation of aftermarket parts. There will be a public hearing on September 7, 2010, and the comment period ends September 15. Seehttp://www.dos.state.ny.us/info/register/2010/aug4/pdfs/rules.pdf(pp. 16-20).
  • The Department of Environmental Conservation proposed amendments to N.Y. Comp. Codes R. & Regs. tit. 6, §§200 and 218, to incorporate California's changes in GHG emission requirements for cars. There will be a public hearing on September 7, 2010, and the comment period ends September 15. Seehttp://www.dos.state.ny.us/info/register/2010/aug4/pdfs/rules.pdf(pp. 21-24).

Wildlife:

NORTH CAROLINA

Air:

Energy:

  • The Department of Environment and Natural Resources proposed an amendment to 15A N.C. Admin. Code §07H .0106. Changes would add definitions and regulations for wind energy facilities to the Coastal Resource Commission's permitting process. The comment period ends October 1, 2010, and the proposed effective date is December 1. Seehttp://www.ncoah.com/rules/register/Volume25Issue3August22010.pdf(pp. 212-28).

Hazardous & Solid Waste:

  • The Department of Environment and Natural Resources proposed to amend 15A N.C. Admin. Code §13A .0108, relating to hazardous waste transporter facilities. Among other changes, amendments deal with increase and decrease in "sensitive land use" and new requirements for emergency preparedness. There will be a public hearing on August 17, 2010, and the comment period ends October 1. The proposed effective date is January 1, 2011. Seehttp://www.ncoah.com/rules/register/Volume25Issue3August22010.pdf(pp. 266-72).

OREGON

Energy:

  • The Department of Energy proposed amending Or. Admin. R. 330-170 and 330-070, which governs the Biomass Producer or Collector Tax Credit program. Changes would implement the new requirement that tax credits be certified and determine the minimum discount value for transfer credits. The comment period closes August 23, 2010. Seehttp://arcweb.sos.state.or.us/rules/August_2010_Bulletin.pdf(p. 16).
  • The Department of Energy proposed amending Or. Admin. R. 330-090 to set standards for state agencies in comparison of fuel cell power systems to other equipment options in new construction projects. The rules are intended to implement the provisions of HB 3680, which include the creation of a monetary cap on renewable energy facility precertification. The comment period closes September 16, 2010. Seehttp://arcweb.sos.state.or.us/rules/August_2010_Bulletin.pdf(p. 16).

Wildlife:

  • The Department of Fish and Wildlife proposed to adopt Or. Admin. R. 635-001-0070, which would allow department staff to represent the agency in certain wildlife related contested cases. The comment period closes September 2, 2010. Seehttp://arcweb.sos.state.or.us/rules/August_2010_Bulletin.pdf(p. 17).

VIRGINIA

Energy:

  • The Department of Environmental Quality proposed the adoption of 9 Va. Admin. Code §15-50, establishing a permit by rule for offshore wind projects, and the adoption of 9 Va. Admin. Code §15-60, which would establish a permit for small solar projects. The public comment period for both ends September 1, 2010. Seehttp://legis.state.va.us/codecomm/register/vol26/iss24/v26i24.pdf(p. 2783).

WASHINGTON

Water:

  • The Department of Ecology proposed to amend Wash. Admin. Code 173-152, which establishes the framework under which the department can provide for the organization of its work, prioritize basins to be assessed, conduct basin assessments, prioritize investigations of water right applications by geographic areas, and establish criteria for priority processing of applications for new water rights. Changes alter priority processing and identify how the Department will determine water rights in compliance with recent state legislation. There will be a hearing on August 10, and the intended date of adoption is November 19. Seehttp://apps.leg.wa.gov/documents/laws/wsr/2010/14/10-14-113.htm.

WISCONSIN

Hazardous & Solid Waste:

  • The Department of Natural Resources adopted an emergency amendment to Wis. Admin. Code NR §660.10, pertaining to hazardous waste management. The rule establishes the definition of "small" and "large" quantity generators. Seehttp://www.legis.state.wi.us/rsb/code/register/reg655b.pdf(p. 12).

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

INTERNATIONAL

CHEVRON SEEKS INTERNATIONAL ARBITRATION OVER ECUADOR POLLUTION

Chevron sought international arbitration rather than proceed before an Ecuador court over extensive environmental damage caused by Texaco operations. Residents and farmers, who are seeking $27.4 billion, accused Texaco, purchased by Chevron in 2001, of discharging some 18 billion gallons of toxic water into the rainforest. Lawyers for plaintiffs wanted the company to be tried in the town of Lago Agrio and said that the company's desire for arbitration was"inconsistent fundamentally with the commitment [Chevron] repeatedly made" to let Ecuador's courts exercise jurisdiction. Randy Mastro, attorney for Chevron, said that it was the responsibility of the state-owned Petroecuador, a former partner, to handle cleanup and remedial costs. In a motion filed last week, Chevron alleged that raw footage from the documentary "Crude," obtained by a subpoena, showed plaintiff lawyer Steven Donziger attempting to influence the 2007 damage report. Plaintiffs lawyer Ilann Maezel countered, "the case against Chevron in Ecuador is overwhelming." For the full story on arbitration, seehttp://www.reuters.com/article/idUSTRE67448K20100805?type=GCA-GreenBusiness. For the story on the outtakes, seehttp://www.law.com/jsp/article.jsp?id=1202464324325&Documentary_Outtakes_Show_Fraud
_by_Plaintiffs_Chevron_Claims
.

CHINESE CLEAN ENERGY DEVELOPERS CRITICIZE U.N. RULINGS

After the Executive Board of the United Nation's Clean Development Mechanism denied financing for "sub-prime carbon" projects at a meeting late last month, 19 developers of wind and hydropower projects in China criticized the Board because they had "changed the rules." A number of Chinese projects have fallen under fire for exploiting the mechanism to sell carbon offsets for actions that do little to reduce emissions, and the Board stripped 10 wind farms of financing last year. Without mechanism financing, the developers said, the power projects were no longer viable. For the full story, seehttp://www.reuters.com/article/idUSTRE6751BC20100806?type=GCA-GreenBusiness.

SOUTH AFRICAN TREASURY READIES FOR CARBON TAX

South Africa Treasury spokesman Jabulani Sikhakhane estimated that the September 1 introduction of a carbon tax on vehicles will earn South Africa R450 million in the 2010/11 fiscal year. South Africa was the 18th largest national emitter of carbon dioxide (CO2) from fuel combustion in 2007, and Sikhakhane said that this is part of the government's plan to use environmental taxes to encourage sustainable economic growth. The tax, which will be collected from vehicle manufacturers and importers, will be based on vehicles' fuel use and CO2 emissions, and will favor smaller and more efficient engines. The tax has fallen under criticism by Toyota South Africa Motors, the best-selling brand in the nation, as it taxes people that drive different amounts equally. The company's president, Johan van Zyl, said the company would have preferred a fuel tax. The tax also starts at a lower fuel efficiency rate (120km per gallon) than that of other nations with a vehicle carbon tax, such as Germany. Meanwhile, the Treasury is considering the implementation of a source carbon tax, roughly R100 per ton, which would likely result in the public utility Eskom raising rates for coal power. Environmental economist Mike Goldblatt said that the utility would have to look for more carbon-efficient sources of power, but the consulting group Deloitte warned that the tax could cause a one percent decline in GDP. South Africa has set greenhouse gas emissions reduction goals of 34 percent by 2020, and 42 percent by 2025. For the vehicle tax story, seehttp://www.engineeringnews.co.za/article/green-tax-2010-08-06. For the source tax story, seehttp://allafrica.com/stories/201008020090.html.

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