Jump to Content

Weekly Update Volume 40, Issue 28

10/04/2010

LITIGATION 

NATIONAL FORESTS, LAND USE MANAGEMENT PLANS:

The Sixth Circuit held that the U.S. Forest Service failed to comply with NEPA and several of its own regulations in its 2006 management plan for the Huron-Manistee National Forests in northern Michigan. The Service's estimates of snowmobile and cross-country visitors to the forests are arbitrary. As a result, the Service violated 36 CFR §219.21(a)(2)'s requirement of a demand-supply analysis. In addition, the Service failed to comply with the requirement that it coordinate its recreational planning with that of the state of Michigan with the aim (to the extent feasible) of “reducing duplication in meeting recreation demands” with respect to gun hunting and snowmobiling. The Service's reasons for keeping pre-designation and club trails open to snowmobile use were also arbitrary. Thus, the Service violated §219.21(g)'s mandate to minimize conflicts between off-road vehicle use and other uses and interests of the forests. Lastly, the Service violated NEPA when it failed to consider whether to close "primitive" and "semiprimitive" nonmotorized areas to gun hunting and snowmobile use. Because each of these failures was material to the plan's development, the court ordered the Service to adopt a plan that complies with the law within 90 days.Meister v. U.S. Department of Agriculture, No. 09-1712, 40 ELR 20258 (6th Cir. Sept. 29, 2010).

APA, NOTICE AND COMMENT, WETLANDS:

A district court held that the U.S. Army Corps of Engineers improperly extended its jurisdiction under the CWA by enacting new legislative rules related to prior converted croplands without allowing the required public notice-and-comment period under the APA. A power company that operates its facility on a prior converted wetland argued that the new rules improperly extended the Corps' jurisdiction to situations where prior converted croplands are converted to non-agricultural use and dry lands are maintained using continuous pumping. The Corps argued that the rules are mere policy statements that are not subject to notice-and-comment requirements. But in the present action, there has been a definite shift in the Corps' substantive rules regarding what the Corps considers wetlands. Before the rules were enacted, prior converted cropland that was shifted to non-agricultural use was treated as exempt. Under the new rules, the opposite is true. Similarly, prior to the rules, continuous pumping to preserve a converted cropland's state did not impact a property's entitlement to a prior converted cropland designation. Following the rules, the opposite is true. As a result, the rules broadly extend the Corps' jurisdiction and sharply narrow the number of exempt prior converted croplands. The rules also break from the plain language of the Wetlands Delineation Manual, which is by its terms binding on the field offices. For these and other reasons, the new rules constitute new legislative and substantive rules and create a binding norm. Therefore, the rules were procedurally improper because no notice-and-comment procedures were used and they must be set aside.New Hope Power Co. v. United States Army Corps of Engineers, No. 10-22777, 40 ELR 20259 (S.D. Fla. Sept. 28, 2010) (Moore, J.).

CERCLA, STATUTE OF LIMITATIONS, ACCRUAL:

A district court dismissed as untimely the U.S. government's claim for oversight costs incurred at the Hopkins Farm Superfund site in Plumstead Township, New Jersey. CERCLA's three-year limitations period for removal actions applies because the government did not file its complaint within three years of the record of decision's issuance. Similarly, the six-year limitations period for remedial actions applies because the government did not file its complaint within six years after EPA began removing hazardous substances at the site. The government argued that its cause of action did not accrue until December 22, 2005, when the Third Circuit held that oversight costs were recoverable under CERCLA inUnited States v. E.I. Dupont de NeMours & Co., Inc., 432 F.3d 161,35 ELR 20258(3d Cir. 2005), thereby overturning its previous ruling inUnited States v. Rohm & Haas Co., 2 F.3d 1265,23 ELR 21345(3d Cir. 1993). But CERCLA provides specific accrual events for both removal and remedial claims: “after completion of the removal action” and “after initiation of physical on-site construction of the remedial action." In view of this clear statutory language, the government's argument for a non-statutory based accrual date fails. In addition, the government failed to allege facts suggesting that it is entitled to equitable tolling. Most striking is the fact that the government chose not to bring its claim immediately afterDuPontwas issued.United States v. Rohm & Haas Co., No. 09-5528, 40 ELR 20260 (D.N.J. Sept. 21, 2010) (Wolfson, J.).

CONCENTRATED ANIMAL FEEDING OPERATIONS, PERMIT MODIFICATION:

A Texas appellate court affirmed the Texas Commission on Environmental Quality's denial of a city's hearing request concerning a dairy's application for a major amendment to its concentrated animal feed operation permit. The amendment would allow the dairy to expand its dairy head capacity, increase its retention control structure capacity, and increase the number of acres used for land application of waste and wastewater. The Commission denied the hearing request after concluding that the city was not an "affected person." The city argued that it is an affected person because there is no dispute that the dairy could potentially discharge phosphorus into the watershed. The question before the Commission, however, was whether to grant the city affected person status with respect to the particular permit at issue. The permit under consideration did not seek to authorize a new dairy, but to modify the operations of an existing one—one that presumably was already discharging some amount of phosphorus into the watershed. The Commission determined that granting this permit would have an overall beneficial environmental impact and therefore would not adversely affect the city. This decision was within their discretion and was supported by substantial evidence. The court also rejected the city's claims that the Commission's decision violates notions of due process and fair play.City of Waco v. Texas Commission on Environmental Quality, No. 03-09-00005-CV, 40 ELR 20261 (Tex. App. Sept. 17, 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 to redesignate from "unclassifiable" to "nonattainment" the western half of Pinal County, Arizona, excluding tribal lands, for particulate matter NAAQS.75 FR 60680(10/1/10).
  • SIP Approvals:California (nitrogen oxide emissions for the San Joaquin Valley unified air pollution control district)75 FR 60623(10/1/10). Maryland (volatile organic compound (VOC) emissions)75 FR 59084(9/27/10); (VOC emissions)75 FR 59086(9/27/10); (VOC emissions)75 FR 59973(9/29/10). Michigan (PSD construction permit program)75 FR 59081(9/27/10). Nevada (attainment of carbon monoxide NAAQS for the Las Vegas Valley nonattainment area)75 FR 59090(9/27/10).
  • SIP Proposals:Maryland (VOC emissions; see above for direct final rule)75 FR 59179(9/27/10); (VOC emissions; see above for direct final rule)75 FR 59180(9/27/10); (VOC emissions; see above for direct final rule)75 FR 60013(9/29/10). Michigan (PSD construction permit program; see above for direct final rule75 FR 59179(9/27/10).

ENERGY:

  • EPA issued the final life-cycle greenhouse gas emissions impact analysis for canola oil biodiesel under the Renewable Fuel Standard program.75 FR 59622(9/28/10).

HAZARDOUS & SOLID WASTE:

  • EPA approved revisions to California's hazardous waste management program.75 FR 60398(9/30/10).
  • EPA granted a petition submitted by ExxonMobil Refining and Supply Company to delist a certain solid waste generated by its Beaumont, Texas, facility from the list of hazardous wastes.75 FR 60632(10/1/10).
  • EPA proposed to grant a petition submitted by ExxonMobil Refining and Supply Company to delist a certain solid waste generated by its Beaumont, Texas, facility from the list of hazardous wastes; see above for direct final rule.75 FR 60689(10/1/10).

OFFICE OF THE PRESIDENT:

  • The president proclaimed September 25, 2010, as National Public Lands Day.75 FR 60281(9/29/10).

SURFACE MINING:

  • OSM seeks public comment on a proposed amendment to improve the operational efficiency of Alabama's regulatory program under SMCRA.75 FR 60371(9/30/10).
  • OSM seeks public comment on a proposed amendment to Louisiana's regulatory program and abandoned mine land reclamation plan under SMCRA.75 FR 60373(9/30/10).
  • OSM seeks public comment on a proposed amendment to Utah's regulatory program concerning valid existing rights under SMCRA.75 FR 60375(9/30/10).

WILDLIFE:

  • FWS determined endangered status for the African penguin throughout its range under the ESA.75 FR 59645(9/28/10).
  • FWS announced a 12-month finding on a petition to list the pygmy rabbit as endangered or threatened under the ESA; the Agency found that listing is not warranted.75 FR 60516(9/30/10).
  • FWS announced its 12-month finding on whether to list the Gunnison sage-grouse as threatened or endangered under the ESA; the Agency found that listing is warranted but precluded by higher priority actions.75 FR 59804(9/28/10).
  • NOAA-Fisheries proposed to designate approximately 390 square kilometers on the California coast as critical habitat for the endangered black abalone.75 FR 59900(9/28/10).

DOJ NOTICES OF SETTLEMENT:

  • United States v. Appleton Papers Inc., No. 10-C-0828 (E.D. Wis. Sept. 22, 2010). A settling CAA defendant that violated Title V permit and industrial refrigerant leak repair, testing, recordkeeping, and reporting regulations at its paper manufacturing facilities in West Carrollton, Ohio, and Roaring Springs, Pennsylvania, must pay a $96,324 civil penalty, must comply with Title V opacity limitations, must replace industrial process refrigeration appliances containing ozone-depleting substances, and must complete a supplemental environmental project.75 FR 59746(9/28/10).
  • United States v. High Plains Resources, Inc., No. 2:09-CV-00087-ABJ (D. Wyo. Sept. 20, 2010). A settling RCRA defendant that operates a commercial oilfield waste disposal facility in Johnson County, Wyoming, must pay a $40,000 civil penalty, must implement an operation and maintenance plan to prevent endangering migratory birds and wildlife while the facility remains open, and must establish a trust fund of $206,000 to cover the cost of the eventual closure of the facility.75 FR 59292(9/27/10).

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

THE CONGRESS

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

Chamber Action

  • S. 685 (oil spills), which would require new vessels for carrying oil fuel to have double hulls, was passed by the Senate. 156 Cong. Rec. S7764 (daily ed. Sept. 29, 2010).
  • H.R. 4168 (algae-based biofuel), which would amend the Internal Revenue Code of 1986 to expand the definition of cellulosic biofuel to include algae-based biofuel for purposes of the cellulosic biofuel producer credit and the special allowance for cellulosic biofuel plant property, was passed by the House. 156 Cong. Rec. H7070 (daily ed. Sept. 28, 2010).
  • H.R. 6160 (rare earth materials), which would develop a rare earth materials program and amend the National Materials and Minerals Policy, Research and Development Act of 1980, was passed by the House. 156 Cong Rec. H7273 (daily ed. Sept. 29, 2010).

Committee Action

  • S. 349 (federal land)was reported by the Committee on Energy and Natural Resources. S. Rep. No. 111-303, 156 Cong. Rec. S7506-07 (daily ed. Sept. 27, 2010). The bill would establish the Susquehanna Gateway National Heritage Area in the state of Pennsylvania.
  • S. 679 (plug-in hybrids)was reported by the Committee on Energy and Natural Resources. S. Rep. No. 111-334, 156 Cong. Rec. S7615 (daily ed. Sept. 28, 2010). The bill would establish a research, development, demonstration, and commercial application program to promote research of appropriate technologies for heavy duty plug-in hybrid vehicles.
  • S. 745 (water reuse)was reported by the Committee on Energy and Natural Resources. S. Rep. No. 111-305, 156 Cong. Rec. S7506-07 (daily ed. Sept. 27, 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 Magna Water District water reuse and groundwater recharge project.
  • S. 1117 (watershed conservation)was reported by the Committee on Energy and Natural Resources. S. Rep. No. 111-306, 156 Cong. Rec. S7506-07 (daily ed. Sept. 27, 2010). The bill would to authorize the Secretary of the Interior to provide assistance in implementing cultural heritage, conservation, and recreational activities in the Connecticut River watershed of the states of New Hampshire and Vermont.
  • S. 1320 (Energy Star)was reported by the Committee on Energy and Natural Resources. S. Rep. No. 111-307, 156 Cong. Rec. S7506-07 (daily ed. Sept. 27, 2010). The bill would provide assistance to owners of manufactured homes constructed before January 1, 1976, to purchase Energy Star-qualified manufactured homes.
  • S. 1596 (federal land)was reported by the Committee on Energy and Natural Resources. S. Rep. No. 111-309, 156 Cong. Rec. S7506-07 (daily ed. Sept. 27, 2010). The bill would authorize the Secretary of the Interior to acquire the Gold Hill Ranch in Coloma, California.
  • S. 1689 (federal land)was reported by the Committee on Energy and Natural Resources. S. Rep. No. 111-310, 156 Cong. Rec. S7506-07 (daily ed. Sept. 27, 2010). The bill would designate certain land as components of the National Wilderness Preservation System and the National Landscape Conservation System in the state of New Mexico.
  • S. 1750 (federal land)was reported by the Committee on Energy and Natural Resources. S. Rep. No. 111-311, 156 Cong. Rec. S7506-07 (daily ed. Sept. 27, 2010). The bill would authorize the Secretary of the Interior to conduct a special resource study of the General of the Army George Catlett Marshall National Historic Site at Dodona Manor in Leesburg, Virginia.
  • S. 1816 (Chesapeake Bay)was reported by the Committee on Environment and Public Works. S. Rep. No. 111-333, 156 Cong. Rec. S7615 (daily ed. Sept. 28, 2010). The bill would amend the Federal Water Pollution Control Act to improve and reauthorize the Chesapeake Bay Program
  • S. 2052 (nuclear power)was reported by the Committee on Energy and Natural Resources. S. Rep. No. 111-312, 156 Cong. Rec. S7506-07 (daily ed. Sept. 27, 2010). The bill would amend the Energy Policy Act of 2005 to require the Secretary of Energy to carry out a research and development and demonstration program to reduce manufacturing and construction costs relating to nuclear reactors.
  • S. 2798 (National Forests)was reported by the Committee on Energy and Natural Resources. S. Rep. No. 111-313, 156 Cong. Rec. S7506-07 (daily ed. Sept. 27, 2010). The bill would reduce the risk of catastrophic wildfire through the facilitation of insect and disease infestation treatment of National Forest System and adjacent land.
  • S. 2812 (nuclear power)was reported by the Committee on Energy and Natural Resources. S. Rep. No. 111-314, 156 Cong. Rec. S7506-07 (daily ed. Sept. 27, 2010). The bill would amend the Energy Policy Act of 2005 to require the Secretary of Energy to carry out programs to develop and demonstrate two small modular nuclear reactor designs.
  • S. 2843 (DOE) was reported by the Committee on Energy and Natural Resources. S. Rep. No. 111-335, 156 Cong. Rec. S7615 (daily ed. Sept. 28, 2010). The bill would provide for a program of research, development, demonstration, and commercial application in vehicle technologies at the DOE.
  • S. 2900 (energy)was reported by the Committee on Energy and Natural Resources. S. Rep. No. 111-315, 156 Cong. Rec. S7506-07 (daily ed. Sept. 27, 2010). The bill would establish a research, development, and technology demonstration program to improve the efficiency of gas turbines used in combined cycle and simple cycle power generation systems.
  • S. 3075 (land use)was reported by the Committee on Energy and Natural Resources. S. Rep. No. 111-316, 156 Cong. Rec. S7506-07 (daily ed. Sept. 27, 2010). The bill would withdraw certain federal land and interests in that land from location, entry, and patent under the mining laws and disposition under the mineral and geothermal leasing laws.
  • S. 3313 (land use)was reported by the Committee on Energy and Natural Resources. S. Rep. No. 111-318, 156 Cong. Rec. S7506-07 (daily ed. Sept. 27, 2010). The bill would withdraw certain land located in Clark County, Nevada, from location, entry, and patent under the mining laws and disposition under all laws pertaining to mineral and geothermal leasing or mineral materials.
  • S. 3396 (Energy Star)was reported by the Committee on Energy and Natural Resources. S. Rep. No. 111-319, 156 Cong. Rec. D1013 (daily ed. Sept. 27, 2010). The bill would amend the Energy Policy and Conservation Act to establish within the DOE a Supply Star program to identify and promote practices, companies, and products that use highly efficient supply chains in a manner that conserves energy, water, and other resources.
  • S. 3404 (land use)was reported by the Committee on Energy and Natural Resources. S. Rep. No. 111-320, 156 Cong. Rec. D1013 (daily ed. Sept. 27, 2010). The bill would amend the Reclamation Projects Authorization and Adjustment Act of 1992 to require the Secretary of the Interior, acting through the Bureau of Reclamation, to take actions to improve environmental conditions in the vicinity of the Leadville Mine Drainage Tunnel in Lake County, Colorado.
  • S. 3452 (National Parks)was reported by the Committee on Energy and Natural Resources. S. Rep. No. 111-321, 156 Cong. Rec. D1013 (daily ed. Sept. 27, 2010). The bill would designate the Valles Caldera National Preserve as a unit of the National Park System.
  • S. 3460 (solar energy)was reported by the Committee on Energy and Natural Resources. S. Rep. No. 111-332, 156 Cong. Rec. D1013 (daily ed. Sept. 27, 2010). The bill would require the Secretary of Energy to provide funds to states for rebates, loans, and other incentives to eligible individuals or entities for the purchase and installation of solar energy systems for properties located in the United States.
  • S. 3495(plug-in hybrids)was reported by the Committee on Energy and Natural Resources. S. Rep. No. 111-336, 156 Cong. Rec. S7615 (daily ed. Sept. 28, 2010). The bill would to promote the deployment of plug-in electric drive vehicles.
  • H.R. 1612 (Public Land Corps Act)was reported by the Committee on Energy and Natural Resources. S. Rep. No. 111-321, 156 Cong. Rec. D1013 (daily ed. Sept. 27, 2010). The bill would amend the Public Lands Corps Act of 1993 to expand the authorization of the Secretaries of Agriculture, Commerce, and the Interior to provide conservation service opportunities.
  • H.R. 2430 (fisheries)was reported by the Committee on Energy and Natural Resources. S. Rep. No. 111-324, 156 Cong. Rec. D1013 (daily ed. Sept. 27, 2010). The bill would direct the Secretary of the Interior to continue stocking fish in certain lakes in the North Cascades National Park, Ross Lake National Recreation Area, and Lake Chelan National Recreation Area.
  • H.R. 2442 (water reclamation)was reported by the Committee on Energy and Natural Resources. S. Rep. No. 111-325, 156 Cong. Rec. D1013 (daily ed. Sept. 27, 2010). The bill would amend the Reclamation Wastewater and Groundwater Study and Facilities Act to expand the Bay Area Regional Water Recycling Program.
  • H.R. 2522 (water recycling)was reported by the Committee on Energy and Natural Resources. S. Rep. No. 111-326, 156 Cong. Rec. D1013 (daily ed. Sept. 27, 2010). The bill would raise the ceiling on the federal share of the cost of the Calleguas Municipal Water District Recycling Project.
  • H.R. 3388 (federal land) was reported by the Committee on Energy and Natural Resources. S. Rep. No. 111-327, 156 Cong. Rec. D1013 (daily ed. Sept. 27, 2010). The bill would modify the boundary of Petersburg National Battlefield in Virginia.
  • H.R. 4252 (water resources)was reported by the Committee on Energy and Natural Resources. S. Rep. No. 111-328, 156 Cong. Rec. D1013 (daily ed. Sept. 27, 2010). The bill would direct the Secretary of the Interior to conduct a study of water resources in the Rialto-Colton Basin in the state of California.
  • H.R. 4349 (hydroelectric power)was reported by the Committee on Energy and Natural Resources. S. Rep. No. 111-329, 156 Cong. Rec. D1013 (daily ed. Sept. 27, 2010). The bill would further allocate and expand the availability of hydroelectric power generated at Hoover Dam.
  • H.R. 4395 (federal land) was reported by the Committee on Energy and Natural Resources. S. Rep. No. 111-330, 156 Cong. Rec. D1013 (daily ed. Sept. 27, 2010). The bill would revise the boundaries of the Gettysburg National Military Park to include the Gettysburg Train Station.
  • H.R. 4416 (wildlife)was reported by the Committee on Natural Resources. H. Rep. No. 111-650, 156 Cong. Rec. H7388 (daily ed. Sept. 29, 2010). The bill would reauthorize the Great Ape Conservation Act.
  • H.R. 6160 (rare earth materials)was reported by the Committee on Science and Technology. H Rep. No. 111-644 (daily ed. Sept. 28, 2010). The bill would develop a rare earth materials program and amend the National Materials and Minerals Policy, Research and Development Act of 1980.

Bills Introduced

  • S. 19 (Graham, R-S.C.) (oil sands)would amend the Energy Independence and Security Act of 2007 to promote the production of petroleum from oil sands. 156 Cong. Rec. S7786 (daily ed. Sept. 29). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 20 (Graham, R-S.C.) (clean energy standard)would amend the Public Utility Regulatory Policies Act of 1978 to establish a federal clean energy standard. 156 Cong. Rec. S7786 (daily ed. Sept. 29). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 3850 (Reid, D-Nev.) (TSCA) would amend TSCA clarify the jurisdiction of EPA with respect to certain sporting good articles, and to exempt those articles from a definition under that Act. 156 Cong. Rec. S7618 (daily ed. Sept. 28, 2010). The bill was referred to the Committee on Environment and Public Works.
  • S. 3855 (Cantwell, D-Wash.) (renewable energy bonds)would amend the Internal Revenue Code of 1986 to repeal the limitation on the issuance of new clean renewable energy bonds and to terminate eligibility of governmental bodies to issue such bonds. 156 Cong. Rec. S7618 (daily ed. Sept. 28, 2010). The bill was referred to the Committee on Finance.
  • S. 3856 (Lautenberg, D-N.J.) (pipeline transportation)would amend title 49 of the U.S. Code to provide for enhanced safety and environmental protection in pipeline transportation and enhanced reliability in the transportation of the nation's energy products by pipeline. 156 Cong. Rec. S7618 (daily ed. Sept. 28, 2010). The bill was referred to the Committee on Commerce, Science, and Transportation.
  • S. 3861 (Boxer, D-Calif.) (EPA)would direct the Administrator of EPA to investigate and address cancer and disease clusters, including in infants and children. 156 Cong. Rec. S7618 (daily ed. Sept. 28, 2010). The bill was referred to the Committee on Environment and Public Works.
  • S. 3863 (Rockefeller, D-W. Va.) (federal land) would designate certain federal land within the Monongahela National Forest as a component of the National Wilderness Preservation System. 156 Cong. Rec. S7618 (daily ed. Sept. 28, 2010). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 3864 (Baucus, D-Mont.) (ESA) would remove a portion of the distinct population segment of the Rocky Mountain gray wolf from the list of threatened species or the list of endangered species published under the ESA. 156 Cong. Rec. S7618 (daily ed. Sept. 28, 2010). The bill was referred to the Committee on Environment and Public Works.
  • S. 3873 (Klobuchar, D-Minn.) (environmental safety)would provide for the establishment of a task force to address the environmental health and safety risks posed to children. 156 Cong. Rec. S7787 (daily ed. Sept. 29, 2010). The bill was referred to the Committee on Environment and Public Works.
  • S. 3874 (Boxer, D-Calif.) (SDWA) would amend the SDWA to reduce lead in drinking water. 156 Cong. Rec. S7787 (daily ed. Sept. 29, 2010). The bill was referred to the Committee on Environment and Public Works.
  • S. 3876 (Wyden, D-Or.) (alternative fuel credit)would amend the Internal Revenue Code of 1986 to extend and modify the alternative fuel vehicle refueling property credit. 156 Cong. Rec. S7787 (daily ed. Sept. 29, 2010). The bill was referred to the Committee on Finance.
  • S. 3879 (Boxer, D-Calif.) (federal land)would establish the Sacramento River National Recreation Area in the state of California. 156 Cong. Rec. S7787 (daily ed. Sept. 29, 2010). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 3904 (Brownback, R-Kan.) (groundwater)would promote sustainable groundwater management of the Ogallala Aquifer. 156 Cong. Rec. S7788 (daily ed. Sept. 29, 2010). The bill was referred to the Committee on Agriculture, Nutrition, and Forestry.
  • S. 3919 (Hatch, R-Utah) (ESA) would remove the gray wolf from the list of threatened species or the list of endangered species published under the ESA. 156 Cong. Rec. S7788 (daily ed. Sept. 29, 2010). The bill was referred to the Committee on Environment and Public Works.
  • S. 3923 (Sanders, I-Vt.) (renewable energy incentives)would amend the Public Utility Regulatory Policies Act of 1978 to clarify the authority of states to adopt renewable energy incentives. 156 Cong. Rec. S7788 (daily ed. Sept. 29, 2010). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 3925 (Bingaman, D-N.M.) (energy efficiency) would amend the Energy Policy and Conservation Act to improve the energy efficiency of, and standards applicable to, certain appliances and equipment. 156 Cong. Rec. S7788 (daily ed. Sept. 29, 2010). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 3926 (Bennet, D-Colo.) (federal land)would amend the National Trails System Act to provide for the study of the Pike National Historic Trail. 156 Cong. Rec. S7788 (daily ed. Sept. 29, 2010). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 3927 (Feinstein, D-Calif) (federal land)would establish the Sacramento-San Joaquin Delta National Heritage Area. 156 Cong. Rec. S7788 (daily ed. Sept. 29, 2010). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 3930 (Akaka, D-Haw.) (federal land) would provide for the expansion of Hakalau Forest National Wildlife Refuge, Hawaii County, Hawaii. 156 Cong. Rec. S7788 (daily ed. Sept. 29, 2010). The bill was referred to the Committee on Environment and Public Works.
  • S. 3936 (Bennet, D-Colo.) (carbon reduction)would establish a grant program in the DOE to provide grants to states and local government units to carry out clean energy and carbon reduction measures and would close oil company tax loopholes to pay for the competitive grant program. 156 Cong. Rec. S7788 (daily ed. Sept. 29, 2010). The bill was referred to the Committee on Finance.
  • H.R. 6221 (Young, R-Alaska) (federal land)would authorize the Secretary of the Interior to issue permits for a microhydro project in nonwilderness areas within the boundaries of Denali National Park and Preserve and to acquire land for Denali National Park and Preserve from Doyon Tourism, Inc. 156 Cong. Rec. H7153 (daily ed. Sept. 28, 2010). The bill was referred to the Committee on Natural Resources.
  • H.R. 6228 (Burgess, R-Tex.) (CAA)would repeal certain amendments to the CAA relating to the expansion of the renewable fuel program. 156 Cong. Rec. H7154 (daily ed. Sept. 28, 2010). The bill was referred to the Committee on Energy and Commerce.
  • H.R. 6252 (Gene Green, R-Tex.) (e-waste)would prohibit the export of certain electronic waste from the United States. 156 Cong. Rec. H7389 (daily ed. Sept. 29, 2010). The bill was referred to the Committee on Energy and Commerce.
  • H.R. 6273 (Peterson, D-Minn.) (FIFRA; water pollution) would amend FIFRA to exempt the application of pesticides subject to that Act, when applied in conformance with that Act, from certain permit requirements under the Federal Water Pollution Control Act. 156 Cong. Rec. H7390 (daily ed. Sept. 29, 2010). The bill was referred to the Committee on Transportation and Infrastructure and the Committee on Agriculture.
  • H.R. 6276 (Shea-Porter, D-N.H.) (wildlife)would authorize the Secretary of the Interior to identify and declare wildlife disease emergencies and to coordinate rapid response to these emergencies. 156 Cong. Rec. H7390 (daily ed. Sept. 29, 2010). The bill was referred to the Committee on Natural Resources and the Committee on Agriculture
  • H.R. 6280 (Polis, D-Colo.) (federal land)would designate certain lands in the state of Colorado as components of the National Wilderness Preservation System and would designate the Red Table Mountain, Pisgah Mountain, Castle Peak, Tenmile, and Hoosier Ridge Special Management Areas. 156 Cong. Rec. H7390 (daily ed. Sept. 29, 2010). The bill was referred to the Committee on Natural Resources.
  • H.R. 6281 (Hastings, R-Wash.) (water conservation) would amend the Omnibus Public Land Management Act of 2009 to authorize the Secretary of the Interior to provide grants and enter into cooperative agreements for integrated regional water conservation plans. 156 Cong. Rec. H7390 (daily ed. Sept. 29, 2010). The bill was referred to the Committee on Natural Resources.
  • H.R. 6284 (Broun, Ga.) (EPA) would prohibit the Administrator of EPA from regulating, based on material composition, any type of firearm ammunition or fishing tackle. 156 Cong. Rec. H7390 (daily ed. Sept. 29, 2010). The bill was referred to the Committee on Energy and Commerce.
  • H.R. 6285 (Kagen, D-Wis.) (paper products) would prohibit the importation into the United States of paper products that are not manufactured in accordance with requirements that are at least as stringent as the requirements under the CAA and the Federal Water Pollution Control Act. 156 Cong. Rec. H7390 (daily ed. Sept. 29, 2010). The bill was referred to the Committee on Ways and Means.
  • H.R. 6292 (Richardson, D-Calif.) (oil spill) would improve the ability of NOAA, the Coast Guard, and coastal states to sustain healthy ocean and coastal ecosystems by maintaining and sustaining their capabilities relating to oil spill preparedness, prevention, response, restoration, and research. 156 Cong. Rec. H7390 (daily ed. Sept. 29, 2010). The bill was referred to the Committees on Transportation and Infrastructure, Science and Technology, and Natural Resources.
  • H.R. 6316 (Boren, D-Okla.) (fisheries)would amend the Magnuson-Stevens Fishery Conservation and Management Act to mitigate the economic impact of the transition to sustainable fisheries on fishing communities. 156 Cong. Rec. H7391 (daily ed. Sept. 29, 2010). The bill was referred to the Committee on Natural Resources.
  • H.R. 6328 (Etheridge, D-N.C.) (oil refinement)would amend the Internal Revenue Code of 1986 to encourage the re-refining of used oil. 156 Cong. Rec. H7391 (daily ed. Sept. 29, 2010). The bill was referred to the Committee on Ways and Means.
  • H.R. 6329 (Garamendi, D-Calif.) (federal land)would establish the Sacramento-San Joaquin Delta National Heritage Area. 156 Cong. Rec. H7391 (daily ed. Sept. 29, 2010). The bill was referred to the Committee on Natural Resources.
  • H.R. 6333 (Graves, R-Mo.) (EPA) would prohibit, for one year, the Administrator of EPA from issuing regulations that result in increased costs for small business concerns. 156 Cong. Rec. H7391 (daily ed. Sept. 29, 2010). The bill was referred to the Committees on Energy and Commerce, Transportation and Infrastructure, and Agriculture.
  • H.R. 6335 (Heinrich, D-N.M.) (uranium mining)would amend the Mineral Leasing Act to permanently withdraw all federal lands from location and entry for uranium mining and provide for leasing of such lands under such Act for uranium mining. 156 Cong. Rec. H7391 (daily ed. Sept. 29, 2010). The bill was referred to the Committee on Natural Resources.
  • H.R. 6341 (Holden, D-Pa.) (energy conservation)would establish a loan program to promote energy conservation in rural areas. 156 Cong. Rec. H7391 (daily ed. Sept. 29, 2010). The bill was referred to the Committee on Agriculture.
  • H.R. 6342 (Holden, D-Pa.) (renewable energy)would establish pilot projects for agriculture renewable energy systems. 156 Cong. Rec. H7391 (daily ed. Sept. 29, 2010). The bill was referred to the Committee on Agriculture.
  • H.R. 6343 (Inslee, D-Wash.) (jet fuel) would authorize the Secretary of Agriculture to make loans to qualified projects for the production of renewable source jet fuel. 156 Cong. Rec. H7391 (daily ed. Sept. 29, 2010). The bill was referred to the Committee on Energy and Commerce.
  • H.R. 6344 (Inslee, D-Wash.) (hydrokinetic power) would promote the research, development, demonstration, and commercial application of marine and hydrokinetic renewable energy technologies and would identify the potential environmental impacts of these technologies and ways to address these impacts. 156 Cong. Rec. H7391 (daily ed. Sept. 29, 2010). The bill was referred to the Committee on Science and Technology.
  • H.R. 6353 (Latta, R-Ohio) (wastewater)would amend the Federal Water Pollution Control Act to assist municipalities that would experience a significant hardship raising the revenue necessary to finance projects and activities for the construction of wastewater treatment works. 156 Cong. Rec. H7392 (daily ed. Sept. 29, 2010). The bill was referred to the Committee on Transportation and Infrastructure.
  • H.R. 6360 (Maffei, D-N.Y.) (water management)would amend the Federal Water Pollution Control Act to direct the Administrator of EPA to carry out activities for the restoration, conservation, and management of Onondaga Lake, New York. 156 Cong. Rec. H7393 (daily ed. Sept. 29, 2010). The bill was referred to the Committee on Transportation and Infrastructure.
  • H.R. 6366 (Moran, R-Kan.) (federal land)would amend the National Trails System Act to designate the routes of the Shawnee Cattle Trail, the oldest of the major Texas Cattle Trails, for study for potential addition to the National Trails System,. 156 Cong. Rec. H7393 (daily ed. Sept. 29, 2010). The bill was referred to the Committee on Natural Resources.
  • H.R. 6380 (Sablan, D-N.M.I.) (federal land)would authorize the Secretary of the Interior, acting through the National Park Service, to establish an annex in Tinian, Commonwealth of the Northern Mariana Islands, as an extension of the American Memorial Park located in Saipan. 156 Cong. Rec. H7393 (daily ed. Sept. 29, 2010). The bill was referred to the Committee on Natural Resources.
  • H.R. 6382 (Sarbanes, D-Md.) (Chesapeake Bay)would amend the Federal Water Pollution Control Act to create a designation for property owners who take actions to reduce nutrient and sediment runoff into the Chesapeake Bay watershed. 156 Cong. Rec. H7394 (daily ed. Sept. 29, 2010). The bill was referred to the Committee on Transportation and Infrastructure.
  • H.R. 6386 (Smith, R-N.J.) (radionuclides release)would amend the Atomic Energy Act of 1954 to require a nuclear power facility licensee to notify the NRC and the state and county in which the facility is located within 24 hours of an unplanned release of radionuclides in excess of allowable limits. 156 Cong. Rec. H7394 (daily ed. Sept. 29, 2010). The bill was referred to the Committee on Energy and Commerce.
  • H.R. 6393 (Young, R-Alaska) (drinking water)would allow certain small public water systems to request an exemption from the requirements of any national primary drinking water regulation for a naturally occurring contaminant. 156 Cong. Rec. H7394 (daily ed. Sept. 29, 2010). The bill was referred to the Committee on Energy and Commerce.
  • H.R. 6394 (Young, R-Alaska) (wildlife)would amend the Marine Mammal Protection Act of 1972 to allow transport, purchase, sale, and export of pelts of Southcentral and Southeast Alaska northern sea otters that are taken for subsistence purposes. 156 Cong. Rec. H7394 (daily ed. Sept. 29, 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:

ArkansasFloridaIndianaNew HampshireNew JerseyNew MexicoNevadaPennsylvaniaTennessee

ARKANSAS

Hazardous & Solid Waste:

FLORIDA

Wildlife:

  • The Fish and Wildlife Conservation Commission adopted amendments to Fla. Admin. Code Ann. r. 68A-27, Rules Relating to Endangered or Threatened Species. Changes alter the definition of "take" and "management plan" and specify that the Commission determines which species remain listed. Seehttps://www.flrules.org/Gateway/View_Notice.asp?ID=9170397

INDIANA

Air:

NEW HAMPSHIRE

Land Use:

  • The Department of Environmental Services proposed to revise ENV-Wq 1500, which establishes the requirements for obtaining a permit for activities that alter terrain or affect runoff conditions. Changes would require an applicant to demonstrate a legal right to carry out the project and that reclamation projects be calculated for the area of disturbance since May 4, 1981, rather than in a 10-year window. There will be a public hearing on October 22, 2010, and the deadline for comments is November 1. Seehttp://www.gencourt.state.nh.us/rules/register/2010/september-24-10.pdf(pp. 7-9).

NEW JERSEY

Air:

  • The Department of Environmental Protection adopted the new regulation N.J. Admin. Code §7:27-9.2, pertaining to sulfur in fuels. The regulation, which applies to all liquid fuel oil, is intended to reduce the amount of sulfur oxides, particulate matter, nitrogen oxides, and other pollutants released into the ambient air from the combustion of fuel oil. The rule has an effective date of September 20, 2010, and an operative date of October 25. Seehttp://www.lexisnexis.com/njoal/(42 N.J.R. 2244a).

NEW MEXICO

Air:

Land Use:

  • The Energy, Minerals, and Natural Resources Department proposed to amend N.M. Admin. Code §3.13.20. The rule pertains to land conservation incentives tax credits for donations of land or interests in land to public or private land conservation agencies for conservation purposes. There will be a public hearing on November 3, 2010, which is the deadline for comments. Seehttp://www.nmcpr.state.nm.us/nmregister/xxi/xxi18/Energynotice.htm.

NEVADA

Hazardous & Solid Waste:

PENNSYLVANIA

Air:

  • The Environmental Quality Board amended 25 Pa. Code Chs. 121, 123, and 139. Changes would lower the allowable sulfur content of commercial fuel oil for use in combustion units and set recordkeeping and reporting requirements. Rules went into effect on September 25, 2010. Seehttp://www.pabulletin.com/secure/data/vol40/40-39/1834.html.

TENNESSEE

Water:

  • The Wildlife Resources Agency adopted a new Tenn. Admin. Code §1660-02-03, outlining the rules by which businesses, individuals, and the government address the issue of abandoned vessels. The rules take effect December 19, 2010. Seehttp://state.tn.us/sos/rules_filings/09-20-10.pdf.

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

INTERNATIONAL

CHINA'S CLIMATE AND CONSERVATION GOALS AT ODDS WITH ECONOMIC PLANS

Despite announcing plans to grow power conservation and environmental protection measures, China seems poised to continue and expand its position as the world's largest emitter of carbon. The country will likely pass targets for maximum emissions by 2020 set by the International Energy Agency as early as next year, nearly a decade early. A spokesman at the Netherlands Environmental Assessment Agency pinned the jump in emissions on China's rapid economic growth, and Britain's energy and climate change secretary said that China's increase in emissions will effectively cancel out carbon cutting measures throughout the entire rest of the world. China's focus has been on reducing "carbon intensity," the amount of carbon emitted for every dollar of economic growth, rather than on overall emissions. Meanwhile, the vice chairman of the National Development and Reform Commission announced last Thursday that the country will continue its carbon reduction efforts, spending $12.5 billion on conservation this year. In July, the head of the National Energy Administration announced the country may spend as much as $750 billion through 2020 to develop less polluting sources of energy. However, such plans may face difficulties: rare earth materials, abundant in China and crucial to the development of a number of renewable fuel sources, are facing an immense increase in demand. A panel hosted by the United Nations Environment Program recently estimated that, without recycling measures, the world's supply could be exhausted in 30-40 years. China has, however, offered tax incentives and subsidies to fuel sources such as wind power. For a Reuters analysis on China passing its emissions goals, seehttp://www.reuters.com/article/idUSTRE68T3BM20100930?pageNumber=1. For China's energy and conservation measures, seehttp://www.businessweek.com/news/2010-09-29/china-to-continue-environment-energy-saving-measures.html. For the story on China's struggle with rare earth metals, seehttp://www.google.com/hostednews/afp/article/ALeqM5hPmNzLawNUxSS8Zqu8GvRt_4E0Ag?docId=CNG.1febe8228fa30f6f19b4372cff6d07a5.711.

EUROPEAN RENEWABLE PROVIDERS FACE BARRIERS AND LACK OF INCENTIVES, SAY INVESTMENT GROUPS

European Union policies on renewable power are reducing the appetite for low-carbon investment, said a firm on behalf of the Institutional Investors Group on Climate Change. According to the firm's research, changing policy and retroactive policymaking, in addition to permitting and planning difficulties, are creating barriers to capital expenditure needed to meet EU renewable targets. As Spain debates cutting renewable subsidies and a planned German nuclear tax starts next year, power investors shy from attempting to overcome grid access and infrastructure issues. In addition, existing utilities lack the funds needed to invest the $1.27 trillion necessary to meet climate change targets, said Citigroup. "Governments in Europe appear to believe that the utility sector can more than double its historic capital expenditure and sustain that for ten years," said Citigroup analysts last Wednesday. European nations attempting to replace old power plants and invest in new sources will likely face a 277 billion euro shortfall, according to the report. Europe received an additional piece of bad power news, as the UK's Department of Energy and Climate Change announced Thursday that low rainfall and windspeeds resulted in a 12 percent drop in renewable power production from April to June. Meanwhile, the European Commission announced plans to take action against five Eastern European and Baltic nations for failure to meet targets on renewable energy. For the story on barriers to investment, seehttp://www.ipe.com/news/lack-of-long-term-policies-dissuading-low-carbon-investors_37032.php. For the story on Citigroup's analysis, seehttp://www.businessweek.com/news/2010-09-29/eu-utilities-lack-funds-for-investment-targets-citigroup-says.html. For UK energy production, seehttp://www.guardian.co.uk/environment/2010/sep/30/uk-renewable-energy-production-drops.

INDIAN COURT STAYS SMELTER CLOSURE

The India Supreme Court ruled that a Vedanta-run smelter in Tuticorin can stay open until a court hearing on October 18. A lower court had ruled on Tuesday that the Vedanta subsidiary responsible for running the smelter, Sterlite Industries, had failed to comply with environmental rules by letting effluents into the air and water, and ordered the firm to shut down the smelter. Sterlite Industries maintained that the plant operated an internationally accepted smelt process. The plant closure would likely shave 54 percent of Sterlite's revenue and result in the termination of jobs for 3,000 residents of Tuticorin. The plant is within 25 kilometers of an area deemed ecologically fragile by the court. Meanwhile, a proposed stake sale of Cairn India to Vedanta Resources may be delayed up to two years as the Indian petroleum minister seeks more information on the firm. For the story on the court's ruling, seehttp://online.wsj.com/article/SB10001424052748703859204575525534080331948.html. For the delayed sale, seehttp://www.reuters.com/article/idUSSGE69002Q20101001, which citeshttp://www.financialexpress.com/news/vedantas-wait-for-cairn-could-get-longer/690839/.

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

Note: To request additional information, please call (800) 433-5120 or (202) 939-3844. Documents may also be available free or at a nominal charge from the applicable court or agency. Copyright© 2010, Environmental Law Institute, Washington, D.C. All rights reserved.

ELR STAFF

Leslie Carothers, Publisher
Scott Schang, Editor-in-Chief
Rachel Jean-Baptiste, Managing Editor
Erin Webreck, Associate Editor
William J. Straub, Desktop Publisher
Clare Shepherd, Web Editor