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Weekly Update Volume 40, Issue 31

11/01/2010

LITIGATION 

OUTER CONTINENTAL SHELF, SAFETY REQUIREMENTS:

A district court vacated new safety requirements the DOI issued for oil and gas operators in the outer continental shelf. The requirements, issued in a notice to lessees, range from submitting certifications to performing additional safety procedures. The requirements were set aside because the government failed to provide notice and comment under the APA when it issued the notice. It claimed that the new rule was interpretative, not substantive. But the notice imposes additional duties on operators and lessees and mandates new certifications and safety inspections that were not in place before. The rule does not simply track statutory language or reiterate existing duties. It is, by its very thrust, substantive. Accordingly, because the government did not comply with the APA's notice and comment requirements, the safety requirements are of no lawful force or effect.Ensco Offshore Co. v. Salazar, No. 10-1941, 41 ELR 20002 (E.D. La. Oct. 19, 2010) (Feldman, J.).

CERCLA, REVERSE BIFURCATION:

A district court denied an electric company's motion to bifurcate litigation in a case brought by several towns against the company under CERCLA and New York statutory and common law for polluting their water supply. The company's motion was for reverse bifurcation, as it wanted to first hold discovery and trial on the issue of damages before proceeding to liability. But reverse bifurcation is not supported for multiple reasons. Issues of liability, damages, and causation are inextricably intertwined in significant respects. Moreover, with the company proposing to proceed with damages before liability, evidence of causation will necessarily be relevant in both trials and thus lead to an overlap of issues. In addition, reverse bifurcation would increase the time and expense of the litigation rather than decreasing them, would decrease rather than increase judicial efficiency and expense, and would severely and unfairly prejudice plaintiffs.Village of Stillwater v. General Electric Co., No. 9-CV-228, 41 ELR 20003 (N.D.N.Y. Oct. 13, 2010) (Homer, M.J.).

WILDLIFE, CANADIAN LYNX, INJUNCTIONS:

The First Circuit affirmed a lower court decision denying a motion to enjoin Maine state officials from allowing the use of any foothold traps to prevent the incidental take of Canadian lynx, a threatened species. The lower court did not abuse its discretion in denying the motion, as the animal rights groups that filed the lawsuit failed to demonstrate that irreparable harm was likely to occur absent an injunction. They failed to prove that any single Canadian lynx has suffered serious physical injury or death from an incidental take in a foothold trap. Absent a showing that animal deaths were likely and that these would impact the species, it was not an abuse of discretion for the lower court to refuse to issue an injunction.Animal Welfare Institute v. Martin, No. 09-2643, 41 ELR 20001 (1st Cir. Oct. 20, 2010).

NATIONAL FORESTS, NEPA:

The Eighth Circuit held that the U.S. Forest Service's revised forest plan for the Superior National Forest complied with NEPA. The environmental groups that filed the suit have standing, given the immediate, concrete consequences for the recreational interests of specific visitors to the Superior National Forest that result from the selection of the chosen alternative over other alternatives rejected by the Forest Service. Nevertheless, the Forest Service took an appropriately “hard look” at the environmental consequences of the revised forest plan and its impact on the on the Boundary Waters Canoe Area Wilderness (BWCAW). The Forest Service considered the BWCAW in its analysis and set forth in the final EIS a policy that proposed changes have only a minimal, neutral impact on the wilderness area, such that new management direction for that area is unnecessary. In addition, the final EIS expressly considers the effect of the various management alternatives on wildlife habitats and plant species within the wilderness area, and the agency considered environmental impacts of the forest plan on “analysis areas” that encompass the BWCAW. Accordingly, the Forest Service did not act arbitrarily or capriciously in its development of the final EIS.Sierra Club v. Kimbell, No. 09-1639, 41 ELR 20004 (8th Cir. Oct. 18, 2010).

WRIT OF MANDAMUS, AGENCY OFFICIALS:

The Eleventh Circuit granted EPA's petition for a writ of mandamus to substitute the appearance of the EPA Assistant Administrator for Water for the appearance of the EPA Administrator at a hearing about compliance by the Agency with orders entered by the district court that concerned pollution of the Everglades. A lower court denied the motion for substitution and ordered the appearance of the EPA Administrator who is a high-ranking official of the executive branch. But compelling a high executive official to appear in a judicial proceeding encroaches on the separation of powers and, absent exigent circumstances, the judicial branch must respect the discretion of the executive branch to designate which high-ranking official should represent the Agency in a judicial proceeding. Because the record establishes no special need for compelling the appearance of the Administrator, and the Assistant Administrator is an adequate substitute, the court granted the petition for a writ of mandamus and directed the district court to allow the substitution.In re United States Environmental Protection Agency, No. 10-14535, 41 ELR 20007 (11th Cir. Oct. 28, 2010).

NATURAL RESOURCE DAMAGES, CONSENT DECREES:

A district court approved two consent decrees settling Colorado's claims for natural resource damages against two waste companies and the city and county of Denver in connection with the Lowry Landfill Superfund site. The settlement, which requires the performing parties to each pay $500,000 to the state, will expedite the restoration or replacement of natural resources. In addition, the settlement is fair, reasonable, consistent with CERCLA, in the public interest, and will avoid prolonged, complicated, and expensive litigation.Colorado v. City & County of Denver, No. 1:10-cv-01303-JLK, 41 ELR 20006 (D. Colo. Oct. 25, 2010) (Kane, J.).

CERCLA, TORTS, RES JUDICATA:

A Michigan appellate court affirmed a lower court decision that res judicata bars a landowner's CERCLA, tort, and state law actions against a neighboring gasoline station for response costs and other monetary damages. The property owner originally filed suit in 1995, but the case was settled in 1999 and dismissed without prejudice. The property owner also filed suit in 1997 for injunctive relief under Michigan's Natural Resources and Environmental Protection Act (NREPA). The parties entered into another consent agreement in 1999 requiring both parties to take remedial action, but it was set aside in 2007 when the case was settled and dismissed, this time with prejudice. In May 2008, the 1999 settlement agreement of the 1995 lawsuit was also terminated. Two months later, the landowner filed the instant action, alleging theories of nuisance, trespass, and negligence, and seeking response costs under CERCLA and the NREPA. The lower court properly dismissed the case under the doctrine of res judicata. The landowner's claims for response costs and other monetary damages could have been resolved by the court that was presiding over its claim for injunctive relief in the 1997 lawsuit. And despite the gas station's argument to the contrary, the 1999 consent agreement, which allowed the landowner to seek response recovery costs and other monetary damages in a separate action, does not "trump" the doctrine of res judicata since it was set aside in 2007. Nothing in the court's 2007 order indicates that the parties intended that the dismissal of the 1997 lawsuit with prejudice would bar defendants from asserting res judicata in a subsequent suit by the landowner.L.A. Plaza, Inc. v. Hermiz, No. 293291, 41 ELR 20005 (Mich. Ct. App. Oct. 19, 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 amended specific provisions in the 2009 Final Mandatory Greenhouse Gas Reporting Rule; changes include additional information to better or more fully understand compliance obligations, corrections to data reporting elements so they more closely conform to the information used to perform emission calculations, and other corrections and amendments.75 FR 66434(10/28/10).
  • EPA amended the requirements for fine particulate matter (PM) under the PSD program.75 FR 64864(10/20/10).
  • EPA proposed modifications to how it will address residual risk and technology reviews for six NESHAPs.75 FR 65068(10/21/10).
  • EPA determined attainment of the PM NAAQS for the Eagle River nonattainment area in Alaska.75 FR 64162(10/19/10).
  • EPA proposed nitrogen oxide (NOx) and PM emission reductions for the Four Corners Power Plant, located on the Navajo Nation near Farmington, New Mexico.75 FR 64221(10/19/10).
  • EPA proposed to determine attainment of the PM NAAQS for the Eagle River nonattainment area in Alaska; see above for direct final rule.75 FR 64241(10/19/10).
  • EPA announced additional methods for calculating emissions inventory data for specific source categories under its proposed rule to reduce interstate transport of fine particulate matter (PM) and ozone.75 FR 66055(10/27/10).
  • SIP Approvals: Delaware (volatile organic compounds)75 FR 64673(10/20/10). Illinois (disapproval of NOx emission allowances)75 FR 64951(10/21/10). Missouri (revisions to the Springfield City Code)75 FR 64953(10/21/10). Ohio (PM standards)75 FR 65567(10/26/10); (consolidation of ambient air quality standards)75 FR 65572(10/26/10). Pennsylvania (consumer products and architectural and industrial maintenance coatings regulations)75 FR 63717(10/18/10). Rhode Island (attainment of the 1997 eight-hour ozone NAAQS for the Providence moderate nonattainment area)75 FR 64949(10/21/10). Texas (attainment of the 1997 eight-hour ozone NAAQS for the Beaumont/Port Arthur nonattainment area and several other revisions)75 FR 64675(10/20/10). Wisconsin (NOx requirements)75 FR 64155(10/19/10).
  • SIP Proposals:Missouri (revisions to the Springfield City Code; see above for direct final rule)75 FR 64973(10/21/10). Ohio (PM standards; see above for direct final rule)75 FR 65594(10/26/10); (consolidation of ambient air quality standards; see above for direct final rule)75 FR 65594(10/26/10). Texas (emission reductions from grandfathered electric generating facilities)75 FR 64235(10/19/10).

GENERAL:

  • USDA added eight sections to its Guidelines for Designating Biobased Products for Federal Procurement to designate items within which biobased products will be afforded federal procurement preference and established minimum biobased contents for each of these items.75 FR 63695(10/18/10).

HAZARDOUS & SOLID WASTE:

  • EPA announced the availability of and solicited public comment on its proposed rulemaking for the disposal of coal combustion residuals from electric utilities.75 FR 64974(10/21/10).
  • EPA approved revisions to New Mexico's hazardous waste management program.75 FR 65432(10/25/10).
  • EPA proposed to approve revisions to New Mexico's hazardous waste management program; see above for direct final rule.75 FR 65442(10/25/10).
  • EPA entered into a proposed administrative settlement under CERCLA that requires the settling parties to pay certain U.S. response costs incurred at the Crown Vantage Landfill Superfund site in Hunterdon County, New Jersey.75 FR 65323(10/22/10).

TRANSPORTATION:

  • The Pipeline and Hazardous Materials Safety Administration seeks comments on possible amendments to the hazardous liquid onshore pipeline regulations.75 FR 63774(10/18/10).

WATER:

  • EPA proposed to reissue a general NPDES permit to Alaska for suction dredge mining operations.75 FR 65483(10/25/10).

WILDLIFE:

  • FWS reinstated regulatory protections under the ESA for the gray wolf in most of the northern Rocky Mountains to comply with a Montana district court ruling.75 FR 65574(10/26/10).
  • FWS revised critical habitat for the bull trout under the ESA, designating a total of 31,750.8 kilometers of streams and 197,589.2 hectares of reservoirs and lakes in Idaho, Montana, Nevada, Oregon, and Washington.75 FR 63897(10/18/10).
  • FWS proposed to change the status of spikedace and loach minnow from threatened to endangered under the ESA and to designate a total of 1,435 miles of streams in Arizona and New Mexico as critical habitat for the species.75 FR 66482(10/28/10).
  • NOAA-Fisheries determined threatened status for the southern distinct population segment of the spotted seal under the ESA.75 FR 65239(10/22/10).
  • NOAA announced the availability of and solicited public comment on a draft policy for the assessment of civil administrative penalties and permit sanctions.75 FR 64987(10/21/10).

DOJ NOTICES OF SETTLEMENT:

  • United States v. City of Toledo, No. 3:91:CV7646 (N.D. Ohio Oct. 21, 2010). Under an amended December 17, 2002, consent decree, a settling CWA defendant that discharged combined sanitary sewage and stormwater into Swan Creek and the Maumee and Ottawa Rivers must amend construction improvements at its wastewater treatment plant and must evaluate the effectiveness of measures to control pathogens at a wet weather treatment facility.75 FR 66791(10/29/10).
  • In re Motors Liquidation Corp., No. 09-50026 (REG) (Bankr. S.D.N.Y. Oct. 20, 2010). A settling CERCLA and RCRA defendant responsible for violations at 89 sites must pay $499,434,945 to an environmental response trust to clean up the sites and must pay an additional $142,000,000 and transfer to the trust certain real property and title to 88 real properties owned by the defendant for administrative expenses.75 FR 66390(10/28/10).
  • United States v. NCR Corp., No. 10-C-910 (E.D. Wis. Oct. 14, 2010). Settling CERCLA defendants must pay $7 million in past and expected future U.S. oversight costs for cleanup of PCB contamination at the Lower Fox River and Green Bay Superfund site in northeastern Wisconsin and must waive objection to the cleanup remedy and administrative order for remedial action issued by EPA.75 FR 65509(10/25/10).
  • United States v. Westlake Vinyls, Inc., No. 5:10-CV-00168-TBR (W.D. Ky. Sept. 17, 2010). A settling defendant responsible for CAA, CERCLA, CWA, EPCRA, and RCRA violations at its vinyl chloride and polyvinyl chloride plants must pay a $700,000 civil penalty to the United States and a $100,000 civil penalty to Kentucky, $12,500 of which goes to the Oil Spill Liability Trust Fund for CWA violations; must perform CAA injunctive relief; must submit and implement a revised and enhanced leak detection, repair, and daily monitoring program; must comply with and report on total annual benzene requirements; must perform RCRA injunctive relief; must review its CERCLA/EPCRA training procedures and modify its spill/release reporting policy; and must perform CWA injunctive relief.75 FR 65032(10/21/10).
  • United States v. ConocoPhillips Co., No. 2:10-cv-1556 (W.D. La. Oct. 12, 2010). Settling CERCLA and CWA defendants responsible for violations at the Calcasieu Estuary Superfund site in southwest Louisiana must pay $4,553,547 in past U.S. response costs incurred at the site, as well as related future oversight costs; must perform a non-time-critical removal action at the site; must pay $1,200,000 in past natural resource damage assessment costs; must perform a trustee-selected restoration project; must pay $750,000 toward post-restoration monitoring or corrective action; and must construct the Sabine Unit 1999 Restoration Project at a designated site within the Sabine National Wildlife Refuge.75 FR 64352(10/19/10).
  • United States v. Rutgers Organics Corp., No. 04:10-cv-02113-JFM (M.D. Pa. Oct. 12, 2010). A settling CERCLA defendant responsible for violations at the Centre County Kepone Superfund site in Centre County, Pennsylvania, must pay $136,331.98 in past U.S. response costs incurred at the site and must perform an EPA-selected remedy for the surface soils.75 FR 64353(10/19/10).
  • United States v. Albert Investment Co., No. 08-637C (W.D. Okla. Oct. 8, 2010). A settling CERCLA defendant must pay $6,268,643 in past U.S. and state response costs and $329,929 in state and federal natural resource damages in connection with the Double Eagle Superfund site in Oklahoma City, Oklahoma.75 FR 63858(10/18/10).
  • United States v. Union Pacific Railroad Co., No. 06-887C (W.D. Okla. Oct. 8, 2010). A settling CERCLA defendant must pay $13,606,241 in past U.S. and state response costs, $160,000 in future response costs, and $329,929 in state and federal natural resource damages in connection with the Double Eagle Superfund site in Oklahoma City, Oklahoma.75 FR 63859(10/18/10).
  • United States v. AMETEK, Inc., No. 10-cv-5291 (E.D. Pa. Oct. 8, 2010). Settling CERCLA defendants must finance and perform remaining cleanup at North Penn Area 2 Superfund site in Hatfield Township, Pennsylvania, by establishing and maintaining a performance guarantee initially in the amount of $2,039,900; must pay all future response costs; and must pay $185,522.41 to the EPA Hazardous Substance Superfund.75 FR 63859(10/18/10).

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

THE CONGRESS

Congress is currently in recess but will reconvene November 15, 2010.

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:

ArizonaArkansasCaliforniaColoradoConnecticutFloridaIndianaIowaKentuckyMaineMarylandMissouriNebraskaNew JerseyNew YorkTexasUtahVirginiaWashington

ARIZONA

Water:

  • The Department of Natural Resources proposed to amend 12 Ariz. Rev. Stat. §15.7, Assured and Adequate Water Supply, to authorize the Director of the Department to restore an irrigation grandfathered right that was extinguished for assured water supply extinguishment credits during calendar year 2006 or 2007 if the owner of the land to which the right was appurtenant requests the restoration and certain criteria are met. The Department has not determined a timetable for a comment period yet. Seehttp://www.azsos.gov/public_services/Register/2010/43/docket.pdf(p. 2063).

ARKANSAS

Water:

CALIFORNIA

Energy:

  • The Energy Commission will hold a public hearing on proposed changes to Cal. Code Regs. tit. 20, §2.9.1, relating to the state's "Million Solar Roofs Initiative." The rule currently requires sellers of production homes to offer the option of a solar energy system to all customers negotiating to purchase a new production home constructed on land meeting certain criteria and to disclose certain information. Amendments would define the Homebuyer Solar Option and the Solar Offset Program, and outline the requirements for the solar option. The hearing will be on December 7, 2010, and the deadline for written comments is December 6. Seehttp://www.oal.ca.gov/res/docs/pdf/notice/43z-2010.pdf (pp. 1745-49).

Toxic Substances:

  • The Office of Environmental Health Hazard Assessment proposed to amend Cal. Code Regs. tit. 27, §25805, listing S,S,S–tributyl Phosphorotrithioate under Proposition 65 as a chemical known to the state to cause cancer. The comment period ends November 15, 2010. Seehttp://www.oal.ca.gov/res/docs/42z-2010.pdf(p. 1705).
  • The Office of Environmental Health Hazard Assessment proposed to amend Cal. Code Regs. tit. 27, §25805, listing six chemicals under the Safe Drinking Water and Toxic Enforcement Act of 1986 as substances that cause cancer. The comment period ends December 21, 2010. Seehttp://www.oal.ca.gov/res/docs/43z-2010.pdf(pp. 1758-62).

COLORADO

Hazardous & Solid Waste:

CONNECTICUT

General:

  • The Commissioner of Environmental Protection proposed to amend Reg. Conn. State Agencies §§22a-133v-2 through 5 and §§22a-133v-7(c), (l), (n), (o), (r), (s), (ee) and to adopt new §22a-133v-4(e). The proposed amendments are intended to make the regulations consistent with several statutory changes. Amendments would alter instruction hours requirements and license renewal for board certification, in addition to other changes. There will be a public hearing on November 18, 2010. Seehttp://www.ct.gov/dep/cwp/view.asp?A=2586&Q=466894.

FLORIDA

Hazardous & Solid Waste:

  • The Department of Environmental Protection proposed to revise 62 Fla. Admin. Code §621.300(1), Generic Permit for Discharges From Petroleum Contaminated Sites and §621.300(2), Generic Permit for Discharge of Produced Ground Water From any Non-Contaminated Site Activity. The revisions will reflect current NPDES program requirements, bring effluent monitoring and limitations up-to-date with current limits, and improve and streamline permit issuance. There will be a public hearing on November 8, 2010. Seehttps://www.flrules.org/gateway/ruleNo.asp?id=62-621.300.

INDIANA

Air:

Toxic Substances:

Water:

IOWA

Water:

  • The Environmental Protection Commission seeks public comment on proposed amendments to Iowa Admin. Code ch. 61, Water Quality Standards. The proposed amendment will provide water quality certification pursuant to CWA §401 for Regional Permit 27 and the reissued Regional Permits 33 and 34. The comment period ends November 9, 2010. Seehttp://www.legis.state.ia.us/aspx/ACODOCS/DOCS/10-20-2010.Bulletin.pdf(pp. 581-82).
  • The Environmental Protection Commission seeks public comment on proposed amendments to Iowa Admin. Code ch. 135, Technical Standards and Corrective Action Requirements for Owners and Operators of Underground Storage Tanks. Changes incorporate new state laws on the investigation and cleanup of petroleum contamination. The last day for comment is November 15, 2010. Seehttp://www.legis.state.ia.us/aspx/ACODOCS/DOCS/10-20-2010.Bulletin.pdf(pp.583-86).

KENTUCKY

Water:

  • The Energy and Environment Cabinet proposed the new 401 Ky. Admin. Regs. 49:080, Solid waste grant funds and solid waste collector and recycler registration. Written comments will be accepted during the month of November. Seehttp://www.lrc.state.ky.us/kar/401/049/080.htm.

MAINE

Climate:

  • The Department of Environmental Protection proposed to amend Ch. 100, Definitions Regulation - Amendments. Changes would add definitions for greenhouse gases and carbon dioxide equivalent emissions. There will be a public hearing on November 18, 2010, and the comment deadline is November 29. Seehttp://www.maine.gov/sos/cec/rules/notices/2010/102710.html.

Toxic Substances:

  • The Department of Environmental Protection proposed to amend Ch. 425, Asbestos Management Regulations. Changes would promote the use of “risk-based” standards to regulate asbestos more effectively in areas of greatest risk for exposure and integrate changes to standard industry practice that have evolved over the past six years. There will be a hearing on November 18, 2010, and the deadline for comments is November 29. Seehttp://www.maine.gov/sos/cec/rules/notices/2010/102710.html.
  • 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. This amendment is similar to an earlier proposed rule, but also contains the requirement that sellers conduct an alternatives assessment. The comment period ends November 17, 2010. Seehttp://www.maine.gov/sos/cec/rules/notices/2010/102710.html.

MARYLAND

Air:

  • The Department of the Environment amended Md. Code Regs 26.11.19, which regards volatile organic compounds from specific processes. Changes affect standards for lithographic and letter press printing. Seehttp://www.dsd.state.md.us/mdregister/3722.pdf(p. 1555).

MISSOURI

Water:

  • The Department of Natural Resources proposed to amend Mo. Code Regs. Ann. tit. 10, §20-8.110, Engineering- Reports, Plans, and Specifications. The amendment would update the rule to current industry practices, providing specific and clear requirements for engineering reports, facility plans, plans, and specifications. Seehttp://www.sos.mo.gov/adrules/moreg/current/2010/v35n20/v35n20b.pdf(pp. 1444-58).

NEBRASKA

Water:

  • The Department of Environmental Quality proposed to amend 119 Neb. Admin. Code §28, Permit-By-Rule for Pesticides. Rules relate to the application of pesticides near state waters, and changes would outline rules for water levels at the time of application, and require applicators to be able to identify certain species. There will be a public hearing on December 1, 2010. Seehttp://www.sos.state.ne.us/rules-and-regs/regtrack/proposals/0000000000000923.pdf.

NEW JERSEY

Toxic Substances:

  • The Department of Community Affairs amended N.J. Admin. Code §5.48, Lead Hazard Control Assistance Fund. Seehttp://www.lexisnexis.com/njoal/(42 N.J.R. 2408(b)).

NEW YORK

Air:

TEXAS

Air:

  • The Commission on Environmental Quality proposed to repeal 30 Tex. Admin. Code §116.118, which addresses facilities that were exempted from obtaining an authorization to emit air contaminants under Texas Health and Safety Code §382.0518(g) and how these facilities could meet the requirements of the qualified facility rules. EPA published in theFederal Registerthat it intended to disapprove of this rule as a revision of the SIP. The earliest possible date of adoption is November 14, 2010. Seehttp://www.sos.state.tx.us/texreg/pdf/backview/1015/1015is.pdf(pp. 9215-18).

Climate:

  • The Railroad Commission of Texas proposed to add 16 Tex. Admin. Code §1.5, Carbon Dioxide, to protect underground sources of drinking water while promoting the capture and storage of anthropogenic carbon dioxide. The earliest possible date of adoption is November 14, 2010. Seehttp://www.sos.state.tx.us/texreg/pdf/backview/1015/1015is.pdf(pp. 9177-78).

Land Use:

  • The General Land Office proposed amendments to 31 Tex. Admin. Code §25, Beach Cleaning and Maintenance Assistance Program. Proposed changes incorporate the new responsibility of the state to clean and maintain public beaches under certain circumstances in Texas Natural Resources Code. Written comments must be received by November 22, 2010. Seehttp://www.sos.state.tx.us/texreg/pdf/backview/1022/1022is.pdf(pp. 9476-79).

UTAH:

Water:

  • The Department of Environmental Quality proposed to amend Utah Admin. Code r. R309-100-4, which defines a public water system, adding language indicating that a platted subdivision of 15 lots will likely result in 15 service connections and thus qualifies as a public water system for rules that relate to construction. The deadline for comments is November 15, 2010, and the rule may become effective on November 22. Seehttp://www.rules.utah.gov/publicat/bull_pdf/2010/b20101015.pdf(pp. 51-52).

VIRGINIA

Air:

  • The Air Pollution Control Board proposed to amend 9 Va. Admin. Code §5.520, Biomass Energy Generator General Permit for a Pilot Test Facility. The purpose of the regulation is to create a mechanism for sources to construct and test to determine the type and quantity of emissions from a qualified energy generator that meets the requirements of the regulation. It applies to qualified energy generators that generate no more than five megawatts of electricity, or produce the equivalent amount of energy in the form of fuel, stream, or other energy product per year from biomass. There will be a public hearing on December 1, 2010, and the deadline for comments is January 5, 2011. Seehttp://legis.state.va.us/codecomm/register/vol27/iss04/v27i04.pdf(pp. 448- 60).

Water:

  • The Department of Environmental Quality proposed to adopt 9 Va. Admin. Code §25.800, Virginia Pollutant Discharge Elimination System General Permit for Discharges Resulting from the Application of Pesticides to Surface Waters. There will be a public hearing on November 16 & 18, 2010, and on December 7, and the deadline for comments is December 27. Seehttp://legis.state.va.us/codecomm/register/vol27/iss04/v27i04.pdf(pp. 477-95).
  • The Department of Environmental Quality adopted changes to 9 Va. Admin. Code §25.810, General Virginia Pollutant Discharge Elimination System Permit for Coin-Operated Laundry. Changes take effect February 11, 2011. Seehttp://legis.state.va.us/codecomm/register/vol27/iss04/v27i04.pdf(pp. 495-504).

WASHINGTON

Air:

Land Use:

  • The Department of Ecology proposed to amend Wash. Rev. Code §173, Shoreline Management Act. The Department intends to alter sections relating to designations of shorelines and wetlands and the management plan. The intended date of adoption is February 10, 2011, and the deadline for comments is November 23, 2010. Seehttp://apps.leg.wa.gov/documents/laws/wsr/2010/20/10-20-009.htm.

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

INTERNATIONAL

BRAZIL MEETS CLIMATE GOALS EARLY; WILL TAX OIL PROFITS FOR FURTHER GAIN

At the country's Forum on Climate Change last week, Minister of Environment Izabella Teixeira announced that Brazil had met its targets on halting deforestation four years ahead of schedule. Since the government's Plan of Action to Prevent and Control Deforestation in the Amazon was established in 2003, Brazil has reduced Amazon deforestation by 70 percent, bringing it to its lowest levels since 1989. According to President Silva, this has avoided 2.9 billion tons carbon equivalent. Last year in Copenhagen, Brazil pledged to reduce carbon dioxide emissions by 36% by 2020, bringing the country back to 1994 levels. To help meet these goals, which Teixeira predicted would happen as early as 2016, President Silva signed into law a levy on domestic oil production that would fund the National Fund on Climate Change. Brazil is the first nation in the world to use taxes from profits of an oil supply chain to finance mitigation and adaptation to climate change. Early last week, a drought in the Amazon brought water levels to their lowest in over a century, causing some meteorologists to blame climate change. For theNew York Timesstory on Teixeira's announcement, seehttp://www.nytimes.com/cwire/2010/10/25/25climatewire-brazil-plans-a-price-on-oil-to-accelerate-cl-91681.html. For the story on Brazil's new tax, seehttp://www.care2.com/causes/global-warming/blog/brazil-will-tax-oil-profits-to-fund-climate-change-adaptation/. For Brazil's drought, seehttp://www.guardian.co.uk/world/2010/oct/26/amazon-drought-tributary-rio-negro-climate-change.

ILLEGAL TIMBER FROM MADAGASCAR FUELS CHINESE FURNITURE PRODUCTION

A report by the Environmental Investigation Agency and Global Witness implicated China as the primary destination for illegally mined timber from Madagascar, indicating that goods manufactured from the wood can fetch as much as $1 million from China's wealthy. While the report focused largely on the use of timber in China's furniture industry, an international forestry expert with Global Witness said China's production of musical instruments also relied on rare woods from Madagascar's forests. To compile the report, which was released at the UN meeting in Nagoya, Japan, investigators posing as buyers trekked into a UNESCO World Heritage site suffering from serious illegal logging. Investigators found that roughly 98% of timber ended up in China, with the remainder going to the United States and the European Union. Investigators also found that the recent Lacey Act deterred exports to the United States. Madagascar's director-general of forests confirmed that the report gave an accurate depiction of the situation in the country's forests, adding that, overall, things were improving. He pointed to a recent consignment of an attempted export of illegal timber, and to the fact that no permits had been issued in the last year, as evidence that the government Madagascar was working to capture more illegal mining. The president of Conservation International warned that continued logging would have severe impacts on the nation's ecotourism industry. For the BBC story on the report on Madagascar's timber, seehttp://www.bbc.co.uk/news/science-environment-11626412. For ABC's story on illegal wood in guitar production, seehttp://www.abc.net.au/news/stories/2010/10/29/3052060.htm?section=business.

PUNJAB SETS GOALS FOR AGRO-WASTE FUEL

The government of Punjab announced last week that it plans to generate 1,000 MW of power from methane in agricultural waste in the next five years. The state currently operates a 1 MW biomethanation plant, which uses 235 tons of cattle manure and 45 tons of organic manure a day to produce fuel. Raw dung continues to be a major source of pollution for other cities in the region but has been abated some in Ludhiana, the home of the plant, and at other biomass plants, which together pay farmers 3,000 to 4,000 rupees a year for agro residues. The Punjab government has already announced its goal to produce 10% of energy from renewable sources by 2020, and the deputy minister recently told a conference that it aimed to ensure that no agricultural waste is burned without energy being harnessed by 2015. For the full story, seehttp://www.businessgreen.com/business-green/news/2272326/india-promises-biomass-boom.

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