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Weekly Update Volume 40, Issue 32

11/15/2010

LITIGATION 

CWA, NPDES:

The Ninth Circuit held that EPA’s decision to transfer authority over portions of the NPDES program to the state of Alaska was not arbitrary or capricious. Petitioners argued that EPA did not adequately ensure that Alaska state law will provide the same opportunities for judicial review of permitting decisions as required by federal law. The state of Alaska's proposed program, though perhaps not subject to exactly the same opportunity for judicial review that is available for a federally issued permit, still provides for meaningful public participation in the permitting process, and petitioners failed to demonstrate that there will be an inadequate opportunity for public participation if the state assumes the responsibility for the relevant portions of the NPDES program. The petitioners also claimed that the state does not have the necessary enforcement tools to abate permit violations. But because Alaska law allows the state to sue permit violators, there is no reason to conclude that the state lacks adequate enforcement remedies. Petitioners further claimed that the Agency failed to ensure that subsistence resources will be protected as mandated by the Alaskan National Interest Lands Conservation Act (ANILCA). But EPA's transfer of the NPDES program to the state of Alaska does not trigger a subsistence evaluation under ANILCA since EPA does not have primary jurisdiction over public lands in Alaska. Akiak Native Community v. Environmental Protection Agency, No. 08-74872, 41 ELR 20010 (9th Cir. Nov. 4, 2010).

CWA, NPDES:

The Fourth Circuit upheld an injunction requiring the West Virginia Department of Environmental Protection to obtain NPDES permits for reclamation efforts at abandoned coal mining sites. The text of the CWA, as well as corresponding EPA regulations, confirm that the permit requirements apply to anyone who discharges pollutants into the waters of the United States. Under the CWA, it does not matter that a mining company may have created the conditions that call for reclamation. What matters is that an entity, private or public, is currently discharging pollutants into the waters of the United States. In fact, the statute contains no exceptions for state agencies engaging in reclamation efforts; to the contrary, it explicitly includes them within its scope.West Virginia Highlands Conservancy, Inc. v. Huffman, No. 09-1474, 41 ELR 20014 (4th Cir. Nov. 8, 2010).

NUCLEAR FACILITIES, REGULATORY AUTHORITY:

The D.C. Circuit granted a petition challenging the NRC's transfer of regulatory authority over nuclear material to the state of New Jersey. Before transferring authority to a state, the NRC must find that the state's regulatory regime is compatible with the NRC's program. To evaluate the compatibility of the state and federal regulatory programs, the NRC considers 36 criteria. The petitioner, which for a decade has been seeking NRC approval for a plan to decommission its New Jersey facility, argued that New Jersey had not attempted to make appropriate arrangements to guarantee a smooth transition for the pending decommissioning plan. Instead, it argued that New Jersey had challenged its decommissioning process at every stage. This resistance, petitioner contended, was incompatible with criterion 25's commitment to the uninterrupted "processing of license applications." Because the NRC's response to petitioner's comments on criterion 25 failed to draw a "rational connection between the facts found and the choice made," the NRC's transfer was arbitrary and capricious. At the very least, the NRC should have explained how the petitioner's decommissioning process could proceed under the New Jersey regime free of the interference and interruption sought to be avoided by criterion 25 and why a partial transfer of jurisdiction was not an appropriate alternative arrangement.Shieldalloy Metallurgical Corp. v. Nuclear Regulatory Commission, No. 09-1268, 41 ELR 20013 (D.C. Cir. Nov. 9, 2010).

RADIOACTIVE WASTE, DISPOSAL:

The Tenth Circuit held that the Northwest Interstate Compact on Low-Level Radioactive Waste allows its member states to exclude low-level radioactive waste from disposal at a Utah site. A disposal facility in Utah, a member state, sought permission from the compact to import and dispose of low-level waste from a decommissioned reactor in Italy. The compact denied permission based on exclusionary authority it claimed through the federal statute approving the terms of the compact. The facility argued that the compact has limited authority only over regional disposal facilities. But the compact does have the authority to regulate out-of-region waste disposal at the facility in this case.EnergySolutions, LLC v. Utah, Nos. 09-4122 et al., 41 ELR 20012 (10th Cir. Nov. 9, 2010).

NFMA, LOGGING:

The Ninth Circuit affirmed a lower court order denying an environmental group's motion to preliminarily enjoin the U.S. Forest Service from conducting post-wildfire logging in the Plumas National Forest. The group argued that the Forest Service violated the NFMA because it failed to ensure the viability of the black-backed woodpecker--a management indicator species for the area. But the applicable forest plan required only the assessment of habitat for the black-backed woodpecker at the project level, and the Forest Service met that requirement. In addition, the Forest Service adequately responded to the group's dissenting scientific opinions in the project adoption phases. Nor did the court err in finding that the Forest Service’s tree mortality guidelines were not legally enforceable. As such, the Forest Service was not required to follow them. Accordingly, the lower court did not abuse its discretion in finding that the group failed to show that it was likely to succeed on the merits of its claims.Earth Island Institute v. Carlton, No. 09-16914, 41 ELR 20015 (9th Cir. Nov. 8, 2010).

ESA, POLAR BEARS:

A district court remanded the FWS' final rule listing the polar bear as a “threatened” species under the ESA. Shortly after FWS issued the rule, several groups filed suit, some arguing that the polar bear should have been listed as endangered, and others arguing that the bear does not qualify for any protection under the Act because the polar bear does not meet the definition of a threatened species. In support of the rule, the FWS argued that, as a matter of law, an “endangered species” must be in imminent danger of extinction. But the court rejected the FWS's erroneous conclusion that an imminence requirement is mandated by the plain meaning of the statute. Because the FWS failed to acknowledge ambiguities in the definition of an endangered species, the court could neither defer to the agency’s plain meaning interpretation nor impose its own interpretation of the statute. Instead, the court remanded the listing rule to the agency to treat the statutory language as ambiguous. Because the court did not rule on the lawfulness of the listing rule, it will remain in force during the remand period.In re Polar Bear Endangered Species Act Listing, No. 08-764, 41 ELR 20008 (D.D.C. Nov. 4, 2010) (Sullivan, J.).

CERCLA, REIMBURSEMENT, CONTRIBUTION:

A district court denied an energy company's motion to dismiss CERCLA claims filed against it for reimbursement costs incurred by the former owner of a contaminated site, but granted its motion to dismiss the owner's contribution claims under CERCLA §113. The former site owner entered into an administrative order on consent (AOC) with EPA that required the owner to reimburse EPA for some response costs and to perform certain removal actions. The AOC settled nothing regarding the owner's ultimate liability. Nor did the AOC prevent EPA from requiring the owner in the future to perform additional activities under CERCLA. Under the plain language of the AOC, then, the owner not only has incurred cleanup costs directly from remedial efforts that it has undertaken but also may have to incur such costs in the future. The owner thus has a legally cognizable claim against the energy company under §107. Absent guidance to the contrary from a higher court, qualified CERCLA plaintiffs do not lose timely access to §107 so long as they have incurred costs directly--i.e., by performing the cleanup work themselves. Any attempt to distinguish direct costs resulting from a judgment, a legal settlement, a consent decree that resolves liability, or an administrative order on consent that does not resolve any liability is mere word play. Conversely, although the former owner might have a contribution claim against the energy company in the future, any attempt to seek contribution under §113 is premature.N.L. Industries, Inc. v. Halliburton Co., No. 10-CV-89A, 41 ELR 20018 (W.D.N.Y. Nov. 2, 2010) (Arcara, J.).

SETTLEMENT AGREEMENTS, ENVIRONMENTAL STUDY:

A district court granted in part and denied in part cross-motions for summary judgment on claims that the U.S. Army failed to comply with two settlement agreements requiring it to conduct and complete subsurface archaeological surveys of its munitions training grounds on the Makua Military Reservation in Hawaii and to conduct marine resource contamination studies. With respect to the subsurface survey claim, summary judgment is granted in part to each party. The Army violated its agreement to survey "all areas" of the training grounds. However, to the extent plaintiffs seek a better subsurface survey of three of those areas, summary judgment is granted in favor of the Army, as the settlement agreements do not require the Army to conduct any particular type of survey and the Army's survey of those areas is sufficiently meaningful to satisfy its obligations. With respect to the marine resource survey claims, the Army complied with the 2001 settlement agreement. And the general procedures used by the Army in its surveys under the 2007 settlement agreement were proper because the agreement did not require the Army to conduct any specific kind of survey. But the Army breached its obligations under the 2007 agreement by not testing background contamination of limu and not determining whether the arsenic detected was harmful to human health. However, questions of fact preclude summary judgment as to claims that the Army breached the 2007 settlement agreement by failing to test marine resources on which area residents rely for subsistence.Malama Makua v. Gates, No. 09-00369, 41 ELR 20017 (D. Haw. Oct. 27, 2010) (Mollway, J.).

DISCOVERY, ATTORNEY MISCONDUCT:

A district court, in a $113 billion lawsuit against an oil company concerning environmental pollution in the Amazon, granted the oil company's motion to depose Ecuadorian villagers' attorney concerning possible fraud and misconduct. One party to a litigation should not easily be permitted to take discovery of the lawyers on the other side. But the evidence here shows that the attorney has attempted to intimidate the Ecuadorian judges, obtain political support for the Ecuadorian lawsuit, persuade the government of Ecuador to promote the interests of the villagers plaintiffs, obtain favorable media coverage, solicit the support of celebrities and environmental groups, procure and package "expert" testimony for use in Ecuador, pressure the oil company to pay a large settlement, and obtain a book deal. Thus, the quite unusual circumstances of this case, the need for the discovery, the plainly unprivileged nature of many of the attorney's activities, the evidence of possible fraud and misconduct by the attorney, and other considerations are sufficiently great to require that the attorney respond on the merits to the subpoenas. He must give discovery as to non-privileged matters, and he must not be exempted from making specific claims of privilege or from defending those claims against any challenges.In re Chevron Corp., No. 10 MC 00002, 41 ELR 20009 (S.D.N.Y. Nov. 4, 2010) (Kaplan, J.).

EASEMENTS, PRIVATE BEACHES:

The Supreme Court of Texas, on certification from the U.S. Court of Appeals for the Fifth Circuit, held that Texas does not recognize a "rolling" public beachfront access easement on Galveston's West Beach. Land patents from the Republic of Texas in 1840, affirmed by legislation in the new state, conveyed the state's title in West Galveston Island to private parties and reserved no ownership interests or rights to public use in Galveston's West Beach. Accordingly, there are no inherent limitations on title or continuous rights in the public since time immemorial that serve as a basis for engrafting public easements for use of private West Beach property. Although existing public easements in the dry beach of Galveston's West Beach are dynamic, as natural forces cause the vegetation and the mean high tide lines to move gradually and imperceptibly, these easements do not migrate or roll landward to encumber other parts of the parcel or new parcels as a result of avulsive events. However, new public easements on the adjoining private properties may be established if proven pursuant to the Open Beaches Act or the common law.Severance v. Patterson, No. 09-0387, 41 ELR 20016 (Tex. Nov. 5, 2010).

DISCLOSURE, LEASES:

A Michigan appellate court voided a 10-year old commercial lease between the landlord and tenant of a gas station because the landlord failed to disclose that the property is, under Michigan law, a "facility" from which hazardous substances were released or disposed. The court reasoned that because the landlord was prohibited under state law from transferring any interest in the property at issue unless he provided the tenant with written notice that the property was a contaminated facility, and the landlord admittedly failed to provide the tenant with such written notice, the contract was founded on an act prohibited by statute and was thus void. The contract was void despite the fact that the facility's status was a matter of public record. Until now, the penalty for violating the state's disclosure requirement was unknown, according to attorneys at Maddin, Hauser, Wartell, Roth & Heller, P.C, a Michigan-based law firm.1031 Lapeer LLC v. Price, No. 290995, 41 ELR 20011 (Mich. Ct. App. Aug. 5, 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 approved several revisions to its mobile source emission program standards and test procedures for heavy-duty diesel engines and vehicles.75 FR 68448(11/8/10).
  • EPA gave partial approval of a waiver for the use of ethanol 15 in model year 2007 and newer light-duty motor vehicles.75 FR 68094(11/4/10).
  • EPA approved delegation of authority to implement and enforce specific NESHAPs to Clark County, Nevada.75 FR 67625(11/3/10).
  • EPA determined that the Hayden, Nogales, and Paul Spur/Douglas moderate nonattainment areas in Arizona attained the particulate matter (PM) NAAQS by the December 31, 1994, attainment date, but that they are not currently in attainment.75 FR 67220(11/2/10).
  • EPA proposed a regulatory program to avoid the misfueling of certain engines, vehicles, and equipment with unapproved fuels.75 FR 68044(11/4/10).
  • EPA proposed extending attainment of the 1997 eight-hour ozone NAAQS for the New Jersey portion of the Philadelphia area moderate nonattainment area until June 15, 2011.75 FR 68733(11/9/10).
  • EPA proposed extending attainment of the 1997 eight-hour ozone NAAQS for the Delaware, Maryland, and Pennsylvania portions of the Philadelphia area moderate nonattainment area until June 15, 2011.75 FR 68736(11/9/10).
  • EPA proposed to approve several revisions to its mobile source emission program standards and test procedures for heavy-duty diesel engines and vehicles; see above for direct final rule.75 FR 68575(11/8/10).
  • EPA proposed to approve delegation of authority to implement and enforce specific NESHAPs to Clark County, Nevada; see above for direct final rule.75 FR 67676(11/3/10).
  • EPA proposed to determine that the Hayden, Nogales, and Paul Spur/Douglas moderate nonattainment areas in Arizona attained the PM NAAQS by the December 31, 1994, attainment date, but that they are not currently in attainment; see above for direct final rule.75 FR 67303(11/2/10).
  • EPA entered into a proposed consent decree that establishes deadlines for the Agency to take action on two SIPs from Utah.75 FR 67967(11/4/10).
  • EPA entered into a proposed consent decree that establishes April 15, 2011, as the deadline for the Agency to take action on revisions to certain rules for the Imperial County air pollution control district in California.75 FR 67719(11/3/10).
  • EPA announced the availability of a final document titled,Policy Assessment for the Review of the Carbon Monoxide National Ambient Air Quality Standards.75 FR 67361(11/2/10).
  • SIP Approvals:California (particulate matter emissions)75 FR 69002(11/10/10). New Mexico (interstate transport of pollution)75 FR 68447(11/8/10). Texas (disapproval of planned maintenance, startup, or shutdown provisions)75 FR 68989(11/10/10).
  • SIP Proposals:Alabama (PSD requirements for greenhouse gas (GHG)-emitting sources)75 FR 68285(11/5/10). California (nitrogen oxide, carbon monoxide, sulfur, and PM emissions for the San Joaquin Valley unified air pollution control district)75 FR 68294(11/5/10). Colorado (partial approval of new source review revisions)75 FR 68570(11/8/10). Kentucky (PSD requirements for GHG-emitting sources)75 FR 68272(11/5/10). Mississippi (PSD requirements for GHG-emitting sources)75 FR 68259(11/5/10). North Carolina (PSD requirements for GHG-emitting sources)75 FR 68279(11/5/10). Tennessee (PSD requirements for GHG-emitting sources)75 FR 68265(11/5/10).
  • SIP Withdrawal:Texas (revisions to public participation for air permits of November 26, 2008)75 FR 68291(11/5/10).

ENERGY:

  • EPA announced the availability of and requested public comment on voluntary healthy indoor environment protocols for home energy upgrades.75 FR 68784(11/9/10).

HAZARDOUS & SOLID WASTE:

  • EPA proposed to grant a petition submitted by Owosso Graphic Arts Inc. in Owosso, Michigan, to delist up to 244 cubic yards of wastewater treatment sludge per year from the list of hazardous wastes.75 FR 67919(11/4/10).
  • EPA entered into a proposed administrative settlement under CERCLA that requires the settling party to pay U.S. response costs incurred at the Arkwright Dump Site in Spartanburg, South Carolina.75 FR 67968(11/4/10).
  • EPA entered into a proposed administrative settlement under CERCLA for reimbursement of past U.S. response costs incurred at the Ore Knobe Mine Superfund site in Jefferson, North Carolina.75 FR 68788(11/9/10).

WATER:

  • EPA issued a stay that will go into effect January 4, 2011, of the numeric effluent limitation for the construction and development point source category.75 FR 68215(11/5/10).
  • EPA Region 1 announced the availability of three draft NPDES general permits for discharges from small municipal separate storm sewer systems to certain waters of Massachusetts.75 FR 67960(11/4/10).
  • EPA proposed to issue a stay of the numeric effluent limitation for the construction and development point source category, which would be recalculated by June 29, 2011; see above for direct final rule.75 FR 68305(11/5/10).
  • EPA identified water bodies and associated pollutants in California to be added to the 2008-2010 list of impaired waters.75 FR 68783(11/9/10).
  • EPA-New England announced the availability for public comment of the draft NPDES general permits for certain POTWs and other sewage facilities in Massachusetts, including Indian country lands, and New Hampshire.75 FR 67963(11/4/10).
  • EPA proposed to approve revisions to Montana's public water system supervision primacy program.75 FR 69434(11/12/10).
  • EPA proposed to approve revisions to North Dakota's public water system supervision primacy program, except for Indian country.75 FR 69435(11/12/10).
  • EPA proposed to approve revisions to South Dakota's public water system supervision primacy program, except for Indian country.75 FR 69436(11/12/10).

WILDLIFE:

  • FWS updated its list of plant and animal species native to the United States that are candidates for the list of endangered and threatened wildlife and plants under the ESA.75 FR 69222(11/10/10).
  • FWS determined endangered status under the ESA for the Georgia pigtoe mussel, the interrupted rocksnail, and the rough hornsnail and designated approximately 160 miles of stream and river channels in Alabama, Georgia, and Tennessee as critical habitat for the three species.75 FR 67512(11/2/10).
  • FWS proposed listing the rayed bean and the snuffbox as endangered throughout their ranges under the ESA.75 FR 67552(11/2/10).
  • FWS announced a 90-day finding on a petition to list the Bay Springs salamander as endangered under the ESA; the Agency found that listing is not warranted.75 FR 67341(11/2/10).

DOJ NOTICES OF SETTLEMENT:

  • United States v. Douglas Mining Co., No. 10-525-EJL (D. Idaho Oct. 26, 2010). A settling CERCLA defendant responsible for violations at the Bunker Hill Mining and Metallurgical Complex Superfund site in northern Idaho must pay $16,000 in past and future U.S. response costs incurred at the site, must assign interest in insurance policies to a trust, and must pay two percent of net smelter returns generated from any future mining activities.75 FR 67767(11/3/10).
  • In re Smurfit Stone Container Corp., No. 09-10235 (Bankr. D. Del. Oct. 28, 2010). A settling CERCLA and OPA defendant responsible for violations at sites in California, Florida, Maryland, North Carolina, and Oregon must distribute stock in the total amount of $15,358,174 for federal environmental and natural resource trustee claims.75 FR 67767(11/3/10).
  • United States v. Pennsylvania, No. 2:10-cv-01469-JFC (W.D. Pa. Nov. 3, 2010). Settling CAA defendants responsible for emissions from university campus boilers must pay a $50,000 civil penalty; must install pollution control technology; must comply with regulatory emissions limits; must store its coal in a coal storage building; and must perform periodic testing to ensure compliance.75 FR 69125(11/10/10).
  • United States v. Bristol Township, No. 10-5049 (E.D. Pa. Sept. 27, 2010). A settling CWA defendant responsible for violations at its POTW must pay a $226,000 civil penalty and must implement a series of immediate reforms, repairs, and upgrades to assess its collection system and to determine what additional capital improvements will be required.75 FR 68620(11/8/10).
  • United States v. Century Homebuilders, LLC, No. 1:09-CV-22258 (S.D. Fla. Nov. 1, 2010. Settling CWA defendants must pay a civil penalty, must enhance wetlands, and must purchase mitigation credits.75 FR 68620(11/8/10).

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:

AlabamaCaliforniaDelawareDistrict of ColumbiaIdahoIllinoisIndianaKentuckyLouisianaMaineMarylandMissouriNew HampshireNew JerseyNew YorkOregonTennesseeTexasVirginiaWashingtonWisconsin

ALABAMA

Hazardous & Solid Waste:

CALIFORNIA

Air:

  • The Air Resources Board proposed to amend Calif. Code Regs. tit. 13, §§2449-2449.3, In–Use Off–Road Diesel–Fueled Fleets. There will be a public hearing on December 16, 2010.Seehttp://www.oal.ca.gov/res/docs/pdf/notice/44z-2010.pdf(pp. 1804-13).
  • The Air Resources Board proposed to amend Calif. Code Regs. tit. 13, §§95301-95307, 95309, and 95311. Changes will affect the Regulation to Reduce Emissions of Diesel Particulate Matter, Oxides of Nitrogen and Other Criteria Pollutants from In-Use Heavy-Duty Diesel-Fueled Vehicles, the Heavy-Duty Vehicle Greenhouse Gas Emission Reduction Measure, and the regulation for In-Use On-Road Heavy-Duty Diesel-Fueled Drayage Trucks at Ports and Intermodal Rail Yard Facilities. There will be a public hearing on December 16, 2010.Seehttp://www.oal.ca.gov/res/docs/pdf/notice/44z-2010.pdf(pp. 1813-27).

Climate:

  • The Air Resources Board proposed the adoption of the new Calif. Code Regs. tit. 17, §5, which would implement a greenhouse gas cap-and-trade program. The regulation will provide a fixed limit on greenhouse gas emissions from the sources responsible for about 85 percent of the state's emissions and is designed to link up with regional partners including the Western Climate Initiative. There will be a public hearing on December 16, 2010.Seehttp://www.oal.ca.gov/res/docs/pdf/notice/44z-2010.pdf(pp. 1832-39).
  • The Air Resources Board proposed the adoption of the new Calif. Code Regs. tit. 17, §95100 et seq., pertaining to the mandatory reporting of greenhouse gases. There will be a public hearing on December 16, 2010.Seehttp://www.oal.ca.gov/res/docs/pdf/notice/44z-2010.pdf(pp. 1839-46).

Wildlife:

  • The Department of Parks and Recreation proposed to adopt Calif. Code Regs. tit. 14 §3.11.8, Habitat Conservation Fund. The fund was established by the California Wildlife Protection Act and gives state funds to assist in protecting, restoring, and enhancing wildlife habitat and fisheries throughout California. Changes incorporate by reference eight application and grant administration guides. There will be a public hearing on December 21, 2010, and the last day for written comment is December 20.Seehttp://www.oal.ca.gov/res/docs/pdf/notice/45z-2010.pdf(pp. 1877-80).

DELAWARE

Hazardous & Solid Waste:

Water:

DISTRICT OF COLUMBIA

Water:

IDAHO

Air:

  • The Department of Environmental Quality amended Idaho Admin. Code r. 58.01.01, Rules for the Control of Air Pollution in Idaho. Changes relate to mercury emissions from certain facilities and will take effect upon approval by the Idaho Legislature.Seehttp://adm.idaho.gov/adminrules/bulletin/bul/10bul/10nov.pdf(pp. 116-19).
  • The Department of Environmental Quality proposed to amend Idaho Admin. Code r. 58.01.01, Rules for the Control of Air Pollution in Idaho, to streamline rules regarding kraft pulp mills. There will be a public hearing on December 9, 2010.Seehttp://adm.idaho.gov/adminrules/bulletin/bul/10bul/10nov.pdf(pp. 120-21).

ILLINOIS

Energy:

  • The Environmental Protection Agency adopted amendments to 35 Ill. Adm. Code 275, the Alternate Fuels Program. Among other changes, the amendment extends the rebate program to vehicles that operate on hydrogen fuel and biodiesel fuel and clarifies that electric vehicles do not include those that are on-board electric generation. The rules took effect October 18, 2010.Seehttp://www.cyberdriveillinois.com/departments/index/register/register_volume34_issue44.pdf(pp. 16841-67).

INDIANA

Air:

  • The Air Pollution Control Board amended 326 Ind. Admin. Code §§1.4.16, 1.4.46, and 1.4.65. The amendments restore eight-hour ozone attainment status to Lake and Porter counties, and also to Lawrenceburg Township. The changes take effect December 10, 2010.See http://www.in.gov/legislative/iac/20101110-IR-326100342FRA.xml.pdf.

KENTUCKY

Air:

LOUISIANA

Air:

  • The Department of Environmental Quality amended La. Admin. Code tit. 33:III §2103, Exemption for Tanks Storing Corrosive Materials. The rule exempts tanks storing corrosive materials at the Rhodia, Inc. Baton Rouge facility from the "submerged fill pipe" provisions of LAC 33:III.§2103.A and B.Seehttp://www.doa.la.gov/osr/reg/1010/1010.pdf(pp. 2270-76).

MAINE

Energy:

  • The Public Utilities Commission adopted amendments to Ch. 326, Green Power Offer. Changes implement recently enacted legislation that requires the Commission to arrange for a green power offer composed of green power supply to be available to the state's residential and small commercial electricity customers. The rule took effect October 31, 2010.Seehttp://www.maine.gov/sos/cec/rules/notices/2010/110310.html.

MARYLAND

Toxic Substances:

  • The Department of Agriculture proposed to amend Md. Code Regs. 15.05.02, Integrated Pest Management and Notification of Pesticide Use in a Public School Building or on School Grounds. Changes specify the period of time that a school is to maintain certain records related to integrated pest management and to make their records immediately available upon request to the department. The deadline for public comment is December 6, 2010.Seehttp://www.dsd.state.md.us/mdregister/3723.pdf(pp. 1624-25).

MISSOURI

Air:

  • The Department of Natural Resources amended the list of chemicals in Mo. Code Regs. Ann. tit. 10, §10-6.020, Definitions and Common Reference Tables. The changes would add propylene carbonate and dimethyl carbonate to the list of compounds that are not considered volatile organic compound (VOC) emissions while adding a number of compounds to the list that are considered to be VOCs.Seehttp://www.sos.mo.gov/adrules/moreg/current/2010/v35n21/v35n21b.pdf(pp. 1575).

Energy:

  • The Department of Natural Resources proposed to add new sections to Mo. Code Regs. Ann. tit.10, §140.2, Energy Set-Aside Fund, to amend several definitions to accommodate expansion of the scope of energy-using sectors to which loans may be offered. Comments are due by December 1, 2010.Seehttp://www.sos.mo.gov/adrules/moreg/current/2010/v35n21/v35n21b.pdf(pp. 1548-51).

Wildlife:

NEW HAMPSHIRE

Air:

  • The Department of Environmental Services proposed to amend ENV-A 1400, Regulated Toxic Air Pollutants. Among other changes, the amendment would give owners and operators of facilities that use the In-Stack Concentration Method more control over how they demonstrate compliance. There will be a public hearing on November 30, 2010, and the deadline for written comments is December 10.Seehttp://www.gencourt.state.nh.us/rules/register/2010/november-5-10.pdf(pp. 3-4).

NEW JERSEY

Water:

  • The expiration date of the Ground Water Quality Standards, N.J. Admin. Code 7:9C, has been extended from October 4, 2010, to April 4, 2012, by Governor Chris Christie. The date change took effect September 29, 2010.Seehttp://www.lexisnexis.com/njoal/(42 N.J.R. 2619a).

NEW YORK

Wildlife:

  • The Department of Environmental Conservation adopted amendments to N.Y. Comp. Codes R. & Regs. tit. 6 §182, Endangered and Threatened Species of Fish and Wildlife, which now mandates that endangered and threatened species may not be taken except under permit by the department. The amendment took effect November 3, 2010.Seehttp://www.dos.state.ny.us/info/register/2010/nov3/pdfs/rules.pdf(pp. 9-12).

OREGON

Climate:

  • The Department of Environmental Quality proposed to amend Or. Admin. R. 468 to include Greenhouse Gas permitting requirements. The Department will hold four hearings across the state from November 16-19, 2010, and the last day for comment will be November 24.Seehttp://arcweb.sos.state.or.us/rules/November_2010_Bulletin.pdf(p. 13).

Energy:

  • The Department of Energy proposed amendments to Or. Admin. R. 330-112. The rule establishes procedures, criteria, and fees for the implementation of the Energy Efficiency and Sustainable Technology Loan Program Pilots. There will be a public hearing on November 23, 2010, which is the last opportunity for public comment.Seehttp://arcweb.sos.state.or.us/rules/November_2010_Bulletin.pdf(pp. 12-13).

TENNESSEE

Air:

TEXAS

Land Use:

  • The Department of Natural Resources and Conservation proposed to amend 31 Tex. Admin. Code §13.2, Rules, Practice, and Procedure for Land Leases and Trades. Changes would give the School Land Board more discretion in approving land trades. The deadline for public comment is December 5, 2010.Seehttp://www.sos.state.tx.us/texreg/pdf/backview/1105/1105is.pdf(pp. 9834-35).

Water:

  • The Commission on Environmental Quality amended 31 Tex. Admin. Code §321.1, Boat Sewage Disposal. Among other changes, the rules now prohibit the discharge of all untreated sewage into all freshwater bodies whose entrance points and exit points are as such to prevent the ingress and egress by vessel traffic subject to the regulation, rivers that do not support interstate vessel traffic, and any other waterbody that is designated as a no discharge zone. The rule took effect November 11, 2010.Seehttp://www.sos.state.tx.us/texreg/pdf/backview/1105/1105is.pdf(pp. 9910-15).

VERMONT

Climate:

  • The Air Pollution Control Division proposed amendments to Air Pollution Control Regulations, Subchapter XI, Low Emission Vehicles - Regulations to Control Greenhouse Gas Emissions from Motor Vehicles. The rule would establish greenhouse gas requirements for the state's Low Emission Vehicle Program, phasing in requirements between model-years 2009 and 2016. In 2016, vehicles would be required to emit approximately 30 percent fewer greenhouse gases than without the regulation.Seehttp://www.anr.state.vt.us/air/htm/ProposedAmendments.htm#newsip.

WASHINGTON

Toxic Substances:

  • The Department of Commerce proposed to revise Wash. Rev. Code §70.103.10, regarding lead-based paint activities, to include new accreditation of training, certification of individuals and firms, work practice standards, information distribution requirements, and recordkeeping requirements. There will be a public hearing on December 15, 2010, and the intended date of adoption is December 16.Seehttp://apps.leg.wa.gov/documents/laws/wsr/2010/21/10-21-085.htm.

WISCONSIN

Air:

  • The Department of Natural Resources proposed amendments to Wis. Admin. Code NR §§400, 410, 411, and 484, relating to the indirect source air management permit program. There will be a public hearing on November 18, 2010, and the comment period ends November 29.Seehttp://www.legis.state.wi.us/rsb/code/register/reg658b.pdf(pp. 31-33).

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

INTERNATIONAL

EUROPEAN UNION ADOPTS LEGISLATION ON INDUSTRIAL EMISSIONS

The European Commission announced last week that it had adopted legislation that will bring down industrial emissions from combustion plants across the EU, increasing requirements for Best Available Techniques and emission monitoring and reporting. According to a press release from the Commission, the measures will prevent an estimated 13,000 premature deaths and result in a savings by member states of up to €28 billion. Existing reduction efforts by the EU recently resulted in a 5 percent decrease in carbon emissions from vehicles in Europe, the largest reported since the monitoring scheme began in 2000. However, other measures are stagnating; carbon auctions for the post-2012 period of the emissions program are in question. Part of the uncertainty is due to the ongoing argument over whether to allow forest protection to fill in any gap from industrial gas credits. In addition, converting dependency from oil to biofuels hit a roadblock as an independent analysis of 2020 energy and emissions targets found that the switch would actually result in increased greenhouse gas emissions, as land use changes necessary to produce biofuels in addition to feeding Europe would result in the clearing of millions of acres. For the story on the European Commission's new legislation, seehttp://europa.eu/rapid/pressReleasesAction.do?reference=IP/10/1477&format=HTML&aged=0&language=EN&guiLanguage=en. For EU vehicle C02 reduction, seehttp://www.upi.com/Science_News/Resource-Wars/2010/11/11/Vehicle-emissions-down-in-eurozone/UPI-85091289482389/. For the story on forestry credits, seehttp://www.bloomberg.com/news/2010-11-11/eu-may-allow-carbon-credits-from-forestry-to-fill-gap-bnp-trader-says.html.For the analysis of 2020 targets, seehttp://www.upi.com/Science_News/2010/11/11/Study-Biofuel-not-the-answer-for-EU/UPI-57041289523518/.

UK COULD SAVE £700 BILLION WITH GAS USAGE

In the face of Britain's struggles to cut its deficit while maintaining goals for pollution reduction, a report released Friday suggested that focusing on gas as a future power source rather than renewable sources could save the United Kingdom nearly £700 billion. The Energy Network Association released a report featuring a "green gas" scenario in which Britain continues to use gas for heating and power generation and in which it steps up technology for carbon capture and storage. The report stated that this scenario would require less infrastructure and capacity generation than other models. The energy ministry announced a £9.5 billion competition to fund carbon capture and storage technology. Meanwhile, London began spraying streets with dust to combat particulate matter pollution from vehicle emissions that approaches the EU's legal limit. For the full story on the "green gas" report, seehttp://www.reuters.com/article/idUSTRE6AB2H820101112.For the story on dust in London, seehttp://www.reuters.com/article/idUSTRE6AB36E20101112.

BRAZIL OPENS FUND TO REDUCE DEFORESTATION; FOREST DEGRADATION REMAINS A PROBLEM

Brazil's state development bank announced last week that it has opened a fund worth $588 million to finance deforestation reduction projects. The fund provides low interest loans to rural groups to recover degraded land or link existing lands used for agriculture, according to the bank. Forest-saving efforts have been largely successful, as the country has reduced deforestation by 70 percent since a plan was introduced in 2003 and has brought it to its lowest levels since 1989. Deforestation reduction is the largest program in Brazil's planned cutting of carbon dioxide emissions by 36 percent by 2020, back to 1994 levels. However, degradation of the Amazon remains a problem in Brazil. Imazon, a research institute that monitors forest clearing, announced a 213 percent increase in forest degradation from August to September 2010 compared to the same period last year. While deforestation in that same time period fell by 20 percent, degradation, which includes damage from logging and fires, appeared to rise, especially in the region that accounts for most of Brazil's beef and soy production. Fires are damaging parts of southern Brazil, as the region is suffering from the worst drought in recorded history. For the story on the fund, seehttp://af.reuters.com/article/energyOilNews/idAFN1017190620101110. For the story on Imazon's monitoring, which includes a graph on Brazil's logging history, seehttp://news.mongabay.com/2010/1106-amazon_imazon.html.

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

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