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Weekly Update Volume 40, Issue 34

12/06/2010

 

LITIGATION 

CAA, MAXIMUM ACHIEVABLE CONTROL TECHNOLOGY:

The Fifth Circuit held that an energy company's current and ongoing construction of a coal-fired power plant, for which no maximum achievable control technology (MACT) determination has ever been made, violates CAA §112(g). In ordinary circumstances, there would be no question as to whether §112(g)'s requirement of a MACT determination applied to the plant. But in March 2005, EPA issued a rule removing coal and oil-fired electric utility steam generating units from the list of sources whose emissions are regulated under §112. As a result of EPA's delisting rule, the state environmental agency concluded that a MACT determination was not required, even though the company submitted an application for a MACT determination. But in February 2008, one month after construction of the plant began, the D.C. Circuit vacated EPA's March 2005 delisting rule. Accordingly, because §112(g)(2)(B) prohibits the act of construction, not merely the commencement thereof, the company's current and ongoing construction of a major source without a final MACT determination violates the plain language of the statute.Sierra Club v. Sandy Creek Energy Associates, L.P., No. 09-51079, 41 ELR 20036 (5th Cir. Nov. 23, 2010).

WILDLIFE, MARINE MAMMAL PROTECTION ACT, NEPA:

The Ninth Circuit held that the National Marine Fisheries Service (NMFS) violated the Marine Mammal Protection Act (MMPA), but not NEPA, when it authorized Idaho, Oregon, and Washington to kill up to 85 California sea lions annually at the Bonneville Dam in order to protect salmon in the Columbia River. Just because the NMFS concluded that sea lions were having a significant negative impact on listed salmonid populations did not mean that the agency had also determined that the authorized removal action would have a significant positive impact on these same populations. Similarly, even if the NMFS concluded that its action would have a "significant" positive impact on the fish populations involved, that would not necessarily translate into a finding of a significant effect on the quality of the human environment, as required by NEPA. The NMFS's application of the MMPA, however, was arbitrary and capricious in violation of the APA. The NMFS failed to adequately explain its finding that sea lions were having a "significant negative impact" on the decline or recovery of listed salmonid populations given the agency's earlier factual findings that fisheries that caused similar or greater mortality among these populations were not having significant negative impacts. Likewise, the agency did not adequately explain why a California sea lion predation rate of 1 percent would have a significant negative impact on the decline or recovery of those salmonid populations.Humane Society of the United States v. Locke, No. 08-36038, 41 ELR 20025 (9th Cir. Nov. 23, 2010).

FOIA, WILDLIFE, GPS DATA:

The Ninth Circuit reversed a lower court's grant of summary judgment in favor of an environmental group requiring the USDA, under FOIA, to disclose the GPS coordinates of wolf depredations to which it had responded. The district court held that the coordinates were not exempt from disclosure under FOIA Exemption 3 or Exemption 6. But §8791 of the Food, Conservation, and Energy Act of 2008 exempts from disclosure such geospatial data. In addition, it applies to this case even though the statute took effect after the USDA withheld the coordinates. The group seeks the prospective relief of an injunction directing the USDA to provide it with certain information. Section 8791 merely affects the propriety of this prospective relief and is therefore not impermissibly retroactive when applied in this case. Accordingly, the government need not hand over the requested GPS data.Center for Biological Diversity v. United States Department of Agriculture, No. 09-17233, 41 ELR 20035 (9th Cir. Dec. 2, 2010).

TAKINGS, PHYSICAL TAKINGS:

The Federal Circuit upheld a lower court decision rejecting landowners' claims that the United States had taken their property without just compensation by erecting a log boom that prevented them from using a slough next to their property. The government placed the log boom in the slough to remediate contamination at a nearby site. The landowners failed to state a physical takings claim because there has been no physical invasion of their land. The log boom is anchored to the bottom of the slough, and the plaintiffs do not own the bed of the slough. Nor can the landowners show that the government physically appropriated their rights to water in the slough by removing water entirely. And because the landowners did not own the property at the time of the governmental action, any regulatory takings claim they may have had was barred by the statute of limitations.CRV Enterprises, Inc. v. United States, No. 2009-5100, 41 ELR 20033 (Fed. Cir. Nov. 17, 2010).

CWA, SMCRA:

A district court dismissed a motion to dismiss environmental groups' citizen suit against five coal companies alleging thousands of violations of the CWA and SMCRA in West Virginia. Because EPA entered into a consent decree with the companies, the defendants argued that the groups' CWA claims are precluded by EPA's diligent prosecution. The consent decree, however, allows for citizen suits for violations that have occurred after the decree's date of lodging. In fact, EPA likely considered the threat of future citizen suits necessary to achieve compliance. To ignore the government's determination that the consent decree does not preclude future citizen suits would not only be unjust to the groups, it would completely undermine the government's discretion in drafting the decree's terms.Sierra Club v. Elk Run Coal Co., No. 2:10-00673, 41 ELR 20032 (S.D. W. Va. Nov. 23, 2010) (Copenhaver, Jr., J.).

INJUNCTIONS, GENETICALLY MODIFIED PLANTS:

A district court issued a preliminary injunction ordering genetically modified sugar beet seedlings--called stecklings--that were planted by four seed companies pursuant to permits issued by the USDA to be removed from the ground. Plaintiffs have made a strong showing that they and the environment are likely to suffer irreparable harm if the court does not issue an injunction. The evidence clearly demonstrates that, even with the existence of protocols designed to minimize any environmental harm, there is a significant risk that the plantings will cause environmental harm. Plaintiffs have further demonstrated a likelihood of harm stemming from the entire cycle of genetically engineered sugar beet plantings and production. Moreover, the likely environmental harm is irreparable. Plaintiffs also demonstrated significant procedural injury stemming from the USDA's NEPA violations. In addition, the balance of hardships between the parties and the public interest tips sharply in favor of plaintiffs and in favor of issuing an injunction.Center for Food Safety v. Vilsack, No. C 10-04038 JSW, 41 ELR 20034 (N.D. Cal. Nov. 30, 2010) (White, J.).

OIL LEASES, STANDING:

A district court held that environmental groups lack standing to challenge three decisions by the BLM and a decision by the Interior Board of Land Appeals concerning 39 federal oil and gas leases in Utah. The groups do not have standing because they have not shown that their members have suffered an injury-in-fact. Because the members’ past visitations to the land at issue do nothing more than create isolated visits to the areas in question, more specificity is required in their future planning to remove the injury from the "speculative" realm and place it within the realm of "concrete" and "imminent." Simply declaring their intent to return within the course of one year does not suffice.Southern Utah Wilderness Alliance v. Sierra, No. 2:07-cv-00199-CW, 41 ELR 20030 (D. Utah Nov. 16, 2010) (Waddoups, J.).

OPA, STATUTE OF LIMITATIONS:

A district court dismissed landowners' OPA claim against a company for damages stemming from an oil spill in the Verdigris River in Kansas, but denied the company's motion to dismiss the landowners' nuisance claim. The landowners failed to file their OPA claim within the three-year statute of limitations period. They filed their complaint on June 30, 2010, just within the three-year mark, but the complaint did not assert an OPA claim. On October 12, 2010, the landowners moved to amend their complaint to add the OPA claim. They argued that the amendment to their complaint relates back to the original date of filing of their complaint. But because an OPA claim requires a 90-day notice and a nonadversarial period, the court must look to the date of the amended complaint. Accordingly, the OPA claim cannot relate back to the June 30 filing date and is barred by the three-year statute of limitations. The landowners, however, may go forward with their nuisance claim. They have consistently alleged a continuing nuisance claim, and their claim is for temporary damages and is not barred by the two-year statute of limitations.Eastman v. Coffeyville Resources Refining & Marketing, LLC, No. 10-1216-MLB-KGG, 41 ELR 20031 (D. Kan. Nov. 19, 2010) (Belot, J.).

EVERGLADES, FINANCING:

The Supreme Court of Florida affirmed in part and reversed in part a lower court decision validating $650 million in "certificates of participation" to finance a water district's purchase of 73,000 acres of land owned by a sugar company for Everglades restoration purposes. Certificates of participation are a type of revenue bond that government agencies may issue to finance the undertaking of any capital, land acquisition, or other project for the purposes permitted by the state constitution and statutes. Here, the water district has the authority to issue the certificates of participation for the purchase since the obligation serves the public purpose of conserving and protecting water and water-related resources and the authorization of the obligation complies with the requirements of law. However, the certificates of participation may not be issued to purchase an option to buy certain property in the future since this option does not serve a public purpose. And to the extent that the substitution of other lands may implicate a pledge of the water district's ad valorem taxing power, such lands may not be substituted.Miccosukee Tribe of Indians of Florida v. South Florida Water Management District, Nos. SC 09-1817, -1818, 41 ELR 20028) (Fla. Nov. 18, 2010).

CALIFORNIA ENVIRONMENTAL QUALITY ACT, ENVIRONMENT IMPACT REPORT:

A California appellate court affirmed a lower court decision denying a petition challenging a city's approval of a project to build 560 residential units on a 200-acre site long used for agricultural purposes. A citizens group filed a petition, claiming that the environmental impact report (EIR) was legally inadequate as an informational document because it failed to properly address the project's significant impacts on area water supplies and agricultural land uses and that the city therefore abused its discretion in certifying it. But the EIR adequately analyzed the project's impacts on the basin and the water district's total water supplies. Moreover, substantial evidence shows that mitigation measures to reduce the project's direct and cumulative impacts on long-term agricultural uses in the area were not economically feasible. The court also rejected plaintiffs' claim that the city failed to proceed in a manner required by law because it limited the EIR's analysis of project alternatives to economically infeasible ones and rejected alternatives if they did not fully mitigate significant agricultural impacts. Similarly, the court rejected plaintiffs' claim that the findings the city made in adopting the statement of overriding considerations were not supported by substantial evidence.Cherry Valley Pass Acres & Neighbors v. City of Beaumont, No. E049651, 41 ELR 20026 (Cal. App. 4th Dist. Nov. 22, 2010).

CALIFORNIA ENVIRONMENTAL QUALITY ACT, MINISTERIAL ACTS:

A California appellate court reversed a lower court decision ordering a city to set aside its approval of a permit to demolish an historic building and to comply with the California Environmental Quality Act (CEQA) before considering reissuance of the permit. CEQA does not apply to the demolition permit at issue in this case because approval of that permit was a ministerial act. Under the plain language of the governing municipal code provision, the city had no authority to impose permit conditions that would render it discretionary. The possibility of a subsequent building permit does not alter this conclusion. Thus, because there are no actionable procedural violations, either of CEQA or of the governing municipal code provision, the petition challenging the city's approval should have been denied.Friends of the Juana Briones House v. City of Palo Alto, No. H033275, 41 ELR 20027 (Cal. App. 6th Dist. Oct. 27, 2010).

CALIFORNIA ENVIRONMENTAL QUALITY ACT, MINING:

A California appellate court reversed a lower court decision denying a petition challenging the adequacy of a county's environmental analysis of a proposed surface mining operation on a 40-acre site in the foothills of the Southern Sierra Nevada mountain range. The county limited its environmental review to the reclamation plan only and did not consider or analyze the potential impacts of the proposed mining operations because the mining would take place on federally owned land. The county believed that the BLM was considered to be the sole permitting agency for purposes of mining operations and responsible to perform its own environmental review under NEPA. But the county's role as lead agency under the California Environmental Quality Act (CEQA), in conjunction with its responsibilities under California's Surface Mining and Reclamation Act (SMARA), required it to evaluate the environmental effects of the whole mining project. On remand, the county must set aside its mitigated negative declaration concerning the reclamation plan as well as its approval of the conditional use permit for the reclamation plan, must comply with SMARA by requiring a permit for the proposed surface mining operations as well as the approval of a reclamation plan and any other requirements of SMARA, and must undertake environmental review of the entire project, including mining operations, as required by CEQA.Nelson v. County of Kern, No. F059293, 41 ELR 20029 (Cal. App. 5th Dist. Nov. 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 issued a final rule requiring monitoring and reporting of greenhouse gas (GHG) emissions from additional sources of fluorinated GHGs.75 FR 74774(12/1/10).
  • EPA issued a final rule requiring GHG monitoring and reporting from facilities that conduct geologic sequestration of carbon dioxide.75 FR 75060(12/1/10).
  • EPA assembled the requirements of the federally enforceable SIPs for each state and is making those compilations available to the public as required every three years by CAA §110(h).75 FR 71548(11/24/10).
  • EPA established air quality designations for certain areas in the United States for the 2008 lead NAAQS, identifying areas that do not meet the standards as well as areas that contribute to lead air pollution in a nearby area that does not meet the standards.75 FR 71033(11/22/10).
  • EPA added petroleum and natural gas systems to the list of source categories that are required to report GHG emissions.75 FR 74458(11/30/10).
  • EPA approved Delaware's negative declaration and request for EPA withdrawal of its CAA §§111(d) and 129 plan approval for hospital/medical/infectious waste incinerator (HMIWI) units.75 FR 73967(11/30/10).
  • EPA and the National Highway Traffic Safety Administration proposed rules to establish a comprehensive program to reduce greenhouse gas (GHG) emissions and to increase fuel efficiency for on-road, heavy-duty vehicles in response to a May 21, 2010, presidential directive.75 FR 74152(11/30/10).
  • EPA proposed to approve Delaware's negative declaration and request for EPA withdrawal of its CAA §§111(d) and 129 plan approval for HMIWI units; see above for direct final rule.75 FR 73996(11/30/10).
  • EPA entered into a proposed consent decree inAssociation of Irritated Residents v. Jackson, No. 3:10-CV-03051-WHA (N.D. Cal.), that establishes a deadline for the Agency to take action on the 2008 San Joaquin Valley nonattainment SIP for particulate matter.75 FR 71125(11/22/10).
  • EPA entered into a proposed consent decree in the lawsuitSierra Club v. Jackson, No. 10-cv-01954 VRW (N.D. Cal.), that establishes a deadline for the Agency to take final action to approve, disapprove, or partially approve/disapprove the San Joaquin Valley air pollution control district's 8-hour ozone plan.75 FR 71126(11/22/10).
  • EPA entered into a proposed consent decree inWildEarth Guardians v. Jackson, No. 1:10-cv-01672-RPM (D. Colo.), that requires the Agency to respond to three administrative petitions to object to the issuance of air permits for coal-fired power plants in Boulder County, Denver, and Morgan County, Colorado.75 FR 74046(11/30/10).
  • EPA entered into a proposed consent decree inSierra Club v. Jackson, No. 10-cv-00889-CKK (D.D.C.), that establishes deadlines for the Agency to take action on certain Kentucky SIP submittals.75 FR 74048(11/30/10).
  • EPA granted in part and denied in part a petition seeking EPA's objection to a Title V operating permit issued to the Luke Paper Company in Luke, Maryland.75 FR 75463(12/3/10).
  • SIP Approvals:Colorado (interstate transport of pollution for the 1997 ozone NAAQS; partial approval)75 FR 71029(11/22/10). Georgia (one-year extension of attainment date for the Atlanta area)75 FR 73969(11/30/10); (Stage II gasoline vapor recovery rule)75 FR 74624(12/1/10); (PSD and nonattainment new source review rules)75 FR 71018(11/22/10). Idaho (interstate transport of particulate matter (PM) and ozone)75 FR 72705(11/26/10). Indiana (Clean Air Interstate Rule)75 FR 72956(11/29/10). New Mexico (interstate transport of PM and ozone)75 FR 72688(11/26/10). North Dakota (interstate transport of pollution for the 1997 particulate matter (PM) and ozone NAAQS; partial approval)75 FR 71023(11/22/10). Ohio (eight-hour ozone maintenance plan for the Cincinnati-Hamilton area)75 FR 72954(11/29/10). Oklahoma (interstate transport of PM and ozone)75 FR 72695(11/26/10).
  • SIP Proposals: California (partial approval of 1997 annual and 24-hour fine PM NAAQS for the San Joaquin Valley nonattainment area)75 FR 74518(11/30/10); (PM NAAQS in the Los Angeles-South Coast Air Basin nonattainment area and 2007 state strategy; partial approval)75 FR 71293(11/22/10). Georgia (new source review, PSD program, fine PM, and GHG tailoring rule revisions)75 FR 73017(11/29/10); (Stage II gasoline vapor recovery rule; see above for direct final rule)75 FR 74673(12/1/10). Indiana (Clean Air Interstate Rule; see above for direct final rule)75 FR 73026(11/29/10). Ohio (eight-hour ozone maintenance plan for the Cincinnati-Hamilton area; see above for direct final rule)75 FR 73025(11/29/10).
  • SIP Disapproval: Indiana (Environmental Stewardship Program and Comprehensive Local Environmental Action Network Community Challenge Program revisions)75 FR 72964(11/29/10).
  • SIP Withdrawals: Arizona (PM NAAQS attainment finding for the Hayden, Nogales, Paul Spur/Douglas area)75 FR 72964(11/29/10). Maryland (volatile organic compounds from specific processes regulation)75 FR 72963(11/29/10).

CHEMICALS:

  • EPA added 16 chemicals to the list of toxic chemicals subject to reporting under EPCRA §313.75 FR 72727(11/26/10).

ENERGY:

  • USDA's Office of Energy Policy and New Uses proposed to add 14 new sections to the Guidelines for Designating Biobased Products for Federal Procurement, including animal repellents, interior paints and coatings, and hair care products.75 FR 71491(11/23/10).

HAZARDOUS & SOLID WASTE:

  • EPA withdrew the bottom ash, fly ash, and scrubber water blowdown exclusion for Eastman Chemical Co.—Texas Operations due to adverse comment.75 FR 73972(11/30/10).
  • EPA, due to adverse comments, withdrew its approval of ExxonMobil Refining and Supply Company's petition to delist a certain solid waste generated at its Beaumont, Texas, facility from the list of hazardous wastes.75 FR 71559(11/24/10).

MINING:

  • OSM approved an amendment to Ohio's regulatory program under SMCRA concerning internal and procedural rules.75 FR 72947(11/29/10).

RADIOACTIVE WASTE:

  • DOE announced it will accept claims for reimbursement from eligible active uranium and thorium processing site licensees in FY 2011 for certain decontamination, decommissioning, reclamation, and other remedial action costs under Title X of the Energy Policy Act of 1992.75 FR 71677(11/24/10).

WILDLIFE:

  • USDA's Natural Resources Conservation Service issued a final rule for the Wildlife Habitat Incentive Program that sets forth how the agency will implement the program in response to changes made by the Food, Conservation, and Energy Act of 2008.75 FR 71325(11/23/10).

DOJ NOTICES OF SETTLEMENT:

  • In re Tronox Inc., No. 09-10156 (Bankr. Ct. S.D.N.Y. Nov. 23, 2010). Settling defendants must pay $270 million to governmental environmental claimants and five environmental response trusts in an underlying CERCLA and RCRA dispute, and one of the defendants must assign its rights in a pending fraudulent conveyance lawsuit to a litigation trust that will pay 88% of its net recoveries to the trusts and governmental claimants.75 FR 73130(11/29/10).
  • United States v. Atlantic Richfield Co., No. 10-578-EJL (D. Idaho Nov. 19, 2010). A settling CERCLA defendant must pay $6.75 million in U.S. response costs and natural resource damages in connection with the Bunker Hill Mining and Metallurgical Complex Superfund site in northern Idaho.75 FR 72839(11/26/10).

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

THE CONGRESS

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

Chamber Action

  • H.R. 5866 (nuclear energy), which would amend the Energy Policy Act of 2005 requiring the Secretary of Energy to carry out initiatives to advance innovation in nuclear energy technologies, make nuclear energy systems more competitive, and increase efficiency and safety of civilian nuclear power, was passed by the House. 156 Cong. Rec. H7730-33 (daily ed. Nov. 30, 2010).
  • H.R. 6184 (water development), which would amend the Water Resources Development Act of 2000 to extend and modify the program allowing the Secretary of the Army to accept and expend funds contributed by non-federal public entities to expedite the evaluation of permits, was passed by the House. 156 Cong. Rec. H7823-26 (daily ed. Dec. 1, 2010).

Bills Introduced

  • S. 3980 (Ensign, R-Nev.) (federal land)would direct the Secretary of the Interior to transfer to the Secretary of the Navy certain federal land in Churchill County, Nevada. 156 Cong. Rec. S8244 (daily ed. Nov. 29, 2010). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 3993 (Wyden, D-Or.) (geothermal energy)would expand geothermal production, among other purposes. 156 Cong. Rec. S8348 (daily ed. Dec. 1, 2010). The bill was referred to the Committee on Energy and Natural Resources.
  • H.R. 6482 (Richardson, D-Cal.) (diesel emissions)would amend the Energy Policy Act of 2005 to reauthorize and modify provisions relating to the diesel emissions reduction program. 156 Cong. Rec. H8030 (daily ed. Dec. 2, 2010). The bill was referred to the Committee on Energy and Commerce.
  • H.R. 6485 (Bishop, R-Utah) (endangered species)would provide that the inclusion of the gray wolf on lists of endangered and threatened species under the ESA shall have no force or effect. 156 Cong. Rec. H8030 (daily ed. Dec. 2, 2010). The bill was referred to the Committee on Natural Resources.
  • H.R. 6490 (Lummis, R-Wyo.) (soda ash)would amend the Soda Ash Royalty Reduction Act of 2006 to extend the reduced royalty rate for soda ash. 156 Cong. Rec. H8030 (daily ed. Dec. 2, 2010). The bill was referred to the Committee on Natural Resources.
  • H.R. 6493 (Salazar, D-Colo.) (federal land)would establish the boundary of the Curecanti National Recreation Area. 156 Cong. Rec. H8030 (daily ed. Dec. 2, 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:

 

CaliforniaDelawareIndianaIllinoisLouisianaMaineMarylandMissouriMontanaNew HampshireNew MexicoNew YorkOhioOklahomaOregonPennsylvaniaTexasUtahVermontVirginiaWashington

 

CALIFORNIA

Hazardous & Solid Waste:

  • The Office of Spill Prevention and Response proposed amendments to Cal. Code Regs. tit. 14, §4.817.02, pertaining to the Marine Facility Contingency Plan Requirements. The proposal would amend the regulations for the determination of the Reasonable Worst Case Spill Volume for offshore platforms, with and without active well drilling, increasing the daily production factor from 7 to 30 days. The deadline for written comments is January 3, 2011.Seehttp://www.oal.ca.gov/res/docs/pdf/notice/47z-2010.pdf (pp. 1947-49).

Toxic Substances:

  • The Office of Environmental Health Hazard Assessment proposed to amend Calif. Code Regs. tit. 27, §§25801 & 25803, No Observable Effect Levels. Amendments would change certain references to "dose level" to "level of exposure," and add language describing the definition of "no observable effect level." In addition, the office will add a default bodyweight for children and infants. The deadline for public comment is January 28, 2011.Seehttp://www.oal.ca.gov/res/docs/pdf/notice/48z-2010.pdf(pp. 1998-2000).

DELAWARE

Air:

  • The Department of Natural Resources and Environmental Control amended 7 Del. Admin. Code §60.1138, Emission Standards for Hazardous Air Pollutants for Source Categories. Changes pertain to air emissions from asphalt characterized as probable human carcinogens. The amendment takes effect December 11, 2010.Seehttp://regulations.delaware.gov/register/december2010/final/14%20DE%20Reg%20581%2012-01-10.htm#P11_307.
  • The Department of Natural Resources and Environmental Control adopted 7 Del. Admin. Code §60.1140, Delaware's National Low Emission Vehicle Regulation. The regulation adds a state Low Emission Vehicle program, incorporating the requirements from California's program, and mandating that only California-certified vehicles may be legally sold in the state starting in 2013. The Department said that, after extensive research with local car dealers, the highest percentage of non-California Air Resources Board certified cars available on any lot was 10%, while the majority of dealers had zero, one, or two vehicles without the certification.Seehttp://regulations.delaware.gov/register/december2010/final/14%20DE%20Reg%20583%2012-01-10.htm#P11_306.

Climate:

INDIANA

Air:

ILLINOIS

Air:

Water:

  • The Environmental Protection Agency amended 35 Ill. Adm. Code 365, Procedures for Issuing Loans from the Water Pollution Control Loan Program, and 662, Procedures For Issuing Loans From the Public Water Supply Loan Program. Changes amend the interest rate charged for loans, allow principal forgiveness, streamline the loan application process, and add provisions to address green infrastructure projects in accordance with the Agency's Capitalization Grant Agreement with U.S. EPA. The amendments took effect November 8, 2010.Seehttp://www.cyberdriveillinois.com/departments/index/register/register_volume34_issue47.pdf(pp. 17582-736).

Wildlife:

  • The Department of Natural Resources proposed to amend 17 Ill. Adm. Code 1010, Illinois List of Endangered and Threatened Fauna. Changes would add language to state that species or subspecies designated as federally endangered or threatened are included on the list, and add the Northern Riffleshell to the list as a result of the department's reintroduction of the species into two Illinois streams. The deadline for comment is January 10, 2011.See http://www.cyberdriveillinois.com/departments/index/register/register_volume34_issue48.pdf(pp. 17929-38).

LOUISIANA

Air:

  • The Department of Environmental Quality amended La. Admin. Code tit. 33:III §509, Prevention of Significant Deterioration. Changes relate to significance level for fine particulate matter emissions.Seehttp://www.doa.la.gov/osr/reg/1011/1011.pdf(p. 2556)
  • The Department of Environmental Quality amended La. Admin. Code tit. 33:III §§111, 311, 501, 605, 918, 919, 1513, 2115, 2139, 2141, 2153, and 5107, relating to the Criteria Pollutant Emissions Inventory. Revisions are intended to allow flexibility in updating the required elements for reporting, as well as make the regulations easier to interpret, enforce, govern, and permit. There will be a public hearing on December 29, 2010, and the deadline for public comment is January 5, 2011.Seehttp://www.doa.la.gov/osr/reg/1011/1011.pdf(pp. 2688-700).

MAINE

Air:

  • The Department of Environmental Protection proposed to amend Ch. 117, Source Surveillance – Emissions Monitoring. Changes would update and standardize requirements for air emission sources that are required to continuously monitor their emissions, including technological improvements in air quality monitoring since 1994, the last time the rule was modified. There will be a public hearing on December 16, 2010, and the deadline for comments is December 27.Seehttp://www.maine.gov/sos/cec/rules/notices/2010/112410.html.

Wildlife:

  • The Department of Environmental Protection amended Ch. 1000, State of Maine Guidelines for Municipal Shoreland Zoning Ordinances. Changes alter the date of the data set used for the purposes of establishing Resource Protection District areas, specifically those adjacent to freshwater wetlands that are rated as moderate or high value waterfowl and wading bird habitat by the Department of Inland Fisheries and Wildlife. The date was changed from May 1, 2006, to December 31, 2008. The amendments took effect November 22, 2010.Seehttp://www.maine.gov/sos/cec/rules/notices/2010/112410.html.

MARYLAND

Water:

  • The Department of the Environment amended Md. Code Regs. 26.08.02, Water Quality. Changes update and revise several state and site-specific water quality standards. Among other changes, amendments add numeric toxics criteria for acrolein and phenol and revise intermittent stream regulation. The rule took effect November 29, 2010.Seehttp://www.dsd.state.md.us/mdregister/3724.pdf(p. 1660).

MISSOURI

Energy:

  • The Department of Natural Resources amended Mo. Code Regs. tit. 10, §140.8, Certification of Renewable Energy and Renewable Energy Standard Compliance Account. The law is meant to implement Proposition C, Renewable Energy Standard, in which Missouri voters elected to require utility companies to gradually increase their usage of renewable energy annually until 15 percent of the energy used in the state is renewable.See http://www.sos.mo.gov/adrules/moreg/current/2010/v35n23/v35n23b.pdf(pp. 1807-11).

MONTANA

Land Use:

  • The Department of Environmental Quality proposed changes to Mont. Admin. R. 36.11.402, regarding forest management rules for implementing conservation easements and habitat conservation plans. The amendment adds rules for land subject to a habitat conservation plan.See http://sos.mt.gov/arm/Register/archives/MAR2010/MAR10-22.pdf(pp. 2687-89).

NEW HAMPSHIRE

Air:

Toxic Substances:

  • The Pesticide Control Board proposed to amend Pes. 101.36, 303.01, 306.05, 503.03, & 402.01 (o). The rules describe the requirements for a commercial-for-hire pesticide applicator to obtain a supervisory level certificate. There will be a public hearing scheduled on December 14, 2010.Seehttp://www.gencourt.state.nh.us/rules/register/2010/november-19-10.pdf(pp. 4-8).

NEW MEXICO

Climate:

  • The Department of Environmental Protection adopted N.M. Admin. Code §20.2.350, Greenhouse Gas Cap-and-Trade Provisions. The rule creates a cap on greenhouse gases with annual cap reductions of 1.5% for the year after the initial cap year, and 2% per year for the following seven years, and describes regulations for establishing allowances, monitoring accounts, and trading offset credits. The rule takes effect January 11, 2011.Seehttp://www.nmcpr.state.nm.us/nmregister/xxi/xxi22/20.2.350new.htm.

Water:

  • The Water Quality Control Commission proposed to amend N.M. Admin. Code §20.6.2, Certification of Federal CWA Permits. Changes would provide a minimum of 30 days for public comment on a draft permit, provide that all pertinent public comments must be considered, and provide for appeal of the permit certification or denial. There will be a public hearing on January 11, 2011.Seehttp://www.nmcpr.state.nm.us/nmregister/xxi/xxi22/WaterQualnotice.htm.

NEW YORK

Air:

  • The Department of Environmental Conservation proposed amendments to N.Y. Comp. Codes R. & Regs. tit. 6, §217, ending the transient emissions short test program and updating the vehicle inspection program. The test program is specific to nine counties, while the vehicle inspection program is statewide. In addition to other inspection criteria updates, the department proposed the addition of new requirements that a vehicle fail inspection if it was tampered with by the installation of aftermarket parts. The rule will take effect December 24, 2010.Seehttp://www.dos.state.ny.us/info/register/2010/nov24/pdfs/rules.pdf(p. 7).
  • The Department of Environmental Conservation amended N.Y. Comp. Codes R. & Regs. tit. 6, §218, Emission Standards for Motor Vehicles and Motor Vehicle Engines, and Part 200, General Provisions. The amendments incorporate California's revisions to the greenhouse gas emission standards that have been adopted as part of the low emission vehicle program. Changes take effect December 24, 2010.See http://www.dos.state.ny.us/info/register/2010/nov24/pdfs/rules.pdf(p. 7).

OHIO

Air:

OKLAHOMA

Water:

  • The Department of Environmental Quality proposed to amend Okla. Admin. Code §252.606, Oklahoma Pollutant Discharge Elimination System Standards. Among other changes, the amendments would define categorical industries, allow certain stormwater and discharge monitoring report documents to be submitted electronically, and establish stream monitoring requirements for industrial wastewater discharging facilities that contain permit limits for oxygen demanding substances. There will be a public hearing on January 11, 2011, and the deadline for written comments is December 31, 2010.See http://www.oar.state.ok.us/register/Volume-28_Issue-06.htm#a18691.
  • The Department of Environmental Quality proposed to amend Okla. Admin. Code §252.611, General Water Quality. Changes would establish fees for certification required by the CWA. The department has previously been processing applications and issuing certification at no charge. There will be a public hearing on January 11 and February 25, 2011, and the deadline for written comments is December 31, 2010.See http://www.oar.state.ok.us/register/Volume-28_Issue-06.htm#a19749.
  • The Department of Environmental Quality proposed to amend Okla. Admin. Code §252.621, Non-Industrial Flow-Through and Public Water Supply Lagoons Including Land Application. Changes would reduce the maximum slope of a wastewater land application site from 10% to no more than 5%. There will be a public hearing on January 11 and February 25, 2011, and the deadline for written comments is December 31, 2010.Seehttp://www.oar.state.ok.us/register/Volume-28_Issue-06.htm#a21799.
  • The Department of Environmental Quality proposed to amend Okla. Admin. Code §252.656, Water Pollution Control Facility Construction Standards. Changes would limit who is eligible to obtain a wastewater construction permit, make the requirements for variances from construction standards in this chapter consistent with the proposed variance requirements in OAC 252:626 (Public Water Supply Construction Standards), and require disinfection from lagoon systems that discharge to "waters of the state" where beneficial use of the receiving water body is designated in Oklahoma's Water Quality Standards (OAC 785:45) as either "Primary Body Contact Recreational" or "Public or Private Water Supply," in addition to other changes. There will be public hearings on January 11 and February 25, 2011, and the deadline for written comments is December 31, 2010.Seehttp://www.oar.state.ok.us/register/Volume-28_Issue-06.htm#a25634.
  • The Department of Environmental Quality proposed to amend Okla. Admin. Code §252.690, Water Quality Standards Implementation. Among other changes, amendments would require facilities to pass three consecutive retests within a six-month period following a whole effluent toxicity testing failure, and require industries that discharge oxygen demanding substances to conduct process control tests at the same frequency currently established for municipalities. There will be public hearings on January 11 and February 25, 2011, and the deadline for written comments is December 31, 2010.See http://www.oar.state.ok.us/register/Volume-28_Issue-06.htm#a27402.

OREGON

Energy:

  • The Department of Energy proposed to amend Or. Admin. R. 330.70, pertaining to the eligibility criteria for residential alternative energy devices and the calculation of net costs. The rule would change definitions in the Residential Energy Tax Credit rules to include energy purchase agreements, installed output, and third-party financing, and would redefine net costs and eligible alternative vehicles. The rule amendments would also modify the criteria for determining the amount of credit and system certification requirements, extend the time for technician tax credit certification from an annual to three-year cycle, increase the standard for total solar resource fraction, and increase the eligibility requirements for appliances.Seehttp://arcweb.sos.state.or.us/rules/1210_Bulletin/1210_rulemaking_bulletin.html.

PENNSYLVANIA

Air:

  • The Environmental Quality Board adopted amendments to 25 Pa.Code §121 & 129. The amendments limit emissions of volatile organic compounds from the use and application of coatings and cleaning materials in paper, film, and foil surface coating processes. The amendments took effect November 19, 2010.Seehttp://www.pabulletin.com/secure/data/vol40/40-47/2190.html.

TEXAS

Hazardous & Solid Waste:

  • The Railroad Commission of Texas proposed to amend 16 TAC §§3.20 & 3.71, relating to notification of leaks and blow-outs, to add contamination report guidelines, re-enact the liability provisions, and permit use of money in the oil-field clean-up fund to implement the section. The earliest possible date of adoption is December 19, 2010.Seehttp://www.sos.state.tx.us/texreg/pdf/backview/1119/1119is.pdf(pp. 10116-22).

Water:

  • The Commission on Environmental Quality proposed an amendment to 30 Tex. Admin. Code §298. Changes would apply the surface water quality standards of Trinity and San Jacinto Rivers and Galveston Bay to all state waters. There will be a public hearing on December 16, 2010. See http://www.sos.state.tx.us/texreg/pdf/backview/1119/1119is.pdf(pp. 10168-81).
  • The General Land Office proposed to amend 31 Tex. Admin Code §1.13, Land Resources. Changes would affect leased property on state-owned riverbeds and beds of navigable streams. The deadline for public comment is December 29, 2010.See http://www.sos.state.tx.us/texreg/pdf/backview/1126/1126is.pdf(pp. 10421-23).

UTAH

Water:

  • The Department of Environmental Quality proposed to amend Utah Admin. Code r. 309-110-4, Drinking Water. Changes would add definitions for ultraviolet light disinfection terminology in support of the disinfection rule update and define "detectable residual" for other disinfectants. The deadline for comments is December 31, 2010, and the rule may become effective on January 7, 2011.Seehttp://www.rules.utah.gov/publicat/bull_pdf/2010/b20101201.pdf(pp. 34-48).

VERMONT

Water:

VIRGINIA

Energy:

  • The Department of Environmental Quality amended 9 Va. Admin. Code §15.40, Small Renewable Energy Projects (Wind) Permit by Rule. The rule establishes requirements for potential environmental impacts analyses, mitigation plans, facility site planning, public participation, permit fees, interagency consultations, compliance, and enforcement. Changes take effect December 22, 2010.Seehttp://legis.state.va.us/codecomm/register/vol27/iss06/v27i06.pdf(pp. 640-51).

WASHINGTON

Air:

Land Use:

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

INTERNATIONAL

EU RETHINKS RENEWABLE ENERGY SUBSIDIES

Several EU member states have begun debating cuts or changes to renewable energy subsidy policies in the face of misuse and economic downturn. Last week, the government of Spain approved cuts to its wind energy subsidies totaling 35% until 2012, and eliminated support entirely for solar thermal plants, to save 1.1 billion euros by 2013. Prime Minister Zapatero said the measures were designed to rein in power prices; according to Bloomberg, the cost of delivering electricity to Spanish homes has exceeded revenue every year since 2005. In Italy, a BBC investigation found that millions of euros had been fraudulently obtained as renewable energy grants by organized crime. According to a former Sicilian crime boss, the modern mafia owned interests in wind farms that had received Structural Fund money through fake transactions and double invoices. The European Commission, the source of grant money for many European renewable projects, estimates that 1.22 billion euros worth of Structural Funds involved irregularities and fraud. With Sicily expected to receive an additional 6.5 billion euros of structural funding over the next seven years, critics say there is a lack of safeguards to protect money for renewable energy projects. In addition, debate over the benefit and proper regulation of biofuels has stalled its growth across the continent. Some suggest subsidies for biofuel have resulted in everything from widespread land use changes across the continent to ire over a possible hike in the price of beer in Germany. Coal mining subsidies, however, are expected to remain in effect for the foreseeable future, as the European Parliament voted last week to continue to allow member states to subsidize coal mining operations until the end of 2018. For the story on Spanish wind energy, seehttp://www.bloomberg.com/news/2010-12-03/spain-cuts-subsidies-for-solar-thermal-some-wind-energy-plants.html. For the story on misuse of funds in Italy, seehttp://www.bbc.co.uk/news/world-europe-11848048. For the story on biofuels, seehttp://www.reuters.com/article/idUSTRE6A948O20101110.

LOCAL AND NATIONAL REGULATIONS AT ODDS IN PHILIPPINES MINING LAW

A controversial open pit mining ban in the South Cotabato province of the Philippines will stay in place until it's nullified by a court, despite a direct order from the Local Governments Secretary to suspend it immediately, the province's governor said last Thursday. Local Governments Secretary Jesse M. Robred said that the ban, which directly threatens a $5.2-billion Tampakan copper-gold project, went against national mining law, and that the governor must make necessary revisions after suspending the ban pending review. The governor said that the Department of Interior and Local Government were overstepping their bounds and that the department's role was "only administrative and supervisory." Department spokesman Ricky A. Carandang said, "There is a need to harmonize national and local policy with regard to mining. [The gist of the national policy is] please invest in responsible mining. When it comes to local policy, in many cases, [it’s] we don’t want mining, period." For the full story, seehttp://www.abs-cbnnews.com/business/12/03/10/gov%E2%80%99t-orders-s-cotabato-open-pit-mining-ban-shelved.

INDIA TO INCLUDE ENVIRONMENTAL COSTS IN GDP REPORTING

In the face of an unprecedented increase in emissions-heavy vehicles and certain regional air pollution death tolls on the rise, India announced plans to include by 2015 the cost of environmental damage to the economy when reporting GDP. Environment Minister Jairem Ramesh said that numbers indicating India's rapid growth, such as its expansion of 8.9% in the three months through September from a year earlier, fail to take into account costs from environmental damage, including rising public health bills and groundwater pollution. “If we are reporting GDP growth of 8% a year, actual GDP growth that takes into account environmental costs may be 2.5 percentage points lower,” he said. India is potentially poised to suffer serious changes due to environmental factors: a recent report National Environment Engineering Research Institute found that the facade of Taj Mahal is slowly turning yellow due to air pollution and that potential groundwater changes may damage its foundation. Last month, a report found that air pollution from wood smoke and neighborhood ambient pollution were greater factors in chronic obstructive pulmonary disease than smoking. For the story on India's changes to GDP reporting, seehttp://www.bloomberg.com/news/2010-11-30/india-plans-to-include-environmental-costs-in-gdp-data-update1-.html. For the story on Taj Mahal, seehttp://www.telegraph.co.uk/news/worldnews/asia/india/8179446/Taj-Mahal-falling-victim-to-chronic-pollution.html. For the story on air-pollution-related disease, seehttp://timesofindia.indiatimes.com/city/pune/Your-lungs-at-higher-risk-from-wood-smoke-dung-cakes/articleshow/6937971.cms.

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

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