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Weekly Update Volume 40, Issue 36

12/27/2010

LITIGATION 

RENEWABLE FUELS, ENERGY INDEPENDENCE AND SECURITY ACT:

The D.C. Circuit denied a petition challenging an EPA rule promulgated under the Energy Independence and Security Act that increased volume requirements for renewable fuel and established new volume requirements for advanced biofuels, biomass-based diesel, and cellulosic biofuel. Having missed the statutory deadline of December 19, 2008, by which Congress directed that EPA "shall" publish the revised regulations for the 2009 requirement, petitioners argued that EPA lacked authority to increase the 2010 volume requirement to include the 2009 volume requirement. But where there are less drastic remedies available for an agency's failure to meet a statutory deadline, courts should not assume Congress intended for the agency to lose its power to act. And to the extent the rule may be retroactive, EPA did not exceed its authority under the Energy Independence and Security Act.National Petrochemical & Refiners Ass'n v. Environmental Protection Agency, No. 10-1070, 41 ELR 20047 (D.C. Cir. Dec. 21, 2010).

NUCLEAR WASTE POLICY ACT, NUCLEAR WASTE FUND:

The D.C. Circuit denied a petition asking the court to order DOE to conduct an annual assessment under the Nuclear Waste Policy Act and to suspend the Nuclear Waste Fund (NWF) fee pending completion of the assessment. The Nuclear Waste Policy Act authorizes the Secretary of Energy to enter into contracts with generators of high-level radioactive waste and spent nuclear fuel. Under such contracts, the Secretary must dispose of nuclear waste in exchange for payment from the producers of the waste. For nuclear waste sold on or after 90 days after the enactment of the Act, the Secretary must charge a fee, which is to be deposited into the NWF. Thereafter, the Secretary must conduct an annual assessment of the NWF fee to determine whether it is adequate to offset the costs of its statutorily enumerated waste disposal activities. Because the DOE Secretary has since conducted his annual assessment, the petitioners' claims are moot and the court lacks jurisdiction to address them. Petitioners also asked the court to order the Secretary to suspend the NWF fee in light of the current status of DOE's waste disposal program. But this request is unripe. Given the Secretary's recent completion of the annual assessment, petitioners may now be able to properly raise this claim through a challenge to that assessment.National Ass'n of Regulatory Utility Commissioners v. United States Department of Energy, No. 10-1074, 41 ELR 20048 (D.C. Cir. Dec. 13, 2010).

CERCLA, CONTRIBUTION:

The Seventh Circuit reversed a lower court decision dismissing on res judicata grounds a company's CERCLA §113(b) contribution claim against other polluters for costs it incurred after being found liable for groundwater contamination in a class action suit. The parties reached a $16 million settlement agreement in 2006. The defendants then had to allocate the expense among themselves, and they did so in a series of agreements. Each agreement, so far as it relates to the present contribution suit, releases in the broadest possible terms any claims for contribution by any defendant against any other defendant that had been or could have been made "from the beginning of time." But this sweeping release is qualified: the agreement does "not release any claims other than the specified claims and do[es] not release claims that may arise in other litigation or in other contexts related to alleged contamination" at the site. Accordingly, the settlements confine release to claims by defendants against one another concerning the allocation of the $16 million only. The agreements do not release claims concerning costs incurred outside the settlement. Thus, the defendant companies have no defense of res judicata in the present suit.Arrow Gear Co. v. Downers Grove Sanitary District, Nos. 09-1509, -4030, 41 ELR 20045 (7th Cir. Dec. 10, 2010).

CERCLA, CONTRIBUTION:

A district court held that the U.S. Army Corps of Engineers' permitting activities allowing the dredging of the Thea Foss Waterway in Washington state does not give rise to the United States' liability as an operator or arranger under CERCLA. In 2009, the Washington State Department of Transportation filed a counterclaim against the United States seeking contribution under CERCLA §113(f). But because the Corps' involvement in third parties' dredging was "purely regulatory," the state cannot establish that the Corps is liable under CERCLA §113(f) based on the issuance of permits to private parties. The Corps' permitting activities do not give rise to operator liability because there are no genuine issues of material fact as to whether the Corps managed, directed, or controlled third-party dredging operations or had hands-on, day-to-day control of the management of the waterway. Similarly, the Corps' permitting activities do not give rise to arranger liability because there are no genuine issues of material fact as to whether it owned or possessed the hazardous substances and arranged for their disposal, had the authority to control and exercised some actual control over the disposal of the hazardous substances, or took intentional steps to dispose of the hazardous substances that were apparently dredged by the third parties.United States v. Washington State Department of Transportation, No. 3:08-cv-5722, 41 ELR 20050 (W.D. Wash. Dec. 7, 2010) (Bryan, J.). 

CERCLA, PRPs:

A district court, on motions for summary judgment, dismissed a property owner's CERCLA action against several companies for costs it incurred responding to hazardous waste on its property. The owner failed toestablish that the defendant companies qualify as PRPs. One of the defendant companies owns land adjacent to the site, and there is evidence that the defendant's site was contaminated. But the owner offered no evidence that the deposits on the defendant's land made their way down to the owner's site. And in the absence of eyewitness testimony or other direct evidence, and without expert opinion linking the company to the contamination at the site, the circumstantial evidence the owner cites does not provide the court with a basis for denying the defendant's motion for summary judgment. As for the remaining defendant companies, the owner failed to show any nexus between the companies' activities and the site. Again, the owner failed to present evidence suggesting the defendants qualify as a PRP. Without making out this essential aspect of its CERCLA claim, that claim fails as a matter of law. DVL Inc. v. General Electric Co., No. 1:07-cv-1075, 41 ELR 20051 (N.D.N.Y. Dec. 6, 2010) (Kahn, J.).

WILDERNESS ACT, BIGHORN SHEEP:

The Ninth Circuit reversed a lower court decision that the FWS did not violate the Wilderness Act when it built two water stations in the Kofa National Wildlife Refuge and Wilderness in southwest Arizona, which is home to bighorn sheep, an endangered species. The Wilderness Act's prohibition on the creation of permanent structures within a wilderness area is strict, subject only to an exception for structures that are necessary to meet the minimum requirements for the administration of the purposes of the Act. The two water structures at issue here may, in fact, be necessary to meet the minimum requirements for conserving bighorn sheep, which is a permissible purpose. But, in light of the many other potential avenues of achieving bighorn sheep conservation identified by the FWS itself, the Service must provide enough evidence and explanation in the record to show that it fully considered those avenues and nevertheless rationally concluded that new water structures are, in fact, necessary. Because the record is wholly inadequate to meet that requirement, the lower court’s determination to the contrary was reversed and the case remanded with instructions to determine the appropriate remedy.Wilderness Watch, Inc. v. U.S. Fish & Wildlife Service, No. 08-17406, 41 ELR 20049 (9th Cir. Dec. 21, 2010).

ESA, BIOLOGICAL OPINIONS:

A district court remanded FWS' 2008 biological opinion (BiOp) addressing the impacts of the coordinated operations of the federal Central Valley Project and State Water Project on the threatened delta smelt. The case arose after several water districts and farms filed suit against FWS challenging its 2008 BiOp. In a 225-page opinion, the court ultimately held that the BiOp, as well as its reasonable and prudent alternative (RPA), are arbitrary, capricious, and unlawful. Although there is record support for the BiOp's conclusion that project operations are likely to jeopardize the continued existence and/or adversely modify the critical habitat of the delta smelt, the analyses supporting the specific flow prescriptions set forth in the RPA are fatally flawed and predominantly unsupported. For example, the BiOp does not justify or explain its attribution to project operations adverse impacts caused by others stressors. When combined, the totality of these failures demand remand to the agency. The court also noted that "in view of the legislative failure to provide the means to assure an adequate water supply for both the humans and the species dependent on the Delta, the public cannot afford sloppy science and uni-directional prescriptions that ignore California’s water needs."In re Delta Smelt Consolidated Cases, Nos. 1:09-cv-00407 OWW DLB et al., 41 ELR 20053 (E.D. Cal. Dec. 14, 2010) (Wanger, J.).

NEPA, STANDING:

The Sixth Circuit reversed and remanded a lower court decision upholding the U.S. Forest Service's forest plan and final EIS for the Daniel Boone National Forest. Environmental groups argued that the Service failed to consider the reasonable alternative of "no commercial logging," failed to consider the effects of herbicides generally, and failed to consider and to discuss adequately the effects of herbicide use. The lower court granted judgment in favor of the Forest Service based on the administrative record. But the case should have been dismissed for lack of jurisdiction. UnderBiological Diversity v. Lueckel, 417 F. 3d (6th Cir. 2005), environmental plaintiffs seeking to establish standing must identify particular segments of a river, sections and sub-sections of a forest, or passes in a mountain range that they use and will continue to use, and that agency action will detrimentally affect. Here, the environmental groups' standing affidavits are too general in their identification of site-specific activities that diminish or threaten to diminish their members' enjoyment of the designated forest sub-sections. Accordingly, the groups lack standing.Heartwood, Inc. v. Agpaoa, No. 09-5761, 41 ELR 20044 (6th Cir. Dec. 13, 2010).

PROPERTY LAW, DISCLOSURE:

A district court denied a motion to dismiss a property owner's fraud and unfair and deceptive trade practices claims against the seller for failing to disclose all of the hazardous substances present on the property. According to the owner, the seller falsely represented that the only hazardous substance on the property was a substance in the groundwater that had been identified by the state environmental agency. The owner further alleged that the false representations were made intentionally to cause the owner to buy the property for more than it was worth and that the false representations did in fact cause the owner to do so. The owner also alleged that the seller had knowledge of the other hazardous substances at the time of the sale and intentionally made false representations that were "reasonably calculated to deceive." Contrary to the seller's argument, these allegations are sufficient--a complaint does not need to prove an intent to deceive to survive a Rule 12(b)(6) motion. For the same reasons, the owner's unfair and deceptive trade practices claim may go forward as well. Metropolitan Group Inc. v. Meridian Industries, No. 3:09-CV-440, 41 ELR 20052 (W.D.N.C. Dec. 6, 2010) (Voorhees, J.).

PROPERTY LAW, TRESPASS:

The Eighth Circuit affirmed a lower court decision dismissing a property owner's action claiming that a watershed district exceeded the scope of a judge's order authorizing it to remove accumulated silt and topsoil from a ditch running next to a road along the length of one of the owner's fields. The owner argued that the district was not authorized to enter his land. But the plain meaning and clear import of the court order was to allow the district access to not only the ditch, but to the surrounding area necessary to conduct the clean out.Minch Family LLLP v. Buffalo-Red River Watershed District, No. 09-3223, 41 ELR 20043 (8th Cir. Dec. 15, 2010).

CALIFORNIA ENVIRONMENTAL QUALITY ACT, ENVIRONMENTAL IMPACT REPORT:

A California appellate court affirmed a lower court decision ordering a city council to set aside its approval of and final environmental impact report for a proposed road extension project. The decisionmakers and the public lacked complete information because an improper baseline was used for determining traffic and related impacts. Moreover, the administrative record does not contain substantial evidence to support the decision to deviate from the norm. And the environmental impact report, by using future traffic conditions as its baseline, did not adequately explain how the proposed project was expected to change the present conditions in which the public currently lived.Sunnyvale West Neighborhood Ass'n v. City of Sunnyvale City Council, No. H035135, 41 ELR 20046 (Cal. App. 6th Dist. Dec. 16, 2010).

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

THE FEDERAL AGENCIES

Note: Citations below are to theFederal Register(FR).

AGRICULTURE:

  • The Agricultural Marketing Service proposed revisions to the Federal Seed Act to update regulations and to prevent potential conflicts with states.75 FR 78932(12/17/10).

AIR:

  • EPA amended specific provisions in the greenhouse gas reporting rule to complement the final rule published on October 28, 2010.75 FR 79092(12/17/10).
  • EPA issued an SIP call to 13 states whose plans do not apply PSD requirements to greenhouse gas-emitting sources and established deadlines for their compliance.75 FR 77698(12/13/10).
  • EPA promulgated amendments on the collection and recovery procedures for particulate matter from stationary sources.75 FR 80118(12/21/10).
  • EPA proposed changes to the leak repair regulations for refrigeration and air-conditioning equipment that were promulgated in 1990 under CAA §608.75 FR 78558(12/15/10).
  • EPA issued a stay until March 14, 2011, of the requirement for chemical manufacturing area sources to comply with the NESHAPs permit program.75 FR 77760(12/14/10).
  • EPA proposed to issue a 90-day stay of the requirement for chemical manufacturing area sources to comply with the NESHAPs permit program; see above for direct final rule.75 FR 77799(12/14/10).
  • EPA proposed emission standards for wood furniture manufacturing operations and for the shipbuilding and ship repair source categories.75 FR 80220(12/21/10).
  • EPA proposed to restrict the states' use of emission reduction credits from outside a nonattainment area to meet the 1997 eight-hour ozone NAAQS.75 FR 80420(12/22/10).
  • EPA entered into a proposed consent decree inNatural Resources Defense Council, Inc. v. Jackson, No. CV-10-6029-MMM-AGR (C.D. Cal.), that establishes a deadline for the Agency to take final action on the 2007 SIP and management plan for the South Coast air quality management district.75 FR 80808(12/23/10).
  • EPA entered into a proposed consent decree inSierra Club v. Jackson, No. 10-cv-0859 (D.D.C.), that requires the Agency to respond to a petition seeking EPA's objection to a CAA Title V operating permit issued to the Tennessee Valley Authority's Paradise Fossil Plant in Drakesboro, Kentucky, by February 9, 2011.75 FR 80809(12/23/10).
  • EPA determined that the Dallas/Fort Worth moderate nonattainment area failed to attain the 1997 eight-hour ozone NAAQS and reclassified the area as a serious ozone nonattainment area; attainment must be reached no later than June 15, 2013.75 FR 79302(12/20/10).
  • EPA approved Virginia'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 78916(12/17/10).
  • EPA proposed to approve Virginia'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 78952(12/17/10).
  • SIP Approvals:Arizona (particulate matter (PM) emissions from fugitive dust sources)75 FR 78167(12/15/10). Delaware (volatile organic compound (VOC) emissions from portable fuel containers)75 FR 77758(12/14/10). Minnesota (PM emissions)75 FR 78602(12/16/10). Mississippi (incorporation of nitrogen oxide as a precursor to ozone)75 FR 79300(12/20/10). New Jersey (volatile organic compounds)75 FR 80340(12/22/10). Wisconsin (attainment of the 1997 eight-hour ozone NAAQS for the Milwaukee-Racine and Sheboygan, Wisconsin, nonattainment areas)75 FR 78164(12/15/10).
  • SIP Proposals:Colorado (revised modeling of the 1997 eight-hour ozone NAAQS for the Denver metro area/North Front Range nonattainment area)75 FR 78950(12/17/10). Delaware (VOC emissions from portable fuel containers; see above for direct final rule)75 FR 77798(12/14/10). Georgia (attainment of the 1997 annual average fine PM NAAQS for the Rome nonattainment area)75 FR 77595(12/13/10). Minnesota (PM emissions; see above for direct final rule)75 FR 78646(12/16/10). West Virginia (revision to PSD program)75 FR 78949(12/17/10). Wisconsin (attainment of the 1997 eight-hour ozone NAAQS for the Milwaukee-Racine and Sheboygan, Wisconsin, nonattainment areas; see above for direct final rule)75 FR 78197(12/15/10).

ENERGY:

  • EPA finalized amendments to certain renewable fuel standard program regulations that took effect July 1, 2010, based on consideration of comments received.75 FR 79964(12/21/10).
  • DOE seeks public comment on a draft document,Guidance for the Implementation and Follow-Up of Identified Energy and Water Efficiency Measures in Covered Facilities.75 FR 78231(12/15/10).

HAZARDOUS & SOLID WASTE:

  • EPA and the U.S. Coast Guard announced alternative arrangements under NEPA for the joint emergency temporary interim rule on the relocation of response resources for the Deepwater Horizon oil spill that will expire on December 31, 2010.75 FR 79961(12/21/10).
  • EPA removed saccharin and its salts from the lists of hazardous constituents, wastes, and substances under CERCLA and RCRA.75 FR 78918(12/17/10).

RULEMAKING:

  • The federal agencies issued their semiannual regulatory agendas providing specific information on the status of regulations under development and revision. Rulemaking actions are grouped according to prerulemaking, proposed rules, final rules, long-term actions, and rulemaking actions completed since the April 2010 agenda. EPA's agenda can be found at75 FR 79844(12/20/10).

WATER:

  • EPA gave tentative approval to Wisconsin's public water system supervision program, which does not cover Indian country.75 FR 80493(12/22/10).

WILDLIFE:

  • FWS proposed to list the dunes sagebrush lizard from southeastern New Mexico and adjacent west Texas as endangered under the ESA.75 FR 77801(12/14/10).
  • FWS designated approximately 411 miles of rivers and streams in Colorado as critical habitat for the Preble's meadow jumping mouse.75 FR 78430(12/15/10).
  • FWS designated approximately 9,331 acres in the Santa Ana River and the Big Tujunga Creek in southern California as critical habitat for the Santa Ana sucker.75 FR 77962(12/14/10).
  • FWS announced a 12-month finding on a petition to list the North American wolverine as an endangered or threatened species under the ESA; the agency found that listing is warranted but precluded by higher priority actions.75 FR 78030(12/14/10).
  • FWS announced a 12-month finding on a petition to list the Sonoran population of the desert tortoise as endangered or threatened and to designate critical habitat under the ESA; the agency found that listing is warranted but precluded by higher priority actions.75 FR 78094(12/14/10).
  • NOAA-Fisheries announced a 90-day finding on two petitions to delist the eastern distinct population segment of the Steller sea lion under the ESA; the agency found that delisting may be warranted.75 FR 77602(12/13/10).

DOJ NOTICES OF SETTLEMENT:

  • United States v. James Matteo & Sons, Inc., No. 1:10-cv-06405 (NLH-JS) (D.N.J. Dec. 9, 2010). A settling CERCLA defendant responsible for violations at the James Matteo & Sons, Inc. Superfund site in Gloucester County, New Jersey, must pay $820,000 in U.S. response costs incurred at the site.75 FR 79019(12/17/10).
  • United States v. U.S. Oil & Refining Co., No. 3:10-cv-05899 (W.D. Wash. Dec. 10, 2010). A settling CAA defendant that violated NESHAPs for benzene waste operations and petroleum refineries at its refinery in Tacoma, Washington, must pay a $230,000 civil penalty, must implement at least $746,000 in supplemental environmental projects, must enhance its benzene NESHAP compliance program, and must implement measures to minimize or eliminate fugitive emissions at the refinery.75 FR 78733(12/16/10).
  • United States v. Logan Aluminum, Inc., No. 1:10-cv-00177-TBR (W.D. Ky. Dec. 8, 2010). A settling CAA defendant that violated NESHAP regulations for aluminum production at the Logan Aluminum facility in Russellville, Kentucky, must pay a $285,000 civil penalty and must perform work to fully comply with those regulations.75 FR 78267(12/15/10).
  • United States v. DeKalb County, No. 1:10cv4039-WSD (N.D. Ga. Dec. 13, 2010). A settling CWA defendant responsible for violations at its sanitary sewer system must pay a $226,500 civil penalty to both the United States and Georgia, must perform specified injunctive measures, and must perform a supplemental environmental project valued at $600,000.75 FR 79390(12/20/10).
  • In re Motors Liquidation Co., No. 09-50026 (REG) (Bankr. S.D.N.Y. Dec. 14, 2010). A settling CERCLA and RCRA defendant responsible for violations at the GM AC Rochester Division site in Sioux City, Iowa, must pay $6,476,634 in U.S. remediation costs incurred at the site.75 FR 79391(12/20/10).
  • In re Motors Liquidation Co., No. 09-50026 (REG) (Bankr. S.D.N.Y. Dec. 14, 2010). A settling CERCLA and RCRA defendant responsible for violations at the Wheeler Pit Superfund site in Rock County, Wisconsin, must provide an allowed general unsecured claim of $95,045 to the United States for response costs incurred at the site and must make a cash payment of $385,991 to Wisconsin for remediation.75 FR 79391(12/20/10).
  • In re Motors Liquidation Co., No. 09-50026 (REG) (Bankr. S.D.N.Y. Dec. 14, 2010). A settling RCRA defendant responsible for violations at the Delphi E&E Management Systems site in Anderson, Indiana, must make a cash payment of $3,599,039 to a trust for remediation at the site.75 FR 79392(12/20/10).
  • In re Motors Liquidation Co., No. 09-50026 (REG) (Bankr. S.D.N.Y. Dec. 14, 2010). A settling RCRA defendant responsible for violations at the Delphi Harrison Thermal Superfund site in Dayton, Ohio, must pay $5,329,343 to the Ohio EPA for remediation costs incurred at the site.75 FR 79392(12/20/10).
  • In re Motors Liquidation Co., No. 09-50026 (REG) (Bankr. S.D.N.Y. Dec. 14, 2010). A settling CERCLA defendant responsible for violations at the Garland Road Landfill Superfund site in Miami County, Ohio, must provide an allowed general unsecured claim of $2,505,547 to the United States for estimated future oversight and past response costs incurred at the site, must provide an allowed general unsecured claim of $134,326 to the Ohio EPA for past response costs, and must make a cash payment of $6,732,895 to the Ohio EPA for remediation at the site.75 FR 79393(12/20/10).
  • In re Motors Liquidation Co., No. 09-50026 (REG) (Bankr. S.D.N.Y. Dec. 14, 2010). A settling CERCLA defendant responsible for violations at the Harvey & Knott Drum Superfund site in New Castle County, Delaware, must provide an allowed general unsecured claim of $377,063 to the United States for estimated future oversight costs at the site and must make a cash payment of $2,484,816 to the United States for remediation at the site.75 FR 79393(12/20/10).

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

THE CONGRESS

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

Public Law

  • S. 1421 (carp), which amends 18 U.S.C. §42 to prohibit the importation and shipment of certain species of carp, was signed into law on December 14, 2010. Pub. L. No. 111-307, 156 Cong. Rec. D1207 (daily ed. Dec. 16, 2010).

Chamber Action

  • S. 1609 (fisheries), which would authorize a single fisheries cooperative for the Bering Sea Aleutian Islands longline catcher processor subsector, was passed by the House.156 Cong. Rec. H8302-04 (daily ed. Dec. 14, 2010).
  • S. 3874 (drinking water), which would amend the Safe Drinking Water Act to reduce lead in drinking water, was passed by the Senate, 156 Cong. Rec. S10364 (daily ed. Dec. 16, 2010), and the House. 156 Cong. Rec. H8617-19, H8768-69 (daily ed. Dec. 17, 2010).
  • H.R. 81 (Shark Conservation Act), which would amend the High Seas Driftnet Fishing Moratorium Protection Act and the Magnuson-Stevens Fishery Conservation and Management Act to improve the conservation of sharks, was passed by the Senate. 156 Cong. Rec. S10795 (daily ed. Dec. 20, 2010).
  • H.R. 1061 (federal land), which would transfer certain land to the United States to be held in trust for the Hoh Indian Tribe and place land into trust for the Hoh Indian Tribe, was passed by the House. 156 Cong. Rec. H8300-02D1192 (daily ed. Dec. 14, 2010).
  • H.R. 4973 (national wildlife refuges), which would amend the Fish and Wildlife Act of 1956 to reauthorize volunteer programs and community partnerships for national wildlife refuges, was passed by the Senate. 156 Cong. Rec. S10444 (daily ed. Dec. 17, 2010).
  • H.R. 5809 (diesel emissions), which would amend the Energy Policy Act of 2005 to reauthorize and modify provisions relating to the diesel emissions reduction program, was passed by the Senate. 156 Cong. Rec. S10364 (daily ed. Dec. 16, 2010).
  • H.R. 6510 (federal land), which would direct the Administrator of General Services to convey a parcel of real property in Houston, Texas, to the Military Museum of Texas, was passed by the House. 156 Cong. Rec. H8326-28, H8330-31 (daily ed. Dec. 14, 2010).

Committee Action

  • S. 787 (water jurisdiction)was reported by the Committee on Environment and Public Works. S. Rep. No. 111-361, 156 Cong. Rec. S8786 (daily ed. Dec. 10, 2010). The bill would amend the Federal Water Pollution Control Act to clarify the jurisdiction of the United States over waters of the United States.
  • S. 1619 (sustainability) was reported by the Committee on Banking, Housing, and Urban Affairs. 156 Cong. Rec. S10737 (daily ed. Dec. 19, 2010). The bill would establish the Office of Sustainable Housing and Communities, establish the Interagency Council on Sustainable Communities, establish a comprehensive planning grant program, and establish a sustainability challenge grant program.
  • S. 1748 (sea otter)was reported by the Committee on Commerce, Science, and Transportation. S. Rep. No. 111-362, 156 Cong. Rec. S8786 (daily ed. Dec. 10, 2010). The bill would establish a program of research, recovery, and other activities to provide for the recovery of the southern sea otter.
  • S. 2870 (fisheries)was reported by the Committee on Commerce, Science, and Transportation. 156 Cong. Rec. S10513-14 (daily ed. Dec. 17, 2010). The bill would establish uniform administrative and enforcement procedures and penalties for the enforcement of the High Seas Driftnet Fishing Moratorium Protection Act and similar statutes.
  • S. 3481 (stormwater pollution) was reported by the Committee on Environment and Public Works. 156 Cong. Rec. S10513-14 (daily ed. Dec. 17, 2010). The bill would amend the Federal Water Pollution Control Act to clarify federal responsibility for stormwater pollution.
  • S. 3597 (oil spill)was reported by the Committee on Commerce, Science, and Transportation. 156 Cong. Rec. S10513-14 (daily ed. Dec. 17, 2010). The bill would improve the ability of NOAA, the U.S. Coast Guard, and coastal states to sustain healthy ocean and coastal ecosystems by maintaining and sustaining their capabilities relating to oil spill preparedness, prevention, response, restoration, and research.
  • S. 3614 (oil spill)was reported by the Committee on Commerce, Science and Transportation. 156 Cong. Rec. S9021 (daily ed. Dec. 14, 2010). The bill would authorize the establishment of a Maritime Center of Expertise for Maritime Oil Spill and Hazardous Substance Release Response.
  • S. 3874 (drinking water)was reported by the Committee on Environment and Public Works. 156 Cong. Rec. S10410 (daily ed. Dec. 16, 2010). The bill would amend the Safe Drinking Water Act to reduce lead in drinking water.
  • S. 3973 (diesel emissions)was reported by the Committee on Environment and Public Works.156 Cong. Rec. S10814 (daily ed. Dec. 20, 2010). The bill would amend the Energy Policy Act of 2005 to reauthorize and modify provisions relating to the diesel emissions reduction program.
  • S. Res. 680 (tiger conservation)was reported by the Committee on Foreign Relations. 156 Cong. Rec. S10814 (daily ed. Dec. 20, 2010). The bill would support international tiger conservation efforts and the upcoming Global Tiger Summit in St. Petersburg, Russia.
  • H.R. 2062 (avian species) was reported by the Committee on Environment and Public Works. S. Rep. No. 111-375, 156 Cong. Rec. S10513-14 (daily ed. Dec. 17, 2010). The bill would amend the Migratory Bird Treaty Act to provide for penalties and enforcement for intentionally taking protected avian species.
  • H.R. 4973 (Fish and Wildlife Act)was reported by the Committee on Environment and Public Works. S. Rep. No. 111-366, 156 Cong. Rec. S9021 (daily ed. Dec. 14, 2010). The bill would amend the Fish and Wildlife Act of 1956 to reauthorize volunteer programs and community partnerships for national wildlife refuges.

Bills Introduced

  • S. 4031 (Bayh, D-Ind.) (rare earth materials)would promote exploration for and development of rare earth elements in the United States and reestablish a competitive supply chain for rare earth materials in the United States and countries that are allies of the United States. 156 Cong. Rec. S10304 (daily ed. Dec. 15, 2010). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 4049 (Tester, D-Mont.) (National Forest System) would sustain the economic development and recreational use of National Forest System land and other public land in the state of Montana, add certain land to the National Wilderness Preservation System, release certain wilderness study areas, and designate new areas for recreation. 156 Cong. Rec. S10693 (daily ed. Dec. 18, 2010). The bill was referred to the Committee on Energy and Natural Resources.
  • H.R. 6524 (Brady, D-Pa.) (natural gas)would authorize the issuance of certificates of documentation authorizing certain vessels to engage in coastwise trade in the carriage of natural gas. 156 Cong. Rec. H8519 (daily ed. Dec. 15, 2010). The bill was referred to the Committee on Transportation and Infrastructure.
  • H.R. 6541 (Flake, R-Ariz.) (renewable fuels)would repeal certain incentives and subsidies for renewable fuels. 156 Cong. Rec. H8785 (daily ed. Dec. 17, 2010). The bill was referred the Committee on Ways and Means and the Committee on Energy and Commerce.
  • H.R. 6551 (Crowley, D-N.Y.) (toxic substances)would authorize the Secretary of Education to make grants to states and local educational agencies for abatement, removal, and interim controls of PCBs in public school facilities. 156 Cong. Rec. H8785 (daily ed. Dec. 17, 2010). The bill was referred to the Committee on Education and Labor and the Committee on Energy and Commerce.
  • H.R. 6554 (Inslee, D-Wash.) (biofuel)would amend the Federal Property and Administrative Services Act of 1949 and title 10 of the U.S. Code to extend the number of years that multiyear contracts may be entered into for the purchase of advanced biofuel. 156 Cong. Rec. H8785 (daily ed. Dec. 17, 2010). The bill was referred to the Committee on Oversight and Government Reform and the Committee on Armed Services.

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:

ArkansasCaliforniaColoradoFloridaIndianaMaineMontanaNevadaNew MexicoOhioOklahomaPennsylvaniaRhode IslandTennesseeTexasUtahWashingtonWisconsin

ARKANSAS

Hazardous & Solid Waste:

CALIFORNIA

Land Use:

  • The Board of Forestry and Fire Protection proposed to amend Cal. Code Regs. tit. 14, §1090.7(e), Notice of Timber Operations Content. Changes would add to the Notice of Timber Operations regulations the requirements for disclosure of acreage of each silvicultural prescription to be applied for timber harvesting, which are needed to determine if harvest levels are consistent with the analysis of growth, and to determine sustainability. There will be a public hearing on February 2, 2011, and the deadline for written comments is January 24.Seehttp://www.oal.ca.gov/res/docs/pdf/notice/50z-2010.pdf(pp. 2113-15).

COLORADO

Hazardous & Solid Waste:

FLORIDA

Energy:

  • The Florida Energy & Climate Commission proposed to amend Fla. Admin. Code Ann. r. 27N-1.500, pertaining to the Solar Energy Systems Incentives Program. The chapter would implement the Florida Renewable Energy Technologies Act, providing for rebates for solar energy systems. The deadline for comment is January 6, 2011.Seehttps://www.flrules.org/gateway/ruleNo.asp?id=27N-1.500.

INDIANA

Air:

  • The Air Pollution Control Board will hold a public hearing on proposed amendments to 326 Ind. Admin. Code 11-6, which pertains to hospital, medical, and infectious waste incinerators. Among other changes, the amendments would attempt to promote the segregation of chlorinated plastics and metals. There will be a hearing on March 2, 2011.Seehttp://www.in.gov/legislative/iac/20101215-IR-326100733FDA.xml.pdf.

MAINE

Land Use:

  • The Department of Conservation proposed to amend Ch. 10, Land Use Districts and Standards. Public Law 2009, Ch. 615 requires that the Land Use Regulation Commission amend its rules to list offshore wind power projects and community-based offshore wind energy projects as uses requiring a permit in all subdistricts. The legislation also amends the review criteria that apply to community-based offshore wind energy projects. The proposed wind project rules incorporate the amendments to subdistrict use listings and the review criteria. In addition, changes would amend the rules for flood plain areas to make them more consistent with FEMA's rules. The deadline for comments is January 18, 2011.Seehttp://www.maine.gov/sos/cec/rules/notices/2010/121510.html.

MONTANA

Air:

  • The Board of Environmental Review proposed to amend Mont. Admin. R. 17.8.763, pertaining to revocation of permit. Changes relate to failed attempts to reach the permittee by certified mail. There will be a public hearing on January 13, 2011, and the deadline for public comment is January 20.Seehttp://sos.mt.gov/arm/Register/archives/MAR2010/MAR10-24.pdf(pp. 2878-79).

Water:

  • The Board of Environmental Review proposed to amend Mont. Admin. R. 17.30.201 and 17.30.1341, pertaining to permit application, degradation authorization, and annual permit fees and general permits. Among other changes, the amendments would raise new pesticide permit fees. There will be a public hearing on January 12, 2011.Seehttp://sos.mt.gov/arm/Register/archives/MAR2010/MAR10-24.pdf(pp. 2870-77).

NEVADA

Air:

  • The State Environmental Commission amended Nev. Admin. Code §445B.210. Changes revise the definition of “stationary source,” amend certain provisions relating to environmental evaluations, and alter certain provisions concerning the measurement of maximum heat input for the purpose of determining the effects of a Class I source on the quality of ambient air. Changes took effect December 16, 2010.See http://www.leg.state.nv.us/register/2010Register/R126-10A.pdf.

Energy:

NEW MEXICO

Climate:

OHIO

Air:

  • The Environmental Protection Agency proposed rule updates to Ohio Admin. Code Chapter 3745-18, Sulfur Dioxide, as part of the five-year review. Among other changes, the amendments would remove emission limits from the rules throughout this chapter for air pollution sources that are located at facilities that have been completely and permanently shut down for greater than five years. There will be a public hearing on January 7, 2011.Seehttp://www.registerofohio.state.oh.us/pdfs/phn/3745_NO_126139_20101130_1246.pdf.

OKLAHOMA

Climate:

  • The Department of Environmental Quality proposed to amend Okla. Admin. Code §252.100, Air Pollution Control, to incorporate EPA's new greenhouse gas rules. The state rules will not be more stringent than federal rules. In addition, the amendments will alter the department's fee structure to charge a different rate for emitters of hazardous air pollutants, lead, and lead compounds. There will be a public hearing on January 19, 2011, and on February 25.Seehttp://www.oar.state.ok.us/register/Volume-28_Issue-07.htm#a17691.

Toxic Substances:

  • The Department of Environmental Quality proposed to amend Okla. Admin. Code §252.110, Lead-Based Paint Management, to add a new Subchapter 15, Additional Renovation, Repair, and Painting Requirements. The proposed rule would establish state requirements for contractors who perform renovation, repair, and painting projects in homes, child-care facilities, and schools built before 1978. There will be a public hearing on January 19 and February 25, 2011.Seehttp://www.oar.state.ok.us/register/Volume-28_Issue-07.htm#a19468.

PENNSYLVANIA

Air:

  • The Environmental Quality Board amended 25 Pa. Code Chs. 287, 290 and 299, Beneficial Use of Coal Ash. Changes include altered definitions, clarification that coal ash may not be mixed with other types of waste, and clarification of what does not meet beneficial use. Rules took effect December 11, 2010.Seehttp://www.pabulletin.com/secure/data/vol40/40-50/2359.html.
  • The Environmental Quality Board amended Chapters 121 and 129, Flat Wood Paneling Surface Coating Processes. The amendments limit emissions of volatile organic compounds from the use and application of coatings and cleaning materials in flat wood paneling surface coating processes. The rule took effect December 18, 2010.Seehttp://www.pabulletin.com/secure/data/vol40/40-51/2401.html.

Water:

  • The Environmental Quality Board amended Chapter 109, relating to drinking water. The amendments incorporate provisions of the Federal Lead and Copper Rule to provide for increased protection against exposure to lead in public water systems. The rule took effect December 18, 2010.See http://www.pabulletin.com/secure/data/vol40/40-51/2400.html.

RHODE ISLAND

Water:

  • The Department of Environmental Management amended the Stormwater Design and Installation Standards Manual to implement the Smart Development for a Cleaner Bay Act of 2007. Changes are intended to minimize the impact of stormwater on stream channels, water quality, groundwater, and wetland habitats by updating the 1993 legislation to include new science and engineering practices. The rule will take effect December 28, 2010.Seehttp://sos.ri.gov/rules/index.php?page=details&erlid=6222.

TENNESSEE

Wildlife:

  • The Environment and Conservation Agency will hold a public hearing on proposed amendments to Tenn. Admin. Code §0400.06.02, the list of endangered plant species. The hearing will be on February 18, 2011, and the deadline for public comment is March 4.See http://state.tn.us/sos/rules_filings/12-11-10.pdf.

TEXAS

Air:

  • The Commission on Environmental Quality amended 30 Tex. Admin. Code §§114.2, 114.51, and 114.64, and repealed of §114.52, as revisions to the SIP for air pollution from motor vehicles. Changes attempt to help dealerships and inspection stations comply with state and federal laws. The changes took effect December 13, 2010.Seehttp://www.sos.state.tx.us/texreg/pdf/backview/1210/1210is.pdf(pp. 10989-92).

General:

  • The Commission on Environmental Quality amended 30 Tex. Admin. Code §§17.1, 17.2, 17.6, 17.10, 17.12, 17.14, 17.17, 17.20, and 17.25 and repealed §17.15, which pertain to providing tax relief for pollution control property. The rule change took effect December 13, 2010.Seehttp://www.sos.state.tx.us/texreg/pdf/backview/1210/1210is.pdf(pp. 10980-83).

Toxic Substances:

  • The Commission on Environmental Quality proposed to amend 30 Tex. Admin. Code §213.31, Discharge of Pesticides. The change is in response to a circuit court decision that provided that NPDES permits are not required to discharge pesticides over state waters. The amendment would move regulation of this pesticide discharge from the NPDES permit program to the Texas Pollution Discharge Elimination System. There will be a hearing January 6, 2011, and the comment period closes January 14.Seehttp://www.sos.state.tx.us/texreg/pdf/backview/1210/1210is.pdf(pp. 10813-15).

Water:

  • The Railroad Commission of Texas adopted amendments to 16 Tex. Admin. Code §1.5, Carbon Dioxide (CO2). The purpose of the proposed rules is to protect underground sources of drinking water while promoting the capture and storage of anthropogenic CO2. The rule took effect December 20, 2010.Seehttp://www.sos.state.tx.us/texreg/pdf/backview/1217/1210is.pdf(pp. 11202-23).

UTAH

Water:

  • The Department of Environmental Quality proposed to amend R309-520, Facility Design and Operation: Disinfection. Changes would address specific design and construction standards for seven types of disinfection processes. The deadline for comments is January 14, 2011, and the rule change may become effective on January 21.Seehttp://www.rules.utah.gov/publicat/bull_pdf/2010/b20101215.pdf(pp. 8-19).

WASHINGTON

Climate:

  • The Department of Ecology amended Wash. Admin. Code §173.401.200 to mandate greenhouse gas reporting. Beginning January 1, 2011, sources with an air operating permit must report their greenhouse gas emissions when revising or renewing this permit. Beginning July 1, 2011, sources that have the potential to emit 100,000 tons per year or more of greenhouse gases become subject to the air operating permit program, regardless of their emissions of other pollutants. These newly subject sources must apply for an air operating permit on or before July 1, 2012.Seehttp://apps.leg.wa.gov/documents/laws/wsr/2010/24/10-24-114.htm.

Hazardous & Solid Waste:

WISCONSIN

Air:

  • The Department of Natural Resources proposed to revise Wis. Admin. Code Chapters NR 30, 429, 502, and 506, relating to open burning requirements. Small amounts of certain types of rubbish are exempt from the statewide prohibition on open burning, but the terms "small" and "rubbish" are not defined. The revisions would define both terms. In addition, changes would address inconsistencies between air, forestry, and solid waste rules.Seehttp://legis.wisconsin.gov/rsb/code/register/reg660a.pdf(p. 15).

Land Use:

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

INTERNATIONAL

PROOF PHASE OF ECUADOR CHEVRON SUIT CLOSED

Sucumbios Provincial Court Judge Nicolas Zambranohas closed the evidentiary phase of the $27 billion environmental damages case against Chevron. "I have to read what there is in these proceedings and, based on these criteria, issue the corresponding decision," said Zambrano. A verdict against the company is widely expected next year, according to Reuters. The company has promised to appeal, should Chevron be held liable for pollution from Texaco's drilling in the 1970s and 1980s. While spokesman for Chevron Kent Robertson has accused the Ecuadoreans suing the company of committing fraud, a spokeswoman for the plaintiffs has accused Chevron of "abusive" litigation tactics. In an interview from earlier this month, plaintiff lawyer James Tyrell, of Patton Boggs, called Chevron's seeking U.S. discovery in aid of foreign proceedings under 28 U.S.C. §1782, in search of misconduct by plaintiffs' consultants and lawyers, completely unprecedented and disdainful of sovereignty. For the story on the close of the evidentiary period, seehttp://www.reuters.com/article/idUSTRE6BG5D220101217. For the interview with Patton Boggs attorney James Tyrell, seehttp://www.law.com/jsp/cc/PubArticleCC.jsp?id=1202475754130&Patton_Boggs_Explains_Role_in_Explosive_Chevron_Case.

EU CLIMATE MEASURES MAY BE CUTTING INTO MEMBER STATES' INDUSTRIES

The European Commission was forced to scale back its proposed fuel efficiency and carbon dioxide emissions standards at a Brussels meeting of environment ministers last week. The final goals were to reduce carbon dioxide emissions from vans by about 14 percent to an average of 175 grams per kilometer by 2017, and 147 grams by 2020, raised from a proposed 135 grams after Germany forced a weakening of the standards. The final target was barely contested, according to Reuters, as makers of vans have achieved rapid gains in efficiency, 15 percent by Renault's Master and 13 percent by Mercedes' Sprinter. While the German environment minister said that it was a good compromise, Swedish ambassador Jan Olsson said,"the EU's competitiveness will not be strengthened if we weaken environmental policy. Consumers and medium sized enterprises would benefit from vehicles that need less fuel." In France, the Environment Minister Nathalie Kosciusko-Morizetannounced on Info France radio that the country would suspend most solar-energy projects for three months, partly to curb cheaper imports of Chinese solar panels. The measure, one of the country's responses to EU binding climate targets, were "not here to subsidize the Chinese economy but to create green jobs in France," said Kosciusko-Morizet. The government joined other member states in scaling back solar subsidies after realizing that developers bought a majority of the panels from Chinese suppliers. According to Kosciusko-Morizet, 90 percent of panels in France come from China. Germany also reduced solar subsidies after panel prices dropped, leading to a glut in the German market and rising electricity costs for consumers. A lobby group said that the German solar industry may support a reduction in subsidies if the number of installations grows too quickly. For the story on EU fuel efficiency, seehttp://www.reuters.com/article/idUSTRE6BJ1XV20101220. For France and solar panels, seehttp://www.bloomberg.com/news/2010-12-21/france-should-curb-chinese-solar-panel-imports-minister-says.html. For Germany and solar panels, seehttp://www.bloomberg.com/news/2010-12-21/german-solar-industry-may-support-moving-up-power-subsidy-cuts.html.

EUROPEAN COMMISSION PROPOSES REVISED CHEMICAL HAZARD LAWS

The European Commission presented draft legislation revising the European Union's Seveso II Directive last Tuesday. The revision will align the Directive, the EU's law regarding preventing and responding to accidents involving large quantities of hazardous substances, with the Globally Harmonized System of Classification and Labelling of Chemicals, which aims to ensure that hazards are described and labeled the same way across the world. Prompted by a major accident in Seveso, Italy, in 1976, the Seveso I & II Directives introduced a tiered approach to the level of controls, with larger quantities of chemicals subject to stricter rules. Currently, the directive applies to around 10,000 facilities in the EU. "The Seveso II Directive has been instrumental in reducing the likelihood and consequences of chemical accidents. However, such accidents still occur and can often have devastating effects," said Environment Commissioner Janez Potočnik. Proposed changes to the legislation introduce stricter standards for inspections of installations, and increase public access to safety information. According to a Commission press release, technical modifications to the law will relieve some administrative burden to affected facilities. For the full story, seehttp://europa.eu/rapid/pressReleasesAction.do?reference=IP/10/1758&format=HTML&aged=0&language=EN&guiLanguage=en.

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

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