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Weekly Update Volume 40, Issue 6

02/16/2010

RCRA, CITIZEN SUITS, IMMINENT AND SUBSTANTIAL ENDANGERMENT

The Tenth Circuit affirmed a lower court decision that denied a current and a former airline employee injunctive relief under the citizen suit provision of RCRA to prohibit full-plane deicing at airport gates and to require other precautionary steps relating to airport deicing fluid (ADF) as the employees failed to demonstrate that ADF presented an imminent and substantial endangerment to health. Although the employees conceded that the cessation of full aircraft gate deicing resulted in at least a partial abatement of conditions giving rise to the risk of harm from ADF, they asserted, among other things, that the possibility of resumption of deicing presented an imminent and substantial endangerment. The court disagreed, holding that solid waste presents an endangerment if harm may result absent further remedial measures. The endangerment must be imminent even if the harm is in the future. Here, nothing going on at the airport at the time of trial or expected in the immediate future would, even without remedial measures, present a prospect of harm to human health. It is not enough under RCRA that in the future someone may do something with a solid waste that, absent protective measures, can injure human health.Crandall v. City and County of Denver, No. 08-1197, 40 ELR 20040 (10th Cir. Feb. 8, 2010).

ENVIRONMENTAL HAZARDS, CONTRACTS

The Eight Circuit affirmed a lower court decision that granted a project developer’s motion to dismiss subordinate bondholders’ claims for breach of contract and equitable accounting, as well as for unjust enrichment, negligence, and fraudulent misrepresentation based on alleged representations that the project was free from environmental hazards. Interpreting the financing documents as a whole, the court held that the bondholders required written consent from the senior mortgagee before they could bring an enforcement action. The breach of contract and equitable accounting claims were therefore properly dismissed. Moreover, since the negligence, unjust enrichment and fraudulent misrepresentation claims arose out of the financing documents, they were enforcement actions that also required consent to sue. Since the action was filed without satisfying the applicable prerequisites, the bondholders’ claims were properly dismissed.Dubinsky v. Mermart, No. 09-2072, 40 ELR 20044 (8th Cir. Jan. 12, 2010).

CAA, STANDING, LIABILITY

A district court granted in part and denied in part an environmental group’s motion for partial summary judgment on issues of standing and liability related to a refinery’s alleged violations of emission limitations set by the Louisiana Department of Environmental Quality pursuant to its authority under the CAA. As a threshold matter, the court held that the environmental group had associational standing to pursue the lawsuit. First, its members would have standing to pursue the lawsuit in their own right since members demonstrated (1) a cognizable injury by showing that the foul odors from the refinery had diminished their use and enjoyment of their property; (2) the refinery’s emissions contributed to the foul odors; and (3) their injuries could be redressed through the lawsuit. Second, the lawsuit sought to promote interests germane to the group’s purpose. Corporate formalities and formal membership structure are not required to show associational standing. Third, since the relief sought did not require members to submit individualized proof of damages, the lawsuit did not require participation of individual group members. On the merits, the court held that the refinery was liable for 21 of the 24 emission violations. For these violations, the refinery had filed an unauthorized discharge notification report admitting the discharges occurred and were preventable, thereby precluding any “malfunction” defense. The court held, however, that there was a genuine issue of material fact as to whether three of the emission violations met the regulatory requirements for the “malfunction” defense and, as such, summary judgment could not be granted for these violations.Concerned Citizens Around Murphy v. Murphy Oil USA, Inc., No. 08-4986, 40 ELR 20038 (E.D. La. Feb. 3, 2010) (Vance, J.).

WATER QUALITY, CONFINED ANIMAL FEEDING OPERATIONS

The Idaho Supreme Court affirmed a lower court decision that a county ordinance, which included provisions regulating water quality at confined animal feeding operations (CAFOs), was valid. Plaintiffs, associations of cattlemen and dairymen, argued that the ordinance was invalid because (1) it was impliedly preempted by the state; and (2) it violated their substantive due process rights. The court disagreed. In a number of state statutes, the Idaho legislature manifested an express intent not to preempt the field of regulating water quality at CAFOs. These statutes demonstrate that the legislature, at times, intended to delegate regulatory power to counties, and that the state has not comprehensively regulated water quality at CAFOs. In addition, the regulation of water quality at CAFOs does not call for a uniform regulatory scheme. The state’s diverse setting places each board of commissioners in the best position to know the needs of its community and, as a result, uniform regulation of water quality is not necessary. In regards to substantive due process rights, there was no substantive due process violation because there was a reasonable relationship between ordinance provisions and permissive legislative objectives.Idaho Dairymen’s Ass’n, Inc. v. Gooding County, No. 35980, 40 ELR 20041 (Idaho Feb. 1, 2010).

CWA, PERMITS, INVASIVE SPECIES

A New York appellate court affirmed a lower court decision dismissing the application of petitioners, a coalition of entities with interests in maritime trade through the water and ports of New York, to review certain conditions of the water quality certification issued by the New York Department of Environmental Conservation (DEC) pursuant to the CWA. In its Vessel General Permit certification, DEC added certain conditions that it deemed necessary to further protect the state’s waters against the introduction of invasive species through ballast water. The coalition challenged certain of these conditions on the grounds that (1) the conditions were arbitrary, capricious and not legally permissible; (2) DEC violated the State Environmental Quality Review Act (SEQRA) by failing to consider the full range of environmental impacts of the conditions; and (3) the conditions violated the U.S. Constitution. The court held that the record contained ample scientific evidence and expert opinion to support DEC’s determination that the challenged conditions were necessary to ensure compliance with New York’s existing narrative water quality standards. Further, the conditions were issued in accordance with the relevant procedures. As for the alleged SEQRA violations, because the coalition failed to allege anything other than economic harm to themselves or speculative ecological injury to the general public, they lacked standing to challenge DEC’s SEQRA review. Finally, the court is not persuaded that the conditions violate the commerce clause as DEC was expressly permitted to issue conditions to the permit pursuant to CWA §401.Port of Oswego Auth. v. Grannis, No. 507661, 40 ELR 20042 (N.Y. App. Div. Feb. 4, 2010).

CZMA, COASTAL MANAGEMENT PLAN, JURISDICTION

The South Carolina Supreme Court reversed an administrative law court (ALC) decision to find that the South Carolina Department of Health and Environmental Control (DHEC) properly exercised its authority under the CZMA in denying a stormwater permit for a developer to fill in isolated freshwater wetlands. DHEC denied the permit because it was inconsistent with various provisions of the state coastal management plan (CMP). Upon appeal to the ALC, the ALC issued the permit on the grounds that the CMP, by its own terms, did not apply to the development site and was not enforceable. The court disagreed. The language of the CMP sets forth broad jurisdiction over the coastal zone, which includes the site. The CMP therefore applies even though the site is not linked to a downstream system of coastal rivers and creeks and is not subject to the jurisdiction of the U.S. Army Corps of Engineers. As to the enforceability of the CMP, the language of S.C. Code Ann. §48-39-80 supports the view that the General Assembly meant the CMP policies themselves to be enforceable in the consistency review of state and federal permits. Had the General Assembly intended to require DHEC to promulgate separate regulations, it could have so specified. Moreover, because the CMP was promulgated in accordance with the more rigorous requirements of S.C. Code Ann. §48-39-90, it is valid and enforceable. It need not be promulgated in accordance with the state APA.Spectre v. South Carolina Dep't of Health and Envtl. Control, No. 26764, 40 ELR 20043 (S.C. Feb. 1, 2010).

THE FEDERAL AGENCIES

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

AGRICULTURE:

  • The USDA amended the Natural Resources Conservation Service regulations for technical service provider provisions under the Food Security Act of 1985. 75 FR 6839(2/12/10).
  • The USDA proposed to amend theGuidelines for Designating Biobased Products for Federal Procurement, adding nine sections and proposing minimum content levels.75 FR 6796(2/10/10).

AIR:

  • EPA proposed an additional 18-month stay beyond March 31, 2010, of the inclusion of fugitive emissions requirements in the PSD program.75 FR 6823(2/11/10).
  • EPA proposed to repeal the grandfathering provision for fine particulate matter (PM2.5) in the PSD program and to end early the PM10 surrogate policy applicable in states that have an approved PSD program.75 FR 6827(2/11/10).
  • EPA proposed a substitute refrigerant for the motor vehicle air conditioning sector under the significant new alternatives policy program.75 FR 6338(2/9/10).
  • EPA revised the primary NAAQS for nitrogen dioxide.75 FR 6473(2/9/10).
  • SIP Approvals:Georgia (modifications to air quality rules)75 FR 6309(2/9/10). Louisiana (attainment of the one-hour ozone NAAQS for the Baton Rouge nonattainment area)75 FR 6570(2/10/10). Maryland (control of carbon monoxide (CO) emissions from steel mill furnaces)75 FR 6307(2/9/10). New Mexico (oxygenated fuels in the Albuquerque/Bernalillo County area)75 FR 6813(2.11.10). West Virginia (removal of nitrogen oxide (NOx) SIP call rules)75 FR 6305(2/9/10).
  • SIP Proposals:Georgia (modifications to air quality rules; see above for direct final rule)75 FR 6338(2/9/10). Maryland (control of CO emissions from steel mill furnaces; see above for direct final rule)75 FR 6337(2/9/10). New Mexico (oxygenated fuels in the Albuquerque/Bernalillo County area; see above for direct final rule)75 FR 6827(2/11/10). West Virginia (removal of NOx SIP call rules; see above for direct final rule)75 FR 6336(2/9/10).

GENERAL:

  • The Securities and Exchange Commission issued its guidance with respect to existing disclosure requirements as they apply to climate change matters.75 FR 6290(2/8/10).

HAZARDOUS & SOLID WASTE:

  • EPA Region 8 proposed to approve an alternative final cover request for the Lake County municipal solid waste landfill on the Flathead Reservation in Montana.75 FR 6597(2/10/10).

TOXIC SUBSTANCES:

  • EPA announced approval of Wisconsin's lead-based paint renovation, repair, and painting program for target housing and child-occupied facilities.75 FR 6383(2/9/10).

WILDLIFE:

  • NOAA-Fisheries announced a 90-day finding on a petition to list 83 species of corals as threatened or endangered under the ESA; the Agency found that listing may be warranted for 82 species and initiated status reviews for the species.75 FR 6616(2/10/10).
  • FWS announced a 12-month finding on a petition to list the American pika as threatened or endangered under the ESA; the Agency found that listing is not warranted at this time.75 FR 6438(2/9/10).

DOJ NOTICE OF SETTLEMENT:

  • United States v. Chevron U.S.A. Inc., No. 10-cv-00375-EMC (N.D. Cal. Jan. 27, 2010). A settling CERCLA defendant must pay $2,850,000 to state and federal trustees for natural resource damages to Castro Cove from its refinery in Richmond, California, and must pay assessment costs incurred by the trustees.75 FR 6220(2/8/10).

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

THE CONGRESS

There are no Congressional updates to report this week.

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:

NevadaUtahWest VirginiaOhioVirginiaWisconsinPennsylvania  

NEVADA

Air:

OHIO

Air:

  • The Ohio Environmental Protection Agency will hold a public hearing on proposed rescission of Ohio Admin. Code 3745:108. The rules will be rescinded in preparation for future federal rulemaking that will regulate mercury emissions from affected parties. The hearing will be March 12, 2010. Written comments are due March 12, 2010. Seehttp://www.registerofohio.state.oh.us/pdfs/phn/3745_NO_101479_20100202_1247.pdf

PENNSYLVANIA

Air:

  • The Department of Environmental Protection will hold a public hearing on proposed amendments to the state implementation plan for the Philadelphia-Wilmington Nonattainment Area. The proposed SIP revision demonstrates how the area will attain the PM2.5standard by April 5, 2010, by presenting evidence from air quality modeling, emission trends, regional pollutant transport impacts and emission reductions through state and federal control measures. The hearing will be March 11, 2010. Written comments are due by March 12, 2010.http://www.pabulletin.com/secure/data/vol40/40-6/233.html

UTAH

Air:

VIRGINIA

Air:

  • The Air Pollution Control Board will hold a public hearing on proposed amendments to 9 Va. Admin. Code § 5-50, New and Modified Stationary Sources; 9VAC5-80, Permits for Stationary Source. The primary change being made to the program is to convert from a permit applicability approach for modifications that looks at the net emissions increase due to or directly resultant from the physical or operational changes from all affected units to an approach that only looks at emissions increases from new and modified emissions units. The hearing will be April 14, 2010. Comments are due May 3, 2010. Seehttp://legis.state.va.us/codecomm/register/vol26/iss11/v26i11.htm#p9v550

Hazardous & Solid Waste:

  • The Waste Management Board has adopted amendments to 9 Va. Admin. Code § 20-60, Virginia Hazardous Waste Management Regulations; 9VAC20-80, Solid Waste Management Regulations; 9VAC20-85, Coal Combustion Byproduct Regulations; 9VAC20-101, Vegetative Waste Management and Yard Waste Composting Regulations; 9VAC20-170, Transportation of Solid and Medical Wastes on State Waters. Seehttp://legis.state.va.us/codecomm/register/vol26/iss11/v26i11.htm#f9v2060

Water:

WEST VIRGINIA

Air:

  • The Department of Environmental Protection will hold a public hearing on proposed amendments to W. Va. Code R. § 45-8, Ambient Air Quality Standards; 45CSR14 – Permits for Construction and Major Modification of Major Stationary Sources of Air Pollution for the Prevention of Significant Deterioration; W. Va. Code R. § 45-16, Standards of Performance for New Stationary Sources; W. Va. Code R. § 45-19, Permits for Construction and Major Modification of Major Stationary Sources of Air Pollution Which Cause or Contribute to Nonattainment; W. Va. Code R. § 45-25, Control of Air Pollution from Hazardous Waste Treatment, Storage and Disposal Facilities; W. Va. Code R. § 45-33, Acid Rain Provisions and Permits; W. Va. Code R. § 45-34, Emission Standards for Hazardous Air Pollutants. The hearing will be July 13, 2010.The comment period will end at the conclusion of the hearing.Seehttp://www.dep.wv.gov/pio/Pages/Rules.aspx

Hazardous & Solid Waste:

  • The Department of Environmental Protection will hold a public hearing on proposed amendments to W. Va. Code R. § 33-1, Solid Waste Management Rule. The hearing will be July 14, 2010.The comment period will end at the conclusion of the hearing.Seehttp://www.dep.wv.gov/pio/Pages/Rules.aspx
  • The Department of Environmental Protection will hold a public hearing on proposed amendments to W. Va. Code R. § 33-20, Hazardous Waste Management System. The hearing will be July 21, 2010.The comment period will end at the conclusion of the hearing.Seehttp://www.dep.wv.gov/pio/Pages/Rules.aspx

Land Use:

  • The Department of Environmental Protection will hold a public hearing on proposed amendments to W. Va. Code R. § 47-30, WV/NPDES Rules for Coal Mining Facilities; and W. Va. Code R. § 35-4, Oil and Gas Wells and Other Wells. The hearing will be July 14, 2010.The comment period will end at the conclusion of the hearing.Seehttp://www.dep.wv.gov/pio/Pages/Rules.aspx

Water:

  • The Department of Environmental Protection will hold a public hearing on proposed amendments to W. Va. Code R. § 47-12, Requirements Governing Groundwater Standards; W. Va. Code R. § 47-59, Monitoring Well Rule;W. Va. Code R. § 47-60, Monitoring Well Design Standards; W. Va. Code R. § 47-10, NPDES Ruleand W. Va. Code R. § 47-26, Water Pollution Control Permit Fee Schedules. The hearing will be July 16, 2010.The comment period will end at the conclusion of the hearing.Seehttp://www.dep.wv.gov/pio/Pages/Rules.aspx

WISCONSIN

Air:

  • The Department of Natural Resources has proposed amendments to Wis. Admin. Code NR § 400, Air Pollution Control. The proposed rule changes pertain to implementation of existing air permit and emission requirements for sources of hazardous air contaminants from agricultural waste. The primary effort is to establish best management practices that control hazardous air emissions from
    agricultural waste. Seehttp://www.legis.state.wi.us/rsb/code/register/reg650a.pdf(pp. 16-17)
  • The Department of Natural Resources will hold a public hearing on proposed adoption of Wis. Admin. Code NR §§ 400.02(162)(a)51. and 52., relating to the definition of volatile organic compound (VOC). The rule would exclude dimethyl carbonate and propylene carbonate from the state regulatory definition of VOC. The hearing will be March 12, 2010. Comments are due March 22, 2010. Seehttps://health.wisconsin.gov/admrules/public/Rmo?nRmoId=6304

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

INTERNATIONAL

TOKYO CO2 CREDIT TRADING PLAN MAY BECOME A MODEL

Officials in Tokyo plan to set emissions limits for 1,400 large factories and offices. Companies will be encouraged to use new technologies, such as solar panels and fuel saving devices, to meet the new limits. Those that beat the limits will be awarded credits, which can be sold to local companies who fall short. Japan has already made progress in reducing greenhouse gas emissions, andEnvironment Minister Sakihito Ozawa hopes that the Tokyo plan can move forward work on a national plan to set emissions caps. There are even hopes that if the planned program spreads nationally it could bring fresh ideas to stalled international global climate talks."It's the first attempt ever in Asia and there's a potential it will inspire cities and provinces in China," said Toru Morotomi, associate professor at Kyoto University's Graduate School of Economics. For the full story, visithttp://www.reuters.com/article/idUSTRE61A3XG20100211

EUROPEAN REGISTER GIVES PUBLIC ACCESS TO INFORMATION ON INDUSTRIAL EMISSIONS

The European Commission and the European Environment Agency recently launched the European Pollutant Release and Transfer Register – E-PRTR. The E-PRTR contains information regarding pollutants released by more than 24,000 industrial facilities. Environment Commissioner Stavros Dimas said, "Transparency is a vital tool for improving our environment. I welcome the opening of this register. It demonstrates a genuine commitment by the public authorities and industry to share information with citizens and increase openness. I thank them for their cooperation." For the full story, visithttp://www.eea.europa.eu/pressroom/newsreleases/pollution-new-european-register-shows-what-where-and-how-much-is-emitted-by-industrial-facilities

INDIA PUTS HOLD ON FIRST GM FOOD CROP

Amid public concern, the Indian government has deferred commercial cultivation of India's firstgenetically modified food crop, the BT brinjal aubergine. The vegetable has undergone field trials and was approved by government scientists in 2009; however, public sentiment over the crop is negative. Environment Minister Jairam Ramesh said "independent scientific studies" were needed to establish "the safety of the product from the point of view of its long-term impact on human health and environment". India produces more than 4,000 varieties of aubergines. India has allowed the use of genetically modified seeds for cotton since 2004, but has yet to allow the use of any GM seeds for food crops. For the full story, seehttp://news.bbc.co.uk/2/hi/south_asia/8506047.stm

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

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