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Weekly Update Volume 40, Issue 8

03/15/2010

LITIGATION

 

MINING, ATOMIC ENERGY ACT, NEPA

In denying a petition for review, the Tenth Circuit held that the NRC did not violate the Atomic Energy Act (AEA) or NEPA when it issued a license to a company to conductin situleach mining for uranium on four sites in northwest New Mexico. In issuing the license, NRC interpreted its regulations to require it to consider only the amount of airborne radiation that the operation would emit irrespective of the airborne radioactive emissions already occurring on the site. Affording the agency’s interpretation of its own regulations proper deference, the court upheld NRC’s determination as not contrary to the plain language of the regulations or to any indication of NRC’s intent when it promulgated the regulations. At the same time, based on the final EIS, the court held that NRC considered the cumulative effect of the airborne radiation from past sources as well as that expected from this new activity and, as such, it satisfied NEPA’s hard look requirement. Finally, the court upheld the NRC’s decision with respect to the license’s groundwater restoration provisions under the AEA and NEPA because, among other things, the NRC made a reasoned and informed decision regarding the company’s ability to restore the groundwater. And, based on the final EIS, the NRC took the necessary hard look at groundwater restoration as NEPA requires.Morris v. U.S. Nuclear Regulatory Comm’n, No. 07-9505, 40 ELR 20072 (10th Cir. Mar. 8, 2010).

CAA, TITLE V, BURDEN OF PROOF

The Ninth Circuit denied a petition for review of an EPA order that rejected petitioner’s request relating to the Alaska Department of Environmental Conservation’s (ADEC) issuance of a CAA Title V permit for an oil and gas processing facility in Prudhoe Bay. Pursuant to CAA §505(b)(2), the petitioner requested that EPA object to the permit because ADEC had not properly aggregated stationary sources of air pollution. EPA denied petitioner’s request. In considering the petitioner’s burden, the court held that the word “demonstrate” in CAA §505(b)(2) is an ambiguous term. The ambiguity of the term suggests that Congress left the meaning open for EPA to supply a reasonable interpretation. Nothing in the EPA order qualifies as an impermissible interpretation of petitioner’s burden. EPA's requirement that petitioner support his allegations with legal reasoning, evidence, and references is reasonable and persuasive. Accordingly, EPA’s conclusion that petitioner failed to provide adequate information to support his claim is not arbitrary or capricious.MacClarence v. EPA, No. 07-72756, 40 ELR 20068 (9th Cir. Mar. 3, 2010).

NFMA, NEPA, HARD LOOK

The Ninth Circuit reversed a lower court’s grant of summary judgment to hold that the Forest Service’s approval of a project to update grazing allotments in the Beaverhead-Deerlodge National Forest did not comply with the National Forest Management Act (NFMA) and NEPA. Under the forest plan, the sage grouse was designated as a management indicator species (MIS) for sagebrush communities. The plan contemplated monitoring the sage grouse to measure the effect of management activities on representative wildlife habitats. Despite its designation as an MIS, the sage grouse was virtually nonexistent in the project area. The EA therefore looked to the sagebrush habitat to assess viability for the sagebrush obligate species. The court held that, because the EA was based on a nonexistent MIS, its habitat proxy analysis was not reliable in ensuring species diversity as required under the NFMA. The reliability of the analysis was further undermined by the fact that it conflicted with that of the scientific experts. As a result of this unreliable analysis, the Forest Service’s overall study of the sage grouse habitat throughout the EA was similarly deficient. Just as the methodology applied by the Forest Service to measure habitat conditions did not meet the NFMA requirements, its flawed methodology in the complete absence of a sage grouse population did not constitute the requisite hard look mandated by NEPA. Finally, new information regarding the presence of potential nesting habitat and the corollary effect on that habitat of cattle grazing impacted the project sufficiently such that the EA should have been revised. The lower court’s judgment is therefore reversed and remanded for the Forest Service to prepare a new or supplemental EA consistent with the court’s opinion.Native Ecosystems Council v. Tidwell, No. 06-35890, 40 ELR 20076 (9th Cir. Mar. 9, 2010).

FEDERAL LANDS, QUIET TITLE, INTERVENTION

The Tenth Circuit affirmed a lower court’s denial of environmental groups’ motion to intervene in a county action against the United States to quiet title to several purported rights of way across federal public lands. In considering intervention as of right, the court held that, even if the groups had an interest in the quiet title proceedings, they failed to establish that the United States would not adequately represent their interests: the only issue to be resolved was whether the United States or the county held title to the roads at issue. The groups’ arguments regarding the history of adversarial relations between themselves and the United States and the United States’ past land management decisions were insufficient to establish that the United States would fail to adequately represent the groups’ interests in a title dispute. In considering permissive intervention, the court held that, although the groups were correct in noting that a permissive intervenor is not required to assert a separate or additional claim or defense, nothing prohibits a court from taking that fact into consideration in exercising its discretion. Based on this and the groups’ failure to challenge the other rationales of the lower court for denying permissive intervention, the groups failed to establish that the lower court’s decision was an arbitrary, capricious or manifestly unreasonable judgment.Kane County, Utah v. United States, No. 09-4087, 40 ELR 20073 (10th Cir. Mar. 8, 2010).

CLEANUP COSTS, INSURANCE

The Ninth Circuit affirmed a lower court’s grant of summary judgment in favor of an insurance company in an action under CERCLA and the California Hazardous Substance Account Act to recover response costs and other damages related to the cleanup of contamination. Appellants, who had inherited the contaminated real property, asserted that the “owned property” exclusion in the insurance policies did not apply. The court held that, to prevent application of the policies’ exclusion, appellants must show imminent harm to third-party property at the time of the cleanup efforts. While there was ample evidence of a potential for migration of contaminants, the record directly refuted the appellants’ contention that there was imminent danger of such migration. Accordingly, the exclusion applied to the appellants’ cleanup costs and precluded recovery.Aggio v. Estate of Joseph Aggio, No. 08-16981, 40 ELR 20069 (9th Cir. Feb. 26, 2010).

RCRA, CRIMINAL LIABILITY

The Ninth Circuit affirmed a corporate officer’s conviction under RCRA relating to the illegal storage of hazardous waste. The officer argued that the United States could charge and obtain a conviction against the corporation or him, but not both. The court disagreed. Both the corporation and the officer qualify as “persons” under RCRA. The United States did not rely on the responsible corporate officer doctrine or any other theory of derivative liability to establish the officer’s guilt, but proved each element of the crime with respect to the officer individually. The fact that the officer at all times acted in his corporate capacity and on behalf of the corporation does not mean he could not be held personally liable.United States v. Reis, No. 09-30177, 40 ELR 20071 (9th Cir. Feb. 22, 2010).

DOE, NUCLEAR WASTE, CONTRACT DAMAGES

The Court of Federal Claims held that nuclear utilities were entitled to almost $57 million in mitigation expenses related to DOE’s failure to accept nuclear waste by the date set forth in the contract between the utilities and DOE. In their suit, the utilities sought, among other things, costs related to the construction of a dry storage facility. Based on the facts of the case, the court held that the utilities’ construction of the facility was foreseeable, reasonable, and would not have been carried out “but for” DOE’s failure to accept the nuclear waste by the deadline set forth in the contract. In addition, DOE failed to prove that the utilities would not incur certain proposed offsets, such as plant and site modifications, once DOE performs under the contract and, as such, it is improperly speculative to conclude that the utilities have avoided these costs. As to overhead costs, there is no requirement that the utilities prove that their internal resources costs had increased as a consequence of DOE’s breach. That such internal resources were spent in mitigation activities because of the breach is sufficient for recovery. As to the costs incurred in financing the dry storage facility, interest claims on borrowings directly traceable to DOE’s breach, incurred not simply as a result of a delay in payments due from DOE or to “carry on” its end of the contract, are outside the reach of the no-interest rule, as embodied in 28 U.S.C. §2516(a). Within these parameters, interestasan independent claim is recoverable and is distinct from the interestona claim. The utilities are therefore entitled to recover as an independent claim the costs of financing the dry storage facility.Energy Northwest v. United States, No. 04-10C, 40 ELR 20067 (Fed. Cl. Feb. 26, 2010).

NEPA, CUMULATIVE IMPACTS, TRANSBOUNDARY IMPACTS

A district court granted in part and denied in part plaintiffs’ motions for summary judgment finding that an EIS relating to a water supply project was deficient under NEPA. The project, a joint venture between the governments of the United States and North Dakota, was designed to withdraw water from a reservoir on the Missouri River and transfer it by pipeline across the continental divide for use in North Dakota. Considering reasonable alternatives, the court held that the United States had taken a hard look at alternatives to the project in the EA. Nothing in NEPA requires an agency to re-analyze, in an EIS, alternatives that it previously rejected in an EA, provided the agency took the requisite hard look at the alternatives in the EA. The court went on to hold, however, that the United States had failed to take a hard look at the cumulative impacts of the project on water levels: the United States only looked at the project in isolation and concluded that the amount of water the project alone was expected to withdraw was too small to impact the water levels. This is a “glance” at the issue, not a hard look. Similarly, the court held that the United States failed to take a hard look at the consequences of biota transfer. The United States cannot avoid taking a hard look at water transmission risks from a pipeline breach simply because the potential for breach does not vary under the proposed alternatives. When the degree of potential harm could be great, the degree of analysis and mitigation should also be great. Finally, NEPA requires agencies to consider reasonably foreseeable transboundary effects resulting from a major federal action taken within the United States. Accordingly, when analyzing the consequences of biota transfer in the Hudson Bay Basin, the United States must include in its analysis the impact in Canada.Province of Manitoba v. Salazar, No. 02-2057, 40 ELR 20074 (D.D.C. Mar. 5, 2010) (Collyer, J.).

WATER CONTAMINATION, FEDERAL TORT CLAIMS ACT

A district court denied the United States’ motion to dismiss a complaint, brought pursuant to the Federal Tort Claims Act (FTCA), in which plaintiff alleged that exposure to contaminants in the water supply at Camp Lejeune caused her to develop non-Hodgkin’s lymphoma. Plaintiff, who had lived at the base with her husband, was diagnosed 20 years after living there. She filed an administrative complaint four years after the diagnosis. In support of its motion to dismiss, the United States asserted that (1) plaintiff failed to file a claim within the FTCA’s statute of limitations (SOL); and (2) any acts or omissions with regard to environmental contamination at Camp Lejeune fell within the discretionary function exception to the FTCA’s waiver of sovereign immunity. The court disagreed. In regards to the SOL, plaintiff did not know of the alleged contamination at Camp Lejeune and, in an exercise of reasonable diligence, should not have known of the alleged contamination. Her complaint was therefore timely filed. In regards to the discretionary function exception, during at least part of plaintiff’s residence at Camp Lejeune, the United States had notice of the presence and toxicity of the chemicals at issue in the base’s water supply. And, specific instructions were in place regarding the types of chemicals that plaintiff alleges were responsible for her injuries. Thus, because conduct with respect to such contamination was not the subject of discretion susceptible to policy analysis, the conduct alleged in plaintiff’s complaint does not fall within the discretionary function exception to the FTCA’s waiver of sovereign immunity.Jones v. United States, No. 7:09-cv-106, 40 ELR 20070 (E.D.N.C. Feb. 23, 2010) (Boyle, J.).

AIR QUALITY, BEST AVAILABLE CONTROL TECHNOLOGY

The Wyoming Supreme Court affirmed the Wyoming Department of Environmental Quality’s (DEQ) issuance of an air quality permit for a new coal-fired electric power plant. DEQ’s computer modeling showed that, when considering the maximum allowable emissions from current area sources, the impacts of cumulative SO2 emissions could exceed the maximum allowable increment in a nearby reservation. DEQ nonetheless determined that the proposed plant’s contributions were so exceedingly small that they would not cause or contribute to any actual exceedances of the increment. The court held that, based on the language of the permit review regulations, there was no room for DEQ to waive application of the increment through the use of significant impact levels, and no authority to invoke significant impact levels to issue a permit despite modeled exceedances of the increment, no matter how small those exceedances might be or how small the proposed source’s contribution may be. The regulations do, however, give DEQ discretion to predict the impacts of emissions from a proposed source. Accordingly, based on its analysis as reflected in the record, DEQ essentially decided that the predicted impacts of emissions from the plant would be less than the maximum allowable increment. In regards to best available technology (BACT), DEQ’s analysis was not clearly erroneous or inconsistent with the plain language of the regulations: DEQ was not required to consider the option to employ supercritical boiler technology as an alternative to the proposed subcritical boiler technology because such option would require extensive changes to the plant’s basic design. Finally, DEQ was not required to consider greenhouse gas emissions in its BACT analysis because it was not shown that carbon dioxide was subject to regulation when the plant’s permit was pending.Powder River Basin Res. Council v. Wyoming Dep’t of Envtl. Quality, No. S-09-0037, 40 ELR 20075 (Mont. Mar. 5, 2010).

CALIFORNIA ENVIRONMENTAL QUALITY ACT, PROJECT

A California appellate court reversed a lower court’s decision that granted environmental groups a writ of mandate invalidating a municipal services agreement (MSA) between the city of Richmond and the Scotts Valley Band of Pomo Indians of California on the grounds that the city violated the California Environmental Quality Act (CEQA) by approving the agreement. The city and the band entered into the MSA for the provision of municipal services related to a casino to be developed, constructed and operated by the band. The groups argued that the band’s casino was a “project” that triggered the city’s obligation to comply with the CEQA. The court disagreed, holding that the casino did not constitute a “project” of the city under the CEQA because the city had no legal authority over the property upon which the casino was to be situated and city support of the band’s efforts to acquire the land and to obtain the requisite approvals do not transform the casino into a “project.” Further, the three firehouse improvement options included in the MSA are simply too vague to trigger CEQA review. And, the transportation improvement provisions in the MSA, none of which appear to be within the city’s boundaries and most of which were included in the draft EIS, are not within the city’s jurisdiction.Parchester Vill. Neighborhood Council v. City of Richmond, No. A123859, 40 ELR 20064 (Cal. Ct. App. Feb. 24, 2010).

CALIFORNIA ENVIRONMENTAL QUALITY ACT, FEES

A California appellate court affirmed a lower court decision that sustained the city of Glendora’s demurrer on the ground that charging a city resident a $2000 fee to appeal the city planning commission’s decision to adopt an addendum to a negative declaration in regards to an assisted living facility was in compliance with the California Environmental Quality Act (CEQA). The appeal was based on CEQA grounds. The court held that, even though there is no specific statutory authorization to impose a fee, such authorization is not required for the appeal of an approval of a negative declaration. Indeed, the resident does not point to any legislative intent to foreclose the city from charging an appeal fee from an individual who wishes to challenge a negative declaration. Finally, in deference to the mandate of §21083.1 of the California Public Resources Code, the court declines to interpret the CEQA as requiring agencies such as the city to waive any and all of their customary fees for filing administrative appeals of decisions simply because the appeal is based on the CEQA.Friends of Glendora v. City of Glendora, No. B215114, 40 ELR 20065 (Cal. Ct. App. Mar. 1, 2010).

THE FEDERAL AGENCIES

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

AIR:

  • EPA announced the availability of its draft report,Policy Assessment for the Review of the Secondary National Ambient Air Quality Standards for Oxides of Nitrogen and Oxides of Sulfur: First External Review Draft.75 FR 11877(3/12/10).
  • EPA entered into a proposed settlement agreement and consent decree under the CAA that requires the Agency to take action on SIP submittals from Colorado, Montana, New Mexico, and Utah by a specified date.75 FR 11886(3/12/10).
  • EPA denied a request for reconsideration and administrative stay of revisions to Wisconsin’s PSD and nonattainment new source review construction permit programs.75 FR 10415(3/8/10).
  • EPA announced the availability of the draft report,Study of Discharges Incidental to Normal Operation of Commercial Fishing Vessels and Other Non-Recreational Vessels Less Than 79 Feet.75 FR 10477(3/8/10).
  • EPA entered into a proposed administrative settlement under CERCLA that requires the settling party to pay $5,000 in past U.S. response costs incurred at the West Site/Hows Corner Superfund site in Plymouth, Maine.75 FR 10481(3/8/10).
  • SIP Approvals:California (attainment of extreme one-hour ozone NAAQS for the San Joaquin Valley nonattainment area)75 FR 10420(3/8/10); (reduction of animal matter and volatile organic compound emissions)75 FR 10690(3/9/10). Indiana (attainment of the 1997 eight-hour ozone NAAQS for the Lake and Porter counties nonattainment area and exemption of nitrogen oxide sources from reasonably available control technology requirements)75 FR 12088(3/12/10). Texas (permit application review schedule)75 FR 10416(3/8/10); (permit renewal application and submittal regulations)75 FR 11464(3/11/10). Virginia (Clean Air Interstate Rule sulfur dioxide trading budget program)75 FR 11738(3/12/10).
  • SIP Proposals:Indiana (attainment of the 1997 eight-hour ozone NAAQS for the Lake and Porter counties nonattainment area, exemption of nitrogen oxide sources from reasonably available control technology requirements, and other proposals; see above for direct final rule)75 FR 12090(3/12/10). Texas (permit application review schedule; see above for direct final rule)75 FR 10449(3/8/10); (permit renewal application and submittal regulations; see above for direct final rule)75 FR 11503(3/11/10).

HAZARDOUS & SOLID WASTE:

  • EPA entered into a settlement agreement under CERCLA that requires a permanent waste repository on the settling party's property on the Tar Creek Superfund site in Ottawa County, Oklahoma.75 FR 8701(2/25/10).
  • EPA entered into a settlement agreement under CERCLA that requires the settling party to pay $18,000 in past U.S. response costs incurred at the Colorado Bumper Exchange Superfund site in Pueblo, Colorado.75 FR 8701(2/25/10). (the link is fr25fe10-78)
  • EPA granted a petition to delist 2,700 cubic yards of sediment generated by the Valero Refining Company—Tennessee, LLC, in Memphis, Tennessee, from the list of hazardous wastes.75 FR 11002(3/10/10).
  • EPA announced availability of supplemental funding for the Brownfields Cleanup Revolving Loan Fund.75 FR 10793(3/9/10).

WILDLIFE:

  • FWS designated approximately 132 acres in Benton, Lane, Linn, and Marion counties, Oregon, as critical habitat for the Oregon chub.75 FR 11010(3/10/10).
  • FWS proposed to designate approximately 189 acres in Onslow and Pender counties, North Carolina, as critical habitat for the golden sedge.75 FR 11080(3/10/10).

DOJ NOTICES OF SETTLEMENT:

  • United States v. Norfolk Southern Railway Co., No. 1:08-cv-01707 (D.S.C. Mar. 8, 2010). A settling CWA and CERCLA defendant must pay a $4 million civil penalty for releases of chlorine and diesel fuel following a 2005 train derailment in Graniteville, South Carolina, must provide enhanced emergency response training, must restock impacted waters with fish, must post a National Response Center hotline number, and must conduct a supplemental environmental project to control erosion and improve water quality in impacted waters.75 FR 11911(3/12/10).
  • United States v. ESSROC San Juan, Inc., No. 3:09-cv-01578 (D.P.R. Mar. 5, 2010). A settling CWA and CAA defendant must pay a $275,000 civil penalty, must perform injunctive relief, and must perform a supplemental environmental project with the Department of Natural Resources for violations at its Portland cement manufacturing plant in Dorado, Puerto Rico.75 FR 11560(3/11/10).
  • United States v. DEGs of Narrows, LLC, No. 7:10CV00085 (W.D. Va. Mar. 1, 2010). A settling CAA defendant must pay a $310,000 civil penalty for failure to comply with nitrogen oxide budget trading program, Title V permit, and leak detection and repair requirements at its facility in Narrows, Virginia.75 FR 10503(3/8/10).
  • United States v. AES Thames, LLC, No. 3:10cv281 (D. Conn. Mar. 2, 2010). A settling CAA, CWA, EPCRA, and CERCLA defendant must pay a $140,000 civil penalty for violations at its coal-fired power plant in Montville, Connecticut, and must institute injunctive relief in the form of operator training and implementation of additional spill control measures and safeguards.75 FR 10503(3/8/10).

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

THE CONGRESS

Chamber Action

  • H.R. 3433 (North American Wetlands Conservation Act)which would amend the North American Wetlands Conservation Act to establish requirements regarding payment of the non-Federal share of the costs of wetlands conservation projects in Canada that are funded under that Act, was passed by the Senate clearing the measure for the President. 156 Cong. Rec. S131 (daily ed. Mar. 9, 2010).

Committee Action

  • S. 443 (land conveyance)was reported by the Committee on Indian affairs. S. Rep. No. 111-161, 156 Cong. rec. S1358 (daily ed. Mar 10, 2010). The bill would transfer certain land to the United States to be held in trust for the Hoh Indian Tribe, to place land into trust for the Hoh Indian Tribe.
  • S. 555 (Arapaho-Roosevelt National Forests) was reported by the Committee on Energy and Natural Resources. S. Rep. No. 111-131, 156 Cong. Rec. S944 (daily ed. Mar. 2, 2010). The bill would provide for the exchange of certain land located in the Arapaho-Roosevelt National Forests in the State of Colorado.
  • S. 721 (Alpine Lakes Wilderness) was reported by the Committee on Energy and Natural Resources. S. Rep. No. 111-132, 156 Cong. Rec. S944 (daily ed. Mar. 2, 2010). The bill would expand the Alpine Lakes Wilderness in the State of Washington, to designate the Middle Fork Snoqualmie River and Pratt River as wild and scenic rivers.
  • S. 782 (National Volcano Early Warning and Monitoring System)was reported by the Committee on Energy and Natural Resources. S. Rep. No. 111-133, 156 Cong. Rec. S944 (daily ed. Mar. 2, 2010). The bill would provide for the establishment of the National Volcano Early Warning and Monitoring System.
  • S. 853 (White Clay Creek) was reported by the Committee on Energy and Natural Resources. S. Rep. No. 111-134, 156 Cong. Rec. S944 (daily ed. Mar. 2, 2010). The bill would designate additional segments and tributaries of White Clay Creek, in the States of Delaware and Pennsylvania, as a component of the National Wild and Scenic Rivers System.
  • S. 874 (El Rio Grande Del Norte National Conservation Area) was reported by the Committee on Energy and Natural Resources. S. Rep. No. 111-135, 156 Cong. Rec. S944 (daily ed. Mar. 2, 2010). The bill would provide for the establishment El Rio Grande Del Norte National Conservation Area in the State of New Mexico.
  • S. 940 ( Nevada System of Higher Education) was reported by the Committee of Energy and Natural Resources. S. Rep. No. 111-136, 156 Cong. Rec. S944 (daily ed. Mar. 2, 2010). The bill would direct the Secretary of the Interior to convey to the Nevada System of Higher Education certain Federal land located in Clark and Nye counties in Nevada.
  • S. 1139 (land conveyance) was reported by the Committee on Energy and Natural Resources. S. Rep. No. 111-138, 156 Cong. Rec. S944 (daily ed. Mar. 2, 2010). The bill would require the Secretary of Agriculture to enter into a property conveyance with the city of Wallowa, Oregon.
  • S. 1140 (land conveyance) was reported by the Committee on Energy and Natural Resources. S. Rep. No. 111-139, 156 Cong. Rec. S944 (daily ed. Mar. 2, 2010). The bill would direct the Secretary of the Interior to convey certain Federal land to Deschutes County, Oregon.
  • S. 1369 (Molalla River) was reported by the Committee on Energy and Natural Resources. S. Rep. No. 111-140, 156 Cong. Rec. S944 (daily ed. Mar. 2, 2010). The bill would amend the Wild and Scenic Rivers Act to designate segments of the Molalla River in the State of Oregon as components of the National Wild and Scenic Rivers System.
  • S. 1453 (recovery programs) was reported by the Committee on Energy and Natural Resources. S. Rep. No. 111-142, 156 Cong. Rec. S944 (daily ed. Mar. 2, 2010). The bill would amend Public Law 106-392 to maintain annual base funding for the Bureau of Reclamation for the Upper Colorado River and San Juan fish recovery programs through fiscal year 2023.
  • S. 1757 (water contract) was reported by the Committee on Energy and Natural Resources. S. Rep. No. 111-143, 156 Cong. Rec. S944 (daily ed. Mar. 2, 2010). The bill would provide for the prepayment of a repayment contract between the United States and the Uintah Water Conservancy District.
  • S. 1759 (Central Valley Project) was reported by the Committee on Energy and Natural Resources. S. Rep. No. 111-144, 156 Cong. Rec. S944 (daily ed. Mar. 2, 2010). The bill would authorize certain transfers of water in the Central Valley Project.
  • H.R. 689 (Federal lands) was reported by the Committee on Energy and Natural Resources. S. Rep. No. 111-145, Cong. Rec. S944 (daily ed. Mar. 2, 2010). The bill would interchange the administrative jurisdiction of certain Federal lands between the Forest Service and the Bureau of Land Management.
  • H.R. 714 (Virgin Islands National Park) was reported by the Committee on Energy and Natural Resources. S. Rep. No. 111-146, Cong. Rec. S944 (daily ed. Mar. 2, 2010). The bill would authorize the Secretary of the Interior to lease certain lands in Virgin Islands National Park.
  • H.R. 1121 (Blue Ridge Parkway) was reported by the Committee on Energy and Natural Resources. S. Rep. No. 111-147, Cong. Rec. S944 (daily ed. Mar. 2, 2010). The bill would authorize a land exchange to acquire lands for the Blue Ridge Parkway from the Town of Blowing Rock, North Carolina.
  • H.R. 1442 (reversionary interest) was reported by the Committee on Energy and Natural Resources. S. Rep. No. 111-150, Cong. Rec. S944 (daily ed. Mar. 2, 2010). The bill would provide for the sale of the Federal Government's reversionary interest in approximately 60 acres of land in Salt Lake City, Utah.
  • H.R. 1593 (Illabot Creek) was reported by the Committee on Energy and Natural Resources. S. Rep. No. 111-151, Cong. Rec. S944 (daily ed. Mar. 2, 2010). The bill would amend the Wild and Scenic Rivers Act to designate a segment of Illabot Creek in Skagit County, Washington as a component of the National Wild and Scenic Rivers System.
  • H.R. 1945 (reservoir construction) was reported by the Committee on Energy and Natural Resources. S. Rep. No. 111-153, Cong. Rec. S944 (daily ed. Mar. 2, 2010). The bill would require the Secretary of the Interior to conduct a study on the feasibility and suitability of constructing a storage reservoir, outlet works, and a delivery system for the Tule River Indian Tribe of the Tule River Reservation in the State of California to provide a water supply for domestic, municipal, industrial, and agricultural purposes.
  • H.R. 3113 (Elk River) was reported by the Committee on Energy and Natural Resources. S. Rep. No. 111-156, Cong. Rec. S944 (daily ed. Mar. 2, 2010). The bill would amend the Wild and Scenic Rivers Act to designate a segment of the Elk River in the State of West Virginia for study for potential addition to the National Wild and Scenic Rivers System.
  • H.R. 3433 (North American Wetlands Conservation Act)was reported by the Committee on Environment and Public Works. S. Rep. No. 111-158 (daily ed. March 5, 2010). The bill would amend the North American Wetlands Conservation Act to establish requirements regarding payment of the non-Federal share of the costs of wetlands conservation projects in Canada that are funded under that Act.

Bills Introduced:

  • S. 3050 (Nelson, D-Fla.)(land conveyance) would direct the Secretary of Agriculture to convey to Miami-Dade County certain federally owned land in Florida. 156 Cong. Rec. S857 (daily ed. Mar. 1, 2010). The bill was referred to the Committee on Agriculture, Nutrition, and Forestry.
  • S. 3053 (Specter, D-Pa.) (Surface Mining Control and Reclamation Act of 1977) would amend the Surface Mining Control and Reclamation Act of 1977 to permit the Abandoned Mine Reclamation Fund to be used for transportation and use of dredged materials for abandoned mine reclamation. 156 Cong. Rec. S857 (daily ed. Mar. 1, 2010). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 3054 (Menendez, D-N.J.) (efficiency standards) would amend the Energy Policy and Conservation Act to establish efficiency standards for bottle-type water dispensers, commercial hot food holding cabinets, and portable electric spas. 156 Cong. Rec. S857 (daily ed. Mar. 1, 2010). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 3055 (Casey, D-Pa.) (community greening initiatives) would require the Secretary of Commerce to award grants to municipalities to carry out community greening initiatives. 156 Cong. Rec. S857 (daily ed. Mar. 1, 2010). The bill was referred to the Committee on Environment and Public Works.
  • S. 3056 (Wyden, D-Or.) (Energy Policy Act) would amend the Energy Policy Act of 2005 to repeal a section of that Act relating to exportation and importation of natural gas. 156 Cong. Rec. S945 (daily ed. Mar. 2, 2010). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 3057 (Boxer, D-Cal.) (materials sale) would provide to the Secretary of Interior a mechanism to cancel contracts for the sale of materials CA-20139 and CA-22901. 156 Cong. Rec. S945 (daily ed. Mar. 2, 2010). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 3059 (Bingaman, D-N.M.) (energy efficiency) would improve energy efficiency of appliances, lighting, and buildings. 156 Cong. Rec. S945 (daily ed. Mar. 2, 2010). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 3060 (Hatch, R-Utah) (thorium fuel)would amend the Atomic Energy Act of 1954 to provide for thorium fuel cycle nuclear power generation. 156 Cong. Rec. S1017 (daily ed. Mar. 3, 2010). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 3062 (Carper, D-Del.) (offshore wind) would extend credits related to the production of electricity from offshore wind. 156 Cong. Rec. S1017 (daily ed. Mar. 3, 2010). The bill was referred to the Committee on Finance.
  • S. 3063 (Reid, D-Nev.) (invasive species)would direct the Secretary of the Interior to provide loans to certain organizations in certain States to address habitats and ecosystems and to address and prevent invasive species. 156 Cong. Rec. S1018 (daily ed. Mar. 3, 2010). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 3064 (Snowe, R-Me.) (offshore wind) would amend the Internal Revenue Code of 1986 to provide a credit for the production of energy from deep water offshore wind. 156 Cong. Rec. S1018 (daily ed. Mar. 3, 2010). The bill was referred to the Committee on Finance.
  • S. 3070 (Nelson, D-Fla.) (land conveyance)would release Federal reversionary interests retained on certain lands acquired in the State of Florida under the Bankhead-Jones Farm Tenant Act, to authorize the interchange of National Forest System land and State land in Florida, to authorize an additional conveyance under the Florida National Forest Land Management Act of 2003. 156 Cong. Rec. S1018 (daily ed. Mar. 3, 2010). The bill was referred to the Committee on Agriculture, Nutrition, and Forestry.
  • S. 3072 (Rockefeller, D-W.V.) (greenhouse gases)would suspend, during the 2-year period beginning on the date of enactment of this Act, any Environmental Protection Agency action under the Clean Air Act with respect to carbon dioxide or methane pursuant to certain proceedings, other than with respect to motor vehicle emissions. 156 Cong. Rec. S1169 (daily ed. Mar. 4, 2010). The bill was referred to the Committee on Environment and Public Works.
  • S. 3073 (Levin, D-Mich.) (FWPCA)would amend the Federal Water Pollution Control Act to protect and restore the Great Lakes. 156 Cong. Rec. S1169 (daily ed. Mar. 4, 2010). The bill was referred to the Committee on Environment and Public Works.
  • S. 3075 (Baucus, D-Mont.) (land/mining) would withdraw certain Federal land and interests in that land from location, entry, and patent under the mining laws and disposition under the mineral and geothermal leasing laws. 156 Cong. Rec. S1169 (daily ed. Mar. 4, 2010). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 3076 (Cantwell, D-Wash.) (national parks)would direct the Secretary of the Interior to conduct studies of natural soundscape preservation in the National Park Service. 156 Cong. Rec. S1169 (daily ed. Mar. 4, 2010). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 3099 (Risch, R-Idaho) (hydroelectric)would reinstate and extend the deadline for commencement of construction of a hydroelectric project involving the American Falls Reservoir. 156 Cong. Rec. S1358 (daily ed. Mar. 10, 2010). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 3100 (Risch, R-Idaho) (hydroelectric)would reinstate and extend the deadline for commencement of construction of a hydroelectric project involving the Little Wood River Ranch. 156 Cong. Rec. S1358 (daily ed. Mar. 10, 2010). The bill was referred to the Committee on Energy and Natural Resources.
  • H.R. 4715 (Bishop, D-N.Y.) (FWPCA) would amend the Federal Water Pollution Control Act to reauthorize the National Estuary Program. 156 Cong. Rec. H1026 (daily ed. Mar. 2, 2010). The bill was referred by the Committee on Transportation and Infrastructure.
  • H.R. 4719 (Rodriquez, D-Tex.) (Southwest Border Region Water Task Force) would establish a Southwest Border Region Water Task Force. 156 Cong. Rec. H1026 (daily ed. Mar. 2, 2010. The bill was referred to the Committee on Natural Resources.
  • H.R. 4723 (Boyd, D-Fla.) (Gulf of Mexico red snapper fishery) would direct the Secretary of Commerce to study the Gulf of Mexico red snapper fishery and to limit the authority of the Secretary to promulgate any interim rules for the fishery. 156 Cong. Rec. H1026 (daily ed. Mar. 2, 2010). The bill was referred to the Committee on Natural Resources.
  • H.R. 4726 (McKeon, R-Cal.) (North Los Angeles Regional Water Recycling Project) would authorize the Secretary of the Interior to participate in projects to encourage the design, planning, and construction of the North Los Angeles County Regional Water Recycling Project in the State of California. 156 Cong. Rec. H1026 (daily ed. Mar. 2, 2010). The bill was referred to the Committee on Natural Resources.
  • H.R. 4732 (Watson, D-Cal.) (Federal Food, Drug, and Cosmetic Act) would create a new conditional approval system for drugs, biological products, and devices that is responsive to the needs of seriously ill patients. 156 Cong. Rec. H1027 (daily ed. Mar. 2, 2010). The bill was referred to the Committee on Energy and Commerce and the Committee on Ways and Means.
  • H.R. 4741 (Fattah, D-Pa.) (clean energy)would amend the Energy Policy Act of 2005 to create the right business environment for doubling production of clean nuclear energy and other clean energy and to create mini-Manhattan projects for clean energy research and development. 156 Cong. Rec. H1103 (daily ed. Mar. 3, 2010). The bill was referred to the Committees on Energy and Commerce, Science and Technology, and Education and Labor.
  • H.R. 4751 (Tonko, D-N.Y.) (energy)would amend the Internal Revenue Code of 1986 to encourage the deployment of highly efficient combined heat and power property. 156 Cong. Rec. H1103 (daily ed. Mar. 3, 2010). The bill was referred to the Committee on Ways and Means.
  • H.R. 4753 (Rahall, D-W.V.) (greenhouse gases)would suspend, during the 2-year period beginning on the date of enactment of this Act, any Environmental Protection Agency action under the Clean Air Act with respect to carbon dioxide or methane pursuant to certain proceedings, other than with respect to motor vehicle emissions. 156 Cong. Rec. H1167 (daily ed. Mar. 4, 2010). The bill was referred to the Committee on Energy and Commerce.
  • H.R. 4754 (Rehberg, R-Mont.) (national monuments)would prohibit the further extension or establishment of national monuments in Montana except by express authorization of Congress. 156 Cong. Rec. H1167 (daily ed. Mar. 4, 2010). The bill was referred to the Committee on Natural Resources.
  • H.R. 4755 (Ehlers, R-Mich.) (FWPCA)would amend the Federal Water Pollution Control Act to protect and restore the Great Lakes. 156 Cong. Rec. H1167 (daily ed. Mar. 4, 2010). The bill was referred to the Committee on Transportation and Infrastructure.
  • H.R. 4772 (Kilroy, D-Ohio) (energy)would amend the Internal Revenue Code of 1986 to extend the nonbusiness energy property credit to include insulated siding. 156 Cong. Rec. H1168 (daily ed. Mar. 4, 2010). The bill was referred to the Committee on Ways and Means.
  • H.R. 4773 (Kingston, R-Ga.) (land lease)would to authorize the Secretary of the Interior to lease certain lands within Fort Pulaski National Monument. 156 Cong. Rec. H1168 (daily ed. Mar. 4, 2010). The bill was referred to the Committee on Natural Resources.
  • H.R. 4792 (Faleomavaega, D-A.S.) (seabed minerals)would direct the Secretary of the Interior, acting through the Minerals Management Service, to conduct a technological capability assessment, survey, and economic feasibility study regarding recovery of minerals, other than oil and natural gas, from the shallow and deep seabed of the United States. 156 Cong. Rec. H1220 (daily ed. Mar. 9, 2010). The bill was referred to the Committee on Natural Resources.
  • H.R. 4798 (Simpson, R-Idaho) (drinking water)would small public water systems to request an exemption from the requirements of any national primary drinking water regulation for a naturally occurring contaminant. 156 Cong. Rec. H1220 (daily ed. Mar. 9, 2010). The bill was referred to the Committee on Energy and Commerce.
  • H.R. 4805 (Matsui, D-Cal.) (TSCA)would amend the Toxic Substances Control Act to reduce the emissions of formaldehyde from composite wood products. 156 Cong. Rec. H1322 (daily ed. Mar. 10, 2010). The bill was referred to the Committees on Energy and Commerce, and Financial 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:

AlabamaIndianaOhioArizonaMassachusettsOregonIllinoisMissouriPennsylvania

ALABAMA

Hazardous & Solid Waste:

  • The Department of Environmental Management will hold a public hearing on proposed amendments to Ala. Code § 335-13, Solid Waste Program. The amendments revise various definitions and clarify provisions related to the closure requirements for unauthorized solid waste dumps. The hearing will be April 2, 2010. Seehttp://www.adem.state.al.us/newsEvents/notices/feb10/2div13.htm

ARIZONA

Wildlife:

ILLINOIS

Hazardous & Solid Waste:

  • The Pollution Control Board has adopted amendments to Ill. Admin. Code tit. 35, §739, Standards for the Management of Used Oil; 35 Ill. Adm. Code 808, Special Waste Classifications; and 35 Ill. Adm. Code 809, Nonhazardous Special Waste Hauling and the Uniform Program. The amendments would exempt used oil from the special waste manifest requirements and amend used oil tracking provisions. Seehttp://www.cyberdriveillinois.com/departments/index/register/register_volume34_issue11.pdf(pp. 3296-345)

INDIANA

Air:

  • The Air Pollution Control Board will hold a public hearing on amendments to Ind. Admin. Code tit. 326 r. 1-1-3, concerning an update to references to the Code of Federal Regulations. The hearing will be June 2, 2010. Seehttp://www.in.gov/legislative/iac/irtoc.htm?view=list&lsadocnum=10-112
  • The Air Pollution Control Board has amended Ind. Admin. Code tit. 326 r. 16-1-2, Ind. Admin. Code tit. 326 r. 16-1-3, and Ind. Admin. Code tit. 326 r. 16-1-4,concerning implementation of Indiana law regarding environmental impact statements for major state actions that significantly affect the quality of the human environment. Seehttp://www.in.gov/legislative/iac/20100310-IR-326080208FRA.xml.html

Hazardous and Solid Waste:

  • The Solid Waste Management Board has amended Ind. Admin. Code tit. 329 r. 5-1-2, Ind. Admin. Code tit. 329 r. 5-1-3, and Ind. Admin. Code tit. 329 r. 5-1-4,to define actions that constitute major state actions significantly affecting the quality of the human environment. Seehttp://www.in.gov/legislative/iac/20100310-IR-329080209FRA.xml.html

Water:

  • The Water Pollution Control Board has amended Ind. Admin. Code tit. 327 r. 11-1-2, Ind. Admin. Code tit. 327 r. 11-1-3, and Ind. Admin. Code tit. 327 r. 11-1-4,concerning implementation of Indiana law regarding environmental impact statements for major state actions that may significantly affect the quality of the human environment. Seehttp://www.in.gov/legislative/iac/irtoc.htm?view=list&lsadocnum=08-210

Wildlife:

MASSACHUSETTS

Toxic Substances:

  • The Department of Environmental Protection will hold a public hearing on proposed amendments to Mass. Regs. Code tit. 314 §19.00: Oil Spill Prevention & Response. The amendments enhance the protection of Buzzards Bay by providing state-provided tugboat escort services to tank vessels carrying 6,000 barrels or more oil in Buzzards Bay. The regulation provides for the dispatch of state-provided tugboat escorts to accompany such tank vessels and specifies equipment, manning, and response requirements related to the operation of state- provided tugboat escorts. The hearing will be March 23, 2010. Seehttp://www.mass.gov/dep/cleanup/laws/spillact.htm#tugreg

MISSOURI

Air:

  • The Department of Natural Resources will hold a public hearing on proposed amendments to M. Code Regs. Ann. tit. 10 §10-6.110 Reporting Emission Data, Emission Fees, and Process Information. This rule provides procedures for reporting emission related information and establishing emission fees for the purpose of state air resource planning. The hearing will be April 29, 2010. Comments are due May 6, 2010. Seehttp://www.sos.mo.gov/adrules/moreg/current/2010/v35n5/v35n5a.pdf(pp. 462-7)

OHIO

Water:

OREGON

Air:

  • The Oregon Department of Environmental Quality will hold a public hearing on proposed adoption a new air toxic ambient benchmark concentration for ethyl benzene, revision of two current benchmark concentrations for lead and manganese, and clarification that the mercury benchmark applies only to elemental mercury. The hearing will be April 2, 2010.http://www.deq.state.or.us/regulations/proposedrules.htm

PENNSYLVANIA

Water:

  • The Delaware River Basin Commission will hold a public hearing on proposed amendments to the Administrative Manual Part III, Basin Regulations, Water Supply Charges. The changes would revise the schedule of water charges. The hearing will be April 13, 2010. Written comments are due April 16, 2010. Seehttp://www.pabulletin.com/secure/data/vol40/40-10/391.html

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

INTERNATIONAL

CHINA AND INDIA ENDORSE COPENHAGEN CLIMATE DEAL

China and India joined numerous other nations in signing up to the climate accord struck in Copenhagen. More than 100 nations have now endorsed the non-binding accord. The agreement plans for $100 billion a year in climate aid for developing nations and attempts to limit global warming to below 2 degrees Celsius above pre-industrial temperatures; however, no timetable for meeting the goal was established. Indian Environment Minister Jairam Ramesh told parliament that India would also let its name join the list of "associated" countries on the three-page document. "This will strengthen our negotiating position on climate change," Ramesh said. Chinese negotiator Su Wei wrote a one-sentence letter to the U.N. Climate Change Secretariat in Bonn saying that it could "proceed to include China in the list." Of the largest greenhouse gas emitters, only Russia has yet to agree with the deal. For the full story, visithttp://www.reuters.com/article/idUSTRE6283A120100309

VOLUNTARY CARBON OFFSET BUYING STILL STAGNANT

Seasonally weak demand in the first quarter has kept carbon offset buying stagnant. "There aren't a lot of deals getting done," said Grattan MacGiffin, head of voluntary carbon at brokers MF Global in London. "When people buy credits, they don't need them tomorrow, but sometime this year, to make good a promise they made last year. So timing isn't so important." Activity usually picks up in the second and third quarters. The voluntary market relies on businesses to reduce their carbon emissions in the absence of a legally-binding climate pact. For the full story, visithttp://www.reuters.com/article/idUSTRE62837Y20100309

ONTARIO BOLSTERS GREEN SUPPORT AS EUROPE BACKS OFF

Ontario is becoming a magnet for the green energy sector. Investors are being drawn to the province by subsidies at a time when incentives are being scaled back elsewhere. Two prominent players, South Korea's Samsung C&T Corp and Bosch Solar Energy AG, have plans to establish offices in Ontario. Companies are attracted by government support and proximity to the United States. "People are looking at the North American market as the next growth area," said Mehdi Hosseini, an analyst at FBR Capital Markets in San Francisco. "In coming to Ontario and setting up manufacturing, the hope is to use that manufacturing and tap into the U.S. market. They will benefit from the Ontario market in the near future and long term...the U.S. market." The United States is currently the world's largest generator of wind energy and is expected to surpass Germany, the leader in solar power, in the coming years. For the full story, seehttp://www.reuters.com/article/idUSTRE62844A20100309

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

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