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Weekly Update Volume 40, Issue 9

03/29/2010

LITIGATION

MINING, EXPOSURE LIMIT, DIESEL PARTICULATE MATTER

The D.C. Circuit denied industry groups’ petition for review of a Mine Safety and Health Administration (MSHA) decision to enforce a final exposure limit standard for exposure of miners in metal and non-metal underground mines to diesel particulate matter (DPM) in diesel exhaust. This decision represented a change in MSHA’s earlier expressed intent to issue a proposed rule to convert the final DPM exposure standard from a total carbon (TC) to elemental carbon (EC) measurement. The court held that MSHA was not arbitrary and capricious in deciding not to propose a rule to convert the final DPM standard as, among other things, MSHA’s intent was conditioned on having scientific data to support a conversion for EC at low TC levels. The record indicates that MSHA did not have the needed data before the final DPM standard was to take effect. At the same time, MSHA’s decision was not subject to APA notice and comment procedures. MSHA neither enacted a new rule nor modified the final DPM standard, and not modifying a rule is not the same as formulating, amending, or repealing a rule. The court went on to hold that it lacked jurisdiction to address the failure of the National Institute of Occupational Safety and Health to release its study on DPM.National Mining Ass’n v. Mine Safety and Health Administration, No. 08-1241, 09-1087, 40 ELR 20088 (D.C. Cir. Mar. 19, 2010).

ENVIRONMENTAL LIABILITY INSURANCE, REFORMATION

Applying state law, the Seventh Circuit reversed a lower court decision to hold that a sewerage district was not entitled to reformation of an environmental liability insurance policy to include a certain parcel of real property. Based on all of the evidence in the record, the lower court’s finding that there was clear and convincing proof that a prior agreement existed between the insurer and the district that the parcel would be covered property was clearly erroneous. There was no meeting of the minds regarding the actual property that the district wished to insure. This is fatal to a reformation claim. In addition, viewed as a whole, the record indicates that the district, through its agent, knew that the policy would not include the parcel of land as an insured property. Absent a mistake on the part of the district at the time the policy was issued, reformation is not an available remedy.MilwaukeeMetro. Sewerage Dist. v. Am. Int’l Specialty Lines Ins. Co., Nos. 09-1645, -1715, -1783, 40 ELR 20077 (7th Cir. Mar. 10, 2010).

GASOLINE LEAK, INSURANCE, EXCLUSIONS

The Seventh Circuit affirmed a lower court’s grant of summary judgment in favor of insurers in a breach of contract action related to the insurers’ refusal to defend a gas station in a class action filed against it for allegedly contaminating groundwater in a residential neighborhood. Applying state law, the court held that the pollution exclusion in the insured station’s policy was sufficiently explicit to exclude gasoline contamination from coverage even though the policy did not explicitly define “pollutant” to include “gasoline.” In addition, based on the plain language of the contract, the policy made excess liability coverage coextensive with the primary commercial general liability coverage. Since the primary coverage effectively excluded liability from gasoline leaks, the excess liability policy did the same. Finally, despite weak wording, the policy’s products-hazard clause covered only knowingly completed market transactions and abandoned product. There is no doubt that the class action was predicated on the accidental leak of gasoline from the insured’s storage tanks, and there was never any contention that the gas station abandoned its product. Accordingly, the policy does not provide an independent source of recovery.West Bend Mutual Ins. Co. v. U.S. Fidelity and Guaranty Co., No. 09-2519, 40 ELR 20091 (7th Cir. Mar. 25, 2010).

CAA,PREVENTION OF SIGNIFICANT DETERIORATION

A district court granted a motion to dismiss certain counts related to the PSD provisions of the CAA against an owner and operator of six coal-fired power plants. Plaintiffs, the United States and the state of Illinois, asserted, among other things, that the owner/operator violated, and continues to violate, CAA §165 and the implementing PSD regulations by failing to obtain a PSD permit prior to the operation of major modifications undertaken by the prior owner. Based on the plain meaning of CAA §165, the implementing regulations, and prior cases, the court held that CAA §165 prohibits constructing or modifying, but notoperating, a source without a permit. Moreover, plaintiffs’ PSD counts are time barred to the extent they seek monetary damages. As to equitable relief, plaintiffs have failed to state any basis for liability for those PSD counts related to the major modifications undertaken by the prior owner since the owner/operator did not own or operate the sources at issue when the alleged violations occurred. Plaintiffs are therefore not entitled to any relief – injunctive or otherwise – for these counts.United States v. Midwest Generation, LLC, No. 09-5277, 40 ELR 20081 (N.D. Ill. Mar. 9, 2010) (Darrah, J.).

NEPA, GENETICALLY ENGINEERED CROP, PRELIMINARY INJUNCTION

A district court denied environmental groups’ motion for a preliminary injunction to enjoin the use of genetically engineered sugar beets. On the likelihood of success on the merits, the court has already found that defendants, the USDA and its Animal and Plant Health Inspection Service, violated NEPA by failing to conduct an EIS before deregulating genetically engineered sugar beets. The groups also demonstrated a likelihood of irreparable harm: there is evidence that genetically engineered sugar beets may mix with and contaminate Swiss chard, table beets, or conventional sugar beets through mechanical or other means. Nevertheless, upon balancing the equities and considering the public’s interest, issuing a preliminary injunction is not warranted. The groups did not move for preliminary injunction until five years after genetically engineered sugar beets were deregulated, three years after the case was filed, and four months after the court granted their motion for summary judgment on the merits. During this time, the industry has overwhelming converted to the use of genetically engineered sugar beets. If the court were to ban the planting and processing of such sugar beet crop, there would not be enough conventional seed for a full crop this year. The economic impact of such a shortage would be dramatic and widespread. The court therefore denies the motion for a preliminary injunction. The parties should not assume, however, that this decision is indicative of the court’s views on a permanent injunction. Rather, while the environmental review is pending, the sugar beet growers should take all efforts, going forward, to use conventional seed.Ctr. for Food Safety v. Schafer, No. C08-00484, 40 ELR 20085 (N.D. Cal. Mar. 16, 2010) (White, J.).

WILD AND SCENIC RIVERS ACT, PERMANENT INJUNCTION

A district court granted in part and in denied in part environmental group’s motion for summary judgment with respect to their claims brought pursuant to the APA that the National Park Service (NPS) and Federal Highway Administration (FHWA) violated the Wild and Scenic Rivers Act (WSRA), Organic Act and General Authorities Act, the Transportation Act, and NEPA by approving a project to build a bridge across the Lower St. Croix River. The NPS’s WSRA §7 evaluation was arbitrary and capricious because the NPS ignored its contrary position in a prior evaluation for a bridge that was generally similar – in purpose, location and physical characteristics – to the proposed bridge. A federal agency may reevaluate previous determinations and change its mind, but the agency must explain its reasons for changing its position. The NPS’s failure to acknowledge its previous contrary position, let alone explain why in its opinion a change is justified, is the hallmark of an arbitrary and capricious decision. The obligations of WSRA §10(a) did not apply, however, to the §7 evaluation since the proposed bridge is located within the state-administered portion of the Lower St. Croix. For similar reasons, the Organic Act and General Authorities Act do not apply. In addition, the NPS did not violate directives of Lower St. Croix’s cooperative management plan, NEPA, or the Transportation Act. Finally, the court granted a permanent injunction barring the federal government from funding or authorizing the proposed bridge: NPS has previously found that a substantially similar bridge would fundamentally, permanently, and negatively impact the Lower St. Croix’s outstandingly remarkable values. The NPS also previously found that no mitigation attempts would be effective. This is the definition of irreparable harm. As to the balance of the harms, there is no cognizable harm to the NPS from being enjoined from taking an action that is against the law. Without an injunction, the NPS will set in motion construction that is likely to cause irreparable injury to the Lower St. Croix. And the overriding public interest is in protecting the values of the Lower St. Croix, particularly when the significant possibility for indefinite damage to those values is created by the proposed bridge. Entry of a permanent injunction is therefore warranted.Sierra Club North Star Chapter v. LaHood, No. 07-2593, 40 ELR 20092 (D. Minn. Mar. 11, 2010) (Davis, J.).

CERCLA, RCRA, DRY CLEANING WASTE

A district court granted dry cleaning machine manufacturers’ motion to dismiss claims against them under CERCLA, RCRA, and state and common law to recover costs to remediate contamination from perchloroethylene (PCE), a volatile organic compound used in dry cleaning. First, the manufacturers cannot be held liable as an arranger under CERCLA because the complaint failed to allege that the manufacturers owned or possessed PCE or PCE-laced water and failed to substantiate that the manufacturers knew how a machine operator would dispose of the “waste” sufficient to rise to the level of intentional disposal of a hazardous substance. Intentional disposal is also negated by the absence of allegations that the manufacturers installed the machine, connected it to floor drains, directed waste disposal from the machines, or inspected the machines and their waste disposal. Furthermore, the complaint does not negate manufacturers’ useful product defense: the transaction at issue is the sale of the machine, an event that neither produces nor involves hazardous substances directly. Even looking beyond the sale, the complaint offers nothing to suggest that disposal of a hazardous substance was arranged through the transaction. Second, the manufacturers cannot be held liable as generators under RCRA because the complaint fails to allege that the manufacturers created the waste or had any active involvement in handling, storing, or disposing of PCE. Third, the manufacturers cannot be held liable for nuisance because the complaint fails to allege affirmative steps toward the improper discharge of PCE. Fourth, the manufacturers cannot be held liable for trespass because their conduct fails to substantiate invasion in exclusive possession of land. Finally, the claims for comparative equitable indemnity, response costs, declaratory relief, and attorney fees are also dismissed because they derive from the alleged liability under CERLCA and RCRA.Hinds Investments, L.P. v. Team Enterprises, Inc., No. 07-0703, 40 ELR 20093 (E.D. Cal. Mar. 12, 2010) (O’Neill, J.).

CERCLA, SETTLEMENT CREDIT

A district court held that a proposed settlement relating to cleanup costs of a hazardous waste spill from a tank car entered into between plaintiff and one defendant was fair and was reached in good faith and that thepro tantomethod was superior for settlement credit on the facts of the case. Without clear guidance from the statute, the court is left to choose among various ways to credit the settlement. Considering the policies embodied in CERCLA and the relevant effects on promotion of settlement and judicial economy presented in the type of case before the court, thepro tantoapproach is the better approach to settlement credit. At the same time, considering the evidence in the record and representations by counsel at the fairness hearing, the court must find, taking into account the principles and factors enunciated by the West Virginia Supreme Court, that the settlement is fair and was made in good faith. While the settlement value is certainly less than the responsibility assigned to defendant, there are justifiable reasons for the discount. In short, the court can find nothing to rebut the presumptive good faith of the settlement.Veolia Es Special Servs., Inc. v. Hiltop Invs., Inc., No. 3:07-0153, 40 ELR 20094 (S.D. W.Va. Mar. 12, 2010) (Chambers, J.).

OIL AND GAS LEASES, STATUTE OF LIMITATIONS

A district court granted in part and denied in part the United States' motion to dismiss citizen groups’ claims challenging the approval of certain quarterly oil and gas lease sales under, among other things, the APA, FLPMA, the Mineral Lands Leasing Act (MLLA), the National Forest Management Act (NFMA), and NEPA. First, the groups have challenged final agency actions within the meaning of the APA. The plain meaning of the regulations, Tenth Circuit dicta, and Ninth Circuit case law all support the notion that each protest decision constitutes a final agency action. Likewise, the EAs and FONSIs constitute final agency actions because they allowed BLM to proceed with the lease sales and triggered the administrative protest process. Second, certain of the groups’ claims are not time barred by the statute of limitations (SOL) in the MLLA. Controlling authority in the Tenth Circuit holds that the MLLA’s SOL only applies to actions contesting either the lease issuance or substantive decisions relating to the leases themselves under the MLLA. It is therefore inapplicable to the NEPA, NFMA, APA, and FMPLA claims. The doctrine of equitable tolling does not apply to the MLLA claim subject to the SOL because the SOL is jurisdictional. Moreover, even if the doctrine were applicable, the circumstances are not rare and exceptional so as to merit application of the doctrine. Third, the claim that BLM violated NEPA because it failed to supplement the EISs for its resource management plans (RMPs) is not foreclosed by prior caselaw. Finally, the claim that BLM failed to ensure compliance with certain New Mexico laws, which prohibit the waste of oil and gas and call for reductions of methane and carbon dioxide emissions, in violation of FLPMA and certain regulations is not cognizable. Since the group does not specifically challenge a land use plan, RMP, or a provision of a lease, it does not allege sufficient facts to state a plausible claim under the cited law.Amigos Bravos v. U.S. Bureau of Land Mgmt., Nos. 09-0037, -0414, 40 ELR 20084 (D.N.M. Feb. 9, 2010) (Brack, J.).

TOXIC SUBSTANCES, RELEASE, PUNITIVE DAMAGES

A district court set aside a jury’s punitive damage award for gross negligence in a suit related to a refinery’s release of an unidentified toxic substance into the atmosphere causing personal injuries to workers. In establishing gross negligence, the workers must show an extreme risk of harm involving both high probability and high potential severity. Here, the evidence fails to establish a legal connection between the event and a known extreme risk. While the history of the refinery shows a high probability that a worker will be frequently exposed to a toxic substance, the evidence does not support the high potential severity side of the test. Nor does the evidence show a high probability of the same source. Furthermore, the evidence does not establish specific intent because the refinery implemented safety precautions and installed monitors to detect deadly toxic chemicals. Accordingly, as a matter of law, gross negligence was not proved by clear and convincing evidence, and the jury’s punitive damages award must be set aside.Garner v. BP Amoco Chem. Co., No. G-07-221, 40 ELR 20086 (S.D. Tex. Mar. 16, 2010) (Hoyt, J.).

WATER RIGHTS, EQUITABLE OR BENEFICIAL INTEREST

The Oregon Supreme Court answered three certified questions from the Federal Circuit Court of Appeals relating to whether plaintiffs, farmers and irrigation districts that use water from a federal reclamation project in the Klamath River basin have an equitable interest in a water right to which the United States holds legal title. The first question asked whether a 1905 Oregon statute precluded plaintiffs from acquiring a beneficial or equitable interest in the water right. Based on the text and context of the statute, the court answered “no.” Under the act, a formal written release from the United States is not necessary for plaintiffs to have acquired such an interest. The second question asked whether beneficial use alone is sufficient to acquire a beneficial or equitable interest in a water right to which another person holds title. The court again answered “no,” holding that, under Oregon law, whether plaintiffs acquired such an interest turns on three factors: whether plaintiffs put water to beneficial use with the result that it became appurtenant to their land; whether the United States acquired the water right for plaintiffs’ use and benefit; and, if it did, whether the contractual agreements between the United States and plaintiffs altered that relationship. Here, the first two factors suggest that plaintiffs acquired an interest in the water right. But since not all of the parties’ agreements are before the court, a definitive answer to the second question cannot be provided. The third question asked whether Oregon State law recognizes any property interest in the use of Klamath Basin water that is not subject to the Klamath Basin adjudication. The court answered “yes.” To the extent plaintiffs assert only an equitable or beneficial property interest in the water right, plaintiffs are not “claimants” who must appear in the adjudication or lose the right. As a general rule, equitable or beneficial property interests in a water right to which someone else claims legal title are not subject to determination in a state water rights adjudication.Klamath Irrigation Dist. v. United States, No. S056275, 40 ELR 20079 (Or. Mar. 11, 2010).

CALIFORNIA ENVIRONMENTAL QUALITY ACT, ENVIRONMENTAL EFFECTS, BASELINE

The California Supreme Court affirmed a lower court decision to find that the South Coast Air Quality Management District abused its discretion in determining that a project to conduct a new industrial process at a petroleum refinery would have no significant environmental effects under the California Environmental Quality Act (CEQA). In making its determination, the district treated any additional nitrogen oxide (NOx) emissions stemming from increased plant operations within previously permitted levels as part of the baseline measurement for environmental review, rather than as part of the proposed project. The court concluded that the district’s choice of a baseline for NOx emissions was inconsistent with CEQA and the CEQA Guidelines: the district should have looked to the existing physical conditions rather than to the maximum operational levels allowed under a prior permit. Neither the statute of limitations, principles of vested rights, nor CEQA caselaw justify using the maximum capacity allowed under prior permits as an analytical baseline for a new project. Using the correct baseline, a fair argument based on substantial evidence can be made that the project will increase NO x emissions significantly. The appropriate remedy is therefore to order the district to set aside its negative declaration and project approval and to prepare an environmental impact report that will evaluate, along with any other potentially significant impacts, these increased emissions.Communities for a Better Env’t v. S. Coast Air Quality Mgmt. Dist., No. S161190, 40 ELR 20082 (Cal. Mar. 15, 2010).

WIND ENERGY, PERMITS, SUBSTANTIAL EVIDENCE

The Maine Supreme Court upheld the Board of Environmental Protection's decision to affirm the issuance of permits to a company to construct a wind energy generation facility. A citizen group challenged the Board’s findings on the grounds that the company did not meet applicable licensing criteria with respect to sound level limits, impact on public health, and minimized impact on wildlife habitats. The Board’s factual findings were supported by substantial evidence in the record, based on the final reports of an independent consultant, a sound assessment study, and the opinions of the Maine Department of Inland Fisheries and Wildlife and Maine Centers for Disease Control. Whether alternative findings could be supported by the record is not determinative. In addition, the provisions in 38 M.R.S. §§344(2-A)(A)(1), 346(4), precluding the Board from assuming jurisdiction of the permit applications and allowing direct appeal from the Board to the court, do not violate the Equal Protection Clauses of the U.S. and Maine Constitutions. The group failed to show that no conceivable state of facts supports the legislative action. Moreover, although not required to do so, the Maine Legislature has articulated a legitimate state interest in facilitating the rapid development of alternative, renewable energy resources.Friends of Lincoln Lakes v. Board of Environmental Protection, No. BEP-09-467, 40 ELR 20080 (Me. Mar. 11, 2010).

CALIFORNIA ENVIRONMENTAL QUALITY ACT, SUPPLEMENTAL EIR

A California appellate court affirmed a lower court decision that denied plaintiff’s petition for a writ of mandate directing a city to set aside its approval of a revised site plan for a commercial retail shopping center project. The petition claimed that the city violated the California Environmental Quality Act (CEQA) and the city’s municipal code by approving the plan without preparing a subsequent or supplemental environmental impact report (EIR). Subsequent to the certification of the EIR, the site plan for 795,000 square feet of the project’s retail space was changed so that the largest retail space grew from 138,000 square feet to 198,484 square feet. Contrary to plaintiff’s assertions, the inclusion of a “supercenter” in a project, without more, does not automatically trigger a requirement of an EIR analysis of whether the project will cause “urban decay effects.” It is the project (or the change in the project) that is the focus of the inquiry. The inquiry is not whether the project, or the change in the project, is of a certain type.Melom v. City of Madera, No. F055024, 40 ELR 20090 (Cal. Ct. Appl. Mar. 24, 2010).

THE FEDERAL AGENCIES

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

AIR:

  • EPA amended the general provisions for the Mandatory Greenhouse Gas Reporting Rule promulgated October 30, 2009.75 FR 12451(3/16/10).
  • EPA proposed to amend the general provisions for the Mandatory Greenhouse Gas Reporting Rule promulgated October 30, 2009; see above for direct final rule.75 FR 12489(3/16/10).
  • EPA amended the Renewable Fuel Standard Program under CAA §211(o) for all gasoline and diesel produced or imported in 2010.75 FR 14670(3/26/10).
  • EPA amended the transportation conformity rule with regard to its implementation in fine particulate matter (PM2.5) and PM10 nonattainment and maintenance areas.75 FR 14260(3/24/10).
  • EPA announced the availability of the draft document,The Inventory of U.S. Greenhouse Gas Emissions and Sinks: 1990-2008.75 FR 12232(3/15/10).
  • SIP Approvals:Alaska (motor vehicle inspection and maintenance program in Anchorage and Fairbanks)75 FR 13436(3/22/10). Arkansas (attainment of the 1997 eight-hour ozone NAAQS for Crittenden County)75 FR 14077(3/24/10). California (attainment of the 24-hour NAAQS for PM for the Coso Junction nonattainment area)75 FR 13710(3/23/10). Delaware (sulfur dioxide mass emissions limit)75 FR 12449(3/16/10). Michigan (PSD construction permit program)75 FR 14352(3/25/10).
  • SIP Proposals:California(disapproval of opacity standard revisions for the Monterey Bay unified air pollution control district)75 FR 13468(3/22/10); (volatile organic compound emissions)75 FR 14545(3/26/10). Delaware (control of nitrogen oxide emissions from industrial boilers)75 FR 12168(3/15/10). Idaho (update to meet federally approved revisions)75 FR 13058(3/18/10). Michigan (PSD construction permit program; see above for direct final rule)75 FR 14401(3/25/10). Wisconsin (nitrogen oxide reasonably available control technology for major sources in the Milwaukee-Racine and Sheboygan ozone nonattainment areas)75 FR 14116(3/24/10).

WATER:

  • EPA announced the availability of a draft guidance for federal land management in the Chesapeake Bay watershed pursuant to Executive Order No. 13508 of May 12, 2009.75 FR 14152(3/24/10).
  • EPA made a tentative determination that adequate facilities for the safe and sanitary removal and treatment of sewage from all vessels are reasonably available for the New York State canal system.75 FR 12233(3/15/10).

WILDLIFE:

  • FWS issued a final rule reinstating regulatory protections under the ESA for the grizzly bear in the Greater Yellowstone and surrounding areas.75 FR 14496(3/26/10).
  • FWS designated approximately 1,636,609 acres in 27 California counties as critical habitat for the California red-legged frog.75 FR 12816(3/17/10).
  • FWS announced a 90-day finding on a petition to list the Berry Cave salamander as endangered under the ESA; the Agency found that listing may be warranted and initiated a status review.75 FR 13068(3/18/10).
  • FWS announced a 90-day finding on a petition to list the southern hickorynut mussel as threatened or endangered under the ESA; the Agency found that listing is not warranted.75 FR 13717(3/23/10).
  • FWS announced a 90-day finding on a petition to list the striped newt as threatened under the ESA; the Agency found that listing may be warranted and initiated a status review.75 FR 13720(3/23/10).
  • FWS announced its 12-month findings on petitions to list three entities of the greater sage-grouse as threatened or endangered under the ESA; the Agency found that listing of two subspecies is warranted but precluded by higher priority listing actions and that listing of the western subspecies is not warranted.75 FR 13910(3/23/10).
  • NOAA-Fisheries announced a 12-month finding on a petition to reclassify loggerhead turtles in the North Pacific Ocean and the Northwest Atlantic as a distinct population segment with endangered status under the ESA; the agency determined that two segments should be listed as threatened and seven as endangered.75 FR 12598(3/16/10).

DOJ NOTICES OF SETTLEMENT:

  • United States v. Polar Tankers, Inc., No. 2:10-cv-429 (W.D. Wash. Mar. 15, 2010). A settling OPA defendant must pay $588,000 in assessment costs and natural resource damages for the discharge of oil into waterways near Vashon and Maury Islands in Washington.75 FR 13304(3/19/10).
  • United States v. Evenhouse Enterprises, Inc., No. 10-CV-2056 (C.D. Ill. Mar. 10, 2010). A settling SDWA defendant must pay a $20,000 civil penalty for violations of national primary drinking water regulations at two mobile home parks in Kankakee County, Illinois, must monitor its public water system for contaminants and provide quarterly results to EPA, must prepare and distribute Consumer Confidence Reports, must provide public notification of violations, and must obtain a responsible person in charge and certified operator for the mobile home parks.75 FR 12569(3/16/10).
  • United States v. Marathon Ashland Petroleum LLC, No. 01-40119 (PVG) (E.D. Mich. Mar. 19, 2010). Under a modified 2005 consent decree, a settling CAA defendant must pay a $408,000 civil penalty for benzene waste violations at its Canton and Catlettsburg refineries in Michigan, must perform two supplemental environmental projects valued at approximately $963,000, and must pay a stipulated penalty of $3,933 for flaring incidents at four of its refineries.75 FR 14629(3/26/10).
  • United States v. Chief Consolidated Mining Co., No. 2:04CV00891 BSJ (D. Utah Feb. 5, 2010). Under a modified 2005 consent decree, a settling CERCLA defendant must pay $225,000 to the United States for the next five years, must extend in-kind cleanup contributions until December 31, 2013, and must grant an easement to the city of Eureka, Utah, to facilitate the EPA site remedy.75 FR 14630(3/26/10).
  • United States v. All Metals Processing Co., No. 09-06363 JFW (C.D. Cal. Mar. 18, 2010). A settling CERCLA defendant must sell property in Burbank, California, must pay 85% of the proceeds toward past and future U.S. response costs incurred on the property, and must transfer all proceeds recovered from insurance policies to the United States.75 FR 14184(3/24/10).
  • United States v. NuStar Pipeline Operating Partnership LP, No. 10-106 (D. Neb. Mar. 18, 2010). A settling CWA defendant must pay a $450,000 civil penalty and must perform a supplemental environmental project at an estimated cost of $762,000 for oil spills at eight above-ground oil storage facilities in Iowa, Kansas, and Nebraska.75 FR 13781(3/23/10).

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

THE CONGRESS

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

Chamber Action:

  • H.R. 1769 (Alpine Lakes Wilderness Additions and Pratt and Middle Fork Snoqualmie Rivers Protection Act), which would expand the Alpine Lakes Wilderness in the state of Washington and designate the Middle Fork Snoqualmie River and Pratt River as wild and scenic rivers, was passed by the House. 156 Cong. Rec. H1619 (daily ed. Mar. 18, 2010).
  • H.R. 3644 (Ocean, Coastal, and Watershed Education Act), which would direct NOAA to establish education and watershed programs that advance environmental literacy, including preparedness and adaptability for the likely impacts of climate change in coastal watershed regions, was passed by the House. 156 Cong. Rec. H1661 (daily ed. Mar. 19, 2010).
  • H.R. 3650 (Harmful Algal Blooms and Hypoxia Research and Control Amendments Act), which would establish a National Harmful Algal Bloom and Hypoxia Program to develop and coordinate a comprehensive and integrated strategy to address harmful algal blooms and hypoxia and to provide for the development and implementation of comprehensive regional action plans to reduce harmful algal blooms and hypoxia, was passed by the House. 156 Cong. Rec. H1368 (daily ed. Mar. 12, 2010).
  • H.R. 3671 (Upper Mississippi River Basin Protection Act), which would promote DOI efforts to provide a scientific basis for the management of sediment and nutrient loss in the Upper Mississippi River Basin, was passed by the House. 156 Cong. Rec. H1668 (daily ed. Mar. 19, 2010).
  • H.R. 3954 (Florida National Forest Land Adjustment Act), which would release federal reversionary interests retained on certain lands acquired in the state of Florida under the Bankhead-Jones Farm Tenant Act, authorize the interchange of National Forest System land and state land in Florida, and authorize an additional conveyance under the Florida National Forest Land Management Act of 2003, was passed by the House. 156 Cong. Rec. H1546 (daily ed. Mar. 17, 2010).
  • H.R. 4003 (Hudson River Valley Special Resource Study Act), which would direct the Secretary of the Interior to conduct a special resource study to evaluate resources in the Hudson River Valley in the state of New York to determine the suitability and feasibility of establishing the site as a unit of the National Park System, was passed by the House. 156 Cong. Rec. H1686 (daily ed. Mar. 19, 2010).
  • H.R. 4252 (Inland Empire Perchlorate Ground Water Plume Assessment Act), which would direct the Secretary of the Interior to conduct a study of water resources in the Rialto-Colton Basin in the state of California, was passed by the House. 156 Cong. Rec. H1613 (daily ed. Mar. 18, 2010).
  • H.R. 4395 (Gettysburg National Military Park), which would revise the boundaries of the Gettysburg National Military Park to include the Gettysburg Train Station, was passed by the House. 156 Cong. Rec. H1712 (daily ed. Mar. 19, 2010).

Committee Action:

  • S. 479 (Chesapeake Bay Initiative Act)was reported by the Committee on Environment and Public Works. S. Rep. No. 111-164, 156 Cong. Rec. S1812 (daily ed. Mar. 22, 2010). The bill would amend the Chesapeake Bay Initiative Act of 1998 to provide for the continuing authorization of the Chesapeake Bay Gateways and Watertrails Network.
  • S. 690 (Neotropical Migratory Bird Conservation Act)was reported by the Committee on Environment and Public Works. S. Rep. No. 111-165, 156 Cong. Rec. S1812 (daily ed. Mar. 22, 2010). The bill would amend the Neotropical Migratory Bird Conservation Act to reauthorize the Act.
  • H.R. 1769 (Alpine Lakes Wilderness Additions and Pratt and Middle Fork Snoqualmie Rivers Protection Act)was reported by the Committee on Natural Resources. H. Rep. No. 111-434, 156 Cong. Rec. H1357 (daily ed. Mar. 11, 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
  • H.R. 4003 (Hudson River Valley Special Resource Study Act)was reported by the Committee on Natural Resources. H. Rep. No. 111-436, 156 Cong. Rec. H1357 (daily ed. Mar. 11, 2010). The bill would direct the Secretary of the Interior to conduct a special resource study to evaluate resources in the Hudson River Valley in the state of New York to determine the suitability and feasibility of establishing the site as a unit of the National Park System.
  • H.R. 4192 (public lands)was reported by the Committee on Natural Resources. H. Rep. No. 111-437 156 Cong. Rec. H1357 (daily ed. Mar. 11, 2010). The bill would designate the Stornetta Public Lands as an Outstanding Natural Area to be administered as a part of the National Landscape Conservation System.
  • H.R. 4252 (Inland Empire Perchlorate Ground Water Plume Assessment Act)was reported by the Committee on Natural Resources. H. Rep. No. 111-433, 156 Cong. Rec. H1357 (daily ed. Mar. 11, 2010). The bill would direct the Secretary of the Interior to conduct a study of water resources in the Rialto-Colton Basin in the state of California.
  • H.R. 4395 (Gettysburg National Military Park)was reported by the Committee on Natural Resources. H. Rep. No. 111-438, 156 Cong. Rec. H1357 (daily ed. Mar. 11, 2010). The bill would. A bill to revise the boundaries of the Gettysburg National Military Park to include the Gettysburg Train Station.
  • H.R. 4715 (FWPCA)was reported by the Committee on Transportation and Infrastructure. H. Rep. No. 111-442, 156 Cong. Rec. H1595 (daily ed. Mar. 17, 2010). The bill would amend the FWPCA to reauthorize the National Estuary Program.
  • H. Res. 1168 (National Harmful Algal Bloom and Hypoxia Program)was reported by the Committee on Rules. H. Rep. No. 111-438, 156 Cong. Rec. H1357 (daily ed. Mar. 11, 2010). The resolution would provide for consideration of H.R. 3650, to establish a National Harmful Algal Bloom and Hypoxia Program.
  • H. Res. 1192 (NOAA)was reported by the Committee on Rules. H. Rep. No. 111-445, 156 Cong. Rec. H1655 (daily ed. Mar. 18, 2010). The resolution would provide for consideration of H.R. 3644, to direct NOAA to establish education and watershed programs that advance environmental literacy, including preparedness and adaptability for the likely impacts of climate change in coastal watershed regions, and would provide for consideration of the H.R. 1612, to amend the Public Lands Corps Act of 1993.

Bills Introduced:

  • S. 3105 (Wyden, D-Or.) (waste management)would expand the scope of the definition of airport planning to include waste management planning. 156 Cong. Rec. S1458 (daily ed. Mar. 11, 2010). The bill was referred to the Committee on Commerce, Science, and Transportation.
  • S. 3116 (Kerry, D-Mass.) (Whale Conservation and Protection Study Act)would amend the Whale Conservation and Protection Study Act to promote international whale conservation, protection, and research. 156 Cong. Rec. S1516 (daily ed. Mar. 15, 2010). The bill was referred to the Committee on Commerce, Science, and Transportation.
  • S. 3117 (Wyden, D-Or.) (nanotechnology)would strengthen the capacity of eligible institutions to provide instruction in nanotechnology. 156 Cong. Rec. S1516 (daily ed. Mar. 15, 2010). The bill was referred to the Committee on Health, Education, Labor, and Pensions.
  • S. 3119 (Gillibrand, D-N.Y.) (Long Island Sound)would amend and reauthorize certain provisions relating to Long Island Sound restoration and stewardship. 156 Cong. Rec. S1618 (daily ed. Mar. 16, 2010). The bill was referred to the Committee on Environment and Public Works.
  • S. 3131 (Gillibrand, D-N.Y.) (national parks)would direct the Secretary of the Interior to conduct a special resource study to evaluate resources in the Hudson River Valley in the state of New York to determine the suitability and feasibility of establishing the site as a unit of the National Park System. 156 Cong. Rec. S1670 (daily ed. Mar. 17, 2010). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 3137 (Udall, D-Colo.) (energy)would amend the Internal Revenue Code of 1986 to provide that solar electric property need not be located on the property with respect to which it is generating electricity in order to qualify for the residential energy efficient property credit. 156 Cong. Rec. S1750 (daily ed. Mar. 18, 2010). The bill was referred to the Committee on Finance.
  • H.R. 4822 (Childers, D-Miss.) (Natural Resource Conservation Service)would provide for the settlement of claims arising from the failure of the Natural Resource Conservation Service (and former Soil Conservation Service) to carry out the Houlka Creek Watershed Project in Mississippi. 156 Cong. Rec. S1357 (daily ed. Mar. 11, 2010). The bill was referred to the Committee on Agriculture.
  • H.R. 4823 (Kirkpatrick, D-Mich.) (national forests)would establish the Sedona-Red Rock National Scenic Area in the Coconino National Forest, Arizona. 156 Cong. Rec. S1357 (daily ed. Mar. 11, 2010). The bill was referred to the Committee on Natural Resources.
  • H.R. 4824 (Kirkpatrick, D-Mich.) (national forests)would provide for the conveyance of a small parcel of land in the Coconino National Forest, Arizona. 156 Cong. Rec. S1357 (daily ed. Mar. 11, 2010). The bill was referred to the Committee on Natural Resources.
  • H.R. 4827 (Calvert, R-Cal.) (land conveyance)would provide for the conveyance of a small parcel of Natural Resources Conservation Service property in Riverside, California. 156 Cong. Rec. S1357 (daily ed. Mar. 11, 2010). The bill was referred to the Committee on Agriculture.
  • H.R. 4847 (Young, R-Alaska) (National Volcano Early Warning and Monitoring System)would provide for the establishment of the National Volcano Early Warning and Monitoring System. 156 Cong. Rec. S1440 (daily ed. Mar. 15, 2010). The bill was referred to the Committee on Natural Resources.
  • H.R. 4866 (Coffman, R-Colo.) (minerals)would reestablish a competitive domestic rare earths minerals production industry; a domestic rare earth processing, refining, purification, and metals production industry; a domestic rare earth metals alloying industry; and a domestic rare earth-based magnet production industry and supply chain in the United States. 156 Cong. Rec. S1595 (daily ed. Mar. 17, 2010). The bill was referred to the Committees on Armed Services, and Ways and Means, and Financial Services.
  • H.R. 4867 (Jones, R-N.C.) (wildlife) would direct the Secretary of the Interior to enter into an agreement to provide for management of the free-roaming wild horses in and around the Currituck National Wildlife Refuge. 156 Cong. Rec. S1440 (daily ed. Mar. 17, 2010). The bill was referred to the Committee on Natural Resources.
  • H.R. 4876 (Dahlkemper, D-Pa.) (Great Lakes)would provide for the issuance of a Great Lakes Restoration Semipostal Stamp. 156 Cong. Rec. S1656 (daily ed. Mar. 18, 2010). The bill was referred to the Committees on Oversight and Government Reform, Transportation and Infrastructure, and Natural Resources
  • H.R. 4888 (Hastings, R-Wash.) (Forest Service)would revise the Forest Service Recreation Residence Program as it applies to units of the National Forest System derived from the public domain by implementing a simple, equitable, and predictable procedure for determining cabin user fees. 156 Cong. Rec. S1743 (daily ed. Mar. 19, 2010). The bill was referred to the Committee on Natural Resources.
  • H.R. 4905 (Baird, D-Wash.) (DOE)would guide and provide for research activities at the DOE Office of Science. 156 Cong. Rec. S2215 (daily ed. Mar. 22, 2010). The bill was referred to the Committee on Science and Technology.
  • H.R. 4906 (Gordon, D-Tenn.) (energy)would reauthorize the Advanced Research Projects Agency-Energy. 156 Cong. Rec. S2215 (daily ed. Mar. 22, 2010). The bill was referred to the Committee on Science and Technology.
  • H.R. 4907 (Carnahan, D-Mo.) (energy)would establish Energy Innovation Hubs. 156 Cong. Rec. S2215 (daily ed. Mar. 22, 2010). The bill was referred to the Committee on Science and Technology.
  • H. Con. Res. 255 (Obey, D-Wis.) (Earth Day) would commemorate the 40th anniversary of Earth Day and honor the founder of Earth Day, the late Sen. Gaylord Nelson of Wisconsin. 156 Cong. Rec. S1744 (daily ed. Mar. 19, 2010). The resolution was referred to the Committee on Oversight and Government Reform.
  • H. Res. 1173 (Welch, D-Vt.) (Vermont Long Trail)would recognize the 100th anniversary of the Vermont Long Trail, the oldest long-distance hiking trail in the United States, and congratulate the Green Mountain Club for its century of dedication in developing and maintaining the trail. 156 Cong. Rec. S1358 (daily ed. Mar. 11, 2010). The resolution was referred to the Committee on Natural Resources.
  • H. Res. 1180 (Hastings, D-Fla.) (wildlife)would express the sense of the House of Representatives regarding the policy of the United States on wild animals at the Conference of the Parties of the Convention on International Trade in Endangered Species of Wild Fauna and Flora. 156 Cong. Rec. S1396 (daily ed. Mar. 12, 2010). The resolution was referred to the Committee on Foreign Affairs.
  • H. Res. 1209 (Inslee, D-Wash.) (nuclear waste)would express disapproval of the House of Representatives with respect to DOE's motion with the NRC to withdraw the license application for a high-level nuclear waste repository at Yucca Mountain with prejudice. 156 Cong. Rec. S2261 (daily ed. Mar. 23, 2010). The resolution was referred to the Committee on Energy and Commerce.

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:

ColoradoMinnesotaTexasDelawareNevadaVermontIndianaOklahomaVirginiaIowa  

COLORADO

Air:

DELAWARE

Hazardous & Solid Waste:

INDIANA

Air:

IOWA

Land Use:

  • The Soil Conservation Division seeks public comment on proposed amendments to Iowa Admin. Code r. 10, Iowa Financial Incentive Program for Soil Erosion Control. The amendments increase slightly the cost share rates for tree and shrub establishment, limit eligibility for land already enrolled in USDA’s Conservation Reserve Program, and remove practice descriptions that can be found in the Natural Resources Conservation Service technical guide. Comments are due April 13, 2010. Seehttp://www.legis.state.ia.us/aspx/ACODOCS/DOCS/03-24-2010.Bulletin.pdf(pp. 2277-81)

Water:

  • The Soil Conservation Division seeks public comment on proposed amendments to Iowa Admin. Code r. 12, Water Protection Practices - Water Protection Fund. The proposed amendments change the supplemental allocation deadline from October 15 to September 1. The amendments also split the appropriated funds equally between projects and practices regardless of the total appropriation. Comments are due April 13, 2010. Seehttp://www.legis.state.ia.us/aspx/ACODOCS/DOCS/03-24-2010.Bulletin.pdf(pp. 2281-86)

MINNESOTA

Water:

NEVADA

Air:

General:

  • The State Environmental Commission adopted amendments to Nev. Admin. Code §486A. The amendments adopt by reference certain regulations relating to the use of gasoline as an alternative fuel; revise certain provisions governing the applicability of provisions governing the use of alternative fuels; require the Administrator of the Division of Environmental Protection of the State Department of Conservation and Natural Resources to maintain a list of each fuel designated as an alternative fuel; require a fleet of motor vehicles to consist of a certain percentage of clean vehicles, hybrid electric vehicles, or other motor vehicles capable of using an alternative fuel; require the operator of a fleet to file a written report concerning the motor vehicles included in the fleet; and require the report and any information included in the report to be certified. Seehttp://www.leg.state.nv.us/register/2010Register/R022-10P.pdf

OKLAHOMA

Air:

TEXAS

Air:

VERMONT

Water:

VIRGINIA

Fisheries:

  • The Marine Resources Commission adopted amendments to 4 Va. Admin. Code §20-490, pertaining to Sharks; §20-530, pertaining to American Shad; §20-620, pertaining to Summer Flounder; §20-720, pertaining to restrictions on oyster harvest; §20-910, pertaining to Scup (Porgy); and §20-950, pertaining to Black Sea Bass. Seehttp://legis.state.va.us/codecomm/register/vol26/iss14/v26i14.htm#f4v20490

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

INTERNATIONAL

INDONESIA TO REVIEW FOREST CARBON LAWS

Indonesia will review laws governing a U.N.-backed carbon trading scheme aimed at preserving rainforests, a forestry ministry official said. In 2008, Indonesia became the world's first country to design a legal framework for reducing emissions from deforestation and degradation (REDD) by allowing polluters in wealthy nations to pay developing nations not to chop down their trees. In addition to trees soaking up large amounts of carbon dioxide (CO2), deforestation and forest fires are also major source of greenhouse gas emissions, particularly when carbon-rich peat forests are cleared and drained. REDD aims to reward developing nations for protecting, restoring, and sustainably managing rainforests. Projects would earn tradeable credits for the CO2, and local communities would share a portion of the credit sales, thereby developing incentives to protect surrounding forests. The review of forestry department decrees 30, 36 and 68 is aimed at removing rules that overlap or clash and could see the creation of a new authority to monitor REDD in Indonesia, forestry ministry official Wandojo Siswanto told Reuters. Siswanto said the new authority would assess proposals from would-be REDD developers and coordinate with the finance, planning, environment and mining ministries. It may also play a role in monitoring whether or not REDD projects actually conserved carbon. For the full story, visithttp://www.reuters.com/article/idUSTRE62I1A720100319

CHINA SAYS DROUGHT NOW AFFECTING 50 MILLION PEOPLE

Forecasters see no signs of the severe drought in southwest China ending anytime soon. The drought is now affecting more than 50 million people. The drought, which began last autumn, is the result not only of less rainfall but also unseasonably high temperatures, the official Xinhua news agency said, citing a central government meeting on the situation. It affects the provinces and regions of Guangxi, Sichuan, Guizhou, and Yunnan and the municipality of Chongqing, parts of China known for their sugar and rubber plantations. The drought has caused economic losses of 19 billion yuan ($2.78 billion) and more than 16 million people are having difficulty accessing safe drinking water. "The drought has lasted for more than five straight months and is still developing," Xinhua said. "It is having a serious impact upon people's lives, industry, and agriculture as well as general economic development. Losses are severe." For the full story, visithttp://www.reuters.com/article/idUSTRE62I1O520100319

IMF WANTS TO HELP AFRICA HANDLE CLIMATE CHANGE

Although the global recession was slow to hit Africa, lowered demand for African exports, together with the shrinking of many venture-capital funds, has now hit the continent hard after a long period of unusually perky growth. Countries south of the Sahara together grew by less than 2% in 2009 and in many places income has fallen and unemployment started to rise. However, Dominique Strauss-Kahn, the International Monetary Fund's (IMF’s) head, said Africa’s economies were more dynamic than most of Asia’s and that Africa was recovering from the global crisis faster than expected. According to IMF estimates, sub-Saharan Africa’s economy will grow overall by 4.5% this year. This figure may be distorted by a large boost from oil and gold, as well as from the guaranteed aid that makes up half the budget in some countries. Nearly every African economy will grow more slowly than the 6% that many development economists reckon is the minimum to enable countries with rapidly increasing populations just to stand still. Mr Strauss-Kahn said the IMF would create a fund for helping Africa focus on mitigating climate change. A figure “rising to $100 billion by 2020” was mentioned, but this made some people wonder whether the IMF was simply trying to take over responsibility for the $100 billion that rich countries vaguely promised to spend on poor ones at December’s climate-change conference in Copenhagen. For the full story, seehttp://www.economist.com/research/articlesbysubject/displaystory.cfm?subjectid=348924&story_id=15679939

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

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