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Weekly Update Volume 41, Issue 1

01/10/2011

LITIGATION 

RCRA, CRIMINAL LAW, FINES:

The First Circuit affirmed a natural gas company's conviction for storing hazardous waste without a permit in violation of RCRA. The company is precluded from challenging a 2002 EPA rule authorizing Rhode Island's RCRA regulations because it failed to use the proper statutory procedure for judicial review. Accordingly, it may not raise the issue by collateral attack. Even were the court to hold otherwise, the 2002 rule is valid and within EPA's authority to adopt. In addition, the conviction does not violate the company's right to fair notice under the Due Process Clause. The court also affirmed the fine imposed. Although the U.S. Supreme Court held in Apprendi v. New Jersey, 530 U.S. 466 (2000), that a criminal fine must be vacated where a judge, and not a jury, determined the facts as to the number of days of violation under a schedule of fines, the Apprendi rule does not apply to the imposition of statutorily prescribed fines. Nor did the financial penalties imposed constitute an abuse of the lower court's discretion. United States v. Southern Union Co., No. 09-2403, 41 ELR 20054 (1st Cir. Dec. 22, 2010).


CWA, PENALTIES:

The Fourth Circuit reversed and remanded a district court's imposition of penalties against the former owner of a metals smelting facility for CWA violations. The environmental groups that filed suit against the company had standing, as they demonstrated that one of their members used an area of the water affected by the company's discharge. This aspect of the district court's ruling was therefore affirmed. But the district court erred in finding violations and imposing penalties for all but three violations for pH and copper, and it erred in assessing penalties for 54 days of violations that were "wholly past" when the plaintiffs filed their complaint. Accordingly, the court affirmed the part of the district court’s judgment relating to the Phase II violation for pH occurring on October 15, 1993, and to the Phase II violations for copper occurring on October 5, 1993, and March 22, 1994, and the accompanying penalties imposed for those three violations. But the court reversed the balance of the district court’s findings of violations and the court’s imposition of penalties for those violations. Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., No. 06-1714, 41 ELR 20055 (4th Cir. Jan 5, 2011).


NEPA, NATIONAL FOREST MANAGEMENT ACT:

The Ninth Circuit held that the U.S. Forest Service did not violate the National Forest Management Act or NEPA when it decided to thin 277 acres of old-growth forest in the Mission Brush Project area, located in the Idaho Panhandle National Forest. The Forest Service reasonably relied on the 10%-old-growth standard as set forth in the Idaho Panhandle forest plan. In addition, it was within the Service's discretion to rely on its own data and to discount the alternative evidence proffered by the petitioner. The court also rejected claims that the Forest Service applied flawed habitat suitability models. The lower court's judgment in favor of the government was therefore affirmed. Lands Council v. McNair, No. 09-36026, 41 ELR 20057 (9th Cir. Dec. 28, 2010).


CWA, NEPA, NATIONAL FOREST MANAGEMENT ACT:

The Ninth Circuit held that BLM and the U.S. Forest Service did not violate the CWA, NEPA, or the National Forest Management Act (NFMA) in approving a proposed mine expansion project in the Caribou National Forest. After evaluating the data, the agencies determined that remediation efforts would be sufficient to offset selenium from the expansion. Because this is a rational conclusion from the facts found, neither the CWA nor the NFMA required the agencies to identify further any other possible source of pollution. In addition, the agencies complied with NEPA’s procedural requirements by fully evaluating the environmental impacts of the mine and disclosing those results to the public. Nor was the mine required to obtain a §401 certification under the CWA. The §401 certification requirement applies only to discharges from point sources, and the mining pits at issue here do not qualify as a point source since they are protected by a cover designed to divert water away from the pits. The lower court, therefore, properly granted summary judgment to the agencies. Greater Yellowstone Coalition v. Lewis, Nos. 09-35729, -35753, 41 ELR 20059 (9th Cir. Dec. 23, 2010).


WATER, HYDROELECTRICITY:

The D.C. Circuit denied a Native American tribe's petition challenging FERC's decision declining to impose conditions on a utility's annual licenses for a hydroelectric plant in order to preserve the Klamath River's trout fishery. Contrary to the tribe’s argument, FERC quite plainly articulated and applied a standard in rejecting the tribe’s claims. In addition, FERC's “unanticipated, serious impacts” standard to guide its interim conditions analysis is consistent with the applicable regulation--18 C.F.R. §16.18(d). In addition, FERC’s decision that the project was not causing unanticipated, serious impacts had sufficient factual support in the record. Hoopa Valley Tribe v. Federal Energy Regulatory Commission, No. 09-1134, 41 ELR 20058 (D.C. Cir. Dec. 28, 2010).


NUCLEAR FACILITIES, DECOMMISSIONING REQUIREMENTS:

The D.C. Circuit vacated an NRC decision in which it refused to consider the value of a company's "goodwill" in determining whether the company was exempt from certain financial requirements necessary for the decommissioning of a uranium processing plant. In 2007 and 2008, the NRC granted the company's requests for exemptions from the regulatory requirement that licensees have a tangible net worth at least 10 times the current decommissioning cost estimate of its licensed facility. In each instance, the NRC justified the exemption by considering the value of the company's goodwill, an intangible asset. Yet the NRC denied a third exemption request in 2009 without considering the value of goodwill. NRC's failure to provide a reasoned explanation was arbitrary and capricious. The fact that the company's tangible net worth declined does not necessarily provide a reasonable basis to distinguish the 2009 decision because the company's tangible net worth was declining when it granted the 2007 and 2008 exemptions. Nor can the fact that the company had a negative tangible net worth in 2009 serve as the apparent basis for the denial because its 2008 tangible net worth was also negative. Honeywell International, Inc. v. Nuclear Regulatory Commission, No. 10-1022, 41 ELR 20060 (D.C. Cir. Dec. 21, 2010).


SMCRA, ENVIRONMENTAL IMPACTS:

A district court upheld the OSM's approval of amendments to West Virginia's federally approved SMCRA program that pertain to cumulative hydrologic impact assessments. The amendments delete the program's definition of “cumulative impact” and add a definition for “material damage to the hydrologic balance outside the permit areas.” For the approved amendments to be vacated, the alterations to West Virginia’s program must be shown to be less stringent than the SMCRA and less effective than the federal regulations, or it must be shown that the Secretary’s decision to approve the amendments was a clear error in judgment. Plaintiffs have not met this burden. The changes do not supersede, amend, modify, or repeal the CWA, and the OSM provided an adequate basis for its approval. Ohio River Valley Environmental Coalition, Inc. v. Salazar, No. 3:09-0149, 41 ELR 20061 (S.D. W. Va. Jan. 3, 2011) (Chambers, J.).


MICHIGAN ENVIRONMENTAL PROTECTION ACT, PERMITTING:

The Michigan Supreme Court held that a company's plan to discharge contaminated water from an environmental cleanup site in the Manistee River watershed into a previously unpolluted site in the AuSable River watershed was manifestly unreasonable and that the state agency should be held accountable under the Michigan Environmental Protection Act (MEPA) for permitting the discharge. Below, the appellate court correctly held that the plan was unreasonable, but it dismissed the agency as a defendant under a prior Michigan Supreme Court decision in Preserve the Dunes, Inc. v Dep’t of Environmental Quality, 471 Mich. 508 (2004). The majority in Preserve the Dunes held that reviewing the agency's permit decisions was outside the judicial authority under MEPA. But the decision to insulate agency permit decisions from MEPA violates the legislative intent behind MEPA, conflicts with previous case law regarding MEPA, and subverts the will of the people contained in article 4 of Michigan’s constitution. The court, therefore, overruled Preserve the Dunes. On remand, the trial court’s decision holding the agency accountable for violating MEPA should be reinstated. Anglers of the AuSable Inc. v. Department of Environmental Quality, Nos. 138863 et al., 41 ELR 20056 (Mich. Dec. 29, 2010).


Copyright© 2011, Environmental Law Institute, Washington, D.C. All rights reserved.


THE FEDERAL AGENCIES

Note: Citations below are to the Federal Register (FR).


AGRICULTURE:



  • The USDA seeks public comment on the proposed implementation of the Community Forest and Open Space Conservation Program, which provides grants to establish community forests. 76 FR 744 (1/6/11).

AIR:



  • EPA finalized rulemaking that narrows thresholds of SIP PSD programs in 24 states that apply to GHG-emitting sources. 75 FR 82536 (12/30/10).

  • EPA finalized revisions to the primary and secondary NAAQS for lead and associated monitoring requirements. 75 FR 81126 (12/27/10).

  • EPA deferred until August 31, 2011, the reporting deadline for year 2010 data elements that are inputs to emission equations under the Mandatory Greenhouse Gas Reporting Rule. 75 FR 81338 (12/27/10).

  • EPA established a federal implementation plan for Arizona, Arkansas, Florida, Idaho, Kansas, Oregon, and Wyoming because their SIPs fail to apply PSD requirements to sources of greenhouse gas (GHG) emissions. 75 FR 82246 (12/30/10).

  • EPA determined that Arizona, Arkansas, Florida, Idaho, Kansas, Oregon, and Wyoming have failed to submit revisions to their EPA-approved SIPs to apply PSD requirements to GHG-emitting sources. 75 FR 81874 (12/29/10).

  • EPA finalized rulemaking that narrows thresholds for Title V permitting programs under the Greenhouse Gas Tailoring Rule. 75 FR 82254 (12/30/10).

  • EPA approved Florida's plan under the CAA for implementing and enforcing the emissions guidelines applicable to existing large municipal waste combustors. 75 FR 82269 (12/30/10).

  • EPA proposed to defer the reporting date of certain data elements for emission equations under the Mandatory Greenhouse Gas Reporting Rule for three years; see above for direct final rule. 75 FR 81350 (12/27/10).

  • EPA proposed to approve Florida's plan under the CAA for implementing and enforcing the emissions guidelines applicable to existing large municipal waste combustors; see above for direct final rule. 75 FR 82370 (12/30/10).

  • EPA entered into a proposed settlement agreement in American Petroleum Institute v. EPA, No. 08-1277 (D.C. Cir.), that establishes deadlines for EPA's proposed and final actions. 75 FR 82390 (12/30/10).

  • EPA entered into a proposed settlement agreement in New York v. EPA, No. 06-1322 (D.C. Cir.), that establishes deadlines for the Agency to take action. 75 FR 82392 (12/30/10).

  • EPA entered into a proposed settlement agreement under the CAA that establishes deadlines for EPA to take action relating to attainment determinations for the particulate matter (PM) NAAQS. 75 FR 82009 (12/29/10).

  • EPA requested information and public comment on the reporting of inputs to emission equations under the Mandatory Greenhouse Gas Reporting Rule. 75 FR 81366 (12/27/10).

  • EPA seeks public comment on proposed federal implementation plan supplements to the Interstate Transport Rule for fine PM and ozone. 76 FR 1109 (1/7/11).

  • SIP Approvals: Alabama (Greenhouse Gas Tailoring Rule revision) 75 FR 81863 (12/29/10). Kentucky (Greenhouse Gas Tailoring Rule revision) 75 FR 81868 (12/29/10). Minnesota (sulfur dioxide (SO2) emissions) 75 FR 81471 (12/28/10). Mississippi (Greenhouse Gas Tailoring Rule revision) 75 FR 81858 (12/29/10). Pennsylvania (volatile organic compound (VOC) emissions) 75 FR 81480 (12/28/10). Texas (Emissions Banking and Trading of Allowances Program) 76 FR 15 (1/3/11). Virginia (particulate matter standards) 75 FR 81477 (12/28/10). West Virginia (materials available for public inspection) 75 FR 81474 (12/28/10).

  • SIP Proposals: California (limited approval of VOC revisions for the San Joaquin Valley unified air pollution control district) 76 FR 298 (1/4/11). Connecticut (new source review PSD program) 76 FR 752 (1/6/11). Idaho (regional haze and best available retrofit technology requirements) 76 FR 508 (1/5/11). Kansas (finding of substantial inadequacy of interstate transport of pollution plan) 76 FR 763 (1/6/11). Minnesota (SO2 emissions; see above for direct final rule) 75 FR 81555 (12/28/10). Montana (disapproval of new source review revisions and rules) 76 FR 758 (1/6/11). Nebraska (PSD program and greenhouse gas construction permit regulations) 75 FR 81179 (12/27/10). New Mexico (promulgation of federal implementation plan and disapproval of interstate transport of pollution plan) 76 FR 491 (1/5/11). Ohio (VOC rule) 75 FR 82363 (12/30/10). Pennsylvania (reasonably available control technology for multiple sources; see above for direct final rule) 75 FR 81555 (12/28/10).

  • SIP Withdrawal: Texas (emissions banking and trading of allowances) 75 FR 81484 (12/28/10).

ENERGY:



  • DOE proposed to amend its existing regulations governing compliance with NEPA, particularly its categorical exclusions. 76 FR 214 (1/3/11).

HAZARDOUS & SOLID WASTE:



  • EPA entered into five proposed settlements under CERCLA that require the parties to pay U.S. response costs incurred at the Ward Transformer Superfund site in Raleigh, North Carolina. 75 FR 81269 (12/27/10).

  • EPA entered into a proposed administrative settlement under CERCLA that requires 275 de minimis settling parties to pay $17,027,998 in U.S. response costs incurred at the Operating Industries, Inc., Superfund site in Monterey Park, California. 76 FR 1154 (1/7/11).

  • EPA Region 10 approved a modification to Alaska's municipal solid waste landfill program concerning research, development, and demonstration permit requirements. 76 FR 270 (1/4/11).

  • EPA proposed to approve revisions to South Dakota's hazardous waste management program. 75 FR 81187 (12/27/10).

  • EPA Region 10 proposed to approve a modification to Alaska's municipal solid waste landfill program concerning research, development, and demonstration permit requirements; see above for direct final rule. 76 FR 303 (1/4/11).

SURFACE MINING:



  • OSM approved an amendment to Montana's regulatory program under SMCRA regarding normal husbandry practices. 75 FR 81112 (12/27/10).

  • OSM approved an amendment to North Dakota's regulatory program under SMCRA reducing the revegetation responsibility period to five years for lands eligible for remining. 75 FR 81120 (12/27/10).

  • OSM approved an amendment to Texas' regulatory program under SMCRA regarding annual permit fees. 75 FR 81122 (12/27/10).

WATER:



  • EPA announced establishment of a TMDL for nitrogen, phosphorus, and sediment for the Chesapeake Bay and its tidal tributaries. 76 FR 549 (1/5/11).

  • EPA announced the availability of 2011 Beaches Environmental Assessment and Coastal Health Act grants for coastal recreation water monitoring and public notification programs. 75 FR 82382 (12/30/10).

WILDLIFE:



  • FWS determined endangered status for seven Brazilian bird species and subspecies under the ESA. 75 FR 81794 (12/28/10).

  • NOAA-Fisheries announced the adoption of an ESA recovery plan for the sperm whale. 75 FR 81584 (12/28/10).

  • NOAA-Fisheries proposed to designate approximately 292 miles of freshwater creeks and rivers and their associated estuaries in California, Oregon, and Washington as critical habitat for the southern distinct population segment of Pacific eulachon. 76 FR 515 (1/5/11).

DOJ NOTICES OF SETTLEMENT:



  • United States v. Pennsylvania, No. 4:10-cv-02672-CCC (M.D. Pa. Dec. 30, 2010). A settling CAA defendant responsible for violations at state correctional facilities in Bellefonte (Rockview), Huntingdon, Muncy, and Somerset, Pennsylvania, must pay a $300,000 civil penalty and must control PM emissions at the facilities. 76 FR 1192 (1/7/11).

  • United States v. Alcoa, Inc., No. 3:10-cv-532 (N.D. Ind. Dec. 22, 2010). Settling CERCLA defendants responsible for violations at the Cam-Or NPL site in Westville, Indiana, must construct, operate, and maintain containment, treatment, and remediation systems at the site; must pay $2.2 million into a special account for future U.S. oversight costs, plus interest and 50% of any additional U.S. oversight costs; must pay all future U.S. and Indiana oversight and response costs; and must pay $200,000 toward approximately $3.4 million in pre-entry unreimbursed U.S. response costs. 76 FR 586 (1/5/11).

  • United States v. Boeing Co., No. 10-457-LRS (E.D. Wash. Dec. 23, 2010). Settling CERCLA defendants responsible for violations at the Moses Lake Wellfield Superfund site in Moses Lake, Washington, must pay $3.25 million in U.S. response costs incurred at the site. The United States must pay approximately $55 million to EPA for cleanup costs, must pay future response costs not covered by the defendants' payments and those incurred by the state of Washington, and must pay the city of Moses Lake approximately $2.96 million to resolve claims for response costs and attorneys fees. 76 FR 385 (1/4/11).

  • United States v. Northeast Ohio Regional Sewer District, No. 10-cv-02895 (N.D. Ohio Dec. 22, 2010). A settling CWA defendant that violated its NPDES permit for its municipal wastewater and sewer system must implement injunctive measures, including the construction of seven deep underground tunnel systems—to reduce its combined sewer overflow (CSO) discharges—and construction of treatment plant expansions, for a total cost of approximately $3 billion; must invest $42 million in green infrastructure that will further reduce its CSO discharge by 44 million gallons; must pay $1.2 million in civil penalties to be split evenly between the United States and the state of Ohio; must spend $1 million to operate a permanent hazardous waste collection center in Cuyahoga County; and must spend $800,000 to improve other water resources. 75 FR 82072 (12/29/10).

  • In re Erving Industries, Inc., No. 09-30623 (Bankr. D. Mass. Dec. 20, 2010). A settling CERCLA defendant must provide an allowed general unsecured claim of $25,000 to the United States for response costs incurred at the Birch Hill Dam Area in Royalston, Massachusetts, and must comply with all obligations under the consent decree in United States v. Baldwinville Products, Inc., No. 4:07-CV-40146 (D. Mass. May 18, 2007). 75 FR 81311 (12/27/10).

Copyright© 2011, Environmental Law Institute, Washington, D.C. All rights reserved.


THE CONGRESS

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


Public Laws:



  • S. 1609 (fisheries), which authorizes a single fisheries cooperative for the Bering Sea Aleutian Islands longline catcher processor subsector, was signed into law on December 22, 2010. Pub. L. No. 111-335, 157 Cong. Rec. D8 (daily ed. Jan. 5, 2011).

  • H.R. 1061 (federal land), which transfers certain land to the United States to be held in trust for the Hoh Indian Tribe, was signed into law on December 22, 2010. Pub. L. No. 111-323, 157 Cong. Rec. D8 (daily ed. Jan. 5, 2011).

Bills Introduced:



  • H.R. 39 (Young, R-Alaska) (ESA) would delist the polar bear as a threatened species under the ESA. 157 Cong. Rec. H34 (daily ed. Jan. 5, 2011). The bill was referred to the Committee on Natural Resources.

  • H.R. 41 (Issa, R-Cal.) (federal land) would designate certain federal lands in San Diego County, California, as wilderness. 157 Cong. Rec. H34 (daily ed. Jan. 5, 2011). The bill was referred to the Committee on Natural Resources.

  • H.R. 49 (Young, R-Alaska) (oil and gas exploration) would direct the Secretary of the Interior to establish and implement an oil and gas leasing program for the exploration, development, and production of oil and gas resources of the Coastal Plain of Alaska. 157 Cong. Rec. H34 (daily ed. Jan. 5, 2011). The bill was referred to the Committees on Natural Resources, Energy and Commerce, and Science, Space, and Technology.

  • H.R. 50 (Young, R-Alaska) (wildlife conservation) would reauthorize the African Elephant Conservation Act, the Rhinoceros and Tiger Conservation Act of 1994, and the Asian Elephant Conservation Act of 1997. 157 Cong. Rec. H34 (daily ed. Jan. 5, 2011). The bill was referred to the Committee on Natural Resources.

  • H.R. 51 (Connolly, D-Va.) (ozone) would reduce the heat island effect and associated ground-level ozone pollution from federal facilities. 157 Cong. Rec. H34 (daily ed. Jan. 5, 2011). The bill was referred to the Committee on Oversight and Government Reform.

  • H.R. 52 (Connolly, D-Va.) (Outer Continental Shelf Lands Act) would amend the Outer Continental Shelf Lands Act to require that treatment of the issuance of any exploration plans, development production plans, development operation coordination documents, and lease sales required under federal law for offshore drilling activity on the outer continental shelf as a major federal action under NEPA. 157 Cong. Rec. H34 (daily ed. Jan. 5, 2011). The bill was referred to the Committee on Natural Resources.

  • H.R. 53 (Connolly, D-Va.) (OPA) would amend the Internal Revenue Code of 1986 to deny a deduction for removal costs and damages for which taxpayers are liable under OPA. 157 Cong. Rec. H34 (daily ed. Jan. 5, 2011). The bill was referred to the Committee on Ways and Means.

  • H.R. 54 (Connolly, D-Va.) (OPA) would amend OPA to extend liability to corporations, partnerships, and other persons having ownership interests in responsible parties. 157 Cong. Rec. H34 (daily ed. Jan. 5, 2011). The bill was referred to the Committee on Transportation and Infrastructure.

  • H.R. 56 (Scalise, R-La.) (Deepwater Horizon) would provide for restoration of the coastal areas of the Gulf of Mexico affected by the Deepwater Horizon oil spill. 157 Cong. Rec. H34 (daily ed. Jan. 5, 2011). The bill was referred to the Committee on Transportation and Infrastructure and the Committee on Natural Resources.

  • H.R. 66 (Doggett, D-Tex.) (waste-to-energy) would amend the Internal Revenue Code of 1986 to provide for an investment tax credit for waste-to-energy facilities. 157 Cong. Rec. H35 (daily ed. Jan. 5, 2011). The bill was referred to the Committee on Ways and Means.

  • H.R. 90 (Bartlett, R-Md.) (energy) would provide for federal research, development, demonstration, and commercial application activities to enable the development of farms that are net producers of both food and energy. 157 Cong. Rec. H36 (daily ed. Jan. 5, 2011). The bill was referred to the Committee on Science, Space, and Technology and the Committee on Agriculture.

  • H.R. 91 (Barton, R-Tex.) (energy efficiency) would repeal certain amendments to the Energy Policy and Conservation Act with respect to lighting energy efficiency. 157 Cong. Rec. H36 (daily ed. Jan. 5, 2011). The bill was referred to the Committee on Energy and Commerce and the Committee on Transportation and Infrastructure.

  • H.R. 97 (Blackburn, R-Tenn.) (climate) would amend the CAA to provide that greenhouse gases are not subject to the Act. 157 Cong. Rec. H36 (daily ed. Jan. 5, 2011). The bill was referred to the Committee on Energy and Commerce.

  • H.R. 113 (Dreier, R-Cal.) (federal land) would provide for additions to the Cucamonga and Sheep Mountain Wilderness Areas in the Angeles and San Bernardino National Forests and the protection of existing property rights in such additions; require the Secretary of Agriculture to take steps to prevent and prepare for wildfires in the Cucamonga, Sheep Mountain, and San Gabriel Wilderness Areas; and address the backlog of maintenance in the Angeles and San Bernardino National Forests. 157 Cong. Rec. H37 (daily ed. Jan. 5, 2011). The bill was referred to the Committee on Natural Resources.

  • H.R. 139 (Markey, D-Mass.) (federal land) would preserve the Arctic coastal plain of the Arctic National Wildlife Refuge, Alaska. 157 Cong. Rec. H38 (daily ed. Jan. 5, 2011). The bill was referred to the Committee on Natural Resources.

  • H.R. 153 (Poe, R-Tex.) (climate) would prohibit funding for EPA to be used to implement or enforce a cap-and-trade program for greenhouse gases. 157 Cong. Rec. H39 (daily ed. Jan. 5, 2011). The bill was referred to the Committee on Energy and Commerce.

  • H.R. 163 (Simpson, R-Idaho) (federal land) would establish certain wilderness areas in central Idaho and authorize various land conveyances involving National Forest System land and BLM land in central Idaho. 157 Cong. Rec. H39 (daily ed. Jan. 5, 2011). The bill was referred to the Committee on Natural Resources.

  • H.R. 192 (Woolsey, D-Cal.) (federal land) would expand the boundaries of the Gulf of the Farallones National Marine Sanctuary and the Cordell Bank National Marine Sanctuary. 157 Cong. Rec. H40 (daily ed. Jan. 5, 2011). The bill was referred to the Committee on Natural Resources.

  • H.R. 199 (Capito, R-W. Va.) (climate) would suspend, during the 2-year period beginning on the date of enactment of this Act, any EPA action under the CAA with respect to carbon dioxide or methane pursuant to certain proceedings, other than with respect to motor vehicle emissions. 157 Cong. Rec. H102 (daily ed. Jan. 6, 2011). The bill was referred to the Committee on Energy and Commerce.

  • H.R. 200 (Baca, D-Cal.) (water resources) would direct the Secretary of the Interior to conduct a study of water resources in the Rialto-Colton Basin in the state of California. 157 Cong. Rec. H102 (daily ed. Jan. 6, 2011). The bill was referred to the Committee on Natural Resources.

Copyright© 2011, 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, visit our list of Cumulative State Developments. For state material reported prior to 2010, visit the ELR Archives.


The states below have updates this week:

Alabama
California
Colorado

Delaware
District of Columbia
Idaho

Illinois
Indiana
Illinois

Louisiana
Maine
Maryland

Minnesota
Montana
Nebraska

New Jersey
New Mexico
New York

North Carolina
Ohio
Oregon

Pennsylvania
Rhode Island
Tennessee

Texas
Utah
Washington

Wisconsin

ALABAMA


Climate:



Water:



CALIFORNIA


Land Use:



  • The State Mining and Geology Board proposed to amend Cal. Code Regs. tit. 14, §2.8.1. Changes would amend Form MRRC–4L to include idle mines in consideration by the Department of Conservation Office of Mine Reclamation for the granting of a Low Gross Exemption. The deadline for written comments is February 14, 2011. See http://www.oal.ca.gov/res/docs/pdf/notice/53z-2010.pdf (pp. 2225-22230).

COLORADO


Water:



DELAWARE


Air:



  • The Department of Natural Resources and Environmental Control proposed to amend 7 Del. Admin. Code 1142, Control of NOx Emissions from Industrial Boilers and Process Heaters at Petroleum Refineries. These amendments are based on an agreement between the Department and the Delaware City Refining Company, LLC, which states that the Department will propose to revise §2.0 of 7 Del. Admin. Code 1142 to provide for a facility-wide NOx emission cap compliance alternative to the existing unit specific NOx emission limitations. There will be a public hearing on February 1, 2011. See http://regulations.delaware.gov/register/january2011/proposed/14%20DE%20Reg%20637%2001-01-11.htm#P10_217.

Hazardous & Solid Waste:



DISTRICT OF COLUMBIA


Hazardous & Solid Waste:



IDAHO


Land Use:



Water:



INDIANA


Climate:



  • The Air Pollution Control Board temporarily amended 326 Ind. Admin. Code 2-2-1, 326 Ind. Admin. Code 2-2-4, and 326 Ind. Admin. Code 2-7-1 concerning the prevention of significant deterioration and Title V greenhouse gas tailoring rule. Changes took effect January 3, 2011. See http://www.in.gov/legislative/iac/20110105-IR-326110001ERA.xml.pdf.

Wildlife:



ILLINOIS


Air:



  • The Environmental Protection Agency proposed to amend 35 Ill. Admin. Code §276, Procedures to be Followed in the Performance of Inspections of Motor Vehicle Emissions. Changes would amend the section to reflect the adoption of the Vehicle Emissions Inspection Law of 2005. The deadline for written comments is February 18, 2011. See http://www.cyberdriveillinois.com/departments/index/register/register_volume35_issue1.pdf (pp. 14-102).

  • The Pollution Control Board proposed to amend 35 Ill. Admin. Code § 240, Mobile Sources. Changes would exempt model year 1995 and older vehicles from inspection, replace the transient loaded mode emissions inspection test with the on-board diagnostic inspection test as the primary test, and maintain the steady-state idle exhaust gas analysis and evaporative system integrity emissions tests as secondary emissions tests. See http://www.cyberdriveillinois.com/departments/index/register/register_volume35_issue1.pdf (pp. 129-168).

Water:



LOUISIANA


Hazardous & Solid Waste:



  • The Department of Environmental Quality proposed to amend La. Admin. Code tit. 33:VII.115, 513, 521, 711, 713, 715, 717, 721, and 723, Emergency Response for Solid Waste Facilities. This rule will allow the Department to implement the revised requirements for emergency response standards at solid waste facilities, as required by Act 862 of the 2010 legislative session. The revised requirements will help ensure that capabilities are in place for first responders in the event of accident, fire, explosion, or other emergency at these facilities. There will be a public hearing on January 26, 2011, and the deadline for public comment is February 2. See http://www.doa.la.gov/osr/reg/1012/1012.pdf (pp. 2916-22).

MAINE


Fisheries:



  • The Department of Marine Resources adopted amendments to Ch. 24.10(D)(6), Maine – Restricted Area for American Oyster, and Appendix A. Changes add certain areas to the list of restricted areas for the movement of the American oyster due to presence of MSX disease. The rule took effect December 20, 2010. See http://www.maine.gov/sos/cec/rules/notices/2010/122210.html.

Hazardous & Solid Waste:



  • The Department of Environmental Protection proposed to amend Ch. 693, Operator Training for Oil and Hazardous Substance Storage Facilities. Changes would establish training requirements for operators of underground oil and hazardous substance storage facilities. The deadline for public comment is January 28, 2011. See http://www.maine.gov/sos/cec/rules/notices/2010/122910.html.

MARYLAND


Fisheries:



  • The Department of Natural Resources proposed to amend Md. Code. Regs. 08.02.19, Nuisance and Prohibited Species. The change would add the red shiner and the marbled crayfish/marmorkrebs to the list of species that may not be imported, transported, purchased, propagated, possessed, sold, or released into state waters, and add the southern white river crawfish and the mimic shiner to the list of species prohibited from transport between waters of existing Maryland watersheds. The change would also add the Chinese mystery snail and the oriental weatherfish to a new list of species that may not be imported, transported, purchased, propagated, sold or released into state waters. The new list would allow the species to remain in the possession of aquarium owners that have them as pets. The deadline for public comment is February 2, 2011. See http://www.dsd.state.md.us/mdregister/3801.pdf (pp. 22-24).

  • The Department of Natural Resources proposed to amend Md. Code. Regs. 08.02.19, Nuisance and Prohibited Species. The change would prohibit the use of felt-soled waders in Maryland waters in order to prevent the spread of Didymo (Rock Snot). The deadline for public comment is February 2, 2011. See http://www.dsd.state.md.us/mdregister/3801.pdf (pp. 24-25).

MINNESOTA


Water:



  • The Pollution Control Agency seeks public comment on planned amendments to Minn. R. 7001 and 7035. Amendments would reduce risks to groundwater when siting solid waste landfills and assure that financial assurance required for solid waste landfills would protect Minnesota taxpayers from having to pay for groundwater cleanup. See http://www.comm.media.state.mn.us/bookstore/stateregister/35_27.pdf (pp. 993-995).

MONTANA


Hazardous & Solid Waste:



  • The Petroleum Tank Release Compensation Board proposed amendments to Mont. Admin. R. 17.58, pertaining to procedural and substantive rules regarding petroleum tank release compensation. There will be a public hearing on February 2, 2011, and the deadline for comment is February 10. See http://sos.mt.gov/arm/Register/archives/MAR2011/MAR11-01.pdf (pp. 1-24).

  • The Department of Environmental Quality proposed amendments to Mont. Admin. R. 17.53.706, 17.56.502, 17.56.505, and 17.56.506 pertaining to emergency preparedness, prevention, and response at transfer facilities, reporting of suspected releases, reporting and cleanup of spills and overfills, and reporting of confirmed releases. The deadline for comment is February 14, 2011. See http://sos.mt.gov/arm/Register/archives/MAR2011/MAR11-01.pdf (pp. 24-28).

NEBRASKA


Climate:



NEW JERSEY


Fisheries:



  • The Department of Environmental Protection adopted amendments to N. J. Admin. Code 7:12 that reclassify shellfish waters based on water quality surveys, modify the provisions regarding immediate temporary suspensions of harvest to provide that temporary restrictions may be imposed short of suspension, and include the annually updated Vibrio parahaemolyticus (a pathogen that infects oysters and can cause illness when the oysters are consumed) management plan as a basis for suspending or restricting shellfish harvest. The rule took effect January 3, 2011, and expires May 14, 2013. See http://www.lexisnexis.com/njoal/ (43 N.J.R. 34a).

NEW MEXICO


Land Use:



  • The Department of Energy, Minerals, and Natural Resources amended N.M. Code R. §3.13.20, Land Conservation Incentives Tax Credit. The rule pertains to land conservation incentives tax credits for donations of land or interests in land to public or private land conservation agencies for conservation purposes. The amendment took effect December 30, 2010. See http://www.nmcpr.state.nm.us/nmregister/xxi/xxi24/3.13.20amend.htm.

Water:



  • The Water Quality Control Commission amended N.M. Code R. §20.6.4, Standards for Interstate and Intrastate Surface Waters. Among other changes, the Commission altered rules on required additional studies and introduced new definitions to the section. Changes take effect January 14, 2011. See http://www.nmcpr.state.nm.us/nmregister/xxi/xxi24/20.6.4amend.htm.

NEW YORK


Fisheries:



  • The Department of Environmental Conservation proposed to amend N.Y. Comp. Codes R. & Regs. tit. 6, §41.2-3, Sanitary Condition of Shellfish Lands. Changes would reclassify shellfish lands to allow the harvest of shellfish during all or part of the year. The deadline for comments is February 11, 2011. See http://www.dos.state.ny.us/info/register/2010/dec29/pdfs/rules.pdf (pp. 17-20).

NORTH CAROLINA


Water:



Wildlife:



OHIO


Air:



  • The Environmental Protection Agency proposed amendments to Ohio Admin. Code 3745-21, 3745- 72, and 3745-110, related to the control of volatile organic compound emissions from stationary sources, low Reid vapor pressure fuel requirements, and nitrogen oxides reasonably available control technology. The proposed new rules will apply to eight counties located in the Cleveland/Akron metropolitan area that were previously designated “moderate” nonattainment for the ozone standard. The deadline for comment is February 11, 2011. See http://www.registerofohio.state.oh.us/pdfs/phn/3745_NO_128561_20110103_1046.pdf.

OREGON


Air:



  • The Department of Environmental Quality proposed to amend Or. Admin. R. 340-257, Oregon Low Emission Vehicles. Changes would adjust Zero Emission Vehicle goals to allow the use of plug-in hybrid electric vehicles, in addition to incorporating requirements of California's low-emission vehicles program. There will be a public hearing on January 24, 2011, and the last day for comment is January 27. See http://arcweb.sos.state.or.us/rules/0111_Bulletin/0111_rulemaking_bulletin.html.

Climate:



  • The Department of Environmental Quality proposed to amend Or. Admin. R. 340-200-0040, New Source Review, Particulate Matter and Greenhouse Gas Permitting Requirements and Other Permitting Rule Updates. Changes would update the PSD program to include greenhouse gases in response to new EPA rules. There will be hearings on January 24, 2011, and February 28, which is the last day for comment. See http://arcweb.sos.state.or.us/rules/0111_Bulletin/0111_rulemaking_bulletin.html.

Energy:



Water:



  • The Department of Environmental Quality proposed to amend Or. Admin. R. 340, Revised Water Quality Standards for Human Health Toxic Pollutants and Revised Water Quality Standards Implementation Policies. Changes would amend rules for human health toxics criteria, the variance provision, nonpoint source pollution, TMDLs, intake credits, and background pollutant allowance. There will be numerous hearing in early February throughout the state, and the deadline for public comment is February 18, 2011. See http://arcweb.sos.state.or.us/rules/0111_Bulletin/0111_rulemaking_bulletin.html.

PENNSYLVANIA


Air:



  • The Environmental Quality Board amended 25 Pa. Code Chs. 121 and 129, Adhesives, Sealants, Primers and Solvents. The change adds definitions to §121.1 (relating to definitions) for 57 new terms, including those that relate to the adhesive, sealant, primer, and solvent product categories that will be regulated under §129.77 (relating to control of emissions from the use or application of adhesives, sealants, primers and solvents). The rule will now regulate the owner or operator of a facility or stationary source that uses or applies, on or after January 1, 2012, a regulated adhesive, sealant, adhesive primer, or sealant primer product. The rule now includes emission standards and volatile organic compound content limits for the industrial or commercial use or application of 37 categories of adhesive, sealant, adhesive primer, or sealant primer products, and adhesive or sealant products applied to particular substrates. The final-form rulemaking also includes requirements for the use of surface preparation solvents and cleanup solvents. See http://www.pabulletin.com/secure/data/vol40/40-52/2456.html.

Land Use:



RHODE ISLAND:


Hazardous & Solid Waste:



  • The Department of Environmental Management proposed to revise Rules and Regulations for the Investigation and Remediation of Hazardous Material Releases. The revisions will address two significant initiatives: the findings and recommendations of the Rhode Island House of Representatives “Special Legislative Commission to Study Naturally Occurring Arsenic in Soil,” as reported in May 2008, and issues of public involvement and environmental justice. Among other changes, the Department proposes to raise the standard for Naphthalene, and to alter public notice and meeting requirements to incorporate environmental justice focus areas throughout the state. There will be a public hearing on January 20, 2011, and the deadline for written comments is January 31. See http://sos.ri.gov/documents/archives/regdocs/holding/DEM/pnremreg.pdf.

TENNESSEE


Hazardous & Solid Waste:



  • The Department of Environment and Conservation proposed to amend Tenn. Admin. Code 1200.02.11, Licensing Requirements for Land Disposal of Radioactive Waste. There will be a public hearing on February 22, 2011. See http://state.tn.us/sos/rules_filings/12-23-10.pdf.

TEXAS


Air:



  • The Commission on Environmental Quality amended 30 Tex. Admin. Code §§116.13, 116.710, 116.711, 116.715 -116.718, 116.720, 116.721, 116.730, 116.740, and 116.750; and new §116.765. Changes relate to air pollution permits for construction and minor new source review programs that the Commission is attempting to alter under the SIP. See http://www.sos.state.tx.us/texreg/pdf/backview/1231/1231is.pdf (pp. 11909-41).

Climate:



  • The Railroad Commission of Texas proposed to add 16 Tex. Admin. Code §5.301 -5.308. The purpose of the proposed new rules is to provide for certification of geologic storage of anthropogenic carbon dioxide incidental to enhanced recovery of oil, gas, or geothermal resources as part of the implementation of Senate Bill 1387. The deadline for comment is January 31, 2011. See http://www.sos.state.tx.us/texreg/pdf/backview/1231/1231is.pdf (pp. 11780-85).

Land:



  • The General Land Office proposed amendments to 31 Tex. Admin. Code §§15.41 & 15.44, Coastal Erosion Planning and Response. Changes include allowing the use of Coastal Erosion Planning and Response Act (CEPRA) funds for buyouts of property on a public beach, allowing the use of CEPRA funds for reimbursement of the cost of acquisition of property necessary for the construction, reconstruction, maintenance, widening, or extension of an erosion response project, and allowing the Commissioner of the General Land Office to determine the percentage of the shared project cost a qualified project partner must pay for a project undertaken for removal of debris, as well as removal and relocation of structures from the public beach. Comments are due January 24, 2010. See http://www.sos.state.tx.us/texreg/pdf/backview/1224/1224is.pdf (pp. 11513-18).

  • The General Land Office amended 31 Tex. Admin. Code §13.2, Rules, Practice, and Procedure for Land Leases and Trades. Changes give the School Land Board more discretion in approving land trades. See http://www.sos.state.tx.us/texreg/pdf/backview/1224/1224is.pdf (pp. 11704-05).

  • The General Land Office amended 31 Tex. Admin. Code §25, Beach Cleaning and Maintenance Assistance Program. Changes incorporate the new responsibility of the state to clean and maintain public beaches under certain circumstances in Texas Natural Resources Code. See http://www.sos.state.tx.us/texreg/pdf/backview/1224/1224is.pdf (pp. 11705-06).

UTAH


Climate:



  • The Department of Environmental Quality proposed to amend Utah Admin. Code R307-405-3, Definitions. The change would make greenhouse gas permitting rules valid based on the ongoing validity of federal rules. There will be a public hearing on January 27, 2011, and the deadline for comment is January 31. The rule may become effective on March 2, 2011. See http://www.rules.utah.gov/publicat/bull_pdf/2011/b20110101.pdf (pp. 14-20).

Land Use:



  • The Department of Environmental Quality proposed to amend Utah Admin. Code R652-140, Utah Forest Practices Act. Changes would clarify the process for application, approval, implementation, and monitoring of Forest Stewardship Plans as they relate to the Farmland Assessment Act and the Forest Practices Act. The deadline for written comments is January 21, 2011, and the rule may become effective on February 7. See http://www.rules.utah.gov/publicat/bull_pdf/2011/b20110101.pdf (pp. 30-32).

WASHINGTON


Toxic Substances:



  • The Department of Ecology proposed to amend Wash. Admin. Code Chapter 173-334, Children's Safe Products Reporting Rule. The amendments would alter the process to be used to update the reporting list for chemicals of high concern to children, definitions of several key terms, and the reporting process. The date of intended adoption is March 15, 2011. See http://apps.leg.wa.gov/documents/laws/wsr/2011/01/11-01-105.htm.

WISCONSIN


Climate:



  • The Department of Natural Resources proposed to amend Wis. Admin. Code NR §§400, 405 and 407, relating to major source permit thresholds for sources of greenhouse gas emissions. There will be a public hearing on January 21, 2011, and the deadline for written comment is January 28. See http://legis.wisconsin.gov/rsb/code/register/reg660b.pdf (pp. 20-23).

Water:



  • The Department of Natural Resources amended Wis. Admin. Code NR §§151, 153, and 155, relating to runoff pollution performance standards and prohibitions, the targeted runoff management grant program, and the urban nonpoint source and storm water management grant programs. Changes took effect January 1, 2011. See http://legis.wisconsin.gov/rsb/code/register/reg660b.pdf (pp. 38-40).

  • The Department of Natural Resources amended Wis. Admin. Code NR §142.03, relating to the registration and reporting process for water withdrawals and affecting small business. Changes took effect January 1, 2011. See http://legis.wisconsin.gov/rsb/code/register/reg660b.pdf (p. 40).

Copyright© 2011, Environmental Law Institute, Washington, D.C. All rights reserved.


INTERNATIONAL

INDIA AIMS TO INCREASE COAL PRODUCTION

India is set to build an advanced ultra-super critical coal-fired power plant in the next six years, according to the Business Standard, putting it in a position to significantly reduce pollution compared to its current thermal plants. The director of Bharat Heavy Electrical Limited said that the project would make India "current in the world in terms of thermal power plant technologies." The plant would produce higher efficiency with a 15-20 percent reduction in carbon emissions, while expanding efficiency to help India meet its goal of 4,000,000 MW of power from coal-fired plants by 2030. As India works to meet the power demands of a growing nation, the population has struggled with the effects of increased air and water pollution, from a study linking pulmonary disorders to ambient air quality to the yellowing facade and degrading foundation of the Taj Mahal. Increased development of various forms of energy have been met with criticism from citizens and government boards; last week, a Central Pollution Control Board study indicated that compressed natural gas possesses significant environmental drawbacks, including the highest rates of potentially hazardous carbonyl emissions. The study also calls for regulating methane gas. However, Coal Minister Sriprakash Jaiswal announced last week that the government is developing policy to allow state-run companies to acquire foreign coal assets more quickly, saying that he was speaking to the environmental ministry to speed up clearances for coal projects. The ministry has been cautious to clear coal projects as they may result in the destruction of forests, according to the Wall Street Journal. For the Business Standard article on the new plant development, see http://www.business-standard.com/india/news/india-to-build-advanced-coal-fired-power-plant/121366/on. For the Pollution Control Board study, see http://www.hindustantimes.com/CNG-not-that-green-pollution-board/Article1-646789.aspx. For the Wall Street Journal article on increased coal demand, see http://online.wsj.com/article/SB10001424052748704723104576061431530065412.html.


CHINA DECREASES RARE EARTH QUOTA

On the heels of a government decision to slash its rare earth materials export quota by 35 percent in 2011, Chinese Minister of Land and Resources Xu Shaoshi announced that the nation would tighten controls on rare earth mining, limiting its exports to conserve resources and protect the environment. The new rules, which are expected to be issued as early as February, will limit pollutants allowed in waste water and emissions of radioactive elements and phosphorus. The United States has threatened to complain about the quotas to the World Trade Organization, but China has said that other countries must share the burden of mining the metals, which have hurt its environment and depleted its resources. According to Bloomberg, China has about 30 percent of rare earths deposits but currently produces about 97 percent of the world's supply. Canada, Australia, and the United States also have rare earth materials but stopped mining them in the 1990s. For the full story, see http://www.bloomberg.com/news/2011-01-07/report-china-preparing-new-rare-earths-standards.html and http://www.reuters.com/article/idUSTRE7060S620110107. For a New York Times story on illegal rare earth mining in Southern China, see http://www.nytimes.com/2010/12/30/business/global/30smugglebar.html?src=busln.


PERU DAM PROJECT MAY DESTROY MILLIONS OF ACRES OF JUNGLE

A hydroelectric dam project in Peru could destroy almost 3.7 million acres of jungle over the next 20 years, according to a study by ProNaturaleza, a Peruvian conservation organization. The nation is set to construct five dams as part of an energy agreement with Brazil. "There will be a serious impact on the Amazon ecosystems," said engineer Jose Serra of the project, which includes plans to build the largest dam in Peru and the fifth largest dam in Latin America. Ernesto Raez, a biologist with the Cayetano Heredia University's Center for Environmental Sustainability, said that the Peruvian government should have commissioned an environmental impact study before signing the agreement with Brazil. According to UPI, Peru's current energy capacity is adequate to meet its needs, and projected growth can be met through wind energy. For the full story, see http://www.upi.com/Science_News/2010/12/27/Study-Dams-will-damage-Perus-environment/UPI-71691293492038/. For a Newsweek story on Peru dam projects aimed at blocking flooding from melting glaciers, see http://www.newsweek.com/2011/01/01/lakes-disappearing-after-glacial-outburst-floods.html.


Copyright© 2011, Environmental Law Institute, Washington, D.C. All rights reserved.


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