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Weekly Update Volume 41, Issue 13
THE FEDERAL AGENCIES
IN THE STATES
Leslie Carothers, Publisher
The U.S. Supreme Court held that a Native American tribe's suit against federal officials in district court seeking equitable relief for their alleged breach of fiduciary duty precludes jurisdiction over the tribe's suit against the United States for monetary damages in the Court of Federal Claims (CFC) for the same breach. The CFC held that it lacked jurisdiction based on the rule that the CFC lacks jurisdiction over an action “for or in respect to” a claim that is also the subject of an action pending in another court, but the Court of Appeals for the Federal Circuit reversed, holding that the CFC suit was not barred. The Supreme Court reversed the ruling of the Federal Circuit. Two suits are "for or in respect to" the same claim if they are based on substantially the same operative facts, regardless of the relief sought in each suit. Here, the substantial overlap in operative facts between the tribe's district court and CFC suits precludes jurisdiction in the CFC. Both actions allege that the United States holds the same assets in trust for the tribe's benefit, and they describe almost identical breaches of fiduciary duty. Kennedy, J., delivered the opinion of the Court, in which Roberts, C.J., and Scalia, Thomas, and Alito, JJ., joined. Sotomayor J., filed an opinion concurring in the judgment, in which Breyer, J., joined. Ginsburg, J., filed a dissenting opinion. Kagan, J., took no part in the consideration or decision of the case. United States v. Tohono O'Odham Nation, No. 09-846, 41 ELR 20159 (U.S. Apr. 26, 2011).
The D.C. Circuit denied a petition for review challenging EPA's decision granting California a waiver from federal preemption under the CAA that allows the state to implement its own regulations requiring automobile manufacturers to reduce fleet-average greenhouse gas emissions from new motor vehicles sold in the state. The petitioners lack standing. The petitioners--automobile dealer associations--do not assert that their dealer members had suffered an actual injury at the time they filed their petition for review. Instead, their concern is about future injury. Moreover, California's emissions standards do not regulate automobile dealers, but rather automobile manufacturers--third parties that have declined to participate in this challenge. And EPA's promulgation of national greenhouse gas emissions standards, and California’s acquiescence in those standards, have rendered the dealers' already tentative claim of injury even more speculative. As such, the petitioners' suit on the dealers' behalf cannot satisfy Article III's case-or-controversy requirement. The court, therefore, dismissed the case without reaching the merits. Chamber of Commerce v. Environmental Protection Agency, No. 09-1237, 41 ELR 20166 (D.C. Cir. Apr. 29, 2011).
The Federal Circuit upheld the dismissal of a Native American tribe's Tucker Act claim against the United States for an alleged breach of fiduciary duty relating to water rights in the Gila River. A consent decree establishing water rights among the tribe and landowners along the river was entered in 1935. In 2009, the tribe filed a claim for monetary damages against the government, alleging that the United States' inadequate representation and failure to secure and protect its aboriginal and federal reserved water rights under the decree constituted a serious breach of fiduciary duty. But an action brought under the Tucker Act is time barred unless it is filed within six years of the date that the cause of action accrued. The tribe asserted that its claim against the United States did not become ripe until the Arizona Supreme Court issued a decision in 2006 holding that the tribe's claims for water rights were precluded by the 1935 decree. But the government's alleged liability for breaching its fiduciary duty to the tribe was objectively fixed upon entry of the decree in 1935. Although the tribe did not have actual knowledge of all the relevant facts at that time, the tribe should have known upon entry of the decree that the government's breach occurred. San Carlos Apache Tribe v. United States, No. 2010-5102, 41 ELR 20158 (Fed. Cir. Apr. 25, 2011).
The Eleventh Circuit vacated a lower court decision remanding a permit issued by the U.S. Army Corps of Engineers back to the agency and enjoining a mining company from conducting operations approved in that permit. The lower court concluded the permit's issuance did not comply with the requirements of the CWA and that the environmental group challenging the permit had demonstrated it was entitled to preliminary injunctive relief. But the lower court's remand of the permit to the Corps was improper because it was effectively a final judgment on the merits. The lower court based the entry of the preliminary injunction entirely on EPA letters that expressed concerns with the permit and failed to apply the arbitrary and capricious standard in evaluating the Corps' practicable alternatives analysis. While the EPA letters may prove to be helpful in evaluating the ultimate merits of the CWA claim, the full record will need to be analyzed through the deferential lens mandated by the APA to determine whether the Corps came to a rational conclusion. The court therefore vacated the preliminary injunction, set aside the remand to the Corps, and remanded the case to the lower court for reconsideration. Sierra Club v. United States Army Corps of Engineers, Nos. 10-13613, -13830, 41 ELR 20152 (11th Cir. Apr. 8, 2011).
The Fourth Circuit upheld a lower court's fee award in favor of environmental groups in their CAA case against an energy company. Below, the groups moved for summary judgment on the basis that the company was violating the CAA by constructing a new major source of hazardous air pollution without first obtaining a determination from the state of North Carolina that the pollution source, Unit 6, was designed to control its hazardous emissions to the maximum extent possible. The company, meanwhile, filed a motion to dismiss. The court denied the company's motion, but it granted the groups' motion for summary judgment, holding that the CAA applied and required determinations as to whether Unit 6 was a major or minor source and, if a major source, whether "maximum achievable control technology" (MACT) had been achieved. It therefore ordered the company to engage in proceedings under CAA §112(g). Six months later, however, the court dismissed the case because the company had undergone the MACT evaluation with the state, and the parties were contesting the resulting permit before the state administrative hearing office. Although the case was ultimately dismissed, the group's summary judgment victory forced the company to submit to administrative evaluations by the state. Those administrative proceedings constituted some success and thus supported an award of attorneys’ fees under the CAA. Because nothing the Fourth Circuit might hold with regard to the merits of the summary judgment determination could undo those proceedings or nullify the groups' success, the fee award was affirmed. Southern Alliance for Clean Energy v. Duke Energy Carolinas, LLC, Nos. 08-2370 et al., 41 ELR 20157 (4th Cir. Apr. 14, 2011).
The Second Circuit affirmed a lower court decision that the parent corporation of nine manufactured gas plants (MGPs) is not an "operator" of those plants for purposes of CERCLA liability. The current owners of the MGP sites filed suit against the parent corporation, seeking to recover costs they incurred in responding to MGP pollution the occurred from 1884 to 1941. But the corporation was not an operator of the MGPs during the period in question under the standard set forth in the U.S. Supreme Court's decision in United States v. Bestfoods, 524 U.S. 51, 28 ELR 21225 (1998). Although the owners provided an impressive volume of contemporaneous corporate records illustrating the extent of the corporation's involvement in the business of its subsidiaries, its oversight of the subsidiaries did not, as a matter of law, equate to managing, directing, or operating those subsidiaries. Yankee Gas Services Co. v. UGI Utilities, Inc., No. 10-1570, 41 ELR 20156 (2d Cir. Apr. 13, 2011).
The Federal Circuit upheld a lower court decision awarding an energy company $42.7 million for the government's breach of contract relating to spent nuclear fuel (SNF) storage costs at one of the company's facilities. Included in the company's claim for interim storage costs were the costs incurred by the previous owner prior to the company's acquisition of the nuclear facility at issue in this case. The government does not dispute the company's entitlement to the interim storage costs for the SNF that it incurred after it acquired the facility. The government also does not dispute its responsibility for interim storage costs for the SNF following the breach and up until the company's acquisition of the facility. The government's argument on appeal, rather, is that company is not entitled to sue the government for the costs incurred by the previous owner for storing the SNF. The government argues that the predecessor was not permitted to transfer its claim against the government for interim storage fees to the energy company because such a transfer is barred by the Assignment of Claims Act. But because the Nuclear Waste Policy Act allows such assignments, the Assignment of Claims Act did not prohibit the prior owner's assignment of contract claims to the energy company. Dominion Resources, Inc. v. United States, Nos. 2009-5031, -5032, 41 ELR 20162 (Fed. Cir. Apr. 25, 2011).
A district court denied a triglyceride diesel fuel manufacturer's motion to preliminarily enjoin the American Society for Testing and Materials' (ATSM's) promulgation of a proposed new standard and guidelines for biofuels that would limit, if not bar, the use of triglyceride diesel fuel and related products. The manufacturer's feedstock for making triglyceride diesel fuel at this time consists primarily of waste vegetable oils and greases obtained from restaurants and industrial and agricultural operations. The manufacturer brought its action under the Clayton Act to enjoin the defendant oil companies and the ATSM from agreeing, combining, and conspiring to bring about the adoption of an industry standard and guidelines for triglyceride diesel fuel, the purpose and effect of which the manufacturer alleges will be to exclude it and other sellers of triglyceride diesel fuel from diesel fuel markets in the United States. But the manufacturer does not face imminent injury, since the draft ASTM triglyceride standard is at least two steps away from being approved for publication. Accordingly, the manufacturer will not be irreparably harmed if the court does not impose a preliminary injunction. Its motion was therefore denied. Plant Oil Powered Diesel Fuel Systems, Inc. v. ExxonMobil Corp., No. 11-0103, 41 ELR 20155 (D.N.M. Apr. 18, 2011) (Browning, J.).
A district court held that a lumber company's CERCLA action against the former owner of the company's sawmill and plywood manufacturing plant for reimbursement of past and future clean up costs associated with the site is not barred by contract. When the lumber company purchased the plant in 1993, the parties entered into a sales agreement that transferred the prior owner's environmental liability to the lumber company following the expiration of a 10-year indemnity period. Since the 10-year period has passed, the former owner argued that the company's CERCLA claim was barred by contract. The agreement, however, failed to include any express language stating that the lumber company would assume the former owner's environmental liabilities once the former owner's indemnity obligations expired. The former owner's motion for summary judgment to dismiss the claim was therefore denied. Stimson Lumber Co. v. International Paper Co., No. 10-79, 41 ELR 20165 (D. Mont. Apr. 22, 2011) (Molloy, J.).
A district court dismissed an insurance company's CERCLA §§107 and 112 claim for response costs incurred by one of its policy holders seeking to redevelop the site of a former aerospace manufacturing facility. Because insurance payments made pursuant to a contractual obligation are not "response costs" under CERCLA, and because an insurer is not a party (innocent or otherwise) in the "CERCLA sense," it is ineligible to assert a claim under §107. The insurer therefore lacks standing to pursue a direct action for recovery of its insurance payments under §107(a). The company's federal subrogation claim under §112(c)(2) also must be dismissed because it failed to show that it provided compensation to a "claimant" as defined by CERCLA. Nothing in the statute supports the insurer's contention that compensation paid on an insurance claim constitutes compensation pursuant to CERCLA where, as here, the insured has not pursued a claim against a liable party or the Superfund. Chubb Custom Insurance Co. v. Space Systems/Loral, Inc., No. 5:09-cv-04485, 41 ELR 20161 (N.D. Cal. Apr. 20, 2011) (Fogel, J.) (Defense council included Kevin Haroff of Shook, Hardy & Bacon in San Francisco, Cal.).
A district court held unconstitutional California legislation (SB 990) that prescribes cleanup rules that apply only to a former federal nuclear research and rocket testing facility and criminalizes any sale or disposition of the property until it is cleaned up in accordance with the standards set forth in SB 990. The law is preempted by the Atomic Energy Act because it regulates the federally occupied field of nuclear health and safety. It also violates the doctrine of intergovernmental immunity by directly regulating the federal government, its contractor, its lessor, and its facilities in a discriminatory manner. It is undisputed that any private contamination at the site is inextricably intermixed with and indistinguishable from the federal contamination, and it is impossible to apply SB 990 to only the private contamination at the site. As such, SB 990 violates the Supremacy Clause and is invalid in its entirety. Boeing Co. v. Robinson, No. 10-4839, 41 ELR 20163 (C.D. Cal. Apr. 26, 2011) (Walter, J.).
A district court dismissed a mining industry association's action challenging DOI Office of Hearings and Appeals (OHA) regulations allocating the burden of proof in five types of administrative proceedings under SMCRA. The association argued that the regulations impermissibly shift the ultimate burden of persuasion from the proponent of the regulation, as required by the APA, to the entity challenging agency action. It relied on APA §556(d), which clearly states that unless “otherwise provided by statute, the proponent of a rule or order has the burden of proof.” With respect to the challenged regulations, however, SMCRA provides for a burden of proof distinct from that set forth in APA §556(d). As such, where a statute so provides, an agency is free to place the burden of proof on a party other than the proponent of a rule or order. The OHA's decision was therefore neither arbitrary nor capricious. National Mining Association v. Office of Hearings and Appeals, No. 1:04-cv-00128, 41 ELR 20154 (D.D.C. Apr. 15, 2011) (Rothstein, J.).
A district court dismissed a fraud claim brought by a car wash operator against the seller of the property--an oil company-- for requiring the operator to sign a document stating that he intended to use USTs on the property even though he had no such intent. The USTs were later found to be leaking when the car wash operator sold the property to the current owner. The current owner filed suit against the car wash operator, but the court found that the operator was not, in fact, an operator of the USTs. The current owner and car wash operator then settled the dispute case, in part based on an arrangement whereby the operator acquired the current owner's rights to pursue compensation and damages from the oil company arising from or related to the company's ownership and operation of the USTs. The operator then filed the instant action against the oil company. Count II of his claim alleged that the oil company fraudulently attributed ownership of the USTs and, by implication, responsibility for the severe soil contamination on the property, to the operator. But his allegations do not plausibly give rise to a valid claim for relief. The operator knew at the time he signed the intent to use document that it was false. Yet, for whatever reason, he signed the document and completed the sale. Chandler v. Chevron USA, Inc., No. 2:11-cv-00002, 41 ELR 20160 (S.D. W. Va. Apr. 13, 2011) (Goodwin, CJ.).
A district court held that an insurance company must defend its insured in an underlying case involving minors' exposure to contaminated drinking water stemming from the insured's property. When the insurer refused to defend the insured, the insured filed suit against the insurance company for declaratory relief and damages, alleging a breach of the duty to defend and a breach of the implied covenant of good faith and fair dealing. The insurer argued that there is no possible coverage because the minors could not have been injured while the policy was in effect since the minors were not yet born in 1978 and the policies were not in effect after 1978. Under the policies at issue in this case, the triggering event is “personal injury.” One definition of personal injury is “bodily injury.” But a second type of personal injury is defined as “an act or series of acts of the same or similar nature, committed during this policy period which causes such personal injury.” As such, it does not matter that the underlying plaintiffs were not yet born when the insurance policy lapsed, as long as the acts constituting “wrongful entry or . . . other invasion of private occupancy” occurred during the policy period. According to the complaint, they did. The insurance company's motion to dismiss the insured's suit was therefore denied. Bradley v. Continental Insurance Co., No. C 11-00292 SI, 41 ELR 20164 (N.D. Cal. Apr. 22, 2011) (Illston, J.).
A district court granted the Massachusetts Department of Transportation's (MassDOT's) motion for judgment in a case involving its violation of municipal separate storm sewer system NPDES permits in the Boston area and denied an environmental group's motion for additional injunctive relief. Once a court has resolved all disputes concerning the merits of a case--including both liability and remedies--it must enter judgment pursuant to Fed. R. Civ. P. 58. The group argued that disputes regarding the appropriate remedies still exist and that the court ought to further enjoin MassDOT, thus rendering the entry of judgment premature. But the group's request for further injunctive relief fails because it has not demonstrated that it has suffered any injury--irreparable or otherwise--that demands the issuance of another injunction. Because no further injunctive relief is required to resolve the remedial aspect of this case, judgment is appropriate. The court noted that it was somewhat reticent to rely on the representations of MassDOT in light of its dilatoriness following the bench trial, which necessitated an injunction in May 2010. But additional judicial supervision of MassDOT’s activities is neither necessary to remedy the violations found in this case nor appropriate given the relationship between the court and the commonwealth of Massachusetts. Conservation Law Foundation, Inc. v. Patrick, No. 06-11295, 41 ELR 20153 (D. Mass. Apr. 14, 2011) (Young, J.).
Copyright© 2011, Environmental Law Institute, Washington, D.C. All rights reserved.
THE FEDERAL AGENCIES
Note: Citations below are to the Federal Register (FR).
- EPA made final amendments to certain CAA regulations pertaining to Indian tribes. 76 FR 23876 (4/29/11).
- EPA finalized NESHAPs for Group I polymers and resins; marine tank vessel loading operations; pharmaceuticals production; and the printing and publishing industry. 76 FR 22566 (4/21/11).
- EPA granted reconsideration of certain provisions of the Mandatory Greenhouse Gas Reporting Rule promulgated on November 30, 2010. 76 FR 22825 (4/25/11).
- EPA proposed conditional or full approval of revisions to the 1997 ozone and fine particulate matter NAAQS submitted by Illinois, Indiana, Michigan, Minnesota, Ohio, and Wisconsin. 76 FR 23757 (4/28/11).
- EPA proposed critical use allowances for the production, import, and supply of methyl bromide for calendar year 2011. 76 FR 23769 (4/28/11).
- EPA approved negative declarations and requests for EPA withdrawal of its CAA §§111(d) and 129 plan approval for hospital/medical/infectious waste incinerator (HMIWI), large municipal waste combustor (LMWC), small municipal waste combustor (SMWC), and other solid waste incinerator (OSWI) units from Florida, Kentucky, North Carolina, and South Carolina. 76 FR 22822 (4/25/11).
- EPA proposed to approve negative declarations and requests for EPA withdrawal of its CAA §§111(d) and 129 plan approval for HMIWI, LMWC, SMWC, and OSWI units from Florida, Kentucky, North Carolina, and South Carolina; see above for direct final rule. 76 FR 22861 (4/25/11).
- EPA announced the availability of a final document titled, Policy Assessment for the Review of the Particulate Matter National Ambient Air Quality Standards (PA). 76 FR 22665 (4/22/11).
- EPA announced the availability of the documents titled Ozone National Ambient Air Quality Standards: Scope and Methods Plan for Health Risk and Exposure Assessment, Ozone National Ambient Air Quality Standards: Scope and Methods Plan for Welfare Risk and Exposure Assessment, and Integrated Review Plan for the Ozone National Ambient Air Quality Standards. 76 FR 23755 (4/28/11).
- SIP Approvals: California (energy tracking system for the South Coast air quality management district) 76 FR 22038 (4/20/11). Colorado (partial approval of interstate transport of pollution plan) 76 FR 22036 (4/20/11). Illinois (definition of volatile organic compound) 76 FR 23196 (4/26/11). Indiana (discontinuance of vehicle inspection and maintenance program in Clark and Floyd Counties) 76 FR 23879 (4/29/11). Nevada (nonattainment of the 24-hour NAAQS for particulate matter (PM) for the Truckee Meadows area by December 31, 2001, but current attainment) 76 FR 21807 (4/19/11). South Carolina (update of revisions) 76 FR 22817 (4/25/11). Utah (substantial inadequacy of NAAQS) 76 FR 21639 (4/18/11). Virginia (NAAQS for lead) 76 FR 22814 (4/25/11).
- SIP Proposals: Colorado (interstate transport of pollution) 76 FR 21835 (4/19/11). Louisiana (attainment of the 1997 eight-hour ozone and fine PM NAAQS) 76 FR 21682 (4/18/11).
- DOE amended energy conservation standards for residential clothes dryers and room air conditioners. 76 FR 22454 (4/21/11).
- DOE proposed to amend energy conservation standards for residential clothes dryers and room air conditioners; see above for direct final rule. 76 FR 22324 (4/21/11).
- OSM seeks public comment on proposed revisions to Oklahoma's regulatory program under SMCRA that would add size limitations for permanent impoundments, slope limitations affecting post-mine contours. a subsidence allegation reporting requirement, and a requirement for bond calculation at renewal. 76 FR 23522 (4/27/11).
OFFICE OF THE PRESIDENT:
- The president proclaimed April 22, 2011, as Earth Day. 76 FR 23685 (4/28/11).
- EPA proposed revisions to the NPDES permits for cooling water intake structures at certain facilities to minimize adverse environmental impacts. 76 FR 22174 (4/20/11).
- EPA seeks public comment on a proposed five-year draft NPDES construction general permit for stormwater discharges from large and small construction activities. 76 FR 22882 (4/25/11).
- EPA Regions 1, 2, 3, 5, 6, 7, 8, 9, and 10 announced their proposal to modify the 2008 NPDES general permits for stormwater discharges associated with construction activity. 76 FR 22891 (4/25/11).
- FWS proposed to remove the Morelet's crocodile throughout its range from the list of endangered and threatened wildlife due to its recovery. 76 FR 23650 (4/27/11).
- FWS announced a 90-day finding on a petition to list the Arapahoe snowfly as endangered or threatened under the ESA and to designate critical habitat; the agency found that listing may be warranted and initiated a status review. 76 FR 23256 (4/26/11).
- FWS announced a 90-day finding on a petition to list the smooth-billed ani as threatened or endangered under the ESA; the agency found that listing is not warranted. 76 FR 23265 (4/26/11).
- FWS proposed to revise the list of migratory birds based on new taxonomy and new evidence of occurrence, for a net increase of 19 species. 76 FR 23428 (4/26/11).
DOJ NOTICES OF SETTLEMENT:
- United States v. City of Dubuque, No. 2:11-cv-01011-EJM (N.D. Iowa Apr. 25, 2011). A settling CWA defendant responsible for NPDES permit violations must pay a $205,000 civil penalty to the United States and Iowa, must implement injunctive measures to prevent sanitary sewer overflows and to comply with its NPDES permit, and must perform a supplemental environmental project. 76 FR 24057 (4/29/11).
- United States v. Waste Mgmt. of Wisconsin, Inc., No. 2:11-cv-00346-WEC (E.D. Wis. Apr. 12, 2011). Four settling CERCLA defendants responsible for violations at the Muskego Sanitary Landfill Superfund site in Muskego, Wisconsin, must implement the EPA-selected remedial measures at the site; 34 de minimis settling defendants must make specified payments for the response costs incurred. 76 FR 23624 (4/27/11).
- United States v. JELD-WEN, Inc., No. 3:11-cv-453-JT (D. Or. Apr. 13, 2011). A settling CAA defendant responsible for violations at four door skin manufacturing plants in Iowa, North Carolina, Washington, and West Virginia must pay $850,000 to the United States and the four states, must undertake projects to offset excess emissions, must study and install process changes or controls to eliminate excess emissions, and must comply with interim emission limits. 76 FR 23625 (4/27/11).
- United States v. P4 Production L.L.C., No. 11-00166-REB (D. Idaho Apr. 20, 2011). A settling CWA defendant responsible for violations at the South Rasmussen Mine in southeast Idaho must pay a $1,400,000 civil penalty and must perform injunctive relief to prevent leachate and stormwater from discharging into a downstream creek and wetland. 76 FR 23625 (4/27/11).
- United States v. Terra Industries Inc., No. 5:11-cv-04038 (N.D. Iowa Apr. 19, 2011). Settling CAA defendants responsible for PSD, new source performance standard, and Title V permit violations at nine nitric acid plants in Iowa, Mississippi, and Oklahoma must pay a $625,000 civil penalty to the United States and the three states and must implement injunctive relief at all nine of their plants. 76 FR 22918 (4/25/11).
Copyright© 2011, Environmental Law Institute, Washington, D.C. All rights reserved.
Note: Citations below are to the Congressional Record (Cong. Rec.).
- H.R. 1572 (Landry, R-La.) (offshore drilling) would amend the Outer Continental Shelf Lands Act to improve safety at manned offshore installations. 157 Cong. Rec. H2909 (Apr. 15, 2011). The bill was referred to the Committee on Natural Resources and the Committee on Transportation and Infrastructure.
- H.R. 1581 (McCarthy, R-Cal.) (wilderness areas) would release wilderness study areas administered by the BLM that are not suitable for wilderness designation from continued management as de facto wilderness areas and release inventoried roadless areas within the National Forest System that are not recommended for wilderness designation from certain land use restrictions. 157 Cong. Rec. H2910 (Apr. 15, 2011). The bill was referred to the Committee on Natural Resources and the Committee on Agriculture.
- H.R. 1582 (McCarthy, R-Cal.) (CAA) would address the application of the national primary ambient air quality standard for ozone with respect to extreme nonattainment areas. 157 Cong. Rec. H2910 (Apr. 15, 2011). The bill was referred to the Committee on Energy and Commerce.
- H.R. 1593 (Bishop, D-N.Y.) (land conservation) would amend the Internal Revenue Code of 1986 to allow an unlimited exclusion from transfer taxes for certain farmland and land of conservation value. 157 Cong. Rec. H2910 (Apr. 15, 2011). The bill was referred to the Committee on Ways and Means.
- H.R. 1596 (Blumenauer, D-Or.) (Superfund) would provide for the use of funds in the Superfund for the purposes for which they were collected to ensure adequate resources for the cleanup of hazardous substances under CERCLA. 157 Cong. Rec. H2910 (Apr. 15, 2011). The bill was referred to the Committees on Ways and Means, Transportation and Infrastructure, Energy and Commerce, and the Budget.
- H.R. 1597 (Capps, D-Cal.) (offshore drilling) would permanently prohibit oil and gas leasing off the coast of the state of California. 157 Cong. Rec. H2910 (Apr. 15, 2011). The bill was referred to the Committee on Natural Resources.
- H.R. 1611 (Grimm, R-N.Y.) (energy tax incentives) would amend the Internal Revenue Code of 1986 to provide for the designation of Clean Energy Business Zones and for tax incentives for the construction of, and employment at, energy-efficient buildings and clean energy facilities. 157 Cong. Rec. H2911 (Apr. 15, 2011). The bill was referred to the Committee on Ways and Means and the Committee on Small Business.
- H.R. 1628 (Moran, D-Va.) (plastic bags) would amend the Internal Revenue Code of 1986 to impose a retail tax on disposable carryout bags. 157 Cong. Rec. H2912 (Apr. 15, 2011). The bill was referred to the Committee on Ways and Means and the Committee on Natural Resources.
- H.R. 1633 (Noem, R-S.D.) (CAA) would establish a temporary prohibition against revising any NAAQS applicable to coarse particulate matter and limit federal regulation of nuisance dust in areas in which such dust is regulated under state, tribal, or local law. 157 Cong. Rec. H2912 (Apr. 15, 2011). The bill was referred to the Committee on Energy and Commerce.
- H.R. 1634 (Pallone, D-N.J.) (Superfund) would amend the Internal Revenue Code of 1986 to extend the financing of the Superfund. 157 Cong. Rec. H2912 (Apr. 15, 2011). The bill was referred to the Committee on Ways and Means.
- H.R. 1646 (Runyan, R-N.J.) (fisheries) would amend the Magnuson-Stevens Fishery Conservation and Management Act to preserve jobs and coastal communities through transparency and accountability in fishery management. 157 Cong. Rec. H2912 (Apr. 15, 2011). The bill was referred to the Committee on Natural Resources.
- H.R. 1649 (Sarbanes, D-Md.) (Chesapeake Bay) would amend the Chesapeake Bay Initiative Act of 1998 to provide for the continuing authorization of the Chesapeake Bay Gateways and Watertrails Network. 157 Cong. Rec. H2913 (Apr. 15, 2011). The bill was referred to the Committee on Natural Resources.
- H.R. 1650 (Sarbanes, D-Md.) (Chesapeake Bay) would reauthorize the Chesapeake Bay Office of the National Oceanic and Atmospheric Administration. 157 Cong. Rec. H2913 (Apr. 15, 2011). The bill was referred to the Committee on Natural Resources.
- H.R. 1651 (Sarbanes, D-Md.) (Chesapeake Bay) would amend the Federal Water Pollution Control Act to create a designation for property owners who take actions to reduce nutrient and sediment runoff into the Chesapeake Bay watershed. 157 Cong. Rec. H2913 (Apr. 15, 2011). The bill was referred to the Committee on Transportation and Infrastructure.
- H.R. 1652 (Sarbanes, D-Md.) (Chesapeake Bay) would amend the Water Resources Development Act of 1996 to make modifications to the Chesapeake Bay environmental restoration and protection program. 157 Cong. Rec. H2913 (Apr. 15, 2011). The bill was referred to the Committee on Transportation and Infrastructure.
- H.R. 1659 (Tonko, D-N.Y.) (fuel cell motor vehicles) would amend the Internal Revenue Code of 1986 to modify the credit for qualified fuel cell motor vehicles and to allow the credit for certain off-highway vehicles. 157 Cong. Rec. H2913 (Apr. 15, 2011). The bill was referred to the Committee on Ways and Means.
- H.R. 1664 (Young, R-Fla.) (oil spill) would amend the Outer Continental Shelf Lands Act and the Federal Water Pollution Control Act to modernize and enhance the federal government's response to oil spills. 157 Cong. Rec. H2913 (Apr. 15, 2011). The bill was referred to the Committee on Transportation and Infrastructure and 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 in 2011, visit our list of Cumulative State Developments. For state material reported prior to 2011, visit the ELR Archives.
The states below have updates this week:
- The Department of Environmental Conservation amended 18 Alaska Admin. Code 80, adopting the federal Ground Water Rule and making other changes to state drinking water law. The rule change takes effect May 20, 2011. See http://notes4.state.ak.us/pn/pubnotic.nsf/1604e1912875140689256785006767f6/9a77444c5222fafb8925787900608568?OpenDocument.
- The Department of Environmental Quality amended 18 Ariz. Admin. Code 18.14, Permits and Compliance, to set the permit fee increase to an earlier date. The rules take effect July 1, 2011. See http://www.azsos.gov/public_services/Register/2011/16/final.pdf (pp. 568-613).
- The Office of Health Hazard Assessment added epoxiconazole to the list of chemicals known to the state to cause cancer. The listing is effective April 15, 2011. See http://www.oal.ca.gov/res/docs/pdf/notice/15z-2011.pdf (pp. 547-66).
- The Pollution Control Board proposed to amend 35 Ill. Admin. Code 217, Nitrogen Oxides Emissions. The rule would extend compliance dates for requirements under Part 217 from 2012 to 2015. The deadline for comment is June 6, 2011. See http://www.cyberdriveillinois.com/departments/index/register/register_volume35_issue17.pdf (pp. 6770-69).
- The Department of Natural Resources proposed to amend 17 Ill. Admin. Code 2530, Revocation Procedures for Conservation Offenses. Changes would add criteria for falsifying license applications and reports, add criteria for evidence pertaining to prior illegal or unlawful activities, and alter reinstatement procedures to incorporate recent legislation. The deadline for comment is June 6, 2011. See http://www.cyberdriveillinois.com/departments/index/register/register_volume35_issue17.pdf (pp. 6754-69).
- The Petroleum Underground Storage Tank Fund Board proposed to amend Iowa Admin. Code ch. 11, Claims, to change the authority to pay for the removal of USTs. The rule would place a dollar cap on the amount that may be spent per site. The deadline for public comment is May 20, 2011. See http://www.legis.state.ia.us/aspx/ACODOCS/DOCS/04-20-2011.Bulletin.pdf (pp. 1455-56).
Hazardous & Solid Waste:
- The Division of Waste Management proposed six regulations related to the permitting process and requirements for petroleum contaminated soil treatment facilities. The regulations relate to 401 Ky. Admin. Regs. 47. There will be a public hearing May 23, 2011, and the deadline for public comment is May 31. See http://waste.ky.gov/PPA/Pages/Proposed-SWB-Regulations.aspx.
- The Division of Waste Management proposed to add 401 Ky. Admin. Regs. 42:005, definitions related to USTs. There will be a public hearing May 24, 2011, and the deadline for public comment is May 31. See http://www.lrc.state.ky.us/kar/401/042/005.htm.
- The Department of Environmental Protection adopted amendments to Ch. 129, Surface Coating Facilities, to expand the list of sources of volatile organic compounds regulated to include exterior siding and tileboard. The amendments lower the threshold above which sources are subject to the rule to 15 pounds per day of volatile organic compounds (from 10 tons per year). Emission limits for metal furniture and flatwood paneling coating operations are more stringent, in some cases, than current limits. The rule took effect April 16, 2011. See http://www.maine.gov/sos/cec/rules/notices/2011/042011.html.
- The Department of Environmental Protection proposed to add Ch. 375, No Adverse Environmental Effect Standard of the Site Location Law, Section 10: Control of Noise, Sound Level Limits and Measurements for Wind Turbine Projects. Changes would set maximum noise requirements for wind turbines. There will be a public hearing May 19, 2011, and the deadline for public comment is June 3. See http://www.maine.gov/sos/cec/rules/notices/2011/042711.html.
- The Department of the Environment proposed to amend Md. Code Regs. 26.11.01, General Administrative Provisions, to remove references to Topical Memorandum 90-01 from the state's opacity regulations. There will be a public hearing May 25, 2011. See http://www.dsd.state.md.us/mdregister/3809.pdf (pp. 561-62).
- The Department of the Environment proposed to amend Md. Code Regs. 26.11.02, Permits, Approvals, and Registration, to clarify the requirements that must be met by facilities not normally exempt from needing a Permit to Construct under §§A-W to obtain an exemption. There will be a public hearing May 25, 2011. See http://www.dsd.state.md.us/mdregister/3809.pdf (pp. 562-65).
- The Department of the Environment proposed to amend Md. Code Regs. 26.11.19, Volatile Organic Compounds from Specific Processes, to incorporate EPA's Control Techniques Guidelines for lithographic and letterpress printing into the state’s current regulations for the control of volatile organic compounds. There will be a public hearing May 25, 2011. See http://www.dsd.state.md.us/mdregister/3809.pdf (pp. 565-68).
- The Ohio Environmental Protection Agency proposed amendments to Ohio Admin. Code 3754.1, concerning the Surface Water Credible Data Program. The changes are part of the agency's five year review of the rules. There will be a public hearing May 24, 2011. See http://www.registerofohio.state.oh.us/pdfs/phn/3745_NO_135961_20110419_0931.pdf.
- The Department of Environmental Quality proposed to add 9 Va. Admin. Code §5.520, Biomass Energy Generator General Permit for a Pilot Test Facility. The rule would create a mechanism for sources to construct and test to determine the type and quantity of emissions from a qualified energy generator. The rule would apply to generators that produce five megawatts or fewer of electricity, or produce the equivalent amount of energy in the form of fuel, steam, or other energy product per year from biomass. The rule also defines what constitutes biomass. See http://legis.state.va.us/codecomm/register/vol27/iss17/v27i17.pdf (pp. 2071-83).
- The Department of Natural Resources added Wis. Admin. Code NR 40.02, relating to the identification, classification, and control of invasive species. See http://legis.wisconsin.gov/rsb/code/register/reg664a.pdf (p. 60).
Copyright© 2011, Environmental Law Institute, Washington, D.C. All rights reserved.
US AND EU REPRESENTATIVES SAY 2011 CLIMATE DEAL "NOT DOABLE"
U.S. climate negotiator Todd Stern and European climate commissioner Connie Hedegaard said that they didn't think that a climate deal at talks in South Africa in December was likely. "There is just this feeling that it's simply not doable for Durban," said Hedegaard after a meeting of the Major Economies Forum. Nations at last year's Cancun meeting agreed to curb the loss of forest, help transfer clean technology to poorer nations, and set a goal to provide $100 billion a year in aid by 2020. However, Hedegaard said that shipping and aviation emissions need to be tackled in Durban, as the International Maritime Organization has yet to deliver on its task. Though international agreements on climate goals may not be likely any time this year, nations continue to grow support for cleaner technologies and greenhouse gas penalties. Of the dozens of existing nationwide subsidies and support schemes for cleaner energy, support is greatest for solar energy, according to a Reuters feature. However, support may change as governments struggle to keep pace with a decline in equipment prices and economic concerns. Italy has been planning to slash subsidies for its photovoltaic industry, although there are indications the subsidies may be phased out instead of quickly ended. For the story on the Durban talks, see http://www.reuters.com/article/2011/04/28/us-climate-durban-idUSTRE73Q6X220110428. For the Reuters story on global support for solar and wind, see http://www.reuters.com/article/2011/04/28/us-energy-renewable-support-idUSTRE73R4WE20110428. For the end to Italy's subsidies, see http://www.reuters.com/article/2011/04/27/us-italy-solar-idUSTRE73Q5OD20110427.
INDUSTRIAL POLLUTION RAISES CONCERNS IN CANADA
Canada's Conservative party's plan to battle industrial pollution may be the most costly to government, the most damaging to the economy, and the least effective at cleaning the atmosphere, according to a federal government analysis of climate change policies. "This approach requires many initiatives, likely by three different orders of government, with the associated administrative costs," said the report. And, the report continued, "because it does not use market forces to find the lowest-cost emissions reduction opportunities, it is inevitably a higher-cost approach than those based on emissions trading. . . . This option likely also provides the least certainty for meeting a target." Meanwhile, a study from the University of Alberta showed that a relatively harmless form of mercury changes to a deadly neurotoxin when it enters sea water. Inorganic mercury, released from industrial activity like coal-burning power plants, undergoes a process in sea water that turns it into monomethylmercury. According to one of the study's researchers, the neurotoxin's presence in Arctic waters may have serious implications for human health, especially in Inuit groups, whose diets traditionally rely heavily on fish and marine mammals. In addition, according to the study, toxic monomethylmercury accounts for approximately 50% of mercury found in polar waters. For the full story on the study on the Conservative's policy, see http://www.montrealgazette.com/technology/Tory+tactics+battle+pollution+choice+government+study/4671986/story.html. For the story on the mercury study, see http://www.montrealgazette.com/health/Deadly+form+mercury+found+Arctic+waters+researchers/4691544/story.html.
REGIONAL INDIAN OFFICIAL THREATENS HARSH PENALTIES FOR ILLEGAL MINING
In response to local pressure to crack down on illegal mining, Goa chief minister Digambar Kamat said that "mining officials will have to follow the directives. If they don’t do it, they will be hanged." The wealthy region has recently seen greater activity from anti-illegal mining activists, resulting in the closure of two mines and increased pressure on corrupt officials to conform to policies. Villagers near the two mines complained that the mines, which had not obtained permission under the Water and Air Pollution Acts, were operating in collusion with local officials. According to Leader of Opposition Manohar Parrikar, nearly one-fifth of the region's mining output consists of illegally mined ore. In addition, Parrikar accused several officials of aiding the illegal mining mafia. For the full story, see http://www.miningaustralia.com.au/news/illegal-mining-officials-will-be-hanged.
Copyright© 2011, Environmental Law Institute, Washington, D.C. All rights reserved.
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