Weekly Update Volume 41, Issue 14
The U.S. Supreme Court held that Wyoming did not violate the Yellowstone River Compact by allowing its pre-1950 water appropriators to increase their net water consumption by improving the efficiency of their irrigation systems. The compact protects beneficial use water rights in existence prior to 1950 under the doctrine of appropriation. Montana alleged that the new irrigation systems use sprinklers that reduce the amount of wastewater returned to the river, thereby depriving Montana's downstream pre-1950 appropriators of water to which they are entitled. But the compact incorporates the ordinary doctrine of appropriation without significant qualification, and in Wyoming and Montana, that doctrine allows appropriators to improve their irrigation systems, even to the detriment of downstream appropriators. As such, more efficient irrigation systems are permissible under the compact so long as the conserved water is used to irrigate the same acreage watered in 1950. Montana's increased-efficiency allegation therefore fails to state a claim for breach of the compact. Thomas, J., delivered the opinion of the Court, in which Roberts, C.J., and Kennedy, Ginsburg, Breyer, Alito, and Sotomayor, JJ., joined. Scalia, J., filed a dissenting opinion. Kagan, J., took no part in the consideration or decision of the case. Montana v. Wyoming, No. 137, 41 ELR 20168 (U.S. May 2, 2011).
The D.C. Circuit denied a power company's petition for review of a FERC order that North Carolina did not waive its CWA certification authority necessary for the relicensing of the company's hydroelectric facilities. One of the preconditions of relicensing is receipt of a state certification that any discharges into navigable waters will comply with certain provisions of the CWA. CWA §401(a)(1) provides that state certification shall be waived if the state certifying agency "fails or refuses to act on a request for certification, within a reasonable period of time (which shall not exceed one year) after receipt of such request." When a state administrative law judge stayed the water certification issued by the state agency, the company petitioned FERC for a declaratory order that the certifying agency had waived its authority by not issuing a certification that was effective and complete within one year. FERC denied the petition, ruling there was no waiver because the state had acted on the company's application within one year of its filing. The company filed the instant petition for review. But FERC's interpretation of §401(a)(1) to allow licensing once a certification has been obtained, even if the certification is not by its terms immediately effective, is consistent with the plain text and statutory purpose of the provision. Nowhere in §401 is it stated that a certification must be fully effective prior to the one-year period much less prior to licensing; it requires only that a state "act" within one year of an application and that a certification be "obtained." Alcoa Power Generating Inc. v. Federal Energy Regulatory Commission, No. 10-1066, 41 ELR 20173 (D.C. Cir. May 3, 2011).
The D.C. Circuit upheld an Interior Board of Land Appeals decision refusing to reinstate four oil and gas leases off the California coast that were expired due to political considerations. In 1999, the Pacific Regional Director of the Minerals Management Service caused the leases, for which an energy company had originally paid the United States over $140 million, to expire. The Regional Director later testified that he based his decision solely on political considerations and that absent such considerations he would have instead extended the leases. Reviewing the matter de novo, however, the Interior Board of Land Appeals, acting without regard to political considerations and on the basis of scientific evidence, affirmed the original decision. The district court upheld that ruling. The company appealed, arguing that in order to cure the Regional Director's original decision of political taint, the Board should have adopted the decision the Regional Director says he would have made absent political influence. But because the company received all it was entitled to--i.e., an agency decision on the merits without regard to extra-statutory, political factors--the court affirmed. Aera Energy LLC v. Salazar, No. 10-5101, 41 ELR 20174 (D.C. Cir. Apr. 29, 2011).
The Ninth Circuit affirmed a lower court decision that the Federal Highway Administration's (FHWA's) EIS for a new ferry terminal and highway project through a national forest in Alaska violated NEPA. Improving ferry services using existing resources is a reasonable alternative for improving transportation in the area. The FHWA therefore violated NEPA when it failed to consider this alternative in the final EIS. The FHWA's justifications for not considering the proposed alternative--that it would potentially reduce services elsewhere and increase costs--were arbitrary because all of the alternatives that were considered in the EIS posed the same risks. Any of the "build" alternatives considered in detail in the EIS, including Alaska's preferred alternative to build a new road and terminal, would increase costs for the state and could have the ripple effect of reducing service elsewhere. By failing to examine a viable and reasonable alternative to the proposed project, and by not providing an adequate justification for its omission, the EIS failed to comply with NEPA. Southeast Alaska Conservation Council v. Federal Highway Administration, No. 09-35551, 41 ELR 20169 (9th Cir. May 4, 2011).
A district court held that the USDA Rural Utilities Service's (RUS') failure to prepare an EIS in connection with the expansion of a coal-fired power plant violated NEPA. RUS' involvement in the project, including financial assistance under the Rural Electrification Act, constitutes a "major federal action" under NEPA. The project required approval from RUS to go forward. In addition, RUS did not merely provide financial assistance to some discrete aspect of the project, nor was its contribution insignificant. Rather, it effectively provided funding allowing the project to proceed. Accordingly, it actions were subject to the requirements of NEPA. In addition, the court rejected the plant's argument that the claim was moot. Even though the approvals are final, RUS continues to have authority over the project, including the authority to impose mitigation measures on the plant. As such, effective relief is available. Sierra Club v. United States Department of Agriculture, No. 07-01860, 41 ELR 20170 (D.D.C. Mar. 29, 2011) (Sullivan, J.).
The Seventh Circuit reversed and remanded a lower court decision dismissing residents' RCRA lawsuit against a nearby solid waste facility. The lower court ruled that it lacked federal subject matter jurisdiction because the state was pursuing an enforcement action in state court. The appellate court disagreed. RCRA allows the residents to pursue those claims that are beyond the scope of the state's lawsuit. The state's suit dealt primarily with the dumping, processing, and disposal of "C" grade waste and waste piles. But the residents' RCRA claim also seeks relief for "A" grade waste, "B" grade waste, and other types of solid waste that were not expressly addressed in the state action. Nor was the residents' suit barred by a second suit the state filed in state court after the residents filed their lawsuit. The bar does not apply if the citizen suit was filed first. The lower court also ruled that it should abstain from exercising jurisdiction over all RCRA claims under the abstention doctrines articulated by the U.S. Supreme Court in Burford v. Sun Oil Co., 319 U.S. 315 (1943), and Colorado River Water Conservation District v. United States, 424 U.S. 800 (1976). But because the residents satisfied the statutory requirements for bringing their citizen suit, abstention doctrines should not have been used to block them from pursuing the avenues that Congress gave them in RCRA. Adkins v. VIM Recycling, Inc., No. 10-2237, 41 ELR 20171 (7th Cir. May 3, 2011).
A district court denied a property owner's motion to add RCRA claims to its CERCLA and state law action against a dry cleaner for groundwater contamination. The property owner failed to comply with RCRA's notice requirements. The boilerplate and conclusory RCRA notices provided by the owner fail to provide any information to enable the recipient to ascertain a range of dates for the alleged violations. The notices do not suggest the mechanism for contamination; to the contrary, the notices say nothing about what operations on the site are alleged to have caused contamination. Nor do the notices even generally identify the types of contaminants at issue. In short, the notices are devoid of any specific information sufficient to allow the recipient to identify the specific standards, regulations, conditions, requirements, or orders that have allegedly been violated. Enns Pontiac, Buick, & GMC Truck v. Flores, No. 1:07-cv-01043, 41 ELR 20175 (E.D. Cal. Apr. 20, 2011) (Wanger, J.).
The Michigan Supreme Court vacated its previous decision at 41 ELR 20056 in which it 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 for permitting the discharge. The very harms that plaintiffs sought to enjoin no longer exist. The company has quit-claimed its easement interest back to the riparian owner, no longer has the physical means of discharging water into the watershed, is now disposing of the water by alternative means, and no longer has a permit that allows discharge into the watershed. In addition, the state agency has attested that “there no longer exists the possibility of surface water discharge" to the watershed. Accordingly, the case is moot. Anglers of the AuSable, Inc. v. Department of Environmental Quality, Nos. 138863 et al., 41 ELR 20172 (Mich. Apr. 25, 2011).
A California appellate court held that a city's approval of a "term sheet" setting forth the basic plans for building a stadium for the San Francisco 49ers does not constitute a project or project approval under the California Environmental Quality Act. The current lessee of the site filed a petition challenging the approval, arguing that it should be set aside since the city failed to prepare an environmental impact report (EIR). But the term sheet does not constitute a project or a project approval. It simply memorializes the preliminary terms that have been negotiated among the parties and mandates that the parties use the term sheet as the "general framework" for "good faith negotiations." Although the term sheet is extremely detailed, it expressly binds the parties to only continue negotiating in good faith. Preparation of an EIR, therefore, is not required. The court, therefore, affirmed a lower court's denial of the petition. Cedar Fair, L.P. v. City of Santa Clara, No. H035619, 41 ELR 20167 (Cal. App. 6th Dist. Apr. 6, 2011).
Copyright© 2011, Environmental Law Institute, Washington, D.C. All rights reserved.
THE FEDERAL AGENCIES
Note: Citations below are to the Federal Register (FR).
- EPA proposed NESHAPs from coal- and oil-fired electric utility steam-generating units and revised new source performance standards for fossil fuel-fired units. 76 FR 24976 (5/3/11).
- EPA entered into a proposed settlement agreement in Sierra Club v. U.S. Environmental Protection Agency, No. 2:10-cv-01872-RSL (W.D. Wash.), that establishes a deadline for the Agency to respond to a petition seeking its objection to a CAA Title V operating permit for a coal-fired power plant in Centralia, Washington. 76 FR 25688 (5/5/11).
- SIP Approvals: California (PSD permit programs for the Northern Sonoma County air pollution control district and the Mendocino County air quality management district) 76 FR 26192 (5/6/11). Delaware (update of regulations) 76 FR 24372 (5/2/11). Texas (partial approval of PSD program and promulgation of federal implementation plan) 76 FR 25178 (5/3/11).
- SIP Proposals: California (PSD permit programs for the Northern Sonoma County air pollution control district and the Mendocino County air quality management district; see above for direct final rule) 76 FR 26224 (5/6/11). Illinois (definition of volatile organic compound) 76 FR 24846 (5/3/11). New Mexico (1997 eight-hour ozone and fine particulate matter NAAQS and PSD program) 76 FR 24421 (5/2/11). North Dakota (air pollution control rules) 76 FR 25652 (5/5/11).
HAZARDOUS & SOLID WASTE:
- EPA entered into a proposed administrative settlement under CERCLA that requires the settling party to pay $208,990 in U.S. response costs incurred at the Big River Mine Tailings Superfund site in St. Francois County, Missouri. 76 FR 26291 (5/6/11).
- EPA entered into two proposed administrative settlements under CERCLA and RCRA that require the settling party to perform certain cleanup actions at the Caribbean Petroleum Refining, LP facility in Bayamon, Puerto Rico, and to assume responsibility for the UST systems and required cleanup work at 147 gasoline service stations. 76 FR 24481 (5/2/11).
- EPA and the U.S. Army Corps of Engineers seek public comment on proposed guidance to identify waters protected by the FWPCA consistent with the U.S. Supreme Court's SWANNC and Rapanos decisions. 76 FR 24479 (5/2/11).
- FWS reissued final rulemaking that identifies the northern Rocky Mountain population of gray wolf as a distinct population segment and removes most gray wolves from the list of endangered and threatened wildlife under the ESA. 76 FR 25590 (5/5/11).
- FWS proposed to identify the Minnesota population of gray wolves as a western Great Lakes distinct population segment of the gray wolf, to remove this segment from the list of endangered and threatened wildlife under the ESA, and to initiate a rangewide status review. 76 FR 26086 (5/5/11).
- NOAA-Fisheries announced a 90-day finding on a petition to revise critical habitat for the endangered leatherback sea turtle off the northeast ecological corridor of Puerto Rico; the agency found that revision may be warranted. 76 FR 25660 (5/5/11).
- NOAA-Fisheries established ocean salmon management measures for fisheries off the coasts of California, Oregon, and Washington through May 1, 2012. 76 FR 25246 (5/4/11).
DOJ NOTICES OF SETTLEMENT:
- United States v. Bunting Bearings, LLC, No. 3:10-CV-01527 (N.D. Ohio Apr. 27, 2011). A settling CERCLA defendant responsible for violations at the Eagle-Picher Superfund site in Delta, Ohio, must pay $450,000 in past U.S. response costs incurred at the site. 76 FR 25710 (5/5/11).
- United States v. Kor, No. 10-4086 (D.S.D. Apr. 28, 2011). Settling CWA defendants that discharged pollutants into waters of the United States without a permit must pay a civil penalty, must restore the impacted areas, and must perform mitigation. 76 FR 25710 (5/5/11).
- In re Old AII, Inc., No. 09-10478 (BLS) (Bankr. D. Del. Apr. 25, 2011). A settling CERCLA defendant responsible for violations at the Halaco Superfund site in Oxnard, California, must provide the United States with an allowed general unsecured claim of $2,672,800. 76 FR 24522 (5/2/11).
Copyright© 2011, Environmental Law Institute, Washington, D.C. All rights reserved.
Note: Citations below are to the Congressional Record (Cong. Rec.).
- H.R. 1230 (offshore drilling), which would direct the Secretary of the Interior to conduct specified proposed offshore oil and gas lease sales, was passed by the House, 157 Cong. Rec. H3078-94 (daily ed. May. 2, 2011).
- H.R. 1229 (offshore drilling) was reported by the Committee on Natural Resources. H. Rep. No. 112-67, Pt. 1, 157 Cong. Rec. H2932 (daily ed. May. 2, 2011). The bill would amend the Outer Continental Shelf Lands Act to direct the Secretary of the Interior to require that any lessee operating under an approved exploration plan to obtain a permit before drilling any well in accordance with such plan, and to obtain a new permit before drilling any well of a design significantly different from the design for which an existing permit was issued. In addition, the bill would establish any district court within the U.S. Court of Appeals for the Fifth Circuit as the exclusive venue for certain civil actions relating to covered energy projects in the Gulf of Mexico unless there is no proper venue within any Fifth Circuit court.
- H.R. 1230 (offshore drilling), was reported by the Committee on Natural Resources. H. Rep. No. 112-68, 157 Cong. Rec. H2932-33 (daily ed. May. 2, 2011). The bill would direct the Secretary of the Interior to conduct specified proposed offshore oil and gas lease sales.
- H.R. 1231 (offshore drilling) was reported by the Committee on Natural Resources. H. Rep. No. 112-69, 157 Cong. Rec. H2932-33 (daily ed. May. 2, 2011). The bill would amend the Outer Continental Shelf Lands Act to require that each 5-year offshore oil and gas leasing program offer leasing in the areas with the most prospective oil and gas resources and establish a domestic oil and natural gas production goal.
- S. 869 (Graham, R-S. C.) (federal land) would provide for an exchange of land between the Department of Homeland Security and the South Carolina State Ports Authority. 157 Cong. Rec. S2621 (daily ed. May 3, 2011). The bill was referred to the Committee on Energy and Natural Resources.
- S. 870 (Tester, D-Mont.) (hazardous substances) would amend the Federal Water Pollution Control Act to modify oil and hazardous substance liability. 157 Cong. Rec. S2621 (daily ed. May 3, 2011). The bill was referred to the Committee on Environment and Public Works.
- S. 871 (Coburn, R-Okla.) (ethanol tax credit) would repeal the Volumetric Ethanol Excise Tax Credit. 157 Cong. Rec. S2621 (daily ed. May 3, 2011). The bill was referred to the Committee on Finance.
- S. 875 (Lautenberg, D-N. J.) (SDWA) would amend the SDWA to require additional monitoring of certain contaminants. 157 Cong. Rec. S2621 (daily ed. May 3, 2011). The bill was referred to the Committee on Environment and Public Works.
- S. 888 (Murray, D-Wash.) (rivers) would amend the Wild and Scenic Rivers Act to designate a segment of Illabot Creek in Skagit County, Washington, as a component of the National Wild and Scenic Rivers System. 157 Cong. Rec. S2730 (daily ed. May 5, 2011). The bill was referred to the Committee on Energy and Natural Resources.
- S. 892 (Burr, R-N. C.) (agencies) would establish the Department of Energy and the Environment. 157 Cong. Rec. S2730-31 (daily ed. May 5, 2011). The bill was referred to the Committee on Homeland Security and Governmental Affairs.
- S. 898 (Cardin, D-Md.) (stormwater) would amend title 23, U.S. Code, to direct the Secretary to establish a comprehensive design standard program to prevent, control, and treat polluted stormwater runoff from federally funded highways and roads. 157 Cong. Rec. S2731 (daily ed. May 5, 2011). The bill was referred to the Committee on Environment and Public Works.
- S. 899 (Cardin, D-Md.) (invasive species) would provide for the eradication and control of nutria. 157 Cong. Rec. S2731 (daily ed. May 5, 2011). The bill was referred to the Committee on Environment and Public Works.
- S. 901 (Tester, D-Mont.) (land) would amend the Land and Water Conservation Fund Act of 1965 to ensure that amounts are made available for projects to provide recreational public access. 157 Cong. Rec. S2731 (daily ed. May 5, 2011). The bill was referred to the Committee on Energy and Natural Resources.
- H.R. 1677 (Miller, R-Mich.) (pharmaceutical disposal) would direct the EPA Administrator to convene a task force to develop recommendations on the proper disposal of unused pharmaceuticals. 157 Cong. Rec. H2933 (daily ed. May 2, 2011). The bill was referred to the Committee on Transportation and Infrastructure.
- H.R. 1689 (Bishop, D-N.Y.) (oil and gas tax credit) would amend the Internal Revenue Code of 1986 to disallow the deduction for income attributable to domestic production activities with respect to oil and gas activities of major integrated oil companies. 157 Cong. Rec. H2998 (daily ed. May 3, 2011). The bill was referred to the Committee on Ways and Means.
- H.R. 1701 (Polis, D-Colo.) (federal land) would designate certain lands in the state of Colorado as components of the National Wilderness Preservation System and would designate the Red Table Mountain, Pisgah Mountain, Castle Peak, Tenmile, Hoosier Ridge, and Porcupine Gulch Special Management Areas. 157 Cong. Rec. H2998 (daily ed. May 3, 2011). The bill was referred to the Committee on Natural Resources.
- H.R. 1705 (Sullivan, R-Okla.) (EPA) would require analyses of the cumulative and incremental impacts of certain rules and actions of EPA. 157 Cong. Rec. H3060 (daily ed. May 4, 2011). The bill was referred to the Committee on Energy and Commerce and the Committee on Transportation and Infrastructure.
- H.R. 1712 (Cassidy, R-La.) (natural gas sales) would amend the Internal Revenue Code of 1986 to exempt sales of natural gas for use in natural gas vehicles from the retail sales limitation on defining independent producers of petroleum products. 157 Cong. Rec. H3060 (daily ed. May 4, 2011). The bill was referred to the Committee on Ways and Means.
- H.R. 1719 (McMorris Rodgers, R-Wash.) (ESA) would inform consumers regarding costs associated with compliance for protecting endangered and threatened species under the ESA. 157 Cong. Rec. H3060 (daily ed. May 4, 2011). The bill was referred to the Committee on Natural Resources.
- H.R. 1740 (Larsen, D-Wash.) (rivers) would amend the Wild and Scenic Rivers Act to designate a segment of Illabot Creek in Skagit County, Washington, as a component of the National Wild and Scenic Rivers System. 157 Cong. Rec. H3106 (daily ed. May 5, 2011). The bill was referred to the Committee on Natural Resources.
- H.R. 1760 (Miller, D-Cal.) (great apes) would reauthorize the Great Ape Conservation Act. 157 Cong. Rec. H3107 (daily ed. May 5, 2011). The bill was referred to the Committee on Natural Resources.
- H.R. 1761 (Pierluisi, D-P. R.) (turtles) would reauthorize the Marine Turtle Conservation Act of 2004. 157 Cong. Rec. H3107 (daily ed. May 5, 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 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 Water Resources amended Ariz. Admin. Code 12.15.1, Fees, and 12.15.7, Assured and Adequate Water Supply. Changes alter definitions and policies related to fees for permits and repeal the Assured and Adequate Water Supply fee. Changes take effect June 4, 2011. See http://www.azsos.gov/public_services/Register/2011/17/final.pdf (pp. 659-98).
- The Office of Environmental Health Hazard Assessment altered the list of chemicals known to the state to cause cancer to include ethanol in alcoholic beverages, leather dust, cyclopenta[cd]pyrene, and salted fish, Chinese-style, effective April 29, 2011. The list will also include androstenedione, dibromoacetonitrile, and malonaldehyde, sodium salt effective May 3. See http://www.oal.ca.gov/res/docs/pdf/notice/17z-2011.pdf (pp. 711-12).
- The Department of Natural Resources proposed to amend 7 Del. Admin. Code 1124 to specifically state that an alternative coating method that is capable of achieving a transfer efficiency equal to or better than high volume, low pressure spray requires approval by U.S. EPA as well as by the Department. There will be a public hearing May 23, 2011. See http://regulations.delaware.gov/register/may2011/proposed/14%20DE%20Reg%201206%2005-01-11.htm#P10_217.
- The Department of Environmental Quality proposed to amend Idaho Admin. Code r. 58.01.01, Rules for the Control of Air Pollution in Idaho. Changes would streamline Idaho’s Rules for Control of Kraft Pulp Mills by removing requirements that are either obsolete or covered by existing federal rules. Changes would also clarify reporting requirements. There will be a hearing on June 6, 2011. See http://adm.idaho.gov/adminrules/bulletin/bul/11bul/11may.pdf (pp. 78-82).
- The Department of Lands amended Idaho Admin. Code r. 20.02.14, Rules for Selling Forest Products on State Owned Endowment Lands. Changes authorize the Department to sell state timber as delivered products and authorize the director to set permit rates. See http://adm.idaho.gov/adminrules/bulletin/bul/11bul/11may.pdf (pp. 72-73).
- The Department of Environmental Quality amended Idaho Admin. Code r. 58.01.02, Water Quality Standards. Changes relate to the implementation of antidegradation policy. See http://adm.idaho.gov/adminrules/bulletin/bul/11bul/11may.pdf (pp. 83-98).
- The Department of Environmental Quality proposed to amend Idaho Admin. Code r. 58.01.02, Water Quality Standards, to remove excessive thermal treatment requirements and outdated numeric criteria to protect salmonid spawning. According to the Department, existing requirements result in costs greater than needed to protect aquatic life resources. There will be a public hearing May 25, 2011. See http://adm.idaho.gov/adminrules/bulletin/bul/11bul/11may.pdf (pp. 99-100).
- The Natural Resources Commission amended Iowa Admin. Code §22, Wildlife Habitat on Private Lands Promotion Program. The program allows the Department to develop a pilot program in which it will create, manage, and enhance wildlife habitat on private land in exchange for allowing public access for hunting. The rule will take effect June 18, 2011. See http://www.legis.state.ia.us/aspx/ACODOCS/DOCS/05-04-2011.Bulletin.pdf (pp. 1538-44).
- The Department of Environmental Quality amended La. Admin. Code 33:III.1101, 1106 and 1107, Control of Emissions of Smoke. Changes would change the provision allowing for one six-minute period in 60 consecutive minutes during which smoke opacity may exceed 20% so that it is not limited to activities involving the cleaning of a fire box or building of a new fire, soot blowing or lancing, charging of an incinerator, equipment changes, ash removal, or rapping of precipitators. See http://www.doa.la.gov/osr/reg/1104/1104.pdf (pp. 1143-44).
- The Department of Environmental Quality amended La. Admin. Code 33:III.111, 211, 223, 501, 503, 523, 537, and 2132, Greenhouse Gases. The amendment removes carbon dioxide from the list of pollutants that "need not be included in a permit application." See http://www.doa.la.gov/osr/reg/1104/1104.pdf (pp. 1144-47).
Hazardous & Solid Waste:
- The Department of Environmental Quality proposed to amend La. Admin. Code 33:IX.Chapter 73, Use or Disposal of Sewage Sludge and Biosolids. Changes would incorporate requirements that currently exist as policy within the Department and would clarify the requirements of Standards for the Use or Disposal of Sewage Sludge and Biosolids. There will be a public hearing May 24, 2011. See http://www.doa.la.gov/osr/reg/1104/1104.pdf (pp. 1223-27).
Hazardous & Solid Waste:
- The Board of Environmental Protection proposed to amend Ch. 900, Biomedical Waste Management Rules. Changes would remove the requirement that the sharps portion of treated biomedical waste be shredded prior to being landfilled. Changes would also clarify which discarded cultures are subject to regulation under the rules. The deadline for comment is June 3, 2011. See http://www.maine.gov/sos/cec/rules/notices/2011/050411.html.
- The Board of Public Utilities adopted amendments to N. J. Admin. Code §§220.127.116.11 & 18.104.22.168, Renewable Energy Portfolio Standards. The rules require electric power suppliers and basic generation service providers to include minimum percentages of renewable energy in the electricity they sell. The amendments codify new statutory requirements enacted through the Solar Energy Advancement and Fair Competition Act. The rules took effect March 30, 2011, and will be in effect until September 30, 2012. See http://www.lexisnexis.com/njoal/ (43 N.J.R. 1206(a)).
- The Water Quality Control Commission amended N. M. Admin. Code 20.6.2, Ground and Surface Water Protection. Changes pertain to the certification of federal NPDES permits. The rule takes effect May 18, 2011. See http://www.nmcpr.state.nm.us/nmregister/xxii/xxii08/20.6.2amend.htm.
- The Department of Environmental Conservation amended N.Y. Comp. Codes R. & Regs. tit. 6, §247, Outdoor Wood Boilers Used to Heat Homes and Commercial Establishments. Changes institute sell-through provisions, allowing distributors to sell their inventories of non-compliant outdoor wood boilers through July 14, 2011. See http://www.dos.state.ny.us/info/register/2011/may4/pdfs/rules.pdf (pp. 7-9).
- The Department of Environmental Quality proposed to add Okla. Admin. Code 252.100.17, Biomedical Waste Incinerators. The rule would add design requirements, emission standards, and control technology for this type of incinerator and would close a regulatory gap regarding pathological waste, low-level radioactive waste, and chemotherapeutic wastes. The rules take effect July 1, 2011. See http://www.oar.state.ok.us/register/Volume-28_Issue-16.htm#a62498.
- The Department of Environmental Quality amended Okla. Admin. Code 252.4.7, Land Protection Division Tiers and Time Lines. Changes would alter rules so that the Brownfields program no longer has to conform to the permitting tier hierarchy. This is in response to earlier rulemaking that clarified that a Certificate of Completion and a Certificate of No Action Necessary were not "permits." The rules take effect July 1, 2011. See http://www.oar.state.ok.us/register/Volume-28_Issue-16.htm#a60968.
- The Department of Environmental Quality revoked Okla. Admin. Code 252.220, Brownfields. The regulation covers voluntary brownfields redevelopment and is being replaced with a streamlined rule consistent with federal law. The rule takes effect July 1, 2011. See http://www.oar.state.ok.us/register/Volume-28_Issue-16.htm#a66085, and http://www.oar.state.ok.us/register/Volume-28_Issue-16.htm#a76333 for the new regulation.
- The Department of Environmental Quality adopted Or. Admin. Code 340.143, Ballast Water Management. Changes are intended to reduce the risk of transporting invasive species to Oregon waterways by enhancing ballast water management for commercial vessels operating in the state. The rules took effect March 17, 2011. See http://arcweb.sos.state.or.us/rules/May2011_Bulletin.pdf (pp. 82-85).
- The Department of Environmental Quality proposed to repeal and reenact Utah Admin. Code R307-103, Administrative Procedures. Changes would refer to R306-5 for all administrative procedures. Changes include encouraging informal discovery and limiting discovery to appropriate subjects, requiring comments to be provided to the executive secretary to preserve a commenter's right to challenge a decision of the executive secretary, and specifying situations in which declaratory actions should not be considered. The deadline for public comment is May 31, 2011, and the rule may become effective August 14. See http://www.rules.utah.gov/publicat/bull_pdf/2011/b20110501.pdf (pp. 9-13).
Copyright© 2011, Environmental Law Institute, Washington, D.C. All rights reserved.
CHINA'S CO2 OUTPUT MAY PEAK IN 2050
A recent study indicated that China's demand for resources and greenhouse gas output may peak by midcentury. The report, authored by the U.S. Department of Energy's Berkeley Lab, indicated that the nation will be saturated with road and rail, in addition to consumer appliances, by around 2030 to 2035. This saturation will result in a decrease in demand for raw materials and new power plants. The report modeled two different scenarios of China's move towards cleaner and more efficient energy; in one, China's greenhouse gas output peaked in 2027 at 9.7 billion metric tons, and fell to 7 billion by 2050. In the other, emissions rise to 12 billion metric tons by 2033, and fall to 11 billion by 2050. For the full story, see http://news.discovery.com/earth/surprising-forecast-of-chinas-energy-future-110429.html.
EU, INDONESIA ENTER AGREEMENT ON DEFORESTATION
Indonesia and the European Union have reached a voluntary partnership agreement aimed at stopping trade in illegal timber, said Agus Sarsito, Director for International Cooperation at the Indonesia Ministry of Forestry. The agreement is expected to be signed by both sides in October. The pact, designed to protect the third largest tropical forest nation in the world, will likely make Indonesian timber more competitive in other markets, such as the United States, that have adopted illegal timber curbing policies, according to the EU. By some metrics, Indonesia is one of the world's largest emitters of greenhouse gases, owing to massive deforestation, and Norway has pledged $1 billion dollars to the scheme to help fight climate change. Sarisito said that the EU receives about 33 percent of the country's timber exports, with the rest going to the United States and Japan, and about 20 percent of timber coming into the EU is believed to be illegal. The deal, which replicates some measures found in 2008 amendments to the Lacey Act, means that the EU will only be able to import timber certified as complying with Indonesian timber laws. In addition, forest communities will be allowed to push for suspension of a company's timber exports if they can find evidence of illegal deforestation. This measure follows a law passed by the European Parliament in 2010 imposing stricter requirements on timber importers. For the full story, see http://www.forbes.com/feeds/ap/2011/05/05/general-as-indonesia-eu-timber_8451453.html and http://www.bbc.co.uk/news/science-environment-13272393. For the story on the 2010 law, see http://www.bbc.co.uk/news/10557228.
DEATHS AT PLANT POSSIBLY TIED TO POLLUTION PROTEST
Seven people were burned alive at a stone crushing plant in the Bandaguda village in Orissa state during a pollution protest last week in India. The plant, which crushes stones for use in cement and concrete, has been criticized for heavy air pollution. The bodies were identified as the plant's three owners, a security guard, and three other employees. Authorities suspect villagers set the fire after locking the seven in a break room. The role of plant owners in India has been fraught with conflict in the last few months, as residents of factory towns demand compensation and harsher pollution penalties to improve air and water quality. Environment minister Jairam Ramesh has vowed to introduce an emissions monitoring and trading scheme, and environmental costs are now to be included in the country's GDP. Still, Ramesh has fallen under criticism for continuing to allow controversial and potentially damaging plants to open in various portions of India, and action and rhetoric regarding polluters and those that aid them has become increasingly aggressive. Last month, in response to pressure from anti-mining activists protesting illegal operations, 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." For the full story, see http://www.dailymail.co.uk/news/article-1382160/Seven-burnt-death-following-violent-protest-pollution-caused-stone-crushing-plant-India.html?ito=feeds-newsxml.
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