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Weekly Update Volume 41, Issue 16

06/06/2011

LITIGATION 

CAA, PREEMPTION:

The Ninth Circuit held that the CAA does not preempt a local air district's adoption and enforcement of rules regulating air emissions from diesel-powered engines. CAA §209(e) expressly prohibits states from setting "standards or other requirements relating to the control of emissions" from nonroad engines. Although two of the rules require owners and operators to register and pay fees for certain diesel engines used in agricultural operations, which are nonroad sources, the registration and fee requirements are not preempted. The rules do not involve emissions control; they require owners and operators of certain diesel engines to provide information to the district about their engines and to pay fees. The rules' plain language has nothing to do with emissions standards or the control of emissions. And while a third rule sets emissions standards for stationary diesel engines within the air district, it does not apply to any "nonroad engines" as that term is used in the CAA. Under the state rule, a stationary engine is designed to stay in one location for more than 12 months, whereas the CAA implementing regulations make clear that an engine is not a nonroad engine when it remains or will remain at a location for more than 12 months. Jensen Family Farms, Inc. v. Monterey Bay Unified Air Pollution Control District, No. 09-16790, 41 ELR 20194 (9th Cir. May 27, 2011).


CERCLA, PENALTIES, JURISDICTION:

The Ninth Circuit upheld the dismissal of individuals' citizen suit claim against a Canadian mining company seeking civil penalties under CERCLA for the mining company's noncompliance with a unilateral administrative order. Because a citizen suit for penalties while remediation is ongoing is a challenge to an EPA-selected removal or remedial action, their claim is barred by CERCLA §113(h). In addition, the claim does not fall within §113(h)(2)'s exception for actions to recover penalties since CERCLA §113(h)(2) does not apply to citizens suits. What the individuals seek here is not a penalty payable to themselves, but enforcement of a penalty payable to the Superfund. Such a lawsuit is not one to "recover" money. Accordingly, the lower court properly ruled that it lacked jurisdiction. Pakootas v. Teck Cominco Metals, Ltd., Nos. 08-35951, 10-35045, 41 ELR 20195 (9th Cir. June 1, 2011).


NEPA, NFMA, TIMBER HARVESTING:

The Ninth Circuit affirmed in part and vacated in part a lower court decision largely granting summary judgment in favor of the U.S. Forest Service on environmental groups' and California's NEPA and NFMA claims challenging the agency's 2004 Sierra Nevada forest plan amendment and a timber harvesting project approved under that amendment. The lower court held that the Forest Service violated NEPA by failing to consider alternative actions using certain modeling techniques and management priorities, but it rejected several other NEPA and NFMA claims. The court agreed that the Forest Service largely complied with NEPA. The agency adequately disclosed conflicting scientific opinion, focused on short-term effects of intensified management, and conducted and disclosed a substantial assessment of cumulative impacts. Nevertheless, the Forest Service abused its discretion by finding that it lacked jurisdiction to bar implementation of the 2004 amendment during a remand for analysis under NEPA. If courts can not stop the federal government from applying a substantive rule promulgated without adherence to required procedures, regardless of the equities, both NEPA and the APA would be toothless. The lower court also erred in granting summary judgment for the Forest Service on the groups' claim that the 2004 amendment violates the NFMA by failing to maintain viable populations of old forest wildlife. The lower court applied a 2007 amendment that purports to retroactively eliminate the monitoring requirement. But the groups' claim that the timber project violates the NFMA is not ripe for review until after the lower court decides the first NFMA claim. The lower court also abused its discretion when considering the equitable factors governing entry of a permanent injunction. The court, therefore, vacated the lower court's narrow permanent injunction. Sierra Forest Legacy v. Sherman, Nos. 09-17796, 10-15026, 41 ELR 20193 (9th Cir. May 26, 2011).


EVIDENCE, ATTORNEY-CLIENT PRIVILEGE:

The Third Circuit reversed a lower court order granting an oil company's application to engage in discovery for use in an environmental class action before an Ecuadorian court under 28 U.S.C. §1782(a). The lower court ruled that the attorney-client privilege asserted by the Ecuadorian plaintiffs was waived since the communications were shown in the documentary Crude, which chronicled the litigation. But due to the presence of the filmmakers, the communications were not made in confidence and are not privileged. As such, there was no privilege to waive by their disclosure. The public disclosure of non-privileged communications does not lead to a subject matter waiver of the attorney-client privilege for communications covered by the privilege. Nevertheless, the court remanded the matter to the lower court so that it may consider the oil company's contention that certain communications are discoverable pursuant to the crime-fraud exception to the attorney-client privilege. In re Chevron Corp., Nos. 10-4699, 11-1099, 41 ELR 20192 (3d Cir. May 25, 2011).


TAKINGS, RIPENESS:

The First Circuit upheld the dismissal of a developer's federal takings claim against two state agencies for restricting its development of a coastal residential subdivision in Rhode Island. In Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985), the U.S. Supreme Court set forth ripeness requirements for federal takings claims, one of which provides that if a state provides an "adequate procedure for seeking just compensation, the property owner cannot claim a violation of the Just Compensation Clause until it has used the procedure and been denied just compensation." Here, the developer acknowledged that it never initiated an inverse condemnation proceeding in state court and went directly to federal court. Rather, it argued that it was excused from Williamson County's state litigation requirement because Rhode Island's state law remedies are "unavailable" or "inadequate." But Rhode Island's inverse condemnation procedure satisfies the ripeness requirements set forth in Williamson County. The Rhode Island courts have long allowed recovery through suits for inverse condemnation, and the state has an adequate process available to takings plaintiffs. The developer, therefore, must resort to it before their federal takings claims will ripen. Downing/Salt Pond Partners, L.P. v. Rhode Island, No.10-1484, 41 ELR 20191 (1st Cir. May 23, 2011).


TAKINGS, ACCESS:

The Federal Claims court denied a mining company's motion and the government's cross-motion for summary judgment in a Fifth Amendment takings claim stemming from various CERCLA remediation actions taken at the mine. The company argued that the government effectively denied access to parts of the mine, and the government countered that the remedial construction project was not a taking since the company had no right to maintain its property in a manner causing a public health hazard. The nuisance exception might justify the government's entry onto the mine's land and all necessary remediation efforts. The company, however, is not challenging the remediation work itself but is alleging that the work has effectively denied its access to the mine. The company's property interest in the use of its property as a commercial mining operation--a use that is distinct from the conditions that prompted the CERCLA remediation work--is not susceptible to the government's nuisance defense. Because there are factual issues as to whether the government's physical invasion has taken the mine's interest in the use of its property by eliminating all feasible access to the property, the claim is not amenable to summary judgment. Placer Mining Co. v. United States, No. 01-27, 41 ELR 20198 (Fed. Cl. May 25, 2011).


NEPA, ESA, OFFSHORE DRILLING:

A district court granted in part and denied in part the government's motion to dismiss an environmental group's claims that the Bureau of Ocean Energy Management, Regulation, and Enforcement (BOEMRE) failed to modify its policies and practices concerning offshore oil and gas leasing operations in the Gulf of Mexico as required by NEPA, the ESA, and the APA. The group alleged that the BOEMRE violated the APA and the ESA by failing to reinitiate consultation with the National Marine Fisheries Service and the FWS based on new information from the Deepwater Horizon spill showing that deepwater drilling in that area may harm endangered or threatened species and critical habitat. But the BOEMRE has begun consultation. Accordingly, this claim is moot. The group also argued that the BOEMRE violated the APA and the ESA by "proceeding with lease sales in the Gulf after the Deepwater Horizon incident . . . in violation of its independent duty to insure that its actions are not likely to jeopardize the continued existence of any listed species." The government's motion to dismiss this claim construed it as being geared toward future lease sales. But a plain reading of the complaint demonstrates that the claim is directed only at past or present actions by the BOEMRE, not at future lease sales that have not yet happened. The government's motion was therefore denied. The court also denied various interveners' motions to dismiss. Defenders of Wildlife v. Bureau of Ocean Energy Management, Regulation, and Enforcement, No. 10-0254, 41 ELR 20197 (S.D. Ala. May 23, 2011) (Steele, J.).


INSURANCE, POLLUTION EXCLUSION, SUDDEN AND ACCIDENTAL:

A district court held that an insurer has no duty to defend or indemnify a dry cleaner for PCE pollution stemming from repeated flooding under the terms of its insurance policy. The policy contained a pollution exclusion clause, and the dry cleaner argued that the exception for sudden and accidental occurrences should apply. It is clear from the case law that an unexpected or one-time event, such as a fire or a flood, on its own constitutes a sudden and accidental occurrence. It is also well-settled that pollution discharges caused by an insured's routine and regular business practices are not considered sudden and accidental. Here, the basement floodings were sudden and accidental events but the storage of PCE powder in cardboard boxes in the dry cleaner's basement was an intentional and regular business practice. The court ultimately concluded that the first time the basement flooded, the release of PCE qualified as sudden and accidental, but thereafter the dry cleaner's continued practice of storing PCE in the same manner for 16 years was intentional and the resulting pollution was not accidental. Accordingly, the PCE discharges caused by the flooding were not sudden and accidental, and the insurance policy's pollution exclusions apply. House of Clean, Inc. v. St. Paul Fire and Marine Insurance Co., No. 07-10839, 41 ELR 20200 (D. Mass. May 27, 2011) (Gorton, J.).


NATIONAL FORESTS, ROADLESS RULE:

A district court reinstated the roadless area conservation rule to the Tongass National Forest in southeast Alaska. The court previously ruled on motions for summary judgment that a U.S. Forest Service rule exempting the Tongass from the roadless rule's prohibitions was arbitrary and capricious. The instant decision officially reinstates the roadless rule and vacates the exemption. The court, however, held that the ruling does not impact a number of proposed projects in the area. Organized Village of Kake v. United States Department of Agriculture, No. 1:09-cv-00023 JWS, 41 ELR 20196 (D. Alaska, May 24, 2011) (Sedwick, J.).


USTs, TRESPASS:

A Michigan appellate court reversed the dismissal of a property owner's trespass claim against a prior owner of the site, but upheld the dismissal of the remaining tort and state law claims stemming from the discovery of USTs on the site. The owner filed suit against two prior owners, arguing that both defendants were liable under Michigan's Natural Resources and Environmental Protection Act (NREPA) for the cost of removing the USTs. But any liability by defendants for the owner's cleanup costs extends only to remediation activities that were "necessary costs of response activity." The owner alleged that it incurred costs and expenses to remove the USTs and other equipment from the property, but it did not allege that its response activities were necessary to protect human health and the environment. Accordingly, the lower court did not err in dismissing the owner's NREPA claims. Nor did the lower court err in dismissing the owner's breach of contract and negligence claims. But the court erred in dismissing the owner's trespass claim on statute of limitations grounds. The continued presence of a pipeline on the owner's property is not merely the continuing effect of a past intrusive act. Rather, it is a continuing physical intrusion that remains on the property, allegedly interfering with the owner's use and enjoyment of the property. Taylor Land Group, LLC v. BP Products North America, Inc., No.94764, 41 ELR 20199 (Mich. Ct. App. May 26, 2011).


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


THE FEDERAL AGENCIES

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


AIR:



  • EPA finalized the confidentiality determinations for certain data elements required to be reported under the Mandatory Greenhouse Gas Reporting Rule. 76 FR 30782 (5/26/11).

  • EPA granted Maine the authority to implement and enforce its amended Dry Cleaner Rule in place of the federal NESHAP for perchloroethylene dry cleaning facilities. 76 FR 30545 (5/26/11).

  • EPA proposed to grant Maine the authority to implement and enforce its amended Dry Cleaner Rule in place of the federal NESHAP for perchloroethylene dry cleaning facilities; see above for direct final rule. 76 FR 30604 (5/26/11).

  • EPA announced that it has delegated to Pennsylvania the authority to implement and enforce 12 additional NESHAPs for area sources. 76 FR 30703 (5/26/11).

  • EPA announced that it has delegated to Virginia the authority to implement and enforce additional or revised NESHAPs and new source performance standards. 76 FR 30703 (5/26/11).

  • SIP Approvals: Alabama/Georgia/Tennessee (attainment of the 1997 annual fine particulate matter (PM) NAAQS for the Chattanooga nonattainment area) 76 FR 31239 (5/31/11). California (volatile organic compound (VOC) emissions for the Placer County and Ventura County air pollution control districts) 76 FR 30025 (5/24/11); (limited approval of nitrogen oxide revisions for the Santa Barbara County air pollution control district) 76 FR 31242 (5/31/11). Georgia (attainment of the 1997 annual average fine PM NAAQS for the Macon nonattainment area) 76 FR 31858 (6/2/11). Illinois/Missouri (attainment of the 1997 annual fine particulate matter (PM) NAAQS for the Saint Louis nonattainment area) 76 FR 29652 (5/23/11). Massachusetts (delegation of authority for PSD program) 76 FR 31241 (5/31/11). North Carolina/South Carolina (extension of the 1997 eight-hour ozone moderate attainment date for the bi-state Charlotte area to June 15, 2011) 76 FR 31245 (5/31/11). Pennsylvania (control techniques guidelines for paper, film, and foil surface coating processes) 76 FR 29649 (5/23/11); (attainment of the 1997 eight-hour ozone NAAQS for the Pittsburgh-Beaver Valley nonattainment area) 76 FR 31237 (5/31/11); (control techniques guidelines for flat wood paneling surface coating processes) 76 FR 31856 (6/2/11). West Virginia (PSD program) 76 FR 30832 (5/27/11).

  • SIP Proposals: Alabama/Georgia/Tennessee (attainment of the 1997 annual fine PM NAAQS for the Chattanooga and Macon nonattainment areas) 76 FR 31900 (6/2/11). California (VOC emissions for the Placer County and Ventura County air pollution control districts; see above for direct final rule) 76 FR 30080 (5/24/11); (nitrogen oxide and sulfur oxide emissions for the South Coast air quality management district) 76 FR 30896 (5/27/11); (limited approval of interstate transport plan) 76 FR 31263 (5/31/11); (volatile organic compound emissions for the San Joaquin Valley unified air pollution control district and the Imperial County air pollution control district) 76 FR 32113 (6/3/11). Colorado (permit program fees and definition of nitrogen dioxide) 76 FR 30894 (5/27/11). Georgia (attainment of the 1997 annual fine PM NAAQS for the Rome nonattainment area) 76 FR 31898 (6/2/11). Indiana (redesignation to attainment of the 1997 annual fine PM NAAQS for the Evansville nonattainment area) 76 FR 29695 (5/23/11). Ohio/Kentucky/Indiana (attainment of the 1997 annual average fine PM NAAQS for the tri-state Cincinnati-Hamilton nonattainment area) 76 FR 32110 (6/3/11). Utah (attainment of the 1997 ozone NAAQS) 76 FR 29688 (5/23/11). Virginia (revisions to PSD permit program) 76 FR 29686 (5/23/11). Wyoming (attainment of the 1997 ozone NAAQS) 76 FR 29680 (5/23/11); (definition of a cogeneration unit) 76 FR 30600 (5/26/11).

GENERAL:



  • The Federal Highway Administration transferred to the state of Utah the responsibility for the preparation of EAs and EISs under NEPA for federal-aid highway projects. 76 FR 30995 (5/27/11).

HAZARDOUS & SOLID WASTE:



  • EPA entered into a settlement under CERCLA concerning the East Calloway County Middle School Mercury Spill site in Murray, Kentucky, that requires payment of past U.S. response costs incurred at the site. 76 FR 30152 (5/24/11).

  • EPA entered into a proposed administrative settlement under CERCLA that requires the settling party to sell the Agawam Sportsman's Club Superfund site in Massachusetts and to distribute 90% of the proceeds to the United States for past response costs incurred at the site and 10% to the city of Agawam for property tax arrears. 76 FR 32202 (6/3/11).

  • EPA withdrew rulemaking that granted a site-specific treatment variance to U.S. Ecology Nevada in Beatty, Nevada, and withdrew an existing site-specific treatment variance issued to Chemical Waste Management, Inc. in Kettleman Hills, California, due to adverse comment. 76 FR 30027 (5/24/11).

MINING:



  • OSM approved an amendment to Alabama's regulatory program under SMCRA regarding license fees, annual license updates, and blaster certification fees. 76 FR 30008 (5/24/11).

  • OSM approved an amendment to Montana's regulatory program under SMCRA regarding bond release responsibility periods for water management facilities and other support facilities. 76 FR 30010 (5/24/11).

WATER:



  • EPA announced the availability of a final report titled, Problem Formulation for Human Health Risk Assessments of Pathogens in Land-Applied Biosolids. 76 FR 30705 (5/26/11).

  • EPA proposed to approve Maine's NPDES program to include the permitting of all discharges within the Indian territories of the Penobscot Nation and the Passamaquoddy Tribe. 76 FR 29747 (5/23/11).

WILDLIFE:



  • FWS seeks public comment and information to prepare a draft National Fish, Wildlife, and Plants Climate Adaptation Strategy to reduce the negative impacts of climate change on fish, wildlife, plants, habitats, and our natural resource heritage. 76 FR 30193 (5/24/11).

  • FWS determined threatened status for the salmon-crested cockatoo throughout its range under the ESA. 76 FR 30758 (5/26/11).

  • FWS reclassified the tulotoma snail from endangered to threatened under the ESA based on a review of its status. 76 FR 31866 (6/2/11).

  • FWS proposed to revise take and take exemption regulations for the Utah prairie dog and seeks public comment on the special rule. 76 FR 31906 (6/2/11).

  • FWS announced a 90-day finding on a petition to list the spot-tailed earless lizard 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 30082 (5/24/11).

  • FWS announced a 90-day finding on a petition to reclassify the Torghar Hills population of straight-horned markhor from endangered to threatened under the ESA; the agency found that reclassification may be warranted and initiated a status review. 76 FR 31903 (6/2/11).

  • FWS announced a 90-day finding on a petition to list the golden-winged warbler as endangered or threatened under the ESA; the agency found that listing may be warranted and initiated a status review. 76 FR 31920 (6/2/11).

  • FWS announced a 12-month finding on a petition to list the Puerto Rican harlequin butterfly as endangered and to designate critical habitat under the ESA; the agency found that listing is warranted but precluded by higher priority actions. 76 FR 31282 (5/31/11).

  • NOAA-Fisheries proposed to extend the current critical habitat and to designate six new areas for the Hawaiian monk seal in the northwestern Hawaiian Islands, except for areas critical to national security. 76 FR 32026 (6/2/11).

  • NOAA-Fisheries determined that listing Atlantic bluefin tuna as threatened or endangered under the ESA is not warranted. 76 FR 31556 (6/1/11).

  • NOAA-Fisheries announced a 90-day finding on a petition to list goliath grouper as threatened or endangered under the ESA; the agency found that listing is not warranted. 76 FR 31592 (6/1/11).

  • FWS proposed to designate approximately 2,984 acres in Orange, Riverside, San Diego, and Ventura Counties, California, as critical habitat for the Riverside fairy shrimp. 76 FR 31686 (6/1/11).

DOJ NOTICES OF SETTLEMENT:



  • In re Caribbean Petroleum Corp., No. 10-12553 (KG) (Bankr. D. Del. May 20, 2011). Settling CERCLA, CWA, Oil Pollution Act, and RCRA defendants responsible for violations at a petroleum distribution terminal in Bayamón, Puerto Rico, must provide the United States with general unsecured claims totaling $18,725,130 and must pay $8,200,000 in U.S. response costs and penalties. 76 FR 30390 (5/25/11).

  • United States v. Rocky Mountain Pipeline System, LLC, No. 11-CV-1188RPM-CBS (D. Colo. May 4, 2011). Settling CAA defendants, whose gasoline blending operations violated Reid vapor pressure standards and fuel registration regulations, must pay a $2.5 million civil penalty and must take actions to prevent future violations of the regulations; one of the defendants must also must install a domed cover on an existing fuel storage tank at its terminal in Dupont, Colorado. 76 FR 30197 (5/24/11).

  • United States v. Halliburton Energy Services, Inc., No. 4-07-CV-3795 (S.D. Tex. May 16, 2011). A settling CERCLA defendant responsible for violations at facilities in Houston, Odessa, and Webster, Texas, must pay $815,000 to the United States and $81,500 to Texas in response costs incurred or to be incurred at the sites. 76 FR 31360 (5/31/11).

  • United States of America v. BASF Corp., No. 3:11-cv-00222 (S.D. Tex. May 13, 2011). A settling CAA defendant that violated SIP, NESHAP, and new stationary source performance requirements at a chemical manufacturing facility in Freeport, Texas, must pay a $500,000 civil penalty and must meet certain injunctive relief requirements. 76 FR 31361 (5/31/11).

  • United States v. Mahard Egg Farm, Inc., No. 3:11-cv-01031-N (N.D. Tex. May 18, 2011). Settling CWA defendants responsible for violations of a concentrated animal feeding operation general permit and related laws and regulations at seven of its facilities in Texas must pay a civil penalty, must take steps to bring each of its facilities into compliance, and must restore the lands to prevent future discharges to area waterways. 76 FR 31361 (5/31/11).

  • United States v. City of Wyandotte, No. 2-11-cv-12181 (E.D. Mich. May 18, 2011). A settling CAA defendant responsible for permit violations at a power plant in Wyandotte, Michigan, must pay a $112,000 civil penalty, must perform a supplemental environmental project at an estimated cost of $210,000, and must install new emission controls and implement operational practices to reduce emissions. 76 FR 31362 (5/31/11).

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


THE CONGRESS

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


Bills Introduced



  • S. 1043 (Graham, R-S.C.) (oil sands) would amend the Energy Independence and Security Act of 2007 to promote the production of petroleum from oil sands. 157 Cong. Rec. S3224 (daily ed. May 23, 2011). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 1057 (Coburn, R-Okla.) (ethanol) would repeal the Volumetric Ethanol Tax Credit. 157 Cong. Rec. S3275 (daily ed. May 24, 2011). The bill was read the first time.

  • S. 1066 (Crapo, R-Idaho) (ESA) would amend the Marine Mammal Protection Act of 1972 to allow importation of polar bear trophies taken in sport hunts in Canada before the date on which the polar bear was determined to be a threatened species under the ESA. 157 Cong. Rec. S3338 (daily ed. May 25, 2011). The bill was referred to the Committee on Commerce, Science, and Transportation.

  • S. 1067 (Udall, D-Colo.) (nuclear power) would amend the Energy Policy Act of 2005 to require the Secretary of Energy to carry out a research and development and demonstration program to reduce manufacturing and construction costs relating to nuclear reactors. 157 Cong. Rec. S3339 (daily ed. May 25, 2011). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 1081 (Murkowski, R-Alaska) (environmental review) would amend titles 23 and 49, U.S. Code, to streamline the environmental review process for highway projects. 157 Cong. Rec. S3426 (daily ed. May 26, 2011). The bill was referred to the Committee on Environment and Public Works.

  • S. 1085 (Inhofe, R-Okla.) (biofuel) would amend the CAA to define "next generation biofuel" and would allow states the option of not participating in the corn ethanol portions of the renewable fuel standard due to conflicts with agricultural, economic, energy, and environmental goals. 157 Cong. Rec. S3426 (daily ed. May 26, 2011). The bill was referred to the Committee on Environment and Public Works.

  • S. 1087 (Barrasso, R-Wyo.) (wilderness) would release wilderness study areas administered by 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 the land use restrictions of the 2001 Roadless Area Conservation Final Rule and the 2005 State Petitions for Inventoried Roadless Area Management Final Rule. 157 Cong. Rec. S3426 (daily ed. May 26, 2011). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 1090 (Alexander, R-Tenn.) (wilderness) would designate as wilderness certain public land in the Cherokee National Forest in the state of Tennessee. 157 Cong. Rec. S3426 (daily ed. May 26, 2011). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 1093 (Udall, D-Colo.) (solar energy) would amend the Internal Revenue Code of 1986 to provide that solar energy property need not be located on the property with respect to which it is generating electricity in order to qualify for the residential energy efficient property credit. 157 Cong. Rec. S3426 (daily ed. May 26, 2011). The bill was referred to the Committee on Finance.

  • S. 1105 (Murray, D-Wash.) (forests) would provide a federal tax exemption for forest conservation bonds. 157 Cong. Rec. S3427 (daily ed. May 26, 2011). The bill was referred to the Committee on Finance.

  • S. 1108 (Sanders, I-Vt.) (solar power) would provide local communities with tools to make solar permitting more efficient. 157 Cong. Rec. S3427 (daily ed. May 26, 2011). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 1115 (Udall, D-N.M.) (infrastructure) would establish centers of excellence for green infrastructure. 157 Cong. Rec. S3427 (daily ed. May 26, 2011). The bill was referred to the Committee on Environment and Public Works.

  • S. 1122 (Menendez, D-N.J.) (toxic substances) would amend title 23, U.S. Code, to establish standards limiting the amounts of arsenic and lead contained in glass beads used in pavement markings. 157 Cong. Rec. S3427 (daily ed. May 26, 2011). The bill was referred to the Committee on Environment and Public Works.

  • S. 1126 (Whitehouse, D-R.I.) (energy) would amend the Energy Independence and Security Act of 2007 to authorize the Secretary of Energy to insure loans for financing of renewable energy systems leased for residential use. 157 Cong. Rec. S3427 (daily ed. May 26, 2011). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 1129 (Barrasso, R-Wyo.) (FLPMA) would amend FLPMA to improve the management of grazing leases and permits. 157 Cong. Rec. S3427 (daily ed. May 26, 2011). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 1133 (Wyden, D-Or.) (dumping) would prevent the evasion of antidumping and countervailing duty orders. 157 Cong. Rec. S3428 (daily ed. May 26, 2011). The bill was referred to the Committee on Finance.

  • S. 1134 (Klobuchar, D-Minn.) (rivers) would authorize the St. Croix River Crossing Project with appropriate mitigation measures to promote river values 157 Cong. Rec. S3428 (daily ed. May 26, 2011). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 1135 (McConnell, R-Ky.) (uranium) would provide for the reenrichment of certain depleted uranium owned by the DOE and for the sale or barter of the resulting reenriched uranium 157 Cong. Rec. S3428 (daily ed. May 26, 2011). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 1140 (Rockefeller, D-W. Va.) (Gulf Coast) would provide for restoration of the coastal areas of the Gulf of Mexico affected by the Deepwater Horizon oil spill 157 Cong. Rec. S3428 (daily ed. May 26, 2011). The bill was referred to the Committee on Commerce, Science, and Transportation.

  • S. 1142 (Tester, D-Mont.) (geothermal resources) would promote the mapping and development of U.S. geothermal resources by establishing a direct loan program for high risk geothermal exploration wells and amend the Energy Independence and Security Act of 2007 to improve geothermal energy technology and demonstrate the use of geothermal energy in large-scale thermal applications 157 Cong. Rec. S3428 (daily ed. May 26, 2011). The bill was referred to the Committee on Energy and Natural Resources.

  • H.R. 1959 (Tonko, D-N.Y.) (oil and gas tax) would deny certain tax benefits to oil and gas companies and invest the savings in clean energy programs. 157 Cong. Rec. H3408 (daily ed. May 24, 2011). The bill was referred to the Committees on Ways and Means, Energy and Commerce, Science, Space, and Technology, and Education and the Workforce.

  • H.R. 1960 (Wittman, R-Va.) (wetlands) would extend the authorization of appropriations for allocation to carry out approved wetlands conservation projects under the North American Wetlands Conservation Act through fiscal year 2017. 157 Cong. Rec. H3408 (daily ed. May 24, 2011). The bill was referred to the Committee on Natural Resources.

  • H.R. 1961 (Boren, D-Okla.) (oil and gas tax) would amend the Internal Revenue Code of 1986 to eliminate the taxable income limit on percentage depletion for oil and natural gas produced from marginal properties. 157 Cong. Rec. H3408 (daily ed. May 24, 2011). The bill was referred to the Committee on Ways and Means.

  • H.R. 1964 (Gerlach, R-Pa.) (land conservation) would amend the Internal Revenue Code of 1986 to make permanent the special rule for contributions of qualified conservation contributions. 157 Cong. Rec. H3408 (daily ed. May 24, 2011). The bill was referred to the Committee on Ways and Means.

  • H.R. 1967 (Holt, D-N.J.) (water) would encourage water efficiency. 157 Cong. Rec. H3409 (daily ed. May 24, 2011). The bill was referred to the Committee on Energy and Commerce, and in addition to the Committees on Oversight and Government Reform, and Armed Services.

  • H.R. 2009 (Bilbray, R-Cal.) (biofuel) would amend the CAA to define "next generation biofuel" and would allow states the option of not participating in the corn ethanol portions of the renewable fuel standard due to conflicts with agricultural, economic, energy, or environmental goals. 157 Cong. Rec. H3754 (daily ed. May 26, 2011). The bill was referred to the Committee on Energy and Commerce.

  • H.R. 2018 (Duncan, R-S.C.) (water pollution) amend the Federal Water Pollution Control Act to allow each state to make determinations relating to the state's water quality standards. 157 Cong. Rec. H3754 (daily ed. May 26, 2011). The bill was referred to the Committee on Transportation and Infrastructure.

  • H.R. 2021 (Gardner, R-Colo.) (air pollution) would amend the CAA regarding air pollution from outer continental shelf activities. 157 Cong. Rec. H3754 (daily ed. May 26, 2011). The bill was referred to the Committee on Energy and Commerce.

  • H.R. 2027 (Cicilline, D-R.I.) (federal land) would revise the boundaries of John H. Chafee Coastal Barrier Resources System Sachuest Point Unit RI-04P, Easton Beach Unit RI-05P, Almy Pond Unit RI-06, and Hazards Beach Unit RI-07 in Rhode Island. 157 Cong. Rec. H3755 (daily ed. May 26, 2011). The bill was referred to the Committee on Natural Resources.

  • H.R. 2030 (Edwards, D-Md.) (infrastructure) would establish centers of excellence for green infrastructure. 157 Cong. Rec. H3755 (daily ed. May 26, 2011). The bill was referred to the Committee on Transportation and Infrastructure and the Committee on Science, Space, and Technology.

  • H.R. 2037 (Grijalva, D-Ariz.) (heritage areas) would establish the Santa Cruz Valley National Heritage Area. 157 Cong. Rec. H3755 (daily ed. May 26, 2011). The bill was referred to the Committee on Natural Resources.

  • H.R. 2054 (Whitfield, R-Ky.) (uranium) would provide for the reenrichment of certain depleted uranium owned by the DOE and for the sale or barter of the resulting reenriched uranium. 157 Cong. Rec. H3756 (daily ed. May 26, 2011). The bill was referred to the Committee on Energy and Commerce.

  • H.R. 2060 (Walden, R-Or.) (rivers) would amend the Wild and Scenic Rivers Act to adjust the Crooked River boundary and provide water certainty for the city of Prineville, Oregon. 157 Cong. Rec. H3805 (daily ed. May 31, 2011). The bill was referred to the Committee on Natural Resources.

  • H.R. 2075 (Engel, D-N.Y.) (nuclear fuel) would require that spent nuclear fuel be stored in certified dry cask storage. 157 Cong. Rec. H3868 (daily ed. June 1, 2011). The bill was referred to the Committee on Energy and Commerce.

  • H.R. 2090 (Hultgren, R-Ill.) (energy) would seek to improve assessments of and research about energy critical elements. 157 Cong. Rec. H3985 (daily ed. June 2, 2011). The bill was referred to the Committees on Science, Space, and Technology, Natural Resources, and Energy and Commerce.

  • H.R. 2095 (Matsui, D-Cal.) (energy conservations) would establish a grant program to assist retail power providers with the establishment and operation of energy conservation programs using targeted residential tree-planting. 157 Cong. Rec. H3985 (daily ed. June 2, 2011). The bill was referred to the Committee on Energy and Commerce.

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:

Alabama
Alaska
Arizona

California
District of Columbia
Idaho

Indiana
Minnesota
Nevada

New Mexico
North Carolina
Oregon

Rhode Island
Tennessee
Virginia

ALABAMA


Water:



ALASKA


Air:



Fisheries:



ARIZONA


Air:



  • The Department of Environmental Quality proposed to amend Ariz. Admin. Code 18.2.18, Clean Car Standards. The change would repeal Arizona's adoption of California's vehicle emissions standards in response to changes to the zero emission vehicle components of the rule. Arizona would adopt the federal program instead. There will be a public hearing June 21, 2011. See http://www.azsos.gov/public_services/Register/2011/20/proposed.pdf (pp. 836-1021).

Water:



  • The Department of Water Resources proposed to amend Ariz. Admin. Code 12.15.7, Assured and Adequate Water Supply. Changes would authorize the Director of the Department to restore an irrigation grandfathered right that was extinguished for assured water supply extinguishment credits during calendar year 2006 or 2007 if the owner of the land to which the right was appurtenant requests the restoration and certain criteria are met. This would allow land owners who extinguished their irrigation rights during the housing boom in anticipation of developing their land prior to the real estate market downturn to use their land for agricultural purposes. There will be a public hearing June 27, 2011. See http://www.azsos.gov/public_services/Register/2011/21/proposed.pdf.

CALIFORNIA


Toxic Substances:



  • The Office of Environmental Health Hazard Assessment proposed to establish a maximum allowable dose level for avermectin B1. The deadline for public comment is July 5, 2011. See http://www.oal.ca.gov/res/docs/pdf/notice/20z-2011.pdf (pp. 834-837)

  • The Office of Environmental Health Hazard Assessment added imazalil to the list of chemicals known to cause cancer for the purposes of Proposition 65. The listing took effect May 20, 2011. See http://www.oal.ca.gov/res/docs/pdf/notice/20z-2011.pdf (pp. 837-855)

  • The Office of Environmental Health Hazard Assessment proposed to add methyl styrene and titanium dioxide to the lists of chemicals known to the state to cause reproductive toxicity and cancer, respectively. The deadline for comment is June 27, 2011. See http://www.oal.ca.gov/res/docs/pdf/notice/21z-2011.pdf (pp. 892-93).

DISTRICT OF COLUMBIA


Water:



IDAHO


Air:



  • The Department of Environmental Quality adopted the temporary Idaho Admin. Code r. 58.01.01, Rules for the Control of Air Pollution in Idaho. The rule alters crop burning rules to regulate smaller crop residue burns differently than large-scale high-fuel content burns. The rule takes effect July 1, 2011. See http://adm.idaho.gov/adminrules/bulletin/bul/11bul/11jun.pdf (pp. 65-69).

  • The Department of Environmental Quality proposed to adopt the temporary Idaho Admin. Code r. 58.01.01, Rules for the Control of Air Pollution in Idaho. The rule would repeal Idaho Administrative Procedures Act (IDAPA) 58.01.01, §199, Electric Generating Unit Construction Prohibition, and IDAPA 58.01.01, §107.03.o, which opted out of the federal Clean Air Mercury Rule. There will be a public hearing July 7, 2011. See http://adm.idaho.gov/adminrules/bulletin/bul/11bul/11jun.pdf (pp. 73-76).

Water:



  • The Department of Lands adopted the temporary Idaho Admin. Code r. 20.07.02, Rules Governing Oil and Gas Conservation in the State of Idaho. The rule sets standards for hydraulic fracturing to protect groundwater in water supply wells adjacent to extraction sites. See http://adm.idaho.gov/adminrules/bulletin/bul/11bul/11jun.pdf (pp. 30-34).

  • The Department of Environmental Quality proposed to adopt the temporary Idaho Admin. Code r. 58.01.04, Rules for Administration of Wastewater Treatment Facilities Grants. Among other rule changes, the temporary rule revises the priority rating criteria for the wastewater planning grants to closely match the Clean Water State Revolving Fund loan criteria. The deadline for comment is June 29, 2011. See http://adm.idaho.gov/adminrules/bulletin/bul/11bul/11jun.pdf (pp. 79-92).

  • The Department of Environmental Quality proposed to adopt the temporary Idaho Admin. Code r. 58.01.04, Rules for Administration of Water Pollution Control Loans. The rule brings regulations in line with requirements that the Department consider system sustainability practices as a measure of fitness for municipalities and districts to receive a loan. The deadline for comment is June 29, 2011. See http://adm.idaho.gov/adminrules/bulletin/bul/11bul/11jun.pdf (pp. 93-110).

INDIANA


Air:



Water:



MINNESOTA


Hazardous & Solid Waste:



  • The Pollution Control Agency proposed to amend Minn. R. 7001 and 7035, Requirements for Certain Landfills that Have Not Received a Permit before January 1, 2011. Changes would provide additional limits on where certain newly permitted landfills may be sited. In addition, changes would incorporate recent legislative actions allowing the agency to prohibit facilities in areas sensitive to groundwater contamination or where karst is likely to develop. There will be a public hearing on June 24, 2011. See http://www.comm.media.state.mn.us/bookstore/stateregister/35_47.pdf (pp. 1809-11).

Water:



NEVADA


Air:



NEW MEXICO


Air:



  • The Environmental Improvement Board amended N.M. Admin. Code §20.2.74. Changes establish baseline dates for particulate matter, sulfur dioxide, and nitrogen dioxide, add to the definition of regulated new source pollutant, and alter the obligations of owners or operators of sources. The rule changes took effect June 3, 2011. See http://www.nmcpr.state.nm.us/nmregister/xxii/xxii10/20.2.74amend.htm.

  • The Environmental Improvement Board amended N.M. Admin. Code §20.2.79. Changes alter the definition of "regulated new source review pollutant," add a definition for "reasonable possibility," and add offset requirements. The rule changes took effect June 3, 2011. See http://www.nmcpr.state.nm.us/nmregister/xxii/xxii10/20.2.79amend.htm.

Energy:



Hazardous & Solid Waste:



NORTH CAROLINA


Water:



OREGON


Energy:



  • The Land Conservation and Development Department proposed to amend Or. Admin. Code 660.033 to adopt permanent rules specifically applicable to siting photovoltaic solar power generation facilities. There will be a public hearing on June 22, 2011. See http://arcweb.sos.state.or.us/rules/June_2011_Bulletin.pdf (pp. 12-13).

Land Use:



  • The Department of Forestry proposed to amend Or. Admin. Code 629.035.0105 to adopt the 2011 Elliott State Forest Management Plan as an administrative rule. There will be a public hearing on June 9, 2011, and the last day for comment is August 1. See http://arcweb.sos.state.or.us/rules/June_2011_Bulletin.pdf (p. 9).

Water:



  • The Department of Environmental Quality proposed to amend Or. Admin. Code 340.045.0100, Revised “Initiation Level” Rule for Persistent Pollutants in Wastewater. Changes would suspend the requirement to develop a reduction plan for cholesterol and coprostanol and allows for the Department to focus the list of pollutants for which permittees that become subject to the rule in the future must monitor. There will be a public hearing on June 15, 2011, and the last day for comment is June 30. See http://arcweb.sos.state.or.us/rules/June_2011_Bulletin.pdf (pp. 8-9).

  • The Land Conservation and Development Department proposed to amend Or. Admin. Code 660.033 to clarify the siting of irrigation reservoirs on farmland. There will be a public hearing on June 22, 2011. See http://arcweb.sos.state.or.us/rules/June_2011_Bulletin.pdf (p. 12).

RHODE ISLAND


Water:



  • The Water Resources Board adopted Details for Regulation Water Use and Efficiency Rule for Major Public Water Suppliers. The rule establishes targets and methods for efficient water use for major public water suppliers and annual reporting requirements for major public water suppliers. The rule takes effect June 14, 2011. See http://sos.ri.gov/documents/archives/regdocs/released/pdf//WRB/6393.pdf.

TENNESSEE


Air:



  • The Environment and Conservation Agency amended Tenn. Admin. Code §1200.03.11, Hazardous Air Contaminants. Changes amend general provisions to add references to propylene carbonate and dimethyl carbonate. The rule takes effect on August 23, 2011. See http://state.tn.us/sos/rules_filings/05-08-11.pdf.

VIRGINIA


Water:



  • The Water Control Board proposed to amend 9 Va. Admin. Code §25.820, General Virginia Pollutant Discharge Elimination System Watershed Permit Regulation for Total Nitrogen and Total Phosphorus Discharges and Nutrient Trading in the Chesapeake Bay Watershed in Virginia. Changes would reduce total nitrogen and total phosphorous waste load allocations for the discharges and nutrient trading in the Chesapeake Bay watershed in Virginia and reissue the existing general permit. There will be a public hearing on July 6, 2011, and the deadline for public comment is July 22. See http://legis.state.va.us/codecomm/register/vol27/iss19/v27i19.pdf (pp. 2133-49).

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


INTERNATIONAL

CHINA FACES WATER CRISIS; THREE GORGES DAM A "FAILURE"

A Chinese official called the Three Gorges Dam a "failure," saying that the project had failed to consider its impact on the environment and has contributed to lower water levels in bodies downstream. While parts of central and southern China are suffering from severe droughts as water levels continue to fall across the country and fish stocks dwindle, a devastating drought in the north and the pollution of the Yellow River--so thick that the river can no longer serve as a drinking supply--has threatened the nation's farmland. The drought, the worst in 50 years, is severely impacting the country; 1,333 hectares of wetlands east of the Dongting Lake have dried up, and migrant bird populations are shrinking, while the Yangtze has seen its lowest rainfall since 1961. The Chinese plan is to divert six trillion gallons of water from the Yangtze to Beijing and other northern cities, a move that could cost $62 billion, force the relocation of hundreds of thousands of villagers, and severely affect the ecology of southern bodies of water. For the full story, see http://www.shanghaidaily.com/nsp/National/2011/06/02/The%2BThree%2BGorges%2BDam%2Bfailure/ and http://www.nytimes.com/2011/06/03/world/asia/03china.html?_r=1&ref=world. For the diversion project, see http://www.nytimes.com/2011/06/02/world/asia/02water.html?_r=3&pagewanted=1&seid=auto&smid=tw-nytenvironment. For the environmental effects of the drought, see http://news.xinhuanet.com/english2010/china/2011-06/03/c_13909416.htm.


ENVIRONMENT WORTH "BILLIONS" TO BRITAIN

Britain's National Ecosystems Assessment released a report last week suggesting that natural resources and a healthy environment were worth billions of pounds to Britain. The report stated that emphasis should be shifted away from producing more food and goods. "Humans rely on the way ecosystems services control our climate--pollution, water quality, pollination--and we're finding out that many of these regulating services are degrading," said Bob Watson, chief scientific adviser to the Department for Environment. He said that around 30% of key ecosystem services are degrading, while fish stocks are below optimum levels and England has the smallest percentage of forest cover anywhere in Europe. Meanwhile, the government announced more details of its plan to issue loans to help people pay for energy saving measures such as home insulation. The law will need to be changed so that energy firms will have to collect repayments from homeowners via their energy bills. For the full story on the ecosystems assessment, see http://www.bbc.co.uk/news/science-environment-13616543. For the story on the energy saving plan, see http://www.bbc.co.uk/news/business-13626406.


CLIMATE DEAL OUT OF REACH; POOR NATIONS NEED TO CUT RED TAPE

There will not be a full climate deal this year, but officials are hopeful that nations can solidify voluntary agreements. A deadlock ensued as developing countries wanted the Kyoto Protocol to be extended until 2012, as Japan, Russia, and China argued for a wider deal. In addition, the United States has argued for a "legal symmetry," placing more in a new deal under which climate targets for China would have equal force to any commitments by the rich. China says its priority must be to grow its economy to end poverty. "In Durban [South Africa] it's almost impossible to see a legally binding agreement, if we take into consideration the positions of many countries including the United States and China," said Akira Yamada, head of Japan's delegation in Bonn, Germany. However, some negotiators said that stop-gap measures may be more effective if countries could agree to hardening voluntary agreements in Durban, such as by attaching a formal time schedule to them. Meanwhile, a U.N. finance guidebook released last week said that developing nations are missing out on opportunities to attract development and fight climate change because of red tape limiting clean energy investment. The guidebook estimated that, with simple steps to avoid limitations to develop, private-sector clean energy investment could rise to $450 billion by 2012 and to $600 billion by 2020. In addition, the head of the U.N. Industrial Development Organization said last week that the world should more than double the use of renewable energy by 2030, rising from the current 13% (which largely comprised of firewood) to 30%. The move would require significant backing from the private sector. For the full story on the lack of a climate deal, see http://www.reuters.com/article/2011/06/02/us-climate-idUSTRE7512RH20110602. For the story on the guidebook, see http://www.reuters.com/article/2011/06/02/us-climate-finance-idUSTRE75136320110602. For the story on rising to 30% renewable energy, see http://www.reuters.com/article/2011/06/02/us-energy-climate-idUSTRE7516UM20110602.


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


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