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Weekly Update Volume 41, Issue 18
THE FEDERAL AGENCIES
IN THE STATES
Leslie Carothers, Publisher
The U.S. Supreme Court held that the CAA displaces any federal common law right to seek abatement of carbon dioxide (CO2) emissions from fossil-fuel fired power plants. A group of states, private land trusts, and a city a filed suit against four power companies and the TVA claiming that their emission of CO2 and other greenhouse gases and their impact on global climate change substantially and unreasonably interfered with public rights in violation of the federal common law of interstate nuisance or, in the alternative, of state tort law. Although the lower court correctly ruled that the plaintiffs had standing and that the political question doctrine did not apply, it erred in ruling that the plaintiffs had stated a claim under the federal common law of nuisance. Congressional legislation excludes the declaration of federal common law where the statute "speaks directly" to the question at issue. Here, the Supreme Court's decision in Massachusetts v. EPA, 549 U.S. 497 (2010), made plain that emissions of CO2 qualify as air pollution subject to regulation under the CAA. And because the CAA provides a means to seek limits on emissions of CO2 from domestic power plants--the same relief the plaintiffs seek by invoking federal common law--it is equally plain that the Act "speaks directly" to emissions of CO2 from the defendants' plants. The plaintiffs argued that federal common law is not displaced until EPA actually exercises its regulatory authority by setting emissions standards for the defendants' plants. But the relevant question for displacement purposes is "whether the field has been occupied, not whether it has been occupied in a particular manner." If EPA does not set emissions limits for a particular pollutant or source of pollution, states and private parties may petition for a rulemaking, and EPA's response will be reviewable in federal court. But there is no room for a parallel track. Ginsburg, J., delivered the opinion of the Court, in which Roberts, C.J., and Scalia, Kennedy, Breyer, and Kagan, JJ., joined. Alito, J., filed an opinion concurring in part and concurring in the judgment, in which Thomas, J., joined. Sotomayor, J., took no part in the consideration or decision of the case. American Electric Power Co. v. Connecticut, No. 10-174, 41 ELR 20210 (U.S. June 20, 2011).
The Seventh Circuit held that an environmental group has standing to challenge a U.S. Army Corps of Engineers permit allowing 18.4 acres of wetlands in a state park to be destroyed to make way for a landfill. A lower court held that the group lacked standing and therefore dismissed the case. It thought that to establish standing the affiants had to attest that they would be so upset by the diminution in their bird- and wildlife-watching activities that they would no longer visit the state park. That is wrong; it is enough to confer standing that their pleasure is diminished even if not to the point that they abandon the site. In addition, if the group can prevent the wetlands' destruction by knocking out the Corps permit, there will be no landfill. Accordingly, a judgment in the groups' favor would eliminate a probable injury from the landfill. No more is necessary to establish standing. American Bottom Conservancy v. U.S. Army Corps of Engineers, No. 10-3488, 41 ELR 20206 (7th Cir. June 14, 2011).
The Fourth Circuit held that the Tax Injunction Act does not bar the owner of a power plant from challenging an excise tax on carbon dioxide emissions. A lower court ruled that it lacked jurisdiction under the Tax Injunction Act because the carbon charge was a tax. But of all the carbon dioxide emitters in the county, only the power plant is expected to be subject to the levy. This is compelling evidence that it is a punitive fee rather than a tax. Moreover, the charge is located squarely within the county's own programmatic efforts to reduce greenhouse gas emissions. Accordingly, the carbon charge, which targets a single emitter and is part of a wide-ranging regulatory program, is a punitive and regulatory fee over which the federal courts retain jurisdiction. Genon Mid-Atlantic, LLC v. Montgomery County, Maryland, No. 10-1882, 41 ELR 20211 (4th Cir. June 20, 2011).
The Seventh Circuit denied environmental groups' petitions challenging EPA's approval of revisions to Wisconsin's new source review program. In 2002, EPA changed the rules that determine when polluters need permits in order to modify existing facilities--and, if they need permits, what restrictions they carry. These new rules were challenged, but the D.C. Circuit ruled in 2005 that the new rules are rational and consistent with the CAA. Wisconsin's latest implementation plan includes features from the 2002 federal regulations, which EPA approved. Convinced that the 2002 revisions will make pollution worse, environmental groups challenged EPA's approval of the plan. But the groups' petitions for review merely repeat arguments that failed to persuade the D.C. Circuit in 2005. In the current litigation, the groups observe that EPA is relying on the same models that it used in 2002 and has no better reason now than it did then to think that a concrete plan, such as Wisconsin’s, will curtail emissions. But if EPA is in the same position as 2002 (and 2005), so are petitioners. As in 2002 and 2005, the models supply substantial evidence for EPA's decision and show that it is neither arbitrary nor capricious. Natural Resources Defense Council v. Jackson, Nos. 09-1405, 10-2123, 41 ELR 20213 (7th Cir. June 16, 2011).
The D.C. Circuit denied medical waste trade associations' petition for review challenging EPA's performance standards for new and existing hospital/medical/infectious waste incinerators (HMIWI). The associations argued that the data set EPA used to establish the standards was flawed. But EPA's decision to use emissions data from the HMIWI units remaining in operation after the implementation of the 1997 standards, once it determined that the data set upon which it had relied in 1997 was flawed, was reasonable. Accordingly, EPA acted lawfully in resetting the maximum achievable control technology floors based on post-compliance emissions. The associations also argued that the Agency's pollutant-by-pollutant approach to setting target emissions levels was impermissible and that the Agency acted arbitrarily when it removed a provision exempting HMIWI from complying with the standards during periods of startup, shutdown, and malfunction. But the associations failed to meet the CAA's procedural requirements with regard to these claims. The court, therefore, lacked jurisdiction. Medical Waste Institute v. Environmental Protection Agency, No. 09-1297, 41 ELR 20216 (D.C. Cir. June 24, 2011).
The First Circuit upheld a FERC order requiring a precision tool and instrument manufacturer to seek licensing under §23(b) of the Federal Power Act before it can proceed with certain changes to a hydroelectric generating facility project on its property. Under §23(b), the company must seek licensing if: (1) its facility is located on a stream over which Congress has Commerce Clause jurisdiction; (2) its proposed changes constitute "post-1935 construction" within the meaning of the Federal Power Act; and (3) the proposed modifications will affect the interests of interstate or foreign commerce. FERC considered the project to be "post-1935 construction" because it would result in an increase in installed capacity. The company countered that because the proposed work was merely a repair and would not increase actual capacity beyond the 1992 installed capacity, it was not "post-1935 construction." But no matter how the capacity was measured, there would be an increase in capacity; both the actual and the installed capacities would be greater than their respective 1992 values. As such, it is a post-1935 construction project. In addition, substantial evidence supports FERC's conclusion that the dam is part of a class of projects that, in the aggregate, impact interstate commerce. Therefore, because there is no doubt that the dam is located on a "commerce clause stream," the licensing procedures of §23(b) apply. In a concurring opinion, one of the judges noted his reluctance to join in the outcome of the decision, writing that the project "is a prime example of efficient usage through a nonpolluting power source and is one that we should be encouraging, not stifling." L.S. Starrett Co. v. Federal Energy Regulatory Commission, No. 10-1470, 41 ELR 20212 (1st Cir. June 15, 2011).
A district court granted in part and denied in part several motions and cross-motions for summary judgment in a cost recovery and contribution action stemming from contamination at a dry cleaning business. The trustee of the property owner's estate filed suit against the former owners and lessees of the site. Among the defendants was the widow of one of the former lessees. The plaintiff insisted that she was an owner and/or operator for purposes of CERCLA because she, along with her husband, countersigned a document in which the original owners of the dry cleaning business assigned their lease to the couple. But to be an “owner,” the person must hold fee title or an equivalent “bundle of rights” in the property. A lease merely confers a possessory interest in property as opposed to title ownership. In addition, the limited evidence presented by plaintiff does not show that the widow had authority to control the cause of the contamination at the time the hazardous substances were released into the environment or that she engaged in hands-on, day-to-day participation in the management of the business. To the contrary, the record establishes that her husband both owned and operated the business. The plaintiff also argued that she was a "covered person" under federal and state environmental laws pursuant to California community property laws. But the plaintiff failed to cite any legal authority for the proposition that her community property or de facto partnership interest in the business necessarily transmutes her into a PRP within the meaning of CERCLA. Wells Fargo Bank NA v. Renz, No. 08-02561, 41 ELR 20209 (N.D. Cal. June 9, 2011) (Armstrong J.).
A district court held that a consent decree settling an electric company's CERCLA liability with EPA and granting it contribution protection against additional CERCLA liability at an industrial site does not provide the company with contribution protection from a defense company's action seeking damages stemming from contamination at a water treatment plant. The consent decree only concerns costs for CERCLA response work and does not encompass the damage the contamination caused to a water company's production wells, or the water treatment systems the water company installed on those wells. The defense company and the electric company both entered consent decrees with EPA concerning CERCLA liability at the site. The defense company also entered a second consent decree involving contamination caused to a nearby water company's production wells and water treatment systems. The defense company now seeks contribution from the non-settling parties for their proportionate shares of the damages it paid to the water company, and the costs it continues to incur to maintain appropriate water treatment systems. The electric company argued that its consent decree with EPA grants it contribution protection from the defense company’s claims. But the consent decree grants the electric company contribution protection against CERCLA response costs only, and the water company liabilities are not CERCLA response costs. United States v. Reuland Electric Co., No. 08-5618, 41 ELR 20208 (C.D. Cal. June 8, 2011) (Collins, J.).
A district court denied a defendant company's motion to dismiss a distribution center's claim for injunctive relief and damages under various causes of action based on environmental contamination on property managed by the defendant. Specifically, the plaintiff alleged that the company is not meeting the requirements of a 20-year old compliance order concerning the property and is seeking an order requiring defendants to “develop and implement an effective remediation plan.” The company argued that the plaintiff failed to state a claim under RCRA’s citizen suit provision. Although the plaintiff's claims may or may not prove to be reasonably possible, it is a factual question that the court cannot resolve at this point. While the plaintiff will have to articulate something much more specific to survive summary judgment, its allegations are sufficient to survive the pleading stage. Alternatively, the company argued that the court should dismiss or stay the action pursuant to the primary jurisdiction doctrine because hearing the claim would require resolving issues that are within the "special competence" of the state environmental agency--the entity that issued the compliance order. But the court cannot yet determine whether the case presents particularly complicated issues committed to the agency's jurisdiction. As such, it retains jurisdiction over the case. Sears, Roebuck & Co. v. Williams Express, Inc., No. 3:10-cv-00221, 41 ELR 20214 (D. Alaska June 8, 2011) (Burgess, J.).
The Federal Claims court denied the United States' motion to dismiss a company's action to recover over $2 million in litigation expenses allegedly owed to it under the indemnification provisions of various contracts the company performed for the U.S. Atomic Energy Commission. The underlying lawsuits arose following the discovery of radiological materials at the Shpack Landfill in Attleboro, Massachusetts. The government argued that the court lacked jurisdiction. To state a claim within the scope of the court’s jurisdiction, a plaintiff is required to demonstrate a right to compensation based on a contract, a money-mandating statute, or the Takings Clause of the U.S. Constitution. In Count I, the company seeks monetary damages based on a contract provision requiring the United States to indemnify it against claims made in connection with its nuclear work for the United States. In Count II, the company identified a statute, the Price-Anderson Act, as a source of indemnification authority for its injuries. Since these are the types of controversies the court is authorized to decide, there is no want of subject matter jurisdiction here. The government argued in the alternative that even if the court has jurisdiction over this matter, it should nevertheless dismiss the company's claims for failure to state a claim upon which relief can be granted. Although the United States is correct that the complaint lacks certain factual allegations, these missing allegations do not render the complaint deficient as a matter of law. Instead of dismissing the case, the court ordered that the company be allowed to amend its complaint. Texas Instruments, Inc. v. United States, No. 09-701C, 41 ELR 20215 (Fed. Cl. June 13, 2011) (Weise, J.).
A California appellate court held that a county's approval of a development project violated the California Environmental Quality Act (CEQA). The project included a mix of residential, commercial, and light industrial uses plus areas for open space and recreation as well as other public uses. The proposal stated the development would contain up to 5,200 dwelling units and estimated it would accommodate 13,850 people with a school-age population of about 3,200 students. A school district challenged the county's approval of the project, claiming that the environmental impact report (EIR) failed to comply with CEQA. A lower court denied the district' petition for review, but the appellate court reversed, finding that the district's claim has merit. The EIR inadequately analyzes the project’s potential environmental impacts during the period when students from the new development would attend existing, offsite schools (i.e., before schools are built within the project area to accommodate those students), including increases in traffic near and on the way to existing schools and environmental impacts from the construction of additional facilities at existing schools. The school district, however, failed to demonstrate that the project was inconsistent with county's general plan in violation of the California Planning and Zoning Law. Chawanakee Unified School District v. County of Madera, No. F059382, 41 ELR 20207 (Cal. App. 4th Dist. June 21, 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 amended the NESHAP for the plating and polishing area source category to exclude bench-scale activities. 76 FR 35744 (6/20/11).
- EPA proposed changes to the calculation and monitoring provisions of the Mandatory Greenhouse Gas Reporting Rule for large semiconductor manufacturing facilities. 76 FR 36472 (6/22/11).
- EPA proposed to amend the NESHAP for the plating and polishing area source category to exclude bench-scale activities. 76 FR 35806 (6/20/11).
- EPA entered into a proposed consent decree in WildEarth Guardians v. Jackson, No. 4:11-cv-02205-SI (N.D. Cal.), that establishes deadlines for the Agency to take action on Arizona's SIP for the 1997 eight-hour ozone nonattainment area of Phoenix-Mesa. 76 FR 34982 (6/15/11).
- EPA entered into a proposed consent decree in WildEarth Guardians v. Jackson, No. 1:11-cv-0001-CMA-MEH (D. Colo.), that establishes deadlines for the Agency to take action on SIPs for Colorado, North Dakota, and Wyoming and on FIPs for Colorado, Montana, North Dakota, and Wyoming, all concerning regional haze or excess emissions. 76 FR 34983 (6/15/11).
- EPA determined that California Air Resources Board amendments meet the requirements for a waiver of preemption for California's motor vehicle greenhouse gas (GHG) emissions program. 76 FR 34693 (6/14/11).
- SIP Approvals: California (regional haze program and interstate transport plan) 76 FR 34608 (6/14/11); (regional haze program and interstate transport plan) 76 FR 34872 (6/15/11). Georgia (attainment of the 1997 eight-hour ozone NAAQS for the Atlanta nonattainment area) 76 FR 36873 (6/23/11). Idaho (regional haze program and interstate transport plan) 76 FR 36329 (6/22/11). South Carolina (PSD and nonattainment new source review requirements) 76 FR 36875 (6/23/11). Virginia (NAAQS for nitrogen dioxide (NO2)) 76 FR 36326 (6/22/11).
- SIP Proposals: California (volatile organic compounds (VOCs) for the San Joaquin Valley unified air pollution control district) 76 FR 35167 (6/16/11); (nitrogen oxide and particulate matter emissions from glass melting furnaces. 76 FR 37044 (6/24/11). Indiana (GHG thresholds for PSD program) 76 FR 35380 (6/17/11). Indiana/Kentucky (attainment of the 1997 annual fine particulate matter NAAQS for the Louisville nonattainment area) 76 FR 34935 (6/15/11). Nevada (regional haze program) 76 FR 36450 (6/22/11). New Hampshire (GHG thresholds for PSD program) 76 FR 34630 (6/14/11). North Carolina (emission limitations from smokestacks) 76 FR 36468 (6/22/11). Virginia (NAAQS for NO2; see above for direct final rule) 76 FR 36471 (6/22/11).
HAZARDOUS & SOLID WASTE:
- EPA issued revised land disposal restriction treatment standards for hazardous wastes from the production of carbamates and carbamate commercial chemical products. 76 FR 34147 (6/13/11).
- EPA proposed to revise land disposal restriction treatment standards for hazardous wastes from the production of carbamates and carbamate commercial chemical products; see above for direct final rule. 76 FR 34200 (6/13/11).
- EPA authorized revisions to Louisiana's hazardous waste program under RCRA. 76 FR 37021 (6/24/11).
- EPA gave final authorization to Minnesota's hazardous waste management program under RCRA. 76 FR 36879 (6/23/11).
- EPA proposed to authorize revisions to Louisiana's hazardous waste program under RCRA; see above for direct final rule. 76 FR 37048 (6/24/11).
- EPA seeks public comment on a proposed purchaser agreement amendment under CERCLA that requires Blue Marlin Associates to conduct a vapor intrusion study at the Fischer & Porter Superfund site in Bucks County, Pennsylvania, and to take appropriate remedial measures, if necessary. 76 FR 34229 (6/13/11).
- OSM gave partial approval to an amendment to Wyoming's regulatory program under SMCRA concerning vegetation requirements and performance standards. 76 FR 34816 (6/14/11).
- OSM seeks public comment on a proposed amendment to Colorado's regulatory program under SMCRA concerning valid existing rights, ownership and control, and other regulatory issues. 76 FR 36039 (6/21/11).
- OSM seeks public comment on a proposed amendment to Wyoming's regulatory program under SMCRA concerning noncoal mine waste, valid existing rights, and individual civil penalties. 76 FR 36040 (6/21/11).
- EPA proposed to synchronize the expiration dates of EPA pesticide applicator certificates with the state or tribal applicator certificates on which they are based. 76 FR 37045 (6/24/11).
- EPA approved 11 alternative testing methods for use in measuring the levels of contaminants in drinking water. 76 FR 37014 (6/24/11).
- FWS reinstated the Virginia northern flying squirrel as endangered under the ESA as the result of a ruling in Friends of Blackwater v. Salazar, 1:09-cv-02122-EGS (D.D.C. Mar. 25, 2011). 76 FR 35349 (6/17/11).
- FWS established a nonessential experimental population of bull trout in the Clackamas River and its tributaries in Clackamas and Multnomah Counties, Oregon. 76 FR 35979 (6/21/11).
- FWS announced a 90-day finding on a petition to list the Utah population of the Gila monster as an endangered or a threatened distinct population segment and to designate critical habitat under the ESA; the agency found that listing is not warranted. 76 FR 36049 (6/21/11).
- FWS announced a revised 90-day finding on a petition to reclassify the Utah prairie dog from threatened to endangered under the ESA; the agency determined that reclassification is not warranted. 76 FR 36053 (6/21/11).
DOJ NOTICE OF SETTLEMENTS:
- United States v. Tecumseh Products Co., No. 1:03-cv-00401 (E.D. Wis. June 13, 2011). Settling CERCLA defendants must finance and perform the remainder of the remedial action at the Sheboygan River and Harbor Superfund site in Sheboygan County, Wisconsin, at an estimated cost of $12.6 million and must pay EPA's oversight costs. 76 FR 37152 (6/24/11).
- United States v. Eddie's Service Station, No. 5:10-cv-6126 (E.D. Mo. June 20, 2011). Settling CWA defendants that discharged pollutants without a permit into waters of the United States must pay a civil penalty, must conduct a mitigation project, and must enter into several environmental covenants on the affected property. 76 FR 37153 (6/24/11).
- United States v. Swift Beef Co., No. 8:11-cv-216 (D. Neb. June 16. 2011). A settling CWA defendant responsible for violations at its beef processing plant in Grand Island, Nebraska, must pay a $1,300,000 civil penalty in response costs incurred by the United States and Nebraska and must undertake injunctive measures to prevent future violations. 76 FR 36577 (6/22/11).
- United States v. Hecla Ltd., No. 96-0122-N-EJL (D. Idaho June 13, 2011). A settling CERCLA and CWA defendant responsible for violations at the Bunker Hill Mining and Metallurgical Complex Superfund site in the Coeur d'Alene Basin watershed in Idaho must pay $263.4 million, plus interest, in past and future response costs to the United States, the Coeur d'Alene Tribe, and Idaho and must coordinate future mining operations with EPA's cleanup activities in the Coeur d'Alene Basin. 76 FR 35470 (6/17/11).
- United States v. Bunge North America, Inc., No. 2:06-cv-02209-MPM-DGB (C.D. Ill. June 14, 2011). Under a modified 2007 consent decree, a settling CAA defendant responsible for violations at its soybean and corn processing facility in Decatur, Indiana, must perform two substitute projects to reduce emissions in place of the original wastewater recovery project. 76 FR 35471 (6/17/11).
- United States v. Polar Industries, Inc., No. 3:11-cv-00915 (D. Conn. June 7, 2011). A settling CAA defendant responsible for violations at its foam block manufacturing facility in Prospect, Connecticut, must pay a $102,000 civil penalty and must install controls at its plant to reduce VOC emissions. 76 FR 35238 (6/16/11).
Copyright© 2011, Environmental Law Institute, Washington, D.C. All rights reserved.
Note: Citations below are to the Congressional Record (Cong. Rec.).
- H.R. 2021 (CAA), which would amend the CAA regarding air pollution from outer continental shelf activities, was passed by the House. 157 Cong. Rec. H4378 (daily ed. June 22, 2011).
- H.R. 872 (pesticides) was reported by the Committee on Transportation and Infrastructure. 157 Cong. Rec. S3970 (daily ed. June 21, 2011). The bill would amend FIFRA and the Federal Water Pollution Control Act to clarify congressional intent regarding the regulation of the use of pesticides in or near navigable waters.
- H.R. 2021 (CAA) was reported by the Committee on Energy and Commerce. H. Rep. No. 112-108, 157 Cong. Rec. H4325 (daily ed. June 16, 2011). The bill would amend the CAA regarding air pollution from outer continental shelf activities.
- S. 1182 (Hatch, R-Utah) (federal land) would prohibit the further extension or establishment of national monuments in Utah except by express authorization of Congress. 157 Cong. Rec. S3727 (daily ed. June 13, 2011). The bill was referred to the Committee on Energy and Natural Resources.
- S. 1183 (Collins, R-Me.) (mercury) would establish a national mercury monitoring program. 157 Cong. Rec. S3727 (daily ed. June 13, 2011). The bill was referred to the Committee on Environment and Public Works.
- S. 1191 (Lieberman, I-Conn.) (federal land) would direct the Secretary of the Interior to carry out a study regarding the suitability and feasibility of establishing the Naugatuck River Valley National Heritage Area in Connecticut. 157 Cong. Rec. S3773 (daily ed. June 14, 2011). The bill was referred to the Committee on Energy and Natural Resources.
- S. 1197 (Coats, R-Ind.) (water infrastructure) would provide for a feasibility study before carrying out any federal action relating to the Chicago Area Water System. 157 Cong. Rec. S3812 (daily ed. June 15, 2011). The bill was referred to the Committee on Environment and Public Works.
- S. 1198 (Kerry, D-Mass.) (federal land) would reauthorize the Essex National Heritage Area. 157 Cong. Rec. S3812 (daily ed. June 15, 2011). The bill was referred to the Committee on Energy and Natural Resources.
- S. 1201 (Lieberman, I-Conn.) (fish habitats) would conserve fish and aquatic communities in the United States through partnerships that foster fish habitat conservation to improve the quality of life for the people of the United States. 157 Cong. Rec. S3812 (daily ed. June 15, 2011). The bill was referred to the Committee on Environment and Public Works.
- S. 1204 (Udall, D-Colo.) (energy) would amend title 10, U.S. Code, to reform U.S. Department of Defense energy policy. 157 Cong. Rec. S3813 (daily ed. June 15, 2011). The bill was referred to the Committee on Armed Services.
- S. 1215 (Kerry, D-Mass.) (federal land) would provide for the exchange of land located in the Lowell National Historical Park. 157 Cong. Rec. S3891 (daily ed. June 16, 2011). The bill was referred to the Committee on Energy and Natural Resources.
- S. 1224 (Bingaman, D-N.M.) (fisheries) would amend Pub. L. No. 106-392 to maintain annual base funding for the Upper Colorado and San Juan fish recovery program through fiscal year 2023. 157 Cong. Rec. S3891 (daily ed. June 16, 2011). The bill was referred to the Committee on Energy and Natural Resources.
- S. 1226 (Murkowski, R-Alaska) (CAA) would amend the CAA to address air pollution from outer continental shelf activities. 157 Cong. Rec. S3891 (daily ed. June 16, 2011). The bill was referred to the Committee on Environment and Public Works.
- S. 1249 (Udall, D-Colo.) (wildlife) would amend the Pittman-Robertson Wildlife Restoration Act to facilitate the establishment of additional or expanded public target ranges in certain states. 157 Cong. Rec. S4023 (daily ed. June 22, 2011). The bill was referred to the Committee on Environment and Public Works.
- S. 1265 (Bingaman, D-N.M.) (land and water conservation) would amend the Land and Water Conservation Fund Act of 1965 to provide consistent and reliable authority for, and for the funding of, the land and water conservation fund to maximize the effectiveness of the fund for future generations. 157 Cong. Rec. S4075 (daily ed. June 23, 2011). The bill was referred to the Committee on Energy and Natural Resources.
- S. 1266 (Carper, D-Del.) (river conservation) would direct the Secretary of the Interior to establish a program to build on and help coordinate funding for the restoration and protection efforts of the Four-State Delaware River Basin region. 157 Cong. Rec. S4075 (daily ed. June 23, 2011). The bill was referred to the Committee on Environment and Public Works.
- S. 1270 (Whitehouse, D-R.I.) (e-waste) would prohibit the export from the United States of certain electronic waste. 157 Cong. Rec. S4076 (daily ed. June 23, 2011). The bill was referred to the Committee on Environment and Public Works.
- S. 1277 (Cantwell, D-Wash.) (biodiesel) would amend the Internal Revenue Code of 1986 to modify the incentives for the production of biodiesel. 157 Cong. Rec. S4076 (daily ed. June 23, 2011). The bill was referred to the Committee on Finance.
- H.R. 2147 (Bishop, R-Utah) (federal land) would prohibit the further extension or establishment of national monuments in Utah except by express authorization of Congress. 157 Cong. Rec. H4074 (daily ed. June 13, 2011). The bill was referred to the Committee on Natural Resources.
- H.R. 2150 (Hastings, R-Wash.) (Alaska drilling) would amend the Naval Petroleum Reserves Production Act of 1976 to direct the Secretary of the Interior to lease oil and gas in the National Petroleum Reserve in Alaska, including at least one lease sale in the reserve each year in the period 2011 through 2021. 157 Cong. Rec. H4074 (daily ed. June 13, 2011). The bill was referred to the Committee on Natural Resources.
- H.R. 2157 (McKeon, R-Cal.) (federal land) would facilitate a land exchange involving certain National Forest System lands in the Inyo National Forest. 157 Cong. Rec. H4075 (daily ed. June 13, 2011). The bill was referred to the Committee on Natural Resources.
- H.R. 2170 (Hastings, R-Wash.) (renewable energy) would streamline federal review to facilitate renewable energy projects. 157 Cong. Rec. H4185 (daily ed. June 14, 2011). The bill was referred to the Committee on Natural Resources.
- H.R. 2171 (Labrador, R-Idaho) (geothermal energy) would promote timely exploration for geothermal resources under existing geothermal leases. 157 Cong. Rec. H4185 (daily ed. June 14, 2011). The bill was referred to the Committee on Natural Resources.
- H.R. 2172 (Noem, R-S.D.) (wind energy) would facilitate the development of wind energy resources on federal lands. 157 Cong. Rec. H4185 (daily ed. June 14, 2011). The bill was referred to the Committee on Natural Resources and the Committee on Agriculture.
- H.R. 2173 (Wittman, R-Va.) (wind energy) would facilitate the development of offshore wind energy resources. 157 Cong. Rec. H4186 (daily ed. June 14, 2011). The bill was referred to the Committee on Natural Resources.
- H.R. 2174 (DeLauro, D-Conn.) (federal land) would direct the Secretary of the Interior to carry out a study regarding the suitability and feasibility of establishing the Naugatuck River Valley National Heritage Area in Connecticut. 157 Cong. Rec. H4186 (daily ed. June 14, 2011). The bill was referred to the Committee on Natural Resources.
- H.R. 2176 (Heinrich, D-N.M.) (BLM) would dedicate a portion of the rental fees from wind and solar energy projects on federal land under the jurisdiction of the BLM for the administrative costs of processing applications for new wind and solar projects. 157 Cong. Rec. H4186 (daily ed. June 14, 2011). The bill was referred to the Committee on Natural Resources.
- H.R. 2184 (Coffman, R-Colo.) (rare earth) would establish the Rare Earth Policy Task Force and direct the Secretary of the Interior to develop a plan to ensure the long-term supply of rare earth materials. 157 Cong. Rec. H4276-77 (daily ed. June 15, 2011). The bill was referred to the Committee on Natural Resources and the Committee on Science, Space, and Technology.
- H.R. 2196 (Markey, D-Mass.) (renewable energy) would direct the President, using the Western Area Power Administration, to acquire renewable energy in amounts sufficient to ensure that, of the total amount of electric energy the federal government consumes during any fiscal year, certain minimum amounts shall be renewable energy. 157 Cong. Rec. H4277 (daily ed. June 15, 2011). The bill was referred to the Committee on Oversight and Government Reform, and in addition to the Committee on Natural Resources.
- H.R. 2208 (McNerney, D-Cal.) (energy efficiency) would incorporate smart grid capability into the Energy Star Program, reduce peak electric demand, and reauthorize an energy efficiency public information program to include Smart Grid information. 157 Cong. Rec. H4326 (daily ed. June 16, 2011). The bill was referred to the Committee on Energy and Commerce.
- H.R. 2209 (Benishek, R-Mich.) (forests) would replace the current Forest Service administrative appeals process with a pre-decisional administrative review process modeled after the successful approach used in the Healthy Forests Restoration Act of 2003. 157 Cong. Rec. H4326 (daily ed. June 16, 2011). The bill was referred to the Committee on Agriculture.
- H.R. 2210 (Cohen, D-Tenn.) (wildlife) would amend title 18, U.S. Code, to prohibit certain interstate conduct relating to exotic animals and certain computer-assisted remote hunting. 157 Cong. Rec. H4326 (daily ed. June 16, 2011). The bill was referred to the Committee on the Judiciary.
- H.R. 2231 (Noem, R-S.D.) (ethanol) would amend the Internal Revenue Code of 1986 to terminate the ethanol tax credits. 157 Cong. Rec. H4327 (daily ed. June 16, 2011). The bill was referred to the Committee on Ways and Means and the Committee on the Budget.
- H.R. 2238 (Schock, R-Ill.) (biodiesel) would amend the Internal Revenue Code of 1986 to modify the incentives for the production of biodiesel. 157 Cong. Rec. H4327 (daily ed. June 16, 2011). The bill was referred to the Committee on Ways and Means.
- H.R. 2240 (Tsongas, D-Mass.) (federal land) would authorize the exchange of land or interest in land between Lowell National Historical Park and the city of Lowell in Massachusetts. 157 Cong. Rec. H4327 (daily ed. June 16, 2011). The bill was referred to the Committee on Natural Resources.
- H.R. 2250 (Griffith, R-Va.) (EPA) would provide additional time for the Administrator of EPA to issue achievable standards for industrial, commercial, and institutional boilers, process heaters, and incinerators. 157 Cong. Rec. H4363 (daily ed. June 21, 2011). The bill was referred to the Committee on Energy and Commerce.
- H.R. 2273 (McKinley, R-W. Va.) (coal beneficial use) would amend subtitle D of the Solid Waste Disposal Act to facilitate recovery and beneficial use, and provide for the proper management and disposal, of materials generated by the combustion of coal and other fossil fuels. 157 Cong. Rec. H4455 (daily ed. June 22, 2011). The bill was referred to the Committee on Energy and Commerce.
- H.R. 2284 (Gene Green, D-Tex.) (e-waste) would prohibit the export from the United States of certain electronic waste. 157 Cong. Rec. H4456 (daily ed. June 22, 2011). The bill was referred to the Committee on Energy and Commerce and the Committee on Science, Space, and Technology
- H.R. 2304 (Wittman, R-Va.) (fisheries) would amend the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2006 to provide the necessary scientific information to properly implement annual catch limits. 157 Cong. Rec. H4457 (daily ed. June 22, 2011). The bill was referred to the Committee on Natural Resources.
- H.R. 2307 (Herger, R-Cal.) (ethanol) repeal the tax credits for ethanol blenders and repeal the tariff on imported ethanol. 157 Cong. Rec. H4526 (daily ed. June 23, 2011). The bill was referred to the Committee on Ways and Means.
- H.R. 2317 (Wu, D-Or.) (infrastructure) would promote green transportation infrastructure through research and development. 157 Cong. Rec. H4526 (daily ed. June 23, 2011). The bill was referred to the Committee on Science, Space, and Technology.
- H.R. 2325 (Carney, D-Del.) (river conservation) would direct the Secretary of the Interior to establish a program to build on and help coordinate funding for restoration and protection efforts of the Four-State Delaware River Basin region. 157 Cong. Rec. H4526 (daily ed. June 23, 2011). The bill was referred to the Committee on Natural Resources and the Committee on Transportation and Infrastructure.
- H.R. 2336 (Pingree, D-Me.) (rivers) would amend the Wild and Scenic Rivers Act to designate segments of the York River and associated tributaries for study for potential inclusion in the National Wild and Scenic Rivers System. 157 Cong. Rec. H4527 (daily ed. June 23, 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:
|South Dakota||Washington||West Virginia|
- The Air Resources Board proposed to amend Cal. Code Regs. tit. 17, §94006, relating to the list of equipment defects that substantially impair the effectiveness of gasoline vapor recovery systems. The defects listed are substantial enough to warrant the removal of the fueling point from service until the defect is repaired. Changes would incorporate defects certified in executive orders and add new defect verification procedures. The deadline for comment is July 20, 2011. See http://www.oal.ca.gov/res/docs/pdf/notice/24z-2011.pdf (pp. 963-66).
- The Air Pollution Control Board amended 326 Ind. Admin. Code 2.7.1, relating to the definition of "major source" under the tailoring rule. Changes took effect June 25, 2011. See http://www.in.gov/legislative/iac/20110622-IR-326110085FRA.xml.pdf.
- The Natural Resources Commission amended 312 Ind. Admin. Code §9.5.4 to remove the four-toed salamander from, and add the plains leopard frog and mole salamander to, the list of endangered species of reptiles and amphibians. The rule takes effect July 15, 2011. See http://www.in.gov/legislative/iac/20110615-IR-312110196PRA.xml.pdf.
- The Department of Environmental Protection proposed to amend Ch. 375, No Adverse Environmental Effect Standard of the Site Location Law, §10, Control of Noise, Sound Level Limits and Measurements for Wind Turbine Projects. There will be a public hearing on July 7, 2011, and the deadline for comment is July 18. See http://www.maine.gov/sos/cec/rules/notices/2011/061511.html.
- The Department of Environmental Protection proposed to amend Ch.10, Land Use Districts and Standards, to allow permit subdivisions for maple sugar processing operations. The deadline for comment is July 15. See http://www.maine.gov/sos/cec/rules/notices/2011/061511.html.
Hazardous & Solid Waste:
- The Pollution Control Agency proposed to modify the statewide general permit governing composting of up to 1,500 cubic yards of petroleum contaminated soil. The deadline for public comment is July 13, 2011. See http://www.comm.media.state.mn.us/bookstore/stateregister/35_50.pdf (pp. 1950-51).
- The Department of Environmental Quality proposed amendments to Mont. Admin. R. 17.56.308 through 17.56.310, pertaining to operating tags and delivery prohibition for USTs. There will be a public hearing on July 15, 2011, and the deadline for written comment is July 21. See http://sos.mt.gov/arm/Register/archives/MAR2011/MAR11-12.pdf (pp. 1048-52).
- The Department of Environmental Quality amended 129 Neb. Admin. Code §018.028, Nebraska Air Quality Regulations. Changes alter the dates of construction for which certain rules apply and add documents incorporated by reference. The rule took effect June 15, 2011. See http://www.sos.state.ne.us/rules-and-regs/regtrack/proposals/0000000000000924.pdf.
- The Department of Environmental Conservation amended N.Y. Comp. Codes R. & Regs. tit. 6, §§200, 201 and 231, pertaining to particulate matter. The change is an emergency rule to allow the department to comply with federal new source review rules from 2008 and 2010. See http://www.dos.state.ny.us/info/register/2011/jun15/pdfs/rules.pdf (pp. 14-21).
- The Environmental Protection Agency proposed amendments to Ohio Admin. Code 3745.71, related to the control of lead emissions from industrial sources. Changes would replace §01 with new text based on Legislative Service Commission requirements, rescind §§04 & 05, and amend §03 for consistency with NAAQS for lead. There will be a public hearing on July 14, 2011. See http://www.registerofohio.state.oh.us/pdfs/phn/3745_NO_139179_20110606_1302.pdf.
- The Department of Environmental Quality amended Okla. Admin. Code §252:611, General Water Quality. Changes, which establish fees for certifications required to be issued by the state, go into effect July 1, 2011. See http://www.oar.state.ok.us/register/Volume-28_Issue-19.htm#a272686.
- The Department of Environmental Quality adopted Okla. Admin. Code §252:616.3, Industrial Wastewater Systems. Changes establish application fees for non-discharging industrial wastewater systems required to be permitted by the Department. The rule becomes effective July 1, 2011. See http://www.oar.state.ok.us/register/Volume-28_Issue-19.htm#a274954.
- The Department of Environmental Quality adopted Okla. Admin. Code §252.621, Non-Industrial Flow-Through and Public Water Supply Lagoons Including Land Application. Changes reduce the maximum slope of a wastewater land application site from 10% to no more than 5%. The rule takes effect July 1, 2011. See http://www.oar.state.ok.us/register/Volume-28_Issue-19.htm#a281367.
- The Department of Environmental Quality amended Okla. Admin. Code §252.656, Water Pollution Control Facility Construction Standards. Changes limit who is eligible to obtain a wastewater construction permit, make the requirements for variances from construction standards in this chapter consistent with the proposed variance requirements in Okla. Admin. Code §252:626 (Public Water Supply Construction Standards), and require disinfection from lagoon systems that discharge to "waters of the state" where beneficial use of the receiving water body is designated in Oklahoma's Water Quality Standards (Okla. Admin. Code §785:45) as either "Primary Body Contact Recreational" or "Public or Private Water Supply," in addition to other changes. See http://www.oar.state.ok.us/register/Volume-28_Issue-19.htm#a310280.
- The Department of Environment and Natural Resources proposed to repeal the chapter on Construction of Control Facilities for water supply and treatment systems. There will be a public hearing on July 13, 2011. See http://legis.state.sd.us/rules/register/06202011.pdf (pp. 239-40).
- The Forest Practices Board amended Wash. Admin. Code §222, relating to forest biomass harvest, watershed analysis reviews, and the addition of threatened or endangered species habitat in the riparian open space program. Changes took effect June 20, 2011. See http://apps.leg.wa.gov/documents/laws/wsr/2011/12/11-12-009.htm.
- The Division of Air Quality proposed to amend W. Va. Admin. Code §22.5.4, Ambient Air Quality Standards, Permits for Construction and Major Modification of Major Stationary Sources for the Prevention of Significant Deterioration of Air Quality, Standards of Performance for New Stationary Sources, Control of Air Pollution from Combustion of Solid Waste, and five other sections. In addition, the Division proposed the repeal of the Greenhouse Gas Emissions Inventory Program. There will be a public hearing on July 11, 2011. See http://www.sos.wv.gov/administrative-law/register/Documents/2011/061011.pdf (pp. 851-54) for the notice and http://www.dep.wv.gov/pio/Pages/Rules.aspx for the proposed rules.
- The Environmental Protection Secretary's Office proposed to amend the Voluntary Remediation and Redevelopment Rule. There will be a public hearing July 12, 2011. See http://www.sos.wv.gov/administrative-law/register/Documents/2011/061711.pdf (p. 915).
Solid & Hazardous Waste:
- The Division of Water and Waste Management proposed to amend the Solid Waste Management Rule. There will be a public hearing July 12, 2011. See http://www.sos.wv.gov/administrative-law/register/Documents/2011/061711.pdf (p. 917).
- The Division of Water and Waste Management proposed to amend the Hazardous Waste Management Rule. Changes add waste transportation by roads and highways to governance under West Virginia Public Service Commission rules and add RCRA requirements to permit approval processes, among other changes. There will be a public hearing July 12, 2011. See http://www.sos.wv.gov/administrative-law/register/Documents/2011/061711.pdf (p. 918) for the notice and http://www.dep.wv.gov/pio/Documents/Rules%202011/DWWM/Hazardous%20Waste/Waste%20Management%2033%20-%2020%20Hazardous%20Waste%20Management%20System%20%282011%29.pdf for the rule.
Copyright© 2011, Environmental Law Institute, Washington, D.C. All rights reserved.
GERMANY TO SLOW CUTS IN WIND SUBSIDIES
Germany announced last week that it will not cut its wind subsidies as fast as planned, saying the reduction in feed-in tariffs would remain at one percent rather than going to two percent. The move is designed to continue to make renewables competitive with conventional forms of energy, as faster cuts may have threatened German companies like Nordex and PNE Wind. However, German company Siemens AG is currently expanding its wind offerings to an international market, as the company will develop an offshore wind farm in eastern China and build a factory in Turkey to meet the country's growing demand. Last month, Germany announced that it would close all nuclear plants by 2022 in the wake of the Fukushima crisis. Before a moratorium on older plants, Germany relied on nuclear for up to 23 percent of its power. Germany's goal is to replace power coming from nuclear with renewable energy rather than through the increased use of conventional forms of energy. However, a Guardian article examined the effect the shifting German energy policies will have on emissions in the rest of Europe, predicting that a rise in reliance on fossil fuels will drive up carbon prices and cause a fall in emissions in EU states. For the full story, see http://www.reuters.com/article/2011/06/24/us-germany-renewables-idUSTRE75N18U20110624. For Siemen's expansion, see http://www.washingtonpost.com/business/industries/germanys-siemens-ag-lands-contract-to-develop-offshore-wind-farm-in-china/2011/06/21/AGLiT4dH_story.html and http://www.todayszaman.com/news-248014-siemens-mulls-wind-turbine-blade-production-facility-in-turkey.html. For more on Germany's ban on nuclear, see http://www.bbc.co.uk/news/world-europe-13592208. For the Guardian piece, see http://www.guardian.co.uk/environment/2011/jun/22/germany-nuclear-uk-emissions.
NORWAY BACKS INDONESIAN PLAN, NEW MINING LAWS THREATEN FORESTS
Norway agreed to a $1 billion deal to aid Indonesia in forest protection on Thursday, despite a long list of exemptions, a "maze" of reforms, and a lack of maps indicating specific conservation areas. The head of the Indonesian task force for forest protection said that the moratorium was as strict as possible--taking into account interests from palm oil producers, loggers, and miners. The ruling imposes a general ban on logging but allows exceptions for projects related to geothermal power as well as rice and sugarcane agriculture, electricity development, and ecosystem restoration. The conservation rules were criticized by indigenous groups for limiting their rights to land, and the Indigenous Alliance called for an "immediate moratorium" on all REDD (Reducing Emissions from Deforestation and Forest Degradation) projects in Central Kalimantan until various conditions are met. The deal comes after the palm oil firm Kuala Lumpur Kepong, in which Norway's sovereign wealth fund has a stake, was reported by the Environmental Investigation Agency as violating the nation's forest clearing ban. Meanwhile, President Susilo Bambang Yudhoyono fell under heavy criticism for approving a ruling, the day before his approval of a REDD deal with Norway, that would allow underground mining in protected forest areas. Avi Mahaningtvas, head of the Partnership for Governance Reform and civil society representative on climate issues and REDD in Indonesia, said that both the REDD scheme and the mining rules allow "business as usual" practices and that the nation needed to examine the effects of its laws on its forests. For the full story, see http://www.reuters.com/article/2011/06/23/us-climate-indonesia-idUSTRE75M43420110623. For the story on indigenous rights, see http://articles.timesofindia.indiatimes.com/2011-06-22/flora-fauna/29689215_1_redd-forest-managers-peatland. For the story on mining laws, see http://www.trust.org/alertnet/news/indonesia-mining-rules-threaten-forest-protection-efforts-experts. For the story on allegations against KLK, see http://www.eco-business.com/news/malaysia-palm-oil-firm-denies-breaching-indonesias-forest-ban/.
CANADIAN CUTS TO SCIENCE BUDGETS DEFUND CLIMATE RESEARCH
Green Party Leader Elizabeth May said last week that Canadian cuts to science budgets are disproportionately affecting climate change scientists, compromising the government's ability to assess risks to critical infrastructure, communities, and industry. May warned of risks from flood damage, an issue, she said, Canada is already facing from overflowing sewers. Ian Rutherford, director of the Canadian Meteorological and Oceanographic Society, estimated that Canada has cut science research in half and is also moving away from funding research networks. "How you expect the operational weather service to function without science, I have no idea," he said. The new policy will apply from June 1 until May 31, 2013. For the full story, see http://www.cbc.ca/news/politics/story/2011/06/22/pol-climate-change-jobs.html and http://www.vancouversun.com/technology/Cuts+science+budgets+have+wider+economic+impact/4988549/story.html.
Copyright© 2011, Environmental Law Institute, Washington, D.C. All rights reserved.
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