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Weekly Update Volume 41, Issue 19

07/11/2011

LITIGATION 

WATER SUPPLY, RIVERS AND HARBORS ACT:

The Eleventh Circuit held that the U.S. Army Corps of Engineers may allocate storage water in Lake Lanier, a reservoir created in 1956 by the completion of Buford Dam on the Chattahoochee River, for water supply. A lower court ruled that the Corps' current operation of the Buford Project--Buford Dam and Lake Lanier collectively--had allocated more than 21% of Lake Lanier's storage space to water supply and that such an allocation exceeded the Corp's statutory authority. It ordered the Corps to drastically reduce the quantity of water that it made available for water supply. The court's summary judgment order also affirmed the Corps' rejection of Georgia's 2000 request for additional water supply allocations to meet the needs of the localities through 2030. But the text of the 1946 Rivers and Harbors Act clearly indicates that Congress intended for water supply to be an authorized, rather than incidental, use of the water stored in Lake Lanier. As such, the Act authorized the Corps to allocate storage water in Lake Lanier for water supply. And because the Corps denied Georgia's 2000 request based on a clear error of law--the Corps' misinterpretation of the Rivers and Harbors Act--the Corps' interpretation cannot be granted deference. The Corps also failed to reach a final, determinative position about its water supply authority before rejecting the state's request. Consequently, its decision was arbitrary and capricious or not otherwise in accordance with the law. The court, therefore, reversed the lower court's decision, remanded Georgia's water supply request, and gave the Corps one year to complete its analysis of its water supply authority and release its conclusions. In re MDL-1824 Tri-State Water Rights Litigation, No. 09-14657, 41 ELR 20217 (11th Cir. June 28, 2011).


CAA, NEW SOURCE REVIEW:

The Ninth Circuit upheld the dismissal of an environmental group's CAA claim challenging an air quality district's method for offsetting emissions increases in its new source review permit program. The district's regulation, contained in the state's EPA-approved SIP, requires that most increases be offset either through emission reduction credits or, for certain priority sources, with allocations from the district's priority reserve. The district maintains an internal bank of credits known as "offset accounts" that it uses to provide allocations from the priority reserve. The group alleged that the district deposited invalid credits into its offset accounts and continues to distribute them in violation of CAA §173(c). But because EPA issued rules that not only approved the SIP but also indicated that the credits in the priority reserve comply with §173(c), the group is effectively seeking review of EPA's decision. As such, the court lacks jurisdiction under CAA §304. The group also argued that the district violated the regulation by maintaining invalid credits in its offset accounts. But the district's regulation is clear that the validity requirements apply to emission reduction credits, not to the internal offsets at issue here. Accordingly, the group failed to state a claim. Last, the group argued that the district failed to track emission reductions to show it maintains positive account balances in its offset accounts. But nothing in the EPA-approved SIP even suggests a tracking system must be applied. Natural Resources Defense Council v. South Coast Air Quality Management District, No. 09-57064, 41 ELR 20218 (9th Cir. June 29, 2011).


CAA, OZONE, GUIDANCE:

The D.C. Circuit vacated an EPA guidance document addressing obligations of regions still in nonattainment of the 1997 one-hour ozone NAAQS. The guidance binds EPA regional directors and thus qualifies as final agency action. As such, it amounts to a legislative rule issued in violation of the APA's notice-and-comment requirement. In addition, a portion of the guidance violates the CAA's plain language. Under the guidance, regions attaining either the one-hour or the eight-hour ozone standard can avoid CAA §185 fees through an "attainment alternative." In such regions, the existing eight-hour implementation controls would qualify as a "not less stringent" alternative to §185 fees. Consequently, a region satisfying the eight-hour standard would have no obligation to pay §185 fees even though it remained in nonattainment of the one-hour standard. This runs counter to the language set forth in CAA §172(e), which requires that any alternative be "not less stringent than applicable controls." Natural Resources Defense Council v. Environmental Protection Agency, No. 10-1056, 41 ELR 20223 (D.C. Cir. July 1, 2011).


CAA, GREENHOUSE GASES:

A district court held that EPA need not issue endangerment findings under the CAA for marine vessels and nonroad vehicles and engines, but it denied the Agency's motion to dismiss environmental groups' request for an endangerment finding with respect to aircraft engines. EPA argued that the CAA provisions on which the groups rely--§§213 and 231--cannot support their unreasonable-delay claims because they give EPA the discretion to conduct the endangerment findings that the groups seek, but do not require it to do so. The court agreed with respect to CAA §213, which governs marine vessels and nonroad vehicles. The language set forth in §213(a)(4) lacks any such obligation, and inferring one would go beyond Congress' express instructions and create practical difficulties. Accordingly, these claims were dismissed for failure to state a claim. But Congress' use of mandatory language in §231(a)(2)(A), governing aircraft emissions, creates a post-endangerment finding duty to regulate. This language strongly suggests that Congress intended the predicate endangerment finding to be a compulsory step. To hold otherwise would defeat the purpose of the Act by allowing EPA to "shirk its duty to combat air pollution." Accordingly, EPA's motion to dismiss was denied as to this claim. Center for Biological Diversity v. United States Environmental Protection Agency, No. 10-00985, 41 ELR 20219 (D.D.C. July 5, 2011) (Kennedy, J.).


ESA, POLAR BEAR:

A district court, in a 116-page opinion, upheld the FWS' final rule listing the polar bear as a threatened species under the ESA. The FWS' decision to list the bear represents a reasoned exercise of the agency's discretion based on the facts and the best available science as of 2008 when the agency made its listing determination. Numerous plaintiffs challenged the rule, claiming that the FWS' decision was arbitrary and capricious and an abuse of agency discretion. But in the court's opinion, plaintiffs' challenges amount to nothing more than competing views about policy and science. Some plaintiffs argued that the FWS went too far in protecting the polar bear; others contend that the FWS did not go far enough. According to some plaintiffs, mainstream climate science shows that the polar bear is already irretrievably headed toward extinction throughout its range. According to others, climate science is too uncertain to support any reliable predictions about the future of polar bears. The court, however, is not empowered to choose among these competing views. Instead, it is bound to uphold the agency's determination that the polar bear is a threatened species as long as it is reasonable, regardless of whether there may be other reasonable, or even more reasonable, views. In re Polar Bear Endangered Species Act Listing, No. 08-764, 41 ELR 20220 (D.D.C. June 30, 2011) (Sullivan, J.).


TAKINGS, STATUTE OF LIMITATIONS:

The Federal Circuit upheld the dismissal of landowners' suit against the United States seeking compensation for the alleged taking of their riparian and upland property rights stemming from U.S. Army Corps of Engineers activities to control water levels in Lake Okeechobee. The landowners' takings claims are barred by the statute of limitations. The landowners filed suit in 2006 and, therefore, were required to demonstrate that they could not have reasonably known the facts fixing the government's alleged liability prior to 2000. But the Corps has released large volumes of polluted non-saline water from Lake Okeechobee into the St. Lucie River for almost 80 years and the environmental effects have been evident since the 1950s. In addition, the Corps' mitigation efforts could not resurrect the landowners' takings claims. And they failed to establish that Florida law recognizes compensable property interests in the riparian rights they allege were injured by the government. Mildenberger v. United States, No. 2010-5084, 41 ELR 20225 (Fed. Cir. June 30, 2011).


NUCLEAR WASTE, RIPENESS:

The D.C. Circuit dismissed petitions for review challenging the DOE's attempt to withdraw its application to the NRC for a license to construct a permanent nuclear waste repository at Yucca Mountain, Nevada, as well as its apparent decision to abandon development of the Yucca Mountain nuclear waste repository. Petitioners claims that these actions, which demonstrate the DOE's desire to abandon development of the Yucca Mountain nuclear waste repository, violate the Nuclear Waste Policy Act, NEPA, and the APA. But until the NRC either acts on the DOE's motion to withdraw or rules on the license application, there is a lack of finality and ripeness. Accordingly, the court lacks jurisdiction. In re Aiken County, No. 10-1050, 41 ELR 20222 (D.C. Cir. July 1, 2011).


CAA, CIVIL PROCEDURE:

The D.C. Circuit upheld the dismissal of a CAA citizen suit challenging EPA's failure to take action to prevent the construction of three proposed pollution-emitting facilities in Kentucky. The lower court held that there was no mandatory duty to act and granted EPA's motion to dismiss for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1). Although the lower court should have relied on Rule 12(b)(6) to determine whether the complaint failed to state a claim upon which relief could be granted rather than under the jurisdictional standards of Rule 12(b)(1), it does not affect the outcome. The APA does not provide a cause of action to review the EPA Administrator's failure to act under CAA §167 because her decision is an agency action "committed to agency discretion by law." Sierra Club v. Jackson, No. 10-5280, 41 ELR 20224 (D.C. Cir. July 1, 2011).


CWA, NEPA:

A district court dismissed an environmental group's claim that the U.S. Army Corps of Engineers violated NEPA, the CWA, and the APA by granting a CWA §404 permit to a railroad company without completing an EIS. The Corps' finding that the chosen site was the least environmentally damaging practicable alternative was not arbitrary or capricious. There was no practicable alternative that did not involve destruction of streams or wetlands, and the CWA does not require the Corps to look at impracticable sites that would not impact waters of the United States. In addition, the Corps sufficiently examined the environmental impacts of the proposed facility under NEPA, and its analysis of alternatives was adequate. Hillsdale Environmental Loss Center v. United States Army Corps of Engineers, Nos. 10-2008-CM-DJW, -2068-JTM-DWB, 41 ELR 20226 (D. Kan. June 28, 2011) (Murguia, J.).


NEPA, VOLUNTARY REMAND:

A district court, in an underlying NEPA suit, denied the Navy's request for a voluntary remand for further consideration of the future location of a firing range complex in Guam. Plaintiffs argued that a voluntary remand to the agency is only appropriate where either there have been intervening events beyond the agency's control or where the agency has acknowledged that the original decision was incorrect. The Navy, meanwhile, argued that an agency may request remand even without either intervening events or a confession of agency error. In the absence of any controlling authority, the court concluded that, where an agency's motion for voluntary remand does not rely on either new evidence, a change in the law, or an admission of error in the original agency decision, the court has discretion whether to grant or deny the remand. However, the court should not grant remand where the remand may be unwarranted, abusive, arbitrary, capricious or an abuse of the agency's discretion, or where the remand would be untimely. Under the facts of this case, the court concluded that a remand and stay are not appropriate, particularly since defendants are not willing to give plaintiffs their requested opportunities to participate in the remand process. Guam Preservation Trust v. Gregory, No. 10-00677, 41 ELR 20221 (D. Haw. June 30, 2011) (Kobayashi, J.) (Plaintiffs' counsel included Nicholas C. Yost of SNR Denton in San Francisco, Cal.).


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 and the National Highway Traffic Safety Administration issued a final rule establishing new requirements for the fuel economy and environment label for all 2013 and later vehicles, including greenhouse gas and smog-forming emissions. 76 FR 39478 (7/6/11).

  • EPA finalized a federal implementation plan that includes two new source review regulations for the protection of air resources in Indian country: the first rule applies to new and modified minor stationary sources (minor sources) and to minor modifications at existing major stationary sources (major sources) throughout Indian country; the second rule applies to new and modified major sources in areas of Indian country that are designated as not attaining the NAAQS. 76 FR 38748 (7/1/11).

  • EPA Regions 1, 2, 3, 5, 6, 7, 8, 9, and 10 extended until February 15, 2012, the expiration date of the 2008 NPDES general permits for stormwater discharges associated with construction activity. 76 FR 40355 (7/8/11).

  • EPA revised the performance standards for new stationary compression ignition internal combustion engines under CAA §111(b). 76 FR 37954 (6/28/11).

  • EPA finalized an update to a portion of the outer continental shelf air regulations for Alaska. 76 FR 37274 (6/27/11).

  • EPA proposed a projected cellulosic biofuel volume for 2012 and annual standards for cellulosic biofuel, biomass-based diesel, advanced biofuel, and renewable fuels that would apply to all gasoline and diesel produced or imported in year 2012; the Agency also proposed an applicable volume of biomass-based diesel that would apply in 2013. 76 FR 38844 (7/1/11).

  • EPA proposed to amend certain provisions related to best available monitoring methods in regulations for Petroleum and Natural Gas Systems of the Greenhouse Gas Reporting Rule. 76 FR 37300 (6/27/11).

  • SIP Approvals: Alabama (Birmingham fine particulate matter nonattainment area) 76 FR 38023 (6/29/11). California (negative declarations for volatile organic compound (VOC) source categories in the Antelope Valley air quality management district) 76 FR 38572 (7/1/11); (VOC emissions for the Imperial County and Kern County air pollution control districts) 76 FR 39303 (7/6/11); (limited approval of VOC emission revisions for the San Joaquin Valley unified air pollution control district) 76 FR 39777 (7/7/11). Connecticut/Maine/New Hampshire/Rhode Island (infrastructure requirements for the 1997 eight-hour ozone NAAQS) 76 FR 40248 (7/8/11). Indiana (PSD and nonattainment new source review (NSR) rules) 76 FR 40242 (7/8/11). Louisiana (rule revisions from 1996-2006) 76 FR 38977 (7/5/11). Montana (partial approval of revisions to air quality permits) 76 FR 40237 (7/8/11). Nebraska (1997 revisions to NAAQS for ozone) 76 FR 40258 (7/8/11). Oregon (eight-hour ozone and particulate matter NAAQS) 76 FR 38997 (7/5/11).

  • SIP Proposals: California (VOC and PM emissions from commercial charbroiling) 76 FR 38340 (6/30/11); (negative declarations for VOC source categories in the Antelope Valley air quality management district; see above for direct final rule) 76 FR 38589 (7/1/11); (VOC emissions for the Imperial County and Kern County air pollution control districts; see above for direct final rule) 76 FR 39357 (7/6/11); (limited approval of revisions for nitrogen oxide (NOx) emissions for the South Coast air quality management district) 76 FR 40303 (7/8/11). Connecticut (infrastructure requirements for the 1997 ozone NAAQS) 76 FR 39797 (7/7/11). District of Columbia (Washington, DC, area moderate 1997 8-hour ozone nonattainment area) 76 FR 38334 (6/30/11). Indiana (PSD and nonattainment NSR rules; see above for direct final rule) 76 FR 40303 (7/8/11). Maryland (Washington, DC, area moderate 1997 8-hour ozone nonattainment area) 76 FR 38334 (6/30/11). Virginia (Washington, DC, area moderate 1997 8-hour ozone nonattainment area) 76 FR 38334 (6/30/11).

ENERGY:



  • DOE amended until no later than December 31, 2012, the compliance dates for manufacturers to submit certification reports for commercial refrigeration equipment; commercial heating, ventilating, air- conditioning equipment; commercial water heating equipment; and automatic commercial ice makers under the Energy Policy and Conservation Act of 1975. 76 FR 38287 (6/30/11).

  • DOE adopted energy conservation standards for residential furnaces and for residential central air conditioners and heat pumps. 76 FR 37408 (6/27/11).

  • DOE proposed energy conservation standards for residential furnaces and for residential central air conditioners and heat pumps; see above for direct final rule. 76 FR 37549 (6/27/11).

HAZARDOUS & SOLID WASTES:



  • EPA entered into a proposed administrative settlement under CERCLA that requires the settling party to pay $4,115,000 in past U.S. response costs incurred at the Nuclear Metals, Inc. Superfund site in Concord, Massachusetts, to perform a non-time critical removal action, and to pay all future response costs. 76 FR 39401 (7/6/11).

  • EPA entered into a proposed administrative settlement agreement under CERCLA that requires the respondent to pay certain past U.S. response costs incurred at the Price Landfill Superfund site in Pleasantville and Egg Harbor Township, New Jersey. 76 FR 39401 (7/6/11).

  • EPA entered into a settlement under CERCLA §122(h)(1) for reimbursement of past response costs incurred at the Sikes Oil Service Superfund site in Arcade, Georgia. 76 FR 38651 (7/1/11).

  • EPA entered into a settlement under CERCLA §122(h)(1) for reimbursement of past response costs incurred at the Caraleigh Phosphate and Fertilizer Works Superfund site in Raleigh, North Carolina. 76 FR 38389 (6/30/11).

MINING:



  • OSM approved, on an interim basis, an amendment to West Virginia's SMCRA program concerning permit fees and bonding rates. 76 FR 37996 (6/29/11).

RULEMAKING:



  • The federal agencies issued their semiannual regulatory agendas providing specific information on the status of regulations under development and revision. Rulemaking actions are grouped according to prerulemaking, proposed rules, final rules, long-term actions, and rulemaking actions completed since the fall 2010 agenda. EPA's agenda can be found at 76 FR 40118 (7/7/11).

WATER:



  • EPA proposed a rule that would identify provisions of Florida's Water Quality Standards for Phosphorus in the Everglades Protection Area and Florida's Amended Everglades Forever Act that EPA has disapproved and that therefore are not applicable water quality standards for purposes of the CWA. 76 FR 38592 (7/1/11).

  • The Bureau of Ocean Energy Management, Regulation, and Enforcement increased the maximum daily civil penalty assessment for OCSLA violations to $40,000 and the maximum daily civil penalty assessment for violations of its financial responsibility regulations to $30,000. 76 FR 38294 (6/30/11).

  • EPA-New England Region determined that adequate facilities for the safe and sanitary removal and treatment of sewage from all vessels are reasonably available for the coastal waters of Outer Cape Cod in Massachusetts. 76 FR 39395 (7/6/11).

WILDLIFE:



  • FWS announced its 12-month finding on a petition to list a distinct population segment of the fisher in its U.S. Northern Rocky Range; the agency determined that listing is not warranted at this time. 76 FR 38504 (6/30/11).

  • FWS announced its 90-day finding on a petition to list the eastern small-footed bat and the northern long-eared bat as endangered or threatened under the ESA; the agency determined that listing may be warranted and has begun a status review of the two species. 76 FR 38095 (6/29/11).

  • FWS designated 25 acres in Taney County, Missouri, as critical habitat for the Tumbling Creek cavesnail. 76 FR 37663 (6/28/11).

  • FWS announced its 12-month finding on a petition to list the Ozark chinquapin, a tree, as threatened or endangered under the ESA; the agency determined that listing is not warranted at this time. 76 FR 37706 (6/28/11).

DOJ NOTICES OF SETTLEMENT:



  • United States v. Seachrome Corp., No. 11-0382 (C.D. Cal. July 1, 2011). A settling CERCLA PRP responsible for violations at the South El Monte Operable Unit of the San Gabriel Valley Area 1 Superfund site in South El Monte, California, must pay approximately $6.8 million in U.S. and consolidated lawsuit plaintiff response costs incurred at the site, and other settling PRPs must pay $545,000 to the United States and consolidated lawsuit plaintiffs. 76 FR 40393 (7/8/11).

  • United States v. Atlantic Land & Improvement Co., No. 8:11-cv-01435-EAK-EAJ (M.D. Fla. June 28, 2011). Settling CERCLA defendants responsible for violations at the Raleigh Street Dump Superfund site in Tampa, Florida, must pay $195,000 in U.S. response costs incurred at the site and must perform remedial design and unrestricted remedial action at the site. 76 FR 39899 (7/7/11).

  • United States v. Western Refining Co., L.P., No. 3:11-cv-276 (W.D. Tex. June 30, 2011). A settling CAA defendant responsible for violations at its refinery in El Paso, Texas, must pay a $1.45 million civil penalty and must perform injunctive relief to reduce emissions of NOx, sulfur dioxide, VOCs, and benzene at the facility. 76 FR 39899 (7/7/11).

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


THE CONGRESS

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


Chamber Action



  • 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).

Committee Action



  • 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.

Bills Introduced



  • 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:

Alabama
Alaska
California

Delaware
Florida
Idaho

Illinois
Indiana
Iowa

Louisiana
Maine
Missouri

Nebraska
Nevada
New Hampshire

New Mexico
New York
Oregon

Rhode Island
Texas
Vermont

Virginia
Washington

ALABAMA


Water:



ALASKA


Fisheries:



CALIFORNIA


Land Use:



  • The Board of Forestry and Fire Protection proposed to amend Cal. Code Regs. tit. 14, §§913, 939.15, & 959.15, Aspen, Meadow and Wet Area Restoration. Changes add a new sivicultural special prescription which states the requirements for projects that harvest, remove, or otherwise treat commercial conifer trees in aspen stands, meadows, or wet areas for purposes of restoring habitat, ecological, and range values. See http://www.oal.ca.gov/res/docs/pdf/notice/25z-2011.pdf (pp. 999-1002).

DELAWARE


Solid & Hazardous Waste:



FLORIDA


Air:



  • The Department of Environmental Protection proposed changes to 62 Fla. Admin. Code §62.212.400, Stationary Sources-Preconstruction Review. Changes would exclude some facilities that produce ethanol by natural fermentation, including some ethanol fuel production facilities, from being considered a “chemical process plant” for purposes of qualifying for an exemption from the state's prevention of significant deterioration air permitting rules. The deadline for comment is July 27, 2011. See https://www.flrules.org/gateway/ruleNo.asp?id=62-212.400.

  • The Department of Environmental Protection amended 62 Fla. Admin. Code §62.210.200, Stationary Sources-General Requirements. The changes pertain to section definitions. See https://www.flrules.org/Gateway/View_notice.asp?id=10035928.

Fisheries:



  • The Fish and Wildlife Conservation Commission proposed to amend 68B Fla. Admin. Code §14.0038, Recreational Snapper Season. Changes would incorporate NOAA's rules for red snapper into the Commission's Reef Fish Rule. The deadline for comment is July 22, 2011. See https://www.flrules.org/Gateway/View_notice.asp?id=10053291.

IDAHO


Energy:



  • The Department of Lands temporarily amended Idaho Admin. Code 20.03.15, pertaining to geothermal leases. Changes include extending lease terms up to 49 years, negotiating rent and royalty based on market rates, increasing lease size to cover an entire project, and setting bond amounts based on reasonable reclamation costs. There will be a public hearing July 28, 2011, and the deadline for written comment is July 26. See http://adm.idaho.gov/adminrules/bulletin/bul/11bul/11Jul.pdf (pp. 127-32).

Water:



  • The Department of Lands proposed to amend Idaho Admin. Code 20.03.15, Conservation of Crude Oil and Natural Gas in the State of Idaho. Changes relate to well treatments and hydraulic fracturing, as well as bond rates. There will be public hearings July 20 and 21, and the deadline for written comment is July 26. See http://adm.idaho.gov/adminrules/bulletin/bul/11bul/11Jul.pdf (p. 133).

  • The Department of Environmental Quality proposed to amend Idaho Admin. Code r. 58.01.02, Water Quality Standards. Changes relate to the implementation of antidegradation policy. Revisions include adding definitions for "degradation or lower water quality" and "general permit" as well as language on Tier II waters and insignificant activity. The deadline for written comment is August 5. See http://adm.idaho.gov/adminrules/bulletin/bul/11bul/11Jul.pdf (pp. 140-274).

ILLINOIS


Air:



Solid & Hazardous Waste:



INDIANA


Air:



  • The Air Pollution Control Board seeks public comment on proposed changes to 326 Ind. Admin. Code §7, concerning sulfur dioxide emission limitations and monitoring. Changes would incorporate revised federal standards into the state rules. The deadline for public comment is July 29, 2011. See http://www.in.gov/legislative/iac/20110629-IR-326110356FNA.xml.pdf.

IOWA


Hazardous & Solid Waste:



LOUISIANA


Air:



  • The Department of Environmental Quality amended La. Admin. Code §33:III.504 and 509, PM2.5 New Source Review Implementation. The rule incorporates new federal requirements for particulate matter. See http://www.doa.la.gov/osr/reg/1106/1106.doc (pp. 1568-71).

Solid & Hazardous Waste:



  • The Department of Environmental Quality amended La. Admin. Code §33:VII.115, 513, 521, 711, 713, 715, 717, 721, 723 and 725, Emergency Response for Solid Waste Facilities. Changes would allow the Department to implement the revised requirements for emergency response standards at solid waste facilities. Revised requirements relate to ensuring that capabilities are in place for first responders in the event of accident, fire, explosion, or other emergency at these facilities. See http://www.doa.la.gov/osr/reg/1106/1106.doc (pp. 1563-68).

MAINE


Air:



  • The Department of Environmental Protection proposed to repeal Ch. 107, Sulfur Dioxide Emission Standards for Sulfite Pulp Mills. The Department proposed the repeal as the last facility covered under the rule is no longer operating, and the process will not be used in the future. The deadline for comment is August 5, 2011. See http://www.maine.gov/sos/cec/rules/notices/2011/070611.html.

  • The Department of Environmental Protection proposed to repeal Ch. 122, Chlorine and Chlorine Dioxide Emission Standard. The Department proposed the repeal of the rule, which establishes an emission limit for bleach plants of pulp and paper mills, as federal rules are more comprehensive. The deadline for comment is August 5, 2011. See http://www.maine.gov/sos/cec/rules/notices/2011/070611.html.

  • The Department of Environmental Protection proposed to repeal Ch. 135, Hexavalent Chromium Particulate Emission Standard. The Department proposed the repeal of the rule, which establishes a limitation on the amount of hexavalent chromium allowed to be emitted from any potential source of hexavalent chromium, as federal rules are more comprehensive. The deadline for comment is August 5, 2011. See http://www.maine.gov/sos/cec/rules/notices/2011/070611.html.

Land Use:



  • The Land Use Regulation Commission adopted changes to Ch. 10, Land Use Districts and Standards. The revisions make the rules more consistent with National Flood Insurance Program federal rules. In addition, the rule change implements the provisions of An Act to Implement the Recommendations of the Governor’s Ocean Energy Task Force, which include rules to list offshore wind power projects and community-based offshore wind energy projects as uses requiring a permit in all subdistricts, and amendments to the review criteria that apply to community-based offshore wind energy projects. The rule took effect July 1, 2011. See http://www.maine.gov/sos/cec/rules/notices/2011/062911.html.

  • The Department of Environmental Protection amended Ch. 305, Permit by Rule Standards: Section 16, Activities in Coastal Sand Dunes. Changes allow several new activities in coastal sand dunes, such as open and cobble-trapping fences. The change took effect June 30, 2011. See http://www.maine.gov/sos/cec/rules/notices/2011/070611.html.

MISSOURI


Air:



  • The Department of Natural Resources amended Mo. Code Regs. Ann. tit.10, §§6.020, 6.060, 6.065, 6.200, 6.300, Air Quality Standards, Definitions, Sampling and Reference Methods and Air Pollution Control Regulations for the Entire State of Missouri. Changes alter definitions and common reference tables; construction permit requirements; operating permits; hospital, medical, and infectious waste incinerators; and the Conformity of General Federal Actions to State Implementation Plans section. See http://www.sos.mo.gov/adrules/moreg/current/v36n13/v36n13c.pdf (pp. 1670-99).

NEBRASKA


Wildlife:



  • The Game and Parks Commission proposed to amend 163 Neb. Admin. Code §004.004, Protection, Conservation and Management of Endangered and Threatened Wildlife Species. Changes amend the list of endangered species and add that incidental taking is allowed. There will be a public hearing July 29, 2011. See http://www.sos.state.ne.us/rules-and-regs/regtrack/proposals/0000000000000995.pdf.

  • The Game and Parks Commission proposed to amend 163 Neb. Admin. Code §004.012, Threatened and Endangered Species Consultation. Changes add rules on incidental takings, add rules on conditions that "may affect" listed species, and add rules for projects which require both a federal and state consultation. There will be a public hearing July 29, 2011. See http://www.sos.state.ne.us/rules-and-regs/regtrack/proposals/0000000000000997.pdf.

NEVADA


Air:



  • The State Environmental Commission proposed to amend Nev. Admin. Code 445B, relating to the Class VI Operating Permit program. Changes alter the definition of Class VI source, add area source categories, and alter other requirements of the section. See http://www.leg.state.nv.us/register/2011Register/R014-11I.pdf.

NEW HAMPSHIRE


Air:



NEW MEXICO


Air:



  • The Environmental Improvement Board amended N.M. Code §20.2.73 to require that sources using a different emission monitoring or calculation method than was used to report sulfur dioxide emissions in 2006 adjust their reported emissions to be comparable to the emission monitoring or calculation method that was used in 2006. Changes took effect July 6, 2011. See http://www.nmcpr.state.nm.us/nmregister/xxii/xxii12/20.2.73amend.htm.

  • The Environmental Improvement Board amended N.M. Code §20.2.81 to conform those rules to federal requirements for regional haze. The plan establishes requirements for state rules to meet the requirements of 40 C.F.R. §51.309, including a determination of best available retrofit technology for nitrogen oxides. Changes took effect July 6, 2011. See http://www.nmcpr.state.nm.us/nmregister/xxii/xxii12/20.2.81amend.htm.

Solid & Hazardous Waste:



NEW YORK


Air:



OREGON


Climate:



  • The Land Conservation and Development Department adopted Or. Admin. R. 660.044, Metropolitan Greenhouse Gas Reduction Targets. Changes would set light vehicle greenhouse gas emissions targets for the state's metropolitan areas for 2035. The targets are designed to guide local governments in land use and transportation planning to help the state achieve 2050 targets of greenhouse gas emissions 75% below 1990 levels. The guidelines encourage metropolitan areas to use the standards required for Portland. The regulation would include guidelines on accommodating economic development and housing needs, expanding transportation options, and reducing transportation costs to reduce greenhouse gas emissions. The rule took effect June 1, 2011. See http://arcweb.sos.state.or.us/rules/July2011_Bulletin.pdf (pp. 86-89).

Wildlife:



  • The Department of Environmental Quality amended Or. Admin. Code 635.044 & 635.056, Rules Governing the Rehabilitation of Wildlife. The amendments affect the restricted species list and definitions, among other sections. Changes took effect July 1, 2011. See http://arcweb.sos.state.or.us/rules/July2011_Bulletin.pdf (pp. 49-57).

RHODE ISLAND


Climate:



TEXAS


Air:



  • The Commission on Environmental Quality proposed to amend 30 Tex. Admin. Code §115, Control of Air Pollution from Volatile Organic Compounds (VOCs). Changes would implement new VOC storage tank control requirements. There will be public hearings on July 14, 18, and 22, and the comment period closes July 25. See http://www.sos.state.tx.us/texreg/pdf/backview/0624/0624is.pdf (pp. 3801-97).

Water:



VERMONT


Water:



  • The Department of Environmental Conservation amended Ch. 24, Groundwater Withdrawal Reporting and Permitting Rules. The rule pertains to the reporting requirements for groundwater withdrawals of greater than 20,000 gallons per day and the permitting requirements for groundwater withdrawals of greater than 57,600 gallons per day. Changes took effect June 22, 2011. See http://www.vermontdrinkingwater.org/wsrules.htm#gw.

VIRGINIA


Solid & Hazardous Waste:



  • The Department of Environmental Quality amended 9 Va. Admin. Code §§20.60, 20.70, 20.81, 20.85, 20.120, 20.130, 20.140, 20.150, 20.160, & 20.170, Solid Waste Management Regulations. Changes make necessary corrections to the section following the March 16, 2011 amendment of 9 Va. Admin. Code §20.81. The changes take effect August 3, 2011. See http://legis.state.va.us/codecomm/register/vol27/iss22/v27i22.pdf (pp. 2303-401).

  • The Department of Environmental Quality amended 9 Va. Admin. Code §20.90, Solid Waste Management Permit Action Fees and Annual Fees. Changes relate to fees for nonhazardous solid waste management facilities. The amendment takes effect August 3, 2011. See http://legis.state.va.us/codecomm/register/vol27/iss22/v27i22.pdf (pp. 2402-11).

WASHINGTON


Climate:



  • The Department of Ecology proposed to amend Wash. Admin. Code §§173.400, General Regulations for Air Pollution Sources, & 173.401, Operating Permit Regulation. Changes would ensure consistency between state rules and federal rules for greenhouse gas. There will be a public hearing on July 26, 2011, and the deadline for written comment is July 19. See http://apps.leg.wa.gov/documents/laws/wsr/2011/13/11-13-127.htm.

Water:



  • The Department of Ecology proposed to amend Wash. Admin. Code §§173.98, Uses and limitations of the water pollution control revolving fund, & 173.95, Uses and limitations of centennial clean water fund. Changes would establish funding categories, ceiling amounts, and project eligibility for green project reserves projects and forgivable principal loans as part of the revolving fund. There will be a public hearing July 26, 2011, and the deadline for comment is August 3, 2011. The date of intended adoption is September 7, 2011. See http://apps.leg.wa.gov/documents/laws/wsr/2011/13/11-13-125.htm.

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


INTERNATIONAL

FRANCE CONSIDERS NUCLEAR PULL OUT

Energy Minister Eric Besson announced last week that a nuclear exit was among the options being considered in a study on the share of France's energy mix by 2050. Public opinion in France, which is heavily dependent on nuclear power, has shifted according to recent polls. Last month, a poll showed that three quarters of French people interviewed supported a withdrawal from nuclear power, while 22 percent wanted a nuclear expansion program. "We will study all possible scenarios for what we call the energy mix . . . it will be done with total objectivity, in full transparency, without avoiding any scenario, including the scenarios of a nuclear exit," Besson said on radio Europe 1. Though an energy ministry official said that France would consider a total pull out by 2050 or 2040, Besson said that he favored keeping nuclear's share at two-thirds of total energy output, calling nuclear as a major part of the nation's energy mix a "rational choice." Presidential elections in 2012 may result in a change in nuclear policy, but in the meantime France's nuclear output, 74 percent of total energy output in 2010, will likely stay the same. Last week, Besson announced that the country's oldest nuclear power plant, open since 1977, may continue to operate for the next 10 years as long as improvements are made. For the full story, see http://www.reuters.com/article/2011/07/08/us-france-nuclear-idUSTRE76733F20110708 and http://online.wsj.com/article/BT-CO-20110708-701668.html. For the story on France's oldest plant, see http://www.bloomberg.com/news/2011-07-08/france-s-oldest-nuclear-power-plant-will-stay-open-besson-says.html.


AUSTRALIA TO SET CARBON PRICES

Australia is slated to tax carbon at a rate of A$23 per metric ton, but it has halved the number of companies liable for the tax to 500 companies. Though the price, reported by newspapers in advance of an official announcement, is roughly in line with expectations and the price of emissions in Europe, Prime Minister Julia Gillard refused to confirm reports, saying she would not "play any games" about the price in an interview with Sky TV. The expected price comes after Australia's government was able to secure the final vote needed to price carbon, which will help cut up to 160 million tons of emissions by 2020. The plan will transition from a tax to an emissions trading scheme within three to five years, and will include reported loan guarantees to help power plants refinance debt. The scheme may cause prices to rise as much as one percent, and Gillard has promised compensation to 90 percent of Australian families for higher food and electricity prices. For the full story, see http://www.reuters.com/article/2011/07/08/australia-carbon-idUSL3E7I80BC20110708.


WORLDWIDE RENEWABLE ENERGY INVESTMENT HITS RECORD HIGH

Chinese wind farms and European rooftop solar panels helped increase global renewable energy investment by 32 percent in 2010 to reach $211 billion, a UN study reported last week. Additionally, developing nations invested more in renewable power than developed nations for the first time, passing the total of developed nations at $70 billion by $2 billion. China topped the list with almost $49 billion in spending, while the Middle East and Africa increased spending by 104 percent to $5 billion. While funding for large scale projects in Europe fell 22 percent to $35 billion, small scale projects have received increased funding. In North America, Ontario announced that a program of incentives for energy projects has resulted in commitments of C$20 billion since 2009. The figure includes a C$7 billion commitment from Samsung C&T, and comprises agreements with producers under the province's feed-in tariff plan. For the full story, see http://www.bbc.co.uk/news/science-environment-14030849. For the story on Ontario's plan, see http://www.reuters.com/article/2011/07/07/us-energy-ontario-idUSTRE7665S320110707.


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


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