Jump to Content

Weekly Update Volume 41, Issue 2

01/24/2011

LITIGATION 

NEPA, INTERVENTION:

The Ninth Circuit abandoned the "federal defendant" rule, which categorically prohibits private parties and state and local governments from intervening of right on the merits of NEPA claims. The case arose out of the U.S. Forest Service's adoption of a travel plan that designated 1,196 miles of roads and trails for use by motorized vehicles in a portion of the Sawtooth National Forest. Environmental groups filed suit challenging the plan under NEPA, and three recreation groups moved to intervene. Applying the federal defendant rule, the lower court denied the motion. But the federal defendant rule is at odds with Fed. R. Civ. P. 24(a)(2) and the standards applied in all other intervention of right cases. When construing motions to intervene of right under Rule 24(a)(2), courts no longer need to apply a categorical prohibition on the merits or liability phase of NEPA. Instead, to determine whether a putative intervenor demonstrates the "significantly protectable" interest necessary for intervention of right in a NEPA action, the operative inquiry should be, as in all cases, whether "the interest is protectable under some law" and whether "there is a relationship between the legally protected interest and the claims at issue." Accordingly, the case was reversed and remanded so that the lower court may reconsider the recreation groups' motion to intervene. Wilderness Society v. United States Forest Service, No. 09-35200, 41 ELR 20062 (9th Cir. Jan. 14, 2011).


CAA, NESHAPS, DEADLINES:

A district court ordered EPA to promulgate emission standards for area source boilers, major source boilers, and commercial and institutional solid waste incineration units by February 21, 2011. In March 2006, the court ordered EPA to fulfill its statutory duties regarding the promulgation of certain emission standards by June 15, 2009. Since then, the court has granted a number of EPA's motions to extend the deadlines, the most recent deadline being January 21, 2011. EPA issued proposed air emission rules last spring, but in light of the comments it received, the Agency wanted to extend the deadline until April 13, 2012, so it could re-propose the rules. The court denied its request. EPA failed to demonstrate that it would be impossible to promulgate "substantively adequate regulations" by the January 21, 2011, deadline. Although much of the time-consuming rulemaking process for the three air rules may have been appropriate under normal circumstances, EPA engaged in discretionary delay in the face of a congressional directive. The policy arguments EPA raised have no place in a case where Congress has mandated expedition, and its statutorily mandated deadlines have long since passed. And unfortunately for EPA, the impossibility test is not concerned with whether re-proposal will produce more effective rules. Accordingly, the court ordered EPA to issue the rules by February 21, 2011. Sierra Club v. Jackson, Nos. 01-1537 et al., 41 ELR 20067 (D.D.C. Jan. 20, 2011) (Friedman, J.).


PUBLIC LAND, MINERAL RIGHTS:

The Fifth Circuit reversed a lower court decision that the National Park Service exceeded its regulatory power in violation of the APA in connection with its oil and gas management plan for the Padre Island National Seashore. The case involves a conflict between the Service and the owner of certain mineral estates in the Seashore with respect to the owner's right of ingress and egress over the Seashore's surface. Although the Service's normally broad regulatory authority over park lands is limited by the agreements between Texas and the Service that were made when the Seashore was established, these limitations do not provide the relief the owner now seeks. The Service is bound by the terms of Texas' concurrence when it deeded its land to the Service. Those terms provide, in relevant part, that owners of private land who convey land to the Service may preserve their mineral rights and the rights of ingress and egress to exploit their mineral estates for themselves and for their successors in title. These provisions, however, do not apply here because the owner is neither a grantor nor a successor in title. And while it is true that the Service must recognize the rights of ingress and egress possessed at the time of Texas' conveyance by those who remove minerals from outside the Seashore's boundaries, the owner's mineral estate is within the Seashore's boundaries. Accordingly, because the mineral estate at issue does not fall under any of the special protections provided in the Enabling Act that created the Seashore, the lower court erred in granting the owner summary judgment in favor of the owner. Dunn-McCampbell Royalty Interest, Inc. v. National Park Service, No. 09-40187, 41 ELR 20063 (5th Cir. Jan. 7, 2011).


MINING, PERMITTING PROCESS, FINAL AGENCY ACTION:

A district court held that mining interests may go forward with their CWA, APA, and SMCRA claims against EPA in connection with memoranda and guidance documents concerning permitting processes for coal mining. The documents meet the criteria of final agency actions. The government's view of what amounts to finality is too narrow, as it is possible for an agency to take final agency actions during a permit assessment process prior to actually determining whether to grant or deny an application for a permit. Although the federal defendants stress that the documents impose no new substantive requirements on permit applications, it is clear that EPA has implemented a change in the permitting process through these documents. In addition, the plaintiffs' claims are ripe for review. Whether the documents constitute legislative rules and whether EPA violated the notice and comment requirement of the APA present purely legal questions. No factual developments would clarify these issues or assist the court in evaluating the claims. And the allegations are sufficient to establish standing. The federal government's motion to dismiss was therefore denied. In addition, the court denied the plaintiffs' motion for a preliminary injunction. Although they established that they are likely to succeed on the merits of their claims, they failed to show irreparable harm. National Mining Ass'n v. Jackson, No. 10-1220, 41 ELR 20066 (D.D.C. Jan. 14, 2010) (Walton, J.).


SUPERFUND, NPL:

The D.C. Circuit denied a petition challenging a magnesium plant's inclusion on the NPL. EPA uses a hazard ranking system (HRS) to determine whether to place a site on the NPL. Petitioners argued that EPA erred in calculating the HRS score and that if these errors were corrected, the site's HRS score would fall below the 28.5 threshold for listing on the NPL. But EPA's scoring was consistent with the HRS. Thus, listing of petitioner's site on the NPL was not arbitrary or capricious. U.S. Magnesium, LLM v. Environmental Protection Agency, No. 09-1269, 41 ELR 20064 (D.C. Cir. Jan. 14, 2011).


CERCLA, COST ALLOCATION:

A district court modified its equitable allocation of costs under §113 of CERCLA and the New Jersey Spill Act in connection with a site contaminated with TCE and other hazardous substances. The court originally allocated 65% of costs to the plaintiffs, 32% to the defendants, and 3% to the federal government. The defendants argued that the court overlooked the fact that they had done all they were legally able to do in order to have the hazardous substances removed from their property. The court agreed, finding that the defendants did in fact behave more reasonably than the original opinion suggested and that their share of costs should be adjusted slightly downward. Accordingly, the court's previous order was modified to reflect the following equitable allocation of costs: 70% to plaintiffs; 27% to the defendants; and 3% to the U.S. defendants. But in all other respects, the court's previous ruling was affirmed, including its ruling that the current owner of the site should be held liable as an operator. Although involvement solely in remedial activities is not sufficient to establish liability, CERCLA imposes strict liability on current owners of a facility--a well established principle. Litgo New Jersey, Inc. v. Martin, No. 06-2891, 41 ELR 20068 (D.N.J. Jan. 7, 2011) (Thompson, J.).


NATURAL GAS ACT, PIPELINE CONSTRUCTION:

The D.C. Circuit denied a mining company's petition for review challenging two FERC orders certifying and authorizing the construction of a natural gas pipeline above the mining company's longwall underground coal mine. Longwall mining causes the surface above to subside in a planned, controlled manner as coal seams are extracted. This subsidence places stress on pipelines that cross the mine area, and so the mining company was concerned that too much stress may rupture the proposed pipeline and cause an explosion that would put at risk the safety of nearby persons and property. The company argued that FERC should not have approved construction of the pipeline because the natural gas company failed to develop "in collaboration with" the mining company a construction plan that maintains pipeline integrity and operation without impeding the petitioner's mining activities. But the record reveals numerous communications between the companies between the date FERC issued its initial certificate order and the date the natural gas company filed its construction plan. In addition, FERC's judgment that the natural gas company's proposed measures adequately ensure the pipeline's safety is supported by substantial record evidence, and FERC offered satisfactory explanations for its conclusions. And FERC's decision not to require specific post-construction mitigation procedures was not arbitrary and capricious. Murray Energy Corp. v. Federal Energy Regulatory Authority, No. 09-1207, 41 ELR 20069 (D.C. Cir. Jan. 6, 2011).


HAZARDOUS MATERIALS, VENUE:

The Sixth Circuit held that a lower court erred in acquitting defendants convicted for violating the Ports and Waterways Safety Act in connection with a benzene leak from a barge in the Mississippi River. The defendants were convicted for failing to immediately notify the U.S. Coast Guard of a hazardous condition aboard a vessel. The lower court held that the PWSA violation was a point-in-time offense that occurred on the Mississippi River prior to entry into the Western District of Kentucky--the jurisdiction of the lower court. It therefore dismissed the case for improper venue. But the crime is a continuing offense rather than a point-in-time offense. Accordingly, the location of the crime continued into the Western District of Kentucky as the vessel in question proceeded up the Mississippi River. In addition, the defendants are not entitled to a judgment of acquittal on the remaining grounds presented to the lower court because the evidence was sufficient to establish the elements of the PWSA offense beyond a reasonable doubt. United States v. Canal Barge Co., Nos. 09-5388 et al., 41 ELR 20065 (6th Cir. Jan. 7, 2011).


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


THE FEDERAL AGENCIES

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


AIR:



  • EPA amended the new source performance standards for electric utility and industrial-commercial-institutional steam-generating units. 76 FR 3517 (1/20/11).

  • EPA amended NESHAPs for the Portland cement manufacturing industry and the standards of performance for Portland cement plants. 76 FR 2832 (1/18/11).

  • EPA extended attainment of the 1997 eight-hour ozone NAAQS for the New Jersey portion of the Philadelphia area moderate nonattainment area until June 15, 2011. 76 FR 3838 (1/21/11).

  • EPA extended attainment of the 1997 eight-hour ozone NAAQS for the Delaware, Maryland, and Pennsylvania portions of the Philadelphia area moderate nonattainment area until June 15, 2011. 76 FR 3840 (1/21/11).

  • EPA established a federal implementation plan for the Louisville metro air pollution control district because of its failure to submit an SIP that applies PSD requirements to greenhouse gas (GHG)-emitting sources by January 1, 2011. 76 FR 2581 (1/14/11).

  • EPA determined that the Louisville metro air pollution control district failed to submit an SIP that applies PSD requirements to GHG-emitting sources by January 1, 2011. 76 FR 2591 (1/14/11).

  • EPA determined that the Hayden, Nogales, and Paul Spur/Douglas moderate nonattainment areas in Arizona met the particulate matter NAAQS by the December 31, 1994, attainment date. 76 FR 1532 (1/11/11).

  • EPA proposed to amend the new source performance standards for electric utility and industrial-commercial-institutional steam-generating units; see above for direct final rule. 76 FR 3587 (1/20/11).

  • EPA proposed to amend NESHAPs for the Portland cement manufacturing industry and the standards of performance for Portland cement plants; see above for direct final rule. 76 FR 2860 (1/18/11).

  • EPA proposed to update a portion of the outer continental shelf air regulations for California. 76 FR 1390 (1/10/11).

  • SIP Approvals: Minnesota (NAAQS for lead) 76 FR 2263 (1/13/11). Texas (partial approval of application and permitting procedures for electric-generating facilities) 76 FR 1525 (1/11/11). Virginia (addition of the 2008 eight-hour ozone NAAQS and related updates) 76 FR 2829 (1/18/11); (reasonably available control technology and addition of the 1997 eight-hour ozone NAAQS) 76 FR 3023 (1/19/11).

  • SIP Proposals: Delaware (interstate transport of pollution) 76 FR 2853 (1/18/11). Idaho (regional haze program and interstate transport of pollution plan) 76 FR 1579 (1/11/11). Indiana (discontinuance of vehicle inspection and maintenance program in Clark and Floyd counties) 76 FR 2066 (1/12/11). Minnesota (NAAQS for lead; see above for direct final rule) 76 FR 2293 (1/13/11). Virginia (GHG permitting provisions) 76 FR 2070 (1/12/11); (addition of the 2008 eight-hour ozone NAAQS and related updates; see above for direct final rule). 76 FR 2859 (1/18/11).

HAZARDOUS & SOLID WASTE:



  • EPA proposed to approve revisions to Minnesota's hazardous waste management program. 76 FR 2618 (1/14/11).

  • EPA entered into a proposed administrative settlement under CERCLA that requires the settling party to pay U.S. response costs incurred at the Peach Orchard Road Groundwater Plume site in Augusta, Georgia. 76 FR 2112 (1/12/11).

  • EPA entered into a proposed administrative settlement under CERCLA that requires the settling parties to pay past and future U.S. response costs incurred at the D'Imperio Property Superfund site in Hamilton Township, New Jersey. 76 FR 3886 (1/21/11).

OFFICE OF THE PRESIDENT:



  • The president issued Executive Order No. 13563 to improve regulation and regulatory review by federal agencies. 76 FR 3821 (1/21/11).

  • The president issued a memorandum calling upon all agencies to make regulatory compliance information and enforcement data readily accessible to the public. 76 FR 3825 (1/21/11).

TOXIC SUBSTANCES:



  • EPA proposed to incorporate American Society for Testing and Materials standards to allow the use of alternatives to mercury-containing industrial thermometers. 76 FR 2056 (1/12/11).

WATER:



  • EPA proposed to approve revisions to New Jersey's public water system supervision program. 76 FR 2374 (1/13/11).

  • EPA proposed to approve revisions to New Mexico's public water system supervision program. 76 FR 1431 (1/10/11).

WILDLIFE:



  • FWS removed the Maguire daisy from the list of endangered and threatened plants under the ESA. 76 FR 3029 (1/19/11).

  • FWS announced a 90-day finding on a petition to delist or reclassify six California species of plants under the ESA; the Agency found that delisting or reclassification may be warranted and initiated status reviews of the species. 76 FR 3069 (1/19/11).

  • FWS proposed to list two freshwater mussels as endangered throughout their ranges under the ESA. 76 FR 3392 (1/19/11).

  • NOAA proposed to revise the management plan and regulations for the Olympic Coast National Marine Sanctuary off the outer coast of Washington. 76 FR 2611 (1/14/11).

  • NOAA-Fisheries seeks public comment on critical habitat designation proposals for coho salmon and steelhead in watersheds in southwest Washington and northwest Oregon. 76 FR 1392 (1/10/11).

DOJ NOTICES OF SETTLEMENT:



  • In re Crucible Materials Corp., No. 09-11582 (Bankr. D. Del. Jan. 7, 2011). Settling CERCLA debtors responsible for violations at five sites in Onondaga County, New York, must provide the United States with general unsecured claims totaling $999,539; one debtor must provide an additional general unsecured claim of $20,564,000 in connection with one of the sites. 76 FR 2134 (1/12/11).

  • United States v. Seven Out LLC, No. 3:11-cv-0009-UAMH-MCR (M.D. Fla. Jan. 5, 2011). Settling CERCLA defendants responsible for violations at the BCX Tank Superfund site in Jacksonville, Florida, must pay $350,000 to the United States through their insurer and must pay the net proceeds from the sale of the site property to the United States. 76 FR 2134 (1/12/11).

  • United States v. Domtar Paper Co. LLC, No. 4:11-cv-00002 (E.D.N.C. Jan. 3, 2011). A settling CERCLA defendant must pay $3.2 million in U.S. response costs incurred at the Plymouth Wood Treating Plant Superfund site near Plymouth, North Carolina, before March 27, 2009, as well as any subsequent U.S. response costs, and must perform the remedial design and action specified in a September 24, 2008, record of decision. 76 FR 1459 (1/10/11).

  • United States v. Blue Tee Corp., No. 5:11-civ-04004 (D. Kan. Jan. 14, 2011). A settling CERCLA defendant responsible for violations at three smelting facilities in Kansas must pay trustees a total of $180,298.27 in past assessment costs, future restoration planning costs, and operation and maintenance costs and must arrange for the purchase and transfer of a specified 80-acre parcel of property to offset injured, lost, and destroyed natural resources. 76 FR 3924 (1/21/11).

  • United States v. Northern Indiana Public Service Co., No. 2:11-cv-016 (N.D. Ind. Jan. 13, 2011). Settling CAA defendants responsible for violations at four coal-fired power plants in Indiana must pay a $3.5 million civil penalty, must install or upgrade air emission controls at three of the plants and cease operations at the plant in Gary, and must perform environmental mitigation projects costing at least $9.5 million. 76 FR 3656 (1/20/11).

  • United States v. City of Evansville, No. 3:09-CV-128 (S.D. Ind. Jan. 6, 2011). A settling CWA defendant responsible for violations in the operation of its municipal wastewater and sewer system must pay a $420,000 civil penalty to the United States and a $70,000 civil penalty to Indiana, must spend an estimated $4 million to connect homes with failing septic systems to the city's sewer system, and must remedy the deficiencies in the sewer system at a cost that may exceed $500 million no later than 2037. 76 FR 3159 (1/19/11).

  • United States v. Gasco Energy Inc., No. 2:10-CV-01282-PMW (D. Utah Dec. 30, 2010). A settling CAA defendant responsible for violations at its Riverbend compressor station in Uintah County, Utah, must pay a $350,000 civil penalty, must comply with regulatory requirements, and must make additional emissions reductions. 76 FR 2922 (1/18/11).

  • United States v. Western Reman Industrial Inc., No. 11-cv-00008 (N.D. Ind. Jan. 10, 2011). A settling CERCLA defendant responsible for violations at the former Grissom Air Force Base in Peru, Indiana, must pay $300,000 in past and future U.S. response costs incurred at the site. 76 FR 2922 (1/18/11).

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


THE CONGRESS

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


Bills Introduced



  • H.R. 230 (Jackson Lee, D-Tex.) (ethanol) would authorize the Secretary of Energy to make loan guarantees for cellulosic ethanol production technology development. 157 Cong. Rec. H134 (daily ed. Jan. 7, 2011). The bill was referred to the Committee on Energy and Commerce and the Committee on Science, Space, and Technology.

  • H.R. 241 (Gallegly, R-Cal.) (federal land) would authorize the conveyance of certain National Forest System lands in the Los Padres National Forest in California. 157 Cong. Rec. H135 (daily ed. Jan. 7, 2011). The bill was referred to the Committee on Natural Resources.

  • H.R. 251 (Serrano, D-N.Y.) (federal land) would authorize the Secretary of the Interior to study the suitability and feasibility of designating Oak Point and North Brother Island in the Bronx in the state of New York as a unit of the National Park System. 157 Cong. Rec. H135 (daily ed. Jan. 7, 2011). The bill was referred to the Committee on Natural Resources.

  • H.R. 258 (Wittman, R-Va.) (Chesapeake Bay) would require OMB to prepare a crosscut budget for restoration activities in the Chesapeake Bay watershed and require EPA to develop and implement an adaptive management plan. 157 Cong. Rec. H135 (daily ed. Jan. 7, 2011). The bill was referred to the Committee on Natural Resources and the Committee on Transportation and Infrastructure.

  • H.R. 261 (Pallone, D-N.J.) (Outer Continental Shelf Lands Act) would amend the Outer Continental Shelf Lands Act to prohibit the leasing of any area of the outer continental shelf for the exploration, development, or production of oil, gas, or any other mineral. 157 Cong. Rec. H141 (daily ed. Jan. 11, 2011). The bill was referred to the Committee on Natural Resources.

  • H.R. 264 (Thompson, D-Cal.) (oil and gas leasing) would permanently prohibit oil and gas leasing off the coast of Mendocino, Humboldt, and Del Norte Counties in the state of California. 157 Cong. Rec. H201 (daily ed. Jan. 12, 2011). The bill was referred to the Committee on Natural Resources.

  • H.R. 271 (Fortenberry, R-Neb.) (biomass energy) would direct the Secretary of Agriculture to establish a program to provide institutes of higher education, elementary and secondary schools, and hospitals zero-interest loans for conversion to use of biomass for energy generation. 157 Cong. Rec. H201 (daily ed. Jan. 12, 2011). The bill was referred to the Committee on Agriculture.

  • H.R. 272 (Fortenberry, R-Neb.) (lead) would amend the Consumer Product Safety Improvement Act to exempt ordinary books and paper-based printed material from the lead limit in such Act. 157 Cong. Rec. H201 (daily ed. Jan. 12, 2011). The bill was referred to the Committee on Energy and Commerce.

  • H.R. 275 (Fortenberry, R-Neb.) (federal land) would authorize the Secretary of the Interior to expand the boundary of the Homestead National Monument of America in the state of Nebraska. 157 Cong. Rec. H201 (daily ed. Jan. 12, 2011). The bill was referred to the Committee on Natural Resources.

  • H.R. 277 (Fortenberry, R-Neb.) (renewable energy credit) would amend the Internal Revenue Code of 1986 to provide an exception to the reduction of renewable energy credit for certain authority under the Farm Security and Rural Investment Act of 2002. 157 Cong. Rec. H201 (daily ed. Jan. 12, 2011). The bill was referred to the Committee on Ways and Means.

  • H.R. 279 (Fortenberry, R-Neb.) (climate) would prohibit any federal agency or official, in carrying out any Act or program to reduce the effects of greenhouse gas emissions on climate change, from imposing a fee or tax on gaseous emissions emitted directly by livestock. 157 Cong. Rec. H201 (daily ed. Jan. 12, 2011). The bill was referred to the Committee on Energy and Commerce and the Committee on Ways and Means.

  • H.R. 281 (Gallegly, R-Cal.) (federal land) would provide for a land exchange between the Secretary of Agriculture and the United Water Conservation District of California to eliminate certain private inholdings in the Los Padres National Forest. 157 Cong. Rec. H201 (daily ed. Jan. 12, 2011). The bill was referred to the Committee on Natural Resources.

  • H.R. 296 (Young, R-Alaska) (federal land) would resolve the claims of the Bering Straits Native Corporation and the state of Alaska to land adjacent to Salmon Lake in the state of Alaska and to provide for the conveyance to the Bering Straits Native Corporation of certain other public land in partial satisfaction of the land entitlement of the Corporation under the Alaska Native Claims Settlement Act. 157 Cong. Rec. H202 (daily ed. Jan. 12, 2011). The bill was referred to the Committee on Natural Resources and the Committee on the Budget

  • H.R. 306 (Jones, R-N.C.) (federal land) would direct the Secretary of the Interior to enter into an agreement to provide for management of the free-roaming wild horses in and around the Currituck National Wildlife Refuge. 157 Cong. Rec. H254 (daily ed. Jan. 18, 2011). The bill was referred to the Committee on Natural Resources.

  • H.R. 325 (Filner, D-Cal.) (CAA nonattainment) would amend the CAA to delay the effect of reclassifying certain nonattainment areas adjacent to an international border. 157 Cong. Rec. H353 (daily ed. January 19, 2011). The bill was referred to the Committee on Energy and Commerce.

  • H.R. 332 (Filner, D-Cal.) (federal agencies) would amend title 10, U.S. Code, to require the Department of Defense and all other defense-related agencies of the United States to fully comply with federal and state environmental laws. 157 Cong. Rec. H353 (daily ed. January 19, 2011). The bill was referred to the Committees on Armed Services, Energy and Commerce, Transportation and Infrastructure, Natural Resources, and Education and the Workforce.

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:

Arkansas
California
Colorado

Connecticut
Illinois
Indiana

Iowa
Maine
Maryland

Missouri
Montana
Nevada

New Hampshire
New Jersey
New York

Oklahoma
Pennsylvania
Rhode Island

West Virginia
Wisconsin
 

ARKANSAS


Energy:



  • The Economic Development Commission adopted Energy Efficiency and Natural Resource Conservation in Public Buildings. The rule will create the State Buildings Energy Management Program, which mandates that public buildings avoid resource depletion and prevent environmental degradation caused by facilities and infrastructure. Among other new rules, certain state buildings must reduce energy usage by 20 percent by the end of FY2014 and 30 percent by the end of FY2017. The rules took effect December 2, 2010. See http://www.sos.arkansas.gov/elections/elections_pdfs/register/Dec10Reg/168.00.10-001.pdf.

CALIFORNIA


Climate:



  • The Air Resources Board will hold a public hearing to consider changes to Calif. Code Regs. tit. 17 §95486, Carbon Intensity Lookup Tables in the Low Carbon Fuel Standard regulation. The board has developed carbon intensities for six additional fuel pathways: Used Cooking Oil Biodiesel (with and without cooking); Canola Biodiesel; Corn Oil Biodiesel; and Sorghum Ethanol (dry and wet distillers grain and solubles). The hearing will be on February 24, 2011, and the deadline for written comments is February 23. See http://www.oal.ca.gov/res/docs/pdf/notice/1z-2011.pdf (pp. 9-14).

Toxic Substances:



  • The Office of Environmental Health Hazard Assessment proposed amendments to 27 Calif. Code Regs. §25705, Specific Regulatory Levels Posing No Significant Risk. Changes would establish a No Significant Risk Level for 4-methylimidazole. The deadline for comment is February 7, 2011. See http://www.oal.ca.gov/res/docs/pdf/notice/1z-2011.pdf (pp. 14-16).

  • The Office of Pesticide Regulation proposed amendments to 3 Calif. Code Regs. §§6128 and 6130, Enforcement Response. Changes would revise appropriate enforcement responses to be taken by the county agricultural commissioner each time a pesticide violation occurs. The deadline for comments is February 28, 2011. See http://www.oal.ca.gov/res/docs/pdf/notice/2z-2011.pdf (pp. 51-54).

COLORADO


Hazardous & Solid Waste:



  • The Department of Public Health and Environment proposed to amend 6 Colo. Code Regs. 1007-3, Hazardous Waste Fees. Changes would provide for a one-year temporary decrease of 12 percent in hazardous waste fees for Calendar Year 2011. There will be a public hearing February 15, 2011. See http://www.sos.state.co.us/CCR/Upload/NoticeOfRulemaking/ProposedRuleAttach2010-01205.RTF.

  • The Department of Public Health and Environment proposed to amend 6 Colo. Code Regs. 1007-2, Regulations Pertaining to Solid Waste Sites and Facilities. Changes would delete the existing section 10 (Scrap Tire Facilities) regulations, add new section 10 regulations regarding Waste Tire Facilities and Waste Tire Haulers, and delete and reserve section 15 (Waste Motor Vehicle Tire Haulers). There will be a public hearing February 15, 2011. See http://www.sos.state.co.us/CCR/Upload/NoticeOfRulemaking/ProposedRuleAttach2010-01206.RTF.

CONNECTICUT


Wildlife:



  • The Department of Environmental Protection proposed to amend Conn. Gen. Stat. §26.55, which addresses the importation and possession of wild birds, mammals, reptiles, amphibians, and invertebrates. The rule change will establish a list of wild animals that may not be imported or possessed in Connecticut except by certain research or entertainment facilities (like zoos) due to reasons of safety, and a similar list restricting animal importation and possession to the same facilities due to the species' threat to agriculture. There will be a public hearing on February 15, 2011, and the deadline for written comment is March 1. See http://www.ct.gov/dep/cwp/view.asp?A=2586&Q=471192.

ILLINOIS


Hazardous & Solid Waste:



Toxic Substances:



INDIANA


Air:



IOWA


Water:



  • The Environmental Protection Commission amended Iowa Admin. Code ch. 61, Water Quality Standards. The amendment will provide water quality certification pursuant to CWA §401 for Regional Permit 27 and the reissued Regional Permits 33 and 34. Changes take effect February 16, 2011. See http://www.legis.state.ia.us/aspx/ACODOCS/DOCS/01-12-2011.Bulletin.pdf (pp. 1037-39).

  • The Environmental Protection Commission amended Iowa Admin. Code ch. 135, Technical Standards and Corrective Action Requirements for Owners and Operators of Underground Storage Tanks. Changes incorporate new state laws on the investigation and cleanup of petroleum contamination. Changes take effect February 16, 2011. See http://www.legis.state.ia.us/aspx/ACODOCS/DOCS/01-12-2011.Bulletin.pdf (pp. 1039-40).

MAINE


Toxic Substances:



  • The Department of Environmental Protection adopted Ch. 882, which designates bisphenol A as a priority chemical in children's products. The regulation requires manufacturers of childcare items and food sold in packaging containing bisphenol A to report on chemical usage and known alternatives. It also bans the sale of food in packaging containing bisphenol starting January 1, 2012. The rule took effect January 9, 2011. See http://www.maine.gov/sos/cec/rules/notices/2011/011211.html.

  • The Department of Environmental Protection amended Ch. 883, designating the chemical class nonylphenol and nonylphenol ethoxylates as a priority chemical and requiring manufacturers of household and commercial cleaning products, cosmetics and personal care products, and home maintenance products sold, marketed, or intended for use by consumers that contain intentionally added nonylphenol to report on chemical usage. The rule took effect January 9, 2011. See http://www.maine.gov/sos/cec/rules/notices/2011/011211.html.

MARYLAND


Air:



  • The Department of the Environment proposed to amend Md. Code Regs. 26.11.01, General Administrative Provisions, and 26.11.09, Control of Fuel-Burning Equipment, Stationary Internal Combustion Engines, and Certain Fuel-Burning Installations. The amendment would make minor administrative corrections to the Department’s opacity regulations that became effective May 17, 2010. There will be a public hearing on February 15, 2011, and the deadline for comment is February 16. See http://www.dsd.state.md.us/mdregister/3802.pdf (pp. 104-06).

  • The Department of the Environment proposed to amend Md. Code Regs. 26.11.02, Permits, Approvals, and Registration, and add the chapter 26.11.36, Distributed Generation. Among other changes, the amendments would establish annual reporting requirements for curtailment service providers that negotiate contracts with facilities that operate on-site generators/engines and alter requirements relating to load-shaving units. There will be a public hearing on February 15, 2011, and the deadline for comment is February 16. See http://www.dsd.state.md.us/mdregister/3802.pdf (pp. 106-10).

  • The Department of the Environment proposed to amend Md. Code Regs. 26.11.08, Control of Incinerators. Changes would clarify requirements for incinerators that demonstrate compliance with visible emissions standards through use of continuous opacity monitors. There will be a public hearing on February 15, 2011, and the deadline for comment is February 16. See http://www.dsd.state.md.us/mdregister/3802.pdf (pp. 110-12).

  • The Department of the Environment proposed to amend Md. Code Regs. 26.11.09, Control of Fuel-Burning Equipment, Stationary Internal Combustion Engines, and Certain Fuel-Burning Installations. Changes would limit the burning of used oil to fuel-burning equipment that burns fuel oil, require a permit to construct or other authorization for fuel-burning equipment that will burn on-specification used oil if it has a rated heat input capacity of 50 million btu or more, and require a permit to construct application for installations that propose to burn waste combustible fluid (WCF) or off-specification used oil and assure that the WCF is burned in an authorized installation. There will be a public hearing on February 15, 2011, and the deadline for comment is February 16. See http://www.dsd.state.md.us/mdregister/3802.pdf (pp. 112-14).

  • The Department of the Environment proposed to amend Md. Code Regs. 26.11.19, Volatile Organic Compounds from Specific Processes. The amendment would adopt the requirements of U.S. EPA’s Control Techniques Guidelines for miscellaneous metal and plastic parts coating. There will be a public hearing on February 15, 2011, and the deadline for comment is February 16. See http://www.dsd.state.md.us/mdregister/3802.pdf (pp. 114-17).

  • The Department of the Environment proposed to amend Md. Code Regs. 26.11.34, Low Emissions Vehicle Program, to reflect changes made to California's low emission vehicle regulations. There will be a public hearing on February 15, 2011, and the deadline for comment is February 16. See http://www.dsd.state.md.us/mdregister/3802.pdf (pp. 125-27).

Climate:



  • The Department of the Environment proposed to amend Md. Code Regs. 26.09, Maryland CO2 Budget Trading Program. Changes would implement provisions of the Healthy Air Act, which required Maryland to join the Regional Greenhouse Gas Initiative, a 10-state market based carbon dioxide cap-and-trade program. In order to create additional incentives to generate electricity in non-carbon dioxide producing ways, the department is outlining eligibility requirements for the Voluntary Renewable Set-Aside Account, which encourages the voluntary purchase of electricity that has a demonstrated greenhouse gas benefit. There will be a public hearing on February 15, 2011, and the deadline for comment is February 16. See http://www.dsd.state.md.us/mdregister/3802.pdf (pp. 96-100).

  • The Department of the Environment proposed to amend Md. Code Regs. 26.11, Air Quality, to implement the requirements of U.S. EPA's Tailoring Rule. There will be a public hearing on February 15, 2011, and the deadline for comment is February 16. See http://www.dsd.state.md.us/mdregister/3802.pdf (pp. 101-04).

MISSOURI


Climate:



  • The Department of Natural Resources adopted emergency amendments to Mo. Code Regs. tit. 10, §6.060, Construction Permits Required, and §6.065, Operating Permits. The amendments incorporate permitting requirements that will cover new construction projects that emit greenhouse gas emissions of at least 100,000 tons per year or modifications at existing facilities that increase emissions by at least 75,000 tons per year. The emergency regulations took effect January 3, 2011, and expires on July 2. See http://www.sos.mo.gov/adrules/moreg/current/v36n2/v36n2a.pdf (pp. 218-20).

Wildlife:



MONTANA


Hazardous & Solid Waste:



  • The Petroleum Tank Release Compensation Board proposed to amend Mont. Admin. R. 17.58, pertaining to procedural and substantive rules regarding petroleum tank release compensation. There will be a hearing on February 2, 2011, and the deadline for comment is February 10. See http://sos.mt.gov/arm/Register/archives/MAR2011/MAR11-01.pdf (pp. 1-24).

  • The Department of Environmental Quality proposed to amend Mont. Admin. R. 17.53 & 17.56, pertaining to emergency preparedness in hazardous waste facilities and underground storage tanks. There will be a hearing on February 14, 2011, and the deadline for written comment is February 10. See http://sos.mt.gov/arm/Register/archives/MAR2011/MAR11-01.pdf (pp. 25-28).

NEVADA


Water:



  • The Environmental Commission amended Nev. Admin. Code 445A, relating to water controls. Changes would affect financial assistance for wastewater treatment works and water pollution control projects. The rule took effect January 13, 2011. See http://www.leg.state.nv.us/register/2010Register/R115-10A.pdf.

NEW HAMPSHIRE


Air:



  • The Department of Environmental Services proposed to readopt Env-A 1000, Prevention, Abatement, and Control of Open Source Air Pollution, with an amendment. The section establishes requirements for open burning, fugitive dust, and firefighter instruction and training activities. Changes would delete the requirement for open burning not to create a nuisance, and provide more detail for precautions needed to prevent and control fugitive dust. There will be a public hearing February 15, 2011, and the deadline for comment is February 28. See http://www.gencourt.state.nh.us/rules/register/2011/january14-11.pdf (pp. 1-2).

NEW JERSEY


Wildlife:



  • The Department of Environmental Protection proposed to amend N.J. Admin. Code §7.25.4.1 & 13, Endangered and Nongame Species. Changes would revise certain definitions in the section and add new status categories. See http://www.lexisnexis.com/njoal/ (43 N.J.R. 87a).

NEW YORK


Air:



  • The Department of Environmental Conservation amended N.Y. Comp. Codes R. & Regs. tit. 6, §§200 & 247, Outdoor Wood Boilers Used to Heat Homes and Commercial Establishments. Changes relate to particulate emission standards and engineering controls for new outdoor wood boilers. The amendments take effect January 28, 2011. See http://www.dos.state.ny.us/info/register/2011/jan19/pdfs/rules.pdf (pp. 30-36).

Climate:



  • The Department of Environmental Conservation implemented an emergency amendment to N.Y. Comp. Codes R. & Regs. tit. 6, §§200, 201, & 231, New Source Review Requirements for Proposed New Major Facilities and Major Modifications to Existing Facilities. Changes would incorporate U.S. EPA's tailoring rule. The emergency regulation took effect December 29, 2010, and the rule will expire March 28, 2011. See http://www.dos.state.ny.us/info/register/2011/jan19/pdfs/rules.pdf (pp. 22-30).

Fisheries:



  • The Department of Environmental Conservation amended N.Y. Comp. Codes R. & Regs. tit. 6, §41, Sanitary Conditions of Shellfish Lands. Changes reclassify underwater lands to prohibit the harvest of shellfish. The rule took effect January 19, 2011. See http://www.dos.state.ny.us/info/register/2011/jan19/pdfs/rules.pdf (pp. 36-39).

OKLAHOMA


Hazardous & Solid Waste:



  • The Department of Environmental Quality proposed to amend Okla. Admin. Code §252.215.21, Waste Tire Processing, Certification, Permits and Compensation. Changes would implement the requirements of the amended Oklahoma Waste Tire Recycling Act, establishing a waste tire recycling fee for agricultural tires and requiring the Department to maintain a list of tire weights. There will be a public hearing on February 25, 2011, and the deadline for written comments is February 22. See http://www.oar.state.ok.us/register/Volume-28_Issue-09.htm#a24105.

PENNSYLVANIA


Land Use:



  • The Environmental Quality Board amended 25 Pa. Admin. Code Ch. 250, Administration of the Land Recycling Program. Changes update the standards related to cleanup of contaminated sites under the Land Recycling Act. The Land Recycling Act requires the Board to establish by regulation uniform statewide health-based standards so that any substantial present or probable future risk to human health and the environment is eliminated. See http://www.pabulletin.com/secure/data/vol41/41-2/39.html.

RHODE ISLAND


Climate:



  • The Environmental Management Agency amended Details for Regulation Air Pollution Control Regulation No. 9 - Air Pollution Control Permits (6306). The change adopts the provisions of the Greenhouse Gas Tailoring Rule into state regulations. The rule takes effect January 31, 2011. See http://sos.ri.gov/rules/index.php?page=details&erlid=6306.

WEST VIRGINIA


Air:



WISCONSIN


Climate:



  • The Natural Resources Board proposed an emergency order to amend Wis. Admin. Code NR 407.02, relating to major source permitting thresholds for sources of greenhouse gas emissions. The emergency rule is in effect through May 15, 2011. See http://legis.wisconsin.gov/rsb/code/register/reg661a.pdf (p. 10).

Wildlife:



  • The Department of Natural Resources amended Wis. Admin. Code NR 27.03 to list cave bats as a threatened species. The proposed rule responds to the spread of white-nose syndrome in the state. It also amends NR 40.04 to include the white-nose syndrome-causing fungus geomyces destructans as a prohibited invasive species. See http://legis.wisconsin.gov/rsb/code/register/reg661a.pdf (pp. 9-10).

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


INTERNATIONAL

EUROPEAN UNION FIGHTS CARBON OFFSET MARKET THEFT

The EU Commission will re-open carbon offset spot trading step-by-step as each registry proves its security, EU officials said, after a possibly concerted theft of carbon permits worth up to 30 million euros led to a week-long freeze last Wednesday. The theft, focusing on markets in the Czech Republic and Austria, led to an investigation that declared 14 of the EU's 27 registries "not up to scratch," according to the European Commission's climate action spokeswoman Maria Kokkonen. The reopening of markets has been further delayed by the Czech Republic, which declared that its carbon registry would remain closed indefinitely after similar action by the Austrian registry. The theft, according to Jos Delbeke, head of the Commission's climate action division, is the largest amount of permits ever taken without authorization, numbering up to two million. Meanwhile, in response to criticism that offsets from large industrial projects, particularly those related to certain hydrofluorocarbons and nitrous oxide, award excessive profits while crowding out other projects, the Commission voted to ban the most common type of offsets starting in May 2013. For the story on the reopening of markets, see http://www.reuters.com/article/idUSTRE70J2GU20110120?pageNumber=1. For a timeline on scandals in the EU carbon market, see http://www.reuters.com/article/idUSTRE70J4M120110120. For the ban on offsets, see http://www.reuters.com/article/idUSTRE70K37L20110121.


 


SOUTH AFRICA FACES WATER POLLUTION CRISIS FROM FLOODING

The South African Cabinet is expected to give a directive on action in response to acid mine spillage from Gauteng. Unexpected flooding has raised the levels of the toxic water in the province's mines, overwhelming the pumps designed to remove hazardous water out from underground. Mine foreman Derrick Souden said that the pumping should be four times its current rate, and that gold in mines will shortly be unreachable when the pumps themselves become flooded. Pollution has reached a critical point, the union United Association of South Africa said, as the acid water has reached the Cradle of Humankind from the West Rand, a World Heritage site. The Department of Environmental Affairs has set aside R218 million to fit pumps. In addition to threats of acid mine spillage, farmers face the threat of crops contaminated by waterborne pathogens from flooding from sewage plants, 80 percent of which are estimated to be overloaded and 40 percent of which are estimated to be on the brink of collapse. For the story on acid mine spillage, see http://www.timeslive.co.za/local/article856813.ece/Rains-bring-acid-mine-spillage-closer. For the story on waters reaching Cradle of Humankind, see http://www.news24.com/SouthAfrica/News/Decisive-action-imperative-for-Cradle-20110114. For the government's response, see http://www.defenceweb.co.za/index.php?option=com_content&view=article&id=13153:decision-on-toxic-mine-drainage-in-sight&catid=52:Human%20Security&Itemid=114.


ALGERIA SETS NEW RENEWABLE ENERGY GOALS

Energy and Mines Minister Youcef Yousfi announced last week that Algeria has adopted new goals that six percent of energy will come from renewable sources by 2015 and 40 percent by 2020. Fossil fuels currently account for 96 percent of export revenue, and Yousfi said that the launch of 60 renewable energy projects capable of producing 3,000 megawatts would "prepare the country for the post-petrol era." The country recently joined the Desertec Industrial Initiative, a Sahara group that aims to use wind and solar power to provide 15 percent of Europe's power by 2050. Algeria's first wind farm is expected to open in 2012 and will cover 30 hectares in southwest Algeria. For the full story, see http://www.scidev.net/en/news/algeria-plans-rapid-green-energy-ramp-up.html.


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


Note: To request additional information, please call (800) 433-5120 or (202) 939-3844. Documents may also be available free or at a nominal charge from the applicable court or agency. Copyright© 2011, Environmental Law Institute, Washington, D.C. All rights reserved.


ELR STAFF

Leslie Carothers, Publisher
Scott Schang, Editor-in-Chief
Rachel Jean-Baptiste, Managing Editor
Erin Webreck, Associate Editor
William J. Straub, Desktop Publisher
Clare Shepherd, Web Editor