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Weekly Update Volume 41, Issue 21

07/25/2011

LITIGATION 

MAGNUSON-STEVENS FISHERY CONSERVATION AND MANAGEMENT ACT, BYCATCH

The D.C. Circuit vacated the National Marine Fisheries Service's (NMFS') methodology for tracking bycatch in the fisheries off the Northeastern coast of the United States. The Magnuson-Stevens Fishery Conservation and Management Act, as amended by the Sustainable Fisheries Act, requires the NMFS, in conjunction with eight regional councils, to "establish a standardized reporting methodology to assess the amount and type of bycatch" in each fishery in each region. To comply with this requirement, the NMFS issued an "omnibus amendment" to the fishery management plans in the New England and Mid-Atlantic regions. But because the amendment grants the NMFS substantial discretion both to invoke and to make allocations according to a non-standardized procedure, the NMFS did not "establish" a standardized methodology under the Fisheries Act. At best, the rule sets a benchmark from which the agency freely can and apparently does significantly depart in its annual allocation of observers. Accordingly, the court reversed the lower court decision in favor of the NMFS and instructed it to vacate the amendment and to remand the matter to the agency for further proceedings. Oceana, Inc. v. Locke, No. 10-5299, 41 ELR 20239 (D.C. Cir. July 19, 2011).


RCRA, NOTICE:

The Second Circuit affirmed a lower court decision dismissing residents' RCRA claims against a minerals processing plant. The residents claimed that the plant was creating an imminent and substantial endangerment to human health and the environment by permitting its waste to seep into the groundwater, thereby contaminating hydrologically connected water sources with aminoethylethanolamine (AEEA). They also claimed that the plant was operating an unlawful open dump because the solid waste allegedly contained an amount of arsenic above the permitted level established by EPA. But when an alleged violation of RCRA depends on the presence or release of a particular contaminant, the plaintiff's notice of violation and intent to file suit (NOI) must identify the contaminant alleged to be the basis of the violation with sufficient specificity to permit the recipient to identify the specific legal provision alleged to be violated and the activity alleged to constitute the violation. Here, the residents' NOI did not identify AEEA and arsenic as contaminants in the plant's waste. Accordingly, they did not give the plant adequate notice of the endangerment and open dumping violations for which they seek to hold the plant liable. The lower court, therefore, properly dismissed the residents' endangerment and open dumping claims. Brod v. Omya, No. 09-4551, 41 ELR 20236 (2d Cir. July 18, 2011).


FEDERAL TORT CLAIMS ACT, DISCRETIONARY FUNCTION EXCEPTION:

The Ninth Circuit reversed a lower court decision dismissing parents' suit against the United States under the Federal Tort Claims Act (FTCA) for injuries their child allegedly suffered due to exposure to thallium--a toxic heavy metal--from soil dumped into a landfill adjacent to the child's home and school. The U.S. Navy dumped the soil into the landfill as part of a remediation project. The lower court erred in holding that the discretionary function exception barred the FTCA claim. The Navy's safety manual imposes mandatory and specific requirements for environmental cleanup operations and leaves no room for discretion. And while a federal agreement outlining the Navy's cleanup responsibilities did allow for some discretion, the Navy's actions in carrying out its responsibilities were not protected policy judgments. The exception, therefore, does not apply. The lower court also erred in finding that the Navy acted reasonably and not in breach of its duty in conducting the remediation project. The lower court found that the risk that the child or anyone else would be exposed to thallium from the landfill project was not foreseeable, but the court applied the wrong legal standard in its determination of "foreseeability." The proper question in the "foreseeability" inquiry for purposes of determining whether the Navy breached its duty was not whether the child was exposed to thallium from the landfill--a "causation" question that was reserved for a later phase of the trial--but whether it was foreseeable that a person exposed to thallium would suffer the kinds of injury that the child suffered. In addition, the lower court's conclusion that the Navy's conduct was reasonable is clearly erroneous in light of evidence of glaring omissions in the Navy's safety oversight for the project, which the lower court simply ignored. The case was therefore reversed and remanded. Myers v. United States, No. 09-56092, 41 ELR 20237 (9th Cir. July 15, 2011).


CWA, NEPA, NATIONWIDE PERMITS:

A district court dismissed environmental groups' suit for declaratory and injunctive relief challenging the U.S. Army Corps of Engineers' nationwide permitting program, and, specifically, its use throughout the Appalachian region to issue permits for mining activities. The groups alleged CWA, NEPA, and APA violations and sought to enjoin the Corps from authorizing further discharges of dredged or fill material under nationwide permits (NWP) 21, 49, and 50. The groups failed to identify any site-specific activities authorized under NWP 49 that are diminishing or threatening to diminish their members' enjoyment of particular river segments. Accordingly, they lacked standing to challenge NWP 49. As for the merits, the Corps' decision to issue NWPs 21 and 50 was neither arbitrary nor capricious in violation of NEPA. The Corps considered the foreseeable environmental effects that could result from mining activities, and it explained that the NWPs' General Conditions, including compensatory mitigation, would ensure that cumulative effects would be minimal. Moreover, the Corps' conclusion that the activities authorized under the 2002 NWP 21 would not have any continuing adverse effects on the environment because the required compensatory mitigation would offset these effects was not irrational. And the Corps' cumulative impacts analysis was not arbitrary and capricious as it involved a thorough review of the environmental effects resulting from the issuance of NWPs 21 and 50. Likewise, the Corps' cumulative impact analysis complied with the CWA. Kentucky Riverkeeper, Inc. v. Midkiff, No. 05-181, 41 ELR 20240 (E.D. Ky. July 14, 2011) (Bunning, J.)


PRELIMINARY INJUNCTION, OLD-GROWTH TREES:

A district court preliminarily enjoined the California transportation agency's proposal to widen a highway that runs through old-growth redwood trees in Richardson Grove State Park. Environmental groups challenged the project under NEPA, the Department of Transportation Act, the Wild and Scenic Rivers Act, and the APA and now seek a preliminary injunction to halt all activity on the project while the merits are litigated. The court granted their request. The type of harm the project threatens is undoubtedly irreparable. Exposing and cutting the roots of these trees makes them prone to infection and drying out. Weakening the roots of redwoods adjacent to the road affects the complex symbiotic root structure of the entire grove. And the agency cannot plant new redwoods to provide adequate relief, as some of the trees that are likely to be harmed are more than 1,000 years old. In addition, given that the agency issued a FONSI rather than preparing an EIS, the groups raised serious NEPA questions on the merits. And although an injunction would bring economic hardship, in balancing the equities, the scale tips sharply to the safety of the 3,000 year-old redwood trees. Similarly, the public interest is best served by letting the ancient trees thrive a little longer while the merits of their future are evaluated in court. Bair v. California Department of Transportation, No. C 10-04360 WHA, 41 ELR 20242 (N.D. Cal. July 6, 2011) (Alsup, J.).


CALIFORNIA ENVIRONMENTAL QUALITY ACT, STANDING:

California's highest court reversed a lower court decision that a city needed to prepare an environmental impact report (EIR) for a local ordinance banning the use of plastic bags by local businesses. The court agreed that the plaintiff, a coalition of plastic bag manufacturers and distributors, had standing. The coalition qualifies for public interest standing as well as standing on its own. Corporations are not subject to heightened scrutiny when they file citizen suits, and the coalition represents businesses directly affected by the ordinance. But substantial evidence and common sense support the city's determination that its ordinance would have no significant environmental effect. Therefore, a negative declaration was sufficient to comply with the requirements of the California Environmental Quality Act. Save the Plastic Bag Coalition v. City of Manhattan Beach, No. S180720, 41 ELR 20238 (Cal. July 14, 2011).


PRELIMINARY INJUNCTION, MONTANA ENVIRONMENTAL POLICY ACT:

A Montana court preliminarily enjoined the state transportation agency from issuing permits to an oil company that would allow it to transport oversized oilfield equipment through the state to the Canadian border for use in tar sand and mining production in Alberta. The agency conducted an EA under the Montana Environmental Policy Act prior to granting the oversize-load permits and ultimately issued a FONSI. The EA, however, failed to adequately consider impacts of the project and to consider reasonable alternatives. But the court did not enjoin permits that have already issued. County of Missoula v. Montana Department of Transportation, No. DV-11-424, 41 ELR 20235 (Mont. 4th Dist. Ct. July 19, 2011).


TORTS, MEDICAL MONITORING:

A New York appellate court affirmed a lower court decision denying a company's motion for summary judgment in property owners' suit concerning damages arising from the discharge of trichloroethylene (TCE) into the ground from an industrial plant formerly operated by the company. The court properly denied the company's motion for summary judgment on the plaintiffs' claims for medical monitoring costs. The company failed to submit any evidence establishing to a reasonable degree of medical certainty that the costs of future medical monitoring are not reasonably likely to be incurred as a result of plaintiffs' exposure to TCE. The court also rejected the company's contention that its disposal of TCE on its property prior to 1968 was not negligent as a matter of law and that the lower court should have granted that part of its motion for summary judgment. There are triable issues of fact as to whether the company had "good reason to know or expect" that the toxins would pass from its industrial plant to plaintiffs' property. Likewise, it is well settled that the seepage of chemical wastes into a public water supply constitutes a public nuisance. Accordingly, the lower court did not err in denying the company's motion for summary judgment on the public nuisance claims. The company failed to meet its burden of establishing that the contamination of plaintiffs' private water wells did not constitute a special injury beyond that suffered by the public at large. Baity v. General Electric Co., No. 10-02322, 41 ELR 20241 (N.Y. App. Div. July 8, 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 deferred for a period of three years the application of the PSD and Title V permitting requirements to biogenic carbon dioxide emissions from bioenergy and other biogenic stationary sources. 76 FR 43490 (7/20/11).

  • EPA updated outer continental shelf air regulations for Virginia. 76 FR 43185 (7/20/11).

  • EPA proposed partial withdrawal of residual risk and technology review amendments to the NESHAPs from petroleum refineries. 76 FR 42052 (7/18/11).

  • EPA proposed to update outer continental shelf air regulations for Virginia; see above for direct final rule. 76 FR 43230 (7/20/11).

  • EPA determined that Tennessee failed to submit an SIP for the 2006 24-hour NAAQS for fine particulate matter (PM). 76 FR 43180 (7/20/11).

  • SIP Approvals: California (limited approval of new source review and PSD permit programs) 76 FR 43183 (7/20/11). Colorado (1997 eight-hour ozone NAAQS) 76 FR 43906 (7/22/11). Delaware (regional haze program) 76 FR 42557 (7/19/11). Louisiana (PSD program and 1997 eight-hour ozone and fine PM NAAQS) 76 FR 42549 (7/19/11). Missouri (nitrogen oxide (NOx) waiver for the St. Louis metropolitan eight-hour ozone nonattainment area) 76 FR 43598 (7/21/11). Montana (partial approval of 1997 eight-hour ozone NAAQS) 76 FR 43918 (7/22/11). New Mexico (PSD thresholds for greenhouse gas emissions) 76 FR 43149 (7/20/11). Pennsylvania (NOx emissions from Portland cement kilns) 76 FR 42558 (7/19/11). South Dakota (1997 eight-hour ozone NAAQS and partial approval of PSD program) 76 FR 43912 (7/22/11). Utah (conditional approval of 1997 eight-hour ozone NAAQS) 76 FR 43898 (7/22/11). Vermont (reasonably available control technology (RACT) for NOx and volatile organic compounds (VOCs)) 76 FR 42560 (7/19/11).

  • SIP Disapprovals: Alabama (disapproval of interstate transport submission and promulgation of a federal implementation plan (FIP)) 76 FR 43128 (7/20/11). Georgia (disapproval of interstate transport submission and promulgation of an FIP) 76 FR 43159 (7/20/11). Indiana/Ohio (disapproval of interstate transport submission and promulgation of an FIP) 76 FR 43175 (7/20/11). Kansas (disapproval of interstate transport submission and promulgation of an FIP) 76 FR 43143 (7/20/11). Kentucky (disapproval of interstate transport submission and promulgation of an FIP) 76 FR 43136 (7/20/11). Missouri (disapproval of interstate transport submission and promulgation of an FIP) 76 FR 43156 (7/20/11). New Jersey/New York (disapproval of interstate transport submission and promulgation of an FIP) 76 FR 43153 (7/20/11). North Carolina (disapproval of interstate transport submission and promulgation of an FIP) 76 FR 43167 (7/20/11).

  • SIP Proposals: Missouri (NOx waiver for the St. Louis metropolitan eight-hour ozone nonattainment area; see above for direct final rule) 76 FR 43637 (7/21/11). Texas (general definitions for the new source review program) 76 FR 42078 (7/18/11). Vermont (RACT for NOx and VOCs; see above for direct final rule) 76 FR 42612 (7/19/11). West Virginia/Ohio (attainment of the 1997 annual fine PM NAAQS for the Parkersburg-Marietta/Wheeling nonattainment areas) 76 FR 43634 (7/21/11).

HAZARDOUS & SOLID WASTE:



  • EPA proposed to revise certain exclusions from the definition of solid waste for hazardous secondary materials intended for reclamation. 76 FR 44094 (7/22/11).

WILDLIFE:



  • FWS announced a 12-month finding on a petition to list whitebark pine as threatened or endangered and to designate critical habitat under the ESA; the agency found that listing is warranted but precluded by higher priority actions. 76 FR 42631 (7/19/11).

  • FWS announced a 12-month finding on a petition to list the Grand Canyon cave pseudoscorpion as threatened or endangered with critical habitat under the ESA; the agency found that listing is not warranted. 76 FR 42654 (7/19/11).

  • NOAA-Fisheries issued an advance notice of proposed rulemaking to authorize a nonessential experimental population of Upper Columbia spring-run Chinook salmon in the Okanogan River and its tributaries in Okanogan County, Washington. 76 FR 42658 (7/19/11).

DOJ NOTICES OF SETTLEMENT:



  • United States v. Polyfoam Corp., No. 4:11-cv-40134 (D. Mass. July 13, 2011). A settling CAA defendant responsible for violations at its molded foam manufacturing facility in Northbridge, Massachusetts, must pay a $127,500 civil penalty and must install air emission controls to reduce VOCs. 76 FR 43725 (7/21/11).

  • United States v. Alltex Uniform Rental Service, Inc., No. 11-CV-342 (D.N.H. July 13, 2011). Settling CAA defendants responsible for violations at a laundry facility in Manchester, New Hampshire, must pay a $65,000 civil penalty, must purchase and retire 75 tons of emission reduction credits, must institute injunctive relief, and must perform a supplemental environmental project with a value of at least $220,000. 76 FR 43346 (7/20/11).

  • United States v. Hi-Acres, LLC, No. 5:11-cv-00389-WTH-KRS (M.D. Fla. July 8, 2011). A settling RCRA defendant responsible for violations at a retail sales outlet in Leesburg, Florida, must pay a $400,000 civil penalty, plus interest, to the United States and Florida, must commence site rehabilitation, must submit periodic status and site rehabilitation completion reports to the Department of Environmental Protection, and must submit a plan for environmental monitoring of the site. 76 FR 42138 (7/18/11).

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


THE CONGRESS

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


Chamber Action:



  • H.R. 2354 (federal agencies), which would make appropriations for energy and water development and related agencies for the fiscal year ending September 30, 2012, was passed by the House. 157 Cong. Rec. H5091 (daily ed. July 15, 2011).

Committee Action:



  • H.R. 295 (hydrographic data) was reported by the Committee on Natural Resources. H. Rep. No. 112-157, 157 Cong. Rec. H5284 (daily ed. July 20, 2011). The bill would amend the Hydrographic Services Improvement Act of 1998 to authorize funds to acquire hydrographic data and provide hydrographic services specific to the Arctic for safe navigation, delineating the United States extended continental shelf, and the monitoring and description of coastal changes.

  • H.R. 441 (hydroelectric power) was reported by the Committee on Natural Resources. H. Rep. No. 112-158, 157 Cong. Rec. H5284 (daily ed. July 20, 2011). The bill would authorize the Secretary of the Interior to issue permits for a microhydro project in nonwilderness areas within the boundaries of Denali National Park and Preserve and to acquire land for Denali National Park and Preserve from Doyon Tourism, Inc.

  • H.R. 470 (hydroelectric power) was reported by the Committee on Natural Resources. H. Rep. No. 112-159, 157 Cong. Rec. H5284 (daily ed. July 20, 2011). The bill would further allocate and expand the availability of hydroelectric power generated at Hoover Dam.

  • H.R. 489 (federal land) was reported by the Committee on Natural Resources. H. Rep. No. 112-160, 157 Cong. Rec. H5284 (daily ed. July 20, 2011). The bill would clarify the jurisdiction of the Secretary of the Interior with respect to the C.C. Cragin Dam and Reservoir.

  • H.R. 643 (federal land) was reported by the Committee on Natural Resources. H. Rep. No. 112-161, 157 Cong. Rec. H5284 (daily ed. July 20, 2011). The bill would provide for the exchange of certain land located in the Arapaho-Roosevelt National Forests in the state of Colorado.

  • H.R. 686 (federal land) was reported by the Committee on Natural Resources. H. Rep. No. 112-163, 157 Cong. Rec. H5284 (daily ed. July 20, 2011). The bill would require the conveyance of certain public land within the boundaries of Camp Williams, Utah, to support the Utah National Guard.

  • H.R. 944 (land management) was reported by the Committee on Natural Resources. H. Rep. No. 112-165, 157 Cong. Rec. H5284 (daily ed. July 20, 2011). The bill would eliminate an unused lighthouse reservation, provide management consistency by incorporating the rocks and small islands along the coast of Orange County, California, into the BLM-managed California Coastal National Monument, and meet the original congressional intent of preserving Orange County's rocks and small islands.

  • H.R. 1160 (fisheries) was reported by the Committee on Natural Resources. H. Rep. No. 112-168, 157 Cong. Rec. H5284 (daily ed. July 20, 2011). The bill would require the Secretary of the Interior to convey the McKinney Lake National Fish Hatchery to the state of North Carolina.

  • H.R. 2584 (federal agencies) was reported by the Committee on Appropriations. H. Rep. No. 112-151, 157 Cong. Rec. H5238 (daily ed. July 19, 2011). The bill would make appropriations for DOI, EPA, and related agencies for the fiscal year ending September 30, 2012.

Bills Introduced:



  • S. 1389 (Nelson, D-Neb.) (environmental review) would exempt any road, highway, or bridge damaged by a natural disaster, including a flood, from environmental reviews if the road, highway, or bridge is reconstructed in the same location. 157 Cong. Rec. S4721 (daily ed. July 20, 2011). The bill was referred to the Committee on Environment and Public Works.

  • S. 1392 (Collins, R-Me.) (CAA) 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. S4721 (daily ed. July 20, 2011). The bill was referred to the Committee on Environment and Public Works.

  • S. 1397 (Carper, D-Del.) (wind power) would amend the Internal Revenue Code of 1986 to provide for an investment tax credit related to the production of electricity from offshore wind. 157 Cong. Rec. S4802 (daily ed. July 21, 2011). The bill was referred to the Committee on Finance.

  • S. 1400 (Landrieu, D-La.) (Deepwater Horizon) would restore the natural resources, ecosystems, fisheries, marine and wildlife habitats, beaches, and coastal wetlands of Gulf Coast states adversely affected by the explosion on the mobile offshore drilling unit Deepwater Horizon. 157 Cong. Rec. S4802 (daily ed. July 21, 2011). The bill was referred to the Committee on Environment and Public Works.

  • S. 1401 (Cantwell, D-Wash.) (wildlife) would conserve wild Pacific salmon. 157 Cong. Rec. S4802 (daily ed. July 21, 2011). The bill was referred to the Committee on Commerce, Science, and Transportation.

  • S. 1402 (Brown, R-Mass.) (marine mammals) would amend the Marine Mammal Protection Act of 1972 to increase the maximum penalty for violating that Act. 157 Cong. Rec. S4802 (daily ed. July 21, 2011). The bill was referred to the Committee on Commerce, Science, and Transportation.

  • H.R. 2566 (Markey, D-Mass.) (offshore drilling) amend the Outer Continental Shelf Lands Act to direct the Secretary of the Interior to establish and collect fees for inspections of outer continental shelf facilities. 157 Cong. Rec. H5125 (daily ed. July 15, 2011). The bill was referred to the Committee on Natural Resources.

  • H.R. 2578 (Denham, R-Cal.) (rivers) would amend the Wild and Scenic Rivers Act related to a segment of the Lower Merced River in California. 157 Cong. Rec. H5149 (daily ed. July 18, 2011). The bill was referred to the Committee on Natural Resources.

  • H.R. 2594 (Mica, R-Fla.) (emissions trading) would prohibit operators of civil aircraft of the United States from participating in the European Union's emissions trading scheme. 157 Cong. Rec. H5284 (daily ed. July 20, 2011). The bill was referred to the Committee on Transportation and Infrastructure and the Committee on Foreign Affairs.

  • H.R. 2599 (Hayworth, R-N.Y.) (clean energy) would prevent Fannie Mae, Freddie Mac, and other federal residential and commercial mortgage lending regulators from adopting policies that contravene established state and local property assessed clean energy laws. 157 Cong. Rec. H5285 (daily ed. July 20, 2011). The bill was referred to the Committee on Financial Services.

  • H.R. 2601 (Lujan, D-N.M.) (land stewardship) would provide permanent authority for the Forest Service and BLM to enter into stewardship contracting projects with private persons or other public or private entities to perform services to achieve land management goals for National Forest System lands and the public lands that meet local and rural community needs. 157 Cong. Rec. H5285 (daily ed. July 20, 2011). The bill was referred to the Committee on Natural Resources and the Committee on Agriculture.

  • H.R. 2606 (Grimm, R-N.Y.) (pipeline) would authorize the Secretary of the Interior to allow the construction and operation of natural gas pipeline facilities in the Gateway National Recreation Area. 157 Cong. Rec. H5373 (daily ed. July 21, 2011). The bill was referred to the Committee on Natural Resources.

  • H.R. 2610 (Frank, D-Mass.) (fisheries) would amend the Magnuson-Stevens Fishery Conservation and Management Act to reform procedures for the payment of funds from the asset forfeiture fund. 157 Cong. Rec. H5373 (daily ed. July 21, 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:

Illinois
Indiana
Michigan

South Dakota
Tennessee
Utah

Virginia
 

ILLINOIS


Air:



  • The Illinois Environmental Protection Agency amended 35 Ill. Admin. Code 276, Procedures to be Followed in the Performance of Inspections of Motor Vehicle Emissions. Changes remove references to the IM240 emissions test, update definitions, and create a universal "emission compliance certificate." The amendment took effect June 28, 2011. See http://www.cyberdriveillinois.com/departments/index/register/register_volume35_issue29.pdf (pp. 11268-357).

INDIANA


Water:



MICHIGAN


Air:



SOUTH DAKOTA


Hazardous & Solid Waste:



  • The Department of Environment and Natural Resources proposed to amend solid waste rules to include definitions related to medical waste, repeal medical waste rules to eliminate redundancy, and amend regional haze program rules to revise the emission limits for sulfur dioxide and nitrogen oxides to include periods of startup and shutdown for coal-fired power plants. There will be a public hearing on August 18, 2011, and the deadline for written comment is August 17. See http://legis.state.sd.us/rules/register/07182011.pdf (p. 7).

TENNESSEE


Water:



  • The Department of Environment and Conservation amended Tenn. Admin. Code §1200.01.15, Underground Storage Tank Program. Changes affect the definition of "motor fuel." Amendments take effect October 9, 2011. See http://state.tn.us/sos/rules_filings/07-07-11.pdf.

UTAH


Water:



  • The Department of Natural Resources proposed to amend R655-10, Dam Safety Classifications, Approval Procedures, and Independent Reviews; R655-11, Requirement for the Design, Construction, and Abandonment of Dams; and R655-12, Requirements for Operational Dams. Changes would clarify references to industry practices. The deadline for comment is August 15, 2011, and the rule may become effective November 12. See http://www.rules.utah.gov/publicat/bull_pdf/2011/b20110715.pdf (pp. 74-80).

VIRGINIA


Air:



  • The Department of Environmental Quality amended 9 Va. Admin. Code §§5.10 and 5.80, General Definitions and Permits for Stationary Sources. Changes revise the permitting program for PSD relating to fine particulate matter by adding maximum allowable increases in ambient pollutant concentrations, two significant impact levels, and a significant monitoring concentration for fine particulate matter. See http://legis.state.va.us/codecomm/register/vol27/iss23/v27i23.pdf (pp. 2477-506).

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


INTERNATIONAL

CARIBBEAN STATES CALL FOR END TO NUCLEAR WASTE SHIPMENTS

The Caribbean Community (Caricom) called for an end to the "dangerous environmental gamble" of radioactive waste shipments, warning of an impending transfer from Britain to Japan through the Caribbean. Spokesman Leonard Robertson said that British authorities informed regional officials that a ship would soon pass on the way to the Panama Canal. Caricom could not say the exact date or name of the ship, but said that the practice was "unacceptable and injurious." For years, Japan has sent nuclear waste to Britain and France for reprocessing and shipment back to Japan for storage. The ships pass through the South Pacific Islands and the Caribbean, causing local officials to fear accidents and terrorist attacks. A spokesman for Pacific Nuclear Transport Ltd. confirmed that there would be a shipment, but said that it would not pose a risk, citing the fact that there has not been a single incident of radioactivity release over decades of nuclear transport activity. However, an energy campaigner said moving toxic waste is an unnecessary risk, stating that "no sustainable solution for the highly radioactive waste exists on either side of the oceans." The organization called for an immediate end to the shipments, noting the fact that the Caribbean is recognized by the United Nations as a Special Area in the context of sustainable development. Early last week, the European Union (EU) tightened its nuclear waste rules, requiring states to present a timetable for the construction of disposal facilities by 2015. Though exports of waste to non-EU states will be allowed, the destination must operate a sustainable repository, and exports to African, Pacific, and Caribbean countries and to Antarctica are ruled out. For the full story, see http://timesofindia.indiatimes.com/home/environment/pollution/Caribbean-states-want-end-of-nuclear-waste-shipments/articleshow/9313206.cms and http://www.washingtonpost.com/world/americas/caribbean-nations-object-to-japan-bound-shipment-of-reprocessed-nuclear-waste-through-region/2011/07/21/gIQA6xsRSI_story.html. For the story on Europe's new rules, see http://www.csmonitor.com/World/Europe/2011/0720/Can-Europe-find-a-safe-place-for-nuclear-waste.


STEELMAKERS SUE EU OVER CARBON MARKET POLICIES

Steel industry body Eurofer said last week that steelmakers had begun legal action to overturn the EU's treatment of the industry in the carbon market. Eurofer said that the Emissions Trading Scheme (ETS), which allows the most efficient 10% of factories to get free pollution permits after 2013, sets a benchmark at which no steelwork in the world could operate. The emissions benchmark is part of an effort to reduce the windfall profits received by some companies after some industries received free permits to help compete with non-EU rivals. However, the steel industry has criticized the decision not to give credit for installations that recycle waste gases as an additional source of energy. "This is a clear infringement of the ETS directive, as the best performers will be short of free allowances," said Eurofer Director General Gordon Moffat. "It doesn't seem to be a very strong case, especially compared to the U.S. airline case," said Trevor Sikorski, head of carbon research at Barclays Capital, referring to an earlier case in which airlines argued that their inclusion in the scheme violated U.S. sovereignty. An analyst at Point Carbon said that he did not believe a victory for Eurofer would affect the overall ETS cap. See http://www.reuters.com/article/2011/07/21/us-eu-climate-steel-idUSTRE76K3JW20110721.


CANADA TO BOOST OIL SANDS MONITORING

Federal Environment Minister Peter Kent announced the release of a new oil sands monitoring plan last week, saying he hoped to speed up approval of a pipeline designed to transport crude to the Gulf Coast. Kent said that the oil sands industry is willing to pay the costs of the program, a $50 million tab annually that, he said, was a small price to pay for an industry estimated to generate $80 billion next year. However, the president of the Canadian Association of Petroleum Producers said that it was "premature" to say that the industry would pick up the costs. Though he said that he hoped to see the proposed monitoring systems from the province and from Ottawa blend into one, he noted that the industry already pays for some environmental monitoring costs. Environmental groups called for greater regulation and limits, saying that projects should be curtailed until the results of monitoring are available. Kent said that the data would "prove to the world that this great resource is being developed in a responsible and a sustainable and constantly improving way," responding to mounting opposition to the proposed Keystone XL pipeline. For the full story, see http://www.calgaryherald.com/business/Ottawa+unveils+oilsands+monitoring+plan/5142480/story.html and http://www.reuters.com/article/2011/07/21/us-canada-oilsands-monitoring-idUSTRE76K71R20110721.


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


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