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Weekly Update Volume 41, Issue 22

08/08/2011

LITIGATION 

CWA, NATIONWIDE PERMITS:

The D.C. Circuit denied trade associations' petition for review of a nationwide permit issued by EPA for the discharge of pollutants incidental to the normal operation of vessels. The associations, which represent commercial ship owners and operators, raised a number of procedural challenges, all related to EPA's decision to incorporate into the permit over 100 conditions that states submitted to protect their own water quality. Their primary contention was that EPA failed to provide notice and an opportunity for comment before promulgating the final permit. Although the associations were given the opportunity to review the draft permit, the draft permit contained none of the more than 100 state certification conditions that were appended to the final permit. They therefore alleged that they were deprived of the opportunity to comment regarding the potential conflicts and burdens created by the cumulative effects of the state conditions. EPA, however, does not have the ability to amend or reject conditions in a state's CWA §401 certification. Under those circumstances, providing notice and an opportunity for comment on the state certifications would have served no purpose. Lake Carriers' Ass'n v. Environmental Protection Agency, No. 09-1001, 41 ELR 20250 (D.C. Cir. July 22, 2011).


WILDLIFE, ESA:

The D.C. Circuit held that a single sighting of a protected species is insufficient to render a property "occupied" for purposes of designating critical habitat under the ESA. In 2007, the FWS designated 143 acres of plaintiffs' property as critical habitat for the San Diego fairy shrimp under the ESA. The FWS based that critical habitat designation on a single 2001 sighting of four, ant-sized fairy shrimp in a tire rut on a dirt road on the property. The FWS argued that the plaintiffs' property meets the statutory definition of critical habitat because the property was occupied by the San Diego fairy shrimp in 1997--the year the species was listed as endangered. But FWS failed to reasonably explain how one, isolated observation demonstrates that plaintiffs' property was occupied by the fairy shrimp. The record is simply too thin to justify the action the FWS took. On remand, the lower court should vacate the designation of plaintiffs' property as critical habitat for the San Diego fairy shrimp and remand the matter to the agency. Otay Mesa Property, L.P. v. United States Department of the Interior, No. 10-5204, 41 ELR 20249 (D.C. Cir. July 22, 2011).


WILDLIFE, NATIONAL PARKS:

The D.C. Circuit upheld a lower court decision dismissing an environmental group's action challenging FWS' and the National Park Service's plan for managing elk and bison populations in the National Elk Refuge and Grand Teton National Park. Part of this plan includes ending the longstanding agency practice of feeding these animals during the winter. The group challenged the plan because it fails to include a time certain for ending the practice. But the agencies reasonably determined that a deadline for ceasing supplemental feeding would be unduly restrictive in light of the many variables and concerns that need to be accounted for in managing the refuge. There is no doubt that unmitigated continuation of supplemental feeding would undermine the conservation purpose of the National Wildlife Refuge System. The agencies, however, did not act unlawfully by adopting a plan that contained no deadline for ending the practice. The record amply demonstrates that the agencies collected the relevant data, identified the dangers posed by supplemental feeding, and adopted a plan to mitigate those dangers. Accordingly, the agencies' determination that the many objectives of the National Wildlife Refuge System Improvement Act, including conservation, could best be met without implementation of a fixed deadline for stopping supplemental feeding was not arbitrary or capricious. Defenders of Wildlife v. Salazar, No. 10-5144, 41 ELR 20248 (D.C. Cir. Aug. 3, 2011).


HAZARDOUS & SOLID WASTE, RCRA:

The Ninth Circuit upheld the dismissal of a shopping center owner's citizen suit action under RCRA against manufacturers of dry cleaning equipment. The owner argued that the manufacturers contributed to the release of hazardous waste into the environment by virtue of their machinery, which was allegedly designed to allow PCE-contaminated wastewater to flow into drains and into the sewer system. The owner also alleged that the manufacturers distributed manuals that instructed users to dispose of contaminated waste water in drains or open sewers. But for purposes of RCRA liability, "contribution" requires more active involvement than was alleged as to the manufacturers. Because the complaint does not allege active involvement by the manufacturers in the handling or disposing of waste, as required for RCRA contributor liability, the owner failed to state a claim for relief. Hinds Investments, LP v. Angioloi, Nos. 10-15607, -15951, 41 ELR 20243 (9th Cir. Aug. 1, 2011).


HAZARDOUS & SOLID WASTE, CERCLA:

The Ninth Circuit upheld the dismissal of a dry cleaner's CERCLA and tort law claims against the manufacturer of dry cleaning equipment. The dry cleaner failed to present evidence giving rise to a genuine dispute as to any material fact with respect to its CERCLA claim. A person may be subject to arranger liability "only if the material in question constitutes 'waste' rather than a useful product," and the dry cleaner presented no evidence indicating that the manufacturer designed the equipment for the alleged "purpose of being a waste disposal machine." The dry cleaner urged the court to infer intent from the manufacturer's failure to warn the dry cleaner about the risk of contamination that would result from improper disposal. But allowing intent to be inferred from a mere failure to warn would greatly expand the scope of arranger liability. To satisfy the intent requirement, a company selling a product that uses and/or generates a hazardous substance as part of its operation may not be held liable as an arranger under CERCLA unless the plaintiff proves that the company entered into the relevant transaction with the specific purpose of disposing of a hazardous substance. Here, the dry cleaner failed to present evidence giving rise to a triable issue as to whether the manufacturer sold the machine with such a purpose. The dry cleaner also failed to present evidence giving rise to a genuine dispute as to any material fact with respect to its nuisance and trespass claims. The lower court's grant of summary judgment in favor of the manufacturer was therefore affirmed. Team Enterprises, LLC v. Western Investment Real Estate Trust, No. 10-16916, 41 ELR 20245 (9th Cir. July 26, 2011).


CONSTITUTIONAL LAW, TAKINGS:

The Ninth Circuit held that a reserve program for raisins authorized by the Agricultural Marketing Agreement Act of 1937 does not constitute a taking in violation of the U.S. Constitution. The USDA imposed civil penalties against two raisin farmers for failing to comply with various requirements of a raisin marketing order issued under the Act. They appealed, arguing that the reserve program constitutes a physical, per se taking of their personal property without just compensation in violation of the Fifth Amendment. But the order applies to the farmers only insofar as they voluntarily choose to send their raisins into the stream of interstate commerce. As such, it is a use restriction, not a direct appropriation. In addition, the order does not deny raisin farmers all economically beneficial use of their raisins, as the regulation does not ban the sale of raisins altogether. It only requires that a certain percentage of raisins prepared for market be delivered to the Raisin Administrative Committee. And the farmers' argument that they have suffered a complete and total taking of their reserve-tonnage raisins is foreclosed by case law. Because the farmers have suffered no compensable physical taking of any portion of their crops, the Fifth Amendment poses no obstacle to the USDA's enforcement of the raisin marketing order against them. Horne v. United States Department of Agriculture, No. 10-15270, 41 ELR 20244 (9th Cir. July 25, 2011).


LAND USE, CIVIL PROCEDURE:

The Ninth Circuit held that environmental groups may intervene in a citizen suit against the U.S. Forest Service concerning restricted motorized and mechanized vehicle use in a section of the Gallatin National Forest. In the underlying action, the citizens group argued that the Forest Service's plan was overly restrictive. The environmental groups filed their motion to intervene 10 days later, but the lower court denied their motion, concluding that the groups failed to show how the Forest Service could not adequately represent their interest. The citizens group argued that intervention was properly denied because the environmental groups and the Forest Service share the same ultimate objective--upholding the validity of the plan. But the Forest Service acted under compulsion of an earlier court decision gained by the environmental groups' previous litigation, and the Forest Service is appealing the decision that led them to adopt the now-challenged plan. Because the environmental groups wish to defend the plan as containing the kind of restrictions that are statutorily mandated by the Montana Wilderness Study Act to protect wilderness character, while the Forest Service may assert only that the plan was compelled by a prior court decision that the agency is seeking to overturn, the environmental groups and the Forest Service have distinct interests and objectives. Because the groups' motion was timely, they have a significant protectable interest in the action, and the disposition of this action may impair or impede their ability to protect their interest, the environmental groups satisfied the requirements for intervention as of right under Fed. R. Civ. P. 24(a). The lower court's denial was therefore reversed and remanded. Citizens for Balanced Use v. Montana Wilderness Ass'n, No. 10-35823, 41 ELR 20246 (9th Cir. July 26, 2011).


WILDLIFE, CONSTITUTIONAL LAW:

A district court upheld the constitutionality of an appropriations rider that reinstated an FWS rule that removed ESA protections for the Northern Rocky Mountain gray wolf in all areas outside of Wyoming. The court previously held that the rule violated the ESA because it protected a listed species only across part of its range. While an appeal of that decision was pending, the U.S. Congress passed and the President signed an appropriations bill that contained a rider reinstating the delisting rule. The Ninth Circuit has held that so long as Congress uses the words "without regard to any other provision of statute or regulation that applies," or something similar, then the doctrine of constitutional avoidance requires the court to impose a saving interpretation provided the statute can be fairly interpreted to render it constitutional. Moreover, when two possible interpretations of a statute exist, one unconstitutional and the other valid, a court must adopt the one that saves the act. Here, the rider states the delisting rule should be reissued "without regard to any other provision of statute or regulation." So while the court previously found the 2009 rule illegal, under Ninth Circuit law a constitutional reading of Congress's directive to reissue the rule is possible. Under this view, Congress changed the law and precluded judicial review only with respect to the re-issuance of the 2009 rule. No other part of the ESA or its application has been altered, changed, or amended. The court noted that if it were not constrained by Ninth Circuit precedent, it would have held the rider unconstitutional because it violates the Separation of Powers doctrine. Alliance for the Wild Rockies v. Salazar, Nos. CV 11-70-M-DWM, -71-M-DWM, 41 ELR 20252 (D. Mont. Aug. 3, 2011) (Molloy, J.).


WILDLIFE, ESA:

A district court held that NOAA Fisheries' 2008/2010 biological opinion (BiOp) for the Federal Columbia River Power System is arbitrary and capricious under the ESA. In the BiOp it issued to the U.S. Army Corps of Engineers and the U.S. Bureau of Reclamation, NOAA Fisheries concluded that the operation of the power system, which is comprised of 14 sets of hydroelectric dams, powerhouses, and associated reservoirs, "is not likely to jeopardize the continued existence" of any species listed under the ESA through 2018. Its decision was based on measures to be implemented by the federal agencies to mitigate for significant salmon mortality caused by the system. The Corps and the Bureau of Reclamation, however, failed to identify specific mitigation plans beyond 2013. Because the BiOp's no jeopardy conclusion is based on unknown mitigation measures, NOAA Fisheries' decision is arbitrary and capricious. The BiOp was therefore remanded so that NOAA Fisheries could reevaluate the Corps' and Bureau's reliance on unknown mitigation measures. But because the BiOp identifies specific and beneficial mitigation measures through 2013, the BiOp and accompanying incidental take plan will stay in place until then. National Wildlife Federation v. National Marine Fisheries Service, No. 01-00640, 41 ELR 20247 (D. Or. Aug. 2, 2011) (Redden, J.).


CWA, TMDLs:

A district court held that EPA's approval of a sediments and total suspended solids (TSS) TMDL for the Anacostia River in Maryland and Washington, D.C., was arbitrary and capricious. When developing a TMDL for a particular pollutant, the CWA and its implementing regulations require the state--in devising the TMDL--and EPA--in reviewing the proposed TMDL--to evaluate whether the load levels, once implemented, will protect all applicable water quality standards, including all designated uses and all water quality criteria. Here, there is insufficient evidence in the record to support EPA's suggestion that the final TMDL protects all designated uses. Accordingly, by approving a sediment/TSS TMDL that ignored the effects of sediment and TSS pollution on recreational and aesthetic uses of the Anacostia River, EPA acted arbitrarily and capriciously in violation of the APA and the CWA. Anacostia Riverkeeper v. Jackson, No. 09-cv-97, 41 ELR 20251 (D.D.C. July 25, 2011) (Lamberth, J.).


ENERGY, STANDING:

A district court held that environmental groups lacked standing to challenge contracts a Department of Defense agency entered into to purchase fuel derived from Canadian oil sands recovered crude oil (COSRC). The groups argued that the contracts violated the Energy Independence and Security Act of 2007, the APA, and NEPA. The groups' allegations, however, do not suffice for traditional injury-in-fact. They base their injuries on climate changes associated with greenhouse gas emissions that have caused or purportedly will cause generalized environmental impacts, such as increased frequency of intense storms, increased risk of fire to public lands, increased risk of damage to coastal properties, and loss of plant species. But they do not sufficiently allege that they have or will suffer injuries from pipeline transmission or the refining of COSRC, let alone the agency's purchasing contracts for fuel that may contain COSRC. Nor do the groups' allegations of a procedural injury satisfy the injury requirement, as they must show a separate concrete interest in order to assert a procedural injury here. The groups also failed to sufficiently plead a causal connection between their alleged injuries and the fuel contracts, and they failed to allege facts sufficient to establish redressability. The case was therefore dismissed. Sierra Club v. U.S. Defense Energy Support Center, No. 01-11-cv-41, 41 ELR 20253 (E.D. Va. July 29, 2011) (Hilton, J.).


HAZARDOUS & SOLID WASTE, ARRANGER LIABILITY:

A Washington appellate court affirmed a lower court decision holding the state transportation agency liable to two utilities for contribution costs incurred at the Thea Foss Waterway, a Superfund site, under the state's Model Toxics Control Act (MTCA). The agency argued that the lower court erred in concluding that it was liable as an arranger because the utilities failed to establish that the agency "intended" to dispose of hazardous substances at the site. But arranger liability under the MTCA does not include an intent element. Although the U.S. Supreme Court's decision in Burlington Northern & Santa Fe Railroad v. United States, 173 L. Ed. 2d. 812, 39 ELR 20098 (2009), requires an intent element for "arranger" liability under CERCLA, Washington state courts have interpreted "arranger" liability under the MTCA not to require this element. The Supreme Court's interpretation of CERCLA does not trump the state courts' interpretation of Washington state's comparable act. Nor did the lower court abuse its discretion in its allocation of contribution costs. PacifiCorp Environmental Remediation Co. v. Washington State Department of Transportation, No. 39699-8-II, 41 ELR 20255 (Wash. Ct. App. July 19, 2011).


HAZARDOUS & SOLID WASTE, IMMUNITY:

An Ohio appellate court held that a city is not immune from residents' negligence lawsuit against it concerning pollution allegedly caused by a city landfill. The city argued that it was immune from suit because the operation of the landfill was a governmental function rather than a proprietary one since, under state law, the term "governmental function" includes the collection and disposal of solid waste. But the residents alleged that the city accepted three types of waste that were not classified as "solid waste" under state law: demolition waste; liquid industrial waste; and hazardous waste. Although the definition of "solid waste" includes commercial and industrial wastes, demolition waste is excluded. And though liquid waste is not specifically addressed, it appears self-evident that such wastes are not included in the definition of solid wastes. Further, while the collection and disposal of "hazardous waste generated by households" is defined as a governmental function, the allegations in the residents' complaint indicate that the wastes stored at the landfill came from sources other than households. Accordingly, the residents' allegations, accepted as true, would place the operation of the landfill within the definition of a proprietary function. The city, therefore, is not immune from suit. Barge v. City of St. Bernard, No. C-100764, 41 ELR 20254 (Ohio Ct. App. July 22, 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 proposed several new NOx emission standards, compliance flexibilities, and other regulatory requirements for aircraft turbofan or turbojet engines and for gas turbine engines. 76 FR 45012 (7/27/11).

  • EPA established measures to mitigate the misfueling of vehicles, engines, and equipment with gasoline containing up to 15 volume percent ethanol and the potential emission consequences of misfueling. 76 FR 44406 (7/25/11).

  • EPA adjusted the allowance system controlling U.S. consumption and production of hydrochlorofluorocarbons (HCFCs) as a result of a recent court decision vacating a portion of the rule titled "Protection of Stratospheric Ozone: Adjustments to the Allowance System for Controlling HCFC Production, Import, and Export; Final Rule." 76 FR 47451 (8/5/11).

  • EPA proposed revisions to the secondary NAAQS for nitrogen dioxide and sulfur dioxide to protect sensitive aquatic and terrestrial ecosystems. 76 FR 46084 (8/1/11).

  • EPA entered into a proposed consent decree in Kentucky Environmental Foundation v. Jackson, No. 10-CV-1814-PLF (D.D.C.), that establishes March 30, 2012, as the deadline for the Agency to take action on Kentucky's SIP for the 1997 fine PM NAAQS for the Huntington-Ashland nonattainment area. 76 FR 45562 (7/29/11).

  • EPA entered into a proposed consent decree in Sierra Club v. Jackson, No. 11-cv-36-SLC (W.D. Wis.), that requires the Agency to respond to a petition seeking its objection to a CAA Title V operating permit for a lime kiln facility in Manitowoc, Wisconsin, by October 7, 2011. 76 FR 45564 (7/29/11).

  • EPA entered into a proposed settlement agreement in Concerned Citizens Around Murphy v. Jackson, No. 10-cv-04444 (E.D. La.), that requires the Agency to respond to a petition seeking its objection to a CAA Title V operating permit issued to the Meraux Refinery in St. Bernard Parish, Louisiana, by September 22, 2011. 76 FR 45793 (8/1/11).

  • SIP Approvals: California (volatile organic compound (VOC) emissions for the Northern Sierra, Sacramento Metropolitan, and South Coast air quality management districts) 76 FR 44493 (7/26/11); (limited approval of permitting rules for the Placer County air pollution control district and the Feather River air quality management district) 76 FR 44809 (7/27/11); (interim deferral of sanctions for the San Joaquin Valley unified air pollution control district's fee program) 76 FR 45199 (7/28/11); (volatile organic compound (VOC) emissions for the South Coast air quality management district) 76 FR 47074 (8/4/11); (VOC emissions for the San Joaquin Valley unified air pollution control district) 76 FR 47076 (8/4/11). Colorado (attainment demonstration for the 1997 eight-hour ozone standard) 76 FR 47443 (8/5/11). Delaware (1997 eight-hour ozone and 1997 and 2006 fine particulate matter (PM) NAAQS) 76 FR 47068 (8/4/11). Pennsylvania (idling time limits on commercial heavy-duty vehicles) 76 FR 45705 (8/1/11); (attainment of the 1997 annual fine PM NAAQS for the Harrisburg, Johnstown, Lancaster, Reading, and York nonattainment areas) 76 FR 45424 (7/29/11). Texas (permits for new construction or modification) 76 FR 44271 (7/25/11). West Virginia (1997 eight-hour ozone and 1997 and 2006 fine PM NAAQS) 76 FR 47062 (8/4/11). Wyoming (PSD program and partial approval of 1997 eight-hour ozone NAAQS) 76 FR 44265 (7/25/11).

  • SIP Proposals: California (VOC emissions for the Northern Sierra, Sacramento Metropolitan, and South Coast air quality management districts; see above for direct final rule) 76 FR 44535 (7/26/11); (approval of fee program for the San Joaquin Valley unified air pollution control district) 76 FR 45212 (7/28/11); (VOC emissions for the South Coast air quality management district; see above for direct final rule) 76 FR 47094 (8/4/11). Maryland (preconstruction permitting requirements for electric generating stations) 76 FR 47090 (8/4/11). New Jersey (source-specific reasonably available control technology determination for ozone) 76 FR 47092 (8/4/11). Pennsylvania (idling time limits on commercial heavy-duty vehicles; see above for direct final rule) 76 FR 45741 (8/1/11); (attainment of the 1997 annual fine PM NAAQS for the Harrisburg, Johnstown, Lancaster, Reading, and York nonattainment areas; see above for direct final rule) 76 FR 45482 (7/29/11). Texas (permits for new construction or modification; see above for direct final rule) 76 FR 44293 (7/25/11).

HAZARDOUS & SOLID WASTE:



  • EPA entered into a proposed administrative settlement under CERCLA §122(h)(1) that requires the settling party to pay U.S. response costs incurred at the Callaway & Son Drum Service Superfund site in Lake Alfred, Florida. 76 FR 44912 (7/27/11).

  • EPA entered into a proposed administrative settlement under CERCLA §122(h)(1) that requires the settling party to pay U.S. response costs incurred at the Landia Chemical Co. Superfund site in Lakeland, Florida. 76 FR 44912 (7/27/11).

  • EPA entered into a proposed administrative settlement under CERCLA that requires the settling parties to pay certain past and future U.S. response costs incurred at the Landfill and Development, Inc., Superfund site in Burlington County, New Jersey. 76 FR 45552 (7/29/11).

TOXIC SUBSTANCES:



  • EPA issued revisions to the Lead Renovation, Repair, and Painting Program rule. 76 FR 47918 (8/5/11).

  • The TSCA Interagency Testing Committee released its latest report in which it added cadmium and 103 cadmium compounds to the Priority Testing List and removed 40 orphan chemicals and lead compounds from the list. 76 FR 46174 (8/1/11).

WATER:



  • EPA proposed to reissue a general permit regulating discharge activities related to the extraction of oil and gas on the North Slope of the Brooks Range in Alaska. 76 FR 45792 (8/1/11).

  • EPA proposed to approve revisions to Louisiana's Public Water System Supervision Program. 76 FR 45794 (8/1/11).

  • EPA announced tentative approval of Alaska's Public Water Supply Supervision Primacy Program. 76 FR 45253 (7/28/11).

  • EPA Region 2 received a petition to determine whether adequate facilities for the safe and sanitary removal and treatment of sewage from all vessels are reasonably available for the waters of Jamaica Bay in the New York City metropolitan area. 76 FR 46804 (8/3/11).

WILDLIFE:



  • FWS revised regulations governing financial assistance programs for wildlife restoration, sport fish restoration, and hunter education and safety. 76 FR 46150 (8/1/11).

  • FWS, in response to a court order, reinstated its listing of the Preble's meadow jumping mouse in Wyoming. 76 FR 47490 (8/5/11).

  • FWS determined endangered status for Pagosa skyrocket in Archuleta County, Colorado, and determined threatened status for Parachute beardtongue in Garfield County, Colorado, and DeBeque phacelia in Mesa and Garfield Counties, Colorado, under the ESA. 76 FR 45054 (7/27/11).

  • FWS removed the Tennessee purple coneflower from the list of endangered and threatened plants under the ESA due to its recovery. 76 FR 46632 (8/3/11).

  • FWS proposed to list the Chupadera springsnail as endangered under the ESA and to designate approximately 1.9 acres in Socorro County, New Mexico, as critical habitat for the species. 76 FR 46218 (8/2/11).

  • FWS proposed to designate approximately 54,036 acres in Archuleta, Garfield, and Mesa Counties, Colorado, as critical habitat for Pagosa skyrocket, Parachute beardtongue, and DeBeque phacelia under the ESA. 76 FR 45078 (7/27/11).

  • FWS proposed to list 23 species on the island of Oahu in the Hawaiian Islands as endangered under the ESA, to designate 43,491 acres as critical habitat for these species and two other plant species already listed as endangered, and to revise critical habitat for 99 plant species already listed as endangered or threatened. 76 FR 46362 (8/2/11).

  • FWS announced a 12-month finding on a petition to list the gopher tortoise in the eastern portion of its range as threatened and to designate critical habitat under the ESA; the agency found that listing is warranted but precluded by higher priority actions; the agency also maintained threatened status for the species in the western portion of its range. 76 FR 45130 (7/27/11).

  • FWS announced a 90-day finding and 12-month determination on a petition to revise critical habitat for the leatherback sea turtle in the waters off Puerto Rico; the agency found that revision may be warranted. 76 FR 47133 (8/4/11).

  • FWS announced a 90-day finding on a petition to list the straight snowfly and the Idaho snowfly as endangered under the ESA and to designate critical habitat for the species; the agency found that listing is not warranted. 76 FR 46238 (8/2/11).

  • FWS announced a 12-month finding on a petition to list the Redrock stonefly as endangered or threatened and to designate critical habitat under the ESA; the agency found that listing is not warranted. 76 FR 46251 (8/2/11).

DOJ NOTICES OF SETTLEMENT:



  • United States v. Hertrich, No. 1:10-cv-03068-JKB (D. Md. July 20, 2011). A settling CWA defendant that discharged pollutants without a permit into waters of the United States must pay a civil penalty. 76 FR 44956 (7/27/11).

  • United States v. Northstar Materials, Inc., No. 0:11-cv-01950-RHK-LIB (D. Minn. July 18, 2011). Settling CWA defendants that discharged fill material into waters of the United States must pay a civil penalty and must restore the impacted areas and/or perform mitigation. 76 FR 44358 (7/25/11).

  • United States v. Chevron Puerto Rico, LLC, No. 3:11-CV-1716 (D.P.R. July 25, 2011). A settling defendant that violated RCRA and Puerto Rico UST regulations must pay a $600,000 civil penalty, must undertake two supplemental environment projects valued at approximately $3.4 million, and must implement injunctive relief valued at approximately $1.8 million. 76 FR 45617 (7/29/11).

  • United States v. Jersey City Municipal Utilities Authority, No. 2:11-04120 (D.N.J. July 19, 2011). A settling CWA defendant that failed to properly operate and maintain its combined sewer collection system must pay a $375,000 civil penalty, must undertake a supplemental environment project valued at $550,000, and must implement injunctive relief valued at approximately $52 million. 76 FR 45617 (7/29/11).

  • United States v. BP Exploration & Oil Co., No. 2:96 CV 095 RL (N.D. Ind. July 25, 2011). Under a modified consent decree, a settling CAA defendant responsible for violations at its petroleum refinery in Texas City, Texas, must spend at least $6,250,000 in completing a natural gas conversion supplemental environment project, must convert two additional heavy-duty diesel vehicles as part of the supplemental environment project, and must allow for the conversion of heavy-duty diesel vehicles from third parties. 76 FR 45618 (7/29/11).

  • In re Philadelphia Newspapers, LLC, No. 09-11204 (SR) (E.D. Pa. July 28, 2011). Settling CERCLA debtors responsible for violations at the Swope Oil Superfund site in Pennshauken, New Jersey, must provide the United States with a general unsecured claim in the amount of $652,440. 76 FR 47239 (8/4/11).

  • United States v. Caterpillar Inc., No. 11-1373 (BAH) (D.C. July 28, 2011). Settling CAA defendants must pay a $2,550,000 civil penalty and must undertake injunctive measures to correct past violations and prevent their reoccurrence. 76 FR 47239 (8/4/11).

  • United States v. Dow Chemical Co., No. 1:11-cv-13330-TLL-CEB (E.D. Mich. July 29, 2011). A settling CAA, CWA, and RCRA defendant responsible for violations at its chemical manufacturing and research facility in Midland, Michigan, must pay a $2.5 million civil penalty and must implement a program to monitor leak detection and repair requirements. 76 FR 46842 (8/3/11).

  • United States v. Wilko Paint, Inc., No. 11- cv-01205-EFM-GLR (D. Kan. July 28, 2011). A settling CERCLA defendant responsible for violations at the 57th and North Broadway Superfund site in Wichita, Kansas, must pay $350,000 in U.S. response costs incurred at the site and must pay to the United States a share of any future insurance recovery related to the claim. 76 FR 46842 (8/3/11).

  • United States v. Virgin Islands, No. 84-104 (D.V.I. July 22, 2011). Under a stipulated order, settling CWA defendants that unlawfully discharged raw sewage into the ocean at their pumping stations on St. Croix and St. Thomas must place $300,000 into a revolving fund for emergency repair or replacement of equipment in the wastewater collection system; must have pumps and emergency backup available within 180 days of the order; must develop and implement a comprehensive collection system emergency response plan; must develop and implement a comprehensive collection system operation and maintenance plan; and must implement six capital projects at a total cost of $7 million at the sites. 76 FR 46325 (8/2/11).

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



  • S. 710 (hazardous waste), which would amend the Solid Waste Disposal Act to direct the Administrator of EPA to establish a hazardous waste electronic manifest system, was passed by the Senate. 157 Cong. Rec. S5281 (daily ed. Aug. 2, 2011).

  • S. 1302 (federal land), which would authorize the Administrator of General Services to convey a parcel of real property in Tracy, California, to the city of Tracy, was passed by the Senate. 157 Cong. Rec. S5283 (daily ed. Aug. 2, 2011).

  • H.R. 1938 (oil pipeline), which would direct the President to expedite the consideration and approval of the construction and operation of the Keystone XL oil pipeline, was passed by the House. 157 Cong. Rec. H5504, H5509 (daily ed. July 27, 2011).

Committee Action



  • S. 538 (migratory birds) was reported by the Committee on Environment and Public Works. S. Rep. No. 112-46, 157 Cong. Rec. S5248 (daily ed. Aug. 2, 2011). The bill would reauthorize the Neotropical Migratory Bird Conservation Act.

  • S. 1313 (estuaries) was reported by the Committee on Environment and Public Works. S. Rep. No. 112-41, 157 Cong. Rec. S5017 (daily ed. July 29, 2011). The bill would amend the Federal Water Pollution Control Act to reauthorize the National Estuary Program.

Bills Introduced



  • S. 1413 (Wyden, D-Or.) (geothermal energy) would amend the Internal Revenue Code of 1986 to temporarily increase the investment tax credit for geothermal energy property. 157 Cong. Rec. S4869 (daily ed. July 25, 2011). The bill was referred to the Committee on Finance.

  • S. 1417 (Schumer, D-N.Y.) (fuel cell vehicles) would amend the Internal Revenue Code of 1986 to modify the credit for qualified fuel cell motor vehicles and to allow the credit for certain off-highway vehicles. 157 Cong. Rec. S4911 (daily ed. July 27, 2011). The bill was referred to the Committee on Finance.

  • S. 1448 (Pryor, D-Ark.) (toxic substances) would exempt off-highway vehicles from the ban on lead in children's products. 157 Cong. Rec. S5018 (daily ed. July 29, 2011). The bill was referred to the Committee on Commerce, Science, and Transportation.

  • S. 1451 (Vitter, R-La.) (wildlife) would prohibit the sale of billfish. 157 Cong. Rec. S5071 (daily ed. July 29, 2011). The bill was referred to the Committee on Commerce, Science, and Transportation.

  • S. 1453 (Murkowski, R-Alaska) (wildlife) would amend the Marine Mammal Protection Act of 1972 to allow the transport, purchase, and sale of pelts, handicrafts, garments, and art produced from Southcentral and Southeast Alaska northern sea otters that are taken for subsistence purposes. 157 Cong. Rec. S5071 (daily ed. July 29, 2011). The bill was referred to the Committee on Commerce, Science, and Transportation.

  • S. 1470 (Crapo, R-Idaho) (geothermal energy) would promote the exploration of geothermal resources under existing geothermal leases. 157 Cong. Rec. S5250 (daily ed. Aug. 2, 2011). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 1473 (Heller, R-Nev.) (wildlife) would amend Public Law No. 99-548 to provide for the implementation of the multispecies habitat conservation plan for the Virgin River in Clark County, Nevada, and extend the authority to purchase certain parcels of public land. 157 Cong. Rec. S5250 (daily ed. Aug. 2, 2011). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 1475 (Heller, R-Nev.) (federal land) would convey certain land to Clark County, Nevada, and designate the Nellis Dunes National Off-Highway Vehicle Recreation Area. 157 Cong. Rec. S5250 (daily ed. Aug. 2, 2011). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 1492 (Reid, D-Nev.) (remediation) would provide for the conveyance of certain federal land in Clark County, Nevada, for the environmental remediation and reclamation of the Three Kids Mine Project site. 157 Cong. Rec. S5250 (daily ed. Aug. 2, 2011). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 1494 (Boxer, D-Cal.) (fish and wildlife) would reauthorize and amend the National Fish and Wildlife Foundation Establishment Act. 157 Cong. Rec. S5251 (daily ed. Aug. 2, 2011). The bill was referred to the Committee on Environment and Public Works.

  • H.R. 2664 (Napolitano, D-Cal.) (desalination) would reauthorize the Water Desalination Act of 1996. 157 Cong. Rec. H5660 (daily ed. July 28, 2011). The bill was referred to the Committee on Natural Resources and the Committee on Science, Space, and Technology.

  • H.R. 2673 (Markey, D-Mass.) (Gulf of Mexico) would amend the Gulf of Mexico Energy Security Act of 2006 to modify the disposition of qualified treatment qualified outer continental shelf revenues under that Act. 157 Cong. Rec. H5660 (daily ed. July 28, 2011). The bill was referred to the Committee on Natural Resources.

  • H.R. 2681 (Sullivan, R-Okla.) (air) would provide additional time for the Administrator of EPA to issue achievable standards for cement manufacturing facilities. 157 Cong. Rec. H5732 (daily ed. July 29, 2011). The bill was referred to the Committee on Energy and Commerce.

  • H.R. 2687 (Kingston, R-Ga.) (federal land) would authorize the Secretary of the Interior to lease certain lands within Fort Pulaski National Monument. 157 Cong. Rec. H5733 (daily ed. July 29, 2011). The bill was referred to the Committee on Natural Resources.

  • H.R. 2706 (Miller, R-Fla.) (wildlife) would prohibit the sale of billfish. 157 Cong. Rec. H5780 (daily ed. July 29, 2011). The bill was referred to the Committee on Natural Resources.

  • H.R. 2714 (Young, R-Alaska) (wildlife) would amend the Marine Mammal Protection Act of 1972 to allow the transport, purchase, and sale of pelts, handicrafts, garments, and art produced from Southcentral and Southeast Alaska northern sea otters that are taken for subsistence purposes. 157 Cong. Rec. H5811 (daily ed. July 30, 2011). The bill was referred to the Committee on Natural Resources.

  • H.R. 2738 (Capps, D-Cal.) (water systems) would authorize the Administrator of EPA to establish a program of awarding grants to owners or operators of water systems to increase resiliency or adaptability of the systems to any ongoing or forecasted changes to the hydrologic conditions of a region of the United States. 157 Cong. Rec. H5883 (daily ed. Aug. 1, 2011). The bill was referred to the Committees on Transportation and Infrastructure, Energy and Commerce, and Natural Resources.

  • H.R. 2745 (Heck, R-Nev.) (wildlife) would amend the Mesquite Lands Act of 1986 to facilitate implementation of a multispecies habitat conservation plan for the Virgin River in Clark County, Nevada. 157 Cong. Rec. H5883 (daily ed. Aug. 1, 2011). The bill was referred to the Committee on Natural Resources.

  • H.R. 2748 (Honda, D-Cal.) (energy efficiency) would assess the potential of smart electronics to reduce home and office electricity demand and incorporate smart electronics into the Energy Star Program. 157 Cong. Rec. H5883 (daily ed. Aug. 1, 2011). The bill was referred to the Committee on Energy and Commerce.

  • H.R. 2765 (Gary Miller, R-Cal.) (discharge permits) would amend the Federal Water Pollution Control Act to clarify the requirement that permit applications for the discharge of pollutants be approved by disinterested board members. 157 Cong. Rec. H5884 (daily ed. Aug. 1, 2011). The bill was referred to the Committee on Transportation and Infrastructure.

  • H.R. 2772 (Runyan, R-N.J.) (fisheries) would amend the Magnuson-Stevens Fishery Conservation and Management Act to permit eligible fishermen to approve certain limited access privilege programs. 157 Cong. Rec. H5884 (daily ed. Aug. 1, 2011). The bill was referred to the Committee on Natural Resources.

  • H.R. 2776 (Simpson, R-Idaho) (geothermal energy) would expand geothermal production. 157 Cong. Rec. H5884 (daily ed. Aug. 1, 2011). The bill was referred to the Committee on Natural Resources.

  • H.R. 2781 (Tonko, D-N.Y.) (gas turbines) would establish a research, development, and technology demonstration program to improve the efficiency of gas turbines used in combined cycle and simple cycle power generation systems. 157 Cong. Rec. H5885 (daily ed. Aug. 1, 2011). The bill was referred to the Committee on Science, Space, and Technology.

  • H.R. 2782 (Tonko, D-N.Y.) (wind power) would provide for a program of wind energy research, development, and demonstration. 157 Cong. Rec. H5885 (daily ed. Aug. 1, 2011). The bill was referred to the Committee on Science, Space, and Technology.

  • H.R. 2784 (Tonko, D-N.Y.) (energy efficiency) would amend the Internal Revenue Code of 1986 to encourage the deployment of highly efficient combined heat and power property. 157 Cong. Rec. H5885 (daily ed. Aug. 1, 2011). The bill was referred to the Committee on Ways and Means.

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
District of Columbia
Idaho

Illinois
Indiana
Iowa

Louisiana
Missouri
Nevada

New Hampshire
New Mexico
New York

Tennessee
Utah
Virginia

Washington
West Virginia
Wyoming

ALABAMA


Climate:



ALASKA


Fisheries:



CALIFORNIA


Hazardous & Solid Waste:



  • The Department of Resources Recycling and Recovery proposed to amend Cal. Code Regs. tit. 14, §7.11.1.0, Product Stewardship for Carpets. Changes would clarify processes for implementing the new Product Stewardship of Carpet Act. There will be a public hearing September 8, 2011, and the deadline for written comment is September 5. See http://www.oal.ca.gov/res/docs/pdf/notice/29z-2011.pdf (pp. 1138-41).

  • The Department of Resources Recycling and Recovery proposed to amend Cal. Code Regs. tit. 14, §7.11.2.0, Architectural Paint Recovery Program. Changes would clarify processes for implementing the new Architectural Paint Recovery Program. There will be a public hearing September 8, 2011, and the deadline for written comment is September 5. See http://www.oal.ca.gov/res/docs/pdf/notice/29z-2011.pdf (pp. 1141-44).

Toxic Substances:



  • The Office of Environmental Health Hazard Assessment seeks public comment on 39 chemicals listed for consultation by the Carcinogen Identification Committee, the state's qualified experts on carcinogenicity for purposes of the Safe Drinking Water and Toxic Enforcement Act. The deadline for comment is September 20, 2011. See http://www.oal.ca.gov/res/docs/pdf/notice/29z-2011.pdf (pp. 1173-74).

  • The Office of Environmental Health Hazard Assessment proposed to amend Cal. Code Regs. tit. 27, §25703(a)(6), Quantitative Risk Assessment. Changes would modify the calculation used to convert estimates of animal cancer potency to estimates of human cancer potency. The deadline for comment is September 12, 2011. See http://www.oal.ca.gov/res/docs/pdf/notice/30z-2011.pdf (pp. 1210-13).

  • The Office of Environmental Health Hazard Assessment added a-methyl styrene and sulfur dioxide to the list of chemicals known to cause reproductive toxicity, and set the final Public Health Goal for hexavalent chromium in drinking water at 0.02 parts per billion. The listing and publication took effect July 29, 2011. See http://www.oal.ca.gov/res/docs/pdf/notice/30z-2011.pdf (pp. 1215-35).

DELAWARE


Air:



Water:



  • The Department of Natural Resources and Environmental Control proposed to amend 7 Del. Admin. Code 7201.9.5, Concentrated Animal Feeding Operations. The amendments would function as the baseline concentrated animal feeding operations standards for compliance with NPDES permits applicable to certain farms. There will be a public hearing August 25, 2011, and the deadline for written comment is August 31. See http://regulations.delaware.gov/register/august2011/proposed/15%20DE%20Reg%20177%2008-01-11.htm.

DISTRICT OF COLUMBIA


Air:



  • The Department of the Environment proposed to amend 20 D.C. Municipal Regs. §10, Interstate Transport of Nitrogen Oxide (NOx) Emissions from Non-electric Generating Unit Sources. Changes would repeal the regulation in its entirety and replace the chapter with a source category NOx emissions cap. The deadline for public comment is August 20, 2011. See http://www.dcregs.dc.gov/Gateway/NoticeHome.aspx?noticeid=1293415.

General:



  • The Department of the Environment amended 20 D.C. Municipal Regs. §3501, Standards for New School Buildings. Changes establish the U.S. Green Building Council’s LEED standard and Enterprise Community Partners' Green Communities standard as the newly applicable standards. The regulation became effective upon publication. See http://www.dcregs.dc.gov/Gateway/NoticeHome.aspx?noticeid=1371694.

Toxic Substances:



  • The Department of the Environment proposed to amend 20 D.C. Municipal Regs. §§20.8, Asbestos, Sulfur, Nitrogen, Oxides, and Lead, and 20.33, Regulation of Lead-Based Paint Activities. Changes would allow the department to make regulatory adjustments to implement the Lead Hazard Prevention and Elimination Act of 2008 and the Lead Hazard Prevention and Elimination Amendment Act of 2010. The deadline for public comment is August 20, 2011. See http://www.dcregs.dc.gov/Gateway/NoticeHome.aspx?noticeid=1337453.

IDAHO


Air:



  • The Department of Environmental Quality amended Idaho Admin. Code r. 58.01.01, Rules for the Control of Air Pollution in Idaho. Changes streamline Idaho’s Rules for Control of Kraft Pulp Mills by removing requirements that are either obsolete or covered by existing federal rules. Changes also clarify reporting requirements. The rule will take effect upon adjournment of the state legislature unless the rule is rejected. See http://adm.idaho.gov/adminrules/bulletin/bul/11bul/11aug.pdf (p. 272).

  • The Department of Environmental Quality proposed to amend Idaho Admin. Code r. 58.01.01, Rules for the Control of Air Pollution in Idaho. Changes are proposed to alter definitions and incorporations by reference to ensure consistency with federal regulations. There will be a public hearing September 7, 2011. See http://adm.idaho.gov/adminrules/bulletin/bul/11bul/11aug.pdf (pp. 273-79).

Hazardous & Solid Waste:



  • The Department of Environmental Quality proposed to amend Idaho Admin. Code r. 58.01.10, Rules Regulating the Disposal of Radioactive Materials Not Regulated Under the Atomic Energy Act of 1954. Changes would incorporate a revised definition of "restricted hazardous waste" from House Bill 93, and incorporate federal changes to regulations. The deadline for written comment is August 31, 2011. See http://adm.idaho.gov/adminrules/bulletin/bul/11bul/11aug.pdf (pp. 292-95).

  • The Department of Environmental Quality proposed to amend Idaho Admin. Code r. 58.01.24, Standards and Procedures for Application of Risk Based Corrective Action at Petroleum Release Sites. Changes correct and update tables and incorporate the use of soil vapor into the risk evaluation process. The deadline for written comment is August 31, 2011. See http://adm.idaho.gov/adminrules/bulletin/bul/11bul/11aug.pdf (pp. 296-308).

Water:



  • The Department of Environmental Quality proposed to amend Idaho Admin. Code r. 58.01.02, Water Quality Standards. Changes relate to thermal effluent limits in NPDES permits that, according to the Department, contain provisions greater than needed to protect aquatic life and outdated numeric criteria to protect salmonid spawning, in addition to excessive limits on water temperature rise. The temporary rule took effect June 30, 2011, and the deadline for written comment is September 2. See http://adm.idaho.gov/adminrules/bulletin/bul/11bul/11aug.pdf (pp. 279-82).

ILLINOIS


Water:



  • The Pollution Control Board proposed to amend 35 Ill. Admin. Code §304, Effluent Standards. Changes would establish an effluent limit of 400 fecal coliforms colony forming units per 100 ml from March 1 through November 30 for effluent discharges to primary contact recreation use water segments of the Chicago Area Waterway System. The deadline for public comment is September 12, 2011. See http://www.cyberdriveillinois.com/departments/index/register/register_volume35_issue31.pdf (pp. 12634-44).

INDIANA


Climate:



  • The Natural Resources Commission temporarily amended 312 Ind. Admin. Code 16 to add noncode provisions to govern the permitting, spacing, bonding, construction, and completion of coal bed methane wells under IC 14-37 and to assist with the implementation of P.L.140-2011. The amendment took effect August 1, 2011. See http://www.in.gov/legislative/iac/20110727-IR-312110432ERA.xml.pdf.

IOWA


Hazardous & Solid Waste:



LOUISIANA


Toxic Substances:



  • The Office of Agricultural and Environmental Sciences amended La. Admin. Code 7:XXIII.103, 157, and 158, Bulk Pesticide Facilities. The emergency amendment adopts EPA rules that regulate pesticide containers and the filling and refilling of those containers, and the rule takes effect upon signing. See http://www.doa.la.gov/osr/reg/1107/1107.pdf (pp. 2060-62).

  • The Office of Conservation proposed to amend La. Admin. Code 43:XIX.118, Hydraulic Fracture Stimulation Operations, to require that a work permit be obtained from the Office of Conservation prior to initiating hydraulic fracture stimulation operations on a well. The deadline for comment is August 12, 2011. See http://www.doa.la.gov/osr/reg/1107/1107.pdf (pp. 2290-91).

MISSOURI


Air:



  • The Department of Natural Resources proposed to amend Mo. Code Regs. Ann. tit.10, §6.070, New Source Performance Regulations. The change would adopt by reference new emission standards, updates, and clarifications to existing federal rule 40 C.F.R. 60. There will be a public hearing on September 29, 2011, and the deadline for public comment is October 6. See http://www.sos.mo.gov/adrules/moreg/current/v36n15/v36n15b.pdf (p. 1811).

  • The Department of Natural Resources proposed to amend Mo. Code Regs. Ann. tit.10, §6.075, Maximum Available Control Technology. The change would adopt by reference new emission standards, updates, and clarifications to existing federal rule 40 C.F.R. 63. There will be a public hearing on September 29, 2011, and the deadline for public comment is October 6. See http://www.sos.mo.gov/adrules/moreg/current/v36n15/v36n15b.pdf (pp. 1812-14).

  • The Department of Natural Resources proposed to amend Mo. Code Regs. Ann. tit.10, §6.080, Emission Standards for Hazardous Air Pollutants. The change would adopt by reference new emission standards, updates, and clarifications to existing federal rule 40 C.F.R. 61. There will be a public hearing on September 29, 2011, and the deadline for public comment is October 6. See http://www.sos.mo.gov/adrules/moreg/current/v36n15/v36n15b.pdf (pp. 1814-15).

Land Use:



  • The Department of Natural Resources proposed to amend Mo. Code Regs. Ann. tit.10, §40.5.010, Prohibitions and Limitations on Mining in Certain Areas. Changes would offer increased opportunity for proof of valid existing rights and define what a company must prove and how the regulatory authority must decide whether the rights asserted are valid. The deadline for comment is September 1, 2011. See http://www.sos.mo.gov/adrules/moreg/current/v36n15/v36n15b.pdf (pp. 1820-26).

Water:



  • The Department of Natural Resources proposed to amend Mo. Code Regs. Ann. tit.10, §20.8.120, Design of Gravity Sewers. The amendment would update the rule to current industry practices. The deadline for public comment is September 14, 2011. See http://www.sos.mo.gov/adrules/moreg/current/v36n15/v36n15b.pdf (pp. 1815-20).

NEVADA


Air:



  • The Environmental Commission adopted Nev. Admin. Code 445B, related to Class IV sources. The temporary regulation clarifies the definition of Class IV sources and lists area source categories, in addition to other provisions. The regulation was adopted June 16, 2011. See http://www.leg.state.nv.us/register/2011TempRegister/T008-11A.pdf.

NEW HAMPSHIRE


Air:



  • The Department of Environmental Services proposed to readopt sections of Env-A 600, Statewide Air Permit System. Changes relate to requirements for applications for permits. There will be a public hearing on August 19, 2011, and the deadline for comment is August 29. See http://www.gencourt.state.nh.us/rules/register/2011/july-29-11.pdf (pp. 17-20).

  • The Department of Environmental Services proposed to amend Env-A 1702-1709, Permit Application Forms. Changes would make permanent interim rules regarding state and Title V operating permits. There will be a public hearing on August 19, 2011, and the deadline for comment is August 29. See http://www.gencourt.state.nh.us/rules/register/2011/july-29-11.pdf (pp. 21-22).

NEW MEXICO


Hazardous and Solid Waste:



  • The Environmental Improvement Board proposed to adopt N.M. Admin. Code §20.5.19, Delivery Prohibition. The rule would prohibit the delivery, deposit, or acceptance of product to a UST that has been determined to be ineligible. There will be a public hearing on October 3, 2011. See http://www.nmcpr.state.nm.us/nmregister/xxii/xxii14/Environotice2.htm.

NEW YORK


Air:



  • The Department of Environmental Conservation amended 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. The emergency rule incorporates EPA rules for the regulation of fine particulate matter and provisions of the Greenhouse Gas Tailoring Rule. The rule will expire September 16, 2011. See http://www.dos.ny.gov/info/register/2011/aug3/pdfs/rules.pdf (pp. 15-22).

General:



  • The Department of Environmental Conservation proposed to amend N.Y. Comp. Codes R. & Regs. tit. 6, §620.2(a), Procedures for Issuance of Summary Abatement Orders. Changes would correct errors from the original 1977 rulemaking to conform the regulatory language to the enabling statute. The deadline for comment is August 11, 2011. See http://www.dos.state.ny.us/info/register/2011/jul27/pdfs/rules.pdf (p. 10).

TENNESSEE


Hazardous & Solid Waste:



  • The Department of Environment and Conservation proposed to amend Tenn. Admin. Code 0400.15.01, Hazardous Substance Remedial Action; .02, Standards for Testing and Cleaning Quarantined Clandestine Drug Manufacturing Sites; .03, Drycleaner Environmental Response Program; and other regulations related to remediation. There will be a public hearing on September 16, 2011. See http://state.tn.us/sos/rules_filings/07-10-11.pdf.

  • The Department of Environment and Conservation proposed to amend Tenn. Admin. Code 0400.11.01, Solid Waste Processing and Disposal; .02, Challenge Grants for Waste Reduction; .07, Solid Waste Processing and Disposal; and other regulations related to solid waste. There will be a public hearing on September 14, 2011. See http://state.tn.us/sos/rules_filings/07-11-11.pdf.

UTAH


Hazardous & Solid Waste:



  • The Department of Environmental Quality proposed to amend Utah Admin. Code r. 313.26.4, Radiation Control: Shippers Requirements. Changes would insert an additional requirement into the rule for radioactive waste shipments that are below the DOT's definition of hazardous material Class 7 Radioactive Material. The deadline for public comment is August 31, 2011, and the rule may become effective September 15. See http://www.rules.utah.gov/publicat/bull_pdf/2011/b20110801.pdf (pp. 75-76).

VIRGINIA


Hazardous & Solid Waste:



  • The Department of Environmental Quality amended 9 Va. Admin. Code §15.30, Regulations for the Certification of Recycling Machinery and Equipment for Local Tax Exemption Purposes. Changes update the reference to the Solid Waste Management Regulations from 9 Va. Admin. Code §20.80 to 9 Va. Admin. Code §20.81. See http://legis.state.va.us/codecomm/register/vol27/iss24/v27i24.pdf (p. 2601).

WASHINGTON


Water:



  • The Department of Ecology proposed to amend Wash. Admin. Code §173.224, Wastewater discharge permit fees. Changes increase fees 4.34 percent for state fiscal year 2012 and 4.62 percent for state fiscal year 2013. Affected permit categories include aquatic pest control, boatyards, dairies, concentrated animal feeding operations, construction stormwater individual and general permits, industrial stormwater individual and general permits, municipal domestic wastewater permits, municipal stormwater permits, and water treatment plants. There will be a public hearing August 24, 2011, and the deadline for public comment is September 1. See http://apps.leg.wa.gov/documents/laws/wsr/2011/15/11-15-075.htm.

WEST VIRGINIA


Land Use:



WYOMING


Air:



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


INTERNATIONAL

CHINA TO CAP ENERGY USE IN LOW-CARBON PLAN

China is likely to cap energy consumption as part of a low-carbon plan to be issued later this year, and experts believe that officials have agreed on its level. However, the cap, which would make it easier for trading schemes to succeed and help the country reduce emissions, may be less tough than expected. According to Reuters, officials seem to have settled on a 4.1 billion ton coal equivalent total energy cap, which is 25 percent higher than scholars involved in the discussion proposed last year. "The number is definitely at the higher end, there's no doubt about that, and this tells you how fierce the debate has been internally," said Wu Changhua, a representative with The Climate Group. However, he said the figure was a good "starting point." Many of China's five-year carbon dioxide, energy, and pollution targets have already been confirmed, and formal recognition is expected later this year. One issue that remains to be settled is whether the plan will set targets for individual provinces, but Reuters expects formal recognition to be given to six low-carbon zones. In March, the government's five-year plan included goals of slowing emissions growth relative to GDP by 17 percent and improving energy intensity by 16 percent, and the cap "makes it much clearer to provinces what they have to do regardless of what GDP growth rate is," said Deborah Seligsohn, a climate policy expert for the World Resources Institute. On Friday, carbon offsets neared record low prices and continued to be the world's worst performing commodity. For the full story, see http://www.guardian.co.uk/environment/2011/aug/04/china-cap-energy-plan and http://www.reuters.com/article/2011/08/04/us-china-carbon-idUSTRE7731DF20110804. For the story on carbon offsets, see http://www.reuters.com/article/2011/08/05/us-carbon-low-idUSTRE77442920110805.


STEELMAKERS SUE EU OVER CARBON MARKET POLICIES

A long-awaited UN report said that restoration of the Ogoniland region could be the "most wide-ranging and long-term oil cleanup" ever taken, possibly taking as long as 30 years. The report, which follows a two-year investigation, has drawn fire as it is partially funded by Shell, the oil giant that has accepted liability for the 2008 and 2009 spills that impacted the region. The report found that 10 communities were seriously threatened by pollution, and one community has said that it will seek hundreds of millions of dollars in compensation. Shell said it would settle under Nigerian law. A lawyer for the Bodo people said that the spill, one of the world's worst, had been ignored until his firm threatened to take Shell to court in the United Kingdom. He said that could set a legal precedent for communities affected by Western firms. For the full story, see http://www.bbc.co.uk/news/world-africa-14398659.


AUSTRALIA'S MARINE LIFE AND GREAT BARRIER REEF AT RISK

The United Nations Educational, Scientific, and Cultural Organization's (UNESCO's) World Heritage Committee expressed "extreme concern" at the Queensland government's backing of Curtis Island multi-billion dollar liquid natural gas processing facilities, which require dredging around the island and dramatically increasing shipping traffic in the local port. In notes from the meeting last month, the organization suggested the project could affect the Great Barrier Reef's "Overall Universal Value" and called for a comprehensive assessment of the reef and a long-term plan for sustainable development. Environmentalists have expressed concern about the three multi-billion dollar projects, and Queensland Greens Senator Larissa Waters said that the state government should be embarrassed for treating the reef as a "gas and coal highway." However, the state government was certain that the appropriate environmental protections were in place. "We are very confident in the rigorous nature of the environmental assessments. I think UNESCO might not understand how seriously Australia takes its obligations," said Queensland Premier Anna Bligh. Meanwhile, a group of environmental organizations released a report last week indicating that sections of the ocean floor off the coast of Australia are being "bulldozed" by fishing practices such as trawling and the use of eight-kilometer-wide fishing nets. The report indicated that the practices are damaging to marine life and undermining crucial breeding and feeding grounds. The report came as the deadline draws closer for public comment on a proposal to establish a massive 538,000 square kilometer marine national park, which would be one of the largest in the world. The area will span from north of Perth to south of Adelaide, where 90 percent of the species are unique to region and home to one third of the world's whale and dolphin species. For the full story about the liquid natural gas projects, see http://news.smh.com.au/breaking-news-national/un-concerned-about-lng-threat-to-reef-20110805-1iep1.html. For the story on the sea floor report, see http://www.nzherald.co.nz/environment/news/article.cfm?c_id=39&objectid=10742825.


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


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