Weekly Update Volume 41, Issue 25
The Federal Circuit, in a breach of contract case involving the U.S. government's failure to dispose of spent nuclear fuels (SNF) produced at San Onofre Nuclear Generating Station, held that certain indirect overhead costs incurred by an electric utility can be included in the utility's damages calculations. The trial court awarded $142,394,294 to the utility for expenses undertaken due to the breach. Of that amount, $23,657,791 was attributable to indirect overhead costs associated with the utility's construction of on-site SNF storage facilities. The government did not contest the existence of the claimed overhead expenses. Instead, it argued that the utility failed to meet its burden of separating out the overhead costs caused by the breach from those unrelated to the breach. But the government's breach caused the utility to build, staff, and maintain the on-site SNF storage facilities. Because the facilities did not exist prior to the government's breach, and indeed were necessitated by the breach, this is not a case where the underlying costs were incurred by operations independent of and unrelated to the breach. Accordingly, the lower court properly determined that the utility's overhead expenses were linked to the breach and were recoverable. Southern California Edison Co. v. United States, No. 2010-5147, 41 ELR 20280 (Fed. Cir. Aug. 23, 2011).
The Seventh Circuit upheld a $100,000 penalty assessment against three power plant developers for PSD permit violations at a proposed coal-fired power plant site. The court previously held that the developers' PSD permit expired because they failed to begin construction within the permit's 18-month window for commencing construction. A lower court then imposed a $100,000 civil penalty against the developers. In light of the size of the project ($600 million) and of the potential maximum penalty of $ 41.7 million, the court agreed with the lower court that a relatively small penalty of $100,000, imposed jointly and severally on all three developers, was reasonable. In addition, the lower court did not abuse its discretion in concluding that the environmental group challenging the project was successful on the merits and performed a public service consistent with the CAA's goals. The court therefore affirmed the lower court's award of $375,985.70 in attorneys' fees and costs. Sierra Club v. Khanjee Holding (US) Inc., No. 09-4008, 41 ELR 20275 (7th Cir. Aug. 24, 2011).
The Ninth Circuit remanded the FAA's decision not to prepare an EIS in conjunction with its approval of an airport runway construction project. Relying chiefly on two cases involving airport improvements--neither of which involved a new runway--the FAA argued that an EA need not account for the growth-inducing effects of a project designed to alleviate current congestion. But a new runway has a unique potential to spur demand, setting it apart from other airport improvements, like changing flight patterns, improving a terminal, or adding a taxiway, which increase demand only marginally, if at all. Thus, in instances where there is a potential to create demand, a case-by-case approach is needed. Even if the stated purpose of the project is to increase safety and efficiency, the agencies must analyze the impacts of the increased demand attributable to the additional runway as growth-inducing effects under 40 C.F.R. §1508.8(b). On remand, therefore, the FAA must consider the environmental impact of increased demand resulting from the expansion project, if any, pursuant to §1508.8(b). Barnes v. United States Department of Transportation, No. 10-70718, 41 ELR 20279 (9th Cir. Aug. 25, 2011).
The Ninth Circuit held that the U.S. Bureau of Reclamation took the requisite "hard look" under NEPA in its analysis of a proposed incremental drawdown of water from Lake Roosevelt in Washington state. Although a portion of the EA exclusively devoted to cumulative effects is conclusory and unenlightening, reading the EA as a whole reveals that the Bureau understood and accounted for the cumulative effects of past projects. And while the Bureau took several steps toward implementing the drawdown project before drafting the EA, it scrupulously adhered to NEPA's timing requirements. The court, therefore, affirmed a lower court's grant of summary judgment in favor of the agency. Center for Environmental Law & Policy v. United States Bureau of Reclamation, No. 10-35646, 41 ELR 20281 (9th Cir. Aug. 19, 2011).
The Third Circuit affirmed a lower court decision refusing to certify residents' class action for medical monitoring and property damage in a suit against chemical companies for allegedly dumping a carcinogen at an industrial complex near their homes. The residents failed to show the cohesiveness required for certification of a Rule 23(b)(2) medical monitoring class. The residents' proposed common evidence and trial plan would not be able to prove the medical necessity of their proposed monitoring regime without further individual proceedings to consider class members' individual characteristics and medical histories. Nor did the lower court abuse its discretion in finding individual issues predominate over any issues common to the class under Rule 23(b)(3). The requirements of predominance and superiority for maintaining a class action under Rule 23(b)(3) are less stringent than the cohesiveness requirement of Rule 23(b)(2). Nevertheless, inquiries into whether the residents were exposed to above background levels, whether they face a significantly increased risk of developing a serious latent disease, and whether a medical monitoring regime is reasonably medically necessary all require considering individual proof of the residents' specific characteristics. And for much of the same reason, the lower court did not abuse its discretion in refusing to certify the property damage class. Gates v. Rohm & Haas Co., No. 10-2108, 41 ELR 20278 (3d Cir. Aug. 25, 2011).
A district court dismissed a development company's CERCLA contribution claim against a large corporation for costs the company incurred investigating and remediating environmental contamination on property caused by the corporation's legal predecessor. The company failed to state a claim for contribution under CERCLA §113(f). The company engaged in the remediation and investigation of the site voluntarily, and costs incurred voluntarily are only recoverable under CERCLA §107(a). In addition, the company is not a PRP, and it has not entered an administrative or judicially approved settlement with the government as required by §113. The court also dismissed the company's nuisance claim. Historic contamination at a site does not constitute an invasion as required by nuisance case law. But the court denied the corporation's motion to dismiss the company's claim for restitution because it would be premature to dismiss an alternative cause of action at this early stage of litigation. Queens West Development Corp. v. Honeywell International, No. 10-4876, 41 ELR 20282 (D.N.J. Aug. 17, 2011) (Sheridan, J.).
A California appellate court held that a county complied with the California Environmental Quality Act (CEQA) prior to approving the development of a large beverage distribution facility project. The plaintiff argued that the county failed to give the regional air quality district proper notice of a hearing and its intent to adopt a mitigated negative declaration for the project. But this single error in the notice procedure was not prejudicial. Even without notice to the district, the information gathering and presentation mechanisms of CEQA were not subverted or even compromised. Moreover, the district later confirmed that the project's estimated operational criteria emissions were below the district's existing thresholds of significance. The court also rejected the plaintiff's claim that the county should have prepared an environmental impact report rather than a negative declaration. The administrative record does not contain substantial evidence that the project, with mitigation measures, may have a significant effect on the environment. Schenck v. County of Sonoma, No. A129646, 41 ELR 20274 (Cal. App. 1st Dist. Aug. 26, 2011).
A California appellate court reversed a lower court decision denying a gasoline station owner's petition challenging the validity of $1,148,200 in civil penalties imposed against him by a county for underground gasoline storage tanks violations. The county issued an enforcement order to the owner stating that he owed $138,824 in civil penalties for the violations. The order notified the owner that he was entitled to challenge the order at an administrative hearing. The owner did so, but this resulted in a massive increase of over $1 million in the total amount of civil penalties. A lower court upheld the administrative law judge decision. But the order's notice about the availability of a hearing was unclear as to whether it would simply be an opportunity to challenge the merits of the allegations in the enforcement order or, conversely, whether the hearing would decide anew the full amount of the appropriate civil penalties, thereby subjecting the owner to the potential of increased civil penalties. Basic fairness requires that when a party is ordered by an agency to pay substantial civil penalties, but is given a right to request an administrative hearing concerning said order, the party should be informed of which type of hearing is contemplated so that he or she will be able to ascertain what is at stake and intelligently decide on whether to request the hearing. That is particularly the case where, as here, the statute authorizing the civil penalties sets forth an expansive range of financial penalties that might be imposed per violation, per day. Accordingly, under the unique circumstances shown in this case, the owner did not receive fair and adequate notice. The court, therefore, reversed the lower court's decision. Tafti v. County of Tulare, No. F060098, 41 ELR 20276 (Cal. App. 5th Dist. Aug. 24, 2011).
A California appellate court affirmed a lower court decision dismissing homeowners' inverse condemnation claim against a county for damages they sustained following storm-induced floods in 2003 and 2004. The homeowners alleged that during both storms, a county roadway concentrated and exacerbated the natural flow of water, thereby causing substantial damage to their properties. They claimed that the roadway, including an unimproved dirt alignment, was a public improvement for purposes of inverse condemnation law, and that the county's installation of "K-rails" along the roadway prior to the 2004 flood constituted a further public improvement. The lower court properly dismissed the claims. The dirt alignment was not a public improvement for purposes of inverse condemnation, and to the extent the lower, paved roadway was a public improvement, the homeowners failed to submit any evidence that it was a cause of their injuries during the 2003 flood. As for the 2004 flood, the installation of the K-rails was a public improvement and the improvement caused the residents to suffer damages, but substantial evidence demonstrates that the county acted reasonably in installing the K-rails. The homeowners argued that the court should apply a strict liability standard instead of the reasonableness test. But if liability for acting--i.e., installing the K-rails--could be imposed on the county based on strict liability, the county could well have decided to take no action. Therefore, as a matter of public policy and common sense, some protective action (even if it should ultimately be insufficient) should not be discouraged. Accordingly, the lower court correctly applied the reasonable standard, not the strict liability standard, in this case. Gutierrez v. County of San Bernardino, No. E050452, 41 ELR 20277 (Cal. App. 4th Dist. Aug. 24, 2011).
Copyright© 2011, Environmental Law Institute, Washington, D.C. All rights reserved.
THE FEDERAL AGENCIES
Note: Citations below are to the Federal Register (FR).
- EPA deferred the reporting deadline for certain data elements by direct emitter reporters under the Mandatory Greenhouse Gas Reporting Rule until March 31, 2013, and March 31, 2015. 76 FR 53057 (8/25/11).
- EPA determined in its court-ordered review that current primary and secondary NAAQS for carbon monoxide provide an adequate margin of safety to protect public health. 76 FR 54294 (8/31/11).
- EPA proposed new source performance standards and NESHAPs for oil and gas operations not covered by the current listings. 76 FR 52738 (8/23/11).
- EPA promulgated a federal implementation plan for the San Juan Generating Station near Farmington, New Mexico, to address interstate transport of pollution. 76 FR 52388 (8/22/11).
- EPA entered into a proposed consent decree in WildEarth Guardians v. Jackson, No. 3:11-cv-00190-WHA (N.D. Cal.), that establishes deadlines for the Agency to take final action on SIPS in 20 states with regard to the 2006 fine particulate matter (PM) NAAQS. 76 FR 54463 (9/1/11).
- EPA entered into a proposed settlement agreement in Sierra Club v. Jackson, No. 3:10-cv-04060-CRB (N.D. Cal.), that establishes deadlines for the Agency to promulgate federal implementation plans for 12 states and to take final action on SIPS in 10 states with regard to the 1997 eight-hour ozone NAAQS. 76 FR 54465 (9/1/11).
- EPA announced publication of Oil and Natural Gas Sector: New Source Performance Standards and National Emission Standards for Hazardous Air Pollutants Reviews and seeks public comment. 76 FR 53371 (8/26/11).
- EPA denied a petition to reopen the 2001 CAA Title V permit issued to Reliant Energy Mid-Atlantic Power Holdings, LLC, for its Portland generating station in Northampton County, Pennsylvania. 76 FR 53452 (8/26/11).
- SIP Approvals: Delaware (interstate transport of pollution plan) 76 FR 53638 (8/29/11). Pennsylvania (nitrogen oxide (NOx) emissions) 76 FR 52283 (8/22/11); (source standards for large appliance and metal furniture coatings) 76 FR 52867 (8/24/11). Virginia (Clean Air Interstate Rule trading program) 76 FR 52275 (8/22/11); (permits in PSD areas) 76 FR 54706 (9/2/11).
- SIP Proposals: California (volatile organic compound (VOC), NOx, and particulate matter emissions for the San Joaquin Valley unified air pollution control district) 76 FR 52623 (8/23/11). Kansas (regional haze program) 76 FR 52604 (8/23/11). Louisiana (attainment of the 1997 eight-hour ozone NAAQS for the Baton Rouge moderate nonattainment area and other modifications) 76 FR 53853 (8/30/11). Maryland (failure to attain the 1997 eight-hour ozone NAAQS for the Baltimore moderate nonattainment area) 76 FR 54412 (9/1/11). Pennsylvania (source standards for large appliance and metal furniture coatings; see above for direct final rule) 76 FR 52917 (8/24/11); (VOCs from adhesives, sealants, primers, and solvents) 76 FR 53369 (8/26/11); (1997 eight-hour ozone and 1997 and 2006 fine PM NAAQS) 76 FR 54410 (9/1/11).
- SIP Withdrawal: California (volatile organic compound emission revision for the South Coast air quality management district) 76 FR 54384 (9/1/11).
HAZARDOUS & SOLID WASTE:
- EPA entered into a proposed administrative settlement under CERCLA concerning the Ely Copper Mine Superfund site in Vershire, Vermont, that requires the settling party to use all cash accounts for U.S. site-related expenses, to sell the site property, to allow access to the site property and its materials, and to implement institutional controls at the site. 76 FR 53898 (8/30/11).
- EPA seeks public comment on its draft human health assessment titled, Toxicological Review of Libby Amphibole Asbestos: In Support of Summary Information on the Integrated Risk Information System (IRIS). 76 FR 53125 (8/25/11).
- EPA Region 6 announced the availability of 16 TMDLs for waters listed in Arkansas under CWA §303(d). 76 FR 52947 (8/24/11).
- EPA Region 10 approved revisions to Alaska's NPDES program under §402 of the CWA involving the transfer of specific program components to the state. 76 FR 52658 (8/23/11).
- FWS removed bald eagles in the Sonoran Desert area of central Arizona from the list of endangered and threatened wildlife under the ESA to comply with Center for Biological Diversity v. Salazar, No. 07-cv-00038-PHX-MHM (D. Ariz. Sept. 30, 2010). 76 FR 54711 (9/2/11).
- FWS designated approximately 47,383 acres in Sonoma County, California, as critical habitat for the distinct population segment of the California tiger salamander under the ESA. 76 FR 54346 (8/31/11).
- FWS proposed to designate approximately 25,704 acres in Riverside County, California, as critical habitat for Coachella Valley milk-vetch under the ESA. 76 FR 53224 (8/25/11).
- FWS proposed to remove inter-subspecific crossed or generic tigers from the list of species that are exempt from registration under ESA regulations for captive-bred wildlife. 76 FR 52297 (8/22/11).
- FWS proposed to remove the regulations that govern the southern sea otter translocation program in the southern waters of California because it has failed to fulfill its purpose. 76 FR 53381 (8/26/11).
- FWS announced a 90-day finding on a petition to list all chimpanzees as endangered under the ESA; the agency found that listing may be warranted and initiated a status review. 76 FR 54423 (9/1/11).
- FWS announced the availability of a revised recovery plan for the Mojave population of the desert tortoise under the ESA. 76 FR 53482 (8/26/11).
- FWS announced the availability of and seeks public comment on its draft revision to the North American Waterfowl Management Plan. 76 FR 53149 (8/25/11).
DOJ NOTICES OF SETTLEMENT:
- United States v. Hammond Group, Inc., No. 2:11-cv-00298-JD-PRC (N.D. Ind. Aug. 17, 2011). A settling CERCLA defendant responsible for violations at the Columbia Avenue Spill Superfund site in Hammond, Indiana, must pay $1,389,569.88 in U.S. response costs incurred at the site. 76 FR 53155 (8/25/11).
- United States v. Erie Coke Corp., No. 1:09-cv-00240-SJM (W.D. Pa. Aug. 17, 2011). A settling CAA defendant responsible for violations at a coke manufacturing facility in Erie, Pennsylvania, must pay a $300,000 civil penalty and must apply interim measures to control visible air emissions. 76 FR 52692 (8/23/11).
- United States v. Hansons Window & Construction, Inc., No. 2:11-cv-13561-JCO-MKM (E.D. Mich. Aug. 15, 2011). A settling TSCA defendant that failed to follow proper disclosure procedures at its window manufacturing and replacement facility near Detroit, Michigan, must pay a $50,000 civil penalty, must certify current compliance and develop a program to ensure ongoing compliance with residential lead-based paint hazard notification requirements, and must perform a $250,000 supplemental environmental project to install windows in pre-1978 housing. 76 FR 52692 (8/23/11).
- United States v. Soco West, Inc., (D. Mont. Aug. 15, 2011). A settling CERCLA and RCRA defendant responsible for violations at the Lockwood Solvent Groundwater Plume Superfund site in Billings, Montana, must pay $750,000 in past U.S. removal and remedial costs incurred at the site, must pay future oversight costs incurred by the United States and Montana, and must perform remedial action and certain sitewide remedial obligations. 76 FR 52350 (8/22/11).
- United States v. Santos/Alviso Partnership, L.P., No. CV 11-04139 HRL (N.D. Cal. Aug. 23, 2011). Settling CERCLA defendants responsible for violations at the South Bay Asbestos Superfund site in San Jose, California, must provide access to the landfill property, must inspect and maintain an existing cap on the landfill property, and must execute and record a covenant to protect the existing cap. 76 FR 54791 (9/2/11).
- United States v. City of Euclid, No. 1:11-CV-01783 (N.D. Ohio Aug. 24, 2011). A settling CWA defendant responsible for combined and sanitary sewer overflows, in violation of its NPDES permit, must pay a $150,000 civil penalty to the United States and Ohio, must submit and implement long-term control and elimination plans to reduce and eliminate the overflows, and must complete all work no later than December 31, 2026. 76 FR 53941 (8/30/11).
- United States v. Rexam Inc., No. 3:11-cv-04836-JAP-DEA (D.N.J. Aug. 22, 2011). A settling CERCLA defendant responsible for violations at the Crown Vantage Landfill Superfund site in Hunterdon County, New Jersey, must pay $630,960 in U.S. response costs incurred at the site, plus interest, and must pay any other response costs that might occur. 76 FR 53697 (8/29/11).
Copyright© 2011, Environmental Law Institute, Washington, D.C. All rights reserved.
Congress has been on recess since the last issue of Weekly Update and is set to reconvene on September 5.
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:
- The Department of Environmental Conservation proposed to amend 18 Alaska Admin. Code 50, relating to air quality control. Changes would adopt federal regulations by reference and clarify requirements for modeling and owner requested limits. See http://notes4.state.ak.us/pn/pubnotic.nsf/1604e1912875140689256785006767f6/17915825847c3a3f892578f8005dc24e?OpenDocument.
- The Pollution Control Financing Authority proposed to amend Cal. Code Regs. tit. 4 §8035, relating to the Small Business Assistance Fund (SBAF). The regulations currently require all permit applicants to pay a SBAF fee, and the rulemaking would exempt public agencies from the fee. The deadline for written comment is October 10, 2011. See http://www.oal.ca.gov/res/docs/pdf/notice/34z-2011.pdf (pp. 1346-48).
- The Department of Public Health and Environment amended 5 Colo. Code Regs. §§1001.08 & 1001.10, Standards of Performance for New Stationary Services & Control of Hazardous Air Pollutants. Amendments incorporate federal code changes by reference. See http://www.sos.state.co.us/CCR/Upload/AGORequest/AdoptedRules02011-00189.DOC and http://www.sos.state.co.us/CCR/Upload/AGORequest/AdoptedRules02011-00190.DOC.
- The Department of Natural Resources and Environmental Control proposed to amend 7 Del. Admin. Code §1144, Control of Stationary Generator Emissions. Changes would include new recordkeeping and reporting requirements for certain non-emergency generators that are operated in conjunction with a voluntary demand-reduction program, lower the diesel sulfur requirement from 500 parts per million (ppm) to 15 ppm, and alter a requirement that emergency generators meet Tier 2 or Tier 3 standards rather than the Tier 4 standard. There will be a public hearing on September 22, 2011. See http://regulations.delaware.gov/register/september2011/proposed/15%20DE%20Reg%20303%2009-01-11.htm.
- The Air Pollution Control Board seeks public comment on new rules concerning the federal cross-state air pollution rule. Changes would affect 326 Ind. Admin. Code §§10 & 24. The deadline for comment is September 23, 2011. See http://www.in.gov/legislative/iac/20110824-IR-326110460FNA.xml.pdf.
- The Air Pollution Control Board proposed to amend 326 Ind. Admin. Code §2, concerning air permit review rules. Changes affect the definitions for "opacity" and "pollution control project," in addition to other portions of the regulation. There will be a public hearing November 2, 2011. See http://www.in.gov/legislative/iac/20110831-IR-326090493PRA.xml.pdf.
Hazardous & Solid Waste:
- The Division of Waste Management added 401 Ky. Admin. Regs. 42:005, definitions related to USTs. See http://www.lrc.state.ky.us/kar/401/042/005.htm.
- The Department of Environmental Quality proposed to amend La. Admin. Code 33:III.501, Permit Term or Condition Referencing 40 C.F.R. Part 63, Subpart DDDDD. The rule would repeal and reserve La. Admin. Code 33:III.501.B.8, which specifies that "any term or condition in a permit that references 40 C.F.R. Part 63, Subpart DDDDD shall be null and unenforceable." The change follows a court ruling remanding and causing the re-promulgation of Subpart DDDDD. There will be a public hearing September 27, 2011, and the deadline for comment is October 4. See http://www.doa.la.gov/osr/reg/1108/1108.pdf (pp. 2473-74).
- The Department of Natural Resources proposed to add La. Admin. Code 43.I. Chapter 11 and V. Chapter 4, Mineral Resources, Alternative Energy Leasing and Dry Hole Credit. The rule would detail the procedure for administering the leasing of state lands and water bottoms for the exploration, development, and production of alternative energy. The deadline for comment is September 23, 2011. See http://www.doa.la.gov/osr/reg/1108/1108.pdf (pp. 2508-01).
- The Department of Natural Resources proposed to amend La. Admin. Code 43:XIX.701, 703, and 707, relating to definitions for the purposes of fees. There will be a public hearing September 27, 2011, and the deadline for comment is September 30. See http://www.doa.la.gov/osr/reg/1108/1108.pdf (pp. 2497-501).
- The Department of Natural Resources proposed to amend La. Admin. Code 56:I.321, pertaining to water wells. Changes affect well location and registration. There will be a public hearing September 26, 2011, and the deadline for comment is October 3. See http://www.doa.la.gov/osr/reg/1108/1108.pdf (pp. 2501-08).
- The Department of the Environment proposed to amend Md. Code Regs. 26.11.19, Volatile Organic Compounds from Specific Processes. The amendment would adopt U.S. EPA's Control Techniques Guidelines for miscellaneous metal and plastic parts for this category, and the rule change would affect pleasure craft coating operations. There will be a public hearing September 27, 2011. See http://www.dsd.state.md.us/mdregister/3818.pdf (pp. 1099-1101).
- The Department of the Environment proposed to amend Md. Code Regs. 26.17.01, Erosion and Sediment Control. Changes would revise the handbook "1994 Maryland Standards and Specifications for Soil Erosion and Sediment Control," incorporated by reference in the current regulations. Additionally, the name of the document would be changed to "2011 Maryland Standards and Specifications for Soil Erosion and Sediment Control." There will be a public hearing on September 16, 2011, and the deadline for comment is September 26. See http://www.dsd.state.md.us/mdregister/3818.pdf (pp. 1101-04).
- The Department of Environmental Protection added the emergency rule 310 Mass. Code Regs.10.61: Storm Emergency Regulations in the Aftermath of Hurricane Irene. Changes set debris cleanup procedures. The rule is effective through October 27, 2011. See http://www.mass.gov/dep/service/regulations/newregs.htm#emerg.
- The Pollution Control Agency amended Minn. R. 7001, relating to permits and certifications. Changes provide an exemption for permitting rules and alter guidelines for notification of project proposers in the event of incomplete proposals. See http://www.comm.media.state.mn.us/bookstore/stateregister/36_06.pdf (pp. 179-80).
- The Department of Natural Resources adopted Mo. Code Regs. Ann. tit.10, §6.405. The rule restricts the emission of particulate matter from fuel burning equipment used for indirect heating except where Mo. Code Regs. Ann. tit.10, §6.070 would be applied. The rule takes effect October 1, 2011. See http://www.sos.mo.gov/adrules/moreg/current/v36n17/v36n17a.pdf (pp. 2001-04).
- The Department of Natural Resources proposed to amend Mont. Admin. Code 36.25, pertaining to the land banking program. Changes add a definition for "sale units" that can be made up of multiple parcels of land. There will be a public hearing on September 15, 2011. See http://sos.mt.gov/arm/Register/archives/MAR2011/MAR11-16.pdf (pp. 1618-24).
- The State Environmental Commission proposed to amend Nev. Admin. Code 445B. Changes alter the definition of "Class IV Source." The proposal was adopted as a temporary regulation on June 16, 2011. There will be a public hearing October 5, 2011. See http://www.leg.state.nv.us/register/2011Register/R014-11P.pdf.
- The Environmental Improvement Board proposed to repeal N.M. Admin. Code 20.2.100, 300, 301, and 305, Greenhouse Gas Reduction Program, Greenhouse Gas Cap and Trade Program, and the Greenhouse Gas Reporting and Verification Requirements, on behalf of a petition. There will be a public hearing for the reduction program on December 5, 2011, and another hearing on November 8 for the cap and trade program and reporting and verification requirements. See http://www.nmcpr.state.nm.us/nmregister/xxii/xxii16/EIBnotice2.htm and http://www.nmcpr.state.nm.us/nmregister/xxii/xxii16/EIBnotice1.htm.
- The Environmental Protection Agency proposed to amend Ohio Admin. Code 3745.103, Acid Rain Permits and Compliance. Changes update the rules for compliance with federal regulations and provide current dates for referenced materials. The deadline for comment is October 3, 2011. See http://www.registerofohio.state.oh.us/pdfs/phn/3745_NO_144559_20110824_0822.pdf.
- The Environmental Protection Agency proposed to amend Ohio Admin. Code 3745.100, Toxic Chemical Release Reporting. Changes would bring the rules in line with federal requirements, correct minor typographical errors, fulfill the formatting requirements of the Legislative Services Commission, and add and update citation information. The deadline for comment is September 23, 2011. See http://www.registerofohio.state.oh.us/pdfs/phn/3745_NO_143999_20110816_1214.pdf.
- The Department of Environmental Quality proposed to amend Okla. Admin. Code §252.100.1, 2, 8, & 31, Air Pollution Control. Changes would incorporate new carbon dioxide requirements from the U.S. EPA into the PSD program and clarify that construction permits for new and modified Part 70 sources shall be obtained under the requirements of Part 5 of 252.100.8 and not 252.100.7, Permits for Minor Facilities. There will be public hearings on October 5 and November 15, 2011, and the deadline for written comment is October 5. See http://www.oar.state.ok.us/register/Volume-28_Issue-24.htm#a17455.
Hazardous & Solid Waste:
- The Department of Environmental Quality proposed to amend Okla. Admin. Code §252.205.3.1, Hazardous Waste Management, to incorporate changes to federal regulations by reference. The deadline for written comment is October 13, 2011, and there will be public hearings on October 13 and November 15. See http://www.oar.state.ok.us/register/Volume-28_Issue-24.htm#a19979.
- The Department of Environmental Quality proposed to amend Okla. Admin. Code §252.410, Radiation Management. Changes incorporate federal regulation changes by reference. In addition, the rule would revoke Subchapter 19, related to X-ray fluorescence instruments used for lead-based paint analysis, as the subchapter is now regulated under the provisions of the Atomic Energy Act. The deadline for written comment is November 8, 2011, and there will be public hearings on October 6 and November 15. See http://www.oar.state.ok.us/register/Volume-28_Issue-24.htm#a20512.
- The Department of Environmental Quality proposed to amend Okla. Admin. Code §252.110.1, 5, & 15, Lead Based Paint Management. Changes would add subchapter 15, Additional Renovation, Repair, and Painting Requirements, and incorporate federal requirements by reference. The deadline for public comment is October 5, 2011. See http://www.oar.state.ok.us/register/Volume-28_Issue-24.htm#a18970.
- The Environmental Quality Board amended 25 Pa. Code §86.130, related to areas designated as unsuitable for mining. The rule change took effect August 27, 2011. See http://www.pabulletin.com/secure/data/vol41/41-35/1457.html.
- The Water Development Board amended 31 Tex. Admin. Code §§363.1205 & 363.1207, Water Infrastructure Fund. Changes allow the Board to set subsidy rates and specify that the Board has the right to limit the amount of funding available to an individual entity. The amendments took effect August 29, 2011. See http://www.sos.state.tx.us/texreg/pdf/currview/0826is.pdf (pp. 5368-69).
Hazardous & Solid Waste:
- The Department of Environmental Quality proposed to amend Utah Admin. Code r. 311.207, Accessing the Petroleum Storage Tank Trust Fund for Leaking Petroleum Storage Tanks. Changes would permit the Petroleum Storage Tank Trust Fund to pay certain costs of consultants hired by third parties who have been affected by a release from a UST. There will be a public hearing September 19, 2011, and the deadline for written comment is October 3. See http://www.rules.utah.gov/publicat/bull_pdf/2011/b20110901.pdf (pp. 42-47).
- The Department of Environmental Quality proposed to amend Utah Admin. Code r. 311.212, Administration of the Petroleum Storage Tank Loan Fund. Changes relate to loan disbursements for projects. There will be a public hearing September 19, 2011, and the deadline for written comment is October 3. See http://www.rules.utah.gov/publicat/bull_pdf/2011/b20110901.pdf (pp. 47-50).
- The Department of Environmental Quality released a Multi-Sector General Permit for Stormwater Discharges Associated with Industrial Activity, replacing the expiring 2006 permit. The 2011 permit was issued August 4. See http://www.vtwaterquality.org/stormwater/htm/sw_msgp.htm.
- The Department of Natural Resources amended Wis. Admin. Code NR §§400, 406, & 407, relating to major source permitting thresholds for sources of greenhouse gas. The amendments take effect September 1, 2011. See http://legis.wisconsin.gov/rsb/code/register/reg668b.pdf (p. 18).
Copyright© 2011, Environmental Law Institute, Washington, D.C. All rights reserved.
FRANCE MAY CANCEL SHALE PERMITS UNDER HYDRAULIC FRACTURING BAN
France may cancel permits for oil and natural gas exploration in October due to the nation's new hydraulic fracturing ban. Companies that have been granted a permit to explore shale hydrocarbons will have until September 13 to inform the government if they're planning to use hydraulic fracturing in the course of their operations. The ban, the world's first, could lead to fines or imprisonment for those found using the technique, though some industry representatives have said that the method is the only one available to extract certain hydrocarbons. Environment Minister Nathalie Kosciusko-Morizet said that, after the September 13 deadline, the ministry would decide the fate of permits within a month. "If a company says it's planning to use hydraulic fracturing, their permit will be canceled. It's the law," she said. She added that the country may face legal challenges from companies that were planning shale probes. For the full story, see http://www.bloomberg.com/news/2011-09-01/france-may-revoke-shale-oil-permits-in-october-minister-says.html.
GERMAN RENEWABLE ENERGY SHARE HITS 20 PERCENT
Germany generated more than 20 percent of its electricity from renewable sources for the first time in the first half of 2011, according to a report by the German Association of Energy and Water Industries. Solar power increased a total of 76 percent, while the share of wind power increased to 7.5 percent of usage, biomass 5.6 percent, and hydroelectric 3.3 percent. Energy use remained stable, but the share of renewable sources rose from 18.3 to 20.8 percent, continuing toward the nation's goal of 35 percent renewable electricity by 2020. Germany plans to increase the share of alternative energy while simultaneously phasing out nuclear power in the wake of the Fukushima disaster, already shutting down 8,800 MW. Last week, the energy regulator dismissed the idea of keeping nuclear reactors on standby in case power reserves are stretched over the winter, saying that he had been assured that coal-fired power plants could prepare to provide additional capacity. For the full story, see http://e360.yale.edu/digest/green_energy_use_in_germany_passes_20_percent_of_total_power_mix/3105. For the story on the decision not to reopen plants, see http://www.reuters.com/article/2011/08/31/us-germany-power-reserve-idUSTRE77U1HK20110831.
CENTRAL GOVERNMENT INCREASES INDIA'S CLEAN ENERGY SUBSIDY
Central government subsidies for clean energy projects rose to 2.36 billion rupees in the fiscal year that ended March 31, an increase of 63 percent over the previous year. So far this financial year, the government has provided 1 billion rupees of subsidies. Assistance included higher rates for clean power and lower interest rates. Renewable energy resources have fared well in India: over the past three years, the wind energy sector, the fastest growing renewable energy sector in the country, has attracted 15.1 billion rupees of foreign direct investment, according to the New and Renewable Energy Minister. As of July, almost 15,000 MW of power had been installed. In addition, the government will implement a city solar power development program, aiming to substitute 10 percent of power demand for traditional energy with solar. The ministry will provide up to 5 million rupees of support for each of the 60 cities planned as spots for solar development. For the full story, see http://www.bloomberg.com/news/2011-09-02/indian-subsidies-to-clean-energy-rise-63-to-2-36-billion-rupees.html. For the story on wind and solar, see http://profit.ndtv.com/news/show/rs-1-510-crore-fdi-in-wind-energy-sector-over-past-3-years-175814.
Copyright© 2011, Environmental Law Institute, Washington, D.C. All rights reserved.
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