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Weekly Update Volume 41, Issue 3

01/31/2011

LITIGATION 

WETLANDS, JURISDICTION:

The Fourth Circuit reversed and remanded a lower court decision upholding the U.S. Army Corps of Engineers' conclusion that it had jurisdiction over wetlands on a developer's property. The Corps permissibly defined the scope of its review area as including 448 acres of similarly situated wetlands. But the record does not support the Corps' determination that the nexus that exists between the 448 acres of similarly situated wetlands and a navigable river seven miles away is "significant." Because the case involves wetlands adjacent to two man-made ditches flowing at varying and largely unknown rates toward a river seven miles away, the court could not accept, without any information on the river's condition, the Corps' conclusion that the nexus here is significant and supported by substantial factual findings. It noted that in cases like this one, involving wetlands running alongside a ditch miles from any navigable water, the Corps should pay particular attention to documenting why such wetlands significantly, rather than insubstantially, affect the integrity of navigable waters. Such documentation need not take the form of any particular measurements, but should include some comparative information that allows the court to meaningfully review the significance of the wetlands' impacts on downstream water quality. Precon Development Corp. v. United States Army Corps of Engineers, No. 09-2239, 41 ELR 20071 (4th Cir. Jan. 25, 2011).


CWA, NPDES PERMITS:

A district court held that environmental groups may go forward with their claims that coal-contaminated dust, slurry, water, and snow is being discharged from a coal loading facility into a bay in violation of the CWA. Although the facility has an NPDES permit, the groups argued that the permit narrowly applies to storm water discharges and fails to cover discharges stemming from the facility's conveyor system as well as from wind and snow. The facility argued that the NPDES permit covers the conveyor system discharges, but the permit is a general permit and does not specifically address what discharges it applies to at the facility. As for the wind and snow discharges, the mere fact that the pollutants travel some distance through the air does not defeat CWA liability per se. The court, therefore, denied the facility's motions to dismiss. However, any civil penalties eventually assessed against the facility must be based on actual discharges and not the mere failure to obtain a permit. Lack of a permit is not, in and of itself, a violation absent a discharge of a pollutant. Alaska Community Action on Toxics v. Aurora Energy Services LLC, No. 3:09-cv-00255, 41 ELR 20072 (D. Alaska Jan. 10, 2011) (Burgess, J.).


RCRA, LIABILITY:

A district court held that the owners of contaminated property may be held liable under RCRA for obstructing the former owner's ability to clean up the site. After purchasing the property from a power company, the owners filed suit against the power company under RCRA. The company then filed a counterclaim, asserting that the current owners contributed to the hazardous waste condition on the property because "they knew of the byproducts and constituents and have actively obstructed the remediation process." Specifically, the company maintained that the byproducts and constituents are leaching into the land and, by not allowing the company access to the property, the owners are actively permitting the hazardous material further degrade the land. While knowledge is certainly not an affirmative action, obstruction may be construed as active storage of materials. The owners prevented the company from accessing and repairing the land. Furthermore, as a result of their affirmative action in obstructing the repair of the land, the owners are allegedly permitting the continued leaching of hazardous material into the land. As a result, the owners may be said to be actively contributing to the condition of the property. The owners' motion to dismiss was therefore denied. Carlson v. Ameren Corp., No. 10-01230, 41 ELR 20074 (C.D. Ill. Jan. 21, 2011) (Mihm, J.).


COAL ASH, CLASS CERTIFICATION:

A district court recommended that individuals' request for class certification in a case against TVA for a coal ash spill in Tennessee be denied. On December 22, 2008, one of the coal ash containment dikes at the TVA's Swan Pond facility failed. As a result, approximately 5.4 million cubic yards of coal ash sludge spilled to an adjacent area of about 300 acres. A total of 592 persons, who allege their person and/or their property have been damaged by the ash spill, filed approximately 55 individual suits with the court. The instant action involves two suits filed by a total of 11 individuals. The individuals, however, failed to satisfy the requirements set forth in Fed. R. Civ. P. Rule 23. They failed to demonstrate impracticality of joinder, typicality of claims or defenses, or that the representative parties will adequately protect the interests of the class. Nor did they demonstrate that the prosecution of separate actions would result in inconsistent standards for the defendants or be dispositive of the interests of non-parties, or that questions of law or fact common to class members predominate over any questions affecting only individual members. The court noted that the claims asserted in these cases are characterized by individual, not common, issues. For just adjudication, these claims therefore require individualized, fact-specific inquiries regarding the existence, nature and extent of each plaintiff’s alleged damages, and the causation of that damage. Mays v. Tennessee Valley Authority, No. 3:09-CV-06, 41 ELR 20075 (E.D. Tenn. Jan. 19, 2011) (Guyton, J.).


CWA, STATE DISCHARGE PERMITS:

A Maryland court remanded certain provisions in a general discharge permit for mining operations and concrete plants. Petitioners--the owners of mining companies and concrete manufacturing plants throughout the state of Maryland--correctly argued that the wet weather total suspended solids numeric effluent limitations established in the permit are not supported by the data. This portion of the permit was therefore remanded. Similarly, the concrete admixture reporting requirements should not apply because the state permitting agency failed to provide data indicating which additives are present in the petitioners' discharges, the levels at which such discharges are toxic to Maryland waters, or even an estimate of the amount of additives that may be present in the discharge. Similarly, the agency failed to adequately demonstrate that the discharges may have toxic effects on the receiving waters. It therefore failed to justify the biomonitoring requirements contained in the permit. The permit also failed to specify the exact location where internal biomonitoring points will be placed. As such, the petitioners did not have an ability to comment or object to their locations during the comment period. Accordingly, this objection was also remanded for further consideration. In re Chaney Enterprises Ltd., No. 10-151440, 41 ELR 20070 (Md. Cir. Ct. Jan. 21, 2011) (Petitioners counsel included Timothy R. Henderson of Rich & Henderson, P.C., in Annapolis, MD).


WASHINGTON MODEL TOXICS CONTROL ACT, CONTRIBUTION:

A Washington appellate court held that the former owners of contaminated property may be held liable under the state's Model Toxics Control Act (MTCA). Fifteen years after the former owner sold the property to a port, the port notified the former owners that they were potentially liable parties under the MTCA. The purchasing agreement provided for the former owners to indemnify the port for three years after the date of sale for any liability incurred by the port arising from the discovery and cleanup of hazardous substances existing on the property before the date of the sale. The former owners therefore argued that the agreement barred any MTCA contribution action. But the agreement did not manifest a mutual intent to allocate MTCA liability after the termination of the three-year period of indemnity. And because the evidence did not create a genuine issue of material fact, the court affirmed the lower court's ruling on summary judgment in the port's favor. Hulbert v. Port of Everett, No. 64102-6-I, 41 ELR 20073 (Wash. Ct. App. Jan. 18, 2011).


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


THE FEDERAL AGENCIES

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


AIR:



  • EPA amended NESHAPs for gasoline distribution bulk terminals, bulk plants, and pipeline and gasoline-dispensing facilities. 76 FR 4156 (1/24/11).

  • EPA announced the availability of a final document titled, Policy Assessment for the Review of the Secondary National Ambient Air Quality Standards for Oxides of Nitrogen and Sulfur. 76 FR 4694 (1/26/11).

  • SIP Approvals: Colorado (partial approval of emission control revisions) 76 FR 4540 (1/26/11). Maryland (volatile organic compound (VOC) emissions) 76 FR 4534 (1/26/11). Tennessee (maintenance plan for the Nashville area) 76 FR 5078 (1/28/11). Virginia (lead standards and related updates) 76 FR 4537 (1/26/11).

  • SIP Proposals: Alabama (disapproval of interstate transport submission) 76 FR 4588 (1/26/11). Colorado (partial approval of updates) 76 FR 4268 (1/25/11); (partial approval of revisions to air pollutant emission notice regulations) 76 FR 4271 (1/25/11). Georgia (disapproval of interstate transport submission) 76 FR 4584 (1/26/11). Kentucky (disapproval of interstate transport submission) 76 FR 4597 (1/26/11). Maryland (VOC emissions; see above for direct final rule) 76 FR 4578 (1/26/11). New Jersey/New York (disapproval of interstate transport submission) 76 FR 4579 (1/26/11). North Carolina (disapproval of interstate transport submission) 76 FR 4592 (1/26/11). Ohio (VOC reinforced plastics composites production operation rule) 76 FR 4835 (1/27/11). Virginia (lead standards and related updates; see above for direct final rule) 76 FR 4578 (1/26/11).

  • SIP Withdrawal: Wisconsin (1997 eight-hour ozone NAAQS for the Milwaukee-Racine and Sheboygan areas) 76 FR 5078 (1/28/11).

HAZARDOUS & SOLID WASTE:



  • EPA proposed to deny a petition submitted by the Sierra Club to reconsider its final rule on oil-bearing hazardous secondary materials. 76 FR 5107 (1/28/11).

  • EPA proposed to grant a petition submitted by Gulf West Landfill to delist the leachate generated at its facility in Anahuac, Texas, from the lists of hazardous wastes. 76 FR 5110 (1/28/11).

  • EPA granted a petition submitted by Owosso Graphic Arts Inc. in Owosso, Michigan, to exclude from the list of hazardous waste up to 244 cubic yards of wastewater treatment sludge per year. 76 FR 4823 (1/27/11).

MINING:



  • OSM proposed to approve revisions to Maryland's regulatory program concerning coal combustion byproducts under SMCRA. 76 FR 5103 (1/28/11).

  • OSM proposed to approve revisions to New Mexico's regulatory program under SMCRA concerning ownership and control rules. 76 FR 4266 (1/25/11).

WATER:



  • EPA proposed to approve revisions to Alaska's public water supply supervision primacy program, except for Indian country. 76 FR 5157 (1/28/11).

WILDLIFE:



  • NOAA-Fisheries announced a 2011 harvest guideline of zero for commercial lobster fisheries in the northwestern Hawaiian Islands. 76 FR 4551 (1/26/11).

DOJ NOTICES OF SETTLEMENT:



  • United States v. Kansas City Southern Railway Co., No. 1:07-cv-1793 (W.D. La. Jan. 21, 2011). Under a modified 2008 consent decree, a settling CERCLA defendant's cleanup at the Ruston Foundry Superfund site in Alexandria, Louisiana, will permit unrestricted use of the site. 76 FR 4722 (1/26/11).

  • United States v. Winchester Municipal Utilities, No. 06-102-KSF (E.D. Ky. Jan. 19, 2011). Under a modified 2007 consent decree, a settling CWA defendant responsible for stormwater runoff pollution into the Lower Howards Creek Watershed must spend $203,000 on a watershed management plan that replaces the original supplemental environmental project. 76 FR 4723 (1/26/11).

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


THE CONGRESS

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


Public Laws



  • S. 3481 (stormwater pollution), which amends the Federal Water Pollution Control Act to clarify federal responsibility for stormwater pollution, was signed into law on January 4, 2011. Pub. L. No. 111-378, 157 Cong. Rec. D41 (daily ed. Jan. 25, 2011).

  • S. 3874 (SDWA), which amends the SDWA to reduce lead in drinking water, was signed into law on January 4, 2011. Pub. L. No. 111-380, 157 Cong. Rec. D41 (daily ed. Jan. 25, 2011).

  • H.R. 81 (shark conservation), which amends the High Seas Driftnet Fishing Moratorium Protection Act and the Magnuson-Stevens Fishery Conservation and Management Act to improve the conservation of sharks, was signed into law on January 4, 2011. Pub. L. No. 111-348, 157 Cong. Rec. D39 (daily ed. Jan. 25, 2011).

  • H.R. 4973 (wildlife refuges), which amends the Fish and Wildlife Act of 1956 to reauthorize volunteer programs and community partnerships for national wildlife refuges, was signed into law on January 4, 2011. Pub. L. No. 111-357, 157 Cong. Rec. D40 (daily ed. Jan. 25, 2011).

  • H.R. 5470 (energy efficiency), which excludes an external power supply for certain security or life safety alarms and surveillance system components from the application of certain energy efficiency standards under the Energy Policy and Conservation Act, was signed into law on January 4, 2011. Pub. L. No. 111-360, 157 Cong. Rec. D40 (daily ed. Jan. 25, 2011).

  • H.R. 5809 (diesel emissions), which amends the Energy Policy Act of 2005 to reauthorize and modify provisions relating to the diesel emissions reduction program, was signed into law on January 4, 2011. Pub. L. No. 111-364, 157 Cong. Rec. D40 (daily ed. Jan. 25, 2011).

Bills Introduced



  • S. 15 (Vitter, R-La.) (climate) would prohibit the regulation of carbon dioxide emissions in the United States until China, India, and Russia implement similar reductions. 157 Cong. Rec. S122 (daily ed. Jan. 25, 2011). The bill was referred to the Committee on Environment and Public Works.

  • S. 29 (Reid, D-Nev.) (federal land) would establish the Sacramento-San Joaquin Delta National Heritage Area. 157 Cong. Rec. S122 (daily ed. Jan. 25, 2011). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 33 (Lieberman, I-Conn.) (federal land) would designate a portion of the Arctic National Wildlife Refuge as wilderness. 157 Cong. Rec. S122 (daily ed. Jan. 25, 2011). The bill was referred to the Committee on Environment and Public Works.

  • S. 46 (Inouye, D-Haw.) (coral reefs) would reauthorize the Coral Reef Conservation Act of 2000. 157 Cong. Rec. S123 (daily ed. Jan. 25, 2011). The bill was referred to the Committee on Commerce, Science, and Transportation.

  • S. 76 (Boxer, D-Calif.) (EPA) would direct the EPA Administrator to investigate and address cancer and disease clusters, including in infants and children. 157 Cong. Rec. S124 (daily ed. Jan. 25, 2011). The bill was referred to the Committee on Environment and Public Works.

  • S. 78 (Boxer, D-Calif.) (SDWA) would amend the SDWA to require a health advisory and drinking water standard for perchlorate. 157 Cong. Rec. S124 (daily ed. Jan. 25, 2011). The bill was referred to the Committee on Environment and Public Works.

  • S. 79 (Boxer, D-Calif.) (SDWA) would amend the SDWA to require a health advisory and drinking water standard for hexavalent chromium. 157 Cong. Rec. S124 (daily ed. Jan. 25, 2011). The bill was referred to the Committee on Environment and Public Works.

  • S. 97 (Reid, D-Nev.) (San Francisco Bay restoration) would amend the Federal Water Pollution Control Act to establish a grant program to support the restoration of San Francisco Bay. 157 Cong. Rec. S124 (daily ed. Jan. 25, 2011). The bill was referred to the Committee on Environment and Public Works.

  • S. 104 (Johanns, R-Neb.) (spill prevention) would require the EPA Administrator to finalize a proposed rule to amend the spill prevention, control, and countermeasure rule to tailor and streamline the requirements for the dairy industry. 157 Cong. Rec. S125 (daily ed. Jan. 25, 2011). The bill was referred to the Committee on Environment and Public Works.

  • S. 114 (Hutchinson, R-Tex.) (federal land) would authorize the Secretary of the Interior to enter into a cooperative agreement for a park headquarters at San Antonio Missions National Historical Park, expand the boundary of the Park, and conduct a study of potential land acquisitions. 157 Cong. Rec. S125 (daily ed. Jan. 25, 2011). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 127 (Hutchinson, R-Tex.) (federal land) would establish the Buffalo Bayou National Heritage Area in the state of Texas. 157 Cong. Rec. S125 (daily ed. Jan. 25, 2011). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 136 (Reid, D-Nev.) (toxic substances) would establish requirements with respect to bisphenol A. 157 Cong. Rec. S125 (daily ed. Jan. 25, 2011). The bill was referred to the Committee on Health, Education, Labor, and Pensions.

  • S. 138 (Reid, D-Nev.) (federal land) would provide for conservation, enhanced recreation opportunities, and development of renewable energy in the California Desert Conservation Area. 157 Cong. Rec. S125-126 (daily ed. Jan. 25, 2011). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 140 (Levin, D-Mich.) (federal land) would designate as wilderness certain land and inland water within the Sleeping Bear Dunes National Lakeshore in the state of Michigan. 157 Cong. Rec. S126 (daily ed. Jan. 25, 2011). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 142 (Grassley, R-Iowa) (federal land) would direct the Secretary of Agriculture to convey certain federally owned land located in Story County, Iowa. 157 Cong. Rec. S126 (daily ed. Jan. 25, 2011). The bill was referred to the Committee on Agriculture, Nutrition, and Forestry.

  • S. 147 (Kirk, R-Ill.) (sewage dumping) would amend the Federal Water Pollution Control Act to establish a deadline for restricting sewage dumping into the Great Lakes and to fund programs and activities for improving wastewater discharges into the Great Lakes. 157 Cong. Rec. S126 (daily ed. Jan. 25, 2011). The bill was referred to the Committee on Environment and Public Works.

  • S. 156 (Kohl, D-Wis.) (energy efficiency) would amend the Energy Policy and Conservation Act to provide a uniform efficiency descriptor for covered water heaters. 157 Cong. Rec. S126 (daily ed. Jan. 25, 2011). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 161 (Boxer, D-Calif.) (federal land) would establish Pinnacles National Park in the state of California as a unit of the National Park System. 157 Cong. Rec. S126 (daily ed. Jan. 25, 2011). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 171 (Boxer, D-Calif.) (offshore drilling) would amend the Outer Continental Shelf Lands Act to permanently prohibit the conduct of offshore drilling on the outer continental shelf off the coast of California, Oregon, and Washington. 157 Cong. Rec. S126 (daily ed. Jan. 25, 2011). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 173 (Boxer, D-Calif) (federal land) would establish the Sacramento River National Recreation Area in the state of California. 157 Cong. Rec. S126-127 (daily ed. Jan. 25, 2011). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 179 (Boxer, D-Calif.) (federal land) would expand the boundaries of the Gulf of the Farallones National Marine Sanctuary and the Cordell Bank National Marine Sanctuary. 157 Cong. Rec. S127 (daily ed. Jan. 25, 2011). The bill was referred to the Committee on Commerce, Science, and Transportation.

  • S. 203 (Begich, R-Alaska), (oil spills) would direct the Administrator of NOAA to institute research into the special circumstances associated with oil spill prevention and response in Arctic waters, including assessment of impacts on Arctic marine mammals and other wildlife, marine debris research and removal, and risk assessment. 157 Cong. Rec. S272 (daily ed. Jan. 26, 2011). The bill was referred to the Committee on Commerce, Science, and Transportation.

  • S. 204 (Begich, R-Alaska), (oil spills) would amend the Oil Pollution Act of 1990 to permit funds in the Oil Spill Liability Trust to be used by NOAA, the Coast Guard, and other federal agencies for certain research, prevention, and response capabilities with respect to discharges of oil; for environmental studies; and for grant programs to communities affected by oil spills on the outer continental shelf. 157 Cong. Rec. S272 (daily ed. Jan. 26, 2011). The bill was referred to the Committee on Finance.

  • S. 214 (Menendez, D-N.J.) (oil spills) would amend the Oil Pollution Act of 1990 to require oil polluters to pay the full cost of oil spills. 157 Cong. Rec. S338 (daily ed. Jan. 27, 2011). The bill was referred to the Committee on Environment and Public Works.

  • S. 215 (Menendez, D-N.J.) (oil spills) would amend the Internal Revenue Code of 1986 to require oil polluters to pay the full cost of oil spills. 157 Cong. Rec. S338 (daily ed. Jan. 27, 2011). The bill was referred to the Committee on Finance.

  • S. 220 (Wyden, D-Ore.) (forests) would provide for the reforestation of forest landscapes, protection of old growth forests, and management of national forests in the eastside forests of the state of Oregon. 157 Cong. Rec. S338 (daily ed. Jan. 27, 2011). The bill was referred to the Committee on Energy and Natural Resources.

  • H.R. 395 (McNerney, D-Calif.) (water source projects) would amend the Federal Water Pollution Control Act to extend the pilot program for alternative water source projects. 157 Cong. Rec. H433 (daily ed. Jan. 24, 2011). The bill was referred to the Committee on Transportation and Infrastructure.

  • H.R. 404 (Fortenberry, R-Neb.) (alcohol fuel) would amend the Internal Revenue Code of 1986 to extend and modify the credits for alcohol used as a fuel. 157 Cong. Rec. H434 (daily ed. Jan. 24, 2011). The bill was referred to the Committees on Ways and Means, Energy and Commerce, and Transportation and Infrastructure.

  • H.R. 412 (Rehberg, R-Mont.) (lead) would amend the lead prohibition provisions of the Consumer Product Safety Improvement Act of 2008 to provide an exemption for certain off-highway vehicles. 157 Cong. Rec. H468 (daily ed. Jan. 25, 2011). The bill was referred to the Committee on Energy and Commerce.

  • H.R. 424 (Burgess, R-Tex.) (renewable fuel) would repeal certain amendments to the CAA relating to the expansion of the renewable fuel program. 157 Cong. Rec. H469 (daily ed. Jan. 25, 2011). The bill was referred to the Committee on Energy and Commerce.

  • H.R. 425 (Dold, R-Ill.) (sewage dumping) would amend the Federal Water Pollution Control Act to establish a deadline for restricting sewage dumping into the Great Lakes and to fund programs and activities for improving wastewater discharges into the Great Lakes. 157 Cong. Rec. H469 (daily ed. Jan. 25, 2011). The bill was referred to the Committee on Transportation and Infrastructure.

  • H.R. 426 (Flake, R-Ariz.) (renewable fuel) would repeal certain incentives and subsidies for renewable fuels. 157 Cong. Rec. H469 (daily ed. Jan. 25, 2011). The bill was referred to the Committee on Ways and Means and the Committee on Energy and Commerce.

  • H.R. 432 (Markey, D-Mass.) (toxic substances) would ban the use of bisphenol A in food containers. 157 Cong. Rec. H469 (daily ed. Jan. 25, 2011). The bill was referred to the Committee on Energy and Commerce.

  • H.R. 438 (Weiner, D-N.Y.) (Energy Star) would amend the Energy Policy and Conservation Act to provide further requirements for the Energy Star program. 157 Cong. Rec. H469 (daily ed. Jan. 25, 2011). The bill was referred to the Committee on Energy and Commerce.

  • H.R. 441 (Young, R-Alaska) (federal land, microhydro) would authorize the Secretary of the Interior to issue permits for a microhydro project in nonwilderness areas within the boundaries of Denali National Park and Preserve, and to acquire land for Denali National Park and Preserve from Doyon Tourism, Inc. 157 Cong. Rec. H470 (daily ed. Jan. 25, 2011). The bill was referred to the Committee on Natural Resources.

  • H.R. 443 (Young, R-Alaska) (federal land) would provide for the conveyance of certain property from the United States to the Maniilaq Association located in Kotzebue, Alaska. 157 Cong. Rec. H470 (daily ed. Jan. 25, 2011). The bill was referred to the Committee on Natural Resources, and in addition to the Committee on Energy and Commerce.

  • H.R. 457 (McKinley, R-W. Va.) (water permits) would amend the Federal Water Pollution Control Act to remove the EPA Administrator's authority to disapprove after a permit has been issued by the Secretary of the Army under §404 of such Act. 157 Cong. Rec. H507 (daily ed. Jan. 26, 2011). The bill was referred to the Committee on Transportation and Infrastructure.

  • H.R. 473 (Boren, R-Okla.) (federal land) would provide for the conveyance of approximately 140 acres of land in the Ouachita National Forest in Oklahoma to the Indian Nations Council, Inc., of the Boy Scouts of America. 157 Cong. Rec. H507 (daily ed. Jan. 26, 2011). The bill was referred to the Committee on Natural Resources.

  • H.R. 482 (Cooper, D-Tenn.) (energy efficiency) would amend the Energy Policy and Conservation Act to provide a uniform efficiency descriptor for covered water heaters. 157 Cong. Rec. H508 (daily ed. Jan. 25, 2011). The bill was referred to the Committee on Energy and Commerce.

  • H.R. 486 (Garamendi, D-Calif.) (federal land) would establish the Sacramento-San Joaquin Delta National Heritage Area. 157 Cong. Rec. H508 (daily ed. Jan. 26, 2011). The bill was referred to the Committee on Natural Resources.

  • H.R. 490 (Heinrich, D-N.M.) (federal land) would modify the boundaries of Cibola National Forest in the state of New Mexico and transfer certain BLM land for inclusion in the Manzano Mountain Wilderness. 157 Cong. Rec. H508 (daily ed. Jan. 26, 2011). The bill was referred to the Committee on Natural Resources.

  • H.R. 491 (Heinrich, D-N.M.) (federal land) would modify the boundaries of Cibola National Forest in the state of New Mexico and transfer certain BLM land for inclusion in the national forest. 157 Cong. Rec. H508 (daily ed. Jan. 26, 2011). The bill was referred to the Committee on Natural Resources.

  • H.R. 492 (Holt, D-N.J.) (oil spills) would amend the Oil Pollution Act of 1990 to require responsible parties to pay the full cost of offshore oil spills. 157 Cong. Rec. H508 (daily ed. Jan. 26, 2011). The bill was referred to the Committee on Transportation and Infrastructure.

  • H.R. 500 (Levin, D-Mich.) (electric vehicles) would amend the Internal Revenue Code of 1986 to increase the manufacturer limitation on the number of new qualified plug-in electric drive motor vehicles eligible for credit. 157 Cong. Rec. H508 (daily ed. Jan. 26, 2011). The bill was referred to the Committee on Ways and Means.

  • H.R. 509 (Rehberg, R-Mont.) (ESA) would amend the ESA to provide that the Act shall not apply to the gray wolf (canis lupus). 157 Cong. Rec. H509 (daily ed. Jan. 26, 2011). The bill was referred to the Committee on Natural Resources.

  • H.R. 510 (Rehberg, R-Mont.) (ESA) would amend the ESA to prohibit treatment of gray wolves in Idaho and Montana as endangered species. 157 Cong. Rec. H509 (daily ed. Jan. 26, 2011). The bill was referred to the Committee on Natural Resources.

  • H.R. 511 (Rooney, R-Fla.) (wildlife) would amend title 18, U.S. Code, to prohibit the importation of various injurious species of constrictor snakes. 157 Cong. Rec. H509 (daily ed. Jan. 26, 2011). The bill was referred to the Committee on the Judiciary.

  • H.R. 517 (Young, R-Alaska) (water permits) would amend the Federal Water Pollution Control Act to eliminate the authority of the EPA Administrator to deny or restrict the use of a defined area as a dredged or fill material disposal site. 157 Cong. Rec. H509 (daily ed. Jan. 26, 2011). The bill was referred to the Committee on Transportation and Infrastructure.

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:

California
Colorado
Illinois

Minnesota
Nebraska
South Dakota

Vermont
 
 

CALIFORNIA


Toxic Substances:



  • The Office of Environmental Health Hazard Assessment proposed to list MON 4660 (dichloroacetyl–1–oxa–4–azaspiro(4.5)decane), MON 13900 (furilazole), and pymetrozine as chemicals known to the state to cause cancer. Comments are due by February 22, 2011. See http://www.oal.ca.gov/res/docs/pdf/notice/3z-2011.pdf (pp. 87-89).

COLORADO


Air:



ILLINOIS


Air:



  • The Environmental Protection Agency proposed changes to 35 Ill. Admin. Code 276, Procedures to be Followed in the Performance of Inspections of Motor Vehicle Emissions. Changes would reflect the full implementation of on-board diagnostic testing in vehicle emissions texts. The amendments require a subject vehicle owner to obtain, but not display or possess, an emissions compliance certificate in order to obtain or renew the subject vehicle's registration. There will be public hearings on February 23 and March 2, 2011, and the deadline for comment is April 1. See http://www.cyberdriveillinois.com/departments/index/register/register_volume35_issue4.pdf (pp. 1471-72).

MINNESOTA


Climate:



  • The Environmental Quality Board proposed to amend Minn. R. 4410.4300 to add a specific threshold number applying to greenhouse gas emissions to the mandatory EA worksheet category for air pollutants. The level proposed is a combined total of 100,000 tons per year of greenhouse gases, expressed as carbon dioxide equivalents. The gases to which this would apply are carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride. The deadline for comment is February 23, 2011. See http://www.comm.media.state.mn.us/bookstore/stateregister/35_30.pdf (pp. 1083-85).

NEBRASKA


Hazardous & Solid Waste:



  • The Department of Agriculture amended 23 Neb. Admin. Code §17, Livestock Composting Regulations. Among other changes, amendments remove the requirement that owners of composting facilities have contingency plans for catastrophic death losses or disruptions of normal composting activities of livestock carcasses. The amendment was approved by the Attorney General on January 19, 2011. See http://www.sos.state.ne.us/rules-and-regs/regtrack/proposals/0000000000000930.pdf.

  • The Department of Environmental Quality amended 23 Neb. Admin. Code §§001.002, 004.005, 008, and 010, Waste Reduction and Recycling Incentive Grants Program. Changes add the definition of "deconstruction," specify that grant disbursements are subject to availability of funds, and add that equipment funded by grants may be required to display a Department decal. The amendment was approved by the Attorney General on January 19, 2011. See http://www.sos.state.ne.us/rules-and-regs/regtrack/proposals/0000000000000926.pdf

SOUTH DAKOTA


Climate:



  • The Department of Environment and Natural Resources proposed to amend Air Pollution Control Program rules. Changes would allow certain businesses to start construction before the construction permit is issued once they have satisfied the proposed requirements. There will be a public hearing on February 17, 2011, and the deadline for comment is February 16. See http://legis.state.sd.us/rules/register/01242011.pdf (p. 139).

VERMONT


Air:



  • The Air Pollution Control Division submitted the final proposed rule "Air Pollution Control Regulations, Subchapter XI, Low Emission Vehicles - Regulations to Control Greenhouse Gas Emissions from Motor Vehicles" to the Legislative Committee on Administrative Rules. Changes establish greenhouse gas emissions standards for inclusion in the state's Low Emission Vehicles program. The Legislative Committee on Administrative Rules ends February 19, 2011. See http://www.anr.state.vt.us/air/htm/ProposedAmendments.htm#revSIP.

Hazardous & Solid Waste:



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


INTERNATIONAL

ASIAN STATES LAUNCHING CLIMATE PLANS, "WINNING THE GREEN ECONOMY RACE"

China is going to leave the rest of the world "in the dust" in terms of the development of a green economy, head of the UN Framework Convention on Climate Change Christina Figueres said at a panel discussion in Switzerland last week. Last year the country boosted low carbon energy spending by 30 percent to reach over $50 billion, the largest figure of any country, and the development is set to continue. According to Bloomberg, China WindPower Group is slated to borrow as much as $240 million from the Asian Development Bank to develop more wind farms. China is aiming to install 150,000 megawatts of wind power by 2020. China WindPower currently operates 1,163 megawatts. Last week, the government of Taiwan reduced the feed-in tariff for solar power by 30 percent in response to the falling cost of equipment installation. Prices may fall an additional 10 to 15 percent this year, and the government aims to have a total of 170 megawatts of wind and solar power installed in 2011. In India, a trade in energy-saving credits is expected to start in April 2012, aiming to reduce the amount of power consumed by companies in the most energy-intensive industries. According to Baman K. Mehta, chief executive of Darashaw & Company Pvt., the market may eventually yield credits worth as much as $3 billion every year. Meanwhile, the country is the world's second largest producer of UN credits for carbon reduction, after China. Outside of Asia, countries are struggling in the "green economy race;" European leaders are set to meet on February 4 to discuss how to reconcile lofty environmental goals with the debt crises of member states. "Don't kid yourself," said EU energy commissioner Guenther Oettinger. "The European Investment Bank can help us, but they are not a charitable organization." For the story on China and the "Green Economy Race," see http://www.bloomberg.com/news/2011-01-27/china-winning-the-green-economy-race-un-climate-talks-chief-says.html. For China's wind projects, see http://www.bloomberg.com/news/2011-01-28/china-windpower-enters-agreement-to-borrow-60-million-from-adb.html. For Taiwan and solar, see http://www.bloomberg.com/news/2011-01-28/taiwan-reduces-solar-power-feed-in-tariffs-30-for-2011-as-costs-decline.html. For India, see http://www.bloomberg.com/news/2011-01-27/india-to-implement-energy-efficiency-program-in-eight-industries.html and http://www.bloomberg.com/news/2011-01-28/cash-for-clean-energy-trading-to-start-in-india-with-threat-to-un-market.html. For Europe's troubles, see http://www.reuters.com/article/2011/01/26/us-eu-renewables-finance-idUSTRE70P6H520110126.


UK BRACES FOR ENVIRONMENTAL TROUBLES AHEAD

UK's Department for Environment, Food, and Rural Affairs revealed some of its plans for "climate proofing" the nation last week, implementing climate adaptation plans submitted by government agencies. Under the Climate Act, organizations dealing with national infrastructure must release similar plans for national protection to face possible rising temperatures, rising sea levels, and increased incidents of extreme weather. The Trinity Lighthouse Authority outlined which lighthouses and docks along the shoreline would be at risk from rising waters, and the Environment Agency suggested that some fish species may have to be relocated should water temperatures rise. In total, 91 organizations are required to submit recommendations. In 2008, the government adopted new specifications for road construction when the Highway Agency suggested that they match those used in southern France in case rising temperatures and increased severe weather place additional strain on the road network. In the immediate future, the UK may be brought to court by the European Commission should EU Environment Commissioner Janez Potočnik decline to grant the government an extension on reducing London's level of PM10. The last Labour government applied for an extension until June 2011 to reduce the emissions, and a decision is due in the next few weeks. London's mayor estimated last year that pollution costs the country up to £2 billion and causes up to 4,300 premature deaths a year. For the story on London's climate plans, see http://www.bbc.co.uk/news/science-environment-12302555. For a story on efforts to reduce CO2 emissions through energy use, see http://www.bbc.co.uk/news/science-environment-12297538. For the story on London's air pollution, see http://www.guardian.co.uk/environment/2011/jan/28/europe-air-quality-pollution.


SHELL WILL NOT PAY FOR SPILLS DUE TO SABOTAGE

Royal Dutch Shell said at the Hague that it will not pay for thousands of oil spills in Nigeria caused by bandits, estimating that 70 percent of spills were caused by sabotage or theft. "When it comes to issues of the safety of people and crime, it's the responsibility of the government," said Peter de Wit, director of Shell Netherlands. "That's not happening. But you can't lay it on our doorstep." Amnesty International and Friends of the Earth International announced that they would file formal complaints against Shell with the British and Dutch governments for failing to take responsibility for the spills. Ian Craig, Shell’s executive vice president for sub-Saharan Africa, said that the company would continue to attempt to clean up spills, but that paying for spills caused by sabotage because it would create a “perverse incentive” for criminals. For the full story, see http://www.upi.com/Science_News/Resource-Wars/2011/01/27/Royal-Dutch-Shell-defends-Nigerian-work/UPI-61761296142263/ and http://www.nytimes.com/2011/01/27/science/earth/27nigeria.html?_r=1&ref=shellroyaldutchplc.


 

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