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Weekly Update Volume 41, Issue 30

10/24/2011

LITIGATION 

NATURAL RESOURCES, NATIONAL FORESTS, ROADLESS RULE:

The Tenth Circuit, in a 120-page opinion, reversed a lower court decision setting aside and permanently enjoining the U.S. Forest Service's Roadless Area Conservation Rule. In setting aside the rule, the lower court held that the Service violated the Wilderness Act of 1964 and NEPA. But the Wilderness Act did not repeal or in any way limit the Forest Service's broad authority to regulate National Forest System lands for conservation purposes, including "wilderness." Nor did the Forest Service violate NEPA. Because the record does not contain sufficient evidence to show that the Forest Service irreversibly and irretrievably committed itself to a certain outcome before the NEPA analysis was completed, and because the Forest Service otherwise complied with the mandates of NEPA, the Service took the requisite "hard look" at the environmental consequences of the Roadless Rule and did not act arbitrarily and capriciously in conducting its analysis. The court also rejected claims that the Service violated the Multiple-Use Sustained-Yield Act and the National Forest Management Act. The lower court, therefore, erred in permanently enjoining the Roadless Rule on a nationwide basis. Wyoming v. United States Forest Service, Nos. 08-8061 & 09-8075, 41 ELR 20327 (10th Cir. Oct. 21, 2011).


WILDLIFE, CLIMATE CHANGE, POLAR BEAR:

A district court held that the FWS violated NEPA, but not the ESA, when it issued a special rule that specifies the protective mechanisms that apply to the polar bear as a result of its threatened status. In May 2008, the FWS listed the polar bear as threatened under the ESA. The Service then issued a special rule that, among other things, addressed the threat of direct impacts to individual bears and their habitat from oil and gas exploration and development activities within the species' current range. Conservation groups filed suit, arguing that the FWS purposely and unlawfully crafted the rule in such a way as to avoid addressing the threat of climate change in contravention of the ESA's conservation mandate. They argued that the FWS cannot effectively provide for the conservation of the polar bear without addressing global greenhouse gas emissions, which the agency itself identified as the cause of increasing Arctic temperatures that are expected to lead to a significant decline of the polar bear's sea ice habitat. Climate change, however, poses unprecedented challenges of science and policy on a global scale that entitles the agency to great deference. Based on the evidence before it, the FWS reasonably concluded that ESA §4(d) is not a useful or appropriate tool to alleviate the particular threat to the polar bear from climate change caused by global greenhouse gas emissions, and the groups offered no compelling evidence to the contrary. However, the court agreed with the groups that the FWS violated NEPA by failing to analyze the potential environmental impacts of its special rule. The FWS was required to conduct at least an initial assessment to determine whether the rule warranted a full EIS. Because the FWS conducted no analysis whatsoever, the rule violates NEPA and must be vacated. In re Polar Bear Endangered Species Act Listing, No. 08-764, 41 ELR 20319 (D.D.C. Oct. 17, 2011) (Sullivan, J.).


WILDLIFE, MARINE MAMMALS PROTECTION ACT, POLAR BEAR:

A district court upheld the FWS's determination that sport-hunted polar bear trophies may no longer be imported into the United States under the Marine Mammals Protection Act (MMPA) as of the effective date of the ESA listing rule for the species. In May 2008, the FWS determined threatened status for the polar bear under the ESA. Because the MMPA generally prohibits the import of marine mammal species that the FWS has designated as "depleted," the FWS also determined that polar bear trophies may no longer be imported into the United States. A hunting group and several individuals filed suit challenging the FWS' determination. But the MMPA mandates the FWS' conclusion that sport-hunted polar bear trophies are no longer eligible for import as a result of the species' depleted status. Sport hunting is not among the narrow, enumerated exceptions to the MMPA's ban on taking and importing depleted marine mammals. Accordingly, the FWS did not err when it administratively closed permit applications to import trophies that were pending when the listing rule took effect. The court also rejected arguments that the import of polar bear trophies would actually enhance the species within the meaning of the MMPA. The plaintiffs failed to satisfy the enhancement exception to the MMPA's ban on importing depleted species. In re Polar Bear Endangered Species Act Listing, No. 08-764, 41 ELR 20318 (D.D.C. Oct. 17, 2011) (Sullivan, J.).


WATER, CWA, TMDLs:

A district court held that environmental groups and water associations may intervene in a lawsuit challenging EPA's TMDL for the Chesapeake Bay and its tributaries. The plaintiffs in the lawsuit argued that the TMDL should be vacated because EPA lacked authority under the CWA to issue the TMDL, the TMDL was arbitrary and capricious, and the Agency failed to provided adequate public notice and comment. A number of environmental groups and water associations that support the TMDL filed motions to intervene in the case, and the court ruled that intervention was proper. The motions are timely and a grant of intervention will not cause prejudice or delay to the original parties. Moreover, the intervenors demonstrated that there is a tangible threat to a legally cognizable interest. The water associations have an interest in the amount of nutrients and sediment their members are authorized to discharge. The environmental groups also have a legally protectable interest in the outcome of this case, as evidenced by their past legal, educational, and physical efforts toward protecting and restoring the Bay and the personal use and enjoyment of the Bay by the groups' individual members. In addition, because the plaintiffs seek to have the TMDL vacated, the associations' and groups' interests may be impaired or affected by the practical consequences of the disposition of this action. The intervenors also demonstrated that EPA cannot adequately represent their interests. American Farm Bureau Federation v. United States Environmental Protection Agency, No. 1:11-CV-0067, 41 ELR 20322 (M.D. Pa. Oct. 13, 2011) (Rambo, J.).


AIR, CAA, PSD:

A district court dismissed the U.S. government's lawsuit against the current and former owners of a coal-fired power plant in Indiana County, Pennsylvania, for alleged CAA violations. The government alleged that the former owners undertook construction projects at the plant without having obtained the necessary PSD preconstruction permits. It also alleged that the current owners violated the PSD program by failing to implement best available control technology at units that had been improperly modified because the PSD program imposes ongoing obligations at modified facilities. But the alleged PSD violations constitute singular, separate failures by the former owners to obtain pre-construction permits, rather than ongoing failures to comply with whatever hypothetical conditions might have been imposed during the PSD permitting process. Because the projects at issue in this case occurred 15-20 years ago and no enforcement action was taken until 2008, the five-year limitations period has long since expired. Accordingly, the government may not recover civil penalties for the alleged PSD violations. Nor is the government entitled to injunctive relief. Although the five-year limitations period applicable to civil penalties does not place a time limit on the government's ability to obtain injunctive relief, the former owners' alleged PSD violations are wholly past violations rather than continuing ones. The court also rejected the government's claim that the current owners failed to obtain a proper or valid Title V operating permit for the plant. There is no way that the current owners could have known that the Title V application submitted by the former owners was flawed because no PSD violation was ever established, and the current owners cannot be held liable for the alleged deficiencies and omissions in the underlying application submitted by the former owners. United States v. EME Homer City Generation L.P., No. 2:11-cv-19, 41 ELR 20326 (W.D. Pa. Oct. 12, 2011) (McVerry, J.).


HAZARDOUS & SOLID WASTE, USTs:

A district court held that the owner of a restaurant may seek prospective damages, and possibly punitive damages, against an oil company for damages stemming from a leaking UST at a neighboring gas station. To obtain prospective damages for nuisance or trespass, the owner must prove that the contamination of the property is permanent, rather than continuing. A nuisance is deemed permanent unless the defendant can produce substantial evidence that the harm is capable of being abated at a reasonable cost. Here, the company relied on a "no further action" letter it received from a state agency when the remediation was complete. But a no further action letter does not necessarily mean that the harm is abatable as a matter of law. Here, the owner's expert report, as well as contamination levels at the site, create a "reasonably deductible inference" that the contamination was not properly remediated. The court, therefore, denied the company's motion for summary judgment as to the owner's tort claims for prospective damages. In addition, a reasonable jury could find that the company's inaction for nearly 10 years exhibited clear and convincing evidence of a "complete lack of concern regarding the harmful potential" of the contamination at the station. The court, therefore, declined to find that the company's conduct cannot constitute malice as a matter of law and denied the company's motion for summary judgment as to the owner's claims for punitive damages. Barrous v. BP P.L.C., No. 10-CV-02944, 41 ELR 20324 (N.D. Cal. Oct. 3, 2011) (Koh, J.).


HAZARDOUS & SOLID WASTE, CERCLA:

A district court held that a developer may be liable under CERCLA for response costs the former owner of contaminated property incurred at the site. The developer, who now owns the site, filed suit against the former owner to enforce an administrative order on consent that requires the former owner to take various environmental remedial actions by specified dates. The former owner then filed a counterclaim, alleging that the developer contributed to the release of hazardous substances at the site. Specifically, the former owner alleged that when the developer destroyed a concrete slab at the property, it caused hazardous substances beneath the slab to migrate into additional soils and groundwater, thereby requiring the former owner to perform additional monitoring at the site. Because the former owner created a genuine issue of material fact as to whether the developer caused a release or disposal at the facility and whether this caused the former owner to incur necessary response costs, the court denied the developer's motion for summary judgment. In addition, the developer failed to show that it is entitled to either the innocent owner defense or the bona fide prospective purchaser defense at this stage of the litigation. The court also dismissed the developer's state-law claims of breach of contract, nuisance, and negligence, as well as portions of its lawsuit to enforce the order on consent. Saline River Properties, LLC, v. Johnson Controls, Inc., Nos. 10-10507, -13406, 41 ELR 20325 (E.D. Mich. Oct. 17, 2011) (Cox, J.).


HAZARDOUS & SOLID WASTE, CERCLA, NEGLIGENCE:

A district court held that a bank may go forward with its CERCLA and negligence claims against engineering and remediation companies that prepared and implemented an environmental remediation plan for property in which the bank holds an interest, but it dismissed the bank's strict liability and negligent misrepresentation claims. The bank argued that the companies failed to completely remediate the site for the purpose of assisting a developer and lender with future redevelopment. The companies argued that the CERCLA claims should be dismissed because they had neither actual control nor the authority to control any of the environmental operations of the subject property. But the complaint alleges that the defendants knew that there were disposed hazardous materials on the property and that they engaged in deliberate disturbance, unearthing, spilling, moving, and re-releasing of hazardous materials and compounds into the property. The companies, however, cannot be held strictly liable for contamination caused by defective containment cells placed on the property. None of the companies were acting as a seller, manufacturer, wholesaler, or distributor of the defective product. And while the allegations in the complaint raised a reasonable expectation that discovery will reveal evidence of the bank's negligence claim, the complaint failed to show that any representations allegedly made by the companies to the bank were false. The companies' motions to dismiss were therefore granted in part and denied in part. Bankcorpsouth Bank v. Environmental Operations, Inc., No. 4:11CV9, 41 ELR 20323 (E.D. Mo. Oct. 11, 2011) (Autrey, J.).


HAZARDOUS & SOLID WASTE, ACCUMULATED WASTE:

The First Circuit upheld a lower court decision dismissing a biomedical waste disposal company's §1983 claims against the Puerto Rico Environmental Quality Board for rejecting its proposed plans for dealing with accumulated waste. The complaint states no plausible claim against any identifiable defendant. The complaint did not meet even minimal pleading standards. None of the defendants is alleged to have acted due to bias, to have retaliated against the company because of its protected conduct, to have deprived the company of any liberty or property interest without affording adequate procedural protections, or even to have acted arbitrarily. Because none of the claims are facially valid, the case was dismissed. Redondo Waste Systems, Inc. v. López-Freytes, No. 10-1865, 41 ELR 20320 (1st Cir. Oct. 18, 2011).


LAND USE, ZONING:

The Second Circuit reversed a lower court decision dismissing a property owner's lawsuit against a zoning district that denied his variance request to build a single-family home on his land. The district denied his application because his proposal did not comply with a local zoning law that sets height restrictions for new structures in order to preserve views of the Hudson River. Contrary to the ruling of the lower court, the law is unconstitutionally vague as applied to his home because it provides inadequate notice of the elevation point from which he should have measured the height of his house to determine compliance. The law also authorizes arbitrary and discriminatory enforcement. Cunney v. Board of Trustees of the Village of Grand View, No. 10-0485, 41 ELR 20321 (2d Cir. Oct. 19, 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 the 2012 critical use exemption from the existing pre-phaseout inventory of methyl bromide under the stratospheric ozone protection program. 76 FR 65139 (10/20/11).

  • EPA proposed to exclude 2,3,3,3-tetrafluoropropene and trans-1,3,3,3-tetrafluoropropene from the definition of volatile organic compounds (VOCs) for SIP purposes. 76 FR 64059 (10/17/11).

  • SIP Approvals: Indiana/Ohio (attainment of the 1997 annual fine particulate matter (PM) NAAQS for the Cincinnati-Hamilton nonattainment area) 76 FR 64825 (10/19/11). Maryland (VOC standards for drum and pail coatings) 76 FR 64015 (10/17/11); (VOC standards for plastic parts and business machines coatings) 76 FR 64020 (10/17/11); (VOC emissions from various sources) 76 FR 64237 (10/18/11). North Carolina (PSD thresholds for greenhouse gas emissions) 76 FR 64240 (10/18/11). Virginia (transportation conformity requirements) 76 FR 64823 (10/19/11).

  • SIP Proposals: Arkansas (partial approval of regional haze and visibility programs) 76 FR 64186 (10/17/11). Indiana/Ohio (attainment of the 1997 annual fine PM NAAQS for the Cincinnati-Hamilton nonattainment area; see above for direct final rule) 76 FR 64880 (10/19/11). Kentucky (redesignation of the Kentucky portion of the Cincinnati-Hamilton 1997 annual fine PM nonattainment area to attainment) 76 FR 65458 (10/21/11). Oklahoma (1997 ozone NAAQS determination) 76 FR 64065 (10/17/11). Virginia (transportation conformity requirements; see above for direct final rule) 76 FR 64881 (10/19/11).

HAZARDOUS & SOLID WASTE:



  • EPA finalized a rule to allow refiners and laboratories to use an alternative test method for olefin content in gasoline. 76 FR 65382 (10/21/11).

  • EPA entered into a proposed administrative settlement under CERCLA that requires the settling parties to pay $1,050,000 in past and future U.S. response costs incurred at the ACM Smelter and Refinery NPL site near Great Falls, Montana, and to perform a remedial investigation and feasibility study for portions of the site. 76 FR 64943 (10/19/11).

MINING:



  • OSM seeks public comment on a proposed amendment to Iowa's regulatory program under SMCRA concerning routine updates. 76 FR 64043 (10/17/11).

  • OSM seeks public comment on a proposed amendment to Montana's regulatory program under SMCRA concerning coal beneficiation and coal preparation plants. 76 FR 64045 (10/17/11).

  • OSM seeks public comment on a proposed amendment to Montana's regulatory program under SMCRA concerning coal prospecting. 76 FR 64047 (10/17/11).

NATURAL RESOURCES:



  • The Forest Service implemented the Community Forest and Open Space Conservation Program to provide competitive grants for the establishment of community forests through fee-simple acquisition of private forest land. 76 FR 65121 (10/20/11).

TOXIC SUBSTANCES:



  • EPA promulgated a rule under TSCA §4(a)(1)(B) to require manufacturers, importers, and processors to conduct testing to obtain screening level data for health and environmental effects and chemical fate for 15 high production volume chemical substances. 76 FR 65385 (10/21/11).

  • EPA proposed to issue a test rule under TSCA §4(a)(1)(B) to require manufacturers and processors of 23 high production volume chemical substances to develop screening-level health, environmental, and fate data based on the potential for substantial exposures of workers and consumers to these chemicals. 76 FR 65580 (10/21/11).

  • EPA established May 10, 2013, as the deadline for farms to amend their oil spill prevention, control, and countermeasure plans. 76 FR 64245 (10/18/11).

  • EPA proposed to establish May 10, 2013, as the deadline for farms to amend their oil spill prevention, control, and countermeasure plans. 76 FR 64296 (10/18/11).

  • EPA lifted the administrative stay of the chemical release reporting requirements for hydrogen sulfide that was promulgated under EPCRA on August 22, 1994. 76 FR 64022 (10/17/11).

WATER:



  • EPA proposed two options for obtaining basic information from concentrated animal feeding operations (CAFOs) under the CWA; under one option, EPA would obtain certain identifying information from all CAFOs, and under the second option, EPA would obtain this information from CAFOs that fall within areas that have been identified as having water quality concerns likely associated with CAFOs . 76 FR 65431 (10/21/11).

WILDLIFE:



  • NOAA-Fisheries designated approximately 335 miles of freshwater creeks and rivers and their associated estuaries in California, Oregon, and Washington as critical habitat for the southern distinct population segment of Pacific eulachon fish under the ESA, excluding the land of four Native American tribes. 76 FR 65324 (10/20/11).

  • FWS proposed to designate approximately 12,157 acres in 14 counties in California as critical habitat for the tidewater goby under the ESA. 76 FR 64996 (10/19/11).

DOJ NOTICES OF SETTLEMENT:



  • United States v. Rineco Chemical Industries, Inc., No. 4-07-CV-01189SWW (E.D. Ark. Oct. 14, 2011). Under a modified consent decree, a settling RCRA defendant is given a one-year extension to obtain a final permit for its thermal metal washing unit and its related hazardous waste storage and control any fugitive emissions from the unit at its Benton, Arkansas, facility. 76 FR 65534 (10/21/11).

  • United States v. Airgas Carbonic, Inc., No. 1:11-cv-163 (S.D. Ga. Oct. 4, 2011). Seventy-three settling CERCLA parties responsible for violations at the Alternate Energy Resources, Inc., site in Augusta, Georgia, must perform remedial design and remedial action at the site; 797 other parties must pay a portion of the past and future response costs incurred by the United States and Georgia. 76 FR 64378 (10/18/11).

  • United States v. Ryland Group, Inc., No. 3:11-cv-00499 (W.D.N.C. Oct. 7, 2011). A settling CWA defendant responsible for stormwater violations must pay a $625,000 civil penalty and must institute a companywide management, reporting, and training program to improve compliance with stormwater requirements. 76 FR 64379 (10/18/11).

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


THE CONGRESS

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


Chamber Action:



  • S. 270 (land use), which would direct the Secretary of the Interior to convey certain federal land to Deschutes County, Oregon, was passed by the Senate. 157 Cong. Rec. S6690 (daily ed. Oct. 18, 2011).

  • S. 275 (hazardous & solid waste), which would amend title 49, U.S. Code, to provide for enhanced safety and environmental protection in pipeline transportation and enhanced reliability in the transportation of the nation's energy products by pipeline, was passed by the Senate. 157 Cong. Rec. S6613 (daily ed. Oct. 17, 2011).

  • S. 292 (land use), which would resolve the claims of the Bering Straits Native Corporation and the state of Alaska to land adjacent to Salmon Lake and provide for the conveyance of certain other public land to the Bering Straits Native Corporation, was passed by the Senate. 157 Cong. Rec. S6691 (daily ed. Oct. 18, 2011).

  • S. 333 (energy), which would reinstate and extend the deadline for beginning the construction of a hydroelectric project involving the Little Wood River Ranch, was passed by the Senate. 157 Cong. Rec. S6691 (daily ed. Oct. 18, 2011).

  • S. 334 (energy), which would reinstate and extend the deadline for beginning the construction of a hydroelectric project involving the American Falls Reservoir, was passed by the Senate. 157 Cong. Rec. S6691 (daily ed. Oct. 18, 2011).

  • S. 404 (land use), which would modify a land grant patent issued by the Secretary of the Interior, was passed by the Senate. 157 Cong. Rec. S6692 (daily ed. Oct. 18, 2011).

  • H.R. 470 (energy), which would further allocate and expand the availability of hydroelectric power generated at Hoover Dam, was passed by the Senate. 157 Cong. Rec. S6692 (daily ed. Oct. 18, 2011).

  • H.R. 489 (land use), which would clarify the jurisdiction of the Secretary of the Interior with respect to the C.C. Cragin Dam and Reservoir, was passed by the Senate. 157 Cong. Rec. S6692 (daily ed. Oct. 18, 2011).

  • H.R. 2273 (hazardous & solid waste), which would amend subtitle D of the Solid Waste Disposal Act to facilitate recovery and beneficial use of materials generated by the combustion of coal and other fossil fuels and provide for their proper management and disposal, was passed by the House. 157 Cong. Rec. H6934-59 (daily ed. Oct. 14, 2011).

Committee Action:



  • H.R. 258 (water) was reported by the Committee on Natural Resources. H. Rep. No. 112-245, 157 Cong. Rec. H6975 (daily ed. Oct. 14, 2011). The bill would require the Office of Management and Budget to prepare a crosscut budget for restoration activities in the Chesapeake Bay watershed and require EPA to develop and implement an adaptive management plan.

  • H.R. 1904 (land use) was reported by the Committee on Natural Resources. H. Rep. No. 112-246, 157 Cong. Rec. H6975 (daily ed. Oct. 14, 2011). The bill would facilitate the extraction of mineral resources in southeast Arizona by authorizing and directing an exchange of federal and nonfederal land.

  • H.R. 2150 (energy) was reported by the Committee on Natural Resources. H. Rep. No. 112-249, 157 Cong. Rec. H6975 (daily ed. Oct. 14, 2011). The bill would amend the Naval Petroleum Reserves Production Act of 1976 to direct the Secretary of the Interior to conduct an oil and gas leasing program in the National Petroleum Reserve in Alaska, including at least one lease sale per year in the period 2011 through 2021.

  • H.R. 2170 (energy) was reported by the Committee on Natural Resources. H. Rep. No. 112-250, 157 Cong. Rec. H6975 (daily ed. Oct. 14, 2011). The bill would streamline federal review to facilitate renewable energy projects.

  • H.R. 2171 (energy) was reported by the Committee on Natural Resources. H. Rep. No. 112-251, 157 Cong. Rec. H6975 (daily ed. Oct. 14, 2011). The bill would promote timely exploration for geothermal resources under existing geothermal leases.

  • H.R. 2173 (energy) was reported by the Committee on Natural Resources. H. Rep. No. 112-252, 157 Cong. Rec. H6975 (daily ed. Oct. 14, 2011). The bill would facilitate the development of offshore wind energy resources.

Bills Introduced:



  • S. 1729 (Blunt, R-Mo.) (hazardous & solid waste) would amend CERCLA to clarify that manure is not considered a hazardous substance, pollutant, or contaminant under that Act. 157 Cong. Rec. S6665 (daily ed. Oct. 18, 2011). The bill was referred to the Committee on Environment and Public Works.

  • S. 1735 (Cochran, R-Miss.) (land use) would approve the transfer of Yellow Creek Port properties in Iuka, Mississippi. 157 Cong. Rec. S6764 (daily ed. Oct. 19, 2011). The bill was referred to the Committee on Environment and Public Works.

  • S. 1740 (Cardin, D-Md.) (water) would amend the Chesapeake Bay Initiative Act of 1998 to provide for the reauthorization of the Chesapeake Bay Gateways and Watertrails Network. 157 Cong. Rec. S6764 (daily ed. Oct. 19, 2011). The bill was referred to the Committee on Environment and Public Works.

  • H.R.3210 (Cooper, D-Tenn.) (land use) would amend the Lacey Act Amendments of 1981 to limit the application of that Act with respect to plants and plant products that were imported before the effective date of amendments to that Act enacted in 2008. 157 Cong. Rec. H6976 (daily ed. Oct. 14, 2011). The bill was referred to the Committee on Natural Resources.

  • H.R.3221 (DeLauro, D-Conn.) (energy) would authorize the Secretary of Energy to provide loan guarantees for energy efficiency upgrades to existing buildings. 157 Cong. Rec. H6976 (daily ed. Oct. 14, 2011). The bill was referred to the Committee on Energy and Commerce.

  • H.R.3222 (Dicks, D-Wash.) (land use) would designate certain National Park System land in Olympic National Park as wilderness or potential wilderness. 157 Cong. Rec. H6976 (daily ed. Oct. 14, 2011). The bill was referred to the Committee on Natural Resources.

  • H.R. 3227 (LoBiondo, R-N.J.) (energy) would prohibit the Secretary of the Interior from issuing oil and gas leases on portions of the outer continental shelf located off the coast of New Jersey. 157 Cong. Rec. H6976 (daily ed. Oct. 14, 2011). The bill was referred to the Committee on Natural Resources.

  • H.R. 3238 (Pascrell, D-N.J.) (energy) would amend the Internal Revenue Code of 1986 to provide for an investment tax credit related to the production of electricity from offshore wind. 157 Cong. Rec. H6983 (daily ed. Oct. 18, 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:

Indiana
Illinois
Maine

Nevada
New Mexico
North Carolina

Washington
 

INDIANA


Hazardous & Solid Waste:



  • The Solid Waste Management Board amended 329 Ind. Admin. Code §3.1 to incorporate 40 CFR 261, Appendix IX, to describe hazardous wastes excluded from regulation under 40 CFR 261.20 and 40 CFR 261.22. Changes also remove the emission-comparable fuel exclusion, remove saccharin and its salts from the lists of hazardous wastes and hazardous constituents, and make technical corrections, among other alterations to the rule. The amendments take effect November 18, 2011. See http://www.in.gov/legislative/iac/20111019-IR-329110090PRA.xml.pdf.

ILLINOIS


Air:



  • The Pollution Control Board amended 35 Ill. Admin. Code §217, Nitrogen Oxides (NOx) Emissions. Changes add a provision sunsetting the NOx SIP Call requirements as set forth in Subpart U that apply to non-electric generating units. Beginning with the 2009 control period (May 1 through September 30), non-electric generating units will no longer be required to hold NOx allowances in an amount equal to their seasonal NOx emissions. These sources will continue to be required to monitor, record, and report seasonal NOx emissions. The amendments took effect September 27, 2011. See http://www.cyberdriveillinois.com/departments/index/register/register_volume35_issue42.pdf (pp. 16600-14).

  • The Pollution Control Board amended 35 Ill. Admin. Code 229, Hospital/Medical/Infectious Waste Incinerators. Changes incorporate altered U.S. EPA regulations. The amendment took effect September 29, 2011. See http://www.cyberdriveillinois.com/departments/index/register/register_volume35_issue42.pdf (pp. 16615-81).

Climate:



  • The Illinois Environmental Protection Agency proposed to amend 35 Ill. Admin. Code §254, Annual Emissions Report. Changes would declare that greenhouse gas emissions would not determine what type of report an entity files and that the type of report would continue to be based on criteria pollutant emissions. The deadline for comment is November 28, 2011. See http://www.cyberdriveillinois.com/departments/index/register/register_volume35_issue42.pdf (pp. 16178-82).

Hazardous & Solid Waste:



  • The Illinois Environmental Protection Agency proposed to amend 35 Ill. Admin. Code §731, Underground Storage Tanks, and repeal §732, Petroleum Underground Storage Tanks (Releases Reported September 23, 1994 through June 23, 2002), and §734, Petroleum Underground Storage Tanks (Releases Reported On or After June 24, 2002). Changes would incorporate Public Act 96-908, which amends the Environmental Protection Act and pertains to releases. The deadline for comment is November 28, 2011. See http://www.cyberdriveillinois.com/departments/index/register/register_volume35_issue42.pdf (pp. 16183-381).

MAINE


Air:



  • The Department of Environmental Protection repealed 06-096 Code Me. Regs. Ch. 122, Chlorine and Chlorine Dioxide Emission Standard. The Department repealed the rule, which establishes an emission limit for bleach plants of pulp and paper mills, as federal rules are more comprehensive. The rule takes effect October 16, 2011. See http://www.maine.gov/sos/cec/rules/notices/2011/101911.html.

  • The Department of Environmental Protection repealed 06-096 Code Me. Regs. Ch. 135, Hexavalent Chromium Particulate Emission Standard. The Department repealed the rule, which establishes a limitation on the amount of hexavalent chromium allowed to be emitted from any potential source of hexavalent chromium, as federal rules are more comprehensive. See http://www.maine.gov/sos/cec/rules/notices/2011/101911.html.

  • The Department of Environmental Protection repealed 06-096 Code Me. Regs. Ch. 155, Portable Fuel Container Spillage Control. The Department repealed the rule as it has been superseded by federal requirements. See http://www.maine.gov/sos/cec/rules/notices/2011/101911.html.

NEVADA


Energy:



  • The State Environmental Commission proposed to amend Nev. Admin. Code §§701A.220 and .280, and to add §§701A.225 and .285. Changes relate to energy tax incentives for buildings or structures that meet certain standards under the LEED Green Building Rating System. See http://www.leg.state.nv.us/register/2011Register/R081-11I.pdf.

NEW MEXICO


Water:



  • The Water Quality Control Commission proposed to amend N.M. Admin. Code §20.6.6, the Commission's Dairy Rule. Changes would provide greater flexibility to dairy operators in the management of their facilities, in addition to correcting minor errors. There will be a public hearing November 16, 2011. See http://www.nmcpr.state.nm.us/nmregister/xxii/xxii19/WaterQualnotice.htm.

NORTH CAROLINA


Water:



  • The Department of Environmental Management proposed to amend 15A N.C. Admin. Code 02C .0201-.0202, .0204, .0206-.0209, and .0211, relating to injection wells. Changes are necessary to comply with federal regulations. There will be public hearings throughout November and December, and the deadline for comment is January 13, 2012. The proposed effective date is April 1, 2012. See http://www.ncoah.com/rules/register/Volume26Issue08October172011.pdf (pp. 647-94).

WASHINGTON


Water:



  • The Department of Ecology amended 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. The rule takes effect October 28, 2011. See http://apps.leg.wa.gov/documents/laws/wsr/2011/20/11-20-035.htm.

  • The Department of Ecology amended Wash. Admin. Code §§173.98, Uses and limitations of the water pollution control revolving fund, and 173.95, Uses and limitations of centennial clean water fund. Changes establish funding categories, ceiling amounts, and project eligibility for green project reserves projects and forgivable principal loans as part of the revolving fund. The rule takes effect October 28, 2011. See http://apps.leg.wa.gov/documents/laws/wsr/2011/20/11-20-036.htm.

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


INTERNATIONAL

CANADA FIGHTS EUROPEAN UNION DIRECTIVE LABELING OIL SANDS AS DIRTIEST CRUDE

Canada's government and energy industry have launched an effort to reverse proposed European Union (EU) fuel quality standards that would rank Canadian oil sands as one of the earth's most carbon-intensive crude sources. The proposed Fuel Quality Directive would give oil sands a default greenhouse gas value of 107 grams of carbon per megajoule, while conventional fuel is given a value of 87.5 grams. Canada, which has been touting oil sands as a secure and stable energy supply, believes that the directive is discriminatory. The government of Alberta voiced "grave concerns" over the proposal, saying in a letter that it "believes that the Fuel Quality Directive implementing measure as it currently stands would be incompatible with the EU’s international trade obligations." The letter argues that there is no scientific reason to single out oil sands from other crude sources. Canadian Natural Resources Minister Joe Oliver said that he was "cautiously optimistic" that he could win European support against the proposal, as European companies that have heavily invested in Alberta's oil sands stand to be disadvantaged. However, EU legal advisers have said that the proposals can probably be defended should Ottawa challenge the ranking with the World Trade Organization (WTO). A letter sent by EU officials said the proposals were science-based and non-discriminatory, and that if the WTO disagreed it would claim a derogation under rules designed to conserve natural resources. The EU Commission has argued that the entire life-cycle of the fuel must be taken into account and that the measures would label oil sands from Venezuela carbon intensive as well. For the full story, see http://www.vancouversun.com/life/environment/Canada+fighting+plans+label+oilsands+world+dirtiest+crude+source/5575302/story.html. For Alberta's letter, see http://business.financialpost.com/2011/10/21/alberta-tells-eu-oil-sands-ranking-is-threat-to-trade/.For Joe Oliver's plans, see http://online.wsj.com/article/BT-CO-20111021-708713.html. For the story on the letter from legal advisers, see http://ca.reuters.com/article/domesticNews/idCATRE79K3E420111021.


SCOTLAND INCREASES SUBSIDIES FOR TIDAL ENERGY, CUTS BIOMASS AND WIND

The Scottish government plans to increase tidal energy support while decreasing subsidies for biomass and wind power plants. Tidal energy projects will now receive five Renewable Obligation Certificates, awarded to utilities for renewable energy generation, for every megawatt hour produced through 2013, compared with the three certificates offered previously. Scotland proposed a cap on the size of biomass plants receiving support, with smaller, more efficient facilities eligible for 1.5 certificates and those producing heat as well as power eligible for 2 certificates through 2015. The proposals bring support for marine energy in line with England and offshore wind in line with the rest of the United Kingdom. The government said that the proposals will cost less than leaving funding as is, between £400m and £1.3bn less, but figures showed that the cost would amount to £50 for an average household by 2016. According to the BBC, the solar industry had hoped for more funding, as it has argued that heavier subsidies now would help create an industry that could quickly operate without government support. For the full story, see http://www.bbc.co.uk/news/science-environment-15389147.


EU TO REGULATE CARBON MARKET LIKE FINANCIAL MARKETS

Barclay's said last week that the European Union's plan to extend the Markets in Financial Instruments Directive to cover spot carbon deals will probably encourage trading after thefts and fraud have turned traders away. While some carbon traders are not enthusiastic, "industry didn’t come up with anything better" for problems with the market, said Louis Redshaw, head of carbon, coal, dry freight, and iron ore for Barclays Capital. Climate Commissioner Connie Hedegaard said that the measure would extend finance market protections to the carbon market, and that it "will provide further certainty for carbon market participants as the market grows and matures." Last week, a UK climate negotiator said that EU governments should take advantage of the 31-month low in carbon prices to set more ambitious climate goals, as they will be cheaper. For the full story, see http://www.bloomberg.com/news/2011-10-21/eu-plan-for-spot-co2-regulation-will-entice-trade-barclays-says.html and http://www.reuters.com/article/2011/10/20/us-regulation-carbon-idUSTRE79J1YU20111020. For the story on advancing climate goals, see http://www.reuters.com/article/2011/10/20/us-carbon-price-idUSTRE79J4J220111020.


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