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Weekly Update Volume 41, Issue 34

12/05/2011

LITIGATION 

WATER, CWA, DREDGE AND FILL PERMITS:

The D.C. Circuit held that the U.S. Army Corps of Engineers complied with the CWA when it issued a permit authorizing the discharge of dredge and fill material into wetlands outside Tampa, Florida, for the construction of a large shopping center. An environmental group argued that the Corps violated the CWA because there were practicable alternatives having less adverse effects. But in determining practicability, it was reasonable for the Corps to look at the land's fair market value as opposed to the developer's lower acquisition cost. It was also reasonable for the Corps to use 8% as the minimum rate of return necessary for an alternative to be considered practicable. And although the shopping center will have more parking spaces than that of nearby malls, the Corps' acceptance of a higher-than-average parking ratio was not arbitrary or capricious. But while the Corps complied with the CWA, it failed to adequately address indications of an adverse effect on the indigo snake in violation of NEPA and the ESA. A lower court's decision that the Corps violated the CWA and NEPA but not the ESA was therefore reversed in part, affirmed in part, and remanded. Sierra Club v. Van Antwerp, No. 10-5284, 41 ELR 20346 (D.C. Cir. Nov. 29, 2011).


NATURAL RESOURCES, NATIONAL FORESTS:

The Ninth Circuit remanded the U.S. Forest Service's 2006 travel management plan for the Gallatin National Forest. The Montana Wilderness Study Act of 1977 requires the Service to ensure that current users of a wilderness study area are able to enjoy the wilderness character of the area as it existed in 1977, pending a congressional decision on whether to designate the area as wilderness. In this case, the travel plan ignores the impact of increased volume of motorized and mechanized use on current users' ability to seek quiet and solitude in the study area. Because the Service failed to adequately explain how the 1977 wilderness character of the relevant study area has been maintained despite an increase in the volume of motorized and mechanized recreation in the area, its decision was arbitrary and capricious in violation of the APA. Montana Wilderness Ass'n v. McAllister, Nos. 09-36051 et al., 41 ELR 20352 (9th Cir. Dec. 1, 2011).


WILDLIFE, ESA, GRIZZLY BEAR:

The Ninth Circuit affirmed in part and reversed in part a lower court decision vacating the FWS' decision to remove the Yellowstone distinct population segment of grizzly bears from the ESA's threatened species list. Given the lack of data indicating grizzly population stability in the face of whitebark pine declines, and the substantial data indicating a direct correlation between whitebark pine seed availability and grizzly survival and reproduction, the FWS failed to articulate a rational connection between the data in the record and its determination that whitebark pine declines were not a threat to the Yellowstone grizzly. The FWS' delisting rule presents no data indicating that whitebark pine declines will not threaten the Yellowstone grizzly population, yet there is considerable data pointing in the opposite direction. And while it is understandable that the FWS does not yet know what impact whitebark pine declines may have on the Yellowstone grizzly, it is not enough for the Service to simply invoke "scientific uncertainty" to justify its action. But the FWS rationally supported its conclusion that adequate regulatory mechanisms are in place to maintain a recovered Yellowstone grizzly population without the ESA's staunch protections. Greater Yellowstone Coalition v. Servheen, Nos. 09-36100 et al, 41 ELR 20347 (9th Cir. Nov. 22, 2011).


WILDLIFE, ESA, BALD EAGLE:

A district court set aside and remanded the FWS' 12-month finding that the desert bald eagle does not qualify as a distinct population segment (DPS) of bald eagles entitled to statutory protection under the ESA. In 2004, an environmental group petitioned the FWS to list desert eagles as a DPS, but the FWS issued a negative 90-day finding and the group filed suit. In 2007, before the court ruled in the group's case, the FWS issued a rule removing all bald eagles in the United States from the ESA's threatened species list. The 2007 delisting rule included a finding that the desert eagle is not a DPS. The FWS argued that the delisting rule rendered the group's suit moot, but the court disagreed and enjoined FWS from applying its 2007 delisting rule to the desert eagle until it conducted a full status review and issued a 12-month finding. In 2010, the FWS issued its 12-month finding that the desert eagle was "discrete" but not "significant" to the species as a whole, and therefore not entitled to DPS treatment. The group again filed suit, this time challenging the 12-month finding. This court agreed that the FWS' finding was flawed. The FWS disregarded the uniform view of biologists and its own staff that the desert eagle qualified for DPS status, and instead arbitrarily stood by its 2007 delisting rule, making it the de facto final decision unless compelling evidence to the contrary was found. But the 2007 delisting rule was not a valid status review for the desert eagle since the Service did not comply with the necessary notice, comment, and consultation requirements. Findings reached without appropriate notice, comment, and consultation should not become an agency's presumptive decision. Accordingly, the 2007 delisting rule should not have become FWS's de facto decision on the DPS issue. The court therefore set aside the 12-month finding and required FWS to complete a new one. Center for Biological Diversity v. Salazar, No. 10-2130-PHX-DGC, 41 ELR 20350 (D. Ariz. Nov. 30, 2011) (Campbell, J.).


WILDLIFE, ESA, WHALE:

A district court upheld the National Marine Fisheries Service's (NMFS') decision to list the Cook Inlet beluga whale as endangered under the ESA. The state of Alaska, an oil company, and several nonprofit corporations challenged the decision, questioning the rationale behind the NFMS' decision, its basis in science, and the procedures through which it was promulgated. But the Service's decision to list the Cook Inlet beluga whale as endangered is rational because the small, isolated population has not shown any appreciable signs of recovery since 1999 when hunting restrictions began. In addition, the record amply reflects that the NMFS considered the ESA's listing factors and articulated a rational basis for its listing determination, grounded that decision in the best available scientific data, and provided a full opportunity for public comment before publishing its final listing rule. Alaska v. Lubchenco, No. 10-0927, 41 ELR 20348 (D.D.C. Nov. 21, 2011) (Lamberth, J.).


NEPA, FEDERAL FUNDING:

A district court denied an environmental group's motion to preliminarily enjoin the DOE from providing funding assistance for the construction and operation of a coal-fired power plant in Mississippi. Before granting the funding, the DOE issued an EIS evaluating the funding's environmental effects, as required by NEPA. The group then challenged the funding on the ground that the EIS was legally insufficient. But the group failed to make a clear showing of a substantial likelihood of success on the merits because its standing to bring suit is doubtful. The alleged harm is not from the DOE's disbursement of funds, but from the power company's construction and operation of the plant. Although the group produced evidence that the project was unlikely to have commenced without federal funding, it did not make such a showing regarding the continued viability of the project without federal funding. Moreover, the company provided a sworn affidavit indicating that it will proceed with the project with or without federal assistance or a loan guarantee. Hence, the group failed to meet its burden of showing that it will be irreparably harmed by DOE's funding of the project absent the injunction it seeks. Sierra Club v. United States Department of Energy, No. 11-514, 41 ELR 20349 (D.D.C. Nov. 18, 2011) (Bates, J.).


LAND USE, SUBLEASES:

A district court held that an oil company is liable for property damages caused by its predecessor-in-interest who conducted oil and gas exploration and production activities on the site under three subleases. Article 128 of the Louisiana Mineral Code provides that a sublessee acquires the rights and powers of the lessee and becomes directly responsible to the original lessor for performance of the lessee's obligations to the extent of the interest acquired. Accordingly, the company must restore the property to the conditions that existed at the time the lease was granted. And even though one of the subleases was issued before Article 128 was enacted, Article 128 applies retroactively. Sweet Lake Land & Oil Co. v. Exxon Mobil Corp., No. 2:09 CV 1100, 41 ELR 20351 (W.D. La. Nov. 16, 2011) (Minaldi, J.).


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 and the National Highway Traffic Safety Administration issued a joint proposal to further reduce greenhouse gas emissions and improve fuel economy for light-duty vehicles for model years 2017-2025. 76 FR 74854 (12/1/11).

  • EPA amended specific provisions in the Mandatory Reporting of Greenhouse Gases Rule and extended the 2012 reporting deadline by six months. 76 FR 73886 (11/29/11).

  • EPA established air quality designations for the 2008 lead NAAQS for most areas in the United States, including Indian country. 76 FR 72097 (11/22/11).

  • EPA finalized NESHAPs for the shipbuilding and ship repair and the wood furniture manufacturing source categories. 76 FR 72050 (11/21/11).

  • EPA proposed to amend the NESHAPS for mineral wool production and wool fiberglass manufacturing. 76 FR 72770 (11/25/11).

  • EPA proposed to amend the NESHAPS for ferroalloys production. 76 FR 72508 (11/23/11).

  • EPA entered into a proposed consent decree in National Parks Conservation Ass'n v. Jackson, No. 1:11-cv-1548 (D.D.C.), that establishes deadlines for the Agency to take action on regional haze federal implementation plans and SIPs in 44 states. 76 FR 75544 (12/2/11).

  • EPA entered into a proposed consent decree in El Comité Para el Bienestar de Earlimart v. Jackson, No. 11-cv-3779 (N.D. Cal), that establishes a deadline for the Agency to take action on an SIP and other regulations for the San Joaquin Valley. 76 FR 75545 (12/2/11).

  • SIP Approvals: California (volatile organic compound (VOC) emissions for the Placer County air pollution control district and the Sacramento metropolitan air quality management district) 76 FR 71886 (11/21/11). Delaware (control of VOC emissions from offset lithographic printing and letterpress printing) 76 FR 72626 (11/25/11). Louisiana (attainment of the 1997 eight-hour ozone NAAQS for the Baton Rouge moderate nonattainment area) 76 FR 74000 (11/30/11); (VOC emissions) 76 FR 75467 (12/2/11). Ohio/West Virginia (1997 annual fine particulate matter (PM2.5) NAAQS for the Marietta-Parkersburg and Wheeling nonattainment areas) 76 FR 75464 (12/2/11). Maryland (infrastructure requirements for the 1997 eight-hour ozone and PM2.5 NAAQS and the 2006 PM2.5 NAAQS) 76 FR 72624 (11/25/11). South Carolina (reasonably available control technology (RACT) requirements for the bi-state Charlotte area) 76 FR 72844 (11/28/11). Virginia (update of regulations) 76 FR 71881 (11/21/11).

  • SIP Proposals: California (VOC emissions for the Placer County air pollution control district and the Sacramento metropolitan air quality management district; see above for direct final rule) 76 FR 71922 (11/21/11); (particulate matter emissions for the South Coast air quality management district) 76 FR 72142 (11/22/11). Connecticut (one-hour ozone nonattainment area) 76 FR 72377 (11/23/11). Illinois (VOCs for the Chicago and Metro-East St. Louis eight-hour ozone nonattainment areas) 76 FR 74014 (11/30/11). Maine (regional haze program through 2018) 76 FR 73956 (11/29/11). Maryland (Baltimore PM2.5 nonattainment area) 76 FR 72374 (11/23/11).South Carolina (RACT requirements for the bi-state Charlotte area; see above for direct final rule) 76 FR 72885 (11/28/11).

HAZARDOUS & SOLID WASTE:



  • EPA granted a petition to exclude certain centrifuge solids generated at the ExxonMobil Refining and Supply Company--Beaumont Refinery in Texas from hazardous waste control under RCRA. 76 FR 74709 (12/1/11).

  • EPA granted a petition to delist rotary kiln incinerator (RKI) bottom ash, RKI fly ash, and RKI scrubber water blowdown generated at Eastman Chemical's Longview, Texas, facility. 76 FR 72311 (11/23/11).

  • EPA entered into a proposed prospective purchaser agreement under CERCLA that requires the purchaser to purchase and to conduct work to clean up soil contamination at the property, which is located in Los Angeles, California. 76 FR 72405 (11/23/11).

  • EPA entered into a proposed administrative settlement under CERCLA that requires the settling party to pay $25,000 in past and projected U.S. response costs at the ICG Castings, Inc., Dowagiac Superfund site in Dowagiac, Michigan, and to perform specified response activities for the site. 76 FR 72921 (11/28/11).

TOXIC SUBSTANCES:



  • EPA extended the date for farms to comply with spill prevention, control, and countermeasure plans to May 10, 2013. 76 FR 72120 (11/22/11).

WATER:



  • EPA announced the availability for public comment of its proposed decision identifying three water quality limited segments and associated pollutants in Louisiana to be listed under CWA §303(d). 76 FR 74057 (11/30/11).

WILDLIFE:



  • FWS proposed to designate approximately 375,562 acres in Idaho and Washington as critical habitat for the southern Selkirk Mountains population of woodland caribou. 76 FR 74018 (11/30/11).

  • NOAA-Fisheries announced a 90-day finding on a petition to list the scalloped hammerhead shark or distinct population segments as threatened or endangered and to designate critical habitat under the ESA; the agency found that listing may be warranted and initiated a status review. 76 FR 72891 (11/28/11).

DOJ NOTICE OF SETTLEMENT:



  • United States v. Town of Fort Gay, No. 3:09-0855 (S.D.W. Va. Nov. 21, 2011). A settling CWA and SDWA defendant responsible for violations at its wastewater collection and drinking water treatment facilities must comply with certain permit requirements, must prepare and submit certain reports, must make capital improvements, and must improve staffing at the facilities. 76 FR 72973 (11/28/11).

  • United States v. California, No. 4-09-CV-00437-PJH (N.D. Cal. Nov. 10, 2011). A settling defendant that violated a 1938 permit that authorized construction of Highway 1 across a portion of the Presidio of San Francisco must pay $5.5 million toward the remediation of Mountain Lake sediment contamination, must pay $4 million for repair or replacement of the overflow pipeline that drains Mountain Lake, must pay $500,000 toward certain legal costs, and must reconfigure Highway 1 drainage facilities to avoid further discharges of highway run-off to Mountain Lake. 76 FR 72444 (11/23/11).

  • United States v. General Electric Co., No. 1:10-cv-404 MCA/RHS (D.N.M. Nov. 7, 2011). A settling CERCLA defendant responsible for violations at the Northeast Church Rock Mine Superfund site in McKinley County, New Mexico, must pay $1,905,166.60 in U.S. response costs and interest incurred at the site. 76 FR 72216 (11/22/11).

  • United States v. Occidental Chemical Corp., No. 11-CV-7149 (E.D. Pa. Nov. 15, 2011). Settling CERCLA defendants responsible for violations at the Occidental Chemical Corporation Superfund site in Montgomery County, Pennsylvania, must pay $2,130,600.88 in U.S. response costs incurred at the site, must pay all future response costs, and must continue to work on one operable unit at the site. 76 FR 72216 (11/22/11).

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


THE CONGRESS

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


Committee Action



  • H.R. 306 (wildlife) was reported by the Committee on Natural Resources. H. Rep. No. 112-310, 157 Cong. Rec. H8074 (daily ed. Dec. 1, 2011). The bill would direct the Secretary of the Interior to enter into an agreement to provide for management of the free-roaming wild horses in and around the Currituck National Wildlife Refuge.

  • H.R. 850 (water) was reported by the Committee on Natural Resources. H. Rep. No. 112-309, 157 Cong. Rec. H8074 (daily ed. Dec. 1, 2011). The bill would facilitate a proposed four-lane highway bridge in the Lower St. Croix Wild and Scenic River.

  • H.R. 991 (wildlife) was reported by the Committee on Natural Resources. H. Rep. No. 112-308, 157 Cong. Rec. H8074 (daily ed. Dec. 1, 2011). The bill would amend the Marine Mammal Protection Act of 1972 to allow importation of polar bear trophies taken in sport hunts in Canada before the date the polar bear was determined to be a threatened species under the ESA.

  • H.R. 1158 (natural resources) was reported by the Committee on Natural Resources. H. Rep. No. 112-299, 157 Cong. Rec. H8074 (daily ed. Dec. 1, 2011). The bill would authorize the conveyance of mineral rights by the Secretary of the Interior in the state of Montana.

  • H.R. 2172 (energy) was reported by the Committee on Natural Resources. H. Rep. No. 112-300, 157 Cong. Rec. H8074 (daily ed. Dec. 1, 2011). The bill would facilitate the development of wind energy resources on federal lands.

  • H.R. 2351 (wildlife) was reported by the Committee on Natural Resources. H. Rep. No. 112-305, 157 Cong. Rec. H8074 (daily ed. Dec. 1, 2011). The bill would direct the Secretary of the Interior to continue stocking fish in certain lakes in the North Cascades National Park, Ross Lake National Recreation Area, and Lake Chelan National Recreation Area.

  • H.R. 2360 (energy) was reported by the Committee on Natural Resources. H. Rep. No. 112-304, 157 Cong. Rec. H8074 (daily ed. Dec. 1, 2011). The bill would amend the Outer Continental Shelf Lands Act to extend the Constitution, laws, and jurisdiction of the United States to installations and devices attached to the seabed of the outer continental shelf for the production and support of production of energy from sources other than oil and gas.

  • H.R. 2578 (water) was reported by the Committee on Natural Resources. H. Rep. No. 112-303, 157 Cong. Rec. H8074 (daily ed. Dec. 1, 2011). The bill would amend the Wild and Scenic Rivers Act related to a segment of the Lower Merced River in California.

  • H.R. 2803 (natural resources) was reported by the Committee on Natural Resources. H. Rep. No. 112-302, 157 Cong. Rec. H8074 (daily ed. Dec. 1, 2011). The bill would direct the Secretary of the Interior, acting through the Bureau of Ocean Energy Management, Regulation and Enforcement, to conduct a technological capability assessment, survey, and economic feasibility study regarding recovery of minerals other than oil and natural gas from the shallow and deep seabed of the United States.

  • H.R. 2842 (energy) was reported by the Committee on Natural Resources. H. Rep. No. 112-301, 157 Cong. Rec. H8074 (daily ed. Dec. 1, 2011). The bill would authorize all Bureau of Reclamation conduit facilities for hydropower development under federal reclamation law.

  • H.R. 2845 (energy) was reported by the Committee on Transportation and Infrastructure. H. Rep. No. 112-297, 157 Cong. Rec. H8074 (daily ed. Dec. 1, 2011). The bill would amend title 49 of the 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.

Bill Introduced



  • S. 1912 (McCain, R-Ariz.) (energy) would prohibit the Department of Energy from subordinating its position in energy loan guarantees to outside investors. 157 Cong. Rec. S7829 (daily ed. Nov. 18, 2011). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 1914 (Snowe, R-Me.) (energy) would amend the Internal Revenue Code of 1986 to provide a credit for performance based home energy improvements. 157 Cong. Rec. S7829 (daily ed. Nov. 18, 2011). The bill was referred to the Committee on Finance.

  • S. 1916 (Nelson, D-Fla.) (wildlife) would exclude ecosystem component stocks of fish from certain annual catch limits. 157 Cong. Rec. S7908 (daily ed. Nov. 28, 2011). The bill was referred to the Committee on Commerce, Science, and Transportation.

  • S. 1921 (Brown, R-Mass.) (energy) would amend the Internal Revenue Code of 1986 to provide a tax credit for the retrofit conversion of a nonhybrid motor vehicle to a hybrid. 157 Cong. Rec. S7991 (daily ed. Nov. 29, 2011). The bill was referred to the Committee on Finance.

  • S. 1924 (Roberts, R-Kan.) (hazardous & solid waste) would authorize states to enforce pipeline safety requirements related to wellbores at interstate storage facilities. 157 Cong. Rec. S8067 (daily ed. Nov. 30, 2011). The bill was referred to the Committee on Commerce, Science, and Transportation.

  • S. 1927 (Paul, R-Ky.) (water) would modify the criteria used by the U.S. Army Corps of Engineers to dredge small ports. 157 Cong. Rec. S8067 (daily ed. Nov. 30, 2011). The bill was referred to the Committee on Environment and Public Works.

  • S. 1932 (Lugar, R-Ind.) (energy) would require the Secretary of State to act on a permit for the Keystone XL pipeline. 157 Cong. Rec. S8067 (daily ed. Nov. 30, 2011). The bill was read the first time.

  • S. 1937 (Brown, D-Ohio) (energy) would amend the Internal Revenue Code of 1986 to extend the nonbusiness energy property credit to include the insulation component of insulated siding. 157 Cong. Rec. S8148 (daily ed. Dec. 1, 2011). The bill was referred to the Committee on Finance.

  • H.R. 3496 (Kind, D-Wis.) (wildlife) would sustain fish, plants, and wildlife on America's public lands. 157 Cong. Rec. H7890 (daily ed. Nov. 18, 2011). The bill was referred to the Committee on Natural Resources and the Committee on Agriculture.

  • H.R. 3500 (Rehberg, R-Mont.) (land use) would provide for the conveyance of a small parcel of National Forest System land in the Flathead National Forest in the state of Montana containing a World War II memorial to the Whitefish Mountain Resort. 157 Cong. Rec. H7890 (daily ed. Nov. 18, 2011). The bill was referred to the Committee on Natural Resources.

  • H.R. 3537 (Rehberg, R-Mont.) (energy) would require the Secretary of State to act on a permit for the Keystone XL pipeline. 157 Cong. Rec. H8075 (daily ed. Dec. 1, 2011). The bill was referred to the Committees on Transportation and Infrastructure, Foreign Affairs, Energy and Commerce, and Natural Resources.

  • H.R. 3544 (McClintock, R-Cal.) (water) would amend the Federal Water Pollution Control Act to limit citizens suits against publicly owned treatment works, provide for defenses, extend the period of a permit, and limit attorneys fees. 157 Cong. Rec. H8075 (daily ed. Dec. 1, 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:

Alaska
California
Colorado

Delaware
Illinois
Indiana

Kentucky
Mississippi
Missouri

Nevada
New Jersey
New Mexico

New York
Oklahoma
Oregon

Rhode Island
Texas
Utah

West Virginia
Wisconsin
Wyoming

ALASKA


Fisheries:



CALIFORNIA


Hazardous & Solid Waste:



  • The State Water Resources Control Board proposed to amend Cal. Code Regs. tit. 23 §3.16.3.2631, relating to design and construction requirements for new USTs. The regulation would provide compliance options with existing independent testing and approval requirements so that UST owners may store alternative fuels. The deadline for written comment is January 2, 2012. See http://www.oal.ca.gov/res/docs/pdf/notice/46z-2011.pdf (pp. 1856-59).

Toxic Substances:



COLORADO


Air:



  • The Department of Public Health and Environment amended 5 Colo. Code Regs. §1001.5, Regulation No. 3: Stationary Source Permitting and Air Pollutant Emissions Requirements. Changes incorporate federal regulations pertaining to fine particulate matter and respond to a recent EPA disapproval of Colorado rules. Amendments take effect December 15, 2011. See http://www.sos.state.co.us/CCR/Upload/AGORequest/AdoptedRules02011-00486.DOC.

  • The Department of Public Health and Environment adopted 5 Colo. Code Regs. §1001.15, Reduction of Diesel Vehicle Emissions. The rule revise Regulation Number 12 to conform to provisions of House Bill 11-1157, which permits heavy-duty vehicles that are registered in the Fleet Self-Certification Opacity Inspection Program area, but are physically based and principally operated outside of the program area, to forgo the periodic opacity testing requirements contained in Air Quality Control Commission Regulation Number 12 Part A. The rule takes effect December 15, 2011. See http://www.sos.state.co.us/CCR/Upload/AGORequest/AdoptedRules02011-00485.DOC.

DELAWARE


Air:



Hazardous & Solid Waste:



ILLINOIS


Fisheries:



INDIANA


Air:



  • The Air Pollution Control Board amended 326 Ind. Admin. Code §6, concerning applicability of particulate matter limitations. Changes relate to emission limits for surface coaters, reinforced plastics composites fabricating manufacturers, and graphic arts manufacturers. The amendments take effect December 23, 2011. See http://www.in.gov/legislative/iac/20111123-IR-326070438PRA.xml.pdf.

KENTUCKY


Land Use:



  • The Energy and Environment Cabinet amended 400 Ky. Admin. Regs. 2:090, management, use, and protection of nature preserves. Among other changes, the amendment alters regulations pertaining to wildfires and construction on or near nature preserves. See http://www.lrc.state.ky.us/kar/400/002/090reg.htm.

MISSISSIPPI


Climate:



MISSOURI


Water:



  • The Department of Natural Resources proposed to amend 10 Mo. Code Regs. §20.7.031, Water Quality Standards, to ensure equivalence with federal standards. Among other changes, the amendments would designate "fishable/swimmable" uses to currently unclassified water and update designation of beneficial uses. See http://www.sos.mo.gov/adrules/moreg/current/v36n23/v36n23b.pdf (pp. 2521-66).

NEVADA


Hazardous & Solid Waste:



NEW JERSEY


Hazardous & Solid Waste:



  • The Department of Environmental Protection readopted N.J. Admin. Code §7:14C, Sludge Quality Assurance, with amendments. Among other changes, the amendments extend the analytical exemption in the existing rules to small generators with a permitted wastewater flow of less than or equal to 20,000 gallons per day. The readoption took effect October 27, 2011, and the amendments took effect November 21. See http://www.lexisnexis.com/njoal/ (43 N.J.R. 3083 (c)).

NEW MEXICO


Hazardous & Solid Waste:



  • The Environmental Improvement Board amended N.M. Admin. Code §20.7.11, Liquid Waste Treatment and Disposal Fees. Changes pertain to the Board's biannual report for New Mexico, altering definitions and adding requirements. The amendments take effect December 15, 2011. See http://www.nmcpr.state.nm.us/nmregister/xxii/xxii22/20.7.11amend.htm.

NEW YORK


Fisheries:



  • The Department of Environmental Conservation proposed emergency amendments to N.Y. Comp. Codes R. & Regs. tit. 6, §41, Sanitary Condition of Shellfish Lands. Changes reclassify underwater lands to prohibit shellfish harvest in areas that do not meet the bacteriological standards for certification. The deadline for public comment is January 14, 2011. See http://www.dos.ny.gov/info/register/2011/nov30/pdfs/rules.pdf (pp. 4-7).

General:



  • The Department of Environmental Conservation amended N.Y. Comp. Codes R. & Regs. tit. 6, §620.2(a), Procedures for Issuance of Summary Abatement Orders. Changes correct errors from the original 1977 rulemaking to conform the regulatory language to the enabling statute. See http://www.dos.state.ny.us/info/register/2011/nov23/pdfs/rules.pdf (pp. 7-8).

OKLAHOMA


Climate:



  • The Department of Environmental Quality proposed to amend Okla. Admin. Code §252.4.7, Water Quality Division Tiers and Timelines. The amendment would include the Underground Injection Control Class VI carbon dioxide geologic sequestration injection well permit applications in the permit process rules. There will be a public hearing January 10, 2012, and the deadline for written comment is January 3. See http://www.oar.state.ok.us/register/Volume-29_Issue-06.htm#a18211.

  • The Department of Environmental Quality proposed to amend Okla. Admin. Code §§252.100.1, 252.100.7, & 252.100.31, Air Pollution Control. Changes would revise the definition of "carbon dioxide equivalent emissions" to prevent the state regulations from being more stringent than federal regulations. There will be public hearings on January 18 and February 24, 2012. The deadline for written comment is January 18. See http://www.oar.state.ok.us/register/Volume-29_Issue-06.htm#a19501.

Hazardous & Solid Waste:



  • The Department of Environmental Quality proposed to amend Okla. Admin. Code §252.641, Individual and Small Public On-Site Sewage Treatment Systems. Changes relate to waterbody protection for on-site sewage treatment systems. There will be public hearings on January 18 and February 24, 2012. The deadline for written comment is January 18. See http://www.oar.state.ok.us/register/Volume-29_Issue-06.htm#a24589.

Water:



  • The Department of Environmental Quality proposed to amend Okla. Admin. Code §252.4.7, Water Quality Division Tiers and Timelines. Changes would add water reuse systems to the environmental permitting process. There will be public hearings on January 10 and February 24, 2012. The deadline for written comment is January 10. See http://www.oar.state.ok.us/register/Volume-29_Issue-06.htm#a18962.

  • The Department of Environmental Quality proposed to amend Okla. Admin. Code §252.626. Among other changes, the amendments would remove the provision regarding large volume off-stream storage basins and modify the standards for residuals management. There will be public hearings on January 10 and February 24, 2012. The deadline for written comment is December 31, 2011. See http://www.oar.state.ok.us/register/Volume-29_Issue-06.htm#a22064.

  • The Department of Environmental Quality proposed to amend Okla. Admin. Code §252.627, Operation and Maintenance of Water Reuse Systems. The rule would establish standards for the operation and maintenance of systems that create reclaimed water for beneficial use. The new rule would establish four categories of water based on levels of treatment. There will be public hearings on January 10 and February 24, 2012. The deadline for written comment is December 31, 2011. See http://www.oar.state.ok.us/register/Volume-29_Issue-06.htm#a23040.

OREGON


Energy:



  • The Department of Energy amended Or. Admin. R. 330-090, pertaining to the Business Energy Tax Credit. The amendments implement statutory changes to the sunset of the program and provide a process for participants to demonstrate "beginning construction before April 15, 2011" for the purpose of extending the time allowed to receive final certification of their facility. In addition, new rules provide for the administration of the Business Energy Tax Credit Manufacturing program. See http://arcweb.sos.state.or.us/doc/rules/bulletin/December2011_Bulletin.pdf (pp. 46-69).

RHODE ISLAND


Climate:



  • The Department of Environmental Management proposed to amend Air Pollution Control Regulation No. 43, which sets forth an administratively simpler permitting process for certain emergency generators, combined heat and power projects, and distributed generation projects. Changes would alter the carbon dioxide standard for emergency generators to allow more projects to be eligible for the simpler permit process. The deadline for written comment is December 23, 2011. See http://sos.ri.gov/documents/archives/regdocs/holding/DEM/pn_reg43.pdf.

TEXAS


General:



  • The Commission on Environmental Quality proposed to amend 30 Tex. Admin. Code §50.139, Action by the Executive Director. Amendments alter the contested case hearings process of the Commission and prohibit non-river authority state agencies from filing to overturn the executive director's action on an application. There will be a public hearing December 12, 2011, and the deadline for comment is December 19. See http://www.sos.state.tx.us/texreg/pdf/backview/1118/1118is.pdf (pp. 7764-67).

Hazardous & Solid Waste:



  • The Commission on Environmental Quality proposed to add sections to 30 Tex. Admin. Code §328, creating the Television Equipment Recycling Program. There will be a public hearing December 13, 2011, and the deadline for comment is December 19. See http://www.sos.state.tx.us/texreg/pdf/backview/1118/1118is.pdf (pp. 7782-94).

  • The Commission on Environmental Quality proposed to amend 30 Tex. Admin. Code §§334.5 & 334.84 and to add §334.19, pertaining to storage tanks. The rulemaking incorporates statutory changes to UST delivery prohibitions, state lead tank removal authorizations, and the petroleum storage tank delivery fee, altered by recent House legislation. There will be a public hearing December 14, 2011, and the deadline for comment is December 19. See http://www.sos.state.tx.us/texreg/pdf/backview/1118/1118is.pdf (pp. 7795-803).

Wildlife:



  • The Department of Natural Resources and Conservation proposed to amend 31 Tex. Admin. Code §§65.175 & 65.176, Threatened and Endangered Nongame Species. Proposed changes include clarifying the listings for the scarlet snake and the northern cat-eyed snake and removing the brown pelican. The earliest possible date of adoption is December 15, 2011. See http://www.sos.state.tx.us/texreg/pdf/backview/1125/1125is.pdf (pp. 7965-66).

UTAH


Air:



  • The Department of Environmental Quality proposed to amend Utah Admin. Code r. 307.45, pertaining to fine particulate matter. Changes would incorporate updates to federal regulations by reference. The deadline for comment is January 3, 2012, and the rule may become effective February 2. See http://www.rules.utah.gov/publicat/bull_pdf/2011/b20111201.pdf (pp. 42-45).

Energy:



  • The Department of Environmental Quality proposed to amend Utah Admin. Code r. 313.22.75, Special Requirements for a Specific License to Manufacture, Assemble, Repair, or Distribute Commodities, Products, or Devices Which Contain Radioactive Material. Changes would maintain compatibility between the Utah Radiation Control Rules and regulations promulgated by the NRC. The deadline for comment is January 3, 2012, and the rule may become effective January 12. See http://www.rules.utah.gov/publicat/bull_pdf/2011/b20111201.pdf (pp. 51-54).

  • The Department of Environmental Quality proposed to amend Utah Admin. Code r. 313.36, Special Requirements for Industrial Radiographic Operations. Changes, part of a five-year review, incorporate material by reference and add clarity to the rule. The deadline for comment is January 3, 2012, and the rule may become effective January 12. See http://www.rules.utah.gov/publicat/bull_pdf/2011/b20111201.pdf (pp. 54-56).

Hazardous & Solid Waste:



  • The Department of Environmental Quality proposed to amend Utah Admin. Code r. 311.201, pertaining to UST operator certification and inspection. There will be a public hearing December 20, 2011, and the deadline for comment is January 3, 2012. The rule may become effect January 13, 2012. See http://www.rules.utah.gov/publicat/bull_pdf/2011/b20111201.pdf (pp. 45-50).

  • The Department of Environmental Quality proposed to amend Utah Admin. Code r. 313.17, Administrative Procedures. Changes define what licensing actions are major and require a public comment period. The deadline for comment is January 3, 2012, and the rule may become effective January 12. See http://www.rules.utah.gov/publicat/bull_pdf/2011/b20111201.pdf (pp. 50-51).

  • The Department of Environmental Quality proposed to amend Utah Admin. Code r. 315.16, Standards for Universal Waste Management. Changes would maintain equivalency with federal rules. The deadline for comment is January 3, 2012, and the rule may become effective January 20. See http://www.rules.utah.gov/publicat/bull_pdf/2011/b20111201.pdf (pp. 56-59).

  • The Department of Environmental Quality proposed to amend Utah Admin. Code r. 315.312.1, Recycling and Composting Facility Standards. Changes would eliminate the requirement that recycling and composting facilities be placed on a compliance schedule, as all existing facilities have approved plans of operation. The deadline for comment is January 3, 2012, and the rule may become effective January 20. See http://www.rules.utah.gov/publicat/bull_pdf/2011/b20111201.pdf (pp. 59-60).

WEST VIRGINIA


Water:



WISCONSIN


Air:



  • The Department of Natural Resources amended Wis. Admin. Code NR §§404 & 484, relating to repeal of the state’s secondary 24-hour ambient air quality standard for particulate matter. Changes took effect December 1, 2011. See http://legis.wisconsin.gov/rsb/code/register/reg671b.pdf (p. 32).

WYOMING


Air:



  • The Air Quality Division proposed to amend Chapter 3, General Emission Standards; Chapter 5, National Emission Standards; Chapter 6, Permitting Requirements; Chapter 11, National Acid Rain Program; and Chapter 14, Emission Trading Program Regulations, of the Wyoming Air Quality Standards and Regulations. Changes would incorporate updates to federal requirements and alter the SIP. The deadline for comment is December 30, 2011, and there will be a public hearing January 13, 2012. See http://deq.state.wy.us/aqd/proposedrules_files/EQC_Public_Notice_R-19_1-13-12.pdf.

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


INTERNATIONAL

NEW SOUTH WALES EXTENDS "FRACKING" BAN

New South Wales will extend its ban on hydraulic fracturing until April to give the state, the most populous in Australia, time to strengthen standards for the extraction process. The move, which adds an additional three months to the state's moratorium, comes shortly after the release of a Senate committee report that recommended the suspension of all new coal seam gas projects in southern Queensland and northern New South Wales, pending further research on fracking's effects. The 24 recommendations would give landholders more rights to reject proposals and, if implemented, would stop billions of dollars of investment in the area. The Australian Petroleum Production and Exploration Association said the report was out of date as several of the recommendations were already addressed by companies, but proposed measures would add a number of new requirements, including holding companies liable for damage that occurs decades after well closures. Last month, Prime Minister Julia Gillard said that the government would allocate A$150 million to create a committee to provide scientific advice on coal seam gas' impact. For the story on New South Wales, see http://www.businessweek.com/news/2011-12-02/australian-state-extends-temporary-ban-on-fracking-to-april.html. For the story on the committee recommendations, see http://www.smh.com.au/environment/senate-report-suggests-suspension-of-most-coal-seam-gas-drilling-20111130-1o762.html.


CANADA WON'T MAKE FURTHER COMMITMENTS TO KYOTO

Environment Minister Peter Kent declined to confirm or deny that Canada is pulling out of the Kyoto Protocol, a move that would save the country as much as $6.7 billion and make it the first of 191 signatories to annul its obligations. Kent declined to confirm that Canada would pull out of Kyoto, but he did say the government wouldn't make further commitments to it. "Kyoto is the past," he said at a press conference. While Alberta's Environment and Water Minister Diana McQueen said Kent was "being realistic," Elizabeth May, leader of Canada's Green Party, said the move would put the nation's economy at risk. "We're condemning ourselves to rising costs from extreme weather events as well as opportunity costs like the failure to have a renewable-energy industry," she said. Kent did say that Canada would not obstruct others from continuing with the Kyoto Protocol, but that he would push for a new agreement to eclipse it. Meanwhile, a survey conducted by the Environics Research Group indicated that Canadians want the country to be part of an international climate change treaty and would even support carbon taxes. For the full story, see http://www.bloomberg.com/news/2011-12-02/canada-may-escape-6-7-billion-bill-by-exiting-kyoto-protocol.html.


UK TO SURPASS CARBON REDUCTION TARGETS

A government study indicated that the United Kingdom may substantially surpass carbon reduction targets, an accomplishment that Chris Huhne, secretary of state for energy and climate change, hopes will demonstrate to Durban that cuts are achievable. The report "shows other economies that, with the right planning, the transition to a low-carbon economy is achievable and affordable," said Huhne. Emissions have dropped by 25% since 1990, but the report indicated that those cuts were much easier to achieve than those needed over the next 20 years. Those cuts will require hundreds of billions of pounds of investment into the energy, transportation, and industrial sector. Currently, the United Kingdom is on track to meet its goal of halving emissions during the 2020s. Huhne recently fell under fire from the Labour party and from industry groups for the government's plan to reduce subsidies for solar. Huhne called the move a "sensible course correction" due to the decrease in the cost of panels, but Labour said the action would "strangle" the industry. For the full story, see http://www.guardian.co.uk/environment/2011/dec/01/uk-carbon-cutting-targets-research?newsfeed=true and http://www.reuters.com/article/2011/12/01/us-update-1-uk-on-track-for-2020-maps-ou-idUSTRE7B02D020111201. For the story on solar panels, see http://www.bbc.co.uk/news/uk-politics-15981121.


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


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