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Weekly Update Volume 41, Issue 36

12/19/2011

LITIGATION 

AIR, CAA, NESHAPs:

The D.C. Circuit remanded EPA's NESHAPs for portland cement facilities. While EPA was establishing the NESHAPs, it was simultaneously developing a definition of commercial and industrial solid waste incinerators (CISWI), which would create a separate category of pollutant sources subject to emissions standards distinct from NESHAP. The CISWI rulemaking process would impact the NESHAP rulemaking because certain cement kilns would be subject to standards under the CISWI rules rather than under the NESHAP rules. Despite the fact that EPA realized the CISWI definition could potentially impact the NESHAP rule, the Agency ignored the ongoing CISWI process when it issued the NESHAP standards. It was therefore arbitrary and capricious for EPA to have set the NESHAP standard on the premise that all kilns would be subject to NESHAP while at the same time modifying the dataset to change that premise. Basing its decision on a premise the Agency itself has already planned to disrupt is arbitrary and capricious. Instead of treating the two rules as truly interdependent efforts and acknowledging their close correlation, EPA let each run its own course regardless of the collateral impact. Because EPA's treatment of the CISWI-NESHAP interaction was arbitrary and capricious, the court remanded the rule for further action consistent with this decision. And while the court declined to stay the NESHAP rule in its entirety, it did enter a stay of the NESHAP standards applicable to clinker storage piles because the Agency failed to give sufficient notice of those standards. The court, however, denied the cement manufacturers' petition challenging EPA's new source performance standards (NSPS) for portland cement facilities. The court also held that it lacked jurisdiction over environmental petitioners' claims challenging EPA's failure to adopt greenhouse gas emissions standards as part of its portland cement NSPS. Portland Cement Ass'n v. Environmental Protection Agency, Nos. 10-1358, -1359, 41 ELR 20358 (D.C. Cir. Dec. 9, 2011).

WILDLIFE, WATER, TAKINGS:

The Federal Claims Court dismissed a water district's claim that certain operating restrictions on a water project imposed by the National Marine Fisheries Service under the ESA to protect endangered steelhead trout is a physical taking entitling it to compensation under the Fifth Amendment. The restrictions require the district to reroute a portion of water it had diverted for its own use through a fish passageway and return the water to the river channel. Although the government has interfered with the district's ability to divert water--and has done so since the opening of the fish passage facility necessitated by the steelheads' ESA listing--it remains to be seen whether the government's actions will subsequently interfere with the water district's beneficial use of its water. Absent such a present, compensable injury, the takings claim is simply not ripe. Casitas Municipal Water District v. United States, No. 05–168L, 41 ELR 20361 (Fed. Cl. Dec. 5, 2011).

WATER, WETLANDS:

The D.C. Circuit held that a home builders association lacked standing to challenge the U.S. Army Corps of Engineers' issuance of nationwide permit (NWP) 46, which allows persons to secure approval for qualifying discharges into "waters of the United States" without going through the more laborious process of securing an individual permit. The association claimed that, by issuing NWP 46, the Corps had unlawfully asserted jurisdiction over upland ditches, which it contends are categorically excluded from being "waters of the United States" and thus are categorically not subject to CWA regulation. But the association's alleged injury--the uncertainty of knowing whether a ditch is a "water of the United States" and the potential risk of facing criminal of civil penalties under the CWA--is not fairly traceable to NWP 46. The risk of sanctions attendant on filling upland ditches without Corps approval predates, and is in no way aggravated by, the issuance of NWP 46. National Ass'n of Home Builders v. United States Army Corps of Engineers, No. 10-5169, 41 ELR 20363 (D.C. Cir. Dec. 16, 2011).

CLIMATE CHANGE, GREENHOUSE GASES:

A district court held that Washington state must establish reasonably available control technology (RACT) for greenhouse gas emissions. Based on its plain language, the RACT provision contained in Washington's federally approved SIP is not discretionary and requires the state's agencies to establish RACT standards for greenhouse gases. Alternatively, the state argued that even if the Washington SIP regulates greenhouse gas emissions, the CAA does not authorize regulation of greenhouse gases through SIPs. But the CAA allows for state SIPs to impose broader emissions standards than otherwise required by NAAQS. Because the agencies concede they are not applying the SIP's RACT provision to greenhouse gas emissions, the court granted environmental groups' motion for summary judgment. The groups also alleged that the state agencies are violating the SIP's narrative standard by failing to establish RACT requirements. But because the agencies have broad discretion under the narrative standard, the provision is unenforceable as a citizen suit. Washington Environmental Council v. Sturdevant, No. C11–417 MJP, 41 ELR 20362 (W.D. Wash. Dec. 1, 2011) (Pechman, J.).

WATER, CONSENT DECREES:

A district court denied environmental groups' motion to intervene in a proposed consent decree resolving the District of Columbia's lawsuit against a power company alleging PCB contamination in the Anacostia River, but allowed the groups to participate as amici curiae. Under the consent decree, the company must conduct a remedial investigation and feasibility study (RI/FS) to delineate the conditions at one of its facilities and the adjacent areas of the river, determine the link between the facility and the PCBs in the river, and assess clean-up options. The environmental groups, who oppose entry of the decree, sought to intervene in the case. But denying intervention will not practically impair the groups' ability to protect their interests because they will be able to present their critiques of the consent decree to the court as amici curiae. In addition, permissive intervention is unwarranted in this case. As for the decree, the court found that the consent decree is reasonable, adequate, and appropriate. But because important details of the RI/FS process do remain to be elaborated by the parties, it is critical to ensure robust opportunities for public access, review, and comment upon the implementation of the consent decree. Accordingly, the court approved the consent decree on the condition that there is ample opportunity for public participation. District of Columbia v. Potomac Electric Power Co., No. 11–00282(BAH), 41 ELR 20360 (D.D.C. Dec. 1, 2011) (Howell, J.).

NATURAL RESOURCES, LAND USE:

A California appellate court held that a state agency's certification of an environmental impact report (EIR) and approval of a master plan for the expansion of a state university violated the California Environmental Quality Act (CEQA). In certifying the EIR and approving the project, the agency determined that there are no feasible mitigation measures to reduce the project's significant off-site traffic impacts to a less than significant level. But the agency failed to substantively investigate and address the project's impacts on the transit system and whether those impacts may be significant under CEQA. Because the agency did not comply with procedures required by law, its decision must be set aside as presumptively prejudicial. In addition, the court reversed a lower court's decision that there was substantial evidence to support the agency's finding that the project will not have a significant effect on the transit system. The agency's finding is based on speculation, unsubstantiated opinion, and narrative or evidence that is clearly inaccurate or erroneous. City of San Diego v. Board of Trustees of the California State University, No. D057446, 41 ELR 20359 (Cal. App. 4th Dist. Dec. 13, 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 entered into a proposed consent decree in Sierra Club v. Jackson, No. 1:11-cv-00035-GK (D.D.C.), that establishes deadlines for the Agency to take action on SIPs in Illinois, Maine, and Missouri and on federal implementation plans for a number of areas. 76 FR 77226 (12/12/11).
  • SIP Approvals: Kentucky (attainment of the 1997 annual fine particulate matter NAAQS for the tri-state Cincinnati-Hamilton nonattainment area) 76 FR 77903 (12/15/11); (rescission of replaced visibility rule provisions) 76 FR 78162 (12/16/11). Missouri (emissions reporting requirements) 76 FR 77701 (12/14/11). Virginia (general conformity requirements) 76 FR 77150 (12/12/11).
  • SIP Proposals: Georgia (attainment of the 1997 eight-hour ozone NAAQS for the Atlanta nonattainment area) 76 FR 77950 (12/15/11). Kentucky (rescission of replaced visibility rule provisions; see above for direct final rule) 76 FR 78193 (12/16/11); (limited approval of regional haze revisions) 76 FR 78194 (12/16/11). Massachusetts/New Hampshire (attainment of the one-hour ozone NAAQS for the serious Eastern Massachusetts nonattainment area) 76 FR 77739 (12/14/11). Missouri 76 FR 77742 (emissions reporting requirements; see above for direct final rule) (12/14/11). New York (volatile organic compounds) 76 FR 77178 (12/12/11). North Carolina (partial approval of the 1997 eight-hour ozone NAAQS) 76 FR 77952 (12/15/11). Virginia (general conformity requirements; see above for direct final rule) 76 FR 77182 (12/12/11).

HAZARDOUS & SOLID WASTE:

  • EPA entered into a proposed administrative, cash-out settlement under CERCLA for recovery of past U.S. response costs incurred at the Ophir Mills and Smelter Superfund site in Tooele County, Utah. 76 FR 77997 (12/15/11).
  • EPA entered into a proposed administrative settlement under CERCLA that requires the settling parties to pay $102,161 in U.S. response costs incurred at the San Fernando Valley Area 1 Superfund Site near Los Angeles, California. 76 FR 77528 (12/13/11).

WATER:

  • EPA announced the availability of new data on an analytical method for the measurement of oil and grease and seeks public comment. 76 FR 77742 (12/14/11).

DOJ NOTICES OF SETTLEMENT:

  • United States v. Washington Gas Light Co., No. 1:11-cv-02199-RMC (D.D.C. Dec. 12, 2011). A settling CERCLA defendant responsible for violations at the Washington Gas East Station Superfund site in Washington, D.C., must pay $730,673.62 in past and future response costs to the United States and the District of Columbia, must implement a soil remedy at the site, and must perform a remedial investigation and feasibility study to determine the nature and extent of contamination in the Anacostia River. 76 FR 78314 (12/16/11).
  • United States v. Wright Brothers Construction Co., No. 2:11- CV-321-WCO (N.D. Ga. Dec. 12, 2011). Settling CWA defendants responsible for the discharge of pollutants into navigable waters must pay a civil penalty, must restore contaminated streams, and must purchase mitigation credits. 76 FR 78314 (12/16/11).
  • United States v. City of Boulder, No. 11-cv-03178 WJM-MJW (D. Colo. Dec. 8, 2011). Settling CERCLA defendants responsible for violations at the Hendricks Mining and Milling Superfund site must pay $350,000 in U.S. response costs incurred at the site. 76 FR 77846 (12/14/11).

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:

  • H.R. 2845 (energy), which would amend title 49, U.S. Code, to provide for enhanced safety and environmental protection in pipeline transportation and provide for enhanced reliability in the transportation of the nation's energy products by pipeline, was passed by the House, 157 Cong. Rec. H8330-39D1348 (daily ed. Dec. 12, 2011), and the Senate, 157 Cong. Rec. S8552 (daily ed. Dec. 13, 2011).

Bills Introduced:

  • S. 1980 (Inouye, D-Haw.) (wildlife) would prevent, deter, and eliminate illegal, unreported, and unregulated fishing through port state measures. 157 Cong. Rec. S8490 (daily ed. Dec. 12, 2011). The bill was referred to the Committee on Commerce, Science, and Transportation.
  • S. 1988 (Blunt, R-Mo.) (energy) would amend the Federal Power Act to require FERC to consider private landownership and private use of land in issuing hydropower licenses. 157 Cong. Rec. S8602 (daily ed. Dec. 14, 2011). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 1991 (Whitehouse, D-R.I.) (water) would establish the National Endowment for the Oceans. 157 Cong. Rec. S8602 (daily ed. Dec. 14, 2011). The bill was referred to the Committee on Commerce, Science, and Transportation.
  • H.R. 3640 (Denham, R-Cal.) (land use) would authorize the Secretary of the Interior to acquire not more than 18 acres of land and interests in land in Mariposa, California. 157 Cong. Rec. H8879 (daily ed. Dec. 13, 2011). The bill was referred to the Committee on Natural Resources.
  • H.R. 3657 (Terry, R-Neb.) (energy) would clarify the authority of the Chairman of the Nuclear Regulatory Commission to act on behalf of the Commission during emergencies. 157 Cong. Rec. H8880 (daily ed. Dec. 13, 2011). The bill was referred to the Committee on Energy and Commerce.
  • H.R. 3663 (Hurt, R-Va.) (energy) would amend the Federal Power Act to require FERC to consider private landownership and private use of land in issuing hydropower licenses. 157 Cong. Rec. H8966 (daily ed. Dec. 14, 2011). The bill was referred to the Committee on Energy and Commerce.
  • H.R. 3664 (Bilbray, R-Cal.) (energy) would provide local communities with tools to make solar permitting more efficient. 157 Cong. Rec. H8966 (daily ed. Dec. 14, 2011). The bill was referred to the Committees on Energy and Commerce, and on Science, Space, and Technology.

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 Iowa Nebraska Nevada New York Texas    

CALIFORNIA

Air:

  • The Air Resources Board proposed to amend sections of Cal. Code Regs. tit. 13 pertaining to the "LEV III" amendments to the California Low Emission Vehicle regulations. Changes would reduce emissions of criteria pollutants from new light- and medium-duty vehicles through a number of measures, including reducing fleet average emissions from new passenger cars and other vehicles to super ultra-low-emission vehicle levels by 2025 and increasing full useful life durability requirements from 120,000 miles to 150,000 miles. Changes would also establish zero fuel evaporative emission standards for passenger cars and light-duty trucks, and set forth more stringent evaporative standards for medium-duty vehicles. In addition, the amendments would establish more stringent greenhouse gas standards. The deadline for written comment is January 25, 2012, and there will be a public hearing January 26. See http://www.oal.ca.gov/res/docs/pdf/notice/49z-2011.pdf (pp. 1963-70).
  • The Air Resources Board proposed to amend Cal. Code Regs. tit. 13 §§1962.1 and 1962.2, pertaining to the California Zero Emission Vehicle regulation. Changes would focus on advanced technologies and increase stringency for 2018 models. The deadline for written comment is January 25, 2012, and there will be a public hearing January 26. See http://www.oal.ca.gov/res/docs/pdf/notice/49z-2011.pdf (pp. 1970-74).

Energy:

  • The Air Resources Board proposed to amend Cal. Code Regs. tit. 13 §§2300, 2302, 2303-04, 2307-09, 2311-15, and 2318, Clean Fuels Outlet Regulation, which requires that owners and operators of gas stations make clean alternative fuels available at an appropriate number of their stations. Amendments would address hydrogen fueling infrastructure. The deadline for public comment is January 25, 2012. See http://www.oal.ca.gov/res/docs/pdf/notice/49z-2011.pdf (pp. 1960-63).

COLORADO

Hazardous & Solid Waste:

Water:

  • The Department of Public Health and Environment amended 5 Colo. Code Regs. §1002.31, The Basic Standards and Methodologies for Surface Water, and §1002.85, Nutrients Management Control Regulation. Changes would alter §1002.31, Regulation No. 31, to address nutrients, and adopt a new Nutrients Management Control Regulation, Regulation No. 85, which sets forth numerical effluent limitations for domestic wastewater treatment plants and other wastewater dischargers. In addition, changes would establish monitoring requirements for point source dischargers and a program aimed at monitoring surface waters for nutrients. There will be a public hearing March 12, 2011, and the deadline for written comment is January 20. See http://www.sos.state.co.us/CCR/Upload/NoticeOfRulemaking/ProposedRuleAttach2011-00835.PDF.

IOWA

Climate:

  • The Environmental Protection Commission amended Iowa Admin. Code ch. 22, Controlling Pollution, and ch. 33, Special Regulations and Construction Permit Requirements for Major Stationary Sources-Prevention of Significant Deterioration of Air Quality. The amendments ensure consistency between Iowa regulations and federal regulations regarding carbon dioxide emissions. See http://www.legis.state.ia.us/aspx/ACODOCS/DOCS/12-14-2011.Bulletin.pdf (pp. 844-46).

Hazardous & Solid Waste:

  • The Environmental Protection Commission proposed to adopt a new Iowa Admin. Code ch. 111, Annual Reports of Solid Waste Environmental Management Systems. The rule would implement a law that creates a solid waste environmental management systems program and requires solid waste planning areas in environmental management areas to submit an annual compliance report. There will be a public hearing January 11, 2012, and the deadline for written comment is January 23. See http://www.legis.state.ia.us/aspx/ACODOCS/DOCS/12-14-2011.Bulletin.pdf (pp. 833-36).

Water:

  • The Environmental Protection Commission amended Iowa Admin. Code ch. 40, Rules of Practice; ch. 41, Water Supplies; ch. 42, Public Notification, Public Education, Consumer Confidence Reports, Reporting, and Record Maintenance; ch. 24, Design and Operation; and ch. 83, Laboratory Certification. Changes incorporate federal regulations by reference. See http://www.legis.state.ia.us/aspx/ACODOCS/DOCS/12-14-2011.Bulletin.pdf (pp. 855-57).

NEBRASKA

Energy:

Hazardous & Solid Waste:

NEVADA

Energy:

  • The Public Utilities Commission proposed to amend Nev. Admin. Code §701B, relating to renewable energy systems. Changes would alter provisions relating to the Solar Thermal Systems Demonstration Program. In addition, the amendments would revise provisions relating to capacity goals for the Wind Energy Systems Demonstration Program and the Waterpower Energy Systems Demonstration Program. See http://www.leg.state.nv.us/register/2011Register/R083-11P.pdf.

NEW YORK

Air:

  • The Department of Environmental Conservation proposed to amend N.Y. Comp. Codes R. & Regs. tit. 6, §248, Conforming the Requirement for Best Available Retrofit Technology to Recent Statutory Changes and Court Decisions. Changes would make Part 248 consistent with the amendments to New York Environmental Conservation Law §19-0323 and recent court decisions. There will be public hearings January 17-19, 2012, and the deadline for comment is January 26. See http://www.dos.ny.gov/info/register/2011/dec14/pdfs/rules.pdf (pp. 7-11).

Hazardous & Solid Waste:

  • The Department of Environmental Conservation proposed to amend N.Y. Comp. Codes R. & Regs. tit. 6, §§200 & 219, Sewage Sludge Incineration Units. There will be public hearings January 17-19, 2012, and the deadline for comment is January 26. See http://www.dos.ny.gov/info/register/2011/dec14/pdfs/rules.pdf (pp. 11-16).

TEXAS

Water:

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

INTERNATIONAL

BRAZIL TO FILE CIVIL SUIT AGAINST OIL COMPANIES

Brazilian federal prosecutors have filed a civil suit against Chevron and Transocean seeking $10.6 billion from Chevron and aiming to suspend both companies from operating in the country. The suit is in response to a leak in November at Chevron's Fade site, which, according to a statement from the prosecutor's office, demonstrated a lack of planning and environmental management by the companies. Chevron responded that the spill was halted in four days with minimal damage to the environment. But public outrage at Chevron, which also currently faces charges in Ecuador due to former Texaco operations, may indicate that the case is politically motivated. The oil company has already been fined $28 million for the spill. A former oil agency official said the case entered "new territory," as the prosecutor's office becomes a national watchdog against environmental damage and corruption. Brazil's legal system allows a large number of appeals, so Chevron and Transocean could both operate for years even if the case is ultimately successful, but the suit could slow the production of a recently discovered 50 billion barrel offshore oil reserve. For the full story, see http://www.reuters.com/article/2011/12/15/us-chevron-transocean-idUSTRE7BE03B20111215. For a previous story on the spill, see http://elr.info/UPDATE/archive/update41-33.cfm#international.

AUSTRALIA TO DROP RULE LIMITING POWER PLANT GHGS

A long awaited energy policy paper from Martin Ferguson, Australia's Minister for Resources and Energy, said that an emissions standard for new power plants, a campaign promise that Prime Minister Julia Gillard said would end the building of "dirty" power plants, had become redundant in the face of the nation's carbon market. The Labor Party's proposed regulations would have required newly built power plants to emit less than .86 tons of carbon dioxide per megawatt hour and be carbon capture and storage ready. However, Ferguson said that the issue had changed due to the new market mechanism. The paper also cast doubts on the nation's nuclear future, stating that Gillard "unambiguously" did not support nuclear, but that a future government may hold a different view. For the full story, see http://www.smh.com.au/national/dirty-power-plant-rules-abandoned-20111213-1ot4h.html.

CANADA, OUT OF KYOTO, STILL HAS OBLIGATION TO UN

Canada is still legally obligated to cut emissions despite its pullout of Kyoto, the United Nations climate chief said Tuesday. "Whether or not Canada is a party to the Kyoto Protocol, it has a legal obligation under the [U.N. framework on climate change] convention to reduce its emissions, and a moral obligation to itself and future generations to lead in the global effort," said chief Christiana Figueres. Emissions in Canada are estimated to have risen over 20 percent between 1990 and 2009, and the country would have been liable for $13.6 billion under the terms of the Kyoto Protocol. According to Environment Minister Peter Kent, complying now would mean removing every "vehicle of every kind from Canadian roads, or closing down the entire farming and agricultural sector and cutting heat to every home, office, hospital, factory and building in Canada." For the full story, see http://www.reuters.com/article/2011/12/13/us-climate-canada-idUSTRE7BC2BW20111213. For the story on Canada's withdraw, see http://www.montrealgazette.com/business/Canada+formally+quits+Kyoto+accord/5851028/story.html.

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

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