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Weekly Update Volume 41, Issue 5

02/14/2011

LITIGATION 

CWA, IMPAIRED WATER BODIES, STANDING:

The Ninth Circuit held that a timber company has standing to challenge EPA's decision to retain the Redwood Creek in Northern California as an impaired water body under CWA §303(d). The company has suffered a reduction in the economic value of its property in the Redwood Creek watershed, and the company submitted two declarations by forestry experts, testifying to the property value reductions. In addition, the company established a causal connection between its injury-in-fact and EPA's retention of Redwood Creek as an impaired water body. The company alleged specific facts plausibly explaining causality and supported by competent declarations. Lastly, the company's claim is redressable. If the company is ultimately successful in showing that EPA's listing of Redwood Creek was arbitrary or capricious, the district court would have the power under the APA to grant the declaratory judgment and injunctive relief the company requests--removing Redwood Creek from the §303(d) impaired water bodies list. Such removal would resolve the injury the company has allegedly experienced from its property's proximity to a §303(d) impaired water body. Barnum Timber Co. v. United States Environmental Protection Agency, No. 08-17715, 41 ELR 20088 (9th Cir. Feb. 3, 2011).


CWA, NPDES PERMITS, RCRA:

A district court held that an environmental group may go forward with its CWA claim against a gas and electric company for unpermitted stormwater discharges from its service yards, but dismissed the group's RCRA claim. The company filed a motion to dismiss, arguing that its service yards do not require NDPES permits under the CWA. But the company failed to show that its service yards could only be classified under SIC Code 49 for which NPDES permits are not required. Consequently, the court also denied the company's motion to dismiss the group's claim for failing to obtain NPDES permits because this claim depends on whether the service yards are subject to the NPDES requirements. But the court dismissed the group's RCRA claim because the complaint contained virtually no factual allegations demonstrating that the company is a generator of solid waste. Ecological Rights Foundation v. Pacific Gas & Electric Co., No. C 10-0121 RS, 41 ELR 20089 (N.D. Cal. Feb. 4, 2011) (Seeborg, J.).


NEPA, NATIONAL FORESTS, ROADS:

A district court held that the U.S. Forest Service's travel management plan for the Salmon-Challis National Forest violates NEPA. Environmental groups argued that the travel plan fails to ensure that motor vehicle use is properly sited and managed on the Forest in order to minimize adverse environmental impacts. The Forest Service, meanwhile, argued that the plan drastically reduces the miles of roads and trails open to motorized use and reflects a fair compromise among diverse user groups. The court upheld the Forest Service's determinations concerning the cumulative impact of past motorized use and the range of action alternatives proposed. Nevertheless, the Forest Service's decision adopting the travel plan for the Forest is arbitrary and capricious because the administrative record does not reflect that the Forest Service: (1) considered the possible cumulative impact of routes less than one-half mile long on the recommended wilderness areas and inventoried roadless areas; (2) chose routes with the objective of minimizing effects; or (3) considered the site-specific concerns environmental groups raised in the comment process. In addition, the record of decision must be amended to clarify that it does not include a minimum road system determination for the forest. Idaho Conservation League v. Guzman, No. CV 4:10-26-E-REB, 41 ELR 20090 (D. Idaho Feb. 4, 2011) (Bush, J.).


INTERNATIONAL COURTS, DISCOVERY:

The Third Circuit, in a $113 billion lawsuit against an oil company concerning environmental pollution in the Amazon, affirmed in part and vacated in part a lower court order granting the oil company's application to engage in discovery for use in a proceeding before an Ecuadorian court under 28 U.S.C. §1782(a). The company intends to use the evidence that it uncovers in an attempt to show the Ecuadorian court that the plaintiffs have engaged in fraud in the proceedings before that court. The lower court applied the appropriate standards in considering the company's §1782 application and correctly determined that the provision of documents to an Ecuadorian court-appointed expert to assess damages resulted in a waiver of any work-product protections and attorney-client privileges that might otherwise have precluded discovery of those documents. But the lower court's ruling that the crime-fraud exception to the attorney-client privilege was applicable, to the extent that the privilege was not waived, was too sweeping and has the potential to pierce the attorney-client privilege for documents that were not created or used in furtherance of the alleged fraud and thus are not subject to disclosure through the application of the exception. The court therefore vacated the lower court's determination with respect to the crime-fraud exception to the attorney-client privilege and remanded the case so the lower court can conduct an in camera review of the relevant documents and determine whether the crime-fraud exception to the attorney-client privilege is applicable to any of the documents and, if so, which ones. In re Chevron Corp., No. 10-2815, 41 ELR 20087 (3d Cir. Feb. 3, 2011).


TORTS, DUTY TO WARN:

A Pennsylvania appellate court held that an independent contractor hired to test emissions at a beryllium plant had no legal duty to warn third parties about the health risks stemming from those emissions. To be held liable under §324A of the Restatement (Second) of Torts, the consultant must have expressly undertaken a duty to protect the public before it can be held to have performed that duty negligently. The consultant undertook no such duty here. Although the contractor should have realized that it had an obligation to protect the community, the court's ruling that the contractor must have undertaken a duty to protect the community to be held liable for breach of that duty is consistent with the view held by many other jurisdictions. To hold otherwise would require that an independent consultant, hired to conduct testing and report the results to an owner of a facility, must report the results to the public if there is a need for remedial relief. Such a rule would inhibit owners of such a facility from hiring qualified, independent consultants to learn whether a dangerous condition exists, thereby impeding discovery and corrective action. Reeser v. NGK North American, Inc., No. 3275 EDA 2008, 41 ELR 20091 (Pa. Super. Ct. Jan. 24, 2011).


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


THE FEDERAL AGENCIES

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


AIR:



  • EPA proposed to retain the current NAAQS for carbon monoxide, except for network design requirements. 76 FR 8158 (2/11/11).

  • EPA proposed to update a portion of the outer continental shelf air regulations for Alaska. 76 FR 7518 (2/10/11).

  • EPA withdrew its adequacy finding of the 2010 particulate matter motor vehicle emission budget for the Maricopa County nonattainment area. 76 FR 7204 (2/9/11).

  • SIP Approvals: Alaska (PSD program update) 76 FR 7116 (2/9/11). Pennsylvania (conformity, contingency, and control measures for the Pennsylvania portion of the Philadelphia-Wilmington-Atlantic City moderate 1997 eight-hour ozone nonattainment area) 76 FR 6559 (2/7/11).

  • SIP Proposals: California (new source review permitting requirements for the Imperial County air pollution control district) 76 FR 7142 (2/9/11). Pennsylvania (attainment of the 1997 eight-hour ozone NAAQS for the Pittsburgh-Beaver Valley nonattainment area) 76 FR 6590 (2/7/11).

HAZARDOUS & SOLID WASTE:



  • EPA approved revisions to North Carolina's hazardous waste management program. 76 FR 6561 (2/7/11).

  • EPA approved revisions to Florida's hazardous waste management program. 76 FR 6564 (2/7/11).

  • EPA proposed to approve revisions to North Carolina's hazardous waste management program; see above for direct final rule. 76 FR 6594 (2/7/11).

  • EPA proposed to approve revisions to Florida's hazardous waste management program; see above for direct final rule. 76 FR 6594 (2/7/11).

MINING:



  • OSM proposed to approve an amendment to Pennsylvania's regulatory program under SMCRA that would remove a required amendment on land reclamation. 76 FR 6587 (2/7/11).

WATER:



  • EPA determined that perchlorate meets the SDWA's criteria for regulation as a contaminant. 76 FR 7762 (2/11/11).

  • EPA announced that it intends to approve revisions to Utah's public water system supervision program, except for Indian country. 76 FR 7845 (2/11/11).

WILDLIFE:



  • FWS designated approximately 2,947 acres in Los Angeles, Orange, Riverside, San Bernardino, and San Diego counties in California as critical habitat for thread-leaved brodiaea under the ESA. 76 FR 6848 (2/8/11).

  • FWS designated approximately 98,366 acres in Los Angeles, Orange, Riverside, San Bernardino, San Diego, Santa Barbara, and Ventura counties in California as critical habitat for the arroyo toad under the ESA. 76 FR 7246 (2/9/11).

  • FWS proposed to reclassify the wood bison from endangered to threatened throughout its range under the ESA. 76 FR 6734 (2/8/11).

  • FWS and the U.S. Forest Service proposed to establish regulations for hunting and trapping seasons, harvest limits, methods, and means related to taking of wildlife for subsistence uses during the 2012-2013 and 2013-14 regulatory years. 76 FR 6730 (2/8/11).

  • FWS announced a 90-day finding on a petition to revise critical habitat for the vernal pool fairy and tadpole shrimp under the ESA; the agency found that revision is not warranted. 76 FR 7528 (2/10/11).

  • FWS announced a 12-month finding on a petition to list the Pacific walrus as endangered or threatened and to designate critical habitat under the ESA; the agency found that listing is warranted but precluded by higher priority actions. 76 FR 7634 (2/10/11).

  • NOAA-Fisheries announced a 90-day finding on a petition to list the Texas pipefish as threatened or endangered under the ESA; the agency found that listing is not warranted. 76 FR 7820 (2/11/11).

DOJ NOTICE OF SETTLEMENT:



  • United States v. Rutherford Oil Corp., No. 3:08-cv-231 (S.D. Tex. Feb. 2, 2011). Settling CWA defendants that discharged pollutants into waters of the United States without a permit must pay a civil penalty and must conduct a restoration project. 76 FR 6826 (2/8/11).

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


THE CONGRESS

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


Bills Introduced



  • S. 292 (Murkowski, R-Alaska) (federal land) would resolve the claims of the Bering Straits Native Corporation and the state of Alaska to land adjacent to Salmon Lake in the state of Alaska and provide for the conveyance of certain other public land to the Bering Straits Native Corporation under the Alaska Native Claims Settlement Act. 157 Cong. Rec. S569 (daily ed. Feb. 4, 2011). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 302 (Murkowski, R-Alaska) (oil pipeline, national parks) would authorize the Secretary of the Interior to issue right-of-way permits for a natural gas transmission pipeline in nonwilderness areas within the Denali National Park.157 Cong. Rec. S629 (daily ed. Feb. 8, 2011). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 313 (Murkowski, R-Alaska) (microhydro) would authorize the Secretary of the Interior to issue permits for a microhydro project in nonwilderness areas within the Denali National Park and Preserve, and to acquire land for Denali National Park and Preserve from Doyon Tourism, Inc.157 Cong. Rec. S642 (daily ed. Feb. 10, 2011). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 323 (Carper, D-Del.) (federal land) would establish the First State National Historical Park in the state of Delaware.157 Cong. Rec. S642 (daily ed. Feb. 10, 2011). The bill was referred to the Committee on Energy and Natural Resources.

  • H.R. 533 (Calvert, R-Cal.) (federal land) would provide for the conveyance of a small parcel of Natural Resources Conservation Service property in Riverside, California. 157 Cong. Rec. H549 (daily ed. Feb. 8, 2011). The bill was referred to the Committee on Agriculture.

  • H.R. 550 (Hinojosa, D-Tex.) (water conservation projects) would amend the Lower Rio Grande Valley Water Resources Conservation and Improvement Act of 2000 to authorize additional projects and activities under that Act. 157 Cong. Rec. H550 (daily ed. Feb. 8, 2011). The bill was referred to the Committee on Natural Resources.

  • H.R. 553 (Markey, D-Mass.) (drinking water) would amend the SDWA regarding an endocrine disruptor screening program. 157 Cong. Rec. H550 (daily ed. Feb. 8, 2011). The bill was referred to the Committee on Energy and Commerce.

  • H.R. 574 (Young, R-Alaska) (fisheries) would prohibit the Secretary of the Interior and the Secretary of Commerce from authorizing commercial finfish aquaculture operations in the exclusive economic zone except in accordance with a law authorizing such action. 157 Cong. Rec. H598 (daily ed. Feb. 9, 2011). The bill was referred to the Committee on Natural Resources.

  • H.R. 581 (Christensen, D-V.I.) (federal land) would convey certain submerged lands to the government of the Virgin Islands. 157 Cong. Rec. H598 (daily ed. Feb. 9, 2011). The bill was referred to the Committee on Natural Resources.

  • H.R. 587 (Grijalva, D-Ariz.) (land conservation) would amend the Public Lands Corps Act of 1993 to expand the authorization of the Secretaries of Agriculture, Commerce, and the Interior to provide service opportunities for young Americans; help restore the nation's natural, cultural, historic, archaeological, recreational and scenic resources; train a new generation of public land managers and enthusiasts; and promote the value of public service. 157 Cong. Rec. H598 (daily ed. Feb. 9, 2011). The bill was referred to the Committees on Natural Resources, Agriculture, and Education and the Workforce.

  • H.R. 601 (Blumenauer, D-Or.) (oil subsidies) would amend the Internal Revenue Code of 1986 to repeal fossil fuel subsidies for large oil companies. 157 Cong. Rec. H678 (daily ed. Feb. 10, 2011). The bill was referred to the Committee on Ways and Means.

  • H.R. 608 (Reichert, R-Wash.) (federal land) would expand the Alpine Lakes Wilderness in the state of Washington and designate the Middle Fork Snoqualmie River and Pratt River as wild and scenic rivers. 157 Cong. Rec. H679 (daily ed. Feb. 10, 2011). The bill was referred to the Committee on Natural Resources.

  • H.R. 612 (Garamendi, D-Cal.) (offshore drilling) would amend the Outer Continental Shelf Lands Act to permanently prohibit the conduct of offshore drilling on the outer continental shelf off the coast of California, Oregon, and Washington. 157 Cong. Rec. H679 (daily ed. Feb. 10, 2011). The bill was referred to the Committee on Natural Resources.

  • H.R. 617 (Matheson, D-Utah) (radioactive waste) would prohibit the importation of certain low-level radioactive waste into the United States. 157 Cong. Rec. H679 (daily ed. Feb. 10, 2011). The bill was referred to the Committee on Energy and Commerce.

  • H.R. 618 (Boswell, D-Iowa) (rare earth materials) would develop a rare earth materials program and amend the National Materials and Minerals Policy, Research and Development Act of 1980. 157 Cong. Rec. H679 (daily ed. Feb. 10, 2011). The bill was referred to the Committee on Science, Space, and Technology.

  • H.R. 624 (Carney, D-Del.) (federal land) would establish the First State National Historical Park in the state of Delaware. 157 Cong. Rec. H679 (daily ed. Feb. 10, 2011). The bill was referred to the Committee on Natural Resources.

  • H.R. 627 (Cleaver, D-Miss.) (energy efficiency) would require energy audits to be conducted for single- and multi-family homes purchased with federally related housing loans. 157 Cong. Rec. H679 (daily ed. Feb. 10, 2011). The bill was referred to the Committee on Financial Services.

  • H.R. 643 (Polis, D-Colo.) (federal land) would provide for the exchange of certain land located in the Arapaho-Roosevelt National Forests in the state of Colorado. 157 Cong. Rec. H680 (daily ed. Feb. 10, 2011). The bill was referred to the Committee on Natural Resources.

  • H.R. 647 (Simpson, R-Idaho) (federal land) would authorize the Secretary of the Interior to permit an exchange of land between the city of Ketchum and the Blaine County School District, Idaho. 157 Cong. Rec. H680 (daily ed. Feb. 10, 2011). The bill was referred to the Committee on Natural Resources.

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:

Connecticut
Iowa
New Hampshire

New Jersey
Ohio
Pennsylvania

CONNECTICUT


Wildlife:



  • The Department of Environmental Protection proposed to amend Conn. Gen. Stat. §§26-48a-1, 26-55-1, 26-66-4, 26-112-43, 26-112-44, 26-112-45, 26-112-46, 26-112-142a-1, and 26-142a-12. Changes would alter stream designations and amend 14 different regulations relating to nuisance species and hunting and fishing control. There will be a public hearing on March 16, 2011, and the deadline for written comment is March 30. See http://www.ct.gov/dep/cwp/view.asp?A=2586&Q=473468.

IOWA


Air:



  • The Environmental Protection Commission proposed to amend 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, and to adopt ch. 30, Fees. Changes would raise the fees the department is allowed to collect for air pollutants. The department proposed five separate options for closing a projected budget deficit, which include raising the fee cap and removing fee ceilings. There will be a public hearing on March 11, 2011. See http://www.legis.state.ia.us/aspx/ACODOCS/DOCS/02-09-2011.Bulletin.pdf (pp. 1116-23).

Water:



  • The Environmental Protection Commission proposed to amend Iowa Admin. Code ch. 64, Wastewater Construction and Operation Permits. The rule would allow reissuance of NPDES General Permit No. 5 for mining and processing facilities. There will be a public hearing on March 8, 2011, and the deadline for written comments is March 16. See http://www.legis.state.ia.us/aspx/ACODOCS/DOCS/02-09-2011.Bulletin.pdf (pp. 1123-25).

  • The Environmental Protection Commission amended Iowa Admin. Code ch. 60, Scope of Title-Definitions-Forms-Rules of Practice, ch. 64, Wastewater Construction and Operation Permits, and ch. 66, Pesticide Application to Waters. The rule allows for the use of a new general permit that authorizes the discharge of biological and chemical pesticides that leave a residue to waters of the United States. This rule is required by a U.S. Sixth Circuit Court of Appeals decision. See http://www.legis.state.ia.us/aspx/ACODOCS/DOCS/02-09-2011.Bulletin.pdf (pp. 1146-50).

NEW HAMPSHIRE


Air:



  • The Department of Environmental Services proposed to readopt and amend Env-A 700, Permit Fee System. Changes include a clarification that the department is not obligated to issue a permit if outstanding fees are due and a revision to the definition of "regulated air pollutant" to clarify that the term includes regulated toxic air pollutants. There will be a public hearing on February 25, 2011, and the deadline for comment is March 7. See http://www.gencourt.state.nh.us/rules/register/2011/february-4-11.pdf (pp. 3-4).

NEW JERSEY


Land Use:



  • The Department of Environmental Protection proposed to readopt N. J. Admin. Code 7:36, Green Acres Program Rules. The program ensures that there is an adequate supply of lands for public outdoor recreation and conservation. The expiration date of the rules has been extended to July 2, 2011, and the deadline for comment is April 8. See http://www.lexisnexis.com/njoal/ (43 N.J.R. 252(a)).

  • The Department of Environmental Protection adopted amendments to N. J. Admin. Code 7:50-6.46, Forestry Standards. The amendments provide specific limitations on "disking" as a means of site preparation. The changes were adopted January 13, 2011, and became effective February 7. See http://www.lexisnexis.com/njoal/ (43 N.J.R. 301(a)).

Water:



  • The Department of Environmental Protection adopted amendments to N. J. Admin. Code 7:10-3.10, Safe Drinking Water Act rules. Changes address measures to increase permit efficiency and update penalty and enforcement provisions. See http://www.lexisnexis.com/njoal/ (43 N.J.R. 289(a)).

OHIO


Water:



  • The Environmental Protection Agency proposed to revise Ohio Admin. Code 3745-34-11, relating to underground injection control wells. Changes would allow, without a permit and in specific instances, the minimal discharge of wastewater resulting from the treatment of drinking water. All such discharges are currently required to have a permit. There will be a public hearing on March 8, 2011, and the deadline for written comment is March 7. See http://www.registerofohio.state.oh.us/pdfs/phn/3745_NO_130999_20110202_1012.pdf.

PENNSYLVANIA


Water:



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


INTERNATIONAL

EU, BEHIND ON ENERGY TARGETS, MAY STIFFEN GOALS

After hearing that the European Union (EU) was set to fall halfway short of its 20% energy efficiency savings by 2020 goal, leaders of the 27 member states overhauled its energy strategy to develop one that may set it on track for 25% carbon dioxide (CO2) emissions cuts by 2020. Currently, the EU as a whole is set to achieve a savings of only 8.9%, less than half its goal, while Germany, Hungary, and Poland will likely fall short by over a third. According to Reuters, Energy Commissioner Guenther Oettinger is expected to give EU leaders two years to attempt to meet goals before proposing legally binding targets. With the budgets of member states strained, governments have hesitated to make the upfront investments necessary to cut energy usage. However, the current plan could produce as many as two million jobs in the next 10 years, and increasing the energy efficiency of buildings, which consume about 40% of Europe's energy, would reduce the 40 billion euros EU states send abroad for gas every year. Legally binding efficiency targets would be similar to existing binding renewable fuel targets, which are faring better. A recent report from transmission systems operators indicated that biomass, wind, and hydro power may account for as much as 36% of energy consumed by 2020, well over the 20% targets. The change from fossil fuel could result in a CO2 emissions cut between 26% and 57% compared with 2009, the report said. For the story on the EU's failure to meet existing cuts, see http://www.reuters.com/article/2011/02/09/us-eu-energy-efficiency-idUSTRE71840Z20110209. For the story on new plans, see http://www.reuters.com/article/2011/02/11/us-eu-climate-cuts-idUSTRE71A3J720110211. For the story on renewable energy, see http://www.bloomberg.com/news/2011-02-10/wind-hydropower-biomass-may-account-for-36-of-eu-s-energy-needs-by-2020.html. For a story on the effectiveness of energy efficiency programs, see http://www.bbc.co.uk/news/science-environment-12417359.


CHINA'S VICE PREMIER SAYS NATION MUST FIGHT POLLUTION

In remarks published last week, Vice Premier Li Keqiang stressed how critical energy concerns are to China's economic and foreign policy goals and suggested that China must develop a "polluters pay" system of tax reform. Li spoke to a group of scientists and government officials in December, but the state media did not publish his remarks until last Friday. China's five-year plan, to be finalized by parliament next month, must "establish an effective system of incentives and constraints so that law-abiding businesses gain economically and law-breaking businesses pay a heavy price," said Li. The vice premier also stressed that environmental problems would dampen domestic development efforts and that dependence on coal would be detrimental to foreign policy. The release of the remarks follows reports that China may be investing as much as $1.5 trillion in low carbon industries over the next five years. For the full story, see http://www.reuters.com/article/2011/02/11/us-china-energy-pollution-idUSTRE71A0PI20110211. For the story on China's low carbon investments, see http://www.businessgreen.com/bg/news/2023549/china-low-carbon-heart-plan.


UK HALTS CONTROVERSIAL FOREST SALES

Britain's proposed sale of 15% of its publicly owned forest has been delayed while the government attempts to protect public access and biodiversity. The Forestry Commission's plans to sell 258,000 hectares of UK forests have been met with public opposition and cross-party criticism, and the chief of the Royal Society for the Protection of Birds, which may benefit from the sale by taking over a "heritage forest," said that the New Forest "cannot be run by charity." The forests were slated to bring in as much as 100 million pounds to close its record deficit. While the Labour shadow environment secretary called the halted sale a "panic measure" and a "partial U-turn" that would fail to "silence the protests," the Department for Environment, Food and Rural Affairs has stressed that the lands will not be sold if it cannot assure public access. For the full story, see http://www.telegraph.co.uk/earth/earthnews/8319103/Panicking-ministers-forest-retreat.html and http://www.clickgreen.org.uk/news/national-news/121894-uk-govt-calls-temporary-halt-to-its-big-forest-sell-off.html. For the remarks of the chief of the Royal Society for the Protection of Birds, see http://www.bbc.co.uk/news/uk-england-hampshire-12427961.


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


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