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Weekly Update Volume 41, Issue 6

02/28/2011

LITIGATION 

WATER RIGHTS, KLAMATH RIVER BASIN:

The Federal Circuit vacated and remanded a lower court decision dismissing breach of contract, takings, and Klamath River Basin Compact claims brought against the U.S. government by agricultural landowners and water, drainage, and irrigation districts in Oregon and California. The plaintiffs, who use water in the Klamath River Basin in southern Oregon and northern California, filed suit after the Bureau of Reclamation halted the delivery of irrigation water in 2001 pursuant to its responsibilities under the ESA due to severe drought conditions and its impact on endangered wildlife. The lower court dismissed the claims. On appeal, the Federal Circuit certified three questions pertaining to the plaintiffs' takings and Compact claims to the Oregon Supreme Court due to unsettled questions of state law. Having reviewed the certification decision, the court remanded the case for the lower court to determine whether plaintiffs have asserted cognizable property interests. Because the parties do not dispute that plaintiffs have put Klamath Project water to beneficial use and that the United States acquired the pertinent water rights for plaintiffs' use and benefit, the court should address whether contractual agreements between plaintiffs and the government have clarified, redefined, or altered the foregoing beneficial relationship so as to deprive plaintiffs of cognizable property interests for purposes of their takings and Compact claims. As for the breach of contract claims, on remand the lower court must determine whether the government can establish that contract performance was impossible. Klamath Irrigation District v. United States, No. 2007-5115, 41 ELR 20094 (Fed. Cir. Feb. 17, 2011).


WETLANDS, PREEMPTION:

The Second Circuit held that the Connecticut Inland Wetlands and Watercourses Act (IWWA) and the Connecticut Environmental Protection Act (CEPA), as well as municipal regulations that impose permit requirements for cutting trees on protected wetlands, are not preempted by the Federal Aviation Act (FAA) or the Airline Deregulation Act (ADA). The case arose after an airport sought to cut some trees on its property, part of which is protected wetlands, because they obstruct air navigation. Under Connecticut law and municipal regulations, a person must apply for permission to undertake activities affecting wetlands. But the airport argued that because the trees at issue here qualify as obstructions, they are hazards under the FAA regulations and the otherwise applicable state and local statutory and regulatory framework establishing the wetlands permit process is preempted. The court has previously stated in dicta that U.S. Congress has established its intent to occupy the entire field of air safety, thereby preempting state regulation of that field. However, the state and local statutes, regulations, and actions at issue here are neither field-preempted by the language of the FAA, nor expressly preempted by the ADA. The airport is not federally licensed under the FAA; it is a small private airport with no federal funding. As such, there is no federal interest in the airport's proposed actions. Moreover, the IWWA and CEPA are environmental laws that do not refer to aviation or airports. Further, the impact on air carriers of the laws and regulations at issue here, if any, is too remote to be expressly preempted under the terms of the ADA. Accordingly, the airport must observe the appropriate state procedures before it can cut down the trees. Goodspeed Airport LLC v. East Haddam Inland Wetlands & Watercourses Comm'n, No. 10-516-cv, 41 ELR 20095 (2d Cir. Feb. 10, 2011).


NEPA, ATOMIC ENERGY ACT:

The Ninth Circuit, in a case concerning the NRC's approval of a proposed interim spent fuel storage installation at the Diablo Canyon Power Plant, held that the NRC's refusal to grant a nonprofit group access to sensitive information in a closed adjudicatory hearing was not arbitrary, capricious, an abuse of discretion, or otherwise contrary to law. The group sought access to the documents in connection with their claim that the NRC erred in determining that an EIS addressing the likelihood and potential consequences of a terrorist attack at the plant was unnecessary. Understanding that its request could involve classified or sensitive information, the group sought protected access to these materials in a closed hearing. But neither NEPA nor the Atomic Energy Act requires such a hearing, and the NRC did not abuse its discretion by concluding that holding one would present unacceptable security risks. The court also held that in its supplemental EA, the NRC considered the relevant factors and reasonably concluded that an EIS was not necessary. San Luis Obispo Mothers for Peace v. Nuclear Regulatory Commission, No. 08-75058, 41 ELR 20093 (9th Cir. Feb. 15, 2011).


DEEPWATER DRILLING, INJUNCTIONS:

A district court ordered the Bureau of Ocean Exploration Management, Regulation, and Enforcement to act on five pending deepwater drilling permit applications within 30 days. The permit applicant met all the necessary requirements for a preliminary injunction. The Outer Continental Shelf Lands Act and the APA require the government to act expeditiously on drilling permits and to not curtail drilling unpredictably or indefinitely. The time delays at issue here, however, are unreasonable. It is undisputed that before the Deepwater Horizon disaster, permits were processed, on average, in two weeks' time. In stark contrast, the five permits at issue have been pending from four to some nine months. In addition, the permit applicant has shown a substantial likelihood of irreparable injury if preliminary relief is not granted. The applicant has also shown the threatened injury outweighs any harm that will result to the government if preliminary relief is granted and that the injunction will not disserve the public interest. Ensco Offshore Co. v. Salazar, No. 10-1941, 41 ELR 20092 (E.D. La. Feb. 17, 2011) (Feldman, J.).


CAA, SIP CALL, GREENHOUSE GASES:

The Fifth Circuit granted EPA's request to transfer to the D.C. Circuit Texas' petition for review of the Agency's call for revisions to the state's SIP because its prevention of significant deterioration (PSD) provisions fail to control greenhouse gases. Greenhouse gases have not always been part of the PSD program, and states' SIPs thus have not always been required to regulate them. But after EPA determined that greenhouse gases were part of the PSD program, it found that any SIPs that fail to regulate them, including Texas' SIP, were inadequate. The CAA provides that challenges to nationally applicable regulations promulgated under the Act must be filed in the D.C. Circuit. The SIP call at issue in this case makes its national reach clear: it avowedly applies to all states whose implementation plans do not apply the Act's PSD program to greenhouse-gas emitting sources. Further, the 13 states affected by the SIP call span seven different EPA regions, seven different federal circuits, and four different time zones. Thus, the SIP call is not regional. It is a nationally applicable regulation, and the petition challenging it should be heard before the D.C. Circuit. Texas v. United States Environmental Protection Agency, No. 10-60961, 41 ELR 20100 (5th Cir. Feb. 24, 2011).


CERCLA, COST RECOVERY:

A district court dismissed a CERCLA §107 claim brought by a group of real estate developers who purchased contaminated property from a manufacturing company in 1986. Prior to purchasing the property, the group hired an environmental consultant who performed a cursory environmental audit. The group sought to sell the property in 1991, but was unable to secure a buyer due to concerns about environmental contamination that arose during environmental audits. The group did not report the results of the audit to the state nor take remedial action. Three years later, the state environmental agency began investigating the site and ultimately filed an environmental enforcement action against both the group and the manufacturing company. While the matter was pending before the agency, the group filed the instant action against the manufacturing company. The group, however, cannot recover its costs under §107 because the group failed to establish that its costs were, in fact, response costs. Instead they were incurred for the groups' own business purposes or were incurred in the course of attempting to convince the state that it had no liability for the releases. It failed to provide specifics concerning its alleged "removal" and "remediation" costs. Nor can it identify a "release" or "threatened release" by the company that created an imminent threat to which the group responded. And its reliance on the "innocent purchaser" defense is unreasonable given the facts of this case. 500 Associates, Inc. v. Vermont American Corp., No. 3:96CV-847-S, 41 ELR 20097 (W.D. Ky. Feb. 7, 2011) (Simpson, J.).


CERCLA, INSURANCE:

A district court held that an aerospace and technology company is not entitled to insurance coverage by "operation of law" for certain environmental liabilities under CERCLA on policies issued by an insurance company to the prior owner of the contaminated site at issue. The company's operation of law argument fails. Adopting the company's notion that insurance automatically transfers by operation of law to any successor owners of the property simply by virtue of their becoming liable for its environmental liabilities would create an absurd regime in which an insurer who issued a general liability policy to the property owner many years ago automatically becomes the insurer for every single subsequent buyer of the property. No public policy reason exists for overriding the contracts that the insurance company and the previous property owner negotiated many years ago. The previous owner remains potentially subject to CERCLA liability for the remediation of the site. If the company has already paid for the cleanup, it has recourse against the previous owner for contribution. Lockheed Martin Corp. v. Goodyear Tire & Rubber Co., No. 5:10 CV 673, 41 ELR 20099 (N.D. Ohio Feb. 11, 2011) (Dowd, Jr., J.).


PRIMARY JURISDICTION DOCTRINE, MOTION TO DISMISS:

A district court held that residents' state law tort claims against the former owners of an industrial site should not be dismissed under the "primary jurisdiction" doctrine. The residents filed suit against the former owners for allegedly contaminating their property and persons with toxic, carcinogenic, and otherwise "ultra hazardous" chemicals. Given EPA's involvement at the site, the owners argued that the case should be dismissed under the doctrine of primary jurisdiction. But while EPA undoubtedly has expertise in at least some of the technical and factual issues in this case, the companies failed to provide sufficient information about EPA's investigation and remediation efforts to warrant a dismissal or stay at this early stage of the litigation under the primary jurisdiction doctrine. Moreover, the residents' claims for monetary damages fall within the province of the courts rather than EPA. Nevertheless, the court dismissed the residents' claims for medical monitoring, civil conspiracy, and punitive damages for failure to state a claim. Spears v. Chrysler, No. 3:08CV331, 41 ELR 20098 (S.D. Ohio, Feb. 8, 2011) (Rice, J.).


NEW YORK ENVIRONMENTAL PROTECTION AND SPILL COMPENSATION FUND:

A New York appellate court held that a property owner who had no knowledge of a UST on his property when he purchased it and did nothing to contribute to the contamination is nevertheless strictly liable as a discharger and not entitled to reimbursement from the New York Environmental Protection and Spill Compensation Fund. The property owner's liability as a discharger is not predicated on his status as a landowner but, rather, as the owner of the system from which the discharge occurred. Although the orphan tank was installed by an entity other than the property owner and he took steps in an attempt to remove all USTs from the property prior to purchasing it, it remains undisputed that the orphan tank remained in the ground when he purchased the property. Moreover, he bought the property in "as is" condition and failed to submit any proof that the transfer of the land did not include fixtures, and the record is otherwise devoid of any evidence that, as the title owner of the real estate, the property owner is not the owner of the orphan tank. As such, even though the property owner was "unaware of and did nothing to contribute to the contamination," he is strictly liable as a discharger and not entitled to reimbursement from the Fund. Alternatively, even if the contamination did not occur while the property owner was the owner, but was instead discharged from USTs that were removed prior to him taking title to the property, his claim for reimbursement was untimely. Veltri v. New York State Office of the Comptroller, No. 509741, 41 ELR 20096 (N.Y. Sup. Ct. Feb. 10, 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 added the gold mine ore processing and production area source category to the list of those regulated under the CAA due to mercury emissions. 76 FR 9450 (2/17/11).

  • EPA proposed amendments and revisions to the NESHAP for primary lead smelting due to residual risk and technology reviews, a recent court decision, and a petition for rulemaking. 76 FR 9410 (2/17/11).

  • EPA withdrew its previous adequacy finding on the 2012 motor vehicle emission budgets for Connecticut's two eight-hour ozone nonattainment areas. 76 FR 8736 (2/15/11).

  • EPA determined that Arizona failed to submit an SIP for the Maricopa serious particulate matter nonattainment area by the required deadline. 76 FR 8300 (2/14/11).

  • EPA proposed a supplemental federal implementation plan for the Four Corners power plant on the Navajo Nation in New Mexico to reduce visibility-impairing pollution. 76 FR 10530 (2/25/11).

  • EPA proposed to find that Iowa's SIP is substantially inadequate to maintain the 2006 24-hour NAAQS for fine particulate matter and proposed to finalize a time line for revision. 76 FR 9706 (2/22/11).

  • EPA announced the availability of the draft document, The Inventory of U.S. Greenhouse Gas Emissions and Sinks: 1990-2009. 76 FR 10026 (2/23/11).

  • EPA announced the availability of a document titled, Policy Assessment for the Review of the Secondary National Ambient Air Quality Standards for Oxides of Nitrogen and Sulfur. 76 FR 8735 (2/15/11).

  • SIP Approvals: District of Columbia (update of materials available for public inspection) 76 FR 9652 (2/22/11). Illinois (waiver of nitrogen oxide reasonably available control technology requirements) 76 FR 9655 (2/22/11). Kansas (PSD permit requirements) 76 FR 9658 (2/22/11). Maryland (definition of "fuel-burning equipment") 76 FR 9650 (2/22/11); (volatile organic compound (VOC) emissions from industrial solvent cleaning operations) 76 FR 9656 (2/22/11). Texas (VOC emissions from consumer-related sources) 76 FR 10249 (2/24/11). Virginia (definition of VOC) 76 FR 8298 (2/14/11).

  • SIP Proposals: Colorado (partial approval of interstate transport revisions) 76 FR 8326 (2/14/11). Louisiana (revisions for 1996-2006) 76 FR 10544 (2/25/11). Maryland (definition of "fuel-burning equipment"; see above for direct final rule) 76 FR 9705 (2/22/11). Massachusetts (carbon monoxide maintenance plan for Lowell) 76 FR 9281 (2/17/11). Texas (VOC emissions from consumer-related sources; see above for direct final rule) 76 FR 10295 (2/24/11). Virginia (definition of VOC; see above for direct final rule) 76 FR 8330 (2/14/11).

GENERAL:



  • EPA seeks public comment on its plan for periodic retrospective review of regulations as called for by Executive Order No. 13563, Improving Regulation and Regulatory Review. 76 FR 9988 (2/23/11).

HAZARDOUS & SOLID WASTE:



  • EPA entered into a proposed administrative settlement under CERCLA that requires the settling party to pay $25,000 in U.S. response costs incurred at the Auclair Superfund site on the Torres Martinez Desert Cahuilla Indian Reservation in Riverside County, California. 76 FR 9349 (2/17/11).

  • EPA entered into a settlement agreement under CERCLA determining that the settling party is unable to pay U.S. response costs incurred at the 10000 Havana Street Superfund site in Henderson, Colorado. 76 FR 10028 (2/23/11).

  • EPA Region IX proposed to approve Arizona's municipal solid waste landfill permit program. 76 FR 9772 (2/22/11).

MINING:



  • OSM approved an amendment to Alabama's regulatory program under SMCRA concerning licensing. 76 FR 9642 (2/22/11).

  • OSM proposed to approve an amendment to Alabama's regulatory program under SMCRA concerning licensing; see above for direct final rule. 76 FR 9700 (2/22/11).

PUBLIC LAND:



  • The U.S. Forest Service seeks public comment on a proposed new rule to guide land and resource management planning for all units of the National Forest System. 76 FR 8480 (2/14/11).

WATER:



  • EPA seeks public comment on proposed rulemaking to address water quality conditions affecting aquatic resources in the San Francisco Bay/Sacramento-San Joaquin Delta Estuary in California. 76 FR 9709 (2/22/11).

WILDLIFE:



  • FWS determined threatened status for the New Zealand/Australia distinct population segment of the southern rockhopper penguin under the ESA. 76 FR 9681 (2/22/11).

  • FWS proposed to designate approximately 6,906 acres in Bexar County, Texas, as critical habitat for nine invertebrates. 76 FR 9872 (2/22/11).

  • FWS announced a 90-day finding on a petition to list the sand verbena moth as endangered or threatened under the ESA; the agency found that listing may be warranted and initiated a status review. 76 FR 9309 (2/17/11).

  • FWS announced a 90-day finding on a petition to list the wild plains bison, or each of four distinct population segments, as threatened under the ESA; the agency found that listing is not warranted. 76 FR 10299 (2/24/11).

  • FWS announced a 90-day finding on a petition to list the unsilvered fritillary butterfly as threatened or endangered and to designate critical habitat under the ESA; the agency found that listing is not warranted. 76 FR 10310 (2/24/11).

  • FWS announced a 12-month finding on a petition to list Thorne's hairstreak butterfly as endangered under the ESA; the agency found that listing is not warranted. 76 FR 9991 (2/23/11).

  • FWS announced a 12-month finding on a petition to list Hamilton milkvetch, Flowers penstemon, Frisco buckwheat, Ostler's peppergrass, and Frisco clover as threatened or endangered under the ESA; the agency found that listing Hamilton milkvetch and Flowers penstemon is not warranted and that listing Frisco buckwheat, Ostler's peppergrass, and Frisco clover is warranted but precluded by higher priority actions. 76 FR 10166 (2/23/11).

  • FWS announced the availability of draft guidance on an eagle conservation plan. 76 FR 9529 (2/18/11).

  • FWS announced the availability of draft guidelines on wind energy that would supersede the 2003 voluntary, interim guidelines. 76 FR 9590 (2/18/11).

  • NOAA-Fisheries announced a 90-day finding on a petition to list Alabama shad as threatened or endangered and to designate critical habitat under the ESA; the agency found that listing is not warranted. 76 FR 9320 (2/17/11).

DOJ NOTICES OF SETTLEMENT:



  • United States v. Merced Power LLC, No. 1:11-cv-00241 (E.D. Cal. Feb. 14, 2011). A settling CAA defendant responsible for violations at its biomass electric-generating facilities in Merced, California, must pay a $492,000 civil penalty to the United States and the San Joaquin Valley unified air pollution control district, must install additional emissions monitoring equipment, and must comply with permit conditions over a two-year period or face stipulated penalties. 76 FR 9609 (2/18/11).

  • United States v. Ampersand Chowchilla Biomass, LLC, No. 1:11-cv-00242 (E.D. Cal. Feb. 14, 2011). A settling CAA defendant responsible for violations at its biomass electric-generating facilities in Madera, California, must pay a $343,000 civil penalty to the United States and the San Joaquin Valley unified air pollution control district, must install additional emissions monitoring equipment, and must comply with permit conditions over a two-year period or face stipulated penalties. 76 FR 9610 (2/18/11).

  • United States v. CEMEX, Inc., No. 3:11-cv-00037 (S.D. Ohio Feb. 10, 2011). Settling CAA defendants responsible for violations at a Portland cement manufacturing plant in Greene County, Ohio, must pay a $1,400,000 civil penalty to the United States and Ohio and must install and operate appropriate emission controls at their kiln. 76 FR 9052 (2/16/11).

  • United States v. Beazer East, Inc., No. 11-cv-1124 (E.D. Pa. Feb. 16, 2011). Settling CERCLA defendants responsible for violations at the Crater Resources Superfund site in Upper Merion Township, Pennsylvania, must pay $1,380,000 in U.S. response costs incurred at the site. 76 FR 10390 (2/24/11).

  • United States v. Eastwood Construction, LLC, No. 3:11-cv-83 (W.D.N.C. Feb. 15, 2011). Settling CWA defendants responsible for permit violations at residential construction sites in North Carolina and South Carolina must pay a $60,000 civil penalty and must undertake compliance programs to reduce the threat of stormwater discharges at the sites. 76 FR 10390 (2/24/11).

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. 333 (Risch, R-Idaho) (hydroelectric power) would reinstate and extend the deadline for commencement of construction of a hydroelectric project involving the Little Wood River Ranch. 157 Cong. Rec. S682 (daily ed. Feb. 14, 2011). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 334 (Risch, R-Idaho) (hydroelectric power) would reinstate and extend the deadline for commencement of construction of a hydroelectric project involving the American Falls Reservoir. 157 Cong. Rec. S682 (daily ed. Feb. 14, 2011). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 338 (Feinstein, D-Cal.) (deepwater drilling) would prohibit royalty incentives for deepwater drilling. 157 Cong. Rec. S683 (daily ed. Feb. 14, 2011). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 350 (Leahy, D-Vt.) (water pollution) would require restitution for victims of criminal violations of the Federal Water Pollution Control Act. 157 Cong. Rec. S747 (daily ed. Feb. 15, 2011). The bill was referred to the Committee on the Judiciary.

  • S. 351 (Murkowski, R-Alaska) (oil exploration) would authorize the exploration, leasing, development, and production of oil and gas in and from the western portion of the Coastal Plain of the state of Alaska without surface occupancy. 157 Cong. Rec. S747 (daily ed. Feb. 15, 2011). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 352 (Murkowski, R-Alaska) (oil exploration) would authorize the exploration, leasing, development, production, and economically feasible and prudent transportation of oil and gas in and from the Coastal Plain in Alaska. 157 Cong. Rec. S747 (daily ed. Feb. 15, 2011). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 357 (Lautenberg, D-N.J.) (wildlife) would authorize the Secretary of the Interior to identify and declare wildlife disease emergencies and to coordinate rapid response to those emergencies. 157 Cong. Rec. S747 (daily ed. Feb. 15, 2011). The bill was referred to the Committee on Environment and Public Works.

  • S. 363 (Wicker, R-Miss.) (federal land) would authorize the Secretary of Commerce to convey certain NOAA property to the City of Pascagoula, Mississippi. 157 Cong. Rec. S791 (daily ed. Feb. 16, 2011). The bill was referred to the Committee on Commerce, Science, and Transportation.

  • S. 383 (Udall, D-Colo.) (mineral production) would promote the domestic production of critical minerals and materials. 157 Cong. Rec. S870 (daily ed. Feb. 17, 2011). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 395 (Enzi, R-Wyo.) (energy efficiency) would repeal certain amendments to the Energy Policy and Conservation Act with respect to lighting energy efficiency. 157 Cong. Rec. S870 (daily ed. Feb. 17, 2011). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 397 (Enzi, R-Wyo.) (mercury, energy efficiency) would provide that no federal or state requirement to increase energy efficient lighting in public buildings shall require a hospital, school, day care center, mental health facility, or nursing home to install or use energy efficient lighting if that lighting contains mercury. 157 Cong. Rec. S870 (daily ed. Feb. 17, 2011). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 403 (Wyden, D-Or.) (rivers) would amend the Wild and Scenic Rivers Act to designate segments of the Molalla River in the state of Oregon as components of the National Wild and Scenic Rivers System. 157 Cong. Rec. S870-871 (daily ed. Feb. 17, 2011). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 404 (Levin, D-Mich.) (federal land) would modify a land grant patent issued by the Secretary of the Interior. 157 Cong. Rec. S871 (daily ed. Feb. 17, 2011). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 405 (Nelson, D-Fla.) (Outer Continental Shelf Lands Act) would amend the Outer Continental Shelf Lands Act to provide a requirement for certain lessees. 157 Cong. Rec. S871 (daily ed. Feb. 17, 2011). The bill was referred to the Committee on Energy and Natural Resources.

  • H.R. 681 (Miller, R-Mich.) (spills) would require the Administrator of EPA to finalize a proposed rule to amend the spill prevention, control, and countermeasure rule to tailor and streamline the requirements for the dairy industry. 157 Cong. Rec. H724 (daily ed. Feb. 11, 2011). The bill was referred to the Committee on Transportation and Infrastructure.

  • H.R. 684 (Hirono, D-Haw.) (biodiesel) would amend the Internal Revenue Code of 1986 to modify the incentives for the production of biodiesel. 157 Cong. Rec. H773 (daily ed. Feb. 14, 2011). The bill was referred to the Committee on Ways and Means.

  • H.R. 686 (Bishop, R-Utah) (federal land) would require the conveyance of certain public land within the boundaries of Camp Williams, Utah, to support the training and readiness of the Utah National Guard. 157 Cong. Rec. H774 (daily ed. Feb. 14, 2011). The bill was referred to the Committee on Natural Resources.

  • H.R. 724 (Rothman, D-N.J.) (energy) would amend the Internal Revenue Code of 1986 to extend the qualifying advanced energy project credit. 157 Cong. Rec. H923 (daily ed. Feb. 15, 2011). The bill was referred to the Committee on Ways and Means.

  • H.R. 738 (Bordallo, D-Guam) (coral reefs) would reauthorize the Coral Reef Conservation Act of 2000. 157 Cong. Rec. H1039 (daily ed. Feb. 16, 2011). The bill was referred to the Committee on Natural Resources.

  • H.R. 739 (Bordallo, R-Tex.) (mercury, energy efficiency) would provide that no federal or state requirement to increase energy efficient lighting in public buildings shall require a hospital, school, day care center, mental health facility, or nursing home to install or utilize such energy efficient lighting if the lighting contains mercury. 157 Cong. Rec. H1039 (daily ed. Feb. 16, 2011). The bill was referred to the Committee on Energy and Commerce and the Committee on Transportation and Infrastructure.

  • H.R. 748 (Sensenbrenner, R-Wis.) (ethanol) would prohibit the Administrator of EPA from authorizing the use of gasoline containing greater than 10% ethanol in certain vehicles. 157 Cong. Rec. H1039 (daily ed. Feb 16, 2011). The bill was referred to the Committee on Energy and Commerce.

  • H.R. 750 (Walberg, R-Mich.) (climate) would preempt regulation of, action relating to, or consideration of greenhouse gases under federal and common law on enactment of a federal policy to mitigate climate change. 157 Cong. Rec. H1039 (daily ed. Feb 16, 2011). The bill was referred to the Committee on Energy and Commerce.

  • H.R. 752 (Schrader, D-Or.) (rivers) would amend the Wild and Scenic Rivers Act to designate segments of the Molalla River in the state of Oregon as components of the National Wild and Scenic Rivers System. 157 Cong. Rec. H1195 (daily ed. Feb. 17, 2011). The bill was referred to the Committee on Natural Resources.

  • H.R. 753 (Latham, R-Iowa) (federal land) would direct the Secretary of Agriculture to convey certain federally owned land located in Story County, Iowa. 157 Cong. Rec. H1195 (daily ed. Feb. 17, 2011). The bill was referred to the Committee on Agriculture.

  • H.R. 795 (Smith, R-Neb.) (hydropower) would expand small-scale hydropower. 157 Cong. Rec. H1249 (daily ed. Feb. 18, 2011). The bill was referred to the Committee on Energy and Commerce, and in addition to the Committees on Transportation and Infrastructure, and 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:

Alaska
California
Florida

Indiana
Kansas
Maine

Missouri
Montana
New Hampshire

New Jersey
Tennessee
Texas

Virginia
Washington
 

ALASKA


Air:



Wildlife:



CALIFORNIA


Air:



  • The Department of Pesticide Regulation proposed to amend Cal. Code Regs. tit. 3 §§6400, 6452.4, 6624, & 6860; and adopt §§6446 & 6446.1, Methyl Iodide: Designating as a Restricted Material, Listing as a Toxic Air Contaminant, and Use Requirements as a Volatile Organic Compound. The amendment would designate methyl iodide as a state-restricted material, incorporate it into the department’s volatile organic compound regulatory program, and add it as a toxic air contaminant on the basis of its listing as a federal hazardous air pollutant pursuant to Food and Agricultural Code §14021. The deadline for written comment is March 28, 2011. See http://www.oal.ca.gov/res/docs/pdf/notice/6z-2011.pdf (pp. 157-61).

FLORIDA


Water:



  • The Department of Environmental Protection proposed to amend 62 Fla. Admin. Code §621.300, Generic Permits. Changes would develop a generic permit for pollutant discharges to surface waters of the state from the application of pesticides that is consistent with U.S. EPA’s draft General Permit. There will be a public hearing on March 11, 2011. See https://www.flrules.org/gateway/notice_Files.asp?ID=9661023.

INDIANA


Air:



  • The Air Pollution Control Board seeks public comment on proposed changes to 326 Ind. Admin. Code 4.1, concerning open burning. Changes would add types of burning allowed under the regulation, including burning for natural area and wildlife habitat maintenance and the burning of clean petroleum products for fire training. According to the public notice, the exemptions are not expected to increase the amount of open burning occurring in the state. There will be a public hearing on May 4, 2011. See http://www.in.gov/legislative/iac/20110216-IR-326090362SNA.xml.pdf for the proposed changes and http://www.in.gov/legislative/iac/20110216-IR-326090362PHA.xml.pdf for the public notice.

Climate:



  • The Air Pollution Control Board seeks public comment on proposed changes to 326 Ind. Admin. Code 2.7.1, relating to the definition of "major source" under the tailoring rule. There will be a public hearing on May 4, 2011, and the deadline for written comments is March 25. See http://www.in.gov/legislative/iac/20110223-IR-326110085FDA.xml.pdf.

KANSAS


Water:



  • The Department of Health and Environment proposed changes to Kan. Admin. Regs. §28.16.28g, the classification and use designation section of the Kansas Surface Water Quality Standards. The change would identify the designated use changes for 709 stream segments and 36 lakes as a result of a recent use attainability analysis. There will be a public hearing on May 26, 2011. See http://www.kssos.org/pubs/register%5C2011%5CVol_30_No_08_February_24_2011_p_153-180.pdf (p. 160).

MAINE


Hazardous & Solid Waste:



  • The Department of the Secretary of State proposed to amend Ch. 152, Rules Concerning Form for Hazardous Materials License. The change would repeal an obsolete rule pertaining to hazardous materials transport licensing. The deadline for public comment is March 18, 2011. See http://www.maine.gov/sos/cec/rules/notices/2011/021611.html.

MISSOURI


Energy:



  • The Department of Natural Resources amended Mo. Code Regs. Ann. tit.10, §140.2, Energy Set-Aside Fund, adding several definitions to accommodate expansion of the scope of energy-using sectors to which loans may be offered. Changes take effect March 15, 2011. See http://www.sos.mo.gov/adrules/moreg/current/v36n4/v36n4e.pdf (p. 834).

MONTANA


Hazardous & Solid Waste:



  • The Department of Environmental Quality amended Mont. Admin. R. 17.53 & 17.56, pertaining to emergency preparedness in hazardous waste facilities and underground storage tanks. The rule changes were certified February 14, 2011. See http://sos.mt.gov/arm/Register/archives/MAR2011/MAR11-04.pdf (p. 243).

NEW HAMPSHIRE


Water:



  • The Department of Environmental Services proposed to amend Env-Wq 1708, Significant Discharges. Changes would clarify the review process for proposed activities determined to lower water quality. There will be a public hearing on April 14, 2011, and the deadline for public comment is April 25. See http://www.gencourt.state.nh.us/rules/register/2011/february-18-11.pdf (pp. 23-24).

NEW JERSEY


Land Use:



  • The Department of Environmental Protection amended N.J. Admin. Code §§7:26C-3.2, 3.3, 3.5 and 9.5, Administrative Requirements for the Remediation of Contaminated Sites; Technical Requirements for Site Remediation Timeframes, Vapor Intrusion and Form Names. The rule took effect February 22, 2011, and the expiration date is May 4. See http://www.lexisnexis.com/njoal/ (42 N.J.R. 2297a).

TENNESSEE


Climate:



  • The Air Pollution Control Board proposed to amend Tenn. Admin. Code §12.03.09, Construction and Operating Permits. Changes alter the requirements for a major source operating permit so that the greenhouse gas provisions no longer apply if the U.S. Court of Appeals for the D.C. Circuit or the U.S. Supreme Court determines that greenhouse gases should not be subject to regulation. There will be a public hearing on April 4, 2011. See http://state.tn.us/sos/rules_filings/02-09-11.pdf.

Wildlife:



  • The Wildlife Resources Agency amended Tenn. Admin. Code §1660.01.17, Rules and Regulations Governing the Commercial Use of Wildlife. Changes replace the paragraph regarding live species that may be bought and sold. Changes were adopted by the agency October 28, 2010, and the rule takes effect May 12, 2011. See http://state.tn.us/sos/rules_filings/02-10-11.pdf.

TEXAS


Air:



  • The Commission on Environmental Quality proposed amendments to 30 Tex. Admin. Code §114.512 and §114.517, Locally Enforced Motor Vehicle Idling Limitations. The changes would amend the rule on idling limits for gasoline and diesel-powered engines in motor vehicles within the jurisdiction of any local government in the state that has signed a memorandum of agreement with the commission to delegate enforcement to that local government. There will be a public hearing on March 1, 2011, and the deadline for comments is March 11. The earliest possible date of adoption is March 13, 2011. See http://www.sos.state.tx.us/texreg/pdf/backview/0211/0211is.pdf (pp. 707-13).

Hazardous & Solid Waste:



  • The Commission on Environmental Quality proposed amendments to 30 Tex. Admin. Code §328.66, Management of Used or Scrap Tires. The change would remove the requirement for applicants for Land Reclamation Projects Using Tires to publish public notice in adjacent counties, and instead require public notice to be published only in the county in which the facility is to be located. There will be a public hearing on March 1, 2011, and the deadline for comments is March 11. The earliest possible date of adoption is March 13, 2011. See http://www.sos.state.tx.us/texreg/pdf/backview/0211/0211is.pdf (pp. 719-723).

VIRGINIA


Hazardous & Solid Waste:



  • The Department of Environmental Quality amended 9 Va. Admin. Code §20.80, Solid Waste Management Regulations. The change incorporates Vegetative Waste and Yard Waste Composting Regulations and alters permit application regulations. The rule takes effect March 16, 2011. See http://legis.state.va.us/codecomm/register/vol27/iss12/v27i12.pdf (p. 1318).

Water:



  • The Department of Environmental Quality amended 9 Va. Admin. Code §25.110, Virginia Pollutant Discharge Elimination System General Permit for Domestic Sewage Discharges of Less Than or Equal to 1,000 Gallons Per Day. The amendment reissues a general permit that is due to expire on August 1, 2011, and adds two reasons why the department would deny coverage under the general permit, allows owners of currently permitted facilities to be automatically covered without requiring the owner to submit a new registration statement under certain conditions, and clarifies that maintenance contracts are required for treatment works serving individual single family dwellings, among other changes. The rule takes effect August 2, 2011. See http://legis.state.va.us/codecomm/register/vol27/iss12/v27i12.pdf (pp. 1318-33).

  • The Department of Environmental Quality amended 9 Va. Admin. Code §25.115, General Virginia Pollutant Discharge Elimination System Permit for Seafood Processing Facilities. The regulation amends and reissues the general permit that expires on July 23, 2011, which will continue the existence of the general permit that establishes limitations and monitoring requirements for wastewater discharges from seafood processing facilities. See http://legis.state.va.us/codecomm/register/vol27/iss12/v27i12.pdf (pp. 1333-67).

WASHINGTON


Water:



  • The Department of Ecology issued the new aquatic plant and algae management general permit. The permit covers the discharge of products used to control aquatic plants and algae in Washington lakes. The permit also allows treatment of emergent plants along roadsides and ditch banks. Control products include aquatic herbicides, algaecides, biological clarification products, aquatic dyes, adjuvants, and nutrient inactivation products such as alum. See http://apps.leg.wa.gov/documents/laws/wsr/2011/04/11-04-082.htm.

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


INTERNATIONAL

AUSTRALIA LIKELY TO CHARGE CARBON POLLUTERS IN 2012

The government of Australia tried for a third time last week to charge for carbon emissions, releasing a new fixed-price plan to start in 2012. Prime Minister Julia Girrard said that carbon polluters would pay a fixed price starting in July 2012, then move to a market-based system within the next five years. The move faces opposition from conservative parties, who describe it as a "great big new tax." In addition, crucial details, such as the starting price, have yet to be agreed with the Greens. According to UPI, the tax will likely add at least $300 annually to household electricity bills and 26 cents a gallon to the price of gasoline. Australian electricity prices jumped almost 10% after the move was announced. However, Santos Ltd., Australia’s third-largest oil and gas producer, said the move was an "important step" necessary to "maintain Australia’s international competitiveness." The move comes on the heels of a wave of natural disasters in the country, including widespread floods and a massive cyclone. For the full story, see http://www.reuters.com/article/2011/02/24/us-australia-carbon-idUSTRE71N0QH20110224. For the UPI story, see http://www.upi.com/Science_News/Resource-Wars/2011/02/24/Australia-plans-carbon-pricing/UPI-29091298576793/. For Santos' comment, see http://www.bloomberg.com/news/2011-02-24/santos-says-australia-carbon-price-announcement-important-step-.html, and for industry's general reception, see http://www.abc.net.au/news/stories/2011/02/24/3148128.htm?section=justin. For the story on the electricity price jump, see http://af.reuters.com/article/energyOilNews/idAFSYA00833920110224.


INDIA ALLOWS CONTROVERSIAL STEEL PROJECT

Environment minister Jairam Ramesh has fallen under heavy criticism from environmentalists and tribal rights activists after granting clearance to the Korean giant Pohang Iron and Steel Company to build a $12 billion steel plant in Orissa. The 12 million ton capacity plant was approved in 2007, but faced project-stalling opposition from tribal populations in possession of the necessary lands and from environmental groups concerned about the effects of the plant. The project will increase the carbon footprint of the nation, despite the government's goals to cut emissions by 20 to 25% of 2005 levels by 2020. Ramesh's Ministry of Environment and Forests has responded to criticism by imposing 18 environment-related conditions for building, including a new environmental impact assessment (EIA). This is due in part to the original EIA's failure to include the impact of the project on a nearby nesting site of endangered turtles. Ramesh's decision is in contrast to his earlier denial of Vedanta's request to build a bauxite mine in Orissa. According to Ramesh, the project is crucial to the future of India's growth. Kim Jong-hoon, Korea's trade minister, agreed, saying that the future of Korea's future investments depended on the outcome of Ramesh's decision. Ramesh has stated that his duty is to balance the needs of India's economy with the needs of its environment; while he's allowed controversial projects to continue, such as the 31-story residential tower in Mumbai that broke new Coastal Regulation Zone rules, some actions have been praised by environmentalists, such as policies to reverse deforestation and a recent partial plastic bag ban. For the full story, see http://www.guardian.co.uk/environment/2011/feb/23/india-steel-mill. For the story on the plastic bag ban, see http://www.plasticsnews.com/headlines2.html?id=21242.


SOUTH AFRICA TO SPEND $168 MILLION ON ACID CLEANUP

South Africa will spend 1.2 billion rand to clean up the acidic water that threatens to spill out of gold mines near Johannesburg. The network of abandoned mines that surrounds and underlies Johannesburg stretches for miles, and the mix of chemicals filling the flooded tunnels will affect the country for years, according to a report released by the Department of Water Affairs. Water flooding the tunnels has reacted with billion-year-old rocks to produce heavy metals, sulfuric acid, and radiation. Most of the money slated for dealing with the cleanup is for long-term expenses related to keeping water from flowing into underground cavities, and over 400 million rand are set to cover capital expenditures to begin building a series of pumping, treatment, and monitoring stations starting immediately with pumps in place under Johannesburg by March 2012. The government will try to reclaim costs from profit-making mines. For the full story, see http://www.reuters.com/article/2011/02/24/us-safrica-mining-acid-idUSTRE71N2LI20110224 and http://www.bloomberg.com/news/2011-02-22/south-africa-approves-plan-to-combat-acid-water-drainage-from-gold-mines.html, in addition to http://www.bbc.co.uk/news/world-africa-12573284. For the Department of Water Affairs, see http://www.dwaf.gov.za/Documents/ACIDReport.pdf.


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


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