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Weekly Update Volume 41, Issue 7

03/07/2011

LITIGATION 

CAA, TORTS, PREEMPTION:

A district court held that the CAA preempts a city transit employee's negligence and strict liability claims against a company for injuries stemming from diesel exhaust fumes. The employees alleged that the design of the company's buses violated the emissions standards set out in the CAA and that the company negligently failed to warn them about the latent dangers of the exhaust fumes emitted by the buses. The employees did not bring their claims under the CAA. Rather, they used the CAA to establish a standard with which they allege the company did not comply. State common law tort claims, however, are clearly subject to preemption under CAA §209(a), and here, the employee's claims "relate to" the control of emissions. Enforcement actions that have any "connection with or reference to" the control of emissions from motor vehicles are preempted by §209(a). The employees' negligence claims regarding the company's compliance with CAA emissions standards fit squarely within this category. And because warnings and instructions regarding emissions are obviously "related to" the control of emissions and the promulgation of emissions standards, §209(a) preempts the employees' failure to warn claims as well. In any event, the employees failed to adequately plead that the company's alleged failure to warn was a proximate cause of their injuries. Jackson v. General Motors Corp., No. 08 Civ. 10879 (PAC), 41 ELR 20105 (S.D.N.Y. Feb. 16, 2011) (Crotty, J.).


ESA, PESTICIDES, JUDICIAL REVIEW:

The Fourth Circuit held that a biological opinion issued by the National Marine Fisheries Service as part of EPA's process of reregistering the insecticides chlorpyrifos, diazinon, and malathion is subject to judicial review under the APA. The Service's biological opinion concluded that the insecticides will destroy or harm Pacific salmonids and their habitat. Pesticide manufacturers who hold the registrations for those insecticides therefore filed suit to challenge the biological opinion. The lower court dismissed the action, ruling that the biological opinion is not reviewable under the APA because EPA has not yet acted on the biological opinion. It concluded that the biological opinion will be subject to judicial review only after EPA issues a final order on whether to reregister the insecticides. But the biological opinion is a final agency action, and deferring judicial review of the biological opinion until EPA acts on reregistration of the insecticides would not provide the manufacturers adequate review of the biological opinion. Accordingly, the case was reversed and remanded. Dow AgroSciences LLC v. National Marine Fisheries Service, No. 09-1968, 41 ELR 20103 (4th Cir. Mar. 2, 2011).


TRANSPORTATION, CIVIL RIGHTS:

The Ninth Circuit affirmed a lower court decision rejecting claims that a transportation commission's disproportionate emphasis on rail expansion projects over bus expansion projects in its regional transit plan illegally discriminates against minorities. Although the plaintiffs’ statistical evidence shows that minorities make up a greater percentage of the regional population of bus riders than rail riders, it does not necessarily follow that an expansion plan that emphasizes rail projects over bus projects will harm minorities. The plaintiffs’ theory forecloses altogether the possibility that the commission could devise any rail-centered expansion that could benefit minority transit riders, while the evidence shows that minorities already benefit substantially from rail service. Without a more precise statistical measure of how the particular projects included in the commission's plan will serve the community's transit ridership, no court could possibly determine whether the commission's long-term expansion plan will help or harm the region’s minority transit riders. The plaintiffs’ failure to provide an appropriate measure of disparate impact also fatally undermines their claim of intentional discrimination. Not only does the plaintiffs’ statistical evidence fail to prove discrimination, but their circumstantial evidence does not support any inference that the commission's adoption of the transit expansion plan was motivated by racial bias. Darensburg v. Metropolitan Transportation Commission, No. 09-15878, 41 ELR 20101 (9th Cir. Feb. 16, 2011).


FEDERAL LAND, HIGHWAYS, RUNOFF:

A district court, on motions for summary judgment, held that the California Department of Transportation is liable to the United States for damages caused to a lake and creek due to runoff from a state-run highway that cuts across federal property--the Presidio in San Francisco. A 1938 permit authorized the state's construction of the highway. In return, the state agreed to bear all costs and liabilities associated with the highway's construction, operation, and maintenance. Here, the United States has provided sufficient evidence to support a finding that discharges of lead, copper, and zinc in the runoff from the highway have caused damage to the lake. Such contamination constitutes “damage caused to the property of the United States incident to the operation or maintenance” of the highway as provided in the 1938 permit. In addition, it is undisputed that the state has failed to repair or remediate the damage. Accordingly, the state is liable for the damage caused to the lake. It is also liable for its share of past and future remediation costs incurred or to be incurred by the United States in responding to the contamination of the lake, including costs of investigation. United States v. California Department of Transportation, No. C 09-0437 PJH, 41 ELR 20106 (N.D. Cal. Feb. 25, 2011) (Hamilton, J.).


LAND USE, APA, RULEMAKING:

A California appellate court invalidated a state policy prohibiting development seaward of the most landward historical position of the mean high tide line. The policy is an invalid underground regulation because it was not promulgated as a regulation under the APA. Although the state agency that adopted the policy conceded that the policy is a regulation, it argued, and the lower court agreed, that the policy is exempt from promulgation under the APA because it is "the only legally tenable interpretation of a provision of law." But the policy is potentially both overinclusive--prohibiting development on land that does not now and may never in the future belong to the state--and underinclusive--failing to prohibit development on land that may become state land in the future. Thus, the policy is not the only legally tenable interpretation of law because it departs from and embellishes upon constitutional, statutory, and decisional law. The judgment of the lower court was therefore reversed. Bollay v. California Office of Administrative Law, No. C063268, 41 ELR 20102 (Cal. Ct. App. Mar. 1, 2011).


TORTS, NUISANCE:

A Michigan appellate court reversed the dismissal of property owners' nuisance claims against a manufacturing company for groundwater contamination. The lower court relied on Adkins v Thomas Solvent Co., 440 Mich. 293, 487 N.W. 2d 715 (1992), in dismissing the case. Adkins, however, was premised on the undisputed absence of contamination. Although Adkins indicates that diminution in property value of uncontaminated land based on unfounded third-party fears does not establish a significant interference with the use and enjoyment of land, Adkins does not address diminution in value where, as here, significant interference is otherwise alleged or where groundwater under the land is contaminated. Because the company failed to show that the owners' nuisance claims were "so clearly unenforceable as a matter of law that no factual development could possibly justify recovery," the court reversed and remanded the case for further proceedings. But the court upheld the dismissal of the owner's remaining tort law claims. Robarge v. Tecumseh Products Co., No. 295418, 41 ELR 20104 (Mich. Ct. App. Feb. 22, 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 delegated authority to Iowa, Kansas, Missouri, and Nebraska to implement and enforce NESHAPs and new source performance and maximum achievable control technology standards. 76 FR 10761 (2/28/11).

  • EPA announced the availability of a draft document titled, First External Review Draft Integrated Science Assessment for Ozone and Related Photochemical Oxidants, for public comment. 76 FR 10893 (2/28/11).

  • SIP Approvals: Missouri (idling of heavy-duty diesel vehicles) 76 FR 11083 (3/1/11). Ohio (Nitrogen Oxides Budget Trading Program) 76 FR 11082 (3/1/11). Wisconsin (attainment of the 1997 eight-hour ozone NAAQS for the Milwaukee-Racine and Sheboygan nonattainment areas) 76 FR 11080 (3/1/11).

  • SIP Proposals: Illinois (attainment of the 1997 eight-hour ozone NAAQS for the St. Louis metropolitan nonattainment area) 76 FR 10815 (2/28/11); Missouri (attainment of the 1997 eight-hour ozone NAAQS for the St. Louis metropolitan nonattainment area) 76 FR 10815 (2/28/11); (idling of heavy-duty diesel vehicles; see above for direct final rule) 76 FR 11190 (3/1/11). Nevada (nonattainment of the 24-hour NAAQS for particulate matter for the Truckee Meadows area by December 31, 2001, but current attainment) 76 FR 10817 (2/28/11). Pennsylvania (standards for paper, film, and foil surface coating processes) 76 FR 11983 (3/4/11).

HAZARDOUS & SOLID WASTE:



  • EPA entered into a proposed administrative settlement under CERCLA that requires the settling party to pay U.S. response costs incurred at the Puckett Smelter Superfund site in Mountainboro, Alabama. 76 FR 11779 (3/3/11).

  • EPA proposed giving final authorization to Oregon's UST program under RCRA. 76 FR 11404 (3/2/11).

WATER:



  • EPA proposed revisions to the unregulated contaminant monitoring regulation for public water systems. 76 FR 11713 (3/3/11).

  • EPA announced the release of the draft report titled, Aquatic Ecosystems, Water Quality, and Global Change: Challenges of Conducting Multi-Stressor Vulnerability Assessments, for public comment. 76 FR 10892 (2/28/11).

WILDLIFE:



  • FWS designated approximately 202 acres in Onslow and Pender Counties, North Carolina, as critical habitat for the golden sedge. 76 FR 11086 (3/1/11).

DOJ NOTICES OF SETTLEMENT:



  • United States v. Powertrain, Inc., No. 1:09-cv-00993 (D.C. Feb. 28, 2011). Settling CAA defendants that imported engines without certificates of conformity, emissions-control labels, or emissions-related warranties must pay a $2 million civil penalty and perform various injunctive measures. 76 FR 12134 (3/4/11).

  • United States v. JELD-WEN, Inc., No. 1:10-CV-494-PA (D. Or. Feb. 17, 2011). A settling CERCLA defendant responsible for violations at the Circle DE Lumber Superfund site in Klamath Falls, Oregon, must pay $700,000 in U.S. response costs incurred at the site. 76 FR 11814 (3/3/11).

  • United States v. SKF USA Inc., No. 3:09-cv-00174 (W.D. Pa. Feb. 25, 2011). Settling CERCLA defendants responsible for violations at the Barefoot Disposal Superfund site in Blair County, Pennsylvania, must pay $575,000 in past U.S. response costs incurred at the site and limited future response costs. 76 FR 11814 (3/3/11).

  • United States v. Lafarge North America, No. 3:10-cv-44-JPG (S.D. Ill. Feb. 14, 2011). A settling CAA defendant responsible for violations at 13 Portland cement production facilities must install and continuously operate wet flue gas desulfurization devices to control sulfur dioxide emissions from its kilns in Alpena, Michigan. 76 FR 11280 (3/1/11).

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. 417 (Ensign, R-Nev.) (federal land) would direct the Secretary of the Interior to transfer to the Secretary of the Navy certain federal land in Churchill County, Nevada. 157 Cong. Rec. S976 (daily ed. Feb. 28, 2011). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 419 (Baucus, D-Mont.) (water) would authorize the Dry-Redwater Regional Water Authority System. 157 Cong. Rec. S976 (daily ed. Feb. 28, 2011). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 421 (Hagan, D-N.C.) (lithium production) would amend the Energy Independence and Security Act of 2007 to require the Secretary of Energy to provide grants for lithium production research and development. 157 Cong. Rec. S976 (daily ed. Feb. 28, 2011). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 427 (Reid, D-Nev.) (mining) would withdraw certain land located in Clark County, Nevada, from location, entry, and patent under the mining laws and disposition under all laws pertaining to mineral and geothermal leasing or mineral materials. 157 Cong. Rec. S1060 (daily ed. Mar. 1, 2011). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 432 (Feinstein, D-Cal.) (land conservation) would provide for environmental restoration activities and forest management activities in the Lake Tahoe Basin. 157 Cong. Rec. S1119 (daily ed. Mar. 2, 2011). The bill was referred to the Committee on Environment and Public Works.

  • S. 468 (McConnell, R-Ken.) (dredged material discharge) would amend the Federal Water Pollution Control Act to clarify the authority of the EPA Administrator to disapprove specifications of disposal sites for the discharge of dredged or fill material and to clarify the procedure under which a higher review of specifications may be requested. 157 Cong. Rec. S1218 (daily ed. Mar. 3, 2011). The bill was referred to the Committee on Environment and Public Works.

  • S. 469 (Tester, D-Mont.) (water treatment) would rescind amounts made available for water treatment improvements for the city of Kalispell, Montana, and make the amounts available for federal deficit reduction. 157 Cong. Rec. S1218 (daily ed. Mar. 3, 2011). The bill was referred to the Committee on Appropriations.

  • S. 471 (Stabenow, D-Mich.) (hydrological separation) would require the Secretary of the Army to study the feasibility of the hydrological separation of the Great Lakes and Mississippi River Basins. 157 Cong. Rec. S1218 (daily ed. Mar. 3, 2011). The bill was referred to the Committee on Environment and Public Works.

  • S. 482 (Inhofe, R-Okla.) (climate) would amend the CAA to prohibit the Administrator of EPA from promulgating any regulation concerning, taking action relating to, or taking into consideration the emission of a greenhouse gas to address climate change. 157 Cong. Rec. S1219 (daily ed. Mar. 3, 2011). The bill was referred to the Committee on Environment and Public Works.

  • S. 485 (Levin, D-Mich.) (federal land) would expand the boundaries of the Thunder Bay National Marine Sanctuary and Underwater Preserve. 157 Cong. Rec. S1219 (daily ed. Mar. 3, 2011). The bill was referred to the Committee on Commerce, Science, and Transportation.

  • S. 487 (McCain, R-Ariz.) (wildfires) would ensure that private property, public safety, and human life are protected from flood hazards that directly result from post-fire watershed conditions that are created by wildfires on federal land. 157 Cong. Rec. S1219 (daily ed. Mar. 3, 2011). The bill was referred to the Committee on Energy and Natural Resources.

  • H.R. 838 (Kline, R-Minn.) (endangered species) would prohibit treatment of gray wolves in Michigan, Minnesota, and Wisconsin as endangered species. 157 Cong. Rec. H1390 (daily ed. Feb. 28, 2011). The bill was referred to the Committee on Natural Resources.

  • H.R. 840 (Murphy, R-Pa.) (offshore drilling) would allow the conduct of offshore energy exploration, development, and production operations under drilling permits previously issued by the Minerals Management Service. 157 Cong. Rec. H1390 (daily ed. Feb. 28, 2011). The bill was referred to the Committee on Natural Resources.

  • H.R. 849 (Bachmann, R-Minn.) (incandescent lightbulbs) would provide for the repeal of the phase out of incandescent light bulbs unless the Comptroller General makes certain specific findings. 157 Cong. Rec. H1454 (daily ed. Mar. 1, 2011). The bill was referred to the Committee on Energy and Commerce.

  • H.R. 851 (Braley, D-Iowa) (fuel tax incentives) would amend the Internal Revenue Code of 1986 to extend certain renewable fuel tax incentives and to repeal fossil fuel subsidies for large oil companies. 157 Cong. Rec. H1454 (daily ed. Mar. 1, 2011). The bill was referred to the Committee on Ways and Means.

  • H.R. 872 (Gibbs, R-Ohio) (navigable waters) would amend FIFRA and the Federal Water Pollution Control Act to clarify congressional intent regarding the regulation of the use of pesticides in or near navigable waters. 157 Cong. Rec. H1523 (daily ed. Mar. 2, 2011). The bill was referred to the Committee on Transportation and Infrastructure and the Committee on Agriculture

  • H.R. 892 (Camp, R-Mich.) (hydrological separation) would require the Secretary of the Army to study the feasibility of the hydrological separation of the Great Lakes and Mississippi River Basins. 157 Cong. Rec. H1573 (daily ed. Mar. 2, 2011). The bill was referred to the Committee on Transportation and Infrastructure and the Committee on Natural Resources.

  • H.R. 903 (Calvert, R-Cal.) (offshore drilling) would terminate federal prohibitions on the domestic production of offshore supplies of oil and natural gas. 157 Cong. Rec. H1573 (daily ed. Mar. 2, 2011). The bill was referred to the Committees on Natural Resources, the Budget, and Rules.

  • H.R. 910 (Upton, R-Mich.) (climate) would amend the CAA to prohibit the Administrator of EPA from promulgating any regulation concerning, taking action relating to, or taking into consideration the emission of a greenhouse gas to address climate change. 157 Cong. Rec. H1574 (daily ed. Mar. 2, 2011). The bill was referred to the Committee on Energy and Commerce.

  • H.R. 917 (Filner, D-Cal.) (water reclamation) would amend the Reclamation Wastewater and Groundwater Study and Facilities Act to authorize the Secretary of the Interior to participate in phase one of the South San Diego County Water Reclamation Project. 157 Cong. Rec. H1574 (daily ed. Mar. 2, 2011). The bill was referred to the Committee on Natural Resources.

  • H.R. 919 (Franks, R-Ariz.) (federal land) would provide for the conveyance of certain public land in Mohave Valley, Mohave County, Arizona, administered by the BLM to the Arizona Game and Fish Commission, for use as a public shooting range. 157 Cong. Rec. H1574 (daily ed. Mar. 2, 2011). The bill was referred to the Committee on Natural Resources.

  • H.R. 922 (Gosar, R-Ariz.) (wildfires) would seek to ensure that private property, public safety, and human life are protected from flood hazards that directly result from post-fire watershed conditions that are created by wildfires on federal land. 157 Cong. Rec. H1574 (daily ed. Mar. 2, 2011). The bill was referred to the Committees on Transportation and Infrastructure, Financial Services, Natural Resources, and Agriculture.

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:

Alabama
Arkansas
California

Colorado
Delaware
Illinois

Indiana
Louisiana
Maryland

New Hampshire
New Mexico
North Carolina

Oregon
South Carolina
Texas

Virginia
Washington
Wisconsin

ALABAMA


Hazardous & Solid Waste:



ARKANSAS


Water:



CALIFORNIA


Land Use:



  • The Board of Forestry and Fire Protection proposed to amend 14 Cal. Code Regs. §1051, Modified Timber Harvesting Plan for Fuel Hazard Reduction. The new harvesting plan is a permit that provides standards and requirements for removal and commercialization of forest products for purposes of fire hazard reduction. There will be a public hearing on May 4, 2011, and the deadline for written comment is April 11. See http://www.oal.ca.gov/res/docs/pdf/notice/8z-2011.pdf (pp. 247-48).

Toxic Substances:



  • The Office of Environmental Health Hazard Assessment updated lists of chemicals known to the state to cause cancer and reproductive toxicity. The office added S,S,S–Tributyl phosphorotrithioate (Tribufos, DEF) and Acrylamide. The listings took effect February 25, 2011. See http://www.oal.ca.gov/res/docs/pdf/notice/8z-2011.pdf (pp. 256-76).

COLORADO


Water:



  • The Water Quality Control Commission proposed to amend 5 Colo. Code Regs. §1002.31, Basic Standards and Methodologies for Surface Water. Changes would outline requirements for the commission to grant temporary modification to numeric standards and delay consideration of nutrient criteria until March 2012. In addition, the commission proposed to alter standards for a number of state rivers and basins. See http://www.sos.state.co.us/CCR/Upload/NoticeOfRulemaking/ProposedRuleAttach2011-00111.PDF.

  • The Department of Agriculture amended 8 Colo. Code Regs. §1203.8, Rules and Regulations Pertaining to the Administration and Enforcement of the Colorado Chemigation Act. Among other changes, the department repealed laboratory test criteria for pipeline check valves and certain construction and testing requirements for chemical injection lines. See http://www.sos.state.co.us/CCR/Upload/NoticeOfRulemaking/ProposedRuleAttach2011-00122.RTF.

DELAWARE


Air:



  • The Department of Natural Resources and Environmental Control amended 7 Del. Admin. Code §1124.8.0, Handling, Storage, and Disposal of Volatile Organic Compounds; §1124.13.0, Automobile and Light-Duty Truck Coating Operations; §1124.16.0, Paper Coating; §1124.23.0, Coating of Flat Wood Paneling; §1124.37.0, Graphic Art Systems; and §1124.45.0, Industrial Cleaning Solvents. All amendments relate to ozone nonattainment areas. The amendments take effect March 11, 2011. See http://regulations.delaware.gov/register/march2011/final/14%20DE%20Reg%20902%2003-01-11.htm#P9_228.

Water:



  • The Department of Natural Resources and Environmental Control amended 7 Del. Admin. Code §5104, Delaware Coastal Management Program Federal Consistency Policies and Procedures. Changes would add a section on interstate consistency review, defined in the proposed regulation as the "process by which an activity occurring wholly in one state but with the potential to affect the coastal resources of another state can be reviewed by the affected state for consistency with its federally approved coastal management program." There will be a public hearing March 22, 2011. See http://regulations.delaware.gov/register/march2011/proposed/14%20DE%20Reg%20868%2003-01-11.htm#P10_256.

ILLINOIS


Hazardous & Solid Waste:



  • The Department of Natural Resources proposed to amend 62 Ill. Admin. Code §240, The Illinois Oil and Gas Act. Among other changes, the amendments would increase the amounts of civil penalties and clarify who is responsible for plugging a leaking unpermitted drill hole. The deadline for written comment is April 8, 2011. See http://www.cyberdriveillinois.com/departments/index/register/register_volume35_issue9.pdf (pp. 3037-198).

  • The Pollution Control Board proposed to amend 35 Ill. Admin. Code §807, Solid Waste, related to landfill regulations. Changes would establish requirements for performance bonds and other securities insuring closure and post-closure care and corrective action at non-hazardous waste disposal sites. The deadline for written comment is April 8, 2011. See http://www.cyberdriveillinois.com/departments/index/register/register_volume35_issue9.pdf (pp. 3199-251).

INDIANA


Hazardous & Solid Waste:



  • The Department of Environmental Management proposed to amend 329 Ind. Admin. Code §3.1 to incorporate recent changes to federal rules. Changes would add a section to describe hazardous wastes excluded from regulation, remove the emission-comparable fuel exclusion, and remove saccharin and its salts from the lists of hazardous wastes and hazardous constituents, among other alterations. Comments must be received by April 1, 2011. See http://www.in.gov/legislative/iac/20110302-IR-329110090FNA.xml.pdf.

LOUISIANA


Water:



  • The Department of Environmental Quality amended La. Admin. Code 33:IX.2315.A.8. Changes will eliminate the exemption that removes the need for a Louisiana pollutant discharge elimination system permit when applying a pesticide in accordance with the FIFRA label. On April 11, 2011, anyone applying a pesticide without a permit will be in violation of the CWA. See http://www.doa.la.gov/osr/reg/1102/1102.pdf (pp. 588-89).

MARYLAND


Water:



  • The Department of the Environment amended Md. Code Regs 26.04.01, Water Supply, Sewage Disposal, and Solid Waste. The rules are intended to reduce the risk of viruses in groundwater systems, update the unregulated contaminant list, enhance the implementation of existing rules to protect public water system customers from exposure to lead and copper in drinking water, and clarify the requirements of current state regulations to control disinfectants and disinfection byproducts and surface water treatment. The change was adopted January 21, 2011, and the rules take effect March 7. See http://www.dsd.state.md.us/mdregister/3805.pdf (pp. 319-20).

NEW HAMPSHIRE


Water:



  • The Department of Environmental Services proposed to amend Env-Dw 1002, Water Supply Land Protection Grant Program. Changes would expand eligibility criteria to include future sources of public water supply and nonprofits with land conservation as their principal mission. There will be a public hearing on March 23, 2011, and the deadline for written comment is April 4. See http://www.gencourt.state.nh.us/rules/register/2011/february-25-11.pdf (pp. 1-2).

NEW MEXICO


Hazardous & Solid Waste:



  • The Environmental Improvement Board proposed to amend N.M. Admin. Code 20.9.2 and 20.9.3, Solid Waste Rules. Changes create a permit by rule for law enforcement agency take-backs and incinerations of nonhazardous pharmaceutical waste. There will be a public hearing on May 2, 2011. See http://www.nmcpr.state.nm.us/nmregister/xxii/xxii04/EIBnotice2.htm.

NORTH CAROLINA


Fisheries:



OREGON


Water:



  • The Department of Environmental Quality proposed to amend Or. Admin. Code §§340.045.0075 and 340.071.0140. Changes raise water quality permit fees and create a construction stormwater permit fee for sites less than one acre. There will be three hearings throughout Oregon in late March, and comments are due April 1, 2011. See http://arcweb.sos.state.or.us/rules/March_2011_Bulletin.pdf (pp. 9-10).

SOUTH CAROLINA


Air:



TEXAS


Air:



  • The Commission on Environmental Quality amended 30 Tex. Admin. Code §101.1, General Air Rules. The change pertains to eight-hour ozone standards. See http://www.sos.state.tx.us/texreg/pdf/backview/0225/0225is.pdf (pp. 1294-1312).

  • The Commission on Environmental Quality amended 30 Tex. Admin. Code §§116.13, 116.710, 116.711, 116.715 -116.718, 116.720, 116.721, 116.730, 116.740, and 116.750; and new §116.765. Changes relate to air pollution permits for construction and minor new source review programs that the Commission altered under the SIP. See http://www.sos.state.tx.us/texreg/pdf/backview/0225/0225is.pdf (pp. 1312-35).

VIRGINIA


Water:



  • The Department of Environmental Quality adopted 9 Va. Admin. Code §25.800, Virginia Pollutant Discharge Elimination System General Permit for Discharges Resulting from the Application of Pesticides to Surface Waters. The rule takes effect April 11, 2011. See http://legis.state.va.us/codecomm/register/vol27/iss13/v27i13.pdf (pp. 1647-65).

WASHINGTON


Air:



  • The Department of Ecology proposed to revise Wash. Admin. Code §173.422A, Motor vehicle emission inspection. Changes would amend the current emissions inspection process, exempting light diesel vehicles from inspection, eliminating the gas cap test and dynamometer testing, and tightening the test standards for heavy-duty diesel vehicles, among other alterations. There will be a public hearing on March 22, 2011, and comments are due March 31. See http://apps.leg.wa.gov/documents/laws/wsr/2011/05/11-05-089.htm.

Land Use:



  • The Forest Practice Board proposed to amend Wash. Admin. Code §222, relating to forest biomass harvest, watershed analysis reviews, and the addition of threatened or endangered species habitat in the riparian open space program. There will be a public hearing on March 24, 2011, and comments are due March 31.See http://apps.leg.wa.gov/documents/laws/wsr/2011/05/11-05-062.htm.

Water:



  • The Department of Ecology amended Wash. Admin. Code §173, Shoreline Management Act. Changes establish guidelines that address the potential use conflicts resulting from commercial geoduck aquaculture in shoreline areas. Changes take effect March 11, 2011. See http://apps.leg.wa.gov/documents/laws/wsr/2011/05/11-05-064.htm.

WISCONSIN


Climate:



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


INTERNATIONAL

BRAZIL COURT LIFTS DAM BAN

A Brazilian court lifted an order stopping construction of the controversial Belo Monte hydroelectric plant on Thursday. The plant, which will be the world's third largest hydroelectric dam, is to be built in the Amazon rainforest, but a federal judge ordered construction suspended in February on the grounds that certain necessary environmental provisions had not yet been met. The dam has been met with heavy criticism due to its possible effects on wildlife and its potential impact on indigenous people around the Xingu river. In February, indigenous groups delivered a petition signed by half a million people opposing the dam to authorities, stating that up to 50,000 indigenous people will lose their livelihoods and at least 12,000 will have to be relocated. Some environmental groups expect the dam to inundate about 190 square miles of the rainforest, and a federal judge ordered construction stopped until all environmental precautions to avoid reduced water level were met. However, a higher court said that construction could continue without all conditions being met. Eventually, the dam is expected to power 23 million homes, but due to low water levels, it will run at 10 to 30 percent capacity for three to four months a year. The project is a key part of President Dilma Rousseff's energy infrastructure plan. For the full story, see http://www.reuters.com/article/2011/03/03/us-brazil-dam-idUSTRE7226VD20110303 and http://www.bbc.co.uk/news/world-latin-america-12643261. For the story on the petition, see http://news.mongabay.com/2011/0208-hance_belomonte.html.


CHINA'S FIVE-YEAR PLAN TO FOCUS ON ENVIRONMENT

China's new five-year plan for 2011-2015 will include key measures to reverse damage caused by 30 years of environmental degradation, including putting carbon emission reduction at the top of its agenda. "The depletion, deterioration and exhaustion of resources and the deterioration of the environment have become serious bottlenecks constraining economic and social development," wrote environment minister Zhou Shengxian in an essay last week. The government is also expected to enact tougher water quality standards aimed at reducing heavy metal discharges in key regions, and the Xinhua News Agency reported that the country will cap total energy consumption at the equivalent of four billion tons of coal by 2015. However, the plan has already been hindered by an earlier reduction in environmental targets; last month, Premier Wen Jiabao slightly reduced carbon intensity targets, a move the director of global climate solutions at the environmental group WWF called "business as usual." In addition, China's efforts to fix its blighted rivers may be hindered if an increased demand for renewable energy leads to the need for more dams. In northern China, the area that serves as some of the nation's main growing lands has been ravaged by droughts. Snowfalls have barely helped to replenish near-empty dams, and industry's inefficient use of water combined with a water-intensive boom is beginning to take its toll. For the story on China's five-year plan, see http://www.reuters.com/article/2011/03/03/us-china-environment-idUSTRE72214Y20110303. For the story on China's expected coal cap, see http://www.bloomberg.com/news/2011-03-04/china-to-cap-energy-use-at-4-billion-tons-of-coal-by-2015-xinhua-reports.html. For the story on the drought, see http://www.bbc.co.uk/news/world-asia-pacific-12606326.


MEMBER STATES AND BUSINESSES ACROSS EU INCREASE RENEWABLE ENERGY OUTPUT

Several of the largest energy companies in Europe announced that they would support greater greenhouse gas emission cuts on Friday. The firms included Britain's Scottish & Southern Energy, Denmark's Dong Energy, and Dutch firm Eneco, and they issued a statement in advance of EU climate commissioner Connie Hedegaard's strategy paper expected on Tuesday. The current carbon dioxide target is 20 percent below 1990 levels, but the firms suggested the EU should enact a 25 percent cut target. Hedegaard's paper is expected to highlight ways nations can meet existing goals, likely including measures that could achieve a 25 percent cut. The Carbon Trust and Siemens recently provided a combined 550 million pounds to help United Kingdom businesses invest in energy efficiency technology, focusing on such technology as efficient lighting and biomass heating. Italy removed a cap on solar power incentives last week, issuing new rules for renewable energy. The nation already has some of the most generous incentives for production, but the measure aims to offset financial speculation, which weighs on Italian power bills. Hedegaard warned Spain last week that its planned solar and wind tariff cuts may jeopardize clean energy investments in Europe. For the full story, see http://www.reuters.com/article/2011/03/03/us-eu-energy-climate-idUSTRE72286920110303. For the UK's For the story on Italy's incentives, see http://www.reuters.com/article/2011/03/03/us-italy-solar-incentives-idUSTRE7222GT20110303. For Spain's cuts, see http://www.bloomberg.com/news/2011-03-04/hedegaard-says-spain-risks-clean-power-investments-across-european-union.html.


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