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Weekly Update Volume 41, Issue 9
THE FEDERAL AGENCIES
IN THE STATES
Leslie Carothers, Publisher
A California court ordered the California Air Resources Board (CARB) to set aside its "functional equivalent document" that evaluates the environmental consequences of its climate change scoping plan and to enjoin implementation of the scoping plan until the agency complies with its obligations under its certified regulatory program and the California Environmental Quality Act (CEQA). The Global Solutions Warming Act of 2006 requires CARB to prepare a scoping plan for achieving the "maximum technologically feasible and cost-effective reductions" in greenhouse gas emissions by 2020. The court rejected challenges to the scoping plan, including claims that CARB's analysis of the maximum technologically feasible and cost effective measures was defective. It also ruled that it was within CARB's authority to choose a cap-and-trade program as one of the primary emission reduction measures in its scoping plan. But CARB abused its discretion in certifying the functional equivalent document for the scoping plan as complete because it failed to include any facts or data to support the conclusions stated in its alternatives analysis. CARB's extensive evaluation of the cap-and-trade program in the scoping plan provides the public with information about cap and trade only. CEQA requires that CARB take a similar analysis of each of the alternatives so that the public may know not only why cap and trade was chosen, but also why the alternatives were not. In addition, the agency improperly approved and began implementing its scoping plan prior to completing the environmental review process. Association of Irritated Residents v. California Air Resources Board, No. 09-509562, 41 ELR 20118 (Sup. Ct. Cal. Mar. 18, 2011).
The Fourth Circuit reversed a lower court decision that an insurance company was obligated to pay the sums a landfill owner had incurred and was likely to incur in response to an EPA cleanup order. The insurance company issued the landfill owner a standard comprehensive general liability insurance policy that indemnified the owner for property damage. But the court has previously held that liability under CERCLA is not liability for "property damage," but rather regulatory liability for response costs. Thus, the policy does not extend to the owner's liability under CERCLA. Industrial Enterprises, Inc. v. Penn America Insurance Co., Nos. 09-2346, -2397, 41 ELR 20116 (4th Cir. Mar. 18, 2011).
The Ninth Circuit held that the holder of a revocable permit to use real property is not an "owner" of that real property for purposes of imposing liability under CERCLA for the cleanup of hazardous substances disposed on that property by others. Under California common law, the holder of a revocable permit has only a possessory interest in the real property governed by the permit--an interest that exists as a result of possession, exclusive use, or a right to possession or exclusive use of land unaccompanied by the ownership of a fee simple or life estate in the property. Given this common law distinction between ownership interests and possessory interests, and the juxtaposition of "owner" and "operator" in CERCLA, the court concluded that Congress intended to give "owner" its common law meaning when it enacted CERCLA. Accordingly, owner liability under CERCLA does not extend to holders of mere possessory interests in land, such as permittees, easement holders, or licensees, whose possessory interests have been conveyed to them by the owners of real property who continue to retain power to control the permittees' use of the real property. Los Angeles v. San Pedro Boat Works, No. 08-56163, 41 ELR 20117 (9th Cir. Mar. 14, 2011).
A district court held that the United States is an arranger and operator under CERCLA with regard to the waste disposal sites at four phosphate mines in the Caribou-Targhee National Forest. The United States conditioned its approval of mine plans on requiring the lessees to perform specific reclamation activities at the mine sites, which included covering the waste dumps with a layer of middle waste shale as a growth medium. Unfortunately, the waste shale contained selenium, a hazardous substance, and it leached into the environment. The government meets all the criteria as an arranger. It owned the source of the hazardous substance--the middle waste shale. It also had the authority to control the disposal of the mining waste on the land it owned in the forest, since no mining or waste disposal could occur without its approval. It also exercised actual control over the disposal by requiring its lessees to cover the outer surface of the waste dumps with a layer of middle waste shale. Similarly, the government is an operator under CERCLA, as the record shows conclusively that the government was managing the design and location of the waste dumps for the four mines. The court, therefore, granted the mining company's motion for partial summary judgment. Nu-West Mining Inc. v. United States, No. 4:CV 09-431-BLW, 41 ELR 20120 (D. Idaho Mar. 4, 2011) (Winmill, J.).
The Fifth Circuit held that the Superfund Recycling Equity Act (SREA)--an amendment to CERCLA that exempts certain recyclers from liability for cleanup costs under CERCLA and awards costs and fees to any recyclers improperly sued for contribution under CERCLA--does not apply to state law actions. The case arose after two battery recyclers were sued under the Texas Solid Waste Disposal Act (Texas SWDA) in Texas state court for contribution to environmental cleanup costs. The recyclers argued that they should be exempt from liability under the SREA. But the plain language of the SREA conclusively establishes that it applies only to claims asserted under CERCLA, not state law actions. Nor does CERCLA preempt the Texas SDWA. Accordingly, because the SREA on its face does not apply to state law causes of action, and because CERCLA does not preempt the Texas SWDA, the district court properly dismissed the recyclers' claims. Del-Ray Battery Co. v. Douglas Battery Co., No. 10-40515, 41 ELR 20121 (5th Cir. Mar. 14, 2011).
A district court dismissed a county's RCRA action against the former owner of contaminated property, but held that the former owner was liable to the county under CERCLA. The county purchased the property, a former rifle lens manufacturing plant, from the former owners. The property was then converted to a county jail. The county's RCRA claims fail because it failed to prove that the contamination may present and imminent and substantial endangerment to health or the environment. The mere exceedance of applicable governmental standards is insufficient to establish that the contamination presents an imminent and substantial endangerment to the environment. However, the court held that the former owner was jointly and severally liable for its proportional share of the county's past recoverable response costs under CERCLA §107. The county is also entitled to contribution under CERCLA §113. Board of County Commissioners v. Brown Group Retail, Inc., No. 08-cv-00855, 41 ELR 20119 (D. Colo. Mar. 3, 2011) (Babcock, J.).
The Fifth Circuit vacated portions of EPA's 2008 concentrated animal feeding operations (CAFOs) rule. The rule requires CAFOs that propose to discharge to apply for an NPDES permit. But there must be an actual discharge into navigable waters to trigger the CWA's requirements. EPA, therefore, cannot impose a duty to apply for a permit on a CAFO that “proposes to discharge” or on any CAFO before there is an actual discharge. However, it is within EPA's province to impose a duty to apply on CAFOs that are discharging. The court also vacated a portion of the rule that provides that a CAFO can be held liable for failing to apply for a permit. The imposition of “failure to apply” liability is outside the bounds of the CWA’s mandate. But claims challenging provisions of the rule that allow permitting authorities to regulate a permitted CAFO's land application and to include these requirements in a CAFO's NPDES permit were time barred. And the court dismissed petitioners' claims concerning certain EPA guidance letters for lack of jurisdiction. National Pork Producers Council v. United State Environmental Protection Agency, No. 08-61093, 41 ELR 20115 (5th Cir. Mar. 15, 2011).
The Third Circuit upheld regulations issued by the National Marine Fishery Service (NMFS) implementing an amendment to the Atlantic Sea Scallop Fishery Management Plan that, among other things, sets a "control date" that effectively terminates the access rights of general scallop fishermen who were not established in the fishery prior to November 1, 2004. The NMFS complied with the APA and the Magnuson-Stevens Fishery Conservation and Management Act when it promulgated the regulations. In addition, the process by which the amendment was adopted complied with the Magnuson-Stevens Act's requirement that public hearings be held in "appropriate locations in the geographical area" affected by the amendment. Neither the statute nor its implementing regulations require that a meeting be held in every port of call on the Atlantic seaboard. More meetings might have been held, but that is not to say that the 35 meetings that were held failed to satisfy the Act. In addition, the agency complied with the National Standard 2, which requires the use of "best scientific information available." The NMFS also took sufficient account of non-economic objectives in implementing the amendment. General Category Scallop Fishermen v. Secretary, United States Department of Commerce, No. 10-2341, 41 ELR 20114 (3d Cir. Mar. 16, 2011).
The D.C. Circuit upheld the Surface Transportation Board's imposition of environmental mitigation conditions in its approval of a "minor" railroad merger. The case involved the acquisition of a small "non-Class I" railroad by a larger "Class I" railroad company. Because the acquisition involved only one Class I railroad, the Board classified the transaction as a “minor” merger, meaning that it needed to approve the transaction within 180 days unless it found that the merger was likely to cause substantial anticompetitive effects. Finding that the substantial increase in freight traffic resulting from this transaction would significantly affect the quality of the human environment, the Board decided to prepare an EIS. Based on its review, the Board decided to impose environmental mitigation conditions in approving the transaction. The railroad company argued that the Staggers Rail Act of 1980 prohibits the Board from imposing any conditions on minor mergers, including environmental conditions, unrelated to anticompetitive concerns. But nothing in §11324(d) of the Act unambiguously forecloses the Board from imposing environmental conditions on minor mergers. The Board, therefore, retained its environmental conditioning authority. In addition, in approving the merger at issue in this case, the Board complied with NEPA and the environmental conditions it imposed are neither arbitrary nor capricious. Village of Barrington, Illinois v. Surface Transportation Board, No. 09-1002, 41 ELR 20113 (D.C. Cir. Mar. 15, 2011).
A district court held that the former owner of contaminated property may be held liable under tort and the New York Navigation Law for failing to report or prevent the spread of that contamination. There are triable issues of fact as to whether the owner “caused or contributed to the discharge” at the site by failing to report past suspected dumping or by failing to take some kind of remedial action to prevent the spread of contamination. The former owner's motion for summary judgment was therefore denied as to the current owner's claim under §181(5) of the Navigation Law. Similarly, the former owner's motion for summary judgment was denied as to claims for negligence, strict liability, public nuisance, waste, equitable or implied indemnification, and restitution. But the owner was entitled to summary judgment on the current owner's CERCLA, RCRA, and New York Environmental Conservation Law claims since there was no evidence that the former owner released, stored, or disposed of hazardous substances. Emerson Enterprises LLC v. Kenneth Crosby NY LLC, No. 03-CV-6530 CJS, 41 ELR 20122 (W.D.N.Y. Mar. 15, 2011) (Siragusa, J.).
A district court dismissed claims that an energy company is responsible for PSD violations at five coal-fired power plants it owns in Illinois. The court previously granted the company's motion to dismiss in 2010, but the United States, Illinois, and several citizen groups filed an amended complaint alleging new theories of PSD violations. But they fail to allege any new facts to support their theory of direct liability under state law. They simply raise a new question of statutory interpretation. The plaintiffs also sought to hold the previous owner liable. But because the former owner cannot be compelled to modify sources it no longer owns and to which it has no access, the plaintiffs have no right to relief. And the plaintiffs' successor liability claims against the former owner failed as well. United States v. Midwest Generation LLC, No. 09-cv-5722, 41 ELR 20123 (N.D. Ill. Mar. 16, 2011) (Darrah, J.).
Copyright© 2011, Environmental Law Institute, Washington, D.C. All rights reserved.
THE FEDERAL AGENCIES
Note: Citations below are to the Federal Register (FR).
- EPA extended the reporting deadline for data required under the Mandatory Reporting of Greenhouse Gases Rule until September 30, 2011. 76 FR 14812 (3/18/11).
- EPA stayed the requirement for chemical manufacturing area sources to comply with the Title V permit program during reconsideration of certain NESHAP provisions. 76 FR 13514 (3/14/11).
- EPA proposed amendments to the NESHAP for mercury emissions from mercury cell chlor-alkali plants. 76 FR 13852 (3/14/11).
- EPA announced completion of its statutory requirement to promulgate emission standards under the CAA. 76 FR 15308 (3/21/11).
- EPA promulgated new source performance standards and emission guidelines for sewage sludge incineration units located at wastewater treatment facilities. 76 FR 15372 (3/21/11).
- EPA promulgated NESHAPs for industrial boilers and commercial and institutional boilers at area sources. 76 FR 15554 (3/21/11).
- EPA established NESHAPs required for industrial/commercial/institutional boilers and process heaters at major sources. 76 FR 15608 (3/21/11).
- EPA promulgated new source performance standards and emission guidelines for commercial and industrial solid waste incineration units. 76 FR 15704 (3/21/11).
- EPA designated four new equivalent methods for monitoring ambient air quality. 76 FR 15974 (3/22/11).
- EPA proposed to defer for three years the application of the PSD and Title V permitting requirements for biogenic carbon dioxide emissions from bioenergy and other biogenic stationary sources. 76 FR 15249 (3/21/11).
- EPA proposed reconsideration of NESHAPs for industrial/commercial/institutional boilers and process heaters at major sources, for industrial boilers and commercial and institutional boilers at area sources, and for new source performance standards and emission guidelines for commercial and industrial solid waste incineration units; see above for direct final rules. 76 FR 15266 (3/21/11).
- EPA amended certain NESHAP regulations for the Maricopa County air quality department in Arizona and the Santa Barbara County air pollution control district in California. 76 FR 14807 (3/18/11).
- EPA proposed to update a portion of California's outer continental shelf air regulations. 76 FR 15898 (3/22/11).
- EPA proposed to amend certain NESHAP regulations for the Maricopa County air quality department in Arizona and the Santa Barbara County air pollution control district in California; see above for direct final rule. 76 FR 14839 (3/18/11).
- SIP Approvals: California (nitrogen oxide, carbon monoxide, sulfur dioxide, and particulate matter (PM) emissions for the San Joaquin Valley unified air pollution control district) 76 FR 16696 (3/25/11). Montana (attainment of the 1997 annual fine particulate matter NAAQS for the Libby nonattainment area) 76 FR 14584 (3/17/11). Nebraska (PSD preconstruction permitting program) 76 FR 15852 (3/22/11). New Hampshire (attainment of the 1997 eight-hour ozone NAAQS for the Boston-Manchester-Portsmouth, New Hampshire, moderate nonattainment area) 76 FR 14805 (3/18/11). Virginia (recodification of open burning regulations) 76 FR 13511 (3/14/11).
- SIP Proposals: Alabama (attainment of the 1997 eight-hour ozone NAAQS) 76 FR 14611 (3/17/11). Alabama/Georgia/Tennessee (attainment of the 1997 annual average fine PM NAAQS for the Chattanooga nonattainment area) 76 FR 15895 (3/22/11). California (regional haze and interstate transport plans) 76 FR 13944 (3/15/11); (interstate transport of pollution) 76 FR 14616 (3/17/11). Connecticut/Maine/New Hampshire/Rhode Island (1997 eight-hour ozone NAAQS for multistate nonattainment areas) 76 FR 16358 (3/23/11). Georgia (attainment of the 1997 annual average fine PM NAAQS for the Macon nonattainment area) 76 FR 15892 (3/22/11); (attainment of the 1997 eight-hour ozone NAAQS for the Atlanta nonattainment area) 76 FR 16718 (3/25/11). Kansas (disapproval of interstate transport of pollution plan) 76 FR 14831 (3/18/11). Kentucky (attainment of the 1997 eight-hour ozone NAAQS) 76 FR 14626 (3/17/11). Louisiana (volatile organic compound emissions) 76 FR 14602 (3/17/11). Mississippi (attainment of the 1997 eight-hour ozone NAAQS) 76 FR 14631 (3/17/11). Missouri (disapproval of interstate transport of pollution plan) 76 FR 14835 (3/18/11). Oklahoma (partial approval of regional haze and interstate transport of pollution programs) 76 FR 16168 (3/22/11). Pennsylvania (standards for flat wood paneling surface coating processes) 76 FR 13567 (3/14/11). South Carolina (PSD and nonattainment new source review programs) 76 FR 13962 (3/15/11); (attainment of the 1997 eight-hour ozone NAAQS) 76 FR 14606 (3/17/11). South Carolina (nonattainment new source review construction permit program) 76 FR 16593 (3/24/11). Virginia (recodification of open burning regulations; see above for direct final rule) 76 FR 13569 (3/14/11).
- SIP Withdrawal: Virginia (revisions to primary and secondary lead standards) 76 FR 14805 (3/18/11).
- EPA denied a petition for reconsideration of its amendments to the Renewable Fuel Standard Program. 76 FR 15855 (3/22/11).
HAZARDOUS & SOLID WASTE:
- EPA identified which nonhazardous secondary materials are to be considered "solid wastes" under RCRA. 76 FR 15456 (3/21/11).
- EPA granted a petition submitted by Babcock & Wilcox Nuclear Operations Group, Inc., to delist a certain solid waste generated at its Mt. Athos facility near Lynchburg, Virginia, from the lists of hazardous waste. 76 FR 16534 (3/24/11).
- EPA entered into a proposed administrative settlement under CERCLA that requires the settling party to pay $20,000 in U.S. response costs incurred at the Industrial Street Drum Superfund site in Dearborn, Michigan. 76 FR 14968 (3/18/11).
- EPA entered into a proposed administrative settlement under CERCLA that requires the settling party to pay U.S. response costs incurred at the National Starch and Chemical Company Superfund site in Mobile, Alabama. 76 FR 14970 (3/18/11).
- EPA entered into a proposed administrative settlement under CERCLA that requires the settling party to pay $76,630 in past and projected future U.S. response costs incurred at the Newton County Mine Tailings Superfund site in Newton County, Missouri. 76 FR 14659 (3/17/11).
- EPA entered into a proposed administrative settlement under CERCLA that requires the settling party to pay $1,000, plus interest, in U.S. response costs incurred at the Grants Chlorinated Solvents Superfund site in Grants, New Mexico. 76 FR 13615 (3/14/11).
- EPA entered into a proposed administrative settlement under CERCLA that requires the settling party to pay U.S. response costs incurred at the B&B Manufacturing Superfund site in Mobile, Alabama. 76 FR 13615 (3/14/11).
- EPA entered into a proposed administrative settlement under CERCLA that requires the settling party to pay U.S. response costs incurred at the Picayune Wood Treating Superfund site in Picayune, Mississippi. 76 FR 13616 (3/14/11).
- OSM proposed to approve an amendment to Pennsylvania's regulatory program under SMCRA concerning limitations for post-mining discharges. 76 FR 16714 (3/25/11).
- EPA proposed to withdraw certain aquatic life water quality criteria for waters of the Great Lakes in Wisconsin. 76 FR 14351 (3/16/11).
- FWS announced a 12-month finding on a petition to list the Berry Cave salamander as endangered under the ESA; the agency found that listing is warranted but precluded by higher priority actions. 76 FR 15919 (3/22/11).
- FWS proposed to revise the designated critical habitat for the Pacific Coast population of the western snowy plover to a total of approximately 28,261 acres in California, Oregon, and Washington. 76 FR 16046 (3/22/11).
- FWS proposed to designate approximately 11,136 acres in Arizona and New Mexico as critical habitat for the Chiricahua leopard frog and proposed to list the species as threatened under the ESA. 76 FR 14126 (3/15/11).
- FWS proposed to withdraw its listing of the flat-tailed horned lizard as a threatened species under the ESA because the threat to the species is less significant than earlier believed. 76 FR 14210 (3/15/11).
- NO AA-Fisheries codified the listing of the southern resident killer whale distinct population segment as an endangered species under the ESA. 76 FR 14299 (3/16/11).
DOJ NOTICES OF SETTLEMENT:
- United States v. AK Steel Corp., No. 97-1863 (W.D. Pa. Feb. 28, 2011). A settling CERCLA defendant responsible for violations at the Breslube Penn Superfund site in Coraopolis, Pennsylvania, must pay $1,398,412 in contribution claims and past U.S. response costs incurred at the site. 76 FR 14426 (3/16/11).
- United States v. Consol Energy, Inc., No. 1:11-cv-00028 (N.D. W. Va. Mar. 14, 2011). Settling CWA defendants responsible for NPDES permit violations and the discharge of pollutants into waters of the United States must pay a $5.5 million civil penalty and must perform injunctive relief at six mines. 76 FR 15998 (3/22/11).
- United States v. Unisea, Inc., No. 3:11-cv-00037-JWS (D. Alaska Mar. 9, 2011). A settling CERCLA, CWA, and EPCRA defendant that discharged ammonia and other pollutants from its facility in Unalaska must pay a $1,405,250 civil penalty to the United States, must pay a $504,125 civil assessment to Alaska, and must perform the specified injunctive relief. 76 FR 15999 (3/22/11).
- United States v. City of Alameda, No. C 09-05684 RS (N.D. Cal. Mar. 15, 2011). Under a Stipulated Order for Preliminary Relief, settling CWA defendants responsible for NPDES permit violations that resulted in unlawful sanitary sewer overflows must conduct studies and make recommendations to prevent discharges from three wet weather facilities. 76 FR 15341 (3/21/11).
Copyright© 2011, Environmental Law Institute, Washington, D.C. All rights reserved.
Note: Citations below are to the Congressional Record (Cong. Rec.).
- S. 573 (DeMint, R-S.C.) (water resources) would establish a harbor maintenance block grant program to provide maximum flexibility to each state to carry out harbor maintenance and deepening projects in the state and require transparency for water resources development projects carried out by the U.S. Army Corps of Engineers. 157 Cong. Rec. S1600 (daily ed. Mar. 16, 2011). The bill was referred to the Committee on Environment and Public Works.
- S. 587 (Casey, D-Pa.) (fracking) would amend the Safe Drinking Water Act to repeal a certain exemption for hydraulic fracturing. 157 Cong. Rec. S1677 (daily ed. Mar. 15, 2011). The bill was referred to the Committee on Environment and Public Works.
- S. 589 (Casey, D-Pa.) (fuel spills) would provide for an expedited response to emergencies related to oil or gas production or storage. 157 Cong. Rec. S1677 (daily ed. Mar. 15, 2011). The bill was referred to the Committee on Health, Education, Labor, and Pensions.
- S. 592 (Whitehouse, D-R.I.) (oil spills) would amend title 46, U.S. Code, to remove the cap on punitive damages established by the U.S. Supreme Court in Exxon Shipping Company v. Baker. 157 Cong. Rec. S1750 (daily ed. Mar. 16, 2011). The bill was referred to the Committee on Commerce, Science, and Transportation.
- S. 594 (Whitehouse, D-R.I.) (oil spills) would amend OPA to facilitate the ability of persons affected by oil spills to seek judicial redress. 157 Cong. Rec. S1751 (daily ed. Mar. 16, 2011). The bill was referred to the Committee on Environment and Public Works.
- S. 600 (Menendez, D-N.J.) (oil and gas leases) would promote the diligent development of federal oil and gas leases. 157 Cong. Rec. S1751 (daily ed. Mar. 16, 2011). The bill was referred to the Committee on Energy and Natural Resources.
- S. 607 (Wyden, D-Or.) (federal land) would designate certain land in the state of Oregon as wilderness and provide for the exchange of certain federal land and non-federal land. 157 Cong. Rec. S1826 (daily ed. Mar. 17, 2011). The bill was referred to the Committee on Energy and Natural Resources.
- S. 608 (Murkowski, R-Alaska) (fisheries) would provide limitations on maritime liens on fishing licenses and for other purposes. 157 Cong. Rec. S1826 (daily ed. Mar. 17, 2011). The bill was referred to the Committee on Commerce, Science, and Transportation.
- S. 609 (Inhofe, R-Okla.) (federal regulations) would provide for the establishment of a committee to assess the effects of certain federal regulatory mandates. 157 Cong. Rec. S1826 (daily ed. Mar. 17, 2011). The bill was referred to the Committee on Environment and Public Works.
- S. 610 (Inhofe, R-Okla.) (federal land) would provide for the conveyance of approximately 140 acres of land in the Ouachita National Forest in Oklahoma to the Indian Nations Council, Inc., of the Boy Scouts of America. 157 Cong. Rec. S1826 (daily ed. Mar. 17, 2011). The bill was referred to the Committee on Agriculture, Nutrition, and Forestry.
- S. 612 (Snowe, R-Me.) (federal petroleum use) would amend the Energy Policy and Confirmation Act to require the Secretary of Energy to develop and implement a strategic petroleum demand response plan to reduce the consumption of petroleum products by the federal government. 157 Cong. Rec. S1826 (daily ed. Mar. 17, 2011). The bill was referred to the Committee on Energy and Natural Resources.
- S. 617 (Reid, D-Nev.) (federal land) would require the Secretary of the Interior to convey certain federal land to Elko County, Nevada, and to take land into trust for the Te-moak Tribe of Western Shoshone Indians of Nevada. 157 Cong. Rec. S1826 (daily ed. Mar. 17, 2011). The bill was referred to the Committee on Energy and Natural Resources.
- S. 630 (Murkowski, R-Alaska) (hydropower) would promote marine and hydrokinetic renewable energy research and development. 157 Cong. Rec. S1827 (daily ed. Mar. 17, 2011). The bill was referred to the Committee on Energy and Natural Resources.
- S. 631 (Murkowski, R-Alaska) (hydropower) would extend certain federal benefits and income tax provisions to energy generated by hydropower resources. 157 Cong. Rec. S1827 (daily ed. Mar. 17, 2011). The bill was referred to the Committee on Finance.
- S. 632 (Schumer, D-N. Y.) (fisheries) would amend the Magnuson-Stevens Fishery Conservation and Management Act to extend the authorized period for rebuilding of certain overfished fisheries. 157 Cong. Rec. S1827 (daily ed. Mar. 17, 2011). The bill was referred to the Committee on Commerce, Science, and Transportation.
- S. 641 (Durbin, D-Ill.) (drinking water) would improve the capacity of the U.S. government to fully implement the Senator Paul Simon Water for the Poor Act of 2005 to provide 100,000,000 people with first-time access to safe drinking water and sanitation on a sustainable basis within six years. 157 Cong. Rec. S1827 (daily ed. Mar. 17, 2011). The bill was referred to the Committee on Foreign Relations.
- S. 651 (Hagan, D-N.C.) (fisheries) would require the Secretary of the Interior to convey the McKinney Lake National Fish Hatchery to the state of North Carolina. 157 Cong. Rec. S1827 (daily ed. Mar. 17, 2011). The bill was referred to the Committee on Environment and Public Works.
- H.R. 1038 (Gosar, R-Ariz.) (federal land) would authorize the conveyance of two small parcels of land within the boundaries of the Coconino National Forest containing private improvements that were developed based upon the reliance of the landowners in an erroneous survey conducted in May 1960. 157 Cong. Rec. H1768 (daily ed. Mar. 11, 2011). The bill was referred to the Committee on Natural Resources.
- H.R. 1042 (Baca, D-Cal.) (endangered species) would amend the ESA to require that certain species be treated as extinct for purposes of that Act if there is not a substantial increase in the population of a species during the 15-year period beginning on the date the species is determined to be an endangered species. 157 Cong. Rec. H1768 (daily ed. Mar. 11, 2011). The bill was referred to the Committee on Natural Resources.
- H.R. 1049 (Johnson, R-Ohio) (environmental impact statements) would amend NEPA to direct the Council on Environmental Quality to report to Congress annually on the number of permits required under federal law for which applications have been submitted and that have not been issued because an EIS is pending. 157 Cong. Rec. H1768 (daily ed. Mar. 11, 2011). The bill was referred to the Committee on Natural Resources.
- H.R. 1071 (Thompson, D-Miss.) (federal land) would authorize the Secretary of the Interior to conduct a special resource study of the Medgar Evers House, located in Jackson, Mississippi. 157 Cong. Rec. S1796 (daily ed. Mar. 14, 2011). The bill was referred to the Committee on Natural Resources.
- H.R. 1075 (Womack, R-Ark.) (ethanol) would repeal the Volumetric Ethanol Excise Tax Credit. 157 Cong. Rec. S1796 (daily ed. Mar. 14, 2011). The bill was referred to the Committee on Ways and Means.
- H.R. 1084 (Degette, D-Colo.) (fracking) would repeal the exemption for hydraulic fracturing in the Safe Drinking Water Act. 157 Cong. Rec. H1841 (daily ed. Mar. 15, 2011). The bill was referred to the Committee on Energy and Commerce.
- H.R. 1102 (Paul, R-Tex.) (offshore drilling) would allow for offshore drilling, provide incentives for investment in refineries, and suspend federal fuel taxes when gasoline prices reach a benchmark amount. 157 Cong. Rec. H1841 (daily ed. Mar. 15, 2011). The bill was referred to the Committee on Ways and Means and the Committee on Natural Resources.
- H.R. 1126 (R-Utah) (federal land) would direct the Secretary of the Interior to sell certain federal lands in Arizona, Colorado, Idaho, Montana, Nebraska, Nevada, New Mexico, Oregon, Utah, and Wyoming previously identified as suitable for disposal. 157 Cong. Rec. H1905 (daily ed. Mar. 16, 2011). The bill was referred to the Committee on Natural Resources.
- H.R. 1149 (Bilbray, R-Cal.) (biofuel) would amend the CAA to include algae-based biofuel in the renewable fuel program and amend the Internal Revenue Code of 1986 to include algae-based biofuel in the cellulosic biofuel producer credit. 157 Cong. Rec. H1982 (daily ed. Mar. 17, 2011). The bill was referred to the Committee on Ways and Means and the Committee on Energy and Commerce.
- H.R. 1160 (Kissell, D-N.C.) (fisheries) would require the Secretary of the Interior to convey the McKinney Lake National Fish Hatchery to the state of North Carolina. 157 Cong. Rec. H1983 (daily ed. Mar. 17, 2011). The bill was referred to the Committee on Natural Resources.
- H.R. 1171 (Farr, D-Cal.) (marine debris) would reauthorize and amend the Marine Debris Research, Prevention, and Reduction Act. 157 Cong. Rec. H1983 (daily ed. Mar. 17, 2011). The bill was referred to the Committee on Transportation and Infrastructure and the Committee on Natural Resources.
- H.R. 1188 (Lance, R-N. J.) (biofuels) would amend the Internal Revenue Code of 1986 to terminate incentives for alcohol fuels. 157 Cong. Rec. H1984 (daily ed. Mar. 17, 2011). The bill was referred to the Committee on Ways and Means.
- H.R. 1189 (Latta, R-Ohio) (wastewater) would amend the Federal Water Pollution Control Act to assist municipalities that would experience a significant hardship raising the revenue necessary to finance projects and activities for the construction of wastewater treatment works. 157 Cong. Rec. H1984 (daily ed. Mar. 17, 2011). The bill was referred to the Committee on Transportation and Infrastructure.
- H.R. 1192 (Lummis, R-Wyo.) (soda ash) would extend the current royalty rate for soda ash. 157 Cong. Rec. H1984 (daily ed. Mar. 17, 2011). The bill was referred to the Committee on Natural Resources.
- H.R. 1202 (Pearce, R-N.M.) (owls) would provide for the protection of the Mexican Spotted Owl in sanctuaries. 157 Cong. Rec. H1984 (daily ed. Mar. 17, 2011). The bill was referred to the Committee on Agriculture and the Committee on Natural Resources.
- H.R. 1204 (Polis, D-Colo.) (oil and gas development emissions) would amend the CAA to eliminate the exemption for aggregation of emissions from oil and gas development sources. 157 Cong. Rec. H1984 (daily ed. Mar. 17, 2011). The bill was referred to the Committee on Energy and Commerce.
- H.R. 1210 (Young, R-Alaska) (fisheries) would provide limitations on maritime liens on fishing permits. 157 Cong. Rec. H1985 (daily ed. Mar. 17, 2011). The bill was referred to the Committee on Transportation and Infrastructure.
Copyright© 2011, Environmental Law Institute, Washington, D.C. All rights reserved.
IN THE STATES
Note: The entries below cover state developments since the last issue of Update. The entries are arranged by state, and within each section, entries are further subdivided by subject matter area. To access material previously reported in 2011, visit our list of Cumulative State Developments. For state material reported prior to 2011, visit the ELR Archives.
The states below have updates this week:
- The Department of Environmental Conservation amended 18 Alaska Admin. Code 50.030, relating to the State Air Quality Control Plan. Changes incorporate documents by reference. The amendment was adopted February 11, 2011, and becomes effective April 11. See http://notes4.state.ak.us/pn/pubnotic.nsf/1604e1912875140689256785006767f6/e5f7d14afcff0c0989257855007afeda?OpenDocument.
- The Department of Environmental Quality proposed to repeal 18 Ariz. Admin. Code 2.18, Clean Car Standards. Arizona originally adopted the measure based on the Climate Change Advisory Group’s Recommendation for reducing greenhouse gases, based on California's low emission vehicle program, but the department proposed eliminating the measure as new federal standards are similar to California's requirements. In addition, according to the department, the zero emission vehicle mandate is too costly or impractical for Arizona. The timetable for comments and the department's decision will be announced in the Notice of Proposed Rulemaking. See http://www.azsos.gov/public_services/Register/2011/11/docket.pdf.
- The Department of Natural Resources amended 17 Ill. Admin. Code 1010, Illinois List of Endangered and Threatened Fauna. Changes add language to state that species or subspecies designated as federally endangered or threatened are included on the list and add the Northern Riffleshell to the list as a result of the department's reintroduction of the species into two Illinois streams. The change took effect February 22, 2011. See http://www.cyberdriveillinois.com/departments/index/register/register_volume35_issue11.pdf (pp. 4196-212).
- The Office of Environmental Adjudication amended 315 Ind. Admin. Code 1, which identifies provisions of the code of judicial conduct that are applicable to environmental law judges. Among other changes, the regulations now allow environmental law judges to provide mediation services. The amendments took effect March 24, 2011. See http://www.in.gov/legislative/iac/20110323-IR-315100482FRA.xml.pdf.
- The Indiana Department of Environmental Management has developed draft rule language for amendments to 326 Ind. Admin. Code 2 to exclude ethanol production facilities from those defined under the term "chemical process plants" in the major source category. There will be a public hearing May 4, 2011. See http://www.in.gov/legislative/iac/20110316-IR-326110099FDA.xml.pdf
- The Air Pollution Control Board amended 326 Ind. Admin. Code 2 to incorporate the greenhouse gas tailoring rule. The amendment took effect March 14, 2011. See http://www.in.gov/legislative/iac/20110316-IR-326100505FRA.xml.pdf.
- The Department of Natural Resources proposed to amend Md. Code Regs. 08.07.05, Woodland Incentive Program. Changes would remove the prohibition on utilizing federal funds in conjunction with State Woodland Incentive funds. The deadline for comment is April 11, 2011. See http://www.dsd.state.md.us/mdregister/3806.pdf (pp. 399-400).
Hazardous & Solid Waste:
- The Department of Environmental Quality amended 132 Neb. Admin. Code §11, Disposal Fees, to add facilities that transport waste out of state for disposal to the chapter as facilities that must pay fees. Changes took effect March 21, 2011. See http://www.sos.state.ne.us/rules-and-regs/regtrack/proposals/0000000000000925.pdf.
- The Department of Environmental Quality amended 119 Neb. Admin. Code §28, Permit-By-Rule for Pesticides, which relate to the application of pesticides near state waters. The changes outline rules for water levels at the time of application and require applicators to be able to identify certain species. The changes took effect March 21, 2011. See http://www.sos.state.ne.us/rules-and-regs/regtrack/proposals/0000000000000923.pdf.
- The Department of Environmental Conservation proposed to amend N.Y. Comp. Codes R. & Regs. tit. 6, §§200, 201 and 231, New Source Review Requirements for Proposed New Major Facilities and Major Modifications to Existing Facilities. Changes would add definitions for greenhouse gases and carbon dioxide equivalent. There will be a public hearing on June 1, 2011, and the deadline for comment is June 10. See http://www.dos.state.ny.us/info/register/2011/mar23/pdfs/rules.pdf (pp. 6-12).
- The Department of Environmental Conservation proposed to amend N.Y. Comp. Codes R. & Regs. tit. 6, §41, Sanitary Conditions of Shellfish Lands. The change would reclassify shellfish lands to allow the harvest of shellfish throughout the year. Public comment will be accepted through May 2, 2011. See http://www.dos.state.ny.us/info/register/2011/mar9/pdfs/rules.pdf (pp. 2-5).
- The Department of Wildlife Conservation amended Okla. Admin. Code §800.20, Restrictions on Aquatic Species Introduction. Changes alter the list of restricted aquatic nuisance species and rules on movement of aquatic plants. See http://www.oar.state.ok.us/register/Volume-28_Issue-12.htm#a24329.
- The Department of Environmental Protection proposed to amend 25 Pa. Code §145.8(d), relating to transition to Clear Air Interstate Rule nitrogen oxide trading programs. The comment period will end on March 28, 2011. See http://www.pabulletin.com/secure/data/vol41/41-11/428.html.
- The Department of Environment and Conservation amended Tenn. Comp. R. & Regs. 1200.03.26, Administrative Fees Schedule, to raise fees associated with the air pollution permit program. Changes relate to construction projects. See http://state.tn.us/sos/rules_filings/03-12-11.pdf.
- The Commission on Environmental Quality repealed 30 Tex. Admin. Code §116.118, which addresses facilities that were exempted from obtaining an authorization to emit air contaminants under Texas Health and Safety Code §382.0518(g) and how these facilities could meet the requirements of the qualified facility rules. EPA published in the Federal Register that it intended to disapprove of this rule as a revision of the SIP. The rule took effect March 17, 2011. See http://www.sos.state.tx.us/texreg/pdf/currview/0311is.pdf (pp. 1673-75).
- The Commission on Environmental Quality proposed to amend 30 Tex. Admin. Code §§334.42, 334.45, 334.49, & 334.50, Underground and Aboveground Storage Tanks. The rules took effect March 17, 2011. See http://www.sos.state.tx.us/texreg/pdf/currview/0311is.pdf (pp. 1675-78).
- The Department of Environmental Quality proposed to amend Utah Admin. Code r. 309-800, Capacity Development Program. Changes authorize the Executive Secretary to the Drinking Water Board to require a capacity assessment of water systems applying for the State Revolving Fund. The deadline for public comment is April 18, 2011, and the rule may become effective on May 18. See http://www.rules.utah.gov/publicat/bull_pdf/2011/b20110315.pdf (pp. 72-75).
- The Department of Environmental Protection amended W. Va. Admin. Code. §22.5.4, Requirements for Operating Permits. See http://www.sos.wv.gov/administrative-law/register/Documents/2011/031811.pdf (p. 426).
Copyright© 2011, Environmental Law Institute, Washington, D.C. All rights reserved.
EU TO EXPAND CARBON TRADING SYSTEM
The European Union (EU) plans to include maritime transport in emissions trading, in addition to possibly imposing charges on carbon dioxide discharges from ships. Global maritime transport is the source of almost three percent of carbon dioxide discharges, and the International Maritime Organization has failed to agree on measures to curb emissions from ships for more than a decade. Yvon Slingenberg, head of the emissions trading unit at the European Commission, said that the EU will create a "parallel track" to use its own tools to limit maritime pollution. In addition, the emissions trading system will expand next year to include aviation and again the following year to include chemical and aluminum industries. However, European emission permit prices fell last week after the United Kingdom raised its carbon tax to ensure a premium over EU emissions permits. Chancellor of the Exchequer George Osborne said the floor price will be $25.84 per ton of carbon dioxide in 2013, and EU permits for December 2013 fell 2.3 percent to $26.10 a metric ton. For the full story, see http://www.bloomberg.com/news/2011-03-24/u-k-treasury-to-review-how-carbon-tax-affects-existing-plants.html. For the UK's new floor, see http://www.bloomberg.com/news/2011-03-24/u-k-s-new-carbon-tax-is-higher-than-assumed-citigroup-says.html.
INDIA LAUNCHES NATIONAL CONSULTATION FOR AIR POLLUTANTS
Environment minister Jairam Ramesh announced the launch of a "very small" emissions trading scheme last week as an effort to reduce air pollution. Ramesh maintained that the scheme was not "because of the global negotiations on climate change," but is instead aimed at reducing public health problems as a result of air pollution. Valsa Nair Singh, chairperson of the Maharashtra State Pollution Control Board, said that the initiative will be carried out by placing air quality analyzers on factory premises as well as inside chimney stacks. Larger facilities will have to pay for the monitors while smaller ones will likely receive rented or subsidized analyzers from the Board. According to Singh, the Board has 131 factory-premise ambient air monitors and 45 stack monitors in Maharashtra, far short of covering the estimated 7,000 facilities of the industrial state. The system will only include particulate matter emissions in the first phase. For the full story, see http://articles.timesofindia.indiatimes.com/2011-03-24/pollution/29182548_1_carbon-trade-pollution-particulate-matter.
KENYA OPENS AFRICA'S FIRST CARBON EXCHANGE
Kenya opened the continent's first climate exchange platform last week, which is expected to increase foreign investor interest in the region by as much as $1 billion, according to Reuters. Tsuma Charo, chief executive officer at Africa Carbon Exchange, said that 17 projects are awaiting registration, and three have received approval. Earlier this month, the Democratic Republic of Congo (DRC) registered its first project, a degraded forest replanted by a community looking to raise revenue for local peoples. James Mwangi, managing director at GreenNext Sustainability Ltd., a Kenyan environmental management consulting firm, said that attempts to sell credits to international buyers who have access to global markets have resulted in low earnings due to high transaction costs. "With a local exchange we can probably try and influence the prices because the transactional costs are lower," Mwangi said. Kenya is already home to a number of carbon-reducing projects, and will soon contain more. Job Kihumba, the chairman of the exchange, has stated that the exchange will encourage Kenyans to either use more energy efficient technology or engage in reforestation. In addition, sporting goods company PUMA announced last week that it will offset its 2010 carbon emissions by purchasing REDD credits generated by a wildlife conservation habitat in Kenya. For the full story, see http://www.reuters.com/article/2011/03/24/us-africa-carbonexchange-idUSTRE72N4NL20110324. For the story on the project in the DRC, see http://www.newenergyworldnetwork.com/renewable-energy-news/41613.html. For PUMA and REDD, see http://news.mongabay.com/2011/0322-puma_wildlifeworks.html.
Copyright© 2011, Environmental Law Institute, Washington, D.C. All rights reserved.
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