Weekly Update Archives ( )

These archives include all material published in ELR’s Weekly Update from Volume 42, Issue 19 (July 2012), through Volume 42, Issue 19 (July 2012). Below you will find [what is default?]. To search, use the filters on the left. Newer material can be found [ TBD ]

LITIGATION

CLIMATE CHANGE, CAA:

The D.C. Circuit upheld four EPA rulemakings governing greenhouse gases. EPA issued the rules following the U.S. Supreme Court's decision in Massachusetts v. EPA, 549 U.S. 497 (2007), in which the Court clarified that greenhouse gases meet the definition of an air pollutant under the CAA. Petitioners, various states and industry groups, challenged these rules, arguing that they are based on improper constructions of the CAA and are otherwise arbitrary and capricious. Specifically, they challenged: (1) EPA's endangerment finding, in which it determined that greenhouse gases may "reasonably be anticipated to endanger public health or welfare;" (2) the Agency's tailpipe rule, which set greenhouse gas emission standards for cars and light trucks; (3) EPA's determination that the CAA requires major stationary sources of greenhouse gases to obtain construction and operating permits; and (4) the timing and tailoring rules, in which EPA determined that only the largest stationary sources would initially be subject to permitting requirements. The court ruled that the endangerment finding and tailpipe rule are neither arbitrary nor capricious. EPA's interpretation of the governing CAA provisions is unambiguously correct. As for the timing and tailoring rules, the petitioners lack standing. Coalition for Responsible Regulation v. Environmental Protection Agency, Nos. 09-1322 et al., 42 ELR 20141 (D.C. Cir. June 26, 2012).



WATER, CWA:

The Ninth Circuit upheld the U.S. Army Corps of Engineers' decision allowing a hydroelectric plant that operates at the Snoqualmie Falls to lower dam waters in the channel above the falls in order to mitigate upstream flooding problems while it undergoes plant upgrades and modifications. The operator has already obtained a license for the project from FERC. But because the upgrade involves discharging fill material into the waters of the United States, which is prohibited under the CWA without a permit, the operator sought verification from the Corps that it could proceed under a series of general nationwide permits (NWPs) authorizing certain discharges, rather than applying to the Corps for an individual permit. Downstream property owners filed suit, arguing that lowering the dam waters above the falls will exacerbate flooding problems below the falls. They claimed that hydropower projects may only be authorized if they fall under NWP 17, the only nationwide permit that specifically references hydropower projects. But this argument is not supported by the regulation. NWP 17 affirmatively licenses hydropower projects of less than 5000 kW of generating capacity, but it is silent concerning hydropower projects of more than 5000 kW of generating capacity, such as the plant at issue in this case. In addition, the Corps' verification letter contains a sufficient articulation of the basis for its decision. The Corps' interpretation of its own regulations, therefore, is entitled to deference. Snoqualmie Valley Preservation Alliance v. United States Corps of Engineers, No. 11-35459, 42 ELR 20138 (9th Cir. June 26, 2012).



NATURAL RESOURCES, NEPA:

A district court vacated and remanded BLM's resource management plan and EIS for the Roan Plateau Planning Area in Colorado. BLM considered a number of alternatives in its NEPA analysis, but ultimately decided to permit the leasing of 100% of the plateau for oil and gas drilling subject to various stipulations designed to provide significant environmental protection to lands atop the plateau. BLM's decision to exclude an alternative that prohibited leasing on the top of the plateau and setting that area aside for conservation and recreation purposes did not violate NEPA, since all but one of the features of this alternative were present in other alternatives that remained under consideration through the final EIS. But BLM violated NEPA in refusing to separately consider the "Community Alternative," which would allow drilling but leave most of the surface of the plateau undisturbed. In addition, BLM failed to sufficiently address the cumulative air quality impacts of its decision in conjunction with anticipated oil and gas development on private lands outside the planning area, and it failed to adequately address the issue of potential ozone impacts. BLM's decision, as embodied in the plan and EIS, was therefore was set aside. Colorado Environmental Coalition v. Salazar, No. 08-cv-01460, 42 ELR 20142 (D. Colo. June 22, 2012) (Krieger, J.).



ENERGY, NUCLEAR POWER:

The D.C. Circuit denied petitions for review challenging the NRC's decision to renew an energy company's license to operate the Vermont Yankee Nuclear Power Station. The petitioners argued that the license renewal was unlawful because the energy company failed to furnish a state water quality certification under CWA §401(a)(1). But petitioners repeatedly failed to present their objection directly to the NRC. As such, they failed to exhaust their administrative remedies and the matter is not subject to judicial review. Vermont Department of Public Service v. United States, No. 11-1168, 42 ELR 20140 (D.C. Cir. June 26, 2012).



AIR, CAA:

The California Supreme Court upheld an air district's technology-forcing rules that limit certain pollution-causing substances in paints and coatings. A paint association argued that the air district failed to show that technology necessary to meet the emissions limits set by the 2002 amendments was "available" within the meaning of the relevant statutes. But the relevant statutes give the district the authority to promulgate pollution standards based on technologies that do not currently exist but are reasonably anticipated to exist by the compliance deadline. In addition, the district sufficiently demonstrated that its challenged emissions limits were achievable in each category and that the categories were reasonably drawn. American Coatings Ass'n v. South Coast Air Quality District, No. S177823, 42 ELR 20139 (Cal. June 25, 2012).



NATURAL RESOURCES, MONTANA ENVIRONMENTAL POLICY ACT:

The Montana Supreme Court upheld the state oil and gas board's issuance of 23 gas well permits to an oil company in the area known as the Cedar Creek Anticline, a major geologic feature that extends for nearly 120 miles and is home to various animal species, most notably the sage grouse. Environmental groups argued that the 23 individual EAs prepared by the board for gas development in the area failed to comply with the Montana Environmental Policy Act (MEPA), but the court disagreed. The administrative record contains hundreds of pages of documentation of the board's analysis of gas well drilling in the area in question over many years. The compilation of data from two major environmental studies in 1989 and 2003, along with other board documentation and scientific literature, coupled with the institutionalized knowledge of staff, provides an extensive information base upon which the board could draw in concluding that the addition of 23 wells in a heavily developed field would have limited impact. In addition, the board was not arbitrary or capricious in its determination that drilling 23 wells in an existing field of over a thousand, with most of the necessary infrastructure already in place and minimal anticipated impacts, was not a major state action necessitating a programmatic EIS. Montana Wildlife Federation v. Montana Board of Oil & Gas Conservation, No. 11-0537, 42 ELR 20143 (Mont. June 19, 2012).



WILDLIFE:

A California appellate court affirmed a lower court decision denying a petition to vacate the state wildlife board's decision to pay $9.98 million from the California Habitat Conservation Fund to the U.S. Bureau of Reclamation for the Battle Creek Salmon and Steelhead Restoration Project. The petitioners argued that §2791 of the California Fish & Game Code limits expenditures from the fund to no more than $6 million over any 24-month period for projects relating to the acquisition, restoration, or enhancement of riparian habitat and aquatic habitat for the spawning and rearing of anadromous salmonids and trout. But the provision does not impose a strict $6 million expenditure limit. Rather, it grants the board limited discretion to make such expenditures. In addition, the board's expenditure did not violate the $2 million limit on allocations to state agencies because it was paid to the Bureau of Reclamation, a federal agency. Outfitter Properties, LLC v. Wildlife Conservation Board, No. C06100, 42 ELR 20137 (Cal. App. 3d Dist. June 26, 2012).



Copyright© 2012, Environmental Law Institute, Washington, D.C. All rights reserved.

THE FEDERAL AGENCIES

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

AIR:

EPA proposed revisions to the primary and secondary NAAQS for PM to provide requisite protection of public health and welfare, respectively, and to make corresponding revisions to the data handling conventions for PM and ambient air monitoring, reporting, and network design requirements; the Agency also proposed revisions to the prevention of significant deterioration permitting program with respect to the proposed NAAQS revisions. 77 FR 38889 (6/29/12).

EPA entered into a proposed consent decree that require the Agency to sign a notice of final rulemaking no later than December 14, 2012, setting forth its final decision concerning its review of NAAQS for particulate matter and promulgating such revisions to the NAAQS and/or promulgating new NAAQS if appropriate. 77 FR 38060 (6/26/12).

SIP Approvals: Alabama (regional haze) 77 FR 38515 (6/28/12). Arizona (Nogales particulate matter (PM) nonattainment area) 77 FR 38399 (6/27/12); (infrastructure requirements for ozone and fine PM) 77 FR 38239 (6/27/12); (monitoring and reporting of volatile organic compounds, oxides of nitrogen, and PM emissions from stationary sources) 77 FR 38246 (6/27/12). Georgia (regional haze) 77 FR 38501 (6/28/12). Indiana (VOC emissions limits for consumer products) 77 FR 38725 (6/29/12). Iowa (regional haze) 77 FR 38006 (6/26/12). Missouri (regional haze) 77 FR 38007 (6/26/12). South Carolina (regional haze) 77 FR 38509 (6/28/12);(emissions statements requirement for the York County portion of the bi-state Charlotte- Gastonia-Rock Hill, North Carolina-South Carolina 1997 8-hour ozone nonattainment area) 77 FR 37812 (6/25/12).

SIP Proposals: Illinois-Missouri (St. Louis fine PM NAAQS) 77 FR 38183 (6/27/12). Mississippi (regional haze) 77 FR 38191 (6/27/12). Indiana (VOC emissions limits for consumer products; see above for direct final rule) 77 FR 38761 (6/29/12). Nevada (stationary sources permits) 77 FR 38557 (6/28/12). North Carolina (regional haze) 77 FR 38185 (6/27/12). South Carolina (emissions statements requirement for the York County portion of the bi-state Charlotte- Gastonia-Rock Hill, North Carolina-South Carolina 1997 8-hour ozone nonattainment area; see above for direct final rule) 77 FR 37841 (6/25/12). Utah (new and modified sources) 77 FR 37859 (6/25/12). Virgin Islands (regional haze federal implementation plan) 77 FR 37842 (6/25/12).



WASTE:

EPA approved revisions to Louisiana's hazardous waste management program. 77 FR 38530 (6/28/12).

EPA proposed to approve revisions to Louisiana's hazardous waste management program; see above for direct final rule. 77 FR 38566 (6/28/12).

EPA entered into a proposed administrative settlement under CERCLA that requires the settling party to pay $110,000 to the Hazardous Substance Superfund for recovery of past response costs incurred at the Trinity Superfund site in Cleveland, Ohio. 77 FR 38802 (6/29/12).

EPA entered into a proposed administrative settlement under CERCLA that requires the settling party to pay $2,500,000 in response costs in connection with the Arkansas Waste to Energy Superfund site in Osceola, Arkansas. 77 FR 38628 (6/28/12).

EPA entered into a proposed administrative settlement under CERCLA that requires the settling party to pay $12,727.17 in response costs in connection with the Arkansas Waste to Energy Superfund site in Osceola, Arkansas. 77 FR 38628 (6/28/12).

EPA entered into a proposed administrative settlement under CERCLA that requires the settling party to pay $50,000 in response costs in connection with the Arkansas Waste to Energy Superfund site in Osceola, Arkansas. 77 FR 38629 (6/28/12).

EPA entered into a proposed administrative settlement under CERCLA that requires the settling party to pay $220,000 in response costs in connection with the Arkansas Waste to Energy Superfund site in Osceola, Arkansas. 77 FR 38629 (6/28/12).



WATER:

EPA approved 10 alternative testing methods for use in measuring the levels of contaminants in drinking water and determining compliance with national primary drinking water regulations. 77 FR 38523 (6/28/12).

EPA's New England Region has determined that adequate facilities for the safe and sanitary removal and treatment of sewage from all vessels are reasonably available for the state waters of Vineyard and Nantucket Sounds and the islands collectively termed Southern Cape Cod. 77 FR 38797 (6/29/12).



DOJ NOTICES OF SETTLEMENT:

United States v. Russell Stover Candies, Inc., No. 5:12-cv-04081 (D. Kan. June 21, 2012). A settling CWA defendant that violated the statute's pretreatment requirements must pay a $585,000 civil penalty and perform injunctive relief by monitoring and sampling wastewater discharge. 77 FR 38654 (6/28/12).

United States v. American Seafoods Co., No. 12-cv-01040 (W.D. Wash. June 14, 2012). A settling CAA defendant that violated the statute's regulations concerning the management and control of ozone-depleting substances must pay a $700,000 civil penalty and implement measures to ensure their compliance and to partially remedy the impact of their alleged violations, including requirements to retire the equivalent of ozone-depleting substances consumption allowances they were required to purchase for previous imports of ozone-depleting refrigerants, convert at least two vessels employing ozone-depleting refrigerants to refrigerant systems using non-ozone-depleting substances, and implement a comprehensive leak inspection and repair program. 77 FR 38654 (6/28/12).

United States v. U.S. Virgin Islands, No. 09-122 (D.V.I. June 18, 2012). A settling CERCLA defendant must take over operation and maintenance of two existing groundwater pump-and-treat systems at the Tutu Wellfield Superfund Site in St. Thomas, U.S. Virgin Islands. 77 FR 38655 (6/28/12).

United States v. Enstar LLC, No. 1:12-cv-01563-MSK (D. Colo. June 18, 2012). A settling CERCLA defendant must pay $2,486,440 to the United States and Colorado in reimbursement of past response and future response costs incurred and to be incurred at the Butterfly and Burrell Mine site in the White River National Forest near Meeker, Colorado. 77 FR 38084 (6/26/12).

United States v. Toll Brothers, Inc., No. 12-3489 (E.D. Pa. June 20, 2012). A settling CWA defendant that violated its NPDES permits must pay a $741,000 civil penalty and must institute a nationwide management, reporting, and training program to improve compliance with stormwater requirements at its current and future construction sites. 77 FR 38084 (6/26/12).



Copyright© 2012, Environmental Law Institute, Washington, D.C. All rights reserved.

THE CONGRESS

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

Chamber Action

H.R. 4850 (energy), which would allow for innovations and alternative technologies that meet or exceed desired energy efficiency goals, was passed by the House. 158 Cong. Rec. H3984 (daily ed. June 26, 2012).

H.R. 5625 (energy), which would reinstate and transfer certain hydropower licenses and extend the deadline for commencement of construction of certain hydroelectric projects, was passed by the House. 158 Cong. Rec. H3985 (daily ed. June 26, 2012).



Bill Introduced

S. 3343 (Klobuchar, D-Minn.) (air) would amend the Consumer Product Safety Act to require residential carbon monoxide detectors to meet the applicable ANSI/UL standard by treating that standard as a consumer product safety rule, and encourage states to require the installation of such detectors in homes. 158 Cong. Rec. S4674 (daily ed. June 27, 2012). The bill was referred to the Committee on Commerce, Science, and Transportation.

S. 3346 (Reid, D-Nev.) (land use) would convey certain land in the state of Nevada. 158 Cong. Rec. S4674 (daily ed. June 27, 2012). The bill was referred to the Committee on Energy and Natural Resources.

S. 3352 (Bingaman, D-N.M.) (energy) would amend the Internal Revenue Code of 1986 to improve and extend certain energy-related tax provisions. 158 Cong. Rec. S4724 (daily ed. June 28, 2012). The bill was referred to the Committee on Finance.

H.R. 6024 (Markey, D-Mass.) (energy) would authorize development of hydropower and efficiencies at existing Bureau of Reclamation facilities. 158 Cong. Rec. H4064 (daily ed. June 26, 2012). The bill was referred to the Committee on Natural Resources.

H.R. 6026 (Richmond, D-La.) (water) would modify the Mississippi River Ship Channel to Baton Rouge navigation project. 158 Cong. Rec. H4064 (daily ed. June 26, 2012). The bill was referred to the Committee on Transportation and Infrastructure.

H.R. 6030 (Levin, D-Mich.) (energy) would provide a temporary tax credit for increased payroll and eliminate certain tax benefits for major integrated oil companies. 158 Cong. Rec. H4156 (daily ed. June 27, 2012). The bill was referred to the Committee on Ways and Means.

H.R. 6031 (Blumenauer, D-Or.) (energy) would amend the Internal Revenue Code of 1986 to extend the production and investment tax credits for wind facilities and modify the foreign tax credit rules applicable to major integrated oil companies that are dual capacity taxpayers. 158 Cong. Rec. H4156 (daily ed. June 27, 2012). The bill was referred to the Committee on Ways and Means.

H.R. 6032 (Blackburn, R-Tenn.) (land use) would modify the boundary of the Shiloh National Military Park, located in Tennessee and Mississippi, and establish Parker's Crossroads Battlefield as an affiliated area of the National Park System. 158 Cong. Rec. H4156 (daily ed. June 27, 2012). The bill was referred to the Committee on Natural Resources.

H.R. 6039 (Larsen, D-Wash.) (land use) would preserve the Green Mountain Lookout in the Glacier Peak Wilderness of the Mount Baker-Snoqualmie National Forest. 158 Cong. Rec. H4156 (daily ed. June 27, 2012). The bill was referred to the Committee on Natural Resources.

H.R. 6047 (Flake, R-Ariz.) (air) would amend the renewable fuel program under CAA §211(o) to require the cellulosic biofuel requirement to be based on actual production. 158 Cong. Rec. H4603 (daily ed. June 28, 2012). The bill was referred to the Committee on Energy and Commerce.

H.R. 6056 (Stivers, R-Ohio) (energy) would amend the Internal Revenue Code of 1986 to extend the energy efficient appliance credit. 158 Cong. Rec. H4603 (daily ed. June 28, 2012). The bill was referred to the Committee on Ways and Means.



Copyright© 2012, 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 2012, visit our list of Cumulative State Developments. For state material reported prior to 2012, visit the ELR Archives.

The states below have updates this week:

California

Illinois

New York

Pennsylvania

Tennessee



CALIFORNIA

Toxic Substances:

The Office of Environmental Health Hazard Assessment listed benzophenone, coconut oil diethanolamine condensate, diethanolamine, and 2-methyl-imidazole as chemicals known to the state to cause cancer. The listing took effect June 22, 2012. See http://www.oal.ca.gov/res/docs/pdf/notice/25z-2012.pdf (p. 18).



ILLINOIS

Air:

The Environmental Protection Agency amended 35 Ill. Admin. Code §101, General Rules. Changes alter the definition of "pollution control facility" to make it consistent with recent amendments to the statutory definition. The amendment took effect June 7, 2012. See http://www.cyberdriveillinois.com/departments/index/register/register_v… (pp. 9211-35).



Waste:

The Pollution Control Board amended 35 Ill. Admin. Code §106, Proceedings Pursuant to Specific Rules or Statutory Provisions. Changes alter the Board's procedural rules for adjusted standards to allow the Board, rather than the Illinois Environmental Protection Agency, to grant authorizations related to landscape waste and composting. The amendment took effect June 17, 2012. See http://www.cyberdriveillinois.com/departments/index/register/register_v… (pp. 9236-46).



NEW YORK

Climate:

The Department of Environmental Conservation amended N.Y. Comp. Codes R. & Regs. tit. 6, §200, and added §251, CO2 Emissions from Major Electric Generating Facilities. Changes target emissions reductions. The amendments take effect July 5, 2012. See http://www.dos.ny.gov/info/register/2012/jun27/pdfs/rules.pdf (pp. 3-7).



Governance:

The Department of Environmental Conservation adopted N.Y. Comp. Codes R. & Regs. tit. 6, §487, Analysis of Environmental Justice Issues Associated with the Siting of Major Electric Generating Facilities. The rule establishes a regulatory framework for an environmental justice analysis in siting a major electric generating facility. The amendments take effect July 5, 2012. See http://www.dos.ny.gov/info/register/2012/jun27/pdfs/rules.pdf (pp. 7-11).



PENNSYLVANIA

Air:

The Department of Environmental Protection proposed to amend Chs. 121, 123, and 139, Commercial Fuel Oil Sulfur Limits for Combustion Units. Amendments replace existing area-specific sulfur limits with a statewide standard, in addition to other changes. The deadline for comment is July 23, 2012. See http://www.pabulletin.com/secure/data/vol42/42-25/1162.html.



TENNESSEE

Waste:

The Environment and Conservation Agency amended Tenn. Admin. Code §0400.12.01, Hazardous Waste Management, to adopt recent changes to agreements concerning the transboundary movements of hazardous waste among Organization for Economic Cooperation and Development countries. The changes take effect September 17, 2012. See http://www.tn.gov/sos/rules_filings/06-26-12.pdf.



Copyright© 2012, Environmental Law Institute, Washington, D.C. All rights reserved.

INTERNATIONAL

UK'S PLANS TO DELAY AIR IMPROVEMENTS DENIED

The European Commission refused the United Kingdom's plans to delay air quality improvements in 12 major cities last week, and the government may be forced to ban or fine heavily polluting traffic. The cities will likely have to introduce low-emission zones to curb nitrogen dioxide emissions, which, in addition to particulate matter, are recognized by the government as the second biggest public health threat after smoking. Air pollution reduces U.K. life expectancy by up to eight months, according to government statistics, and costs the country over $30 billion a year. Nine additional U.K. cities have been given more time to reduce nitrogen dioxide pollution, and the Commission will decide if plans for 17 other cities, towns, and regions, including London, are adequate. For the full story, see http://www.guardian.co.uk/environment/2012/jun/28/uk-cities-ban-polluti… and http://www.bbc.co.uk/news/uk-18617815.



ECUADOR PLAINTIFFS SUE CHEVRON IN BRAZIL COURTS Plaintiffs in the Ecuadorian case against Chevron have filed a lawsuit in Brazil, seeking to enforce an $18 billion court ruling against the oil giant. The initial case concerned pollution from Texaco, which was later acquired by Chevron, in the 1970s and 1980s, when the company, working with Ecuador's state-owned oil company, dumped drilling waste into unlined pits that is alleged to have caused illnesses among indigenous people. The plaintiffs sought a judgment that would force Chevron to pay both the cost of cleanup and damages to injured groups. Since Chevron no longer has assets in Ecuador, plaintiffs have also filed charges in Canada to enforce the January 3 ruling. Brazil's courts will not review the case until the Superior Tribunal of Justice determines whether the suit filed meets the requirements of Brazilian law for enforcement of foreign judgment. Ecuador's case in Brazil follows Brazil's own $20 billion case against the oil company for pollution from an offshore drilling spill. For the full story, see http://www.reuters.com/article/2012/06/28/us-ecuador-chevron-idUSBRE85R….



GERMANY APPROVES CARBON CAPTURE PLAN

Germany's parliamentary mediation committee approved allowing carbon capture and storage on a test basis last week after a compromise that reduces the scope of the original proposal. Though the technology is costly, the method is seen by some as vital to help power plants meet legally binding climate targets. Many citizen groups have opposed the proposal over fears that carbon dioxide emissions, which can be fatal in high concentrations, may leak and rise to the surface. A draft law was approved by one of Germany's legislative houses last year, but rejected by the other due to safety concerns. A Swedish utility scrapped plans last year for a pilot project, citing "insufficient will in German federal politics" to make a carbon capture demonstration project possible. However, the mediation committee approved a compromise plan that would allow about 1.6 million tons of emissions to be captured and stored. In addition, states will have greater ability to reject projects. For the full story, see http://www.reuters.com/article/2012/06/27/us-germany-energy-co-idUSBRE8….



Copyright© 2012, Environmental Law Institute, Washington, D.C. All rights reserved.

Note: To request additional information, please call (800) 433-5120 or (202) 939-3844. Documents may also be available free or at a nominal charge from the applicable court or agency. Copyright© 2012, Environmental Law Institute, Washington, D.C. All rights reserved.

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