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Weekly Update Volume 37, Issue 25




The Seventh Circuit denied a petition to review an EPA Environmental Appeals Board decision denying an environmental group's claims that the Agency violated the CAA's best available control technology requirement and the ozone NAAQS in issuing a permit for a coal-fired electrical generating plant in southern Illinois. The plant has been sited next to a coal seam, which is believed to contain enough high-sulfur coal to supply the plant's fuel needs for 30 years. The plant is designed so that it will receive the coal directly from the seam. EPA's determination that importing low-sulfur coal rather than relying on locally available high-sulfur coal would constitute a redesign of the proposed facility rather than a best available control technology was not arbitrary. Refining the statutory definition of "control technology" to exclude redesign is the kind of judgment by an administrative agency to which a reviewing court should defer. And EPA granted the permit not because it thinks that burning low-sulfur coal would require the redesign of the plant (it would not), but because receiving coal from a distant mine would require the plant to reconfigure the plant as one that is not co-located with a mine, which would constitute a redesign. In addition, EPA was entitled to use the compliance measure used for the older, one-hour ozone standard pending adoption of a compliance measure tailored to the newer, eight-hour ozone standard to demonstrate that if the plant complied with the older measure it would be unlikely to violate the new standard. Sierra Club v. U.S. Environmental Protection Agency, No. 06-3907, 37 ELR 20226 (7th Cir. Aug. 24, 2007) (10 pp.).


The Second Circuit affirmed in part and reversed in part a lower court decision dismissing New York's CERCLA claims against the shareholder-distributees of a dissolved Delaware corporation but denying the corporation trustees' motion to dismiss the state's CERCLA claims against the corporation. The lower court properly dismissed the state's claims against the shareholder-distributees. The state relied on the equitable law trust fund doctrine, which allows claimants against a dissolved or insolvent corporation to follow the distributed assets of the corporation into the hands of its shareholders in order to satisfy the corporation's liability. The state argued that the doctrine permits claims against dissolved corporations to go forward with no special time limit. But modern statutory remedies have effectively replaced the trust fund doctrine. Here, given the absence of a significant conflict between Delaware law and CERCLA's goals, Delaware General Corporation Law §§278 and 325(b) govern the shareholder-distributees' amenability to the state's CERCLA claims. Consequently, the state's CERCLA claims are barred. But the court erred in denying the corporation trustees' motion to dismiss. CERCLA does not preempt Delaware's limits on the corporation's capacity to be sued. The lower court's judgment in favor of the state on its CERCLA claims against the trustees was therefore reversed. Marsh v. Rosenbloom, Nos. 05-0514 et al., 37 ELR 20221 (2d Cir. Aug. 28, 2007) (41 pp.).


The Fifth Circuit upheld a lower court's interlocutory judgment in favor of a property owner that brought suit against a railroad company for soil contamination. The owner, believing that the contamination occurred during the railroad company's former operations on the property, filed suit under RCRA and the Louisiana Environmental Quality Act (LEQA). The lower court held a bench trial under Fed. R. Civ. P. 42(b) on the limited issue of whether the contiguous parcels of property that make up the former railroad site can constitute a single "facility" for purposes of the owner's RCRA and LEQA claims. In its interlocutory judgment, the court ruled that the entire site can constitute a single facility for purposes of the owner's claims. On appeal, the company argued that the owner lacks standing under RCRA and the LEQA. However, the owner's injuries, both actual and threatened, are sufficiently related to the former railroad site so as to give it standing to bring claims implicating the site in its entirety. The company also argued that the lower court erred in holding that the entire former railroad site can constitute a single facility. But the legislative intent behind RCRA clearly shows that the correct interpretation of the term "facility" is one that encompasses the entire former railroad site, and nothing in RCRA prevents a plaintiff from bringing a suit implicating a facility in which he lacks a complete or even a partial ownership interest. Likewise, nothing in the LEQA suggests that a "facility" must be limited to the property lines of the owner's tract of land. Consolidated Cos. v. Union Pacific Railroad Co., No. 06-30570, 37 ELR 20222 (5th Cir. Aug. 28, 2007) (11 pp.).


The Second Circuit affirmed an individual's conviction and sentence for knowingly importing exotic birds, African Black Sparrowhawks, into the United States in violation of the Wild Bird Conservation Act and for making false statements to the FWS with regard to that importation. The court rejected the individual's claims that the Wild Bird Conservation Act does not apply to captive-bred birds. Nor is the Act unconstitutionally vague because it does not define the term personal pet. And the jury instructions given by the trial court were not erroneous. United States v. Cullen, No. 06-0607, 37 ELR 20225 (2d Cir. Aug. 23, 2007) (17 pp.).


The Ninth Circuit upheld the U.S. Forest Service's ban on rock climbing on Cave Rock, a large rock formation on the eastern shore of Lake Tahoe, Nevada. While the formation holds religious and cultural significance to a Native American tribe, the ban had a secular purpose and had no impermissible religious motivation. The Establishment Clause of the U.S. Constitution does not bar the government from protecting a historically and culturally important site simply because the site's importance derives at least in part from its sacredness to certain groups. Nor was the Forest Service's decision arbitrary or capricious for APA purposes. A lower court decision upholding the ban was therefore affirmed. Access Fund v. United States Department of Agriculture, No. 05-15585, 37 ELR 20223 (9th Cir. Aug. 27, 2007) (20 pp.).


A California appellate court held that a city did not abuse its discretion in approving a residential and business development project. The city's land use plan envisioned business and residential development in the area. An environmental group argued that the project violated the plan because it would result in increased traffic and differences in traffic circulation, reduced size and scale of development for an office business park, and increased residential development. The group also argued that the overall layout of proposed uses is different from what was envisioned in the land use plan. But the plan sets forth guiding policies and implementing policies that allow for flexibility and require interpretation by staff and the city's decisionmakers. Here, the project is compatible with the land use plan. The environmental group's rigid reading of the plan would essentially rule out development in the area--a result that is certainly at odds with the policies expressed in the plan. Nor did the city violate state housing law and corresponding municipal ordinances in awarding the developer a density bonus of 40.5%. The city had discretion to award a density bonus higher than the maximum amount set forth in the applicable statute, the Density Bonus Law. Friends of Lagoon Valley v. City of Vacaville, No. A113236, 37 ELR 20220 (Cal. App. 1st Div. Aug. 28, 2007) (30 pp.).


A California appellate court affirmed the dismissal of residents' claims against two groups of water purveyors--one regulated by the California Public Utilities Commission (PUC), and the other a group of public entity water suppliers--seeking damages for alleged contamination to their drinking water. The appeal follows a remand from the California Supreme Court's decision in Hartwell Corporation v. Superior Court, 27 Cal.4th 256 (2002), in which the court held that California Public Utilities Code §1759 barred actions for damages against water purveyor defendants regulated by the PUC and arising out of exposure to contaminated drinking water where such actions challenged the adequacy of drinking water standards or sought damages for exposure to water that met applicable regulatory standards. However, the court held that §1759 did not bar damages for exposure to water that violated federal and state drinking water standards. On remand, the trial court dismissed the residents' claims. In so doing, it properly applied the court's holding in Hartwell. The lower court did not adopt overly narrow definitions of the terms "federal and state drinking water standards" and "violations" as those terms were used in Hartwell. Nor did it err in concluding that the residents failed to identify any enactment imposing a "mandatory duty" on the public entity defendants within the meaning of California Government Code §815.6. And the trial court did not improperly limit the residents' discovery. In re Groundwater Cases, No. A112964, 37 ELR 20224 (Cal. App. 1st Dist. Aug. 24, 2007) (37 pp.).

Copyright© 2007, Environmental Law Institute, Washington, D.C. All rights reserved.


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


  • EPA extended the deadline imposed for source owners and operators to conduct required performance tests in certain specified force majeure circumstances under the General Provisions for Consolidated Federal Air Rule. 72 FR 48938 (8/27/07).
  • EPA proposed uses that qualify for the 2008 critical use exemption for the phaseout of methyl bromide and the amount of methyl bromide that may be produced, imported, or supplied from existing stocks for those uses in 2008. 72 FR 48956 (8/27/07).
  • SIP Approvals: California (volatile organic compound (VOC) emissions from refinery flares and storage tanks at petroleum facilities) 72 FR 49196 (8/28/07). Connecticut (fine particle (PM2.5) NAAQS) 72 FR 50059 (8/30/07). New Jersey (low emission vehicle program for light-duty vehicles) 72 FR 48936 (8/27/07). Texas (shipyard facilities and distance limitations, setbacks, and buffers in standard permits) 72 FR 49198 (8/28/07).
  • SIP Proposals: California (particulate matter with a diameter of 10 microns or less attainment and flagged exceedances caused by exceptional events) 72 FR 49045 (8/27/07); (VOC emissions from refinery flares and storage tanks at petroleum facilities; see above for direct final rule) 72 FR 49243 (8/28/07). Connecticut (PM2.5 NAAQS; see above for direct final rule) 72 FR 50084 (8/30/07); (clean air interstate rule) 72 FR 50305 (8/31/07). Georgia (eight-hour ozone redesignation request, maintenance plan, and motor vehicle emissions budgets) 72 FR 49679 (8/29/07). Texas (shipyard facilities and distance limitations, setbacks, and buffers in standard permits; see above for direct final rule) 72 FR 49243 (8/28/07).


  • EPA entered into a proposed de minimis administrative agreement under CERCLA concerning the Consolidated Iron and Metal Co. Superfund site in Newburgh, New York, that requires the settling parties to pay $304,916.16 in cleanup costs into a special account. 72 FR 49278 (8/28/07).
  • EPA announced the availability of new information and data contained in three documents concerning the management of coal combustion wastes (CCW) in landfills and surface impoundments: Coal Combustion Waste Management at Landfills and Surface Impoundments, 1994-2004; a draft risk assessment conducted by the Agency on the management of CCW in landfills and surface impoundments; and the Agency's damage case assessment. 72 FR 49714 (8/29/07).


  • FWS proposed to establish the 2007 to 2008 late-season hunting regulations for certain migratory game birds. 72 FR 50613 (8/31/07).
  • FWS designated 10.5 acres of critical habitat in Halfpenny Bay in the U.S. Virgin Islands for the endangered plant Catesbaea melanocarpa. 72 FR 49212 (8/28/07).


  • United States v. Puerto Rico Aqueduct & Sewer Authority, No. 01-1709 (JAF) (D.P.R. Aug. 15, 2007). A settling CWA defendant must develop and implement a system-wide operation and maintenance plan (OMP) for all pump station facilities in Puerto Rico it owns and operates, must draft and implement the OMP in accordance with a schedule by a deadline of December 31, 2010, and must perform a supplemental environmental project. 72 FR 50124 (8/30/07).
  • United States v. Valero Energy Co., No. SA-07-CA-0683 (W.D. Tex. Aug. 16, 2007). Settling CAA defendants that operate petroleum refineries in Lima, Ohio, Memphis, Tennessee, and Port Arthur, Texas, must pay a $4.25 million civil penalty; must perform several supplemental environmental projects with a total value of $4.25 million; and must implement injunctive relief to improve their refineries' performance. 72 FR 50124 (8/30/07).


  • EPA announced the availability of the draft document titled, Integrated Science Assessment for Oxides of Nitrogen--Health Criteria; First External Review Draft. 72 FR 50107 (8/30/07).

Copyright© 2007, Environmental Law Institute, Washington, D.C. All rights reserved.

THE CONGRESSCongress is currently on recess, but will reconvene September 4.

Copyright© 2007, Environmental Law Institute, Washington, D.C. All rights reserved.


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. For a cumulative listing of materials reported in 2007, visit our list of Cumulative State Developments Arranged by State, or our list of Cumulative State Developments Arranged by Subject Matter. For state material reported prior to 2007, visit the ELR Archives.

The states below have updates this week:

California Delaware Idaho Maine New Mexico Tennessee
Colorado Florida Iowa Maryland Pennsylvania Texas



  • The Department of Food and Agriculture is soliciting public comment on its amendment of California Code of Regulations Title 3, §3589(a), pertaining to the Japanese Beetle Eradication Area, as an emergency action that became effective on July 6, 2007. The Department proposes to continue the regulation as amended and to complete the amendment process by submission of a Certificate of Compliance no later than January 2, 2008. Comments are due October 8, 2007. See http://www.oal.ca.gov/pdfs/notice/34z-2007.pdf (pp. 1386-1388)





  • The Department of Natural Resources and Environmental Control will hold a public hearing on proposed amendments and new rules pertaining to the horseshoe crab harvest. The Department adopted emergency regulations on June 11, 2007, to implement the horseshoe crab mandatory harvest provisions in Addendum IV of the Atlantic States Marine Fisheries Commission's Interstate Fishery Management Plan for the Horseshoe Crab. The Department is proposing regulations of a more lasting nature that would meet the intent of the emergency regulations adopted on June 11, 2007. The hearing will be held September 24, 2007. Comments are due September 30, 2007. See http://regulations.delaware.gov/register/september2007/proposed/11%20DE%20Reg%20282e%2009-01-07.htm#P198_22629



  • The Department of Environmental Protection is soliciting public comment on proposed amendments to Rule No. 62-550.550, Certified Laboratories and Analytical Methods for Public Water Systems. The proposed amendments would adopt the new analytical methods approved by U.S. EPA in the March 12, 2007, Federal Register. These analyses are for determining compliance with the drinking water standards. Comments are due September 14, 2007. See http://faw.dos.state.fl.us/newfaw/FAWVOLUMEFOLDERS2007/3334/SECTII.pdf (pp. 3923-3924)



  • The Department of Environmental Quality will conduct a public hearing to consider the development of a rule requiring Stage 1 vapor recovery to be installed at retail gasoline stations in Ada and Canyon Counties. The Treasure Valley Air Quality Plan, as developed by the Treasure Valley Air Quality Council and accepted by the Idaho Legislature, directs the Idaho Department of Environmental Quality to enter into negotiated rulemaking to develop a rule requiring Stage 1 vapor recovery be installed and operational at all retail gasoline stations in Ada and Canyon Counties by December 31, 2011. The hearing will be held September 27, 2007. See http://www.deq.idaho.gov/rules/air/58_0101_0702_negotiated.cfm

Toxic Substances:

  • The Department of Environmental Quality will conduct a public hearing on a proposed new rule chapter implementing the Idaho Underground Storage Tank Act. Under House Bill 33, the 2007 Idaho Legislature enacted the Idaho Underground Storage Tank Act, Chapter 88, Title 39, Idaho Code, which implements the federal Underground Storage Tank Compliance Act of 2005.  The Idaho Legislature directed the Department to promulgate rules necessary to regulate UST systems in the state of Idaho. The hearing will be held October 2, 2007. Comments are due October 3, 2007. See http://www.deq.idaho.gov/rules/ust/58_0107_0701_proposed.cfm


  • The Department of Environmental Quality will conduct a public hearing to consider a rulemaking to clarify portions of the groundwater quality rule to promote consistency in its application to mining activities. The hearing will be held September 26, 2007. Comments are due October 3, 2007. See http://www.deq.idaho.gov/rules/groundwater/58_0111_0701_proposed.cfm



  • The Environmental Protection Commission announced its intent to amend Chapter 20, Scope of Title--Definitions--Forms--Rules of Practice; Chapter 22, Controlling Pollution; and Chapter 23, Emission Standards for Contaminants, of the Iowa Administrative Code. The proposed amendments would modify requirements for certain types of grain elevators as well as requirements for feed mill equipment located at certain types of grain elevators by adopting new air quality rules and clarifying existing rules. See http://www.legis.state.ia.us/Rules/Current/Bulletin/IAB070829.pdf (pp. 413-421)


  • The Environmental Protection Commission adopted amendments to Chapter 93, Nonpoint Source Pollution Control Set-Aside Programs, of the Iowa Administrative Code. The adopted amendments primarily affect the Livestock Water Quality Facilities program, which, as part of the Clean Water State Revolving Fund, provides low-interest financing to eligible animal feeding operations for manure management structures, equipment, and plans. See http://www.legis.state.ia.us/Rules/Current/Bulletin/IAB070829.pdf (pp. 460-462)



  • The Department of Marine Resources will conduct public hearings on proposed rules to institute trip level reporting of harvest by lobster harvesters. The proposed rules would apply annually to 10% of lobster and crab license holders except apprentices as they do not hold traps. These requirements would also provide compliance with Addendum X to Amendment 3 of the American Lobster Fisheries Management Plan, designed to minimize the chance of population collapse due to recruitment failure. Hearings will be held September 17-20, 2007. Comments are due October 1, 2007. See http://www.maine.gov/sos/cec/rules/notices/2007/082907.htm

Toxic Substances:

  • The Board of Environmental Protection has given its final approval to Chapter 872, §9, a major substantive rule that it provisionally adopted March 1, 2007. Chapter 872 is a new rule establishing the procedure by which the manufacturer of a mercury relay, switch, or measuring device may apply for an exemption from the sales prohibition under the Maine Revised Statutes, Title 38, §1661-C, subsections 6 and 7. Section 9 requires those applying for exemption to pay a processing fee of $500. The rule becomes effective September 21, 2007. See http://www.maine.gov/sos/cec/rules/notices/2007/082907.htm



  • The Secretary of the Environment proposed to adopt new regulations .01—.14 under a new chapter, COMAR 26.11.34, Low Emissions Vehicle Program. The proposed action seeks to adopt the California Clean Car Program in Maryland as required by the Maryland Clean Cars Act of 2007. These regulations would require all new 2011 and subsequent model year passenger cars, light-duty trucks, and medium-duty vehicles having a gross vehicle weight rating of 14,000 pounds or less that are transferred in Maryland to meet California emissions standards. These regulations would be submitted to U.S. EPA as a revision to Maryland's SIP. The hearing will be held October 3, 2007. Comments are due October 3, 2007. See http://www.dsd.state.md.us/mdregister/3418/main_register.htm

Land Use:

  • The Secretary of Natural Resources is soliciting public comment on proposed amendments to regulation .03 under COMAR 08.07.05, Woodland Incentive Program. The purpose of this action is to increase the current cost share rate for private forest landowners seeking Woodland Incentive Program cost share assistance. Comments are due October 1, 2007. See http://www.dsd.state.md.us/mdregister/3418/main_register.htm



  • The New Mexico Energy, Minerals and Natural Resources Department will conduct a public hearing on proposed changes to Rule 3.13.19 NMAC for administration of the Renewable Energy Production Tax Credit, NMSA 1978, §7-2A-19, as amended in 2007 by Senate Bill 463.In addition, a proposed change would add a definition for "low emissions technology" for biomass generators. The hearing will be held September 20, 2007. Comments are due September 20, 2007. See http://www.nmcpr.state.nm.us/nmregister/xviii/xviii16/Energynotice.htm
  • The New Mexico Public Regulation Commission has repealed its Rule 17.9.572 NMAC, Renewable Energy For Electric Utilities.Effective date of repeal was August 30, 2007. See http://www.nmcpr.state.nm.us/nmregister/xviii/xviii16/17.9.572repeal.htm



  • The Delaware River Basin Commission adopted temporary amendments to the Water Quality Regulations, Water Code, and Comprehensive Plan to extend designation of the Lower Delaware River as a special protection water. The change is effective immediately. See http://www.pabulletin.com/secure/data/vol37/37-34/1542.html
  • The Delaware River Basin Commission will hold a public hearing to receive comments on a proposed amendment to the Commission's Water Quality Regulations, Water Code, and Comprehensive Plan to extend through May 15, 2008, the temporary classification of the Lower Delaware River as significant resource waters. The hearing will be held September 24, 2007. Comments are due September 24, 2007. See http://www.pabulletin.com/secure/data/vol37/37-34/1545.html


Hazardous & Solid Wastes:

  • The Solid Waste Disposal Control Board held a public hearing to receive comments on its amendment to Rule 1200-1-13-.13, List of Inactive Hazardous Substance Sites. The amendment adds a site to the list. The hearing was held August 16, 2007. See http://www.state.tn.us/environment/dor/ppo/ph081607.pdf



  • The Tennessee Department of Environment and Conservation, Division of Natural Areas, held a public hearing to consider the adoption and promulgation of rules and amendments to Rule Chapter 0400-6-2, Rare Plant Protection and Conservation Regulations. These proposed rule modifications carry out the duty of the Department under TCA §70-8-305 to promulgate a list of endangered plant species. The hearing was held August 21, 2007. See http://www.state.tn.us/environment/na/ppo/RarePlantAug21PH.pdf



  • The Texas Commission on Environmental Quality proposed amendments to Chapter 113, Standards of Performance for Hazardous Air Pollutants and for Designated Facilities and Pollutants. The proposed amendments to Chapter 113 would incorporate amendments that U.S. EPA made to the NESHAPs for Source Categories under 40 C.F.R. Part 63 and would add six NESHAPs that have not previously been incorporated into Chapter 113. See http://www.sos.state.tx.us/texreg/sos/PROPOSED/30.ENVIRONMENTAL%20QUALITY.html#259
  • The Texas Commission on Environmental Quality has proposed amendments to §§114.7, 114.62, 114.64, 114.66, and 114.70, concerning control of air pollution from vehicle emissions, including changes to the Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program and the Diesel Emissions Reduction Incentive Program for On-Road and Non-Road Vehicles. See http://www.sos.state.tx.us/texreg/sos/PROPOSED/30.ENVIRONMENTAL%20QUALITY.html#350

Copyright© 2007, Environmental Law Institute, Washington, D.C. All rights reserved.



The European Union (EU) is developing regulations to establish sustainability standards for biofuels, which will account for 10% of transportation fuel use by 2020, under an existing EU action plan. While the use of biofuels decreases greenhouse gas emissions, the production of biofuels is not necessarily sustainable, as it can cause detrimental environmental impacts associated with intensive agriculture. The sustainability standards will help differentiate among production practices for biofuels, according to EU Energy Minister Andris Piebalgs. Only those fuels that meet the minimum standard will count toward the 10% goal. The standards will apply to fuels produced in Europe as well as those imported from other areas. See http://www.worldwatch.org/node/5321


Last week, Kazakhstan froze operations at the Kashagan oil fields on the Caspian Sea, alleging that a consortium led by ENI, an Italian energy company, violated environmental rules at the project and evaded customs duties on imported equipment. Earlier in the month, Kazakh officials suggested that pollution from the oil field might have contributed to the death of many rare seals in the northern Caspian Sea. The Kashagan oil field is one of the largest new sources of oil found recently in the world; Inpex Holdings Inc., a Japanese energy company, owns an 8.3% share in the field. Japan’s trade minister Akira Amari expressed apprehension about a larger trend of resource nationalization and announced that he would investigate actions of Kazakh authorities. Many observers have drawn parallels to Russia's dispute with Royal Dutch Shell last year, in which the Russian national energy company took control of a major oil field previously operated by Royal Dutch Shell. See http://www.msnbc.msn.com/id/20459193/ and http://www.enn.com/energy/article/22416


Last week, Indonesian leaders and international conservation experts convened in Jakarta to develop a plan for saving elephant and tiger populations on the island of Sumatra. The three-day meeting also included Indonesian community and business leaders. Deforestation for logging and agriculture has decreased lowland tropical forest—prime elephant and tiger habitat—by eight million hectares in the last 15 years, according to satellite images. WWF Indonesia also called for actions to address land use conflicts, which have caused the death of humans as well as elephants and tigers. See http://www.enn.com/animals/article/22456

Copyright© 2007, Environmental Law Institute, Washington, D.C. All rights reserved.

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