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Weekly Update Volume 38, Issue 17

06/16/2008

LITIGATION

CAA, NESHAPS, SYNTHETIC ORGANIC CHEMICAL MANUFACTURING INDUSTRY:

The D.C. Circuit denied a petition for review of EPA's 2006 NESHAP for the synthetic organic chemical manufacturing industry. Petitioners challengedEPA's residual risk rulemaking under CAA §112(f) as well as the Agency's technology review under §112(d)(6). As for the Agency's residual risk rulemaking, the court rejected petitioners' claim that the CAA required EPA to tighten the standards for the industry so that the lifetime excess cancer risk to exposed persons would be no greater than one-in-one million. CAA§112(f)(2)(A) merely calls for standards that "provide an ample margin of safety to protect public health," and no distinction is drawn between carcinogens and non-carcinogens. Nor was EPA required to completely recalculate the maximum achievable control technology (MACT) determination under CAA§112(d)(6). In addition, EPA's consideration of costs in arriving at the initial MACT floor did not "taint" its technology review since itsreaffirmation of that standard in the final rulemaking was based on the lack of significant developments in technology. Last, EPA's use of data supplied by the industry to come to its conclusions was not arbitrary and capricious. Natural Resources Defense Council v. Environmental Protection Agency, No. 07-1053, 38 ELR 20137 (D.C. Cir. June 6, 2008).

SDWA, UNDERWATER INJECTION CONTROL:

The Eleventh Circuit denied a petition for review of EPA's 2005 rule amending underwater injection control (UIC) requirements for class 1 municipal disposal wells in Florida. The federal UIC rule prohibits injected wastewater from coming into contact with underground sources of drinking water (USDWs). The 2005 rule offers owners and operators of municipal disposal wells in certain counties in Florida the ability to continue to operate their wells, despite evidence of movement to USDWs, provided they meet additional wastewater treatment requirements. These new treatment requirements are designed to provide an equivalent level of protection to USDWs that is afforded by the no-fluid-movement standard. Petitioners failed to show that the rule is inconsistent with the statutory authority granted EPA under the SDWA, unsupported by the record, or otherwise arbitrary and capricious. In addition, EPA afforded sufficient public notice of both the elimination of the non-endangerment demonstration requirement and the application of the rule to new class I wells.Miami-Dade County v. United States Environmental Protection Agency, Nos. 06-10551 et al., 38 ELR 20136 (11th Cir. June 6, 2008).

FEDERAL MINING LEASE ACT, ROYALTIES:

The Tenth Circuit held that the Federal Mining Leasing Act (FMLA) does not provide political subdivisions of a state an implied cause of action to challenge the state's allocation of federal mineral royalties received under the Act. FMLA§191 directs the federal government to return 50% of federal mineral royalties generated from the lease of public lands to the state.It gives "priority to those subdivisions of the state socially or economically impacted by development of minerals leased."Water conservation districts argued that New Mexico, in failing to provide them a share of the royalties received under FMLA, is violating §191. Section 191, however, is too imprecise a standard to confer a cause of action. It provides no manageable substantive standards for the court to apply in determining what portion of the lease royalties properly belong to the districts. That Congress placed civil enforcement authority on the Attorney General under§195 to remedy FMLA violations reinforces the court's conclusion that Congress did not intend to create the cause of action the districts assert. At this point, their remedy lies in the political process rather than the judicial arena.Cuba Soil & Water Conservation District v. Lewis, No. 07-2218, 38 ELR 20132 (10th Cir. May 30, 2008).

ESA, MOOTNESS, VACATUR:

The D.C. Circuit vacated a lower court judgment enjoining DOI from authorizing the Wisconsin Department of Natural Resources to lethally take gray wolves for depredation control. Since the lower court issued its decision, DOI removed the gray wolf population located in the Western Great Lakes Region (which includes Wisconsin) from the endangered species list, thereby removing the species from ESA protection and mooting the government's and a hunting club's appeal. Because one of the parties seeking appellate relief--the hunting club--was not responsible for mooting the case, vacatur is warranted.Humane Society of the United States v. Kempthorne, Nos. 06-5396, -5397, 38 ELR 20134 (D.C. Cir. June 3, 2008).

INSURANCE, FUTURE COSTS, REMEDIATION:

The First Circuit certified to the Massachusetts Supreme Court questions concerning the allocation of liability in a dispute over the extent of insurance coverage owed for a gas company's strict liability for environmental cleanup costs at a former manufactured gas plant. At trial, the jury awarded the company over $6.1 million in past remediation expenses; the lower court also issued a declaratory judgment obligating the insurer to pay all future costs associated with the investigation and environmental cleanup of the site. Because the Massachusetts Supreme Court has not yet resolved the allocation questions at issue, certification is warranted here. But as for the future costs awarded in the lower court's declaratory judgment, the oil company cannot seek to recover future costs spent purely to remediate its own property where no threat exists of contamination outside the site. On remand, an adjustment is needed to clarify that the company's entitlement extends only to costs incurred for remediation not barred by the terms of the insurer's policies and consistent with the findings of the jury.Boston Gas Co. v. Century Indemnity Co., No. 07-1452, 38 ELR 20138 (1st Cir. June 10, 2008).

CERCLA, COST RECOVERY:

A district court dismissed an aircraft manufacturer's contribution action against the United States for response costs it incurred cleaning up trichloroethylene (TCE) contamination at the Tri-County Airport site in Herington, Kansas. The manufacturer argued that the U.S. government released TCE into the environment when it used the site as an army airfield in the 1940s. The court, however, concluded that the United States did not own or operate the site at the time TCE was released to the environment. Rather, it was the manufacturer's predecessor that released TCE to the environment during its operations at the site in the 1950s. Consequently, the manufacturer is solely liable under CERCLA. The court therefore granted the United State's counterclaim against the manufacturer for costs it incurred at the site.Raytheon Aircraft Co. v. United States, No. 05-2328, 38 ELR 20141 (D. Kan. May 30, 2008) (Lungstrum, J.).

EQUAL ACCESS TO JUSTICE ACT, ATTORNEYS FEES:

A district court held that a neighborhood association and environmental groups who succeeded on just one of their claims against the U.S. Army Corps of Engineers are entitled to attorneys fees and costs related to the entire litigation. Plaintiffs sought to enjoin the Corps from dredging, stirring up, releasing, and disposing of sediments at the Inner Harbor Navigational Canal in conjunction with a lock modernization project. The court held that the Corps failed to take a hard look at the project and enjoined the Corps from continuing with the project until it complied with NEPA. The plaintiffs then voluntarily dismissed their remaining claims. Because the plaintiffs' remaining claims were essentially mooted by plaintiffs' success on their claim for relief under NEPA, they are entitled to an award of fees for the hours reasonably expended on this litigation as a whole. In light of this finding, however, the court awarded fees and costs solely under the Equal Access to Justice Act, which caps the hourly rate for attorneys at $125 per hour. Consequently, the plaintiffs' request of $110,176.89 in fees and costs was lowered to $91,426.26.Holy Cross v. United States Army Corps of Engineers, No. 03-370, 38 ELR 20143 (E.D. La. May 30, 2008) (Fallon, J.).

ESA, BIOLOGICAL OPINION, SNOWMOBILING:

A district court set aside a biological opinion issued in conjunction with the Winter Motorized Recreation Plan for the Flathead National Forest. In establishing the environmental baseline from which it assessed the effects of the recreation plan on the grizzly bear, the FWS considered the current state of actual springtime snowmobile use on the forest, rather than the existing (although largely unenforced) rules prohibiting snowmobile use in the spring. In other words, the baseline for measurement and analysis accepts illegal use and then proceeds based on that faulty idea. This manipulation of the ESA process renders the FWS' analysis and "no jeopardy" conclusion unreliable. The recreation plan, including the opening of any portion of the Flathead National Forest to spring snowmobiling, may not be implemented until the FWS has completed a biological opinion that complies with the ESA.Swan View Coalition v. Barbouletos, No.CV 06-73-M-DWM, 38 ELR 20142 (D. Mont. May 28, 2008) (Molloy, J.).

CALIFORNIA ENVIRONMENTAL QUALITY ACT, ENVIRONMENTAL IMPACT REPORT:

The California Supreme Court reversed a lower court decision finding that the programmatic EIS and environmental impact report (EIR) for the CALFED Program--a long-term comprehensive plan designed by a consortium of 18 state and federal agencies (CALFED) to restore and improve the management of the California Bay-Delta--violated the California Environmental Quality Act (CEQA). CALFED's decision to consider only those alternatives that have the potential to achieve ecosystem restoration goals and meet current projected water export demands was reasonable. It therefore exercised its discretion properly in deciding not to consider a reduced water export alternative since that alternative would not achieve the CALFED Program's fundamental purpose. In addition, the programmatic EIS/EIR properly identified potential sources of water and analyzed the associated environmental effects in general terms. The programmatic EIS/EIR also complied with CEQA in analyzing the impacts of one of the CALFED Program's projects--the environmental water account--in general terms and deferring project-level details to subsequent project-level EIRs.In re Bay-Delta Programmatic Environmental Impact Report Coordinated Proceedings, No. S138974, 38 ELR 20135 (Cal. June 5, 2008).

CALIFORNIA ENVIRONMENTAL QUALITY ACT, ENVIRONMENTAL IMPACT REPORT:

A California appellate court affirmed a lower court's grant of summary judgment in favor of a city sued for certifying environmental impact reports (EIRs) and approving development projects on over 6,800 acres of undeveloped land in violation of the California Environmental Quality Act (CEQA). The court rejected claims that the EIRs failed todisclose the project's proposed annexation boundaries or to evaluate the environmental effects of the project as a whole. In addition, the EIRs provided an adequate and complete analysis of the project's water quality impacts, traffic impacts, and potentially feasible project alternatives. Sierra Club v. City of Orange, No. G037999, 38 ELR 20133 (Cal. Ct. App. 4th Dist. Apr. 30, 2008).

SOVEREIGN IMMUNITY, NONDISCRETIONARY DUTIES:

A Louisiana appellate court held that state law allows the state's environmental agency to be held liable for personal injury and property damages when a permittee has contaminated its neighbors' property and the agency knew about the toxic contamination but failed to properly regulate the permittee. Louisiana's hazardous waste statute requires the agency to perform annual "meaningful inspections" of permitted hazardous waste facilities. Because the agency's compliance with the statute does not involve policymaking or discretionary duties, sovereign immunity does not protect the agency from inspection-related lawsuits. Here, however, the property owners failed to produce any facts to support their allegation that the agency failed to conduct annual or meaningful inspections. Thus, a factfinder could not properly conclude that the agency failed to meet the non-discretionary duties it owed under the statute merely because the property at issue was contaminated as far back as 1979 and remediated more than 20 years later.Wilson v. Davis, No. 2007 CW 1929, 38 ELR 20139 (La. Ct. App. May 28, 2008).

CONTRIBUTION, VOLUNTARY ACTION:

An Ohio appellate court upheld the dismissal of a property owner's state contribution claim against a mega-store for costs incurred cleaning up mercury and lead contamination at a recycling facility. The owner failed to prepare and submit a "no further action letter" necessary to pursue contribution under state statute. The owner can only recover if the action he took constitutes a "voluntary action" in accordance with the governing statutes. And in order for the owner's conduct to be considered a voluntary action, thereby entitling him to seek contribution, he was required to obtain a no further action letter.Paxton v. Wal-Mart Stores, Inc., No. L-07-1220, 38 ELR 20140 (Ohio Ct. App. May 23, 2008).

Copyright© 2008, Environmental Law Institute, Washington, D.C. All rights reserved.

THE FEDERAL AGENCIES

Note: Citations below are to theFederal Register(FR).

AIR:

  • EPA expanded the list of acceptable substitutes for ozone-depleting substances for the motor vehicle air conditioning sector.73 FR 33304(6/12/08).
  • EPA proposed to amend the new source performance standards for electric utility steam-generating units and industrial-commercial-institutional steam-generating units and requested comment on the appropriate opacity standard for owners/operators of affected facilities.73 FR 33642(6/12/08).
  • EPA allocated essential use allowances for the import and production of Class I stratospheric ozone-depleting substances for calendar year 2008.73 FR 33007(6/11/08).
  • EPA extended the stay of certain requirements in the standards of performance for equipment leaks of volatile organic compounds (VOCs) in the synthetic organic chemicals manufacturing industry (SOCMI) and petroleum refineries.73 FR 31376(6/2/08).
  • EPA extended the stay of certain requirements in the standards of performance for equipment leaks of VOCs in the SOCMI and petroleum refineries pending a final decision.73 FR 31372(6/2/08).
  • EPA proposed amendments to NESHAPs for mercury emissions from mercury cell chlor-alkali plants.73 FR 33258(6/11/08).
  • EPA proposed extending the stay of certain requirements in the standards of performance for equipment leaks of VOCs in the SOCMI and petroleum refineries; see above for direct final rules.73 FR 31416(6/2/08).
  • EPA entered into a proposed consent decree under the CAA to take action on an application for a PSD permit to construct a coal-fired power plant on land held by the U.S. government in trust for the benefit of the Navajo Nation.73 FR 33087(6/11/08).
  • EPA entered into a proposed settlement agreement under the CAA requiring the Agency to either issue a decision denying an operating permit for a hazardous waste incinerator in Sauget, Illinois, or to complete the public participation process for a draft operating permit; the Agency would also pay plaintiffs a specified amount in settlement for attorneys' fees.73 FR 33089(6/11/08).
  • SIP Approvals: California (revisions to the Sacramento Metropolitan Air Quality Management District)73 FR 32240(6/6/08). Minnesota (interstate transport of air pollutants)73 FR 31366(6/2/08); (lead maintenance plan update for Dakota County)73 FR 31614(6/3/08). Pennsylvania (eight-hour ozone NAAQS and 2002 base-year inventory for the Wayne County area)73 FR 32238(6/6/08). South Carolina (PSD and nonattainment new source review rules)73 FR 31368(6/2/08).
  • SIP Proposals: California (revisions to the Sacramento Metropolitan Air Quality Management District; see above for direct final rule)73 FR 32274(6/6/08). Minnesota (interstate transport of air pollutants; see above for direct final rule)73 FR 31415(6/2/08); (lead maintenance plan update for Dakota County; see above for direct final rule)73 FR 31663(6/3/08). Pennsylvania (attainment of 1997 fine particle NAAQS for the Harrisburg-Lebanon-Carlisle area)73 FR 33754(6/13/08), (eight-hour ozone NAAQS and 2002 base-year inventory for the Schuylkill County area)73 FR 31947(6/5/08).

HAZARDOUS & SOLID WASTE:

  • EPA amended the list of hazardous wastes from non-specific sources to exempt wastewater treatment sludges from zinc phosphating in the motor vehicle manufacturing process.73 FR 31756(6/4/08).
  • EPA withdrew final authorization of revisions to Virginia's hazardous waste management program due to an adverse comment.73 FR 31634(6/3/08).
  • EPA entered into a de minimis settlement under CERCLA for reimbursement of past U.S. response costs concerning the BCX Tank Superfund site in Jacksonville, Florida.73 FR 32572(6/9/08).

MINING:

  • OSM announced receipt of a proposed amendment to the Wyoming Abandoned Mine Land Reclamation Plan and opened a public comment period.73 FR 31392(6/2/08).

TOXIC SUBSTANCES:

  • EPA amended regulations to the list of North American Industry Classification System reporting codes under the toxics release inventory to reflect 2007 revisions.73 FR 32466(6/9/08).

WATER:

  • EPA issued a regulation to clarify that water transfers are not subject to regulation under the NPDES permitting program.73 FR 33697(6/13/08).
  • PA announced approval of 99 alternative testing methods for use in measuring the levels of contaminants in drinking water and determining compliance with national primary drinking water regulations.73 FR 31616(6/3/08).

WILDLIFE:

  • FWS announced a 90-day finding on a petition to list the cactus ferruginous pygmy-owl as threatened or endangered under the ESA; the Agency found that listing may be warranted and initiated a status review.73 FR 31418(6/2/08).
  • NOAA-Fisheries published its proposed list of fisheries for 2009, as required by the Marine Mammal Protection Act.73 FR 33760(6/13/08).
  • NOAA-Fisheries proposed to delist the Caribbean monk seal under the ESA after concluding that the species is extinct.73 FR 32521(6/9/08).

DOJ NOTICES OF SETTLEMENT:

  • United States v. Colorado Structures, Inc., No. 08-CV-01217-MSK-KMT (D. Colo. June 6, 2008). A settling CWA defendant must provide injunctive relief and must pay civil penalties for permit violations at 16 construction sites in California, Colorado, Nevada, and South Dakota.73 FR 33851(6/13/08).
  • United States v. Encycle/Texas, Inc. & ASARCO Inc., No. H-99-1136 (S.D. Tex. June 6, 2008). Settling RCRA defendants must provide the United States, the state of Texas, and the Encycle Trustee with a combined allowed general unsecured claim against ASARCO LLC in the amount of $10 million to perform RCRA closure and corrective action requirements at the Encycle site in Corpus Christi, Texas.73 FR 33455(6/12/08).
  • United States v. Asti Holding Corp., No. CV-02-4749 (E.D.N.Y. May 14, 2008). Settling RCRA defendants must pay a $650,000 civil penalty and must provide injunctive relief over the next five years for violations of regulations governing underground storage tanks at 25 automobile fueling stations.73 FR 32601(6/9/08).
  • United States v. Kaman Aerospace Corp., No. 08-00794 (D. Conn. May 23, 2008). A settling CERCLA defendant must complete the remaining environmental remediation of the Naval Weapons Industrial Reserve Plant in Bloomfield, Connecticut, upon transfer from the U.S. Navy; each party releases the other from liability for all response costs incurred.73 FR 32357(6/6/08).
  • United States v. Waste Mgmt. of Illinois, Inc., No. 08-50094 (N.D. Ill. May 29, 2008). Settling CERCLA defendants must implement the EPA-selected remedy for the Evergreen Manor Groundwater Contamination Superfund site in Winnebago County, Illinois, and must pay $550,000 in U.S. response costs incurred at the site, as well as future costs of overseeing implementation of the remedial action.73 FR 32050(6/5/08).
  • United States v. Belle Tire Distr., Inc., No. 06cv0816 (W.D. Mich. May 22, 2008). Under four separate agreements, 15 settling CERCLA defendants must pay a total of $2,020,200 in U.S. response costs and prejudgment interest for removal action at a tire retreading site near Grawn in Grand Traverse County, Michigan.73 FR 31509(6/2/08).

Copyright© 2008, Environmental Law Institute, Washington, D.C. All rights reserved.

THE CONGRESS

Note: Citations below are to theFederal Register(FR).

Public Laws

  • S.J. Res. 17 (fish stocks), which directs the United States to initiate international discussions and take necessary steps with other nations to negotiate an agreement for managing migratory and transboundary fish stocks in the Arctic Ocean, was signed by President Bush on June 3, 2008. Pub. L. No. 110-243. 154 Cong. Rec. (daily ed. June 3, 2008).
  • H.R. 3522 (land conveyance), which ratifies a conveyance of a portion of the Jicarilla Apache Reservation to Rio Arriba County, New Mexico, under a settlement agreement between the Jicarilla Apache Nation and the county, authorizes issuance of a patent for said lands, and changes the exterior boundary of the Jicarilla Apache Reservation accordingly, was signed into law by President Bush on May 27, 2008. Pub. L. No. 110-236. 154 Cong. Rec. D661 (daily ed. June 2, 2008).

Chamber Action

  • S. 2146 (diesel emission reduction supplemental environmental projects), which would authorize the EPA Administrator to accept, as part of a settlement, diesel emission reduction supplemental environmental projects, was passed by the House. 154 Cong. Rec. H5361-62D737 (daily ed. June 12, 2008).
  • S. 2482 (salvage operations), which would repeal the provision of title 46, U.S. Code, requiring a license for employment in the business of salvaging on the coast of Florida, was passed by the Senate. 154 Cong. Rec. S5331 (daily ed. June 5, 2008).
  • H.R. 2632 (Sabinoso Wilderness Act of 2008), which would establish the Sabinoso Wilderness Area in San Miguel County, New Mexico, was passed by the House. 154 Cong. Rec. H5050-53 (daily ed. June 9, 2008).
  • H.R. 3022 (Sequoia and Kings Canyon National Parks Wilderness Act of 2008), which would designate the John Krebs Wilderness in the state of California and add certain land to the Sequoia-Kings Canyon National Park Wilderness, was passed by the House. 154 Cong. Rec. H5048-50 (daily ed. June 9, 2008).
  • H.R. 3682 (California Desert and Mountain Heritage Act of 2008), which would designate certain federal lands in Riverside County, California, as wilderness; designate certain river segments in Riverside County as a wild, scenic, or recreational river; and adjust the boundary of the Santa Rosa and San Jacinto Mountains National Monument, was passed by the House. 154 Cong. Rec. H5053-57 (daily ed. June 9, 2008).
  • H.R. 5540 (Chesapeake Bay Gateways and Watertrails Network Continuing Authorization Act), which would amend the Chesapeake Bay Initiative Act of 1998 to provide for the continuing authorization of the Chesapeake Bay Gateways and Watertrails Network, was passed by the House. 154 Cong. Rec. H4980-89, H5002-03, H5004-16 (daily ed. June 5, 2008).
  • H.R. 5778(District of Columbia Water and Sewer Authority Independence Preservation Act),which would preserve the independence of the District of Columbia Water and Sewer Authority, was passed by the House. 154 Cong. Rec. H5084-85 (daily ed. June 9, 2008).
  • H.R. 5940 (National Nanotechnology Initiative Amendments Act of 2008), which would authorize activities for support of nanotechnology research and development, was passed by the House. 154 Cong. Rec. H5004 (daily ed. June 5, 2008).
  • H.R. 6124 (Food, Conservation, and Energy Act), which would provide for the continuation of agricultural and other USDA programs through fiscal year 2012, was passed by the Senate, clearing the measure for the president. 154 Cong. Rec. S5182-88 (daily ed. June 5, 2008).
  • H. Res. 1158 (Ozark National Forest), which would recognize the 100th anniversary of the establishment of the Ozark National Forest in Arkansas, was passed by the House. 154 Cong. Rec. H5057-59 (daily ed. June 9, 2008).

Committee Action

  • S. 2355 (National Climate Program Act)was reported by the Committee on Commerce, Science, and Transportation. S. Rep. No. 110-347. 154 Cong. Rec. S5204 (daily ed. June 5, 2008). The bill would amend the National Climate Program Act to enhance the ability of the United States to develop and implement climate change adaptation programs and policies.
  • H.R. 781 (Colonel Charles D. Maynard Lock and Dam)was reported by the Committee on Environment and Public Works. H. Rep. No. 110-229, 154 Cong. Rec. S5039 (daily ed. June 4, 2008). The bill would redesignate Lock and Dam No. 5 of the McClellan-Kerr Arkansas River Navigation System near Redfield, Arkansas, authorized by the Rivers and Harbors Act approved July 24, 1946, as the "Colonel Charles D. Maynard Lock and Dam."
  • H.R. 2632 (Sabinoso Wilderness Area)was reported by the Committee on Natural Resources. H. Rep. No. 110-695, 154 Cong. Rec. H5042 (daily ed. June 5, 2008). The bill would establish the Sabinoso Wilderness Area in San Miguel County, New Mexico.
  • H.R. 3022 (wilderness designation)was reported by the Committee on Natural Resources. H. Rep. No. 110-694, 154 Cong. Rec. H5042 (daily ed. June 5, 2008). The bill would designate the John Krebs Wilderness in the state of California and would add certain land to the Sequoia-Kings Canyon National Park Wilderness.
  • H.R. 3682 (wilderness designation)was reported by the Committee on Natural Resources. H. Rep. No. 110-693, 154 Cong. Rec. H5042 (daily ed. June 5, 2008). The bill would designate certain federal lands in Riverside County, California, as wilderness; designate certain river segments in Riverside County as a wild, scenic, or recreational river; and adjust the boundary of the Santa Rosa and San Jacinto Mountains National Monument.
  • H.R. 3754 (diesel emission reduction supplemental environmental projects)was reported by the Committee on Energy and Commerce. H. Rep. No. 110-705, 154 Cong. Rec. (daily ed. June 10, 2008). The bill would authorize the Administrator of EPA to accept, as part of a settlement, diesel emission reduction supplemental environmental projects.
  • H.R. 5541 (wildland fire management)was reported by the Committee on Natural Resources. H. Rep. No. 110-704 Pt. 1, 154 Cong. Rec. H5213 (daily ed. June 5, 2008). The bill would provide a supplemental funding source for catastrophic emergency wildland fire suppression activities on DOI and National Forest System lands, and would require the Secretary of the Interior and the Secretary of Agriculture to develop a cohesive wildland fire management strategy.
  • H.R. 5680 (Native Americans)was reported by the Committee on Natural Resources. H. Rep. No. 110-692, 154 Cong. Rec. H5042 (daily ed. June 5, 2008). The bill would amend certain laws relating to Native Americans.
  • H.R. 5770 (climate change)was reported by the Committee on Transportation and Infrastructure. H. Rep. No. 110-685 Pt. 1, 154 Cong. Rec. H4973 (daily ed. June 4, 2008). The bill would provide for a study by the National Academy of Sciences of potential impacts of climate change on water resources and water quality.
  • H.R. 5940 (nanotechnology)was reported by the Committee on Science and Technology. H. Rep. No. 110-682, 154 Cong. Rec. H4973 (daily ed. June 4, 2008). The bill would authorize activities for support of nanotechnology research and development.
  • H. Res. 1233 (Chesapeake Bay Initiative Act)was reported by the Committee on Rules. H. Rep. No. 110-677, 154 Cong. Rec. H4876 (daily ed. June 3, 2008). The resolution would provide for consideration of the bill (H.R. 5540) to amend the Chesapeake Bay Initiative Act of 1998 to provide for the continuing authorization of the Chesapeake Bay Gateways and Watertrails Network.

Bills Introduced

  • S. 3085 (Tester, D-Mont.) (watershed management)would require the Secretary of the Interior to establish a cooperative watershed management program. 154 Cong. Rec. S5204 (daily ed. June 5, 2008). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 3088 (Wyden, D-Or.) (wilderness designation)would designate certain land in the state of Oregon as wilderness. 154 Cong. Rec. S5204 (daily ed. June 5, 2008). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 3089 (Wyden, D-Or.) (wilderness designation)would designate certain land in the state of Oregon as wilderness, and would provide for the exchange of certain federal and non-federal land. 154 Cong. Rec. S5204 (daily ed. June 5, 2008). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 3094 (Lautenberg, D-N.J.) (National Trails System Act)would amend the National Trails System Act to provide for a study of the Long Path Trail, a system of trails and potential trails running from Fort Lee, New Jersey, to the Adirondacks in New York, and would determine whether to add the trail to the National Trails System. 154 Cong. Rec. S5204 (daily ed. June 5, 2008). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 3096 (Bingaman, D-N.M.) (National Cave and Karst Research Institute)would amend the National Cave and Karst Research Institute Act of 1998 to authorize appropriations for the National Cave and Karst Research Institute. 154 Cong. Rec. S5366 (daily ed. June 6, 2008). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 3109 (Thune, R-S.D.) (Solid Waste Disposal Act)would amend the Solid Waste Disposal Act to direct the EPA Administrator to establish a hazardous waste electronic manifest system. 154 Cong. Rec. S5447 (daily ed. June 10, 2008). The bill was referred to the Committee on Environment and Public Works.
  • S. 3113 (Dole, R-N.C.) (Cape Hatteras National Seashore)would reinstate the Interim Management Strategy governing off-road vehicle use in the Cape Hatteras National Seashore, North Carolina, pending the issuance of a final rule for off-road vehicle use by the National Park Service. 154 Cong. Rec. S5523 (daily ed. June 11, 2008). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 3119 (Collins, R-Me.) (energy efficiency)would stimulate the economy by encouraging energy efficiency, infrastructure and workforce investment, and homeownership retention, and would amend the Internal Revenue Code of 1986 to provide certain business tax relief and incentives. 154 Cong. Rec. S5592 (daily ed. June 12, 2008). The bill was referred to the Committee on Finance.
  • S. 3124 (Smith, R-Or.) (environmental training and education)would require the Secretary of Labor to establish a program to provide for workforce training and education, at community colleges, in the fields of renewable energy and efficiency, green technology, and sustainable environmental practices. 154 Cong. Rec. S5592 (daily ed. June 12, 2008). The bill was referred to the Committee on Health, Education, Labor, and Pensions.
  • S. 3126 (Coleman, R-Minn.) (energy resources)would provide for the development of certain traditional and alternative energy resources. 154 Cong. Rec. S5592 (daily ed. June 12, 2008). The bill was referred to the Committee on Finance.
  • S. 3128 (Kyl, R-Ariz.) (water system project)would direct the Secretary of the Interior to provide a loan to the White Mountain Apache Tribe for use in planning, engineering, and designing a certain water system project. 154 Cong. Rec. S5592 (daily ed. June 12, 2008). The bill was referred to the Committee on Indian Affairs.
  • S. 3132 (Baucus, D-Mont.) (carbon dioxide)would amend the Internal Revenue Code of 1986 to allow a credit for the capture and sequestration of carbon dioxide from an industrial source. 154 Cong. Rec. S5592 (daily ed. June 12, 2008). The bill was referred to the Committee on Finance.
  • S. 3133 (Dodd, D-Conn.) (production incentive fee) would direct the Secretary of the Interior to establish an annual production incentive fee with respect to federal onshore and offshore land that is subject to a lease for production of oil or natural gas under which production is not occurring, and would authorize use of the fee for energy efficiency and renewable energy projects. 154 Cong. Rec. S5592 (daily ed. June 12, 2008). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 3135 (Nelson, D-Fla.) (Outer Continental Shelf Lands Act)would amend the Outer Continental Shelf Lands Act to provide for the establishment of a production incentive fee for nonproducing leases. 154 Cong. Rec. S5592 (daily ed. June 12, 2008). The bill was referred to the Committee on Energy and Natural Resources.
  • H.R. 6170 (Capito, R-W. Va.) (coal-derived fuel)would require the inclusion of coal-derived fuel at certain volumes in aviation fuel, motor vehicle fuel, home heating oil, and boiler fuel. 154 Cong. Rec. H4877 (daily ed. June 3, 2008). The bill was referred to the Committee on Energy and Commerce.
  • H.R. 6171 (Lungren, R-Cal.) (energy efficiency)would provide for the establishment of a commission and a national competition to significantly improve the energy efficiency of and reduce emissions from federal buildings in the National Capital Region. 154 Cong. Rec. H4877 (daily ed. June 3, 2008). The bill was referred to the Committee on Oversight and Government Reform.
  • H.R. 6177 (Rodriguez, D-Tex.) (Wild and Scenic Rivers Act)would amend the Wild and Scenic Rivers Act to modify the boundary of the Rio Grande Wild and Scenic River. 154 Cong. Rec. H4973 (daily ed. June 4, 2008). The bill was referred to the Committee on Natural Resources.
  • H.R. 6182 (Boucher, D-Va.) (land conveyance)would convey the New River State Park campground located in the Mount Rogers National Recreation Area in the Jefferson National Forest in Carroll County, Virginia, to the commonwealth of Virginia. 154 Cong. Rec. H4974 (daily ed. June 4, 2008). The bill was referred to the Committee on Natural Resources and to the Committee on Agriculture.
  • H.R. 6184 (Castle, R-Del.) (national parks)would provide for a program for circulating quarter dollar coins that are emblematic of a national park or other national site in the District of Columbia and in each state and territory of the United States. 154 Cong. Rec. H4974 (daily ed. June 4, 2008). The bill was referred to the Committee on Financial Services.
  • H.R. 6186 (Markey, D-Mass.) (greenhouse gases)would direct the Administrator of EPA to establish a program to decrease emissions of greenhouse gases. 154 Cong. Rec. H4974 (daily ed. June 4, 2008). The bill was referred to the Committees on Energy and Commerce, on Ways and Means, Science and Technology, Natural Resources, Agriculture, Foreign Affairs, Education and Labor, Transportation and Infrastructure, Oversight and Government Reform, and Rules.
  • H.R. 6189 (Tancredo, R-Colo.) ("Charter Forest" project)would require the Secretary of Agriculture to conduct a "Charter Forest" demonstration project on all National Forest System lands in the state of Colorado in order to combat insect infestation, improve forest health, reduce the threat of wildfire, protect biological diversity, and enhance the social sustainability and economic productivity of the lands. 154 Cong. Rec. H4974 (daily ed. June 4, 2008). The bill was referred to the Committee on Natural Resources.
  • H.R. 6194 (Pascrell, D-N.J.) (water and sewage facilities)would amend the Internal Revenue Code of 1986 to provide that the volume cap for private activity bonds shall not apply to bonds for facilities for the furnishing of water and sewage facilities. 154 Cong. Rec. H5043 (daily ed. June 5, 2008). The bill was referred to the Committee on Ways and Means.
  • H.R. 6195 (Altmire, D-Pa.) (commemorative work)would authorize the Korean War Veterans Association to establish a commemorative work on federal land in the District of Columbia near the Korean War Memorial on the Mall to honor members of the Armed Forces who have served in Korea since July 28, 1953. 154 Cong. Rec. H5043 (daily ed. June 5, 2008). The bill was referred to the Committee on Natural Resources.
  • H.R. 6200 (Hinchey, D-N.Y.) (National Trails System Act)would amend the National Trails System Act to provide for a study of the Long Path Trail, a system of trails and potential trails running from Fort Lee, New Jersey, to the Adirondacks in New York, and would determine whether to add the trail to the National Trails System. 154 Cong. Rec. H5043 (daily ed. June 5, 2008). The bill was referred to the Committee on Natural Resources.
  • H.R. 6202 (Moran, D-Va.) (animal protection)would promote the well-being of animals held for commercial use by providing such animals protection from cruelty and abuse. 154 Cong. Rec. H5043 (daily ed. June 5, 2008). The bill was referred to the Committee on Agriculture.
  • H.R. 6204 (Stupak, D-Mich.) (Thunder Bay National Marine Sanctuary)would expand the boundaries of the Thunder Bay National Marine Sanctuary and Underwater Preserve. 154 Cong. Rec. H5043 (daily ed. June 5, 2008). The bill was referred to the Committee on Natural Resources.
  • H.R. 6207 (Akin, R-Mo.) (energy)would seek to develop American energy independence, lower gas prices, and open reliable national sources of energy. 154 Cong. Rec. H5110 (daily ed. June 9, 208). The bill was referred to the Committees on Energy and Commerce, Ways and Means, Rules, and Natural Resources.
  • H.R. 6211 (Cannon, R-Utah) (oil shale resources)would allow vast oil shale and tar sands resources on federal lands to be developed by providing the president with the ability to determine the quickest and most responsible way to access oil shale resources. 154 Cong. Rec. H5110 (daily ed. June 9, 208). The bill was referred to the Committee on Natural Resources and to the Committee on Science and Technology.
  • H.R. 6218 (Weiner, D-N.Y.) (green buildings)would provide for loan guarantees for retrofitting high-performance green buildings. 154 Cong. Rec. H5110 (daily ed. June 9, 2008). The bill was referred to the Committee on Energy and Commerce and to the Committee on Science and Technology.
  • H.R. 6222 (Hastings, D-Fla.) (fuel credits)would amend the Internal Revenue Code of 1986 to allow a nonrefundable credit against income tax liability for gasoline and diesel fuel used in highway vehicles for nonbusiness purposes. 154 Cong. Rec. H5213 (daily ed. June 10, 2008). The bill was referred to the Committee on Ways and Means.
  • H.R. 6223 (Heller, R-Nev.) (land conveyance)would provide for the conveyance of certain BLM land in the state of Nevada to the Las Vegas Motor Speedway. 154 Cong. Rec. H5213 (daily ed. June 10, 2008). The bill was referred to the Committee on Natural Resources.
  • H.R. 6231 (Tancredo, R-Colo.) (alternative fueled automobiles)would amend title 49, U.S. Code, to require that any automobile manufactured by a manufacturer after model year 2018 be an alternative fueled automobile. 154 Cong. Rec. H5213 (daily ed. June 10, 2008). The bill was referred to the Committee on Energy and Commerce.
  • H.R. 6233 (Jones, R-N.C.) (Cape Hatteras National Seashore)would reinstate the Interim Management Strategy governing off-road vehicle use in the Cape Hatteras National Seashore, North Carolina, pending the issuance of a final rule for off-road vehicle use by the National Park Service. 154 Cong. Rec. H5327 (daily ed. June 11, 2008). The bill was referred to the Committee on Natural Resources and to the Committee on the Judiciary.
  • H.R. 6249 (Kuhl, R-N.Y.) (energy efficiency) would establish a direct loan program for providing energy efficiency improvements for single family housing. 154 Cong. Rec. H5406 (daily ed. June 12, 2008). The bill was referred to the Committee on Financial Services.
  • H.R. 6251 (Rahall, D-W. Va.) (oil and gas leases)would prohibit the Secretary of the Interior from issuing new federal oil and gas leases to holders of existing leases who do not diligently develop the lands subject to such existing leases or relinquish such leases. 154 Cong. Rec. H5406 (daily ed. June 12, 2008). The bill was referred to the Committee on Natural Resources.
  • H.R. 6256 (Markey, D-Mass.) (production incentive fee)would direct the Secretary of the Interior to establish an annual production incentive fee with respect to federal onshore and offshore lands that are subject to a lease for production of oil or natural gas under which production is not occurring; and would authorize use of amounts received as such fee for energy efficiency and renewable energy projects. 154 Cong. Rec. H5406 (daily ed. June 12, 2008). The bill was referred to the Committees on Natural Resources, Science and Technology, Energy and Commerce, and Education and Labor.
  • H.R. 6258 (Rahall, D-W. Va.) (carbon dioxide emissions)would accelerate the development and early deployment of systems for the capture and storage of carbon dioxide emissions from fossil fuel electric generation facilities. 154 Cong. Rec. H5407 (daily ed. June 12, 2008). The bill was referred to the Committee on Energy and Commerce and to the Committee on Science and Technology.
  • H.R. 6260 (Forbes, R-Va.) (energy independence)would ensure the energy independence of the United States by promoting research, development, demonstration, and commercial application of technologies through a system of grants and prizes on the scale of the original Manhattan Project. 154 Cong. Rec. H5407 (daily ed. June 12, 2008). The bill was referred to the Committee on Science and Technology.
  • H.R. 6271 (Weiner, D-N.Y.) (green building certification program)would provide for a green building certification program as part of the Energy Star program. 154 Cong. Rec. H5407 (daily ed. June 12, 2008). The bill was referred to the Committee on Energy and Commerce.
  • H. Res. 1239 (Ros-Lehtinen, R-Fla.) (Jacques-Yves Cousteau)would honor the life of Jacques-Yves Cousteau, explorer, researcher, and pioneer in the field of marine conservation. 154 Cong. Rec. H4974 (daily ed. June 4, 2008). The resolution was referred to the Committee on Natural Resources.
  • H. Res. 1247 (Davis, R-Tenn.) ("American Eagle Day")would support the goals and ideals of "American Eagle Day" and celebrate the recovery and restoration of the American bald eagle, the national symbol of the United States. 154 Cong. Rec. H5044 (daily ed. June 5, 2008). The resolution was referred to the Committee on Natural Resources.

Copyright© 2008, 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. For a cumulative listing of materials reported in 2008, visit our list ofCumulative State Developments Arranged by State, or our list ofCumulative State Developments Arranged by Subject Matter. For state material reported prior to 2008, visit theELR Archives.

The states below have updates this week:

Alabama Delaware Indiana Maine Michigan Nevada Oregon Texas
Alaska Georgia Iowa Maryland Minnesota New York Rhode Island Utah
California Idaho Kentucky Massachusetts Missouri North Carolina South Dakota  

ALABAMA

Fisheries:

Land Use:

Wildlife:

ALASKA

Land Use :

CALIFORNIA

Water:

  • The California State Lands Commission seeks public comment on a proposed rulemaking that specifies reporting requirements and instructions for vessels carrying ballast water into the coastal waters of the state. Comments are due July 21, 2008. Seehttp://www.oal.ca.gov/pdfs/notice/23z-2008.pdf(p. 880)

DELAWARE


Fisheries:

GEORGIA

Air:

  • The Georgia Environmental Protection Division proposed amendments to numerous provisions of the state's rules on air quality control at Chapter 391-3-1. The proposed amendments will be considered for adoption on June 25, 2008. Seehttp://www.gaepd.org/environet/1/notice_20080505.pdf.

IDAHO

Water:

  • The Idaho Department of Environmental Quality issued a final decision on the sediment and bacteria allocations for discharges flowing into the lower Boise River. The TMDL Addendum has been submitted to the U.S. EPA for approval. Seehttp://adm.idaho.gov/adminrules/bulletin/bul/08jun.pdf(p. 80)

Wildlife:

  • The Idaho Department of Agriculture, Division of Animal Industries, proposed to amend criteria for permits to import, possess, and breed deleterious exotic animals. The rule will also consider amendment of the state's list of deleterious exotic animals. The comment period expired June 10, 2008. Seehttp://adm.idaho.gov/adminrules/bulletin/bul/08jun.pdf(p. 26)

INDIANA

Water:

Wildlife:

IOWA

Air:

  • The Iowa Environmental Protection Commission issued a notice on several proposed amendments to existing air quality rules. The proposed amendments are intended to correct, clarify, and improve existing rules for air quality definitions, electronic submittal of applications and inventories, temporary operation of small generators during disaster periods, construction permitting provisions, portable plant relocation notifications, Title V definitions and permitting provisions, Acid Rain program provisions, emission standards for hazardous air pollutants, test methods and procedures, and PSD permitting provisions. A public hearing will be held July 7, 2008. Comments are due July 8. Seehttp://www.legis.state.ia.us/Rules/Current/Bulletin/IAB080604.pdf(p. 1732)

KENTUCKY

Fisheries:

Water:

MAINE

Air:

Land Use:

MARYLAND

Air:

Climate:

Wildlife:

MASSACHUSETTS

Air:

  • The Massachusetts Department of Environmental Protection is proposing an amendment to air pollution control regulations in order to address outdoor wood boilers. A hearing will be held on June 23, 2008. Comments are due July 3, 2008. Seehttp://www.mass.gov/dep/service/regulations/newregs.htm#owb.

MICHIGAN

Wildlife:

MINNESOTA

Land Use:

MISSOURI

Air:

  • The Missouri Department of Natural Resources is proposing the rescission of a regulation specifying the time schedule for compliance with air quality standards in the Kansas City metropolitan area. The regulation's outdated timeline has resulted in confusion among the regulated community. Seehttp://www.sos.mo.gov/adrules/moreg/current/2008/v33n11/v33n11.pdf(p. 1077)

General:

Wildlife:

NEVADA

Water:

  • The Nevada Department of Conservation and Natural Resources, Environmental Commission, is holding a regulatory hearing June 17, 2008. The Commission seeks public comment on proposed changes to water quality standards. Seehttp://www.sec.nv.gov/docs/agenda_all_061708.pdf.

Wildlife:

NEW YORK

Climate:

  • The New York Department of Environmental Conservation seeks public comment on revisions to 6 NYCRR Part 242, which establishes a market-based program designed to cap and reduce carbon dioxide emissions from power plants by 10% by 2019. Comments are due June 23, 2008. Seehttp://www.dec.ny.gov/regulations/43552.html.

Fisheries:

NORTH CAROLINA

Air:

  • The North Carolina Department of Environment and Natural Resources, Environmental Management Commission, gives notice of its intention to amend portions of 15A NCAC 02D and 15A NCAC 02Q and to repeal 15A NCAC 02D .0953-.0954, regulations addressing air quality requirements. Public comments are due August 1, 2008. Seehttp://www.ncoah.com/rules/register/Volume22Issue23June22008.pdf(pp. 2073-2109)

OREGON

Climate:

General:

  • The Oregon Department of Agriculture intends to implement a statute mandating biodiesel fuel blends; monitoring production, use, and sales of biodiesel and ethanol; requiring biodiesel fuel certificates of analysis; and implementing Enrolled Senate Bill 1079 exceptions to blending ethanol with gasoline. A hearing will be held June 24, 2008. Comments are due July 1, 2008. Seehttp://arcweb.sos.state.or.us/rules/0608_Bulletin/0608_rulemaking_bulletin.html .

Wildlife:

RHODE ISLAND

Water:

  • The Rhode Island Department of Environmental Management, Office of Water Resources, gives notice of a public hearing on proposed amendments to the Rules and Regulations for the Priority Determination System for Federal and State Assistance to Local Governmental Units for Construction of Water Pollution Abatement Projects. The amendments will update project rating criteria. The hearing will be held June 16, 2008. Seehttp://www.dem.ri.gov/programs/benviron/water/finance/srf/pnprior.htm.

SOUTH DAKOTA

Water:

  • The South Dakota Department of Environment and Natural Resources, Water Management Board, filed rules to amend ground quality regulations. The amendments require secondary containment and leak monitoring for new and replacement tank systems located within 1,000 feet of an existing community water system or any potable drinking water well, require department approved training for owners and operators of regulated tank systems, and make it illegal for non-compliant tank systems to receive delivery of regulated substances. A public hearing will be held July 2, 2008. Comments are due June 27, 2008. Seehttp://legis.state.sd.us/rules/register/06092008.pdf(p. 316)

TEXAS

Hazardous & Solid Wastes:

Water:

  • The Texas Commission on Environmental Quality is proposing a new regulation that implements Senate Bill 1037, which requires the development of standards to prevent the contamination of ground and surface water resources from brine evaporation pit operations. The rule includes specific criteria for the design and construction of brine evaporation pits and requires the establishment of location, operation, and maintenance criteria. Seehttp://www.sos.state.tx.us/texreg/sos/PROPOSED/30.ENVIRONMENTAL%20QUALITY.html#254

UTAH

Air:

  • The Utah Department of Environmental Quality is proposing to amend R307-302-3 to reflect U.S. EPA changes to the NAAQS for PM2.5. The proposed amendment triggers a no-burn period when the Utah Division of Air Quality forecasts an exceedance of the NAAQS. Seehttp://www.rules.utah.gov/publicat/bull_pdf/2008/b20080601.pdf(pp. 91-93)

Toxic Substances:

Copyright© 2008, Environmental Law Institute, Washington, D.C. All rights reserved.

INTERNATIONAL

INDIA PROJECTS HIGHLIGHT FLAWS IN CLEAN DEVELOPMENT MECHANISM

Projects in India set to receive substantial carbon credits through the U.N. Clean Development Mechanism (CDM) demonstrate that CDM funds may not be influencing the decisions of companies in developing countries. Although these companies will receive carbon credits for utilizing technologies that reduce greenhouse gas emissions, a BBC World Services investigation revealed that these changes would have been instituted regardless of CDM compensation. See http://news.bbc.co.uk/2/hi/business/7436263.stm.

NEW PEST COULD IMPACT BRAZIL'S SUGAR CANE CROP

The giant cane borer, a pest that significantly damages sugar cane, could cause annual crop losses of up to $245 million in Sao Paulo, Brazil's largest sugar cane growing state. While this pest is common in Brazil's northeastern states, the giant cane borer was seen for the first time in Sao Paulo in July 2007. Since giant cane borer is a new pest to Brazil's center-south, combative methods have not yet been sufficiently developed. See http://www.reuters.com/article/environmentNews/idUSN1034679220080611?feedType=RSS&feedName=environmentNews&pageNumber=1&virtualBrandChannel=0.

EUROPEAN COMMISSION SUPPORTS CAR COMPROMISE BETWEEN FRANCE AND GERMANY

Europe's two largest car manufacturing countries reached a compromise to share the burden of cutting carbon dioxide emissions from new cars. The European Commission, which previously proposed limiting emissions from new cars, announced its support of France's and Germany's goal. Despite this endorsement from the EU, the compromise has received some criticism, with the European Federation for Transport and Environment saying the deal would "hinder the development of fuel-efficient cars in the EU for the next decade." Seehttp://www.reuters.com/article/environmentNews/idUSBRU00657820080610?feedType=RSS&feedName=environmentNews&pageNumber=1&virtualBrandChannel=0

Copyright© 2008, Environmental Law Institute, Washington, D.C. All rights reserved.

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