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Weekly Update Volume 38, Issue 19

07/07/2008

LITIGATION

CWA, PUNITIVE DAMAGES:

The U.S. Supreme Court overturned $2.5 billion in punitive damages imposed on an oil shipping company in connection with theExxon Valdezoil spill. The CWA's water pollution penalties do not preempt punitive damages awards in maritime spill cases. Nevertheless, the punitive damages award was excessive as a matter of maritime common law. The award should be limited to an amount equal to compensatory damages--in this case, $507.5 million. The Court, however, was equally divided on whether maritime law allows corporate liability for punitive damages based on the acts of managerial agents. It therefore left the Ninth Circuit’s opinion undisturbed in this respect. Souter, J., delivered the opinion of the Court, in which Roberts, C.J., and Scalia, Kennedy, and Thomas, JJ., joined, and in which Stevens, Ginsburg, and Breyer, JJ., joined, as to Parts I, II, and III. Scalia, J., filed a concurring opinion, in which Thomas, J., joined. Stevens, J., Ginsburg, J., and Breyer, J., filed opinions concurring in part and dissenting in part. Alito, J., took no part in the consideration or decision of the case.Exxon Shipping Co. v. Baker, No. 07-219, 38 ELR 20149 (U.S. June 25, 2008).

CAA, CONSENT DECREE:

The Fifth Circuit upheld a lower court order giving an aluminum company more time to build a power plant than originally agreed to in a consent decree that resolved alleged CAA violations at the company's manufacturing plant. After the company failed to meet the decree's deadline for commencing operation of the new plant, the lower court entered an order giving the company more time to build the plant and commence operation. The order also required more pollution control technology and stricter emissions limitations. The citizen groups appealed, but their arguments were rejected. The lower court's actions were a remedy to the violation of the consent decree, not a modification. In addition, the stipulated order maintained most of the decree's obligations and strengthened some others. And the court did not abuse its discretion in implementing the new remedy.United States v. Alcoa, Inc., Nos. 07-50706, -50820, 38 ELR 20152 (5th Cir. June 24, 2008).

ESA, LISTING:

The Ninth Circuit held that the FWS does not have an enforceable duty to promptly withdraw the threatened marbled murrelet from the protections of the ESA after its five-year review found that the species does not fit into one of the several types of population categories protected under the Act. Murrelets living in Washington, Oregon, and California—the tri-state murrelets—were listed under the ESA as a threatened species. The FWS' five-year review of the listing concluded that the tri-state murrelets do not meet the definition of a "distinct population segment," one of the population categories that may be protected under the ESA, but the agency determined that they nonetheless remained threatened because they occupied a significant portion of the range of the entire species. A county filed a citizen suit arguing that the FWS should have promptly removed the tri-state murrelets from the list of threatened species. The court rejected the claims. FWS' five-year review determination did not implicate §4(b)(3)(B)(ii)'s requirement to “promptly publish” a proposed rule within 12 months after receiving a petition to alter a species' listing status because the county has not filed a petition to alter the species' listing. If the county wishes to force FWS to act swiftly on delisting the tri-state murrelets, the petition process is open to it.Coos County Board of County Commissions v. Kempthorne, No. 06-35634, 38 ELR 20153 (9th Cir. June 26, 2008).

RCRA, NATIVE AMERICANS, STANDING:

The Ninth Circuit held that Native American tribes lacked standing to enforce a consent decree entered into by a mining company and the federal government for RCRA violations at the company's phosphorous plant located on land within a tribal reservation. In addition to entering into a consent decree with the federal government, the company agreed to pay the tribes $1.5 million per year in lieu of applying for certain tribal permits. In 2001, the company ceased some of its mining operations, stopped making its annual payments to the tribes, and refused to apply for certain tribal permits. A lower court ruled that the tribes may enforce the consent decree as third-party beneficiaries. The consent decree, however, contains a paragraph that disclaims any intent to grant rights to third parties. When a consent decree explicitly provides that a third party is not to have enforcement rights, that third party is considered an incidental beneficiary. And incidental third-party beneficiaries may not enforce consent decrees; only intended third-party beneficiaries may. The lower court's ruling was therefore reversed.United States v. FMC Corp., No. 06-35429, 38 ELR 20154 (9th Cir. June 27, 2008).

NATIONAL FORESTS, NEPA, NATIONAL FOREST MANAGEMENT ACT:

The Ninth Circuit affirmed in part and reversed in part a lower court judgment holding that the U.S. Forest Service complied with NEPA and the National Forest Management Act (NFMA) in connection with a salvage logging operation conducted in the aftermath of a forest fire in the Umatilla National Forest. The court agreed with the Forest Service that its site-specific amendment to the definition of "live trees" was not significant. In addition, the soil analysis contained in the EIS for the project violated neither NEPA nor the NFMA. The Forest Service, however, failed to include an adequate discussion of the effects of proposed logging on two significant roadless areas. The EIS contains a three-page analysis on "roadless character," but the cursory nature of the discussion and legal errors in it render it insufficient to meet the requirements of NEPA.Lands Council v. Martin, No. 07-35804, 38 ELR 20151 (9th Cir. June 25, 2008).

NATIONAL FORESTS, ARSON, SENTENCING:

The Ninth Circuit affirmed an individual's 10-year sentence for starting nine wildland fires on National Forest Service land. The lower court did not err in calculating the advisory sentencing guidelines range when it included fire suppression costs in the loss calculation, thereby resulting in an elevated total offense level. Nor was the sentence unreasonably long. And although the lower court should have given the defendant advance notice that it would be relying on a statistical study about recidivism in young offenders during the sentencing hearing, its failure to do so did not constitute plain error.United States v. Warr, No. 07-30125, 38 ELR 20160 (9th Cir. July 2, 2008).

CAA, AUTOMOBILES, GREENHOUSE GAS EMISSIONS:

A district court denied the automobile industry's motion to modify the scope of an injunction prohibiting California or any of its political subdivisions from enforcing the state's vehicle-related greenhouse gas regulations if and when a waiver of federal preemption under the CAA is granted. In March, the California Air Resources Board (CARB) issued an executive order requiring automobile manufactures to comply with the greenhouse gas regulations within 45 days should the injunction cease to be in effect. At present, EPA has not granted a waiver of federal preemption. Nor has Congress passed any legislation that would allow California to implement the provisions. CARB, therefore, is in no more or less of a position to enforce its regulations now than it was at the time the injunction was filed. CARB’s executive order changes absolutely nothing. While EPA’s refusal to grant California its request waiver of federal preemption is an event of sorts in California’s effort to enforce its regulations, it does not represent a change of circumstances that would compel reexamination of the injunction. The auto industry also failed to show how issues of equity are implicated here. Environmental regulation is a constantly evolving part of the normal business landscape, and the industry provided no basis for the notion that courts should insulate businesses from the consequences of business decision that are related to pending environmental regulation.Central Valley Chrysler-Jeep Inc. v. Goldstene, No. CV F 04-6663, 38 ELR 20150 (E.D. Cal. June 24, 2008) (Ishii, J.).

INSURANCE, ACCRUAL DATE:

A district court held that an oil company's claims against its insurer for the costs of cleaning up and redeveloping a parcel of land on the shore of the Sakonnet River in Rhode Island under a 1992 consent agreement are not time barred. Depending on whether Massachusetts or Rhode Island law applies, the insurer argued that the company's cause of action expired either 10 years or 6 years after the consent agreement was executed. But the insurance policy contains a "no action clause" that restrains the company, in the event that it incurs a liability, from bringing an action against the insurer until the amount of the insured's obligation to pay is "finally determined." Therefore, the company's cause of action did not accrue until May 2002 when the company received certification that the cleanup was complete.Charter International Oil Co. v. Travelers Casualty & Surety Co., No. 06-324, 38 ELR 20156 (D.R.I. June 9, 2008) (Smith, J.).

TOXIC TORTS, PUBLIC NUISANCE:

The Rhode Island Supreme Court reversed a jury verdict finding three lead paint producers liable for creating a public nuisance. The state has not and cannot allege any set of facts to support its public nuisance claim that would establish that defendants interfered with a public right or that defendants were in control of the lead pigment they, or their predecessors, manufactured at the time it caused harm to Rhode Island children. Defendants were not in control of any lead pigment at the time the lead caused harm to children in Rhode Island, making defendants unable to abate the alleged nuisance, the standard remedy in a public nuisance action. However grave the problem of lead poisoning is in Rhode Island, public nuisance law simply does not provide a remedy for this harm.State v. Lead Industries Ass'n, No. 2004-63-MP, 38 ELR 20155 (R.I. July 1, 2008).

USTs, STATUTE OF LIMITATIONS:

The Indiana Supreme Court held that landowners who incurred costs remediating contamination from leaking USTs may go forward with their state law contribution claim against the prior owners under the Indiana Underground Storage Tanks Act. The 10-year statute of limitation does not begin to run until the owner is ordered to clean up the property, regardless of whether the owner earlier knew or should have known about the need for cleanup. Because the state didn't order the landowners to pay for the environmental cleanup costs until 2001, they filed their contribution claim well within the 10-year statute of limitation.Pflanz v. Foster, No. 36S01-0710-CV-425, 38 ELR 20158 (Ind. June 19, 2008).

CAA, BEST AVAILABLE CONTROL TECHNOLOGY, CARBON DIOXIDE:

A Georgia court vacated a state air pollution permit allowing an energy company to construct and operate a 1,200 megawatt coal-fired power plant. Because there was no effort to identify, evaluate, or apply available technologies that would control carbon dioxide emissions, and because the permit contains no carbon dioxide limitations, the permit violates the CAA's best available control technology (BACT) requirements. The BACT requirement encompasses all pollutants that are subject to regulation under the Act, including carbon dioxide, regardless of whether they are independently subject to NAAQS or other general limits. In addition, the evidence shows that the proposed facility would exceed the NAAQS for fine particulate matter. The company also should have done a full analysis on the integrated gasification combined cycle technology to be used at the plant. The permit was therefore remanded to the state environmental agency for further BACT analysis.Friends of the Chattahooche v. Couch, No. 2008 CV 146398, 38 ELR 20159 (Ga. Sup. Ct. June 30, 2008).

BROWNFIELDS, DEVELOPMENT:

A New York court held that the state environmental agency arbitrarily and capriciously denied a developer's application to include in the state brownfield cleanup program certain parcels of contaminated land that it plans to convert into a mega-mall and resort center. Admission into the program gives a developer significant tax credits, upon completion of remediation, and limits the liability of a developer who uses the program to invest its own funds to effectuate remediation of brownfield contamination. The agency adopted "guidance factors" to determine eligibility into the program. Using those factors, it decided that the parcels at issue were not eligible for the program, and the developer appealed. The court held that the guidance factors are far from "explanatory and interpretive" and chided the agency for crossing into a realm of policy and legislation. The legislative history of the statute, and the clear language of the statute itself, show that the statute is to be liberally applied to brownfields throughout the state that satisfy the barest of requirements. In deciding to adopt the guidance factors, the agency made itself a fiscal watchdog without legislative authority and rewrote the statute, the effect of which was to "not only dull, but to emasculate the clear intent of the statute, by administrative agency fiat." And by denying the developer's application, the agency violated the Equal Protection Cause of the New York State Constitution and the Fourteenth Amendment of the U.S. Constitution.Destiny USA Development v. New York State Department of Environmental Conservation, No. 08-1015, 38 ELR 20157 (N.Y. Sup. Ct. June 10, 2008).

CALIFORNIA ENVIRONMENTAL QUALITY ACT, STATE AERONAUTICS ACT:

A California appellate court held that while the State Aeronautics Act does not compel a county to allow continued operation of an airport, its closure constitutes a "project" under the California Environmental Quality Act (CEQA). The State Aeronautics Act focuses on safety standards and the controlled development of airports. While its stated purpose is to encourage aviation, it does not compel the county to allow continued operation of an airport. Therefore, the county’s decision to deny a permit necessary for the continued operation of the airport is not preempted by or contrary to the State Aeronautics Act. But the permit denial does constitute a project under CEQA since it will result in the closure of the airport. The county, therefore, must conduct an initial study under CEQA.Sunset Skyranch Pilots Ass'n v. County of Sacramento, No. C055224, 38 ELR 20161 (Cal. Ct. App. 3d Dist. July 2, 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 issued NESHAPs for plating and polishing operations for new and existing tanks, thermal spraying equipment, and mechanical polishing equipment in certain plating and polishing processes.73 FR 37728(7/1/08).
  • EPA removed the nitrogen oxide (NOx) component from the Phase 3 snowmobile emission standards.73 FR 35946(6/25/08).
  • EPA amended NESHAPs for source category gasoline dispensing facilities with a monthly throughput of 100,000 gallons or more.73 FR 35939(6/25/08).
  • EPA proposed removal of the NOxcomponent from the Phase 3 snowmobile emission standards; see above for direct final rule.73 FR 35991(6/25/08).
  • EPA proposed amendments to NESHAPs for source category gasoline dispensing facilities with a monthly throughput of 100,000 gallons or more; see above for direct final rule.73 FR 35990(6/25/08).
  • EPA proposed listing n-propyl bromide as unacceptable for use as a substitute for ozone-depleting substances in the adhesive and aerosol solvent end uses and acceptable as a substitute in coatings end uses.73 FR 35363(6/23/08).
  • EPA entered into a proposed settlement inNational Environmental Development Ass'n Clean Air Project v. EPA, No. 06-1428 (D.C. Cir), concerning the Applicability Determination Index of Agency Applicability Determinations, Alternative Monitoring Decisions, and Regulatory Interpretations Pertaining to Standards of Performance for New Stationary Sources and NESHAPs and the Stratospheric Protection Program.73 FR 38205(7/3/08).
  • EPA announced formation of the Clean Air Scientific Advisory Committee Review Panel for ambient ozone.73 FR 36319(6/26/08).
  • SIP Approvals:California (nitrogen oxide and sulfur oxide emissions in the South Coast air quality management district)73 FR 38122(7/3/08). Florida (revisions to PSD permitting program and application to electric power plants)73 FR 36435(6/27/08). Nevada (carbon monoxide NAAQS for Truckee Meadows nonattainment area)73 FR 38124(7/3/08). Pennsylvania (eight-hour ozone NAAQS and 2002 base-year inventory for the Warren County area)73 FR 36802(6/30/08); (eight-hour ozone NAAQS and 2002 base-year inventory for the Somerset County area)73 FR 37844(7/2/08); (eight-hour ozone NAAQS and 2002 base-year inventory for the Crawford County area)73 FR 37843(7/2/08); (eight-hour ozone NAAQS and 2002 base-year inventory for the Columbia County area)73 FR 37840(7/2/08); (eight-hour ozone NAAQS and 2002 base-year inventory for the Susquehanna County area)73 FR 37841(7/2/08). Washington (Vancouver Air Quality Maintenance Area Second 10-Year Carbon Monoxide Maintenance Plan)73 FR 36439(6/27/08).
  • SIP Proposals:California (nitrogen oxide and sulfur oxide emissions in the South Coast air quality management district; see above for direct final rule).73 FR 38163(7/3/08). Montana (partial approval of Kraft Pulp Mill Rule and Visible Air Contaminants Rule)73 FR 36485(6/27/08). Virginia (new source review permit program for owners of sources in PSD areas)73 FR 36481(6/27/08); (new source review permit program for owners of sources in nonattainment areas)73 FR 36477(6/27/08). Washington (Vancouver Air Quality Maintenance Area Second 10-Year Carbon Monoxide Maintenance Plan; see above for direct final rule)73 FR 36484(6/27/08).

ENERGY:

  • EPA issued final amendments to the current standards of performance for petroleum refineries and also promulgated separate standards of performance for new, modified, or reconstructed process units at petroleum refineries.73 FR 35838(6/24/08).

GENERAL:

  • The Natural Resources Conservation Service amended its NEPA compliance regulations by clarifying the appropriate use of a program EA and by aligning its NEPA public involvement process with that of the Council on Environmental Quality's regulations.73 FR 35883(6/25/08).

HAZARDOUS & SOLID WASTE:

  • EPA entered into a proposed administrative settlement under CERCLA concerning the Tobin and Jacks Superfund site in Dallas, Texas, requiring the settling parties to pay $405,180.31 in past U.S. response costs.73 FR 37454(7/1/08).
  • EPA entered into a proposed administrative settlement under CERCLA for reimbursement of past U.S. response costs concerning the Component Concepts site in Thomasville, North Carolina.73 FR 36865(6/30/08).
  • EPA withdrew final authorization under RCRA for implementation of the U.S. Filter Recovery Services, Inc. project in Minnesota developed under the Project eXcellence in Leadership program.73 FR 37858(7/2/08).
  • EPA withdrew final authorization under RCRA for implementation of the International Business Machines Corporation's copper metallization project developed under the Project eXcellence in Leadership program in Essex Junction, Vermont.73 FR 35944(6/25/08).

MINING:

  • OSM proposed to approve amendments to Utah's regulatory program under SMCRA regarding coal mining permit applications, the casing and sealing of underground openings, the definition of "intermittent stream," and related performance standards.73 FR 35607(6/24/08).

PESTICIDES:

  • EPA established a website for the submission of pesticide applications and associated data.73 FR 36502(6/27/08).

TOXIC SUBSTANCES:

  • EPA issued a document entitledConcepts, Methods, and Data Sources for Cumulative Health Risk Assessment of Multiple Chemicals, Exposures, and Effects: A Resource Document.73 FR 36501(6/27/08).
  • EPA adopted a California State regulation concerning emissions of formaldehyde from three types of composite wood products.73 FR 36504(6/27/08).
  • EPA announced a 90-day public comment period for the draft document entitledToxicological Review of Tetrachloroethylene (Perchloroethylene): In Support of Summary Information on the Integrated Risk Information System.73 FR 36321(6/26/08).
  • EPA issued a document entitledSmall Entity Compliance Guide to Renovate Right: EPA's Lead-Based Paint Renovation, Repair, and Painting Programfor homes and child-occupied facilities.73 FR 36281(6/26/08).

WATER:

  • EPA announced final revisions to the document entitledMethodology for Deriving Ambient Water Quality Criteria for the Protection of Human Health (2000)and solicited scientific views on a draft technical support document entitledDevelopment of Site-Specific Bioaccumulation Factors.73 FR 36866(6/30/08).
  • EPA announced final action identifying water quality-limited segments and associated pollutants on Arkansas' CWA list for 2008.73 FR 36319(6/26/08).

WILDLIFE:

  • FWS established regulations for seasons, harvest limits, methods, and means related to the taking of wildlife for subsistence uses in Alaska during the 2008-09 and 2009-10 regulatory years and amended the customary and traditional use determinations during the applicable biennial cycle.73 FR 35726(6/24/08).

DOJ NOTICES OF SETTLEMENT:

  • United States v. City of Shelton, No. 3:08-cv-00919-SRU (D. Conn. June 18, 2008). A settling CWA defendant must perform necessary upgrades and must pay a $142,000 civil penalty to be divided equally between the United States and the state of Connecticut in connection with the operation of its wastewater collection system and treatment plant on the Housatonic River.73 FR 36357(6/26/08).
  • United States v. Centex Homes, No. 1:08CV605 (E.D. Va. June 11, 2008). A settling CWA defendant must pay a $1,485,000 civil penalty and implement a companywide compliance program that goes beyond current regulatory requirements for permit violations governing the discharge of stormwater from its construction sites.73 FR 35711(6/24/08).
  • United States v. KB Home, No. 1:08CV603 (E.D. Va. June 11, 2008). A settling CWA defendant must pay a $1,185,000 civil penalty and implement a companywide compliance program that goes beyond current regulatory requirements for permit violations governing the discharge of stormwater from its construction sites.73 FR 35711(6/24/08).
  • United States v. M.D.C. Holdings, Inc., No. 1:08CV604 (E.D. Va. June 11, 2008). A settling CWA defendant and certain affiliated entities must pay a $795,000 civil penalty and implement a companywide compliance program that goes beyond current regulatory requirements for permit violations governing the discharge of stormwater from their construction sites.73 FR 35712(6/24/08).
  • United States v. Pulte Homes, Inc., No. 1:08CV602 (E.D. Va. June 11, 2008). A settling CWA defendant must pay a $877,000 civil penalty, must perform a supplemental environmental project at a minimum cost of $608,000, and must implement a companywide compliance program that goes beyond current regulatory requirements for permit violations governing the discharge of stormwater from its construction sites.73 FR 35712(6/24/08).
  • United States v. Woodhams, No. 3:07-CV-0074-RRE-KKK (D.N.D. June 17, 2008). A settling CERCLA defendant must pay $300,000 in U.S. response costs incurred at the Camelot Cleaners site in West Fargo, North Dakota, for the release or threatened release of hazardous substances and must assign to the United States all potential rights to insurance claim proceeds relating to the site.73 FR 35410(6/23/08).
  • United States v. Dravo Corp., No. 8:04-CV-356 (D. Neb. June 16, 2008). A settling CERCLA defendant must pay $1.161 million for past and future U.S. response costs incurred at the Hastings Naval Ammunition Depot subsite in Hastings, Nebraska, for releases or threatened releases of hazardous substances.73 FR 35410(6/23/08).
  • United States v. Avco Corp., No. 3:08-cv-1161-ARC (M.D. Pa. June 18, 2008). A settling CERCLA defendant must pay $340,000 in past U.S. response costs, as well as response costs incurred after July 3, 2007, in connection with the Avco-Lycoming Superfund site in Williamsport, Pennsylvania.73 FR 36898(6/30/08).
  • United States v. Fabian, No. 2:02-CV-495 (N.D. Ind. June 20, 2008). A settling CWA defendant must pay a civil penalty and perform injunctive relief for discharging pollutants without a permit into waters of the United States.73 FR 36898(6/30/08).
  • United States v. ConocoPhillips Co., No. H-05-0258 (S.D. Tex. June 24, 2008). A settling CAA defendant must add new controls to its sewer system and a wastewater lift station at its refinery in Ferndale, Washington, to ensure compliance with the benzene waste operations NESHAP; must install controls on the guidepoles of five tanks at its refinery in Linden, New Jersey, in exchange for a deadline extension; must install a wet gas scrubber as the control device for a major process unit at its refinery in Sweeny, Texas; must pay a $60,000 civil penalty and perform two supplemental environmental projects valued at $100,000 each near its Ferndale refinery in exchange for a liability release for alleged violations; and must pay a stipulated penalty of $80,500 for a flaring incident at its refinery in Trainer, Pennsylvania.73 FR 36899(6/30/08).
  • United States v. ExxonMobil Corp., No. 1:08-CV-00124-IMK (N.D. W. Va. June 10, 2008). A settling CERCLA defendant must pay $3 million in U.S. response costs incurred at the Big John's Salvage site in Marion County, West Virginia.73 FR 36899(6/30/08).
  • United States v. P.H. Glatfelter Co., No. 03-C-0949 (E.D. Wis. June 20, 2008). An amended 2002 CERCLA agreement for PCB contamination at the Lower Fox River and Green Bay, Wisconsin, site eliminates cost reopener provisions and requires settling defendants to complete cleanup without any predefined funding limitation; cleanup is estimated at $102 million and defendants are liable for any additional work elsewhere at the site.73 FR 36900(6/30/08).
  • In re Dana Corp., No. 07-8160 (SAS) (S.D.N.Y. June 17, 2008). A settling CERCLA and CWA defendant must provide EPA, NOAA, and the DOI with allowed general unsecured claims of $125,670,252 and distribution of stock in a court-approved bankruptcy reorganization for response costs at six Superfund sites in Connecticut, Indiana, Nebraska, New Jersey, and Ohio; for civil penalties at former facilities in Muskegon, Michigan, and Bellefontaine, Ohio; and for natural resource damages at the site in Ohio.73 FR 36900(6/30/08).

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

THE CONGRESS

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

Chamber Action

  • H.R. 802 (Maritime Pollution Prevention Act), which would implement MARPOL Annex VI to prevent pollution from ships, was passed by the Senate. 154 Cong. Rec. S6303-04 (daily ed. June 26, 2008).
  • H.R. 2452 (Raw Sewage Overflow Community Right-to-Know Act), which would amend the Federal Water Pollution Control Act to ensure that sewage treatment plants monitor for and report discharges of raw sewage, was passed by the House. 154 Cong. Rec. H5820-24 (daily ed. June 23, 2008).
  • H.R. 6040 (Water Resources Development Act), which would amend the Water Resources Development Act of 2007 to clarify the authority of the Secretary of the Army to provide reimbursement for travel expenses incurred by members of the Committee on Levee Safety, was passed by the Senate, clearing the measure for the president. 154 Cong. Rec. S6171 (daily ed. June 25, 2008).
  • H.R. 6052 (Saving Energy Through Public Transportation Act of 2008), which would promote increased public transportation use and would promote increased use of alternative fuels in providing public transportation, was passed by the House. 154 Cong. Rec. H6122-43 (daily ed. June 26, 2008).
  • H.R. 6377 (Energy Markets Emergency Act of 2008), which would direct the Commodity Futures Trading Commission to curb immediately the role of excessive speculation in any contract market within the jurisdiction and control of the Commodity Futures Trading Commission, on or through which energy futures or swaps are traded; and which would eliminate excessive speculation, price distortion, sudden or unreasonable fluctuations or unwarranted changes in prices, or other unlawful activity that is causing major market disturbances that prevent the market from accurately reflecting the forces of supply and demand for energy commodities, was passed by the House. 154 Cong. Rec. H6103-10, H6143-44 (daily ed. June 26, 2008).

Committee Action

  • S. 27 (San Joaquin River Restoration Settlement)was reported by the Committee on Energy and Natural Resources. H. Rep. No. 110-400, 154 Cong. Rec. S6157 (daily ed. June 25, 2008). The bill would authorize the implementation of the San Joaquin River Restoration Settlement.
  • S. 1171 (Colorado River Storage Project Act)was reported by the Committee on Energy and Natural Resources. H. Rep. No. 110-401, 154 Cong. Rec. S6157 (daily ed. June 25, 2008). The bill would amend the Colorado River Storage Project Act and Public Law No. 87-483 to authorize the construction and rehabilitation of water infrastructure in Northwestern New Mexico; authorize the use of the reclamation fund to fund the Reclamation Water Settlements Fund; authorize the conveyance of certain Reclamation land and infrastructure; and authorize the Commissioner of Reclamation to provide for the delivery of water.
  • S. 1566 (Oil Pollution Act)was reported by the Committee on Environment and Public Works. H. Rep. No. 110-403, 154 Cong. Rec.  S6327 (daily ed. June 27, 2008). The bill would amend the Oil Pollution Act of 1990 to improve the Act.
  • S. 2555 (greenhouse gas emissions)was reported by the Committee on Environment and Public Works. H. Rep. No. 110-407, 154 Cong. Rec.  S6327 (daily ed. June 27, 2008). The bill would permit California and other states to effectively control greenhouse gas emissions from motor vehicles.
  • S. 2707 (Chesapeake Bay Gateways and Watertrails Network)was reported by the Committee on Environment and Public Works. H. Rep. No. 110-404, 154 Cong. Rec. S6327 (daily ed. June 27, 2008). The bill would amend the Chesapeake Bay Initiative Act of 1998 to provide for the continuing authorization of the Chesapeake Bay Gateways and Watertrails Network.
  • S. 2766 (vessel discharges)was reported by the Committee on Environment and Public Works. H. Rep. No. 110-398, 154 Cong. Rec. S5962 (daily ed. June 23, 2008). The bill would amend the Federal Water Pollution Control Act to address certain discharges incidental to the normal operation of a recreational vessel.
  • H.R. 802 (ship pollution)was reported by the Committee on Commerce, Science, and Transportation. H. Rep. No. 110-394, 154 Cong. Rec. S5962 (daily ed. June 23, 2008). The bill would amend the Act to Prevent Pollution from Ships to implement MARPOL Annex VI.
  • H.R. 3891 (National Fish and Wildlife Foundation)was reported by the Committee on Environment and Public Works. H. Rep. No. 110-405, 154 Cong. Rec.  S6327 (daily ed. June 27, 2008). The bill would amend the National Fish and Wildlife Foundation Establishment Act to increase the number of directors on the Board of Directors of the National Fish and Wildlife Foundation.
  • H.R. 6052 (transportation)was reported by the Committee on Transportation and Infrastructure. H. Rep. No. 110-727 Pt. 1, 154 Cong. Rec. H5795 (daily ed. June 20, 2008). The bill would promote increased public transportation use and promote increased use of alternative fuels in providing public transportation.
  • H. Res. 1298 (land claims)was reported by the Committee on Rules. H. Rep. No. 110-732, 154 Cong. Rec. H6009 (daily ed. June 24, 2008). The resolution would provide for consideration of the billH.R. 2176to provide for and approve the settlement of certain land claims of the Bay Mills Indian Community.
  • H. Res. 1304 (public transportation)was reported by the Committee on Rules. H. Rep. No. 110-734, 154 Cong. Rec. H6088 (daily ed. June 25, 2008). The resolution would provide for consideration of the billH.R. 6052to promote increased public transportation use and would promote increased use of alternative fuels in providing public transportation.

Bills Introduced

  • S. 3179 (Bingaman, D-N.M.) (land conveyance)would authorize the conveyance of certain public land in the state of New Mexico owned or leased by the DOE. 154 Cong. Rec. S5962 (daily ed. June 23, 2008). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 3183 (Dorgan, D-N.D.) (energy price relief)would amend the Commodity Exchange Act to provide oil and gas price relief by requiring the Commodity Futures Trading Commission to take action to end excessive speculation. 154 Cong. Rec. S6019 (daily ed. June 24, 2008). The bill was referred to the Committee on Agriculture, Nutrition, and Forestry.
  • S. 3185 (Cantwell, D-Wash.) (FERC)would provide for regulation of certain transactions involving energy commodities, and would strengthen the enforcement authorities of FERC under the Natural Gas Act and the Federal Power Act. 154 Cong. Rec. S6019 (daily ed. June 24, 2008). The bill was referred to the Committee on Agriculture, Nutrition, and Forestry.
  • S. 3186 (Sanders, I-Vt.) (energy assistance)would provide funding for the Low-Income Home Energy Assistance Program. 154 Cong. Rec. S6019 (daily ed. June 24, 2008). The bill was read the first time.
  • S. 3189 (Bingaman, D-N.M.) (Upper Colorado River Basin Fund)would amend Public Law No. 106-392 to require the Administrator of the Western Area Power Administration and the Commissioner of Reclamation to maintain sufficient revenues in the Upper Colorado River Basin Fund. 154 Cong. Rec. S6158 (daily ed. June 25, 2008). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 3191 (Snowe, R-Me.) (algal blooms)would develop and promote a comprehensive plan for a national strategy to address harmful algal blooms and hypoxia through baseline research, forecasting and monitoring, and mitigation and control while helping communities detect, control, and mitigate coastal and Great Lakes harmful algal blooms and hypoxia events. 154 Cong. Rec. S6158 (daily ed. June 25, 2008). The bill was referred to the Committee on Commerce, Science, and Transportation.
  • S. 3192 (Wyden, D-Or.) (trust land leases)would amend the Act of August 9, 1955, to authorize the Cow Creek Band of Umpqua Tribe of Indians, the Coquille Indian Tribe, and the Confederated Tribes of the Siletz Indians of Oregon to obtain 99-year lease authority for trust land. 154 Cong. Rec. S6158 (daily ed. June 25, 2008). The bill was referred to the Committee on Indian Affairs.
  • S. 3194 (Smith, R-Or.) (federal land)would transfer surplus federal land administered by the Coast Guard in the state of Oregon. 154 Cong. Rec. S6158 (daily ed. June 25, 2008). The bill was referred to the Committee on Indian Affairs.
  • S. 3196 (Cantwell, D-Wash.) (Federal Water Pollution Control Act)would amend the Federal Water Pollution Control Act to provide assistance for programs and activities to protect the water quality of Puget Sound. 154 Cong. Rec. S6158 (daily ed. June 25, 2008). The bill was referred to the Committee on Environment and Public Works.
  • S. 3201 (Gregg, R-N.H.) (Mosquito Abatement for Safety and Health Act)would reauthorize the Mosquito Abatement for Safety and Health Act for mosquito-borne disease prevention and control. 154 Cong. Rec. S6285 (daily ed. June 26, 2008). The bill was referred to the Committee on Health, Education, Labor, and Pensions.
  • S. 3202 (McConnell, R-Ky.) (gas prices)would address record high gas prices at the pump. 154 Cong. Rec. S6285 (daily ed. June 26, 2008). The bill was read the first time.
  • S. 3205 (Cantwell, D-Wash.) (Commodity Futures Trading Commission)would direct the Commodity Futures Trading Commission to curb immediately the role of excessive speculation in any contract market within the jurisdiction and control of the Commodity Futures Trading Commission, on or through which energy futures or swaps are traded; and would eliminate excessive speculation, price distortion, sudden or unreasonable fluctuations or unwarranted changes in prices, or other unlawful activity that is causing major market disturbances that prevent the market from accurately reflecting the forces of supply and demand for energy commodities. 154 Cong. Rec. S6285 (daily ed. June 26, 2008). The bill was referred to the Committee on Agriculture, Nutrition, and Forestry.
  • S. 3208 (Conrad, D-N.D.) (clean coal technology)would amend the Internal Revenue Code of 1986 to provide tax incentives for clean coal technology. 154 Cong. Rec. S6285 (daily ed. June 26, 2008). The bill was referred to the Committee on Finance.
  • S. 3210 (Casey, D-Pa.) (Centennial Historic District)would establish the Centennial Historic District in the commonwealth of Pennsylvania. 154 Cong. Rec. S6285 (daily ed. June 26, 2008). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 3211 (Baucus, D-Mont.) (livestock indemnity)would amend the U.S. Troop Readiness, Veterans' Care, Katrina Recovery, and Iraq Accountability Appropriations Act, 2007, to clarify eligibility for livestock indemnity payments. 154 Cong. Rec. S6285 (daily ed. June 26, 2008). The bill was referred to the Committee on Agriculture, Nutrition, and Forestry.
  • S. 3213 (Bingaman, D-N.M.) (National Wilderness Preservation System)would designate certain land as components of the National Wilderness Preservation System and would authorize certain programs and activities in the DOI and the USDA. 154 Cong. Rec. S6285 (daily ed. June 26, 2008). The bill was read the first time.
  • S. 3214 (Barrasso, R-Wyo.) (national park coins)would provide for a program for circulating quarter dollar coins that are emblematic of a national park or other national site in each state, the District of Columbia, and each territory of the United States. 154 Cong. Rec. S6285 (daily ed. June 26, 2008). The bill was referred to the Committee on Banking, Housing, and Urban Affairs.
  • S. 3215 (Domenici, R-N.M.) (recycling facilities)would require the Secretary of Energy to enter into cooperative agreements with private entities to share the cost of obtaining construction and operating licenses for certain types of recycling facilities. 154 Cong. Rec. S6285 (daily ed. June 26, 2008). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 3222 (Thune, R-S.D.) (energy security)would promote the energy security of the United States. 154 Cong. Rec. S6327 (daily ed. June 27, 2008). The bill was reported by the Committee on Energy and Natural Resources.
  • S. 3223 (Kerry, D-Mass.) (energy loan program)would establish a small business energy emergency disaster loan program. 154 Cong. Rec. S6327 (daily ed. June 27, 2008). The bill was referred to the Committee on Small Business and Entrepreneurship.
  • H.R. 6329 (Cubin, R-Wyo.) (brownfield sites)would expedite the construction of new refining capacity on brownfield sites in the United States. 154 Cong. Rec. H5796 (daily ed. June 20, 2008). The bill was referred to the Committee on Energy and Commerce and to the Committee on Ways and Means.
  • H.R. 6330 (Stupak, D-Mich.) (FERC)would provide for regulation of certain transactions involving energy commodities and strengthen the enforcement authorities of FERC under the Natural Gas Act and the Federal Power Act. 154 Cong. Rec. H5796 (daily ed. June 20, 2008). The bill was referred to the Committee on Agriculture and to the Committee on Energy and Commerce.
  • H.R. 6334 (Etheridge, D-N.C.) (Commodity Futures Trading Commission)would provide energy price relief by authorizing greater resources and authority for the Commodity Futures Trading Commission. 154 Cong. Rec. H5796 (daily ed. June 20, 2008). The bill was referred to the Committee on Agriculture.
  • H.R. 6336 (Delahunt, D-Mass.) (Cape Cod National Seashore Advisory Commission)would extend the authority for the Cape Cod National Seashore Advisory Commission. 154 Cong. Rec. H5796 (daily ed. June 20, 2008). The bill was referred to the Committee on Natural Resources.
  • H.R. 6341 (Van Hollen, D-Md.) (energy derivatives)would amend the Commodity Exchange Act to provide for regulation of energy derivatives. 154 Cong. Rec. H5796 (daily ed. June 20, 2008). The bill was referred to the Committee on Agriculture.
  • H.R. 6346 (Stupak, D-Mich.) (fuel prices)would protect consumers from price-gouging of gasoline and other fuels. 154 Cong. Rec. H5864 (daily ed. June 23, 2008). The bill was referred to the Committee on Energy and Commerce and to the Committee on Education and Labor.
  • H.R. 6349 (Marshall, D-Ga.) (Commodity Futures Trading Commission) would provide energy price relief by authorizing greater resources and authority for the Commodity Futures Trading Commission. 154 Cong. Rec. H5864 (daily ed. June 23, 2008). The bill was referred to the Committee on Agriculture.
  • H.R. 6364 (Dicks, D-Wash.) (Federal Water Pollution Control Act)would amend the Federal Water Pollution Control Act to provide assistance for programs and activities to protect the water quality of Puget Sound. 154 Cong. Rec. H6089 (daily ed. June 25, 2008). The bill was referred to the Committee on Transportation and Infrastructure.
  • H.R. 6370 (DeFazio, D-Or.) (federal land)would transfer excess federal property administered by the Coast Guard to the Confederated Tribes of the Coos, Lower Umpqua, and Siuslaw Indians. 154 Cong. Rec. H6089 (daily ed. June 25, 2008). The bill was referred to the Committee on Transportation and Infrastructure.

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 Florida Maryland Nevada Tennessee
Arizona Idaho Michigan New Hampshire Texas
California Maine Montana New York Virginia

ALABAMA

Air:

  • The Alabama Department of Environmental Management, Air Division, gives public notice of a hearing on amendments to Administrative Code 335-3-4. Changes to this regulation would allow continuous opacity monitoring systems to be used as the compliance method, remove the hourly 40% opacity exemption, limit non-exempt opacity exceedances to 24 six-minute periods per day, and limit the average daily opacity to 22%. The hearing will be held August 6, 2008. Seehttp://www.adem.state.al.us//PubHearings/PubHearings.htm.

ARIZONA

Air:

  • The Arizona Department of Environmental Quality, Air Pollution Control, adopted Article 18, a rulemaking that implements the California Low Emission Vehicle Program, as permitted under CAA §§177 and 209. The regulation will become effective July 8, 2008. Seehttp://www.azsos.gov/public_services/Register/2008/25/final.pdf.

CALIFORNIA

Fisheries:

  • The California Fish and Game Commission is proposing to amend Title 14, Section 7.50, of the California Code of Regulations, a rulemaking that addresses Klamath River sport fishing. The amendments would drop current Chinook salmon possession limits and increase the daily bag limit for hatchery trout and steelhead. The amendments would also adopt the Pacific Fishery Management Council's recommended harvest allocation for fall-run Chinook. Seehttp://www.oal.ca.gov/pdfs/notice/25z-2008.pdf(pp. 989-992).

Toxic Substances:

  • The California Environmental Protection Agency, Office of Environmental Health Hazard Assessment, seeks public comment on a new draft of the state's "Technical Support Document Describing Available Cancer Potency Factors," a document developed as a requirement of §44360 of the Health and Safety Code. Comments are due August 22, 2008. Seehttp://www.oehha.ca.gov/air/hot_spots/crnr062008.html.

FLORIDA

Air:

  • The Florida Department of Environmental Protection proposed clarifying changes to Chapter 62-296 of F.A.C., a regulation that addresses air emission standards for stationary sources. Seehttps://www.flrules.org/BigDoc/View_Faw.asp?IID=961(pp. 3227-3229).

Wildlife:

  • The St. John's River Water Management District proposed to amend Rules 40C-4.021 and 40C-4.091, which govern the issuance of environmental resource permits. The amendment would include the bald eagle as a listed species. Seehttps://www.flrules.org/BigDoc/View_Faw.asp?IID=961(pp. 3184-3187).

IDAHO

Water:

MAINE

Air:

  • The Maine Department of Environmental Protection is proposing amendments to Chapter 137 that would require facilities to submit an emissions inventory by May 1 of each year. The amendments would also require facilities to report the emission of 13 hazardous air pollutants from fuel burning sources. These proposed changes more closely reflect new federal regulations. A public hearing will be held July 17, 2008. Comments are due July 31, 2008. Seehttp://www.maine.gov/dep/air/regulations/proposed.htm.

MARYLAND

Toxic Substances:

  • The Maryland Department of the Environment is proposing to amend COMAR 26.02.01, a regulation addressing blood lead reporting in occupational, industrial, and residential areas. The amendment would clarify information that the department may report and set statutory blood lead action level at 10 micrograms per deciliter. Comments are due July 21, 2008. Seehttp://www.dsd.state.md.us/mdregister/3513/main_register.htm(p. 1221).

MICHIGAN

Air:

  • The Michigan Department of Environmental Quality, Air Quality Division, intends to formally adopt proposed air pollution control rules that revise Part 9. The amendments will adopt the most recent federal regulations for sterilization facilities, chromium processes, and asbestos emissions. The amendments will also incorporate federal maximum achievable control technology standards and provide the methodology affected sources must follow to comply with best available retrofit technology. Seehttp://www.deq.state.mi.us/apcrats/toc_collapsible_2.shtml.

MONTANA

Wildlife:

  • The Montana Department of Fish, Wildlife, and Parks is proposing to amend ARM 12.2.501 and 12.5.201 and to adopt new rules I through V. These regulations address gray wolf management. Hearings will be held July 16 through July 18, 2008. Seehttp://sos.mt.gov/arm/Register/archives/MAR2008/MAR12-08.pdf(pp.1252-1260).

NEVADA

Wildlife:

NEW HAMPSHIRE

Air:

  • The New Hampshire Department of Environmental Services is proposing to amend Env-A 1001, a rulemaking that sets forth general open burning requirements, definitions, and a list of materials that are allowed to be burned in the state. The amendment would make the regulation consistent with the RSA 125-C:10-c Combustion Ban. Comments are due July 10, 2008. Seehttp://www.des.nh.gov/Rulemaking/.

NEW YORK

Fisheries:

  • The New York Department of Environmental Conservation amended Parts 10, 35, 36, and 40 of Title 6 NYCRR, an emergency action taken to protect American shad stocks in the Hudson River. The amendments institute a catch-and-release recreational fishery for American shad, as well as gear limits and fishing restrictions for the Hudson River commercial fishery. Seehttp://www.dos.state.ny.us/info/register/2008/jun25/toc.htm(pp. 18-23).

TENNESSEE

Hazardous & Solid Wastes:

  • The Tennessee Department of Environment and Conservation is proposing the amendment of Chapter 1200-01-13, a regulation addressing inactive hazardous substance sites. The amendment would remove two sites from the list and add an additional site. Seehttp://tnsos.org/rules/PendingRules.php?resultpage=6&.

TEXAS

Air:

  • The Texas Commission on Environmental Quality is proposing amendments to §§101.502, 101.504, 101.506, and 101.508, regulations addressing the state's Clean Air Interstate Rule. The revisions would reflect both federal changes and the state's Senate Bill 1672. Seehttp://www.sos.state.tx.us/texreg/sos/index.html.

Hazardous & Solid Wastes:

  • The Texas Commission on Environmental Quality is proposing the amendment of 30 TAC §330.165, a regulation addressing standards for municipal solid waste landfill activities. The amendment would revise the allowable contaminant levels for materials to be used as alternative daily cover. The regulation would also use a risk-based approach when evaluating the use of contaminated material as an acceptable alternative daily cover at Type I municipal solid waste landfills. Seehttp://www.sos.state.tx.us/texreg/sos/index.html.

Land Use:

  • The Texas Department of Natural Resources and Conservation, General Land Office, is proposing the amendment of 31 TAC §13.17, a regulation addressing rights-of-way over public lands. The amendment would alter the applicable fees for pipeline right-of-way easements across public lands and change the number of and boundaries of the regions that define the geographic limits to which these fees apply. Seehttp://www.sos.state.tx.us/texreg/sos/index.html.

Water:

  • The Texas Commission on Environmental Quality is proposing a new regulation that would provide a streamlined process to authorize the construction and operation of reclaimed water production facilities at a location other than a permitted domestic wastewater treatment facility. Seehttp://www.sos.state.tx.us/texreg/sos/index.html.

VIRGINIA

Fisheries:

  • The Virginia Department of Conservation and Natural Resources, Marine Resources Commission, amended 4 VAC 20-140, which describes lawful methods for crab pots, peeler pots, and fish pots; 4 VAC 20-270, which rebuilds crab resources and improves enforceability of laws pertaining to crabbing; 4 VAC 20-450, which establishes 2008 commercial bluefish quotas; and 4 VAC 20-880, which protects blue crabs by establishing additional limits on the number of crab pots that can be set or fished. Seehttp://legis.state.va.us/codecomm/register/vol24/iss21/v24i21.pdf(pp. 2917-2919).

Water:

  • The Virginia Department of the Environment, State Water Control Board, plans to adopt amendments to fast-track regulation 9 VAC 25-820. The amendments would revise the total nitrogen and total phosphorus waste load allocations for the Doswell Wastewater Treatment Plant to exclude the portions attributable to Bear Island Paper Company. The amendments would also add separate waste load allocations for their industrial facility. These revisions are intended to make Bear Island Paper accountable for their own nutrient discharges and eligible to participate in the state's Nutrient Credit Exchange Program. Public comments are due July 23, 2008. Seehttp://legis.state.va.us/codecomm/register/vol24/iss21/v24i21.pdf(pp. 2937- 2954).

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

INTERNATIONAL

WATER CRISIS IN CHINA WORSENS WITH 2008 OLYMPICS

As host of the upcoming Olympics, Beijing hopes to promote an eco-friendly image by cultivating greenery and constructing new canals. But this desire to dispel an industrialized image only exacerbates a dire problem. Since 2004, Beijing has relied on water sources deep underground, originally set aside for emergencies. Probe International, a Canada-based conservation group that conducted a report on China's water shortages, explains, "With each new [Olympic] project to tap water somewhere else, demand for water only increases, and at an ever greater cost to China's environment and economy." Seehttp://www.reuters.com/article/environmentNews/idUSPEK27199620080626.

AUSTRALIA HOPES TO ESTABLISH BROAD-BASED TRADING SYSTEM

In order to meet its Kyoto Protocol commitments, Australia plans to launch a carbon emissions trading system in 2010 that will be as broadly based as possible.Australia, the world's largest coal exporter, is responsible for 1.5 percent of global greenhouse emissions, and is one of the highest emitters per person due to reliance on coal for 80% of its electricity supply. Climate Minister Penny Wong will release an options paper on carbon trading this month, but there has been no indication yet whether any sectors of the economy will be exempt from the system. See http://www.reuters.com/article/environmentNews/idUSSYD10834720080624.

PLANS FOR WIND POWER SWEEP THROUGH THE UNITED KINGDOM

Prime Minister Gordon Brown called for a national debate to discuss how to achieve the United Kingdom's target of 15% renewable energy by 2020. The government plans to construct an extra 4,000 onshore and 3,000 offshore wind turbines in order to reach this goal. Mr. Brown describes the nation's future energy plans as the "most dramatic change to [the United Kingdom's] energy policy since the advent of nuclear power." Seehttp://news.bbc.co.uk/2/hi/uk_news/politics/7474592.stm.

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

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