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Weekly Update Volume 39, Issue 10

04/06/2009

LITIGATION

CWA, NATIONAL PERFORMANCE STANDARDS:



The U.S. Supreme Court held that EPA permissibly relied on cost-benefit analysis in setting national performance standards for cooling water intake structures and in providing for cost-benefit variances from those standards. The rule, promulgated under CWA §316(b), aims to protect fish, shellfish, and other aquatic organisms from being harmed or killed by cooling water intake structures at large, existing power-producing facilities. Below, the U.S. Court of Appeals for the Second Circuit concluded that cost-benefit analysis is impermissible under CWA §316(b) and that the regulations' site-specific cost-benefit variance provision was unlawful. But EPA's view that §316(b)'s "best technology available for minimizing adverse environmental impact" standard allows consideration of the technology's costs and of the relationship between those costs and the environmental benefits produced is a reasonable interpretation of the statute. Considering §316(b)'s text, and comparing it with the text and statutory factors applicable to parallel CWA provisions, it was well within the bounds of reasonable interpretation for EPA to conclude that cost-benefit analysis is not categorically forbidden. Scalia, J., delivered the opinion of the Court, in which Roberts, C.J., Kennedy, Thomas, and Alito, JJ., joined. Breyer, J., filed an opinion concurring in part and dissenting in part. Stevens, J., filed a dissenting opinion, in which Souter and Ginsburg, JJ., joined. Entergy Corp. v. Riverkeeper, Inc., No. 07-588, 39 ELR 20067 (U.S. Apr. 1, 2009).


CAA, EMISSIONS DATA:



The D.C. Circuit denied an environmental group's petition for review of EPA air quality regulations governing the exclusion of emissions data from state reporting requirements during exceptional events such as natural disasters. The rule allows states to list some man-made emissions as natural, uncontrollable events when reporting air quality attainment. The group argued that EPA should not have defined "natural event" to include events in which human activities play "little" causal role. The group, however, failed to object to EPA's definition during the rulemaking process. The group also challenged certain statements contained in the preamble to the regulations. But the preamble was not a final agency action and, therefore, is not reviewable under the CAA. Natural Resources Defense Council v. Environmental Protection Agency, No. 07-1151, 39 ELR 20069 (D.C. Cir. Mar. 20, 2009).


NEPA, CWA, MOUNTAINTOP MINING:



A district court held that the U.S. Army Corps of Engineers violated NEPA and the CWA when it decided in 2007 to issue a nationwide permit, NWP 21, authorizing the discharge of dredged and fill material associated with surface coal mining activities including mountaintop mining. In issuing NWP 21, the Corps decided not to prepare an EIS under NEPA because it determined that the activities authorized by that permit would only have minimal cumulative environmental impacts. The Corps also determined that the permitted activities would not result in significant environmental impacts. The Corps' decision not to prepare an EIS was arbitrary and capricious. The Corps failed to consider the continuing impacts of past actions, which is a relevant factor for a cumulative impacts analysis. In addition, the Corps' NEPA and CWA cumulative impacts determinations relied on the success of a mitigation process to minimize the cumulative impacts of NWP 21, but the Corps did not provide a rational explanation for its reliance. The Corps also provided no evidence that the mitigation process would be successful or adequately enforced. NWP 21 for 2007 was therefore vacated and remanded. Ohio Valley Environmental Coalition v. Hurst, No. 3:03-2281, 39 ELR 20072 (S.D. W. Va. Mar. 31, 2009) (Goodwin, CJ.).


FEDERAL TORT CLAIMS ACT, NEPA:



A district court held that the due care and discretionary function exceptions to the Federal Tort Claims Act do not shield the U.S. Army Corps of Engineers from homeowners' lawsuit against it for damages stemming from flooding following Hurricane Katrina. Plaintiffs argue that the Corps failed to properly maintain the Mississippi River-Gulf Outlet, thereby allowing Katrina's surge to flood portions of Louisiana. The Corps claimed that it was shielded from prosecution under the due care exception, which immunizes government agencies from prosecution for claims based on the execution of a statute or regulation with which the government exercised due care. The Corps also argued that it was protected by the discretionary function exception, which bars claims based on the performance of a discretionary function of the government. Here, there are questions of fact about whether the Corps violated a mandate under NEPA. Accordingly, the court denied the Corps' motion to dismiss. In re Katrina Canal Breaches Consolidated Litigation, No. 05-4182, 39 ELR 20071 (E.D. La. Mar. 20, 2009) (Duval, J.).


NEPA, TERRORIST ATTACKS:



The Third Circuit held that the NRC need not examine the environmental impact of a hypothetical terrorist attack on a nuclear power facility during its review of an application to relicense that facility. New Jersey's environmental agency, in its petition for review of an NRC decision denying its request to intervene in relicensing proceedings for the Oyster Creek Nuclear Generating Station, argued that NEPA requires an analysis of the impact of such an attack. Terrorist attacks, however, are too far removed from the natural or expected consequences of agency action to require an environmental impact analysis. In addition, the NRC has already addressed the environmental impact of a potential terrorist act at Oyster Creek through its generic EIS and site-specific supplemental EIS. New Jersey Department of Environmental Protection v. United States Nuclear Regulatory Commission, No. 07-2271, 39 ELR 20068 (3d Cir. Mar. 31, 2009).


PREEMPTION, INJUNCTIONS:



The Ninth Circuit reversed and remanded a lower court decision denying the trucking industry's motion to preliminarily enjoin two California ports from implementing "concession agreements" designed, among other things, to reduce diesel emissions from trucks servicing container facilities at the ports. The trucking industry argued that the Federal Aviation Administration Authorization Act preempted the concession agreements. The lower court, however, concluded that the trucking industry was not likely to succeed on the merits because the agreements likely fell within a statutory exception preserving the "safety regulatory authority of a State with respect to motor vehicles." When preemption is claimed, a court must pay careful attention to the particular provisions that a state or local entity seeks to impose upon motor carriers. The mere fact that one part of a regulation or group of regulations might come within an exception to preemption does not mean that all other parts of that regulation or group are also excepted. Here, the lower court erred in not examining the specific provisions of the concession agreements, even though it is likely that many of the provisions are preempted. In addition, the balance of equities and the public interest do weigh in favor of a preliminary injunction as to at least portions of the concession agreements, and the agreements are likely to result in at least some irreparable harm to the motor carriers. The lower court therefore abused its discretion when it denied a preliminary injunction as to significant parts of the agreements. On remand, the lower court must determine whether a preliminary injunction should run against all or only a portion of each concession agreement. American Trucking Ass'ns v. City of Los Angeles, No. 08-56503, 39 ELR 20074 (9th Cir. Mar. 20, 2009).


ESA, CRITICAL HABITAT DESIGNATIONS:



A district court set aside the FWS' decision not to designate critical habitat or to prepare a recovery plan for the jaguar. The FWS' critical habitat designation determination was not based on the best scientific evidence available and was inconsistent with the statutory mandate of the ESA. Similarly, the FWS' decision not to prepare a recovery plan was inconsistent with its own policy guidance and its long-standing practice regarding the distinction between foreign and domestic species. Accordingly, the FWS' previous determinations were set aside. The agency has until January 8, 2010, to determine whether it must designate critical habitat and prepare a recovery plan for the jaguar. Center for Biological Diversity v. Kempthorne, Nos. 07-372, -335, 39 ELR 20073 (D. Ariz. Mar. 30, 2009) (Roll, J.).


CALIFORNIA ENVIRONMENTAL QUALITY ACT, MITIGATION:



A California appellate court reversed a lower court decision that a city violated the California Environmental Quality Act (CEQA) in approving a residential and commercial development project. The lower court properly ruled that the city violated the Planning and Zoning Law because the city's general plan required it to design mitigation for impacts on special-status species in coordination with the FWS, which the city did not do. But the court erred in finding that the city's environmental impact report and approval violated CEQA. The conservation group that filed suit against the city failed to establish any violations on which administrative remedies were exhausted. California Native Plant Society v. City of Rancho Cordova, No. C057018, 39 ELR 20070 (Cal. App. 3d Dist. Mar. 24, 2009).


Copyright© 2009, Environmental Law Institute, Washington, D.C. All rights reserved.


THE FEDERAL AGENCIES

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


AIR:



  • EPA promulgated Performance Specification 16 for predictive emissions monitoring systems and amended testing and monitoring provisions. 74 FR 12575 (3/25/09).

  • EPA proposed to amend the national volatile organic compound emission standards for aerosol coatings. 74 FR 14941 (4/2/09).

  • EPA withdrew the direct final rule for Rulemaking to Reaffirm the Promulgation of Revisions of the Acid Rain Program Rules, published on December 15, 2008, due to adverse comment. 74 FR 13124 (3/26/09).

  • EPA approved a negative declaration by the Pima County Department of Environmental Quality in Arizona regarding solid waste incinerator units under CAA jurisdiction. 74 FR 13122 (3/26/09).

  • EPA updated the delegation status of NESHAPS for the Amador County and San Diego County air pollution control districts. 74 FR 12591 (3/25/09).

  • EPA proposed to approve a negative declaration by the Pima County Department of Environmental Quality in Arizona regarding solid waste incinerator units under CAA jurisdiction; see above for direct final rule. 74 FR 13170 (3/26/09).

  • EPA proposed amendments to Methods 201A and 202 for sampling of fine particulate matter (PM2.5) to attain NAAQS and solicited comment on ending a transition period before January 1, 2011. 74 FR 12970 (3/25/09).

  • EPA entered into a proposed consent decree under the CAA giving the Agency until May 29, 2009, to outline its objections to an operating permit issued to the Wisconsin Electric Power Company's plant in Oak Creek, Wisconsin. 74 FR 14982 (4/2/09).

  • EPA proposed to update the delegation status of NESHAPS for the Amador County and San Diego County air pollution control districts; see above for direct final rule. 74 FR 12782 (3/25/09).

  • SIP Approvals: Alabama (eight-hour ozone and PM2.5 NAAQS for the Birmingham and Jackson County nonattainment areas) 74 FR 13118 (3/26/09). Kentucky (maintenance plans for the 1997 eight-hour ozone NAAQS for the Huntington-Ashland, Lexington, and Edmonson County areas through 2020) 74 FR 12567 (3/25/09). Maryland (full approval of volatile organic compound (VOC) reasonable available control technology (RACT) regulation) 74 FR 12556 (3/25/09). Nevada (legal authority for indirect source programs) 74 FR 15219 (4/3/09). New Mexico (fugitive dust control regulations for Albuquerque/Bernalillo County) 74 FR 14731 (4/1/09). Rhode Island (limited maintenance plan for the Providence carbon monoxide (CO) attainment area) 74 FR 12562 (3/25/09). Virginia (operating permit for the control of VOC emissions from Reynolds Consumer Products Company in Richmond) 74 FR 12572 (3/25/09). West Virginia (control of air pollution from combustion of refuse) 74 FR 12560 (3/25/09).

  • SIP Proposals: Alabama (eight-hour ozone and PM2.5 NAAQS for the Birmingham and Jackson County nonattainment areas; see above for direct final rule) 74 FR 13170 (3/26/09). Kentucky (maintenance plans for the 1997 eight-hour ozone NAAQS for the Huntington-Ashland, Lexington, and Edmonson County areas through 2020; see above for direct final rule) 74 FR 12774 (3/25/09). Louisiana (attainment of the one-hour ozone NAAQS for the Baton Rouge nonattainment area) 74 FR 13166 (3/26/09). Maryland (full approval of VOC RACT regulation; see above for direct final rule) 74 FR 12777 (3/25/09). New Mexico (fugitive dust control regulations for Albuquerque/Bernalillo County; see above for direct final rule) 74 FR 14759 (4/1/09). Rhode Island (limited maintenance plan for the Providence CO attainment area; see above for direct final rule) 74 FR 12776 (3/25/09). Virginia (operating permit for the control of VOC emissions from Reynolds Consumer Products Company in Richmond; see above for direct final rule) 74 FR 12775 (3/25/09). Washington, D.C. (RACT for nitrogen oxides and VOCs under the eight-hour ozone NAAQS) 74 FR 12778 (3/25/09). West Virginia (control of air pollution from combustion of refuse; see above for direct final rule) 74 FR 12776 (3/25/09).

GENERAL:



  • EPA announced the availability of the final Guidance Document on the Development, Evaluation, and Application of Regulatory Environmental Models prepared by the Council for Regulatory Environmental Modeling. 74 FR 14551 (3/31/09).

HAZARDOUS & SOLID WASTE:



  • EPA extended until January 14, 2010, the effective date of its December 2008 amendments to the spill prevention, control, and countermeasure regulations for nontransportation-related onshore facilities and requested comment on further extension. 74 FR 14736 (4/1/09).

  • EPA gave final authorization to New Mexico to administer its used oil program under RCRA. 74 FR 12625 (3/25/09).

  • EPA proposed giving final authorization to New Mexico to administer its used oil program under RCRA; see above for direct final rule. 74 FR 12783 (3/25/09).

  • EPA entered into a proposed administrative agreement under CERCLA that requires the settling party to pay $10,000 in past U.S. response costs incurred at the U.S. Colloidal Essence site in Rancho Cucamonga, California. 74 FR 14555 (3/31/09).

  • EPA entered into a proposed administrative settlement under CERCLA that requires the settling party to pay $45,000 out of a total $63,870.49 in U.S. response costs concerning the Great Lakes Chemical Corporation Emergency Response Superfund site in El Dorado, Arkansas. 74 FR 13432 (3/27/09).

  • EPA entered into a proposed administrative settlement under CERCLA §122(h) that requires 74 settling parties to pay $4,403,290 in response costs associated with the Malone Service Company Superfund site in Texas City, Texas. 74 FR 12129 (3/23/09).

MINING:



  • OSM reinstated a requirement for Pennsylvania's regulatory program under SMCRA that deals with documentation for bonding provisions. 74 FR 12265 (3/24/09).

NEPA:



  • The Federal Highway Administration and the Federal Transit Administration modified their joint NEPA regulations as mandated by the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users and created new categorical exclusions allowing proposed actions to proceed without an EA or an EIS. 74 FR 12517 (3/24/09).

OFFICE OF THE PRESIDENT:



  • The President issued a memorandum directing heads of executive departments and agencies to help ensure the responsible spending of funds under the American Recovery and Reinvestment Act of 2009. 74 FR 12531 (3/25/09).

TOXIC SUBSTANCES:



  • EPA announced the availability of its Strategic Plan for Evaluating the Toxicity of Chemicals, which will serve as a blueprint for EPA in incorporating advances in molecular biology and computational sciences into toxicity testing and risk assessment practices across the Agency. 74 FR 12847 (3/25/09).

WATER:



  • EPA announced the availability of the final NPDES permit for surface water discharges at the Absaloka Coal Mine in southeastern Montana. 74 FR 13432 (3/27/09).

  • EPA Region 6 announced that it proposes to issue a NPDES general permit for discharges from eligible owners/operators of existing concentrated animal feeding operations, in Oklahoma, except those discharges on Indian Country. 74 FR 12849 (3/25/09).

  • EPA Region 9 proposed certain modifications of its general NPDES permit for discharges from offshore oil and gas exploration, development, and production facilities in waters off the coast of southern California. 74 FR 15267 (4/3/09).

  • EPA announced the availability of its proposed decision identifying two water quality limited segments in Idaho and their associated pollutants to be listed under CWA §303(d)(2); the Agency seeks comments from the public. 74 FR 12848 (3/25/09).

  • EPA determined that adequate facilities for the safe and sanitary removal and treatment of sewage from all vessels are reasonably available for the waters of Boothbay Harbor, Maine. 74 FR 12848 (3/25/09).

WILDLIFE:



  • FWS removed the western Great Lakes distinct population segment (DPS) of the gray wolf for all of Michigan, Minnesota, and Wisconsin, portions of Illinois, Indiana, Iowa, North Dakota, Ohio, and South Dakota from the list of threatened and endangered wildlife under the ESA. 74 FR 15070 (4/2/09).

  • FWS removed the northern Rocky Mountains DPS of the gray wolf for all of Idaho, Montana, and portions of Oregon, Utah, and Washington from the list of threatened and endangered wildlife under the ESA. 74 FR 15123 (4/2/09).

  • FWS and the Forest Service issued regulations for seasons, harvest limits, methods, and means related to the taking of fish for subsistence uses during the 2009-10 and 2010-11 regulatory years on public lands in Alaska. 74 FR 14049 (3/30/09).

  • FWS announced its 12-month finding on a petition to list the yellow-billed loon as threatened or endangered, with critical habitat, under the ESA and determined that listing the loon is warranted but precluded by other higher priority listing actions. 74 FR 12931 (3/25/09).

DOJ NOTICES OF SETTLEMENT:



  • United States v. Petroleum Reclaiming Service, Inc., No. 09-cv-05157 (W.D. Wash. Mar. 23, 2009). A settling CERCLA defendant must pay $638,391.06 in natural resource damages and $111,608.94 in damage assessment costs for releases of hazardous substances into Commencement Bay, Washington. 74 FR 15302 (4/3/09).

  • In re ASARCO LLC, No. 05-21207 (Bankr. S.D. Tex. Mar. 19, 2009). A settling CERCLA defendant must establish a custodial trust, must transfer certain properties to that trust, and must fund the trust with an allowed administrative expense claim of $52 million to cover administrative costs and fund cleanup work at sites in Amarillo and El Paso, Texas. 74 FR 13227 (3/26/09).

  • In re ASARCO LLC, No. 05-21207 (Bankr. S.D. Tex. Mar. 13, 2009). A settling CERCLA defendant must provide the United States with allowed general unsecured claims totaling $81,121,390 for Superfund and mining sites in Arizona, Colorado, Idaho, Illinois, Montana, New Mexico, Tennessee, Texas, Utah, and Washington and must provide the state of Washington with an additional allowed general unsecured claim of $5.5 million for one site. 74 FR 12378 3/24/09).

  • In re ASARCO LLC, No. 05-21207 (Bankr. S.D. Tex. Mar. 13, 2009). Settling CERCLA debtors must establish a custodial trust with $8.9 million for administrative costs and $129,400,000 for cleanup work at various mining sites in Montana and must provide Montana with an allowed general unsecured claim of $5 million for compensatory natural resource damages. 74 FR 12379 (3/24/09).

  • In re ASARCO LLC, No. 05-21207 (Bankr. S.D. Tex. Mar. 13, 2009). A settling CERCLA defendant must establish a custodial trust, must transfer certain properties to that trust, and must fund the trust with allowed administrative expense claims totaling $70,955,493 for administrative and site cleanup costs in Alabama, Arizona, Arkansas, Colorado, Illinois, Indiana, New Mexico, Ohio, Oklahoma, Utah, and Washington. 74 FR 12379 (3/24/09).

  • In re ASARCO LLC, No. 05-21207 (Bankr. S.D. Tex. Mar. 13, 2009). Settling CERCLA debtors must provide the United States with an allowed general unsecured claim of $41.464 million for past costs and future oversight costs, must provide the successor trust with an allowed general unsecured claim of $359.179 million to perform work, must transfer land to the successor trust and provide $14 million to perform work on those lands, and must provide the DOI and the Forest Service with an allowed general unsecured claim of $67.5 million regarding the Bunker Hill Mining and Metallurgical Complex Superfund site in Idaho; settling CERCLA debtors must also provide the United States with an allowed general unsecured claim of $186.5 million regarding the Omaha Lead site in Nebraska. 74 FR 12380 (3/24/09).

Copyright© 2009, Environmental Law Institute, Washington, D.C. All rights reserved.


THE CONGRESS

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


Chamber Action



  • H.R. 146 (Omnibus Public Land Management Act of 2009), which would designate certain land as components of the National Wilderness Preservation System and to authorize certain programs and activities in the DOI and the USDA, was passed by the House. 155 Cong. Rec. H3840 (daily ed. Mar. 25, 2009).

  • H.R. 1404 (Federal Land Assistance, Management and Enhancement Act), which would authorize a supplemental funding source for catastrophic emergency wildland fire suppression activities on DOI and National Forest System lands and require the Secretary of the Interior and the Secretary of Agriculture to develop a cohesive wildland fire management strategy, was passed by the House. 155 Cong. Rec. H4031 (daily ed. Mar. 26, 2009).

Bills Introduced



  • S. 668 (Murray, D-Wash) (Northwest Straits Marine Conservation Initiative Act) would reauthorize the Northwest Straits Marine Conservation Initiative Act to promote the protection of the resources of the Northwest Straits. 155 Cong. Rec. S3609 (daily ed. Mar. 23, 2009). The bill was referred to the Committee on Commerce, Science, and Transportation.

  • S. 672 (Cantwell, D-Wash.) (Natural Gas Act) would amend the Natural Gas Act, the Natural Gas Policy Act of 1978, and the Federal Power Act to modify provisions relating to enforcement and judicial review and to modify the procedures for proposing changes in natural gas rates. 155 Cong. Rec. S3657 (daily ed. Mar. 24, 2009). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 675 (Levin, D-Mich.) (Federal Water Pollution Control Act) would amend the Federal Water Pollution Control Act to prohibit the sale of dishwashing detergent in the United States if the detergent contains a high level of phosphorus. 155 Cong. Rec. S3657 (daily ed. Mar. 24, 2009). The bill was referred to the Committee on Environment and Public Works.

  • S. 679 (Collins, R-Me.) (hybrid vehicles) would establish a research, development, demonstration, and commercial application program to promote research of appropriate technologies for heavy duty plug-in hybrid vehicles. 155 Cong. Rec. S3657 (daily ed. Mar. 24, 2009). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 684 (Cantwell, D-Wash.) (OPA) would provide the U.S. Coast Guard and NOAA with additional authorities under OPA to strengthen the 1990 Act. 155 Cong. Rec. S3658 (daily ed. Mar. 24, 2009). The bill was referred to the Committee on Commerce, Science, and Transportation.

  • S. 690 (Cardin, D-Md.) (Neotropical Migratory Bird Conservation Act) would reauthorize the Neotropical Migratory Bird Conservation Act. 155 Cong. Rec. S3784 (daily ed. Mar. 25, 2009). The bill was referred to the Committee on Environment and Public Works.

  • S. 696 (Cardin, D-Md.) (Federal Water Pollution Control Act) would amend the Federal Water Pollution Control Act to include a definition of fill material. 155 Cong. Rec. S3784 (daily ed. Mar. 25, 2009). The bill was referred to the Committee on Environment and Public Works.

  • S. 719 (Tester, D-Mont.) (oil and gas development) would direct the Secretary of the Interior to notify surface estate owners in cases in which the leasing of federal minerals underlying the land is to be used for oil and gas development. 155 Cong. Rec. S3897 (daily ed. Mar. 26, 2009). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 720 (Udall, D-Colo.) (federal land) would provide a source of funds to carry out restoration activities on federal land under the jurisdiction of the Secretary of the Interior or the Secretary of Agriculture. 155 Cong. Rec. S3897 (daily ed. Mar. 26, 2009). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 721 (Murray, D-Wash.) (wild and scenic rivers) would expand the Alpine Lakes Wilderness in the state of Washington and designate the Middle Fork Snoqualmie River and Pratt River as wild and scenic rivers. 155 Cong. Rec. S3897 (daily ed. Mar. 26, 2009). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 724 (Barrasso, R-Wyo.) (ESA) would amend the ESA to temporarily prohibit the Secretary of the Interior from considering global climate change as a natural or man-made factor in determining whether a species is a threatened or endangered species. 155 Cong. Rec. S3897 (daily ed. Mar. 26, 2009). The bill was referred to the Committee on Environment and Public Works.

  • S. 737 (Collins, R-Me.) (energy) would amend the Energy Independence and Security Act of 2007 to authorize the Secretary of Energy to conduct research, development, and demonstration to make biofuels more compatible with small nonroad engines. 155 Cong. Rec. S3986 (daily ed. Mar. 30, 2009). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 742 (Chambliss, R-Ga.) (National Historic Park) would expand the boundary of the Jimmy Carter National Historic Site in the state of Georgia and redesignate it as a National Historical Park. 155 Cong. Rec. S3986 (daily ed. Mar. 30, 2009). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 745 (Hatch, R-Utah) (Reclamation Wastewater and Groundwater Study and Facilities Act) would amend the Reclamation Wastewater and Groundwater Study and Facilities Act to authorize the Secretary of the Interior to participate in the Magna Water District water reuse and groundwater recharge project. 154 Cong. Rec. S4062 (daily ed. Mar. 31, 2009). The bill was referred to the Committee on Energy and Natural Resources.

  • H.R. 1672 (Larsen, D-Wash.) (Northwest Straits Marine Conservation Initiative Act) would reauthorize the Northwest Straits Marine Conservation Initiative Act to promote the protection of the resources of the Northwest Straits. 155 Cong. Rec. H3748 (daily ed. Mar. 23, 2009). The bill was referred to the Committee on Natural Resources.

  • H.R. 1683 (Mcdermott, D-Wash.) (greenhouse gas emissions) would amend the Internal Revenue Code of 1986 to reduce greenhouse gas emissions by requiring a federal emission permit for the sale or use of greenhouse gas emission substances. 155 Cong. Rec. H3833 (daily ed. Mar. 24, 2009). The bill was referred to the Committee on Ways and Means and the Committee on Energy and Commerce.

  • H.R. 1684 (Hastings, R-Wash.) (national parks) would preserve the rights granted under the Second Amendment to the U.S. Constitution in national parks and national wildlife refuge areas. 155 Cong. Rec. H3833 (daily ed. Mar. 24, 2009). The bill was referred to the Committee on Natural Resources.

  • H.R. 1689 (Boucher, D-Va.) (carbon capture and storage) would accelerate the development and early deployment of systems for the capture and storage of carbon dioxide emissions from fossil fuel electric generation facilities. 155 Cong. Rec. H3834 (daily ed. Mar. 24, 2009). The bill was referred to the Committee on Energy and Commerce and the Committee on Science and Technology.

  • H.R. 1690 (Capps, D-Cal.) (CZMA) would amend the CZMA to authorize the Secretary of Commerce to make grants to coastal states to support voluntary state efforts to initiate and complete surveys of coastal waters to identify potential areas suitable for the exploration, development, and production of renewable energy. 155 Cong. Rec. H3834 (daily ed. Mar. 24, 2009). The bill was referred to the Committee on Natural Resources.

  • H.R. 1694 (Holt, D-N.J.) (American Battlefield Protection Act) would amend the American Battlefield Protection Act of 1996 to establish a battlefield acquisition grant program for the acquisition and protection of nationally significant battlefields and associated sites of the Revolutionary War and the War of 1812. 155 Cong. Rec. H3834 (daily ed. Mar. 24, 2009). The bill was referred to the Committee on Natural Resources.

  • H.R. 1696 (Pallone, D-N.J.) (offshore drilling) would amend the Outer Continental Shelf Lands Act to permanently prohibit the conduct of offshore drilling on the outer continental shelf in the Mid-Atlantic and North Atlantic planning areas. 155 Cong. Rec. H3834 (daily ed. Mar. 24, 2009). The bill was referred to the Committee on Natural Resources.

  • H.R. 1698 (Van Hollen, D-Md.) (clean energy) would establish a Green Bank to assist in the financing of qualified clean energy projects and qualified energy efficiency projects. 155 Cong. Rec. H3834 (daily ed. Mar. 24, 2009). The bill was referred to the Committee on Ways and Means and the Committee on Energy and Commerce.

  • H.R. 1730 (Mcnerney, D-Cal.) (electric vehicles) would amend the Public Utility Regulatory Policies Act of 1978 with respect to electric vehicle infrastructure. 155 Cong. Rec. H4061 (daily ed. Mar. 26, 2009). The bill was referred to the Committee on Energy and Commerce.

  • H.R. 1732 (Harman, D-Cal.) (energy efficiency) would amend the Energy Policy and Conservation Act to provide for standards for energy efficient outdoor lighting. 155 Cong. Rec. H4061 (daily ed. Mar. 26, 2009). The bill was referred to the Committee on Energy and Commerce.

  • H.R. 1738 (Roybal-Allard, D-Cal.) (wastewater) would amend the Reclamation Wastewater and Groundwater Study and Facilities Act to authorize the Secretary of the Interior to participate in the Downey, California, regional wastewater treatment and reclamation facility projects. 155 Cong. Rec. H4061 (daily ed. Mar. 26, 2009). The bill was referred to the Committee on Natural Resources.

  • H.R. 1742 (Eshoo, D-Cal.) (electric vehicles) would establish a program to deploy and integrate plug-in electric drive vehicles in multiple regions. 155 Cong. Rec. H4062 (daily ed. Mar. 26, 2009). The bill was referred to the Committee on Energy and Commerce and the Committee on Transportation and Infrastructure.

  • H.R. 1743 (McCarthy, R-Cal.) (renewable energy) would amend the Internal Revenue Code of 1986 to extend the renewable energy credit. 155 Cong. Rec. H4062 (daily ed. Mar. 26, 2009). The bill was referred to the Committee on Ways and Means.

  • H.R. 1757 (Herseth Sandlin, D-S.D.) (alternative fuels) would amend the Internal Revenue Code of 1986 to encourage increased access to alternative fuels. 155 Cong. Rec. H4062 (daily ed. Mar. 26, 2009). The bill was referred to the Committee on Ways and Means.

  • H.R. 1759 (Inslee, D-Wash.) (emissions) would distribute emission allowances under a domestic cap-and-trade program to facilities in certain domestic energy-intensive industrial sectors and subsectors to prevent an increase in greenhouse gas emissions by manufacturing facilities located in countries without commensurate greenhouse gas regulation. 155 Cong. Rec. H4062 (daily ed. Mar. 26, 2009). The bill was referred to the Committee on Energy and Commerce.

  • H.R. 1760 (Inslee, D-Wash.) (emissions) would mitigate the effects of black carbon emissions in the United States and throughout the world. 155 Cong. Rec. H4062 (daily ed. Mar. 26, 2009). The bill was referred to the Committees on Energy and Commerce, Foreign Affairs, and Science and Technology.

  • H.R. 1769 (Reichert, R-Wash.) (wild and scenic rivers) would expand the Alpine Lakes Wilderness in the state of Washington and designate the Middle Fork Snoqualmie River and Pratt River as wild and scenic rivers. 155 Cong. Rec. H4063 (daily ed. Mar. 26, 2009). The bill was referred to the Committee on Natural Resources.

  • H.R. 1771 (Sarbanes, D-Md.) (NOAA) would reauthorize the Chesapeake Bay Office of NOAA. 155 Cong. Rec. H4063 (daily ed. Mar. 26, 2009). The bill was referred to the Committee on Natural Resources.

  • H.R. 1774 (Mcnerney, D-Cal.) (energy efficiency) would incorporate smart grid capability into the Energy Star Program to reduce peak electric demand and reauthorize the energy efficiency public information program to include Smart Grid information. 155 Cong. Rec. H4128 (daily ed. Mar. 30, 2009). The bill was referred to the Committee on Energy and Commerce.

  • H.R. 1778 (Welch, D-Vt.) (energy efficiency) would provide for the establishment of national energy and environmental building retrofit policies for both residential and commercial buildings. 155 Cong. Rec. H4128 (daily ed. Mar. 30, 2009). The bill was referred to the Committee on Energy and Commerce and the Committee on Financial Services.

  • H.R. 1780 (Matsui, D-Cal.) (CAA) would amend the CAA to achieve greenhouse gas emissions reductions through transportation efficiency. 155 Cong. Rec. H4128 (daily ed. Mar. 30, 2009). The bill was referred to the Committee on Energy and Commerce.

  • H.R. 1787 (Inslee, D-Wash.) (CAA) would amend the CAA regarding transportation fuels and establishment of a low carbon fuel standard. 155 Cong. Rec. H4128 (daily ed. Mar. 30, 2009). The bill was referred to the Committee on Energy and Commerce.

  • H.R. 1790 (Engel, D-N.Y.) (greenhouse gas emissions) would seek to reduce global greenhouse gas emissions resulting from land conversion and deforestation in developing countries and provide incentives for developing countries to increase forest carbon stocks. 155 Cong. Rec. H4128 (daily ed. Mar. 30, 2009). The bill was referred to the Committee on Foreign Affairs and the Committee on Energy and Commerce.

  • H.R. 1794 (Lungren, R-Cal.) (oil) would provide incentives to reduce dependence on foreign oil. 155 Cong. Rec. H4128 (daily ed. Mar. 30, 2009). The bill was referred to the Committees on Ways and Means, Science and Technology, and Energy and Commerce.

  • H.R. 1810 (Bachman, R-Minn.) (oil exploration) would open BLM and National Forest lands to leasing for exploration, development, and production of oil shale resources. 154 Cong. Rec. H4249 (daily ed. Mar. 31, 2009). The bill was referred to the Committee on Natural Resources.

  • H.R. 1811 (Bachman, R-Minn.) (oil exploration) would authorize the president to review and approve oil and gas exploration, development, and production projects under existing federal oil and gas leases, both onshore and offshore, and limit administrative and judicial proceedings with respect to such projects upon finding that such a project complies with all applicable federal laws, and for other purposes. 154 Cong. Rec. H4249 (daily ed. Mar. 31, 2009). The bill was referred to the Committee on Natural Resources.

  • H.R. 1812 (Bachman, R-Minn.) (energy production) would amend the Internal Revenue Code of 1986 to reduce the recovery periods for certain energy production and distribution facilities. 154 Cong. Rec. H4249 (daily ed. Mar. 31, 2009). The bill was referred to the Committee on Ways and Means.

  • H.R. 1813 (Bachman, R-Minn.) (oil exploration) would terminate or provide for suspension of the application of federal laws that restrict exploration, development, or production of oil, gas, or oil shale, to facilitate the construction of new crude oil refineries. 154 Cong. Rec. H4249 (daily ed. Mar. 31, 2009). The bill was referred to the Committees on Natural Resources, Energy and Commerce, and Agriculture.

  • H.R. 1831 (Thompson, D-Cal.) (conservation) would amend the Internal Revenue Code of 1986 to make permanent the special rule for contributions of qualified conservation contribution. 154 Cong. Rec. H4250 (daily ed. Mar. 31, 2009). The bill was referred to the Committee on Ways and Means.

Copyright© 2009, Environmental Law Institute, Washington, D.C. All rights reserved.


IN THE STATES

Note: The entries below cover state developments since the last issue of Update. The entries are arranged by state, and within each section, entries are further subdivided by subject matter area. To access material previously reported in 2009, visit our list of Cumulative State Developments. For state material reported prior to 2009, visit the ELR Archives.


The states below have updates this week:

















Arizona

Louisiana

California

Maryland

Colorado

Massachusetts

Delaware

New Jersey

Indiana

Utah

ARIZONA


Water:



  • The Department of Environmental Quality released "Pesticide Application On, In and Near Waters of the United States," a substantive policy statement that informs the general public of the Department's current approach to, or opinion of, the requirements for Arizona Pollutant Discharge System permit coverage for pesticide application to waters of the United States. Copies of this policy document are available from the Department at a cost of $.25 per page. See http://www.azsos.gov/public_services/Register/2009/13/policy.pdf (p. 545)

CALIFORNIA


Air:



  • The South Coast Air Quality Management District will hold a public workshop on Proposed Amended Regulation III, Fees (PAR III). The regulation would establish procedures for assessing and collecting fees and the fee rates for emissions and permitting activities. The hearing is tentatively scheduled for June 5, 2009. See http://www.aqmd.gov/pub_edu/notice_RegIII_Mar_31_09.html

  • The South Coast Air Quality Management District will hold a public consultation and a California Environmental Quality Act (CEQA) scoping meeting to solicit information and suggestions from the public regarding Proposed Rule 1315, Federal New Source Review Tracking System (PR 1315); Proposed Amended Rule 1309.2, Offset Budget (PAR 1309.2); and the CEQA documents related to proposed rules. The proposed refinements to Rule 1315 would include an expanded purpose section; several minor clarifications; the addition of definitions of "Community Bank," "Offset Budget," and "Priority Reserve;" and expanded backstop provisions. The proposed amendments to Rule 1309.2 would remove carbon monoxide from the list of emittants for which offsets may be obtained from the Offset Budget, update the mitigation fees to be representative of the price of more recent Emission Reduction Credits, prohibit issuance of emissions offsets from the Offset Budget to most fossil fuel-fired thermal power plants, and clarify that conversion of existing emission reduction credits to short-term credits does not require issuance of a public notice. The hearing is tentatively scheduled for October 2, 2009. See http://www.aqmd.gov/pub_edu/notice_1315-13092_Apr_8_09.html

  • The South Coast Air Quality Management District will hold a public meeting on Rule 1147, Nitrogen Oxide Reductions from Miscellaneous Sources and the Portable Analyzer Protocol. The meeting will be held April 15, 2009. See http://www.aqmd.gov/pub_edu/notice_1147_Apr_15_09.html

Hazardous & Solid Waste:



  • The Department of Conservation seeks public comment on proposed amendments to 14 CCR Subchapter 6, Chapter 5, Division 2. The amendments concern the reduction of load limits for plastic and aluminum beverage containers. Comments are due May 11, 2009. See http://www.oal.ca.gov/pdfs/notice/13z-2009.pdf (pp. 477-79)

Wildlife:



  • The California Department of Forestry and Fire Protection (CAL FIRE) will hold a public hearing on proposed amendments to 14 CCR §895, Abbreviations Applicable Throughout Chapter; §895.1, Definitions; §919.9, [939.9], Northern Spotted Owl; and §919.10 [939.10], Take of Northern Spotted Owl. The proposed regulation provides CAL FIRE a mechanism for obtaining biological expertise to assist in ensuring all plans located within the range of the northern spotted owl incorporate enforceable protection measures for the species. The proposed regulation ensures that harvest activities do not result in the incidental take of a northern spotted owl and that plans are approved in an efficient and timely manner. The hearing will be held May 6, 2009. See http://www.oal.ca.gov/pdfs/notice/12z-2009.pdf (pp. 436-39)

COLORADO


Air:



Water:



DELAWARE


Toxic Substances:



INDIANA


Hazardous & Solid Waste:



  • The Indiana Department of Environmental Management seeks public comment on new rules at 329 IAC 11.5 concerning registration, operational requirements, and closure and financial assurance for biomass anaerobic digesters, gasifers, and boilers, and mobile home salvaging operations. Comments are due April 24, 2009. See http://www.in.gov/legislative/iac/20090325-IR-329090193FNA.xml.html

  • The Indiana Department of Environmental Management (IDEM) seeks public comment on new rules at 329 IAC 11.7 concerning registration, storage standards, and closure and financial assurance for facilities that use industrial or commercial waste as an alternative fuel source. This rulemaking focuses on the storage and handling aspects of the waste utilized as fuels and leaves the assessment of emission impacts from such burning to the Office of Air Quality and the Air Pollution Control Board. Along that same theme, IDEM is proposing revisions to the solid waste incinerator rules to recognize that technical evaluation and standards relative to the operation of the incinerators themselves are best dealt with through the appropriate air permits. Comments are due April 24, 2009. See http://www.in.gov/legislative/iac/20090325-IR-329090194FNA.xml.html

LOUISIANA


Air:



  • The Department of Environmental Quality adopted amendments to LAC 33:III.301, 303, 305, 307, 309, 311, 313, and 501, Regulatory Permits for Oil and Gas Well Testing, Release of Natural Gas from Pipelines, Emergency Engines, and Air Curtain Incinerators. The rules outline the requirements and limitations imposed on regulatory permits developed by the Department and establish several specific regulatory permits, including the regulatory permit for oil and gas well testing, the permit for release of natural gas from pipelines and associated equipment, the permit for emergency engines, and the permit for portable air curtain incinerators. See http://www.doa.la.gov/osr/reg/0903/0903.pdf (pp.456-461)

  • The Department of Environmental Quality adopted amendments to LAC 33:III.1432, 1434, 1435, and 1437, Transportation Conformity. This rule amends the transportation conformity regulations to fulfill the requirements in the CAA, as amended by the August 10, 2005, Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users. See http://www.doa.la.gov/osr/reg/0903/0903.pdf (pp. 461-63)

Toxic Substances:



  • The Department of Environmental Quality (DEQ) adopted amendments to LAC 33:I.2701, 2703, 2705, 2707, 2709, 2711, 2713, 2715, 2717, 2719, and 2721, Mercury Risk Reduction. This rule creates a comprehensive system for control of mercury-containing products; requires notification to the DEQ by manufacturers of mercury-containing products; phases out mercury-containing products with increasingly stringent restrictions on sales; requires manufacturers to provide collection plans for discarded mercury-containing products; provides for labeling of mercury-containing products and public outreach on the dangers of mercury; bans certain methods of disposal of mercury-containing products; bans certain uses of mercury-containing products; and provides for exemptions to the requirements. See http://www.doa.la.gov/osr/reg/0903/0903.pdf (pp. 449-456)

Water:



  • The Department of Environmental Quality adopted amendments to LAC 33:IX.1105, 1113, and 1123, Dissolved Oxygen Criteria for Barataria and Terrebonne Basins. The dissolved oxygen criteria have been revised for 60 water quality management subsegments in the Barataria and Terrebonne Basins, and Table 3 of LAC 33:IX.1123 has been revised accordingly. This rule also includes minor clarifications to the narrative dissolved oxygen standard in LAC 33:IX.1113. See http://www.doa.la.gov/osr/reg/0903/0903.pdf (pp. 445-49)

MARYLAND


Toxic Substances:



  • The Secretary of the Environment proposed to amend COMAR 26.12.01, Radiation Protection. This supplement incorporates revised NRC regulations on packaging and transporting radioactive material. The NRC has revised these regulations to make them compatible with the latest International Atomic Energy Agency standards for safe transportation of radioactive material. See http://www.dsd.state.md.us/mdregister/3607/index.htm#Radiation_Protection_61

MASSACHUSETTS


Air:



  • The Department of Environmental Protection will hold a public hearing on proposed amendments of 310 CMR 7.71, Mandatory Greenhouse Gas (GHG) Emissions Reporting Regulation. The regulation requires the reporting of GHG emissions from certain sources and creation of an accurate inventory of statewide GHG emissions that will inform and improve planning, implementation, and tracking of state efforts to address climate change.  These amendments address additional reporting requirements. The hearing will be held April 30, 2009. See http://www.mass.gov/dep/public/hearings/771amend.htm for announcement; and http://www.mass.gov/dep/service/regulations/proposed/771amend.pdf for text of amendments

NEW JERSEY


Toxic Substances:



  • The Department of Environmental Protection readopted and revised rules implementing the Toxic Catastrophe Prevention Act (TCPA) program at N.J.A.C. 7:31. The goal of the TCPA program is to protect the public from catastrophic accidents that could cause death or permanent disability to citizens beyond the property boundary. The TCPA requires owners and operators using, manufacturing, storing, or handling extremely hazardous substances (EHS) in quantities that meet or exceed threshold quantities to anticipate the circumstances that could result in EHS accidents and to take precautionary or preemptive measures to prevent these accidents. See http://www.nj.gov/dep/rules/adoptions/adopt_090316a.pdf

UTAH


Hazardous & Solid Waste:



  • The Department of Environmental Quality seeks public comment on proposed amendments to R315, Environmental Quality, Solid and Hazardous Waste; R315-315, Special Waste Requirements; and R315-315-1, General Requirements. The changes in Rule R315-315 are proposed to correct references to asbestos-containing material, remove unnecessary requirements, clarify procedures, and allow polychlorinated biphenol (PCB) capacitors from equipment other than fluorescent lights and waste that contain less than 50 parts per million of PCBs to be disposed of in a landfill. Comments are due May 4, 2009. See http://www.rules.utah.gov/publicat/bulletin/2009/20090401/32441.htm

Water:



  • The Department of Environmental Quality seeks public comment on proposed amendments to R309, Environmental Quality, Drinking Water; R309-105, Administration: General Responsibilities of Public Water Systems; and R309-105-6, Construction of Public Drinking Water Facilities. These amendments clarify the specific requirements for obtaining an exception to construction standards. Changes to §R309-500-5 would allow the upgrading of existing deteriorated pipelines or the tapping of existing water mains with corporation stops to be considered ongoing operation and maintenance procedures and to be exempt from plan review requirements. The changes in §R309-500-6(3)(b) would require previously approved standard installation drawings for waiving plan submittals. Comments are due May 1. See http://www.rules.utah.gov/publicat/bulletin/2009/20090401/32444.htm and http://www.rules.utah.gov/publicat/bulletin/2009/20090401/32445.htm

Copyright© 2009, Environmental Law Institute, Washington, D.C. All rights reserved.


INTERNATIONAL

PRELIMINARY DATA SHOWS EU SHORT OF CO2 PERMITS IN 2008


The European Union's (EU's) Emissions Trading Scheme was at least 40 million tons short of carbon permits in 2008, analysts said after reviewing preliminary EU data on April 1. Carbon market analysts said discounting incomplete data and comparing like-for-like figures between 2007 and 2008 showed companies emitted between 40 and 100 million tons over their allocated quota of emissions permits. The scheme, worth $90 billion last year, is the EU's flagship weapon in its fight against climate change. The preliminary data gave a first glance at the EU's industrial emissions for last year. This is also the first time the scheme has registered a shortage of EU allowances in its first four years, the preliminary data showed. The EU handed out an excess of permits from 2005-2007, undermining the scheme's goal of driving carbon cuts through creating a shortage of permits available to industry. For the full story, see http://www.reuters.com/article/GCA-GreenBusiness/idUSTRE53045Q20090401

CLIMATE CHANGE "FANS NEPAL FIRES"


The forest fires that flared unusually viciously in many of Nepal's national parks and conserved areas this dry season have left conservationists worrying if climate change played a role. At least four protected areas were on fire for an unusually long time until just last week. Satellite imagery showed most of the big fires were in and around the national parks along the country's northern areas bordering Tibet. Active fires were recorded in renowned conservation success stories like the Annapurna, Kanchanjunga, Langtang, and Makalu Barun national parks. The extent of the loss of flora and fauna is not yet known. Press reports said more than 100 yaks were killed by fire in the surrounding areas of the Kanjanchanga National Park in eastern Nepal. Trans-Himalayan parks host rare species such as snow leopards, red pandas, and several endangered birds. For the full story, see http://news.bbc.co.uk/2/hi/science/nature/7968745.stm

NORWEGIAN UTILITY BUYS UK WIND PROJECT FOR $741 MILLION


Norwegian state-owned utility Statkraft agreed to buy half of a British offshore wind farm project from Norway's oil and gas producer StatoilHydro for 5 billion crowns ($740.5 million). The Norwegian firms said they will jointly develop the 10 billion crown project--the fourth largest windfarm off Britain--and picked Siemens to supply the wind turbines in a 450 million euro ($594.7 million) deal. The project will further both companies' renewable energy plans, while combining StatoilHydro's offshore technology from the oil sector with Statkraft's electricity market know-how. Hydropower-rich Statkraft is already Europe's largest generator of renewable energy, including onshore wind power with projects in Britain. "The partnership with StatoilHydro will take us into the offshore wind industry as well--which is in line with our core growth strategy and within the investment plans already communicated to the market," said Statkraft CEO Baard Mikkelsen. The 315-megawatt wind farm will consist of 88 turbines located some 17-23 km (11-14 miles) off the coast from the town of Sheringham in northern Norfolk. For the full story, see http://www.reuters.com/article/GCA-GreenBusiness/idUSTRE5303VW20090401

Copyright© 2009, Environmental Law Institute, Washington, D.C. All rights reserved.


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