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Weekly Update Volume 39, Issue 11

04/20/2009

LITIGATION

INDIAN TUCKER ACT, MINERAL ROYALTIES:



The U.S. Supreme Court held that a Native American tribe is not entitled to damages under the Indian Tucker Act (ITA) for an asserted breach of fiduciary duty by the Secretary of the Interior in connection with his failure promptly to approve a royalty rate increase under a coal lease the tribe executed in 1964. In United States v. Navajo Nation, 537 U. S. 488 (2003), the Court explained that in order to invoke the ITA and thereby bypass federal sovereign immunity, a tribe "must identify a substantive source of law that establishes specific fiduciary or other duties, and allege that the government has failed faithfully to perform those duties." Holding that such duties were not imposed by the Indian Mineral Leasing Act of 1938, the Indian Mineral Development Act of 1982, or 25 U.S.C. §399, which concerns the leasing of unallotted mineral lands, the Court reversed a judgment for the tribe and remanded. The Court of Federal Claims then dismissed the tribe's claim, but the Federal Circuit reversed, finding violations of duties imposed by the Navajo-Hopi Rehabilitation Act of 1950 and SMCRA, as well as common-law duties arising from the government's "comprehensive control" over tribal coal. Yet none of these laws apply to the lease at issue and, as such, fail to create a "limited trust relationship" in this case. The tribe's claim for compensation therefore fails. Scalia, J., delivered the opinion for a unanimous Court. Souter, J., filed a concurring opinion, in which Stevens, J., joined. United States v. Navajo Nation, No. 07-1410, 39 ELR 20075 (U.S. Apr. 6, 2009).


CWA, DREDGE AND FILL:



A district court held that the U.S. Army Corps of Engineers erred in approving, and EPA erred in failing to veto, a CWA permit authorizing the construction of a 1,526-acre reservoir in eastern Virginia. The proposed reservoir project would flood over 1,500 acres of land and require the excavation, fill, destruction, and flooding of approximately 403 acres of freshwater wetlands and the elimination of 21 miles of free-flowing streams. The Corps arbitrarily and capriciously concluded that the project was the least damaging practicable alternative, that it would not cause or contribute to significant degradation of the waters of the United States, and that it was in the public interest. Similarly, EPA acted arbitrarily and capriciously in failing to veto the permit. It is clear that EPA's decision to refrain from vetoing the permit was based on a whole range of reasons completely divorced from the CWA's statutory text. The Regional Administrator determined that engaging in the required notice and comment proceedings would divert resources; that given the extensive public process provided by the Corps, another such process would be unlikely to add any new information; that there was a water supply shortfall that needed to be addressed; and that the permit would likely be subject to litigation in any event, among other things. None of these have anything to do with whether granting the permit would have an unacceptable adverse effect under the CWA. Alliance to Save the Mattaponi v. United States Army Corps of Engineers, No. 06-01268, 39 ELR 20079 (D.D.C. Mar. 31, 2009) (Kennedy, J.).


HAZARDOUS WASTE, DAMAGES:



The Court of Federal Claims awarded $84 million to four oil companies for costs they incurred cleaning up waste stemming from the production of aviation gasoline during World War II under contracts with the U.S. government. The government argued that the oil companies are not entitled to recover all of the costs they incurred cleaning up the site. It argued that some of the costs were not incurred “by reason of” the production of avgas because some of the acid sludge arising originally from the production of avgas could have been reused or resold. But the government's own admissions and stipulations establish that the oil companies had no viable options for dealing with the massive quantities of spent alkylation acid generated by avgas production that did not involve dumping. Given the court's previous liability ruling, various government stipulations, and district court findings, the oil companies are entitled to the full amount of clean up costs, plus interest, for a total of $84,536,763.65. Shell Oil Co. v. United States, No. 06-141, 39 ELR 20081 (Fed. Cl. Mar. 31, 2009) (Smith, J.).


CAA, FEDERAL IMPLEMENTATION PLANS:



The Tenth Circuit granted in part and denied in part petitions challenging EPA's site specific federal implementation plan (FIP) for a coal-fired power plant located on the Navajo reservation in northwest New Mexico. The court granted EPA's motion for voluntary remand of the FIP's fugitive dust limit. All other aspects of the rule, however, were upheld. EPA had no need to conduct additional modeling and analysis to demonstrate the adequacy of the plan. The FIP codifies in part the New Mexico plan--previously studied, analyzed, approved, and in place--and relies on current data demonstrating that the air quality in the area of the plant is better than the national air standards for criteria pollutants. The FIP, by necessity, is adequate because the plan is but a stricter version of the satisfactory emissions limits already applied by the plant and implemented throughout the state of New Mexico. In addition, EPA's decision to enact a 20% opacity limit for particulate matter was not arbitrary and capricious, and EPA's treatment of malfunction events is consistent with its treatment of startup and shutdown episodes. Arizona Public Service Co. v. United States Environmental Protection Agency, Nos. 07-9546, -9547, 39 ELR 20082 (10th Cir. Apr. 14, 2009).


CAA, MAJOR MODIFICATION:



A district court held that environmental groups' citizen suit against the TVA for violating the CAA, the Tennessee SIP, and related regulations in conjunction with its operation of coal-fired power plant in Bull Run, Tennessee, must proceed to trial. The groups argued that certain work done to the plant's economizer and finishing superheater in 1988 resulted in a "major modification" of the plant and, as a result, TVA is liable for failing to comply with the relevant PSD requirements. Conversely, TVA argued that the projects constituted routine maintenance, repair and replacement (RMRR) and were, therefore, not major modifications that necessitated undergoing the PSD permitting process. Because neither side has established as a matter of law the applicability or non-applicability of the RMRR exclusion given the specific facts in this case, their motions for summary judgment on the RMRR issue were denied. Similarly, reasonable minds could differ as to whether the projects resulted in an increase of emissions, thereby subjecting them to certain state regulations. The parties motions' for summary judgment on this issue were therefore denied as well. National Parks Conservation Ass'n v. Tennessee Valley Authority, No. 3:01-CV-71, 39 ELR 20084 (E.D. Tenn. Mar. 30, 2009) (Varlan, J.).


TAKINGS, NATIONAL WILDLIFE REFUGE:



The Federal Circuit affirmed a lower court decision dismissing commercial fishermen's takings claim against the DOI for prohibiting commercial fishing on waters surrounding the Palmyra National Wildlife Refuge. The fishermen argued they were entitled to compensation because the government's regulation was targeted at their commercial fishing operation. But DOI's regulation does not prohibit commercial fishing operations on Palmyra—it merely prohibits commercial fishing activity in the surrounding waters. The fact that the government's regulation of activities in the waters surrounding Palmyra may have adversely affected the value of their contract rights to engage in activities on shore is not sufficient to constitute a compensable taking. The ban on fishing may have reduced the value of the plaintiffs' license to operate on the island, but that reduction in value is not the result of a compensable taking of any cognizable property interest. Palmyra Pacific Seafoods, LLC v. United States, No. 2008-5058, 39 ELR 20087 (Fed. Cir. Apr. 9, 2009).


ESA, LISTING:



The Ninth Circuit, in an unpublished memorandum, affirmed a lower court's approval of the FWS's listing of the Central California tiger salamander as threatened under the ESA. The FWS made express findings based on the best available scientific data about future habitat loss and concluded, in its scientific judgment, that this future habitat loss made it likely that the Central California tiger salamander will become in danger of extinction throughout all or a significant portion of its range in the foreseeable future. The FWS is not required to state a threshold level of habitat loss that is necessary to find a species is threatened. In addition, the FWS can list a species as threatened based on any one of the five factors listed in ESA §4(a)(1). And the FWS did not incorrectly rely on past habitat loss, but based its listing decision on future habitat loss. Home Builders Ass'n of Northern Cal. v. United States Fish & Wildlife Service, No. 07-17147, 39 ELR 20086 (9th Cir. Apr. 10, 2009).


APA, LAND USE:



The Tenth Circuit held that a lower court properly dismissed claims challenging DOI's land management plan for the Grand Staircase-Escalante National Monument. Various local government entities argued that the plan violated county water rights and certain rights-of-way used for public highways. But the plaintiffs' allegations failed to state a claim upon which relief could be granted under the APA. A claim under APA §706(1) can proceed only where a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take. Here, DOI lacks the authority to conclusively resolve their rights-of-way claims. The plaintiffs also argued that the plan's water resource “exception criteria” are unlawful and have impaired their water rights. But the counties failed to allege an actual injury-in-fact resulting from the challenged plan provisions. Kane County v. Salazar, Nos. 07-4207, 08-4014, 39 ELR 20083 (10th Cir. Apr. 13, 2009).


NEPA, OIL AND GAS:



A district court upheld BLM's decision to grant oil and gas drilling permits in south-central Wyoming. BLM's decisions were not arbitrary, capricious, or otherwise unlawful under NEPA. BLM took the requisite hard look at environmental effects before approving the drilling permits, it evaluated a reasonable range of alternatives, it complied with NEPA's public-participation requirements, and it did not prematurely commit agency resources. In addition, BLM's reliance on adaptive management for mitigation and its analysis of the project's effects on mule deer were not arbitrary or capricious. Nor did BLM violate FLPMA. BLM complied with the Act's multiple-use and sustained-yield principles and the project was consistent with the resource management plan for the area. Theodore Roosevelt Conservation Partnership v. Salazar, Nos. 07-1486, -1709, 39 ELR 20078 (D.D.C. Mar. 31, 2009) (Leon, J.).


NEPA, PRELIMINARY INJUNCTION:



A district court preliminarily enjoined the construction of a $113 million computer center in Berkeley, California. A citizens group raised serious questions going to the merits of its claim that the project is a "major federal action" under NEPA. Moreover, irreparable injury from the alleged NEPA violation is imminent since the project is to soon break ground. Although the group had the opportunity to participate during the state environmental review process, the California Environmental Quality Act is not a substitute for NEPA. A temporary preliminary injunction will therefore remain in effect until the merits of the case are resolved later this year. Save Strawberry Canyon v. Energy Department, No. 08-03494, 39 ELR 20080 (N.D. Cal. Mar. 18, 2009) (Alsup, J.).


CONSTITUTIONAL LAW, AGRICULTURAL MARKETING AGREEMENT ACT:



The D.C. Circuit reversed a lower court decision dismissing dairy farmers' action challenging the constitutionality of two amendments to the Agricultural Marketing Agreement Act. The dairy farmers alleged that the amendments, which subjected certain large producer-handlers of milk to contribution requirements applicable to milk handlers, were invalid as a bill of attainder and a violation of equal protection and due process. The lower court dismissed the case because the farmers failed to exhaust their administrative remedies. However, exhaustion was neither jurisdictionally nor prudentially required. The plain text of the exhaustion requirement in the Agricultural Marketing Agreement Act does not apply to constitutional challenges to the Act itself, as distinct from challenges to regulatory orders and attendant obligations. Because the farmers' objections do not involve an alleged defect in a marketing order and the Secretary of Agriculture lacks the power to provide a remedy, requiring exhaustion as a prudential matter would not protect administrative agency authority or advance judicial efficiency. Hettinga v. United States, No. 07-5403, 39 ELR 20077 (D.C. Cir. Apr. 3, 2009).


FLOOD ELEVATION DETERMINATIONS, NOTICE:



The Fourth Circuit reversed a lower court order vacating certain base flood elevation determinations adopted by FEMA for Richland County, South Carolina. The lower court vacated the determinations because FEMA failed to timely publish notice of the determinations in the Federal Register. However, the failure to timely publish does not per se result in nullification of the agency action. Rather, the party who claims deficient notice must prove that any such deficiency was prejudicial. Because the developer challenging the flood elevation determinations failed to show that it was prejudiced by FEMA's failure to publish, the agency's decision must be upheld. Columbia Venture LLC v. South Carolina Wildlife Federation, Nos. 05-2398 et al., 39 ELR 20076 (4th Cir. Apr. 3, 2009).


NEW JERSEY ENVIRONMENTAL RIGHTS ACT, NOTICE:



A district court presiding over a group of residents' class action lawsuit against a manufacturer for allegedly contaminating water supplies dismissed an individual's New Jersey Environmental Rights Act (ERA) claim against the company for failure to provide notice. A plaintiff seeking to bring a claim under the ERA must provide at least 30 days notice to the state's Attorney General, the Department of Environmental Protection, the governing body of the municipality in which the alleged conduct has, or is likely to occur, as well as the intended defendant prior to commencing the suit. Here, the resident only provided the requisite notice of her ERA claim to the company, not to the governmental entities. Scott v. E.I. Dupont de Nemours & Co., No. 06-3080, 39 ELR 20085 (D.N.J. Apr. 1, 2009) (Bumb, J.).


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 proposed a regulation that would require all sectors of the economy to report their greenhouse gas emissions; the rule would apply to fossil fuel and industrial gas suppliers, as well as to direct greenhouse gas emitters. 74 FR 16448 (4/10/09).

  • EPA announced the availability of and seeks comment on a planning document titled Carbon Monoxide National Ambient Air Quality Standards: Scope and Methods Plan for Health Risk and Exposure Assessment. 74 FR 17490 (4/15/09).

  • EPA entered into a proposed consent decree under the CAA requiring the Agency to outline objections to an operating permit issued to the Paradise Fossil plant, in Drakesboro, Kentucky. 74 FR 17193 (4/14/09).

  • SIP Approvals: Georgia (enhanced inspection and maintenance (I/M) rules) 74 FR 17783 (4/17/09). Missouri (volatile organic compound (VOC) and hazardous air pollutant (HAP) lists and definitions) 74 FR 17086 (4/14/09). New Jersey (one-hour ozone NAAQS for the Philadelphia-Wilmington-Trenton nonattainment area) 74 FR 15864 (4/8/09); (idling of diesel-powered vehicles) 74 FR 17781 (4/17/09).

  • SIP Proposals: Georgia (enhanced I/M rules; see above for direct final rule) 74 FR 17810 (4/17/09). Missouri (VOC and HAP lists and definitions; see above for direct final rule) 74 FR 17129 (4/14/09).

ENERGY:



  • DOE proposed to amend energy conservation standards for certain general service fluorescent lamps (GSFLs) and incandescent reflector lamps and proposed new energy conservation standards for certain GSFLs not currently covered. 74 FR 16920 (4/13/09).

  • DOE amended the energy conservation standards for residential gas kitchen ranges and ovens under the Energy Policy and Conservation Act. 74 FR 16040 (4/8/09).

HAZARDOUS & SOLID WASTE:



  • EPA gave final authorization to revisions to Wisconsin's hazardous waste management program. 74 FR 17785 (4/17/09).

  • EPA granted a petition submitted by BAE Systems, Inc., to delist the waste filter cake from its wastewater treatment plant in Sealy, Texas, from the list of hazardous wastes. 74 FR 17414 (4/15/09).

  • EPA granted a petition submitted by Cooper Crouse-Hinds to delist the sludge and filter sand from its wastewater treatment plant in Amarillo, Texas, from the list of hazardous wastes. 74 FR 17419 (4/15/09).

  • EPA gave final authorization to revisions to Wisconsin's hazardous waste management program. 74 FR 17423 (4/15/09).

MINING:



  • OSM announced proposed amendments to Ohio's regulatory program under SMCRA and the opportunity for public comment. 74 FR 17802 (4/17/09).

PESTICIDES:



  • EPA published the final list of the first group of chemicals that will be screened using the Agency's Endocrine Disruptor Screening Program under the Federal Food, Drug, and Cosmetic Act. 74 FR 17579 (4/15/09).

WATER:



  • EPA withdrew a financial incentive contained in its CWA §106 Water Pollution Control grant regulations that allowed states to voluntarily collect NPDES permit fees. 74 FR 17403 (4/15/09).

  • EPA finalized the designation of an ocean-dredged material disposal site offshore of the Rogue River, Oregon. 74 FR 17406 (4/15/09).

  • EPA announced availability of data on ocean acidification and requested additional information on the monitoring of marine hydrogen ion concentration (pH) and implementation of pH water quality standards. 74 FR 17484 (4/15/09).

WILDLIFE:



  • FWS revised its 2001 designation of critical habitat for the Peninsular bighorn sheep from approximately 467,959 acres to approximately 376,938 acres in Imperial, Riverside, and San Diego counties, California. 74 FR 17288 (4/14/09).

  • FWS announced its 12-month finding on a petition to list the San Francisco Bay-Delta population of the longfin smelt as endangered, with critical habitat, under the ESA and determined that listing the species is not warranted since it does not meet the definition of a distinct population segment. 74 FR 16169 (4/9/09).

  • FWS announced the availability of a report entitled John H. Chafee Coastal Barrier Resources System Digital Mapping Pilot Project for public review and comment. 74 FR 15743 (4/7/09).

DOJ NOTICES OF SETTLEMENT:



  • United States v. Laquidara Construction, Inc., No. 09-cv-0358 (N.D.N.Y. Mar. 27, 2009). Settling CERCLA federal agencies and entities must pay $732,284.42 and $1,500, respectively, in U.S. response costs incurred at the Saratoga Radar Superfund site in Stillwater, New York. 74 FR 16233 (4/9/09).

  • In re ASARCO LLC, No. 05-21207 (Bankr. S.D. Tex. Mar. 30, 2009). A settling CERCLA defendant must transfer three parcels of land to the state of Arizona, must provide the United States with an allowed general unsecured claim of $226,396, and must provide the United States and the state of Arizona with a joint indivisible allowed general unsecured claim of $3,773,604 for natural resource damages to the Gila River, Mineral Creek, and San Pedro River from the Ray Mine facility in Kelvin, Arizona, and the Hayden Smelter facility in Hayden, Arizona. 74 FR 16234 (4/9/09).

  • United States v. Massachusetts Dept. of Conservation & Recreation, No. 1:09-cv-117-JD (D.N.H. Mar. 30, 2009). Settling CERCLA defendants must pay $2,322,316.75 for work at the Beede Waste Oil Superfund site in Plaistow, New Hampshire, and must pay $188,423.39 into a special site account; a de minimis settling defendant must pay $344,626.21 for work at the site. 74 FR 16011 (4/8/09).

  • United States v. North Carolina DOT Ferry Division, No. 5:08-CV-48-BO (E.D.N.C. Apr. 16, 2009). A settling CWA defendant must pay civil penalties and must provide periodic training regarding the CWA and related environmental requirements for discharging fill material without a permit into the Currituck Sound near Corolla, North Carolina. 74 FR 17883 (4/17/09).

  • United States v. INVISTA, No. 1:09-cv-00244 (D. Del. Apr. 13, 2009). A settling CAA, CERCLA, CWA, EPCRA, FIFRA, RCRA, and SDWA defendant must implement injunctive relief measures to resolve violations at its facilities in Delaware, Georgia, North Carolina, South Carolina, Tennessee, Texas, and Virginia. 74 FR 17688 (4/16/09).

  • United States v. City of Independence, No. 4:09-cv-00240-DGK (W.D. Mo. Mar. 31, 2009). A settling CWA defendant must pay a $255,000 civil penalty; must perform a comprehensive assessment of its sanitary sewer system; must upgrade its pump stations; must implement improvements to its wastewater collection system and wastewater treatment plant; and must perform supplemental environmental projects valued at $450,000 for illegally discharging pollutants into waters of the United States. 74 FR 17515 (4/15/09).

  • United States v. Port of Astoria, CV 09-197 KI (D. Or. Mar 20, 2009). A settling CWA defendant must pay a civil penalty and must hire and retain an environmental compliance officer for discharging pollutants in violation of a permit into waters of the United States near Astoria, Oregon. 74 FR 16893 (4/13/09).

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


THE CONGRESS

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


Bills Introduced



  • S. 766 (Murkowski, R-Alaska) (natural gas pipelines) would authorize the Secretary of the Interior to issue right-of-way permits for natural gas pipeline transportation utility systems in non-wilderness areas within the boundary of Denali National Park and Preserve. 155 Cong. Rec. S4172 (daily ed. Apr. 1, 2009). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 774 (Dorgan, D-N.D.) (energy) would seek to enhance the energy security of the United States by diversifying energy sources for onroad transport, increasing the supply of energy resources, and strengthening energy infrastructure. 155 Cong. Rec. S4172 (daily ed. Apr. 1, 2009). The bill was referred to the Committee on Finance.

  • S. 779 (Lautenberg, D-N.J.) (vehicles) would amend titles 23 and 49, U.S. Code, to modify provisions relating to the length and weight limitations for vehicles operating on federal-aid highways. 155 Cong. Rec. S4172 (daily ed. Apr. 1, 2009). The bill was referred to the Committee on Environment and Public Works.

  • S. 782 (Murkowski, R-Alaska) (natural disasters) would provide for the establishment of the National Volcano Early Warning and Monitoring System. 155 Cong. Rec. S4310 (daily ed. Apr. 2, 2009). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 783 (Menendez, 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. S4310 (daily ed. Apr. 2, 2009). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 784 (Murkowski, R-Alaska) (land claims) would provide for the recognition of certain Native communities and the settlement of certain claims under the Alaska Native Claims Settlement Act. 155 Cong. Rec. S4310 (daily ed. Apr. 2, 2009). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 785 (Murkowski, R-Alaska) (forestry) would establish a grant program to encourage retooling of entities in the timber industry in Alaska. 155 Cong. Rec. S4310 (daily ed. Apr. 2, 2009). The bill was referred to the Committee on Environment and Public Works.

  • S. 787 (Feingold, D-Wis.) (Clean Water Restoration Act) would amend the Federal Water Pollution Control Act to clarify the jurisdiction of the United States over waters of the United States. 155 Cong. Rec. S4310 (daily ed. Apr. 2, 2009). The bill was referred to the Committee on Environment and Public Works.

  • S. 789 (Feinstein, D-Cal.) (water) would require the Secretary of the Interior to conduct a study on the feasibility and suitability of constructing a storage reservoir, outlet works, and a delivery system for the Tule River Indian Tribe of the Tule River Reservation in the state of California to provide a water supply for domestic, municipal, industrial, and agricultural purposes. 155 Cong. Rec. S4310 (daily ed. Apr. 2, 2009). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 796 (Bingaman, D-N.M.) (minerals) would modify the requirements applicable to locatable minerals on public domain land. 155 Cong. Rec. S4310 (daily ed. Apr. 2, 2009). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 799 (Durbin, D-Ill.) (wilderness designation) would designate as wilderness certain federal portions of the red rock canyons of the Colorado Plateau and the Great Basin Deserts in the state of Utah for the benefit of present and future generations of people in the United States. 155 Cong. Rec. S4310 (daily ed. Apr. 2, 2009). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 802 (Johnson, D-S.D.) (renewable energy) would amend the Internal Revenue Code of 1986 to allow Native American tribes to transfer the credit for electricity produced from renewable resources. 155 Cong. Rec. S4310 (daily ed. Apr. 2, 2009). The bill was referred to the Committee on Finance.

  • S. 805 (Nelson, D-Fla.) (water) would provide for a comprehensive study by the National Research Council of the National Academy of Sciences to assess the water management, needs, and conservation of the Apalachicola-Chattahoochee-Flint River System. 155 Cong. Rec. S4310 (daily ed. Apr. 2, 2009). The bill was referred to the Committee on Environment and Public Works.

  • S. 807 (Nelson, D-Neb.) (energy) would seek to reduce fuel prices and improve national energy security by increasing domestic supply, reducing excessive speculation in the markets, and promoting long-term security through alternative energy sources. 155 Cong. Rec. S4310 (daily ed. Apr. 2, 2009). The bill was referred to the Committee on Finance.

  • S. 816 (Crapo, R-Idaho) (national parks) would preserve the rights granted under second amendment to the U.S. Constitution in national parks and national wildlife refuge areas. 155 Cong. Rec. S4311 (daily ed. Apr. 2, 2009). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 817 (Cantwell, D-Wash.) (fisheries) would establish a Salmon Stronghold Partnership program to conserve wild Pacific salmon. 155 Cong. Rec. S4311 (daily ed. Apr. 2, 2009). The bill was referred to the Committee on Commerce, Science, and Transportation.

  • S. 826 (Klobuchar, D-Minn.) (renewable energy) would promote renewable energy. 155 Cong. Rec. S4311 (daily ed. Apr. 2, 2009). The bill was referred to the Committee on Finance.

  • S. 828 (Harkin, D-Iowa) (renewable fuels) would amend the Energy Policy Act of 2005 to provide loan guarantees for projects to construct renewable fuel pipelines. 155 Cong. Rec. S4311 (daily ed. Apr. 2, 2009). The bill was referred to the Committee on Energy and Natural Resources.

  • H.R. 1841 (McHugh, R-N.Y.) (CAA) would amend the CAA to reduce sulfur dioxide, nitrogen oxide, and mercury emissions. 155 Cong. Rec. H4396 (daily ed. Apr. 1, 2009). The bill was referred to the Committees on Energy and Commerce, Natural Resources, Science and Technology, and Agriculture.

  • H.R. 1847 (Capito, R-W.Va.) (fuel) would require the inclusion of coal-derived fuel at certain volumes in aviation fuel, motor vehicle fuel, home heating oil, and boiler fuel. 155 Cong. Rec. H4396 (daily ed. Apr. 1, 2009). The bill was referred to the Committee on Energy and Commerce.

  • H.R. 1853 (Kirkpatrick, D-Ariz.) (jurisdiction) would clarify the jurisdiction of the Secretary of the Interior with respect to the C.C. Cragin Dam and Reservoir. 155 Cong. Rec. H4396 (daily ed. Apr. 1, 2009). The bill was referred to the Committee on Natural Resources.

  • H.R. 1854 (Lewis, R-Cal.) (water) would amend the Water Resources Development Act of 1992 to modify an environmental infrastructure project for Big Bear Lake, California. 155 Cong. Rec. H4396 (daily ed. Apr. 1, 2009). The bill was referred to the Committee on Transportation and Infrastructure.

  • H.R. 1858 (Markey, D-Colo.) (national forest) would provide for a boundary adjustment and land conveyances involving Roosevelt National Forest, Colorado, to correct the effects of an erroneous land survey that resulted in approximately seven acres of the Crystal Lakes Subdivision, Ninth Filing, encroaching on National Forest System land. 155 Cong. Rec. H4396 (daily ed. Apr. 1, 2009). The bill was referred to the Committee on Natural Resources.

  • H.R. 1862 (Van Hollen, D-Md.) (greenhouse gas emissions) would cap the emissions of greenhouse gases through a requirement to purchase carbon permits and to distribute the proceeds of such purchases to eligible individuals. 155 Cong. Rec. H4396 (daily ed. Apr. 1, 2009). The bill was referred to the Committee on Ways and Means and the Committee on Energy and Commerce.

  • H.R. 1876 (Bordallo, D-Guam) (renewable energy) would amend title 10, U.S. Code, to require the incorporation of Leadership in Energy and Environmental Design principles in military construction projects carried out in the United States or overseas, to require a specific goal regarding the use of renewable energy sources on all military installations. 155 Cong. Rec. H4518 (daily ed. Apr. 2, 2009). The bill was referred to the Committee on Armed Services.

  • H.R. 1889 (Bordallo, D-Guam) (water) would amend the Federal Water Pollution Control Act to reserve funding for American Samoa, the Northern Marianas Islands, Guam, and the Virgin Islands. 155 Cong. Rec. H4519 (daily ed. Apr. 2, 2009). The bill was referred to the Committee on Transportation and Infrastructure.

  • H.R. 1890 (Bordallo, D-Guam) (water) would amend the SDWA to increase the percentage of state revolving loan funds reserved for American Samoa, the Commonwealth of the Northern Mariana Islands, Guam, and the Virgin Islands. 155 Cong. Rec. H4519 (daily ed. Apr. 2, 2009). The bill was referred to the Committee on Energy and Commerce.

  • H.R. 1901 (Boyd, D-Fla.) (water) would provide for a comprehensive study by the National Research Council of the National Academy of Sciences to assess the water management, needs, and conservation of the Apalachicola-Chattahoochee-Flint River System. 155 Cong. Rec. H4520 (daily ed. Apr. 2, 2009). The bill was referred to the Committee on Transportation and Infrastructure.

  • H.R. 1905 (Capps, D-Cal.) (coastal management) would amend the CZMA to require the Secretary of Commerce to establish a coastal climate change adaptation planning and response program. 155 Cong. Rec. H4520 (daily ed. Apr. 2, 2009). The bill was referred to the Committee on Natural Resources.

  • H.R. 1906 (Capps, D-Cal.) (offshore energy) would permanently prohibit oil and gas leasing off the coast of the state of California. 155 Cong. Rec. H4520 (daily ed. Apr. 2, 2009). The bill was referred to the Committee on Natural Resources.

  • H.R. 1914 (Deal, R-Ga.) (ESA) would amend the ESA to provide for the suspension of each provision of the Act during periods of drought with respect to federal and state agencies that manage federal river basins that are located in each region affected by the drought. 155 Cong. Rec. H4520 (daily ed. Apr. 2, 2009). The bill was referred to the Committee on Natural Resources.

  • H.R. 1916 (Dingell, D-Mich.) (wildlife) would amend the Migratory Bird Hunting and Conservation Stamp Act to provide for a revised schedule of price increases for the Migratory Bird Hunting and Conservation Stamp, popularly known as the "Duck Stamp." 155 Cong. Rec. H4520 (daily ed. Apr. 2, 2009). The bill was referred to the Committee on Natural Resources.

  • H.R. 1917 (Fattah, D-Pa.) (historic district) would establish the Centennial Historic District in Philadelphia, Pennsylvania. 155 Cong. Rec. H4520 (daily ed. Apr. 2, 2009). The bill was referred to the Committee on Natural Resources.

  • H.R. 1918 (Flake, R-Ariz.) (offshore energy) would permit U.S. companies to participate in the exploration for and the extraction of hydrocarbon resources from any portion of a foreign maritime exclusive economic zone that is contiguous to the exclusive economic zone of the United States. 155 Cong. Rec. H4520 (daily ed. Apr. 2, 2009). The bill was referred to the Committee on Foreign Affairs.

  • H.R. 1921 (Gerlach, R-Pa.) (FERC) would establish an Office of Public Advocate within the DOJ to provide services and guidance to citizens in dealing with concerns involving FERC. 155 Cong. Rec. H4521 (daily ed. Apr. 2, 2009). The bill was referred to the Committee on Energy and Commerce and the Committee on the Judiciary.

  • H.R. 1922 (Gerlach, R-Pa.) (FERC) would require FERC to hold at least one public hearing before issuance of a permit affecting public or private land use in a locality. 155 Cong. Rec. H4521 (daily ed. Apr. 2, 2009). The bill was referred to the Committee on Energy and Commerce.

  • H.R. 1925 (Hinchey, D-N.Y.) (wilderness) would designate as wilderness certain federal portions of the red rock canyons of the Colorado Plateau and the Great Basin Deserts in Utah for the benefit of present and future generations of Americans. 155 Cong. Rec. H4521 (daily ed. Apr. 2, 2009). The bill was referred to the Committee on Natural Resources.

  • H.R. 1926 (Honda, D-Cal.) (climate change) would authorize the National Science Foundation to establish a Global Warming Education Program. 155 Cong. Rec. H4521 (daily ed. Apr. 2, 2009). The bill was referred to the Committee on Science and Technology.

  • H.R. 1945 (Nunes, R-Cal.) (water) would require the Secretary of the Interior to conduct a study on the feasibility and suitability of constructing a storage reservoir, outlet works, and a delivery system for the Tule River Indian Tribe of the Tule River Reservation in the state of California to provide a water supply for domestic, municipal, industrial, and agricultural purposes. 155 Cong. Rec. H4522 (daily ed. Apr. 2, 2009). The bill was referred to the Committee on Natural Resources.

  • H. Con. Res. 95 (Childers, D-Miss.) (Forest Service) would recognize the importance of USDA Forest Service Experimental Forests and Ranges. 155 Cong. Rec. H4522 (daily ed. Apr. 2, 2009). The resolution was referred to the Committee on Agriculture.

  • H. Con. Res. 98 (Lee, D-Cal.) (climate change) would recognize the disparate impact of climate change on women and the efforts of women globally to address climate change. 155 Cong. Rec. H4522 (daily ed. Apr. 2, 2009). The resolution was referred to the Committee on Energy and Commerce.

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:

















Alaska Florida Pennsylvania
California New York Tennessee
Colorado Oregon Utah
Delaware    

ALASKA


Water:



  • The Department of Environmental Conservation adopted amendments to 18 AAC 80.00 through 18 AAC 80.1990, Regulations Dealing with Drinking Water. The changes replace “Class A” with “community” and “non-transient non-community” water systems, replace “Class B” with “transient non-community” water systems, revise the phrasing “owner or operator” of a public water system, increase the distance from a proposed water source within which potential sources of contamination must be indicated on engineering plans, disallow volatile organic chemical monitoring waivers, and repeal the adoption by reference of the Department's Synthetic Organic Chemicals and Other Organic Chemicals Monitoring Waiver Application. See http://notes4.state.ak.us/pn/pubnotic.nsf/cc52605f7c156e7a8925672a0060a91b/d659b9b53785b8cf89257592005abd3f?OpenDocument

CALIFORNIA


Air:



  • The Air Resources Board will hold a public hearing on proposed amendments to review the technical status and implementation of California’s On-Board Diagnostic System Requirements for Passenger Cars, Light-Duty Trucks, and Medium-Duty Vehicles and Engines (OBD II) and Heavy Duty Engines On-Board Diagnostic System Requirements (HD OBD) requirements. The Board will consider amendments to the OBD II and HD OBD regulations to update the diesel monitoring requirements, to make some requirements consistent between the OBD II and HD OBD regulations, and to clarify and improve the regulation where necessary, among other revisions. The Board will also consider adoption of enforcement provisions for heavy duty engines with OBD systems. The hearing will be held May 28, 2009. See http://www.arb.ca.gov/regact/2009/hdobd09/hdobd09.htm

Hazardous & Solid Waste:



  • The Department of Toxic Substances Control will hold a public hearing on proposed amendments to California Code of Regulations, title 22, sections 66260.10 through 66265.147, Financial Assurance Rulemaking. The intent is to ensure that the financial burden of closure and post-closure is borne by the party that caused and benefited from the hazardous waste operation and not by the people or the state. The hearing will be held May 26, 2009. See http://www.oal.ca.gov/pdfs/notice/15z-2009.pdf (pp. 548-552)

COLORADO


Water:



  • The Colorado Public Utilities Commission will hold a public hearing on proposed amendments to 4 CCR 723-5, Rules Regulating Water and Combined Water and Sewer Utilities. The amendment applies to water corporations that provide combined water and sewer service. The bill changed the definition of a public utility to include water service providers that provide a combined water and sewer service and added these combined water and sewer providers to the Commission’s jurisdiction. The hearing will be April 24, 2009. See http://www.dora.state.co.us/puc/DocketsDecisions/decisions/2009/C09-0187_09R-130W.pdf

DELAWARE


Air:



  • The Department of Natural Resources and Environmental Control (DNREC) released the final version of proposed amendments to Delaware Regulation 1141, Limiting Emissions of Volatile Organic Compounds (VOC) From Consumer and Commercial Products. The proposed amendment is based on the recently developed Ozone Transport Commission model rules, which, in turn, were based on similar California rules. The amendment, once promulgated, will reduce VOC emissions in Delaware and will become part of DNREC’s plan to attain the eight-hour ground-level ozone NAAQS by 2010. See http://regulations.delaware.gov/register/april2009/final/12%20DE%20Reg%201333%2004-01-09.htm#P9_220

Toxic Substances:



  • The Department of Natural Resources and Environmental Control will hold a public hearing on proposed amendments to Delaware Regulations Governing Underground Storage Tank (UST) Systems. The changes to the UST regulations would incorporate federal requirements, add clarifying language, and seek to ensure the greatest protection of human health, safety, and the environment in Delaware. The hearing will be held April 21, 2009. See http://regulations.delaware.gov/register/april2009/proposed/12%20DE%20Reg%201267%2004-01-09.htm#P10_277

FLORIDA


Fisheries:



  • The Fish and Wildlife Administration proposed amendments to 68B-21.001 through 68B-21.007, relating to the taking and sale of snook. The primary purpose of the proposed rule amendments is to clarify that the Commission prohibits the sale of snook harvested or taken within or without the state in order to fully protect snook resources from illegal sales or importation. See https://www.flrules.org/Faw/FAWDocuments/FAWVOLUMEFOLDERS2009/3513/3513doc.pdf (p. 1586)

Water:



  • The Southwest Florida Water Management District proposed amendments to 40D-1.659, regulations dealing with water use permits. The revised forms will coordinate with ongoing refinements in the information-gathering capabilities of the District’s Water Management Information System, or WMIS, which is being expanded to allow electronic submittal of a greater range of permit applications. The effect will be to elicit through the permit application forms all of the specific information and supporting documentation normally required to determine that a requested water use meets the conditions for permit issuance. See https://www.flrules.org/Faw/FAWDocuments/FAWVOLUMEFOLDERS2009/3514/3514doc.pdf (pp. 1709-712)

NEW YORK


General:



  • The Department of Environmental Conservation will hold a series of public hearings on proposed amendments to Title 6 NYCRR, Environmental Performance Labels. The amendments would incorporate revisions California has made to its vehicle emission control program to include environmental performance labels. The hearings will be held May 11, 12, and 13, 2009. See http://www.dos.state.ny.us/info/register/2009/apr8/pdfs/rules.pdf (pp. 23-26)

OREGON


Hazardous & Solid Waste:



  • The Department of Environmental Quality will hold a series of public hearings on proposed amendments to OAR Chapter 340, Solid Waste Composting Facilities. The amendments would clarify financial assurance requirements for solid waste disposal facilities and public notice requirements for renewal of several solid waste permits. The hearings will be held April 23 and 28, 2009. See http://www.deq.state.or.us/regulations/proposedrules.htm

PENNSYLVANIA


Water:



  • The Department of Environmental Protection will hold a public meeting of the Marcellus Shale Wastewater Partnership. The Marcellus Shale Wastewater Partnership is a collaborative effort of the Marcellus Shale Committee and the Department to examine wastewater issues facing the natural gas industry and identify technologies and treatment techniques that will ensure adequate protection of our water resources while allowing for the treatment and disposal of wastewater generated during extraction. At the meeting, the Department will present a Permitting Strategy for High Total Dissolved Solids (TDS) Wastewater Discharges (Permitting Strategy). The goal of this permitting strategy is that new sources of High TDS wastewaters will be prohibited from Pennsylvania's waters by January 2011. To achieve this goal, the Department proposes to amend 25 Pa. Code Chapter 95 (relating to wastewater treatment requirements) to establish new effluent standards. In addition, to assure the protection and attainment of all designated stream uses, the Department proposes to develop new numeric water quality criteria for TDS and Chlorides, and amend 25 Pa. Code Chapter 93 (relating to water quality standards) to include these criteria. The hearing will be held April 15, 2009. See http://www.pabulletin.com/secure/data/vol39/39-15/680.html

  • The Department of Environmental Protection seeks public comment on its draft Assessment and Listing Methodology. The methodology is a compilation of the protocols being used to assess waters that will appear in the 2010 Pennsylvania Integrated Water Quality Monitoring and Assessment Report. Comments are due June 11, 2009. See http://www.pabulletin.com/secure/data/vol39/39-15/679.html

TENNESSEE


Air:



  • The Department of Environment and Conservation has proposed amendments to 1200-03-14, Control of Sulfur Dioxide Emissions. The proposed amendment deletes the condition of a 20,000 ton maximum level of measured sulfur dioxide emissions as a mandatory prerequisite for a waiver of the monitoring requirement. See http://www.tn.gov/sos/rules_filings/03-18-09.pdf

Hazardous & Solid Waste:



  • The Department of Environment and Conservation has proposed amendments to 1200-01-14, Commercial Hazardous Waste Management Facilities. The amendments are intended to enable the Commissioner to issue a permit with a variance from the 1,500-feet buffer requirement, but not less than 1,000 feet, to a new commercial hazardous waste management facility without land disposal or thermal treatment units that is sited at a location that was formally permitted as a commercial hazardous waste management facility. The amendments also address approved variances. See http://www.tn.gov/sos/rules_filings/03-11-09.pdf

Water:



  • The Department of Environment and Conservation has proposed amendments to 1200-05-01, Public Water Systems. The amendments were drafted for Rule 1200-05-01-.33, Control of Lead and Copper, based on the new federal rule requirements contained in 40 CFR 141.80 -141 .91, and include changes in Rule 1200-05-01-.14, Laboratory Certification, and 1200-05-01-.35, Consumer Confidence Reports, that were required as a part of amending the Lead and Copper Rule. There is also a change to the requirement for duplicate disinfection under Rule 120005- 01-.17(11), Operation and Maintenance Requirements, to limit the duplicate disinfection requirement pertaining to noncommunity systems and small community systems such that only those that have demonstrated problems with maintaining disinfection must meet the requirement. There is also a change under Rule 1200-05-01-.36(10), Disinfectant Residuals, Disinfection Byproducts, and Disinfection Byproduct Precursors, to require cooperation, evaluation reports, and corrective action for wholesale systems and purchasing systems (consecutive systems) where consecutive systems are not meeting the federal drinking water standards for total trihalomethanes and haloacetic acids (disinfection byproducts). See http://www.tn.gov/sos/rules_filings/03-12-09.pdf

UTAH


Air:



  • The Department of Environmental Quality proposed amendments to R307-101-2, Definitions. These changes update the version of Threshold Limit Values for Chemical Substances and Physical Agents and Biological Exposure Indices referenced in several definitions in Section R307-101-2. All references to Threshold Limit Values for Chemical Substances and Physical Agents and Biological Exposure Indices need to be consistent and up-to-date to ensure that the most recently published Threshold Limit Values constitute the basis of regulatory actions and requirements. See http://www.rules.utah.gov/publicat/bulletin/2009/20090415/32458.htm

Water:



  • The Department of Environmental Quality proposed amendments to R317-101-2, Definitions and Eligibility. The proposed change would bring the Utah Wastewater Project Assistance Program rules into conformance with the additional subsidization funding requirements of the American Recovery and Reinvestment Act of 2009. See http://www.rules.utah.gov/publicat/bulletin/2009/20090415/32480.htm

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


INTERNATIONAL

CARBON DEAL SEEN AS KEY TO AMAZON PRESERVATION


Deforestation in Brazil's huge Amazonas state could fall to zero by 2020 if a global climate summit in Copenhagen in December adopts measures to put an economic value on preserving forests, said Eduardo Braga, the state's governor. Braga's state government has pioneered the preservation of the Amazon by granting financial incentives to forest dwellers, an idea that has gained ground in international climate policy ahead of the summit. The mechanism allows rich countries to offset their carbon emissions by paying to prevent deforestation, which accounts for about 20 percent of global greenhouse gas emissions from human activity. Despite widespread tree-felling, Amazonas, Brazil's biggest state, still has relatively intact forest covering an area six times the size of the United Kingdom. Braga urged negotiators to make funding for forest preservation, either through carbon credits or payments from rich countries, central to a new deal to replace the 1992 Kyoto Treaty. For the full story, see http://www.reuters.com/article/GCA-GreenBusiness/idUSTRE53F68Y20090416

GOVERNMENTS FALL OUT OVER NUCLEAR



Prime Minister Gordon Brown and his ministers have gathered in Glasgow for the cabinet's first meeting in Scotland for almost 90 years. On the issue of energy, Scotland's First Minister Alex Salmond said renewable energy was the way forward. But British Energy Secretary Ed Miliband told BBC Radio Scotland that the Scottish government's opposition to new nuclear power stations in Scotland was wrong: "There's a huge number of jobs--it's 9,000 jobs per nuclear power station with huge benefits for the economy . . . Hunterston B [a nuclear power station in North Ayrshire, Scotland] will be decommissioned in the middle of the next decade [and] the decisions made by the Scottish government mean that site will not be renewed . . . . I think that's a shame for Scotland in industrial terms and I don't think it's the right decision for the United Kingdom in energy terms, but it does remain a decision for Scotland." For the full story, see http://news.bbc.co.uk/2/hi/uk_news/scotland/8001526.stm


EUROPEAN COMMISSION CLOSES TWO NATURE CASES AGAINST POLAND



The European Commission is ending legal proceedings against Poland in two nature cases. The first case is being withdrawn following action to protect one of Europe's most important nature sites--the Rospuda river valley. The second is being closed following the completion of Poland's network of Special Protection Areas (SPAs). Environment Commissioner Stavros Dimas said: "I am pleased with the decision by the Polish government to reroute the Augustow bypass. It not only respects EU environmental law, but most importantly, protects one of the most precious nature sites in Europe. Poland is also to be congratulated on the completion of its SPA network." For the full story, see http://europa.eu/rapid/pressReleasesAction.do?reference=IP/09/566&format=HTML&aged=0&language=EN&guiLanguage=en


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


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