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Weekly Update Volume 39, Issue 12

04/27/2009

LITIGATION

OIL AND GAS LEASING, OUTER CONTINENTAL SHELF LANDS ACT:



The D.C. Circuit granted in part and denied in part a petition for review of a 5-year DOI oil and gas leasing program within the outer continental shelf (OCS) off the coast of Alaska. Petitioners' ESA claim and NEPA-based climate change and baseline data claims are not yet ripe for review. In addition, petitioners' climate change and baseline data claims under the Outer Continental Shelf Lands Act (OCSLA) lack merit. But the court agreed that the program's environmental sensitivity rankings are irrational. In light of DOI's failure to properly consider the relative environmental sensitivity and marine productivity of different areas of the OCS under OCSLA §18(a)(2)(G), and its derivative failure to strike a proper balance incorporating environmental and coastal zone factors under §18(a)(3), the court vacated the leasing program and remanded it to DOI for further reconsideration. Center for Biological Diversity v. United States Department of the Interior, No. 07-1247, 39 ELR 20091 (D.C. Cir. Apr. 17, 2009).


CERCLA, BANKRUPTCY:



The Sixth Circuit affirmed a bankruptcy court decision finding an electronics manufacturer liable under CERCLA for $357,246 of already-incurred costs and $8,735,434 in estimated future costs for the cleanup of groundwater and soil contamination near a now-vacant manufacturing plant in Socorro, New Mexico. The bankruptcy trustee for the manufacturer appealed, arguing that the bankruptcy court erred in concluding that the manufacturer assumed its predecessor's environmental liabilities. But the plain and unambiguous language of a 1998 agreement between the manufacturer and its predecessor supports the bankruptcy court's determination that the manufacturer assumed CERCLA liability that its predecessor incurred as an owner or operator of the site at the time of the disposal of hazardous substances. In addition, no genuine issues of material fact precluded the bankruptcy court from concluding that the manufacturer was responsible for contamination detected at a well located one and a half miles south of the plant. Nor did the bankruptcy court abuse its discretion by excluding evidence at a hearing on estimated future cleanup costs. U.S. Bank National Ass'n v. U.S. Environmental Protection Agency, No. 08-3083, 39 ELR 20088 (6th Cir. Apr. 20, 2009).


NATIONAL FOREST MANAGEMENT ACT, NEPA:



The Ninth Circuit upheld the U.S. Forest Service's approval of nine timber sale and restoration projects in Montana's Kootenai National Forest. The Forest Service complied with the substantive requirements of the National Forest Management Act and the associated forest plan. Conservation groups challenged the Forest Service's determination that maintaining old-growth levels of 10% below 5,500 feet was sufficient to support viable populations of dependent species. But the Service established the 10% standard based on reasoned analysis of the best available science, and the groups failed to indicate any scientific information directly undermining the conclusion that 10% old-growth levels are insufficient. The groups also challenged the Forest Service's designation of tree stands smaller than 50 acres as old-growth habitat. But the 50-acre requirement, which is set forth in an appendix to the forest plan, is not mandatory. In addition, the Service's designations of old growth were proper, it engaged in extremely thorough analysis of habitat impact before approving the projects, and its use of best management practices to protect fisheries was proper. Last, the Forest Service adequately considered and disclosed the cumulative effects for purposes of NEPA. Ecology Center v. Castaneda, No. 07-35054, 39 ELR 20089 (9th Cir. Apr. 17, 2009).


MINING, INJUNCTIONS:



The Ninth Circuit temporarily stayed the expansion of a phosphate mine located near the Idaho-Wyoming border. Environmental groups filed a motion to preliminarily enjoin the project, arguing that the U.S. Forest Service and the BLM inadequately analyzed the project's impact on the environment in violation of NEPA and violated the CWA and the National Forest Management Act. The lower court denied their motion, but in so doing it failed to consider preparatory actions related to the mine's expansion in its irreparable harm analysis. These preliminary activities include the construction of a 100-foot wide reinforced haul road, timber harvest at two sites, and topsoil stockpiling, which entails removing topsoil from the areas to be mined and storing it for later use. Because the lower court did not include these activities in its irreparable harm analysis, the Ninth Circuit vacated the order and remanded the case for the lower court to consider these effects in the first instance. The court also ordered that the preliminary activities be temporarily stayed until the lower court has had an opportunity to consider the remaining issues. Greater Yellowstone Coalition v. Timchak, No. 08-36018, 39 ELR 20094 (9th Cir. Apr. 10, 2009).


NEPA, INJUNCTIONS:



A district court denied environmental groups' motion to enjoin the U.S. Army Corps of Engineers from authorizing and/or commencing any dredge and fill activities related to the construction of a byway project in Sandpoint, Idaho. The groups argued that the Corps improperly failed to consider and select one of four less damaging practicable alternatives to one segment of the project in violation of NEPA. But the Corps did not act arbitrarily or capriciously, abuse its discretion, or otherwise act not in accordance with law. The Corps properly defined the project's purpose and evaluated the practical alternatives and considerations appropriate to render its decision in light of that purpose. It complied with the applicable mitigation guidelines and regulations, considered all practical alternatives before it, and even explored additional alternatives from those considered during the NEPA process. And the issues and alternatives raised by the groups were either considered by the Corps or were impracticable in light of the project's purpose. North Idaho Community Action v. Hoffman, No. 08-181, 39 ELR 20095 (D. Idaho Apr. 21, 2009) (Lodge, J.) (Defense counsel included Craig D. Galli of Holland & Hart LLP in Salt Lake City, Utah).


AIR POLLUTION, SHIPPING ACT:



A district court denied the Federal Maritime Commission's (FMC's) motion to preliminarily enjoin portions of the Port of Los Angeles' and the Port of Long Beach's clean truck programs, which are aimed at reducing the air pollution caused by the trucks used to transport cargo to and from the ports. The FMC argued that an agreement between the ports to discuss and potentially coordinate their clean truck programs violates §6(g) of the Shipping Act of 1984 because it is likely to cause a reduction in competition and, therefore, an increase in transportation costs and a decrease in transportation service. But the FMC failed to show that it is likely to establish the requisite reduction in competition required under §6(g). The FMC has also failed to make a sufficient showing on irreparable harm. And the balance of equities and the public interest weigh in favor of denying the FMC's motion for a preliminary injunction. Federal Maritime Comm'n v. City of Los Angeles, No. 08-1895, 39 ELR 20093 (D.D.C. Apr. 15, 2009) (Leon, J.).


SDWA, "INDIAN COUNTRY":



The Tenth Circuit denied a petition challenging EPA's determination that certain land owned by a mining company is "Indian country," thereby subjecting the company's proposed uranium mine to regulation under the SDWA. The land at issue has been set aside by the federal government for use of the Indians as Indian land, and the federal government is actively involved in superintending the land. In addition, there was an "element of cohesiveness" in the community there. Hydro Resources, Inc. v. United States Environmental Protection Agency, No. 07-9506, 39 ELR 20090 (10th Cir. Apr. 17, 2009).


CONSTITUTIONAL LAW, COMMERCE CLAUSE:



The Virginia Supreme Court upheld the constitutionality of Virginia Code §56-585.1(A)(6), a provision of the state's utility law that requires coal-fired power plants to use Virginia coal. Environmental groups, challenging the state's approval of the construction of a coal-fired power plant, argued that the law violates the U.S. Commerce Clause because of the Virginia coal requirement. But §56-585.1(A)(6) does not require that coal plants use Virginia coal exclusively. In fact, there is a statutory disincentive to use Virginia coal if use of out-of-state coal is more economical. Appalachian Voices v. State Corp. Comm'n, No. 08-1433, 30 ELR 20092 (Va. Apr. 17, 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 proposed to find under CAA §202(a) that greenhouse gases, specifically carbon dioxide, methane, nitrogen oxide, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride, are endangering the public health and welfare of current and future generations. 74 FR 18886 (4/24/09).

  • EPA seeks comment by December 1, 2009, on an application for a waiver to increase the allowable ethanol content of gasoline to 15%. 74 FR 18228 (4/21/09).

  • EPA proposed to update a portion of the outer continental shelf air regulations for the Santa Barbara County, California, air pollution control district. 74 FR 17934 (4/20/09).

  • SIP Approvals: California (reasonably available control technology under the eight-hour ozone NAAQS for the Ventura County air pollution control district) 74 FR 18148 (4/21/09). South Carolina (nitrogen oxide (NOx) SIP call Phase II) 74 FR 18471 (4/23/09). Texas (reasonable further progress (RFP) plan, 2002 base-year emissions inventory requirements, and motor vehicle emissions budgets (MVEBs) for the Houston-Galveston-Brazoria moderate 1997 eight-hour ozone nonattainment area) 74 FR 18298 (4/22/09). Wisconsin (attainment of the one-hour ozone NAAQS for the Milwaukee-Racine nonattainment area) 74 FR 18641 (4/24/09).

  • SIP Proposals: Michigan (attainment of the eight-hour ozone NAAQS for the Detroit-Ann Arbor nonattainment area) 74 FR 18479 (4/23/09). South Carolina (NOx SIP call Phase II; see above for direct final rule) 74 FR 18479 (4/23/09). Texas (RFP plan, 2002 base-year emissions inventory requirements, and MVEBs for the Houston-Galveston-Brazoria moderate 1997 eight-hour ozone nonattainment area; see above for direct final rule) 74 FR 18330 (4/22/09). Wisconsin (attainment of the one-hour ozone NAAQS for the Milwaukee-Racine nonattainment area; see above for direct final rule) 74 FR 18668 (4/24/09).

DRINKING WATER:



  • EPA approved North Dakota's request to revise its EPA-authorized national primary drinking water regulations implementation program to allow electronic reporting of specific reports. 74 FR 17958 (4/20/09).

HAZARDOUS & SOLID WASTE:



  • EPA entered into a proposed administrative settlement under CERCLA that requires 61 settling parties to pay a total of $950,000 to a special account and 50% of the net environmental insurance proceeds recovered toward an estimated $1.7 million in U.S. response costs at the Hassan Barrel Superfund site in Fort Wayne, Indiana. 74 FR 18373 (4/22/09).

  • EPA entered into a proposed administrative settlement for past U.S. response costs incurred at the Helmet Products Fire Superfund site in Griffin, Georgia. 74 FR 18379 (4/22/09).

OFFICE OF THE PRESIDENT:



  • The President proclaimed April 18 through April 26, 2009, as National Park Week. 74 FR 18445 (4/22/09).

TOXIC SUBSTANCES:



  • EPA proposed revisions to the final lead renovation, repair, and painting program rule of April 22, 2008, regarding worker training requirements. 74 FR 18330 (4/22/09).

WATER:



  • EPA finalized the designation of an ocean-dredged material disposal site offshore of the Umpqua River, Oregon. 74 FR 18648 (4/24/09).

WILDLIFE:



  • NOAA-Fisheries announced their findings on a petition to list five species of rockfish in Puget Sound, Washington, as threatened or endangered under the ESA: bocaccio rockfish will be listed as endangered throughout their range; yelloweye and canary rockfish will be listed as threatened throughout their range. Listing of the greenstriped and the redstripe rockfish is not warranted at this time. 74 FR 18516 (4/23/09).

  • NOAA announced availability of the nominations accepted for the list of national system marine protected areas. 74 FR 18551 (4/23/09).

  • FWS announced a 90-day finding on a petition to list the Tehachapi slender salamander as threatened or endangered under the ESA; the agency found that listing may be warranted and initiated a 12-month status review. 74 FR 18336 (4/22/09).

DOJ NOTICE OF SETTLEMENT:



  • United States v. E.I. du Pont de Nemours & Co., No. 2:09-0385 (S.D. W. Va. Apr. 20, 2009). Settling CAA defendants must pay a $2 million civil penalty, must cease operations by April 1, 2010, and must surrender all air permits for violations at a sulfuric acid regeneration plant in Belle, West Virginia. 74 FR 18746 (4/24/09).

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. 388 (Crane Conservation Act of 2009), which would assist in the conservation of cranes by supporting and providing financial resources for the conservation programs of countries that directly or indirectly affect cranes and the ecosystems of cranes, was passed by the House. 155 Cong. Rec. H4530 (daily ed. Apr. 21, 2009).

  • H.R. 411 (Great Cats and Rare Canids Act of 2009), which would assist in the conservation of rare felids and rare canids by supporting and providing financial resources for the conservation programs of nations within the range of rare felid and rare canid populations and projects of persons with demonstrated expertise in the conservation of rare felid and rare canid populations, was passed by the House. 155 Cong. Rec. H4533 (daily ed. Apr. 21, 2009).

  • H.R. 1219 (Lake Hodges Surface Water Improvement and Reclamation Act of 2009), which would make amendments to the Reclamation Projects Authorization and Adjustment Act of 1992, was passed by the House. 155 Cong. Rec. H4537 (daily ed. Apr. 21, 2009).

  • H.R. 1580 (Electronic Waste Research and Development Act), which would authorize the Administrator of EPA to award grants for electronic waste reduction research, development, and demonstration projects, was passed by the House. 155 Cong. Rec. H4606 (daily ed. Apr. 22, 2009).

  • H.R. 957 (Green Energy Education Act of 2009), which would authorize higher education curriculum development and graduate training in advanced energy and green building technologies, was passed by the House. 155 Cong. Rec. H4610 (daily ed. Apr. 22, 2009).

  • H.R. 1145 (National Water Research and Development Initiative Act of 2009), which would implement a National Water Research and Development Initiative, was passed by the House. 155 Cong. Rec. H4693 (daily ed. Apr. 23, 2009).

Committee Action



  • H.R. 1145 (National Water Research and Development Initiative) was reported by the Committee on Science and Technology. H. Rep. No. 111-76, 155 Cong. Rec. H4579 (daily ed. Apr. 21, 2009). The bill would implement a National Water Research and Development Initiative.

  • H.R. 1580 (electronic waste) was reported by the Committee on Science and Technology. H. Rep. No. 111-75, 155 Cong. Rec. H4579 (daily ed. Apr. 21, 2009). The bill would authorize the Administrator of EPA to award grants for electronic waste reduction research, development, and demonstration projects.

Bills Introduced



  • S. 835 (Brownback, R-Kan.) (alternative fuels) would require automobile manufacturers to ensure that not less than 80% of the automobiles manufactured or sold in the United States operate on fuel mixtures containing 85% ethanol, 85% methanol, or biodiesel. 155 Cong. Rec. S4445 (daily ed. Apr. 20, 2009). The bill was referred to the Committee on Commerce, Science, and Transportation.

  • S. 840 (Voinovich, R-Ohio) (energy) would establish a Development and Commercialization Committee on Clean and Efficient Energy Technologies within the Asia-Pacific Partnership on Clean Development and Climate Program Office. 155 Cong. Rec. S4513 (daily ed. Apr. 21, 2009). The bill was referred to the Committee on Foreign Relations.

  • S. 849 (Carper, D-Del.) (emissions) would require the Administrator of EPA to conduct a study on black carbon emissions. 155 Cong. Rec. S4573 (daily ed. Apr. 22, 2009). The bill was referred to the Committee on Environment and Public Works.

  • S. 850 (Kerry, D-Mass.) (fisheries) would amend the High Seas Driftnet Fishing Moratorium Protection Act and the Magnuson-Stevens Fishery Conservation and Management Act to improve the conservation of sharks. 155 Cong. Rec. S4573 (daily ed. Apr. 22, 2009). The bill was referred to the Committee on Commerce, Science, and Transportation.

  • S. 851 (Kerry, D-Mass.) (offshore oil and gas) would prohibit the issuance of any lease or other authorization by the federal government that allows exploration, development, or production of oil or natural gas in any marine national monument or national marine sanctuary, or in the fishing grounds known as Georges Bank, in the waters of the United States. 155 Cong. Rec. S4573 (daily ed. Apr. 22, 2009). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 853 (Kaufman, D-Del.) (Wild and Scenic Rivers) would designate additional segments and tributaries of White Clay Creek in Delaware and Pennsylvania as a component of the National Wild and Scenic Rivers System. 155 Cong. Rec. S4573 (daily ed. Apr. 22, 2009). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 854 (Voinovich, R-Ohio) (water pollution) would amend the Federal Water Pollution Control Act to update a program to provide assistance for the planning, design, and construction of treatment works to intercept, transport, control, or treat municipal combined sewer overflows and sanitary sewer overflows, and require the Administrator of EPA to update certain guidance used to develop and determine the financial capability of communities to implement clean water infrastructure programs. 155 Cong. Rec. S4573 (daily ed. Apr. 22, 2009). The bill was referred to the Committee on Environment and Public Works.

  • S. 855 (Collins, R-Me.) (energy efficiency) would establish an Energy Assistance Fund to guarantee low-interest loans for the purchase and installation of qualifying energy efficient property, idling reduction and advanced insulation for heavy trucks, and alternative refueling stations. 155 Cong. Rec. S4573 (daily ed. Apr. 22, 2009). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 858 (Boxer, D-Cal.) (water) would protect the oceans and Great Lakes. 155 Cong. Rec. S4573 (daily ed. Apr. 22, 2009). The bill was referred to the Committee on Commerce, Science, and Transportation.

  • S. 859 (Cantwell, D-Wash.) (marine mammals) would amend the provisions of law relating to the John H. Prescott Marine Mammal Rescue Assistance Grant Program. 155 Cong. Rec. S4573 (daily ed. Apr. 22, 2009). The bill was referred to the Committee on Commerce, Science, and Transportation.

  • S. 861 (Graham, R-S.C.) (nuclear waste) would amend the Nuclear Waste Policy Act of 1982 to require the President to certify that the Yucca Mountain site remains the designated site for the development of a repository for the disposal of high-level radioactive waste. 155 Cong. Rec. S4573 (daily ed. Apr. 22, 2009). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 865 (Bennett, R-Utah) (land) would provide for the sale of the federal government's reversionary interest in approximately 60 acres of land in Salt Lake City, Utah, originally conveyed to the Mount Olivet Cemetery Association under the Act of January 23, 1909. 155 Cong. Rec. S4573 (daily ed. Apr. 22, 2009). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 866 (Reed, D-R.I.) (environmental education) would amend the Elementary and Secondary Education Act of 1965 regarding environmental education. 155 Cong. Rec. S4573 (daily ed. Apr. 22, 2009). The bill was referred to the Committee on Health, Education, Labor, and Pensions.

  • S. 868 (Baucus, D-Mont.) (land) would repeal certain provisions of the Federal Lands Recreation Enhancement Act. 155 Cong. Rec. S4574 (daily ed. Apr. 22, 2009). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 870 (Lincoln, D-Ark.) (renewable energy) would amend the Internal Revenue Code of 1986 to expand the credit for renewable electricity production to include electricity produced from biomass for on-site use and to modify the credit period for certain facilities producing electricity from open-loop biomass. 155 Cong. Rec. S4574 (daily ed. Apr. 22, 2009). The bill was referred to the Committee on Finance.

  • S. 871 (Inouye, D-Haw.) (National Parks) would authorize the Secretary of the Interior to conduct a special resources study of the Honouliuli Internment Camp site in the state of Hawaii to determine the suitability and feasibility of establishing it as a unit of the National Park System. 155 Cong. Rec. S4669 (daily ed. Apr. 23, 2009). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 878 (Lautenberg, D-N.J.) (water pollution) would amend the Federal Water Pollution Control Act to modify provisions relating to beach monitoring. 155 Cong. Rec. S4669 (daily ed. Apr. 23, 2009). The bill was referred to the Committee on Environment and Public Works.

  • S. 874 (Bingaman, D-N.M) (conservation area) would establish El Rio Grande Del Norte National Conservation Area in the state of New Mexico. 155 Cong. Rec. S4669 (daily ed. Apr. 23, 2009). The bill was referred to the Committee on Energy and Natural Resources.

  • H.R. 2008 (Matheson, D-Utah) (energy) would authorize the Secretary of the Interior to facilitate the development of hydroelectric power on the Diamond Fork System of the Central Utah Project. 155 Cong. Rec. H4580 (daily ed. Apr. 21, 2009). The bill was referred to the Committee on Natural Resources.

  • H.R. 2015 (Sestak, D-Pa.) (energy) would instruct the Secretary of Energy to carry out a study on the use of thorium-fueled nuclear reactors. 155 Cong. Rec. H4581 (daily ed. Apr. 21, 2009). The bill was referred to the Committee on Energy and Commerce.

  • H.R. 2016 (Sires, D-N.J) (energy) would amend the Internal Revenue Code of 1986 to provide that qualified energy efficiency property is eligible for the energy credit. 155 Cong. Rec. H4581 (daily ed. Apr. 21, 2009). The bill was referred to the Committee on Ways and Means.

  • H.R. 2025 (Minnick, D-Idaho) (land) would ensure public access to federal land and to the airspace over federal land. 155 Cong. Rec. H4685 (daily ed. Apr. 22, 2009). The bill was referred to the Committees on Natural Resources, Agriculture, and Transportation and Infrastructure.

  • H.R. 2026 (Kline, R-Minn.) (green jobs) would amend the Workforce Investment Act of 1998 to make non-union training programs eligible for federal funding under the "Green Jobs" program. 155 Cong. Rec. H4685 (daily ed. Apr. 22, 2009). The bill was referred to the Committee on Education and Labor.

  • H.R. 2029 (Abercrombie, D-Haw.) (marine mammals) would authorize the Marine Mammal Commission to establish a national research program to fund basic and applied research on marine mammals. 155 Cong. Rec. H4686 (daily ed. Apr. 22, 2009). The bill was referred to the Committee on Natural Resources.

  • H.R. 2030 (Blumenauer, D-Or.) (water) would aim to provide 100,000,000 people with first-time access to safe drinking water and sanitation on a sustainable basis by 2015 by improving the capacity of the U.S. government to fully implement the Senator Paul Simon Water for the Poor Act of 2005. 155 Cong. Rec. H4686 (daily ed. Apr. 22, 2009). The bill was referred to the Committee on Foreign Affairs.

  • H.R. 2037 (Herseth Sandlin, D-S.D.) (energy) would amend the Internal Revenue Code of 1986 to provide an exception to the reduction of renewable energy credit for certain authority under the Farm Security and Rural Investment Act of 2002. 155 Cong. Rec. H4686 (daily ed. Apr. 22, 2009). The bill was referred to the Committee on Ways and Means.

  • H.R. 2046 (Markey, D-Mass.) (solid waste) would amend the Solid Waste Disposal Act to require a refund value for certain beverage containers and provide resources for state pollution prevention and recycling programs. 155 Cong. Rec. H4686 (daily ed. Apr. 22, 2009). The bill was referred to the Committee on Energy and Commerce.

  • H.R. 2054 (Hastings, D-Fla.) (environmental education) would amend the Elementary and Secondary Education Act of 1965 regarding environmental education. 155 Cong. Rec. H4687 (daily ed. Apr. 22, 2009). The bill was referred to the Committee on Education and Labor.

  • H.R. 2055 (Thompson, D-Cal.) (fisheries) would establish a Salmon Stronghold Partnership program to protect wild Pacific salmon. 155 Cong. Rec. H4687 (daily ed. Apr. 22, 2009). The bill was referred to the Committee on Natural Resources.

  • H.R. 2062 (Defazio, D-Or.) (wildlife) would amend the Migratory Bird Treaty Act to provide for penalties and enforcement for intentionally taking protected avian species. 155 Cong. Rec. H4731 (daily ed. Apr. 23, 2009). The bill was referred to the Committee on Natural Resources.

  • H.R. 2065 (Schakowsky, D-Ill.) (toxic substances) would amend TSCA to phase out the use of mercury in the manufacture of chlorine and caustic soda. 155 Cong. Rec. H4731 (daily ed. Apr. 23, 2009). The bill was referred to the Committee on Energy and Commerce.

  • H.R. 2079 (Hirono, D-Haw.) (national park) would authorize the Secretary of the Interior to conduct a special resources study of the Honouliuli Internment Camp site in the state of Hawaii to determine the suitability and feasibility of establishing it as a unit of the National Park System. 155 Cong. Rec. H4732 (daily ed. Apr. 23, 2009). The bill was referred to the Committee on Natural Resources.

  • H.R. 2080 (Hodes, D-N.H.) (energy) would amend the Internal Revenue Code of 1986 to extend the credit for nonbusiness energy property and include biomass heating appliances in energy-efficient building property. 155 Cong. Rec. H4732 (daily ed. Apr. 23, 2009). The bill was referred to the Committee on Ways and Means.

  • H.R. 2091 (Moran, D-Va.) (solid waste) would amend the Internal Revenue Code of 1986 to impose a retail tax on single-use carryout bags. 155 Cong. Rec. H4732 (daily ed. Apr. 23, 2009). The bill was referred to the Committee on Ways and Means and the Committee on Natural Resources.

  • H.R. 2092 (Norton, D-D.C.) (land use) would amend the National Children's Island Act of 1995 to expand allowable uses for Kingman and Heritage Islands by the District of Columbia. 155 Cong. Rec. H4732 (daily ed. Apr. 23, 2009). The bill was referred to the Committee on Oversight and Government Reform.

  • H.R. 2093 (Pallone, D-N.J.) (water pollution) would amend the Federal Water Pollution Control Act relating to beach monitoring. 155 Cong. Rec. H4732 (daily ed. Apr. 23, 2009). The bill was referred to the Committee on Transportation and Infrastructure.

  • H. Con. Res. 106 (Bright, D-Al.) (energy) would express the sense of Congress in support of a single national fuel economy standard. 155 Cong. Rec. H4687 (daily ed. Apr. 22, 2009). The resolution was referred to the Committee on Energy and Commerce.

  • H. Res. 354 (Lowey, D-N.Y.) (climate change) would recognize that the climate system of the Earth is warming and that most of the increase in global average temperatures is very likely due to the observed increase in human greenhouse gas emissions. 155 Cong. Rec. H4687 (daily ed. Apr. 22, 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:

















Illinois Minnesota New York
Indiana Missouri Utah
Iowa Montana Virginia
Louisiana    

ILLINOIS


Air:



  • The Illinois Environmental Protection Agency adopted amendments to 35 Ill. Adm. Code 274, Clean Air Set-Aside. This rulemaking addresses procedural rules for implementing the nitrogen oxide (NOx) allowance portion of the Clean Air Interstate Rule (CAIR) clean air set-asides. The rulemaking sets forth procedures for eligible sources and entities to apply for CASA NOx allowances, for the Illinois EPA to distribute such allowances, and for maintaining a website that lists the allowances available, application deadlines, and other relevant information. The changes became effective April 6, 2009. See http://www.cyberdriveillinois.com/departments/index/register/register_volume33_issue16.pdf (pp. 5755-64)

INDIANA


Water:



  • The Water Pollution Control Board seeks public comment on  proposed amendments to 327 IAC 5-4-3, concerning concentrated animal feeding operations (CAFOs), and 327 IAC 15-15-1, 327 IAC 15-15-2, 327 IAC 15-15-9, 327 IAC 15-15-11, and 327 IAC 15-15-12, concerning the NPDES general permit rule program. The proposed amendments address changes to U.S. EPA's regulations concerning the discharge of wastewater and manure from CAFOs. Comments are due May 8, 2009. See http://www.in.gov/legislative/iac/20090408-IR-327090213FNA.xml.html 

IOWA


Air:



  • The Environmental Protection Commission will hold a public hearing on proposed adoption of IAC Chapter 35, Air Emissions Reduction Assistance Program. The chapter would establish a financial assistance program to distribute funds appropriated to Iowa through the federal American Recovery and Reinvestment Act of 2009. The funds will be distributed to eligible applicants through grants or a combination of grants and loans. The program addresses emissions from diesel vehicles and equipment currently used for on-road applications, such as buses and heavy-duty diesel trucks, and non-road applications, such as construction, agriculture, or mining. Eligible projects include engine idling reduction and retrofit technologies, engine replacement, vehicle replacement, and use of clean diesel emerging technologies. The hearing will be held May 11, 2009. See http://www.legis.state.ia.us/aspx/ACODOCS/DOCS/04-08-2009.Bulletin.pdf (p. 2173)

LOUISIANA


Toxic Substances:



  • The Department of Agriculture and Forestry adopted emergency amendments to LAC 7:XXIII.143, Use of Pesticide 2, 4-D. Restrictions on the application of 2, 4-D are necessary to prevent drift onto non-target areas and harm to other crops and vegetation. See http://www.doa.la.gov/osr/reg/0904/0904.pdf (pp. 615-16)

  • The Department of Agriculture and Forestry adopted amendments to LAC 7.XXIII.103, 121, 125, 129, 143, 173, 181, and 205, Pesticides: Examinations, Restriction, Water, and Fish Tissue Sampling. The changes make various amendments to the regulations. See http://www.doa.la.gov/osr/reg/0904/0904.pdf (pp. 626-28)

MINNESOTA


Water:



  • The Minnesota Pollution Control Agency seeks public comment on revisions to the draft report for the Lower Wild Rice River Turbidity TMDL. The draft TMDL report now includes a new wasteload allocation for stormwater discharges. Comments are due May 20, 2009. See http://www.comm.media.state.mn.us/bookstore/stateregister/33_42.pdf (pp. 1776-78)

MISSOURI


Air:



  • The Department of Natural Resources rescinded 10 CSR 10-5.290, More Restrictive Emission Limitations for Particulate Matter in the South St. Louis Area; and amended 10 CSR 10-5.381, On-Board Diagnostics Motor Vehicle Emissions Inspection; 10 CSR 10-6.061, Construction Permit Exemptions; and 10 CSR 10-6.400, Restriction of Emission of Particulate Matter From Industrial Processes. See http://www.sos.mo.gov/adrules/moreg/current/2009/v34n8/v34n8.pdf  (pp. 774-781)

Water:



  • The Department of Natural Resources will hold a public hearing on proposed amendments to 10 CSR 20-4.061, Storm Water Grant and Loan Program. The amendments would modify the fund allocation procedures for stormwater loans and grants. The department is amending certain parts of the regulation including the definitions, project selection procedures, and allocation of funds provisions. To ensure that the stormwater bond proceeds are used for their intended purpose, the department proposed to clarify the eligible costs and engineering requirements. The proposal would also add requirements for accessing funds from the state stormwater control bond repayment fund. The hearing will be July 1, 2009. See http://www.sos.mo.gov/adrules/moreg/current/2009/v34n8/v34n8.pdf (pp. 767-772)

  • The Department of Natural Resources will hold a public hearing on proposed amendments to 10 CSR 20-6.010, Construction and Operating Permits. The purpose of this rulemaking is to provide a mechanism to transfer a construction permit from one owner or continuing authority to another. The hearing will be July 1, 2009. See http://www.sos.mo.gov/adrules/moreg/current/2009/v34n8/v34n8.pdf (pp. 772-73)

MONTANA


Air:



  • The Board of Environmental Review adopted amendments to ARM 17.8.102, Incorporation by Reference. The amendment would specifically exempt from the incorporation by reference 40 CFR Part 60, subpart HHHH, which establishes a scheme for regulating emissions of mercury under an emission credit trading program. See http://sos.mt.gov/arm/Register/archives/MAR2009/MAR09-07.pdf (p. 411)

Water:



  • The Department of Environmental Quality amended ARM 17.40.318 and adopted new rule ARM 17.38.103, pertaining to state revolving fund and public water and sewer projects eligible for categorical exclusion from review. The amendments restrict the current exclusion to minor ancillary facilities and expand the current exclusion to include rehabilitation projects that are not minor. The new provision prohibits use of the exclusion for upgrades or extensions that are primarily for the purposes of future development. The amendments also no longer limit the exclusion to communities of less than 10,000 persons. See http://sos.mt.gov/arm/Register/archives/MAR2009/MAR09-07.pdf (p.412)

NEW YORK


Air:



  • The Department of Environmental Conservation proposed amendments to Part 252, Environmental Performance Labels. These regulations would require environmental performance labels be affixed to new vehicles delivered for sale in New York. The label would contain quantitative information of the criteria pollutant and greenhouse gas emissions for new vehicles relative to the average new vehicle for the same model year. The regulation would take effect for 2010 and subsequent model year passenger vehicles and light-duty trucks weighing up to 8,500 pounds. See http://www.dec.ny.gov/regulations/52943.html 

UTAH


Air:



  • The Department of Environmental Quality proposed amendments to R307-101-2,  Definitions. This rule change updates 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 to the most recent version. 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 is being made to 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 

VIRGINIA


Fisheries:



Water:



  • The Virginia Soil and Water Conservation Commission adopted amendments to 4 VAC 50-60, Virginia Stormwater Management Program Permit Regulations. The amendments develop a new general permit for stormwater discharges from construction activities and revise associated definitions contained in Part I of the regulations and incorporated forms. See http://legis.state.va.us/codecomm/register/vol25/iss16/f4v5060.html 

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


INTERNATIONAL

BUDGET PUTS UK ON COURSE TO HIT GREEEN ENERGY GOALS


The United Kingdom's budget for 2009, announced last week, has revived hopes wind energy could become sufficiently cost effective to generate about a fifth of Britain's power, putting the nation on course to meet its carbon reduction targets. While the government is relying almost entirely on the growth of offshore wind farms to reduce emissions in the near term, the combination of tight credit, a weaker pound, and lower oil prices had jeopardized the first major projects. Offshore wind projects are also seen key if Britain is to avert a looming power supply crunch, which could occur around 2015, as it will lose about a quarter of its 75 gigawatt generation capacity because of closures of aging nuclear, coal, and gas plants. For the full story, see http://www.reuters.com/article/GCA-GreenBusiness/idUSTRE53N3LX20090424

EU TARGETS WINDOWS AND TAPS WITH ECO-DESIGN RULES


Showers, taps, windows, and home insulation will have to conform to environmental standards in the European Union (EU), after lawmakers voted to widen the scope of existing "eco-design" regulations last Friday. The move is aimed at weaning the 27-nation bloc off its heavy dependence on Russian gas and at cutting greenhouse gas emissions in the battle against climate change. Current standards are restricted to energy-using products such as boilers, computers, and televisions, but the European Parliament voted in favor of widening the measures to all products that can save energy. The EU has pledged to cut carbon dioxide emissions to a fifth below 1990 levels by 2020 and is hoping fresh impetus from the United States will open the way to a global deal on fighting climate change at talks in Copenhagen later this year. For the full story, see http://www.reuters.com/article/GCA-GreenBusiness/idUSTRE53N3RW20090424

EU COMMISSION URGES FISHING CUTS


The EU has far too many fishing boats, and major cuts are needed to make fishing sustainable, according to the European Commission. The commission also says fishermen should be given more responsibility for managing stocks. The commission's green paper on Common Fisheries Policy reform says 30% of EU fish stocks are beyond safe limits and that member states "micro-manage" decisions for political reasons. Despite major reforms in 2002, it concludes, the reality for EU fish and fishermen consists of "overfishing, fleet overcapacity, heavy subsidies, low economic resilience and decline in the volume of fish caught." Eighty-eight percent of EU stocks are fished beyond their maximum sustainable yield--the highest catch that can be maintained over an indefinite period--and for some, such as North Sea cod, the vast majority of fish are caught before they have reproduced. Fishermen would end up richer, the commission concludes, by reducing catches until depleted stocked recover, but the system is set up to ensure short-term profits are the driving factor. For the full story, see http://news.bbc.co.uk/2/hi/science/nature/8008939.stm

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


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