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Weekly Update Volume 39, Issue 13

05/11/2009

LITIGATION

CERCLA, ARRANGER LIABILITY:



The U.S. Supreme Court held that mere knowledge of continuing spills and leaks is insufficient grounds for holding a company liable as an arranger under CERCLA. Under the plain language of CERCLA §107(a)(3), an entity may qualify as an arranger when it takes intentional steps to dispose of a hazardous substance. Here, the company sold pesticides to an agricultural chemical facility in Arvin, California. To qualify as an arranger, therefore, the company must have entered into the pesticide sales with the intent that at least a portion of the product be disposed of during the transfer process. But the facts found by the lower court do not support such a conclusion. The evidence shows that the company was aware that minor, accidental spills occurred during the pesticide's transfer from the common carrier to the chemical facility's storage tanks after the product had come under the chemical facility's stewardship; however, it also reveals that the company took numerous steps to encourage its distributors to reduce the likelihood of spills. Thus, the company's mere knowledge of continuing spills and leaks is insufficient grounds for concluding that it "arranged for" the pesticide's disposal. As for railroad companies who owned property adjacent to the site, however, the lower court reasonably apportioned their share of remediation costs at 9%. The lower court's detailed findings show that the primary pollution at the site was on the portion of the facility most distant from the railroad parcel. In addition, the hazardous-chemical spills on the railroad parcel contributed to no more than 10% of the total site contamination, some of which did not require remediation. Stevens, J. delivered the opinion of the Court, in which Roberts, C.J., and Scalia, Kennedy, Souter, Thomas, Breyer, and Alito, JJ., joined. Ginsburg, J., filed a dissenting opinion. Burlington Northern & Santa Fe Railway Co. v. United States, No. 07-1601, 39 ELR 20098 (U.S. May 4, 2009).


CWA, NEPA:



The Ninth Circuit held that the U.S. Army Corps of Engineers violated NEPA in granting developers a CWA §404 permit to fill certain ephemeral washes as part of a large-scale development project in Arizona. Both EPA and FWS urged the Corps to conduct a full-scale environmental analysis, including an EIS addressing the large-scale direct, secondary, and cumulative impacts of the project. Instead, the Corps issued a FONSI after concluding that the issuance of the dredge and fill permit would not cause significant environmental impacts with respect to the areas it considered--787 acres of washes and 83.6 acres of uplands immediately adjacent to the washes. The court rejected the Corps' argument that most of the site could be developed without filling in the ephemeral washes. Because the pattern of washes in the area makes any large-scale development avoiding the washes impossible, the Corps should have considered the entire scope of the development rather than restrict its environmental review to the washes and certain directly affected upland areas. The court therefore ordered that the Corps' issuance of the §404 permit be enjoined until it performs the requisite environmental analysis. White Tanks Concerned Citizens, Inc. v. Strock, No. 07-15659, 39 ELR 20096 (9th Cir. Apr. 29, 2009).


NATIONAL FORESTS, MINING:



The Ninth Circuit upheld the U.S. Forest Service's interpretation of a mining-related directive contained in its Northwest Forest Plan as it pertains to small mining operations in riparian reserves. A regulation at 36 C.F.R. §228.4(a) confers discretionary authority on district rangers to determine whether mining activity will result in significant disturbance to surface resources and therefore require a plan of operations. The directive, meanwhile, directs the district ranger to require a plan of operations for all mining activity within riparian reserves. Unlike §228.4(a), which draws a distinction between mining operations that require only a notice of intent and those that require a more comprehensive plan of operations, the directive draws no such distinction for operations within riparian reserves. To resolve this conflict, the Forest Service interpreted the directive to impose the same threshold standard for a plan of operations as §228.4(a). The Forest Service then began to allow miners to undertake suction-dredge mining operations in riparian reserves within the Siskiyou National Forest upon the filing of a notice of intent, without requiring the submission or approval of a plan of operations. Environmental groups and others filed suit shortly thereafter. The court, however, deferred to the Forest Service's interpretation. The directive is susceptible to several reasonable interpretations, and the Forest Service's narrow interpretation of the directive is reasonable and consistent with Congress' long-recognized interest in the development of mineral resources. Siskyou Regional Education Project v. United States Forest Service, Nos. 06-35332 et al., 39 ELR 20102 (9th Cir. May 7, 2009).


ESA, BIOLOGICAL OPINION, INCIDENTAL TAKE STATEMENT:



The Eleventh Circuit affirmed in part and reversed in part a lower court decision upholding FWS' approval of a protection plan for the Cape Sable Seaside Sparrow in the Everglades. The protection plan concerned the impact of certain gates within the Everglades on the sparrow. The sparrow prefers low water below the gates. However, another bird, the Everglade Snail Kite, prefers steady and moderate-to-low water levels above the gates at issue. Both birds are protected by the ESA. A Native American tribe argued that the FWS' biological opinion failed to follow proper procedures and arrived at conclusions that are counter to the scientific data in the record. But the biological opinion considered all material facts. The court also rejected the tribe's argument that the FWS' incidental take statement improperly quantified incidental take in terms of habitat markers. However, the ESA does require that the incidental take statement contain an adequate trigger for reconsultation, and that a trigger must be expressed in population terms unless it is impractical to do so. The FWS failed to meet these requirements. So while the court upheld FWS' conclusion that the kite will not be jeopardized by its sparrow-saving plan, it found that the incidental take statement must be modified or replaced to comply with the ESA. Miccosukee Tribe of Indians of Florida v. United States, No. 08-10799, 39 ELR 20097 (11th Cir. May 5, 2009).


NEPA, ESA:



The Tenth Circuit held that BLM violated NEPA when it opened New Mexico's Otero Mesa, the largest publicly owned expanse of undisturbed Chihuahuan Desert grassland in the United States, to mining. BLM opened the majority of the Mesa to development, subject to a stipulation that only 5% of the surface of the Mesa could be in use at any one time. BLM disregarded NEPA when it failed to supplement its EA after modifying an alternative, failed to consider the reasonable alternative of closing the entire Otero Mesa to fluid mineral development, and failed to demonstrate that it examined the relevant data regarding the likely impact of development on an aquifer. In addition, BLM erred in beginning the leasing process on the Mesa before conducting additional analysis of site-specific environmental impacts flowing from the issuance of development leases. However, BLM complied with public comment provisions in FLPMA. In addition, ESA challenges to the consultation process between BLM and FWS regarding the Northern Aplomado Falcon are moot since the bird is now classified as a nonessential experimental population. New Mexico v. Bureau of Land Management, No. 06-2352, 39 ELR 20101 (10th Cir. Apr. 28, 2009).


NEPA, ALTERNATIVES:



The Second Circuit denied a petition for review of an FAA order approving the relocation of the Panama City-Bay County International Airport to a new site in Florida. The FAA complied with NEPA's procedural requirements in evaluating the proposal to build a new airport at the new site. The FAA adequately considered alternatives to the proposed site and its indirect and cumulative impacts, including impacts to the endangered ivory-billed woodpecker. And the FAA's determination that no prudent alternatives to the proposed new site existed was not arbitrary, capricious, an abuse of discretion, or otherwise contrary to law. Natural Resources Defense Council v. Federal Aviation Administration, No. 06-5267, 39 ELR 20100 (2d Cir. May 1, 2009).


CALIFORNIA ENVIRONMENTAL QUALITY ACT, STATUTE OF LIMITATIONS:



A California appellate court reversed a lower court decision dismissing residents' motion challenging the California Coastal Commission's approval of coastal development permits for two unimproved residential lots. The case involves apparently inconsistent sections of the California Environmental Quality Act (CEQA) and the California Coastal Act of 1976. A lower court ruled that the 60-day statute of limitations set forth in Cal. Pub. Resources Code §30801 barred the residents' challenge. But the residents argued that the appropriate statute of limitations is set forth at Cal. Pub. Resources Code §21080.5(g), pertaining to CEQA exemptions. This section states that the limitations period doesn't run until the filing of the notice of approval with the Secretary of the Resources Agency. Here, the statutes at issue can be reconciled. Section 30801 applies to "any decision" by the Commission while §21080.5(g) covers a state agency's decision where it is alleged that "the plan or other written documentation . . . does not comply" with CEQA. Therefore, §21080.5(g) governs a limited type of attack on the Commission's rulings issued under CEQA's certified regulatory program exemption. The residents, therefore, may challenge the Commission's alleged noncompliance with the requirements set forth in Pub. Resources Code §21080.5. But to the extent they challenge the Commission's decision on grounds beyond what is specified in §21080.5(g), their claims are time barred. Strother v. California Coastal Comm'n, No. G040745, 39 ELR 20099 (Cal. App. 4th Dist. Apr. 30, 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 amended the new source performance standards for nonmetallic mineral processing plants; the amendments include revised emission limits, additional testing and monitoring requirements, exemptions, notification requirements, and revised definitions. 74 FR 19294 (4/28/09).

  • EPA authorized those uses of methyl bromide that qualify for the 2009 critical use exemption as well as specific amounts of methyl bromide that may be produced, imported, or sold from pre-phaseout inventory for proposed critical uses in 2009. 74 FR 19878 (4/30/09).

  • EPA proposed to update a portion of the outer continental shelf air regulations for Delaware. 74 FR 19472 (4/29/09).

  • EPA proposed various amendments to the current NESHAP from the Portland cement manufacturing industry regarding performance specifications, testing requirements, and emissions, operating, and opacity limits. 74 FR 21136 (5/6/09).

  • EPA found that North Carolina and South Carolina failed to submit SIP revisions to satisfy certain requirements of the CAA for the 1997 eight-hour ozone NAAQS for the Charlotte bi-state area. 74 FR 21550 (5/8/09).

  • EPA withdrew the direct final rule for the maintenance plans for the 1997 eight-hour ozone NAAQS for the Huntington-Ashland, Lexington, and Edmonson County areas in Kentucky due to adverse comment. 74 FR 20601 (5/5/09).

  • SIP Approvals: California (nitrogen oxide emissions from gaseous- and liquid-fueled internal combustion engines for the South Coast air quality management district) 74 FR 18995 (4/27/09); (particulate matter (PM-10) emissions from general sources, fugitive sources, and open burning and volatile organic compound (VOC) emissions from petroleum loading and storage for the North Coast unified air quality management district) 74 FR 20877 (5/6/09); (nitrogen oxide (NOx) emissions from boilers, process heaters, steam generators, and residential water heaters for the South Coast and Sacramento metropolitan air quality management districts) 74 FR 20880 (5/6/09). Indiana (extension of permit terms to ten years for the renewal of federally enforceable state operating permits) 74 FR 20599 (5/5/09). Texas (control of particulate matter) 74 FR 19144 (4/28/09).

  • SIP Proposals: California (PM-10 emissions from general sources, fugitive sources, and open burning and VOC emissions from petroleum loading and storage for the North Coast unified air quality management district; see above for direct final rule) 74 FR 20895 (5/6/09); (NOx emissions from boilers, process heaters, steam generators, and residential water heaters for the South Coast and Sacramento metropolitan air quality management districts; see above for direct final rule) 74 FR 20895 (5/6/09). Connecticut (disapproval of the eight-hour ozone NAAQS attainment plan for a portion of the New York-New Jersey-Connecticut nonattainment area) 74 FR 21568 (5/8/09). Delaware (disapproval of the eight-hour ozone NAAQS attainment plan for the Delaware portion of the Philadelphia-Wilmington-Atlantic City moderate nonattainment area) 74 FR 21599 (5/8/09). Indiana (extension of permit terms to ten years for the renewal of federally enforceable state operating permits; see above for direct final rule) 74 FR 20665 (5/5/09). Maryland (disapproval of the eight-hour ozone NAAQS attainment plan for the Cecil County portion of the Philadelphia-Wilmington-Atlantic City moderate nonattainment area) 74 FR 21588 (5/8/09); (disapproval of the eight-hour ozone NAAQS attainment plan for the Baltimore moderate nonattainment area) 74 FR 21594 (5/8/09). New Jersey (disapproval of the eight-hour ozone NAAQS attainment plan) 74 FR 21578 (5/8/09). Ohio (VOC reasonably available control technology requirement for the Cleveland-Akron eight-hour ozone nonattainment area) 74 FR 21295 (5/7/09). Pennsylvania (disapproval of the eight-hour ozone NAAQS attainment plan for the five-county Pennsylvania portion of the Philadelphia-Wilmington-Atlantic City moderate nonattainment area) 74 FR 21604 (5/8/09).

ENERGY:



  • The Minerals Management Service issued final regulations for granting leases, easements, and rights-of-way for renewable energy project activities on the outer continental shelf. 74 FR 19638 (4/29/09).

GENERAL:



  • EPA announced approval of Delaware's request to revise/modify programs under the cross-media electronic reporting rule to allow electronic reporting for certain EPA-authorized programs. 74 FR 20700 (5/5/09).

HAZARDOUS & SOLID WASTE:



  • EPA entered into a proposed administrative agreement under CERCLA that requires the settling party to pay $2.2 million in U.S. response costs incurred at the Anaconda Copper Mine site in Yerington, Nevada, and to conduct approximately $8 million in interim removal actions to mitigate threats from hazardous substances. 74 FR 21683 (5/8/09).

  • EPA approved modifications to Iowa's approved municipal solid waste landfill permit program and to financial assurance mechanisms. 74 FR 20227 (5/1/09).

  • EPA gave final authorization to Pennsylvania's hazardous waste management program. 74 FR 19453 (4/29/09).

  • EPA gave final authorization to Montana's hazardous waste management program. 74 FR 18997 (4/27/09).

  • EPA proposed giving final authorization to Pennsylvania's hazardous waste management program; see above for direct final rule. 74 FR 19480 (4/29/09).

  • EPA proposed giving final authorization to Montana's hazardous waste management program; see above for direct final rule. 74 FR 19036 (4/27/09).

OFFICE OF THE PRESIDENT:



  • The Office of the President issued an administrative order establishing a Biofuels Interagency Working Group to assist in the development of a comprehensive biofuel market development program. 74 FR 21531 (5/7/09).

TOXIC SUBSTANCES:



  • EPA amended the eligibility criteria for facilities subject to toxics release inventory reporting under EPCRA and the Pollution Prevention Act to comply with the Omnibus Appropriations Act of 2009. 74 FR 19001 (4/27/09).

  • EPA Region 1 approved a waiver of the requirements of the federal asbestos-in-schools program for New Hampshire. 74 FR 21683 (5/8/09).

WATER:



  • EPA announced the availability of draft NPDES general permits for potable water treatment facility discharges to certain waters of Massachusetts, including state and Indian country lands, and New Hampshire. 74 FR 19081 (4/27/09).

  • EPA Region 4 proposed issuance of its 2009 NPDES general permit for stormwater discharges on Indian Country lands from new dischargers engaged in large and small construction activities. 74 FR 21357 (5/7/09).

  • EPA gave tentative approval to Puerto Rico's public water system supervision program, which adopts the Agency's groundwater rule. 74 FR 19957 (4/30/09).

WILDLIFE:



  • FWS announced a 90-day finding on a petition to list the American pika as threatened or endangered under the ESA; the Agency found that listing may be warranted and initiated a 12-month status review. 74 FR 21301 (5/7/09).

  • NOAA-Fisheries amended regulations governing interagency cooperation under the ESA. 74 FR 20421 (5/4/09).

  • NOAA-Fisheries proposed modifications to the requirements for the use of chain-mat modified dredge gear to help reduce mortality and injury to endangered and threatened sea turtles in the Atlantic sea scallop fishery. 74 FR 20667 (5/5/09).

  • NOAA-Fisheries initiated a status review under the ESA for the Oregon Coast coho salmon evolutionarily significant unit. 74 FR 19528 (4/29/09).

DOJ NOTICES OF SETTLEMENT:



  • United States v. Dominion Exploration & Production, Inc., No. 2:09-cv-00331-SA (D. Utah Apr. 17, 2009). Settling CAA defendants must pay a $250,000 civil penalty and must install air pollution controls on all existing and newly constructed compressor stations on Indian lands in the Uinta Basin, Utah. 74 FR 19984 (4/30/09).

  • United States v. Miller, Dyer & Co., No. 2:09-cv-00332-DAK (D. Utah Apr. 17, 2009). Settling CAA defendants must pay a $142,000 civil penalty and must install air pollution controls on all existing and newly constructed compressor stations on Indian lands in the Uinta Basin, Utah. 74 FR 19984 (4/30/09).

  • United States v. Wind River Resources Corp., No. 2:09-cv-00330-PMW (D. Utah Apr. 17, 2009). Settling CAA defendants must pay a $240,000 civil penalty, must perform supplemental environmental projects valued at $200,000, and must install air pollution controls on all existing and newly constructed compressor stations on Indian lands in the Uinta Basin, Utah, for failure to comply with PSD requirements and NESHAPs. 74 FR 19984 (4/30/09).

  • United States v. Occidental Chemical Corp., No. 09-cv-5246 (W.D. Wash. Apr. 28, 2009). Settling CERCLA defendants must pay $1,550,000 in natural resource damage assessment costs and must undertake a habitat restoration project in the Hylebos Waterway of Commencement Bay, Washington. 74 FR 21402 (5/7/09).

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. 901 (Merkley, D-Or.) (sustainability) would establish the Oregon Task Force on Sustainable Revenue for Counties. 155 Cong. Rec. S4755 (daily ed. Apr. 27, 2009). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 918 (Schumer, D-N.Y.) (fisheries) would amend the Magnuson-Stevens Fishery Conservation and Management Act to add New York to the New England Fishery Management Council. 155 Cong. Rec. S4807 (daily ed. Apr. 28, 2009). The bill was referred to the Committee on Commerce, Science, and Transportation.

  • S. 923 (Murkowski, R-Alaska) (renewable energy) would promote the development and use of marine renewable energy technologies. 155 Cong. Rec. S4891 (daily ed. Apr. 29, 2009). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 952 (Snowe, R-Me.) (algal blooms) would develop and promote a comprehensive plan for a national strategy to address harmful algal blooms and hypoxia through baseline research, forecasting and monitoring, and mitigation and control while helping communities detect, control, and mitigate coastal and Great Lakes harmful algal blooms and hypoxia events. 155 Cong. Rec. S5013 (daily ed. May 1, 2009). The bill was referred to the Committee on Commerce, Science, and Transportation.

  • S. 959 (Rockefeller, D-W.Va.) (energy) would provide for the extension of a certain hydroelectric project located in the state of West Virginia. 155 Cong. Rec. S5014 (daily ed. May 1, 2009). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 967 (Bingaman, R-N.M.) (energy) would amend the Energy Policy and Conservation Act to create a petroleum product reserve. 155 Cong. Rec. S5065 (daily ed. May 4, 2009). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 989 (Menendez, D-N.J.) (energy) would amend the Public Utility Regulatory Policies Act of 1978 to promote energy independence, increase competition, democratize energy generation, and provide for the connection of certain small electric energy generation systems. 155 Cong. Rec. S5232 (daily ed. May 6, 2009). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 995 (Ensign, R-Nev.) (energy) would amend the Energy and Policy Act of 2005 to reauthorize a provision relating to geothermal lease revenue and to direct the Secretary of the Interior to establish a pilot project to streamline certain federal renewable energy permitting processes. 155 Cong. Rec. S5281 (daily ed. May 7, 2009). The bill was referred to the Committee on Energy and Natural Resources.

  • H.R. 2100 (Franks, R-Ariz.) (land use) would provide for the conveyance of certain public land administered by BLM in Mohave Valley, Arizona, to the Arizona Game and Fish Department for use as a public shooting range. 155 Cong. Rec. H4838 (daily ed. Apr. 27, 2009). The bill was referred to the Committee on Natural Resources.

  • H.R. 2120 (Myrick, R-N.C.) (outer continental shelf) would provide for exploration, development, and production activities for mineral resources on the outer continental shelf. 155 Cong. Rec. H4839 (daily ed. Apr. 27, 2009). The bill was referred to the Committees on Natural Resources, Science and Technology, and the Judiciary.

  • H.R. 2147 (Hodes, D-N.H.) (greenhouse gas emissions) would establish the Global Warming Economic Oversight Commission to study and report on the federal government's use of funds from any auction or sale of greenhouse gas emissions allowances. 155 Cong. Rec. H4914 (daily ed. Apr. 28, 2009). The bill was referred to the Committee on Energy and Commerce.

  • H.R. 2148 (Inslee, D-Wash.) (renewable energy) would promote the development and use of marine renewable energy technologies. 155 Cong. Rec. H4914 (daily ed. Apr. 28, 2009). The bill was referred to the Committees on Science and Technology, Energy and Commerce, and Ways and Means.

  • H.R. 2150 (Levin, D-Mich.) (technology) would increase the amount of direct loans that may be provided by the Secretary of Energy to improve facilities for advanced technology vehicles manufacturing. 155 Cong. Rec. H4914 (daily ed. Apr. 28, 2009). The bill was referred to the Committee on Energy and Commerce.

  • H.R. 2167 (Cuellar, D-Tex.) (land use) would authorize the Secretary of the Interior to conduct a study to assess the suitability and feasibility of designating certain lands as the Los Caminos del Rio Los Caminos del Rio National Heritage Corridor. 155 Cong. Rec. H4998 (daily ed. Apr. 29, 2009). The bill was referred to the Committee on Natural Resources.

  • H.R. 2227 (Murphy, R-Pa.) (energy) would seek to enhance America's path toward energy independence and economic and national security, to conserve energy use, to promote innovation, and to achieve lower emissions, cleaner air, cleaner water, and cleaner land. 155 Cong. Rec. H5095 (daily ed. May 4, 2009). The bill was referred to the Committees on Natural Resources, Oversight and Government Reform, Energy and Commerce, Ways and Means, Science and Technology, Transportation and Infrastructure, Education and Labor, the Budget, Rules, and the Judiciary.

  • H.R. 2250 (Burton, R-Ind.) (energy) would immediately provide for domestic energy production and jobs and to pursue alternatives in renewable energy. 155 Cong. Rec. H5168 (daily ed. May 5, 2009). The bill was referred to the Committees on Energy and Commerce, Armed Services, Science and Technology, Natural Resources, and Ways and Means.

  • H.R. 2265 (Chaffetz, R-Utah) (water) 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. 155 Cong. Rec. H5306 (daily ed. May 6, 2009). The bill was referred to the Committee on Natural Resources.

  • H.R. 2308 (Cohen, D-Tenn.) (wildlife) would amend title 18, U.S. Code, to prohibit certain interstate conduct relating to exotic animals and certain computer-assisted remote hunting. 155 Cong. Rec. H5398 (daily ed. May 7, 2009). The bill was referred to the Committee on the Judiciary.

  • H.R. 2312 (Israel, D-N.Y.) (energy) would authorize the Secretary of Energy to make grants to encourage cooperation between the United States and China on joint research, development, or commercialization of carbon capture and sequestration technology, improved energy efficiency, or renewable energy sources. 155 Cong. Rec. H5398 (daily ed. May 7, 2009). The bill was referred to the Committees on Energy and Commerce and Science and Technology.

  • H.R. 2316 (Baca, D-Cal.) (water) would direct the Secretary of the Interior to conduct a study of water resources in the state of California. 155 Cong. Rec. H5398 (daily ed. May 7, 2009). The bill was referred to the Committee on Natural Resources.

  • H.R. 2326 (Engel, D-N.Y.) (energy) would promote the national security and stability of the United States economy by reducing the United States' dependence on foreign oil. 155 Cong. Rec. H5398 (daily ed. May 7, 2009). The bill was referred to the Committee on Energy and Commerce.

  • H.R. 2336 (Perlmutter, D-Colo.) (energy) would encourage energy efficiency and conservation and development of renewable energy sources for housing, commercial structures, and other buildings, and create sustainable communities. 155 Cong. Rec. H5399 (daily ed. May 7, 2009). The bill was referred to the Committee on Financial Services.

  • H.R. 2340 (Young, R-Alaska) (native lands) would resolve the claims of the Bering Straits Native Corporation and the state of Alaska to land adjacent to Salmon Lake, Alaska, and provide for the conveyance to the Bering Straits Native Corporation of certain other public land in partial satisfaction of the land entitlement of the Corporation under the Alaska Native Claims Settlement Act. 155 Cong. Rec. H5399 (daily ed. May 7, 2009). The bill was referred to the Committee on Natural Resources.

  • H. Res. 421 (Roe, R-Tenn.) (state parks) would recognize the Great Smoky Mountains National Park on its 75th year anniversary. 55 Cong. Rec. H5399 (daily ed. May 7, 2009). The resolution was referred to the Committee on Natural Resources.

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 Indiana
California Georgia Massachusetts
Delaware Idaho Missouri

ALASKA


Water:



CALIFORNIA


Energy:



  • The Department of Conservation seeks public comment on proposed amendments to statewide geothermal regulations at Cal. Code Regs. tit. 14, §§1900 et seq. Revisions to existing regulations, repeal of several unnecessary or redundant regulations, and adoption of new regulations are proposed. Some of the proposed changes are substantive because of changes in technology or gaps in the existing regulations. However, some of the proposed changes simply clarify and correct regulatory text or reorganize sections for clarity. Comments are due June 16, 2009. See http://www.oal.ca.gov/pdfs/notice/18z-2009.pdf (pp. 635-37)

Fisheries:



  • The Fish and Game Commission will hold a public hearing on proposed amendments to Cal. Code Regs. tit. 14, §632, Marine Protected Areas. The area covered in this proposal is the northcentral coast region, defined as state waters between Alder Creek, near Point Arena (Mendocino County) and Pigeon Point (San Mateo County). The proposed regulation establishes a network component of Marine Protected Areas designed to include all representative northcentral coast habitats and major oceanic conditions. Unique and critical habitats were considered separately to guarantee both representation and protection. The hearing will be held May 14, 2009. See http://www.oal.ca.gov/pdfs/notice/18z-2009.pdf (pp. 637-659)

DELAWARE


Air:



  • The Department of Natural Resources and Environmental Control will hold a public hearing on proposed amendments to 7 Del. Code Regs. §1101, Definitions and Administrative Principles; and 7 Del. Code Regs. §1146, Electric Generating Unit Multi-Pollutant Regulation. The proposed amendments to Regulation 1101 update the Delaware definition of a volatile organic compound (VOC) to be the same as the federal definition. This allows Delaware users of solvent-containing products to use these VOC-exempt compounds, which may provide desired product properties without contributing to ozone formation. Amendments to Regulation 1146 are intended to modify the sulfur dioxide mass emissions limit associated with Edge Moor Unit 5 from 2427 tons per year to 4600 tons per year, beginning in calendar year 2009. The hearing will be held May 26, 2009. See http://regulations.delaware.gov/register/may2009/proposed/12%20DE%20Reg%201392%2005-01-09.htm#P31_1848 and http://regulations.delaware.gov/register/may2009/proposed/12%20DE%20Reg%201395%2005-01-09.htm#P32_2301

Hazardous & Solid Waste:



FLORIDA


Air:



  • The Department of Environmental Protection will hold a rule development workshop on amendments to Fla. Admin. Code Ann. rr. 62-285.300 through 62-285.304, Electric Utility Greenhouse Gas Reduction Program. The amendments would establish statewide emission caps from the electric utility sector and include general provisions related to the establishment and operation of a cap-and-trade program to accomplish greenhouse gas emission reductions. The department also proposed to develop four additional new rule sections to implement details of the proposed cap-and-trade program. These details include procedures for allocating greenhouse gas emission allowances to allowance tracking accounts of different types; establishing allowance tracking accounts and tracking allocations, deductions, and transfers to and from such accounts; monitoring and reporting of greenhouse gas emissions; and creating and using greenhouse gas emissions offsets. The hearing will be held May 19, 2009. See https://www.flrules.org/Faw/FAWDocuments/FAWVOLUMEFOLDERS2009/3517/3517doc.pdf (p. 2050)

Hazardous & Solid Waste:



  • The Department of Environmental Protection adopted amendments to Fla. Admin. Code Ann. rr. 62-520.310, General Provisions for Ground Water; 62-520.470, Permit Renewal and Modification Procedures for Installations Discharging to Ground Water; 62-520.500, Exemptions for Installations Discharging Into Class G-I or G-II Ground Water; and 62-520.600, Ground Water Monitoring Requirements and Exemptions. The amendments affect subsequent permits and siting requirements. See https://www.flrules.org/Faw/FAWDocuments/FAWVOLUMEFOLDERS2009/3516/3516doc.pdf (pp. 1969-970)

Land Use:



  • The Department of Environmental Protection will hold a public hearing on proposed amendments to Fla. Admin. Code Ann. r. 62B-26.001, Description of the Walton County Coastal Construction Control Line. The changes would amend Rule 62B-26.001, reestablishing the Coastal Construction Control Line for Walton County, to more accurately define that portion of the beach dune system subject to severe fluctuations based upon the 100-year storm surge and storm waves, thereby defining the area within which special siting and design considerations are required to ensure protection of the beach dune system, proposed or existing structures, adjacent properties, and the preservation of public beach access. The hearing will be held June 2, 2009. See https://www.flrules.org/Faw/FAWDocuments/FAWVOLUMEFOLDERS2009/3517/3517doc.pdf (pp. 2060-63)

Water:



  • The Board of Trustees of Internal Improvement Trust Fund will hold a public hearing on amendments to Fla. Admin. Code Ann. r. 18-21.004, Management Policies, Standards, and Criteria. The amendments would address the criteria for fish cleaning stations that are acceptable in, on, or over state-owned submerged land in association with docking structures, fishing piers, and bulkheads, whether physically attached to or placed on a structure, and the criteria to use in authorizing such structures. Considerations are expected to include water quality and resource impacts, forms of authorization, and limiting conditions, with special emphasis on adverse impacts associated with the disposal of fish carcasses and other wastes associated with fish cleaning stations, and how to improve public education on the disposal of fish wastes. The hearing will be held May 15, 2009. See https://www.flrules.org/Faw/FAWDocuments/FAWVOLUMEFOLDERS2009/3517/3517doc.pdf (p. 2048)

  • The Suwannee River Water Management District initiated rule development for amendments to Fla. Admin. Code Ann. rr. 40B-2.011 through 40B-2.901. The amendments would update Chapter 40B-2 to modernize the existing rule language and incorporate a Water Use Permitting Guide by reference. In addition, Rule 40B-2.041 would amend the Minor Permit by Rule that regulates qualifying landscape irrigation uses in Rule 40B-2.041. The effect of the rule development will set forth conservation measures for qualifying landscape irrigation uses and develop consistency with St. Johns and Southwest Florida water management districts. See https://www.flrules.org/Faw/FAWDocuments/FAWVOLUMEFOLDERS2009/3517/3517doc.pdf (pp. 2048-49)

GEORGIA


Air:



  • The Department of Natural Resources will hold a public hearing on proposed amendments to Ga. Comp. R. & Regs. 391-3-1, Air Quality Control. The amendments would bring Georgia's rules in line with the federal CAA. The hearing will be June 1, 2009. See http://www.gaepd.org/environet/1/

IDAHO


Water:



  • The Department of Environmental Quality (DEQ) seeks public comment on proposed amendments to Idaho Admin. Code r. 58.01.02, Water Quality Standards. The amendments would lower Idaho's arsenic human health criteria from 50 ug/L to 10 ug/L and lower the low-end hardness cap used in calculation of cadmium aquatic life criteria from 25 mg/L to 10mg/L (Section 210). In addition, DEQ proposes to make nonsubstantive revisions to portions of Section 210 identified as needing correction or clarification. Comments are due June 5, 2009. See http://adm.idaho.gov/adminrules/bulletin/bul/09bul/09may.pdf (pp. 23-33) and http://www.deq.idaho.gov/rules/water/58_0102_0801_proposed.cfm

INDIANA


Air:



General:



  • The Natural Resources Commission adopted amendments to 312 Ind. Admin. Code 3-1-1, 3-1-2, and 3-1-8 and added 312 Ind. Admin. Code 3-1-10.5, concerning procedural rules for the Natural Resources Commission, Division of Hearings, to provide for the consolidation of proceedings with the Office of Environmental Adjudication. See http://www.in.gov/legislative/iac/20090429-IR-312080688FRA.xml.html

Hazardous & Solid Waste:



  • The Department of Environmental Management will hold a public hearing on proposed amendments to 329 Ind. Admin. Code 11 concerning clarifications, consistency changes, and organizational changes to the rules for solid waste processing facilities, including transfer stations. The hearing will be held July 21, 2009. See http://www.in.gov/legislative/iac/irtoc.htm?view=list&lsadocnum=06-70

Water:



  • The Water Pollution Control Board adopted amendments to 327 Ind. Admin. Code 5-16-5, 5-17-23, 5-17-24, 5-18-2, 3 5-18-4, 5-18-6, 5-18-10, and 5-19-3 and added 327 Ind. Admin. Code 5-16-5.3, 5-16-5.5, 5-17-1.5, and 5-17-2.5 concerning pretreatment program permit requirements. See http://www.in.gov/legislative/iac/20090429-IR-327060156FRA.xml.html

MASSACHUSETTS


Hazardous & Solid Waste:



  • The Department of Environmental Protection promulgated amendments to 310 Mass. Code Regs. 30.000, Hazardous Waste Regulations. The changes clarify the regulatory and permitting requirements for waste oil, used oil fuel, and other regulated recyclable materials. One final change involved the adoption of a federal exclusion for certain medical nitroglycerine wastes. Other revisions were clerical fixes. See http://www.mass.gov/dep/recycle/laws/regulati.htm#hw

MISSOURI


Hazardous & Solid Waste:



  • The Missouri Hazardous Waste Management Commission will hold a public hearing on proposed amendments to Mo. Code Regs. Ann. tit. 10, §26-2.010, Applicability; §26-2.011, Interim Prohibition for Deferred Underground Storage Tank Systems; §26-2.012, Definitions; §26-2.020, Performance Standards for New Underground Storage Tank Systems; §26-2.021, Upgrading of Existing Underground Storage Tank Systems; §26-2.022, Notification Requirements; §26-2.030, Spill and Overfill Control; §26-2.031, Operation and Maintenance of Corrosion Protection; §26-2.032, Compatibility; §26-2.033, Repairs Allowed; §26-2.034 Reporting and Record Keeping; §26-2.040, General Requirements for Release Detection for All Underground Storage Tank Systems; §26-2.041, Requirements for Petroleum Underground Storage Tank Systems; §26-2.042, Requirements for Hazardous Substance Underground Storage Tank Systems; §26-2.043 Methods of Release Detection for Tanks; §26-2.044 Methods of Release Detection for Piping; §26-2.045, Release Detection Record Keeping; and §26-2.050, Release Reporting. The hearing will be held August 20, 2009. See http://www.sos.mo.gov/adrules/moreg/current/2009/v34n9/v34n9a.pdf (pp 843-859)

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


INTERNATIONAL

GLOBAL WIND POWER CAPACITY UP IN 2008


Global wind capacity grew by 29% in 2008, with the United States surpassing Germany to become the world's leading wind power generator, according to Worldwatch Institute. The Washington-based research organization said last Thursday that global wind capacity rose by over 27,000 megawatts (MW), or enough to power around 27 million homes, to some 120,798 MW last year.  Wind now provides 1.5% of the world's energy demand, up from 0.1% in 1997. U.S. wind capacity increased by 50% to 25,170 MW, or 21% of world capacity. In Europe, wind represented the leading source of new power capacity, with 8,877 MW installed last year. This was 28% more than new natural gas capacity and over 10 times more than new coal, Worldwatch said. Europe now generates 65,946 MW of wind power, or 55% of global capacity. Germany still leads the region, generating 23,903 MW of wind power, but it saw new installations drop slightly in 2008. For the full story, see http://www.reuters.com/article/GCA-GreenBusiness/idUSTRE5472VL20090508

CHINA INCREASES INVESTMENT ON ENERGY CONSERVATION AND ENVIRONMENTAL PROTECTION


According to a representative from China's National Development and Reform Commission, China has arranged CNY (Chinese Yuan) 23 billion for energy conservation, emission control, and environmental protection since the fourth quarter of last year, which accounts for about 10% of the total investment. Starting the fourth quarter of 2008, China's central finance body has arranged two batches of investment, totaling CNY 230 billion, for livelihood, ecological construction and post-earthquake reconstruction. Of these investments, CNY 23 billion is said to be targeted for energy saving and environment protection, including CNY 13 billion for wastewater facilities and wastewater pipe construction; CNY 4 billion for pollution control on major rivers such as Huaihe River, Songhuajiang, and Danjiangkou; CNY 3.5 billion for forest resource protection; and CNY 2.5 billion for ten major energy saving projects and recycled economy. For the full story, see http://www.enn.com/pollution/article/39876


RAIN FOREST RESIDENTS, TEXACO FACE OFF IN ECUADOR


A judge is preparing to render a decision in a long-running, multibillion-dollar lawsuit filed by residents of Ecuador's Amazonian rain forest against Texaco for fouling their land. In the lawsuit, originally filed in New York in 1993 but later moved to Ecuador, the plaintiffs charge that, throughout the 1970s and '80s, the American oil company so polluted a swath of northern Ecuador that hundreds died of cancer. The defendant company that bought Texaco in 2001 denies the accusations. But a court-appointed expert agrees with many of the plaintiffs' charges and has assessed damages at $27 billion. Now, a judge in the small town of Lago Agrio says he hopes to have a decision before the end of the year. For the full story, see http://www.npr.org/templates/story/story.php?storyId=103233560

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


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