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Weekly Update Volume 39, Issue 15

05/26/2009

LITIGATION

ESA, THREATENED SPECIES:



The Ninth Circuit reversed and remanded a lower court decision upholding DOI's decision to remove the flat-tailed horned lizard from its proposed list of threatened species under the ESA. The administrative record does not support DOI's finding that the lizard persists in a substantial portion of its range. DOI argued that it relied on population studies to conclude that the lizard is persisting in the vast majority of its range. Yet it previously reported that "[i]nformation concerning population dynamics of flat-tailed horned lizard populations is limited and inconclusive." If the science on population size and trends is underdeveloped and unclear, DOI cannot reasonably infer that the absence of evidence of population decline equates to evidence of persistence. Here, DOI relied on ambiguous studies as evidence of persistence (i.e., stable and viable populations). It then argued that this "evidence" of persistence proves that the lizard's lost range is insignificant for purposes of the ESA. This conclusion is unreasonable. On remand, DOI must again consider whether to withdraw the proposed listing of the lizard. However, DOI reasonably determined that one of the habitats at issue was not significant due to that population's relatively small size, isolation from other remaining lizard populations, and lack of importance for maintenance of genetic diversity. This is a reasonable approach to assessing the significance of threatened range. Tuscon Herpetological Society v. Salazar, No. 07-16641, 39 ELR 20107 (9th Cir. May 18, 2009).


CERCLA, DAMAGES:



The Third Circuit rejected claims that the monetary and declaratory relief granted to a property owner in its CERCLA and state law action against a former property owner and tenant was not substantial enough. The property owner argued that it was also entitled to future cleanup costs. But future response costs are too speculative since neither EPA nor the state has indicated that further remedial action is necessary. Nor does the owner's claim for tortious interference with contract--based on the failed sale of the site for $1.4 million, which was not completed due to discovery of the contamination--give rise to damages under Pennsylvania's Storage Tank and Spill Prevention Act. Damages recoverable under this Act only reach as far as necessary to promote the goal of the Act--the prompt clean-up of spills. While damages for diminution in property value serve this purpose, the jury already considered diminution in property value when it determined its damages award. Duplicating this element of damages would therefore produce a windfall, not promote prompt clean up. F.P. Woll & Co. v. Fifth & Mitchell Street Corp., No. 07-1622, 39 ELR 20110 (3d Cir. May 5, 2009).


CERCLA, COST RECOVERY:



The Second Circuit issued a summary order vacating and remanding a lower court decision denying an energy company's motion to add a CERCLA §107 claim in its lawsuit against another PRP. Because the company reasonably believed, under the circumstances of this case and the evolving case law governing its claims, that it could not assert a claim under CERCLA §107(a)(4)(B) until the U.S. Supreme Court issued its decision in United States v. Atlantic Research Corp., 551 U.S. 128, 37 ELR 20139 (2007), because it moved quickly thereafter to assert such a claim, and because the timing of its assertion did not prejudice the defendants, the lower court abused its discretion by denying the company leave to amend. New York State Electric & Gas Corp. v. FirstEnergy Corp., No. 07-2581, 39 ELR 20112 (2d Cir. May 5, 2009).


CONSTITUTIONAL LAW, DORMANT COMMERCE CLAUSE:



A district court held that an interstate radioactive waste compact lacks the authority to prohibit a private disposal facility in Clive, Utah, from accepting imported low-level radioactive waste (LLRW). The Low Level Radioactive Waste Policy Amendments Act of 1985 granted regional compacts the authority to restrict or prohibit the importation of out-of-region LLRW to the compact’s regional disposal facilities. The Clive facility, however, is not a regional disposal facility since it was not established by or operated under the compact. The compact, therefore, has no authority to restrict the flow of out-of-region waste to that facility. While Congress has expressed its unambiguous intent to waive Dormant Commerce Clause restrictions on the ability of regional compacts to regulate the disposal of LLRW generated within the compact boundaries, it has not expressed its unambiguous intent to waive Dormant Commerce Clause restrictions on regulation by regional compacts of private LLRW facilities not covered by the compact system. Energy Solutions, LLC v. Northwest Interstate Compact on Low-Level Radioactive Waste Management, No. 2:08-CV-352, 39 ELR 20109 (D. Utah May 15, 2009).


WATER QUALITY, AGENCY DISCRETION:



A Minnesota appellate court upheld a Minnesota Pollution Control Agency rule governing phosphorus effluent discharges into state waters. A coalition of cities argued that because the rule provides that a discharger "may" rather than "shall" qualify for an exemption if it demonstrates that it can meet the standards for an exemption, the rule gives the agency "unbridled discretion" in violation of the state 's nondelegation doctrine and in excess of the agency's authority. The coalition had standing because the rule's application could interfere with the interests of its members. On its face, however, the rule--including its use of the term "may"--grants permissible discretion to the agency. The court gave weight to the agency’s statement that an exemption would be granted if the statutory criteria were met, so long as there was not an overarching water quality reason not to grant it. In addition, the agency did not exceed its authority or violate notice-and-comment procedures, and the rule was not "overly prescriptive." Coalition of Greater Minnesota Cities v. Minnesota Pollution Control Agency, No. A08-1198, 39 ELR 20111 (Minn. Ct. App. May 12, 2009).


LAND USE, PERMITS:



A California appellate court upheld a California coastal development permit allowing homeowners to build a second story to their home in Redondo Beach. A petitioner sought to have the permit vacated, arguing that the addition would block the public's view of the ocean in violation of the state Coastal Act. In his view, once the coastal commission found that the project would further restrict the public's limited view, the commission had no choice but to deny the permit. But the applicable statute only requires the commission to consider and protect scenic and visual qualities, providing that "[p]ermitted development shall be sited and designed to protect views." The commission did so here. In addition, the petitioner failed to show that there was a lack of substantial evidence supporting the commission's decision or that it violated the city’s local coastal program. Farr v. California Coastal Comm'n, No. B204874, 39 ELR 20108 (Cal. App. 2d Dist. Apr. 9, 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 and DOT announced their intent to conduct a joint rulemaking establishing greenhouse gas emissions and fuel economy standards for passenger cars, light-duty trucks, and medium-duty passenger vehicles built in model years 2012 through 2016. 74 FR 24007 (5/22/09).

  • EPA revised the dates for flagging data and submitting documentation regarding exceptional events under the 2008 ozone NAAQS. 74 FR 23307 (5/19/09).

  • EPA updated the Code of Federal Regulations (CFR) delegation tables to reflect the current status of new source performance standards (NSPS) and NESHAPs in Arizona, California, Hawaii, and Nevada. 74 FR 23313 (5/19/09).

  • EPA approved Pennsylvania's request to use sulfur dioxide emission reduction credits to offset increased emissions of particulate matter (PM) in the York County nonattainment area. 74 FR 23856 (5/21/09).

  • EPA proposed to update the CFR delegation tables to reflect the current status of NSPS and NESHAPs in Arizona, California, Hawaii, and Nevada; see above for direct final rule. 74 FR 23372 (5/19/09).

  • SIP Approvals: Michigan (volatile organic compound (VOC) model rule and definition) 74 FR 23952 (5/22/09). Minnesota (PM) 74 FR 23632 (5/20/09).

  • SIP Proposals: Georgia (air quality control rules) 74 FR 23812 (5/21/09). Michigan (VOC model rule and definition; see above for direct final rule) 74 FR 23965 (5/22/09). Minnesota (PM; see above for direct final rule) 74 FR 23678 (5/20/09).

HAZARDOUS & SOLID WASTE:



  • EPA announced the availability of the software CostPro to estimate the costs of RCRA closure and post-closure care. 74 FR 23712 (5/20/09).

  • EPA gave final authorization to Louisiana's hazardous waste management program. 74 FR 23645 (5/20/09).

  • EPA proposed giving final authorization to Louisiana's hazardous waste management program; see above for direct final rule. 74 FR 23679 (5/20/09).

  • EPA entered into a proposed administrative settlement under CERCLA that requires the settling parties to pay certain U.S. response costs incurred at the Barry Bronze Bearing Company site in Camden, New Jersey. 74 FR 23857 (5/21/09).

  • EPA entered into a proposed administrative settlement under CERCLA that requires the settling parties to pay $1,321,619 in past U.S. response costs incurred at the Bueno Mine and Mill site adjacent to Jamestown, Colorado. 74 FR 23712 (5/20/09).

  • EPA entered into a proposed administrative settlement under CERCLA for past U.S. response costs incurred at the Lilburn Mercury Spill Superfund site in Lilburn, Georgia. 74 FR 23713 (5/20/09).

OFFICE OF THE PRESIDENT:



  • The president issued a memorandum directing heads of executive departments and agencies to ensure that preemption of state law is undertaken only with full consideration of the legitimate prerogatives of the states and with a sufficient legal basis. 74 FR 24693 (5/22/09).

WILDLIFE:



  • FWS designated approximately 139,029 acres in Aransas, Brazoria, Calhoun, Cameron, Kenedy, Kleberg, Matagorda, Nueces, and Willacy counties, Texas, as critical habitat for the wintering population of the piping plover. 74 FR 23476 (5/19/09).

  • FWS announced its 12-month finding on a petition to list the coaster brook trout as endangered under the ESA and to designate critical habitat for the species; the Agency found that the coaster brook trout is not a listable entity and therefore listing is not warranted. 74 FR 23376 (5/19/09).

  • NOAA-Fisheries proposed rulemaking to establish take prohibitions for the threatened southern distinct population segment of the North American green sturgeon. 74 FR 23822 (5/21/09).

DOJ NOTICES OF SETTLEMENT:



  • United States v. Illinois Power Co., No. 99-833-MJR (S.D. Ill. Apr. 27, 2009). Under a modified 2006 consent decree, a settling CAA defendant must complete an approved $540,707 mitigation project by May 31, 2011, and must retrofit diesel-powered, in-service school bus and municipal vehicles to reduce emissions near the Baldwin Power Station in Randolph County, Illinois. 74 FR 23203 (5/18/09).

  • United States v. Alaska Gold Co., No. 3:09-cv-00090-TMB (D. Alaska May 12, 2009). Under a proposed stipulation of settlement and judgment, a settling CWA defendant must pay a $883,628 civil penalty in connection with violations of an NPDES permit during the construction and/or operation of the Rock Creek Mine in or near Nome, Alaska. 74 FR 23204 (5/18/09).

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. 1069 (Landrieu, D-La.) (energy) would provide for disaster assistance for power transmission and distribution facilities. 155 Cong. Rec. S5614 (daily ed. May 19, 2009). The bill was referred to the Committee on Homeland Security and Governmental Affairs.

  • S. 1080 (McCain, R-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. S5614 (daily ed. May 19, 2009). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 1090 (Wyden, D-Or.) (energy) would amend the Internal Revenue Code of 1986 to provide tax credit parity for electricity produced from renewable resources. 155 Cong. Rec. S5614 (daily ed. May 19, 2009). The bill was referred to the Committee on Finance.

  • S. 1091 (Wyden, D-Or.) (energy) would amend the Internal Revenue Code of 1986 to provide for an energy investment credit for energy storage property connected to the grid. 155 Cong. Rec. S5614 (daily ed. May 19, 2009). The bill was referred to the Committee on Finance.

  • S. 1092 (Wyden, D-Or.) (energy) would establish a program to provide loans for use in carrying out residential, commercial, industrial, and transportation energy efficiency and renewable generation projects. 155 Cong. Rec. S5614 (daily ed. May 19, 2009). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 1093 (Wyden, D-Or.) (fuel efficiency) would amend the Internal Revenue Code of 1986 to provide tax incentives for increasing motor vehicle fuel efficiency. 155 Cong. Rec. S5614 (daily ed. May 19, 2009). The bill was referred to the Committee on Finance.

  • S. 1094 (Wyden, D-Or.) (energy) would amend the Internal Revenue Code of 1986 to provide for an energy carrier production tax credit. 155 Cong. Rec. S5614 (daily ed. May 19, 2009). The bill was referred to the Committee on Finance.

  • S. 1095 (Wyden, D-Or.) (CAA) would amend the CAA to convert the renewable fuel standard into a low-carbon fuel standard. 155 Cong. Rec. S5614 (daily ed. May 19, 2009). The bill was referred to the Committee on Environment and Public Works.

  • S. 1096 (Wyden, D-Or.) (energy) would require the Secretary of Energy to establish an EnergyGrant Competitive Education Program to competitively award grants to regional consortia of higher education institutions to conduct research, extension, and education programs relating to the energy needs of those regions. 155 Cong. Rec. S5614 (daily ed. May 19, 2009). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 1097 (Wyden, D-Or.) (energy) would require the Secretary of Energy, in coordination with the Secretary of Labor, to establish a program to provide for workforce training and education, at community colleges, in sustainable energy. 155 Cong. Rec. S5614 (daily ed. May 19, 2009). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 1098 (Wyden, D-Or.) (energy) would establish EnergySmart transport corridors to promote the planning and development of measures that will increase the energy efficiency of the interstate system and reduce the emission of greenhouse gases and other environmental pollutants. 155 Cong. Rec. S5614 (daily ed. May 19, 2009). The bill was referred to the Committee on Environment and Public Works.

  • S. 1117 (Leahy, D-Vt.) (conservation) would authorize the Secretary of the Interior to provide assistance in implementing cultural heritage, conservation, and recreational activities in the Connecticut River watershed of the states of New Hampshire and Vermont. 155 Cong. Rec. S5819 (daily ed. May 21, 2009). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 1122 (Barrasso, R-Wyo.) (forests) would authorize the Secretary of Agriculture and the Secretary of the Interior to enter into cooperative agreements with state foresters authorizing them to provide certain forest, rangeland, and watershed restoration and protection services. 155 Cong. Rec. S5819 (daily ed. May 21, 2009). The bill was referred to the Committee on Agriculture, Nutrition, and Forestry.

  • S. 1124 (Murray, D-Wash.) (fisheries) would amend title 46, U.S. Code, to modify the vessels eligible for a fishery endorsement. 155 Cong. Rec. S5819 (daily ed. May 21, 2009). The bill was referred to the Committee on Commerce, Science, and Transportation.

  • S. 1134 (Casey, D-Pa.) (energy) would seek to ensure the energy independence and economic viability of the United States by promoting accelerated carbon capture and storage and advanced clean-coal technology research, development, demonstration, and deployment programs. 155 Cong. Rec. S5819 (daily ed. May 21, 2009). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 1135 (Stabenow, D-Mich.) (fuel efficiency) would establish a voluntary program in the National Highway Traffic Safety Administration to encourage consumers to trade in older vehicles for more fuel efficient ones. 155 Cong. Rec. S5819 (daily ed. May 21, 2009). The bill was referred to the Committee on Commerce, Science, and Transportation.

  • S. 1138 (Feinstein, D-Cal.) (water) would amend the Reclamation Wastewater and Groundwater Study and Facilities Act to expand the Bay Area Regional Recycling Program. 155 Cong. Rec. S5819 (daily ed. May 21, 2009). The bill was referred to the Committee on Energy and Natural Resources .

  • S. 1139 (Wyden, D-Or.) (land conveyance) would require the Secretary of Agriculture to enter into a property conveyance with the city of Wallowa, Oregon. 155 Cong. Rec. S5819 (daily ed. May 21, 2009). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 1148 (Grassley, R-Iowa) (CAA) would amend the CAA to modify a provision relating to the renewable fuels program. 155 Cong. Rec. S5819 (daily ed. May 21, 2009). The bill was referred to the Committee on Environment and Public Works.

  • H.R. 2453 (Duncan, R-Tenn.) (national biological data center) would provide for a national biological data center. 155 Cong. Rec. H5671 (daily ed. May 15, 2009). The bill was referred to the Committee on Natural Resources.

  • H.R. 2454 (Waxman, D-Cal.) (energy) would create clean energy jobs and seek to achieve energy independence, reduce global warming pollution, and transition to a clean energy economy. 155 Cong. Rec. H5671 (daily ed. May 15, 2009). The bill was referred to the Committees on Energy and Commerce, Foreign Affairs, Financial Services, Education and Labor, Science and Technology, Transportation and Infrastructure, Natural Resources, Agriculture, and Ways and Means.

  • H.R. 2455 (Faleomavaega, D-Am. Sam.) (Whale Conservation and Protection Study Act) would amend the Whale Conservation and Protection Study Act to promote international whale conservation, protection, and research. 155 Cong. Rec. H5711 (daily ed. May 18, 2009). The bill was referred to the Committees on Foreign Affairs, Natural Resources, Ways and Means, and Transportation and Infrastructure.

  • H.R. 2471 (Whitfield, R-Ky.) (mineral tailings) would reauthorize the Uranium Enrichment Decontamination and Decommissioning Fund, authorize the Secretary of Energy to pay affected participants under a pension plan referred to in the United States Enrichment Corporation Privatization Act for benefit increases not received, and direct the Secretary of Energy to provide a plan for the re-enrichment of certain uranium tailings. 155 Cong. Rec. H5712 (daily ed. May 18, 2009). The bill was referred to the Committee on Energy and Commerce and the Committee on Ways and Means.

  • H.R. 2476 (Degette, D-Colo.) (National Forest System) would amend the National Forest Ski Area Permit Act of 1986 to clarify the authority of the Secretary of Agriculture regarding additional recreational uses of National Forest System land that are subject to ski area permits. 155 Cong. Rec. H5790 (daily ed. May 19, 2009). The bill was referred to the Committees on Agriculture and Natural Resources.

  • H.R. 2484 (Cao, R-La.) (energy) would provide for disaster assistance for power transmission and distribution facilities. 155 Cong. Rec. H5791 (daily ed. May 19, 2009). The bill was referred to the Committee on Transportation and Infrastructure.

  • H.R. 2489 (Herseth Sandlin, D-S.D.) (U.S. Geological Survey) would authorize a comprehensive national cooperative geospatial imagery mapping program through the U.S. Geological Survey; promote use of the program for education, workforce training and development, and applied research; and support federal, state, tribal, and local government programs. 155 Cong. Rec. H5791 (daily ed. May 19, 2009). The bill was referred to the Committee on Natural Resources.

  • H.R. 2509 (Kirkpatrick, D-Ariz.) (land use) would secure federal ownership and management of significant natural, scenic, and recreational resources; provide for the protection of cultural resources; and facilitate the efficient extraction of mineral resources by authorizing and directing an exchange of federal and non-federal land. 155 Cong. Rec. H5890 (daily ed. May 20, 2009). The bill was referred to the Committee on Natural Resources.

  • H.R. 2528 (Meek, D-Fla.) (biomass) would amend the Internal Revenue Code of 1986 to extend the credit period for certain open-loop biomass facilities. 155 Cong. Rec. H5891 (daily ed. May 20, 2009). The bill was referred to the Committee on Ways and Means.

  • H.R. 2539 (Thornberry, R-Tex.) (energy) would secure unrestricted reliable energy for American consumption and transmission. 155 Cong. Rec. H6008 (daily ed. May 20, 2009). The bill was referred to the Committees on Natural Resources, Ways and Means, and Energy and Commerce.

  • H.R. 2540 (Lamborn, R-Colo.) (oil exploration) would set clear rules for the development of U.S. oil shale resources to promote shale technology research and development. 155 Cong. Rec. H6008 (daily ed. May 20, 2009). The bill was referred to the Committee on Natural Resources.

  • H.R. 2543 (McDermott, D-Wash.) (timber) would amend the Internal Revenue Code of 1986 to make permanent the reduction in the rate of tax on qualified timber gain of corporations. 155 Cong. Rec. H6008 (daily ed. May 20, 2009). The bill was referred to the Committee on Ways and Means.

  • H.R. 2548 (Pingree, D-Me.) (CZMA) would amend the CZMA to require establishment of a Working Waterfront Grant Program. 155 Cong. Rec. H6008 (daily ed. May 20, 2009). The bill was referred to the Committee on Natural Resources.

  • H.R. 2552 (Pallone, D-N.J.) (Solid Waste Disposal Act) would amend the Solid Waste Disposal Act to require the EPA Administrator to promulgate regulations on the management of medical waste. 155 Cong. Rec. H6008 (daily ed. May 20, 2009). The bill was referred to the Committee on Energy and Commerce.

  • H.R. 2565 (Kind, D-Wis.) (fisheries) would conserve fish and aquatic communities in the United States through partnerships that foster fish habitat conservation and improve the quality of life for the people of the United States. 155 Cong. Rec. H6009 (daily ed. May 20, 2009). The bill was referred to the Committee on Natural Resources.

  • H.R. 2595 (Green, D-Tex.) (electronic waste) would restrict certain exports of electronic waste. 155 Cong. Rec. H6010 (daily ed. May 20, 2009). The bill was referred to the Committee on Energy and Commerce.

  • H.R. 2615 (Larson, D-Conn.) (energy) would amend the Internal Revenue Code of 1986 to provide incentives for energy efficient commercial building roofs. 155 Cong. Rec. H6011 (daily ed. May 20, 2009). The bill was referred to the Committee on Ways and Means.

  • H.R. 2626 (Meek, D-Fla.) (energy) would amend the Internal Revenue Code of 1986 to provide tax credit parity for electricity produced from renewable resources. 155 Cong. Rec. H6012 (daily ed. May 20, 2009). The bill was referred to the Committee on Ways and Means.

  • H.R. 2631 (Paul, R-Tex.) (oil exploration) would allow offshore drilling, eliminate federal obstacles to constructing refineries and providing incentives for investment in refineries, and suspend federal fuel taxes when gasoline prices reach a benchmark amount. 155 Cong. Rec. H6012 (daily ed. May 20, 2009). The bill was referred to the Committees on Ways and Means, Natural Resources, and Financial Services.

  • H.R. 2640 (Sutton, D-Ohio) (fuel efficiency) would accelerate motor fuel savings nationwide and provide incentives to registered owners of highly polluting automobiles to replace such automobiles with new fuel efficient and less polluting automobiles. 155 Cong. Rec. H6011 (daily ed. May 20, 2009). The bill was referred to the Committees Energy and Commerce and Ways and Means.

  • H.R. 2643 (Welch, D-Vt.) (conservation) would authorize the Secretary of the Interior to provide assistance in implementing cultural heritage, conservation, and recreational activities in the Connecticut River watershed of the states of New Hampshire and Vermont. 155 Cong. Rec. H6012 (daily ed. May 20, 2009). The bill was referred to the Committee on Natural Resources.

  • H. Res. 449 (Sensenbrenner, R-Wis.) (greenhouse gas) would request the President to provide certain documents in his possession to the U.S. House of Representatives relating to EPA's proposed finding that greenhouse gas emissions are a danger to public health and welfare. 155 Cong. Rec. H5671 (daily ed. May 15, 2009). The resolution was referred to the Committee on Energy and Commerce.

  • H. Res. 484 (Larsen, D-Wash.) (National Pipeline Safety Day) would express support for designation of June 10th as "National Pipeline Safety Day." 155 Cong. Rec. H6013 (daily ed. May 20, 2009). The resolution was referred to the Committees on Transportation and Infrastructure and 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:





















Alabama North Carolina Tennessee
Missouri Ohio Washington
Nebraska Pennsylvania Wisconsin
New Jersey South Dakota Wyoming
New York    

ALABAMA


Water:



  • The Alabama Department of Environmental Management will hold a public hearing soliciting public comments on current provisions of Ala. Admin. Code r. 335-6-10, Water Quality Criteria, and r. 335-6-11, Water Use Classifications for Interstate and Intrastate Waters. The hearing will allow all interested persons an opportunity to become involved in the water quality standards review process and offer data, views, and arguments regarding the existing provisions. The hearing will be held June 29, 2009. See http://www.adem.state.al.us//PublicNotice/May09/5triennial.htm

MISSOURI


Hazardous & Solid Waste:



  • The Department of Natural Resources seeks public comment on proposed amendments to Mo. Code Regs. Ann. tit. 10, §100-4.020, Participation Requirements for Aboveground Storage Tanks. The amendments would change how the Petroleum Storage Tank Insurance Fund Board of Trustees handles insurance renewals where some, but not all, of the aboveground tanks at a site have been taken out of service. In addition, they would make third-party benefits available for claims made during the extended reporting period. The amendments make the board’s procedures for aboveground tanks consistent with its current procedures for underground tanks. Comments are due June 15, 2009. See http://www.sos.mo.gov/adrules/moreg/current/2009/v34n10/v34n10b.pdf (p. 1182)

NEBRASKA


Air:



NEW JERSEY


Air:



  • The Department of Environmental Protection adopted amendments to N.J. Admin. Code §7:27-14, Control and Prohibition of Air Pollution from Diesel-Powered Motor Vehicles. The amendments reduce opacity cutpoints, strengthen the visible smoke standard for diesel-powered trucks and buses, and clarify the rules' exemption for emergency vehicles. The rules also represent a revision to the SIP. The adopted amendments affect all heavy-duty diesel-powered motor vehicles, except U.S. EPA-regulated marine vessels and trains. See http://www.nj.gov/dep/rules/adoptions/adopt_090504.pdf

Fisheries:



  • The Department of Environmental Protection seeks public comments on proposed amendments to N.J. Admin. Code §7:25A, Oysters. The proposed amendments concern the management and harvest of oysters in Delaware Bay and the rules regarding oyster dredge vessel licenses. The proposed rules additionally reorganize the existing subchapters and incorporate provisions reflecting how the fishery has been operating since the start of the direct market harvest season in 1996. Comments are due July 31, 2009. See http://www.nj.gov/dep/rules/notices/060109a.html

NEW YORK


Water:



NORTH CAROLINA


Water:



  • The Department of Environment and Natural Resources will hold a series of public hearings on proposed amendments to 15A N.C. Admin. Code 02T.1310 and 02T.1311, Animal Waste Management Systems--Surface Water and Ground Water Monitoring. The hearings will be held June 9, 11, 15, and 18, 2009. See http://www.ncoah.com/rules/register/Volume23Issue22May152009.pdf (pp. 2172-176)

OHIO


Air:



  • The Ohio Environmental Protection Agency will hold a public hearing on proposed amendments to Ohio Admin. Code 3745:109-01, 3745:109-04, 3745:109-07, 3745:109-08, 3745:109-11, 3745:109-12, 3745:109-13, 3745:109-14, 3745:109-17, 3745:109-18, 3745:109-19, 3745:109-20, and 3745:109-21, Ohio's Clean Air Interstate Rule (CAIR). The changes are necessary as a result of comments submitted by U.S. EPA after the end of Ohio's CAIR final rulemaking process. The hearing will be June June 2, 2009. See http://www.registerofohio.state.oh.us/pdfs/phn/3745_NO_73238_20090423_1305.pdf

Water:



  • The Ohio Environmental Protection Agency will hold a public hearing on proposed amendments to Ohio Admin. Code 3745:1-09, Scioto river drainage basin; 3745:1-11, Maumee river drainage basin; 3745:1-17, Southwest Ohio tributaries drainage basin; 3745:1-18, Little Miami river drainage basin; and 3745:1-25, Mahoning river drainage basin. The amendments would change beneficial use designations (aquatic life, water supply, and recreational categories) for specified water bodies in the Scioto River, Maumee River, Southwest Ohio tributaries, Little Miami River, and Mahoning River drainage basins. The hearing will be held June 2, 2009. See http://www.registerofohio.state.oh.us/pdfs/phn/3745_NO_73659_20090429_0903.pdf

  • The Ohio Environmental Protection Agency will hold a public hearing on proposed amendments to Ohio Admin. Code 3745:88-01 and 3745:88-02, loan assistance and subsidy to public water systems. The amendments would allow increased flexibility in the administration of disadvantaged community loans, allow the Division of Drinking and Ground Waters to award a greater amount in principal forgiveness and extended term loans, and allow the division to quickly and efficiently allocate resources. The hearing will be held June 4, 2009. See http://www.registerofohio.state.oh.us/pdfs/phn/3745_NO_73838_20090501_0832.pdf

PENNSYLVANIA


Water:



SOUTH DAKOTA


Water:



  • The Department of Environment and Natural Resources adopted S.D. Admin. R. 174:05:12, American Recovery and Reinvestment Act Program. The rules establish a system for awarding funding provided to the State Revolving Fund programs by the American Recovery and Reinvestment Act of 2009, allow the waiver of a financial status summary for certain applications, and modify the deadline for forfeiture of principal forgiveness. See http://denr.sd.gov/stimulussrfrules.pdf

TENNESSEE


Hazardous & Solid Waste:



  • The Department of Environment and Conservation proposed amendments to Tenn. Comp R. & Regs. 1200-01-20, Asbestos Accreditation Requirements. These new rules would apply to persons and firms that engage in asbestos activities and to providers of accredited training courses. The rules would establish an application process for initial accreditation and reaccreditation for persons, firms, and training providers; an audit process of training providers regarding training coursers and applicable records; define initial and refresher training curriculum requirements; establish work practice standards that an accredited person and/or firm conducting asbestos activities shall comply with in each of the specific disciplines; and set an accreditation fee schedule for persons, firms, and training providers. See http://www.tn.gov/sos/rules_filings/04-03-09.pdf

WASHINGTON


Water:



  • The Department of Ecology adopted an emergency rule amending Wash. Admin. Code §173-98, Uses and Limitations of the Water Pollution Control Revolving Fund. The amendments add a new section to the rule enabling the department to receive and disburse federal stimulus money to public bodies to fund high priority water quality projects. The administration of the federal stimulus money and the water quality projects that it funds must be consistent with the intent of the federal American Recovery and Reinvestment Act of 2009. See http://apps.leg.wa.gov/documents/laws/wsr/2009/09/09-09-078.htm

Hazardous & Solid Waste:



  • The Department of Ecology adopted new regulations Wash. Admin. Code §173-345, Recyclable Materials--Transporter and Facility requirements. The rules require transporters of recyclable material to register with the department, transport recyclable materials only to locations where recycling occurs, and keep records of all activities for two years. In addition, these new rules require recycling facilities to notify the department of their existence 30 days before operation commences (90 days for existing facilities). The adopted rule will incorporate language that prescribes penalties for noncompliance of up to $1,000 per violation. See http://apps.leg.wa.gov/documents/laws/wsr/2009/09/09-09-131.htm

WISCONSIN


Air:



  • The Wisconsin Natural Resources Board proposed amendments to Wis. Admin. Code NR §§428.04(1) and (3)(b), 428.05(1) and (4)(b)2., 428.07(intro.), (1)(a) and (b)1. and 3., (3) and (4)(c), 428.08(title) and (2)(title), 428.09(2)(a), 428.20(1), 428.22(2)(intro.), 428.23(1)(b)1., 428.24(1)(b)(intro.) and 428.25(1)(a)1.a. and c. and (3)(b) and creation of Wis. Admin. Code NR §§428.02(7e), 428.08(2)(f), 428.12, 428.23(1)(b)9, relating to modification of existing rules for control of nitrogen oxide (NOx) emitted by stationary sources in the ozone nonattainment area in southeastern Wisconsin. The proposed revisions address required modifications to the NOx reasonably available control technology program to meet minimum criteria for conditional federal approval of the program into the SIP. The revisions would also clarify and facilitate implementation. See http://www.legis.state.wi.us/ruletext/08-103-0.pdf

WYOMING


Water:



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


INTERNATIONAL

A PROFITABLE RAINFOREST


Iwokrama, a 370,000-hectare rainforest in central Guyana, announced a profit for 2008. Iwokrama is part of the largest expanse of undisturbed rainforest in the world, which overlies the Guiana Shield. In 1989 the president of Guyana gave the forest as a gift to the Commonwealth for research into global warming. Today it is administered by an international board of trustees, who have devolved the day-to-day management to the Iwokrama International Centre. It is this centre that has been working to exploit the forest sustainably. The centre makes money in areas such as ecotourism, timber-extraction, forest-products such as honey and oils, bio-prospecting, and forestry research. Its results for 2008 reveal that it made a surplus for the first time that year, with revenues of $2.4m and a profit of $800,000. The previous year it had lost $200,000. Revenues from timber were up by 44%, ecotourism by 26%, and training by 22%. For the full story, see http://www.economist.com/world/international/displaystory.cfm?story_id=13684132. Visit http://www.iwokrama.org/dwsite/annualreview.htm for the financial report.

LARGEST WIND FARM TO BE EXPANDED



Europe's largest onshore wind farm is to be expanded further, Scottish First Minister Alex Salmond has announced as he officially switched on the 140-turbine Whitelee wind farm on Eaglesham Moor in East Renfrewshire. He said developers ScottishPower Renewables had been given permission to add a further 36 turbines to the site. That will allow the £300m wind farm to power 250,000 homes and could create up to 300 jobs. The first minister officially connected the wind farm, which covers an area about the size of Glasgow city centre, to the national grid in a ceremony alongside Ignacio Galan, chairman and chief executive of Iberdrola, the Spanish owners of ScottishPower. Each turbine at Whitelee, which started producing electricity in January 2008, stands 110m high. Mr. Salmond said the Scottish Government's approval of the extension would give the wind farm a total power capacity of 452 MW. For the full story, see http://news.bbc.co.uk/2/hi/uk_news/scotland/glasgow_and_west/8057198.stm


INTERNATIONAL BIODIVERSITY DAY SOUNDS THE ALARM ON INVASIVE SPECIES


International Biodiversity Day, celebrated each year on May 22, pays tribute to the global importance of biodiversity, both as an asset for posterity and a vital resource for people and their livelihoods. This year, International Biodiversity Day focuses on alien invasive species as major threats to biodiversity. Biological invasions are the result of species that are introduced to a new ecosystem in which they are not indigenous. They often cause great harm to their new environments. These invasions are high on the list of current threats to biodiversity, ecosystems, species, and the protected areas that support them. This has knock-on effects on the livelihoods of people that depend on them for their survival. For the full story, see http://www.iucn.org/?3209/International-Biodiversity-Day-sounds-the-alarm-on-invasive-species

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


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