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Weekly Update Volume 39, Issue 19

07/13/2009

LITIGATION

CAA, OZONE NAAQS:



The D.C. Circuit remanded portions of EPA's phase 2 rule for implementing the eight-hour ozone NAAQS. CAA §172(c)(1) requires that nonattainment areas achieve "such reductions in emissions from existing sources in the area" as can be achieved by the adoption of reasonably available control technology (RACT). The phase 2 rule allows participation in the nitrogen oxide (NOx) SIP Call to satisfy this area-specific statutory mandate. But EPA failed to show that NOx SIP Call compliance will result in at least RACT-level reductions in emissions from sources within each nonattainment area. Accordingly, EPA's determination that compliance with the NOx SIP Call satisfies the RACT requirement is inconsistent with the "in the area" requirement and, thus, violates the plain text of CAA §172(c)(1). In addition, EPA acted arbitrarily when it eliminated the requirement that an attainment demonstration be approved for an area before a new source would be allowed to use a past emission reduction to offset new emissions. Similarly, the elimination of the 18-month time limit for new source review waivers violates the Act's anti-backsliding provision. The court, however, deferred consideration of the rule insofar as it relates to the clean air interstate rule program. The petition for review was denied in all other respects. Natural Resources Defense Council v. Environmental Protection Agency, No. 06-1045, 39 ELR 20150 (D.C. Cir. July 10, 2009).


CAA, NAAQS, ATTAINMENT DESIGNATIONS:



The D.C. Circuit upheld EPA's area designations for the annual NAAQS for fine particulate matter. Several states, counties, and industrial entities argued that by applying the consolidated metropolitan statistical areas presumption and a nine-factor test to identify areas that contribute to nearby PM2.5 violations, EPA's methodology for designating areas as nonattainment for the fine particulate matter standard violates CAA §107(d). But §107(d) does not unambiguously preclude EPA from adopting this method, and EPA reasonably interpreted the statute as permitting it to do so. Section 107(d) requires only that EPA designate, based on air quality monitoring data, nonattainment areas that either violate or contribute to violations of the PM2.5 NAAQS. Acting on evidence that urban PM2.5 violations usually stem from metropolitan-wide activities, EPA reasonably adopted a presumption that designates all of a metropolitan area as nonattainment when at least one part of that area registers a PM2.5 violation, and a specifically defined multi-factor analysis to assess when that presumption fails to reflect the realities of a given metropolitan area. Petitioners also argued that the rule itself was arbitrary and capricious, but the Agency was entitled to deference. In basing its designation decisions on a rigorous analysis of each county’s particular attributes, EPA satisfied the requirements of reasoned decisionmaking. Last, petitioners argued that even if the PM2.5 nonattainment designations are reasonable as a general matter, certain individual county designations are independently arbitrary and capricious. But for all but one of the 225 counties or partial counties it designated as nonattainment, the Agency satisfied its basic obligation of reasoned decisionmaking. In light of the Agency's scientific expertise and the complexity of the designation process, the court remanded the case to give EPA another opportunity to provide a coherent explanation for its designation of that county. Catawba County v. Environmental Protection Agency, No. 05-1064, 39 ELR 20143 (D.C. Cir. July 7, 2009).


CWA, WETLANDS, JURISDICTION:



The Eighth Circuit upheld a lower court decision ordering a landowner who built a road on a parcel of wetlands without a permit to comply with a U.S. Army Corps of Engineers' restoration order requiring him to restore the wetlands to their pre-violation condition. The lower court properly concluded that the Corps has jurisdiction over the wetlands at issue. The Eighth Circuit held that the Corps has jurisdiction under CWA §309(b) if either the plurality's test or Justice Kennedy's substantial nexus test in Rapanos v. United States, 126 S. Ct. 2208 (2006), is met. Here, the Corps satisfied the substantial nexus test since the landowner's property was situated in a wetland adjacent to navigable-in-fact waters. In addition, the Corps' restoration order did not violate his equal protection rights. The landowner argued that because the Corps issued a permit to the county for a nearby road, it should have issued him a permit as well and then allowed him to mitigate the damage, rather than denying his permit application and ordering him to restore the site. But the circumstances surrounding the two roads are quite different and, thus, the Corps had a rational basis for treating the landowner and the county differently. Last, the lower court did not abuse its discretion in issuing a permanent injunction ordering the landowner to restore the wetlands to their pre-violation condition. United States v. Bailey, No. 08-1908, 39 ELR 20148 (8th Cir. July 9, 2009).


FEDERAL MINE SAFETY & HEALTH ACT, EXHAUSTION:



The Sixth Circuit dismissed a miner's petition for writ of mandamus directing the Secretary of Labor to promulgate lower limits for the mount of dust and silica allowed in the air in mines. The Federal Mine Safety and Health Act of 1977 authorizes the Secretary to promulgate mandatory air quality standards for U.S. mines, but the Labor Department has not promulgated new standards for dust and silica since 1980. The miner argued that the present standards are too high and that the Secretary has, therefore, violated her duty under the Mine Act to promulgate "improved" standards to protect the health of miners. But because the miner has yet to exhaust his administrative remedies under the Mine Act, his petition must be dismissed. In re Howard, No. 08-5799, 39 ELR 20144 (6th Cir. July 6, 2009).


EQUAL ACCESS TO JUSTICE ACT, FOIA, ATTORNEYS FEES:



The Eighth Circuit affirmed in part and reversed in part a lower court order granting an environmental group attorneys fees in their FOIA and APA lawsuit against the Department of Commerce for failing to disclose documents regarding the effects of livestock grazing on Upper and Middle Columbia River Steelhead. The court correctly awarded the group attorneys fees on its claim concerning the cut-off regulation used in processing requests under FOIA. However, the court should not have awarded the group fees on its remaining FOIA and APA claims since the Department of Commerce turned over the requested documents before the court entered its decision. Oregon Natural Desert Ass'n v. Locke, No. 06-35851, 39 ELR 20142 (9th Cir. July 8, 2009).


NEPA, ESA, NATIONAL FOREST SYSTEM:



A district court held that the USDA's 2008 National Forest System land management planning rule violates NEPA and the ESA. Although the USDA prepared an EIS prior to promulgating the 2008 rule, the EIS does not actually analyze the environmental effects of implementing the rule. Instead, the EIS repetitively insists that the rule will have no effect on the environment because it merely sets out the process for developing and revising land resource management plans and is removed from any foreseeable action that might affect the environment. The court has already rejected this reasoning in prior actions challenging earlier versions of the rule. In addition, it is undisputed that the USDA did not submit its biological assessment to the FWS or NMFS for their concurrence. Although the USDA engaged in correspondence with the wildlife agencies before it completed its assessment, the agencies did not issue a written concurrence with the USDA's finding that the 2008 rule would have no effect on endangered species. This is not sufficient to satisfy the ESA's requirements. The court therefore vacated the 2008 rule, enjoined the USDA from further implementing it, and remanded it to the USDA for further proceedings. In the meantime, the USDA must reinstate its 1982 or 2000 regulations. Citizens for Better Forestry v. U.S. Department of Agriculture, No. 08-1927, 39 ELR 20145 (N.D. Cal. June 30, 2009) (Wilken, J.).


SETTLEMENT AGREEMENTS, BREACH:



A district court ruled that BLM, which entered into a settlement agreement concerning its management of federal forests in the northwestern United States, did not violate that agreement by promulgating a revised resource management plan without initiating consultation with FWS or NOAA about the plan's impact on endangered or threatened species and their critical habitat. In revising the plan, BLM determined that the logging plan would have "no effect" on endangered and threatened species, thereby obviating the need for consultation under the ESA. A timber industry group party to the settlement agreement filed a motion to enforce the agreement, arguing that BLM breached the agreement's implied covenant of good faith by promulgating the revised plan without initiating consultation. But because there is no evidence of subjective bad faith, because BLM's "no effect" determination is not facially invalid, and because any consulting duty may have been satisfied, the group's theory of breach is too tenuous to support an enforcement order, especially when neither a direct challenge to the plan's validity nor the administrative record is before the court. American Forest Resource Council v. Caswell, No. 94-1031, 39 ELR 20147 (D.D.C. June 30, 2009) (Robertson, J.).


CAA, POWER PLANTS:



A district court dismissed, without prejudice, environmental group's CAA lawsuit challenging an energy company's plans to expand one of its coal-fired power plants. Four of the five plaintiffs in this action are also petitioners in an action pending before the North Carolina Office of Administrative Hearings. The issues raised and relief sought are either identical or essentially the same to those in their federal lawsuit. As a result, two separate and independent courts are now being asked to decide the same issue. This is an "unwise use of scarce judicial resources." Unnecessary federal intervention should not disrupt the orderly administration of state regulatory schemes. The state's administrative process is an adequate avenue to address the nature of the challenged permit at issue. The groups may file a challenge in federal court after the administrative review process has been completed. Southern Alliance for Clean Energy v. Duke Energy Carolinas, LLC, No. 1:08CV318, 39 ELR 20149 (W.D.N.C. July 2, 2009) (Thornburg, J.).


CAA, PERMITS, CARBON DIOXIDE:



A Georgia appellate court reversed a lower court decision invalidating a state environmental agency air quality permit allowing an energy company to construct a pulverized coal-fired electric power plant in southern Georgia. The lower court ruled that the permit violated the CAA and the Georgia Air Quality Act because, among other things, it failed to include a limit on the plant's carbon dioxide (CO2) emissions. But because neither the Georgia Act nor the CAA contain regulations controlling CO2 emissions, the permit was not required to contain a CO2 limitation and the lower court's ruling must be reversed. In addition, the lower court erred in holding that the CAA required consideration of "integrated gasification combined cycle" technology in the best available control technology (BACT) analysis, in rejecting the use of coarse particulate matter modeling to demonstrate that the plant's emissions would not cause or contribute to a violation of the NAAQS for fine particulate matter, and in ruling that the permit's BACT emissions limitations must be set by registered professional engineers. Longleaf Energy Associates, LLC v. Friends of the Chattahoochee, Nos. 09-0387, -0388, 39 ELR 20146 (Ga. Ct. App. July 7, 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 granted the California Air Resources Board's request for a waiver of CAA preemption to enforce its greenhouse gas emission standards for model-year 2009 and later motor vehicles. 74 FR 32744 (7/8/09).

  • EPA proposed NESHAPs for the asphalt processing and asphalt roofing manufacturing area source category based on generally available control technology or management practices. 74 FR 32822 (7/9/09).

  • EPA entered into a proposed administrative settlement under the CAA that requires the Agency to amend the NESHAP for gasoline distribution facilities, promulgated January 10, 2008, in response to a petition for review by the Alliance of Automobile Manufacturers. 74 FR 31273 (6/30/09).

  • SIP Approvals: Michigan (eight-hour ozone NAAQS, 2005 base-year emissions inventory, and 2020 motor vehicle emission budgets for the Detroit-Ann Arbor nonattainment area) 74 FR 30950 (6/29/09). Texas (volatile organic compound (VOC) control requirements and reasonably available control technology (RACT) requirements for the Beaumont/Port Arthur one-hour ozone serious nonattainment area) 74 FR 33146 (7/10/09).

  • SIP Proposals: California (Phase 3 reformulated gasoline regulations and diesel fuel test methods) 74 FR 33196 (7/10/09). Texas (VOC control requirements and RACT requirements for the Beaumont/Port Arthur one-hour ozone serious nonattainment area; see above for direct final rule) 74 FR 33200 (7/10/09).

HAZARDOUS & SOLID WASTE:



  • EPA entered into five administrative settlements under CERCLA for reimbursement of past U.S. response costs concerning the Davis Refining Superfund site in Tallahassee, Florida. 74 FR 31736 (7/2/09).

  • EPA Region 2 entered into a proposed de minimis administrative agreement under CERCLA that requires the town of Rhinebeck to pay $49,907.23 into a special account for past and future cleanup costs at the Consolidated Iron and Metal Co. Superfund site in Newburgh, New York. 74 FR 31273 (6/30/09).

  • EPA entered into a proposed administrative settlement under CERCLA that requires the settling parties to pay $357,000 in past and future U.S. response costs incurred at the Anderson-Calhoun Mine and Mill site in Leadpoint, Washington. 74 FR 31031 (6/29/09).

  • EPA gave final authorization to New York's hazardous waste management program, with limited exceptions. 74 FR 31380 (7/1/09).

  • EPA proposed giving final authorization to New York's hazardous waste management program, with limited exceptions; see above for direct final rule. 74 FR 31386 (7/1/09).

  • EPA proposed to grant a petition submitted by the Valero Refining Company to delist a certain sediment generated at its refinery in Memphis, Tennessee, from the lists of hazardous wastes. 74 FR 32838 (7/9/09).

  • EPA proposed to grant a petition submitted by the Occidental Chemical Corporation to delist a certain solid waste generated at its facility in Ingleside, Texas, from the lists of hazardous wastes. 74 FR 32846 (7/9/09).

MINING:



  • OSM proposed to approve an amendment to Utah's regulatory program under SMCRA concerning repeal dates for permit eligibility and revegetation requirements on lands eligible for remining. 74 FR 32089 (7/7/09).

NEPA:



  • The Department of Commerce published its list of categorical exclusions that do not require preparation of an EA or an EIS under NEPA. 74 FR 33204 (7/10/09).

PESTICIDES:



  • EPA released for public comment a proposed stipulated injunction that would require it to make determinations and initiate consultation with the FWS on the effects of certain pesticides on 11 endangered or threatened species in the greater San Francisco Bay area. 74 FR 31427 (7/1/09).

WATER:



  • The CEQ announced that it will revise the Economic and Environmental Principles and Guidelines for Water and Related Land Resources Implementation Studies as required by the Water Resources Development Act of 2007. 74 FR 31415 (7/1/09).

  • EPA proposed to reissue a general permit for gravel pit dewatering, construction dewatering, hydrostatic test water, mobile spill response, and stormwater discharges on the north slope of the Brooks Range in Alaska. 74 FR 31735 (7/2/09).

  • EPA Region 10 proposed issuance of an NPDES general permit for federal aquaculture facilities and aquaculture facilities in Indian Country in Washington. 74 FR 31425 (7/1/09).

  • EPA approved revisions to the public water system supervision programs for Massachusetts and Rhode Island. 74 FR 32605 (7/8/09).

  • EPA Region 2 made a tentative determination that adequate facilities for the safe and sanitary removal and treatment of sewage from all vessels are reasonably available for the South Shore Estuary Reserve, New York. 74 FR 31942 (7/6/09).

WILDLIFE:



  • FWS proposed to list the Georgia pigtoe mussel, interrupted rocksnail, and rough hornsnail as endangered under the ESA and designated approximately 160 miles in Alabama, Georgia, and Tennessee as critical habitat for the species. 74 FR 31114 (6/29/09).

  • FWS proposed to list the Casey's June beetle as endangered under the ESA and to designate approximately 777 acres in south Palm Springs, California, as critical habitat for the species. 74 FR 32857 (7/9/09).

  • FWS proposed to list the flying earwig Hawaiian damselfly and the Pacific Hawaiian damselfly as endangered under the ESA but has not yet designated critical habitat. 74 FR 32490 (7/8/09).

  • FWS proposed to list four species of birds from Colombia--the blue-billed curassow, the brown-banded antpitta, the Cauca guan, and the gorgeted wood-quail--and one bird species from Ecuador--the Esmeraldas woodstar--as endangered under the ESA. 74 FR 32308 (7/7/09).

  • FWS announced a 90-day finding on a petition to list the western U.S. population of the northern leopard frog as threatened under the ESA; the Agency found that listing may be warranted and initiated a 12-month status review. 74 FR 31389 (7/1/09).

  • FWS announced a 90-day finding on a petition to remove the Lost River sucker and the shortnose sucker as threatened and endangered under the ESA; the Agency found that removal is not warranted. 74 FR 30996 (6/29/09).

  • FWS announced its 90-day finding on a petition to list the coqui llanero as threatened or endangered under the ESA; the Agency found that listing may be warranted and initiated a status review. 74 FR 32510 (7/8/09).

  • FWS announced its 90-day finding on a petition to list the Susan's purse-making caddisfly as threatened or endangered under the ESA; the Agency found that listing may be warranted and initiated a status review. 74 FR 32514 (7/8/09).

  • FWS announced its 12-month finding on a petition to list a distinct population segment of the roundtail chub in the lower Colorado River basin as endangered or threatened under the ESA and to designate critical habitat; the Agency found that listing is warranted but precluded by higher priority actions and decided to defer critical habitat designation. 74 FR 32352 (7/7/09).

  • FWS initiated five-year status reviews of 23 southeastern species under the ESA. 74 FR 31972 (7/6/09).

  • NOAA-Fisheries announced availability of draft guidance on monitoring the recovery of Pacific Northwest salmon and steelhead listed under the ESA for Idaho, Oregon, and Washington. 74 FR 31008 (6/29/09).

DOJ NOTICES OF SETTLEMENT:



  • United States v. Rubright, No. 5:09-cv-2853 (E.D. Pa. June 25, 2009). Settling CERCLA defendants must pay $484,000 in U.S. response costs incurred at the Water Street Battery site in Shoemakersville, Pennsylvania, and must pay $1,000 to Pennsylvania to address lead contamination from using crushed battery casings as fill material. 74 FR 31465 (7/1/09).

  • United States v. Saturn Chemicals, Inc., No. 08-3537 (D.N.J. June 25, 2009). Settling CERCLA defendants must pay $550,000, plus interest, to the United States and two third-party defendants must pay a total of $200,000, plus interest, to resolve their claims. 74 FR 31465 (7/1/09).

  • In re Fleming Cos., No. 03-10945 (MFW) (Bankr. Del. June 25, 2009). Settling RCRA debtors must perform or pay for closure and corrective action up to a maximum cost of $150,000 for required work at two USTs at the Food 4 Less facility in Chandler, Arizona. 74 FR 31465 (7/1/09).

  • United States v. JLG Enterprises, No. 09-00708 (D. Minn. June 23, 2009). Settling CWA defendants that discharged pollutants without a permit into waters of the United States must pay a civil penalty and must restore the impacted areas and/or perform mitigation. 74 FR 31312 (6/30/09).

  • United States v. City of West Point, No. 08-00293 (D. Neb. June 12, 2009). A settling CWA defendant must pay a $75,000 civil penalty to both the United States and the state of Nebraska and must dismiss with prejudice its cross-claims against the city of West Point, Nebraska. 74 FR 31312 (6/30/09).

  • United States v. City of Duluth, No. 09-cv-1590 (D. Minn. June 23, 2009). Settling CWA defendants must each pay a $106,000 civil penalty to the United States, must each pay a $94,000 civil penalty to Minnesota, and must complete a variety of programs and capital improvements at an expected cost of $130 million by 2016 for wastewater discharges from a sanitary sewer system. 74 FR 31048 (6/29/09).

  • United States v. Neapolitan, No. 4:09CV1396 (N.D. Ohio June 18, 2009). A settling Residential Lead-Based Paint Hazard Reduction Act defendant must pay a $2,000 administrative penalty, must certify that it is complying with residential lead paint notification requirements, and must submit a plan for replacement of all windows that are not certified lead-based paint free. 74 FR 31048 (6/29/09).

  • In re ASARCO LLC, No. 05-21207 (Bankr. S.D. Tex. June 15, 2009). A settling CERCLA defendant must provide the United States with an allowed general unsecured claim of $3 million for U.S. response costs incurred at the Asarco Hayden Plant site in Hayden, Arizona. 74 FR 31049 (6/29/09).

  • United States v. Alcatel-Lucent USA Inc., No. 09-CV-2902 (E.D. Pa. June 29, 2009). Settling CERCLA defendants must pay $603,047.49, plus interest, in past U.S. response costs incurred at the Heleva Landfill site in North Whitehall Township, Pennsylvania, and must pay future U.S. response costs incurred at the site. 74 FR 33278 (7/10/09).

  • In re G-1 Holdings, Inc., Nos. 01-30135 et al. (Bankr. D.N.J. July 2, 2009). A settling CAA, CERCLA, FWPCA, and RCRA defendant must establish and fund a custodial trust to secure its asbestos mining facilities in Eden and Lowell, Vermont; must conduct monitoring and abatement work in Vermont at a cost of up to $7.75 million; must reimburse the United States for remediation at the Vermont site up to $300 million paid at 8.6 cents on the dollar; must pay U.S. and Vermont natural resource damages totaling $850,000; and must pay $104.615 in past and future U.S. response costs and NOAA natural resource damages at nine generator sites. 74 FR 33278 (7/10/09).

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. 2454 (American Clean Energy and Security Act of 2009), which would reduce global warming pollution and transition to a clean energy economy, was passed by the House. 155 Cong. Rec. H7451 (daily ed. June 26, 2009).

  • H.R. 1945 (Tule River Tribe Water Development Act), which would require the Secretary of the Interior to conduct a study on the feasibility and suitability of constructing a storage reservoir, outlet works, and a delivery system for the Tule River Indian Tribe of the Tule River Reservation in the State of California to provide a water supply for domestic, municipal, industrial, and agricultural purposes, was passed by the House. 155 Cong. Rec. H775 (daily ed. July 8, 2009).

Committee Action



  • S. 1393 (Department of Energy National Security Act for Fiscal Year 2010) was reported by the Committee on Armed Services. 155 Cong. Rec. S7138 (daily ed. July 6, 2009). The bill would authorize appropriations for fiscal year 2010 for defense activities of DOE.

  • H.R. 2996 (Department of the Interior and Environment) was reported by the Committee on Appropriations. H. Rep. No. 111-38, 155 Cong. Rec. S7192 (daily ed. July 7, 2009). The bill would make appropriations for the DOI, EPA, and related agencies for the fiscal year ending September 30, 2010.

Bills Introduced



  • S. 1395 (Crapo, R-Idaho) (hunting) would amend the Marine Mammal Protection Act of 1972 to allow importation of polar bear trophies taken in sport hunts in Canada before the date on which the polar bear was determined to be a threatened species under the ESA. 155 Cong. Rec. S7138 (daily ed. July 6, 2009). The bill was referred to the Committee on Commerce, Science, and Transportation.

  • S. 1396 (Collins, R-Me.) (fuel) would direct the Administrator of the U.S. Agency for International Development to carry out a pilot program to promote the production and use of fuel-efficient stoves engineered to produce significantly less black carbon than traditional stoves. 155 Cong. Rec. S7138 (daily ed. July 6, 2009). This bill was referred to the Committee on Foreign Relations.

  • S. 1397 (Klobuchar, D-Minn.) (recycling) would authorize the Administrator of EPA to award grants for electronic device recycling research, development, and demonstration projects. 155 Cong. Rec. S7138 (daily ed. July 6, 2009). The bill was referred to the Committee on Environment and Public Works.

  • S. 1399 (Feinstein, D-Cal.) (greenhouse gas) would amend the Commodity Exchange Act to establish a market for the trading of greenhouse gases. 155 Cong. Rec. S7138 (daily ed. July 6, 2009). The bill was referred to the Committee on Agriculture, Nutrition, and Forestry.

  • S. 1408 (Menendez, D-N.J.) (energy) would amend the Internal Revenue Code of 1986 to encourage alternative energy investments and job creation. 155 Cong. Rec. S7261 (daily ed. July 8, 2009). The bill was referred to the Committee on Finance.

  • S. 1413 (Kerry, D-Mass.) (parks) would amend the Adams National Historical Park Act of 1998 to include the Quincy Homestead within the boundary of the Adams National Historical Park. 155 Cong. Rec. S7261 (daily ed. July 8, 2009). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 1417 (Udall, D-Colo.) (water) would amend the Reclamation Projects Authorization and Adjustment Act of 1992 to require the Secretary of the Interior, acting through the Bureau of Reclamation, to remedy problems caused by a collapsed drainage tunnel in Leadville, Colorado. 155 Cong. Rec. S7261 (daily ed. July 8, 2009). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 1418 (Udall, D-Colo.) (parks) would direct the Secretary of the Interior to carry out a study to determine the suitability and feasibility of establishing Camp Hale as a unit of the National Park System. 155 Cong. Rec. S7261 (daily ed. July 8, 2009). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 1421 (Levin, D-Mich.) (wildlife) would amend section 42 of title 18, U.S. Code, to prohibit the importation and shipment of certain species of carp. 155 Cong. Rec. S7317 (daily ed. July 9, 2009). The bill was referred to the Committee on Environment and Public Works.

  • S. 1428 (Whitehouse, D-R.I.) (TSCA) would amend TSCA to phase out the use of mercury in the manufacture of chlorine and caustic soda. 155 Cong. Rec. S7317 (daily ed. July 9, 2009). The bill was referred to the Committee on Environment and Public Works.

  • S. 1436 (Dorgan, D-N.D.) (appropriations) would make appropriations for energy and water development and related agencies for the fiscal year ending September 30, 2010. 155 Cong. Rec. S7718 (daily ed. July 9, 2009). The bill was referred from the Committee on Appropriations.

  • H.R. 3083 (Boccieri, D-Ohio) (energy) would require the Secretary of Commerce to establish a program for the award of grants to states to establish revolving loan funds for small and medium-sized manufacturers to improve energy efficiency and produce clean energy technology. 155 Cong. Rec. H7703 (daily ed. June 26, 2009). The bill was referred to the Committee on Science and Technology.

  • H.R. 3084 (Baird, D-Wash.) (tribal recognition) would restore federal recognition to the Chinook Nation. 155 Cong. Rec. H7703 (daily ed. June 26, 2009). The bill was referred to the Committee on Natural Resources.

  • H.R. 3086 (Bordallo, D-Guam) (conservation) would coordinate authorities within the DOI and within the federal government to enhance the United States' ability to conserve global wildlife and biological diversity. 155 Cong. Rec. H7703 (daily ed. June 26, 2009). The bill was referred to the Committee on Natural Resources and the Committee on Foreign Affairs.

  • H.R. 3097 (Inslee, D-Wash.) (land use) would provide for equitable compensation to the Spokane Tribe of Indians of the Spokane Reservation for the use of tribal land for the production of hydropower by the Grand Coulee Dam. 155 Cong. Rec. H7704 (daily ed. June 26, 2009). The bill was referred to the Committee on Natural Resources.

  • H.R. 3105 (Nunes, R-Cal.) (ESA) would provide that operations of the Central Valley Project shall not be restricted pursuant to any biological opinion issued under the ESA if such restrictions would result in levels of export less than the historical maximum level of export. 155 Cong. Rec. H7704 (daily ed. June 26, 2009). The bill was referred to the Committee on Natural Resources.

  • H.R. 3106 (Price, D-N.C.) (Solid Waste Disposal Act) would amend the Solid Waste Disposal Act to direct the Administrator of EPA to establish a hazardous waste electronic manifest system. 155 Cong. Rec. H7704 (daily ed. June 26, 2009). The bill was referred to the Committee on Energy and Commerce.

  • H.R. 3113 (Rahall, D-W. Va.) (Elk River) which would amend the Wild and Scenic Rivers Act to designate a segment of the Elk River in the state of West Virginia for study for potential addition to the National Wild and Scenic Rivers System. 155 Cong. Rec. H7740 (daily ed. July 7, 2009). This bill was referred to the Committee on Natural Resources.

  • H.R. 3143 (Rehberg, R-Mont.) (Fort Peck Reservation Rural Water System Act) would amend the Fort Peck Reservation Rural Water System Act of 2000 to extend the authorization of appropriations for that Act. 155 Cong. Rec. H7945 (daily ed. July 9, 2009). The bill was referred to the Committee on Natural Resources.

  • H.R. 3165 (Tonko, D-N.Y.) (energy) would provide for a program of wind energy research, development, and demonstration. 155 Cong. Rec. H7946 (daily ed. July 9, 2009). The bill was referred to the Committee on Science and Technology.

  • H. Res. 599 (Markey, D-Mass.) (National Parks) would honor the Minute Man National Historical Park on the occasion of its 50th Anniversary. 155 Cong. Rec. H7705 (daily ed. June 26, 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 Idaho Montana
California Illinois New Jersey
Colorado Indiana New Mexico
Connecticut Louisiana New York
Florida Massachusetts North Dakota
Georgia Minnesota  

ALASKA


Air:



Water:



  • The Department of Environmental Conservation seeks public comment on proposed amendments to Alaska Admin. Code tit. 18 §72, Wastewater Disposal. The amendments would eliminate the exemption for fees on facilities not in operation; add an annual fee for sewage lagoons; add new fee categories for fire training centers, commercial car washes, Arctic oil and gas facilities, and underground injection control wells; and add a late fee that reflects the direct cost of processing a late fee. Comments are due July 20, 2006. See http://notes4.state.ak.us/pn/pubnotic.nsf/cc52605f7c156e7a8925672a0060a91b/c5f322c7d3b5a2e8892575d80061ded4?OpenDocument

CALIFORNIA


General:



  • The Natural Resources Agency will hold two public hearings on proposed amendments to Cal. Code Regs. tit. 14, §§15064, 15064.7, 15065, 15086, 15093, 15125, 15126.2, 15126.4, 15130, 15150, and 15183, the California Environmental Quality Act (CEQA). The proposed action is intended to adopt and amend portions of the CEQA Guidelines to explain and implement the requirements of CEQA, and in particular the requirements to analyze and mitigate, if necessary, the effects of greenhouse gas emissions. The hearings will be August 18 and 20, 2009. See http://www.oal.ca.gov/pdfs/notice/27z-2009.pdf (pp. 1045-052)

COLORADO


Air:



  • The Air Quality Control Commission will hold a public hearing to consider the Denver Regional Council of Government's joint interim determination of conformity for amendments to their 2035 Regional Transportation Plan and the 2008-2013 Transportation Improvement Program with the SIP for Air Quality. The hearing will be held August 20, 2009. See http://www.cdphe.state.co.us/op/aqcc/hearingnotices/2009/DRCOG%20082009.pdf

CONNECTICUT


Air:



  • The Department of Environmental Protection will hold a public hearing on proposed amendments to Conn. Agencies Regs. §22a-174, SIP for Air Quality. The amendments add definitions of "brush," "distillate oil," and "biodiesel fuel;" revise the definitions of "incinerator" and "residual oil;" deletes the definition of "multiple-chamber incinerator;" specify that small boilers, heaters, drying ovens, and furnaces may combust biodiesel fuel blends when operating under Conn. Agencies Regs. §§22a-174-3b and 22a-174-3c; replace the definition of "affected unit" with a definition independent of a reference to another regulation but describing the same group of emissions units; and correct a formula allocating allowances from the energy efficiency and renewable energy set-aside. The hearing will be held July 30, 2009. See http://www.ct.gov/dep/cwp/view.asp?A=2586&Q=441986

FLORIDA


Water:



  • The Suwannee River Water Management District proposed amendments to Fla. Admin. Code Ann. r. 40B-1.704, Bond. The purpose of the rule development is to require a bond or other form of surety for as-built certification forms for environmental resource permits. See https://www.flrules.org/gateway/ruleNo.asp?id=40B-1.704

  • The Suwannee River Water Management District proposed amendments to Fla. Admin. Code Ann. r. 40B-4.1090, Publications and Agreements Incorporated by Reference. The effect of the rule development will incorporate the new flood insurance studies for the Suwannee River and its tributaries. See https://www.flrules.org/gateway/ruleNo.asp?id=40B-4.1090

  • The Department of Environmental Protection is initiating rulemaking to adopt Fla. Admin. Code Ann. r. 62-304.310, Apalachicola River TMDLs; 62-304.315, Chipola River Basin TMDLs; 62-304.515, Kissimmee River Basin TMDLs; 62-304.605, Alafia River TMDLs; 62-304.610, Hillsborough River Basin TMDLs; 62-304.615, Manatee River Basin TMDLs; 62-304.620, Little Manatee River TMDLs; 62-304.805, Charlotte Harbor TMDLs. See https://www.flrules.org/gateway/ruleNo.asp?id=62-304.310

  • The Department of Environmental Protection is initiating rulemaking to adopt Fla. Admin. Code Ann. r. 62-304.505, Middle St. Johns River TMDLs. See https://www.flrules.org/gateway/ruleNo.asp?id=62-304.505

  • The Department of Environmental Protection will hold a rule development workshop on proposed amendments to Fla. Admin. Code Ann. r. 62-625.100, Scope/Intent/Purpose; 62-625.110, Applicability; 62-625.200, Definitions; 62-625.400, Pretreatment Standards: Prohibited Discharges; 62-625.410, Pretreatment Standards: Categorical Standards; 62-625.420, Removal Credits; 62-625.500, Pretreatment Program Development and Submission Requirements; 62-625.510, Pretreatment Program Review and Approval Procedures; 62-625.540, Modification of Pretreatment Programs; 62-625.600, Reporting Requirements for Control Authorities and Industrial Users; 62-625.700, Fundamentally Different Factors Variance; 62-625.820, Net/Gross Calculation; and 62-625.880, Tables. The amendments would incorporate revisions made to 40 CFR parts 122, 146, and 403, which are associated with pretreatment program requirements. The workshop will be held July 22, 2009. See https://www.flrules.org/gateway/ruleNo.asp?id=62-625.100

  • The Department of Environmental Protection will hold a public hearing on proposed amendments to Fla. Admin. Code Ann. r. 62-304.800, Caloosahatchee River Basin TMDLs. The amendments adopt TMDLs and allocations for total nitrogen for Tidal Caloosahatchee River. The hearing will be held July 16, 2009. See https://www.flrules.org/gateway/ruleNo.asp?id=62-304.800

  • The South Florida Water Management District will hold a public hearing on proposed amendments to Fla. Admin. Code Ann. r. 40E-400.315, No Notice General Permit for Activities in Uplands. The amendments would remove partial delegation to Collier County for projects less than 40 acres total land area. Permit applicants in Collier County will now need to submit an application to the South Florida Water Management District for projects less than 40 acres that do not qualify for a No Notice General Permit. The hearing will be held August 18, 2009. See https://www.flrules.org/gateway/ruleNo.asp?id=40E-400.315

  • The Suwannee River Water Management District has proposed amendments to Fla. Admin. Code Ann. r. 40B-1.703, Procedures for Consideration of Permit Applications, and 40B-1.709, Suspension, Revocation, and Modification of District Permits. This proposed rule development will revise the existing rule language by addressing a new type of water use permit, a general permit by rule, that may be obtained and the procedural requirements. See https://www.flrules.org/gateway/ruleNo.asp?id=40B-1.703

Wildlife:



  • The St. Johns River Water Management District will hold a public hearing on proposed amendments to Fla. Admin. Code Ann. r. 40C-4.021, Definitions, and 40C-4.091, Publications Incorporated by Reference. The amendments reflect that the bald eagle, which is still protected under the federal Bald and Golden Eagle Protection Act, is no longer classified by the Florida Fish and Wildlife Conservation Commission (FWC) as a threatened species under its imperiled species regulations; continue to provide to the bald eagle protections afforded by the District's rules to wildlife species classified by FWC as endangered, threatened, or species of special concern; and update rule references to listed wildlife and plants in the definitions of "listed species," "endangered species," and "threatened species." The hearing will be held August 11, 2009. See https://www.flrules.org/gateway/ruleNo.asp?id=40C-4.021

GEORGIA


Toxic Substances:



  • The Department of Natural Resources will hold a public hearing on proposed amendments to Ga. Comp. R. & Regs. 391-3-15, UST Management. The amendments change the definition of "operator," clarify the necessary information required from owners and operators for annual tank registration, and expand requirements for maintenance of records to include operator training and examination. The hearing will be held July 14, 2009. Comments are due July 31, 2009. See http://www.gaepd.org/environet/15/

IDAHO


Air:



  • The Department of Environmental Quality will hold a public hearing on proposed amendments to Idaho Admin. Code r. 58.01.01.725, Rules for Sulfur Content of Fuels. The proposed revisions would allow for higher sulfur content fuels to be used in fuel burning equipment in Idaho as long as the resulting emissions are at levels equal to or lower than those provided for in the existing rules. The hearing will be held August 4, 2009. See http://www.deq.idaho.gov/rules/air/58_0101_0902_proposed.cfm

ILLINOIS


Air:



  • The Pollution Control Board will hold a public hearing on proposed adoption of new rule 35 Ill. Code R. 217.751, Nitrogen Oxides Emissions. The rulemaking proposes to sunset the provisions of the Nitrogen Oxide Trading Program by adding a new Section 217.751 to sunset the rules beginning with the 2009 ozone control season. The hearing will be held on July 23, 2009. See http://www.cyberdriveillinois.com/departments/index/register/register_volume33_issue26.pdf (pp. 8880-89)

INDIANA


Air:



Hazardous & Solid Waste:



  • The Solid Waste Management Board has rescheduled a public hearing on proposed amendments to 329 Ind. Admin. Code 5-1-2, 5-1-3, and 5-1-4, and addition of 329 Ind. Admin. Code 5-3, concerning environmental impact statements for major state actions. The hearing will be held September 15, 2009. See http://www.in.gov/legislative/iac/irtoc.htm?view=list&lsadocnum=08-209

Water:



  • The Water Pollution Control Board will hold a public hearing on proposed amendments to 327 IAC 8, Public Water Supply. These rule changes include amendments and new rules concerning the Stage 2 Disinfectants and Disinfection Byproducts Rule, Long-Term 2 Enhanced Surface Water Treatment Rule, Ground Water Rule, and Lead and Copper Rule Short-Term Regulatory Revisions. The hearing will be held August 12, 2009. See http://www.in.gov/legislative/iac/irtoc.htm?view=list&lsadocnum=08-198

LOUISIANA


Air:



  • The Department of Environmental Quality adopted amendments to La. Admin. Code tit. 33:III §§111, 2123, and 2143, Control Technology Guidelines. This rule reflects changes made to the lithographic printing materials and letterpress printing materials Control Technology Guidelines (CTG) and the flexible package printing materials CTG that were published in the Federal Register. See http://www.deq.louisiana.gov/portal/portals/0/planning/regs/pdf/AQ296fin-technical_amendments.pdf

  • The Department of Environmental Quality will hold a public hearing on proposed amendments to La. Admin. Code tit. 33:III§§2201 and 2202, Control of Emissions of Nitrogen Oxides. The amendments provide a new contingency plan to further control emissions of nitrogen oxides from facilities located in the Baton Rouge area and the Region of Influence (the parishes of East Feliciana, Pointe Coupee, St. Helena, and West Feliciana) in the event that U.S. EPA notifies the Department that the Baton Rouge area has exceeded the 1997 eight-hour NAAQS for ozone and contingency has been triggered. The hearing will be held July 28, 2009. See http://www.deq.louisiana.gov/portal/portals/0/planning/regs/pdf/AQ305pro.pdf

Hazardous & Solid Waste:



  • The Department of Environmental Quality adopted emergency amendments to La. Admin. Code tit. 33:IX§7301, Sewage Sludge and Biosolids Use or Disposal. The rule allows the department to approve the registrations of transporters of sewage sludge who meet the requirements for registration except that they have designated receiving facilities that have not yet been permitted by the Office of Environmental Services, Water Permits Division. The rule gives the unpermitted facilities four months to submit applications. See http://www.deq.louisiana.gov/portal/portals/0/planning/regs/pdf/WQ078E.pdf

General:



  • The Department of Environmental Quality adopted amendments to La. Admin. Code tit. 33:I §3931; 33.III §§506, 507, 2160, 3003, 5116, 5122, 5311, and 5901; 33:V §3099; 33:IX §§2301, 4901, and 4903; and 33:XV §1599, Incorporation by Reference for 2008. This incorporation by reference rule will keep Louisiana's regulations current with their federal counterparts. See http://www.deq.louisiana.gov/portal/portals/0/planning/regs/pdf/mm011ftfin.pdf

MASSACHUSETTS


Air:



  • The Department of Environmental Protection adopted amendments to 310 Mass. Code Regs. 7.71, Reporting of Greenhouse Gas (GHG) Emissions. The amendments require the reporting of all GHG emissions associated with electricity sales in Massachusetts by retail sellers, provide for voluntary reporting of GHG emissions, and require verification of reported GHG emissions. See http://www.mass.gov/dep/air/laws/regulati.htm#771

General:



  • The Department of Environmental Protection adopted amendments to 310 Mass. Code Regs. 4.00, Timely Action Schedule and Fee Provisions; 310 Mass. Code Regs. 9.00; Waterways Regulations; and 310 Mass. Code Regs. 40.0000, Massachusetts Contingency Plan of the Waste Site Cleanup Program. The amendments delete, add, increase, and decrease fees and otherwise amend permit or Annual Compliance Fee categories for environmental programs including Water Pollution Control Title 5, Water Supply, Watershed Management, Wetlands and Waterways, Environmental Laboratory Certification, Air Quality, Hazardous Waste, Solid Waste, Waste Site Cleanup, and Mercury Management. See http://www.mass.gov/dep/service/online/fees.htm#reg

Hazardous & Solid Waste:



  • The Department of Environmental Protection adopted amendments to 310 Mass. Code Regs. 19.303, Class II Recycling Programs. The amendments establish the requirement for a solid waste facility permit modification that specifies how a waste-to-energy facility will obtain an approved recycling program. See http://www.mass.gov/dep/recycle/laws/regulati.htm#wec

MINNESOTA


Water:



MONTANA


Air:



  • The Department of Environmental Quality will hold a public hearing on proposed amendments to Mont. Admin. RR. 17.8.501, 17.8.504, 17.8.505, and 17.8.514, pertaining to definitions, permit application fees, operation fees, and open burning fees. The hearing will be held July 27, 2009. See http://deq.mt.gov/dir/legal/Notices/17-286pro.pdf

Water:



  • The Department of Environmental Quality will hold a public hearing on proposed amendments to Mont. Admin. RR. 17.30.702, 17.36.101, 17.36.102, 17.36.103, 17.36 104, 17.36.323, 17.36.345, 17.36.911, 17.36.912, 17.36.914, 17.36.916, 17.36.918, 17.36.922, 17.38.101, and 17.55.102, pertaining to Gray Water Reuse. The hearing will be held July 24, 2009. See http://deq.mt.gov/dir/legal/Notices/17-288pro.pdf

NEW JERSEY


Hazardous & Solid Waste:



NEW MEXICO


Air:



  • The New Mexico Environment Department (NMED) will hold a public hearing on proposed amendments to N.M. Code R. §20.2.89, Qualified Generating Facility Certification. The amendments add language that would allow the NMED to evaluate solar photovoltaic and geothermal energy projects to determine whether they meet the requirements of a qualified energy facility in order to qualify for certain tax credits. The NMED would then issue a certification for projects that qualify and deny certifications to projects that do not. The hearing will be held August 13, 2009. See http://www.nmcpr.state.nm.us/nmregister/xx/xx12/Environotice.pdf

NEW YORK


Air:



  • The Department of Environmental Quality proposed amendments to N.Y. Comp. Codes R. & Regs. tit. 6, §235, Consumer Products. The amendments would revise the existing consumer products regulation to reduce the amount of volatile organic compounds released into the atmosphere from consumer products. See http://www.dec.ny.gov/regulations/55094.html

NORTH DAKOTA


Water:



  • The Department of Health will hold a public hearing on proposed amendments to N.D. Admin. Code 33-17, Public Water Systems. The amendments relate to the Long-Term 2 Enhanced Surface Water Treatment Rule, Stage 2 Disinfectants and Disinfection Byproducts Rule, and the Ground Water Rule. The hearing will be held July 27, 2009. See http://www.ndhealth.gov/PublicComment/PWSNoticeOfIntent20090727.pdf

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


INTERNATIONAL

G8 AGREES BIG GREENHOUSE GAS EMISSIONS CUTS



The Group of Eight (G8) industrialized countries have agreed to more stringent cuts in greenhouse gas emissions than ever before, but big developing economies are unlikely to join them in doing so, reported Financial Times. The G8 leaders pledged at their summit in Italy last week to take on the lion's share of the emissions reductions that scientists say are needed to tackle climate change, with cuts of 80% by 2050 for developed countries. This would contribute to a hoped-for target of halving emissions globally by the same date. They also resolved to try to hold global temperature rises to no more than 2°C above pre-industrial levels, which scientists regard as the limit of safety. This is the first time that such a target has been formally adopted in a leading international forum. For the full story, see http://www.ft.com/cms/s/0/bb5ad6a0-6bf4-11de-9320-00144feabdc0.html.


PROJECT TO "GROW CARBON SINKS"



Ambitious plans to grow 24 million trees to soak up carbon dioxide and restore the rainforest are underway in Ghana. The first million seedlings are being planted in a pilot scheme in an area that has been heavily logged in recent years. The trees are all tropical hardwoods, mostly indigenous, and it is believed this project could eventually become the largest of its kind. It comes amid mounting concern about the impact of deforestation on climate change--a major theme at this December's United Nations conference in Copenhagen. Ghana has lost an estimated four-fifths of its rainforest in the past 50 years and tropical deforestation globally is estimated to contribute nearly one-fifth of all greenhouse gas emissions. For the full story, see http://news.bbc.co.uk/go/pr/fr/-/2/hi/science/nature/8139351.stm.


COSTA RICA: THE "HAPPIEST" AND "GREENEST"



Costa Rica is the happiest place on earth, and one of the most environmentally friendly, according to a new survey by a British nongovernmental group, although an Australian expert says the survey is flawed with "magical thinking." The New Economics Foundation (NEF) looked at 143 countries that are home to 99% of the world's population and devised an equation that weighed life expectancy and people's happiness against their environmental impact. By that formula, Costa Rica is the happiest, greenest country in the world, just ahead of the Dominican Republic. Latin American countries scored well in the Happy Planet Index, occupying nine of the top 10 spots. Costa Rica made the top of the list because of its small "ecological footprint" combined with its people's life expectancy and happiness. Costa Ricans live slightly longer than Americans and report much higher levels of life satisfaction, and yet have a footprint that is less than a quarter the size--99% of its energy comes from renewable sources. At 78.5 years, they have the second-highest average life expectancy of the New World (second only to Canada), and 85% of the country's residents report they are happy and satisfied with their lives. For the full story, see http://www.abc.net.au/science/articles/2009/07/06/2618261.htm. See also http://in.reuters.com/article/entertainmentNews/idINIndia-40759020090702.


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


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