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Weekly Update Volume 39, Issue 22

08/03/2009

LITIGATION

NUCLEAR POWER PLANTS, THREATS:



The Ninth Circuit denied a petition for review of the NRC's refusal to include the threat of air attacks in its revised "design basis threat" rule, initially promulgated to protect nuclear power reactors from industrial sabotage. In March 2007, NRC revised the rule to increase the range of threats included within the rule's scope, including attacks by multiple groups through multiple entry points, individuals willing to kill or be killed, water vehicles and water-based vehicle bomb assaults, and cyber attacks. Although Congress directed NRC to "consider" air-based attacks in revising the rule, the NRC ultimately determined that the threat of an air-based attack was beyond the rule's scope. Due to NRC's failure to include air-based attacks in the rule, petitioners filed suit. In promulgating the rule, NRC reasonably concluded that the rule's scope only reaches those threats that a private force can reasonably be expected to defend against. Applying this standard of reasonable expectation, the NRC did not act arbitrarily nor capriciously in concluding that air-based threats were beyond the scope of the rule. When facing an attack from a vehicle, a private force can engage those persons who seek to intrude upon the facility. The same cannot be said of air attacks. Moreover, the Atomic Energy Act requires the NRC to ensure that the operation of nuclear facilities "will provide adequate protection to the health and safety of the public." Here, the NRC adequately explained that the public health and safety was adequately protected through mitigation measures and active defense by other federal agencies. In addition, NRC did not err in failing to prepare an EIS under NEPA. Public Citizen v. Nuclear Regulatory Commission, Nos. 07-71868, -72555, 39 ELR 20164 (9th Cir. July 24, 2009).


NATIVE AMERICANS, TRUST FUND ACCOUNTS:



The D.C. Circuit held that DOI, which breached its fiduciary duties to Individual Indian Money trust account beneficiaries, must conduct an accurate accounting of those funds. The district court correctly held that the DOI breached its duty and that the American Indian Trust Fund Management Reform Act of 1994 required a full accounting of those funds. But it erred in holding that accounting for the funds was impossible because the government could not "achieve an accounting that passes muster as a trust accounting" given inadequate funding from Congress. The statute gives the plaintiff class a right to an accounting. Sitting in equity, the district court has the authority to approve a plan that efficiently uses limited government resources to achieve that goal. Accounting for closed accounts, dealing with probate and probate regulations, and considering the impact of the Individual Indian Money trust on a host of heirs and creditors could needlessly further complicate an already complicated process. But the purpose of an equitable accounting is for the DOI to concentrate on picking the low-hanging fruit. The "theoretically perfect" must not "render impossible the achievable good." Cobell v. Salazar, No. 08-5500, 39 ELR 20163 (D.C. Cir. July 24, 2009).


CAA, DILIGENT PROSECUTION:



A district court dismissed a citizen group's CAA lawsuit against a fossil-fuel-fired power plant for alleged permit, SIP, and new source performance standard violations. The group initiated suit after it concluded that the state environmental agency's negotiated settlement with the power plant did not constitute diligent prosecution of the alleged violations. The relevant test to determine if a state enforcement action qualifies as diligent prosecution is whether the prosecution is "totally unsatisfactory." In addition, the court must presume a state's diligent prosecution of a defendant absent persuasive evidence that the state has engaged in conduct that could be considered dilatory, collusive, or otherwise in bad faith. Based on this standard, the settlement constitutes a diligent prosecution. The fact that the group would have preferred more stringent terms that those negotiated by the agency is immaterial. Accordingly, the group's suit is barred by CAA §304(b)(1)(B). Citizens for Clean Power v. Indian River Power, LLC, No. 09-125, 39 ELR 20168 (D. De. July 23, 2009) (Robinson, J.).


CERCLA, PARENT LIABILITY:



A district court, on motions for summary judgment, held that defendant companies could not be held liable under CERCLA for contamination on property owned by its subsidiary. The plaintiff, successor-in-interest to one of the operable units at the site, argued that one of the companies is directly liable for costs incurred at the site based on the company's assumption of the environmental liabilities of its subsidiary. But plaintiff was not a party or an intended beneficiary of their assumption agreement and, thus, has no basis to assert any rights or claims under that agreement. Even if plaintiff had standing to enforce the agreement, there is no mention in the agreement of any assumption of the subsidiary's liabilities. Nor was a second defendant company directly liable as an operator of the site. The company's role in facilitating access to the site for remediation activities by plaintiff and other third parties does not qualify as managing, directing or conducting operations specifically related to pollution. Plaintiff also contends that the defendant companies have derivative liability for their subsidiary's environmental liabilities because the veil between the companies and the subsidiary must be pierced. But the evidence presented is not sufficient to create an issue of fact as to whether the defendant companies have engaged in any kind of fraud or abuse of the corporate form such that they should be held derivatively liable for their subsidiary. ITT Corp. v. BorgWarner, Inc., No. 05-CV-674, 39 ELR 20169 (W.D. Mich. July 22, 2009) (Bell, J.).


CERCLA, INVESTIGATION COSTS:



A district court dismissed a defendant company's motions for summary judgment on claims filed against it for recovery of environmental response costs incurred during the plaintiff's investigation of a Superfund site. The case involves a Superfund site that includes three operable units. The plaintiff is the successor-in-interest to operable unit one, and defendant formerly used operable unit two. The defendant argued that it did not cause a release or threatened release that caused the plaintiff to incur any response costs. But there is sufficient evidence to create a question of fact on this issue. The defendant also argued that it is also entitled to summary judgment because the plaintiff voluntarily expanded the scope of its investigation beyond what was required pursuant to the administrative order on consent (AOC) it entered into with EPA. But even if some of the investigation conducted by plaintiff went beyond the requirements of the AOC, that would not necessarily mean that the investigation was not necessary or consistent with the national contingency plan. Whether plaintiff's costs were necessary and consistent is an issue of fact for trial. The defendant also moved for partial summary judgment on claims that the investigation costs are divisible. But given the fact that much of the defendant's evidence in support of divisibility is found in its reply brief rather than in its original motion, the motion was denied so that the evidentiary record can be more fully developed. ITT Corp. v. BorgWarner, Inc., No. 05-CV-674, 39 ELR 20170 (W.D. Mich. July 29, 2009) (Bell, J.).


CERCLA, RCRA, RIPENESS:



The Ninth Circuit dismissed as unripe property owner's CERCLA and RCRA claims against the former owners for the costs of removing lead and other pollutants deposited on the land, which had been used as a shooting range. The owner's asserted clean-up costs are speculative and were calculated without regard to the requirements of the national contingency plan. Moreover, no public agency has indicated the need for remediation of the subject property, and the owner failed to show that the property currently poses an imminent and substantial endangerment to health or the environment. Accordingly, the case is not ripe for judicial review. Otay Land Co. v. United Enterprises Ltd., Nos. 06-56132 et al., 39 ELR 20166 (9th Cir. July 22, 2009).


NEPA, MOTION TO INTERVENE:



The Tenth Circuit held that the owner of an underground coal mine may intervene in an environmental group's NEPA action concerning the U.S. Forest Service's approval of venting of methane gas from a mine. The lower court denied the motion, finding that the owner failed to show either that the government defendants would not adequately represent the mine's interests or that its interests "as a practical matter" would be impaired or impeded by the litigation. But the owner has a direct economic stake in the subject of the litigation. If the plaintiff is successful on its claims, operation of the mine will be impaired, or even halted. Moreover, the owner has established a possibility of inadequate representation. The government has multiple objectives and could well decide to embrace some of the environmental goals of the plaintiff. Accordingly, the owner is entitled to intervene as of right and the lower court's decision was reversed and remanded. WildEarth Guardians v. United States Forest Service, No. 09-1089, 39 ELR 20165 (10th Cir. July 24, 2009).


BALLAST WATER, NONDEGRADATION REVIEW:



A Minnesota appellate court upheld a state permit regulating ballast-water discharges into Minnesota waters of Lake Superior. An environmental group argued that the agency erred in its interpretation and application of the state's nondegradation rule, failed to conduct an appropriate nondegradation review, and used an inadequate process to determine how stringent the permit's terms must be in order to preserve existing water quality. But the agency's interpretation of the terms "expanded discharge" and "new discharge" as set forth in the nondegradation rule was proper, and it correctly determined that a nondegradation review was required during the permitting process. Moreover, given the deferential standard of review and the fact that ballast-water discharge into Minnesota waters of Lake Superior has previously been unrestricted, the process the agency used to conduct the nondegradation review and its decision to establish permit terms without a baseline analysis of Lake Superior's existing water quality was not arbitrary and capricious. The permit terms were likewise entitled to deference. In adopting water-treatment standards and a timeline for implementation of those standards, the agency reasoned that water quality will not be maintained and improved by the adoption of treatment standards and an implementation schedule that are unachievable. This reasoning is sound. In re SDS General Permit for Ballast Water Discharges, No. A08-1828, 39 ELR 20167 (Minn. Ct. App. July 28, 2009).


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


THE FEDERAL AGENCIES

Note: Citations below are to the Federal Register (FR).


AIR:



  • EPA proposed NESHAPS for prepared feeds manufacturing facilities. 74 FR 36980 (7/27/09).

  • EPA entered into a proposed consent decree and settlement agreement that requires the Agency to take final action on numerous Texas SIP air quality revisions related to state new source review air permitting and banking and trading rules. 74 FR 38015 (7/30/09).

  • EPA's Office of Air Quality Planning and Standards announced the availability of Risk and Exposure Assessment to Support the Review of the SO2 Primary National Ambient Air Quality Standard: Final Report. 74 FR 37705 (7/29/09).

  • SIP Approvals: Alabama (continued maintenance of the 1997 eight-hour ozone NAAQS in Jefferson and Shelby counties) 74 FR 37945 (7/30/09). California (volatile organic compound (VOC) emissions for the San Joaquin Valley air pollution control district) 74 FR 37948 (7/30/09). Ohio (VOC reasonably available control technology for the Cleveland-Akron eight-hour ozone nonattainment area) 74 FR 37171 (7/28/09). South Carolina (transportation conformity criteria and procedures) 74 FR 37168 (7/28/09). Texas (monitoring of nitrogen oxides (NOx) emissions for the Beaumont-Port Arthur and the Houston-Galveston-Brazoria eight-hour ozone nonattainment areas) 74 FR 38102 (7/31/09).

  • SIP Proposals: Alabama (continued maintenance of the 1997 eight-hour ozone NAAQS in Jefferson and Shelby counties; see above for direct final rule) 74 FR 37977 (7/30/09). Maryland (1997 fine particulate matter (PM) NAAQS for the Baltimore, Maryland, and Hagerstown-Martinsburg, Maryland/West Virginia, nonattainment areas). 74 FR 38161 (7/31/09). Pennsylvania (1997 fine PM NAAQS for the Johnstown, Lancaster, Reading, and York, Pennsylvania, nonattainment areas) 74 FR 38158 (7/31/09). South Carolina (transportation conformity criteria and procedures; see above for direct final rule) 74 FR 37185 (7/28/09). Texas (monitoring of NOx emissions for the Beaumont-Port Arthur and the Houston-Galveston-Brazoria eight-hour ozone nonattainment areas; see above for direct final rule) 74 FR 38161 (7/31/09). West Virginia (1997 fine PM NAAQS for the Berkeley County, Wood County, and the Marshall County and Ohio County portions of the Wheeling, West Virginia/Ohio, nonattainment areas) 74 FR 38154 (7/31/09).

HAZARDOUS & SOLID WASTE:



  • EPA identified the classes of facilities within the hardrock mining industry required to establish and maintain evidence of financial responsibility under CERCLA §108(b). 74 FR 37213 (7/28/09).

  • EPA entered into a proposed settlement under CERCLA that requires the settling respondent to place an environmental covenant with use and activity restrictions on the Utah Power and Light/American Barrel Superfund site in Salt Lake County, Utah, to pay $30,000 for future U.S. oversight of the covenant, and to monitor future development of the property. 74 FR 38184 (7/31/09).

  • EPA granted a petition submitted by WRB Refining, LLC Co., to delist the sludge from its wastewater treatment plant in Borger, Texas, from the list of hazardous wastes. 74 FR 38109 (7/31/09).

  • EPA withdrew final authorization under RCRA for implementation of the Autoliv XL project in Promontory, Utah, developed under the Project eXcellence in Leadership program. 74 FR 38107 (7/31/09).

TOXIC SUBSTANCES:



  • EPA updated the TSCA Chemical Substance Inventory Master File by reclassifying 530 chemical substances from confidential to nonconfidential. 74 FR 37224 (7/28/09).

WILDLIFE:



  • FWS proposed to designate 6,327 acres in Jackson County, Oregon, as critical habitat for large-flowered woolly meadowfoam and 7,104 acres in Jackson and Josephine counties, Oregon, as critical habitat for Cook's lomatium. 74 FR 37314 (7/28/09).

  • NOAA-Fisheries announced a 90-day finding on a petition to list largetooth sawfish as endangered or threatened under the ESA; the agency found that listing may be warranted and initiated a status review. 74 FR 37671 (7/29/09).

  • NOAA-Fisheries announced a 90-day finding on a petition to revise critical habitat for the elkhorn and staghorn corals under the ESA; the Agency determined that revision in the Florida area may be warranted. 74 FR 36995 (7/27/09).

  • NOAA-Fisheries proposed regulations under the ESA and the Marine Mammal Protection Act to prohibit vessels from approaching killer whales within 200 yards and from parking in their path in the inland waters of Washington State. 74 FR 37674 (7/29/09).

DOJ NOTICES OF SETTLEMENT:



  • United States v. Princeton Gamma-Tech, Inc., No. 91-809 (AET) (D.N.J. July 21, 2009). Settling CERCLA defendants must pay $1,842,500 in past and future U.S. response costs incurred at the Rocky Hill Municipal Wellfield Superfund site and the Montgomery Township Housing Development Superfund site in Somerset County, New Jersey, and must pay $907,500 to the state of New Jersey in past and future response costs and natural resources damages. 74 FR 38230 (7/31/09).

  • United States v. Princeton Gamma-Tech, Inc., No. 91-809 (AET) (D.N.J. July 21, 2009). Settling CERCLA defendants must pay $234,500 in past and future U.S. response costs incurred at the Rocky Hill Municipal Wellfield Superfund site and the Montgomery Township Housing Development Superfund site in Somerset County, New Jersey, and must pay $155,000 to the state of New Jersey in past and future response costs and natural resources damages. 74 FR 38230 (7/31/09).

  • United States v. American Premier Underwriters, Inc., No. 05-CV-12189-RWZ (D. Mass. July 24, 2009). A settling CERCLA defendant must pay $2,975,000, plus interest, for past U.S. response costs incurred at the Morses Pond Culvert Superfund site in Wellesley, Massachusetts. 74 FR 37729 (7/29/09).

  • United States v. Detrex, No. 09-5442RBL (W.D. Wash. July 21, 2009). Settling CERCLA defendants must pay $2,330,938 in past and future U.S. response costs incurred at the Hylebos Waterway problem areas of operating unit 1 of the Commencement Bay Nearshore/Tideflats Superfund site in Tacoma, Washington. 74 FR 37060 (7/27/09).

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. 509 (Marine Turtle Conservation Reauthorization Act of 2009), which would reauthorize the Marine Turtle Conservation Act of 2004, was passed by the House. 155 Cong. Rec. H8934-35 (daily ed. July 28, 2009).

  • H.R. 556 (Southern Sea Otter Recovery and Research Act), which would establish a program of research, recovery, and other activities to provide for the recovery of the southern sea otter, was passed by the House. 155 Cong. Rec. 8933 (daily ed. July 28, 2009).

  • H.R. 1121 (land exchange), which would authorize a land exchange to acquire lands for the Blue Ridge Parkway from the town of Blowing Rock, North Carolina, was passed by the House. 155 Cong. Rec. H8829, H8847 (daily ed. July 27, 2009).

  • H.R. 1376 (national monuments), which would authorize the Secretary of the Interior to establish the Waco Mammoth National Monument in the state of Texas, was passed by the House. 155 Cong. Rec. H8826, H8846 (daily ed. July 27, 2009).

  • H.R. 2093 (Clean Coastal Environment and Public Health Act of 2009), which would amend the Federal Water Pollution Control Act relating to beach monitoring, was passed by the House. 155 Cong. Rec. H9038 (daily ed. July 29, 2009).

  • H.R. 3183 (Energy and Water Appropriations Act), which would make appropriations for energy and water development and related agencies for the fiscal year ending September 30, 2010, was passed by the Senate. 155 Cong. Rec. S8216 (daily ed. July 29, 2009).

  • H. Res. 288 (National Park and Recreation Month), which would recognize the importance of park and recreation facilities and to express support for the designation of the month of July as "National Park and Recreation Month," was passed by the House. 155 Cong. Rec. H8825-2 (daily ed. July 27, 2009).

Committee Action



  • S. Res. 81 (water), was reported by the Committee on Foreign Relations. 155 Cong. Rec. S8192 (daily ed. July 28, 2009). The resolution would support the goals and ideals of World Water Day.

  • H.R. 1080 (fisheries), was reported by the Committee on Natural Resources. H. Rep. No. 111-228, 155 Cong. Rec. H8808 (daily ed. July 24, 2009). The bill would strengthen enforcement mechanisms to stop illegal, unreported, and unregulated fishing.

  • H.R. 1121 (land exchange) was reported by the Committee on Natural Resources. H. Rep. No. 111-227, 155 Cong. Rec. H8808 (daily ed. July 24, 2009). The bill would authorize a land exchange to acquire lands for the Blue Ridge Parkway from the town of Blowing Rock, North Carolina.

  • H.R. 1376 (national monuments) was reported by the Committee on Natural Resources. H. Rep. No. 111-229, 155 Cong. Rec. H8808 (daily ed. July 24, 2009). The bill would authorize the Secretary of the Interior to establish the Waco Mammoth National Monument in the state of Texas.

Bills Introduced



  • S. 1514 (Murkowski, R-Alaska) (Arctic Ocean) would ensure safe, secure, and reliable marine shipping in the Arctic including the availability of aids to navigation, vessel escorts, spill response capability, and maritime search and rescue in the Arctic. 155 Cong. Rec. S8094 (daily ed. July 24, 2009). The bill was referred to the Committee on Commerce, Science, and Transportation.

  • S. 1515 (Murkowski, R-Alaska) (Arctic Ocean) would amend the Hydrographic Services Improvement Act of 1998 to authorize funds to acquire hydrographic data and provide hydrographic services specific to the Arctic for safe navigation, delineating the United States' extended continental shelf, and the monitoring and description of coastal changes. 155 Cong. Rec. S8094 (daily ed. July 24, 2009). The bill was referred to the Committee on Commerce, Science, and Transportation.

  • S. 1517 (Murkowski, R-Alaska) (energy) would enhance domestic energy security by increasing production from fossil-based resources in the outer continental shelf in an economically and environmentally responsible manner. 155 Cong. Rec. S8094 (daily ed. July 24, 2009). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 1525 (Cardin, D-Md.) (Capper-Cramton Act) would amend the Act of May 29, 1930, (commonly known as the Capper-Cramton Act) to authorize a grant program to preserve resources in the National Capital region. 155 Cong. Rec. S8196 (daily ed. July 28, 2009). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 1535 (Feinstein, D-Cal.) (wildlife) would amend the Fish and Wildlife Act of 1956 to establish additional prohibitions on shooting wildlife from aircraft. 155 Cong. Rec. S8271 (daily ed. July 29, 2009). The bill was referred to the Committee on Environment and Public Works.

  • S. 1538 (Rockefeller, D-W. Va.) (greenhouse gases) would establish a black carbon and other aerosols research program in NOAA that supports observations, monitoring, modeling. 155 Cong Rec. S8272 (daily ed. July 29, 2009). This bill was referred to the Committee on Commerce, Science, and Transportation.

  • S. 1539 (Rockefeller, D-W. Va.) (greenhouse gases) would authorize NOAA to establish a comprehensive greenhouse gas observation and analysis system. Cong. Rec. S8272 (daily ed. July 29, 2009). The bill was referred to the Committee on Commerce, Science, and Transportation.

  • S. 1546 (Bennett, R-Utah) (land conveyance) would provide for the conveyance of certain parcels of land to the town of Mantua, Utah. Cong. Rec. S8557 (daily ed. July 30, 2009). The bill was referred to the Committee on Energy and Natural Resources.

  • H.R. 3339 (Heinrich, D-N.M.) (land conveyance) would reauthorize the Federal Land Transaction Facilitation Act. 155 Cong. Rec. H8809 (daily ed. July 24, 2009). The bill was referred to the Committee on Natural Resources.

  • H.R. 3342 (Luján, D-N.M.) (Rio Grande Basin) would authorize the Secretary of the Interior, acting through the Commissioner of Reclamation, to develop water infrastructure in the Rio Grande Basin, and to approve the settlement of the water rights claims of the Pueblos of Nambe, Pojoaque, San Ildefonso, and Tesuque. 155 Cong. Rec. H8809 (daily ed. July 24, 2009). The bill was referred to the Committee on Natural Resources.

  • H.R. 3364 (Filner, D-Cal.) (waste management) would amend the Reclamation Wastewater and Groundwater Study and Facilities Act to authorize the Secretary of the Interior to participate in the South San Diego County Water Reclamation Project. 155 Cong. Rec. H8959 (daily ed. July 24, 2009). The bill was referred to the Committee on Natural Resources.

  • H.R. 3367 (Levin, D-Mich.) (alternative fuels) would amend the Internal Revenue Code of 1986 to extend and modify the credit for new qualified hybrid motor vehicles. 155 Cong. Rec. H8959 (daily ed. July 28, 2009). The bill was referred to the Committee on Ways and Means.

  • H.R. 3381 (G. Miller, D-Cal.) (wildlife) would amend the Fish and Wildlife Act of 1956 to establish additional prohibitions on shooting wildlife from aircraft. 155 Cong. Rec. H9055 (daily ed. July 29, 2009). The bill was referred to the Committee on Natural Resources.

  • H.R. 3385 (Barton, R-Tex.) (hazardous waste) would authorize the use of amounts in the Nuclear Waste Fund to promote recycling of spent nuclear fuel. 155 Cong. Rec. H9055 (daily ed. July 29, 2009). The bill was referred to the Committee on Energy, Commerce, and Budget.

  • H.R. 3426 (Pelosi, D-Cal.) (public health) would amend the Public Health Service Act to establish a Coordinated Environmental Public Health Network. 155 Cong. Rec. H9206 (daily ed. July 30, 2009). The resolution was referred to the Committee on Energy and Commerce.

  • H.R. 3431 (Shuler, D-N.C.) (CAA) would amend the CAA to promote the certification of aftermarket conversion systems in hopes of encouraging the increased use of alternative fueled vehicles. 155 Cong. Rec. H9206 (daily ed. July 30, 2009). The resolution was referred to the Committee on Energy and Commerce.

  • H.R. 3433 (Wittman, R-Va.) (wetlands) would amend the North American Wetlands Conservation Act to establish requirements regarding payment of the non-federal share of the costs of wetlands conservation projects in Canada that are funded under that Act. 155 Cong. Rec. H9206 (daily ed. July 30, 2009). The resolution was referred to the Committee on Natural Resources.

  • H. Res. 688 (Titus, D-Nev.) (wildlife) would express support for the goals and ideals of the first annual National Wild Horse and Burro Adoption Day taking place on September 26, 2009. 155 Cong. Rec. H8959 (daily ed. July 28, 2009). The resolution was referred to the Committee on Natural Resources.

  • H. Res. 695 (Rodriguez, D-Tex.) (land conveyance) would support an international park between Big Bend National Park in the United States and the protected areas of the Coahuila and Chihuahua States across the border in Mexico. 155 Cong. Rec. H9056 (daily ed. July 29, 2009). The resolution was referred to the Committee on Foreign Affairs.

  • H. Res. 701 (Moran, R-Va.) (wildlife preserve) would recognize the Dyke Marsh Wildlife Preserve as a unique and precious ecosystem. 155 Cong. Rec. H9206 (daily ed. July 30, 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:

















Indiana New York South Carolina
New Hampshire North Dakota Texas
New Jersey Oregon Virginia
New Mexico Rhode Island Wisconsin

INDIANA


Air:



NEW HAMPSHIRE


Water:



  • The Department of Environmental Services will hold a public hearing on proposed adoption of N.H. Code R. Env-Dw 304, Emergency Bulk Water Supply for Public Water Systems. The proposed rules provide bulk water haulers and Public Water System (PWS) operators with a regulatory framework that is specific to emergency bulk water deliveries. Specifically, the proposed rules will ensure that water obtained from alternate sources during emergencies will meet the same requirements that the water provided by the PWS is required to meet on a daily basis. The hearing will be September 14, 2009. See http://des.nh.gov/organization/commissioner/legal/rulemaking/documents/env-dw_304_rmn.pdf

  • The Department of Environmental Services will hold a public hearing on proposed adoption of N.H. Code R.Env-Wq 403, Large Groundwater Withdrawals. The new rules will eliminate the distinction between minor and major large groundwater withdrawals and consolidate all requirements into one part. The hearing will be August 28, 2009. See http://des.nh.gov/organization/commissioner/legal/rulemaking/documents/env-wq_403_rmn.pdf

NEW JERSEY


Hazardous & Solid Waste:



  • The Department of Environmental Protection seeks public comment on proposed readoption of and amendments to N.J. Admin. Code §7:1I, Processing of Damage Claims Pursuant to the Sanitary Landfill Facility Closure and Contingency Fund Act.  The state legislature established the Sanitary Landfill Facility Closure and Contingency Fund the purpose of which is to provide compensation for damages resulting from the improper operation or closure of sanitary landfill facilities.  The fund is "strictly liable for all direct and indirect damages, no matter by whom sustained, proximately resulting from the operations or closure of any sanitary landfill." Comments are due September 18, 2009. See http://www.nj.gov/dep/rules/notices/072009a.html  

NEW MEXICO


Air:



  • The Albuquerque-Bernalillo County Air Quality Control Board will hold a public hearing on the proposed repeal of N.M. Code R. §20.11.90.12, Breakdown, Abnormal Operating Conditions, or Scheduled Maintenance; and replacement with N.M. Code R. §20.11.49, Excess Emissions. The proposed rule prohibits excess emissions for startup or shutdown unless they are the result of unavoidable and unforeseeable malfunctions. In addition, as part of the required analysis for excess emissions events, the rule would require a "root cause analysis." This would be a detailed technical analysis of excess emission events that determines the underlying reason(s) that the event occurred and all contributing factors to the malfunction, to the extent possible. The analysis would also require an evaluation of alternative measures (if any) that can be implemented to reduce the likelihood of a recurrence of an incident. The hearing will be September 9, 2009. See http://www.nmcpr.state.nm.us/nmregister/xx/xx14/AirQualnotice1.htm

  • The Albuquerque-Bernalillo County Air Quality Control Board will hold a public hearing on proposed amendment N.M. Code R. §20.11.47, Emissions Inventory Requirements. The amendments would provide flexibility to require emissions reports from sources with air quality permits, but not require a report from smaller sources with registrations, unless it becomes necessary in the future. The hearing will be October 14, 2009. See http://www.nmcpr.state.nm.us/nmregister/xx/xx14/AirQualnotice2.htm

  • The Albuquerque-Bernalillo County Air Quality Control Board adopted amendments to N.M. Code R. §20.11.42, Operating Permits . See http://www.nmcpr.state.nm.us/nmregister/xx/xx14/20.11.42amend.htm

  • The Environmental Improvement Board adopted amendments to N.M. Code R. §20.2.77, New Source Performance Standards; N.M. Code R. §20.2.78, Emission Standards for Hazardous Air Pollutants; and N.M. Code R. §20.2.82, Maximum Achievable Control Technology Standards for Source Categories of Hazardous Air Pollutants. See http://www.nmcpr.state.nm.us/nmregister/xx/xx14/20.2.77amend.htm; http://www.nmcpr.state.nm.us/nmregister/xx/xx14/20.2.78amend.htm; and http://www.nmcpr.state.nm.us/nmregister/xx/xx14/20.2.82amend.htm.

NEW YORK


Air:



  • The Department of Environmental Conservation amended N.Y. Comp. Codes R. & Regs. tit. 6, §239, Portable Fuel Container Spillage Control. The revisions will require portable fuel containers distributed in the state of New York to comply with the requirements outlined in the federal portable fuel container rule, 40 CFR Part 59. See http://www.dec.ny.gov/regulations/56249.html

  • The Department of Environmental Conservation adopted new rule section N.Y. Comp. Codes R. & Regs. tit. 6, §248, and amendments to tit. 6, §200. The purpose of the adopted regulation is to address the public health threat posed by the combustion of diesel fuel from certain heavy duty vehicles. The changes implement requirements for the use of ultra low sulfur diesel fuel, best available retrofit technology, and low nitrogen oxide rebuild kits on certain heavy duty vehicles owned by, operated by, on behalf of, or leased by state agencies and state and regional public authorities. See http://www.dec.ny.gov/regulations/56126.html

  • The Department of Environmental Conservation amended N.Y. Comp. Codes R. & Regs. tit. 6, §§200.9 and 200.10. These revisions update the incorporation by references to include the federal NESHAP regulations as they appear in the July 1, 2007, version of the Code of Federal Regulations. See http://www.dec.ny.gov/regulations/56352.html

Water:



  • The Department of Environmental Conservation adopted amendments to N.Y. Comp. Codes R. & Regs. tit. 6, §649, and tit. 21, §2602, relating to the Clean Water State Revolving Fund (CWSRF) Program. The amendments will allow New York's CWSRF program to meet the requirements of the American Recovery and Reinvestment Act of 2009. See http://www.dos.state.ny.us/info/register/2009/jul29/pdfs/rules.pdf (pp. 11-18)

NORTH DAKOTA


Water:



  • The Department of Health will hold a public hearing on proposed adoption of N.D. Admin. Code 33-16-02.1, Standards of Quality for Waters of the State. The rule would change the maximum limit of sulfate in a segment of the Sheyenne River. The hearing will be October 5, 2009. See http://www.ndhealth.gov/WQ/DevilsLake/

OREGON


Water:



  • The Department of Environmental Quality will hold a series of public hearings on proposed amendments to Or. Admin. R. 340-054, Clean Water State Revolving Fund (CWSRF) Program. The amendments will allow Oregon's CWSRF program to meet the requirements of the American Recovery and Reinvestment Act of 2009 and use federal economic stimulus funds if additional funds become available. The hearings will be August 17, 18, and 19, 2009. See http://www.deq.state.or.us/wq/loans/docs/2009ARRARulemakingAnnouncement.pdf

RHODE ISLAND


Water:



SOUTH CAROLINA


Air:



  • The Department of Health and Environmental Control will hold a public hearing on proposed amendments to S.C. Code Ann. regs 61-62, Air Pollution Control Regulations and Standards. The proposed amendments are necessary to maintain consistency with federal rules. See http://www.scstatehouse.gov/regs/4082.docx

TEXAS


Water:



  • The Commission on Environmental Quality will hold a public hearing on proposed amendments to 30 Tex. Admin. Code §39.551, Public Notice; 30 Tex. Admin. Code §281.17, Applications Processing; and 30 Tex. Admin. Code §§295.151, and 295.158, Water Rights, Procedural. The amendments state that if the notice of receipt of application and intent to obtain a permit (NORI) is mailed more than two years before the date that the notice of application and preliminary decision (NAPD) is scheduled to be mailed, then the applicant must prepare an updated landowner list and map and file them with the commission. The proposed rule also allows the Executive Director to require an updated landowners map and mailing addresses for the NAPD for any water quality matter in which the Executive Director determines that circumstances have changed to warrant this new information. The hearing will be August 18, 2009. See http://www.sos.state.tx.us/texreg/sos/PROPOSED/30.ENVIRONMENTAL%20QUALITY.html#55

  • The Commission on Environmental Quality adopted amendments to 30 Tex. Admin. Code §21.3, Water Quality Fees; and 30 Tex. Admin. Code §290.51, Public Drinking Water. The amendments ensure that there are sufficient funds in fiscal year 2010 to carry out the tasks required to protect state water resources. See http://www.sos.state.tx.us/texreg/sos/adopted/30.ENVIRONMENTAL%20QUALITY.html#119

VIRGINIA


Water:



  • The State Water Control Board adopted amendments to 9 Va. Admin. Code §25-260, Water Quality Standards. The amendments add a new section, 9 Va. Admin. Code §25-260-275, that is initiated when applications for new or expanded Virginia Pollutant Discharge Elimination System discharges to Eastern Shore waters are not denied under 9 Va. Admin. Code §25-260-270. If these discharges result in shellfish condemnations, then the applicant must analyze whether wastewater management alternatives other than a discharge would be feasible, produce less of an environmental impact, and not result in significant social and economic impacts to beneficial uses and to the locality and its citizens. If the analysis demonstrates that an alternative meets these criteria, then that alternative must be pursued for approval prior to the board taking action on the discharge alternative. In addition, the Guide for the Control of Molluscan Shellfish was updated. See http://legis.state.va.us/codecomm/register/vol25/iss23/f9v25260.html

WISCONSIN


Water:



  • The Wisconsin Natural Resources Board proposed to repeal Wis. Admin. Code §§NR 102.03(8) to (10), 102.04(4)(b), (e)1., (5) to (7) and ch. NR 209; to renumber Wis. Admin. Code §§NR 102.03(1) to (7) and 102.04(4)(e); to amend Wis. Admin. Code §§NR 102.01, 102.04, 102.05, and ch. NR 106; and to create Wis. Admin. Code §§NR 102, subch. I , 102.03, 102.04(4)(e), (5) to (9), 102.05(3)(i), ch. NR 102, subch. II, and ch. NR 106, subchs. V and VI. The changes would establish appropriate thermal water quality standards and associated water quality-based effluent limitation calculation procedures for heated discharges to surface waters of the state. See http://www.legis.state.wi.us/ruletext/07-111-0.pdf

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


INTERNATIONAL

U.S. ENTERS DEBT-FOR-NATURE SWAP WITH INDONESIA



The United States has signed an agreement to forgive nearly $30 million in Indonesian debt in return for the large Southeast Asian country agreeing to protect forests on Sumatra Island. The forests are home to some of the world's most endangered species including endangered tigers, elephants, rhinos and orangutan. The deal is the largest debt-for-nature swap the U.S. government has organized so far under the U.S. Tropical Forest Conservation Act and its first such deal with Indonesia, which has one of the fastest deforestation rates in the world. The United States has signed similar, smaller agreements with countries such as the Philippines, Guatemala and Peru. For the full story, see http://www.voanews.com/english/2009-07-29-voa44.cfm


ENVIRONMENT MINISTRY DRAFTS GREENHOUSE GASES INVENTORY



Angola, through the Ministry of Environment, is drafting its First National Communication (PCN) to develop an inventory on greenhouse gases. The inventory, which began in April, is set to end in December this year, with the involvement of staff of the ministries of Environment, Industry, Transports and other sectors. The drafting of the PCN counts on support from the Global Environment Facility and of Angolan Government and is expected to help the country present its national inventory on greenhouse gases during the forthcoming United Nations Framework Convention on Climate Change. The document is expected to contain detailed information on the national circumstances related to Angola, based on the model proposed by the United Nations, and to identify the local and regional priorities that can influence the country regarding the effects and consequence of climatic changes. For the full story, see http://www.portalangop.co.ao/motix/en_us/noticias/ambiente/Environment-Ministry-drafts-greenhouse-gases-inventory,598e29c3-292b-4e15-a067-3d16d940104d.html


WORLD FISHERIES COLLAPSE CAN BE AVERTED



The world's commercial fisheries, pressured by overfishing and threatened with possible collapse by mid-century, could be rebuilt with careful management, according to a recent study published in the journal Science. One of the authors, a fisheries expert who in 2006 predicted total global collapse of fish and seafood populations by 2048, is now more optimistic based on the wide-ranging two-year study by scientists in North and South America, Africa, Australia, and New Zealand. Still, 63 percent of fish stocks worldwide need to be rebuilt, the researchers said. "I am somewhat more hopeful that we will be in a better state . . . than what we originally predicted, simply because I see that we have the management tools that are proven to work," said Boris Worm of Dalhousie University in Halifax, Nova Scotia, Canada. These tools include: restrictions on gear like nets so that smaller, younger fish can escape; limits on the total allowable catch; closing some areas to fishing; certifying fisheries as sustainable; and offering shares of the total allowable catch to each person who fishes in a specified area. Ray Hilborn, a co-author from the University of Washington in Seattle, said places with strong regulations to protect fisheries will probably be in good shape by 2048, but areas that lack this kind of institutional framework could be "quite overfished" by that time. For the full story, see http://www.reuters.com/article/latestCrisis/idUSN30463


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


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