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Weekly Update Volume 39, Issue 25

09/08/2009

LITIGATION

CERCLA, RESPONSE COSTS:



A district court held that the owner of a Superfund site is not entitled to recovery from its neighbor under CERCLA. Since 1995, the owner has conducted its investigation to convince the state environmental agency that the neighboring company is responsible for the contamination and that the owner should be relieved of the liability to remediate its own site. But the owner has not performed any measures to confirm its theory of an offsite source. Nor has it acted in response to the perceived threat from the neighboring site. Rather, it has been motivated by a desire to avoid liability of the clean up and to shift blame to the neighbor. The owner has therefore failed to demonstrate causation. More fundamentally, the owner has not incurred any response costs. The owner must show that its costs were "monies . . . expended to clean up sites or to prevent further releases of hazardous chemicals." Here, none of the owner's expenditures have furthered a clean up of the site or sought to contain or assuage the contamination allegedly migrating onto the site. Instead, the owner has, for the past 10 years, sought a "no further action" determination from the state that would relieve it of any further investigatory or remedial responsibilities. Accordingly, the costs expended are not recoverable because they were not necessary to contain or clean up contaminants. Nor is the owner entitled to contribution from the neighbor for damages it paid under a state settlement agreement since that agreement encompassed only the owner's liability. Champion Laboratories, Inc. v. Metex Corp., No. 02-5284, 39 ELR 20190 (D.N.J. Aug. 13, 2009) (Walls, J.).


CERCLA, RESPONSE COSTS:



A district court held that the costs a water district incurred replenishing its water supply are not recoverable as response costs under CERCLA. In 2007, the water district filed suit against the owner of contaminated property seeking to recover costs it incurred responding to the contamination, including costs of providing bottled water to customers and providing technical advice to affected cities at an estimated cost of $4 million. The district then sought to recover the full cost of its "recharge" operations incurred since 2003, which total more than $29 million. The district, however, has been recharging the basin for decades as an ordinary part of its practice to maintain water supply. The fact that the district had reasons for engaging in its recharge activities other than cleaning up the contamination does not, in and of itself, preclude recovery of the recharge costs. But the undisputed evidence establishes that the district has done the same recharging and incurred the costs thereof for years, commencing before the contamination was discovered, and has done so independently of any response to contamination. There is no evidence that the district engaged in recharge operations as a response to or as a necessary consequence of the contamination. Because the district's recharge actions were not in response to the contamination, its recharge activities are not a response action and its costs are not response costs recoverable under CERCLA. Santa Clara Valley Water District v. Olin Corp., No. 07-03756, 39 ELR 20197 (N.D. Cal. Aug. 19, 2009) (Whyte, J.).


CERCLA, RCRA, NUISANCE:



A district court granted in part and denied in part cross-motions for summary judgment in a development company's CERCLA, RCRA, and state nuisance claims against a variety of defendants concerning groundwater and soil contamination at its property. The company filed suit against the prior and current owners of a neighboring landfill, arguing that groundwater contamination emanating from the landfill moved beneath its property. The company also filed suit against the original generators, arrangers, and transporters of the solid and hazardous waste that is present in soil and in the groundwater plume underneath the property. The company's RCRA claim was barred because the defendants are already complying with a consent order issued by the state. But the company may go forward with its CERCLA claim. At trial, the company will need to establish that the fees and costs sought are response costs that were necessary and consistent with the national contingency plan. As for the company's nuisance claims, the company has suffered an injury. Its property interest has been harmed as a result of contamination flowing from the landfill, and this contamination has prevented the company from developing the land. However, the generator-arranger-transporter defendants' conduct--disposing of waste at the landfill--did not create or assist in the creation of the nuisance, as there is no evidence suggesting that their conduct was unreasonable. Accordingly, only the nuisance claims against the current and past owners of the landfill may proceed to trial. West Coast Home Builders v. Aventis Corpscience USA, Inc., No. 04-2225, 39 ELR 20200 (N.D. Cal. Aug. 21, 2009) (Illston, J.).


RCRA, BANKRUPTCY, INJUNCTIONS:



The Seventh Circuit upheld an injunction, at the behest of EPA under the authority of RCRA, requiring an oil company to clean up a contaminated site in Hartford, Illinois. The lower court determined that millions of gallons of oil, composing a "hydrocarbon plume" trapped not far underground, are contaminating groundwater and emitting fumes that rise to the surface and enter houses in Hartford, thereby creating hazards to health and the environment. The court deemed it the company's legal responsibility to abate this nuisance because the plume was created by an oil refinery owned by a corporate predecessor of the company. The company argued that the government's claim to an injunction was discharged in bankruptcy and therefore cannot be renewed in this suit. Under Chapter 11 bankruptcy proceedings, in the event that the equitable remedy turns out to be unobtainable, if the holder of an equitable claim can obtain a money judgment instead, the claim is dischargeable. Because the company would have to hire a third party to clean up the site at an estimated cost of $150 million, it argued that the claim should be dischargeable. But whether a polluter can clean up his pollution himself or has to hire someone to do it has no relevance to the policy of either the Bankruptcy Code or RCRA. United States v. Apex Oil Co., No. 08-3433, 39 ELR 20189 (7th Cir. Aug. 25, 2009).


RCRA, INJUNCTIONS:



A district court denied a religious congregation's motion for a preliminary injunction under RCRA ordering the former owner of a gas station to clean up contamination beneath their church. In early April 2006, a gasoline spill occurred at the gas station and migrated to the church, the basement of which is used as a school. Later that month, gasoline vapors entered the church's basement and several employees and students became ill from the odors. The local fire department subsequently declared the building uninhabitable, set up an emergency venting system, and ordered the electricity be shut off to avoid an explosion. The church initiated an emergency response, and in May 2006, the building was deemed safe and the congregation was allowed to reoccupy and use its building. Since then, the church has been using its basement without interruption. Nevertheless, based on its assertion that gasoline vapors are present and may be at concentrations below the odor threshold but harmful to children, the church filed suit and sought a preliminary injunction. The court denied their motion. Although there is evidence that gasoline vapors exist under the church, the church has not shown that gasoline vapors are present in the building or that they create an imminent and substantial endangerment to health or environment. Accordingly, the church failed to establish that absent a preliminary injunction, it will suffer irreparable harm in the interim period prior to a final resolution of its claims. Grace Christian Fellowship v. KJG Investments Inc., No. 07-C-0348, 39 ELR 20192 (E.D. Wis. Aug. 7, 2009) (Gorence, J.).


CWA, SMCRA, STATE ENFORCEMENT:



A district court denied a coal company's motion to dismiss environmental groups' CWA and SMCRA citizen suit action against it for unlawfully discharging pollutants into U.S. waters. The company argued that because West Virginia has already commenced and is diligently prosecuting an administrative penalty action under state law comparable to CWA §309(g), the court lacks jurisdiction over the groups' CWA claims. West Virginia law, however, is not comparable to CWA §309. Section 309 authorizes EPA to assess penalties for violations of the Act or a permit condition or limitation. West Virginia law, however, does not empower the state environmental agency to unilaterally assess civil penalties. Rather, it authorizes the state agency to "attempt to resolve alleged violations" through administrative proceedings and it does not provide for the assessment of administrative penalties without the violator's consent. This is markedly different from CWA §309(g). In addition, the groups stated a viable claim under SMCRA. Simply because the provision sought to be enforced incorporates, in a consistent manner, standards imposed under the CWA does not mean that enforcement thereof will alter, supercede, amend, modify, or repeal the CWA in contravention of SMCRA. Sierra Club v. Powellton Coal Co., No. 2:08-1363, 39 ELR 20199 (S.D. W. Va. Aug. 18, 2009) (Copenhaver, J.).


CWA, IMMUNITY:



A district court held that the West Virginia Department of Environmental Protection violated the CWA's NPDES requirements when it allowed acid mine drainage to be discharged from "bond forfeiture" or abandoned mining sites without a permit. The groups successfully demonstrated that the agency is discharging pollutants without a permit in violation of the CWA. As the Secretary admittedly exercises control over the abandoned sites and is now responsible for the discharges occurring there, the causation requirement is met. In addition, bond forfeiture sites that discharge acid mine drainage may be deemed point sources, and the outfalls at issue here have the physical characteristics of a point source. The Secretary also argued that he is immune from suit under the Eleventh Amendment because the state has an approved NPDES permitting program and is therefore the primary regulator with respect to the issuance of NPDES permits in West Virginia. But not all of the CWA provisions drop out or are suspended upon approval of a state permit program under the CWA. The claim that the Secretary is discharging pollutants without a permit retains its federal character notwithstanding state regulation of the permit program. As such, the Ex parte Young exception to the Eleventh Amendment is applicable. West Virginia Highlands Conservancy, Inc. v. Huffman, No. 2:07-0410, 39 ELR 20201 (S.D. W. Va. Aug. 24, 2009) (Copenhaver, J).


WATER RIGHTS, IMMUNITY:



The Tenth Circuit affirmed a lower court decision dismissing water districts' and other entities' claims against an Oklahoma agency and the United States in a dispute over water rights stemming from the Grand River. The plaintiffs sought a declaration regarding their interests in the Grand River water, an injunction prohibiting the agency from charging the plaintiffs for Grand River water, and restitution for all amounts previously paid to the agency for Grand River water. The lower court properly ruled that the state agency is immune from suit under the Eleventh Amendment as the plaintiffs failed to prove that the agency waived its immunity. Similarly, claims against the United States were properly dismissed on grounds of sovereign immunity. The plaintiffs argued that U.S. Congress abrogated the United States' sovereign immunity by enacting the McCarran Amendment, which provides that "[c]onsent is given to join the United States as a defendant in any suit . . . for the adjudication of rights to the use of water of a river system or other source . . . ." The McCarran Amendment, however, was intended to avoid piecemeal adjudication of water rights. Because not all potential claimants to the Grand River water have been made parties to this action, the United States has not consented to suit. Wagoner County Rural Water District No. 2 v. Grand River Dam Authority, No. 08-5120, 39 ELR 20194 (10th Cir. Aug. 24, 2009).


NEPA, NUCLEAR WASTE:



The Second Circuit held that DOE's EIS concerning waste management activities at a nuclear service center near Buffalo, New York, complied with NEPA and with the terms of a 1987 settlement agreement between the agency and an environmental group. The EIS addressed only short-term, waste management activities for one portion of the site. The group argued that it was impermissible segmentation for the DOE not to consider overall closure issues for the entire center at the same time that it considered the waste management issues. The court disagreed. The group failed to identify any way in which the waste management activities that DOE contemplates will automatically trigger closure of the entire nuclear service center, nor have they persuasively argued that the waste management activities cannot proceed without closure. Similarly, the waste management activities that DOE is undertaking do not depend on the closure action for their justification. In addition, the 1987 stipulation entered between the parties did not in any way curtail DOE's ability to reevaluate its strategy for completing environmental impact review in response to comments and concerns raised after publication of an earlier draft EIS. The stipulation does not restrict DOE to any greater extent than NEPA. Coalition on West Valley Nuclear Wastes v. Chu, No. 07-5243, 39 ELR 20203 (2d Cir. Aug. 31, 2009).


NEPA, ALTERNATIVES ANALYSIS:



A district court rejected claims that the U.S. Army violated NEPA by failing to provide a supplemental analysis reflecting new alternative destruction technologies that could be used in lieu of on-site incineration at four chemical weapon incineration facilities. For the four challenged sites, the Army selected on-site incineration as the "preferred alternative" based on the conclusion that there were no readily available alternatives to destroy the chemical weapons stockpile at these sites and that incineration was a safe and effective method. In 1996 and 2003, the Army reviewed and reevaluated its decision to use incineration at the four challenged sites, again concluding that on-site incineration was its preferred method of destruction and that new information did not require supplementation of the EISs. Citizen groups filed suit under NEPA, but the court rejected their claims. The groups failed to demonstrate that alternatives capable of destroying the quantity and type of chemical warfare agents and munitions at the sites are readily available or that alternative technology would create environmental impacts significantly different from the impacts associated with incineration. In addition, the Army's subsequent reviews were thorough, and the Army took a hard look at new information and provided a reasoned explanation as to why the information was insignificant. Nor was the Army's decision not to prepare a supplemental EIS arbitrary or capricious under the APA. Chemical Weapons Working Group v. United States Department of Defense, No. 03-645, 39 ELR 20191 (D.D.C. Aug. 19, 2009) (Eaton, J.).


TORT LAW, RADIATION:



The Tenth Circuit affirmed a lower court decision dismissing claims for alleged radiation injuries to residents of Uravan, Colorado, a former uranium and vanadium milling town owned and operated by two mining companies. The residents asserted claims for personal injury based on disease or death allegedly caused by radiation as well as claims for medical monitoring to detect the onset of disease in those plaintiffs who were asymptomatic. Twenty-seven plaintiffs are pursuing personal-injury claims and 152 are pursuing only medical-monitoring claims. Of the 27 personal-injury plaintiffs, 11 have been diagnosed with nonthyroid cancer and 16 have been diagnosed with thyroid disease (including one case of thyroid cancer). The residents' personal-injury claims fail for lack of evidence of factual causation. They failed to present to the court evidence, or even an argument, that radiation was either a but-for cause of any medical condition suffered by one of the plaintiffs or that radiation was a necessary component of a causal set of facts that would probably have caused one of those conditions. In addition, the residents' medical-monitoring claims fail for lack of evidence of a "bodily injury" as required by the Price-Anderson Act. DNA damage and cell death, which creates only a possibility of clinical disease, does not constitute a bodily injury under the Act. June v. Union Carbide Corp., No. 07-1532, 39 ELR 20196 (10th Cir. Aug. 21, 2009).


INSURANCE, POLLUTION EXCLUSION:



A district court held that under Florida law, a pollution exclusion contained in a swimming pool's insurance policy unambiguously applies to harmful microbes allegedly present in the pool. As defined under the plain language of the policy, the term pollutant includes contaminant. Because the record evidence demonstrates that the substance in the swimming pool was a viral contaminant and a harmful microbe, the pollutant exclusion applies. Thus, the insurer has no duty to defend or indemnify the swimming club in an underlying state court action for injuries stemming from a swimmer's exposure to viral contaminants. First Specialty Insurance Corp. v. GRS Management Associates, Inc., No. 08-81356, 39 ELR 20195 (S.D. Fla. Aug. 17, 2009) (Marra, J.).


OIL TANKERS, DOUBLE HULLS:



The Fourth Circuit reversed a lower court decision rejecting the U.S. Coast Guard's interpretation of its own regulations concerning the installation of double hulls on oil tankers overseas. Under U.S. law, a vessel becomes ineligible to participate in the coastwise trade if significant work is performed on the vessel in a foreign shipyard. In this case, the Coast Guard determined that because work performed in China on the inner hull of an oil tanker, the Seabulk Trader, did not constitute a separable major component of the ship, it was not considered "rebuilt foreign" and, thus, was entitled to retain its coastwise endorsement. The language of the applicable regulation does not, in itself, provide clear guidance on how to determine which test should be used to determine whether the work is "rebuilt foreign." Here, the Coast Guard's interpretation offers a holistic vision of the regulation that gives effect to each of its provisions, and its interpretation comports with the plain language of the regulatory and statutory schemes. The interpretation is longstanding, has been consistently applied in the same manner, and comports with the congressional intent of the governing statute. The Coast Guard was therefore entitled to deference. Shipbuilders Council of America v. United States Coast Guard, Nos. 08-1546, -1702, 39 ELR 20198 (4th Cir. Aug. 21, 2009).


CRIMINAL LAW, "WASTE FACILITY":



Maine's highest court upheld the conviction entered against an individual hired to remove contamination stemming from an oil spill after a large piece of logging equipment caught on fire. Instead of cleaning up the site, the individual merely removed some of the contaminated soil and dumped it at a nearby site. The individual was convicted under state law for the intentional violation of an environmental protection law, here, a law governing the creation or operation of a "waste facility." The individual argued that he did not engage in an intentional violation of the environmental protection law because he did not establish, construct, alter, or operate a "waste facility." But by moving oil, contaminated soil, and debris to a different location and dumping it at a previously uncontaminated location, the individual created a waste facility as defined by the waste facility law and thus intentionally violated that law. The court also affirmed the individual's conviction for theft by deception. Maine v. McLaughlin, No. 08-625, 39 ELR 20202 (Me. Aug. 18, 2009).


CALIFORNIA ENVIRONMENTAL QUALITY ACT, ENVIRONMENTAL IMPACT REPORTS:



A California appellate court affirmed the denial of a petition for review of a city's certification of an environmental impact report (EIR) and approval of a conditional use permit for the construction of a large food store. The city council approved the EIR after adding additional information to the report. A community group argued that the city council's certification of the EIR and approval of the project application must be set aside because the city council did not obtain the planning commission's review of the amended EIR before the council certified it and approved the project application. But California Environmental Quality Act guidelines and the city's municipal ordinances did not require the planning commission to review the EIR, as amended, and make a new recommendation to the city council before the city council could act. Tracy First v. Tracy, No. C059227, 39 ELR 20188 (Cal. App. 3d Dist. Aug. 27, 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 emission standards for new marine diesel engines on U.S. vessels beginning in 2011 and restrictions on the amount of sulfur in diesel fuel. 74 FR 44442 (8/28/09).

  • EPA proposed visibility and cost-effectiveness improvements for two coal-fired power plants, the Four Corners Power Plant and the Navajo Generating Station, located on the Navajo Nation. 74 FR 44314 (8/28/09).

  • EPA proposed a standard of 7.8 pounds per square inch Reid vapor pressure for gasoline in the Denver-Boulder-Greeley-Ft. Collins-Loveland, Colorado, 1997 eight-hour ozone nonattainment area beginning in 2010. 74 FR 42619 (8/24/09).

  • EPA responded to a D.C. Circuit Court decision regarding CAA §112(d) emission standards during periods of startup, shutdown, and malfunction. 74 FR 43124 (8/26/09).

  • EPA entered into a proposed consent decree under the CAA requiring the Agency to outline objections to an operating permit issued to the Hugh L. Spurlock Generating Station in Maysville, Kentucky, by no later than November 30, 2009. 74 FR 43698 (8/27/09).

  • EPA entered into a proposed settlement agreement under the CAA that requires the Agency to issue a final determination on revision of national radon emission standards. 74 FR 45851 (9/4/09).

  • SIP Approvals: California (definition of volatile organic compound (VOC), gasoline, and organic solvents for the San Joaquin Valley unified air pollution control district and the Santa Barbara County air pollution control district) 74 FR 44291 (8/28/09); (VOC emissions from leaking components for the Antelope Valley air quality management district) 74 FR 44294 (8/28/09). Louisiana (emissions inventory requirements for the Baton Rouge ozone nonattainment area) 74 FR 45561 (9/3/09). Virginia (opacity variance for rocket motor test operations) 74 FR 45766 (9/4/09).

  • SIP Proposals: Arizona (particulate matter (PM) emissions from non-metallic mineral mining and processing in the Maricopa County serious PM-10 nonattainment area) 74 FR 43085 (8/26/09). California (definition of VOC, gasoline, and organic solvents for the San Joaquin Valley unified air pollution control district and the Santa Barbara County air pollution control district; see above for direct final rule) 74 FR 44334 (8/28/09); (VOC emissions from leaking components for the Antelope Valley air quality management district; see above for direct final rule) 74 FR 44335 (8/28/09); (reclassification of the San Joaquin Valley, South Coast Air Basin, Coachella Valley, and Sacramento Metro 1997 eight-hour ozone nonattainment areas) 74 FR 43654 (8/27/09). Louisiana (emissions inventory requirements for the Baton Rouge ozone nonattainment area; see above for direct final rule) 74 FR 45578 (9/3/09). New York (disapproval of the reasonably available control technology requirement and measure analysis for the NY-NJ-CT eight-hour ozone moderate nonattainment area) 74 FR 42813 (8/25/09). Puerto Rico (limited maintenance plan for the Guaynabo nonattainment area and redesignation to attainment for NAAQS for fine particulate matter) 74 FR 45387 (9/2/09). Virginia (opacity variance for rocket motor test operations; see above for direct final rule) 74 FR 45795 (9/4/09).

HAZARDOUS & SOLID WASTE:



  • EPA gave final authorization to Kansas' municipal solid waste landfill permit program. 74 FR 45769 (9/4/09).

  • EPA proposed giving final authorization to Kansas' municipal solid waste landfill permit program; see above for direct final rule. 74 FR 45796 (9/4/09).

  • EPA Region III entered into a proposed administrative settlement under CERCLA that requires one settling party to pay $185,000 in past U.S. response costs incurred at the Coeburn Produce disposal site in Coeburn, Virginia; the other settling party must impose institutional controls and maintain the remedy at the site. 74 FR 45852 (9/4/09).

  • EPA entered into an administrative settlement for reimbursement of past U.S. response costs incurred at the Vertut Blending and Packaging Superfund site in Memphis, Tennessee. 74 FR 45203 (9/1/09).

MINING:



  • OSM approved an amendment to Utah's regulatory program under SMCRA concerning the sealing of wells and boreholes, permit review responsibilities, and the definition of intermittent stream. 74 FR 45116 (9/1/09).

TOXIC SUBSTANCES:



  • EPA announced a change in the handling of trade secret and confidential information submitted to the Toxics Release Inventory (TRI) program under EPCRA reporting requirements. 74 FR 42896 (8/25/09).

  • EPA proposed modifications to the TRI program dealing with releases due to natural weathering of products and wood that has completed the treatment process. 74 FR 42625 (8/24/09).

WATER:



  • EPA proposed technology-based effluent limitation guidelines and new source performance standards under the CWA for discharges from airport deicing operations. 74 FR 44676 (8/28/09).

  • EPA added supplements to and seeks comment on its July 25, 2008, proposed rule entitled Federal Requirements Under the Underground Injection Control Program for Carbon Dioxide Geologic Sequestration Wells. 74 FR 44802 (8/31/09).

  • EPA Region 4 issued the final NPDES general permit for stormwater discharges from new dischargers engaged in large and small construction activities on Indian country lands. 74 FR 43120 (8/26/09).

  • EPA entered into a proposed consent agreement requiring a financial services organization to pay a $36,083 civil penalty for violations of the CWA, EPCRA, and the CAA at its facilities nationwide. 74 FR 45637 (9/3/09).

WILDLIFE:



  • FWS proposed to designate approximately 802 acres in Riverside and San Diego counties, California, as critical habitat for Ambrosia pumila. 74 FR 44238 (8/27/09).

  • FWS announced a 90-day finding on a petition to list the Sonoran desert tortoise as a distinct population segment and to designate critical habitat under the ESA; the Agency found that listing may be warranted and initiated a 12-month status review. 74 FR 44335 (8/28/09).

  • FWS announced its 12-month finding on a petition to list the Sacramento Mountains checkerspot butterfly as an endangered species and to designate critical habitat under the ESA; the Agency found that listing is not warranted. 74 FR 45396 (9/2/09).

  • NOAA and the U.S. Coast Guard defined "marine debris" for purposes of the Marine Debris Research, Prevention, and Reduction Act of 2006 as "any persistent solid material that is manufactured or processed and directly or indirectly, intentionally or unintentionally, disposed of or abandoned into the marine environment or the Great Lakes." 74 FR 45555 (9/3/09).

  • NOAA-Fisheries reclassified the Upper Columbia River steelhead distinct population segment as threatened under the ESA. 74 FR 42605 (8/24/09).

  • NOAA-Fisheries designated approximately 840,472 acres along the southwestern coast of Florida as critical habitat for the distinct population segment of smalltooth sawfish. 74 FR 45353 (9/2/09).

DOJ NOTICES OF SETTLEMENT:



  • United States v. Vertellus Agriculture & Nutrition Specialties LLC, No. 1:09-cv-1030-SEB-TAB (S.D. Ind. Aug. 21, 2009). A settling CAA defendant must pay a $450,000 civil penalty, must implement appropriate injunctive relief, and must perform a $705,000 supplemental environmental project for violations at a specialty chemical manufacturing facility in Indianapolis, Indiana. 74 FR 43724 (8/27/09).

  • United States v. Ameripride Services, Inc., No. 3:09-cv-1333 (WWE) (D. Conn. Aug. 24, 2009). A settling CWA defendant must pay a $525,000 civil penalty and must submit periodic compliance reports for violations at its laundry facility in Hartford, Connecticut. 74 FR 43725 (8/27/09).

  • United States v. First Chemical Corp., No. 1:09-cv-00637-LG-RHW (S.D. Miss. Aug. 20, 2009). A settling CAA defendant must pay a $731,000 civil penalty and must perform injunctive relief for general duty of care violations at its chemical manufacturing complex in Pascagoula, Mississippi. 74 FR 43156 (8/26/09).

  • United States v. City of Los Angeles, No. 01-191-RSWL (C.D. Cal. Aug. 20, 2009). Under a modified October 28, 2004 settlement agreement, a settling CWA defendant must take new and/or modified actions, with community involvement, to control odors from its sewers; two supplemental environmental projects will be replaced with a new project at the same cost to the city. 74 FR 43156 (8/26/09).

  • United States v. Childress Royalty Co., No. 3:09-cv-05071-GAF (W.D. Mo. Aug. 20, 2009). Settling CERCLA defendants must pay all past and future U.S. response costs incurred at the Oronogo/Duenweg Mining Belt Superfund site in Jasper County, Missouri. 74 FR 43157 (8/26/09).

  • United States v. Cooper Land Development, No. 08-0709-CV-W-SOW (W.D. Mo. Aug. 18, 2009). Settling CWA defendants must pay $513,740 in penalties to the United States for violations of its NPDES stormwater permit at two residential construction sites in Daniels, West Virginia, and Raymore, Missouri, and must undertake injunctive measures to improve compliance with requirements. 74 FR 42922 (8/25/09).

  • United States v. City of West Point, No. 08-00293 (D. Neb. Aug 13, 2009). A settling CWA defendant must pay a $100,000 civil penalty to the United States, must pay a $50,000 civil penalty to Nebraska, and must contribute $50,000 to the Nebraska Attorney General's Environmental Protection Fund. 74 FR 42687 (8/24/09).

  • United States v. Bowater Inc. (1:09-cv-00223) (E.D. Tenn. Aug. 25, 2009). A settling CAA defendant must pay a pre-petition general unsecured claim of $30,000 and must seek an amended state operating permit for violations at its pulp and paper mill in Calhoun, Tennessee. 74 FR 45241 (9/1/09).

  • United States v. D.D. Williamson & Co., Inc., No. 3:09 cv 633 (W.D. Ky. Aug. 20, 2009). A settling CAA defendant must pay a $600,000 civil penalty to the United States and Kentucky; must hire an independent engineering consultant to conduct a full hazard operability study of its manufacturing operations; must implement the study's recommendations; and must train its managers in process-hazard assessment techniques. 74 FR 45242 (9/1/09).

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


THE CONGRESS
Congress is currently in recess but will reconvene on September 8, 2009.

 


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


IN THE STATES

Note: The entries below cover state developments since the last issue of Update. The entries are arranged by state, and within each section, entries are further subdivided by subject matter area. To access material previously reported in 2009, visit our list of Cumulative State Developments. For state material reported prior to 2009, visit the ELR Archives.


The states below have updates this week:





















Alabama Delaware Maryland
Alaska Florida Massachusetts
Arizona Georgia Missouri
California Illinois Nevada
Colorado Indiana Virginia

ALABAMA


Water:



  • The Department of Environmental Management will hold a public hearing on proposed amendments to Ala. Admin. Code r. 335-6-10-.09, Specific Water Quality Criteria; and Ala. Admin. Code r. 335-6-11-.02, Use Classifications. The amendments would change the bacterial indicator organisms and associated criteria for non-coastal waters from fecal coliform to Escherichia coli to be consistent with U.S. EPA recommendations for protection against waterborne illnesses. The Department also proposed upgrades in use classifications for segments of Hurtsboro Creek in the Chattahoochee River Basin and the Magnolia River in the Mobile River-Mobile Bay Basin, respectively. The hearing will be October 14, 2009. See http://www.adem.state.al.us//PublicNotice/Aug09/8waterquality.htm

ALASKA


Air:



  • The Department of Environmental Conservation will hold a public haring on proposed amendments to Alaska Admin. Code tit. 18, §50, Air Quality Controls. The amendments would include the primary and secondary NAAQS for fine particulate matter (PM2.5), ozone, and lead; adopt by reference changes made to Alaska's Transportation Conformity SIP; adopt by reference the federal reference and determination methods for monitoring and measuring PM2.5, ozone, and lead in ambient air; adopt by reference changes made to the federal transportation conformity regulations; require projects located within PM2.5 nonattainment areas to conduct a PM2.5 hot-spot analysis; change the public involvement process for conformity determinations; and include definitions for PM2.5 and ozone. The hearing will be September 23, 2009. See http://notes4.state.ak.us/pn/pubnotic.nsf/cc52605f7c156e7a8925672a0060a91b/120a34abdb1daf1589257618007e9dcf?OpenDocument

ARIZONA


Water:



CALIFORNIA


Land Use:



  • The Department of Fish and Game will hold a public hearing on proposed amendments to Cal. Code Regs. tit. 14, §699.5, relating to the fee schedule for lake and streambed alteration agreements. The amendments would adjust the fees in the fee schedule for inflation in 2007, 2008, and 2009. The hearing will be September 29, 2009. See http://www.oal.ca.gov/pdfs/notice/33z-2009.pdf (pp. 1292-95)

COLORADO


Air:



DELAWARE


Air:



Hazardous & Solid Waste:



FLORIDA


Water:



  • The Southwest Florida Water Management District began development of proposed amendments to Fla. Admin. Code Ann. r. 40D-1.607, Permit Processing Fee; and Fla. Admin. Code Ann. r.40D-2.322, 20-Year Permit Requirements. The changes would increase each permit application fee to require a minimum fee of $250 for a Noticed General Permit or Individual permit, require a minimum fee of $100 for verification that an activity is exempt from regulation, provide for the periodic adjustment of those fees, and set forth the reporting and compliance requirements for water use permits issued for 20 years or longer. See https://www.flrules.org/Faw/FAWDocuments/FAWVOLUMEFOLDERS2009/3532/3532doc.pdf (pp. 3849-850)

  • The Southwest Florida Water Management District proposed amendments to Fla. Admin. Code Ann. r. 40D-1.600, Permit Applications: General and Noticed General Permits; 40D-1.604, Bonds; 40D-1.6105, Limiting Conditions; 40D-1.1003, Time for Consideration of a Petition for an Emergency Variance or Waiver; 40D-1.1010, Point of Entry into Proceedings; 40D-2.041 Permits Required; 40D-2.091, Publications Incorporated by Reference; 40D-2.311, Competing Applications; 40D-2.331, Modification of Permits; 40D-2.381, Standard Permit Conditions; 40D-4.021, Definitions; 40D-4.091, Publications and Agreements Incorporated by Reference; 40D-40.302, Conditions for Issuance of General Permits; and 40D-40.381, General Conditions. See https://www.flrules.org/Faw/FAWDocuments/FAWVOLUMEFOLDERS2009/3532/3532doc.pdf (pp. 3869-873)

  • The Suwannee River Water Management District has begun development on proposed amendments to Fla. Admin. Code Ann. r. 40B-4.3020, Content of Works of the District Development Permit Applications. The effect of the proposed rule amendments will be to include additional content on the application form for the applicants to verify that the applicant understands certain requirements for projects within works of the District. See https://www.flrules.org/Faw/FAWDocuments/FAWVOLUMEFOLDERS2009/3533/3533doc.pdf (p. 3951)

  • The Southwest Florida Water Management District has begun development on proposed amendments to Fla. Admin. Code Ann. r. 40D-3.037, Rules, Publications and Agreements Incorporated by Reference. The amendments incorporate by reference a revised Appendix dated July 2009 to the Memorandum of Agreement Between U.S. EPA, Region IV, Superfund Division and the Southwest Florida Water Management District. The revised appendix adds the Alaric Area Groundwater Plume, Helena Chemical Company and Stauffer Chemical Company Combined Superfund Sites, located in Hillsborough County, to the list of Superfund sites to be addressed by the agreement. See https://www.flrules.org/Faw/FAWDocuments/FAWVOLUMEFOLDERS2009/3533/3533doc.pdf (p. 3951)

GEORGIA


Air:



  • The Department of Natural Resources will hold a public hearing on proposed amendments to Ga. Comp. R. & Regs. r. 391-3-1-.02(4), Ambient Air Standards; Ga. Comp. R. & Regs. r. 391-3-1-.02(7), Prevention of Significant Deterioration of Air Quality; Ga. Comp. R. & Regs. r. 391-3-1-.02(9)(b), Emission Standards for Hazardous Air Pollutants. The amendments would correct the PM2.5 annual standards so that the number of significant digits is consistent with the federal standard, and incorporate additional standards to be consistent with federal standards. The hearing will be September 29, 2009. See http://www.gaepd.org/environet/1/20090830_notice.pdf

ILLINOIS


Air:



  • The Pollution Control Board adopted amendments to 35 Ill. Code r. 201, Permits and General Provisions; 211, Definitions and General Provisions; and 217, Nitrogen Oxides (NOx) Emissions. The amendments control NOx emissions from engines and turbines located at 100 ton per year sources located in the Chicago and Metro East/St. Louis nonattainment areas with a capacity of 500 brake horsepower or 3.5 megawatts. See http://www.cyberdriveillinois.com/departments/index/register/register_volume33_issue34.pdf (pp. 11965-12031)

Water:



  • The Pollution Control Board adopted amendments to 35 Ill. Code r. 303, Water Use Designations and Site-Specific Water Quality Standards. The amendments establish a 3.0 milligram per liter (mg/L) alternative boron standard to the generally applicable 1.0 mg/L boron water quality standard. The alternative standard for boron applies to certain segments of an unnamed tributary to the South Branch of the Edwards River, the South Branch of the Edwards River, and the Mud Creek Run. See http://www.cyberdriveillinois.com/departments/index/register/register_volume33_issue35.pdf (p. 12258-262)

INDIANA


Air:



Hazardous and Solid Waste:



Water:



MARYLAND


Land Use:



  • The Department of Natural Resources proposed amendments to Md. Regs. Code tit. 08, §19.01 (2009), General; §19.02, State Review and Approval of a Local Program; §19.04, State Forest Conservation Program; and §19.05, Forest Conservation Maintenance and Management Agreements. The proposal amends the intrafamily exemption to only apply to the owner or child of the owner, requires a variance for any disturbance to specific priority areas for retention, clarifies the off-site protection of existing forest language, amends the county forest conservation fund rate, and adds to the acceptable uses for the local forest conservation fund. See http://www.dsd.state.md.us/mdregister/3618/index.htm#General_13

MASSACHUSETTS


Toxic Substances:



  • The Department of Environmental Protection adopted amendments to 310 Mass. Code Regs. 19.00, 74.00, 75.00, and 76.00--Collection, Recycling, Labeling and Sales Ban of Mercury-added Products and Disposal Prohibition of Mercury-added Products in Solid Waste. The regulations ban the sale in Massachusetts of specific mercury-added products, establish a procedure for manufacturers to apply for an exemption from the sales ban, and establish labeling requirements for mercury-added products that are sold in Massachusetts. The regulations also prohibit disposal of any mercury-added product in solid waste. See http://www.mass.gov/dep/service/approvals/erpregs.htm#hg2

MISSOURI


General:



  • The Department of Natural Resources adopted emergency amendments to 10 CSR 70-5.010, Apportionment of Funds; 10 CSR 70-5.020, Application and Eligibility for Funds; 10 CSR 70-5.030, Design, Layout and Construction of Proposed Practices; Operation and Maintenance; 10 CSR 70-5.040, Rates and Reimbursement Procedures; 10 CSR 70-5.050, District Administration of the Program; and 10 CSR 70-5.060, Commission Administration of the Program. The amendments clarify that the program is no longer limited solely to traditional cost-share practices, but now also includes other types of incentives for practices designed to preserve the soil and protect water resources of the state. See http://www.sos.mo.gov/adrules/moreg/current/2009/v34n17/v34n17a.pdf (pp. 1779-787)

NEVADA


Hazardous & Solid Waste:



  • The State Environmental Commission adopted amendments to Nevada Admin. Code §445A, relating to hazardous waste, hazardous substances, and USTs. The rules authorize the Department of Conservation and Natural Resources to require an owner or operator of a facility to carry out a plan for additional characterization of a contaminated site; authorize the Director of the Department to consider certain activity in determining whether to accept an action level for soil under certain circumstances; revise the requirements for conducting an assessment of a contaminated site; revise the immediate actions that an owner or operator must take upon the release of a hazardous substance, hazardous waste, or a regulated substance; authorize an action level for soil to be based upon a study approved by the Division under certain circumstances; revise the circumstances under which the Director may grant an exemption from certain corrective actions; and revise provisions governing releases from USTs. See http://www.leg.state.nv.us/register/2008Register/R189-08A.pdf

VIRGINIA


Water:



  • The State Water Control Board adopted amendments to 9 Va. Admin. Code §25-31, Virginia Pollutant Discharge Elimination System Permit Regulation; and 9 Va. Admin. Code §25-32, Virginia Pollution Abatement Permit Regulation. The changes clarify public notice requirements for permit applications for land application acreage increases of 50% or more and clarify when a permit for land application is issued in relation to the public meeting and public comment opportunity on the application. The resulting regulatory changes provide that an application for any permit amendments to increase the acreage authorized by the initial permit by 50% or more shall be treated as a new application for purposes of public notice and public hearings and provide that the board shall not issue the permit for land disposal until the public meeting has been held and comment has been received from the local governing body, or until 30 days have lapsed from the date of the public meeting. See http://legis.state.va.us/codecomm/register/vol25/iss26/f9v2531.html; and http://legis.state.va.us/codecomm/register/vol25/iss26/f9v2532.html

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


INTERNATIONAL

REPUBLIC OF KOREA AND UNEP PLEDGE GREEN GROWTH PARTNERSHIP


A partnership between the Republic of Korea and the United Nations Environment Programme (UNEP) aimed at supporting the country's strategy towards a sustainable "green" economic future was announced in late August. Under the plan, UNEP has produced an interim report entitled Overview of the South Korean Green Growth National Vision. This is an independent review of the country's "Green Growth National Vision" and five-year Green Growth Plan and is the first in a series of national and regional initiatives planned by UNEP as part of its Green Economy Initiative. Achim Steiner, UN Under-Secretary General and UNEP Executive Director, said, "While many countries have factored some level of environmental investment in their economic stimulus packages, it is in Asia where the green economy has seen the biggest green light. Indeed, two thirds of the global green stimulus packages have been in countries such as China, Japan, the Republic of Korea and Australia." For the full story, see http://www.unep.org/Documents.Multilingual/Default.asp?DocumentID=594&ArticleID=6277&l=en

TIME TO TAP CLIMATE CHANGE-COMBATTING POTENTIAL OF THE WORLD'S ECOSYSTEMS


Investing in restoration and maintenance of the Earth's multi-trillion dollar ecosystems--from forests and mangroves to wetlands and river basins--can have a key role in countering climate change and climate-proofing vulnerable economies. This is among the central findings of a new climate issues update by The Economics of Ecosystems and Biodiversity (TEEB), a project launched by Germany and the European Commission in response to a proposal by the G8+5 Environment Ministers to develop a global study on the economics of biodiversity loss. The study, hosted by UNEP, says the planet's biological diversity and "ecological infrastructure" are increasingly being put at risk from the impact of climbing greenhouse gases. Yet natural systems represent one of the biggest untapped allies against the greatest challenge of this generation, says the paper, part of a stream of work towards a final study in 2010. The update underlines that an agreement on funding for forests is a key priority for governments attending the crucial United Nations climate convention meeting in Copenhagen in December. For the full story, see http://www.unep.org/Documents.Multilingual/Default.asp?DocumentID=596&ArticleID=6294&l=en

AFRICA (RE)DEFINES THE CLIMATE DIALOGUE



The African Union's 10-country meeting attempting to establish a united front on climate change marks a potentially intriguing step along what has become a forgotten avenue of the UN climate process. The continent is the world's poorest, the least able to protect its societies and economies against any harmful impacts of climate change. Yet it is also likely, if the projections of climate models hold true, to feel some of the most significant impacts, including reductions in agricultural output and salinization of water supplies. A number of factors, not least lack of capacity and government resources, mean African interests have not always received the attention they needed in the UN climate process. Whether an entire continent can speak with one voice isn't yet clear. Africa itself encompasses a wide range of economic development, natural environment and political systems. But the African Union initiative might help. By pointing out the differences in wealth and capacity between the richest and poorest "developing countries," it might also push the UN climate process toward a more meaningful and just manifestation of "common but differentiated responsibilities" than exists today. For the full story, see http://www.bbc.co.uk/blogs/thereporters/richardblack/2009/08/africa_redefines_the_climate_d.html


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


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