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Weekly Update Volume 39, Issue 26

09/21/2009

LITIGATION

CAA, PREVENTION OF SIGNIFICANT DETERIORATION:



The Seventh Circuit dismissed Michigan's petition for review of an EPA rule redesignating certain Native American lands to class I status under the CAA's prevention of significant deterioration (PSD) program. Michigan's challenge raises some important issues about the PSD program's regulatory structure, but the state failed to allege a cognizable injury in fact and, thus, lacks standing. Michigan argued that EPA should have required the tribe to promulgate a tribal implementation plan, but the state may not establish standing by simply identifying a procedural defect in the redesignation process. As for its objection to EPA's imposition of class I requirements on Michigan sources, the state should pursue its dispute with Congress, not the courts, since EPA imposed the same restrictions that apply to emissions that will reach any class I area. Nor is there any evidence indicating that the new restrictions affect Michigan directly; rather, they affect emitting sources within Michigan that want to construct new facilities or modify existing ones. And Michigan's argument that the redesignation creates numerous complications and unworkable conflicts in its air pollution programs is outside the scope of the court's review. Michigan v. United States Environmental Protection Agency, No. 08-2582, 39 ELR 20204 (7th Cir. Sept. 9, 2009).


CWA, IMPAIRED WATERS:



The Eighth Circuit affirmed a lower court decision dismissing an environmental group's complaint against EPA challenging its approval of Iowa's CWA §303(d) list. The group argued that because Iowa failed to consider all relevant data, including its §305(b) report, EPA also failed to consider important information when approving the §303(d) list. But the regulations do not require Iowa to include all §305(b) waters on its §303(d) list, and Iowa provided a rationale for each §305(b) water that it did not include on its draft §303(d) list. Whether Iowa has shown "good cause" for its determination not to include §305(b) waters on the §303(d) list is a question for which EPA's judgment is given deference. The group also claimed that EPA erred by allowing Iowa to omit from its §303(d) list waters that were impaired but not by any "pollutant" as defined by CWA §502(6). Although §303(d) may allow EPA to include all impaired waters on a state's §303(d) list, it does not require EPA to include impaired waters where the Agency has determined that the impairment is due to something other than a pollutant. The court also rejected claims that EPA erred by inappropriately addressing several aspects of Iowa's listing methodology. Thomas v. Jackson, No. 08-2152, 39 ELR 20205 (8th Cir. Sept. 10, 2009).


CERCLA, "FACILITY":



A district court held that a city sewer is not excluded from CERCLA's expansive definition of "facility." A property owner filed suit against the city for contamination stemming, in part, from a leaky sewer line. The city then filed a motion for partial summary judgment, arguing that it should not be liable since the sewer is not a facility. But having considered the merits of the city's proposed interpretation exempting sewers from CERCLA's definition of facility, including whether the exemption could be limited to public sewers, whether it would be consistent with other statutory provisions and CERCLA's policy goals, and whether it is supported by caselaw, the court concluded that the sewer in this case is a facility for purposes of CERCLA. In addition, the city failed to satisfy the innocent-party defense. Genuine issues of material fact remain as whether a third party was the sole cause of the contamination and whether the city exercised due care and took appropriate precautions. The court rejected therefore rejected the city's motion for partial summary judgment. Adobe Lumber, Inc. v. Hellman, No. 05-1510, 30 ELR 20210 (E.D. Cal. Sept. 4, 2009) (Shubb, J.).


CERCLA, RESPONSE COSTS:



A district court held that costs related to the construction of a seawall for erosion control are not response costs under CERCLA. The case involves two property owners who filed suit against one another regarding the maintenance of a creek running between their properties. One of the owners claimed she incurred approximately $135,000 in damages and response costs, including $65,309.57 for engineering and construction costs and expenses to erect a seawall for erosion control, including bank stabilization and foundation rehabilitation. These costs were not incurred in response to a threat of human health and the environment. Because the owner failed to show that she incurred necessary response costs consistent with the national contingency plan, the other owner is entitled to summary judgment on this claim. Dunn v. Savage, No. 04-75061, 39 ELR 20211 (E.D. Mich. Aug. 27, 2009) (O'Meara, J.).


NEPA, EIS:



The Ninth Circuit held that BLM failed to take a "hard look" at the environmental consequences of a proposed land exchange between the agency and a mining company in violation of NEPA. The land exchange would transfer ownership of certain BLM property to a mining company, thereby allowing the company to conduct mining operations on the land without having to comply with the Mining Law of 1872. In its EIS, BLM assumed that the company would carry out mining operations on the land in the same manner whether or not the land exchange occurred. Based on this assumption, BLM did not prepare a comparative analysis of the environmental consequences for the different alternatives proposed. Substantial evidence in the record, however, does not support BLM's assumption. By failing to provide a comparative analysis of the likely environmental consequences of the proposed land exchange, on the one hand, and the no action alternative, on the other, BLM violated NEPA. Similarly, BLM's conclusion in the record of decision that the proposed land exchange is in the "public interest" under FLPMA was arbitrary and capricious because it was also based on BLM's erroneous assumption. Center for Biological Diversity v. United States Department of Interior, No. 07-16423, 39 ELR 20193 (9th Cir. Sept. 14, 2009).


NEPA, EIS:



The Ninth Circuit affirmed a lower court decision dismissing an Alaskan community's lawsuit against the Minerals Management Service (MMS) challenging its decision not to prepare a supplemental EIS for a proposed oil and gas lease sale on a tract of the outer continental shelf in the Beaufort Sea. MMS satisfied its duties under NEPA by taking the requisite "hard look" at new information concerning the impact of rising oil prices on the activities related to the lease sale and issuing a finding of no new significance. The agency did not act arbitrarily or capriciously in determining no supplemental EIS was required to address new information about the impact of seismic activity on Inupiat subsistence activities. Nor did MMS act arbitrarily or capriciously in determining that the risks posed to polar bears by the cumulative effects of global warming could be mitigated. North Slope Borough v. Minerals Management Service, No. 08-35180, 39 ELR 20208 (9th Cir. Aug. 27, 2009).


NEPA, EIS:



A district court dismissed two local water agencies' NEPA action against various federal and state regulatory agencies, water districts, and other interested parties involved in the development and environmental review of the Bay Delta Conservation Plan, a yet-to-be consummated collaborative approach to restoring the Sacramento-San Joaquin River Delta ecosystem while also protecting water supplies. NOAA-Fisheries and the FWS published notices in the Federal Register announcing their intent to conduct public scoping and to prepare an EIS for the plan. The local water agencies filed suit under NEPA, arguing that the notices were too ambiguous and that too many lead agencies were involved. The water agencies, however, lack standing. Unlike most NEPA suits, the action challenged here is not the preparation (or lack thereof) of an EIS, but only the lead agencies' decision to publish a notice of intent and to conduct scoping without first publishing a detailed draft of the plan. Further, there are no prescribed rules or procedures that govern preparation of the plan. Accordingly, the agencies do not set forth a plausible basis for finding that the challenged actions--the failure to issue a sufficiently detailed notice of intent, and the designation of multiple lead agencies--are reasonably likely to harm their concrete interests in the Delta. Alternatively, the agencies' NEPA claim is not ripe for review since no project has yet been formulated and the record cannot possibly reveal whether any NEPA procedural violation has deprived agency decisionmakers of an informed awareness of significant environmental consequences. Nor does the claim fall within the APA's limited grant of sovereign immunity since there has been no final agency action. Central Delta Water Agency v. United States Fish & Wildlife Service, No. 1:09-CV-00861, 39 ELR 20206 (E.D. Cal. Sept. 8, 2009) (Wanger, J.) (Defense council included Nicholas C. Yost of Sonnenschein Nath & Rosenthal, LLP, in San Francisco, Cal.).


NEPA, CWA:



A district court held that the FHwA and a state highway department arbitrarily and capriciously approved a highway expansion project in Southeastern Wisconsin in violation of NEPA and that two U.S. Army Corps of Engineers permits issued in conjunction with the project must be set aside. The highway agencies' EIS was inadequate under NEPA. The agencies' discussion of indirect effects in the EIS is simply a summary of land use plans and survey responses followed by a bare conclusion that the expansion would not substantially influence development. It fails to include even one sentence explaining how the agencies reached this conclusion. Further, while the EIS includes a section discussing cumulative impacts to wetlands, surface water, agricultural lands, and upland woods, the EIS fails to provide a meaningful discussion of how the agencies' decision regarding the highway project fits into the overall cumulative impact to these resources. The agencies also failed to determine whether it is possible to provide additional transportation capacity through a less environmentally destructive alternative. And because the EIS' discussion of reasonable alternatives was deficient, the Corps' issuance of two dredge and fill permits based on that EIS must be vacated and remanded for reconsideration. In addition, the FHwA's approval of the project violated the Federal Air Highway Act's public hearing requirement. The highway agencies, however, need not prepare a supplemental EIS since the group challenging the highway project failed to show that recent land use plans seriously change the environmental picture such that another hard look is necessary. Highway J Citizens Group v. United States Department of Transportation, No. 05-0212, 39 ELR 20212 (E.D. Wis. Sept. 14, 2009).


FEDERAL JURISDICTION, PREEMPTION:



A district court held that it lacks jurisdiction over a lawsuit filed by the U.S. Virgin Islands natural resources commissioner against two chemical companies for negligence, strict liability, and nuisance in connection with the contamination of an aquifer that was once a significant source of drinking water for the commonwealth. The companies are the manufacturers and suppliers of chemicals used by dry cleaning operators. The commissioner argued that the companies failed to adequately warn those operators of the dangers posed by those chemicals and that the companies' tortious conduct caused the contamination of the aquifer. He filed a motion asking the court to dismiss the matter without prejudice for lack of subject matter jurisdiction so that the case would no longer be held in federal court. The companies argued that the case should remain in federal court because the claims are preempted by CERCLA. But CERCLA does not provide a federal cause of action vindicating the same interests sought to be vindicated by the claims asserted against the companies in the complaint. Nor does the complaint raise substantial and disputed questions of federal law under CERCLA sufficient to confer federal jurisdiction. Mathes v. Vulcan Materials Co., No. 2006-229, 39 ELR 20207 (D.V.I. Aug. 21, 2009) (Gómez, J.).


CLASS ACTION FAIRNESS ACT, REMOVAL:



The Tenth Circuit affirmed a lower court decision remanding to state court residents' class action lawsuit against a mining company for property contamination stemming from the company's mining operations. The residents originally filed the suit in state court, but the company removed the case to federal court, asserting federal jurisdiction based on the Class Action Fairness Act (CAFA) and CERCLA. The residents filed a motion to remand, and the lower court properly granted that motion. The residents demonstrated that their case fell within the "local controversy exception" to CAFA. The mining company is a defendant "from whom significant relief is sought by members of the plaintiff class." Moreover, even though the company is a New York corporation, it is considered an Oklahoma citizen under CAFA because its principal place of business is in Oklahoma. Coffey v. Freeport McMoren Copper & Gold, No. 09-6106, 39 ELF 20209 (10th Cir. Sept. 4, 2009).


MOOTNESS, APA:



The Ninth Circuit reversed and remanded a lower court decision dismissing a neighborhood association's APA action seeking to compel EPA's Office of Civil Rights (OCR) to act on their complaint that a city failed to properly use EPA funds to address lingering environmental problems in low-income and minority communities. The association filed their administrative complaint in 2003, but it wasn't until 2005--after the association filed its APA lawsuit against the OCR--that the OCR acted on, and rejected, the administrative complaint. The lower court then granted the OCR's motion to dismiss the association's APA action. On appeal, the OCR argued that because the association has no pending complaints before the Agency, the prospect of further delay is merely speculative. To defeat mootness, the OCR further argued, the association must show to a "certainty" that it will file another complaint. But the burden is on the OCR to show that there is "very little chance" of further delays in the processing of the complaints or that the association faces an "insurmountable" hurdle to filing another complaint. The OCR has done neither. What the lower court initially classified as an "isolated instance of untimeliness" has since bloomed into a consistent pattern of delay by the OCR. The association has twice encountered that pattern whereby it files a complaint, hears nothing for months, and then only after filing a lawsuit does the Agency respond. This litigation history is probative of the likelihood of future delays. Rosemere Neighborhood Ass'n v. United States Environmental Protection Agency, No. 08-35045, 39 ELR 20213 (9th Cir. Sept. 17, 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 announced the availability of additional information on carbon dioxide exposure when used as a refrigerant substitute for CFC-12 in motor vehicle air conditioners under the significant new alternatives program. 74 FR 47774 (9/17/09).

  • SIP Approvals: Colorado (prevention plan for air pollution emergency episodes) 74 FR 47888 (9/18/09). New Mexico (excess emissions during startup, shutdown, and malfunction) 74 FR 46910 (9/14/09). Ohio (Columbus ozone nonattainment area) 74 FR 47404 (9/15/09); (Cleveland-Akron-Lorain ozone nonattainment area) 74 FR 47414 (9/15/09).

  • SIP Proposals: Alaska (motor vehicle inspection and maintenance program in Anchorage and Fairbanks) 74 FR 47154 (9/15/09). California (disapproval of revision to the South Coast air quality management district) 74 FR 46044 (9/8/09). Colorado (prevention plan for air pollution emergency episodes; see above for direct final rule) 74 FR 47910 (9/18/09). New Mexico (excess emissions during startup, shutdown, and malfunction; see above for direct final rule) 74 FR 46965 (9/14/09).

OFFICE OF THE PRESIDENT:



  • The president proclaimed September 2009 as National Wilderness Month. 74 FR 45977 (9/8/09).

TOXIC SUBSTANCES:



  • EPA proposed a significant new use rule under TSCA §5(a)(2) for elemental mercury for use in flow meters, natural gas manometers, and pyrometers. 74 FR 46707 (9/11/09).

WATER:



  • EPA announced the national recommended water quality criteria for the protection of aquatic life for acrolein. 74 FR 46587 (9/10/09).

  • EPA announced that, under §303(d) of the CWA, it will establish a Chesapeake Bay-wide TMDL for nutrients and sediment for all impaired segments in the tidal portion of the Chesapeake Bay watershed. 74 FR 47792 (9/17/09).

WILDLIFE:



  • FWS issued a final rule reinstating regulatory protections under the ESA for the gray wolf in the western Great Lakes. 74 FR 47483 (9/16/09).

  • FWS announced a 90-day finding on a petition to list the Pacific walrus as threatened or endangered under the ESA and to designate critical habitat; the Agency found that listing may be warranted and initiated a status review. 74 FR 46548 (9/10/09).

  • FWS announced a 90-day finding on a petition to list the eastern population of the gopher tortoise as threatened under the ESA and to designate critical habitat; the Agency found that listing may be warranted and initiated a status review. 74 FR 46401 (9/9/09).

  • FWS announced a 90-day finding on a petition to list the Amargosa toad as threatened or endangered under the ESA; the Agency found that listing may be warranted and initiated a status review. 74 FR 46551 (9/10/09).

  • FWS announced a 12-month finding on a petition to remove the Bliss Rapids snail from the list of endangered and threatened wildlife under the ESA; the Agency determined that removal from the list is not warranted. 74 FR 47536 (9/16/09).

  • FWS determined that the Chatham petrel, the fiji petrel, and the magenta petrel should be listed as endangered species under the ESA throughout their ranges. 74 FR 46914 (9/14/09).

DOJ NOTICES OF SETTLEMENT:



  • United States v. Charleswood, Inc., No. 3:09-CV-00080 (D.N.D. Aug. 28, 2009). A settling CWA defendant must pay a $37,500 civil penalty, must achieve and maintain compliance with the CWA, and must establish a compliance and oversight program for the discharge of stormwater from the Charleswood Development in West Fargo, North Dakota. 74 FR 46794 (9/11/09).

  • United States v. El Dorado County, No. S-01-1520 MCE GGH (E.D. Cal. Sept. 1, 2009). Settling CERCLA defendants must pay a total of $1.25 million into a court registry account for U.S. response costs incurred at the Meyers Landfill site in Meyers, California. 74 FR 46225 (9/8/09).

  • United States v. Genesco Inc., No. CV-09-3917 (E.D.N.Y. Sept. 10, 2009). A settling CERCLA defendant must implement EPA's interim groundwater extraction and treatment remedy for the Fulton Avenue Superfund site located in and around the village of Garden City Park, New York. 74 FR 47823 (9/17/09).

  • United States v. Countrymark Cooperative LLP, No. 1:09-cv-1018 (S.D. Ind. Aug. 19, 2009). A settling CWA and OPA defendant must pay $22,800.12 in damage assessment costs from a 2003 oil spill in the Wabash River floodplain near Griffin, Indiana, must undertake restoration activities at a nearby park, and must pay future costs of overseeing the restoration work. 74 FR 47273 (9/15/09).

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


THE CONGRESS

Citations below are to the Congressional Record (Cong. Rec.).


Public Laws


  • H.R. 838 (land conveyance) which authorizes for the conveyance of a parcel of land held by the Bureau of Prisons of the Department of Justice in Miami Dade County, Florida, to facilitate the construction of a new educational facility that includes a secure parking area for the Bureau of Prisons, was signed into law on August 12, 2009. Pub. L. No. 111-48, 155 Cong. Rec. D968 (daily ed. Sept. 8, 2009).

  • H.R. 1275 (land exchange) which directs the exchange of certain land in Grand, San Juan, and Uintah Counties, Utah, was signed into law on August 19, 2009. Pub. L. No. 111-53, 155 Cong. Rec. D968 (daily ed. Sept. 8, 2009).

  • H.R. 2938 (hydroelectricity) which extends the deadline for commencement of construction of a hydroelectric project, was signed into law on August 19, 2009. Pub. L. No. 111-60, 155 Cong. Rec. D968 (daily ed. Sept. 8, 2009).

Chamber Action


  • H.R. 445 (Heavy Duty Hybrid Vehicle Research, Development, and Demonstration Act of 2009), which would establish a research, development, demonstration, and commercial application program to promote research of appropriate technologies for heavy duty plug-in hybrid vehicles, was passed by the House. 155 Cong. Rec. H9355-57 (daily ed. Sept. 9, 2009).

  • H.R. 511 (termination of certain easements), which would authorize the Secretary of Agriculture to terminate certain easements held by the Secretary on land owned by the Village of Caseyville, Illinois, and to terminate associated contractual arrangements with the Village, was passed by the House. 155 Cong. Rec. H9514 (daily ed. Sept. 15, 2009).

  • H.R. 940 (land conveyance), which would provide for the conveyance of National Forest System land in the state of Louisiana, was passed by the House. 155 Cong. Rec. H9516-17 (daily ed. Sept. 15, 2009).

  • H.R. 965 (Chesapeake Bay Gateways and Watertrails Network Continuing Authorization Act), which would provide for the continuing authorization of the Chesapeake Bay Gateways and Watertrails Network, was passed by the House. 155 Cong. Rec. H9402-10 (daily ed. Sept. 10, 2009).

  • H.R. 1002 (boundary adjustment), which would adjust the boundaries of Pisgah National Forest in McDowell County, North Carolina, was passed by the House. 155 Cong. Rec. H9519-20 (daily ed. Sept. 15, 2009).

  • H.R. 1043 (Deafy Glade Land Exchange Act), which would provide for a land exchange involving certain National Forest System lands in the Mendocino National Forest in the state of California, was passed by the House. 155 Cong. Rec. H9288-89 (daily ed. Sept. 8, 2009).

  • H.R. 1858 (boundary adjustment), which would provide for a boundary adjustment and land conveyances involving Roosevelt National Forest, Colorado, to correct the effects of an erroneous land survey that resulted in approximately 7 acres of the Crystal Lakes Subdivision, Ninth Filing, encroaching on National Forest System land, was passed by the House. 155 Cong. Rec. H9292-93 (daily ed. Sept. 8, 2009).

  • HR 3165 (Wind Energy Research and Development Act of 2009), which would provide for a program on wind energy research, development, and demonstration, was passed by the House. 155 Cong. Rec. H9351-52 (daily ed. Sept. 8, 2009).

  • H.R. 3175 (land conveyance), which would direct the Secretary of Agriculture to convey to Miami-Dade County certain federally owned land in Florida, was passed by the House. 155 Cong. Rec. H9514-16 (daily ed. Sept. 15, 2009).

  • H.R. 3246 (Advanced Vehicle Technology Act of 2009), which would provide for a program of research, development, demonstration and commercial application in vehicle technologies at DOE, was passed by the House. 155 Cong. Rec. H9570-91 (daily ed. Sept. 16, 2009).

  • S. Res. 247 (National Estuaries Day), which would designate September 26, 2009, as "National Estuaries Day," was passed by the Senate. 155 Cong. Rec. S9273 (daily ed. Sept. 10, 2009).

  • H. Res. 81 (hardwoods industry), which would recognize the importance and sustainability of the U.S. hardwoods industry and to urge that U.S. hardwoods and the products derived from U.S. hardwoods be given full consideration in any program directed at constructing environmentally preferable commercial, public, or private buildings, was passed by the House. 155 Cong. Rec. H9517-18 (daily ed. Sept. 15, 2009).

Committee Action


  • H.R. 511 (termination of certain easements) was reported by the Committee on Agriculture. H. Rep. No. 111-253, 155 Cong. Rec. H9441 (daily ed. Sept. 10, 2009). This bill would authorize the Secretary of Agriculture to terminate certain easements held by the Secretary on land owned by the Village of Caseyville, Illinois, and to terminate associated contractual arrangements with the Village.

  • H.R. 940 (land conveyance) was reported by the Committee on Agriculture. H. Rep. No. 111-250, 155 Cong. Rec. H9441 (daily ed. Sept. 10, 2009). This bill would provide for the conveyance of National Forest System land in the state of Louisiana.

  • H.R. 1002 (boundary adjustment) was reported by the Committee on Agriculture. H. Rep. No. 111-251, 155 Cong. Rec. H9441 (daily ed. Sept. 10, 2009). This bill would adjust the boundaries of Pisgah National Forest in McDowell County, North Carolina.

  • H.R. 3165 (energy) was reported by the Committee on Science and Technology. H. Rep. No. 111-248, 155 Cong. Rec. H9340 (daily ed. Sept. 8, 2009). This bill would provide for a program on wind energy research, development, and demonstration.

  • H.R. 3175 (land conveyance) was reported by the Committee on Agriculture. H. Rep. No. 111-252, 155 Cong. Rec. H9441 (daily ed. Sept. 10, 2009). This bill would direct the Secretary of Agriculture to convey to Miami-Dade County certain federally owned land in Florida.

  • H.R. 3246 (energy) was reported by the Committee on Science and Technology. H. Rep. No. 11-254, 155 Cong. Rec. H9490 (daily ed. Sept. 14, 2009). This bill would provide for a program of research, development, demonstration and commercial application in vehicle technologies at DOE.

  • H.Res. 726 (water) was reported by the Committee on Rules. H. Rep. No. 111-249, 155 Cong. Rec. H9396 (daily ed. Sept. 9, 2009). This resolution would provide for the continuing authorization of the Chesapeake Bay Gateways and Watertrails Network.

  • H. Res. 745 (vehicles) was reported by the Committee on Rules. H. Rep. No. 111-225, 155 Cong. Rec. H9548 (daily ed. Sept. 15, 2009). This resolution would provide for a program of research, development, demonstration, and commercial application in vehicle technologies at DOE.

Bills Introduced


  • S. 1651 (Levin, D-Mich.) (land) would modify a land grant patent issued by the Secretary of the Interior. 155 Cong. Rec. S9132 (daily ed. Sept. 8, 2009). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 1660 (Klobuchar, D-Minn.) (TSCA) would amend TSCA to reduce the emissions of formaldehyde from composite wood products. 155 Cong. Rec. S9264 (daily ed. Sept. 10, 2009). The bill was referred to the Committee on Environment and Public Works.

  • S. 1666 (Collins, R-Me.) (alternative fuels) would require the Administrator of EPA to satisfy certain conditions before issuing to producers of mid-level ethanol blends a waiver from certain requirements under the CAA. 155 Cong. Rec. S9326 (daily ed. Sept. 14, 2009). The bill was referred to the Committee on Environment and Public Works.

  • S.1667 (Collins, R-Me.) (climate change) would provide for the development and coordinator of a comprehensive and integrated U.S. research program that assists the people of the United States and the world to understand past, assess present, and predict future human-induced and natural processes of abrupt climate change. 155 Cong. Rec. S9326 (daily ed. Sept. 14, 2009). The bill was referred to the Committee on Commerce, Science, and Transportation.

  • S.1672 (Reed, D-R.I.) (National Oilheat Research Alliance Act) would reauthorize the National Oilheat Research Alliance Act of 2000. 155 Cong. Rec. S9371 (daily ed. Sept. 15, 2009). The bill was referred to the Committee on Energy and Natural Resources.

  • S.1675 (Akaka, D-Haw.) (energy) would implement Title V of the Nuclear Non-Proliferation Act of 1978 and promote economical and environmentally sustainable means of meeting the energy demands of developing countries. 155 Cong. Rec. S9436 (daily ed. Sept. 16, 2009). The bill was referred to the Committee on Foreign Relations.

  • S. 1689 (Bingaman, D-N.M.) (National Wilderness Preservation System) would designate certain land as components of the National Wilderness Preservation System and the National Landscape Conservation System in the state of New Mexico. 155 Cong. Rec. S9555 (daily ed. Sept. 17, 2009). The bill was referred to the Committee on Energy and Natural Resources.

  • H.R. 3534 (Rahell, D-W. Va.) (mineral and energy resources) would seek to provide greater efficiencies, transparency, returns, and accountability in the administration of federal mineral and energy resources by consolidating administration of various federal energy minerals management and leasing programs into one entity to be known as the Office of Federal Energy and Minerals Leasing of the DOI. 155 Cong. Rec. H9341 (daily ed. Sept. 8, 2009). The bill was referred to the Committee on Natural Resources.

  • H.R. 3537 (Ortiz, D-Tex.) (wildlife) would amend and reauthorize the Junior Duck Stamp Conservation and Design Program Act of 1994. 155 Cong. Rec. H9341 (daily ed. Sept. 8, 2009). The bill was referred to the Committee on Natural Resources.

  • H.R. 3538 (Simpson, R- Idaho) (water) would authorize the continued use of certain water diversions located on National Forest System land in the Frank Church-River of No Return Wilderness and the Selway-Bitterroot Wilderness in the state of Idaho. 155 Cong. Rec. H9341 (daily ed. Sept. 8, 2009). The bill was referred to the Committee on Natural Resources.

  • H.R. 3540 (Stupak, D- Mich.) (land) would modify a land grant patent issued by the Secretary of the Interior. 155 Cong. Rec. H9341 (daily ed. Sept. 8, 2009). The bill was referred to the Committee on Natural Resources.

  • H.R. 3543 (Baldwin, D-Wis.) (climate change) would direct EPA to establish a product carbon disclosure program to facilitate carbon content labeling. 155 Cong. Rec. H9396 (daily ed. Sept. 9, 2009). The bill was referred to the Committee on Energy and Commerce.

  • H.R. 3563 (Rehberg, R-Mont.) (water) would authorize the Crow Tribe of Indians water rights settlement. 155 Cong. Rec. H9548 (daily ed. Sept. 15, 2009). The bill was referred to the Committee on Natural Resources.

  • H.R. 3583 (Faleomavaega, D-Am. Sam.) (fisheries) would provide a subsidy to sellers and buyers of fish directly delivered to American Samoa from vessels with U.S. fisheries endorsements that manufacture for the United States. 155 Cong. Rec. H9670 (daily ed. Sept. 16, 2009). The bill was referred to the Committee on Natural Resources and to the Committee on Ways and Means.

  • H.R. 3585 (Giffords, D-Ariz.) (energy) would provide for U.S. research, development, and demonstration of solar energy technologies. 155 Cong. Rec. H9670 (Sept. 16, 2009). The bill was referred to the Committee on Science and Technology.

  • H.R. 3589 (Welch, D-Vt.) (energy) would reauthorize the National Oilheat Research Alliance Act of 2000. 155 Cong. Rec. H9670 (Sept. 16, 2009). The bill was referred to the Committee on Energy and Commerce.

  • H.R. 3592 (Pascrell, D-N.J.) (recycling) would amend the Internal Revenue Code of 1986 to allow a tax credit for producing oil from recycled waste. 155 Cong. Rec. H9729 (Sept. 17, 2009). The bill was referred to the Committee on Ways and Means and the Committee on Energy and Commerce.

  • H.R. 3598 (Gordon, R-Tenn.) (water) would ensure consideration of water intensity in DOE's energy research, development, and demonstration programs to help guarantee efficient, reliable, and sustainable delivery of energy and water resources. 155 Cong. Rec. H9729 (Sept. 17, 2009). The bill was referred to the Committee on Science and Technology.

  • H.R. 3603 (Marshall, D-Ga.) (National Monument) would rename the Ocmulgee National Monument. 155 Cong. Rec. H9729 (Sept. 17, 2009). The bill 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:

















Colorado Iowa Maine
Florida Kentucky Maryland
Illinois Louisiana Wyoming
Indiana    

COLORADO


Water:



  • The Water Quality Control Commission adopted amendments to 5 Colo. Code Regs. §1002-22, Site Location and Design Approval Regulations for Domestic Wastewater Treatment Works. The regulations apply to construction of domestic wastewater treatment works, including wastewater treatment plants, individual sewage disposal systems, lift (pumping) stations, and certain interceptor sewers with a capacity of 2,000 gallons per day or greater, as well as certain facilities that produce reclaimed domestic wastewater. See http://www.sos.state.co.us/CCR/Upload//AGORequest//AdoptedRules02009-00169.RTF

  • The Water Quality Control Commission adopted amendments to 5 Colo. Code Regs. §1002-38, Classifications and Numeric Standards for South Platte River Basin, Laramie River Basin, Republican River Basin, and Smoky Hill River Basin. The classifications identify the actual beneficial uses of the water. The numeric standards are assigned to determine the allowable concentrations of various parameters. See http://www.sos.state.co.us/CCR/Upload//AGORequest//AdoptedRules02009-00091.RTF

FLORIDA


Air:



Water:



  • The Southwest Florida Water Management District made changes to proposed rules Fla. Admin. Code r. 40D-1.659, Forms and Instructions; 40D-2.101, Content of Application; 40D-22.201, Year-Round Water Conservation Measures; and 40D-22.401, Enforcement. The changes affect application forms used to obtain a new water use permit or to renew an existing one. See https://www.flrules.org/Faw/FAWDocuments/FAWVOLUMEFOLDERS2009/3535/3535doc.pdf (pp. 4332-34)

  • The Southwest Florida Water Management District began development of proposed amendments to 40D-4.091, Publications, Forms and Agreements Incorporated by Reference; 40D-8.041, Minimum Flows; and 40D-80.075, Recovery Strategy for the Lower Alafia River System. See https://www.flrules.org/Faw/FAWDocuments/FAWVOLUMEFOLDERS2009/3536/3536doc.pdf (pp. 4381-82)

  • The Department of Health proposed amendments to Fla. Admin. Code r. 64E-15.002, Sites – Mobile Home, Lodging, and Recreational Vehicle Parks; 64E-15.003, Water Supply 64E-15.004 Sewage Disposal; 64E-15.006, Plumbing; 64E-15.007, Garbage and Refuse Disposal; 64E-15.009, Recreational Camp Standards; and 64E-15.010, Permits and Fees. The changes clarify language, bring incorporated references current, incorporate necessary modifications to avert waterborne pathogen transmission, remove certain language to eliminate the need for variances being filed by the regulated community, and incorporate a form by reference. See https://www.flrules.org/Faw/FAWDocuments/FAWVOLUMEFOLDERS2009/3536/3536doc.pdf (pp. 4411-413)

ILLINOIS


Toxic Substances:



  • The Pollution Control Board seeks public comment on proposed amendments to Ill. Admin. Code tit. 35, §739, Standards for the Management of Used Oil; 35 Ill. Adm. Code 808, Special Waste Classifications; and 35 Ill. Adm. Code 809, Nonhazardous Special Waste Hauling and the Uniform Program. The proposed amendments are intended to exempt used oil that is defined by, and managed in accordance with, Part 739 and also to exempt from those requirements four specific mixture of used oil and other materials. The proposal also seeks to amend used oil tracking provisions in Part 739 to include information required by a manifest for those specified mixtures. Comments are due October 26, 2009. See http://www.cyberdriveillinois.com/departments/index/register/register_volume33_issue37.pdf (pp. 12426-12458)

INDIANA


Air:



  • The Air Pollution Control Board temporarily amended 326 Ind. Admin. Code 8-1-0.5, 8-1-2, 8-1-4, 8-2-1, 8-2-2, 8-2-5 through 8-2-7, 8-2-9, 8-2-10, and 8-5-5 regarding updated volatile organic compounds reasonably available control technology standards for Lake County and Porter County. The rules became effective September 3, 2009. See http://www.in.gov/legislative/iac/irtoc.htm?view=list&lsadocnum=09-693

Water:



IOWA


Land Use:



  • The Environmental Protection Commission adopted amendments to Iowa Admin. Code r. 65, Animal Feeding Operations. These amendments correct definitions and requirements related to animal feeding operations that are needed to make Chapter 65 consistent with statutory amendments adopted during the 2008 legislative session. Additional changes bring administrative rules into compliance with federal regulations related to the NPDES permit program and address outdated references. See http://www.legis.state.ia.us/aspx/ACODOCS/DOCS/09-09-2009.Bulletin.pdf (pp. 704-05)

Toxic Substances:



  • The Environmental Protection Commission adopted amendments to Iowa Admin. Code r. 134, UST Licensing Certification Programs; and 135, Technical Standards and Corrective Action Requirements for Owners and Operators of USTs. The amendments affect three classes of operators: Class A operators responsible for managing resources and personnel to achieve and maintain compliance; Class B operators responsible for implementing day-to-day aspects of operating, maintaining, and recordkeeping for one or more facilities; and Class C operators who are the on-site employees controlling or monitoring the dispensing of fuel and who are the first line of response to emergency conditions. See http://www.legis.state.ia.us/aspx/ACODOCS/DOCS/09-09-2009.Bulletin.pdf (pp. 705-712)

Water:



  • The Environmental Protection Commission adopted amendments to Iowa Admin. Code r. 62, Effluent and Pretreatment Standards: Other Effluent Limits or Prohibitions; and Chapter 63, Monitoring, Analytical and Reporting Requirements. The amendments address new technical data received from U.S. EPA relating to E. coli effluent limits and reduce the burden on smaller communities in regard to nutrient monitoring requirements. See http://www.legis.state.ia.us/aspx/ACODOCS/DOCS/09-09-2009.Bulletin.pdf (pp. 703-04)

KENTUCKY


Air:



  • The Kentucky Energy and Environment Cabinet will hold a public hearing on 401 Ky. Admin Regs. 51:001 and 51:017, prevention of significant deterioration of air quality; and 401 Ky. Admin Regs. 51:052, review of new sources in or impacting upon nonattainment areas. The amendments propose to adopt federal revisions to the list of major sources relating to prevention of significant deterioration, new source review, and Title V applicability and remove the existing requirements for clean units and pollution control projects. The requirement to add nitrogen oxides as a precursor to ozone formation is also included. See http://www.air.ky.gov/NR/rdonlyres/7D554513-3F8D-4DE1-A99C-8B2E73694124/0/401KAR51001017052PublicHearingNotice_102809.pdf

LOUISIANA


Hazardous & Solid Waste:



Toxic Substances:



  • The Department of Environmental Quality will hold a public hearing on proposed amendments to La. Admin. Code tit. 33 §XI.601, 603, 605, 607, 609, and 611, Training Requirements for UST System Operators. The rule defines the classes of operators, lists the acceptable training and certification processes for each class, establishes a phase-in schedule for operators to attend training, and requires that UST owners maintain documentation of certification of operators. The hearing will be October 29, 2009. See http://www.deq.louisiana.gov/portal/portals/0/planning/regs/pdf/UT017pro.pdf ; and http://www.doa.la.gov/osr/reg/0909/0909.pdf (pp. 1933-36)

  • The Department of Natural Resources proposed amendments to La. Admin. Code tit. 33 §V.301-313, Hazardous Liquids Pipeline Safety; and La. Admin. Code 43 §XIII. Chapters 1-65, Natural Gas Pipeline Safety. This proposed rule would amend the minimum pipeline safety requirements for hazardous liquids and natural gas pipelines. See http://www.doa.la.gov/osr/reg/0909/0909.pdf (pp. 1990-2014)

Water:



  • The Department of Natural Resources proposed amendments to La. Admin. Code tit. 43 §VI.103 and 307, Ground Water Management. The amendments would revise the regulations to correspond with recent amendments to the Ground Water Resources Management Law. See http://www.doa.la.gov/osr/reg/0909/0909.pdf (pp. 1989-990)

MAINE


Air:



  • The Board of Environmental Protection adopted amendments to 131 Me. Code R., Cutback Asphalt and Emulsified Asphalt. The amendments limit the use of cutback and emulsified asphalt to that which contains not more than 6.0 ml of oil distillate for all asphalt paving operations and maintenance activities annually from May 1 through September 15. These amendments are intended to reduce the volatile organic compound emissions from paving and maintenance operations. See http://www.maine.gov/dep/air/regulations/docs/chap131mapa.pdf for announcement; and http://www.maine.gov/dep/air/regulations/docs/chap131final.pdf

MARYLAND


Fisheries:



  • The Secretary of Natural Resources proposed amendments to Md. Code Regs. 08.02.07, Hard-Shell Clams. The proposed amendments remove rules governing the use of handscrapes, rakes, and hydraulic dredges in Worcester County preventing any confusion that might be caused by their inconsistency with current laws. The proposed action also clarifies the minimum size for hard-shell clams. See http://www.dsd.state.md.us/mdregister/3619/index.htm#Hard-Shell_Clams_46

WYOMING


Water:



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


INTERNATIONAL

GLOBAL INVESTORS CALL FOR BINDING CLIMATE POLICY



Banks, pension funds, and other investment groups representing more than $13 trillion in assets called for a strong global agreement on climate policy last week, saying it would lead to a flood of investment into the low-carbon economy. "Without the policies to encourage clean energy, investors are stuck at the starting gates," Mindy Lubber, the president of Ceres, a Boston-based coalition of investors and environmentalists, and the director of the Investor Network on Climate Risk. More than 180 investor groups called for a global target of emissions reductions of 50 to 85 percent by 2050, including higher cuts by wealthy countries, and plans in developing countries to make measurable emissions reductions. For the full story, see http://www.reuters.com/article/GCA-GreenBusiness/idUSTRE58F5R320090916


RESTING AND RESTORING GAZA STRIP'S UNDERGROUND WATER SUPPLIES EMERGES AS TOP PRIORITY SAYS UNEP


The United Nations Environment Programme (UNEP) reports that underground water supplies that 1.5 million Palestinians depend on for agricultural and drinking water are in danger of collapse as a result of years of over-use and contamination that have been exacerbated by the recent conflict. A report released by UNEP on the environmental condition of the Gaza Strip following the hostilities calls for the aquifer to be "rested" and alternative water sources found. "Unless the trend is reversed now, damage could take centuries to reverse. Since the aquifer is a continuum with Egypt and Israel, any such action must be coordinated with these countries," it says. For the full story, see http://www.unep.org/Documents.Multilingual/Default.asp?DocumentID=596&ArticleID=6303&l=en

SMALL HYDRO PLANTS TO HELP BOOST RURAL AFRICA DEVELOPMENT


Mini hydro plants could be the answer to a lack of power in rural Africa, especially as larger power projects are put on hold due to limited cash and abundant red tape, industry officials say. Analysts say the continent could generate as much as 330,000 megawatts from its hydro reserves, yet only some 7 percent of that potential has been exploited so far. Rather than trying to build big dams such as the Grand Inga dam in the Democratic Republic of Congo, which comes with political risk and an $80 billion price tag, communities and investors are looking into developing smaller plants. For the full story, see http://www.reuters.com/article/environmentNews/idUSTRE58A1SN20090911?sp=true

 

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


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