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Weekly Update Volume 39, Issue 27

09/28/2009

LITIGATION

NUISANCE, CLIMATE CHANGE:



The Second Circuit reversed a lower court decision dismissing states', New York City's, and land trusts' public nuisance claims against six electric power corporations relating to the companies' ongoing contributions to climate change. The corporations own and operate fossil-fuel-fired power plants in 20 states. Contrary to the lower court's finding, the nuisance claims do not present a non-justiciable political question. The political implications of any decision involving possible limits on carbon emissions are important in the context of global warming, but not every case with political overtones is non-justiciable. It is error to equate a political question with a political case. The court also held that the states have parens patriae and Article III standing, in their quasi-sovereign and proprietary capacities, respectively, and that the trusts have Article III standing. Further, all parties have stated a claim under the federal common law of nuisance. The states allege that the corporations' emissions, by contributing to global warming, constitute a substantial and unreasonable interference with public rights in the plaintiffs’ jurisdictions, including, among other things, the right to public comfort and safety, the right to protection of vital natural resources and public property, and the right to use, enjoy, and preserve the aesthetic and ecological values of the natural world. These grievances suffice to allege an "unreasonable interference" with "public rights" within the meaning of Restatement (Second) of Torts §821B. New York City and the land trusts also plead an unreasonable interference with public rights. The fact that they are non-state parties does not preclude them from bringing claims sounding in the federal common law of nuisance. In addition, federal legislation does not displace the public nuisance claims. EPA has not yet determined that greenhouse gas emissions are CAA-regulated pollutants or regulated such emissions from stationary sources under the CAA. Nor does any other federal legislation "touching" on greenhouse gases displace the claims. Lastly, the discretionary function exception does not provide defendant TVA with immunity from suit. Connecticut v. American Electric Power Co., Nos. 05-5104, -5119, 39 ELR 20215 (2d Cir. Sept. 21, 2009).


ESA, GRIZZLY BEAR:



A district court vacated and remanded FWS' final rule designating a distinct population segment (DPS) for the Greater Yellowstone Area grizzly bear population and removing that population from the threatened species list under the ESA. The FWS did not comply with the ESA in its consideration of the adequacy of existing regulatory mechanisms for purposes of delisting. The majority of the regulatory mechanisms relied upon by the FWS-- its conservation strategy, forest plan amendments, and state plans--depend on guidelines, monitoring, promises, or good intentions for future action. Such provisions are not adequate regulatory mechanisms when there is no way to enforce them or to ensure that they will occur. Nor did the FWS explain how various other laws and regulations will protect the grizzly bear population. In addition, the FWS failed to adequately consider impacts of global warming and other factors on whitebark pine nuts, a grizzly food source. The agency failed to articulate a rational connection between the best available science and its conclusion that bears will not be affected by declines in whitebark pine because they are omnivorous. Accordingly, because harm to the grizzly bear is likely to occur if the DPS is delisted, the court enjoined the FWS from removing the Yellowstone grizzly bear DPS from the list of threatened species. Greater Yellowstone Coalition, Inc. v. Servheen, No. 07-134, 39 ELR 20214 (D. Mont. Sept. 21, 2009) (Molloy, J.).


NEPA, GENETIC ENGINEERING:



A district court held that the Animal and Plant Health Inspection Service (APHIS) violated NEPA in its decision to deregulate a variety of genetically engineered sugar beets. Sugar beets are pollinated by both wind and insects, and scientists have documented that sugar beet pollen can disperse up to 800 meters. In addition, seed for sugar beets, Swiss chard, and table beets are primarily grown in one valley in Oregon. Genetically engineered sugar beet seeds may therefore cross-pollinate with and genetically modify Swiss chard, table beet, and non-genetically engineered sugar beet seed in the surrounding area. Deregulation, therefore, may significantly affect the environment. APHIS, however, failed to consider these effects. Accordingly, APHIS' FONSI was unreasonable, and it must prepare an EIS. Center for Food Safety v. Vilsack, No. 08-00484, 39 ELR 20219 (N.D. Cal. Sept. 21, 2009) (White, J.).


TORT LAW, NUISANCE, SETTLEMENT AGREEMENT:



The Sixth Circuit affirmed, except with respect to the award of attorney’s fees, a lower court's approval of a settlement agreement concerning residents' class action lawsuit against a neighboring steel mill. The $4.45 million settlement distributed $300 to each covered member of the class, limited to one award per household; $10,000 to the seven class representatives; and $1.335 million in attorney’s fees and $622,279.86 in costs to class counsel. Any residual goes to public schools in the area. The agreement discharged residents' continuing nuisance claims relating to pollutants emitted "at any time up to and including" the agreement’s execution date. It also released continuing nuisance claims for all alleged damages arising out of or relating to the maintenance of any structures, any acts, any operations, or any conditions that existed, began, or were initiated at the mill prior to the execution date. Objectors argued that the release of the continuing-nuisance claims is unfair because the complaint contained no such claims and, at a minimum, the scope of the release goes well beyond the claims pled in the complaint. But every version of the plaintiffs' complaint—three versions in total—included a claim for continuing private nuisance. Moreover, the bar on future continuing-nuisance claims applies only to claims arising out of conditions that existed prior to the settlement. The settlement process depends on compromise, and here, the release reasonably balances the steel company's interest in resolving the claims and the public interest in protecting the residents from future harmful emissions. In addition, the award of $300 to each class member is not low, as the objection was based on the misconception that the agreement releases all future tort claims. However, although the attorneys fee award is not, on its face, unreasonable, the lower court did not adequately explain its reason for approving the amount. Moulton v. United States Steel Corp., Nos. 08-2311, -2312, 39 ELR 20218 (6th Cir. Sept. 22, 2009).


ASBESTOS, WORK PRACTICE STANDARDS:



The Third Circuit upheld individuals' convictions and sentences for, among other things, knowingly violating EPA work practice standards for the handling and disposal of asbestos-containing material. The violations stem from asbestos-abatement activities that the individuals were hired to perform in conjunction with the demolition of a low-income public residential community. The evidence presented at trial was sufficient to permit the jury to conclude beyond a reasonable doubt that one of the individuals was an "owner or operator" of the asbestos-abatement project within the meaning of the CAA. Similarly, the court upheld the individuals' convictions for knowingly and willfully transmitting falsified air-monitoring reports to the Virgin Islands Housing Authority under 18 USC §1001(a), as the evidence was sufficient to establish §1001(a)'s falsity, federal jurisdiction, and mens rea requirements. The court also rejected the individuals' various challenges to the lower court's determination of their respective sentences. United States v. Starnes, Nos. 07-3341, 08-1691, 39 ELR 20220 (3d Cir. Sept. 24, 2009).


MINING, PREEMPTION:



A district court held that two local ordinances declaring it unlawful for any corporation to engage in mining activities within the township are invalid and void. Pennsylvania's Bituminous Mine Subsidence and Land Conservation Act expressly states that the commonwealth maintains primary jurisdiction and the Department of Environmental Protection Resources has exclusive jurisdiction over all bituminous coal mines and mining operations. For this reason alone, the mining ordinances are preempted by the Act. In addition, the Act sets forth a permit process required for corporations to engage in mining activities in the state, and also denies permits to those corporations that have failed or may fail to comply with the provisions of the act. Thus, the mining ordinances' total ban on mining by corporations facially conflicts with the Bituminous Act. Again, this results in preemption of the mining ordinances by the Bituminous Act. Penn Ridge Coal, LLC v. Blaine Township, No. 08-1452, 39 ELR 20222 (W.D. Pa. Sept. 16, 2009) (Ambrose, J.).


WATER QUALITY, BALLOT INITIATIVES:



The Alaska Supreme Court held that a proposed clean water initiative relating to the regulation of large scale metallic mineral mines was constitutionally and statutorily permissible and was qualified to appear on a statewide 2008 election ballot. The initiative would not make a constitutionally impermissible appropriation by allocating or designating the use of state assets. If approved, the petition leaves to the legislature the state environmental and natural resource agencies the discretion to determine what amounts of specific toxic pollutants may or may not be discharged at a mining site. There is nothing clearly unconstitutional or clearly unlawful about regulating the discharge of toxic materials into state waters. Although it permits the use of public assets in support of its objective, it exhibits no explicit preference among potential users. Nor would it enact constitutionally impermissible local or special legislation. On its face, the initiative is of general statewide applicability. Further, the lieutenant governor's summary and cost statement of the initiative were impartial and accurate. A lower court's decision declining to enjoin the placement of the initiative on the ballot was therefore affirmed. Note: The court issued a dispositive order prior to the 2008 elections; the instant opinion explains its ruling. The initiative was rejected by Alaskan voters. Pebble Limited Partnership v. Parnell, Nos. S-13059, -13060, 39 ELR 20221 (Alaska Sept. 18, 2009).


CALIFORNIA ENVIRONMENTAL QUALITY ACT, DUE PROCESS:



A California appellate court affirmed a trial court's judgment dismissing a land company's complaint against a city that terminated the company's environmental review of a proposed development project and rejected the project before the completion of a draft environmental impact report (EIR) under the California Environmental Quality Act (CEQA). The city, which rejected the project after the company allegedly spent millions of dollars in an effort to comply with the city's requirements, argued that the city had a mandatory duty under CEQA to complete and consider an EIR before rejecting the project. But CEQA's EIR requirement applies only to projects that a public agency proposes to carry out or approve, not to projects that the agency rejects or disapproves. In addition, the company failed to adequately allege due process and equal protection violations. An ownership interest alone does not cloak the prospect of developing the property with the protections of procedural due process. Rather, a land use application invokes procedural due process only if the owner has a legitimate claim of entitlement to the approval. Here, the city's decisions whether to enter into a development agreement and adopt the proposed plan were discretionary. Moreover, the company's allegations did not amount to an outrageous or egregious abuse of power, and there is no factual basis on which to conclude that the city's decision to reject the project was wholly irrational. Las Lomas Land Co. v. City of Los Angeles, No. B213637, 39 ELR 20216 (Cal. App. 2d Dist. Sept. 17, 2009).


CALIFORNIA ENVIRONMENTAL QUALITY ACT, ALTERNATIVES:



A district court held that a city complied with the California Environmental Quality Act in approving a master plan for a project on city-owned greenbelt property. The project will have a significant effect on the habitat of the Santa Cruz tarplant due to the chosen alignment of a multi-use trail. The city nevertheless found that overriding considerations warranted approval. A conservation group filed a petition for review of the approval, arguing that the city's environmental impact report (EIR) failed to properly analyze feasible alternatives to the project. But the city analyzed a reasonable range of alternatives in the EIR, and there was no need to consider an off-site alternative for a multi-use trail that was merely a component of the larger project. In addition, the city was legally justified in rejecting environmentally superior alternatives as "infeasible" based on its determination that the alternatives were undesirable from a policy standpoint because they failed to achieve what the city regarded as primary objectives of the master plan. And the city's infeasibility findings were supported by substantial evidence. The court, therefore, affirmed a lower court's denial of the petition. California Native Plant Society v. City of Santa Cruz, No. H032502, 39 ELR 20217 (Cal. App. 6th Dist. Aug. 20, 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 issued a nine-month stay on the grandfathering provision for fine particulate matter (PM) requirements in the federal PSD program. 74 FR 48153 (9/22/09).

  • EPA's Office of Air Quality Planning and Standards announced the availability of Risk and Exposure Assessment for Review of the Secondary National Ambient Air Quality Standards for Oxides of Nitrogen and Oxides of Sulfur: Final Report. 74 FR 48543 (9/23/09).

  • SIP Approvals: Indiana (lead (Pb) maintenance plan for Marion County) 74 FR 48659 (9/24/09); (exemption from the nitrogen oxide (NOx) reasonably available control technology (RACT) requirement for Lake and Porter counties) 74 FR 48662 (9/24/09). Ohio (addition of non-electric generating units (EGUs) to the Clean Air Interstate Rule (CAIR) program) 74 FR 48857 (9/25/09). Pennsylvania (1997 fine PM NAAQS for the Johnstown, Lancaster, Reading, and York nonattainment areas) 74 FR 48863 (9/25/09).

  • SIP Proposals: Alabama (reporting requirements under the NOx SIP call and CAIR) 74 FR 48478 (9/23/09). California (1997 eight-hour ozone NAAQS for the Imperial County moderate nonattainment area) 74 FR 48495 (9/23/09). Illinois/Indiana (1997 fine PM NAAQS for the Chicago/Evansville nonattainment areas) 74 FR 48690 (9/24/09). Indiana (Pb maintenance plan for Marion County; see above for direct final rule) 74 FR 48702 (9/24/09); (exemption from the NOx RACT requirement for Lake and Porter counties; see above for direct final rule) 74 FR 48703 (9/24/09). New Jersey/New York (one-hour and eight-hour ozone NAAQS for various nonattainment areas in New Jersey and New York) 74 FR 48498 (9/23/09). Ohio (addition of non-EGUs to the CAIR program; see above for direct final rule) 74 FR 48894 (9/25/09). Pennsylvania (NOx SIP call and CAIR requirements) 74 FR 48695 (9/24/09). Texas (disapproval of the Existing Qualified Facilities Program and action on definitions) 74 FR 48450 (9/23/09); (disapproval of revisions to the new source review, PSD, and pollution control plans) 74 FR 48467 (9/23/09); (disapproval of the Flexible Permits Program) 74 FR 48480 (9/23/09).

HAZARDOUS & SOLID WASTE:



  • EPA entered into a proposed administrative agreement under CERCLA that requires the settling party to perform the EPA-selected remedy at the South Minneapolis Residential Soil Contamination site in Minneapolis, Minnesota, and to pay for EPA's oversight costs. 74 FR 48554 (9/23/09).

WATER:



  • EPA announced that it intends to approve revisions to New Jersey's Public Water System Supervision Program. 74 FR 48609 (9/21/09).

WILDLIFE:



  • FWS proposed to list the shovelnose sturgeon as threatened in the Missouri and Mississippi River basins under the similarity of appearance provisions of the ESA due to difficulty differentiating it from the endangered pallid sturgeon. 74 FR 48215 (9/22/09).

DOJ NOTICES OF SETTLEMENT:



  • Preservation Aviation, Inc. v. United States, No. SACV 07-1219 SJO (C.D. Cal. Sept. 17, 2009). Plaintiffs will dismiss their Federal Tort Claims Act suit against the United States for destroying vintage aircraft instruments stored in North Hollywood and Chino, California, and the United States will dismiss its CERCLA counterclaim against plaintiffs for the release and threatened release of hazardous substances at those sites. 74 FR 48598 (9/23/09).

  • United States v. El Dorado County, California, No. S-01-1520 MCE GGH (E.D. Cal. Sept. 17, 2009). A settling CERCLA defendant must provide the U.S. Forest Service access to its sewer line and must cooperate and provide expertise in implementing the remedy for a portion of the Meyers Landfill site in Meyers, California. 74 FR 48598 (9/23/09).

  • United States v. City of Jeffersonville, Indiana, No. 09-cv-0125 (S.D. Ind. Sept. 17, 2009). A settling CWA defendant must pay a $49,500 civil penalty to the United States; must pay a $8,250 civil penalty to the state of Indiana; must spend at least $248,050 to build two constructed wetlands at an industrial site in Jeffersonville; and must improve stormwater drainage at a local park for discharging untreated wastewater and pollutants from its municipal treatment plant. 74 FR 48599 (9/23/09).

  • United States v. Pharmacia Corp., No. 99-63-GPM (S.D. Ill. Sept. 14, 2009). Settling CERCLA defendants must pay $4,350,000 in past EPA response costs and prejudgment interest incurred at the Sauget Area 1 sites in Sauget, Illinois, to the Hazardous Substance Superfund; another defendant must pay $500,000, stipulate to judgment of $6,500,000, and remit 95% of its insurance recovery to the United States; and the United States must pay a total of $1,125,000. 74 FR 48100 (9/21/09).

  • United States v. StarLink Logistics, Inc., No. CV-09-4185-BZ (N.D. Cal. Sept. 10, 2009). A settling CERCLA defendant must pay $784,363.33 in past EPA response costs and all future costs incurred after May 31, 2009, in connection with the Rhone-Poulenc/Zoecon Corp. Superfund site in East Palo Alto, California, and must pay FWS $12,764.20 in natural resource damage assessment costs. 74 FR 48100 (9/21/09).

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


THE CONGRESS

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


Chamber Action


  • H.R. 860 (Coral Reef Conservation Act Reauthorization and Enhancement Amendments of 2009), which would reauthorize the Coral Reef Conservation Act of 2000, was passed by the House. 155 Cong. Rec. H9744 (daily ed. Sept. 22, 2009).

  • H.R. 1035 (Morris K. Udall Scholarship and Excellence in National Environmental Policy Amendments Act), which would amend the Morris K. Udall Scholarship and Excellence in National Environmental and Native American Public Policy Act of 1992 to honor the legacy of Stewart L. Udall, was passed by the Senate. 155 Cong. Rec., S9757 (daily ed. Sept. 23, 2009).

  • H.R. 1080 (Illegal, Unreported, and Unregulated Fishing Enforcement Act of 2009), which would strengthen enforcement mechanisms to stop illegal, unreported, and unregulated fishing, was passed by the House. 155 Cong. Rec. H9750 (daily ed. Sept. 22, 2009).

  • H.R. 3113 (Upper Elk River Wild and Scenic Study Act), which would amend the Wild and Scenic Rivers Act to designate a segment of the Elk River in the state of West Virginia for study for potential addition to the National Wild and Scenic Rivers System, was passed by the House. 155 Cong. Rec. H9755 (daily ed. Sept. 22, 2009).

  • H.R. 2265 (Magna Water District Water Reuse and Groundwater Recharge Act of 2009), which would amend the Reclamation Wastewater and Groundwater Study and Facilities Act to authorize the Secretary of the Interior to participate in the Magna Water District water reuse and groundwater recharge project, was passed by the House. 155 Cong. Rec. H9756 (daily ed. Sept. 22, 2009).

  • H.R. 2522 (Calleguas Municipal Water District Recycling Project), which would raise the ceiling on the federal share of the cost of the Calleguas Municipal Water District Recycling Project, was passed by the House. 155 Cong. Rec. H9757 (daily ed. Sept. 22, 2009).

  • H.R. 2741 (Reclamation Wastewater and Groundwater Study and Facilities Act), which would amend the Reclamation Wastewater and Groundwater Study and Facilities Act to authorize the Secretary of the Interior to participate in the city of Hermiston, Oregon, water recycling and reuse project, was passed by the House. 155 Cong. Rec. H9757 (daily ed. Sept. 22, 2009).

  • H. Res. 670 (Hawk Mountain Sanctuary), which would congratulate and salute the Hawk Mountain Sanctuary for celebrating its 75th anniversary, commend the Hawk Mountain Sanctuary for its contributions to the preservation of wildlife and the native ecology of the Appalachian Mountains and eastern Pennsylvania, and commend its dedication to educating the public and the international community about wildlife conservation, was passed by the House. 155 Cong. Rec. H9761 (daily ed. Sept. 22, 2009).

Committee Action


  • H.R. 2265 (water) was reported by the Committee on Natural Resources. H. Rep. No. 111-258, 155 Cong. Rec. H9737 (daily ed. Sept. 21, 2009). The bill would amend the Reclamation Wastewater and Groundwater Study and Facilities Act to authorize the Secretary of the Interior to participate in the Magna Water District water reuse and groundwater recharge project.

  • H.R. 2522 (water) was reported by the Committee on Natural Resources. H. Rep. No. 111-259, 155 Cong. Rec. H9737 (daily ed. Sept. 21, 2009). The bill would raise the ceiling on the federal share of the cost of the Calleguas Municipal Water District Recycling Project.

  • H.R. 2741 (water) was reported by the Committee on Natural Resources. H. Rep. No. 111-260, 155 Cong. Rec. H9737 (daily ed. Sept. 21, 2009). The bill would amend the Reclamation Wastewater and Groundwater Supply and Facilities Act to authorize the Secretary of the Interior to participate in the city of Hermiston, Oregon, water recycling and reuse project.

  • H.R. 3113 (water) was reported by the Committee on Natural Resources. H. Rep. No. 111-262, 155 Cong. Rec. H9737 (daily ed. Sept. 21, 2009). The bill would amend the Wild and Scenic Rivers Act to designate a segment of the Elk River in the state of West Virginia for study for potential addition to the National Wild and Scenic Rivers System.

Bills Introduced


  • S. 1696 (Menendez, D-N.J.) (energy) would require the Secretary of Energy to conduct a study of video game console energy efficiency. 155 Cong Rec. S9733 (daily ed. Sept. 23, 2009). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 1700 (Lugar, R-Ind.) (natural resources) would require certain issuers to disclose payments to foreign governments for the commercial development of oil, natural gas, and minerals and express the sense of Congress that the President should disclose any payment relating to the commercial development of oil, natural gas, and minerals on federal land. 155 Cong. Rec. S9733 (daily ed. Sept. 23, 2009). The bill was referred to the Committee on Banking, Housing, and Urban Affairs.

  • S. 1701 (Brown, D-Ohio) (transportation) would require corrosion mitigation and prevention plans for bridges receiving federal funding. 155 Cong. Rec. S9733 (daily ed. Sept. 23, 2009). The bill was referred to the Committee on Environment and Public Works.

  • S. 1702 (Udall, D-Colo.) (wildlife) would amend the Pittman-Robertson Wildlife Restoration Act to facilitate the establishment of additional or expanded public target ranges in certain states. 155 Cong. Rec. S9733 (daily ed. Sept. 23, 2009). The bill was referred to the Committee on Environment and Public Works.

  • S. 1703 (Dorgan, D-Ill.) (land) would amend the Act of June 18, 1934, to reaffirm the authority of the Secretary of the Interior to take land into trust for Indian tribes. 155 Cong. Rec. S9840 (daily ed. Sept. 24, 2009). The bill was referred to the Committee on Indian Affairs.

  • S. 1711 (Reid, D-Nev.) (water) would amend the Internal Revenue Code of 1986 to provide tax incentives for making homes more water-efficient, for building new water-efficient homes, and for public water conservation. 1155 Cong. Rec. S9840 (daily ed. Sept. 24, 2009). The bill was referred to the Committee on Finance.

  • S. 1712 (Reid, D-Nev.) (water) would promote water efficiency, conservation, and adaptation. 155 Cong. Rec. S9840 (daily ed. Sept. 24, 2009). The bill was referred to the Committee on Environment and Public Works.

  • S. 1713 (Reid, D-Nev.) (biochar) would establish loan guarantee programs to develop biochar technology using excess plant biomass and to establish biochar demonstration projects on public land. 155 Cong. Rec. S9840 (daily ed. Sept. 24, 2009). The bill was referred to the Committee on Energy and Natural Resources.

  • H.R. 3609 (Melancon, D-La.) (wetlands) would amend the Internal Revenue Code of 1986 to clarify the capital gain or loss treatment of the sale or exchange of mitigation credits earned by restoring wetlands. 155 Cong. Rec. H9738 (daily ed. Sept. 21, 2009). The bill was referred to the Committee on Ways and Means.

  • H.R. 3616 (Fallin, R-Okla.) (oil) would expedite the exploration and development of oil and gas from federal lands. 155 Cong. Rec. H9806 (daily ed. Sept. 22, 2009). The bill was referred to the Committee on Natural Resources.

  • H.R. 3622 (Bright, D-Ala.) (fisheries) would amend the Internal Revenue Code of 1986 to allow a credit for the construction of pond establishments for the purposes of non-commercial recreational fishing and conservation of water-based wildlife habitats. 155 Cong. Rec. H9806 (daily ed. Sept. 22, 2009). The bill was referred to the Committee on Ways and Means.

  • H.R. 3629 (Rodriguez, D-Tex.) (border security) would require the Secretary of Homeland Security to develop and implement a mitigation plan to address the ecological impacts of border security measures and activities. 155 Cong. Rec. H9806 (daily ed. Sept. 22, 2009). The bill was referred to the Committee on Natural Resources and the Committee on Homeland Security.

  • H.R. 3643 (Alexander, R-La.) (water) would make technical corrections to §3013(b) of the Water Resources Development Act of 2007. 155 Cong. Rec. H9961 (daily ed. Sept. 24, 2009). The bill was referred to the Committee on Transportation and Infrastructure.

  • H.R. 3644 (Capps D-Cal.) (environmental education) would direct NOAA to establish education and watershed programs that advance environmental literacy, including preparedness and adaptability for the likely impacts of climate change in coastal watershed regions. 155 Cong. Rec. H9961 (daily ed. Sept. 24, 2009). The bill was referred to the Committee on Natural Resources.

  • H. Res. 758 (Sanchez, D-Cal.) (water) would commend the Water Replenishment District of Southern California for a job well done on the occasion of its 50th anniversary. 155 Cong Rec. H9738 (daily ed. Sept. 21, 2009). The resolution was referred to the Committee on Natural Resources.

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


IN THE STATES

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


The states below have updates this week:













Alabama Florida Nevada
California Indiana New Mexico
Connecticut Massachusetts Ohio

ALABAMA


Hazardous & Solid Waste:



  • The Department of Environmental Management will hold a public hearing on proposed amendments to Ala. Admin. Code r. 335-1-1-.07, Departmental Forms, Instructions, and Procedures; and 335-1-6-.07, Payment of Fees. The amendments would establish fees to implement Chapter 335-13-12 Landfill Operator Certification Requirements, in accordance with the Solid Wastes and Recyclable Materials Management Act. The hearing will be November 4, 2009. See http://www.adem.state.al.us//PublicNotice/Sept09/9div1.htm

CALIFORNIA


Air:



  • The Air Resources Board will hold a public hearing on proposed amendments to Cal. Code Regs. tit. 17, §§94700 and 94701, Aerosol Coating Products Regulation. The amendments affect the Tables of Maximum Incremental Reactivity (MIR) Values. The changes update the MIR values for all compounds that are currently listed and add hundreds of new compounds with their associated MIR values. The hearing will be November 3, 2009. See http://www.arb.ca.gov/regact/2009/mir2009/mir2009.htm

Water:



CONNECTICUT


Hazardous & Solid Waste:



  • The Department of Environmental Protection will hold a public hearing to adopt Conn. Agencies Regs. §§22a-630(d)-1 and 22a-638-1, concerning the recycling of electronic wastes. The proposed regulations establish a program to facilitate the collection, transportation, reuse, and recycling of televisions, computers, monitors, and printers generated by households in the state. The hearing will be October 26, 2009. See http://www.ct.gov/dep/cwp/view.asp?A=2586&Q=447414

FLORIDA


Water:



  • The Department of Environmental Protection will hold a rule development workshop on Fla. Admin. Code Ann. r. 62-302.400, Classification of Surface Waters, Usage, Reclassification, Classified Waters. The rule development will address the need to reclassify portions of the Alafia River watershed and the Tampa Bypass Canal and Harney Canal from Class III waters to Class I waters. The workshop will be held October 6, 2009. See https://www.flrules.org/Faw/FAWDocuments/FAWVOLUMEFOLDERS2009/3537/3537doc.pdf (pp. 4488-89)

  • The Department of Environmental Protection has initiated rule development on proposed amendments to Fla. Admin. Code Ann. r 62-550.800, Control of Lead and Copper; and 62-555.900, Forms and Instructions. The rules strengthen the implementation of the Lead and Copper Rule for monitoring, treatment processes, public education, customer awareness, and lead service line replacement. See https://www.flrules.org/Faw/FAWDocuments/FAWVOLUMEFOLDERS2009/3537/3537doc.pdf (pp. 4489-490)

Hazardous & Solid Waste



  • The Department of Environmental Protection has initiated rule development on proposed amendments to Fla. Admin. Code Ann. r 62-709.300, General Provisions; 62-709.320, Yard Trash Processing Facilities; 62-709.500, Design Criteria; 62-709.510, Operation Criteria; 62-709.530, Testing, Recording and Reporting Requirements; 62-709.550, Classification of Compost; 62-709.600, Criteria for the Use of Compost. The proposed rule amendments address the processing of yard trash and create new simplified requirements for composting of certain types of solid waste. See https://www.flrules.org/Faw/FAWDocuments/FAWVOLUMEFOLDERS2009/3537/3537doc.pdf (p. 4490)

INDIANA


Air:



Fisheries:



  • The Natural Resources Commission adopted amendments to 312 Ind. Admin. Code 9-6-1, 9-6-2, 9-7-16, 9-7-19, and 9-8-6, governing the taking of fish from public waters. The amendments prohibit the taking or possession of paddlefish except under a commercial fishing license on the Ohio River, revise fish measurement to clarify how a paddlefish is to be measured, limit commercial fishing for paddlefish on the Ohio River to November 1 through April 30, establish a minimum size limit, restrict checking for eggs from a living paddlefish to the insertion of a 10-gauge needle, restrict the bar mesh size for gill and trammel nets, and eliminate snagging as a lawful method for taking fish from public waters. See http://www.in.gov/legislative/iac/irtoc.htm?view=list&lsadocnum=08-886

MASSACHUSETTS


Water:



  • The Department of Environmental Protection will hold a series of public hearings on proposed amendments to 310 Mass Code Regs. 4.00, Timely Action Schedule and Fee Provisions. The proposed amendments would create a general permit for categories of discharges that warrant similar control measures, provide for the administrative renewal of certain individual permits, establish a new permit category for reclaimed water systems, change the thresholds for large and medium groundwater discharge annual fees, and otherwise amend groundwater discharge fee categories. The hearings will be October 9 and 13, 2009. See http://www.mass.gov/dep/service/online/fees.htm#regs

NEVADA


Water:



  • The State Environmental Commission adopted amendments to Nev. Admin. Code §445A, Provisions Governing Public Water Systems. The amendments adopt various new rules relating to testing of water systems. The new rules also provide for the transfer of authority for certain functions relating to public water systems from the Health Division of the Department of Health and Human Services to the Division of Environmental Protection and add presumptions for the efficacy of treatment of water by diatomaceous earth filtration and slow sand filtration. See http://www.leg.state.nv.us/register/2008Register/R194-08RP1.pdf

NEW MEXICO


Air:



  • The New Mexico Environment Department (NMED) adopted amendments to N.M. Code R. §20.2.89, Qualified Generating Facility Certification. The amendments add language that would allow the NMED to evaluate solar photovoltaic and geothermal energy projects to determine whether they meet the requirements of a qualified energy facility in order to qualify for certain tax credits. The NMED would then issue a certification for projects that qualify and deny certifications to projects that do not. See http://www.nmcpr.state.nm.us/nmregister/xx/xx17/20.2.89amend.htm

Water:



  • The New Mexico Environmental Improvement Board will hold a public hearing on proposed amendments to N.M. Code R. §20.7.3.7, 20.7.3.401, 20.3.1.402, and 20.3.1.904, Liquid Waste Disposal Rules. The amendments would remove the certification requirements for on-site liquid waste system installers, other than the requirement that installers hold a valid and appropriate classification of contractors license from the New Mexico Construction Industries Division. The proposed amendments would also remove the classifications of site evaluator, system designer, wastewater reuse irrigator, and septage pumper from the certification requirement and would eliminate the Education Steering Committee. The hearing will be November 2, 2009. See http://www.nmcpr.state.nm.us/nmregister/xx/xx17/EIBnotice.htm for most recent information; and http://www.nmcpr.state.nm.us/nmregister/xx/xx16/EIBnotice2.htm for original post

OHIO


Water



  • The Ohio Environmental Protection Agency will hold a public hearing on proposed amendments to Ohio Admin. Code 3745:81-01, Definitions; 3745:81-10, Maximum residual disinfectant levels; 3745:81-12, Maximum contaminant levels and best available technologies for organic contaminants; 3745:81-22, Initial distribution system evaluations; 3745:81-23, Inorganic chemical monitoring requirements; 3745:81-24, Organic chemical monitoring requirements; 3745:81-31, Reporting requirements for public water systems; 3745:81-33, Record maintenance; 3745:81-70, Monitoring requirements for disinfection residuals; 3745:81-75, Reporting and recordkeeping requirements; 3745:81-77, Treatment techniques for control of disinfection byproduct precursors; 3745:81-78, Optimization of distribution systems for control of disinfection byproducts; 3745:89-03, Procedure for laboratory approval; and 3745:96-02, Required report content. The hearing will be held October 22, 2009. See http://www.registerofohio.state.oh.us/pdfs/phn/3745_NO_88180_20090918_1123.pdf

  • The Ohio Environmental Protection Agency will hold a public hearing on proposed amendments to Ohio Admin. Code 3745:81-27, Analytical techniques; 3745:81-32, Public notification; 3745:81-60, Sanitary surveys; 3745:81-64, General requirements of the Long Term 2 Enhanced Surface Water Treatment Rule; 3745:81-65, Source monitoring requirements; 3745:81-66, Source monitoring results and grandfathered data; 3745:81-67, LT2 bin classification and treatment technique requirements; 3745:81-68, Microbial toolbox options for meeting Cryptosporidium treatment requirements; 3745:81-69, Reporting and recordkeeping requirements for LT2 only; 3745:81-71, General requirements for filtration and disinfection of surface water sources; 3745:81-72, Disinfection of water from surface water sources; 3745:81-73, Filtration of water from surface water sources; 3745:81-76, Water source designation; 3745:89-05, Requirements for maintaining laboratory certification; and 3745:89-11, Approved for laboratories for the Long Term 2 Enhanced Surface Water Treatment Rule. The hearing will be held October 22, 2009. See http://www.epa.ohio.gov/portals/28/documents/rules/proposed/publicnotice_LT2_OF.pdf

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


INTERNATIONAL

IMPACTS OF CLIMATE CHANGE COMING FASTER AND SOONER



The pace and scale of climate change may now be outstripping even the most sobering predictions of the latest report of the Intergovernmental Panel of Climate Change (IPCC), according to a United Nations Environment Program report released last week entitled Climate Change Science Compendium 2009. An analysis of the very latest, peer-reviewed science indicates that many predictions at the upper end of the IPCC's forecasts are becoming ever more likely. Researchers have become increasingly concerned about ocean acidification linked with the absorption of carbon dioxide in seawater and the impact on shellfish and coral reefs. Further, losses from glaciers, ice sheets, and the Polar Regions appear to be happening faster than anticipated. There is also growing concern among some scientists that thresholds or tipping points may now be reached in a matter of years or a few decades. The report also underlines concern by scientists that the planet is now committed to some damaging and irreversible impacts as a result of the greenhouse gases already in the atmosphere. Recent science suggests that it may still be possible to avoid the most catastrophic impacts of climate change. However, this will only happen if there is immediate, cohesive and decisive action to both cut emissions and assist vulnerable countries adapt. For the full story, see http://www.unep.org/Documents.Multilingual/Default.asp?DocumentID=596&ArticleID=6326&l=en&t=long


CARBON COMMITMENT MARKS NEW ERA FOR CHINA


Chinese President Hu Jintao's pledge last week to cut "carbon intensity" marked Beijing's first acceptance that it must control emissions, a pivotal shift that could alter the dynamic of global climate change talks. It seemed obscure and technical to many, with no hard number to anchor the target or boost pressure on other major emitters, and some critics claimed the new objective was little more than a dressed up extension of existing "energy intensity" goals. But buried amid stodgy language and recycled commitments to cleaner energy was China's first recognition of a responsibility the rest of the world has long urged it to shoulder--that of counting and curbing its emissions of greenhouse gases. As China is now the world's top emitter, the shift could smooth talks on a new global framework to tackle climate change, due to be finalized at UN-led talks in Copenhagen in December. Hu's decision to unveil the new policy in a rare address to the United Nations was also a sign to the international community that climate change has become a priority for China's leaders. For the full story, see http://www.reuters.com/article/GCA-GreenBusiness/idUSTRE58N15W20090924

EU COURT RULING ADDS CARBON TRADE UNCERTAINTY


Poland and Estonia won their appeal for more generous caps on industrial carbon emissions in a European Union (EU) court ruling on Wednesday, casting uncertainty over the EU emissions trading scheme. The ruling exposed cracks in commitment to the scheme between eastern and western Europe and undermined the powers of the EU Commission, experts said. Europe's emissions trading scheme limits carbon emissions using a quota of pollution rights applied to industry such as power plants, factories, and steel mills. Wednesday's ruling applied to quotas for the second trading phase from 2008-2012, but added new uncertainty into EU-wide caps on industrial carbon emissions through 2020, only agreed to late last year after months of haggling. For the full story, see http://www.reuters.com/article/GCA-GreenBusiness/idUSTRE58M5L820090923

 

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


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