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Weekly Update Volume 39, Issue 28

10/12/2009

LITIGATION

RCRA, WASTE, SPENT MATERIAL:



A district court held that used potassium hydroxide (KOH) shipped for reuse to a fertilizer company is a "waste" under RCRA. An aerospace casings manufacturer argued that the used KOH it shipped to the fertilizer company was not waste because it was not a "spent material." But EPA's interpretation that the proper reading of the regulation at issue centers on the initial use of a material was not arbitrary, capricious, or an abuse of discretion. Although used KOH may not be "spent material" if it is later used for a similar purpose (in this case, as a cleanser), the used KOH was a "spent material" when later used for a different purpose as a fertilizer ingredient applied to land. Further, the manufacturer could have reasonably ascertained that EPA would treat the used KOH as spent material. The manufacturer, therefore, violated RCRA. As stipulated by the parties, it must pay a $309,091 penalty. Howmet Corp. v. United States Environmental Protection Agency, No. 07-1306, 39 ELR 20229 (D.D.C. Sept. 23, 2009) (Sullivan, J.).


CERCLA, COST RECOVERY, INVOLUNTARY COSTS:



A district court granted in part and denied in part motions to dismiss an automobile company's CERCLA and state law actions against a gas company for costs it has incurred and will continue to incur in connection with environmental contamination at a former manufactured gas plant in Dearborn, Michigan. The court denied the gas company's motion to dismiss the plaintiffs' claim for cost recovery under CERCLA §107. The gas company argued that in order to assert a cause of action under §107, which authorizes cost recovery actions against PRPs, the plaintiff must have incurred its costs voluntarily. Because the plaintiff seeks recovery of funds it paid pursuant to a consent order, the gas company argued that the plaintiff must seek recovery of involuntarily incurred costs through CERCLA §113(f), which authorizes contribution claims. The court disagreed. The broad language set forth in §107 does not, on its face, limit recovery to only voluntarily incurred costs. Rather, it allows recovery for "any other necessary costs." Moreover, there is no basis for interpreting CERCLA in a way that would discourage parties from entering agreements with the states to ensure a proper cleanup. The court, however, granted the gas company's motion to dismiss the plaintiffs' contribution action. Although the consent order "resolves" the plaintiffs' liability, it does not qualify as an administrative settlement under CERCLA §113. And while the plaintiffs' Michigan Environmental Protection Act claim was not barred by the statute of limitations, CERCLA §113 preempts its common law claim for contribution. Ford Motor Co. v. Michigan Consolidated Gas Co., No. 08-CV-13503, 39 ELR 20231 (E.D. Mich. Sept. 29, 2009) (Cleland, J.).


NEPA, NATIONAL FOREST MANAGEMENT ACT:



A district court held that the U.S. Forest Service's EIS addressing the land management plans for four national forests in southern California was issued in violation of NEPA and the National Forest Management Act (NFMA). The court rejected many of the plaintiffs' challenges. Nevertheless, the Forest Service's failure to provide in the EIS any discussion of input from the state of California, or at least of the state's failure to fully engage in the planning process, was a violation of the NFMA. This is more than a merely technical violation, as it significantly inhibits the public's ability to understand the competing priorities of the Forest Service and the state. In addition, the Forest Service failed to specifically analyze the cumulative impacts of extensively increasing the inventoried roadless areas zoned to allow for potential road construction while recommending relatively few inventoried roadless areas for wilderness protection in violation of NEPA. And despite the criticality of monitoring and evaluation requirements, the Forest Service applied the same monitoring and evaluation requirements across the range of proposed alternatives. The failure to analyze alternative regimes of monitoring and evaluation renders the public and decisionmakers unable to make a reasoned choice. This is an abuse of discretion and a violation of NEPA. California Resources Agency v. United States Department of Agriculture, No. 08-1185, 39 ELR 20230 (N.D. Cal. Sept. 29, 2009) (Patel, J.).


WATER RIGHTS, CONTRACT LAW, TAKINGS:



The Federal Circuit affirmed in part and reversed in part a lower court decision in favor of the U.S. government on claims that it breached certain contracts between the U.S. Bureau of Reclamation and California water districts concerning Central Valley Project water resources. The lower court concluded that, though the Bureau's obligations for water delivery were indeed breached, certain contract provisions gave the government the affirmative defenses it claimed. The first defense raised by the government--that the Bureau had implicit authority to reallocate certain water resources in response to a change in law and policy--is not a valid defense under the facts of this case. The government failed to prove that changes in state law and policy caused the water shortages rather than federal management choices. In addition, with the exception of 1994 and 1995, the government failed to prove its second defense--that the shortages were the result of causes "beyond the control of the United States" such as to absolve it under the contract provisions. The lower court's contrary determinations regarding these defenses were therefore reversed. The lower court, however, properly rejected the government's sovereign acts defense. In addition, the court vacated the lower court's dismissal of the districts' takings claim. The lower court erred in dismissing without trial the takings claim on the ground that the contract claim precluded the takings claim. The water districts are free to pursue their takings claim if they so choose with regard to the years for which the government has been found not liable as a matter of contract law. The court, however, offered no opinion on the validity or propriety of such a claim. As for the contract claims, the case was remanded for a determination of damages for the years for which the government is liable. Stockton East Water District v. United States, No. 2007-5142, 39 ELR 20228 (Fed. Cir. Sept. 30, 2009).


CIVIL PROCEDURE, REMOVAL:



The Second Circuit denied a petition for writ of mandamus challenging a district court order denying a California water district's motion to remand its suit against corporations that manufactured, refined, marketed, or distributed gasoline containing methyl tertiary butyl ether to California state court. The Second Circuit's prior opinion in In re MTBE Prods. Liab. Litig., 488 F.3d 112, 37 ELR 20116 (2d Cir. 2007)—which involved other parties in this multi-district litigation—did not preclude the district court's conclusion that the water district failed to file a timely motion for remand. The water district argued that improper removal under the bankruptcy removal statute requires subsequent remand to state court. But the district court's purportedly erroneous removal under 28 U.S.C. §1452(a) did not implicate the court's subject matter jurisdiction. The bankruptcy removal statute is more akin to the general removal statute, 28 U.S.C. §1441, which only provides a procedural mechanism for removal and does not confer subject matter jurisdiction, than it is to the federal officer removal statute, 28 U.S.C. §1442(a)(1), which provides both a procedural mechanism and subject matter jurisdiction. In addition, any challenge to the district court's subject matter jurisdiction is best addressed on direct appeal rather than by a writ of mandamus. Orange County Water District v. Unocal Corp., No. 07-5724, 39 ELR 20224 (2d Cir. Oct. 1, 2009).


INTERNATIONAL LAW, ACT OF STATE DOCTRINE:



The Ninth Circuit reversed and remanded a district court decision dismissing a Philippine island's action claiming that an American company polluted its waters. According to the complaint, Placer Dome severely polluted the lands and waters of Marinduque for some 30 years, caused two cataclysmic environmental disasters, poisoned the islanders by contaminating their food and water sources, and then left the province without cleaning up the contamination —all in violation of Philippine law. Immediately after the island filed suit, the company removed the case to federal district court for the District of Nevada on the basis of federal question jurisdiction. The court then dismissed the action on forum non conveniens grounds. But the court lacked jurisdiction under the act of state doctrine. Under this doctrine, "the acts of foreign sovereigns taken within their own jurisdiction shall be deemed valid." The doctrine also serves as a basis for federal-question jurisdiction when the plaintiff's complaint challenges the validity of a foreign state's conduct. Here, none of the conduct by the Philippine government referenced by the defendant-company was essential to any of the island's causes of actions. The district court, therefore, lacked subject matter jurisdiction and removal from state court was improper. The case was therefore remanded with instructions to remand to the state court. Provincial Government of Marinduque v. Placer Dome, Inc., No. 07-16306, 39 ELR 20225 (9th Cir. Sept. 29, 2009).


MINNESOTA ENVIRONMENTAL POLICY ACT, GREENHOUSE GAS EMISSIONS:



A Minnesota appellate court upheld an EIS for a steel plant against claims that it failed to address the impact of greenhouse gas emissions, climate change, and power generation. The environmental group's claims that the state environmental agency failed to consider the impacts of greenhouse-gas emissions in its EIS for the project lacked merit. Although the project will contribute CO2 emissions to the atmosphere, as noted in the EIS, the agency reasonably determined that it is not within the current state of the art to provide an analysis of the impact that project-related greenhouse-gas emissions will have on the environment. A reliable model for evaluating the project's greenhouse-gas emissions on regional or global climate does not exist, and the precise effects of any mitigation measures cannot be predicted with certainty. In addition, the group's claims that the EIS failed to include any discussion of alternatives to the project or mitigation measures that could reduce the project's greenhouse gas emissions was unsupported by the record. Nor did the agency fail to consider the issue of climate change. Again, the agency reasonably determined that an assessment of likely climate change on the project's environmental effects is beyond the state of the art. Lastly, the evidence supports the agency's determinations that the project will not directly cause the construction of a new power plant and that the project will not cause an increase in power production. Minnesota Center for Environmental Advocacy v. Holsten, No. A08-2171, 39 ELR 20227 (Minn. Ct. App. Sept. 22, 2009).


AIR EMISSIONS, VOLATILE ORGANIC COMPOUNDS:



A California appellate court remanded in part a lower court decision denying a paint manufacturing association's petition challenging amendments to an air district rule limiting the amount of volatile organic compounds (VOCs) allowed in various kinds of paints and coatings. The association argued that the rule specifies air emissions limits that are not actually "available" and "achievable." However, the record shows that except for two categories -- quick-dry enamels and rust preventative coating -- there are products that comply with the new VOC limits. The products, therefore, are both available and achievable, even if there is not much of it by way of variety or market penetration. But as to quick-dry enamels and rust preventative categories of coatings, the matter is remanded. The lower court must hold a hearing to determine whether there is any current state of the art technology available to comply with the revised limits on VOCs. If the trial court determines that there is not, the trial court shall grant the relief requested by the paint association as to those two categories of coatings only. National Paint & Coatings Ass'n v. South Coast Air Quality Management District, No. G040122, 39 ELR 20226 (Cal. App. 4th Dist. Sept. 29, 2009).


AIR POLLUTION, MOBILE SOURCES:



A California appellate court affirmed a lower court decision upholding two rules adopted by a local air pollution control district designed to encourage developers to reduce indirect pollution, such as mobile source emissions, caused by new development projects. Under the rules, commonly referred to as indirect source review (ISR), the developer can reduce emissions by incorporating pollution-reducing features in the project, by paying a fee to fund off-site projects that will reduce emissions, or by a combination of the two. The air district had the power to adopt regulations to mitigate the effects of indirect source pollution, including the power to impose fees on persons who cause the pollution. The district is not attempting to do "indirectly" that which it is prohibited from doing directly. It is specifically authorized to both regulate and assess fees on developments that attract mobile sources of pollution, i.e., emissions generated by motor vehicles. In addition, the ISR fees are valid regulatory fees. California Building Industry Ass'n v. San Joaquin Valley Air Pollution Control District, No. F055448, 39 ELR 20223 (Cal. App. 5th Dist. Oct. 6, 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 and the National Highway Traffic Safety Administration proposed new standards for light-duty vehicles to reduce greenhouse gas emissions and improve fuel economy under the CAA and the Energy Policy and Conservation Act. 74 FR 49454 (9/28/09).

  • EPA amended the new source performance and work practice standards for coal preparation and processing plants. 74 FR 51950 (10/8/09).

  • EPA promulgated new source performance standards and emissions guidelines for hospital/medical/infectious waste incinerators under CAA §129(a)(5). 74 FR 51368 (10/6/09).

  • EPA proposed its interpretation of "subject to regulation" used to determine pollutants subject to the federal PSD program and requested comment. 74 FR 51535 (10/7/09).

  • EPA revised the regulations governing state and federal operating permit programs to promote flexible air permitting approaches. 74 FR 51418 (10/6/09).

  • EPA expanded the list of acceptable substitutes for ozone-depleting substances under the Significant New Alternatives Policy Program concerning the refrigeration and air conditioning and foam-blowing sectors. 74 FR 50129 (9/30/09).

  • EPA proposed to update outer continental shelf air regulations for New Jersey. 74 FR 50939 (10/2/09).

  • EPA announced the excess emissions penalty limitations under the Acid Rain Program for 2009 and 2010. 74 FR 50962 (10/2/09).

  • EPA granted a petition for reconsideration by the Natural Resources Defense Council of the final rule "Prevention of Significant Deterioration (PSD) and Nonattainment New Source Review (NSR): Reconsideration of Inclusion of Fugitive Emissions." 74 FR 50115 (9/30/09).

  • EPA entered into a proposed consent decree under the CAA that requires the Agency to respond to a petition seeking EPA's objection to an operating permit issued to the East Kentucky Power Cooperative William C. Dale Power Station by December 15, 2009. 74 FR 51602 (10/7/09).

  • EPA entered into a proposed consent decree under the CAA that requires the Agency to respond to a petition seeking EPA's objection to an operating permit issued for the operation of the John W. Turk Jr. Power Plant in Arkansas by December 15, 2009. 74 FR 51603 (10/7/09).

  • SIP Approvals: Connecticut (tribal implementation plan for the Mohegan Tribe of Indians) 74 FR 49327 (9/28/09). Delaware (idling of heavy-duty vehicles) 74 FR 51792 (10/8/09). Indiana (extension of federally enforceable state operating permit terms from five years to 10) 74 FR 51240 (10/6/09).

  • SIP Proposals: Alabama (reconsideration of visible emissions rules) 74 FR 50930 (10/2/09). California (approval of attainment contingency measures for the San Joaquin Valley) 74 FR 50936 (10/2/09). Connecticut (tribal implementation plan for the Mohegan Tribe of Indians; see above for direct final rule) 74 FR 49356 (9/28/09). Delaware (idling of heavy-duty vehicles; see above for direct final rule) 74 FR 51823 (10/8/09). North Carolina (1997 fine particulate matter (PM) NAAQS for the Hickory-Morganton-Lenoir nonattainment area) 74 FR 51246 (10/6/09); (1997 fine PM NAAQS for the Greensboro-Winston Salem-High Point nonattainment area) 74 FR 51249 (10/6/09).

HAZARDOUS & SOLID WASTE:



  • EPA proposed giving final authorization of changes to Michigan's hazardous waste management program. 74 FR 52161 (10/9/09).

  • EPA entered into a proposed administrative settlement agreement under CERCLA §122(i) that requires the settling parties to pay $174,706.67 in U.S. response costs incurred at the Merrill Meyers site in Wells County, Indiana. 74 FR 50795 (10/1/09).

  • EPA entered into a proposed administrative settlement under CERCLA §122(i) that requires the settling party to pay $165,709.61 in U.S. response costs incurred at the Dutch Boy site in Chicago, Illinois. 74 FR 50795 (10/1/09).

  • EPA entered into a proposed administrative settlement under CERCLA that requires the settling party to pay $18,500, plus interest, in U.S. response costs incurred at Doughty's Treating Plant site in LaSalle Parish, Louisiana. 74 FR 52232 (10/9/09).

OFFICE OF THE PRESIDENT:



  • The president issued Executive Order No. 13514 to encourage government-wide sustainable practices and to reduce greenhouse gas emissions by fiscal year 2020. 74 FR 52115 (10/8/09).

WATER:



  • EPA announced the availability of the final NPDES general permits for potable water treatment facility discharges in Massachusetts and New Hampshire. 74 FR 50964 (10/2/09).

WILDLIFE:



  • NOAA-Fisheries designated approximately 13,260 miles of freshwater river, estuarine, and marine habitat along the West Coast of California, Oregon, and Washington state as critical habitat for the threatened southern distinct population segment of North American green sturgeon. 74 FR 52300 (10/9/09).

  • FWS designated approximately 15,164 square kilometers as critical habitat for the southwest Alaska distinct population segment of the northern sea otter. 74 FR 51988 (10/8/09).

  • FWS determined that slickspot peppergrass, a plant species from southwest Idaho, should be listed as a threatened species throughout its range under the ESA. 74 FR 52014 (10/8/09).

  • FWS proposed adding 184 miles of rivers and streams and 18,462 acres in Colorado as critical habitat for the Preble's meadow-jumping mouse. 74 FR 52066 (10/8/09).

  • FWS announced its 12-month finding on a petition to revise critical habitat for clay-loving wild buckwheat under the ESA; the Agency found that revisions are warranted but precluded by other priorities. 74 FR 49835 (9/29/09).

  • FWS announced a 90-day finding on a petition to revise the critical habitat designation for the Florida subspecies of the endangered West Indian manatee under the ESA; the Agency found that revision may be warranted and initiated a critical habitat review. 74 FR 49842 (9/29/09).

DOJ NOTICES OF SETTLEMENT:



  • United States v. Midwest Renewable Energy, LLC, No. 8:09CV337 (D. Neb. Sept. 23, 2009). A settling CAA and EPCRA defendant must pay a $10,000 civil penalty and must certify remediation of violations at its ethanol plant in Sutherland, Nebraska. 74 FR 50988 (10/2/09).

  • United States v. Waste Management of Wisconsin, Inc., No. 09-cv-0135 (E.D. Wis. Sept. 25, 2009). A settling CERCLA defendant must pay $3,500 in U.S. response costs incurred at the Watertown Tire Fire site in Watertown, Wisconsin. 74 FR 50821 (10/1/09).

  • United States v. Mosaic Fertilizer, LLC, No. 2:09-cv-6662 (E.D. La. Oct. 5, 2009). A settling CAA defendant that violated PSD permit provisions must pay a $1.8 million civil penalty to the United States and $600,000 to Louisiana and must reduce emissions of sulfur dioxide at two sulfuric acid production units in Uncle Sam, Louisiana. 74 FR 52259 (10/9/09).

  • United States v. Formosa Plastics Corp., No. 6:09-cv-00061 (S.D. Tex. Sept. 29, 2009). Settling CAA, CWA, EPCRA, and RCRA defendants must pay a $2.8 million civil penalty; must implement a comprehensive leak detection and repair program; must implement an innovative vinyl chloride leak detection and elimination program; must perform a comprehensive assessment of benzene waste operations; must implement measures to prevent future CWA violations; must change RCRA hazardous waste management practices; and must conduct a comprehensive assessment of toxic release reporting under EPCRA for violations at their facilities in Point Comfort, Texas, and Baton Rouge, Louisiana. 74 FR 51877 (10/8/09).

  • United States v. George A. Whiting Paper Co., No. 1:09-cv-00692 (E.D. Wis. Sept. 25, 2009). A settling CERCLA defendant must pay $210,000 in U.S. response costs incurred at and near the Lower Fox River and Green Bay site in northeastern Wisconsin. 74 FR 51878 (10/8/09).

  • United States v. Hampton Roads Sanitation Dist., No. 2:09-cv-481 (E.D. Va. Sept. 29, 2009). A settling CWA defendant must pay a $900,000 civil penalty for the unauthorized discharge of sanitary sewer overflows and must implement a number of technical plans and projects to evaluate and upgrade its sanitary sewer system and sewage treatment plants in Hampton Roads, Virginia. 74 FR 51619 (10/7/09).

  • United States v. Pacific Gas & Electric Co., No. 09-4503 (N.D. Cal. Sept. 24, 2009). A settling CAA defendant that built a natural gas-fired power plant near Antioch, California, without an appropriate PSD permit and without installing and applying the best available control technology must pay a $20,000 civil penalty and perform injunctive relief. 74 FR 51170 (10/5/09).

  • United States v. Apache Nitrogen Products, Inc., No. 4:09-CV-00542-JMR (D. Ariz. Sept. 23, 2009). A settling CERCLA defendant must perform remaining work at the Apache Powder Superfund site near Bensen, Arizona, must pay $1,200,000 out of $7 million in past response costs, and must pay all future EPA oversight after the first $200,000. 74 FR 51171 (10/5/09).

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. 685 (United States Civil Rights Trail System Act of 2009), which would require a study of the feasibility of establishing the U.S. Civil Rights Trail System, was passed by the House. 155 Cong. Rec. H10003 (daily ed. Sept. 29, 2009).

  • H.R. 905 (Thunder Bay National Marine Sanctuary and Underwater Preserve Boundary Modification Act), which would expand the boundaries of the Thunder Bay National Marine Sanctuary and Underwater Preserve, was passed by the House. 155 Cong. Rec. H10007, H10040 (daily ed. Sept. 29, 2009).

  • H.R. 1053 (Chesapeake Bay Accountability and Recovery Act of 2009), which would require OMB to prepare a crosscut budget for restoration activities in the Chesapeake Bay watershed and to require EPA to develop and implement an adaptive management plan, was passed by the House. 155 Cong. Rec. H10122 (daily ed. Sept. 30, 2009).

  • H.R. 1771 (Chesapeake Bay Science, Education, and Ecosystem Enhancement Act of 2009), which would reauthorize the Chesapeake Bay Office of NOAA, was passed by the House. 155 Cong. Rec. H10122 (daily ed. Sept. 30, 2009).

  • H.R. 2950 (Uintah Water Conservancy District), which would direct the Secretary of the Interior to allow for prepayment of repayment contracts between the United States and the Uintah Water Conservancy District, was passed by the House. 155 Cong. Rec. H10006 (daily ed. Sept. 29, 2009).

  • H.R. 3123 (Leadville Mine Drainage Tunnel Remediation Act of 2009), which would direct the Secretary of the Interior, acting through the Bureau of Reclamation, to remedy problems caused by a collapsed drainage tunnel in Leadville, Colorado, was passed by the House. 155 Cong. Rec. H10007 (daily ed. Sept. 29, 2009).

  • H. Res. 701 (Dyke Marsh Wildlife Preserve), which would recognize the Dyke Marsh Wildlife Preserve as a unique and precious ecosystem, was passed by the House. 155 Cong. Rec. H10545 (daily ed. Oct. 7, 2009).

  • H. Res. 710 (National Estuaries Day), which would support the goals and ideals of "National Estuaries Day," was passed by the House. H10474 (daily ed. Oct. 5, 2009).

Committee Action


  • H.R. 481 (North Country National Scenic Trail) was reported by the Committee on Natural Resources. H. Rep. No. 111-290, 155 Cong. Rec. H11165 (daily ed. Oct. 8, 2009). The bill would revise the authorized route of the North Country National Scenic Trail in northeastern Minnesota to include existing hiking trails along Lake Superior's north shore and in Superior National Forest and Chippewa National Forest.

  • H.R. 685 (trail system) was reported by the Committee on Natural Resources. H. Rep. No. 111-267, 155 Cong. Rec. H10068 (daily ed. Sept. 29, 2009). The bill would require a study of the feasibility of establishing the U.S. Civil Rights Trail System.

  • H.R. 905 (boundary expansion) was reported by the Committee on Natural Resources. H. Rep. No. 111-270, 155 Cong. Rec. H10068 (daily ed. Sept. 29, 2009). The bill would expand the boundaries of the Thunder Bay National Marine Sanctuary and Underwater Preserve.

  • H.R. 1053 (Chesapeake Bay) was reported by the Committee on Natural Resources. H. Rep. No. 111-272 Pt. 1, 155 Cong. Rec. H10068 (daily ed. Sept. 29, 2009). The bill would require OMB to prepare a crosscut budget for restoration activities in the Chesapeake Bay watershed and require EPA to develop and implement an adaptive management plan.

  • H.R. 1593 (Wild and Scenic Rivers Act) was reported by the Committee on Natural Resources. H. Rep. No. 111-291, 155 Cong. Rec. H11165 (daily ed. Oct. 8, 2009). The bill would amend the Wild and Scenic Rivers Act to designate a segment of Illabot Creek in Skagit County, Washington, as a component of the National Wild and Scenic Rivers System.

  • H.R. 1641 (National Trails System Act) was reported by the Committee on Natural Resources. H. Rep. No. 111-292, 155 Cong. Rec. H11165 (daily ed. Oct. 8, 2009). The bill would amend the National Trails System Act to provide for a study of the Cascadia Marine Trail.

  • H.R. 1771 (water) was reported by the Committee on Natural Resources. H. Rep. No. 111-271, 155 Cong. Rec. H10068 (daily ed. Sept. 29, 2009). The bill would reauthorize the Chesapeake Bay Office of NOAA.

  • H.R. 2442 (water) was reported by the Committee on Natural Resources. H. Rep. No. 111-268, 155 Cong. Rec. H10068 (daily ed. Sept. 29, 2009). The bill would amend the Reclamation Wastewater and Groundwater Study and Facilities Act to expand the Bay Area Regional Water Recycling Program.

  • H.R. 2806 (national park) was reported by the Committee on Natural Resources. H. Rep. No. 111-293, 155 Cong. Rec. H11165 (daily ed. Oct. 8, 2009). The bill would authorize the Secretary of the Interior to adjust the boundary of the Stephen Mather Wilderness and the North Cascades National Park in order to allow the rebuilding of a road outside of the floodplain while ensuring that there is no net loss of acreage to the park or the wilderness.

  • H.R. 2950 (water) was reported by the Committee on Natural Resources. H. Rep. No. 111-269, 155 Cong. Rec. H10068 (daily ed. Sept. 29, 2009). The bill would direct the Secretary of the Interior to allow for prepayment of repayment contracts between the United States and the Uintah Water Conservancy District.

  • H.R. 3183 (energy and water) was reported by the Committee of Conference. H. Rep. No. 111-278, 155 Cong. Rec. H10407 (daily ed. Sept. 30, 2009). The bill would make appropriations for energy and water development and related agencies for the fiscal year ending September 30, 2010.

  • H. Res. 465 (Atlantic Intracoastal Waterway Association) was reported by the Committee on Transportation and Infrastructure. H Rep. No. 111-285, 155 Cong. Rec. (daily ed. Oct. 6, 2009). The resolution would recognize the Atlantic Intracoastal Waterway Association on the occasion of its 10th anniversary.

  • H. Res. 788 (energy and water) was reported by the Committee on Rules. H. Rep. No. 111-280, 155 Cong. Rec. H10407 (daily ed. Sept. 30, 2009). The resolution would provide for consideration of the conference report to accompany the bill (H.R. 3183) making appropriations for energy and water development and related agencies for the fiscal year ending September 30, 2010.

Bills Introduced


  • S. 1718 (Bennett, R-Utah) (land conveyance) would require the conveyance of certain public land within the boundaries of Camp Williams, Utah, to support the training and readiness of the Utah National Guard. 155 Cong. Rec. S9869 (daily ed. Sept. 25, 2009). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 1719 (Bennett, R-Utah) (land conveyance) would provide for the conveyance of certain parcels of land to the town of Alta, Utah. 155 Cong. Rec. S9869 (daily ed. Sept. 25, 2009). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 1721 (Sanders, I-Vt.) (transportation) would require the Secretary of Transportation to develop a national transportation low emissions energy plan. 155 Cong. Rec. S9869 (daily ed. Sept. 25, 2009). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 1733 (Kerry, D-Mass.) (climate) would create clean energy jobs, promote energy independence, reduce global warming pollution, and transition to a clean energy economy. 155 Cong. Rec. S9982 (daily ed. Sept. 30, 2009). The bill was referred to the Committee on Environment and Public Works.

  • S. 1738 (Cantwell, D-Wash.) (National Forest System) would provide lasting protection for inventoried roadless areas within the National Forest System. 155 Cong. Rec. S10060 (daily ed. Oct. 1, 2009). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 1741 (Gillibrand, D-N.Y.) (fuel economy) would authorize states or political subdivisions thereof to regulate fuel economy and emissions standards for taxicabs. 155 Cong. Rec. S10061 (daily ed. Oct. 1, 2009). The bill was referred to the Committee on Commerce, Science, and Transportation.

  • S. 1748 (Boxer, D-Cal.) (wildlife) would establish a program of research, recovery, and other activities to provide for the recovery of the southern sea otter. 155 Cong. Rec. S10061 (daily ed. Oct. 1, 2009). The bill was referred to the Committee on Commerce, Science, and Transportation.

  • S. 1750 (Webb, D-Va.) (historic sites) would authorize the Secretary of the Interior to conduct a special resource study of the General of the Army George Catlett Marshall National Historic Site at Dodona Manor in Leesburg, Virginia. 155 Cong. Rec. S10110 (daily ed. Oct. 5, 2009). The bill was referred to the Committee on Energy and Natural Resources.  

  • S. 1757 (Bennett, R-Utah) (Uintah Water Conservancy District) would provide for the prepayment of a repayment contract between the United States and the Uintah Water Conservancy District. 155 Cong. Rec. S10162 (daily ed. Oct. 6, 2009). The bill was referred to the Committee on Energy and Natural Resources. 

  • S. 1758 (Bennett, R-Utah) (power development) would provide for the allocation of costs to project power with respect to power development within the Diamond Fork System. 155 Cong. Rec. S10162 (daily ed. Oct. 6, 2009). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 1759 (Feinstein, D-Cal.) (water) would authorize certain transfers of water in the Central Valley Project. 155 Cong. Rec. S10217 (daily ed. Oct. 7, 2009). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 1767 (Burr, R-N.C.) (land acquisition) would authorize a land exchange to acquire land for the Blue Ridge Parkway from the Town of Blowing Rock, North Carolina. 155 Cong. Rec. S10318 (daily ed. Oct. 8, 2009). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 1768 (Burr, R-N.C.) (national forests) would adjust the boundaries of Pisgah National Forest in McDowell County, North Carolina. 155 Cong. Rec. S10318 (daily ed. Oct. 8, 2009). The bill was referred to the Committee on Agriculture, Nutrition, and Forestry.

  • S. 1770 (Murkowski, R-Alaska) (land use) would recognize the heritage of recreational fishing, hunting, and shooting on federal public lands and ensure continued opportunities for these activities. 155 Cong. Rec. S10318 (daily ed. Oct. 8, 2009). The bill was referred to the Committee on Energy and Natural Resources.

  • H.R. 3650 (Baird, D-Wash.) (algal blooms) would establish a National Harmful Algal Bloom and Hypoxia Program, develop and coordinate a comprehensive and integrated strategy to address harmful algal blooms and hypoxia, and provide for the development and implementation of comprehensive regional action plans to reduce harmful algal blooms and hypoxia. 155 Cong. Rec. H9998 (daily ed. Sept. 25, 2009). The bill was referred to the Committee on Science and Technology and to the Committee on Natural Resources.

  • H.R. 3658 (Sablan, D-M.P.) (natural resources) would make technical corrections to subtitle A of title VII of the Consolidated Natural Resources Act of 2008. 155 Cong. Rec. H9998 (daily ed. Sept. 25, 2009). The bill was referred to the Committee on Natural Resources and to the Committee on the Judiciary.

  • H.R. 3659 (Wu, D-Or.) (tax credits) would amend the Internal Revenue Code of 1986 to allow a credit against income tax for amounts paid for energy efficient property placed in service in commercial buildings pursuant to an approved energy efficiency plan. 155 Cong. Rec. H10069 (daily ed. Sept. 29, 2009). The bill was referred to the Committee on Ways and Means.

  • H.R. 3660 (Wu, D-Or.) (tax credits) would amend the Internal Revenue Code of 1986 to promote tax parity between the residential and business fuel cell tax credits. 155 Cong. Rec. H10069 (daily ed. Sept.29, 2009). The bill was referred to the Committee on Ways and Means.

  • H.R. 3671 (Kind, D-Wis.) (water) would promote DOI efforts to provide a scientific basis for the management of sediment and nutrient loss in the Upper Mississippi River Basin. 155 Cong. Rec. H10069 (daily ed. Sept. 29, 2009). The bill was referred to the Committee on Natural Resources.

  • H.R. 3692 (Inslee, D-Wash.) (National Forest System) would protect inventoried roadless areas in the National Forest System. 155 Cong. Rec. H10455 (daily ed. Oct. 1, 2009). The bill was referred to the Committee on Agriculture and the Committee on Natural Resources.

  • H.R. 3694 (Broun, R-Ga.) (energy) would establish judicial procedures for causes and claims relating to any action or decision by a federal official regarding the leasing of federal lands (including submerged lands) for the exploration, development, production, processing, or transmission of oil, natural gas, or any other source or form of energy. 155 Cong. Rec. H10455 (daily ed. Oct. 1, 2009). The bill was referred to the Committee on the Judiciary. 

  • H.R. 3697 (Cole, R-Okla.) (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. H10455 (daily ed. Oct. 1, 2009). The bill was referred to the Committee on Natural Resources.

  • H.R. 3709 (Inslee, D-Wash.) (geothermal resources) would amend the Geothermal Steam Act of 1970 to authorize noncompetitive leasing of certain areas adjoining other lands for which a qualified company or individual holds a preexisting legal right to develop geothermal resources. 155 Cong. Rec. H10456 (daily ed. Oct. 1, 2009). The bill was referred to the Committee on Natural Resources. 

  • H.R. 3710 (Lowey, D-N.Y.) (wildlife) would end the use of body-gripping traps in the National Wildlife Refuge System. 155 Cong. Rec. H10456 (daily ed. Oct. 1, 2009). The bill was referred to the Committee on Natural Resources. 

  • H.R. 3711 (Nadler, D-N.Y.) (fuel economy) would authorize states or political subdivisions thereof to regulate fuel economy and emissions standards for taxicabs. 155 Cong. Rec. H10456 (daily ed. Oct. 1, 2009). The bill was referred to the Committee on Energy and Commerce.

  • H.R. 3770 (Bordallo, D-Guam) (natural resources) would make technical corrections to subtitle A of title VII of the Consolidated Natural Resources Act of 2008. 155 Cong. Rec. H11165 (daily ed. Oct. 8, 2009). The bill was referred to the Committee on Natural Resources and the Committee on the Judiciary.

  • H.R. 3774 (Fortenberry, R-Neb.) (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. H11166 (daily ed. Oct. 8, 2009). The bill was referred to the Committee on Foreign Affairs.

  • H.R. 3781 (Markey, D-Mass.) (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. H11166 (daily ed. Oct. 8, 2009). The bill was referred to the Committee on Natural Resources and the Committee on the Judiciary.

  • H.R. 3785 (Scott, D-Ga.) (boundary expansion) would authorize the Secretary of the Interior to conduct a study of the suitability and feasibility of expanding the boundary of Chattahoochee River National Recreation Area. 155 Cong. Rec. H11166 (daily ed. Oct. 8, 2009). The bill was referred to the Committee on Natural Resources.

  • H. Res. 795 (Shuster, R-Pa.) (national memorial) would honor the people of Shanksville, Pennsylvania, and the Flight 93 Ambassadors for their efforts in creating the Flight 93 temporary memorial and encouraging the completion of the National Park Service Flight 93 National Memorial by the 10th anniversary of September 11, 2001. 155 Cong. Rec. H10456 (daily ed. Oct. 1, 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:













Arkansas Florida Indiana
California Idaho Iowa
Delaware Illinois Massachusetts

ARKANSAS


Air:



CALIFORNIA


Air:



  • The Air Resources Board will hold a public hearing on proposed amendments to Cal. Code Regs. tit 13 §§1956.8, 1958, 1961, 1976, 1978, 2111, 2112, 2122, 2136, and 2141, California Exhaust Emission Standards and Test Procedures for 2001 and Subsequent Model Passenger Cars, Light-Duty Trucks, and Medium-Duty Vehicles. The amendments would repeal the 2007 Emission Warranty Information Reporting and Recall (EWIR) amendments and readopt the 1988 EWIR. The hearing will be held November 19, 2009. See http://www.arb.ca.gov/regact/2009/ewirpsip09/ewirpsip09.htm

DELAWARE


Solid & Hazardous Waste:



Water:



  • The Department of Natural Resources and Environmental Control will hold a public hearing on proposed amendments to 7 Del. Code Regs. §6010, Delaware Coastal Management Program Federal Consistency Policies and Procedures. The amendments update the Department's policies to maintain the authority to manage the coastal resources of Delaware and evaluate federal activities, permits, and plans to the maximum extent to ensure practicable consistency by those pursuing these actions. The hearing will be October 28, 2009. See http://regulations.delaware.gov/register/october2009/proposed/13%20DE%20Reg%20461%2010-01-09.htm#P34_2212

FLORIDA


Energy:



  • The Department of Environmental Protection will hold a public hearing on proposed amendments to the Florida Electrical Transmission Siting Act. Specifically, the amendments would make changes to Fla. Admin. Code r. 62-17.510, General; 62-17.520, Definitions; 62-17.535, Notification of Construction of Transmission Lines Not Subject to the Act; 62-17.540, Application for Corridor Certification and Precertification, Amendments; 62-17.543, Alternate Corridor Information; 62-17.545, Fees, Disbursement of Funds, Contracts; 62-17.570, Insufficiency of Application, Resolution Procedures; 62-17.580, Conduct of Studies; 62-17.590, Agency Reports, Project Analysis; 62-17.600, Conditions of Certification; 62-17.610, Proprietary Interest in State-owned Lands; 62-17.625, Alternate Corridor Processing; 62-17.660, Post-Certification Monitoring and Reporting; 62-17.665, Management and Storage of Surface Waters, Activities in Surface Waters and Wetlands, and Water Quality Postcertification Review; 62-17.680, Modification of Certification; 62-17.695, Emergency Replacement; 62-17.700, Revocation or Suspension of Certification; 62-17.710, Termination of Certification; 62-17.750, Public Noticing Requirements; and 62-17.760, Evidence of Notice, Additional Notice. See https://www.flrules.org/Faw/FAWDocuments/FAWVOLUMEFOLDERS2009/3538/3538doc.pdf (pp. 4689-4710)

Water:



  • The Suwannee River Water Management District proposed amendments to Fla. Admin. Code r. 40B-1.704, Bond. The proposed rule would require a bond or other form of surety for certification of completion of surface water management systems authorized by environmental resource permits. The effect of implementation will be an increase in the compliance rate of the certifications. See https://www.flrules.org/Faw/FAWDocuments/FAWVOLUMEFOLDERS2009/3538/3538doc.pdf (pp. 4678-79)

  • The Southwest Florida Water Management District proposed amendments to Fla. Admin. Code r. 40D-8.041, Minimum Flows. The rules establish minimum flows and describe the recovery strategy for the Lower Alafia River System. See https://www.flrules.org/Faw/FAWDocuments/FAWVOLUMEFOLDERS2009/3538/3538doc.pdf (pp. 4679-682)

  • The Suwannee River Water Management District has begun rule development on proposed amendments to Fla. Admin. Code r. 40B-2.301, Conditions for Issuance of Permits. The purpose of the rule development is to add permit duration criteria for permits issued in the Upper Santa Fe River basin. https://www.flrules.org/Faw/FAWDocuments/FAWVOLUMEFOLDERS2009/3539/3539doc.pdf (pp. 4792-93)

IDAHO


Air:



  • The Department of Environmental Quality will hold a public hearing on proposed amendments to Idaho Admin. Code r. 58.01.01, Rules for the Control of Air Pollution in Idaho. The amendments would develop air quality rules designed to limit and control mercury emissions from certain facilities. The hearing will be held October 28, 2009. See http://adm.idaho.gov/adminrules/bulletin/bul/09bul/09octvol2.pdf (p. 496)

ILLINOIS


Air:



  • The Pollution Control Board adopted amendments to 35 Ill. Admin. Code 211, Definitions and General Provisions; and 35 Ill. Admin. Code 217, Nitrogen Oxides (NOx) Emissions. The amendments are designed to control NOx emissions from major stationary sources in the nonattainment areas and from emission units including industrial boilers, process heaters, glass melting furnaces, cement kilns, lime kilns, furnaces used in steelmaking and aluminum melting, and fossil fuel-fired stationary boilers at such sources. See http://www.cyberdriveillinois.com/departments/index/register/register_volume33_issue39.pdf (pp. 13326-394)

INDIANA


Air:



  • The Air Pollution Control Board will hold a public hearing on final adoption of amendments and new rules at 326 Ind. Admin. Code 16, concerning implementation of Indiana law regarding EISs for major state actions that may significantly affect the quality of the human environment. The hearing will be held November 4, 2009. See http://www.in.gov/legislative/iac/irtoc.htm?view=list&lsadocnum=08-208

Hazardous & Solid Waste:



Water:



  • The Natural Resources Commission proposed amendments to 312 Ind. Admin. Code 11, governing public freshwater lakes to define and establish standards for a general license to place an aerator. The amendments clarify that an aerator that is not authorized by a general license may not be placed in a public freshwater lake absent a person's prior receipt of an individual license. See http://www.in.gov/legislative/iac/irtoc.htm?view=list&lsadocnum=09-806

IOWA


Air:



  • The Environmental Protection Commission adopted amendments to Iowa Admin. Code r. 20, Scope of Title-Definitions-Forms-Rules of Practice; r. 22, Controlling Pollution; r. 23, Emission Standards for Contaminants; r. 25, Measurement of Emissions; r. 28, Ambient Air Quality Standards; and r. 33, Special Regulations and Construction Permit Requirements for Major Stationary Sources-Prevention of Significant Deterioration of Air Quality. The amendments are intended to update state air quality rules by adopting new federal requirements, including adoption of new NAAQS and two new federal air toxics standards. The amendments would also revise construction permitting requirements and stack testing requirements. See http://www.legis.state.ia.us/aspx/ACODOCS/DOCS/10-07-2009.Bulletin.pdf (pp.1049-53)

  • The Environmental Protection Commission adopted amendments to Iowa Admin. Code r. 23, Emission Standards for Contaminants; r. 25, Measurement of Emissions; and r. 34, Provisions for Air Quality Emissions Trading Programs. The amendments remove from the state air quality rules EPA's Clean Air Mercury Rule provisions that were vacated by the U.S. Court of Appeals for the D.C. Circuit. The amendments also add new mercury monitoring provisions to the state air quality rules. See http://www.legis.state.ia.us/aspx/ACODOCS/DOCS/10-07-2009.Bulletin.pdf (pp. 1053-58)

Water:



  • The Environmental Protection Commission adopted amendments to Iowa Admin. Code r. 61, Water Quality Standards; and r. 62, Effluent and Pretreatment Standards: Other Effluent Limitations or Prohibitions. The changes establish numerical water quality criteria for chloride for the protection of aquatic life uses, establish numerical water quality criteria for sulfate for the protection of aquatic life uses, and update the effective date of references to the "Supporting Document for Iowa Water Quality Management Plans." See http://www.legis.state.ia.us/aspx/ACODOCS/DOCS/10-07-2009.Bulletin.pdf (pp. 1058-63)

MASSACHUSETTS


Air:



  • The Department of Environmental Protection will hold a public hearing on proposed amendments to 310 Mass. Code Regs. 7.02, Plan Approval and Emission Limitations; 310 CMR 7.29, Emissions Standards for Power Plants; and 310 CMR 7.00 Appendix D, Mercury Monitoring and Testing Program. The amendments would reinstate and clarify Massachusetts requirements related to mercury monitoring, reporting, and recordkeeping. The hearing will be held November 2, 2009. See http://www.mass.gov/dep/service/regulations/newregs.htm#revcamr

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


INTERNATIONAL

CHINA CLASHES WITH U.S., EUROPE AT CLIMATE TALKS


China's top climate envoy insisted last week that it is unfair to expect all countries to play a role in combating global warming, leading to a rare public spat with delegates from the United States and Europe.  The unexpected exchange at a news conference at the United Nations climate talks in Bangkok laid bare what has been clear in at the negotiating tables for days--that a long-running divide between rich and poor countries shows no sign of abating despite promises by some major developing countries to cut their emissions of the gases responsible for climate change. That poses a problem as negotiators work feverishly to craft a new climate pact to replace the Kyoto Protocol, which expires in 2012. World leaders are hoping to forge a new deal in December in Copenhagen. Speaking at a joint news conference, the chief U.S. negotiator insisted that industrialized countries alone cannot reduce emissions enough to avert the worst impacts of climate change. That led China's Yu Qingtai to point out that developed countries are responsible for centuries of pollution and that China's per capita emissions are only one-third of those in rich countries--even though it now is the world's top polluter. For the full story, see http://www.msnbc.msn.com/id/33209727/ns/us_news-environment/

EUROPEAN STATES SPLIT OVER EU-WIDE CARBON TAX PLAN


European Union countries are split over plans to introduce an EU-wide carbon tax on fuel, which could be proposed early next year.  The idea, which EU officials say has gained fresh momentum after losing impetus earlier this year, is supported by Sweden, which has its own carbon tax scheme, and France, which will implement a levy next February. But it is opposed by Britain. The tax would add to the cost of fuel, encouraging fuel-efficient behavior and channeling funds to governments that might be used to ease the impact of climate change. "We do not support the idea of a mandatory, pan-European carbon tax," a British diplomat said. "There needs to be clear justification for taking fiscal action at an EU, rather than national or local, level." European tax commissioner Laszlo Kovacs raised the issue of a possible carbon tax to cover sectors such as road transport and agriculture at recent a meeting of the 27-country EU's finance ministers in Gothenburg, Sweden. For the full story, see http://www.reuters.com/article/GCA-GreenBusiness/idUSTRE59544A20091006

CLIMATE CHANGE THREATENS MANY IN MEKONG REGION


Changing weather patterns and rising seas are already affecting many people in Southeast Asia's Greater Mekong Basin, and climate change threatens the livelihoods of millions more, a WWF report released on Monday shows. Intense floods and droughts, coastal erosion, higher seas, and heat waves in coming decades threaten rice, fruit, and coffee crops and fisheries on which many of the basin's 65 million people depend, says the report. "Across the region, temperatures are rising and have risen by 0.5 to 1.5 degrees Celsius in the past 50 years," says the report, which was issued on the sidelines of UN climate talks in Bangkok last week. "While rainy seasons may contract over parts of the region, overall rainfall is expected to rise. This means more intense rain events when they occur," it says, threatening crops and triggering floods and landslides. For the full story, see http://www.reuters.com/article/GCA-GreenBusiness/idUSTRE5942VP20091005?sp=true

 

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


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