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Weekly Update Volume 39, Issue 3

01/26/2009

LITIGATION

CAA, NUISANCE:



A district court ordered the Tennessee Valley Authority (TVA) to install and continuously operate scrubbers at four power plants in Tennessee and Alabama. North Carolina filed a public nuisance claim against TVA, citing urgent environmental concerns due to air pollution emitted by TVA's coal-fired power plants in Alabama, Kentucky, and Tennessee. North Carolina presented sufficient evidence that untreated air pollution from three power plants in eastern Tennessee–Kingston, Bull Run, and John Sevier–unreasonably interferes with the rights of its citizens. TVA's generation of power at low cost to the consuming public has a high social utility. Nonetheless, the vast extent of the harms caused in North Carolina by the secondary pollutants emitted by these plants outweighs any utility that may exist from leaving their pollution untreated. TVA's failure to speedily install readily available pollution control technology is not, and has not been, reasonable conduct under the circumstances. For this reason, a judicially imposed injunction requiring the installation and continual, year-round use of appropriate pollution control technology is appropriate with respect to these three plants. Likewise, untreated air pollution from TVA's Widows Creek plant in Alabama is harming the citizens of North Carolina, and TVA's failure to install readily available pollution controls on Widows Creek is a proximate cause of their injuries. Again, the court ordered the prompt installation and year-round usage of appropriate pollution control technologies at the plant. North Carolina, however, failed to prove public nuisance as to TVA's two Kentucky plants, four Tennessee plants, and another Alabama plant. North Carolina v. Tennessee Valley Authority, No. 1:06-CV-20, 39 ELR 20015 (W.D.N.C. Jan. 13, 2009) (Thornburg, J.).


CWA, EVIDENCE:



The Seventh Circuit upheld the conviction of a liquid waste treatment facility and its president for making materially false statements in reports the facility was required to file under its NPDES permit. The defendants argued that the district court erred in admitting into evidence copies of certain electronic spreadsheets that recorded test results that were not charged in the indictment but were in conflict with what the facility had reported. They asserted that the test results are evidence of prior bad acts that should have been excluded under Federal Rule of Evidence 404(b). But evidence of uncharged offenses could not be feasibly separated out from evidence for the charged offenses. The defendants were charged with misrepresenting results of tests conducted between January and October 2004. This was the same period covered by the spreadsheets in question. It would have been infeasible to separate out this evidence so as to eliminate any hint that the defendants had also falsified other test results. In addition, the jury instructions were proper, and the district judge did not abuse his discretion in imposing a prison sentence on the facility's president. United States v. Hagerman, No. 07-3874, 39 ELR 20012 (7th Cir. Jan. 15, 2009).


CAA, INTERSTATE COMMERCE COMMISSION TERMINATION ACT, PREEMPTION:



A district court dismissed a county's lawsuit against a railroad company for allowing its locomotive engines to idle in violation of state air pollution law. This case involves railcars, the fumes they emit, and the tracks they use. Accordingly, its falls under the umbrella of federal regulatory authority. Congressional authority under the Commerce Clause to regulate the railroads is well established, and the U.S. Supreme Court repeatedly has recognized the preclusive effect of all federal legislation in this area. Here, the county's claims are preempted by the Interstate Commerce Commission Termination Act and the CAA. Middlesex County Health Department v. Consolidated Rail Corp., No. 08-4547, 39 ELR 20016 (D.N.J. Dec. 16, 2008) (Thompson, J.).


OIL AND GAS LEASES, TEMPORARY RESTRAINING ORDER:



A district court issued a temporary restraining order prohibiting BLM from issuing oil and gas leases on 163,935 acres of land in Utah located near wilderness areas and national parks. Because BLM failed to assess the concentration of pollution in the air, the seven environmental, conservation, and historic preservation groups that filed suit against BLM made a requisite likelihood of success showing as to their NEPA claim. The groups also made a showing of success on the merits of their National Historic Preservation Act and FLPMA claims. In addition, because the lease sale represents an irreversible and irretrievable commitment of resources, the groups demonstrated irreparable injury. The balancing of equities also tips in the groups' favor given the threat of irreparable harm to public land if the leases are issued. And although the development of domestic energy resources is an important public interest, this interest is far outweighed by the public interest in avoiding irreparable damage to public lands and the environment. The court, therefore, granted the groups' motion for a temporary restraining order. Southern Utah Wilderness Alliance v. Allred, No. 08-2187, 39 ELR 20018 (D.D.C. Jan. 17, 2009) (Urbina, J.).


MINING, PREEMPTION:



The Colorado Supreme Court held that the state Mined Land Reclamation Act impliedly preempts a county's ban on the use of toxic or acidic chemicals, such as cyanide, for mineral processing in vat or heap leach operations for all zoning districts in the county. The county enacted the ordinance to prohibit a certain type of mining technique customarily used in the mineral industry to extract precious metals, such as gold. The ordinance, however, is not a proper exercise of the county's land use authority because it excludes what the General Assembly has authorized under the Mined Land Reclamation Act. The General Assembly assigned to the Mined Land Reclamation Board the authority to authorize and comprehensively regulate the use of toxic or acidic chemicals in mining operations, a field identified by the legislature that the county's ban ordinance would occupy. The ordinance, therefore, is preempted. Colorado Mining Ass'n v. Board of County Commissioners of Summit County, No. 07SC497, 39 ELR 20017 (Colo. Jan. 12, 2009).


FISHERIES, CONSTITUTIONAL LAW:



A California appellate court upheld the constitutionality of California Fish and Game Code §8279.1(c), which regulates Dungeness crab fishing. The section states that if the crab season in Oregon or Washington is delayed, no one may fish for crab in Oregon or Washington for 30 days after the season opens if they have previously fished for crab for commercial purposes in California. Fishermen who fished for crab in Oregon in violation of this section filed suit challenging the statute's constitutionality after the state of California revoked their fishing permits. They argued that §8279.1(c) is an illegitimate attempt by California to regulate lawful extraterritorial conduct. But §8279.1(c) does not regulate Oregon conduct. It regulates crab fishing in California. Nor does §8279.1 violate the dormant Commerce Clause. Any burden on the fishermen is outweighed by the legitimate benefit of a policy promoting the conservation of a sustainable Dungeness crab fishery in California, and the statute applies equally to residents and nonresidents alike. Likewise, the statute does not violate the Privileges and Immunities Clause. Eder v. California Department of Fish & Game, No. A120532, 39 ELR 20013 (Cal. App. 1st Dist. Jan. 16, 2009).


CIVIL PROCEDURE, STATUTE OF LIMITATIONS:



A California appellate court reversed a lower court's grant of summary judgment in favor of a county that was sued by a school district for environmental problems and remediation costs incurred on district property due to ongoing effects of an inactive county landfill. The lower court concluded that the landfill, completed in 1967, was an improvement to the district's property. Accordingly, it ruled that all of the district's claims were barred by the 10-year statute of limitations applicable to latent construction defects under California Code of Civil Procedure §337.15. But the district's claims are not based on defective construction, design, or operation of the landfill. Rather, the district is seeking monetary reimbursement of costs it incurred complying with environmental regulations. Its breach of contract claim is based on the language of the lease between the parties and their 1999 "sharing agreement," which they entered into for allocation of their expenses for environmental regulatory compliances. It also relies on claims of statutory duties that the county has violated distinct from construction defect allegations. In addition, other noncontractual causes of action by the district, such as nuisance and trespass, are not subject to the bar of §337.15. And triable issues of fact remain on alternative grounds on which the county sought summary judgment. San Diego Unified School District v. County of San Diego, No. D052082, 39 ELR 20014 (Cal. App. 4th Dist. Jan. 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 added propylene carbonate and dimethyl carbonate to the list of compounds excluded from the definition of volatile organic compounds. 74 FR 3437 (1/21/09).

  • EPA found that California failed to submit its reasonably available control technology plan for the San Joaquin Valley extreme one-hour ozone nonattainment area, thereby triggering the 18-month time clock for mandatory application of sanctions and 2-year time clock for a federal implementation plan. 74 FR 3442 (1/21/09).

  • SIP Approval: Nevada (vehicle inspection and maintenance program for federal installations) 74 FR 3975 (1/22/09).

WILDLIFE:



  • NOAA-Fisheries issued regulations governing the U.S. Navy's unintentional taking of marine mammals incidental to training, maintenance, and research, development, testing, and evaluation activities conducted in the Southern California Range Complex through January 2014. 74 FR 3882 (1/21/09).

DOJ NOTICES OF SETTLEMENT:



  • United States v. CEMEX California Cement, LLC, No. 07-00223-GW (C.D. Cal. Jan. 15, 2009). A settling CAA defendant must pay a $2 million civil penalty and must comply with emissions limits for nitrogen oxide, sulfur dioxide, and carbon monoxide at its portland cement manufacturing facility in Victorville and Apple Valley, California. 74 FR 4233 (1/23/09).

  • United States v. Beckman Coulter, Inc., Nos. 98-CV-4812, -4781 (D.N.J. Jan. 6, 2009). Settling CERCLA defendants, 31 PRPs, must pay $61 to $69 million plus interest in past and future response costs incurred at the Combe Fill South Landfill Superfund site in Washington and Chester Townships, New Jersey, must pay $3,218,700 in natural resource damages for restoration projects, and must pay an annuity of $27 million over 30 years for cleanup and operation and maintenance costs at the site. 74 FR 4052 (1/22/09).

  • United States v. Shell Chemical Yabucoa, Inc., No. 3:09-cv-1019 (D.P.R. Jan. 12, 2009). A settling CWA defendant must pay a $1,025,000 civil penalty, must implement injunctive relief, must conduct maintenance to minimize discharges of stormwater, and must conduct studies and implement compliance measures to reduce the concentration of pollutants for unpermitted discharges at its facility in Yabucoa, Puerto Rico. 74 FR 4053 (1/22/09).

  • United States v. Chemtrade Logistics, Inc., No. 3:09-cv-00067 (N.D. Ohio Jan. 12, 2009). Settling CAA defendants must pay a $460,000 civil penalty to the United States; must pay a $240,000 civil penalty to be divided by the state of Louisiana, the state of Ohio, and the Oklahoma Department of Environmental Quality; must meet certain emission limits; and must comply with applicable new source performance standard requirements at six sulfuric acid manufacturing facilities in Louisiana, Ohio, Oklahoma, Texas, and Wyoming. 74 FR 3639 (1/21/09).

  • United States v. American Cyanamid, No. 2:93-0654 (S.D. W. Va. Jan. 9, 2009). Under a second amendment to a 1997 consent decree involving the Fike/Artel Chemical Company Superfund site near Nitro, West Virginia, the settling CERCLA defendant must perform in situ biosparging rather than extraction and treatment as the preferred remedy to address groundwater contamination at the site. 74 FR 3639 (1/21/09).

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


THE CONGRESS

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


Bills Introduced



  • S. 283 (Snowe, R-Me.) (Energy Policy and Conservation Act) would amend the Energy Policy and Conservation Act to modify the conditions for the release of products from the Northeast Home Heating Oil Reserve Account. 155 Cong. Rec. S719 (daily ed. Jan. 21, 2009). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 284 (Menendez, D-N.J.) (solar energy) would amend the Internal Revenue Code of 1986 to allow a new refundable credit for equipment used to manufacture solar energy property and waive the application of the subsidized financing rules to such property. 155 Cong. Rec. S719 (daily ed. Jan. 21, 2009). The bill was referred to the Committee on Finance.

  • S. 286 (Inhofe, R-Okla.) (marginal well oil production) would provide for marginal well production preservation and enhancement. 155 Cong. Rec. S719 (daily ed. Jan. 21, 2009). The bill was referred to the Committee on Finance.

  • S. 289 (Inhofe, R-Okla.) (marginal well oil production) would amend the Internal Revenue Code of 1986 to eliminate the taxable income limit on percentage depletion for oil and natural gas produced from marginal properties. 155 Cong. Rec. S719 (daily ed. Jan. 21, 2009). The bill was referred to the Committee on Finance.

  • S. 290 (Inhofe, R-Okla.) (alternative fuels) would repeal a requirement with respect to the procurement and acquisition of alternative fuels. 155 Cong. Rec. S719 (daily ed. Jan. 21, 2009). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 302 (Cornyn, R-Tex.) (International Boundary and Water Commission) would authorize the International Boundary and Water Commission to reimburse state and local governments for expenses incurred by such governments in designing, constructing, and rehabilitating the Lower Rio Grande Valley Flood Control Project. 155 Cong. Rec. S786 (daily ed. Jan. 22, 2009). The bill was referred to the Committee on Foreign Relations.

  • S. 306 (Nelson, D-Neb.) (biogas) would promote biogas production. 155 Cong. Rec. S787 (daily ed. Jan. 22, 2009). The bill was referred to the Committee on Finance.

  • H.R. 601 (Bishop, R-Utah) (land) would provide for the conveyance of parcels of land to Mantua, Box Elder County, Utah. 155 Cong. Rec. H386 (daily ed. Jan. 16, 2009). The bill was referred to the Committee on Natural Resources.

  • H.R. 602 (Bishop, R-Utah) (land) would provide for the conveyance of BLM parcels known as the White Acre and Gambel Oak properties and related real property to Park City, Utah. 155 Cong. Rec. H386 (daily ed. Jan. 16, 2009). The bill was referred to the Committee on Natural Resources.

  • H.R. 603 (Bishop, R-Utah) (land) 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. H386 (daily ed. Jan. 16, 2009). The bill was referred to the Committee on Natural Resources.

  • H.R. 604 (Bishop, R-Utah) (land) would provide for a land exchange with the City of Bountiful, Utah, involving National Forest System land in the Wasatch-Cache National Forest and to further land ownership consolidation in that national forest. 155 Cong. Rec. H386 (daily ed. Jan. 16, 2009). The bill was referred to the Committee on Natural Resources, the Committee on Energy and Commerce, and the Committee on Transportation and Infrastructure.

  • H.R. 609 (Sherman, D-Cal.) (greenhouse gas) would permit California and other states to effectively control greenhouse gas emissions from motor vehicles. 155 Cong. Rec. H386 (daily ed. Jan. 16, 2009). The bill was referred to the Committee on Energy and Commerce.

  • H.R. 611 (Boren, D-Okla.) (marginal well oil production) would provide for marginal well production preservation and enhancement. 155 Cong. Rec. H441 (daily ed. Jan. 21, 2009). The bill was referred to the Committee on Ways and Means, the Committee on Energy and Commerce, and the Committee on Transportation and Infrastructure.

  • H.R. 615 (Ackerman, D-N.Y.) (Federal Hazardous Substances Act) would amend the Federal Hazardous Substances Act to require engine coolant and antifreeze to contain a bittering agent so as to render it unpalatable. 155 Cong. Rec. H441 (daily ed. Jan. 21, 2009). The bill was referred to the Committee on Energy and Commerce.

  • H.R. 617 (Boren, D-Okla.) (marginal well oil production) would to amend the Internal Revenue Code of 1986 to eliminate the taxable income limit on percentage depletion for oil and natural gas produced from marginal properties. 155 Cong. Rec. H441 (daily ed. Jan. 21, 2009). The bill was referred to the Committee on Ways and Means.

  • H.R. 622 (Michaud, D-Me.) (renewable energy) would amend the Internal Revenue Code of 1986 to expand the credit for renewable electricity production to include electricity produced from biomass for on-site use. 155 Cong. Rec. H441 (daily ed. Jan. 21, 2009). The bill was referred to the Committee on Ways and Means.

  • H.R. 631 (Matheson, D-Utah) (water use) would increase research, development, education, and technology transfer activities related to water use efficiency and conservation technologies and practices at EPA. 155 Cong. Rec. H484 (daily ed. Jan. 22, 2009). The bill was referred to the Committee on Science and Technology.

  • H.R. 637 (Calvert, R-Cal.) (water treatment) would authorize the Secretary of the Interior, in cooperation with the City of San Juan Capistrano, California, to participate in the design, planning, and construction of an advanced water treatment plant facility and recycled water system. 155 Cong. Rec. H484 (daily ed. Jan. 22, 2009). The bill was referred to the Committee on Natural Resources.

  • H.R. 641 (Flake, R-Ariz.) (land) would limit the authority of the Secretary of Agriculture and the Secretary of the Interior to acquire land located in a state in which 25% or more of all land in the state is already owned by the United States. 155 Cong. Rec. H485 (daily ed. Jan. 22, 2009). The bill was referred to the Committee on Natural Resources.

  • H.R. 642 (Flake, R-Ariz.) (land) would provide opportunities for continued recreational shooting on certain federal public land. 155 Cong. Rec. H485 (daily ed. Jan. 22, 2009). The bill was referred to the Committee on Natural Resources.

  • H.R. 644 (Grijalva, D-Ariz.) (land) would withdraw the Tusayan Ranger District and federal land managed by BLM in the vicinity of Kanab Creek and in House Rock Valley from location, entry, and patent under the mining laws. 155 Cong. Rec. H485 (daily ed. Jan. 22, 2009). The bill was referred to the Committee on Natural Resources.

  • H.R. 647 (Hinojosa, D-Tex.) (International Boundary and Water Commission) would authorize the International Boundary and Water Commission to reimburse state and local governments of Arizona, California, New Mexico, and Texas for expenses incurred in designing, constructing, and rehabilitating water projects under the jurisdiction of the Commission. 155 Cong. Rec. H485 (daily ed. Jan. 22, 2009). The bill was referred to the Committee on Transportation and Infrastructure.

  • H.R. 650 (Kagen, D-Wis.) (alternative fuel) would amend the Internal Revenue Code of 1986 to increase the credit amount for new qualified alternative fuel motor vehicles weighing more than 26,000 pounds and to increase the credit for certain alternative fuel vehicle refueling properties. 155 Cong. Rec. H485 (daily ed. Jan. 22, 2009). The bill was referred to the Committee on Ways and Means.

  • H. Res. 81 (Ellsworth, D-Ind.) (forestry) would recognize the importance and sustainability of the U.S. hardwoods industry and urging that U.S. hardwoods and the products derived from U.S. hardwoods be given full consideration in any program directed at constructing environmentally preferable commercial, public, or private buildings. 155 Cong. Rec. H485 (daily ed. Jan. 22, 2009). The resolution was referred to the Committee on Agriculture.

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 Indiana New Hampshire
California Kansas New Jersey
Florida Maine Ohio
Illinois Minnesota Oklahoma

ALABAMA


Air:



  • The Department of Environmental Management will hold a public hearing on proposed amendments to the Alabama State Plan to incorporate amendments to the Emission Guidelines for Existing Municipal Waste Combustors. The Department’s plan incorporates the emission guidelines requirements into the air permits for the Huntsville Solid Waste Authority's municipal waste combustors. The hearing will be February 25, 2009. See http://www.adem.state.al.us//PublicNotice/Jan09/1div3.htm

General:



  • The Department of Environmental Management will hold a public hearing on proposed new regulations and fee schedule for the Alabama Uniform Environmental Covenants Program. The proposal would add Division 5 to the Administrative Code to implement the Alabama Uniform Environmental Covenants Act and revise Division 1 to include Schedule J – Environmental Covenant Fees. The hearing will be March 6, 2009. See http://www.adem.state.al.us//PublicNotice/Jan09/1div1-5.htm

Water:



  • The Department of Environmental Management will hold a public hearing on proposed amendments to ADEM Admin. Code 335-6-8, Ground Water and Underground Injection Control. The changes would provide clarification of permitting requirements for Class V wells, prohibit discharges from a particular type of well, and revise public notice procedures for a Class V injection well general permit. The hearing will be March 6, 2009. See http://www.adem.state.al.us//PublicNotice/Jan09/1div6.htm

CALIFORNIA


Wildlife:



  • The Fish and Game Commission will hold a public hearing on proposed amendments to the California Endangered Species Act. The changes would relist the Delta Smelt as endangered. The hearing will be March 6, 2009. See http://www.oal.ca.gov/pdfs/notice/3z-2009.pdf (pp.106-08 & 111)

FLORIDA


Water:



  • The Department of Environmental Protection will hold a public hearing on proposed amendments to 62-4.050, Procedures to Obtain Permits and Other Authorizations; 62-4.053, Annual Operating License Fees for Public Water Systems; and 62-346.071, Fees. The proposed amendments increase the fees for environmental resource permit (program activities within the geographic area of the Northwest Florida Water Management District. The hearing will be February 11, 2009. See https://www.flrules.org/Faw/FAWDocuments/FAWVOLUMEFOLDERS2009/3502/3502doc.pdf (pp. 151-61)

ILLINOIS


Hazardous & Solid Waste:



  • The Pollution Control Board adopted amendments to 35 Ill. Adm. Code 720, Hazardous Waste Management System: General; 35 Ill. Adm. Code 721, Identification and Listing of Hazardous Waste; 35 Ill. Adm. Code 724, Standards for Owners and Operators of Hazardous Waste Treatment, Storage, and Disposal Facilities; 35 Ill. Adm. Code 725, Interim Status Standards for Owners and Operators of Hazardous Waste Treatment, Storage, and Disposal Facilities; and 35 Ill. Adm. Code 728, Land Disposal Restrictions. The amendments update the Illinois Resource Conservation and Recovery Act to correspond with amendments adopted by U.S. EPA that appeared in the Federal Register. The amendments also broaden the exclusion of oil-bearing secondary materials that are reinserted into the refining process from the definition of "solid waste" and exempt wastewater treatment sludges from zinc phosphating when generated by a motor vehicle manufacturing process from the F019 hazardous waste listing. See http://www.cyberdriveillinois.com/departments/index/register/register_volume33_issue3.pdf (pp. 922-1194)

Water:



INDIANA


Air:



KANSAS


Toxic Substances:



  • The Kansas Department of Health and Environment will hold a public hearing on proposed regulations K.A.R. 28-45b-1 through 28- 45b-28, Crude Oil Storage Operation. The regulations require an emergency response plan and the establishment of a public education program by the underground storage facilities to increase community awareness of facility operations and safety procedures. Additional safety requirements include the installation of warning systems and alarms at the wellhead, a maximum allowable operating pressure that is protective of cavern integrity, and criteria for closure of the facility. The proposed regulations require monitoring and testing to ensure that the integrity of the storage wells and caverns is being maintained. The hearing will be April 14, 2009. See http://www.kssos.org/pubs/register%5C2009%5CVol_28_No_04_January_22_2009_p_81-100.pdf (p. 91)

MAINE


Air:



  • The Department of Environmental Protection seeks public comment on proposed amendments to Chapter 150, Control of Emissions from Outdoor Wood Boilers. The Department is proposing reduced setback and stack height for outdoor pellet boilers meeting a 0.06 lbs/MMBtu heat output emissions limit. The proposed particulate emission standard is for determining a reduced setback and stack height only and is not a standard for controlling or limiting the sale of outdoor pellet boilers. The Department is especially interested in comment on the 0.06 lbs/MMBtu heat output emissions limit, and whether an alternative emission limit is more appropriate. Comments are due February 20, 2009. See http://www.maine.gov/dep/air/regulations/docs/pbnotic150.pdf for announcement, and http://www.maine.gov/dep/air/regulations/docs/chap150postsjan152009b.pdf for text of amendments.

  • The Department of Environmental Protection will hold a public hearing on proposed amendments to Chapter 125, Perchloroethylene Dry Cleaner Regulation. The proposed amendments would prohibit the installation of new dry cleaners in a building with a residence, or with a day care center, a health care facility, a prison, an elementary school, a middle or high school, a children's pre-school, a senior center, a youth center, or other facility inhabited by children or the elderly; require that co-located dry cleaners cease operations on December 21, 2020; require all dry cleaners to inspect equipment weekly with a halogenated hydrocarbon detector; and limit to seven days the amount of time dry cleaning equipment can operate while awaiting repairs. The hearing will be February 19, 2009. See http://www.maine.gov/dep/air/regulations/docs/chap125mapa3b.pdf for announcement, and http://www.maine.gov/dep/air/regulations/docs/chap1252009.pdf for text of amendments.

MINNESOTA


General:



  • The Environmental Quality Board will hold several public hearings on proposed amendments to Chapter 4410, Environmental Review Program. The proposed rules would amend or add 29 subparts in Chapter 4410. These amendments consist of five topical areas: new mandatory EIS and exemption categories that would apply to certain projects located in the shoreland areas of lake and rivers; amendments to how the rules handle treatment of "cumulative potential effects" in EIS and Alternative Urban Areawide Reviews (AUARs) in response to a 2006 Minnesota Supreme Court decision; amendments to the AUAR process with respect to how specific individual projects are treated or how they affect the review; a new mandatory EIS category for releases of genetically engineered wild rice in response to a legislative directive in the 2007 session; and miscellaneous other amendments to clarify the meaning of certain rule provisions. The hearings will be February 25 and 26, and March 2, 4, and 5, 2009. See http://www.comm.media.state.mn.us/bookstore/stateregister//33_29.pdf (pp. 1243-52)

NEW HAMPSHIRE


Air:



Climate:



NEW JERSEY


Climate:



  • The Department of Environmental Protection will hold a public hearing on proposed new regulations and amendments to N.J.A.C. 7:1G-3.1, 3.2 and 5.3; N.J.A.C. 7:27-21.1 through 21.3, 21.5, and 21.11 through 21.13, Greenhouse Gas Monitoring and Reporting Program. The proposed new rules and amendments would establish a greenhouse gas monitoring and reporting program as required by the Global Warming Response Act. The proposed new rules and amendments would require monitoring and reporting of greenhouse gas emissions by electric generating facilities; fossil fuel manufacturers, distributors or wholesalers; gas public utilities and natural gas pipelines; and facilities that release or store greenhouse gases other than carbon dioxide above thresholds proposed by the Department. The hearing will be March 3, 2009. Comments are due March 21, 2009. See http://www.nj.gov/dep/rules/notices/012009a.html

Hazardous & Solid Waste:



  • The Department of Environmental Protection readopted with amendments and new rules N.J.A.C. 7:26A, Recycling Rules. The adopted amendments revise references to "mercury containing devices" and "thermostats" to make the state recycling rules consistent with the federal universal waste rules, incorporated by reference; exclude from the recycling rules (or otherwise exempt from the requirement to obtain a Class C recycling center general approval) certain composting activities (including those activities that occur on farms) and the receipt and storage of architectural salvage items at a commercial enterprise; include a fee schedule for recycling centers that process multiple classes of materials; combine the requirements for recycling of yard trimmings with the requirements for recycling Class C recyclable materials, since yard trimmings are a subset of Class C recyclable material; clarify the standards for the management of used oil and allow the repackaging of Class D oil-based finishes by large quantity handlers of universal wastes as long as this repackaging is conducted as provided in the rule; and exempt certain shipments from the transporter registration requirements. See http://www.nj.gov/dep/rules/adoptions/adopt_090202a.pdf

Land Use:



  • The Department of Environmental Protection will hold a public hearing on proposed amendments to the Coastal Zone Management rules. The amendments would include the Bay Island rule (N.J.A.C. 7:7E-3.21) to exclude Bader Field in Atlantic City; the Filled Waters Edge Rule (N.J.A.C. 7:7E-3.23) to allow future development of Bader Field to incorporate a public access walkway to meet the requirements of the rule; and the Atlantic City rule (N.J.A.C. 7:7-3.49) to update the list of the street ends that are protected from development. In addition, the Department is proposing to amend the Traffic rule (N.J.A.C. 7:7E-8.14) to allow residential development within one-half mile of a beach or dune, containing units that are 650 square feet or less, to provide a minimum of one parking space per unit. The hearing will be February 9, 2009. Comments are due March 20, 2009. See http://www.nj.gov/dep/rules/notices/012009b.html

OHIO


Water:



  • The Ohio Environmental Protection Agency will hold a public hearing on proposed amendments to 3745-42-01, Definitions; 3745-42-06, General permit to install requirements; 3745-42-08, General isolation distance requirements; 3745-42-09, Requirements for filter sand; and 3745-42-11, Holding tanks. These rules address wastewater permits to install. The proposed changes include formatting changes to make the rules easier to understand, adding isolation distance requirements to ensure adequate setbacks are maintained from waters of the state, removing requirements on the use of filter sand, and adding restrictions on the approvals for sewage holding tanks. The hearing will be February 24, 2009. See http://www.epa.state.oh.us/dsw/rules/prop_pti_jan09.html

OKLAHOMA


General:



  • The Department of Environmental Quality (DEQ) will hold a public hearing on proposed amendments to 252:4-9-32, Individual Proceedings. The proposed amendments would provide that any person negatively impacted by a DEQ order must file a petition for a declaratory ruling within 20 days of receipt of the order. The hearing will be February 27, 2009. See http://www.oar.state.ok.us/register/Volume-26_Issue-09.htm#a20241

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


INTERNATIONAL

JAPAN LAUNCHES SATELLITE TO MONITOR GREENHOUSE GASES


Japan launched a satellite to monitor greenhouse gases around the world in the hope that the data it gathers will help global efforts to combat climate change. The satellite, called "Ibuki" or "vitality" in Japanese, will enable scientists to measure densities of carbon dioxide and methane from 56,000 locations on the Earth's surface, including the atmosphere over open seas. That would compare with just 282 land-based observation sites as of last October, most of which are in the United States, Europe, and other industrialized regions, the Japan Aerospace Exploration Agency said. Japanese officials hope the data will add credence to existing research on greenhouse gases, including reports by the U.N. Intergovernmental Panel on Climate Change. For the full story, see http://www.reuters.com/article/environmentNews/idUSTRE50M1YE20090123

EU TO PROPOSE $200 BILLION CLIMATE TAX ON RICH NATIONS


Rich nations could raise $200 billion in climate funds through a levy on their greenhouse gases from 2013-2020 to help poor countries prepare for global warming, the European Union will propose this week. The plan is set out in an EU paper outlining the bloc's position ahead of U.N.-led climate talks in Copenhagen in December, meant to agree to a new, global climate treaty. The fundraising idea is the most specific yet from any rich country or bloc on how to persuade developing nations to agree to binding, concrete steps to slow their greenhouse gas emissions—one of the key obstacles in climate talks so far. For the full story, see http://www.reuters.com/article/GCA-GreenBusiness/idUSTRE50L4O520090122

NILE RUNOFF MAY BOOST FISH STOCKS



Fertilizers and sewage discharges entering the Nile delta have boosted fish stocks in Mediterranean coastal waters nearby, a study suggests. A team of researchers found that the dramatic increase in fish populations coincided with a sharp rise in the amount of fertilizers used by farmers. At least 60% of the area's fishery production is supported by the runoff entering the Nile's water, they added. The authors cautioned, however, that it remains to be seen whether this will be sustainable over time. The findings appear in the Proceedings of the National Academy of Sciences. For the full story, see http://news.bbc.co.uk/2/hi/science/nature/7840034.stm


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