Jump to Navigation
Jump to Content

Weekly Update Volume 39, Issue 31

11/09/2009

LITIGATION

ENERGY POLICY AND CONSERVATION ACT, PREEMPTION WAIVER:



The Ninth Circuit reversed and remanded DOE's 2006 decision denying California's request for a preemption waiver under the Energy Policy and Conservation Act (EPCA) in order to establish water efficiency standards for residential clothes washers. DOE's stated reasons for rejecting the state's waiver application are arbitrary and capricious. DOE first argued that it was entitled to reject the state's data and analysis as entirely irrelevant and inapplicable because the proposed implementation timeline did not comply with the EPCA's three-year delay provision. This argument is contrary to the preponderance of evidence standard, as well as common sense. Because California appliance regulations provide that proposed regulations take effect only upon the effective date of a DOE waiver, it would have been reasonable to assess the sufficiency of the data provided in terms of a projected date three years after the likely date of decision on the waiver. DOE's wholesale rejection of the state's analysis was therefore arbitrary and capricious. DOE also claimed that the state failed to provide sufficient data and analysis for it to make a reasoned decision as to whether California's standards were preferable or necessary compared to alternatives. California, however, did provide such data. DOE simply failed to evaluate whether or not the data and analysis were sufficient. DOE also rejected the petition because there are no top-loading washing machines that currently meet the water efficiency standards. But it failed to address the state's evidence of the probable capability of toploaders in the future. This constitutes a clear error of judgment. The court, therefore, remanded the petition for further review. California Energy Commission v. Department of Energy, No. 07-71576, 39 ELR 20246 (9th Cir. Oct. 28, 2009).


APA, EXHAUSTION OF ADMINISTRATIVE REMEDIES:



The First Circuit upheld the dismissal of a Native American tribe's claim challenging the Bureau of Indian Affair's (BIA's) decision to allow a plot of tribal land to be leased for the construction and operation of a liquefied natural gas facility. The tribe argued that the BIA's decision violated the National Historic Preservation Act and the APA. As the court noted in a previous appeal, however, the tribe has not exhausted its administrative remedies with the DOI. It held that the exhaustion of agency remedies is "mandatory" under governing precedent, subject only to the possibility that one of the established exceptions to the exhaustion requirement applied. On remand, the district court found no exception applicable and dismissed the case. In this second appeal, the tribe took issue with the court's earlier decision and argued that unless a statute requires exhaustion, judicial review of agency action under the APA, applicable where no other statutory channel of review is provided, does not require exhaustion unless there is both internal agency review available and the final agency action is rendered inoperative during such review. But the court's remand order was quite clear that exhaustion was required unless excused. Once this mandate was issued, it established the law of the case. Blatant error has not been demonstrated and there is no showing that exhaustion of the internal remedies will cause any significant harm, let alone serious injustice. Nkihtaqmikon v. Impson, No. 08-2122, 39 ELR 20242 (1st Cir. Oct. 28, 2009).


CZMA, NATURAL GAS ACT, PREEMPTION:



The First Circuit rejected two regulatory barriers Rhode Island has attempted to impose against an energy company seeking to build a liquefied natural gas (LNG) terminal in Massachusetts. The only planned activity in Rhode Island waters is dredging in a federal navigation channel to ensure the safe passage of the LNG tankers. Accordingly, the company needs the state's certification under the CZMA. The state, however, has yet to act on the company's consistency certification, arguing that the application is incomplete. The company filed suit, arguing that the state's concurrence be deemed "conclusively presumed" under CZMA §1456(c)(3)(A) because it has failed to act on the application within the statutorily required six-month deadline. The court agreed. A letter certifying acceptance of dredged material, as required by the Rhode Island Coastal Resources Management Program, does not constitute necessary data and information within the meaning of 15 C.F.R. §930.58(a)(2) because the company did not intend to dispose of the waste in Rhode Island. The application was therefore complete, and the deadline has passed. The state also sought to block the project through its state law licensing program for coastal dredging. But the program is preempted by the Natural Gas Act. FERC has interpreted the dredging activities for the project, including those in Rhode Island, to be within its preemptive jurisdiction. Thus, Rhode Island's licensing program clearly collides with FERC's delegated authority and is preempted. Weaver's Cove Energy, LLC v. Rhode Island Coastal Resources Management Council, No. 08-2440, 39 ELR 20245 (1st Cir. Oct. 26, 2009).


FEDERAL QUESTION JURISDICTION, FISHING REGULATIONS:



The First Circuit affirmed a lower court decision dismissing a case challenging the constitutionality of regulations promulgated by the Rhode Island Department of Environmental Management imposing restrictions on lobster fishing in state waters. A fishermen's association initially brought the case in state court. But because the agency thought that it was obliged to adopt federal retroactive control dates in composing the regulatory scheme, it removed the case to the federal district court. The court denied the association's motion to remand and then granted summary judgment in favor of the state agency. The district court had jurisdiction over the action and did not err in denying the plaintiffs' motion to remand. There is an embedded federal question; answering it is necessary to a resolution of the asserted state-law cause of action; that question is both actually disputed and substantial; and deciding it in a federal forum will not tilt any congressionally approved balance of federal and state judicial power. As for the merits, the court agrees with the district court's reasoning and uphold its merits ruling for substantially the reasons set forth in that opinion. Rhode Island Fishermen's Alliance, Inc. v. Rhode Island Department of Environmental Management, No. 08-2390, 39 ELR 20244 (1st Cir. Oct. 23, 2009).


CWA, WATERS OF THE UNITED STATES:



A district court held that a pond adjacent to a solid waste disposal facility is not a "waters of the United States" as either an "intrastate lake" or "impoundment" of a tributary or intrastate lake under the CWA. Environmental groups argued that the facility discharges waste into the pond, which then runs into an unnamed creek that is a tributary of the Tualatin River. An earthen berm separates the pond from the creek. The definition of "waters of the United States" includes "intrastate lake." But unlike wetlands, the focus of the "intrastate lake" definition is not on the location of the intrastate lake (i.e. whether it is adjacent to and therefore has a "significant nexus") with respect to navigable waters, but is instead on the effect the intrastate lake has or could have on interstate or foreign commerce. Here, none of the evidence presented demonstrates that the pond is used for recreational purposes by interstate travelers, is the source of fish or shellfish sold in interstate commerce, or is used for industrial purposes by industries in interstate commerce. Nor is the pond an "impoundment" of the unnamed creek. Because an anti-backflow device was installed between the pond and the creek, the groups argued that the pond must have been a tributary to Tualatin River prior to impoundment. But evidence of a one-time discharge of water from the pond into the unnamed creek is, as a matter of law, insufficient to establish that the pond is a tributary for purposes of the CWA. Nor is there a surface water connection between the pond and the unnamed creek. Northwest Environmental Defense Center v. Grabhorn, Inc., No. 08-548, 39 ELR 20249 (D. Or. Oct. 30, 2009) (Stewart, J.).


RCRA, CWA:



A district court denied motions to dismiss an environmental group's RCRA and CWA claims against a movie studio for discharging hexavalent chromium (Cr VI) into the land, water, and air surrounding its lot. As for its RCRA claim, the group plausibly suggests that the studio disposed of Cr VI in a concentration that would render it a hazardous waste within the meaning of RCRA. The group is not required to prove that the studio is disposing of a specific concentration of Cr VI at the pleading stage--it need only plead facts that plausibly suggest a Cr VI release that exceeds the federal standard. In addition, the group may go forward with its claim that the studio is discharging pollutants from a point source without a NPDES permit in violation of CWA §301. The group has not identified discharges of a specific pollutant from a particular point source, but it has adequately so alleged. The group states facts suggesting that the studio's facility is a point source within the meaning of the CWA, and that it discharged a pollutant from the facility's air-cooling system into navigable waters without a NPDES permit. The court also denied the studio's motion to dismiss the group's claim that it is discharging storm water contaminated with industrial pollutants in violation of CWA §402(p). The studio argued that it does not need a permit to discharge storm water containing Cr VI because the operative municipal storm water and urban runoff permit (MS4 permit) grants the city in which the studio is located "adequate legal authority" to "prohibit non-storm water discharges to the storm drain system . . . ." But the studio offered no support for its contention that the city's legal authority to prohibit non-storm water discharges, under the terms of the MS4 permit, forecloses the group's claim under the CWA. Environmental World Watch, Inc. v. Walt Disney Co., No. 09-04045, 39 ELR 20250 (C.D. Cal. Oct. 19, 2009) (Pregerson, J.).


CLASS ACTION FAIRNESS ACT, LOCAL CONTROVERSY EXCEPTION:



A district court denied motions to remand to state court residents' class action lawsuit against corporate farms for nuisance, negligence, and property damage. The residents originally filed suit in state court, but the farms removed the case to federal court under the Class Action Fairness Act (CAFA). The residents argue that the case should be heard in state court because the case falls within the "local controversy" exception to CAFA. However, the corporations are incorporated in and their principal place of business is in Tennessee. Accordingly, all of the defendants are citizens of Tennessee and the exception does not apply. Nor should the case should be remanded under the discretionary exception to CAFA. Powell v. Tosh, No. 5:09-CV-000121-TBR, 39 ELR 20251 (W.D. Ky. Oct. 21, 2009) (Russell, J.).


CLASS ACTION FAIRNESS ACT, HOME STATE EXCEPTION:



A district court denied motions to remand to state court individuals' class action nuisance lawsuit against 11 industrial companies stemming from their release of toxic chemicals in and around East Gary, Indiana. The individuals originally filed the suit in state court, but the companies removed the case to federal court under the Class Action Fairness Act (CAFA). The individuals argue that the case should be heard in state court because the "home-state" exception to CAFA applies. At least two-thirds of the proposed plaintiff class will be citizens of Indiana. However, only 2 of the 11 companies are citizens of Indiana, and for the home state exception to apply, all primary defendants must be citizens of Indiana. In addition, no evidence supports the individuals' claim that the relief sought against those two companies is significant when compared to the other named defendants. Accordingly, the "local controversy" exception to CAFA also does not apply. Kurth v. Arcelormittal USA, Inc., No. 2:09-CV-108RM, 39 ELR 20252 (N.D. Ind. Oct. 14, 2009) (Miller, J.).


HAZARDOUS WASTE, STATUTE OF LIMITATIONS:



A district court denied in part and granted in part a disposal waste facility's motion to dismiss individuals' tort claim against it as untimely. Genuine issues of material fact preclude summary judgment on the ground that the individuals should have known the cause of their injuries based on widespread publicity. Although there was widespread publicity of the contamination, the individuals testified that they were not exposed to this publicity. The court cannot make credibility determinations at the summary judgment stage, and must draw all inferences in the light most favorable to the plaintiffs since they are the non-moving party. In addition, except for one of the individuals, the facility was unable to show that the individuals had actual knowledge of the potential link between the facility and their alleged injuries several years earlier than they claim to have discovered the link. Therefore, except for the one individual who had actual knowledge, the company's motion to dismiss the claims as time barred was denied. Whitlock v. Pepsi Americas, Inc., No. 08-02742, 39 ELR 20253 (N.D. Cal. Oct. 21, 2009) (Illston, J.).


STANDING, ENVIRONMENTAL REVIEW:



New York's highest court overturned a lower court decision annulling a city's State Environmental Quality Review Act (SEQRA) determination regarding a proposed municipal project. An environmental group argued that the EIS was deficient for failing to evaluate possible threats to protected species. The city argued that the group and its members lacked standing. But a person who can prove that he or she uses and enjoys a natural resource more than most other members of the public has standing under SEQRA to challenge government actions that threaten that resource. Applying that rule to this case, the environmental group and its members have standing. Nevertheless, the city complied with SEQRA. The government was not required to scrutinize every possible environmental issue, and the EIS' failure to discuss the possible impact of rezoning on certain rare species was therefore not a fatal flaw. Save the Pine Bush, Inc. v. Common Council of Albany, No. 134, 39 ELR 20243 (N.Y. Oct. 27, 2009).


CALIFORNIA ENVIRONMENTAL QUALITY ACT, ENVIRONMENTAL IMPACT REPORTS:



A California appellate court held that a consultant hired by a county to prepare an environmental impact report (EIR) for development project is not liable to the developer for failing to prepare the EIR in a timely fashion. When the EIR was not submitted on time, the county terminated its contract with the consultant. The consultant then submitted invoices to the county seeking payment for its services. The county then demanded reimbursement from the developer. The developer also had to reimburse the county for the services of a second consultant to prepare the EIR. The developer then filed suit seeking damages from the consultant for breach of the contract, negligence, and negligent interference with prospective economic advantage. The developer also sought $50 million in damages due to loss of a sale of the project property to a third party. The lower court properly dismissed the developer's contract claims. The developer argued that it is a third-party beneficiary to the developer's and county's contract because the county owed it a legal duty to complete the EIR in a timely fashion. But the county owed the developer no such legal duty. Prior case law holds that a county, as lead agency on a project, owes its duty to the public to release a proper EIR. The developer's negligence claims also fail. The balance of the factors militates against a conclusion that a consultant owes a duty of care to a project applicant in the timely completion of a draft EIR. Lake Almanor Associates, LLP v. Huffman-Broadway Group, Inc., No. A12263, 39 ELR 20247 (Cal. App. 1st Div. Oct. 30, 2009).


CALIFORNIA ENVIRONMENTAL QUALITY ACT, CATEGORICAL EXEMPTION:



A California appellate court reversed a lower court decision that a local air district's adoption of a rule to reduce airborne dust is exempt from environmental review under the California Environmental Quality Act (CEQA). The rule concerns the use of road paving to offset increases in airborne dust as well as other forms of particulate air pollution. The district argued that its adoption of the rule was exempt from environmental review under CEQA's "Class 8" categorical exemption, which applies to "actions taken by regulatory agencies . . . to assure the maintenance, restoration, enhancement, or protection of the environment where the regulatory process involves procedures for protection of the environment." The district claimed that the rule merely provides a protocol to be used in applying for, calculating, and issuing paving offsets. It does not authorize any actual road paving; hence, it cannot possibly have any environmental effects. Any future paving offsets will be subject to environmental review if and when applicants seek them. But there is insufficient evidence to support the district's finding. The administrative record contains no evidence that the environmental effects of the adoption of the rule are speculative. In fact, environmental groups offered at least some evidence that the quality of those effects would be adverse. In the absence of evidence that the negative environmental effects of the rule would not be significant, the exemption finding cannot be sustained. California Unions for Reliable Energy v. Mojave Desert Air Quality Management District, No. E046687, 39 ELR 20248 (Cal. App. 4th Dist. Oct. 30, 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 final rule requiring the reporting of greenhouse gas emissions from all sectors of the economy; the rule applies to fossil fuel suppliers and industrial gas suppliers, direct greenhouse gas emitters, and manufacturers of heavy-duty and off- road vehicles and engines. 74 FR 56260 (10/30/09).

  • EPA issued NESHAPs for nine area source categories in the chemical manufacturing sector and established management practices for subcategories of wastewater and heat exchange systems. 74 FR 56008 (10/29/09).

  • EPA amended the NESHAPs for petroleum refineries by adding maximum achievable control technology standards for heat exchange systems. 74 FR 55670 (10/28/09).

  • EPA proposed to tailor major source applicability thresholds for greenhouse gas (GHG) emissions under the PSD and Title V programs of the CAA and to set a PSD significance level for GHG emissions. 74 FR 55292 (10/27/09).

  • EPA proposed to withdraw the residual risk and technology review portions of the final rule amending the NESHAPs from petroleum refineries that was promulgated on January 16, 2009. 74 FR 55505 (10/28/09).

  • EPA announced the availability of Risk and Exposure Assessment to Support the Review of the Carbon Monoxide (CO) Primary National Ambient Air Quality Standards—First External Review Draft for public comment. 74 FR 55843 (10/29/09).

  • EPA entered into a proposed consent decree under the CAA that requires the Agency to propose emission standards for coal- and oil-fired electric utility steam-generating units no later than March 16, 2011, and final rulemaking no later than November 16, 2011. 74 FR 55547 (10/28/09).

  • EPA entered into a proposed consent decree under the CAA that requires the Agency to take action on amendments submitted on December 29, 2006, by the San Joaquin Valley unified air pollution control district relating to the permitting of agricultural sources. 74 FR 56612 (11/2/09).

  • SIP Approvals: California (volatile organic compound emissions from consumer products) 74 FR 57074 (11/4/09); (volatile organic compound emissions for the Northern Sierra air quality management district and the San Joaquin Valley unified air pollution control district) 74 FR 56120 (10/30/09). Maryland (Clean Air Interstate Rule requirements) 74 FR 56117 (10/30/09). Minnesota (stay of Clean Air Interstate Rule (CAIR) and CAIR FIP) 74 FR 56721 (11/3/09).

  • SIP Proposal: Virginia (case-by-case reasonably available control technology (RACT) and 1997 eight-hour ozone standard RACT requirements) 74 FR 56754 (11/3/09).

HAZARDOUS & SOLID WASTE:



  • EPA granted a petition to delist wastewater treatment plant sludges from conversion coating on aluminum generated at the Sterling Heights Assembly Plant in Sterling Heights, Michigan, from the list of hazardous wastes. 74 FR 57418 (11/6/09).

  • EPA entered into a proposed administrative settlement that requires the settling party to pay $50,000, plus interest, in U.S. response costs incurred at the APCO Mossberg Company, Inc., Superfund site in Attleboro, Massachusetts. 74 FR 56837 (11/3/09).

TOXIC SUBSTANCES:



  • EPA proposed several revisions to the Lead Renovation, Repair, and Painting Program rule promulgated on April 22, 2008, including recordkeeping requirements and elimination of an opt-out provision. 74 FR 55506 (10/28/09).

  • The Agency for Toxic Substances and Disease Registry announced the final substance-specific priority data needs for six priority hazardous substances. 74 FR 55240 (10/27/09).

WATER:



  • EPA Region 6 announced final action on eight TMDLs for waters listed in Arkansas. 74 FR 55843 (10/29/09).

WILDLIFE:



  • FWS revised the designated critical habitat for La Graciosa thistle to approximately 24,103 acres in San Luis Obispo and Santa Barbara counties, California. 74 FR 56978 (11/3/09).

  • FWS proposed to designate approximately 200,541 square miles in Alaska and adjacent territorial and U.S. waters as critical habitat for the polar bear. 74 FR 56058 (10/29/09).

  • FWS proposed to list the distinct population segment of the Queen Charlotte goshawk as threatened under the ESA in the British Columbia region of Canada and as endangered on the Queen Charlotte Islands. 74 FR 56757 (11/3/09).

  • FWS proposed a special rule to list the salmon-crested cockatoo as threatened throughout its range under the ESA. 74 FR 56770 (11/3/09).

  • FWS announced a 90-day finding on a petition to list the distinct population segment of American dipper in the Black Hills of South Dakota as threatened or endangered and to designate critical habitat under the ESA; the agency found that listing is not warranted. 74 FR 55177 (10/27/09).

  • NOAA-Fisheries determined that listing Atlantic wolffish as threatened or endangered under the ESA is not warranted and announced the availability of their status review. 74 FR 57436 (11/6/09).

DOJ NOTICE OF SETTLEMENT:



  • In re Hercules Chemical Co., Inc., No. 08-27822-MS (Bankr. D.N.J. Oct. 26, 2009). A settling CERCLA defendant must provide the United States with a general unsecured claim of $200,000 for U.S. response and natural resource damage assessment costs incurred at the Diamond Alkali Superfund site in Newark, New Jersey. 74 FR 56215 (10/30/09).

  • United States v. Louisiana Midland Transport Co., No. 1:09-cv-01825 (W.D. La. Oct. 21, 2009). A settling CERCLA defendant must pay $1,200,000 in U.S. response costs incurred at the Doughty's Treating Plant site in Jena, Louisiana. 74 FR 55857 (10/29/09).

  • United States v. City & County of San Francisco, No. C 09-5104 JSW (N.D. Cal. Oct. 27, 2009). Settling CWA and RCRA defendants that released red dye diesel fuel from their bus-servicing facilities in San Francisco, California, must pay a $250,000 civil penalty and must implement an Incident Command System training program. 74 FR 57332 (11/5/09).

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


THE CONGRESS

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


Public Laws


  • S. 1818 (Morris K. Udall Scholarship), which amends 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 signed into law on November 3, 2009. Pub. L. No. 111-90, 155 Cong. Rec. D1288 (daily ed. Nov. 4, 2009).

  • H.R. 2996 (appropriations), which makes appropriations for the Departments of the Interior, environment, and related agencies for the fiscal year ending September 30, 2010, was signed into law on October 30, 2009. Pub. L. No. 111-88, 155 Cong. Rec. D1261 (daily ed. Nov. 2, 2009).

  • H.R. 3183 (appropriations) which makes appropriations for energy and water development and related agencies for the fiscal year ending September 30, 2010, was signed into law on October 28, 2009. Pub. L. No. 111-85, 155 Cong. Rec. D1247 (daily ed. Oct. 29, 2009).

Chamber Action


  • H.R. 1471 (Jimmy Carter National Historic Site), which would expand the boundary of the Jimmy Carter National Historic Site in the state of Georgia and redesignate the unit as a National Historical Park, was passed by the House. 155 Cong. Rec. H11744 (daily ed. Oct. 26, 2009).

  • H.R. 1641 (Cascadia Marine Trail Study Act), which would amend the National Trails System Act to provide for a study of the Cascadia Marine Trail, was passed by the House. 155 Cong. Rec. H11746 (daily ed. Oct. 26, 2009).

  • H.R. 2806 (Stephen Mather Wilderness and the North Cascades National Park), which 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, was passed by the House. 155 Cong. Rec. H11745 (daily ed. Oct. 26, 2009).

  • H.R. 2489 (AmericaView Geospatial Imagery Mapping Program Act), which would authorize a comprehensive national cooperative geospatial imagery mapping program through the U.S. Geological Survey; promote use of the program for education, workforce training and development, and applied research; and support federal, state, tribal, and local government programs, was passed by the House. 155 Cong. Rec. H11824 (daily ed. Oct. 27, 2009).

Committee Action


  • H.R. 1612 (education) was reported by the Committee on Natural Resources. H. Rep. No. 111-312, 155 Cong. Rec. H11739 (daily ed. Oct. 23, 2009). The bill would amend the Public Lands Corps Act of 1993 to expand the authorization of the Secretaries of Agriculture, Commerce, and the Interior to provide service-learning opportunities on public lands; help restore the nation's natural, cultural, historic, archaeological, recreational, and scenic resources; train a new generation of public land managers and enthusiasts; and promote the value of public service.

  • H.R. 3258 (water) was reported by the Committee on Energy and Commerce. H. Rep. No. 111-313, 155 Cong. Rec. H11739 (daily ed. Oct. 23, 2009). The bill would amend the Safe Drinking Water Act to enhance the security of the public water systems of the United States.

Bills Introduced


  • S. 1933 (Bingaman, D-N.M.) (climate change) would establish an integrated federal program that protects, restores, and conserves natural resources by responding to the threats and effects of climate change. 155 Cong. Rec. S10776 (daily ed. Oct. 27, 2009). The bill was referred to the Committee on Environment and Public Works.

  • S. 1940 (Gillibrand, D-N.Y.) (herbicides) would require the Secretary of Veterans Affairs to carry out a study on the effects on children of exposure of their parents to herbicides used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. 155 Cong. Rec. S10777 (daily ed. Oct. 27, 2009). The bill was referred to the Committee on Veterans' Affairs.

  • S. 1957 (Schumer, D-N.Y.) (energy) would amend the Public Utility Regulatory Policies Act of 1978 to authorize the Secretary of Energy to make loans to publicly owned electric utilities to finance and refinance projects to comply with any federal energy efficiency resource standard. 155 Cong. Rec. S10850 (daily ed. Oct. 28, 2009). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 1965 (Landrieu, D-La.) (wetlands) would authorize the Secretary of the Interior to provide financial assistance to the state of Louisiana for a pilot program to develop measures to eradicate or control feral swine and to assess and restore wetlands damaged by feral swine. 155 Cong. Rec. S10850 (daily ed. Oct. 28, 2009). The bill was referred to the Committee on Environment and Public Works.

  • S. 2051 (Vitter, D-La.) (fuels) would amend the Internal Revenue Code of 1986 to allow refunds of federal motor fuel excise taxes on fuels used in mobile mammography vehicles. 155 Cong. Rec. S10915 (daily ed. Oct. 20, 2009). The bill was referred to the Committee on Finance.

  • S. 2052 (Udall, D-Colo.) (energy) would amend the Energy Policy Act of 2005 to require the Secretary of Energy to carry out a research and development and demonstration program to reduce manufacturing and construction costs relating to nuclear reactors. 155 Cong. Rec. S10915 (daily ed. Oct. 29, 2009). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 2081 (Specter, D-Pa.) (fuels) would amend the Internal Revenue Code of 1986 to accelerate locomotive fuel savings nationwide and provide incentives for owners of high polluting locomotives to replace such locomotives with newly built or newly remanufactured fuel efficient and less polluting locomotives. 155 Cong. Rec. (daily ed. Oct. 29, 2009). The bill was referred to the Committee on Finance.

  • S. 2722 (Barrasso, R-Wyo.) (resource study) would authorize the Secretary of the Interior to conduct a special resource study to determine the suitability and feasibility of adding the Heart Mountain Relocation Center in the state of Wyoming as a unit of the National Park System. 155 Cong. Rec. S11048 (daily ed. Nov. 3, 2009). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 2724 (Reid, D-Nev.) (restoration and management) would provide for environmental restoration activities and forest management activities in the Lake Tahoe Basin. 155 Cong. Rec. S11048 (daily ed. Nov. 3, 2009). The bill was referred to the Committee on Environment and Public Works.

  • S. 2726 (Johnson, D-S.D.) (Minuteman Missile National Historic Site) would modify the boundary of the Minuteman Missile National Historic Site in the state of South Dakota. 155 Cong. Rec. S11118 (daily ed. Nov. 4, 2009). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 2729 (Stabenow, D-Mich.) (greenhouse gas emissions) would reduce greenhouse gas emissions from uncapped domestic sources. 155 Cong. Rec. S11118 (daily ed. Nov. 4, 2009). The bill was referred to the Committee on Environment and Public Works.

  • S. 2739 (Cantwell, D-Wash.) (Federal Water Pollution Control Act) would amend the Federal Water Pollution Control Act to provide for the establishment of the Puget Sound Program Office. 155 Cong. Rec. S11205 (daily ed. Nov. 5, 2009). The bill was referred to the Committee on Environment and Public Works.

  • S. 2744 (Barrasso, R-Wyo.) (energy) would amend the Energy Policy Act of 2005 to expand the authority for awarding technology prizes by the Secretary of Energy to include a financial award for separation of carbon dioxide from dilute sources. 155 Cong. Rec. S11205 (daily ed. Nov. 5, 2009). The bill was referred to the Committee on Energy and Natural Resources.

  • H.R. 3919 (Maffei, D-N.Y.) (energy) would amend the Internal Revenue Code of 1986 to provide for the designation of Clean Energy Business Zones and for tax incentives for the construction of, and employment at, energy-efficient buildings and clean energy facilities. 155 Cong. Rec. H11739 (daily ed. Oct. 23, 2009). The bill was referred to the Committee on Ways and Means and to the Committee on Small Business. 

  • H.R. 3923 (Polis, D-Colo.) (land exchange) would provide for the exchange of certain land located in the Arapaho-Roosevelt National Forests in the state of Colorado. 155 Cong. Rec. H11739 (daily ed. Oct. 23, 2009). The bill was referred to the Committee on Natural Resources.

  • H.R. 3946 (Stupak, D-Mich.) (Federal Water Pollution Control Act) would amend the Federal Water Pollution Control Act to prohibit the sale of dishwashing detergent in the United States if the detergent contains a high level of phosphorus. 155 Cong. Rec. H11868 (daily ed. Oct. 27, 2009). The bill was referred to the Committee on Transportation and Infrastructure.

  • H.R. 3947 (Dahlkemper, D-Pa.) (locomotives) would accelerate locomotive fuel savings nationwide and provide incentives for owners of high polluting locomotives to replace such locomotives with newly built or newly remanufactured fuel efficient and less polluting locomotives. 155 Cong. Rec. H12043 (daily ed. Oct. 28, 2009). The bill was referred to the Committee on Ways and Means.

  • H.R. 3954 (Boyd, D-Fla.) (land conveyance) would release federal reversionary interests retained on certain lands acquired in the state of Florida under the Bankhead-Jones Farm Tenant Act to authorize the interchange of National Forest System land and state land in Florida and authorize an additional conveyance under the Florida National Forest Land Management Act of 2003. 155 Cong. Rec. H12044 (daily ed. Oct. 28, 2009). The bill was referred to the Committee on Agriculture.

  • H.R. 3958 (Hodes, D-N.H.) (tax credit on fuels) would amend the Internal Revenue Code to provide for a refundable tax credit for heating fuels. 155 Cong. Rec. H12044 (daily ed. Oct. 28, 2009). The bill was referred to the Committee on Ways and Means.

  • H.R. 3989 (Lummis, R-Wyo.) (resource study) would authorize the Secretary of the Interior to conduct a special resource study to determine the suitability and feasibility of adding the Heart Mountain Relocation Center in the state of Wyoming as a unit of the National Park System. 155 Cong. Rec. H12287 (daily ed. Nov. 3, 2009). The bill was referred to the Committee on Natural Resources.

  • H.R. 3999 (Cardoza, D-Cal.) (ESA) would direct the Commissioner of the Bureau of Reclamation to initiate consultations under the ESA on the Central Valley Project and the California State Water Project. 155 Cong. Rec. H12287 (daily ed. Nov. 3, 2009). The bill was referred to the Committee on Natural Resources.

  • H.R. 4001 (Heller, R-Nev.) (restoration and management) would provide for environmental restoration activities and forest management activities in the Lake Tahoe Basin. 155 Cong. Rec. H12287 (daily ed. Nov. 3, 2009). The bill was referred to the Committees on Natural Resources and to the Committee on Transportation and Infrastructure.

  • H.R. 4003 (Hinchey, D-N.Y.) (resource study) would direct the Secretary of the Interior to conduct a special resource study to evaluate resources in the Hudson River Valley in the state of New York to determine the suitability and feasibility of establishing the site as a unit of the National Park System. 155 Cong. Rec. H12287 (daily ed. Nov. 3, 2009). The bill was referred to the Committee on Natural Resources.

  • H.R. 4004 (Rush, D-Ill.) (Black Metropolis National Heritage Area) would authorize the Secretary of the Interior to conduct a study to determine the feasibility of designating the study area as the Black Metropolis National Heritage Area in the state of Illinois. 155 Cong. Rec. H12298 (daily ed. Nov. 3, 2009). The bill was referred to the Committee on Natural Resources.

  • H.R. 4010 (Schrader, D-Or.) (land trust) would amend the Act of August 9, 1955, to authorize the Confederated Tribes of the Siletz Indians of Oregon to obtain 99-year lease authority for trust land. 155 Cong. Rec. H12287 (daily ed. Nov. 3, 2009). The bill was referred to the Committee on Natural Resources. 

  • H.R. 4022 (Boyd, D-Fla.) (wildlife) would prohibit additional requirements for the control of Vibrio vulnificus applicable to the post-harvest processing of oysters. 155 Cong. Rec. H12364 (daily ed. Nov. 4, 2009). The bill was referred to the Committee on Energy and Commerce.

  • H.R. 4027 (Hastings, R-Wash.) (energy) would amend the Hoover Power Plant Act of 1984 to ensure that project beneficiaries are solely responsible for repaying the costs of Western Area Power Administration power transmission and delivery projects. 155 Cong. Rec. H12456 (daily ed. Nov. 5, 2009). The bill was referred to the Committee on Natural Resources.

  • H.R. 4031 (Baldwin, D-Wis.) (energy) would amend the Energy Policy and Conservation Act to establish a motor efficiency rebate program. 155 Cong. Rec. H12456 (daily ed. Nov. 5, 2009). The bill was referred to the Committee on Energy and Commerce.

  • H. Res. 865 (Kucinich, D-Ohio) (climate change) would express the sense of the House of Representatives that the United States should adopt a target of 350 parts per million of atmospheric carbon dioxide by which to evaluate domestic and international climate change policies. 155 Cong. Rec. H11739 (daily ed. Oct. 23, 2009). The bill was referred to the Committee on Energy and Commerce and to the Committee on Foreign Affairs.

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 Missouri Ohio
California Montana Oregon
Massachusetts New Jersey Virginia
Mississippi New Mexico Washington

ALABAMA


Hazardous and Solid Waste:



  • The Department of Environmental Management will hold a public hearing on proposed amendments to Ala. Admin. Code r. 335-14-1 to 335-14-8, 335-14-11, and 335-14-17, relating to hazardous waste. The amendments adopt alternative standards for laboratories owned by colleges and universities, add definitions and other regulatory language to clarify certain regulations in the existing rules, modify the Honda Manufacturing of Alabama listing to bring the exclusion in line with the F019 exclusion of wastewater treatment sludge from the manufacturing of motor vehicles, add regulatory language in order to require compliance with Division 5 standards, and add a rule that requires permittees to list all areas of contamination. The hearing will be December 11, 2009. See http://www.adem.state.al.us//PublicNotice/Oct09/10div14.htm

CALIFORNIA


Air:



  • The Air Resources Board will hold a public hearing on proposed amendments to Cal. Code Regs. tit. 17 §§95380, 95381, 95382, 95383, 95384, 95385, 95386, 95387, 95388, 95389, 95390, 95391, 95392, 95393, 95394, 95395, 95396, 95397, and 95398, relating to High Global Warming Potential (GWP) Refrigerants for Stationary Sources. The proposed stationary refrigeration management practices apply to any refrigeration system that uses more than 50 pounds of a high-GWP refrigerant. The applicable requirements vary based on the amount of high-GWP refrigerant used by a refrigeration system, known as the refrigerant charge size. Refrigeration systems are categorized based on the refrigerant charge size as a large refrigeration system, medium refrigeration system, or small refrigeration system. The hearing will be December 9, 2009. See http://www.arb.ca.gov/regact/2009/gwprmp09/gwprmp09.htm

  • The Air Resources Board will hold a public hearing on proposed amendments to Cal. Code Regs. tit. 17 §§94801, 94804, 94805, and 94806, relating to Indoor Air Cleaning Devices. The amendments would extend the deadline for package certification labeling for one year, to October 18, 2011, and allow the use of adhesive certification labels (rather than printing on the package) until October 1, 2012. These extensions apply only to air cleaner models that are tested and certified by the October 18, 2010, compliance date; all air cleaners must still be tested and certified by the current deadline of October 18, 2010. Additional amendments would, among other things, allow alternate, appropriate electrical safety testing for multi-function appliances that include an air cleaning component and revise the definition of "mechanical filtration only" air cleaners. The hearing will be December 9, 2009. See http://www.arb.ca.gov/regact/2009/iacd09/iacd09.htm

MASSACHUSETTS


Air:



  • The Massachusetts Department of Environmental Protection (MassDEP) issued a guidance document on its recently revised Solvent Metal Degreasing regulations, 310 Mass. Code Regs. 7.18(30). This guidance allows facilities that use cold cleaning degreasers to use noncompliant solvents purchased by the facility prior to September 6, 2009, until April 1, 2010, and clarifies the relationship of this new volatile organic compounds reasonably available control technology regulation to existing MassDEP Air Quality Plan Approvals. See http://www.mass.gov/dep/air/laws/ccractgu.pdf

MISSISSIPPI


Toxic Substances



Water:



MISSOURI


Air:



  • The Department of Natural Resources will hold a public hearing on proposed amendments to Mo. Code Regs. Ann. tit. 10, §§10-6.010, Ambient Air Quality Standards; 10-6.040, Reference Methods; 10-6.070, New Source Performance Regulations; 10-6.075, Maximum Achievable Control Technology Regulations; 10-6.080, Emission Standards for Hazardous Air Pollutants; and 10-6.130, Controlling Emissions During Episodes of High Air Pollution Potential. The purpose of this amendment is to update the standards for ambient air quality throughout Missouri in order to reflect the changes in the NAAQS. The hearing will be December 3, 2009. See http://www.sos.mo.gov/adrules/moreg/current/2009/v34n21/v34n21b.pdf (pp. 2385-394)

General:



  • The Department of Natural Resources seeks public comment on proposed amendments to Mo. Code Regs. Ann. tit. 10, §1-3.010, Consolidation of Permit Processing. The rule provides for implementation of coordinated permitting for facilities which require multiple permits from the department. Comments are due December 4, 2009. See http://www.sos.mo.gov/adrules/moreg/current/2009/v34n21/v34n21b.pdf (p. 2385)

Water:



  • The Department of Natural Resources will hold a public hearing on proposed amendments to Mo. Code Regs. Ann. tit. 10, §20-7.015, Effluent Regulations. This amendment will provide a mechanism to place escherichia coli bacteria limits and effluent monitoring requirements into permits. This amendment will remove the provision that allows publicly owned treatment works to permit intermittent wet-weather outfalls that are not subject to secondary treatment. The amendment will also incorporate a minor addition that will allow alternative limits for discharges to subsurface waters associated with risk-based corrective action projects administered by the Hazardous Waste Program so long as no unreasonable risk to human health or the environment is created. It will also address water quality conditions potentially impacted by the discharge of overflows from combined sewer systems, commonly referred to as combined sewer overflows. The hearing will be January 6, 2010. See http://www.sos.mo.gov/adrules/moreg/current/2009/v34n21/v34n21b.pdf (pp. 2394-2408)

MONTANA


Toxic Substances:



  • The Department of Environmental Quality seeks public comment on proposed amendments to Montana Admin. R. 17.55.102, 17.55.108, 17.55.111, and 17.55.114 pertaining to definitions, facility listing, facility ranking, and delisting a facility on the CECRA priority list; the adoption of New Rules I through V pertaining to incorporation by reference, proper and expeditious notice, third-party remedial actions at order sites, additional remedial actions not precluded, and orphan share reimbursement; and the repeal of Montana Admin. R.17.55.101, pertaining to purpose. Comments are due November 20, 2009. See http://deq.mt.gov/dir/legal/Notices/17-296Apro.pdf

NEW JERSEY


Air:



  • The Department of Environmental Protection will hold a public hearing on proposed amendments to N.J.Admin.Code §7:27-9, Sulfur in Fuels. The amendments would lower the maximum sulfur content standard and maximum sulfur dioxide emissions standards for fuel oil sold for use in New Jersey. The hearing will be January 5, 2010. See http://www.nj.gov/dep/rules/notices/111609a.html

NEW MEXICO


Air:



  • The Albuquerque-Bernalillo County Air Quality Control Board adopted amendments to N.M. Code R. §20.11.47, Emissions Inventory Requirements. The amendments provide flexibility to require emissions reports from sources with air quality permits, but not from smaller sources with registrations unless it becomes necessary in the future. See http://www.nmcpr.state.nm.us/nmregister/xx/xx20/20.11.47amend.htm

OHIO


Air:



  • The Ohio Environmental Protection Agency will hold a public hearing on proposed amendment to Ohio Admin. Code 3745:14-01, definitions and general provisions; and 3745:14-06, nitrogen oxide (NOx) allowance tracking system. The amendments are being proposed to facilitate the transition of the affected units from the NOx SIP call into the Clean Air Interstate Rule (CAIR) program and to begin the process of sunsetting the parts of Ohio Admin. Code 3745-14 that will no longer be needed as a result of Ohio's CAIR rules beginning in 2009. The hearing will be December 1, 2009. See http://www.registerofohio.state.oh.us/pdfs/phn/3745_NO_92101_20091022_1308.pdf

OREGON


Air:



  • The Department of Environmental Quality will hold a public hearing on proposed amendments to Or. Admin. R. 340-252, Transportation Conformity. The amendments would lengthen the interval between conformity demonstrations from three to four years, allow a one-year grace period for areas newly subject to conformity, and simplify requirements for localized "hot-spot" analyses. The hearing will be November 23, 2009. See http://www.deq.state.or.us/aq/rules/transportation/announcement.pdf

VIRGINIA


Fisheries



Water:



WASHINGTON


Air:



  • The Department of Ecology proposed adoption of new Wash. Admin. Code §173-441, Reporting of Emissions of Greenhouse Gases. This rule would adopt a mandatory greenhouse gas reporting rule for owners or operators of fleets of on-road motor vehicles that as a fleet emit at least 2,500 metric tons of greenhouse gases annually in the state; or sources or combination of sources that emit at least 10,000 metric tons of greenhouse gases annually in the state. See http://www.ecy.wa.gov/laws-rules/activity/wac173441.html

General:



  • The Department of Ecology proposed amendments to Wash. Admin. Code §17350, Accreditation of Environmental Laboratories. The amendments will change the fee schedule of Ecology's Environmental Laboratory Accreditation Program and will change some business practices to reflect a cut in the program budget. See http://www.ecy.wa.gov/laws-rules/wac17350/0909.html

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


INTERNATIONAL

RAPID ENVIRONMENTAL CHANGE THREATENS THE FOUNDATIONS OF HUMAN HEALTH


Changes to the Earth's land cover, climate, and ecosystems are endangering the health of hundreds of millions, possibly billions, of people worldwide and now represent the greatest public health challenge of the 21st century, according to a report published by Worldwatch Institute and the United Nations Foundation. The scale of these global changes is rapidly undermining human life-support systems and threatening the core foundations of healthy communities around the globe: access to adequate food, clean air, safe drinking water, and secure homes. The report, Global Environmental Change: The Threat to Human Health, notes that, as a result of rapid changes to the climate and in land use, we are already seeing alterations in the distribution of malaria, schistosomiasis, and other infectious diseases in many regions. It concludes that poor populations, mainly in developing countries, are the most vulnerable to these environmental changes, even though they are the least responsible for contributing to them. For the full story, see http://www.worldwatch.org/node/6311

UN CLIMATE TALKS FOCUS ON HOW TO CUT EMISSIONS



In Barcelona, Spain, a five-day conference preparing the text for Copenhagen resumed work after African delegates boycotted several meetings last Tuesday to press their demand that industrialized countries must raise their targets for cutting emissions. Yet as delegates from 192 nations retreated behind closed doors, fears arose over just what will be accomplished this year on fighting climate change. Sweden's prime minister said achieving a legally binding pact was probably impossible this year, while the prime minister of Denmark said failure to reach a deal next month as planned would be "a massive disappointment." A flurry of diplomatic activity on a new climate deal reflected high tensions worldwide as two years of negotiations approach a climax at a major climate conference opening December 7 in Copenhagen. The conference had been charged with crafting an agreement to regulate emissions of carbon and other greenhouse gases that cause global warming, but that deal seemed increasingly unlikely this year because the United States is not ready to commit to a specific reduction in emissions until Congress enacts a climate bill. For the full story, see http://www.google.com/hostednews/ap/article/ALeqM5i9u9GMQj8IuTIkIKDmsiGSXq4KuAD9BOPEJ80


PHILIPPINES TARGETS $2.5 BILLION GEOTHERMAL DEVELOPMENT


The Philippine government aims to approve contracts to explore and develop the country's massive geothermal energy resources, which could attract more than $2.5 billion in private investment, an official said. The Philippines, the world's second-largest developer of geothermal energy, plans to approve 19 deals in the next five months to allow foreign and domestic companies access to geothermal projects, the division chief for geothermal energy at the Philippine Energy Department, Alejandro Oanes, told Reuters. Philippine power producer Energy Development Corp and Envent, a unit of Geysir Green Energy, one of Iceland's biggest geothermal energy companies, were among groups vying for contracts to tap the country's geothermal resources, he said. "Incentives for renewable projects are giving (the country's) geothermal development a much needed boost," said Oanes. For the full story, see http://www.reuters.com/article/GCA-GreenBusiness/idUSTRE5A43HC20091105

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


Note: To request additional information, please call (800) 433-5120 or (202) 939-3844. Documents may also be available free or at a nominal charge from the applicable court or agency. Copyright© 2009, Environmental Law Institute, Washington, D.C. All rights reserved.


ELR STAFF

Leslie Carothers, Publisher
Scott Schang, Editor-in-Chief
Rachel Jean-Baptiste, Managing Editor
Erin Webreck, Associate Editor
William J. Straub, Desktop Publisher
Garrett VanPelt, Editorial Associate
Emily Norford, Publications Intern
Mark Goodhart, Publications Intern