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Weekly Update Volume 39, Issue 34

12/07/2009

LITIGATION

CAA, STANDING, REDRESSABILITY:



The D.C. Circuit held that North Carolina lacks standing to challenge an EPA rule removing the northern part of the state of Georgia from the Agency's one-hour nitrogen oxide (NOx) SIP Call. North Carolina claims that NOx emissions from electric generating units in northern Georgia are significantly contributing to North Carolina's inability to attain the 1997 eight-hour ozone NAAQS due to Georgia's non-inclusion in the one-hour NOx SIP Call. The state, however, lacks Article III standing. If Georgia had been subject to the NOx SIP Call, Georgia would have used "compliance supplement pool" credits to comply with the NOx emissions cap and would not have needed to lower its emissions to meet the requirements of the NOx SIP Call. Reincluding northern Georgia in the NOx SIP Call, therefore, is not likely to redress North Carolina's difficulty in meeting the eight-hour ozone standard. North Carolina's claim, therefore, is not redressable. North Carolina v. Environmental Protection Agency, No. 08-1225, 39 ELR 20271 (D.C. Cir. Nov. 24, 2009).


ANIMAL RIGHTS, STANDING, REDRESSIBILITY:



The Ninth Circuit held that animal rights organizations lacked standing to challenge a USDA notice stating that "there is no specific federal humane handling and slaughter statute for poultry." The lower court entered summary judgment in favor of the USDA, holding that while the plain meaning of the word "livestock" as used in the Humane Methods of Slaughter Act of 1958 is ambiguous, congressional intent behind the term was clear and consistent with the interpretation adopted by the USDA. But the only enforcement mechanism contained in the Act was repealed in 1978. Accordingly, the organizations' alleged injuries are not redressable and they lack of standing to proceed with this action. Consequently, the lower court's summary judgment order was vacated and the case was remanded with instructions to dismiss. Levine v. Vilsack, No. 08-16441, 39 ELR 20273 (9th Cir. Nov. 20, 2009).


WATER RIGHTS, STANDING, MOTION TO INTERVENE:



The Tenth Circuit held that a proposed intervener may not establish standing, and thus federal court jurisdiction over its motion to intervene, by "piggybacking" on the standing of an existing party to a lawsuit over which the district court has retained jurisdiction but within which there is no current, active dispute among the parties. The underlying dispute concerns water rights to Colorado's Blue River for which the district court retained jurisdiction after issuing a final decree on the consolidated cases more than 50 years ago. The owner of a mine filed a motion to intervene in the consolidated cases because it wanted the court to determine the priority of rights under the decree. The owner was unable to establish independent standing to intervene because any injury in fact to its water rights that it may suffer is not fairly traceable to a challenged action of any existing party to the consolidated cases. Nor can the owner establish piggyback standing to intervene. There is no active adversarial dispute to which the existing parties to the consolidated cases are seeking judicial resolution. As such, even the original parties to the lawsuit lack standing to pursue an action based merely on the district court's retained jurisdiction. Colorado Springs v. Northern Colorado Water Conservancy District, No. 08-1154, 39 ELR 20267 (10th Cir. Nov. 25, 2009).


FLPMA, NEPA, INJUNCTIONS:



The Ninth Circuit affirmed in part and reversed in part a lower court decision denying Native American tribes' motion to preliminarily enjoin BLM's approval of a large gold mining project on Mt. Tenabo, Nevada, which has religious significance for the tribes. The tribes failed to satisfy their burden of showing a likelihood of success on the merits of their FLPMA claims. BLM thoroughly considered the project's impact on the tribes' religion in the EIS, which was approved after more than two years of study and consultation with the tribes and the public. The tribes, however, did demonstrate a likelihood of success on their NEPA claims. BLM failed to adequately consider the environmental impact of the extraction of millions of tons of refractory ore, mitigation of the adverse impact on local springs and streams, and the extent of fine particulate emissions. Accordingly, the court ordered the temporary suspension of the project pending BLM's preparation of a proper EIS. South Fork Bend Council of Western Shoshone of Nevada v. United States Department of the Interior, No. 09-15230, 39 ELR 20276 (9th Cir. Dec. 3, 2009).


BANKRUPTCY, CONTRIBUTION:



The First Circuit held that a transit authority's state law contribution claims against a railroad operator for contamination that occurred more than 20 years ago are barred by a 1983 consummation order entered in bankruptcy. The June 30, 1983, consummation order discharged the railroad operator from bankruptcy, stating that it was "free and clear of all claims." Because the railroad operator filed for bankruptcy in 1970, prior to the 1978 enactment of the Bankruptcy Code, the order was issued under §77 of the Bankruptcy Act of 1898, which provides much broader relief to bankrupt railroads than to bankrupt non-railroad parties. Here, the authority's contribution claims arose prior to the 1983 discharge. Moreover, at the time of the 1983 discharge, the transit authority clearly had both sufficient knowledge and a contingent claim that was subject to discharge by the consummation order. Accordingly, its contribution claims are barred. Boston & Maine Corp. v. Massachusetts Bay Transportation Authority, No. 09-1185, 39 ELR 20269 (1st Cir. Nov. 24 2009).


HURRICANE KATRINA, IMMUNITY:



The Fifth Circuit affirmed a lower court decision dismissing a class action against 32 contractors hired by the United States to perform dredging activities in the Mississippi River Gulf Outlet (MRGO) for damages suffered as a result of Hurricane Katrina. The dredgers acted pursuant to contracts with the U.S. government under authority granted by an act of Congress, and the class does not allege that the contractors exceeded their congressional authority or in any way deviated from Congress' direction or expectations. Instead, the allegations attack Congress' policy of creating and maintaining MRGO, not any separate act of negligence by the contractors. Accordingly, the contractors are entitled to government-contractor immunity. Ackerson v. Bean Dredging LLC, No. 07-30272, 39 ELR 20270 (5th Cir. Nov. 25, 2009).


MINING, CWA, NEPA, PUBLIC NOTICE:



A district court held that the U.S. Army Corps of Engineers violated the CWA and NEPA by failing to provide adequate public notice and comment prior to issuing §404 dredge and fill permits for two large mining projects in West Virginia. The notices contained no substantive information on proposed mitigation, despite the fact that the compensatory mitigation measures included in the two permits were central to the Corps' determinations of no significant degradation. Without any substantive information on mitigation, the notices failed to provide an accurate picture of the Corps' reasoning and prevented useful criticism on the part of the plaintiffs and on the part of the public in general. Accordingly, the notices were insufficient under the CWA. For much of the same reason, the notices were deficient under NEPA as well. On remand, the Corps must re-issue an amended notice for each permit, receive and respond to comments on the revised notices, and reconsider each permit with any new comments in mind. However, the Corps' FONSIs and determinations that the surface mines will not cause significant degradation to the waters of the United States are reasonable and, thus, in accordance with existing law. The court also rejected plaintiff's claim that the Corps does not have jurisdiction to issue a §404 permit for discharges from the lowest point of valley fills. The court, therefore, granted summary judgment to the mines on these counts. Ohio Valley Environmental Coalition v. United States Army Corps of Engineers, No. 3:08-0979, 39 ELR 20275 (S.D. W. Va. Nov. 24, 2009) (Chambers, J.).


LAND USE, ZONING:



A California appellate court reversed a lower court decision denying developers' suit against a city challenging its extension of an ordinance restricting development in areas zoned for multifamily residential use. The extension was contrary to law and invalid because the city failed to identify "a specific, adverse impact upon the public health or safety" as required by the state's planning and zoning law. Although the city found that the need for affordable housing created "a current and immediate threat to the public health, safety, and welfare" in general, the findings failed to identify any specific impact on public health or safety. The findings also failed to identify any "written public health or safety standards, policies, or conditions" on which such an impact would be based. Moreover, the city council made no written finding that there was no feasible, less burdensome or restrictive alternative. Claims that the extension violated the California Environmental Quality Act, however, were moot. Hoffman Street, LLC v. City of West Hollywood, No. B210789, 39 ELR 20272 (Cal. App. 2d Dist. Nov. 23, 2009).


LAND USE, ZONING:



A California appellate court affirmed a lower court decision denying residents' motion to overturn a city's approval of use permits and zoning variances for a mixed-use development project. The residents failed to establish that the city proceeded unlawfully, that the decision was not supported by the findings, or that the findings were not supported by the evidence. The residents argued that the city improperly authorized 32 additional "bonus units" to the project in excess of what the zoning ordinances and general plan would allow. But the city's calculation of the number of density bonus units was proper. Likewise, the city's findings regarding the benefits of reduced setbacks to abutting and confronting lots was supported by substantial evidence. The findings also conform with the applicable ordinance as there is no requirement that the reduced setbacks benefit the entire affected residential area. Nor did the city violate the California Environmental Quality Act in adopting a mitigated negative declaration in lieu of a full environmental impact report. And despite residents' arguments to the contrary, the city's cost certification complied with the municipal code. Wollmer v. City of Berkeley, No. A122242, 39 ELR 20268 (Cal. App. 1st Dist. Nov. 24, 2009).


CALIFORNIA ENVIRONMENTAL QUALITY ACT, ENVIRONMENTAL IMPACT REPORT:



A California appellate court affirmed a lower court's decision not to interject itself into a city's still ongoing process of preparing an environmental impact report (EIR) for a proposed development project. The developer wanted the lower court to issue a writ of administrative mandamus to compel the city council to certify the proposed EIR even though the council had decided that the draft EIR required recirculation to address new issues. The court rejected the developer's argument that the one-year time limit for certifying an EIR under the California Environmental Quality Act (CEQA) constitutes an iron-clad, one-size-fits-all rule of no exception. Nor does the California Housing Accountability Act constitute a categorical or jurisdictional bar to preparation and certification of an EIR taking more than 365 days after the project's application is deemed complete. Moreover, the developer's active participation in the EIR process for more than three years—which included numerous changes in the size and composition of the project—after the date it now claims the city lost its discretionary jurisdiction amounts to laches, an accepted ground for relaxing CEQA's one-year deadline. Schellinger Brothers v. City of Sebastopol, No. A122972, 39 ELR 20274 (Cal. App. 1st Dist. Dec. 2, 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 amended and corrected portions of its existing fuel economy and emission regulations for cars and light trucks. 74 FR 61537 (11/25/09).

  • EPA promulgated NESHAPs for the asphalt processing and asphalt roofing manufacturing area source category. 74 FR 63236 (12/2/09).

  • EPA issued NESHAPs for the paints and allied products manufacturing area source category. 74 FR 63503 (12/3/09).

  • EPA issued NESHAPs for plywood and composite wood products for 32 sources in North Carolina. 74 FR 63613 (12/4/09).

  • EPA proposed to make minor amendments and corrections to its existing fuel economy and emission regulations for cars and light trucks; see above for direct final rule. 74 FR 61600 (11/25/09).

  • EPA granted Massachusetts the authority to implement and enforce its amended dry cleaning environmental results program in place of the dry cleaning NESHAPs for area sources. 74 FR 61037 (11/23/09).

  • EPA proposed NESHAPs for plywood and composite wood products for 32 sources in North Carolina; see above for direct final rule. 74 FR 63701 (12/4/09).

  • EPA determined that Georgia, Illinois, and Pennsylvania failed to submit SIPs to satisfy the CAA's NAAQS requirements particulate matter less than 2.5 micrometers (PM2.5). 74 FR 62251 (11/27/09).

  • EPA proposed to grant Massachusetts the authority to implement and enforce its amended dry cleaning environmental results program in place of the dry cleaning NESHAPs for area sources; see above for direct final rule. 74 FR 61077 (11/23/09).

  • EPA entered into a proposed consent decree that requires the Agency to take final action on proposed control measures for particulate matter in Imperial County, California, by June 15, 2010. 74 FR 62568 (11/30/09).

  • SIP Approvals: California (Imperial County attainment of the moderate 8-hour ozone NAAQS) 74 FR 63309 (12/3/09). Georgia (modifications to Georgia's Rules for Air Quality Control, Chapter 391-3-1) 74 FR 62249 (11/27/09). Illinois (Chicago-Gary-Lake County, Illinois-Indiana, PM2.5 NAAQS) 74 FR 62243 (11/27/09). Indiana (Chicago-Gary-Lake County, Illinois-Indiana, and Evansville, Indiana, PM2.5 NAAQS) 74 FR 62243 (11/27/09). North Carolina (Clean Air Interstate Rule) 74 FR 62496 (11/30/09). Tennessee (Clean Air Interstate Rule) 74 FR 61535 (11/25/09).

  • SIP Proposals: Kentucky (transportation conformity criteria and procedures) 74 FR 63697 (12/4/09). Utah (disapproval of redesignation for the Salt Lake County, Utah County, and Ogden City nonattainment areas) 74 FR 62717 (12/1/09).

  • SIP Withdrawal: Virginia (Clean Air Interstate Rule regulation) 74 FR 61037 (11/23/09).

ENERGY:



  • The National Park Service issued an advance notice of proposed rulemaking and seeks comments to assist it in developing proposed a proposed rule to revise regulations governing nonfederal oil and gas development within the boundaries of units of the National Park System; The regulations have been in effect for over 30 years and have not been substantively updated during that period. 74 FR 61596 (11/25/09).

MINING:



  • OSM seeks comment on proposed revisions to the stream buffer zone rule to assist in the preparation of a supplemental EIS on surface coal mining operations in the Appalachian region. 74 FR 62664 (11/30/09).

  • OSM proposed to approve revisions to Kentucky's regulatory program under SMCRA concerning its administrative regulations for the disposal of coal mine waste. 74 FR 62266 (11/27/09).

TOXIC SUBSTANCES:



  • EPA proposed the uses that qualify for the 2010 critical use exemption from the phaseout of methyl bromide under the CAA and the Montreal Protocol. 74 FR 61078 (11/23/09).

WATER:



  • EPA established technology-based effluent limitations guidelines and new source performance standards for the construction and development point source category. 74 FR 62996 (12/1/09).

  • EPA announced the availability of seven final reports on the restoration and protection of the Chesapeake Bay and requested public comment; the reports were prepared pursuant to Executive Order No. 13508 of May 12, 2009. 74 FR 63752 (12/4/09).

  • EPA announced that it intends to approve revisions to the U.S. Virgin Islands' public water system supervision program; the revisions adopt EPA's national primary drinking water regulations. 74 FR 61349 (11/24/09).

WILDLIFE:



  • EPA announced the availability of and seeks comment on the draft document titled, A Framework for Categorizing the Relative Vulnerability of Threatened and Endangered Species to Climate Change. 74 FR 61671 (11/25/09).

  • FWS proposed to designate 13.0 stream miles in Jefferson County, Alabama, as critical habitat for the vermilion darter under the ESA. 74 FR 63366 (12/3/09).

  • FWS announced its 90-day finding on a petition to list Sprague's pipit as threatened or endangered under the ESA; the agency determined that listing may be warranted and is therefore initiating a status review of the species. 74 FR 63337 (12/3/09).

  • FWS announced its 12-month finding on a petition to list the black-tailed prairie dog as threatened or endangered under the ESA; the agency determined that listing is not warranted at this time. 74 FR 63343 (12/3/09).

  • NOAA-Fisheries proposed to designate 3,016 square miles as critical habitat for the Cook Inlet beluga whale distinct population segment. 74 FR 63080 (12/2/09).

DOJ NOTICES OF SETTLEMENT:



  • United States v. Logistics Int'l-Georgia, Inc., No. 5:08CV00095 (W.D. Va. Nov. 23, 2009). A settling CERCLA defendant must pay $450,000 in U.S. response costs incurred at the I-81 Tractor Trailer Chemical Spill Superfund site in Fort Defiance, Virginia. 74 FR 63788 (12/4/09).

  • United States v. Allegheny Ludlum Corp., No. 09-1546 (W.D. Pa. Nov. 23, 2009). Settling CAA defendants must pay a $184,900 civil penalty for violations at their slag handling facility in Natrona, Pennsylvania, must control fugitive emissions at the facility, and must perform a supplemental environmental project to control fugitive dust. 74 FR 62596 (11/30/09).

  • United States v. Klockner, No. 2:09-cv-05905-FSH- PS (D.N.J. Nov. 20, 2009). A CERCLA defendant must perform the soil remedy selected for the Klockner Source Area (operable unit three) at the Rockaway Borough Well Field Superfund Site in Morris County, New Jersey, and must reimburse the United States for future response costs relating to the source area. 74 FR 62348 (11/27/09).

  • United States v. City of Akron, Ohio, No. 05:09-cv-0272 (N.D. Ohio Nov. 13, 2009). A settling CWA defendant that violated its NPDES permit and the Act in connection with the operation of its municipal wastewater treatment facility and sewer system must pay a $500,000 civil penalty, must pay $900,000 towards the removal of a dam, must develop and implement a comprehensive plan to eliminate or reduce combined sewer overflows in its sewer system and bypasses around secondary treatment at the facility, must expand secondary treatment capacity to at least 130 million gallons of wastewater per day and construct separate sewer lines for five combined sewer outfall points, and must improve sewer system performance. 74 FR 61707 (11/25/09).

  • United States v. City of West Point, No. 08-00293 (D. Neb. Nov. 13, 2009). A settling CWA defendant that unlawfully released discharges from a meat products facility into a POTW in West Point, Nebraska, must pay a $77,500 civil penalty to the United States, must pay a $34,100 civil penalty to Nebraska, and must contribute $43,400 to a state-supervised supplemental environmental project. 74 FR 61174 (11/23/09).

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. 3029 (energy), which would establish a research, development, and technology demonstration program to improve the efficiency of gas turbines used in combined cycle power generation systems, was passed by the House. 155 Cong. Rec. H13368 (Dec. 1, 2009).

  • H.R. 3598 (Energy and Water Research Integration Act), which would ensure consideration of water intensity in DOE's energy research, development, and demonstration programs to help guarantee efficient, reliable, and sustainable delivery of energy and water resources, was passed by the House. 155 Cong. Rec. H13370 (Dec. 1, 2009).

  • H.R. 515 (Radioactive Import Deterrence Act), which would prohibit the importation of certain low-level radioactive waste into the United States, was passed by the House 155 Cong. Rec. H13419 (Dec. 1, 2009).

Committee Action


  • H.R. 3029 (energy) was reported by the Committee on Science and Technology. H. Rep. No. 111-343, 155 Cong. Rec. H13385 (Dec. 1, 2009). The bill would establish a research, development, and technology demonstration program to improve the efficiency of gas turbines used in combined cycle power generation systems.

  • H.R. 3598 (Energy and Water Research Integration Act) was reported by the Committee on Science and Technology. H. Rep. No. 111-344, 155 Cong. Rec. H13385 (Dec. 1, 2009). The bill would ensure consideration of water intensity in DOE's energy research, development, and demonstration programs to help guarantee efficient, reliable, and sustainable delivery of energy and water resources.

  • H.R. 515 (Radioactive Import Deterrence Act) was reported by the Committee on Energy and Commerce. H. Rep. No. 111-348, 155 Cong. Rec. H13465 (Dec. 2, 2009). The bill would prohibit the importation of certain low-level radioactive waste into the United States.

Bills Introduced


  • S. 2811 (Merkley, D-Or.) (Migratory Bird Treaty Act) would amend the Migratory Bird Treaty Act to provide for penalties and enforcement for intentionally taking protected avian species. 155 Cong. Rec. S11883 (daily ed. Nov. 20, 2009). The bill was referred to the Committee on Environment and Public Works.

  • S. 2812 (Bingaman, D-N.M.) (energy) would amend the Energy Policy Act of 2005 to require the Secretary of Energy to carry out programs to develop and demonstrate two small modular nuclear reactor designs. 155 Cong. Rec. S11883 (daily ed. Nov. 20, 2009). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 2818 (LeMieux, R-Fla.) (Energy Conservation and Production Act) would amend the Energy Conservation and Production Act to improve weatherization for low-income persons. 155 Cong. Rec. S12008 (daily ed. Nov. 30, 2009). The bill was referred to the Committee on Energy and Natural Resources.

  • H.R. 4159 (Holt, D-N.J.) (FIFRA) would amend FIFRA to require local educational agencies and schools to implement integrated pest management programs to minimize the use of pesticides in schools and to provide parents, guardians, and employees with notice of the use of pesticides in schools. 155 Cong. Rec. S13385 (daily ed. Dec. 1, 2009). The bill was referred to the Committee on Agriculture.

  • H.R. 4160 (Slaughter, D-N.Y.) (Public Health Service Act) would amend the Public Health Service Act to authorize the National Institute of Environmental Health Sciences to conduct and coordinate a research program on hormone disruption. 155 Cong. Rec. S13385 (daily ed. Dec. 1, 2009). The bill was referred to the Committee on Energy and Commerce and the Committee on Rules.

  • H.R. 4168 (Teague, D-N.M.) (biofuel) would amend the Internal Revenue Code of 1986 to expand the definition of cellulosic biofuel to include algae-based biofuel for purposes of the cellulosic biofuel producer credit and the special allowance for cellulosic biofuel plant property. 155 Cong. Rec. S13385 (daily ed. Dec. 1, 2009). The bill was referred to the Committee on Ways and Means.

  • H.R. 4187 (Sarbanes, D-Md.) (Water Resources Development Act) would amend the Water Resources Development Act of 1996 to make modifications to the Chesapeake Bay environmental restoration and protection program. 155 Cong. Rec. S13466 (daily ed. Dec. 2, 2009). The bill was referred to the Committee on Transportation and Infrastructure.

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


IN THE STATES

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


The states below have updates this week:

















Alabama Florida Iowa
Alaska Illinois Louisiana
California Indiana Massachusetts
Delaware    

ALABAMA


Hazardous & Solid Waste:



  • The Department of Environmental Management will hold a public hearing on proposed amendments to Ala. Admin. Code r. 335-4, Scrap Tire Program. The amendments would clarify certain provisions related to the reporting and recordkeeping requirements for scrap tire receivers, processors, and transporters. The hearing will be held January 6, 2010. See http://www.adem.state.al.us//PublicNotice/Nov09/11scraptirerule.htm

ALASKA


Water:



  • The Department of Environmental Conservation will hold a public hearing on proposed amendments to Alaska Admin. Code tit. 18, §§80.1100, 80.1103, 80.1105, 80.1109, 80.1110, 80.1910, and 80.1990. The amendments pertain to laboratory certification, laboratory inspection requirements, reporting and recordkeeping requirements for certified laboratories, fees for laboratory certification, fees for Drinking Water Program regulatory services, and definitions. Comments are due December 28, 2009. See http://notes4.state.ak.us/pn/pubnotic.nsf/cc52605f7c156e7a8925672a0060a91b/4f6daa5bb239bab38925767e006c1047?OpenDocument

CALIFORNIA


Toxic Substances:



  • The Office of Environmental Health Hazard Assessment seeks public comment as to whether clodinafop-propargyl, diclofop-methyl, and epoxiconazole meet the criteria for listing under the Safe Drinking Water and Toxic Enforcement Act of 1986. Comments are due January 12, 2010. See http://www.oal.ca.gov/res/docs/pdf/notice/46z-2009.pdf (pp. 1954-57)

Energy:



  • The Department of Conservation will hold a series of public hearings on proposed amendments to Cal. Code Regs tit. 14, §4 . The proposed rulemaking specifies minimum standards for the inspection, testing, maintenance, and construction of all oil and gas production facilities. The hearings were December 2 and 3, 2009, and continue on January 5, 2010. See http://www.oal.ca.gov/res/docs/pdf/notice/47z-2009.pdf (pp. 1978-982)

DELAWARE


Air:



Toxic Substances:



  • The Department of Natural Resources and Environmental Control will hold a public hearing on proposed amendments to Del. Code Ann. Code tit 7, §1351, Delaware Regulations Governing UST Systems. The proposed changes to the UST regulations incorporate federal requirements, add clarifying language, and seek to ensure the greatest protection of human health, safety, and the environment in Delaware. The hearing will be January 12, 2010. See http://regulations.delaware.gov/register/december2009/proposed/13%20DE%20Reg%20796%2012-01-09.htm#P10_277

FLORIDA


Water:



  • The Department of Environmental Protection will hold a rulemaking workshop on proposed amendments to Fla. Admin. Code Ann. r. 62-302.700, Special Protection, Outstanding Florida Waters, Outstanding National Resource Waters. The amendments would designate certain waters in the Matanzas River basin as Outstanding Florida Waters. The petitioned area includes the coastal estuary between Moultrie Creek and the City of Palm Coast in southern St. Johns County and northern Flagler County. The hearing will be January 19, 2010. See https://www.flrules.org/Faw/FAWDocuments/FAWVOLUMEFOLDERS2009/3546/3546doc.pdf (p. 5896)

  • The St. Johns River Water Management District proposed amendments to Fla. Admin. Code Ann. r. 40C-1.603, Permit Fees. The proposed amendments would increase the fee for all noticed general environmental resource permits to $250, create a $100 fee for District verification that an activity is exempt from regulation, create a $100 fee for an informal wetland boundary determination, increase each application fee authorized based on a Consumer Price Index, and establish the Consumer Price Index used for calculating those fees increases. See https://www.flrules.org/Faw/FAWDocuments/FAWVOLUMEFOLDERS2009/3546/3546doc.pdf (pp. 5898-5902)

ILLINOIS


Air:



  • The Pollution Control Board seeks public comment on proposed amendments to Ill. Admin. Code tit. 35, §218, Organic Material Emission Standard and Limitations for the Chicago Area; and 35 Ill. Adm. Code 219, Organic Material Emission Standards and Limitations for the Metro East Area. The proposed rulemaking intends to satisfy Illinois' obligation to submit a SIP addressing requirements under the federal CAA for sources of volatile organic material emissions in areas designated as nonattainment with respect to the ozone NAAQS. Comments are due January 4, 2010. See http://www.cyberdriveillinois.com/departments/index/register/register_volume33_issue47.pdf (pp. 16399-6516)

Fisheries:



  • The Department of Natural Resources seeks public comment on proposed amendments to Ill. Admin. Code tit. 17, §830, Commercial Fishing and Musseling in Certain Waters of the State. This part is being amended to make the rule consistent with the rules established by the state of Kentucky and is intended to reduce confusion and improve compliance by establishing the areas of the Ohio River that are open to commercial fishing, adopt a restricted area, establish harvest seasons for the commercial harvest of shovelnose sturgeon and paddlefish, and adopt season dates consistent with Kentucky's. Comments are due January 4, 2010. See http://www.cyberdriveillinois.com/departments/index/register/register_volume33_issue47.pdf (pp. 15990-16006)

INDIANA


Air:



  • The Air Pollution Control Board adopted amendments to 326 Ind. Admin. Code 8-1-0.5, 8-1-2, 8-1-4, 8-2-1, 8-2-2, 8-2-5, 8-2-6, 8-2-7, 8-2-9, 8-2-10, and 8-5-5 concerning the application of reasonably available control technology for volatile organic compound emissions from surface coating and flexible package printing graphic arts operations in Lake County and Porter County. See http://www.in.gov/legislative/iac/irtoc.htm?view=list&lsadocnum=09-220

  • The Air Pollution Control Board adopted amendments to 326 Ind. Admin. Code 8-16, 8-17, and 8-22. The amendments add rules for offset lithographic printing and letterpress printing; industrial solvent cleaning; miscellaneous industrial adhesives; synthetic organic chemical manufacturing industry air oxidation, distillation, and reactor processes; batch process vents; industrial wastewater treatment; and aerospace manufacturing and rework operations to the new volatile organic compound reasonably available control technology rules for Lake County and Porter County. See http://www.in.gov/legislative/iac/irtoc.htm?view=list&lsadocnum=09-221 and http://www.in.gov/legislative/iac/irtoc.htm?view=list&lsadocnum=09-222

Land Use:



  • The Natural Resources Commission adopted amendments to 312 Ind. Admin. Code 6-2-3.8, 6-2-6.8, and 6-5-10 concerning navigable waters; and 312 IAC 10-2-24.5, 312 IAC 10-2-33.3, and 312 IAC 10-5-11, concerning non-navigable waters. The amendments address general licenses and individual licenses that govern prospecting for hard mineral resources. See http://www.in.gov/legislative/iac/irtoc.htm?view=list&lsadocnum=09-80

Water:



  • The Water Pollution Control Board adopted temporary emergency amendments to 327 Ind. Admin. Code 5-4-3, 15-15-1, 15-15-2, 15-15-9, 15-15-11, and 15-15-12, relating to concentrated animal feeding operations. The amendments will expire February 23, 2010. See http://www.in.gov/legislative/iac/irtoc.htm?view=list&lsadocnum=09-906

  • The Natural Resources Commission adopted amendments to 312 Ind. Admin. Code 6-1-1, 6-4-1, 6-4-2, 6-4-3, 6-1-4, 6-1-5, 6-2-3.7, 6-4-4, and 6-4-5, governing the placement of structures in navigable waters. The amendments provide new standards pertaining to the placement of piers and incorporate by reference a nonrule policy document, which assists with the identification of riparian zones, for use as guidance in performing regulatory functions. See http://www.in.gov/legislative/iac/irtoc.htm?view=list&lsadocnum=09-137

Wildlife:



  • The Natural Resources Commission adopted amendments to 312 Ind. Admin. Code 18-3-18, pertaining to entomology and plant pathology. The amendments provide quarantine standards for the emerald ash borer (Agrilus planipennis), a pest or pathogen, and add counties and townships to the quarantine area. See http://www.in.gov/legislative/iac/irtoc.htm?view=list&lsadocnum=09-85

IOWA


Hazardous & Solid Waste:



  • The Environmental Protection Commission will hold a public hearing on proposed amendments to Iowa Admin. Code r. 123, Regional Collection Centers and Mobile Unit Collection and Consolidation Centers; and Iowa Admin. Code r. 211, Financial Assistance for the Collection of Household Hazardous Materials and Hazardous Waste From Conditionally Exempt Small Quantity Generators. The proposed amendments differentiate between satellite facilities and regional collection centers. The hearing will be December 8, 2009. See http://www.legis.state.ia.us/aspx/ACODOCS/DOCS/11-18-2009.Bulletin.pdf (pp. 1249-256)

Water:



  • The Environmental Protection Commission will hold public hearings on proposed amendments to Iowa Admin. Code r. 90, Scope of Title--Definitions--Forms; r. 91, Criteria for Rating and Ranking Projects for the Water Pollution Control State Revolving Fund; r. 92, Clean Water State Revolving Fund; and r. 93, Nonpoint Source Pollution Control Set-Aside Programs. The proposed amendments would update the Clean Water State Revolving Fund rules to reflect new definitions and current program practices and better define project eligibility and prioritization. The most extensive changes are to the Livestock Water Quality Facilities program. The hearings will be December 8, 9, and 10, 2009. See http://www.legis.state.ia.us/aspx/ACODOCS/DOCS/11-18-2009.Bulletin.pdf (pp. 1227-1249)

LOUISIANA


Air:



  • The Department of Environmental Quality adopted amendments to La. Admin. Code tit. 33, §III.501, Statutory Exemption for Air Permits. The amendments add an exemption for any source for which facility-wide potential emissions are less than 5 tons per year for each of any regulated air pollutant as defined by the CAA, less than 15 tons per year emitted of all such defined pollutants combined, and less than the minimum emission rate for each toxic air pollutant established pursuant to state law, unless such source is required to obtain a permit pursuant to the CAA. See http://www.doa.la.gov/osr/reg/0911/0911.pdf (p. 2351)

Hazardous & Solid Waste:



  • The Department of Environmental Quality adopted amendments to La. Admin. Code tit. 33, §V.3105, Integration of Maximum Achievable Control Technology Standards. The rules deal with hazardous waste incinerators. This action is needed in order for the state hazardous waste regulations to maintain equivalency with the federal regulation. See http://www.doa.la.gov/osr/reg/0911/0911.pdf (p. 2350)

MASSACHUSETTS


Water:



  • The Department of Environmental Protection adopted amendments to 310 Mass. Code Regs. 4.00, Timely Action Schedule and Fee Provisions. The amendments delete, add, increase, and decrease fees and otherwise amend permit or annual compliance fee categories for the Division of Water Pollution Control, Ground Water Discharge Permit Program and Reclaimed Water Permit Program and Standards. See http://www.mass.gov/dep/service/online/fees.htm#regs

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


INTERNATIONAL

UNION CARBIDE BHOPAL DISASTER LEAVES TOXIC LEGACY 25 YEARS ON


It was seen as a symbol of the new emerging India--a factory that would not only generate thousands of jobs, but manufacture cheap pesticides for millions of farmers.  But the Union Carbide plant in the central city of Bhopal left a more potent legacy when it accidentally released toxic gases into the air, killing thousands of people and causing many more to suffer in the world's most deadly industrial disaster.  A quarter of a century later, the factory stands abandoned, but behind its locked iron gates lies what environmentalists say is "a disaster within a disaster"--a highly polluted site that, according to a new study, is slowly poisoning the drinking water for thousands of Indians. "Our findings suggest that the entire site is highly contaminated," said Sunita Narain, director of the Delhi-based think-tank, the Center for Science and Environment (CSE), which in October tested the toxicity levels of ground water and soil samples in and outside the plant. Dow Chemical, which now owns Union Carbide, denies any responsibility, saying it bought the company a decade after Union Carbide had settled its liabilities to the Indian government in 1989 by paying $470 million for the victims. For the full story, see http://www.reuters.com/article/environmentNews/idUSTRE5B20Q620091203?sp=true

CLIMATE E-MAIL HACK WILL "IMPACT ON COPENHAGEN SUMMIT"



E-mails hacked from a climate research institute suggest climate change does not have a human cause, according to Saudi Arabia's lead climate negotiator. Scientists say the e-mails from the University of East Anglia do not alter the picture of man-made warming. The e-mails issue arose two weeks ago. But it has not until now materialized as an issue likely to influence the Copenhagen negotiations, which are supposed to agree to a new global deal on combating climate change to supplant the Kyoto Protocol. "It's a transparent attempt to discredit the scientific evidence base and sow confusion ahead of the talks in Copenhagen; most of us have seen this all before," said Malini Mehra, founder and CEO of the Centre for Social Markets in India. For the full story, see http://news.bbc.co.uk/2/hi/science/nature/8392611.stm


COMMONWEALTH LEADERS AGREE TO $10 BILLION CLIMATE FUNDING FOR VULNERABLE COUNTRIES


Commonwealth leaders representing a third of the world's population have stressed their "conviction that urgent and substantial action to reduce global emissions is needed" after a meeting in the Caribbean island of Trinidad and Tobago. The 49 countries at the summit--including 34 represented by their heads of state or government--approved fast-track funding focused on the most vulnerable countries in a meeting that was dominated by climate change just a week before the key United Nations climate talks begin in Copenhagen, Denmark. The Copenhagen Launch Fund would start in 2010 and build up to US$10 billion per year by 2012, including 10 percent dedicated to small island states. The fund would support climate adaptation, clean technology, and reducing emissions from deforestation and forest degradation. For the full story, see http://www.unep.org/Documents.Multilingual/Default.asp?DocumentID=602&ArticleID=6384&l=en

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


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