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Weekly Update Volume 39, Issue 35

12/14/2009

LITIGATION

MARINE MAMMAL PROTECTION ACT, NEPA, INCIDENTAL TAKE:


The Ninth Circuit held that FWS regulations authorizing the non-lethal take of polar bears and Pacific walrus by oil and gas activities in and along the Beaufort Sea on the Northern Coast of Alaska do not violate the Marine Mammal Protection Act (MMPA) or NEPA. The term “gas and oil exploration, exploration, and production activities” as set forth in the incidental take regulations is not too broad to qualify as a “specified activity” under the MMPA. Nor was the FWS' negligible impact finding arbitrary and capricious under the MMPA for failing to account for the increased vulnerability of polar bears due to climate change.  Reduced physical fitness due to climate change likely poses a serious threat to the Beaufort Sea polar bear population, but the FWS could reasonably conclude that such a threat could not be “reasonably expected” to manifest itself in the context of regional oil and gas activities. The court also rejected claims that the FWS' FONSI was arbitrary and capricious because it failed to address "the impacts to polar bears from disturbance by oil and gas activities in the context of a warming climate." The FWS' EA did acknowledge climate change and enumerated its long-term effects on polar bears. Furthermore, the EA provides convincing reasons to believe that the incidental take regulations will ameliorate the impact of takes. And the FWS committed no clear error in deciding not to produce an EIS. Although climate change makes the FWS' prediction less certain than it would be otherwise, such uncertainty was not "highly uncertain" and its predictions were reasonable. Center for Biological Diversity v. Kempthorne, No. 08-35402, 39 ELR 20280 (9th Cir. Dec. 2, 2009).

 


ESA, WIND ENERGY, CITIZEN SUIT:



A district court enjoined an energy company from building additional wind turbines at a wind farm project in West Virginia until it obtains an incidental take permit under the ESA for the Indiana bat, an endangered species. Indiana bats are present at the project site and the project is reasonably certain to imminently harm, kill, or wound the bats in violation of ESA §9. Despite the company's arguments to the contrary, the ESA's citizen-suit provision allows actions alleging wholly-future violations of the statute where no past violation has occurred. This is consistent with the text of the citizen-suit provision, the legislative history, the purpose of the ESA, as well as decisions from the federal circuit courts squarely addressing the issue. Because the project will take Indiana bats, injunctive relief is appropriate. The company argued that adaptive management after completion of construction was the most appropriate way to address any perceived threat to Indiana bats. But because adaptive management is entirely discretionary, it will not eliminate the risk to Indiana bats. The court, therefore enjoined the construction of any additional turbines until an incidental take permit has been obtained. While the court cannot require the company to apply for or obtain such a permit, it is the only way in which the court will allow the project to continue. The injunction, however, does not apply to the 40 turbines already under construction. Animal Welfare Institute v. Beech Ridge Energy, LLC, No. 09cv1519, 39 ELR 20278 (D. Md. Dec. 8, 2009) (Titus, J.).


 


BANKRUPTCY, CLEANUP AND RESTORATION:


 



A district court approved a bankruptcy reorganization plan requiring a mining company to pay $1.79 billion to fund past and future environmental cleanup and restoration costs incurred by federal and state agencies at more than 80 sites in 19 states. The court approved the plan submitted by the government, as opposed to the debtor's plan, concluding that the plan is both feasible and confirmable. It offers the creditors full payment and is more likely to close than the debtor's plan. Under the terms of the plan, according to a DOJ press release, the United States received approximately $776 million, which will be distributed in accordance with the underlying settlements to address over 35 different sites; the Coeur d’Alene Work Trust was paid $436 million; three custodial trusts--which address the owned but not operating properties of the mining company and involve a total of 13 states and 24 sites--were paid a cumulative total of approximately $261 million; and payments totaling in excess of $321 million were paid to 14 different states to fund environmental settlement obligations at over 36 individual sites. The reorganized company remains liable for environmental liabilities at the properties it continues to own and operate. In re Asarco, No. 09-cv-177, 39 ELR 20284 (S.D. Tex. Nov. 13, 2009) (Hanen, J.).


NEPA, TIMBER SALES:



A district court halted a timber sale in roadless areas of the Tongass National Forest pending the U.S. Forest Service's preparation of a supplemental EIS (SEIS). The Forest Service's failure to take a hard look of the significant changes in public costs and revenues for the timber sale and its failure to issue a SEIS disclosing this information to the public and decisionmakers was arbitrary under NEPA. For example, the EIS anticipated that the timber purchasers, not the taxpayers, would pay for the costs of road construction. But new information shows that the timber purchaser will pay $140,635 for the timber while taxpayers will spend $1,579,880 for road construction for the timber sale--approximately 11 times the purchase price for the timber. New information also shows that opportunities for local employment are also significantly lower than originally intended. Because providing the highest economic return to the federal government while meeting resource objectives was a significant factor in comparing alternatives and one of the main reasons for selecting the chosen alternative, the new economic information regarding the costs and benefits of the timber sale are "sufficiently significant" and require an SEIS. The Service was therefore enjoined from taking or allowing any further actions implementing the timber sale and associated roads construction contract until the required SEIS has been completed and a decision has been made whether to proceed with the project. Tongass Conservation Society v. Cole, No. 1:09-cv-00003, 39 ELR 20277 (D. Alaska Dec. 7, 2009) (Sedwick, J.).


CERCLA, STATUTE OF LIMITATIONS:



A district court held that the United States' cost recovery action against the current owner of a hazardous waste site in New York is time barred under CERCLA. The owner argued that the government's cleanup activities were "remedial" actions subject to CERCLA's six-year statute of limitations, which runs from the initiation of physical onsite construction. Conversely, the government argued that its cost recovery claims relate to an ongoing "removal" action, the limitations period for which ends three years after the completion of the removal. Although the government's characterization of its response action as a removal action is entitled to some deference, it is clear from the administrative record that the government's actions were intended to constitute a long-term, if not permanent, remedy to the contamination as opposed to a short-term remedy. Because removal actions generally are short-term cleanup actions whereas remedial actions involve long-term, permanent containment efforts intended to prevent or minimize the release of hazardous substances, the response activities in this case constitute a remedial action. Accordingly, because the government did not file its cost recovery action until seven years after it began physical remediation activities at the site, its claims are time barred. But the government's enforcement claim seeking civil penalties based on the owners' failure to comply with an administrative order are not time barred. New York v. Kasper, No. 07-0541, 39 ELR 20279 (E.D.N.Y. Dec. 2, 2009) (Feuerstein, J.) (Defense council included William F. Ryan, Jr., Susan Jaffe Roberts, and Erin Purdy of Whiteford, Taylor & Preston, LLP, in Baltimore, Md.) (decision vacated by court order, July 28, 2010).

WETLANDS, CWA, RCRA:



A district court denied a rifle club's motion to dismiss an individual's claims against it for discharging pollutants into wetlands and waterways without a NPDES permit and disposing of and storing hazardous lead waste without a RCRA permit. The club argued that the wetlands and other waters on their property are not jurisdictional waters under the CWA. But the individual set forth facts sufficient to demonstrate that all wetlands on the club's property maintain a significant nexus with the Clackamas River, a navigable water, and genuine issues of material fact remain as to whether a creek on the club's property is a tributary to the Clackamas River. The club also argued that the RCRA claim should be dismissed because lead shot is not "hazardous waste" as defined by the statute. Specifically, it asserted that because the firing of munitions is within the expected use of the product, lead munitions are not discarded and do not constitute solid waste. But the club has been depositing lead into the land, wetlands, and waterways of its outdoor shooting range since 1955, and a question of fact remains as to whether the club has ever reclaimed the lead. And while it is true that lead shot could be collected, remelted, and reused as munitions, a dispute remains as to whether the club has ever actively pursued such recycling initiatives. The court also held that the individual's state law claims against the club for filling in wetlands were not moot. Benjamin v. Douglas Ridge Rifle Club, No. 07-1144, 39 ELR 20283 (D. Or. Dec. 1, 2009) (Haggerty, J.).


TRESPASS, NUISANCE, NEGLIGENCE:



A district court held that residents may go forward with their trespass claims against a liquor distillery that operates a coal-fired production facility near their homes, but dismissed their nuisance and negligence claims. The residents seek injunctive and monetary relief based on the presence of particles and odors on their property allegedly emitted from the facility. The nuisance claims were dismissed because the residents failed to provide sufficient evidence of causation as to odor and because they failed to offer quantifiable proof of harm to their properties. The residents' negligence claims also were dismissed because they failed to show that the facility breached a duty. The residents alleged that the distillery emits tons of chemicals into the air each year, but they did not produce any evidence that those levels are harmful or exceed what is allowed under federal and state law. But the residents offered sufficient proof of causation to allow their trespass claims based on the presence of particles to go forward. Although the odors alleged in the complaint, which are visibly undetectable and transient, are not sufficient to state a claim for trespass because a trespass only occurs when an object or thing enters a person's property and interferes with his or her possession or control, the particles have a visible and tangible presence on the property. Moreover, a court can award nominal damages in an intentional trespass case for the mere invasion of plaintiffs’ property. Thus, with or without evidence of actual damages, the residents' claim for trespass can go forward. Brockman v. Barton Brands, Ltd., No. 3:06CV-332-H, 39 ELR 20282 (W.D. Ky. Nov. 25, 2009) (Heyburn II, J.).


NEGLIGENCE, PREEMPTION:



West Virginia's highest court held that the Manufactured Home Construction and Safety Standards Act does not preempt homeowners' formaldehyde-based negligence claims against their home's manufacturer. The owners, who began experiencing various health problems after living in the home for six years, filed suit against the manufacturer after learning that debris from the formaldehyde-treated floor decking had been left in the duct work of their home's heating system. The manufacturer argued that their common law negligence claim was preempted by the Manufactured Home Construction and Safety Standards Act. But common law suits are not expressly preempted by the Act. Nor is the claim impliedly preempted either on the basis of field or conflict preemption. The court also held that ambient air testing for the presence of formaldehyde in wood products used in the construction of a manufactured home built in accordance with the Manufactured Home Construction and Safety Standards Act is admissible as evidence in a common law negligence action seeking to establish a standard of performance not covered by the Act or associated regulations as long as the tests are not used to challenge to the formaldehyde emission levels established under the Act. Harrison v. Skyline Corp., No. 34706, 39 ELR 20281 (W. Va. Nov. 13, 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 an additional three-month stay of the December 2008 fugitive emissions rule under the prevention of significant deterioration program. 74 FR 65692 (12/11/09).

  • EPA announced recent regulatory postings for the new source performance standards, NESHAP, and stratospheric ozone protection programs. 74 FR 64078 (12/7/09).

  • EPA proposed to revise the primary NAAQS for sulfur dioxide. 74 FR 64810 (12/8/09).

  • EPA proposed its allocation of essential use allowances for chlorofluorocarbons, a Class I ozone-depleting substance, for use in metered dose inhalers for 2010. 74 FR 65719 (12/11/09).

  • EPA entered into a proposed consent decree that establishes a deadline for the Agency to either approve an SIP or promulgate a federal implementation plan for California, Colorado, Idaho, New Mexico, North Dakota, Oklahoma, and Oregon to satisfy the requirements of CAA §110(a)(2)(D)(i) with regard to the 1997 NAAQS for eight-hour ozone and fine particulate matter. 74 FR 64076 (12/7/09).

  • EPA entered into a proposed consent decree that establishes a deadline for the Agency to either require Utah to revise its rules for excess emissions resulting from the breakdown of pollution control equipment under CAA §110(k)(5) or determine that a revision is unnecessary. 74 FR 64077 (12/7/09).

  • SIP Approvals: New Jersey/New York (one-hour and eight-hour NAAQS for ozone for various nonattainment areas in New Jersey and New York) 74 FR 63993 (12/7/09). North Carolina (attainment of the 1997 eight-hour ozone NAAQS for the Great Smoky Mountains National Park nonattainment area and maintenance plan) 74 FR 63995 (12/7/09). Pennsylvania (Clean Air Interstate Rule requirements) 74 FR 65446 (12/10/09).

  • SIP Proposal: California (nitrogen oxide emissions for the San Joaquin Valley unified air pollution control district) 74 FR 65042 (12/9/09).

HAZARDOUS & SOLID WASTE:



  • EPA proposed to withdraw the conditional exclusion from regulations promulgated under RCRA on December 19, 2008, for emission comparable fuel (ECF); the Agency believes ECF would be better regarded as being a discarded material and regulated as a hazardous waste. 74 FR 64643 (12/8/09).

  • EPA entered into a proposed administrative settlement under CERCLA that requires the settling party to pay $54,625.06 in U.S. response costs incurred at the Coffeyville Resources Superfund site in Coffeyville, Kansas. 74 FR 65533 (12/10/09).

  • EPA entered into a proposed administrative settlement under CERCLA that requires the settling party to pay $193,670.67 in U.S. response costs incurred at the Coffeyville Resources Superfund site in Sequoyah County, Oklahoma. 74 FR 65122 (12/9/09).

MINING:



  • OSM approved an amendment to Utah's regulatory program under SMCRA concerning remining. 74 FR 63988 (12/7/09).

RULEMAKING:



  • The federal agencies issued their semiannual regulatory agendas providing specific information on the status of regulations under development and revision. EPA's agenda can be found at 74 FR 64496 (12/7/09).

WATER:



  • EPA Region 10 proposed to issue a general NPDES permit to cover offshore seafood processors discharging processing waste off the shore of Alaska. 74 FR 65774 (12/11/09).

  • EPA Region 9 issued a general NPDES permit for discharges from offshore oil and gas exploration, development, and production facilities off the coast of southern California. 74 FR 64074 (12/7/09).

  • EPA Region 1 issued final NPDES general permits for specific discharges at hydroelectric generating facilities in Massachusetts, including tribal lands, and New Hampshire. 74 FR 64074 (12/7/09).

WILDLIFE:



  • FWS proposed to designate approximately 3,786 acres in Los Angeles, Orange, Riverside, San Bernardino, and San Diego counties in California as critical habitat for the perennial herb thread-leaved brodiaea. 74 FR 64930 (12/8/09).

DOJ NOTICE OF SETTLEMENT:



  • United States v. Ameron International Corp., No. 2:09-cv-8719 (C.D. Cal. Dec. 3, 2009). Twelve settling CERCLA defendants must pay $3,868,902 in U.S. response costs incurred at the Operating Industries, Inc. Superfund site in Monterey Park, California. 74 FR 65550 (12/10/09).

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. 1672 (Northwest Straits Marine Conservation Initiative Reauthorization Act of 2009), which would reauthorize the Northwest Straits Marine Conservation Initiative Act to promote the protection of the resources of the Northwest Straits, was passed by the House. 155 Cong. Rec. H13530 (daily ed. Dec. 7, 2009).

  • H.R. 2062 (Migratory Bird Treaty Act Penalty and Enforcement Act of 2009), which would amend the Migratory Bird Treaty Act to provide for penalties and enforcement for intentionally taking protected avian species, was passed by the House. 155 Cong. Rec. H13532 (daily ed. Dec. 7, 2009).

  • H.R. 1454 (Multinational Species Conservation Funds Semipostal Stamp Act of 2009), which would provide for the issuance of a Multinational Species Conservation Funds Semipostal Stamp, was passed by the House. 155 Cong. Rec. H13535 (daily ed. Dec. 7, 2009).

  • H.R. 1854 (Water Resources Development Act), which would amend the Water Resources Development Act of 1992 to modify an environmental infrastructure project for Big Bear Lake, California, was passed by the House. 155 Cong. Rec. H13581 (daily ed. Dec. 8, 2009).

Committee Action


  • H.R. 1672 (Northwest Straits Marine Conservation Initiative Act) was reported by the Committee on Natural Resources. H. Rep. No. 111-354, 155 Cong. Rec. H13549 (daily ed. Dec. 7, 2009). The bill would reauthorize the Northwest Straits Marine Conservation Initiative Act to promote the protection of the resources of the Northwest Straits.

  • H.R. 2062 (Migratory Bird Treaty Act Penalty and Enforcement Act of 2009) was reported by the Committee on Natural Resources. H. Rep. No. 111-355, 155 Cong. Rec. H13549 (daily ed. Dec. 7, 2009). The bill would amend the Migratory Bird Treaty Act to provide for penalties and enforcement for intentionally taking protected avian species.

  • H.R. 3603 (national monument) was reported by the Committee on Natural Resources. H. Rep. No. 111-356, 155 Cong. Rec. H13549 (daily ed. Dec. 7, 2009). The bill would rename the Ocmulgee National Monument.

  • H.R. 1454 (Multinational Species Conservation Funds Semipostal Stamp) was reported by the Committee on Natural Resources. H. Rep. No. 111-358, 155 Cong. Rec. H13549 (daily ed. Dec. 7, 2009). The bill would provide for the issuance of a Multinational Species Conservation Funds Semipostal Stamp.

Bills Introduced


  • S. 2826 (Grassley, R-Iowa) (energy) would amend the Internal Revenue Code of 1986 to extend the renewable production credit for wind and open-loop biomass facilities. 155 Cong. Rec. S12322 (daily ed. Dec. 3, 2009). The bill was referred to the Committee on Finance.

  • S. 2828 (Kerry, D-Mass.) (toxic substances) would amend the Public Health Service Act to authorize the National Institute of Environmental Health Sciences to conduct a research program on endocrine disruption to prevent and reduce the production of, and exposure to, chemicals that can undermine the development of children before they are born and cause lifelong impairment to their health and function. 155 Cong. Rec. S12322 (daily ed. Dec. 3, 2009). The bill was referred to the Committee on Health, Education, Labor, and Pensions.

  • S. 2829 (Wyden, D-Or.) (tax credits) would amend the Internal Revenue Code of 1986 to allow the cost of labor for building envelope improvements to be included for purposes of the nonbusiness energy property tax credit. 155 Cong. Rec. S12322 (daily ed. Dec. 3, 2009). The bill was referred to the Committee on Finance.

  • S. 2830 (Bingaman, D-N.M.) (SMCRA) would amend SMCRA to clarify that uncertified states and Indian tribes have the authority to use certain payments for certain noncoal reclamation projects. 155 Cong. Rec. S12322 (daily ed. Dec. 3, 2009). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 2835 (Kerry, D-Mass.) (climate) would reduce global warming pollution through international climate finance and investment. 155 Cong. Rec. S12322 (daily ed. Dec. 3, 2009). The bill was referred to the Committee on Foreign Relations.

  • S. 2843 (Stabenow, D-Mich.) (transportation) would provide for a research, development, demonstration, and commercial application program for vehicle technologies at DOE. 155 Cong. Rec. S12618 (daily ed. Dec. 7, 2009). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 2848 (Lautenberg, D-N.J.) (water) would amend the Federal Food, Drug, and Cosmetic Act to require manufacturers of bottled water to submit annual reports. 155 Cong. Rec. S12708 (daily ed. Dec. 8, 2009). The bill was referred to the Committee on Environment and Public Works.

  • S. 2852 (Begich, D-Alaska) (energy) would establish, within NOAA, an integrated and comprehensive ocean, coastal, Great Lakes, and atmospheric research, prediction, and environmental information program to support renewable energy. 155 Cong. Rec. S12804 (daily ed. Dec. 9, 2009). The bill was referred to the Committee on Commerce, Science, and Transportation.

  • S. 2854 (Kohl, D-Wis.) (alternative fuels) would amend the Internal Revenue Code of 1986 to extend and modify the credit for new qualified hybrid motor vehicles. 155 Cong. Rec. S12804 (daily ed. Dec. 9, 2009). The bill was referred to the Committee on Finance.

  • S. 2870 (Inouye, D-Haw.) (fisheries) would establish uniform administrative and enforcement procedures and penalties for the enforcement of the High Seas Driftnet Fishing Moratorium Protection Act and similar statutes. 155 Cong. Rec. S12909 (daily ed. Dec. 10, 2009). The bill was referred to the Committee on Commerce, Science, and Transportation.

  • S. 2871 (Inouye, D-Haw.) (fisheries) would make technical corrections to the Western and Central Pacific Fisheries Convention Implementation Act. 155 Cong. Rec. S12909 (daily ed. Dec. 10, 2009). The bill was referred to the Committee on Commerce, Science, and Transportation.

  • H.R. 4190 (Moran, D-Va.) (toxic substances) would amend the Public Health Service Act to authorize the National Institute of Environmental Health Sciences to conduct a research program on endocrine disruption to prevent and reduce the production of, and exposure to, chemicals that can undermine the development of children before they are born and cause lifelong impairment to their health and function. 155 Cong. Rec. H13519 (daily ed. Dec. 3, 2009). The bill was referred to the Committee on Energy and Commerce.

  • H.R. 4192 (Thompson, D-Cal.) (land) would designate the Stornetta Public Lands as an Outstanding Natural Area to be administered as a part of the National Landscape Conservation System. 155 Cong. Rec. H13519 (daily ed. Dec. 3, 2009). The bill was referred to the Committee on Natural Resources.

  • H.R. 4200 (Chu, D-Cal.) (water) would prepare a feasibility study and implement demonstration projects to restore the San Gabriel River Watershed in California. 155 Cong. Rec. H13519 (daily ed. Dec. 3, 2009). The bill was referred to the Committee on Natural Resources.

  • H.R. 4202 (Edwards, D-Tex.) (infrastructure) would establish centers of excellence for green infrastructure. 155 Cong. Rec. H13519 (daily ed. Dec. 3, 2009). The bill was referred to the Committee on Transportation and Infrastructure and the Committee on Science and Technology.

  • H.R. 4206 (Meek, D-Fla.) (deforestation) would authorize the Secretary of Agriculture to provide assistance to the Government of Haiti to end within five years the deforestation in Haiti and to restore within 30 years the extent of tropical forest cover to 1990 levels. 155 Cong. Rec. H13519 (daily ed. Dec. 3, 2009). The bill was referred to the Committee on Foreign Affairs.

  • H.R. 4209 (Teague, D-N.M.) (oil and gas) would amend the Internal Revenue Code of 1986 to suspend for an additional year the taxable income limit on percentage depletion for oil and natural gas from marginal wells. 155 Cong. Rec. H13520 (daily ed. Dec. 3, 2009). The bill was referred to the Committee on Ways and Means.

  • H.R. 4215 (Rehberg, R-Mont.) (toxins) would prohibit the inclusion of brucella abortus in certain lists of dangerous biological agents and toxins. 155 Cong. Rec. H13550 (daily ed. Dec. 7, 2009). The bill was referred to the Committees on Energy and Commerce and the Committee on Agriculture.

  • H.R. 4226 (Reichert, R-Wash.) (energy) would amend the Internal Revenue Code of 1986 to improve and extend certain energy-related tax provisions. 155 Cong. Rec. H13627 (daily ed. Dec. 8, 2009). The bill was referred to the Committee on Ways and Means.

  • H.R. 4227 (Schrader, D-Or.) (energy) would authorize the Secretary of Agriculture to provide loans to support the conversion of energy generation or heating and cooling systems to the use of renewable biomass and to support the installation of new equipment to use renewable biomass for such systems. 155 Cong. Rec. H13627 (daily ed. Dec. 8, 2009). The bill was referred to the Committee on Agriculture.

  • H.R. 4228 (Alexander, R-La.) (National Forests) would require the Forest Service to accommodate, to the extent consistent with the management objectives and limitations applicable to the National Forest System lands at issue, individuals with mobility disabilities who need to use a power-driven mobility device for reasonable access to such lands. 155 Cong. Rec. H13627 (daily ed. Dec. 8, 2009). The bill was referred to the Committee on Agriculture and the Committee on Natural Resources.

  • H.R. 4233 (Herseth Sandlin, D-S.D.) (Healthy Forests Restoration Act) would amend the Healthy Forests Restoration Act of 2003 to expand the areas of federal land on which hazardous fuel reduction projects may be conducted under that Act and add protection of infrastructure in rural communities as an additional purpose of that Act. 155 Cong. Rec. H13628 (daily ed. Dec. 8, 2009). The bill was referred to the Committee on Agriculture and the Committee on Natural Resources.

  • H.R. 4242 (Moran, R-Kan.) (oil refining) would amend the Internal Revenue Code of 1986 to provide incentives for used oil re-refining. 155 Cong. Rec. H13628 (daily ed. Dec. 8, 2009). The bill was referred to the Committee on Ways and Means.

  • H.R. 4243 (Sanchez, D-Cal.) (bonds) would permit the issuance of tax-exempt bonds for air and water pollution control facilities. 155 Cong. Rec. H13628 (daily ed. Dec. 8, 2009). The bill was referred to the Committee on Ways and Means.

  • H.R. 4245 (Sestak, D-Pa.) (water) would authorize the Secretary of the Army to provide assistance relating to water resource protection and development in Pennsylvania. 155 Cong. Rec. H13628 (daily ed. Dec. 8, 2009). The bill was referred to the Committee on Transportation and Infrastructure.

  • H.R. 4246 (Walz, D-Minn.) (alternative fuels) would amend the Internal Revenue Code of 1986 to extend the alternative fuels credit for liquefied petroleum gas through 2010. 155 Cong. Rec. H13628 (daily ed. Dec. 8, 2009). The bill was referred to the Committee on Ways and Means.

  • H.R. 4252 (Baca, D-Cal.) (water) would direct the Secretary of the Interior to conduct a study of water resources in the Rialto-Colton Basin in the state of California. 155 Cong. Rec. H13628 (daily ed. Dec. 8, 2009). The bill was referred to the Committee on Natural Resources.

  • H.R. 4257 (Titus, D-Nev.) (energy) would amend the Energy Policy Act of 2005 relating to contracts for federal purchases of renewable energy. 155 Cong. Rec. H13628 (daily ed. Dec. 8, 2009). The bill was referred to the Committee on Oversight and Government Reform.

  • H. Res. 945 (Lamborn, R.-Colo.) (climate) would express the sense of the House of Representatives regarding the conditions for the United States becoming a signatory to or negotiating any international agreement on greenhouse gas emissions under the United Nations Framework Convention on Climate Change. 155 Cong. Rec. H13520 (daily ed. Dec. 3, 2009). The bill was referred 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:

















Maine Nevada Texas
Maryland New Jersey Utah
Minnesota North Carolina Virginia
Missouri Ohio Washington

 


MAINE


Air:



  • The Department of Environmental Protection will hold a public hearing on proposed amendments to Me. Code R. §161, Graphic Arts–Offset Lithography and Letterpress Printing. This regulation would require all category sources to determine their emission levels and implement reasonable options for keeping such emissions at a minimum in a cost effective way, including control technology approaches, volatile organic compound and composite vapor pressure limits, and work practice standards. The hearing will be January 7, 2010. See http://www.maine.gov/dep/air/regulations/proposed.htm

MARYLAND


Water:



MINNESOTA


Toxic Substances:



  • The Minnesota Pollution Control Agency proposed amendments to Minn. R. 7150.0010, Applicability; Minn. R. 7150.0100, Performance Standards for UST Systems; Minn. R. 7150.0205, Design and Construction; Minn. R. 7150.0211, Class A, B, and C Operator Requirements; Minn. R. 7150.0215, Operation and Maintenance of Cathodic Protection; Minn. R. 7150.0300, Release Detection; Minn. R. 7150.0340, Methods of Release Detection for Piping; Minn. R. 7150.0400, Temporary Closure; Minn. R. 7150.0410, Permanent Closure and Change in Status to Storage of Non-Regulated Substances; Minn. R. 7150.0420, Site Assessment; and Minn. R. 7150.0450, Reporting and Record Keeping. The agency will not hold a public hearing unless it receives 25 or more requests to do so. See http://www.comm.media.state.mn.us/bookstore/stateregister/34_23.pdf (pp. 809-817)

MISSOURI


Air:



  • The Department of Natural Resources adopted amendments to Mo. Code Regs. Ann. tit. 10, §10-6.050, Start-up, Shutdown, and Malfunction Conditions. This rule, applicable to all installations in Missouri, provides the owner or operator of an installation the opportunity to submit data regarding conditions that result in excess emissions. See http://www.sos.mo.gov/adrules/moreg/current/2009/v34n24/v34n24a.pdf (pp. 2595-96)

NEVADA


Air:



  • The State Environmental Commission adopted amendments to Nev. Admin. Code §445B.221, relating to air pollution. The amendments revise provisions governing the adoption by reference of certain federal regulations and adopt by reference certain standards of ASTM International. See http://www.leg.state.nv.us/register/2009Register/R088-09A.pdf

NEW JERSEY


Toxic Substances:



  • The Department of Environmental Protection adopted emergency amendments to N.J. Admin. Code §§7:1E, Discharge of Petroleum and Other Hazardous Substances (DPOHS) rules; 7:1I, Processing of Damage Claims Pursuant to the Sanitary Landfill Facility Closure and Contingency Fund Act rules; 7:1J, Processing of Damage Claims Pursuant to the Spill Compensation and Control Act rules; 7:7A, Freshwater Wetlands Protection Act rules; 7:8, Stormwater Management rules; 7:9C, Ground Water Quality Standards; 7:14A, New Jersey Pollutant Discharge Elimination System; 7:14B, UST Rules; 7:22, Financial Assistance Programs to Environmental Infrastructure Facilities rules; 7:26B, Industrial Site Remediation Act rules; 7:26C, Administrative Requirements for the Remediation of Contaminated Sites rules; 7:26D, Remediation Standards rules; 7:26E, Technical Requirements for Site Remediation rules; 7:38, Highlands Water Protection and Planning Area rules; and 7:45, Rules for the Review Zone of the Delaware and Raritan Canal State Park. See http://www.nj.gov/dep/rules/adoptions/adopt_091207a.pdf

NORTH CAROLINA


Air:



  • The Department of Environment and Natural Resources adopted amendments to 15A N.C. Admin. Code 02D.0405, Ozone; 15A N.C. Admin. Code 02D.0409, PM10 Particulate Matter; 15A N.C. Admin. Code 02D.0410, PM2.5 Particulate Matter; and 15A N.C. Admin. Code 02Q.0518 Final Permit Action. See http://www.ncoah.com/rules/register/Volume24Issue11December12009.pdf (pp. 853-54, 856)

Land Use:



Water:



OHIO


Air:



Water:



  • The Ohio Environmental Protection Agency will hold a public hearing on proposed amendments to Ohio Admin. Code 3745:81-11, Ohio Admin. Code 3745:81-19 and Ohio Admin. Code 3745:81-26, Primary Drinking Water Rules. The amendments would revise the designation of vulnerability to beta/photon radioactivity contamination from sources identified within a one mile radius to those within the source water assessment and protection area; update references to more recent versions of ANSI/NSF standards; make corrections required by U.S. EPA for primacy; and eliminate reference to past dates and update addresses. The hearing will be December 29, 2009. See http://www.registerofohio.state.oh.us/pdfs/phn/3745_NO_95079_20091124_1110.pdf

TEXAS


Air:



  • The Texas Commission on Environmental Quality will hold a public hearing on proposed amendments to 30 Tex. Admin. Code §§101.100 - 101.105, 101.107 - 101.109, 101.112, and 101.114 - 101.122, Failure to Attain Fee. The proposed amendments provide for restrictions for calculations of baseline amounts and fee obligations to remain consistent with volatile organic compound and nitrogen dioxide aggregation allowed for SIP compliance in EPA-approved SIP revisions. Baseline amounts and aggregation methods, once established, will remain fixed throughout the applicability of the penalty fee obligation in order to maintain consistency and transparency for reductions of actual emissions over time, and to prevent gaming. The hearing will be January 5, 2010. Comments are due January 11, 2010. See http://www.sos.state.tx.us/texreg/sos/PROPOSED/30.ENVIRONMENTAL%20QUALITY.html#125

UTAH


Air:



  • The Department of Environmental Quality seeks public comment on proposed amendments to Utah Admin. Code r. 315-7-27, Air Emission Standards for Equipment Leaks. The proposed rule change includes NESHAPs for automobile and light-duty truck surface coating operations at major sources of hazardous air pollutants (HAPs). It requires these operations to meet HAP emission standards reflecting the application of the maximum achievable control technology. Comments are due December 31, 2009. See http://www.rules.utah.gov/publicat/bulletin/2009/20091201/33144.htm

Hazardous & Solid Waste:



  • The Department of Environmental Quality seeks public comment on proposed amendments to Utah Admin. Code r. 315-316, Infectious Waste Requirements. The rule addresses the treatment, storage, transportation, and disposal of infectious waste. Proposed changes to the rule are intended to make the language clear as to who is affected by the rule and to make the rule consistent with current approved operating practices of disposal facilities. Comments are due December 31, 2009. See http://www.rules.utah.gov/publicat/bulletin/2009/20091201/33145.htm

VIRGINIA


Energy:



  • The State Corporation Commission adopted amendments to 20 Va. Admin. Code §5-315, Regulations Governing Net Energy Metering. The amendments would authorize utilities to elect a capacity limit for participation by nonresidential customers in the net energy metering program that exceeds the existing limit of 500 kW; permit customers who are served on time-of-use tariffs that have electricity supply demand charges contained within the electricity supply portion of the time-of-use tariff to participate as customer-generators; provide that a participating customer-generator owns any renewable energy certificate associated with its generation of electricity; and provides for a one-time option to sell the certificates to its supplier at a rate established by the State Corporation Commission, with the utility's costs of acquiring the certificates recoverable under the Renewable Energy Portfolio Standard rate adjustment clause or through the supplier's fuel adjustment clause. See http://legis.state.va.us/codecomm/register/vol26/iss07/p20v5315.html

Toxic Substances:



  • The Department of Agriculture and Consumer Services seeks public comment on proposed amendments to 2 Va. Admin. Code §20-60, Regulations for Pesticide Containers and Containment Under Authority of the Virginia Pesticide Control Act. The regulations would establish standards for container design and residue removal in non-refillable pesticide containers, standards for container design in refillable pesticide containers, standards for repackaging pesticide products into refillable containers and standards for pesticide containment structures. Comments are due January 6, 2010. See http://www.townhall.state.va.us/L/comments.cfm?stageid=5271

WASHINGTON


Water:



  • The Department of Ecology adopted amendments to Wash. Admin. Code §173-517, Quilcene-Snow Instream Resources Protection and Watershed Management Program. This rule sets instream flows, closes or seasonally closes sub-basins to future withdrawals, establishes reserves of water for future use, specifies conditions of use for access to the reserves, and requires metering for all new withdrawals. See http://www.ecy.wa.gov/laws-rules/activity/wac173517.html

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


INTERNATIONAL

WHAT A COPENHAGEN CLIMATE TREATY MIGHT LOOK LIKE


There are so many issues on the table at the Copenhagen U.N. climate conference that politicians from all the major players have already declared there is no hope of reaching a binding legal agreement. But progress is still possible. Participants speak of reaching a "political agreement." Exactly what that would be remains undefined, but it would represent some form of commitment to address global warming that goes beyond mere rhetoric yet falls short of a legally binding treaty. The two-week formal negotiations with representatives from more than 190 nations started last Monday, with the ultimate goal of setting up a mechanism to reduce global greenhouse gases. More than 110 world leaders have said they plan to attend the conference, which is unprecedented for climate talks. The talks kick into high gear the second week, with President Obama flying in for the closing summit. Negotiators hope to agree at least to the shape of a future treaty, setting the stage for talks at a follow-up conference in 2010. For the full story, see http://www.npr.org/templates/story/story.php?storyId=121220373&ft=1&f=1025

CHINA CALLS FOR MORE EMISSIONS CUTS FROM UNITED STATES


Xie Zhenhua, Vice Chairman of China's National Development and Reform Commission and head of China's delegation at the climate talks, said developed nations must commit to cuts of "at least 40 percent" by 2020 from 1990 levels. He said Beijing was aiming for a legally binding treaty from the December 7-18 talks, although hosts Denmark have said that will be impossible.  A successful outcome from the summit largely depends on agreement between the United States and China, which together generate 40 percent of global carbon emissions.  But negotiations have been bogged down for months over who should cut emissions, by how much, and who should pay.  "I do hope that President Obama can bring a concrete contribution to Copenhagen," Xie said in a rare interview.  Asked if he meant something more than Obama has proposed so far--a 3 percent cut from 1990 levels by 2020--Xie said: "Yes. The whole world is watching the United States, and as long as they take on a good leadership role, then I think that we can make a large step forward in combating climate change."  He called for stronger action from rich nations a day after a senior member of his delegation slammed their existing commitments as unambitious and deceptive.  For the full story, see http://www.reuters.com/article/idUSTRE5B83LV20091209

FOUR NATIONS OUTLINE GREEN FUND PLAN FOR U.N. DEAL


Four nations proposed guiding principles for "green funds" last Wednesday, hoping to end deadlock at U.N. talks on ways to manage billions of dollars to help the poor cope with global warming. "Financing will need to be scaled up significantly and urgently, starting fast and rising over time," Australia, Britain, Mexico, and Norway said in a joint submission to the December 7-18 meeting in Copenhagen on a new U.N. climate pact.  They said that at least 50 percent of any public finance should go to helping developing countries adapt to warming such as droughts, floods, or rising sea levels, along with funds to help curb rising emissions. But a document by the four nations did not set any figure for total funds to help developing nations. "We need predictable long-term funding," said Hanne Bjursrom, a Norwegian cabinet minister who heads the Norwegian delegation. "But this isn't a document that says 'this and this is how it should be done.'" She said the paper marked progress because it was proposed by three developed nations with Mexico, one of the richest nations among developing nations. For the full story, see http://www.reuters.com/article/idUSTRE5B81J520091209

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


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