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Weekly Update Volume 39, Issue 36

12/21/2009

LITIGATION

CAA, JURISDICTION:



The D.C. Circuit denied a petition for review of two EPA regulations implementing CAA §209(e), which prohibits states from imposing certain emissions-related regulations on various categories of engines and vehicles. CAA §307(b)(1) provides a 60-day window for challenging EPA regulations, and the group filed suit within 60 days of EPA's decision rejecting their petition for rule amendments. But in National Mining Association v. U.S. Department of the Interior, 70 F.3d 1345 (D.C. Cir. 1995), the court held that an agency's denial of a revision-seeking petition does not allow review of alleged substantive defects in the original rule outside the statutory limitations period running from the rules' original promulgation. Here, the rules were promulgated in 1997. The suit, therefore, is time barred. American Road & Transportation Builders Ass'n v. Environmental Protection Agency, No. 08-1381, 39 ELR 20287 (D.C. Cir. Dec. 11, 2009).


INJUNCTION, OIL & GAS DRILLING:



A district court preliminarily enjoined the U.S. Forest Service from requiring the preparation of a NEPA document as a precondition to allowing private oil and gas rights to be exercised in the Allegheny National Forest as set forth in a settlement agreement. Under the agreement, the Forest Service agreed, in part, to analyze all future drilling proposals on split mineral estates in the Forest under NEPA prior to issuing notices to proceed. Plaintiffs challenge the agreement, characterizing the settlement agreement as a dramatic and arbitrary change in the manner in which the Forest Service and oil and gas drillers had historically interacted in the Forest in dealing with issues concerning private mineral rights. The Forest Service does not possess the regulatory authority that it asserts relative to the processing of oil and gas drilling proposals. Consequently, its involvement in the approval process does not constitute a major federal action requiring NEPA compliance. The Service also failed to provide notice and comment before entering the settlement agreement. Plaintiffs therefore demonstrated a reasonable likelihood of success on the merits of their substantive and procedural claims. They also made a clear showing of irreparable harm as a result of the ban. And the harm experienced by the plaintiffs as a result of the drilling ban is concrete and irreparable, whereas a return to the status quo would not pose a threat to the ability of the Forest Service to adequately protect its surface estate. The court, therefore, preliminarily enjoined the drilling ban. Minard Run Oil Co. v. United States Forest Service, No. 09-125, 39 ELR 20288 (W.D. Pa. Dec. 15, 2009) (McLaughlin, J.).


EQUAL ACCESS TO JUSTICE ACT, ATTORNEYS FEES:



The Ninth Circuit held that environmental groups were not prevailing parties in their action against BLM in which they sought a preliminary injunction against a timber sale and, thus, are not entitled to attorneys fees under the Equal Access to Justice Act. BLM withdrew its challenged decision to conduct a timber sale before a judgment was made. Under the Act, prevailing party status must always rest on a judicial sanction—typically an order of some kind—that materially alters the parties’ legal relationship. Here, BLM withdrew its challenged decision to conduct a timber sale before a judgment was made. Although a stipulation order barred the BLM from exercising its discretion to waive a seasonal restriction on timber sales, it was not material in the context of the relief the groups sought in this lawsuit--an injunction. In addition, a magistrate judge's recommendations on motions for summary judgment had no binding legal effect on the parties since the district court never adopted them. And the court's dismissal of the case on grounds of mootness did not confer prevailing party status on the groups. A lower court's grant of attorneys fees in favor of the groups was therefore reversed and vacated. Klamath Siskiyou Wildlands Center v. United States Bureau of Land Management, No. 08-35463, 39 ELR 20285 (9th Cir. Dec. 15, 2009).


CERCLA, CORPORATE VEIL:



The Second Circuit affirmed a lower court decision that held an energy company liable under CERCLA for costs incurred during the cleanup of two manufactured gas plants operated by a subsidiary of the company's corporate predecessor. The company argued that the lower court erred in concluding that it was derivatively liable under CERCLA as the corporate successor to the subsidiary's former corporate parent. But the court properly pierced the corporate veil between the subsidiary and the parent since the court's factual findings amply supported its conclusion that there was a "direct nexus" between the parent company's domination and coal tar contamination at the plants. Under the facts of the case, a decision to produce gas was, in effect, a decision to pollute, and that decision to cause harm was effectively the parent's. Nor does New York law prohibit a subsidiary corporation from piercing its own corporate veil to reach its parent under the facts of this case. Rochester Gas & Electric Corp. v. GPU Inc., No. 09-0482, 39 ELR 20290 (2d Cir. Dec. 10, 2009).


CERCLA, INSURANCE, DUTY TO DEFEND:



A district court held that an insurance company has a duty to defend the former owners and operators of a nuclear waste facility in EPA's CERCLA action against them for remediation costs associated with the site. The policy contained an endorsement that excluded coverage for environmental cleanup costs. However, the endorsement was not properly issued because it did not strictly comply with the notice requirements set forth in Mass. Gen. Laws ch. 175, § 111A. The endorsement, therefore, does not apply. And although EPA's demand letters do not directly allege any off-site migration, under Massachusetts law, the duty to defend arises even if there is only a possibility of an insured’s being found liable for a claim. Here, the only impediments to liability would arise if the state decides that the threat of harm to adjacent property is insufficient in and of itself to trigger liability and if the EPA concludes that groundwater migration of nuclear and other contaminants has not in fact occurred. Yet EPA has taken the position that such migration has likely already taken place. The insurer, therefore, has a duty to defend the owners and operators unless or until a competent tribunal enters a conclusive finding that no migration of contaminants from the site has occurred or is imminent. Whitaker Corp. v. American Nuclear Insurers, No. 07-10515, 39 ELR 20289 (D. Mass. Dec. 1, 2009) (Stearns, J.).


CALIFORNIA ENVIRONMENTAL QUALITY ACT, LAND USE:



A California appellate court reversed in part and affirmed in part a lower court decision denying a citizen group's petition to set aside an amendment to a county's general land use plan that altered the definition of "net acreage." Substantial evidence supports a finding that the amendment could have a significant impact on the environment. The county, therefore, should have prepared an environmental impact report under the California Environmental Quality Act before adopting the amendment. All other aspects of the petition, however, were properly denied. Inyo Citizens for Better Planning v. Inyo County Board of Supervisors, No. E046646, 39 ELR 20286 (Cal. App. 4th Dist. Nov. 20, 2009).


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


THE FEDERAL AGENCIES

Note: Citations below are to the Federal Register (FR).


AIR:



  • EPA 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 Proposals: California (animal matter and volatile organic compound emissions for the San Joaquin Valley air pollution control district) 74 FR 67154 (12/18/09); (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).

LAND USE:



  • The USDA reinstated the National Forest System Land and Resource Management Planning Rule of November 9, 2000, to comply with a June 30, 2009, federal district court order. 74 FR 67059 (12/18/09).

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.).


Committee Action


  • H.R. 2190 (TSCA) was reported by the Committee on Energy and Commerce. H. Rep. No. 111-381, 155 Cong. Rec. H15498 (daily ed. Dec. 16, 2009). The bill would amend TSCA to phase out the use of mercury in the manufacture of chlorine and caustic soda.

Bills Introduced


  • 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.

  • S. 2877 (Cantwell, D-Wash.) (energy) would direct the Secretary of the Treasury to establish a program to regulate the entry of fossil carbon into commerce in the United States to promote clean energy jobs and economic growth and avoid interference with the climate of the Earth. 155 Cong. Rec. S13033 (daily ed. Dec. 11, 2009). The bill was referred to the Committee on Finance.

  • S. 2891 (Reid, D-Nev.) (energy) would further allocate and expand the availability of hydroelectric power generated at Hoover Dam. 155 Cong. Rec. S13319 (daily ed. Dec. 16, 2009). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 2892 (Shelby, R-Ala.) (National Heritage Area) would establish the Alabama Black Belt National Heritage Area. 155 Cong. Rec. S13319 (daily ed. Dec. 16, 2009). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 2895 (Wyden, D-Or.) (forests) would restore forest landscapes, protect old growth forests, and manage national forests in the eastside forests of the state of Oregon. 155 Cong. Rec. S13382 (daily ed. Dec. 17, 2009). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 2897 (Bennet, D-Colo.) (energy) would establish incentives to increase the energy efficiency of federally assisted housing. 155 Cong. Rec. S13382 (daily ed. Dec. 17, 2009). The bill was referred to the Committee on Banking, Housing, and Urban Affairs.

  • S. 2899 (Feinstein, D-Cal.) (solar energy) would amend the American Recovery and Reinvestment Act of 2009 and the Internal Revenue Code of 1986 to provide incentives for the development of solar energy. 155 Cong. Rec. S13382 (daily ed. Dec. 17, 2009). The bill was referred to the Committee on Finance.

  • S. 2900 (Gillibrand, D-N.Y.) (energy) would establish a research, development, and technology demonstration program to improve the efficiency of gas turbines used in combined cycle and simple cycle power generation systems. 155 Cong. Rec. S13383 (daily ed. Dec. 17, 2009). The bill was referred to the Committee on Energy and Natural Resources.

  • H.R. 4276 (Lujan, D-N.M.) (land) would authorize leases of up to 99 years for lands held in trust for the Ohkay Owingeh Pueblo. 155 Cong. Rec. H14743 (daily ed. Dec. 10, 2009). The bill was referred to the Committee on Natural Resources.

  • H.R. 4285 (Bono Mack, R-Cal.) (water) would authorize the Pechanga Band of Luiseno Mission Indians Water Rights Settlement. 155 Cong. Rec. H14826 (daily ed. Dec. 11, 2009). The bill was referred to the Committee on Natural Resources.

  • H.R. 4289 (DeGette, D-Colo.) (wilderness) would designate certain lands in the state of Colorado as components of the National Wilderness Preservation System. 155 Cong. Rec. H14826 (daily ed. Dec. 11, 2009). The bill was referred to the Committee on Natural Resources.

  • H.R. 4291 (Sanchez, D-Cal.) (appropriations) would make emergency supplemental appropriations for fiscal year 2010 for the National Park Service, U.S. Forest Service, and Federal Highway Administration for public land rehabilitation, road projects, and job creation. 155 Cong. Rec. H14826 (daily ed. Dec. 11, 2009). The bill was referred to the Committee on Appropriations and the Committee on the Budget.

  • H.R. 4305 (Meek, R-Fla.) (energy) would amend the Internal Revenue Code of 1986 to provide an energy tax credit for transformers designed to use soybean-based electrical transformer fluid. 155 Cong. Rec. H14877 (daily ed. Dec. 11, 2009). The bill was referred to the Committee on Ways and Means.

  • H.R. 4332 (McKeon, R-Cal.) (contracts) would provide to the Secretary of Interior a mechanism to cancel two BLM mineral contracts, CA-20139 and CA-22901. 155 Cong. Rec. H15498 (daily ed. Dec. 16, 2009). The bill was referred to the Committee on Natural Resources and the Committee on Ways and Means.

  • H.R. 4344 (McCotter, R-Mich.) (carbon dioxide emissions) would prohibit EPA from obligating any amounts for the regulation of carbon dioxide emissions. 155 Cong. Rec. H15499 (daily ed. Dec. 16, 2009). The bill was referred to the Committee on Energy and Commerce.

  • H.R. 4345 (Davis, D-Ala.) (National Heritage Area) would establish the Alabama Black Belt National Heritage Area. 155 Cong. Rec. H15499 (daily ed. Dec. 16, 2009). The bill was referred to the Committee on Natural Resources.

  • H.R. 4349 (Napolitano, D-Cal.) (energy) would further allocate and expand the availability of hydroelectric power generated at Hoover Dam. 155 Cong. Rec. H15499 (daily ed. Dec. 16, 2009). The bill was referred to the Committee on Natural Resources.

  • H.R. 4352 (McCarthy, R-Cal.) (FWPCA) would amend the FWPCA to authorize additional assistance for projects to construct publicly owned treatment works that serve small and disadvantaged communities. 155 Cong. Rec. H15499 (daily ed. Dec. 16, 2009). The bill was referred to the Committee on Transportation and Infrastructure.

  • H.R. 4359 (Boozman, R-Ariz.) (energy) would amend title 38, U.S. Code, to authorize the Secretary of Veterans Affairs to guarantee housing loans for the construction of energy efficient dwellings. 155 Cong. Rec. H15499 (daily ed. Dec. 16, 2009). The bill was referred to the Committee on Veterans' Affairs.

  • H.R. 4363 (Capps, D-Cal.) (aquaculture) would establish a regulatory system and research program for sustainable offshore aquaculture in the U.S. exclusive economic zone. 155 Cong. Rec. H15499 (daily ed. Dec. 16, 2009). The bill was referred to the Committee on Natural Resources.

  • H.R. 4374 (Herseth-Sandlin, D-S.D.) (energy) would amend the Internal Revenue Code of 1986 to extend the credit for electricity produced from biomass, to provide credit rate parity under such credit, and to exclude certain unprocessed fuels from the cellulosic biofuel producer credit. 155 Cong. Rec. H15499 (daily ed. Dec. 16, 2009). The bill was referred to the Committee on Ways and Means.

  • H.R. 4384 (Matheson, D-Utah) (Utah Navaho Trust) would establish the Utah Navajo Trust Fund Commission. 155 Cong. Rec. H15501 (daily ed. Dec. 16, 2009). The bill was referred to the Committee on Natural Resources.

  • H.R. 4395 (Platts, R-Pa.) (National Parks) would revise the boundaries of the Gettysburg National Military Park to include the Gettysburg Train Station. 155 Cong. Rec. H15501 (daily ed. Dec. 16, 2009). The bill was referred to the Committee on Natural Resources.

  • H.R. 4396 (Pomeroy, D-N.D.) (CAA) would amend the CAA to provide that greenhouse gases are not subject to the Act. 155 Cong. Rec. H15501 (daily ed. Dec. 16, 2009). The bill was referred to the Committee on Energy and Commerce.

  • H.R. 4397 (Sablan, D-N.M.I.) (natural resources) would clarify the transitional status of certain aliens not provided for in subtitle A of title VII of the Consolidated Natural Resources Act of 2008. 155 Cong. Rec. H15501 (daily ed. Dec. 16, 2009). The bill was referred to the Committee on Natural Resources and the Committee on the Judiciary.

  • H.R. 4398 (Salazar, D-Colo.) (National Forests) would address public safety risks in western states by facilitating insect and disease infestation treatment of National Forest System land and certain adjacent land and o make permanent the good-neighbor authority for Colorado and stewardship contracting authorities available to the Forest Service. 155 Cong. Rec. H15501 (daily ed. Dec. 16, 2009). The bill was referred to the Committee on Agriculture and the Committee on Natural Resources.

  • H.R. 4399 (Serrano, D-N.Y.) (electric vehicles) would further the national deployment of electric drive vehicles to strengthen and enhance the national power grid through the integration of such vehicles. 155 Cong. Rec. H15501 (daily ed. Dec. 16, 2009). The bill was referred to the Committees on Oversight and Government Reform, Energy and Commerce, Transportation and Infrastructure, and Science and Technology.

  • H.R. 4401 (Smith, D-Wash.) (Native Americans) would amend the Act of August 9, 1955, to modify a provision relating to leases involving certain Indian tribes. 155 Cong. Rec. H15501 (daily ed. Dec. 16, 2009). The bill was referred to the Committee on Natural Resources.

  • H. J. Res. 66 (Moran, R-Kan.) (greenhouse gases) would disapprove the EPA Administrator's endangerment findings for greenhouse gases under CAA §202(a). 155 Cong. Rec. H15501 (daily ed. Dec. 16, 2009). The bill was referred to the Committee on Energy and Commerce.

  • H. Res. 985 (Boozman, R-Ariz.) (watersheds) would direct the Administrator of EPA to transmit to the House of Representatives all information in the possession of the Administrator relating to nutrient management of the Illinois River Watershed in Arkansas and Oklahoma. 155 Cong. Rec. H15502 (daily ed. Dec. 16, 2009). The bill was referred to the Committee on Transportation and Infrastructure.

  • H. Res. 989 (Inslee, D-Wash.) (oceans) would express the sense of the House of Representatives that the United States should adopt national policies and pursue international agreements to prevent ocean acidification, study the impacts of ocean acidification, and address the effects of ocean acidification on marine ecosystems and coastal economies. 155 Cong. Rec. H15502 (daily ed. Dec. 16, 2009). The bill was referred to the Committee on Natural Resources.

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


IN THE STATES

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


The states below have updates this week:













Alaska Florida Maine
California Iowa Minnesota
Colorado Kentucky New Jersey

ALASKA


Air:



  • The Department of Environmental Conservation seeks public comment on proposed adoption of Alaska Admin. Code tit. 18, §54, Requirements for the Distribution and Receipt of Financial Aid. The proposed regulations would provide the regulatory authority to administer and distribute federal and other grant money for the primary purpose of implementing a statewide air quality pollution prevention and control program in Alaska. These new regulations would establish an application process and standards of eligibility for the receipt of these grant funds by municipalities, boroughs, air authorities, nonprofit groups, federally recognized tribes located in Alaska, and private contractors licensed by the state of Alaska. Comments are due January 18, 2010. See http://notes4.state.ak.us/pn/pubnotic.nsf/cc52605f7c156e7a8925672a0060a91b/e7ff98a76871cc2c8925768c007ce8aa?OpenDocument

Hazardous & Solid Waste:



  • The Department of Environmental Conservation seeks public comment on proposed amendments to Alaska Admin. Code tit. 18, §60, Solid Waste Management. The amendments modify disposal request requirements, clarify the definition of polluted soil, require that a permit applicant prepare and submit a solid waste management plan prior to submitting a permit application, and revise the fees to more accurately reflect costs to the department. Comments are due January 15, 2010. See http://notes4.state.ak.us/pn/pubnotic.nsf/cc52605f7c156e7a8925672a0060a91b/b21942ed381903e38925768c007ec4bd?OpenDocument

CALIFORNIA


Air:



  • The Air Resources Board will hold a public hearing on proposed amendments to Cal. Code Regs. tit. 13, §§2451, 2452, 2453, 2456, 2458, 2460, 2461, and 2462, Statewide Portable Equipment Registration Program; §§93116.1, 93116.2, and 93116.3, Airborne Toxic Control Measure (ATCM) for Diesel-Fueled Portable Engines; §2449, In-Use Off-Road Diesel-Fueled Vehicles; and §2025, In-Use On-Road Diesel-Fueled Vehicles. These proposed amendments would extend the deadline for replacing older engines for smaller companies, provide for the eligibility of certain types of engines, and modify recordkeeping and reporting requirements. These amendments will also subject two-engine water well drilling rigs to the Off-Road Regulation and exempt them from the Portable Engine ATCM and On-Road Regulation. The hearing will be January 28, 2010. See http://www.arb.ca.gov/regact/2010/perp2010/perp2010.htm

  • The Air Resources Board will hold a public hearing on proposed amendments to Cal. Code Regs. tit. 13, §§2700, 2701, 2702, 2703, 2704, 2705, 2706, 2707, and 2711, Verification Procedure, Warranty, and In-Use Compliance Requirements for In-Use Strategies to Control Emissions from Diesel Engines. The proposed amendments would revise, clarify, and make specific requirements that pertain to the process for obtaining verification of devices or strategies to control emissions from diesel engines. The hearing will be January 28, 2010. See http://www.arb.ca.gov/regact/2010/verdev2010/verdev2010.htm

COLORADO


Air:



FLORIDA


Hazardous & Solid Waste:



  • The Department of Health has begun rulemaking on proposed amendments to Fla. Admin. Code Ann. r. 64E-6.001, General; 64E-6.003, Permits; 64E-6.004, Application for System Construction Permit; 64E-6.010, Septage and Food Establishment Sludge; 64E-6.0101, Portable Restrooms and Portable or Stationary Holding Tanks; 64E-6.012, Standards for the Construction, Operation, and Maintenance of Aerobic Treatment Units; 64E-6.013, Construction Materials and Standards for Treatment Receptacles; 64E-6.015, Permitting and Construction of Repairs; 64E-6.019, Requirements for Registration; 64E-6.023, Certification of Partnerships and Corporations; 64E-6.026, Applications for Innovative System Permits and System Construction Permits; 64E-6.027, Permits; and 64E-6.028, Location and Installation. The amendments would incorporate forms used in the administration of the onsite sewage program. See https://www.flrules.org/Faw/FAWDocuments/FAWVOLUMEFOLDERS2009/3548/3548doc.pdf (pp. 6148-49)

Water:



  • The South Florida Water Management District proposed amendments to Fla. Admin. Code Ann. r. 40E-2.091, Publications Incorporated by Reference; 40E-10.021, Definitions; 40E-10.031, Water Reservations Implementation; 40E-10.041, Water Reservation Areas: Lower West Coast Planning Area; and 40E-10.051, Water Reservation Areas. The proposed rule amendments would establish criteria to implement a water reservation for the North Fork of the St. Lucie River to protect Comprehensive Everglades Restoration Plan project water needed for the protection of fish and wildlife. See https://www.flrules.org/Faw/FAWDocuments/FAWVOLUMEFOLDERS2009/3549/3549doc.pdf (pp. 6262-270)

IOWA


Land Use:



  • The Environmental Protection Commission will hold public hearings on proposed amendments to Iowa Admin. Code r. 65, Animal Feeding Operations. The proposed amendments would update the rules to conform with statutory amendments pertaining to open feedlot stockpiles, dry manure stockpiling, application of manure on snow-covered and frozen ground, and dry-bedded confinement feeding operations. The hearings will be held January 12, 13, 15, 20, and February 1, 2010. See http://www.legis.state.ia.us/aspx/ACODOCS/DOCS/12-16-2009.Bulletin.pdf (pp. 1534- 587)

Water:



  • The Environmental Protection Commission will hold public hearings on proposed amendments to Iowa Admin. Code r. 61, Water Quality Standards, Iowa Administrative Code. The proposed amendment would establish criteria for transparency and for chlorophyll-a to protect recreational uses in lakes with a mean depth of three meters or greater. The criteria will be used to determine if the water quality in a lake can fully support recreational uses such as swimming, water skiing, and boating. The hearings will be January 11, 13, 14, and 21, 2010. See http://www.legis.state.ia.us/aspx/ACODOCS/DOCS/12-16-2009.Bulletin.pdf (pp. 1532-34)

KENTUCKY


Air:



MAINE


Air:



  • The Department of Environmental Protection will hold a public hearing on proposed amendments to Code Me. R. §123, Control of Volatile Organic Compounds (VOCs) from Paper, Film, and Foil Coating Operations. The amendments would update the rule, which currently only regulates surface coating of paper, to include requirements for film and foil coating operations. Work practices for paper, film, and foil coating operations to reduce VOC emissions are also proposed. The hearing will be January 9, 2010. See http://www.maine.gov/dep/air/regulations/proposed.htm

  • The Department of Environmental Protection seeks public comment on proposed amendments to Code Me. R. §150, Control of Emissions From Outdoor Wood Boilers; and §160, Outdoor Wood Boiler Replacement and Buy Back Program. The amendments would establish particulate emission standards, siting criteria, labeling requirements, and a replacement and buy back program for outdoor wood boilers, including outdoor pellet boilers. Comments are due January 19, 2009. See http://www.maine.gov/dep/air/regulations/proposed.htm

MINNNESOTA


Water:



  • The Department of Natural Resources seeks public comment on proposed amendments to Minn. R. 6120 and Minn. R. 4410, which govern the Mississippi River Corridor Critical Area (MRCCA). The amendments would establish districts within the MRCCA as well as minimum guidelines and standards for development within the districts. The proposed rules are also intended to provide for management of the MRCCA as a multi-purpose resource in a way that: conserves scenic, environmental recreational, mineral, economic, cultural, and historic resources and functions; maintains the river channel for transportation including barging and fleeting areas; provides for continuation and development of a variety of urban uses, including industrial, commercial, and residential; uses the river for water supply and receiving water for properly treated sewage, stormwater, and industrial waste effluents; and protects biological and ecological functions of the corridor. Comments are due March 22, 2010. See http://www.comm.media.state.mn.us/bookstore/stateregister/34_24.pdf (pp. 8484-49)

NEW JERSEY


Water:



  • The Department of Environmental Protection will hold a public hearing on proposed amendments to N.J. Admin. Code tit. 7:9B, §§1.4, 1.5(g), and 1.14(d), Surface Water Quality Standards. The amendments would recodify the numeric phosphorus criteria of 0.1 mg/L for non-tidal streams and 0.05 mg/L phosphorus criteria for lakes, ponds, and reservoirs. The hearing will be January 27, 2010. See http://www.nj.gov/dep/rules/notices/122109a.html

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


INTERNATIONAL

CLIMATE TALKS END WITH BARE-MINIMUM AGREEMENT


U.N. climate talks ended with a bare-minimum agreement on Saturday when delegates "noted" an accord struck by the United States, China, and other emerging powers that falls far short of the conference's original goals. "Finally we sealed a deal," U.N. Secretary General Ban Ki-moon said. "The 'Copenhagen Accord' may not be everything everyone had hoped for, but this ... is an important beginning." The accord--weaker than a legally binding treaty and weaker even than the 'political' deal many had foreseen--left much to the imagination. It set a target of limiting global warming to a maximum 2 degrees Celsius over pre-industrial times--seen as a threshold for dangerous changes such as more floods, droughts, mudslides, sandstorms and rising seas. But it failed to say how this would be achieved. It held out the prospect of $100 billion in annual aid from 2020 for developing nations but did not specify precisely where this money would come from. And it pushed decisions on core issues such as emissions cuts into the future. "This basically is a letter of intent ... the ingredients of an architecture that can respond to the long-term challenge of climate change, but not in precise legal terms. That means we have a lot of work to do on the long road to Mexico," said Yvo de Boer, head of the U.N. Climate Change Secretariat. Another round of climate talks is scheduled for November 2010 in Mexico. Negotiators are hoping to nail down then what they failed to achieve in Copenhagen--a new treaty to replace the Kyoto Protocol. For the full story, visit http://www.reuters.com/article/idUSGEE5BB07F20091220.

COPENHAGEN'S ONE REAL ACCOMPLISHMENT: GETTING SOME MONEY FLOWING


The Copenhagen Accord set no goal for conclusion of a binding international treaty, leaving months, and perhaps years, of additional negotiations before it emerges in any internationally enforceable form. But money in notable quantities should, in principle, start flowing next year. The accord was "a big step forward" since talks on climate change in Bali, Indonesia, in 2007, when countries committed to control emissions but offered no financial support mechanisms, Ban Ki-moon, the U.N. Secretary General, said on Saturday. "This time we have $100 billion a year," Mr. Ban said, and "$100 billion a year is significant big money." To Kumi Naidoo, the executive director of Greenpeace, the environmental group, the funding pledge was one of the few "plus points" in an otherwise grossly inadequate document. The accord calls for the establishment of the Copenhagen Green Climate Fund to support immediate action to help curb emissions and to help communities adapt to the effects of global warming. An initial, fast-start fund worth $10 billion annually would operate from 2010 to 2012. For long-term finance, developed countries agreed to support a goal of jointly mobilizing $100 billion a year by 2020 to address the needs of developing countries. Mr. Naidoo said the long-term fund needed to be closer to $140 billion annually by 2020 to be truly effective. But he said that the decision to raise and disburse hundreds of billions of dollars to help the most vulnerable nations showed that "the principle that poor countries with least responsibility for climate change need resources for adaptation has been recognized." But Oxfam, the anti-poverty campaign group, immediately warned that the offers were full of "caveats and loopholes," raising questions about whether the money would ever be disbursed in adequate amounts. For the full story, visit http://www.nytimes.com/2009/12/21/business/energy-environment/21iht-green21.html?ref=earth.

CARBON CAPTURE RULED OUT OF UN CLEAN PROJECTS LIST


Carbon capture and storage (CCS) will not be added to the list of technologies that industrial countries can invest in to offset their emissions, after some countries expressed their reservations at the UN climate talks in Copenhagen. International climate negotiators have been debating whether to accept capturing carbon dioxide from industrial installations and storing it underground as a means of contributing to emission cuts. But they delayed any decisions until next year at the earliest, as no consensus was reached. Some countries have proposed to add CCS to the UN-backed Clean Development Mechanism, which allows companies in rich countries to fulfil part of their climate obligations by investing in emission reductions in developing countries. But others "have registered concerns regarding the implications of this possible inclusion and highlighted a number of unresolved issues," read a draft paper from the UN Framework Convention on Climate Change. For the full story, see http://www.euractiv.com/en/climate-change/carbon-capture-ruled-un-clean-projects-list/article-188403

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


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