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Weekly Update Volume 39, Issue 4

02/02/2009

LITIGATION

TARIFF ACT, LOW ENRICHED URANIUM:



The U.S. Supreme Court held that the Tariff Act's antidumping duties on foreign merchandise sold in the United States at less than its fair value apply to imports of low enriched uranium obtained by domestic utilities in return for cash and unenriched uranium delivered to a foreign enricher. Section 731 of the Tariff Act (19 U.S.C. §1673) addresses foreign merchandise sold in the United States but does not touch international sales of services. Although the parties' contracts call these transactions "sales" of uranium enrichment services, the U.S. Commerce Department determined they were sales of foreign merchandise subject to the antidumping provision. The Department's interpretation reflects a permissible interpretation and application of §731. Where a domestic buyer's cash and an untracked, fungible commodity are exchanged with a foreign contractor for a substantially transformed version of the same commodity, the Commerce Department may reasonably treat the transaction as the sale of a good under §1673. Justice Souter delivered the opinion for a unanimous Court. United States v. Eurodif S.A., No. 07-1059, 39 ELR 20020 (U.S. Jan. 26, 2009).


CERCLA, CONSTITUTIONAL LAW:



A district court held that EPA's pattern and practice of administering CERCLA §106 does not violate the Due Process clause of the Fifth Amendment. CERCLA §106 allows EPA to issue a unilateral administrative order (UAO) requiring a PRP to clean up a site where the Agency finds that there is an imminent and substantial endangerment to the public health or welfare or the environment due to an actual or threatened release of a hazardous substance from a facility. An electric company argued that §106, as administered, offends both Ex parte Young, 209 U.S. 123 (1908), and Matthews v. Eldridge, 424 U.S. 319 (1976). EPA's practices, however, are not unconstitutionally coercive under Ex parte Young. No matter what EPA arguably does or seeks, a judge ultimately decides what, if any, penalty to impose. Nor does EPA's pattern and practice regarding UAOs prevent federal courts from exercising their discretion. Nor does §106 deprive PRPs of protected liberty and property interests without a hearing in violation of Matthews. The company argued that due process requires a trial-type hearing for non-emergency, "adjudicatory" agency decisions. But the company failed to cite to any cases holding that trial-type hearings are required for adjudicatory decisions. Accordingly, its proposition fails. General Electric v. Jackson, No. 00-2855, 39 ELR 20022 (D.D.C. Jan. 27, 2009) (Bates, J.).


FOIA, GROUNDWATER:



A district court granted in part and denied in part cross-motions for summary judgment in a company's FOIA suit seeking to compel the production of two EPA documents about water contamination models the Agency is using at a hazardous waste site in Rialto, California. One of the documents, concerning groundwater flow, is still in draft form. Accordingly, EPA properly withheld that document because draft documents generally are exempt from disclosure under the deliberative process privilege. EPA, however, may not withhold its document about the vadose zone model, which is used to assess perchlorate at the site. EPA shared the results of the vadose zone model with a state regional board, and the board then shared the results with the company. By sharing the results, EPA waived any privilege that it might otherwise have had. FOIA Exemption 5, therefore, does not apply. Nor does FOIA Exemption 7(a) apply since release of the vadose zone model would not threaten the integrity of EPA's enforcement efforts. Goodrich Corp. v. U.S. Environmental Protection Agency, No. 08-1625, 39 ELR 20023 (D.D.C. Jan. 16, 2009) (Bates, J.).


CALIFORNIA ENVIRONMENTAL QUALITY ACT, MITIGATION IMPACT FEES:



A California appellate court reversed a lower court's summary judgment that a county's approval of a congregate care construction project did not violate the California Environmental Quality Act (CEQA) or its general land use plan. The county enacted a program that requires developers in a defined geographic area to pay a rare plant impact fee. Under the program, the money collected, along with money from other sources, would be used to create professionally managed rare plant habitats. Here, the county determined that because the developer of the project paid the fee, it was entitled to a mitigated negative declaration (MND) as to plants and did not need to prepare an environmental impact report (EIR). The impact fee, however, does not eliminate the need to evaluate and address the impacts of a particular project on plants within that area. Moreover, there is substantial evidence in the record to raise a fair argument that the project may have significant environmental impacts on one or more endangered plant species. Accordingly, the county should not have certified the MND, and an EIR was required for the project. California Native Plant Society v. County of El Dorado, No. C057083, 39 ELR 20019 (Cal. App. 3d Dist. Jan. 28, 2009).


CALIFORNIA ENVIRONMENTAL QUALITY ACT, GROUNDWATER:



A California appellate court affirmed a lower court decisions denying a water company's petition challenging a water district's use of a statutory rate-setting exemption from the California Environmental Quality Act to raise groundwater-charge rates for fiscal year 2006-2007. Although the district's findings could have been more detailed or could have made more specific reference to facts in the record, its findings are sufficient to comply with the statutory rate-setting exemption. In addition, the record contains substantial evidence supportive of the district's finding that the groundwater-charge rate increases were for statutorily exempt purposes. Great Oaks Water Co. v. Santa Clara Water Valley District, No. H032067, 39 ELR 20021 (Cal. App. 6th Dist. Jan. 28, 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 entered into a proposed settlement under the CAA that requires the Agency to sign a notice of proposed rulemaking on NESHAPs from the portland cement manufacturing industry no later than March 31, 2009, and to take final action on the proposed rulemaking no later than March 31, 2010. 74 FR 4433 (1/26/09).

ENERGY:



  • EPA issued final amendments to the new source performance standards for electric utility steam-generating units and industrial-commercial-institutional steam-generating units. 74 FR 5072 (1/28/09).

OFFICE OF THE PRESIDENT:



  • The President issued a memorandum requesting reconsideration of EPA's denial of California's application for a waiver to adopt its own limitations on greenhouse gas emissions from motor vehicles. 74 FR 4905 (1/28/09).

  • The President issued a memorandum requesting final rulemaking from the Secretary of Transportation and the National Highway Traffic Safety Administration prescribing increased fuel economy for model year 2011. 74 FR 4907 (1/28/09).

WILDLIFE:



  • FWS announced the availability of its revised comprehensive conservation plan and FONSI for the Innoko National Wildlife Refuge in McGrath, Alaska. 74 FR 5672 (1/30/09).

  • FWS and the U.S. Forest Service proposed to establish regulations for hunting and trapping seasons, harvest limits, methods, and means related to taking of wildlife for subsistence uses during the 2010-11 and 2011-12 regulatory years. 74 FR 5127 (1/29/09).

DOJ NOTICES OF SETTLEMENT:



  • United States v. Motiva Enterprises, LLP, DOJ Ref. No. 90-7-1-08569. A settling CERCLA defendant must pay $2.1 million in U.S. damages and cleanup costs incurred at a federal facility in Washington, D.C., that was formerly a filling station and must monitor groundwater in accordance with an EPA-approved plan. 74 FR 4975 (1/28/09).

  • United States v. East Bay Municipal Utility Dist., No. cv-09-0186 (N.D. Cal. Jan. 15, 2009). Under a stipulated order, a settling CWA defendant must perform various studies and take interim steps aimed at the ultimate cessation of discharges of partially treated sewage from its three wet weather facilities into the San Francisco Bay. 74 FR 4761 (1/27/09).

  • United States v. Citation Oil & Gas Corp., No. 09-CV-0003-B (D. Wyo. Jan. 7, 2009). A settling CWA defendant must pay a $280,000 civil penalty and must perform $580,000 in specified injunctive relief for the unlawful discharge of approximately 597 barrels of crude oil and produced water into the North Fork Powder River and adjacent banks from its Celler Ranch Unit in Johnson County, Wyoming. 74 FR 4761 (1/27/09).

  • United States v. General Electric Co., No. 05-cv-1270 (N.D.N.Y. Jan. 16, 2009). Under a modified 2006 consent decree, a settling CERCLA defendant must pay the lesser of $7 million or all U.S. response costs incurred or to be incurred related to the design and construction of an alternate water supply line from Troy, New York, to the towns of Waterford and Halfmoon, New York, and of a granulated activated carbon system for the village of Stillwater, New York, as part of a dredging program to address the release of PCBs into the Hudson River; the defendant also must reimburse 50% of water usage fees assessed upon the towns up to $750,000. 74 FR 4459 (1/26/09).

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


THE CONGRESS

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


Committee Action



  • H.R. 629 (energy) was reported by the Committee on Energy and Commerce. H. Rep. No. 111-7, 155 Cong. Rec. H525 (daily ed. Jan. 26, 2009). The bill would provide energy and commerce provisions of the American Recovery and Reinvestment Act of 2009.

Bills Introduced



  • S. 313 (Kyl, R-Ariz.) (water rights) would resolve water rights claims of the White Mountain Apache Tribe in the state of Arizona. 155 Cong. Rec. S826 (daily ed. Jan. 26, 2009). The bill was referred to the Committee on Indian Affairs.

  • S. 316 (Lincoln, D-Ariz.) (timber) would amend the Internal Revenue Code of 1986 to make permanent the reduction in the rate of tax on qualified timber gain of corporations. 155 Cong. Rec. S826 (daily ed. Jan. 26, 2009). The bill was referred to the Committee on Finance.

  • S. 320 (Cantwell, D-Wash.) (energy) would ensure that short- and long-term investment decisions critical to economic stimulus and job creation in clean energy are supported by federal programs and reliable tax incentives. 155 Cong. Rec. S826 (daily ed. Jan. 26, 2009). The bill was referred to the Committee on Finance.

  • S. 329 (Leahy, D-Vt.) (energy) would amend the Internal Revenue Code of 1986 to extend the nonbusiness energy property credit for property placed in service during 2008. 155 Cong. Rec. S826 (daily ed. Jan. 26, 2009). The bill was referred to the Committee on Finance.

  • S. 345 (Lugar, R-Ind.) (Tropical Forest and Coral Conservation Act) would reauthorize the Tropical Forest Conservation Act of 1998 through fiscal year 2012 and rename it as the "Tropical Forest and Coral Conservation Act of 2009." 155 Cong. Rec. S1057 (daily ed. Jan. 29, 2009). The bill was referred to the Committee on Foreign Relations.

  • S. 349 (Casey, D-Pa.) (national heritage area) would establish the Susquehanna Gateway National Heritage Area in the state of Pennsylvania. 155 Cong. Rec. S1057 (daily ed. Jan. 29, 2009). The bill was referred to the Committee on Energy and Natural Resources.

  • H.R. 669 (Bordallo, D-Guam) (wildlife) would prevent the introduction and establishment of nonnative wildlife species that negatively impact the economy, environment, or other animal species or human health. 155 Cong. Rec. H525 (daily ed. Jan. 26, 2009). The bill was referred to the Committee on Natural Resources.

  • H.R. 672 (Filner, D-Cal.) (defense) would amend title 10, U.S. Code, to require the Department of Defense and all other defense-related agencies of the United States to fully comply with federal and state environmental laws, including certain laws relating to public health and worker safety, that are designed to protect the environment and the health and safety of the public. 155 Cong. Rec. H525 (daily ed. Jan. 26, 2009). The bill was referred to the Committees on Armed Services, on Energy and Commerce, on Transportation and Infrastructure, on Natural Resources, and on Education and Labor.

  • H.R. 673 (Filner, D-Cal.) (CAA) would amend the CAA to delay the effect of reclassifying certain nonattainment areas adjacent to an international border. 155 Cong. Rec. H525 (daily ed. Jan. 26, 2009). The bill was referred to the Committee on Energy and Commerce.

  • H.R. 689 (Herger, R-Cal.) (federal land) would interchange the administrative jurisdiction of certain federal lands between the Forest Service and BLM. 155 Cong. Rec. H526 (daily ed. Jan. 26, 2009). The bill was referred to the Committee on Natural Resources.

  • H.R. 695 (Weiner, D-N.Y.) (green buildings) would provide for a green building certification program as part of the Energy Star program. 155 Cong. Rec. H526 (daily ed. Jan. 26, 2009). The bill was referred to the Committee on Energy and Commerce.

  • H.R. 699 (Rahall, D-W.Va.) (mining) would modify the requirements applicable to locatable minerals on public domain lands, consistent with the principles of self-initiation of mining claims. 155 Cong. Rec. H601 (daily ed. Jan. 27, 2009). The bill was referred to the Committee on Natural Resources.

  • H.R. 700 (McNerney, D-Cal.) (Federal Water Pollution Control Act) would amend the Federal Water Pollution Control Act to extend the pilot program for alternative water source projects. 155 Cong. Rec. H601 (daily ed. Jan. 27, 2009). The bill was referred to the Committee on Transportation and Infrastructure.

  • H.R. 714 (Christensen, D-V.I.) (national parks) would authorize the Secretary of the Interior to lease certain lands in the Virgin Islands National Park. 155 Cong. Rec. H601 (daily ed. Jan. 27, 2009). The bill was referred to the Committee on Natural Resources.

  • H.R. 715 (Grijalva, D-Ariz.) (national parks) would expand the boundary of Saguaro National Park and study additional land for future adjustments to the boundary of the Park. 155 Cong. Rec. H601 (daily ed. Jan. 27, 2009). The bill was referred to the Committee on Natural Resources.

  • H.R. 718 (Jones, R-N.C.) (national parks) would reinstate the Interim Management Strategy governing off-road vehicle use in the Cape Hatteras National Seashore, North Carolina, pending the issuance of a final rule for off-road vehicle use by the National Park Service. 155 Cong. Rec. H602 (daily ed. Jan. 27, 2009). The bill was referred to the Committee on Natural Resources and the Committee on the Judiciary.

  • H.R. 753 (Bishop, D, N.Y.) (Federal Water Pollution Control Act) would amend the Federal Water Pollution Control Act to ensure that POTWs monitor for and report sewer overflows. 155 Cong. Rec. H778 (daily ed. Jan. 28, 2009). The bill was referred to the Committee on Transportation and Infrastructure.

  • H. Con. Res. 32 (Capps, D-Cal.) (Santa Barbara oil spill) would express the sense of Congress that the 40th anniversary of the oil spill off the coast of Santa Barbara, California, be remembered as an ecological and economic disaster that triggered major environmental legislation and helped launch the modern environmental movement. 155 Cong. Rec. H779 (daily ed. Jan. 28, 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:

















Alabama Indiana Montana
Arizona Louisiana Ohio
California Maine South Carolina
Florida Massachusetts Washington

ALABAMA


Hazardous & Solid Waste:



ARIZONA


General:



  • The Department of Environmental Quality proposed to repeal R18-7-401, Greenfields Pilot Program. The statutes that authorized this program were repealed on January 1, 2008, and during the 10 years that the program was in effect, no entity entered the program. See http://www.azsos.gov/public_services/Register/2009/4/final.pdf (pp. 231-32)

Water:



  • The Department of Environmental Quality amended R18-2-608, Mineral Tailings. The amendments clarify that pollution control measures should continue after the construction of mineral tailings piles and for times when tailings piles are inactive. The changes become effective March 7, 2009. See http://www.azsos.gov/public_services/Register/2009/4/final.pdf (pp. 228-231)

CALIFORNIA


Toxic Substances:



  • The California Environmental Protection Agency seeks public comment on the proposed listing of Metam Potassium as known to the state to cause cancer or reproductive toxicity under Proposition 65. Comments are due March 20, 2009. See http://www.oal.ca.gov/pdfs/notice/4z-2009.pdf (p. 139)

FLORIDA


General:



Water:



  • The Southwest Florida Water Management District proposed amendments to 40D-4.091, Publications and Agreements Incorporated by Reference. The purpose of the revision is to remove the consideration of property taxes in the development of cost estimates for the perpetual maintenance of mitigation banks. See https://www.flrules.org/Faw/FAWDocuments/FAWVOLUMEFOLDERS2009/3503/SECTI.pdf (pp. 267-68)

INDIANA


Water:



  • The Natural Resources Commission adopted amendments to 312 IAC 6.2-1-1 through 312 IAC 6.2-1-3, which addresses Great Lakes Basin water management, to assist with implementation of P.L.4-2008 (SEA 45) and effectuation of the Great Lakes-St. Lawrence River Basin Water Resources Compact. See http://www.in.gov/legislative/iac/20090128-IR-312080531FRA.xml.html

LOUISIANA


Land Use:



  • The Department of Natural Resources adopted new rules LAC 43:I, Chapter 41, Certification of Land Conservation Organizations. The rules are intended to establish objective standards and procedures for determining that an applicant for certification actively and effectively works to conserve land by undertaking or assisting in land or easement acquisitions or by engaging in the stewardship of land or easements. The rules also concern recertification and revocation of certification. See http://www.doa.la.gov/osr/reg/0901/0901.doc (pp. 73-82)

Toxic Substances:



  • The Department of Environmental Quality adopted amendments to LAC 33:I.807, Expedited Penalties for Asbestos and Lead. The rule adds certain asbestos and lead violations to the list of violations that may qualify for expedited penalties in LAC 33:I.807. The additions should abate delays that have occurred in correcting Environmental Quality Act violations in the asbestos and lead programs. See http://www.doa.la.gov/osr/reg/0901/0901.doc (p. 62)

MAINE


General:



MASSACHUSETTS


Air:



  • The Department of Environmental Protection will hold a public hearing on proposed amendments to 310 CMR 7.24 U, Organic Material Storage and Distribution, and addition of 310 CMR 7.24 (9), Dispensing of E85 Blended Gasoline (85% ethanol, 15% gasoline). The new regulations apply to the installation, operation, and maintenance of E85 ethanol blended gasoline dispensing facilities in Massachusetts. By proposing these new regulations, the Department hopes to provide regulatory certainty and guidance to businesses considering whether to invest in this new industry. Specifically, this proposed regulation seeks to address the need for owner/operators of E85 dispensing facilities to correctly install, operate, and maintain Stage I vapor controls at their facilities. The hearing will be February 10, 2009. See http://www.mass.gov/dep/public/hearings/385.htm

MONTANA


Water:



  • The Department of Environmental Quality will hold a public hearing on proposed amendments to ARM 17.40.318 and the adoption of a new rule pertaining to state revolving fund and public water and sewer projects eligible for categorical exclusion from review. The amendments would restrict the current exclusion to "minor" ancillary facilities and would expand the current exclusion to include rehabilitation projects that are not "minor." A new provision would prohibit use of the exclusion for upgrades or extensions that are primarily for the purposes of future development. The amendments would also no longer limit the exclusion to communities of less than 10,000 persons. The hearing will be February 24, 2009. See http://sos.mt.gov/arm/Register/archives/MAR2009/MAR09-02.pdf (pp. 55-60)

OHIO


Air:



SOUTH CAROLINA


General:



WASHINGTON


Water:



  • The Department of Ecology is proposing a new rule, chapter 173-539A WAC, for the upper Kittitas County groundwater area. The rule is designed to minimize future adverse effects on flows in the Yakima River and its tributaries while minimizing adverse effects on the local economy. See http://apps.leg.wa.gov/documents/laws/wsr/2009/02/09-02-079.htm

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


INTERNATIONAL

INDONESIA WORKING ON FOREST CARBON RULES



Indonesia hopes to lay out a clear set of regulations before June on using carbon credits to protect rainforests so the rules can be discussed in upcoming international talks, a top climate official said. The United Nations has backed a scheme called Reduced Emissions from Deforestation and Degradation (REDD), in which developing nations could potentially earn billions of dollars from selling carbon credits in return for saving their forests. Investors from banks to forestry firms and NGOs are lining up to set up REDD schemes in Indonesia and elsewhere in Asia, Africa, and South America. But the scheme is in its infancy, and regulations are needed to guide how REDD projects will work, how it will ensure forests remain intact, how much carbon they will save and sequester, and how money from selling the credits will flow to local communities. For the full story, see http://www.reuters.com/article/GCA-GreenBusiness/idUSTRE50T0Y220090130


INDIA'S CAPITAL BANS PLASTIC BAGS



With a population of 16 million, Delhi struggles to provide its residents with adequate water, decent sewers, and steady electricity. But in a kind of urban leapfrogging, its failure to provide basic amenities has not discouraged it from pursuing environmental causes. In recent months the city has revived its efforts to curb honking, smoking, and the pestilence of plastic bags. The government has tried to curb plastic bags before. But its regulations were recently found wanting by the Delhi High Court, which then banned bags in markets and shops, as well as hotels, hospitals and malls. The court also banned thin bags (less than 0.04 millimeters thick) outright. This should make enforcement easier. Recalcitrant baggers could, in principle, face fines of up to 100,000 rupees ($2,000) or up to five years in jail. The penalties have to be stiff, says J. K. Dadoo, the most senior bureaucrat in Delhi’s environment department, since "the desire to pay the penalty is sometimes greater than the desire to change your mindset." But the government plans to act against manufacturers before shopkeepers or their customers. First restrict availability, then the habit may change, they argue. For the full story, see http://www.economist.com/world/asia/displaystory.cfm?story_id=13041382


SOOT POLLUTION IN SOUTH ASIA LINKED TO BIOMASS COMBUSTION



Two-thirds of the soot particles causing South Asia's Brown Cloud come from biomass combustion such as household cooking and slash-and-burn agriculture, according to new research published in the journal Science. The study, which was co-authored by Henning Rodhe, a scientist affiliated with the United Nations Environment Program, is the first to calculate the contribution of biomass combustion versus fossil fuel combustion in the Brown Cloud. The brownish haze, which comes from various burning and combustion processes, cover large parts of South and East Asia. The new report finds that 340,000 people in China and India die each year from cardiovascular and respiratory diseases that can be traced to human-induced emissions of combustion particles. For the full story, see http://www.unep.org/Documents.Multilingual/Default.asp?DocumentID=556&ArticleID=6046&l=en


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


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