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Weekly Update Volume 39, Issue 7

03/09/2009

LITIGATION

STANDING, FOREST REGULATIONS:



The U.S. Supreme Court held that environmental groups lack standing to challenge U.S. Forest Service regulations exempting certain land management activities from the agency's review process absent a live dispute over the concrete application of those regulations. The regulations exempt small fire-rehabilitation and timber-salvage projects from the notice, comment, and appeal process used by the Forest Service for more significant land management decisions. Harm to group members' recreational or esthetic interests in the National Forests will suffice to establish the requisite concrete and particularized injury, but generalized harm to the forest or the environment will not alone suffice. Here, the groups have identified no application of the invalidated regulations that threatens imminent and concrete harm to their members’ interests. In addition, the groups' argument that they have standing because they have suffered procedural injury—i.e., they have been denied the ability to file comments on some Forest Service actions and will continue to be so denied—fails because such a deprivation without some concrete interest affected thereby is insufficient to create Article III standing. Scalia, J., delivered the opinion of the Court, in which Roberts, C.J., and Kennedy, Thomas, and Alito, JJ., joined. Kennedy, J., filed a concurring opinion. Breyer, J., filed a dissenting opinion, in which Stevens, Souter, and Ginsburg, JJ., joined. Summers v. Earth Island Institute, No. 07-463, 39 ELR 20047 (U.S. Mar. 3, 2009).


CAA, NAAQS, PARTICULATE MATTER:



The D.C. Circuit remanded EPA's NAAQS for fine particulate matter (PM). EPA failed adequately to explain why, in view of the risks posed by short-term exposures and the evidence of morbidity resulting from long-term exposures, its primary annual fine PM standard is sufficient "to protect the public health [with] an adequate margin of safety" as required by CAA §7409(b)(1). As for the secondary NAAQS for fine PM, EPA unreasonably concluded that the NAAQS are adequate to protect the public welfare from adverse effects on visibility. EPA's decision to set secondary fine PM NAAQS identical to the primary NAAQS was unreasonable and contrary to the requirements of §7409(b)(2). The court, however, denied petitions for review of the Agency's standards for coarse particulate matter because those standards are not arbitrary, capricious, or otherwise contrary to law. American Farm Bureau Federation v. Environmental Protection Agency, No. 06-1410, 39 ELR 20042 (D.C. Cir. Feb. 24, 2009).


CAA, PERMITS:



The Sixth Circuit denied a petition for review of EPA's decision not to object to a power plant's air pollution permit. CAA §505(b)(2) requires EPA to object to an air pollution permit if any person "demonstrates" to the Agency that the permit "is not in compliance" with the Act. In 2006, an environmental group petitioned EPA to object to a permit issued to a power plant in Kentucky. It claimed that it had demonstrated non-compliance because EPA issued a notice of violation to the plant in 2003 and had filed a federal court complaint against the plant in 2004. EPA's decision not to object was reasonable. CAA §505(b)(2) allows EPA to alter its position about a power plant's compliance with the CAA based on intervening events. Because the group failed to challenge the impact of these intervening events on the power plant’s compliance with the Act, the petition for review was denied. Sierra Club v. United States Environmental Protection Agency, No. 07-4485, 39 ELR 20043 (6th Cir. Feb. 26, 2009).


CERCLA, NATURAL RESOURCE DAMAGES:



A district court held that CERCLA does not preempt a Native American tribe's state law claims for natural resource damages against successor entities of various mining companies. While the tribe may not use common law and CERCLA to recover the same removal and assessment costs, CERCLA does not preempt state law claims in the absence of a conflict between CERCLA and state law. Here, the tribe's claims are limited to damages for the restoration, replacement, or acquisition of damaged natural resources. Accordingly, the tribe's request for damages complies with CERCLA §107(f) and does not interfere with CERCLA's goal of restoring and replacing contaminated natural resources. Nor is there a direct conflict between state and federal law. Quapaw Tribe v. Blue Tee Corp., No. 03-0846, 39 ELR 20050 (N.D. Okla. Feb. 23, 2009) (Eagan, J.).


CERCLA, FINANCIAL ASSURANCES:


 



A district court ordered EPA to identify and publish by May 4, 2009, a list of facilities required to demonstrate financially responsibility for hazardous waste cleanups. EPA argued that the lawsuit was time barred. The court, however, ruled that the continuing-violations doctrine applies to EPA's failure to act. Accordingly, the claim is not time barred. The court declined to address the merits of EPA’s argument regarding their duty to promulgate and implement financial assurance requirements. Instead, it decided to hold these issues in abeyance pending EPA’s publication of the list. Sierra Club v. Johnson, No. 08-1409, 39 ELR 20051 (N.D. Cal. Feb. 25, 2009) (Alsup, J.).


CAA, SIP REVISIONS:



The Ninth Circuit upheld EPA's approval of a SIP revision that aims to reduce particulate matter (PM) emissions from agricultural sources in San Joaquin Valley, California. The revision comports with CAA §§179 and 189(b)(1)(B). EPA's decision not to implement "all feasible measures" into the revision was lawful. EPA reasonably interpreted CAA §179 to mean that the measures that the Administrator may reasonably prescribe include all measures that can be feasibly implemented in the area in light of technological achievability, costs, and economic, health, and environmental effects. The court also rejected petitioners' argument that the revision's menu of options for controlling PM emissions from agricultural sources does not constitute the best available control measures (BACM) under CAA §189(b)(1)(B). EPA made no clear error of judgment in ruling that the revision complies with BACM, EPA followed its regulatory process, and that process was consistent with prior caselaw. Latino Issues Forum v. United State Environmental Protection Agency, No. 08-71238, 39 ELR 20048 (9th Cir. Mar. 5, 2009).


SUCCESSOR LIABILITY, SETTLEMENT AGREEMENTS:



A district court held that the corporate successor to various legal entities at a former industrial site is not liable for various environmental cleanup expenses at the site. The city that filed suit against the successor failed to present sufficient evidence to establish that the successor is liable for the city's cleanup costs. Prior settlement agreements between the successor, EPA, and the city do not establish successor liability by admission, and the city's use of the settlement agreements to establish liability is expressly prohibited by Rule 408 of the Federal Rules of Evidence. The court also rejected the city's argument that the successor is collaterally estopped from challenging its successor status. Further, the successor did not retain liability based on language contained in assignment agreements with a subsidiary. Nor is it liable under the equitable doctrine of successor liability. City of Mishawaka v. Uniroyal Holding, Inc., No. 04-CV-125, 39 ELR 20049 (N.D. Ind. Feb. 26, 2009) (Nuechterlein, M.J.).


RCRA, CITIZEN SUITS:

A district court held that a cause of action under RCRA §7002(a)(1)(A) can only be brought against an owner or operator of a polluting property who is "alleged to be in violation" of RCRA at the time the suit is brought. Under RCRA §7002(a)(1)(A), a citizen may commence suit on his own behalf against any person "who is alleged to be in violation of any permit, standard, regulation, condition, requirement, prohibition, or order which has become effective pursuant to this chapter." Because the prior property owner at issue in this case sold the property in 1983--and has conducted no activity on the property since--it cannot be "alleged to be in violation" of RCRA. Its actions are wholly past violations that do not give rise to suit under §7002(a)(1)(A). Board of County Commissioners of La Plata, Colo. v. Brown Group Retail, LLC, No. 08-cv-00855, 39 ELR 20044 (D. Colo. Feb. 18, 2009) (Babcock, J.).

 


OPA, JURY TRIAL:

A district court held that an oil company is entitled to a jury trial in the government's OPA case against it for cleanup costs and damages stemming from a 2004 oil spill. The recovery of removal costs under OPA constitutes an equitable remedy. The company, therefore, is not entitled to a jury trial on the basis of this remedy alone. The government, however, also seeks recovery for natural resource damages, and at least one component of natural resource damages--the diminution in value of those natural resources--is legal in nature. It amounts to compensating a plaintiff for injury to its property, much like damages recovered in nuisance or trespass, both of which are classic legal causes of action. Thus, the company's right to a jury trial under the Seventh Amendment is triggered by this one legal component of the natural resource damages remedy. And because this component of the natural resource damage remedy is legal, it renders other underlying factual issues legal in nature such that they must be tried to the jury, even if they are also relevant to equitable components of the remedy. United States v. Viking Resources, Inc., No. H08-1291, 39 ELR 20046 (S.D. Tex. Feb. 11, 2009) (Lake, J.).


CWA, PENALTY CALCUATION:



A district court ordered a company to pay a $1.5 million fine for CWA violations during the construction of a 60-mile natural gas pipeline and certain lateral pipelines in Coos and Douglas Counties, Oregon. Although the company's permit violations were numerous and occurred over the length of the project, the lack of guidance and notice from the U.S. Army Corps of Engineers is a mitigating factor. Further, there was little evidence of serious environmental harm, and there was no evidence of harm to fish habitat tied to the company's activities. And in this case, there was a failure of all parties concerned. In light of this, the government's demands for civil penalties far exceed what is fair and equitable. Sierra Club v. MasTec North America, No. 03-1697, 39 ELR 20045 (D. Or. Feb. 19, 2009) (Hogan, J.).


CRIMINAL LAW, EVIDENCE:



The Sixth Circuit upheld individuals' conviction for impeding an EPA investigation at a water treatment facility in Mount Pleasant, Tennessee. The district court did not abuse its discretion by excluding evidence that a witness had been treated for drug use in 1992. Nor did the court commit plain error by admitting into evidence a negative evaluation of the plant from before the charged period. Likewise, the court's refusal to admit certain statements one of the individuals made to an investigator was not reversible error. And the evidence presented at trial was sufficient to find the individuals guilty beyond a reasonable doubt. United States v. Holden, Nos. 07-5573, -5574, 39 ELR 20041 (6th Cir. Feb. 24, 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 proposed NESHAPs for existing stationary reciprocating internal combustion engines and amendments to regulations regarding their operation during periods of startup, shutdown, and malfunction and proposed NESHAPs for existing stationary compression ignition engines. 74 FR 9698 (3/5/09).

  • EPA withdrew final authorization of amendments to the NESHAP for electric arc furnace steelmaking facilities due to adverse comment. 74 FR 8756 (2/26/09).

  • EPA finalized a clean diesel trucks and buses program requiring onboard diagnostic systems on 2010 and later heavy-duty engines over 14,000 pounds and revised requirements for heavy-duty vehicles under 14,000 pounds. 74 FR 8310 (2/24/09).

  • EPA updated outer continental shelf air regulations for North Carolina. 74 FR 9166 (3/3/09).

  • EPA proposed to update outer continental shelf air regulations for Alaska. 74 FR 9180 (3/3/09).

  • SIP Approval: New Hampshire (2009 motor vehicle emission budgets (MVEBs) for the Boston-Manchester-Portsmouth, New Hampshire, eight-hour ozone nonattainment area) 74 FR 8863 (2/27/09).

  • SIP Proposal: New Hampshire (2009 MVEBs for the Boston-Manchester-Portsmouth, New Hampshire, eight-hour ozone nonattainment area; see above for direct final rule) 74 FR 8888 (2/27/09).

HAZARDOUS & SOLID WASTE:



  • EPA withdrew final authorization of revisions to Nebraska's hazardous waste management program due to adverse comment. 74 FR 8867 (2/27/09).

  • EPA gave final authorization to revisions to Nevada's hazardous waste management program. 74 FR 8757 (2/26/09).

  • EPA proposed giving final authorization to revisions to Nevada's hazardous waste management program; see above for direct final rule. 74 FR 8771 (2/26/09).

  • EPA entered into a proposed administrative settlement under CERCLA that requires the settling party to pay $45,000 in past U.S. response costs concerning the Given Road Lead site in Cincinnati, Ohio. 74 FR 8540 (2/25/09).

  • EPA granted Rubicon, LLC, an exemption to land disposal restrictions for Class I injection wells Nos. 1, 3, 4, and 5 at its facility in Geismar, Louisiana, until December 31, 2025. 74 FR 9243 (3/3/09).

MINING:



  • OSM announced the withdrawal of a rule proposed by Pennsylvania to delete a required amendment under SMCRA pertaining to regulatory exemptions for coal extraction incidental to that of other minerals. 74 FR 8048 (2/23/09).

OFFICE OF THE PRESIDENT:



  • The President issued Executive Order No. 13503 establishing the White House Office of Urban Affairs. 74 FR 8139 (2/24/09).

  • The President requested review of a December 2008 regulation that modified longstanding ESA consultation and concurrence practices involving the FWS and the NMFS that affect endangered or threatened species. 74 FR 9753 (3/6/09).

WATER:



  • EPA announced the issuance of the NPDES general permit for stormwater discharges from industrial activity for the states of Alaska and Idaho, for federal facilities in Washington, and for Indian Country in Idaho, Oregon, and Washington. 74 FR 8789 (2/26/09).

WILDLIFE:



  • FWS designated approximately 39,000 square miles in the states of Idaho, Maine, Minnesota, Montana, Washington, and Wyoming as critical habitat for the contiguous U.S. distinct population segment of the Canada lynx. 74 FR 8616 (2/25/09).

DOJ NOTICES OF SETTLEMENT:



  • United States v. Valley-Proctor LLC, No. 09-cv-1331 AHM(AJW)x (C.D. Cal. Feb. 25, 2009). A settling CERCLA defendant must pay $550,000 in past U.S. response costs and must pay $5,000 in past response costs to the California Department of Toxic Substances Control from the sale of property at the Puente Valley Operable Unit of the San Gabriel Valley Area 4 Superfund site in Los Angeles County, California. 74 FR 9636 (3/5/09).

  • North Carolina v. El Paso Natural Gas Co., No. 5:04 CV 38 (W.D.N.C. Feb. 26, 2009). A settling CERCLA defendant must pay $846.54 to the United States in connection with the FCX site, a facility near Statesville, North Carolina. 74 FR 9430 (3/4/09).

  • United States v. Northrop Grumman Space & Mission Systems Corp., No. 09-0866 (C.D. Cal. Feb. 11, 2009). Performing and contributing settling CERCLA and RCRA defendants must pay $465,420.90 in past U.S. response costs, must pay $90,000 in past response costs to the California Department of Toxic Substances Control, and must construct the intermediate zone remedy at an estimated cost of $21 million and operate it for eight years to address groundwater contamination at the Puente Valley Operable Unit of the San Gabriel Valley Area 4 Superfund site in Los Angeles County, California. 74 FR 9106 (3/2/09).

  • United States v. BP Exploration & Oil Co., No. 2:96 CV 095 RL (N.D. Ind. Feb. 19, 2009). Under the sixth amendment to a consent decree, a settling CAA defendant must pay a $12 million civil penalty, must perform a $6 million supplemental environmental project, and must perform injunctive relief for violations involving benzene waste, refrigerants, and asbestos at its petroleum refinery in Texas City, Texas. 74 FR 8569 (2/25/09).

  • United States v. Bristol-Myers Squibb Co., No. 09-cv-0161 (N.D.N.Y. Feb. 11, 2009). Settling CERCLA defendants must design, construct, and operate groundwater remedies estimated to cost $9.9 million and a soil remedy, including treatment of volatile organic compounds and PCBs, estimated to cost $4.9 million and must pay future U.S. oversight costs at the Solvent Savers Superfund site in Lincklaen, New York. 74 FR 8109 (2/23/09).

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


THE CONGRESS

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


Public Laws



  • H.R. 1 (American Recovery and Reinvestment Act of 2009), making supplemental appropriations for job preservation and creation, infrastructure investment, energy efficiency and science, assistance to the unemployed, and state and local fiscal stabilization, for fiscal year ending September 30, 2009, was signed by President Obama on February 17, 2009. Pub. L. No. 111-5, 154 Cong. Rec. D159 (daily ed. Feb. 23, 2009).

Chamber Action



  • H.R. 81 (Shark Conservation Act of 2009), which would amend the High Seas Driftnet Fishing Moratorium Protection Act and the Magnuson-Stevens Fishery Conservation and Management Act to improve the conservation of sharks, was passed by the House. 154 Cong. Rec. H2879 (daily ed. March 2, 2009).

  • H.R. 326 (Cocopah Lands Act), which would direct the Secretary of the Interior to take lands in Yuma County, Arizona, into trust as part of the reservation of the Cocopah Tribe of Arizona, was passed by the House. 154 Cong. Rec. H2878 (daily ed. March 2, 2009).

  • H.R. 637 (South Orange County Recycled Water Enhancement Act), which would authorize the Secretary of the Interior, in cooperation with the City of San Juan Capistrano, California, to participate in the design, planning, and construction of an advanced water treatment plant facility and recycled water system, was passed by the House. 154 Cong. Rec. H1628 (daily ed. Feb. 23, 2009).

  • H.R. 844 (Marine Mammal Rescue Assistance Amendments of 2009), which would amend the provisions of law relating to the John H. Prescott Marine Mammal Rescue Assistance Grant Program, was passed by the House. 154 Cong. Rec. H2883 (daily ed. March 2, 2009).

Bills Introduced



  • S. 452 (Crapo, R-Idaho) (federal land) would ensure public access to federal land and to the airspace over federal land. 154 Cong. Rec. S2365 (daily ed. Feb. 23, 2009). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 472 (Vitter, R-La.) (national monuments) would provide for congressional approval of national monuments and restrictions on the use of national monuments. 154 Cong. Rec. S2473 (daily ed. Feb. 25, 2009). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 479 (Cardin, D-Md.) (Chesapeake Bay Initiative) would amend the Chesapeake Bay Initiative Act of 1998 to provide for the continuing authorization of the Chesapeake Bay Gateways and Watertrails Network. 154 Cong. Rec. S2473 (daily ed. Feb. 25, 2009). The bill was referred to the Committee on Environment and Public Works.

  • S. 489 (Vitter, R-La.) (Migratory Bird Treaty Act) would amend the Migratory Bird Treaty Act to authorize hunting under certain circumstances. 154 Cong. Rec. S2558. (daily ed. Feb. 26, 2009). The bill was referred to the Committee on Environment and Public Works.

  • S. 499 (Wyden, D-Or.) (Energy Policy Act) would amend the Energy Policy Act of 2005 to repeal the ultra-deepwater and unconventional onshore natural gas and other petroleum research and development program. 154 Cong. Rec. S2558 (daily ed. Feb. 26, 2009). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 503 (Murkowski, R-Alaska) (oil and gas exploration) would authorize the exploration, leasing, development, and production of oil and gas in and from the western portion of the Coastal Plain of the state of Alaska without surface occupancy. 154 Cong. Rec. S2592 (daily ed. Feb. 27, 2009). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 519 (Harkin, D-Iowa) (FIFRA) would amend FIFRA to implement pesticide-related obligations of the United States under the international conventions or protocols known as the PIC Convention, the POPs Convention, and the LRTAP POPs Protocol. 154 Cong. Rec. S2691 (daily ed. March 3, 2009). The bill was referred to the Committee on Agriculture, Nutrition, and Forestry.

  • S. 522 (Murkowski, R-Alaska) (land conveyance) would resolve the claims of the Bering Straits Native Corporation and the state of Alaska to land adjacent to Salmon Lake in the state of Alaska and provide for the conveyance to the Bering Straits Native Corporation of certain other public land in partial satisfaction of the land entitlement of the Corporation under the Alaska Native Claims Settlement Act. 154 Cong. Rec. S2766 (daily ed. March 4, 2009). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 523 (Tester, D-Mont.) (Energy Policy Act) would amend the Energy Policy Act of 2005 to establish pilot project offices to improve federal permit coordination for renewable energy. 154 Cong. Rec. S2766 (daily ed. March 4, 2009). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 527 (Thune, R-S.D.) (CAA) would amend the CAA to prohibit the issuance of permits under Title V for certain emissions from agricultural production. 154 Cong. Rec. S2827 (daily ed. March 5, 2009). The bill was referred to the Committee on Environment and Public Works.

  • S. 531 (Bingaman, D-N.M) (energy) would provide for the conduct of an in-depth analysis of the impact of energy development and production on the water resources of the United States. 154 Cong. Rec. S2827 (daily ed. March 5, 2009). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 533 (Collins, R-Me) (CZMA) would amend the CZMA to establish a grant program to ensure waterfront access for commercial fisherman. 154 Cong. Rec. S2828 (daily ed. March 5, 2009). The bill was referred to the Committee on Finance.

  • S. 536 (Wyden, D-Or.) (CAA) would amend the CAA to modify the definition of the term "renewable biomass." 154 Cong. Rec. S2828 (daily ed. March 5, 2009). The bill was referred to the Committee on Environment and Public Works.

  • S. 539 (Reid, D-Nev.) (Federal Power Act) would amend the Federal Power Act to require the president to designate certain geographical areas as national renewable energy zones. 154 Cong. Rec. S2828 (daily ed. March 5, 2009). The bill was referred to the Committee on Energy and Natural Resources.

  • H.R. 1108 (Scalise, R-La.) (oil and natural gas) would provide for state enhanced authority for coastal and ocean resources and expansion of America's supply of natural gas and oil. 154 Cong. Rec. H2601 (daily ed. Feb. 23, 2009). The bill was referred to the Committees on Natural Resources, Ways and Means, Armed Services, and Energy and Commerce.

  • H.R. 1109 (Rahall, D-W. Va.) (National Forest System) would designate as wilderness additional National Forest System lands in the Monongahela National Forest in the state of West Virginia. 154 Cong. Rec. H2601 (daily ed. Feb. 23, 2009). The bill was referred to the Committee on Natural Resources and the Committee on Agriculture.

  • H.R. 1111 (Rehberg, R-Mont.) (renewable energy) would promote as a renewable energy source the use of biomass removed from forest lands in connection with hazardous fuel reduction projects on certain federal land. 154 Cong. Rec. H2601 (daily ed. Feb. 23, 2009). The bill was referred to the Committee on Energy and Commerce.

  • H.R. 1112 (Rehberg, R-Mont.) (alternative fuels) would amend the Internal Revenue Code of 1986 to increase the incentives for E-85 fuel vehicle refueling property. 154 Cong. Rec. H2601 (daily ed. Feb. 23, 2009). The bill was referred to the Committee on Ways and Means.

  • H.R. 1113 (Rehberg, R-Mont.) (property recovery) would amend the Internal Revenue Code of 1986 to provide a 15-year recovery period for property used in the transmission or distribution of electricity for sale. 154 Cong. Rec. H2601 (daily ed. Feb. 23, 2009). The bill was referred to the Committee on Ways and Means.

  • H.R. 1120 (Edwards, D-Tex.) (Reclamation Wastewater and Groundwater Study and Facilities Act) would amend the Reclamation Wastewater and Groundwater Study and Facilities Act to authorize the Secretary of the Interior to participate in the Central Texas Water Recycling and Reuse Project. 154 Cong. Rec. H2601 (daily ed. Feb. 23, 2009). The bill was referred to the Committee on Natural Resources.

  • H.R. 1121 (Foxx, R-N.C.) (land exchange) would authorize a land exchange to acquire lands for the Blue Ridge Parkway from the Town of Blowing Rock, North Carolina. 154 Cong. Rec. H2601 (daily ed. Feb. 23, 2009). The bill was referred to the Committee on Natural Resources.

  • H.R. 1134 (Sensenbrenner, R-Wis.) (energy) would amend the Internal Revenue Code of 1986 to allow the credit for nonbusiness energy property for 2008. 154 Cong. Rec. H2602 (daily ed. Feb. 23, 2009). The bill was referred to the Committee on Ways and Means.

  • H.R. 1140 (Weiner, D-N.Y.) (Low-Income Home Energy Assistance Act) would amend the Low-Income Home Energy Assistance Act of 1981 to extend energy assistance to households headed by certain senior citizens. 154 Cong. Rec. H2602 (daily ed. Feb. 23, 2009). The bill was referred to the Committee on Energy and Commerce and the Committee on Education and Labor.

  • H.R. 1143 (Poe, R-Tex.) (energy) would seek to achieve greater national energy independence by limiting presidential withdrawals of offshore lands from disposition for exploration, development, or production of oil and gas; authorize states to petition for authorization to conduct offshore oil and natural gas exploration and extraction in any area that is within 50 miles of the coastline of the state and within the seaward lateral boundaries of the state extended; and share offshore oil and gas revenues with states. 154 Cong. Rec. H2631 (daily ed. Feb. 24, 2009). The bill was referred to the Committee on Natural Resources.

  • H.R. 1145 (Gordon, D-Tenn.) (National Water Research and Development Initiative) would implement a National Water Research and Development Initiative. 154 Cong. Rec. H2631 (daily ed. Feb. 24, 2009). The bill was referred to the Committee on Science and Technology.

  • H.R. 1158 (Higgins, D-N.Y.) (alternative fuels) would promote biogas production. 154 Cong. Rec. H2631 (daily ed. Feb. 24, 2009). The bill was referred to the Committee on Ways and Means.

  • H.R. 1190 (Herseth Sandlin, D-S.D.) (alternative fuels) would promote the use of certain materials harvested from public lands in the production of renewable fuel. 154 Cong. Rec. H2834 (daily ed. Feb. 25, 2009). The bill was referred to the Committee on Energy and Commerce.

  • H.R. 1196 (Lofgren, D-Cal.) (energy) would authorize the Chief Administrative Officer of the House of Representatives to carry out a series of demonstration projects to promote the use of innovative technologies in reducing energy consumption and promoting energy efficiency and cost savings in the House of Representatives. 154 Cong. Rec. H2834 (daily ed. Feb. 25, 2009). The bill was referred to the Committee on House Administration.

  • H.R. 1219 (Billbray, R-Cal.) (Reclamation Projects Authorization and Adjustment Act) would amend the Reclamation Projects Authorization and Adjustment Act of 1992. 154 Cong. Rec. H2873 (daily ed. Feb. 26, 2009). The bill was referred to the Committee on Natural Resources.

  • H.R. 1262 (Oberstar, D-Minn.) (Federal Water Pollution Control Act) would amend the Federal Water Pollution Control Act to authorize appropriations for state water pollution control revolving funds. 154 Cong. Rec. H2923 (daily ed. March 3, 2009). The bill was referred to the Committee on Transportation and Infrastructure.

  • H.R. 1275 (Matheson, D-Utah) (land exchange) would direct the exchange of certain land in Grand, San Juan, and Uintah Counties, Utah. 154 Cong. Rec. H2924 (daily ed. March 3, 2009). The bill was referred to the Committee on Natural Resources.

  • H.R. 1286 (Visclosky, D-Ind.) (Indiana Dunes National Lakeshore) would clarify that the Secretary of the Interior has authority to accept donations of lands that are contiguous to the Indiana Dunes National Lakeshore. 154 Cong. Rec. H2925 (daily ed. March 3, 2009). The bill was referred to the Committee on Natural Resources.

  • H.R. 1287 (Visclosky, D-Ind.) (Indiana Dunes National Lakeshore) would authorize the Secretary of the Interior to enter into a partnership with the Porter County Convention, Recreation and Visitor Commission regarding the use of the Dorothy Buell Memorial Visitor Center as a visitor center for the Indiana Dunes National Lakeshore. 154 Cong. Rec. H2925 (daily ed. March 3, 2009). The bill was referred to the Committee on Natural Resources.

  • H.R. 1297 (Abercrombie, D-Haw.) (Hawai'i Capital National Heritage Area) would establish the Hawai'i Capital National Heritage Area. 154 Cong. Rec. H2978 (daily ed. March 4, 2009). The bill was referred to the Committee on Natural Resources.

  • H.R. 1310 (Pallone, D-N.J.) (Federal Water Pollution Control Act) would amend the Federal Water Pollution Control Act to clarify that fill material cannot be comprised of waste. 154 Cong. Rec. H2979 (daily ed. March 4, 2009). The bill was referred to the Committee on Transportation and Infrastructure.

  • H.J. Res. 33 (Jackson, D-Ill.) (constitutional amendment) would propose an amendment to the U.S. Constitution respecting the right to a clean, safe, and sustainable environment. 154 Cong. Rec. H2925 (daily ed. March 03, 2009). The resolution was referred to the Committee on the Judiciary.

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 South Dakota
Arizona Illinois Texas
Arkansas Kansas Utah
California Massachusetts Washington
Delaware Minnesota Wyoming

ALASKA


Air:



ARIZONA



ARKANSAS


Air:



CALIFORNIA


Hazardous & Solid Waste:



  • The California Integrated Waste Management Board (CIWMB) will hold a public hearing on proposed amendments to Title 27, California Code of Regulations (27 CCR), §§21200, 21570, 21640, 21685, 21820, 21840, 21865, 21880, 22100, 22101, 22102, 22103, 22211, 22220, 22221, 22231, 22234, 22245, 22248, Appendix 3 - CIWMB 100, CIWMB 106, and CIWMB 114. The proposed changes modify existing regulations governing change of ownership requirements; permit application, permit review, and CIWMB permit processing requirements; closure cost estimates; postclosure maintenance plans and cost estimates; certification of closure requirements; known or reasonably foreseeable corrective action plans; cost estimates and financial assurance requirements; cancellation or non-renewal of financial assurance mechanisms; postclosure maintenance financial assurance requirements; and financial assurance forms and mechanisms. The hearing will be April 16, 2009. Comments are due April 13, 2009. See http://www.ciwmb.ca.gov/Rulemaking/Postclosure/Phase2/

DELAWARE


Hazardous & Solid Waste:



Water:



FLORIDA


Hazardous & Solid Waste:



  • The Department of Environmental Protection proposed amendments to 62-730.020, Definitions; 62-730.021, References, Variances and Case-by-Case Regulations; 62-730.030, Identification of Hazardous Waste; 62-730.160, Standards Applicable to Generators of Hazardous Waste; 62-730.170, Standards Applicable to Transporters of Hazardous Waste; 62-730.180, Standards Applicable to Owners and Operators of Hazardous Waste Treatment, Storage, and Disposal Facilities; 62-730.181, Standards for the Management of Specific Hazardous Wastes and Specific Types of Hazardous Waste Management Facilities; 62-730.183, Land Disposal Restrictions; 62-730.185, Standards for Universal Waste Management; 62-730.200, Introduction, Scope and Procedures for Decision Making; and 62-730.220, Applications for Permits and Other Authorizations. The proposed amendments incorporate by reference the changes made by U.S. EPA to the federal hazardous waste regulations. See https://www.flrules.org/Faw/FAWDocuments/FAWVOLUMEFOLDERS2009/3508/3508doc.pdf (pp. 946-48)

Water:



  • The Suwannee River Water Management District proposed amendments to 40B-1.901, General. The purpose of the proposed amendment is to revise and simplify form 40B-1.901(10), F.A.C., Notice of Intent to Construct a Minor Surface Water Management System pursuant to paragraph 40B-4.2010(1) or (2)(a), F.A.C., and form 40B-1.901(10)(12), F.A.C., Petition for a Formal Wetland and Surface Water Determination. The effect of the proposed rule will provide for a better understanding of the forms by the public and staff. See https://www.flrules.org/Faw/FAWDocuments/FAWVOLUMEFOLDERS2009/3508/3508doc.pdf (pp. 939-940)

ILLINOIS


Water:



  • The Illinois Environmental Protection Agency seeks public comment on proposed amendments to 35 Ill. Adm. Code 320, Permit Fees for Installing or Extending Sewers. In addition to amending the title of Part 320, this rulemaking would update the procedures the Agency uses to collect permit fees under Part 320 and the amounts of those fees in response to changes to §12.2 of the Environmental Protection Act. Comments are due April 13, 2009. See http://www.cyberdriveillinois.com/departments/index/register/register_volume33_issue9.pdf (pp. 3576-587)

KANSAS


Water:



  • The Kansas Department of Health and Environment will hold a public hearing on proposed revisions to K.A.R. 28-16-28g, Kansas Surface Water Quality Standards. The proposed revisions identify the designated use changes for 731 stream segments and 71 lakes as a result of "use attainability analysis" findings. Four stream segments are proposed for deletion from the Kansas Surface Water Register; one stream segment has been rerouted and combined to form one segment; 19 stream segments are proposed for secondary contact recreation; 18 stream segments are proposed for primary contact recreation; and 726 stream segments added or changed designated use assignments for aquatic life support use, food procurement, domestic water supply, industrial water supply, livestock watering irrigation, and groundwater recharge. The hearing will be May 7, 2009. See http://www.kssos.org/pubs/register%5C2009%5CVol_28_No_10_March_5_2009_p_225-256.pdf (p. 235)

MASSACHUSETTS


Hazardous & Solid Waste:



  • The Department of Environmental Protection (MassDEP) will hold public hearings on proposed regulations to implement a portion of §32 of Chapter 169 of the Acts of 2008, Green Communities Act. Section 32 classifies a waste-to-energy (WTE) facility in commercial operation prior to December 31, 1997, that uses conventional municipal solid waste technology to generate electricity as a Class II renewable energy generating source if it "operates or contracts for one or more recycling programs approved by the Department of Environmental Protection."  MassDEP proposed to establish within its solid waste regulations the requirement for a solid waste facility permit modification that specifies how a WTE facility will obtain an approved recycling program from MassDEP. WTE facilities will need to demonstrate compliance with these regulations in order to qualify as a Class II renewable energy generating source under the Department of Energy Resources Renewable Energy Portfolio Standards. The hearings will be March 31 and April 1, 2009. See http://www.mass.gov/dep/public/hearings/wecphn.htm   

MINNESOTA


Water:



  • The Minnesota Pollution Control Agency seeks public comment on proposed amendments to Minnesota Rules chapters 7050 and 7052, governing state water quality standards. Chapter 7052 provides standards specific to surface waters of the state in the Lake Superior Basin. Chapter 7052 establishes aquatic life, human health, and wildlife water quality standards and criteria for Great Lakes Initiative pollutants, nondegradation standards, and implementation procedures for deriving effluent limitations from these standards and criteria. Comments are due April 17, 2009. See http://www.comm.media.state.mn.us/bookstore/stateregister//33_35.pdf (pp. 1493-1501)

SOUTH DAKOTA


Water:



  • The Department of Environment and Natural Resources will hold a public hearing on proposed amendments to 35 SDR 189, Surface Water Quality. The changes would update references; correct typographical errors; clarify language; update toxic pollutant criteria; add and modify definitions; modify the dissolved oxygen and pH criteria; add E. coli criteria; set site-specific criteria for the Little White River and White River; add beneficial uses to low flow rates for low quality fishery waters; review, remove, and reassign designated beneficial uses of certain lakes; review and reassign designated beneficial uses of certain streams; and correct typographical errors. The hearing will be held March 11, 2009. See http://denr.sd.gov/boards/2009/wmb0309.pdf for meeting agenda and http://denr.sd.gov/des/sw/SWQRuleChanges08.pdf for proposed changes

TEXAS


Air:



  • The Texas Commission on Environmental Quality adopted amendments to Chapter 117, Control of Air Pollution from Nitrogen Compounds. The adopted rules amend the major source rules in the Beaumont-Port Arthur ozone nonattainment area and both the major and minor source rules for the Houston-Galveston-Brazoria ozone nonattainment area. These adopted changes will be consistent with the output-based monitoring option currently allowed for stationary engines and gas turbines at major sources in the Dallas-Fort Worth eight-hour ozone nonattainment area. See http://www.sos.state.tx.us/texreg/sos/adopted/30.ENVIRONMENTAL%20QUALITY.html#363

UTAH


Water:



  • The Department of Environmental Quality proposed amendments to R317-1, Definitions and General Requirements. The proposed amendments implement the new operating permit program, amending the powers and duties of the Water Quality Board to include the authority to issue operating permits for wastewater treatment works. See http://www.rules.utah.gov/publicat/bulletin/2009/20090301/32380.htm

  • The Department of Environmental Quality seeks public comment on proposed amendments to R317-1-7, TMDL. This section incorporates by reference the following completed and approved TMDLs into the rule: Brough Reservoir; Steinaker Reservoir; Red Fleet Reservoir; and Newcastle Reservoir. Each TMDL document has gone through an individual public review process, has been approved by U.S. EPA, and is adopted by the Water Quality Board. Comments are due March 31, 2009. See http://www.rules.utah.gov/publicat/bulletin/2009/20090301/32379.htm

  • The Department of Environmental Quality seeks public comment on proposed amendments to R317-5-1, General. The proposed changes incorporate operating permit requirements in these rules, allow local health departments to have more involvement in the approval of large underground wastewater systems, and expand components of a large wastewater system to include technologies that are considered to be alternative pursuant to Rule R317-4. Comments are due March 31, 2009. See http://www.rules.utah.gov/publicat/bulletin/2009/20090301/32381.htm

WASHINGTON


Toxic Substances:



  • The Department of Ecology is proposing to update chapter 173-340 WAC, the Model Toxics Control Act (MTCA) cleanup regulation, and certain portions of chapter 173-204 WAC, the sediment management standards (SMS). These rules govern the cleanup of contaminated sites in Washington. Issues being considered include revisions to establish clear policies and align MTCA and SMS requirements for sediments, updating cleanup standards to reflect new scientific information, and recent changes to state and federal regulations. See http://apps.leg.wa.gov/documents/laws/wsr/2009/05/09-05-028.htm

WYOMING


Hazardous & Solid Waste:



  • The Wyoming Water and Waste Advisory Board will hold a public hearing on a proposed regulation governing the underground injection and storage, or sequestration, of carbon dioxide. This regulation is developed pursuant to legislation passed during the 2007-2008 legislative session, directing the Department of Environmental Quality to develop regulations for permitting the geologic sequestration of carbon dioxide. The hearing will be held March 13, 2009. See http://deq.state.wy.us/wqd/events/ADV_BD/ADV_Bd_03_13_09/3-13-09%20WWAB%20Brd%20Mtg%20Pub%20Notice.pdf

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


INTERNATIONAL

JAPAN TO RAISE CARBON OFFSET BUYING


After lagging well-behind its annual plan, Japan plans to step up its purchases of carbon offsets from developing countries, a government official said.  The government has pledged to buy a total of 100 million tons in carbon offsets from abroad for delivery between Kyoto Protocol's 2008-2012 period.  Separately, Japan's utility and steel companies are big offset buyers. Their voluntary reduction in greenhouse gas emissions is the core of Japan's plan to meet its Kyoto target to cut emissions by 6 percent from the 1990 levels. The government bought the equivalent of 6.4 million tons in the year to March 2007 and 16.7 million tons in the year to March 2008, all of which were certified emissions reductions (CERs). CERs are generated by projects that avoid greenhouse gas emissions in developing countries under Kyoto's Clean Development Mechanism. For the full story, see http://www.reuters.com/article/GCA-GreenBusiness/idUSTRE5252S320090306

CHINA ANNOUNCES GREEN FUNDING FOR TIBET


China plans to spend 15bn yuan (£1.5bn) on environmental protection in Tibet, including measures to halt the encroachment of deserts on the roof of the world, the state media reported. Although the new money is presented as green spending, Tibetan exile groups fear much of it will be used to fund ecologically and culturally damaging development projects, including the damming of rivers and measures to force nomads off high-altitude pasture lands. The Tibetan plateau, the highest region on earth, is suffering from soil erosion, melting permafrost, shrinking glaciers, grassland degradation, and declining biodiversity as a result of increasing human activity and climate change. Since 1961, temperatures have risen 0.32 C every 10 years, one of the fastest rates of warming in the world, leading ice fields on the "third pole" to melt faster than anywhere else in China. The population has almost tripled in the same period as a result of an influx of migrants from China's dominant Han ethnic majority. For the full story, see http://www.guardian.co.uk/environment/2009/mar/06/tibet-china-environment-protection

UK URGED TO SPEED UP CARBON CAPTURE AND STORAGE AS POWER CRUNCH NEARS


Britain should cast aside its hesitation and press ahead with carbon capture and storage (CCS) projects, especially as it needs to replace many coal-fired generators, a government advisor told Reuters. Peter Whitton, managing director of the Advisory Committee on Carbon Abatement Technologies (ACCAT), said its study showed Britain could source about 10 percent of its power from CCS-equipped fossil fuel plants by 2020. This would help Britain cut carbon emissions by 80 percent by 2050, while ensuring electricity supply and providing a back up to multiplying wind farms, despite the closure of about 25 gigawatts of aging coal, oil, and nuclear plants by 2015. CCS is a process that allows carbon dioxide to be captured from power stations and transported to suitable locations for storage, such as former oil or gas fields. For the full story, see http://www.reuters.com/article/GCA-GreenBusiness/idUSTRE52558U20090306

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


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