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Weekly Update Volume 40, Issue 29




A district court dismissed a hunting and fishing organization's NEPA and FLPMA claims against the BLM challenging its approval of oil and gas operations in the Pinedale Anticline natural gas field in western Wyoming. Claims that the BLM violated FLPMA were dismissed because the record supports the agency's determination that "unnecessary or undue degradation" would not occur. Nor did the BLM violate NEPA. The agency's 2008 record of decision considered a reasonable range of alternatives, including a "no action" alternative, and it took a "hard look" at the operations' impacts on hunting and sage grouse as a whole. The record of decision also included a meaningful discussion on monitoring and mitigation.Theodore Roosevelt Conservation Partnership v. Salazar, No. 08-1047, 40 ELR 20262 (D.D.C. Sept. 29, 2010) (Leon, J.).


A district court granted an individual's motion to remand to state court her personal injury lawsuit against a chemical company and its successors for damages stemming from the unlawful disposal of dioxin and furan waste at a chemical plant in Nitro, West Virginia. She alleges that her exposure to the contamination caused her to develop cancer. The companies had the case removed to federal court. But the defendant companies' removal arguments fail. Federal diversity jurisdiction requires that every defendant be completely diverse from every plaintiff. Here, the companies failed to demonstrate that one of the successor company's principal place of business is outside of West Virginia. At most, they demonstrated that there is ambiguity surrounding that company's principal place of business—ambiguity that must be resolved against the defendants. Nor was one of the companies fraudulently joined to establish state jurisdiction. The court also rejected the defendants' reliance on the federal officer removal statute to establish federal jurisdiction. The defendants argued that the chemical company was compelled by the U.S. government to manufacturer the chemicals for use in Agent Orange. But there is no causal nexus between any government control of manufacturing and the defendants' waste disposal practices at the plant in Nitro. The plaintiff's motion to remand the case to state court was therefore granted.Agee v. Monsanto Co., No. 3:09-cv-1336, 40 ELR 20264 (S.D. W. Va. Sept. 29, 2010) (Goodwin, J.).


A district court denied coal companies' motion to transfer and/or consolidate an environmental group's CWA and SMCRA action against them for surface mine discharges with another case brought by the same group against the two additional companies concerning selenium runoff. The companies contend that CWA/SMCRA action and the selenium action involve common questions of law and fact, the joint resolution of which will avoid duplicative or potentially inconsistent judgments, along with promoting the efficient use of judicial resources. But the overriding interests in consistent adjudication, avoidance of duplicative litigation, maximization of judicial and other resources, and apt consideration of the group's divisional choice overcome the considerations identified by companies that weigh in favor of transfer and/or consolidation.Sierra Club v. Elk Run Coal Co., No. 2:10-00673, 40 ELR 20265 (S.D. W. Va. Oct. 1, 2010) (Copenhaver, J.).


A California appellate court reversed and remanded a lower court decision that a proposed development project approved by a county was categorically exempt from environmental review under the California Environmental Quality Act (CEQA). The county determined that the categorical exemption for in-fill development applied to the project. But the project will not take place "within city limits" and, thus, the county used the wrong legal standard in applying the exemption. Contrary to the county's assertions, a policy of encouraging urban in-fill does not overcome the requirements of CEQA and does not expand the exemption to projects that clearly lie outside the legal criteria. Because the unlawful omission of information from the environmental review process constitutes prejudicial error, the lower court's order was vacated and remanded.Tomlinson v. County of Alameda, No. A125471, 40 ELR 20263 (Cal. App. 1st Oct. 6, 2010).

Copyright© 2010, Environmental Law Institute, Washington, D.C. All rights reserved.


Note: Citations below are to theFederal Register(FR).


  • EPA proposed to approve California's perchloroethylene air emission standards for dry cleaning facilities.75 FR 61662(10/6/10).
  • SIP Approval:Georgia (completeness determination of the 1997 fine particulate matter NAAQS for the Atlanta nonattainment area)75 FR 62323(10/8/10).
  • SIP Proposals:California (volatile organic compound (VOC) emissions)75 FR 61367(10/5/10); (nitrogen oxide emissions)75 FR 61369(10/5/10). Mississippi (PSD permitting regulations)75 FR 62024(10/7/10). Tennessee (attainment of the 1997 eight-hour ozone NAAQS and maintenance plan for the Knoxville nonattainment area)75 FR 62026(10/7/10); (maintenance plan for the Nashville area through 2018)75 FR 62354(10/8/10).


  • The USDA's Animal and Plant Health Inspection Service withdrew the FONSI that would have allowed the interstate movement of municipal solid waste from Hawaii to a landfill in the state of Washington so it could reevaluate the environmental impacts.75 FR 61121(10/4/10).


  • OSM proposed to approve an amendment to Montana's regulatory program under SMCRA that seeks to improve the program's flexibility and operational efficiency.75 FR 61366(10/5/10).


  • The president issued Executive Order No. 13554 to establish the Gulf Coast Ecosystem Restoration Task Force in response to the Deepwater Horizon oil spill.75 FR 62313(10/8/10).


  • EPA extended the date for compliance with pesticide container and containment labeling regulations to August 16, 2011.75 FR 62323(10/8/10).


  • FWS proposed to list the Altamaha spinymussel as an endangered species under the ESA and to designate approximately 240 kilometers of mainstem river channel in southeastern Georgia as critical habitat.75 FR 61664(10/6/10).
  • FWS announced a 12-month finding on a petition to list the Sacramento splittail as endangered or threatened under the ESA; the agency found that listing is not warranted.75 FR 62070(10/7/10).
  • FWS designated approximately 6,720 acres in Los Angeles, Riverside, and San Diego Counties, California, as final revised critical habitat for Spreading Navarretia under the ESA.75 FR 62192(10/7/10).
  • FWS issued guidelines under the MMPA for safely and nonlethally deterring polar bears from damaging private and public property and endangering the public.75 FR 61631(10/6/10).
  • NOAA-Fisheries proposed threatened status under the ESA for one distinct population segment of Atlantic sturgeon and proposed endangered status for two other distinct population segments in the Northeast region.75 FR 61872(10/6/10).
  • NOAA-Fisheries proposed endangered status under the ESA for two distinct population segments of Atlantic sturgeon in the Southeast region.75 FR 61904(10/6/10).
  • NOAA-Fisheries announced a 90-day finding and 12-month determination on a petition to revise critical habitat for the North Atlantic right whale under the ESA; the agency found that revision may be warranted and expects to propose a critical habitat rule in 2011.75 FR 61690(10/6/10).


  • United States v. Dakota Ethanol, LLC, No. 4:10-CV-04144-LLP (D.S.D. Sept. 30, 2010). A settling CAA defendant that violated its Title V operating permit and new source performance standards at an ethanol production facility in Lake County, South Dakota, must pay a $75,000 civil penalty, must conduct VOC performance tests and report the results to EPA within 90 days, and must apply to include the testing requirements in a federal or state program within 180 days.75 FR 62421(10/8/10).
  • United States v. James Valley Ethanol, LLC, No. 4:10-CV-04143-KES (D.S.D. Sept. 30, 2010). Settling CAA defendants that violated their Title V operating permits and new source performance standards at ethanol production facilities in Brown and Grant Counties, South Dakota, must pay a $150,000 civil penalty, must conduct VOC performance tests and report the results to EPA within 90 days, and must apply to include the testing requirements in a federal or state program within 180 days.75 FR 62421(10/8/10).
  • United States v. Bud's Oil Service, Inc., No. CV10-7032 GAF (C.D. Cal. Sept. 21, 2010). A settling CERCLA defendant responsible for violations at the Omega Chemical Superfund site in Whittier, California, and the Casmalia Resources Superfund site in Santa Barbara County, California, must pay $485,000 in U.S. response costs incurred at the sites.75 FR 62422(10/8/10).
  • United States v. Quality Distribution, Inc., No. 1:10-cv-05098-NLH-KMW (D.N.J. Oct. 4, 2010). A settling CERCLA defendant responsible for groundwater and wetland contamination at the Chemical Leaman Tank Lines, Inc. Superfund site in Bridgeport, New Jersey, must pay $1,570,000 in U.S. response costs incurred at the site, must pay future U.S. response costs incurred at the site, and must finance and perform an EPA-selected remedy estimated to cost $5,030,000.75 FR 62422(10/8/10).
  • United States v. Air Distribution Products, No. 2:10-cv-07056-GW (C.D. Cal. Sept. 23, 2010). Fifteen settling CERCLA defendants responsible for violations at the San Gabriel Valley Area 1 Superfund site in South El Monte, California, must pay $2,007,095 in past and future U.S. response costs incurred at the site.75 FR 61773(10/6/10).
  • United States v. Murphy Oil USA, Inc., No. 3:10-cv-00563-bbc (W.D. Wis. Sept. 28, 2010). A settling CAA defendant responsible for violations at petroleum refineries in Superior, Wisconsin, and Meraux, Louisiana, must pay a $1.25 million civil penalty, must perform injunctive relief at both refineries, and must perform a $1.5 million supplemental environmental project at the refinery in Louisiana.75 FR 61774(10/6/10).

Copyright© 2010, Environmental Law Institute, Washington, D.C. All rights reserved.


Congress is currently in recess but will reconvene November 15, 2010.

Copyright© 2010, Environmental Law Institute, Washington, D.C. All rights reserved.


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 2010, visit our list ofCumulative State Developments. For state material reported prior to 2010, visit theELR Archives.

The states below have updates this week:

Alabama California Delaware
District of Columbia Idaho Illinois
Indiana Kentucky Louisiana
Minnesota New Hampshire New Jersey
New York Oregon Pennsylvania





  • The Air Resources Board proposed to amend Calif. Code Regs. tit. 13, §, affecting the in-use performance standards of diesel-powered transport refrigeration units. There will be a public hearing on November 18, 2010. Seehttp://www.oal.ca.gov/res/docs/pdf/notice/40z-2010.pdf (pp. 1579-84).

Hazardous & Solid Waste:

  • The Office of Oil Spill Prevention and Response proposed to amend Calif. Code Regs. tit. 14, §§ 790, 815, 816, 817, 818, 825 826, and 827. Changes would alter existing regulations regarding oil spill contingency plans to remove requirements for a post-spill review, add requirements to identify and revoke obsolete plans, and alter the tank vessel/nontank vessel requirements to make them more consistent, in addition to other changes. Seehttp://www.oal.ca.gov/res/docs/pdf/notice/40z-2010.pdf(pp. 1584-86).

Toxic Substances:

  • The Department of Pesticide Regulation proposed to amend Calif. Code Regs. tit. 3, §§ 6445.5, 6448.1, 6449.1, 6450.1, 6452.2, 6452.3, 6452.4, 6536, and 6626, Field Fumigant Use Requirements DPR Regulation No. 10–004. The rules would add and revise existing field fumigation methods in existing ozone nonattainment areas when using 1,3–Dichloropropene, chloropicrin, metam–sodium, or potassium N–methyldithiocarbamate (metam– potassium); amend triggers for fumigant limits in nonattainment areas and the allowance system used to enforce the fumigant limits; and clean up sections pertaining to licensing and pesticide use reporting requirements related to volatile organic compounds. There will be a public hearing on November 16, 2010, and the last day to submit comments is November 17. Seehttp://www.oal.ca.gov/res/docs/pdf/notice/40z-2010.pdf(pp. 1555-58).



  • The Department of Natural Resources and Environmental Control proposed to amend 7 Del. Admin. Code §§1125 & 1130, relating to PSD permitting requirements, to incorporate U.S. EPA's greenhouse gas tailoring rule. According to the Department, there are currently no more than 20 sources that would be affected by the regulation. There will be a public hearing on October 28, 2010. Seehttp://regulations.delaware.gov/register/october2010/proposed/14%20DE%20Reg%20263%2010-01-10.htm#P7_195.
  • The Department of Natural Resources and Environmental Control proposed to adopt 7 Del. Admin. Code §1140, Delaware's National Low Emission Vehicle Regulation. The regulation would add a state Low Emission Vehicle program, incorporating the requirements of California's program, and mandating that only California-certified vehicles may be legally sold in the state starting in 2013. The Department said that, after extensive research with local car dealers, the highest percentage of non-California Air Resources Board certified cars available on any lot was 10%, while the majority of dealers had zero, one, or two vehicles without the certification. There will be a public hearing on October 22, 2010. Seehttp://regulations.delaware.gov/register/october2010/proposed/14%20DE%20Reg%20264%2010-01-10.htm#P9_218
  • The Department of Natural Resources and Environmental Control amended 7 Del. Admin. Code §1124, Control of Volatile Organic Compound Emissions. The rule conforms Delaware regulations to those of the Ozone Transport Commission. The new rule reduces the volatile organic compound contents of regulated coatings, regulates additional types of coatings, and requires the use of equipment that provides for high transfer efficiency. The rules took effect October 11, 2010. Seehttp://regulations.delaware.gov/register/october2010/final/14%20DE%20Reg%20319%2010-01-10.htm#P9_223.
  • The Department of Natural Resources and Environmental Control amended 7 Del. Admin. Code §1138, Emission Standards for Hazardous Air Pollutants for Source Categories. The rule adds paint strippers containing methylene chloride and motor vehicles that contain probable human carcinogens as area sources. The regulation took effect October 11, 2010. Seehttp://regulations.delaware.gov/register/october2010/final/14%20DE%20Reg%20320%2010-01-10.htm#P9_239.






Land Use:

  • The Department of Lands proposed to repeal Idaho Admin. Code r. 58.10, Timber Supply Stabilization Act of 1989. All comments must be received by October 27, 2010. Seehttp://adm.idaho.gov/adminrules/bulletin/bul/10bul/10Oct.pdf(p. 351).
  • The Department of Lands proposed to amend Idaho Admin. Code r. 20.02.14, Rules for Selling Forest Products on State Owned Endowment Lands. Changes would authorize the Department to sell state timber as delivered products and would authorize the director to set permit rates. Comments must be submitted by October 27, 2010. Seehttp://adm.idaho.gov/adminrules/bulletin/bul/10bul/10Oct.pdf(p. 352).


  • The Department of Environmental Quality proposed to amend Idaho Admin. Code r. 58.01.04, Rules for Administration of Wastewater Treatment Facility Grants. The rule revises priority rating criteria for the Clean Water State Revolving Fund and makes an environmental study optional for some recipients. There will be a public hearing on October 26, 2010. Seehttp://adm.idaho.gov/adminrules/bulletin/bul/10bul/10Oct.pdf(pp. 568-69).
  • The Department of Environmental Quality proposed to amend Idaho Admin. Code r. 58.01.12, Rules for Administration of Water Pollution Control Loans. The rule revises priority rating criteria to include points for sustainability and changes the subsidy process so that interest rates and loan repayment periods will be used in a more flexible manner, among other changes. There will be a public hearing on October 28, 2010. Seehttp://adm.idaho.gov/adminrules/bulletin/bul/10bul/10Oct.pdf(pp. 570-71).





  • The Natural Resources Commission proposed to amend 312 Ind. Admin. Code 9-3-18.5, Exotic Mammals. Amendments would remove suidae and tayassuidae from the list of mammal families that cannot be taken and add an exemption for taking animals that are a threat to public safety. There will be a public hearing on October 28, 2010. Seehttp://www.in.gov/legislative/iac/20101006-IR-312100104PRA.xml.pdf.



  • The Energy and Environment Cabinet amended 401 Ky. Admin. Regs. 59:015, new indirect heat exchangers. Among other changes, the amendment gives more specific classifications for indirect heat exchanges. Seehttp://www.lrc.state.ky.us/kar/401/059/015reg.htm.



  • The Department of Environmental Quality amended La. Admin. Code tit. 33:III §§111 and 2123, Organic Solvents and Solvent Degreasers. The amendments update and add new emission limitation and control technique efficiency requirements for organic solvent and solvent degreaser volatile organic compound emissions. Seehttp://www.doa.la.gov/osr/reg/1009/1009.pdf(pp. 2030-35).

Hazardous & Solid Waste:

  • The Office of Conservation proposed to amend La. Admin. Code tit. 43:XIX.303, 501, 519 and 545, Pollution Control—Onsite Storage, Treatment and Disposal of Exploration and Production Waste (E&P Waste) Generated from the Drilling and Production of Oil and Gas Wells. The proposed amendment would allow commercial facilities to reclaim material that would otherwise be disposed of as E&P Waste and to use said material solely as media during permitted hydraulic fracture stimulation operations. There will be a public hearing on October 25, 2010. Seehttp://www.doa.la.gov/osr/reg/1009/1009.pdf(pp. 2117-19).


  • The Department of Environmental Quality proposed to amend La. Admin. Code tit. 33:IX.2315 to eliminate the exemption from a Louisiana pollutant discharge elimination system permit for applying pesticides in accordance with the FIFRA label. The rule change will become effective April 11, 2011. Seehttp://www.doa.la.gov/osr/reg/1009/1009.pdf(pp. 2095-96).



  • The Environmental Quality Board proposed to amend Minn. r. 4410.4300 to clarify how greenhouse gases are to be treated under the air pollution mandatory environmental assessment worksheet category. Currently, the environmental review program rules do not define "air pollutant," and the Board is soliciting comments on whether the threshold of 250 tons per year for other sources permitted under the program is appropriate for greenhouse gas emissions. Seehttp://www.comm.media.state.mn.us/bookstore/stateregister/35_14.pdf(pp. 545-46).



  • The Department of Environmental Services proposed to adopt ENV-A 2300, Mitigation of Regional Haze, to establish emissions standards for sulfur dioxide, nitrogen oxides, and total suspended particulate matter at certain fossil fuel fired power plants. The new rules would make limits more stringent. There will be a public hearing on October 28, 2010, and the deadline to submit comments is November 8, 2010. Seehttp://www.gencourt.state.nh.us/rules/register/2010/october-1-10.pdf(pp. 9-10).


  • The Department of Environmental Services proposed to adopt the new ENV-A 101.35 & 101.96 to add definitions and regulations concerning the permitting of greenhouse gases, and ENV-A 619.03 to adopt federal PSD regulations and also to establish separate, higher thresholds for greenhouse gases. There will be a public hearing on October 28, 2010, and the deadline to submit comments is November 8, 2010. Seehttp://www.gencourt.state.nh.us/rules/register/2010/october-1-10.pdf(pp. 5-8).


Land Use:

  • The Department of Environmental Protection proposed to amend N.J. Admin. Code §§7:26C-3.2, 3.3, 3.5 and 9.5, Administrative Requirements for the Remediation of Contaminated Sites; Technical Requirements for Site Remediation Timeframes, Vapor Intrusion and Form Names. The comment period ends December 3, 2010. Seehttp://www.lexisnexis.com/njoal/(42 N.J.R. 2297a).



  • The Department of Environmental Conservation amended N.Y. Comp. Codes R. & Regs. tit. 6, §§200, 205, 211, and 241, Asphalt Pavement and Asphalt Based Surface Coating Regulation and Update of VOC Lists. The new limits for asphalt volatile organic compounds take effect January 1, 2011. Seehttp://www.dos.state.ny.us/info/register/2010/oct6/pdfs/rules.pdf(pp. 28-33).



  • The Department of Environmental Quality proposed to amend Or. Admin. R. Chapter 340, Heat Smart Program for residential woodstoves and other solid fuel burning devices--home sale removal and certification requirements. Rules require homeowners to remove and destroy uncertified woodstoves, and the changes would subject a broader range of stoves to the regulations. There will be public hearings throughout the state of Oregon in October, and the last day for comment is October 29, 2010. Seehttp://arcweb.sos.state.or.us/rules/October2010_Bulletin.pdf(pp. 11-12).





  • The Commission on Environmental Quality proposed to amend 30 Tex. Admin. Code §§334.42, 334.45, 334.49, & 334.50, Underground and Aboveground Storage Tanks. The earliest possible date of adoption is October 31, 2010. Seehttp://www.sos.state.tx.us/texreg/pdf/currview/1001is.pdf(pp. 8883-97).

Copyright© 2010, Environmental Law Institute, Washington, D.C. All rights reserved.



The death toll of a recent Hungarian industrial spill rose to five on Friday, giving rise to fears that the damage from the disaster could reach levels of the Romanian Baia Mare cyanide spill. An estimated one million cubic meters of lead, cadmium, arsenic, chromium, and other toxic heavy metals spilled from a refinery south of Budapest into a nearby river after a dam broke. The sludge, known as red mud, is a byproduct of the manufacture of bauxite into alumina, and has a ph level up to 13. The spill has already spread into nearby rivers, and the regional WWF director said that he feared high rain levels would mean a faster spread to the Danube, invoking memories of the deadly cyanide spill in Romania in 2000. He added that heavy metals are known for their longevity and that Hungary has similar refineries and depots storing 50 million cubic meters of toxic mud and radioactive elements close to rivers and drinking water reservoirs. Greenpeace has accused the owners of the plant of storing too much waste at the site. Officials have been working to combat the heavy metals, bringing pH levels within a safe range in the Danube, and the interior minister said that there had been no effect so far on drinking water. However, days of rain have kept the sludge wet, and a BBC reporter in Hungary said that warmer, sunnier weather could create dust that would spread toxins and, possibly, low level radioactive material, into the air. For the full story, seehttp://www.bbc.co.uk/news/world-europe-11498884. For the comparison to Baia Mare, seehttp://www.theecologist.org/News/news_round_up/624092/hungary_toxic_spill_could_be_worse_than_baia_mare_cyanide_disaster.html. For the WWF comments and future risks, seehttp://www.montrealgazette.com/news/world/More+disasters+waiting+happen+after+Hungary+spill/3643386/story.html.


Zijin Mining Group, China's largest gold producer, was given a $1.43 million fine for a July spill of acid waste at its largest copper mine that killed four people and enough fish to feed 72,000 people for a year. The company waited nine days to report the incident to authorities when it spilled 2.4 million gallons of acidic waste into the Ting River. According to Bloomberg, the spill is the worst mining disaster in China since a 2008 gold mine spill that poisoned the water supply of over 200,000 people. In China, environmental pollution with "especially serious consequences" carries a prison sentence of three to seven years, and the failure to properly disclose carries a sentence of three years. The corporation was suspended from trading in Hong Kong ahead of a statement on the penalty, but Zijin prices surged Friday on higher gold prices, rising a full ten percent. For the full story, seehttp://www.bloomberg.com/news/2010-10-04/zijin-mining-group-shares-halted-ahead-of-acid-waste-leak-penalty-in-china.html. For Zijin's share price rise, seehttp://www.upi.com/Business_News/2010/10/08/Metals-energy-push-stocks-in-China/UPI-23901286549655/.


A mechanism discussed at UN negotiations in Tianjin would reward forest-rich nations for efforts to reduce deforestation. The Reducing Emissions from Deforestation and Forest Degradation (REDD) mechanism funds nations such as Brazil, Indonesia, and Congo River basin states to protect forests. This is central to climate negotiations, as deforestation is estimated to account for nearly 20 percent of greenhouse gas emissions. However, the mechanism faces difficulties as important questions have yet to be answered, including how to set a price for each ton of avoided carbon, and how to protect the rights of indigenous people. Representatives from Papua New Guinea and Japan, however, are being accused of stalling talks by demanding the development of a work plan that specifies the responsibilities of donors and recipients. Papua New Guinea, co-chair of the REDD negotiations, has called for stricter donor scrutiny, as donors have been accused of failing to produce promised funds or "rebranding" previously allocated funds. However, a Greenpeace forest campaigner said that, "with a reputation of corruption, complete disregard for land owner rights, free and prior informed consent and accurate estimations of likely benefits accruing from REDD, [Papua New Guinea] is in no fit state to be receiving REDD funding without strict conditions in place." In addition, Greenpeace has cautioned that the mechanism may dissuade developed nations from reducing their own emissions because they can "buy" cheaper pollution rights. For the full story on REDD in Tianjin, seehttp://timesofindia.indiatimes.com/home/environment/flora-fauna/Deforestation-deal-offers-rare-hope-in-climate-change-fight/articleshow/6713222.cms. For the full story on stalled negotiations, seehttp://news.smh.com.au/breaking-news-world/png-stalling-un-climate-talksgreenpeace-20101007-169h0.html.

Copyright© 2010, Environmental Law Institute, Washington, D.C. All rights reserved.

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