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Weekly Update Volume 41, Issue 17




The Tenth Circuit upheld the dismissal of an environmental group's CAA citizen suit against a power company alleging that it was attempting to build a coal-fired power plant with an invalid PSD permit. The permit provided that if construction did not commence by May 29, 2005, or if construction was discontinued for a period of 24 months or more, the permit would become invalid. The group asserted that the company failed to comply with both conditions and that the permit was therefore invalid. But in 2005, the Wyoming Environmental Quality Council issued an order finding that the company had commenced construction by May 29, 2005. In 2007, the Council issued another order concluding that the company did not cease construction operations for a 24-month period or more, and a district court affirmed this order in 2009. The district court's 2009 decision therefore precludes the issue of whether the company engaged in continuous construction. And the Council's 2005 Order precludes the issue of whether the company timely commenced construction. Even though the group disagrees with the position the agency took and was not satisfied with the result of the Council’s 2005 Order, the agency acted to ensure that the company commenced construction before May 29, 2005, in accordance with the PSD permit. Moreover, the agency was in privity with the citizens of Wyoming in the 2005 Council proceedings under the doctrine of parens patriae. As such, it was in privity with the group. And the Council resolved disputed issues of fact in an adversarial proceeding. Sierra Club v. Two Elk Generation Partners, Ltd., No. 10-8032, 41 ELR 20202 (10th Cir. May 31, 2011).


The D.C. Circuit set aside an order of the Federal Mine Safety and Health Review Commission denying a mining company's application for temporary relief from restrictions that the Mine Safety and Health Administration imposed on it in conjunction with its investigation of an explosion at one of its mines. Within hours of the explosion, the MSHA issued an order seizing control of the mine under §103(k) of the Federal Mine Safety and Health Act. A few months later, as the company was preparing for a formal investigation of the disaster, the MSHA modified the §103(k) order to incorporate an evidentiary protocol that imposed various restrictions on the company. The company then sought temporary relief, but the Commission held that §105(b)(2) of the Mine Act does not offer relief from §103(k) orders--or from any other order, except one pursuant to §104. The company then filed the instant petition for review, and the court disagreed with the Commission's interpretation of the statute. Section 105(b)(2) of the Mine Act is not ambiguous and subject to deference. Rather, the court noted that it was a "marvel of congressional clarity." Under §105, the company is clearly entitled to seek temporary relief from a modification or termination of any order, including a §103 order. The court, therefore, set aside the commission's order. Performance Coal Co. v. Federal Mine Safety & Review Commission, No. 10-1280, 41 ELR 20205 (D.C. Cir. June 10, 2011).


A district court held that the U.S. Forest Service's Public Wheeled Motorized Travel Management Decision for the Eldorado National Forest violated the ESA and the National Forest Management Act. The decision designates specific roads and trails within the forest as open to public motor vehicle use and correspondingly prohibits cross-country motorized travel. Environmental groups filed suit, arguing that the decision leaves too many routes open to vehicle use. The group's primary argument was that the Forest Service was required to first identify a minimum road system under Subpart A of its Travel Management Rule before designating roads for public use under Subpart B of the rule. But the Forest Service may address Subparts A and B in any order, and the groups failed to show that the rule's language compels the court to follow their interpretation. But the groups succeeded on their National Forest Management Act claim since the decision designates routes through meadows in apparent violation of the Sierra Nevada Forest Plan. In addition, the Forest Service failed to adequately consult with the FWS regarding the designation of previously unauthorized routes in violation of ESA §7(a)(2). Center for Sierra Nevada Conservation v. United States Forest Service, No. 09-2523, 41 ELR 20203 (E.D. Cal. May 26, 2011) (Karlton, J.).


A district court held that the FWS' biological opinion (BiOp) for the U.S. Army's proposed ongoing and future operations at Fort Huachuca--a major military installation in southeastern Arizona--violates the ESA and is arbitrary and capricious. The BiOp concluded that the operations will not jeopardize the Huachuca water umbel or the southwestern willow flycatcher or adversely modify their critical habitats. But the BiOp fails to examine the effects of Fort Huachuca's operations on recovery of the species and their critical habitat and fails to provide a rational connection between findings in the BiOp and the record and its ultimate conclusion that the operations will not affect recovery. The BiOp relies on mitigation measures that are not reasonably specific nor reasonably certain to occur. The BiOp also contains conclusions that are not supported by the record or the best scientific or commercial data available, and it fails to articulate a rational connection between the facts found and the conclusion made. And because the FWS committed legal error in its BiOp, the Army's reliance on a legally flawed BiOp is arbitrary and capricious in violation of ESA §7. Center for Biological Diversity v. Salazar, No. 07-484, 41 ELR 20204 (D. Ariz. May 28, 2011) (Tashima, J.).


A California appellate court held that the Office of Environmental Health Hazard Assessment (OEHHA) may add chemicals to California's Proposition 65 list using the methodology set forth in Cal. Health & Safety Code §25249.8(a). Proposition 65 requires the government to publish a list of chemicals known to the state to cause cancer or reproductive toxicity. The California Chamber of Commerce argued that the method set forth at §25249.8(a), which requires listing of substances identified in the state's Labor Code, was only to be used when the list was initially created. The court disagreed. Although §25249.8 is ambiguous and the legislative history is neutral on the matter, Proposition 65 is a remedial statute and should be broadly construed to accomplish its protective purposes. Accordingly, the Labor Code reference method continues to specify the minimum content of the Proposition 65 list as it is revised and republished. Chamber of Commerce v. Brown, No. A125493, 41 ELR 20201 (Cal. App. 1st Dist. June 6, 2011).

Copyright© 2011, Environmental Law Institute, Washington, D.C. All rights reserved.


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


  • EPA seeks public comment on draft guidance concerning the application of certain emission certification regulations to heavy-duty diesel engines using selective catalytic reduction systems. 76 FR 32886 (6/7/11).

  • SIP Approvals: Idaho (regional haze and best available retrofit technology requirements) 76 FR 33651 (6/9/11). Illinois/Missouri (attainment of the 1997 eight-hour ozone NAAQS for the St. Louis (Mo.-Ill.) metropolitan nonattainment area) 76 FR 33647 (6/9/11). Oregon (interstate transport of pollution) 76 FR 33650 (6/9/11). Pennsylvania (quality assurance for the motor vehicle inspection and maintenance (I/M) program) 76 FR 32321 (6/6/11); (air pollution control rules and regulations for Allegheny County) 76 FR 34000 (6/10/11).

  • SIP Proposals: California (volatile organic compound emissions for the San Joaquin Valley unified air pollution control district) 76 FR 33181 (6/8/11). Pennsylvania (quality assurance for the motor vehicle I/M program; see above for direct final rule) 76 FR 32333 (6/6/11); (air pollution control rules and regulations for Allegheny County; see above for direct final rule) 76 FR 34020 (6/10/11); (nitrogen oxide emissions from glass melting furnaces) 76 FR 34021 (6/10/11). Tennessee (limited approval of regional haze requirements) 76 FR 33662 (6/9/11). Texas (permit renewal requirements) 76 FR 32333 (6/6/11).


  • The president proclaimed June 2011 as Great Outdoors Month. 76 FR 32857 (6/7/11).

  • The president proclaimed June 2011 as National Oceans Month. 76 FR 33119 (6/7/11).


  • FWS designated approximately 521.3 acres in Chaves County, New Mexico, and Pecos and Reeves Counties, Texas, as critical habitat for the Koster's springsnail, Noel's amphipod, Pecos assiminea, and Roswell springsnail. 76 FR 33036 (6/7/11).

  • FWS proposed to designate approximately 348 acres in San Diego County, California, as critical habitat for the listed willowy monardella and to delist the Jennifer's monardella subspecies. 76 FR 33880 (6/9/11).

  • FWS announced a 12-month finding on a petition to list Yellowstone sand verbena, Ross' bentgrass, precocious milkvetch, Fremont County rockcress, and Gibbens' beardtongue as threatened or endangered and to designate critical habitat under the ESA; the agency found that only listing Fremont County rockcress is warranted but precluded by higher priority actions. 76 FR 33924 (6/9/11).

  • FWS announced a 12-month finding on a petition to list the striped newt as threatened under the ESA; the agency found that listing is warranted but precluded by higher priority actions. 76 FR 32911 (6/7/11).

  • NOAA-Fisheries extended ESA prohibitions to all activities impacting the listed Gulf of Maine distinct population segment of Atlantic sturgeon throughout its range, except for scientific research and rescue/salvage activities. 76 FR 34023 (6/10/11).


  • United States v. Allied Metal Co., No. 11 C 3228 (N.D. Ill. May 16, 2011). A settling CAA defendant responsible for violations at its facility in Chicago, Illinois, must pay a $92,210 civil penalty; must permanently shut down its thermal chip dryer and remove it from its permit; must surrender all pollution credits for the dryer; must perform a $132,627 supplemental environmental project on Cook County municipal or school bus diesel vehicles; must perform a $132,627 supplemental environmental project along its Chicago River property; and must provide periodic reports on implementation of its obligations. 76 FR 34102 (6/10/11).

  • United States v. Candle Development, LLC, No. 08-4086 (D.S.D. June 3, 2011). Settling CWA defendants that discharged pollutants into waters of the United States without a permit in Lincoln County, South Dakota, must pay a civil penalty and must restore the impacted areas and/or mitigate the damages. 76 FR 33784 (6/9/11).

  • United States v. United Nuclear Corp., No. CV 11-01060-PHX-NVW (D. Ariz. May 31, 2011). A settling CERCLA defendant responsible for violations at the Pine Mountain Mine Superfund site in the Tonto National Forest in Arizona must pay $800,000 in U.S. response costs incurred at the site. 76 FR 33784 (6/9/11).

  • United States v. Union Pacific Corp., No. 8:11-cv-00195 (D. Neb. June 1, 2011). Settling CERCLA defendants responsible for violations at the Omaha Lead Superfund site in Omaha, Nebraska, must pay $21,350,000 in U.S. response costs incurred at the site, must spend $3.15 million in community health education on the health risks of lead exposure, and must pay $100,000 to the DOI and $400,000 to the Nebraska Department of Environmental Quality. 76 FR 33364 (6/8/11).

Copyright© 2011, Environmental Law Institute, Washington, D.C. All rights reserved.


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

Committee Action

  • S. 710 (hazardous waste) was reported by the Committee on Environment and Public Works. 157 Cong. Rec. S3541 (daily ed. June 7, 2011). The bill would amend the Solid Waste Disposal Act to direct the administrator of EPA to establish a hazardous waste electronic manifest system.

Bills Introduced

  • S. 1144 (Wyden, D-Or.) (soda ash) would amend the Soda Ash Royalty Reduction Act of 2006 to extend the reduced royalty rate for soda ash. 157 Cong. Rec. S3947 (daily ed. June 6, 2011). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 1149 (Wyden, D-Or.) (geothermal energy) would expand geothermal production. 157 Cong. Rec. S3541 (daily ed. June 7, 2011). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 1150 (Casey, D-Pa.) (federal land) would establish the Susquehanna Gateway National Heritage Area in the state of Pennsylvania. 157 Cong. Rec. S3541 (daily ed. June 7, 2011). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 1153 (Hatch, R-Utah) (federal land) would require the Secretary of the Interior to develop a multipurpose cadastre of federal land and identify inaccurate, duplicate, and out-of-date federal land inventories. 157 Cong. Rec. S3541 (daily ed. June 7, 2011). The bill was referred to the Committee on Energy and Natural Resources.

  • H.R. 2110 (Bishop, D-N.Y.) (Long Island Sound) would amend the Federal Water Pollution Control Act to reauthorize and improve activities for the protection of the Long Island Sound watershed. 157 Cong. Rec. H4034 (daily ed. June 3, 2011). The bill was referred to the Committee on Transportation and Infrastructure and the Committee on the Budget.

  • H.R. 2111 (McDermott, D-Wash.) (ESA) would ensure that proper information gathering and planning are undertaken to secure the preservation and recovery of the salmon and steelhead of the Columbia River Basin, and direct the Secretary of Commerce to seek scientific analysis of federal efforts to restore salmon and steelhead listed under the ESA. 157 Cong. Rec. H4034 (daily ed. June 3, 2011). The bill was referred to the Committees on Transportation and Infrastructure, Energy and Commerce, and Natural Resources.

Copyright© 2011, 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 2011, visit our list of Cumulative State Developments. For state material reported prior to 2011, visit the ELR Archives.

The states below have updates this week:

California Illinois Indiana
Kentucky Maryland New Jersey
South Dakota Vermont Virginia
West Virginia  



  • The Air Resources Board proposed to amend Cal. Code Regs. tit. 17, §94006, relating to the list of equipment defects that substantially impair the effectiveness of gasoline vapor recovery systems. Changes would incorporate defects certified in executive orders and add new defect verification procedures. The deadline for comment is July 6, 2011. See http://www.oal.ca.gov/res/docs/pdf/notice/22z-2011.pdf (pp. 923-25).



  • The Pollution Control Board proposed to amend 35 Ill. Admin. Code 217, Nitrogen Oxides Emissions. Changes would add a provision sunsetting the Nitrogen Oxides SIP Call requirements as set forth in Subpart U that apply to non-electric generating units. Beginning with the 2009 control period (May 1 through September 30), Non electric generating units will no longer be required to hold NOx allowances in an amount equal to their seasonal NOx emissions. These sources will continue to be required to monitor, record, and report seasonal NOx emissions. The deadline for comment is July 25, 2011. See http://www.cyberdriveillinois.com/departments/index/register/register_volume35_issue23.pdf (pp. 8363-77).



  • The Air Pollution Control Board amended 326 Ind. Admin. Code 2, concerning transition fees and permits. Changes take effect July 8, 2011. See http://www.in.gov/legislative/iac/20110608-IR-326070286PRA.xml.pdf.

  • The Air Pollution Control Board amended 326 Ind. Admin. Code 4.1, concerning open burning. Changes add types of burning allowed under the regulation, including burning for natural area and wildlife habitat maintenance and the burning of clean petroleum products for fire training. According to the public notice, the exemptions are not expected to increase the amount of open burning occurring in the state. Changes take effect July 8, 2011. See http://www.in.gov/legislative/iac/20110608-IR-326090362PRA.xml.pdf.


Land Use:

  • The Energy and Environment Cabinet proposed to amend 400 Ky. Admin. Regs. 2:090, management, use, and protection of nature preserves. Changes would alter regulations pertaining to wildfires and construction on or near nature preserves, among other revisions. There will be a public hearing on June 23, 2011, and the deadline for comment is June 30. See http://www.lrc.state.ky.us/kar/400/002/090reg.htm.



  • The Department of the Environment amended Md. Code Regs. 26.11.02, Permits, Approvals, and Registration, and added chapter 26.11.36, Distributed Generation. Among other changes, the amendments establish annual reporting requirements for curtailment service providers that negotiate contracts with facilities that operate on-site generators/engines and alter requirements relating to load-shaving units. The rule took effect June 13, 2011. See http://www.dsd.state.md.us/mdregister/3812.pdf (p. 708).

  • The Department of the Environment amended Md. Code Regs. 26.11.09, Control of Fuel-Burning Equipment, Stationary Internal Combustion Engines, and Certain Fuel-Burning Installations. Changes limit the burning of used oil to fuel-burning equipment that burns fuel oil, require a permit to construct or other authorization for fuel-burning equipment that will burn on-specification used oil if it has a rated heat input capacity of 50 million btu or more, and require a permit to construct application for installations that propose to burn waste combustible fluid (WCF) or off-specification used oil and assure that the WCF is burned in an authorized installation. See http://www.dsd.state.md.us/mdregister/3812.pdf (p. 708).



  • The Department of Environmental Protection proposed to readopt N.J. Admin. Code §7:14C, Sludge Quality Assurance, with amendments. Among other changes, the amendments would extend the analytical exemption in the existing rules to small generators with a permitted wastewater flow of less than or equal to 20,000 gallons per day. See http://www.lexisnexis.com/njoal/ (43 N.J.R. 1312 (a)).



  • The Department of Environment and Natural Resources proposed to amend rules to redistrict seven water development districts and repeal rules due to the end of the American Recovery and Reinvestment Act. There will be a public hearing June 23, 2011, and the deadline for written comment is June 22. See http://legis.state.sd.us/rules/register/06062011.pdf (p. 231).



  • The Air Pollution Control Board proposed to amend Vermont Air Pollution Control Regulations, 5-221(1). Changes would require lower sulfur limits for fuel used for heat or power generation as part of a regional strategy agreed to by Mid-Atlantic and Northeast states to reduce regional haze. There will be a public hearing on June 21, 2011, and the deadline for comment is June 28. See http://www.anr.state.vt.us/air/htm/ProposedAmendments.htm#sulfurlimit.




Land Use:

Copyright© 2011, Environmental Law Institute, Washington, D.C. All rights reserved.



Britain said last week that, despite protests from the industry, it would reduce support tariffs for large-scale solar plants starting August 1, attempting to avoid the creation of a large number of new commercial solar farms that would compete with homes for funding. Ronan O'Regan, director of energy and utilities at consultancy PwC, said that the move would allow the government to focus on the smaller end of the market, as the reduction would only affect plants producing more than 50 kilowatts. However, she added that "it's going to make delivery of large-scale solar projects in the UK very difficult, if not impossible." The move, less than a year after Britain announced the subsidy, reduces the tariff to 8.5 pence from 29.3 pence, and spares homes and small businesses from cuts. "Had we not acted urgently to reduce tariffs the whole feed-in tariff scheme would have been entirely swamped," said Climate Change Minister Greg Barker, who added that the UK could have ended up with a "Spanish-style bubble." For the full story, see http://www.reuters.com/article/2011/06/09/us-britain-solar-cut-idUSTRE7582FP20110609 and http://www.bloomberg.com/news/2011-06-09/u-k-cuts-subsidized-rates-for-solar-power-by-as-much-as-71-.html.


The Food and Agriculture Organization of the United Nations warned that countries should improve water management ahead of droughts and water availability issues brought on by climate change. A statement released last week cautioned that changes in water availability will tighten agricultural water supplies, and that "livelihoods of rural communities as well as the food security of city populations are at risk." The organization suggested that mapping vulnerability to water scarcity is crucial, but that the rural poor are likely to be disproportionately affected. However, improved water conservation measures, including planting deep-rooted crops, using agro-forestry systems, and changing planting cycles, could increase food security by more efficiently using soil moisture. However, many of the nations likely to be most affected also have the highest rates of population growth, putting further strain on food security. According to Tim Gore, international climate change at Oxfam, "climate change . . . will devastate our future food supply." For the full story, see http://www.reuters.com/article/2011/06/09/us-water-climate-fao-idUSTRE7584JQ20110609 and http://www.voanews.com/english/news/africa/Climate-Change-Threatens-World-Food-Production-123373078.html.


A report released last week said that carbon pricing is Australia's cheapest, most effective way to cut pollution. The report, by Australia's Productivity Commission, assessed how nine major economies were taking climate change action and was requested by Prime Minister Gillard to deflect political opposition to her plan. "The consistent finding from this study is that much lower cost abatement could be achieved through broad, explicitly carbon pricing approaches, irrespective of the policy settings in competitor economies," the report said. The commission did not recommend a starting price for a carbon tax, saying that its study found it difficult to calculate a comparable international figure. However, Independent MP Tony Windsor welcomed the report, and Treasurer Wayne Swan said it should put to rest fears that Australia would be disadvantaged by action on climate, as other nations are undertaking carbon abatement initiatives. "The report shows that Australia is in no danger of acting alone," Swan said. ''Far from it. We're in danger of falling behind." Opposition leader Tony Abbott said that imposing a carbon scheme would be an "economic self harm by Australia," as the report showed that no other nation had an economy-wide emissions trading scheme. For the full story, see http://www.reuters.com/article/2011/06/09/us-australia-carbon-idUSTRE7580GE20110609. For Australian politician's responses, see http://www.canberratimes.com.au/news/national/national/general/carbon-price-closer-on-windsors-nod/2191305.aspx?storypage=0. For an analysis on the costs of and barriers to implementing a scheme, see http://www.theaustralian.com.au/national-affairs/commentary/australia-at-the-high-end-when-it-comes-to-emissions-abatement-costs/story-e6frgd0x-1226073265305. For a story on a camel-culling offset program announced two weeks ago, see http://www.reuters.com/article/2011/06/02/us-australia-carbon-camels-idUSTRE7512FA20110602.

Copyright© 2011, Environmental Law Institute, Washington, D.C. All rights reserved.

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