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Weekly Update Volume 41, Issue 24




The Fourth Circuit denied a petition challenging a DOE rule setting forth energy conservation standards for small electric motors. The motors covered by the rule are electric induction motors ranging in power output from 0.25 to 3 horsepower. In promulgating the rule, the DOE invoked its authority to establish energy conservation standards for "small electric motors," a term defined by the Energy Policy and Conservation Act. An electronics association filed a petition for review, arguing that the statutory definition of a small electric motor unambiguously excludes all electric induction motors exceeding 1 horsepower, as well as certain motors rated at and less than 1 horsepower. But the statutory definition does not unambiguously incorporate such a limitation. Moreover, DOE's interpretation was a reasonable policy choice for the agency to make. Accordingly, the petition for review was denied. National Electrical Manufacturers v. United States Department of Energy, No. 10-1533, 41 ELR 20267 (4th Cir. Aug. 16, 2011).


A district court vacated two internal DOI guidance documents that address and limit the use of §390 of the Energy Policy Act of 2005, which establishes a "rebuttable presumption" that a categorical exclusion from review under NEPA would apply to certain oil and gas development activities on federal oil and gas leases. The documents--a BLM memorandum and a U.S. Forest Service letter--established a screening process to consider extraordinary circumstances when using any §390 categorical exclusion and imposed conditions limiting the use of the exclusions. Because the documents are a complete "about-face" compared to past practices, and because they bind the agencies and impose or affect individual rights and duties, the documents are rules as opposed to mere policy statements. In addition, the documents set forth legislative rules rather than interpretive ones, as the agencies admitted that the documents serve as "gap fillers." Accordingly, the court vacated the documents because they were adopted in violation of the APA's notice-and-comment requirements for legislative rules. Western Energy Alliance v. Salazar, No. 10-CV-237F, 41 ELR 20264 (D. Wyo. Aug. 12, 2011) (Freudenthal, J.).


The Third Circuit held that the Secretary of Labor need only demonstrate the possibility of exposure to asbestos that is substantially probable to lead to serious harm for purposes of classifying work standard violations as "serious." The Secretary had cited a company for nine "serious" violations of the asbestos in construction standard under the OSH Act. An administrative law judge affirmed all of the violations and upheld the classification of the violations as serious. But the Occupational Safety and Health Review Commission thereafter reduced the classification of the nine violations to "other-than-serious" and lowered the total penalty from $16,875 to $3,150, in part because the Secretary failed to present case-specific evidence of possible employee exposure to asbestos. But demonstrating the possibility of harmful exposure to asbestos does not require case-specific evidence where, as here, the Secretary demonstrates that: (1) employees engaged in a particular type of asbestos work; (2) the work at issue is presumed to generate significant employee exposure to asbestos under the regulations; (3) the employer had actual or constructive knowledge of the violative conditions; and (4) regulations were violated. The Commission's order was therefore vacated and remanded. Secretary of Labor v. ConocoPhillips Bayway Refinery, No. 10-2893, 41 ELR 20266 (3d Cir. Aug. 16, 2011).


The Ninth Circuit upheld the denial of animal rights groups' motion to preliminarily enjoin DOI from rounding up, destroying, or auctioning off wild horses and burros in the Twin Peaks Herd Management Area on the California-Nevada border. The groups claimed that the large-scale removal of horses conflicts with the Wild Free-Roaming Horses and Burros Act and that an EIS was required before any action could be implemented. Their motion for preliminary injunction, however, sought to enjoin only the effects of implementing the initial phase. Because the initial stage of the plan has concluded and the roundup has taken place, the groups' interlocutory appeal from the denial of a preliminary injunction is moot. The case, however, is not. In the event that the groups prevail on the merits of their claims, the district court should consider what relief is appropriate. In Defense of Animals v. United States Department of the Interior, No. 10-16715, 41 ELR 20265 (9th Cir. Aug. 15, 2011).


A district court denied an energy company's motion to dismiss residents' tort law claims against it for damages stemming from its operation of natural gas compression stations. The residents alleged that the compressor stations cause harmful levels of noise pollution and emit large amounts of methane and hydrogen sulfide, among other flammable and noxious gasses. They offered multiple theories of liability, including strict liability, nuisance, trespass, and negligence. Despite the company's arguments to the contrary, the residents sufficiently pleaded plausible facts supporting their theories of liability. It seems plausible that the compressor station could cause the injuries alleged in the residents' complaint and that the company is sufficiently connected to the operations of the facility. In addition, aside from the issue of attorneys fees (Arkansas law does not permit awards of attorneys fees for tort actions), the company's motion to dismiss certain claims for relief was premature. Likewise, it is too early at this stage of the litigation to strike the residents' class action allegation. Ginardi v. Frontier Gas Services LLC, No. 4:11CV00420-BRW, 41 ELR 20270 (E.D. Ark. Aug. 10, 2011) (Wilson, J.).


A district court granted a city's motion to dismiss a company's third-party complaint against it for reimbursement of cleanup costs the U.S. government incurred responding to hazardous substances at an industrial site formerly owned by the company. The government filed suit against the company under CERCLA for costs it incurred removing hazardous substances that were disposed of on the property during the time the company owned the property. The company then filed a third-party complaint against the property's current owner, the city. But for the city to be liable to the company for the government's costs, it must have accepted responsibility for these cleanup costs. Here, the clear and unambiguous language in the purchase and sale contract between the company and the city demonstrates that the company--not the city--is responsible for remediating hazardous substances that arose while the company owned the property. Accordingly, the company's third-party complaint against the city must be dismissed for failure to state a claim. United States v. ARG Corp., No. 3:10-CV-311, 41 ELR 20271 (N.D. Ind. Aug. 4, 2011) (Simon, J.).


A West Virginia court overturned a city's ordinance banning the hydraulic fracturing of Marcellus Shale. The city, characterizing the hydraulic fracturing process as a nuisance, argued that it has the authority to enact and enforce the ordinance pursuant to the rights given to the city by the "Home Rule" provisions of the West Virginia Constitution. But the state's interest in oil and gas development and production as set forth in the West Virginia Code provides for the exclusive control of this area of law to be within the hands of the state environmental agency. Moreover, the agency's regulations do not provide any exception or latitude to permit the city to impose a complete ban on fracking or to regulate oil and gas development and production. Because the city's ordinance encroaches upon the state's all encompassing authority regarding the production and development of oil and gas resources, the ordinance is preempted by state law. Northeast Natural Energy v. Morgantown, No. 11-C-411, 41 ELR 20269 (W. Va. Cir. Ct. Aug. 12, 2011) (Tucker, J.).


California's highest court upheld a regional water board's issuance of a NPDES permit authorizing a power plant to draw cooling water from an adjacent harbor and slough. An environmental group filed suit, claiming that the permit did not satisfy the "best technology available" requirement of CWA §316(b). They argued that the board erred by basing its best technology available determination on a finding that the costs of alternative cooling technologies for the plant were "wholly disproportionate" to the anticipated environmental benefits. But in Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208, 39 ELR 20067 (2009), the U.S. Supreme Court held that EPA may rely on cost-benefit analysis in setting national performance standards for cooling water intake structures and in providing for cost-benefit variances from those standards. Accordingly, recent Supreme Court authority confirms that, when applying federal CWA standards for the issuance of the permit, the board properly used cost-benefit analysis, and in particular a "wholly disproportionate" cost-benefit standard, to conclude that the power plant's existing cooling water intake design, as upgraded to accommodate the plant expansion, reflected the best technology available for minimizing adverse environmental impact. Voices of the Wetlands v. State Water Resources Control Board, No. S160211, 41 ELR 20268 (Cal. Aug. 15, 2011).


A Wisconsin appellate court held that real estate agents may be held liable to the purchasers of their client's property for failing to disclose that a landfill next to the purchased property was a Superfund site. The purchasers learned that the landfill was a Superfund site shortly after closing. The purchasers then filed a complaint against the former owner and the real estate agents alleging that they knew about the Superfund site but failed to disclose it on the real estate condition report. The defendants moved for partial summary judgment, arguing that the claim was barred by the economic loss doctrine and that agents should be dismissed from the lawsuit because there were no facts pled to support piercing the corporate veil. The lower court properly ruled that the purchasers' claim was not barred by the economic loss doctrine. But the lower court erred in dismissing the agents from the case as individuals. The lower court ruled that there was nothing in the record indicating that the agents acted outside the scope of their authority as agents of their client. But Wisconsin case law has firmly established that individuals are liable for their own tortious conduct. Thus, the agents in this case cannot hide behind the corporate veil. Ferris v. Location 3 Corp., No. 2010AP2203, 41 ELR 20272 (Wis. Ct. App. Aug. 10, 2011).


A Texas appellate court reversed and remanded a $550,019 judgment awarded to property owners in their suit against a neighboring convenience store for damages stemming from a leaking UST. The evidence was legally sufficient to show that the gasoline migrated from the store's property to the plaintiff's property, thus causing the explosion when a cell phone company drilled to install a cell phone tower. In addition, the evidence was legally sufficient to support the damage award, and the owners were not barred by law from recovering damages. But the trial court abused its discretion in excluding evidence related to gasoline links from a prior owner of the convenience store. Because this evidence was improperly excluded, and because the excluded evidence probably caused the rendition of an improper judgment, the judgment was reversed and remanded. E-Z Mart Stores, Inc. v. Ronald Holland's A-Plus Transmission & Automotive, Inc., No. 04-10-00192-CV, 41 ELR 20273 (Tex. App. Aug. 3, 2011).

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


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


  • EPA entered into a proposed consent decree in Sierra Club v. Jackson, No. 1:10-cv-02112-JEB (D.D.C.), that requires the Agency to take action on Arkansas' SIP on regional haze by December 15, 2011. 76 FR 51030 (8/17/11).

  • SIP Approvals: California (volatile organic compound (VOC) emissions for the South Coast air quality management district) 76 FR 50891 (8/17/11). Colorado (definition of nitrogen dioxide and other modifications) 76 FR 51903 (8/19/11). New York (revisions to the eight-hour ozone NAAQS for the New York and Poughkeepsie moderate nonattainment areas) 76 FR 51264 (8/18/11). Ohio (emissions of organic materials from stationary sources) 76 FR 51901 (8/19/11).

  • SIP Proposals: Maryland (VOC compounds) 76 FR 51314 (8/18/11); (guidelines for miscellaneous metal and plastic parts coatings) 76 FR 51922 (8/19/11); (control of VOC emissions) 76 FR 51925 (8/19/11). West Virginia (attainment of the 2006 fine particulate matter NAAQS for the Charleston nonattainment area) 76 FR 51927 (8/19/11).


  • EPA entered into a proposed administrative settlement under CERCLA that requires the settling parties to pay into an escrow account $35,000, plus interest, in past U.S. response costs incurred at the Carpenter Avenue Mercury Superfund site in Iron Mountain, Michigan. 76 FR 51029 (8/17/11).


  • OSM proposed to approve amendments to Texas' regulatory program under SMCRA concerning reclamation activities. 76 FR 50708 (8/16/11).

  • OSM proposed to approve an amendment to Kentucky's regulatory program under SMCRA concerning bond requirements. 76 FR 50436 (8/15/11).


  • EPA amended TSCA §8(a), the Inventory Update Reporting rule, and renamed it the Chemical Data Reporting rule, which concerns the collection of information on the manufacturing, processing, and use of commercial chemical substances and mixtures on the TSCA Chemical Substance Inventory. 76 FR 50816 (8/16/11).


  • FWS removed the Lake Erie watersnake from the list of endangered and threatened wildlife under the ESA due to its recovery. 76 FR 50680 (8/16/11).

  • FWS proposed to designate approximately 2,090 stream miles of federal, state, tribal, and private lands in Arizona, California, Colorado, Nevada, New Mexico, and Utah as critical habitat for the southwestern willow flycatcher under the ESA. 76 FR 50542 (8/15/11).

  • FWS announced a 90-day finding on a petition to delist the valley elderberry longhorn beetle under the ESA; the agency found that delisting may be warranted and initiated a status review. 76 FR 51929 (8/19/11).

  • FWS announced a 90-day finding on a petition to list the Leona's little blue butterfly as threatened or endangered and to designate critical habitat under the ESA; the agency found that listing may be warranted and initiated a status review. 76 FR 50971 (8/17/11).


  • United States v. Clean Harbors of Braintree, Inc., No. 11-11440 (D. Mass. Aug. 12, 2011). A settling EPCRA and RCRA defendant responsible for violations at its hazardous waste facility in Braintree, Massachusetts, must pay a $650,000 civil penalty and must implement a $1,062,500 supplemental environmental project involving the planting of approximately 1,400 trees in low-income or minority areas in Boston. 76 FR 51397 (8/18/11).

  • United States v. City of Newport, No. 08-265S (D.R.I. Aug. 11, 2011). A settling CWA defendant responsible for violations at its sewer system and water pollution control plant in Newport, Rhode Island, must pay a $170,000 civil penalty and must undertake extensive work to eliminate violations of the CWA. 76 FR 51397 (8/18/11).

  • United States v. C.A.I., Inc., No. 1:10-cv-10390-GAO (D. Mass. Aug. 12, 2011). Settling CAA and CERCLA defendants responsible for violations at the Danversport Superfund site, a former inks and paint products manufacturing facility in Danvers, Massachusetts, must pay a $400,000 civil penalty, must pay $290,000 in U.S. response costs incurred at the site, must transfer $27,000 from an escrow account to the United States, must sell the site property and transfer all sales proceeds to the United States, and must pay the United States 90% of proceeds from any other site-related proceedings. 76 FR 51398 (8/18/11).

  • United States v. City of Elkins, No. 2:11cv61 (N.D. W. Va. Aug. 10, 2011). A settling CWA defendant responsible for violations in the operation of its municipal wastewater and sewer system must pay a $32,400 civil penalty to the United States and to West Virginia, must implement injunctive measures by March 2023 at an approximate cost of $4.2 million, and must institute a yard waste pick-up and recycling program for Elkins' residents as a supplemental environmental project. 76 FR 50757 (8/16/11).

  • In re Barzel Industries Inc., No. 09-13204 (CSS) (Bankr. Del. Aug. 11, 2011). Settling CERCLA debtors responsible for violations at the Peterson/Puritan Superfund site in Lincoln and Cumberland, Rhode Island, must provide the United States with an allowed Class IV general unsecured claim in the amount of $260,828 and must pay the equivalent of any insurance proceeds recovered and federal income tax refund requested by the debtors. 76 FR 50758 (8/16/11).

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


Note: The citation below is to the Congressional Record (Cong. Rec.).

Bill Introduced:

  • H.R. 2821 (Palazzo, R-Miss.) (Deepwater Horizon) would allow damage payments from BP in connection with the blowout and explosion on the offshore drilling unit Deepwater Horizon to be included in gross income ratably over three years. 157 Cong. Rec. H5919 (daily ed. Aug. 16, 2011).

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:

Alaska District of Columbia Indiana
Maine Maryland Missouri
New Jersey Washington  





  • The Department of the Environment proposed to amend 20 D.C. Mun. Regs. §§1 and 7, General Rules and Volatile Organic Compounds (VOCs) and Hazardous Air Pollutants. Changes would reduce VOC emissions to alter the city's nonattainment status for eight-hour ground-level ozone. The comment period ends September 10, 2011. See http://www.dcregs.dc.gov/Gateway/NoticeHome.aspx?noticeid=1388475.



  • The Air Pollution Control Board amended 326 Ind. Admin. Code 2.2.1, 2.3.2, and 2.7.1, concerning permitting of ethanol production facilities. Changes exclude ethanol production facilities from those defined under the term "chemical process plants" in the major source category. The rule took effect August 21, 2011. See http://www.in.gov/legislative/iac/20110817-IR-326110099FRA.xml.pdf.

Hazardous & Solid Waste:

  • The Department of Environmental Management seeks public comment on amendments to 326 Ind. Admin. Code 10.12.2 and 10.39, concerning changes and updates to the financial assurance rules for solid waste land disposal facilities. Changes would amend current language to be more consistent with hazardous waste financial assurance mechanisms and clarify the language required in the financial assurance instruments. The deadline for comment is September 16, 2011. See http://www.in.gov/legislative/iac/20110817-IR-329110454FNA.xml.pdf.


Hazardous & Solid Waste:

  • The Board of Environmental Protection amended Ch. 900, Biomedical Waste Management Rules. Changes remove the requirement that the sharps portion of treated biomedical waste be shredded prior to being landfilled and clarify which discarded cultures are subject to regulation under the rules. The amendment took effect August 13, 2011. See http://www.maine.gov/sos/cec/rules/notices/2011/081711.html.



  • The Department of the Environment amended Md. Code Regs. 26.11.01, General Administrative Provisions, to remove references to Topical Memorandum 90-01 from the state's opacity regulations. Changes take effect August 22, 2011. See http://www.dsd.state.md.us/mdregister/3817.pdf (p. 1014).

  • The Department of the Environment amended Md. Code Regs. 26.11.01, General Administrative Provisions, and 26.11.09, Control of Fuel-Burning Equipment, Stationary Internal Combustion Engines, and Certain Fuel-Burning Installations. The amendment makes minor administrative corrections to the opacity regulations that became effective May 17, 2010. See http://www.dsd.state.md.us/mdregister/3817.pdf (p. 1014).

  • The Department of the Environment amended Md. Code Regs. 26.11.02, Permits, Approvals, and Registration, to clarify the requirements to obtain an exemption that must be met by facilities not normally exempt from needing a permit to construct under §§A-W. See http://www.dsd.state.md.us/mdregister/3817.pdf (p. 1014).



  • The Department of Natural Resources amended Mo. Code Regs. Ann. tit.10, §20.6.010, Construction and Operating Permits. Changes alter the exemption for the application of pesticides, add an exemption for hydrant flushing, and clarify the requirements for continuing authority status. There will be a public hearing November 2, 2011, and the deadline for comment is November 16. See http://www.sos.mo.gov/adrules/moreg/current/v36n16/v36n16b.pdf (pp. 1895-1908).


Hazardous & Solid Waste:

  • The Department of Environmental Protection proposed to amend N.J. Admin. Code §7, Discharges of Petroleum and Other Hazardous Substances, Underground Storage Tanks, Industrial Site Recovery Act, and Spill Act. Changes would remove all provisions related to the phase-in period of the rules, move all Industrial Site Recovery Act rules to the Underground Storage Tank section, replace technical requirements, and cite the Spill Act as authority for all of the chapters affected by this rule proposal. There will be a public hearing September 13, 2011, and the deadline for written comment is October 14. See http://www.lexisnexis.com/njoal/ (43 N.J.R. 1935(a)).

  • The Department of Environmental Protection proposed to amend N.J. Admin. Code §7.26, Electronic Waste Management Rules. Changes would amend the solid waste rules to prohibit the knowing disposal of a used covered electronic device as solid waste and require that electronic waste be recycled pursuant to the recycling rules, and would add a new subchapter on electronic waste recycling. The deadline for written comment is October 14, 2011. See http://www.lexisnexis.com/njoal/ (43 N.J.R. 2087(a)).


Toxic Substances:

  • The Department of Ecology adopted Wash. Admin. Code Chapter 173-334, Children's Safe Products Reporting Rule. The amendments alter the process used for updating the reporting list for chemicals of high concern to children, revise definitions of several key terms, and make changes to the reporting process. The rule took effect August 21, 2011. See http://apps.leg.wa.gov/documents/laws/wsr/2011/16/11-16-008.htm.

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



A march of 12,000 demonstrators against a chemical plant in the port city of Dalian caused China to shut down a plant that generates 2 billion yuan in local taxes every year. Calls to relocate the plant, which was called a "time bomb" by one protestor, mounted after a tropical storm caused a wave to breach a dike built to protect the plant from floodwaters. The plant produces paraxylene, a highly toxic chemical used in fabric manufacturing, and residents expressed concern that future flooding may cause a spill. In addition, reports suggested that the plant may have been operating illegally months before the spill. Protestors formed a "group stroll," a tactic used to show discontent with the Chinese government. "It's the environment that makes us angry," said one demonstrator. "In my memory Dalian has always been a clean, beautiful coastal city. We cannot endure its destruction." After the demonstration, authorities ordered the plant shut down and promised to relocate the facility. For the full story, see http://www.telegraph.co.uk/news/worldnews/asia/china/8707197/The-march-of-Chinas-new-middle-class.html and http://www.bbc.co.uk/news/world-asia-pacific-14520438.


Wind was cheaper than hydropower and natural gas in a government-organized auction in Brazil last week and is becoming the cheapest source of energy in the country. Wind farm developers agreed to sell power to utilities at an average price of 99.58 reais ($62.91) per megawatt hour, below the overall auction average of 102.07 reais. The costs promised by the wind-farm owners were 24% lower than developers agreed to in a similar auction a year ago. The low cost makes it the most cost-effective new power source in the country and the cheapest wind power anywhere in the world, if the auction winners are able to deliver. Possible causes for the drop in rate include a cut in the price of turbines following the 2008 financial crisis, more efficient wind farms, and a strong real against the U.S. dollar, which together have driven down the cost of producing wind power. Turbines still cost about one-third more in Brazil due to the country's import tax, but the launch of domestic factories set up by Siemens AG, GE, and Vestas may drive down the cost of producing wind power even further. Wind projects won 39% of the total contracted capacity, while natural gas won 38%. The farms may help diversify the country's hydropower dependent system--a needed addition to the portfolio as energy demand may rise as much as 60% from 2010 to 2020. For the full story, see http://af.reuters.com/article/energyOilNews/idAFN1E77G22E20110818?pageNumber=1&virtualBrandChannel=0 and http://www.bloomberg.com/news/2011-08-18/wind-beats-natural-gas-hydro-in-brazil-power-supply-bidding.html.


Coral reef ecologists have determined that the cause of the last decade's 90% decline in the Caribbean's most abundant reef builder may be human waste. Elkhorn coral, named after its resemblance to antlers, has suffered serious losses to white pox, a disease that kills the coral's tissues and causes disease in human beings. For years scientists could only speculate that the diseases were related, but recent analysis has indicated that the same disease present in human waste is responsible for the coral's decline. This represents the first example of human-to-invertebrate disease, and may suggest approaches for conservation. Ecologist Kathryn Sutherland said that researchers had long suspected a cause was human waste, leaked from septic systems in the Caribbean and off the coast of Florida, as the white pox is caused by a fecal enterobacterium, Serratia marcescens. However, there was no proof that the disease did not stem from other Serratia-carrying wildlife, including cats and seagulls. But recent research has shown not only that human waste infected with Serratia can cause the disease in elkhorn coral, but that waste treatment improvements can aid coral conservation. "This is a problem Caribbean-wide," said Sutherland, "and there's a widespread lack of wastewater treatment in the wider Caribbean region." For the full story, see http://www.npr.org/2011/08/17/139705482/caribbean-coral-catch-disease-from-sewage and http://www.enn.com/pollution/article/43114.

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

Note: To request additional information, please call (800) 433-5120 or (202) 939-3844. Documents may also be available free or at a nominal charge from the applicable court or agency. Copyright© 2011, Environmental Law Institute, Washington, D.C. All rights reserved.


John C. Cruden, Publisher
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