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Weekly Update Volume 30, Issue 1

01/03/2000

LITIGATION

red bar graphic NEPA, NUCLEAR WASTE, MAJOR FEDERAL ACTION:

The First Circuit dismissed the NEPA claims of an environmental group because the failure of the United States to regulate the passage of a ship carrying nuclear waste through waters in the U.S. exclusive economic zone (EEZ) is not a major federal action. The nuclear waste, which was transported between the islands of Puerto Rico and Hispaniola during its route from France to Japan, was not subject to regulation by the United States. Under an international treaty entered into by the United States, certain nuclear materials may be removed from governance of the treaty if the material is no longer usable for any nuclear activity or it has become irrecoverable. Here, the appropriate authority, which was not the United States, determined that the waste at issue was irrecoverable. Therefore, the treaty did not cover the waste and there was no federal action involved. Additionally, the power of the United States to regulate the passage of nuclear waste through EEZ waters is questionable. It has chosen not to do so, and there is no immediate evidence that it would have the authority if it so chose. Mayaguezanos Por la Salud y el Ambiente v. United States, No. 99-1412 (1st Cir. Dec. 20, 1999) (10 pp.).

red bar graphic RCRA, JURISDICTION:

The D.C. Circuit held that it did not have jurisdiction to review a mining corporation’s RCRA claims arising from an EPA document concerning mineral commodities. The document discussed the rare earth industry and the mining corporation’s operations specifically. The court lacks jurisdiction to review the document because it is not a regulation. The document does not interpret RCRA or EPA’s regulations, and it does not impose obligations on regulated interests or on EPA. It is merely a non-binding statement of EPA’s view of how it plans to regard particular activities relating to the production of mineral commodities. Additionally, if the document were a regulation, the mining corporation’s petition for review would be untimely. Moreover, the petition is not ripe because no concrete controversy exists. Molycorp, Inc. v. EPA, No. 98-1400 (D.C. Cir. Dec. 17, 1999) (5 pp.).

red bar graphic SDWA, FED. R. CIV. P. 24, INTERVENTION:

The Second Circuit affirmed a district court decision denying a citizen group’s motion to intervene in settlement discussions between EPA and the state. EPA brought a suit against the city of New York to compel the city to provide filtration treatment for the Croton watershed under the SDWA. The district court properly held that the citizen group could not intervene in the suit as a matter of right under the SDWA’s "private attorney general" provision because the group was not seeking to enforce administratively established criteria. Rather, it was seeking to block such enforcement. Additionally, the group could not intervene as a matter of right under Fed. R. Civ. P. 24 because its interests in preventing filtration were only collaterally related to the subject matter of the enforcement action, and the court doubted whether some of the group’s interests were even legally protectable. Moreover, the group failed to show that its members’ interests would be impaired by the disposition of the action in its absence. The district court also properly denied the group permissive intervention. United States v. City of New York, Nos. 98-6146(L), -6162(CON) (2d Cir. Dec. 16, 1999) (8 pp.).

red bar graphic SOVEREIGN IMMUNITY, APA §702:

The Second Circuit held that although a subpoena duces tecum issued by a utility company against EPA to produce certain discovery documents in a lawsuit in which it was not a party is barred by sovereign immunity, the APA waives that immunity. Enforcement of the subpoena would compel EPA to act and, therefore, is barred by sovereign immunity. The APA, however, provides an express waiver of this immunity and permits the enforcement of a non-party subpoena duces tecum for discovery against the government through a motion to compel compliance. Thus, the district court erred in holding that the enforcement of a non-party subpoena against the government could only be procured through an independent lawsuit. Consequently, the case was remanded so that EPA’s refusal to comply with the subpoena can be reviewed under the utility company’s motion to enforce. Additionally, it was immaterial that the subpoena named the wrong person because it was clearly directed to an office without regard to the named individual. EPA v. General Electric Co., No. 98-6279 (2d Cir. Dec. 14, 1999) (8 pp.).

red bar graphic SOVEREIGN IMMUNITY, FWPCA §401 STATE CERTIFICATION:

A Virginia appellate court held that the doctrine of sovereign immunity did not bar appeal of a state water control board permit modification. The board granted a permit modification for a dredge and fill operation after providing a public comment period but denying a hearing. On appeal, the board argued that sovereign immunity barred judicial review of its issuance of the modified permit. In prior case law, however, the court held that the state statute governing the board’s issuance of permits under FWPCA §401 expressly waives the board’s sovereign immunity as to the grant of those permits. Riverview Farm Associates v. Commonwealth, No. 2337-98-2 (Va. Ct. App. Dec. 7, 1999) (3 pp.).

red bar graphic ZONING, FINAL AGENCY DECISION, LAND OWNERSHIP:

The Idaho Supreme Court held that a county planning board’s failure to determine the ownership of submerged land located within a wildlife sanctuary of a planned unit development (PUD) before approving the PUD violated the county zoning ordinance. The developer agreed to sell and donate 102 acres of land within the PUD for a wildlife sanctuary for use as common open space. The zoning ordinance, however, does not permit a common open space in a PUD to consist of public lands. Moreover, whether the state or the developer currently owns 80 acres of submerged land within the sanctuary is unresolved. The board, therefore, must make new factual findings with respect to ownership. All other issues on appeal were affirmed. In addition, the board’s approval of a preliminary plat within the PUD was subject to judicial review because no further action was required before the developer could begin construction. Rural Kootenai Organization v. Board of Commissioners, No. 22271 (Idaho Dec. 9, 1999) (22 pp.).

red bar graphic FAILURE TO FILE AN ANSWER, TEMPORARY AGREEMENT:

The New Hampshire Supreme Court denied a recycling company’s motion to strike a default judgment, but remanded the case because the lower court failed to conduct a hearing on the relief requested by the state. The company was prosecuted under state hazardous waste laws for knowingly operating a solid waste facility without a permit and failing to manage hazardous waste in accordance with state law. The parties entered into a temporary agreement that was incorporated into a court order, and the company, believing that the agreement concluded the matter, failed to file an answer to the state’s order of notice. The lower court properly refused to strike the default judgment entered against the company because the company’s failure to answer was not due to accident, mistake, or misfortune as previously defined by the court, and a reasonably prudent person would have responded. However, the lower court erred when it declined the company’s motion to have a hearing on the relief requested by the state. The default judgment was merely a decree pro confesso, not a verdict or a judgment. A hearing, therefore, must be held to determine the proper remedy. State v. Consolidated Recycling, Inc., No. 97-656 (N.H. Dec. 16, 1999) (3 pp.).

red bar graphic RETROACTIVITY, SETTLEMENT AGREEMENT:

A New Jersey appellate court denied a solid waste collector’s application to reopen and vacate a settlement agreement it entered into with the state environmental agency even though the waste flow regulations under which the agreement was reached were later declared unconstitutional. Applying the unconstitutionality of the waste flow regulations retroactively would potentially place a tremendous burden on the judicial system in general, and on the state environmental agency in particular. Additionally, public policy strongly favors the settlement of litigation. Moreover, a settlement agreement is a contract that should be honored absent a demonstration of fraud or other compelling circumstances, and a subsequent change in the law is insufficient to warrant the agreement’s recission. Zuccarelli v. New Jersey, No. A-5236-97T5 (N.J. Super. Ct. App. Div. Dec. 13, 1999) (5 pp.).

red bar graphic CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA), "PROJECT":

A California appellate court held that a city’s failure to conduct an environmental review prior to placing a measure on a ballot, which proposed the removal of 29 properties from the city’s Register of Historic Landmarks, violated CEQA. The decision to de-list or de-designate a historical resource is a change in the legal status of the resource that may remove the property from CEQA requirements concerning use or building permits for alterations, destruction, or relocation of the property. Accordingly, the de-listing or de-designation of the 29 properties is a "project" within the meaning of CEQA. Moreover, the city approved the project because in addition to placing the measure on the ballot, the city took several discretionary actions that committed it to the de-designation of the properties. Under CEQA, however, an environmental impact review must be conducted before a project can be approved. Therefore, because the city did not proceed in the manner required by CEQA, the resolution placing the measure on the ballot must be set aside and the election invalidated. Friends of Sierra Madre v. City of Sierra Madre, No. B129139 (Cal. Ct. App. Dec. 8, 1999) (33 pp.).

red bar graphic STANDING, STATE STATUTES:

A Wisconsin appellate court held that a state environmental agency did not have standing to challenge the constitutionality of two state statutes that limited the agency’s authority to set ordinary high water mark boundaries for lakes. A state agency generally may not challenge a statute’s constitutionality. Additionally, the agency’s challenge of the statutes did not fall within the great public concern exception because this exception applies only to situations where a private litigant is also involved. Silver Lake Sanitary District v. Wisconsin Department of Natural Resources, No. 99-0620 (Wis. Ct. App. Dec. 9, 1999) (9 pp.).

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Copyright© 2000, Environmental Law Institute, Washington, D.C. All rights reserved.

THE FEDERAL AGENCIES

Note: Citations below are to the Federal Register.

red bar graphic AIR:

  • EPA issued final rules that continue to allow permitting authorities the discretion to defer CAA title V operating permit requirements until December 9, 2004, for area sources of air pollution that are subject to NESHAPs for chromium emissions from hard and decorative chromium electroplating and chromium anodizing tanks, ethylene oxide commercial sterilization and fumigation operations, perchloroethylene dry cleaning facilities, halogenated solvent cleaning machines, and secondary lead smelting. 64 FR 69637 (12/14/99). http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=1999_register&docid=fr14de99_8
  • EPA announced that it entered into a proposed partial consent decree that addresses a lawsuit filed against EPA by various environmental organizations under CAA §304(a) for allegedly failing to meet a mandatory deadline under CAA §110(c) to promulgate federal implementation plans establishing attainment demonstrations for certain serious or severe ozone nonattainment areas located in the eastern part of the United States, and for failing to impose sanctions in those areas. 64 FR 71453 (12/21/99). http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=1999_register&docid=fr21de99_75

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red bar graphic HAZARDOUS WASTES:

red bar graphic MINING:

red bar graphic SMCRA PROGRAM APPROVALS:

red bar graphic PESTICIDES:

red bar graphic TOXIC SUBSTANCES:

red bar graphic WATER QUALITY:

red bar graphic DOJ NOTICES OF SETTLEMENT:

  • U.S. v. HPS&R, Inc., No. 7:99-CV-222-BR(1) (E.D.N.C. Nov. 22, 1999) (an FWPCA defendant that engaged in the unauthorized discharge of dredged and/or fill material into U.S. waters at the Phillips-Sabiston Estate in Onslow County, N.C., must pay a $85,000 civil penalty and must preserve 100 acres of wetlands as a supplemental environmental project), 64 FR 69784 (12/14/99); http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=1999_register&docid=fr14de99_103
  • U.S. v. Aircraft Services Int., Inc., Nos. J-C-98-362, -363 (E.D. Ark. Nov. 23, 1999) (CERCLA defendants must complete EPA’s remedy for the South Eighth Street site in Crittendon County, Ark., and must pay an appropriate generator share of past and future costs at the South Eighth Street site and the Gurley Pit site, also in Crittendon County; settling federal agencies must pay $1.5 million), 64 FR 70285 (12/16/99); http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=1999_register&docid=fr16de99_104
  • U.S. v. Exxon Corp., No. C-92-486 (D.N.H. Dec. 8, 1999) (four CERCLA defendants must pay $5.84 million in past U.S. response costs incurred at the Auburn Road Landfill Superfund site in Londonderry, N.H., must perform future work at the site under EPA’s 1989 record of decision as amended in 1996, and must pay EPA’s oversight costs; to resolve claims for civil penalties and punitive damages, two of those defendants must pay $100,000 in civil penalties and punitive damages and one of those defendants must pay $25,000 and perform a supplemental environmental project; the four defendants as well as several third party defendants must also reimburse the state and the town for their portion of past response costs), 64 FR 71499 (12/21/99). http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=1999_register&docid=fr21de99_115

Copyright© 2000, Environmental Law Institute, Washington, D.C. All rights reserved.

IN THE STATES

red bar graphic ALABAMA:

  • Department of Environmental Quality
    Notice of Review Hearing ADEM has requested comment by Jan. 12, 2000, regarding potential revisions to the state’s water quality standards (Admin. Code Chapters 335-6-10 and 335-6-11) in connection with the triennial review process.

red bar graphic ALASKA:

  • Department of Environmental Conservation
    Proposed Discharge Prevention Plan Renewal ADEC seeks comment on application for renewal of the Valdez Marine Terminal Oil Discharge Prevention and Contingency Plan (Plan No. 993-CP-4057). The plan is being reviewed for consistency with AS 46.04.030 and 6 AAC 80. Comments must be submitted to the ADEC Joint Pipeline Office by Jan. 10, 2000.

  • Department of Natural Resources
    Proposed Regulations DNR proposed to amend, adopt, and repeal regulations in Title 11 of the Alaska Admin. Code, dealing with public easements and rights-of-way, to implement AS 19.10.010, AS 19.30-400-420, AS 38.04.058, AS 38.04.200, AS 38.05.127, and AS 40.15.305. Comments are due by Jan. 4, 2000, to the Division of Mining, Land and Water. Copies of the proposed regulations are available at http://www.dnr.state.ak.us/land.

red bar graphic ARKANSAS:

  • Department of Environmental Quality
    Proposed Regulation APC&EC proposed revisions to Regulation No. 23 (Hazardous Waste Management). The rulemaking would incorporate all U.S. EPA revisions to 40 C.F.R. Parts 124, 260-66, 268, 270, 273, and 279 published in the Federal Register between Feb. 11, 1999, and July 6, 1999. The revisions include corrections to and clarifications of specific land disposal requirements and treatment standards for particular waste streams; guidelines for the analysis of oil, grease, and nonpolar substances under the RCRA regulations; and provisions for including spent electrical lamps in the universal waste management program. Certain state-specific rules would also be revised, including defining the terms “solid waste management unit,” “completed fiscal year,” and “total liability” as used in the financial assurance requirements; amendments to the provisions for annual reporting by hazardous waste generators to comport with recent legislative changes; and a clarification that both commercial and non-commercial hazardous waste management facility operators are subject to training requirements for waste handlers. Written comments are due by Jan. 3, 2000.

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red bar graphic CALIFORNIA:

  • Air Resources Board
    Postponement of Public Meeting; Written Comment Deadline ARB postponed a public meeting, originally scheduled for Dec. 9, 1999, regarding approval of a revised on-road motor vehicle emissions inventory. The new date is March 23, 2000 (the date in the public notice is incorrect). The inventory is required pursuant to §39607(b) of the California Health and Safety Code. Two ARB staff reports, “Revision to the State’s On-Road Emissions Inventory Estimation Model–EMFAC2000,” and “EMPAC2000 On-Road Emissions Inventory Estimation Model” have been prepared. A final version of the model and supporting documentation reflecting changes in response to comments previously received will be available Feb. 3, 2000, and may be downloaded from http://www.arb.ca.gov/msei/msei.htm. Written comments must be submitted by March 22, 2000 or received at the public hearing.

    Final Regulations; Comment Period on Reports; Public Meeting ARB approved, on Dec. 9, 1999, new regulations that will prohibit the use of gasoline formulated with MTBE (methyl tertiary butyl ether) after Dec. 31, 2002. The regulations also establish more stringent standards for sulfur and benzene and less stringent requirements for distillation temperatures and Reid Vapor Pressure. These new standards also become effective Dec. 31, 2002. The Board concluded that some refiners would need additional time to make plant modifications to convert their entire production volume for California to non-MTBE gasoline. ARB also released an assessment, conducted jointly with SWRCB and OEHHA pursuant to Executive Order D-5-99, which found no significant air quality impacts from potential statewide use of ethanol in gasoline. The reports may be viewed at http://www.calepa.ca.gov/programs/MTBE/EOTasks.htm. A public meeting to discuss the reports is scheduled for Jan. 18, 2000; written comments may be submitted to the Environmental Policy Council by Dec. 31, 1999.

  • Department of Toxic Substances Control
    Workshops DTSC conducted pre-proposal workshops in December regarding potential revisions to the Universal Waste Rule; several of the contemplated revisions would incorporate changes to the U.S. EPA regulations, including the addition of hazardous waste batteries (excluding automotive type lead-acid batteries, which continue to be regulated under lead-acid battery recycling regulations), mercury-containing thermostats, and spent fluorescent tubes. The Department would also delete distinctions between large and small quantity handlers of universal waste, making the U.S. EPA large quantity requirements apply to all handlers except as may be specified otherwise. In addition, offsite storage at consolidation points without a permit would generally be limited to 90 days. Storage permits for storage greater than 90 days would fall within the standardized permit tier. An offsite storage period of 1 year would be authorized for batteries to coincide with federal law. U.S. DOT requirements found in 49 C.F.R. Parts 171 through 180 would apply to universal waste transporters, and the storage period at transfer facilities would be limited to 6 days (10 days in areas zoned for industrial use). Draft regulatory changes may be found at http://www.dtsc.ca.gov/txhazreg.htm.

red bar graphic COLORADO:

  • Air Quality Control Commission
    Proposed Regulation AQCC set Jan. 10, 2000, as the hearing date for a proposal that would replace the existing requirement that motor vehicles be tested at emissions inspection stations with a remote sensing program. The “clean screen program” would be implemented in the Denver area beginning in 2002. Other proposed revisions to CO standards, oxygenated fuels requirements, and ambient air quality criteria will be considered at the hearing.

  • Water Quality Control Commission
    Continued Public Informational Hearing The Commission set Jan. 10, 2000, as the date for continuing the public informational (non-rulemaking) hearing on approval of an update to the Colorado Nonpoint Source Management Program. The first hearing was held on Oct. 13, 1999. A new draft, which reflects comments submitted to date, is available at http://www.cdphe.state.co.us/wq/wqcc/cupsmpu.html. The Commission encourages the submission of written comments (15 copies) by Dec. 29, 1999.

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red bar graphic CONNECTICUT:

  • Department of Environmental Protection
    Notice of Intent; Regional Public Hearings DEP drafted a proposed 20-year Statewide Solid Waste Management Plan in accordance with §22a-228 of the Connecticut Gen. Statutes, and is conducting a series of public hearings: Jan. 24 (New Haven), Jan. 27 (Hartford), Jan. 31 (Bridgeport), Feb. 7 (Waterbury), and Feb. 10, 2000 (Norwich). Copies of the plan may be obtained from DEP or found at municipal libraries. Written comments must be submitted by March 1, 2000.

    Proposed Total Maximum Daily Load (TMDL) DEP is requesting, through Jan. 3, 2000, comments on a proposed Long Island Sound TMDL for nitrogen to address hypoxia. The proposed TMDL would achieve a 58.5 percent reduction in nitrogen below 1990 levels to be achieved by 2014. Sewage treatment plants and stormwater runoff from urban and agricultural areas would be targeted. A copy of the TMDL may be obtained at http://dep.state.ct.us/wtr/LIS/tmdl.htm.

red bar graphic GEORGIA:

  • Department of Natural Resources, Environmental Protection Division
    Air Quality Permits EPD is seeking comments by Jan. 7, 2000, on various air quality permit applications regarding Butts, Crisp, Forsyth, Heard, Henry, Jackson, and Newton counties.

    Proposed Rule Amendments EPD proposed revisions to the Rules for Air Quality Control, the Procedures for Testing and Monitoring of Air Pollutants, and the SIP for ozone for the Atlanta ozone nonattainment area. Revisions to Rules 391-3-1-.01, 391-3-1-.02, and 391-3-1-.03 are being proposed. The proposed amendments may be viewed at http://www.dnr.state.ga.us/dnr/environ. A public hearing has been scheduled for Jan. 20, 2000; written comments are due by that date. The revisions will be considered by the Board of Natural Resources at its Jan. 26, 2000, meeting.

red bar graphic ILLINOIS:

  • Pollution Control Board
    Proposed Identical-in-Substance Regulations The PCB issued for a 45-day comment period, following publication in the Illinois Register, identical-in-substance regulations that would implement U.S. EPA wastewater pretreatment regulations. Specifically, the proposal would incorporate revisions to federal requirements that occurred between Jan. 1, 1999, and June 30, 1999, including an amendment to the 40 C.F.R. §136 methods for whole effluent toxicity testing, a new method for analyzing oil and grease, and guidance issued June 8, 1999 by EPA on the analysis of mercury in water.

  • Environmental Protection Agency
    Release of Report IEPA issued on Nov. 30, 1999, an updated report, “Non-Hazardous Waste Management and Landfill Capacity in Illinois,” that shows (using 1998 data) an all-time high volume of remaining permitted landfill capacity in Illinois. However, the Report also notes that the Chicago metropolitan area has only 6.8 years of remaining capacity at current disposal rates. Five landfills accounted for 41 percent of total waste volumes accepted during 1998. The Report, which includes information for each permitted facility, may be obtained from the Bureau of Land, Solid Waste Management Section.

    Proposed Regulations IEPA set a Jan. 20, 2000, hearing date (10:00 a.m., Springfield) for proposed rules that would authorize emission test averaging for the purpose of determining whether an emission unit subject to stack testing requirements is in compliance. Written comments must be postmarked by Feb. 19, 2000. A Jan. 18 hearing date has been established for proposed supplements to the 9 percent rate-of-progress plan, the establishment of motor vehicle emissions budgets for the year 2007, and a mid-course review of ozone air quality in the Northeastern Illinois ozone nonattainment area. Written comments must be submitted by Feb. 8, 2000.

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red bar graphic IOWA:

  • Environmental Protection Commission
    Approved Amendment On Nov. 15, 1999, the EPC approved a DNR request that the cap on Title V air quality permitting fees be increased from $24 per ton (the previous fee was set at $23.10) to $29 per ton. The current U.S. EPA “presumptive minimum” fee, deemed necessary by EPA to adequately implement a Title V operating permit program, is $33.10. The DNR plans to establish the fee below $29 a ton. In addition, the DNR established a work group to examine alternative methods for funding Iowa’s Title V program. The group will report its findings and recommendations to the EPC in 2000.

    Approved Voluntary Plan The EPC also approved a voluntary wellhead protection plan.

 red bar graphic LOUISIANA:

  • Department of Environmental Quality
    Final Regulations DEQ promulgated on Nov. 20, 1999, an amendment to LAC 33:V.Chapter 5, Subchapter E, adding new subsection 529. The regulation provides that no new permit or substantial permit modification that authorizes the construction or operation of any commercial hazardous waste incineration facility may be issued unless the permit applicant complies with all applicable hazardous waste, air quality, and water quality regulations. The DEQ also promulgated amendments to LAC 33:VI regarding inactive and abandoned hazardous waste and hazardous substance site remediation. In addition, revisions to LAC 33:I.3701 et seq. were promulgated; the amendments clarify that all requirements under currently applicable law and regulation must be achieved by the facility before a demonstration project may be approved. Also, the DEQ will not approve a project if it requires final approval by the U.S. EPA, until EPA has “formally approved all regulatory flexibility necessary for execution of the [project].” On Dec. 20, 1999, DEQ promulgated a final amendment to LAC 33:I:705 regarding calculation of administrative penalties. The amendment increases the penalty range for a “major-major” violation to $27,500 from $25,000. DEQ also issued a final rule that revised LAC 33:XI:307 regarding fees for registered underground storage tank systems and for annual maintenance and monitoring.

    Proposed Regulations DEQ proposed revisions to LAC 33:III:223 and 1951-1973 to delete the clean-fuel fleet program requirements for the Baton Rouge ozone nonattainment area. A public hearing will be held on Jan. 24, 2000; comments are due by Jan. 31 (Log #AQ197). DEQ also proposed an amendment to LAC 33:III:613 and 615 to correct an error in the deadline date for the submission of banking emission reduction credits. The corrected date will be Feb. 20, 1995, rather than Jan. 20, 1995. Comments are due by Jan. 31; a public hearing will be held on Jan. 24 (Log #AQ199). DEQ proposed clarifying and correcting amendments to the RECAP (Risk Evaluation/Corrective Action Program) regulations. The Screening Option will be revised; SIC codes will be upgraded to NAICS codes; the RECAP standards tables will be corrected; the SPLP method will be authorized for Management Options 1, 2, and 3; site investigation requirements will be expanded; and new submittal forms will be utilized. A public hearing will be held on Jan. 24, 2000; written comments are due by Jan. 31 (Log #OS034). Emergency Rule DEQ on Oct. 29, 1999, extended through Feb. 26, 2000, an emergency rule first promulgated on July 1, 1999, and published in the Louisiana Register on July 20, 1999. The rule concerns Act 399 of the 1999 Legislative Session, which requires all privately owned sewage treatment facilities regulated by the Public Service Commission to demonstrate financial responsibility prior to receiving discharge authorization.

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red bar graphic MAINE:

  • Department of Environmental Protection
    Proposed Regulations DEP has proposed adoption of a regulation to implement the Ozone Transport Region nitrogen oxide (NOx) Memorandum of Understanding. The proposal will require electrical generating units, resource recovery facilities and major industrial sources to implement additional NOx controls beginning Jan. 1, 2003. The control requirements include an emission rate limit of 0.15 pounds per million British thermal units (Btu) for electrical generating units and resource recovery units, and an emission rate unit of 0.20 pounds per million Btu for industrial sources. The proposal also includes monitoring, recordkeeping, and reporting requirements. Comments must be received by Jan. 21, 2000. In addition, DEP has reopened until Dec. 28, 1999, the comment period for proposed rule number 99-P274, which deals with interim effluent limitations and controls for the discharge of mercury, in order to incorporate a substantive change involving the deletion of Section 4(13)(2). Finally, DEP has proposed amendments to Chapter 119 that will repeal the requirement to use 7.2 RPV fuel beginning in 2000; continued use of 7.8 RPV fuel will be authorized. Comments are due by Jan. 17, 2000.

red bar graphic MASSACHUSETTS:

  • Department of Environmental Protection
    Proposed Regulation DEP proposed amendments to 310 CMR 7.00 that would reestablish the applicability of Appendix A to major new stationary sources and major modifications of volatile organic compounds and nitrogen oxide in eastern Massachusetts. A public hearing is scheduled for Dec. 20, 1999; the deadline for the submission of written comments is Dec. 22, 1999. The proposed amendments may be viewed at http://www.state.ma.us/dep/bwp/daqc/files/pubnot.htm. DEP also proposed amendments to 310 CMR 7.24(6) (Stage II Vapor Recovery Program). The proposed amendments may be viewed at http://www.state.ma.us/dep/bwp/daqc/files/pubnot2.htm. Two public hearings will be held; one on Jan. 18, 2000, in Springfield, the other Jan. 20 in Boston. Draft Guidance Document The Bureau of Waste Site Cleanup has requested that comments be submitted by Dec. 30, 1999, regarding the draft guidance document, “Building Construction in Contaminated Areas”. The draft may be viewed at http://www.state.ma.us/dep/bwsc/files/cons1299.htm.

  • DEP-Coastal Zone Management
    Office DEP and the Coastal Zone Management Office have scheduled public hearings in December 1999 to discuss proposed “streamlining” amendments to 310 CMR 9.00 and 301 CMR 23.00. An increase in application fees under 310 CMR 9.00 is also being proposed; the modifications to 301 CMR 23.00 include less stringent scoping process procedures and a specified timeframe for completion of a consultative session. Written comments are due by Dec. 20, 1999.

red bar graphic MICHIGAN:

  • Department of Environmental Quality
    Proposed Rules DEQ proposed amendments to R336.1122 (adding compounds exempt from the definition of volatile organic compound), R336:1625 (revising recordkeeping requirements) and R336.2004 (removing an obsolete reference). In addition, DEQ proposes adoption of new R336.1940, R336.1941, and R336.1942, which incorporate U.S. EPA emission standards for ethylene oxide emissions from commercial sterilization and fumigation operations (40 C.F.R. Part 63 Subpart O), chromium emissions from decorative and hard chromium electroplating and anodizing tanks (40 C.F.R. Part 63 Subpart N), and asbestos (40 C.F.R. Part 61 Subpart M). A public hearing will be held on Feb. 2, 2000; written comments are due by that date. The proposed rules (98-040EQ) may be viewed at http://www.deq.state.mi.us/aqd.

    Great Lakes Protection Fund DEQ is seeking, through Jan. 20, 2000, preliminary proposals for funding of research and demonstration projects through the Great Lakes Protection Fund. Applications may be submitted electronically.

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red bar graphic MINNESOTA:

  • Pollution Control Agency
    Proposed Amendments MPCA proposed amendments to Minn. Rules Parts 7001.0020, 7002.00210-.0280, and Chapter 7020 concerning animal feedlots and the storage, transportation, and utilization of animal manure. The amendments include proposed air emission plan requirements for non-livestock operations and manure storage areas with 1,000 or more animal units. They create a registration program, a permit program, requirements for counties accepting delegation to process permits, and standards for discharge, design, construction, operation and closure. A series of public hearings will be conducted in various locations from Jan. 24, 2000 through Feb. 11, 2000.

    Environmental Assessment Worksheet (EAW) MPCA has issued an EAW on Northern State Power Company’s proposal to take coal ash, mix it with water and agricultural lime, and apply it to farm fields as a fertilizer or liming agent. The comment period runs through Jan. 12, 2000. The EAW may be viewed at http://www.pca.state.mn.us/news/eaw/index.html.

    Information Meeting MPCA will present information gathered through its air quality Cumulative Exposure Project on Jan. 20, 2000, at a meeting scheduled by the Minnesota Environmental Initiative. Information may be obtained at http://www.mn-ei.org/policy.html.

    Availability of 1999 Emission Inventory Forms Required air emission inventory forms may be obtained at http://www.pca.state.mn.us/air/emforms.html. The deadline is April 1, 2000.

red bar graphic MISSOURI:

  • Department of Natural Resources
    Advisory Committee on Chip Mills The Advisory Committee on Chip Mills, which was established pursuant to Executive Order 98-16, received an extension until Feb. 1, 2000, of the deadline for the submission of a final study and any recommended reforms. A draft final report was available for public review and comment from Dec. 1 through Dec. 31, 2000. The draft may be viewed at http://www.dnr.state.mo.us/deq/chipmills.

red bar graphic MONTANA:

  • Department of Environmental Quality
    Proposed Amendments DEQ has proposed adding the Boulder and East Boulder Rivers to the Impaired Waterbodies List. The comment period extends through Jan. 22, 2000.

 red bar graphic NEBRASKA:

  • Department of Environmental Quality
    Livestock Operation Inspections, Fees DEQ’s grace period for livestock producers to request an inspection of their operations and payment of an inspection fee expires Jan. 1, 2000. Afterwards, operations that have not sent in the required form and paid the fee (set by the Livestock Waste Management Act of 1998) will be subject to late fees ranging from $50 to $500 per month. The forms and instructions may be downloaded at http://www.deq.state.ne.us under “Priority Issues” or by clicking on the site map for the Livestock Waste Control Program.

    Proposed Regulations The Environmental Quality Council approved revisions to Titles 197 (Rules and Regulations for the Certification of Wastewater Treatment Operators in Nebraska) and 132 (Integrated Solid Waste Management Regulations) at its Dec. 3, 1999 meeting.

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red bar graphic NEW MEXICO:

  • Environment Department
    Final Amended Regulations Revisions to 20 NMAC 2.72 (Construction Permit), 20 NMAC 2.74 (Prevention of Significant Deterioration), and 20 NMAC 2.79 (Nonattainment Areas) were approved by the EIB on Nov. 12, 1999, and become effective Jan. 1, 2000. The amended regulations may be viewed at http://www.nmenv.state.nm.us/frhome.html.

 red bar graphic NORTH CAROLINA:

  • Department of Environment and Natural Resources
    Proposed Regulations DENR proposed, on Dec. 2, 1999, rules for consideration by the Environmental Management Commission that are intended to implement the Governor’s Clean Air Plan. The proposed rules would address emissions from power plants; two options (one, seeking a two-thirds reduction in nitrogen oxide (NOx) emissions from the five largest power plants in the state; the other, seeking an equivalent average reduction in NOx emissions from all power plants as a whole) will be presented. A public comment period will follow.

    Restraining Order DENR issued, on Dec. 10, 1999, a 10-day directive to comply with a restraining order issued by an OAH judge. The order affects animal growers who spray fields at rates possibly higher than argonomic rates established in EMC rules. The rates had been increased on Nov. 5, 1999 by the Soil and Water Conservation Commission through the issuance of emergency best management practices (BMPs). The BMPs were intended to address high lagoon levels resulting from recent flooding. They were challenged by the Southern Environmental Law Center of Chapel Hill, N.C. DEHR ordered growers to follow existing certified animal waste management plan application rates that were in use prior to the emergency BMPs. A hearing has been scheduled for Dec. 20.

red bar graphic OKLAHOMA:

  • Department of Environmental Quality
    Proposed New, Amended Regulations DEQ will conduct a public hearing on Jan. 13, 2000, regarding proposed new OAC 252:220-9, Verification of Brownfields. The proposed language is the result of recent legislation and sets forth the criteria by which the DEQ will verify eligibility of brownfield sites for applying for loans from the Wastewater Facility Construction Revolving Loan Account and other state funding sources. DEQ also proposed revisions to other regulations to incorporate by reference federal regulations revised as of July 1, 1999 and to revoke provisions regarding the management of mercury-containing lamps as a universal waste. The latter standards will be replaced with U.S. EPA criteria.

red bar graphic OREGON:

  • Department of Environmental Quality
    DEQ has scheduled, for Jan. 13, 2000, in Island City, Or., an informal meeting to discuss the Upper Grande Ronde River total maximum daily loads and Water Quality Management Plan and to describe the upcoming public comment process.

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red bar graphic PENNSYLVANIA:

  • Department of Environmental Protection
    Draft Guidance Availability Comments will be received through Jan. 10, 2000, on draft guidance 550-0800-001, “Pennsylvania’s Plan for Addressing Problem Abandoned Wells and Orphaned Wells.” See http://www.dep.state.pa.us (go to Public Participation Center). Draft Guidance 362-033-007, “Alternate and Experimental Systems Guidance,” regarding the siting, design, and construction of alternate and experimental onlot sewage treatment systems, is available for comment through Jan. 18, 2000. And 013-2000-001, “Policy for Implementing the DEP Money-Back Guarantee Permit Review Program,” is available for comment through Jan. 4, 2000.

    Corrective Amendment The DEP published, in the Dec. 11, 1999 issue of the Pennsylvania Bulletin, a corrective amendment to 25 Pa. Code §121.1, to include an omitted definition of “minor operating permit modification.” The corrective amendment is effective as of April 10, 1999, the date the regulation was printed in the Bulletin.

red bar graphic RHODE ISLAND:

  • Department of Environmental Management
    Proposed Amendments The Office of Air Resources proposed amendments to Air Pollution Control Regulation No. 34 (“Vehicle Inspection Program”) and Safety and Emission Control Regulation No. 1 (“Vehicle Safety and Emissions Inspection Program”). The proposed amendments would set inspection fees at $47 and $23.50 for half the fleet in the first year, establish a method to transition from the current 1-year program to a biennial program, change the repair cost limit, adopt a dynamometer test consistent with that used in Massachusetts and Oregon, and create pass/fail standards essentially identical to those used in Massachusetts. Written comments are due by Dec. 31, 1999, unless the comment period is extended by the hearing officer. The proposed amendments may be viewed at http://www.state.ri.us/dem/reg34not.htm.

red bar graphic TEXAS:

  • Natural Resource Conservation Commission
    Proposed Amendments; Solid and Pathological Waste Incinerators TNRCC proposed (Rule Log. No. 99012-111-A1) revisions to 30 TAC Chapter 111, specifically 111.121, 111.125, 111.127, and 111.129 to delete the oxygen (O2) and carbon monoxide (CO) continuous emission monitoring system (CEMS) requirements currently applicable to incinerators burning solid waste or pathological waste. Specifically, the O2 CEMS requirements for units burning between 100 and 500 pounds per hour, and the CO CEMS requirements for units burning between 225 and 500 pounds per hour would be deleted. The proposed amendments would not affect the existing requirement that units burning more than 100 pounds per hour be equipped with a device to continuously monitor secondary chamber exhaust gas temperature. The TNRCC staff concluded that the proposed amendments would not adversely affect air quality. In a separate rulemaking, the Chapter 111 rules for hospital/medical/infectious waste incinerators will be replaced with new standards in Chapter 113 that implement U.S. EPA Part 60 Subpart Ce standards. The proposal will also amend §111.127(a) to delete the requirement for continuous monitoring for O2 or CO by solid waste incineration units meeting the exemption set forth in 106.491. These units can burn up to 500 pounds per hour of paper, wood, cardboard cartons, rags, garbage (animal and vegetable wastes), and certain combustible floor sweepings generated on- site. The existing requirement for continuous monitoring by on- site pathological units that burn up to 200 pounds per hour would likewise be deleted. The proposed amendments would also confirm that all units, not merely those burning more than 100 pounds per hour, must either operate during daylight hours or install a COMS or CO CEMS. The proposal may be located at http://www.tnrcc.state.tx.us/oprd/rule_lib/pc99012.txt. Comments are due by Jan. 7, 2000; a public hearing will be held on Jan. 5, 2000.

    Proposed Amendments; Water Conservation Plans, Drought Contingency Plans TNRCC proposed amendments to 288.1-288.6, 288.20-288.22, and 288.30 to clarify the rules and incorporate recent statutory revisions. No public hearing has been scheduled; written comments (Rule Log No. 99037-288-WT) must be submitted by Jan. 3, 2000. A copy of the proposal may be located at http://www.tnrcc.state.tx.us/oprd/rule_lib/pc99037.txt.

    Proposed Repeal, Amendments TNRCC proposed to repeal existing Chapter 284 regarding the regulation of certain on-site sewage facilities. The requirements are addressed in Chapter 285, which would not be revised. The Commission also proposed amendments to Chapter 117, Control of Air Pollution from Nitrogen Compounds, to reduce emissions from cement kilns and electric utility power boilers and stationary turbines located in 34 ozone attainment counties in east and central Texas. In addition, TNRCC proposed adoption on a statewide basis of the California Low Emission Vehicle Rule. For details, see http://www.tnrcc.state.tx.us/oprd/rules/propadop.html.

    Rule Readoption Reviews TNRCC requested comments regarding Chapter 11, Contracts, in accordance with statutes that require state agencies to review and consider for readoption each of their rules every four years. Comments (Rule Log No. 99047-011-AD) should be received by Jan. 18, 2000. In addition, TNRCC is seeking comment regarding Chapter 284, Private Sewage Facilities. Comments (Rule Log No. 99067-284- WT) must be submitted by Jan. 18, 2000.

    Proposed Total Maximum Daily Loads (TMDL) TNRCC has released for public comment a report recommending a TMDL for dissolved nickel in the Houston Ship Channel System. Comments should reference Rule Log. No. 98061-TML-WT and be submitted by Jan. 18, 2000.

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red bar graphic WASHINGTON:

  • Department of Ecology
    Proposed Rule Amendments Ecology proposed amendments to rules for the Model Toxics Control Act, public participation grants, and remedial action grants. Comments must be submitted by Jan. 17, 2000. In addition, Ecology has proposed amendments to Chapter 173-230 WAC, Certification of Operators of Wastewater Treatment Plants. Comments are due by Jan. 17, 2000.

red bar graphic WYOMING:

  • Department of Environmental Quality
    Proposed Regulations; Air Quality The Air Quality Advisory Board will meet on Jan. 6, 2000 to consider changes to Chapter 6, Permitting Requirements (regarding operating permits) and Chapter 7, Monitoring Regulations (concerning compliance assurance monitoring). The proposal may be located at http://deq.state.wy.us/aqd.htm.

    Draft Nonpoint Source Management Plan A draft revision to the Nonpoint Source Management Plan is available for written comment through Feb. 22, 2000. It may be viewed or downloaded from the DEQ’s web site at http://deq.state.wy.us. Oral comments may be presented at the meeting of the Wyoming Water and Waste Advisory Board on Feb. 24, 2000.

    Proposed Regulations; Water Quality Comments may be submitted through Jan. 7, 2000, on proposed changes to the Water Quality Division Regulations, Chapter 1, Surface Water Quality Standards. The Board intends to take final action at their Feb. 24, 2000 meeting.

    Special Meeting The Water and Waste Advisory Board of the DEQ will hold a special meeting on Jan. 7, 2000, to consider possible changes to Appendix B of Chapter 1 to address site specific conditions for coalbed methane discharges in the Powder River Basin of Wyoming.