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Weekly Update Volume 30, Issue 10

04/03/2000

LITIGATION

red bar graphic FOOD, DRUG, AND COSMETIC ACT (FDCA), TOBACCO REGULATION:

The U.S. Supreme Court held that the FDA lacks authority under the FDCA to regulate tobacco products as customarily marketed. The FDA determined that nicotine is a "drug" and that cigarettes and smokeless tobacco are "drug delivery devices," and, therefore, it had jurisdiction under the FDCA to regulate tobacco products. Based on these findings and pursuant to its authority to regulate "restricted devices," the FDA promulgated regulations concerning tobacco products' promotion, labeling, and accessibility to children and adolescents. Considering the FDCA as a whole, however, it is clear that Congress intended to exclude tobacco products from the FDA's jurisdiction. If tobacco products were within the FDA's jurisdiction, the FDCA would require the FDA to remove them from the market entirely because the agency would have no basis for finding that tobacco products are safe for their intended use. Such a ban, however, would contradict congressional policy because Congress has foreclosed the removal of tobacco products from the market. The FDA attempted to get around this dilemma by arguing that tobacco products are "safe" because banning them would cause a greater harm to public health than leaving them on the market. This argument fails, however, because the risk of harm to consumers of tobacco products still outweighs any therapeutic benefits. The history of tobacco-specific legislation also demonstrates that Congress has directly spoken to the FDA's authority to regulate tobacco products. Over the past 35 years, Congress has created a distinct regulatory scheme for tobacco products, has squarely rejected proposals to give the FDA jurisdiction over tobacco, and has repeatedly acted to preclude any agency from exercising significant policymaking authority in the area. Further, Congress enacted this legislation against the backdrop of the FDA consistently and repeatedly asserting, until now, that it lacks jurisdiction to regulate tobacco products under the FDCA. The Court, therefore, defers not to the FDA's current expansive construction of the FDCA, but to Congress' consistent judgment that the FDA lacks the authority to regulate tobacco products as customarily marketed. Justice Breyer, with whom Justice Stevens, Justice Souter, and Justice Ginsburg joined, dissented from the majority opinion. Food and Drug Administration v. Brown & Williamson Tobacco Corp., No. 98-1152 (U.S. Mar. 21, 2000) (75 pp.).

red bar graphic SDWA, CHLOROFORM MAXIMUM CONTAMINANT LEVEL GOAL (MCLG), BEST AVAILABLE EVIDENCE:

The D.C. Circuit held that EPA violated SDWA §300g-1(b)(3)(A)'s statutory mandate to use the best available evidence when it implemented the chloroform MCLG. During rulemaking for the chloroform MCLG, EPA ostensibly agreed to a 300 parts per billion (ppb) chloroform MCLG after an EPA-convened scientific review panel concluded that chloroform would not cause cancer below a certain threshold. Nevertheless, when EPA promulgated the final rule in 1998, it set the MCLG at zero ppb because it needed to deliberate with the EPA Scientific Advisory Board (SAB) regarding departure from a zero ppb MCLG. However, on the day of oral argument, EPA issued a draft SAB report stating that it was scientifically reasonable to set a low-dosage MCLG for chloroform. EPA, consequently, moved to vacate the zero ppb. But mere vacatur would not provide an adequate remedy because EPA had not indicated an intent to set a non-zero ppb MCLG and vacatur of the 1998 MCLG could automatically revive the 1994 zero ppb chloroform MCLG. Thus, the court reviewed the merits and concluded that EPA unlawfully set the zero ppb MCLG by openly overriding the best available scientific evidence, which suggested that chloroform is a threshold carcinogen that did not require a zero ppb MCLG. The precedent-setting significance of the zero ppb MCLG did not impact EPA's statutory duty to use the best available evidence. Moreover, although EPA could not complete deliberations with the SAB before the 1998 deadline for the MCLG, it could not reject the best available evidence simply because of the possibility of contradiction in the future by unavailable evidence. Similarly, the possibility that a science based non-zero MCLG would fall in a certain range would justify choosing the lowest non-zero MCLG, but it did not justify the zero MCLG. Also, even though the maximum contaminant level for chloroform is unaffected by the 1998 MCLG, the MCLG affects cleanup standards under CERCLA and, thus, challengers to the MCLG have sufficient injury-in-fact to satisfy standing requirements. Further, whether EPA considered the 1998 MCLG final is irrelevant to whether it represented the best available evidence. Because challengers to the MCLG misstated their original request for relief, remedy is uncertain, therefore, the court scheduled briefing on a proper remedy. Chlorine Chemistry Council v. Environmental Protection Agency, Nos. 99-1053, -1056 (D.C. Cir. Mar. 31, 2000) (8 pp.).

red bar graphic RCRA, STATE-APPROVED HAZARDOUS WASTE LAWS:

A district court granted a defendant's motion to dismiss two counts under which he was convicted for violating RCRA because the federal laws contained in those counts are supplanted by Idaho's EPA-approved hazardous waste program. EPA-approved state hazardous waste laws supplant their RCRA counterparts. Although EPA retains the authority to enforce those approved state laws, EPA loses the authority to enforce those RCRA provisions with counterparts in the approved state program. EPA only retains the authority to enforce RCRA provisions that have no counterparts in the approved state program. Here, two of the three counts that charged the defendant with violating RCRA have counterparts under the approved state program. Therefore, because state law was not cited anywhere in those two counts or elsewhere in the indictment, the federal government lacked the authority to charge him with the RCRA violations and the defendant's convictions under those two counts were set aside. United States v. Elias, No. 98-0070-E-BLW (D. Idaho Mar. 16, 2000) (Winmill, J.) (11 pp.).

red bar graphic CERCLA, ALLOCATION, CONTRIBUTION COSTS:

The Ninth Circuit held that under CERCLA, when a party is liable for pollution response costs, it must share them regardless of whether it is the sole cause of the costs. An airplane manufacturer brought a contribution action against its uphill neighbor, a trucking factory, after it discovered a contaminated aquifer under both properties. The factory claimed that it was not liable under CERCLA because its release of contaminants did not cause the airplane manufacturer to incur response costs, as the manufacturer would have incurred response costs without the factory's release. The court, however, rejected this argument and held that where either polluter's conduct would have caused the same response costs to be incurred in the same amount, and the conduct was of substantially equal blameworthiness, the proper construction of CERCLA's causation requirement is that both polluters should be treated as having caused the response cost. In addition, the district court properly allocated 70 percent of the response costs to the trucking factory and 30 percent of the costs to the airplane manufacturer and properly entered a declaratory judgment imposing the 70:30 ratio on future expenses. The district court, however, erroneously deducted a settlement amount the airplane manufacturer collected from a third party before applying the 70:30 ratio to the response costs. Boeing Co. v. Cascade Corp., Nos. 96-35246, -35304 (9th Cir. Mar. 24, 2000) (27 pp.).

red bar graphic CERCLA, REMEDIATION COSTS:

A district court ordered a metal company to pay over $1.49 million in remediation costs to a group of 191 settling PRPs that incurred over $10 million in clean up and recovery costs at the Metcoa Superfund site in Pulaski, Pennsylvania. The 191 PRPs entered into a consent decree with the United States and agreed to remediate the site. The metal company, however, refused to participate in any remediation at the site and declined to enter into the decree even after a court determined that the company was liable under CERCLA. The metal company, which failed to perform any due diligence at the site, substantially contributed to the contamination of the site through the sale of nickel and other metals. Moreover, the company’s proposed allocation failed to consider the fact that the hazardous materials were commingled and incapable of segregation. Thus, using the Gore factors of contribution to the harm, toxicity of the waste volume, and the settling PRPs’ cooperation with the government, the court ordered the company to pay $1,495,267, with interest, to the settling parties. United States v. Pesses, No. 90-654 (W.D. Pa. Mar. 21, 2000) (Ziegler, J.) (12 pp.).

 

red bar graphic CAA, POLLUTION EMISSIONS ALLOWANCES, JOINT OWNERSHIP:

The Fourth Circuit held that an aluminum manufacturer is not entitled to a proportionate share of pollution emissions allowances allocated to an electric power plant under the CAA. The manufacturer claimed that it was entitled to an 89 percent proportionate share of the plant's allowances because its contractual relationship with the electric company that owned the power plant rendered it a joint owner of the plant. In order to qualify as a joint owner under the CAA, the power sales agreement must provide for a firm reservation of electrical power from a specific unit and a proportionate division of the operating costs of that unit. Here, the manufacturer was entitled to receive a specified amount of capacity and associated energy, even though the specific amount of power reserved to the manufacturer under the agreement ranged between 465,000 and 575,000 kilowatts. However, the agreement did not tie the electric company's supply obligations to a specified generating unit. In fact, the agreement clearly contemplated that the power delivered to the manufacturer could be generated anywhere in the electric company's system. Moreover, the agreement did not require the manufacturer to pay its proportional amount of the plant's total costs. The manufacturer's share of the costs of operating the units at the plant did not vary in proportion to its reservation of energy and did not bear a consistent relation to the total costs incurred by the electric company in operating the units. Consequently, the manufacturer does not qualify as a joint owner of the plant. Ormet Primary Aluminum Corp. v. Ohio Power Co., Nos. 99-1419, -1454 (4th Cir. Mar. 27, 2000) (9 pp.).

 

red bar graphic CAA, SENTENCING GUIDELINES:

The Seventh Circuit upheld sentences imposed under the CAA and the Social Security Act against three defendants who recruited homeless men from a shelter in Tennessee to perform asbestos abatement work at a plant in Wisconsin. The defendants fraudulently submitted training course certificates to the Wisconsin Department of Health and Family Services as "proof" that the men were trained as asbestos abatement supervisors. Although the defendants pled guilty for conspiring to violate the CAA and the Social Security Act, they challenged the sentencing judge's decision to adjust their sentences upward. The judge's finding that the homeless men were "unusually vulnerable" victims, however, was based on sufficiently specific evidence and was not based solely on the men's economic status. In addition, the judge properly enhanced the defendants' sentences for their aggravating roles in the conspiracy. The defendants claimed that their aggravating criminal conduct was used both to justify a sentencing adjustment and to attach criminal liability in the underlying conspiracy to violate the CAA. The bar on double counting, however, only comes into play if the underlying offense necessarily includes the same conduct as the adjustment, and an owner or operator's criminal liability under the CAA would not necessarily result in an aggravating role adjustment. United States v. Bragg, Nos. 99-1295 et al. (7th Cir. Mar. 21, 2000) (15 pp.).

 

red bar graphic CWA, SEWAGE SLUDGE:

The Ninth Circuit held that a district court erroneously dismissed an indictment charging an individual with knowingly disposing of domestic septage on a public contact site in violation of the CWA. The individual allegedly pumped sewage material from a septic tank located at a bar and then discharged the sewage along a 1.6 mile stretch of road. The plain language of "sewage sludge" and "domestic septage" set forth under 40 C.F.R. part 503,  however, makes clear that the individual's discharge of sewage material from the bar was covered by CWA §405. Moreover, material removed from a septic tank receiving only domestic sewage is necessarily sludge from a treatment works treating domestic sewage under the CWA. Thus, the district court erred in concluding that the bar's septic tank was not a "treatment works" engaged in "treatment" and that the material at issue was not "sewage sludge." United States v. Hagberg, No. 99-30112 (9th Cir. Mar. 22, 2000) (11 pp.).

 

red bar graphic NEPA, DOCUMENTED CATEGORICAL EXCLUSION (DCE):

The Ninth Circuit held that the Federal Highway Administration (FHwA) arbitrarily and capriciously decided to categorically exclude from NEPA review a two-stage highway interchange project in Washington state. The FHwA concluded that the project fit under the "approvals for changes in access controls" example of DCEs because the FHwA is required to approve new interchanges in advance of construction. The fact that the FHwA must approve a state's plans to add access and exit points to an interstate highway, however, is not synonymous with the "approvals for changes in access control" for which a DCE may be used. None of the other examples listed in the DCE regulations approach the magnitude of the interchange project in this case. Moreover, because FHwA regulations forbid the use of categorical exclusions for projects that will have significant impacts on travel patterns, the project does not satisfy the criteria for general categorical exclusions and, thus, fails the first prong for determining whether a DCE is appropriate. An environmental assessment, therefore, was required in this case. The FHwA need not tear down stage one of the project, which is already constructed and fully operational, but the DCE for stage two may not be used to satisfy the FHwA's NEPA obligations. The type of environmental review that will be required, however, will depend on the scope of stage two when it takes shape more clearly. In addition, the fact that the first stage of the project is complete did not render the action moot. West v. Secretary of the Department of Transportation, No. 97-36118 (9th Cir. Mar. 20, 2000) (21 pp.).

 

red bar graphic  WETLANDS, DOCTRINE OF LACHES:

A district court dismissed community members' CWA and APA claims against a private developer and the federal government in which the members sought to stop a development project from being built near their community. After their attempt to stop the project in the state courts failed, the members filed a complaint in federal court. However, they did not file their complaint until eight months after the U.S. Army Corps of Engineers authorized the project under Nationwide Permit 26 and over six weeks after the existing wetlands were filled and construction of the new wetland system was nearly complete. The court determined that the members' claims were barred by the equitable doctrine of laches. The members knew of the developer's and government's alleged misconduct well before work commenced, and their delay in taking action in federal court was inexcusable. Moreover, the members' delay in bringing the action prejudiced the developer and the government. Allens Creek/Corbetts Glen Preservation v. Caldera, No. 98-CV-6136L (W.D.N.Y. Mar. 22, 2000) (Larimer, J.) (11 pp.).

 

red bar graphic CAA, PREVENTION OF SIGNIFICANT DETERIATION (PSD) PERMIT, ENVIRONMENTAL JUSTICE:

The EPA Environmental Appeals Board (EAB) denied petitions to review a revised PSD permit decision issued by a state permitting agency in connection with a proposed fiberglass manufacturing plant in the City of Shasta Lake, California. The agency complied with the EAB's previous remand order. Documentation of the revised best available control technology determination provides adequate justification for the agency's selection of control technology and emission limitations for particulate matter less than 10 micrometers in diameter. The agency also made an environmental justice analysis available to the public in accordance with the EAB's remand order. That analysis concludes that the PSD permit for the proposed facility will not cause any disproportionately high or adverse human health or environmental effects on a low-income or minority population. In addition, there is no need to review the revised permit condition regarding the applicability of the new fiberglass NESHAP because the permit condition that cross-references the NESHAP is sufficient to incorporate all applicable provisions of the new rule into the PSD permit. In re Knauf Fiber Glass, GmbH, PSD Appeal Nos. 99-8 et al. (EPA EAB Mar. 14, 2000) (27 pp.).

 

red bar graphic RESIDENTIAL LEAD-BASED PAINT HAZARD REDUCTION ACT (RLBPHRA):

The EPA Environmental Appeals Board (EAB) reversed an administrative law judge’s (ALJ’s) order against the U.S. Department of the Navy for violating the RLBPHRA’s disclosure rule in connection with housing it provided under 11 residency occupancy agreements (ROAs) to certain enlisted and officer personnel and their families. The ALJ determined that the ROAs constitute "contracts to lease" under the disclosure rule, which requires the lessor to make certain disclosures regarding lead-based paint and lead-based paint hazards located in the housing before a lessee is obligated under any "contract to lease." The disclosure rule, however, does not contemplate ROAs, which are arrangements peculiar to the military establishment. Moreover, EPA’s alternative interpretation that the term "lease" under the disclosure rule and the RLBPHRA means any consensual residential agreement is overbroad. Thus, it cannot serve as a principled basis for upholding the order’s grant of accelerated decision in this case. Because the EAB declined to exercise its authority to fashion a legally binding interpretation of the terms "lease" and "contract to lease," the EAB reversed the ALJ’s order and dismissed the complaint. In re United States Department of Navy, TSCA Appeal No. 99-2 (EPA EAB Mar. 17, 2000) (20 pp.).

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 an advance notice of its intent to eliminate or limit the use of Methyl Tertiary Butyl Ether (MTBE) as a fuel additive. While the use of MTBE as a fuel additive in gasoline has helped to reduce harmful air emissions, it has also caused widespread and serious contamination of the nation's drinking water supplies. The Agency, therefore, plans to issue a rule under TSCA §6 to eliminate or limit the use of MTBE. EPA seeks public comment on a number of aspects of this anticipated regulatory action, including whether the Agency should take action to address any fuel additives other than MTBE. 65 FR 16093 (3/24/00).
  • EPA announced the availability a preliminary draft of its pending guidance on best achievable control technology and lowest achievable emission rate for Tier 2/gasoline sulfur refinery projects.  65 FR 16364 (3/28/00). 
  • EPA promulgated NESHAPs for new and existing sources at secondary aluminum production facilities. 65 FR 15689 (3/23/00).
  • EPA withdrew its February 14, 2000, rule that extended the operating permits program interim approval expiration dates. 65 FR 16523 (3/29/00). 
  • EPA announced that the motor vehicle emissions budgets contained in the November 23, 1999, carbon monoxide (CO) maintenance plan for the New York portion of the New York-New Jersey-Connecticut CO nonattainment area are adequate for conformity purposes. 65 FR 16196 (3/27/00). 
  • EPA approved Idaho's CAA§111(d) state plan for controlling emissions from existing municipal solid waste landfills. 65 FR 16320 (3/28/00). 
  • EPA approved Indiana's state plan submittal for implementing the municipal solid waste landfill emission guidelines. 65 FR 16323 (3/28/00). 
  • EPA approved Indiana's request for delegation of the maximum achievable control technology standards for gasoline distribution, organic hazardous air pollutants, off-site waste recovery operations, and primary aluminum reduction under CAA §122(l). 65 FR 17264 (3/31/00). 

 

red bar graphic HAZARDOUS WASTES AND SUBSTANCES:

  • EPA entered into a proposed administrative order on consent under CERCLA §122(h) in connection with the Colorado School of Mines Research Institute site in Golden, Colorado. 65 FR 15904 (3/24/00). 
  • EPA proposed to enter into a prospective purchaser agreement to address claims under CERCLA §§106 and 107(a) and RCRA §7003 in connection with the Gilbert & Bennett site in Redding, Conn. 65 FR 16391 (3/28/00). 
  • EPA entered into a proposed administrative agreement under CERCLA §122(i)(1) in connection with the 7-7 Merger, Inc., Superfund site in Wooster, Ohio. 65 FR 16392 (3/28/00).
  • EPA issued a final determination of partial program adequacy for West Virginia's municipal solid waste landfill permitting program. 65 FR 16523 (3/29/00). 
  • EPA determined that revisions to Oklahoma's hazardous waste program satisfy the requirements necessary to qualify for final authorization under RCRA. 65 FR 16528 (3/29/00). 

 

red bar graphic   ENDANGERED SPECIES:

  • FWS determined threatened status for the contiguous U.S. distinct population segment of the Canada lynx, with a special rule, under the ESA. 65 FR 16051 (3/24/00). 
  • FWS announced the availability of its recommended private landowner guidance for the cactus ferruginous pygmy owl. 65 FR 14999 (3/20/00). 
  • FWS announced the availability of and opportunity to comment on its Interim Land Acquisition Priority System criteria. 65 FR 15167 (3/21/00). 

 

red bar graphic   DRINKING WATER:

  • EPA announced the availability of the Tribal Drinking Water Operator Certification Program Draft Guidelines65 FR 16917 (3/30/00). 

 

red bar graphic   PESTICIDES:

  • EPA announced the availability of the revised risk assessments and related documents for the organophosphate pesticide, phosmet. 65 FR 14967 (3/20/00).
  • EPA announced the availability of the revised risk assessments and related documents for two organophosphate pesticides, phostebupirim and tetrachlorvinphos. 65 FR 16197 (3/27/00). 
  • EPA announced the availability of revised risk assessments and related documents for the organophosphate pesticide pirimiphos-methyl. 65 FR 16592 (3/29/00).
  • EPA announced the availability of a draft pesticide registration notice that is a guidance document intended to clarify certain portions of residential insecticide product labels. 65 FR 16614 (3/29/00). 
  • EPA announced the availability of a draft pesticide registration notice that identifies pests of significant public health importance for the purpose of regulation under FIFRA. 65 FR 16615 (3/29/00).
  • EPA announced the availability of the revised version of the pesticide science policy document entitled Assigning Values to Non-Detected/Non-Quantified Pesticide Residues. 65 FR 17266 (3/31/00). 
  • EPA announced the availability of the revised version of the pesticide science policy document entitled Choosing a Percentile of Acute Dietary Exposure as a Threshold of Regulatory Concern65 FR 15330 (3/22/00). 

 

red bar graphic   SMCRA PROGRAM APPROVALS:

 

red bar graphic   WATER QUALITY:

  • EPA made a technical amendment to the effluent limitations guidelines, pretreatment standards, and new source performance standards for the builders' paper and board mills point source category by removing duplicative regulatory language that already is included in regulations related to the secondary fiber, non-deink subcategory of the pulp, paper, and paperboard point source category. 65 FR 15091 (3/21/00). 
  • EPA Regions 1, 2, 3, 4, 6, 8, 9, and 10 proposed to reissue EPA's NPDES storm water multi-sector general permit, which will authorize the discharge of storm water from industrial facilities consistent with the terms of the permit. 65 FR 17009 (3/30/00). 
  • EPA revised the water quality planning and management regulation to remove the requirement in most cases that states, territories, and authorized tribes submit to EPA for review by April 1, 2000, lists of water quality limited waterbodies. 65 FR 17166 (3/31/00).
  • EPA proposed to designate an ocean dredged material disposal site located offshore of Coos Bay, Or. 65 FR 17240 (3/31/00).
  • DOE amended its general statement of enforcement policy to state that DOE may use information collected by DOE and the U.S. Department of Labor concerning whistleblower proceedings as a basis for enforcement actions and civil penalties under the Procedural Rules for DOE Nuclear Activities if the retaliation against DOE contractor employees relates to matters of nuclear safety in connection with a DOE nuclear activity.  65 FR 15218 (3/22/00). 

 

red bar graphic   WETLANDS:

  • The U.S. Army Corps of Engineers promulgated a final rule that establishes a one-step administrative appeal process for jurisdictional determinations and makes minor changes to clarify the administrative appeal process for permit denials and declined individual permits. 65 FR 16485 (3/28/00). 

 

red bar graphic DOJ NOTICES OF SETTLEMENT:

  • U.S. v. AT&T Corp., No. 2000-42 (D.V.I. Mar. 9, 2000) (settling defendants that violated the CWA and the Rivers and Harbors Act in connection with their construction of transoceanic cable landing facility in St. Croix, V.I., must pay a $1.8 million civil penalty and must monitor the areas where drilling mud was released to ensure that any remaining drilling mud is removed), 65 FR 15011 (3/20/00); 
  • U.S. v. Doe, No. 96 Civ. 8563 (BSJ) (S.D.N.Y. Mar. 8, 2000) (a CERCLA defendant that owns the Port Refinery Superfund site in the Village of Rye Brook, N.Y., must pay to the United States the net proceeds of the sale of the site, after certain costs in connection with the sale are paid and after purchase of an annuity to cover the living expenses of the owner), 65 FR 15011 (3/20/00); 
  • U.S. v. Fish Sand & Gravel Co., No. 98-CV-0276-D (D. Wyo. Mar. 8, 2000) (settling CWA defendants that discharged dredged or fill material in Deer Creek near Glenrock, Wyo., without a permit must complete restoration, must perform three to five years of monitoring, and must pay a civil penalty), 65 FR 15012 (3/20/99); 
  • U.S. v. Mountain Metal Co., Nos. CV-98-C-2562-S et al. (N.D. Ala. Mar. 7, 2000) (in connection with the Interstate Lead Company Superfund site in Leeds, Ala., one CERCLA defendant must pay $6,000 in past U.S. response costs, a second defendant must pay $500 in past U.S. response costs, a third defendant must pay $1,000 in past U.S. response costs, a fourth CERCLA defendant must pay $20,000 in past U.S. response costs, and a fifth defendant must pay $195,750 in past U.S. response costs and pay $479,250 in contribution costs), 65 FR 15012 (3/20/00); 
  • U.S. v. Tampa Electric Co., No. 99-2524 CIV-T-23F (M.D. Fla. Feb. 29, 2000) (a CAA defendant that failed to seek permits prior to making major modifications and failed to install appropriate pollution control devices at coal-fired electric generation stations it owns and operates in Hillsborough County, Fla., must pay a $3.5 million civil penalty, must undertake various steps in order to reduce the emission of air pollutants, and must undertake a series of additional pollution control or mitigation projects, at an estimated cost of at least $10 million, that are related to nitrogen oxide emissions at its generating stations and to the examination of air quality in the Tampa Bay area), 65 FR 15013 (3/20/00);
  • U.S. v. Apex Engineering, No. 00 2100 GTV (D. Kan. Feb. 28, 2000) (several CERCLA defendants and three additional parties not named in the complaint collectively must pay $245,038.22, plus interest, in past U.S. response costs incurred at the 29th and Mead Superfund site in Wichita, Kan.), 65 FR 15922 (3/24/00); 
  • U.S. v. Sorenson Engineering, Inc., No. EDCV 96-444-RT (VAPx) (C.D. Cal. Mar. 2, 2000) (an EPCRA defendant that failed to timely submit a toxic chemical release form for nitric acid and phosphoric acid between 1990 and 1995 must pay a $32,500 civil penalty, must undertake two supplemental environmental projects to reduce tetrachloroethylene (perchloroethylene) emissions and to eliminate hexavalent chromium emissions at its Yucaipa, Cal., facility, and must pay a nonprofit organization involved in this case $20,000 in attorneys fees and costs), 65 FR 15923 (3/24/00);
  • U.S. v. Doyle, No. 4:00CV-00014 (W.D. Va. Mar. 15, 2000) (settling CERCLA defendants must pay $50,000 in past U.S. response costs incurred at the Doyle Wood Treating Superfund site near Martinsville, Va.), 65 FR 16634 (3/29/00). 

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

IN THE STATES

 

red bar graphic ALABAMA

Dept. of Envtl. Management

Public Notices–Permit Applications 

 

red bar graphic ALASKA

Dept. of Envtl. Conservation

Proposed Contingency Plan

  • Proposed Interior Alaska Subarea Oil and Hazardous Substances Contingency Plan. The Plan will include information on emergency response notification and procedures, available resources, and environmentally sensitive areas. Comments due April 30. Details at http://www.akrtt.org/plans.html

Request for Grant Proposals

 

red bar graphic ARKANSAS

Dept. of Envtl. Quality

NPDES Permit Application

Proposed Revisions-Water Quality Plan

  • Proposed revisions to Water Quality Management Plan (208 Plan) by adding four facilities with wastewater discharges to the plan, changing the discharge flow rate for one facility, and changing the discharge flow rate and effluent limits for a second facility. Public comments are accepted through April 12. Details at http://www.adeq.state.ar.us

 

red bar graphic ARIZONA

Dept. of Envtl. Quality

Status of Water Quality Report

Draft TMDL

 

red bar graphic CALIFORNIA

Air Resources Board

Proposed Regulations

  • April 27 hearing date for a proposed Airborne Toxic Control Measure for Emissions of Chlorinated Toxic Air Contaminants from Automotive Maintenance and Repair Activities. The proposal is intended to reduce emissions of Perc, MeCl, and TCE from AMR activities by regulating automotive consumer product (specifically, break cleaners, air intake cleaners, engine degreasers, and general purpose degreasers manufactured after Dec. 31, 2002) content and usage. See http://www.arb.ca.gov/regact/regup00.htm

Dept. of Toxic Substances Control

Draft Negative Declaration

Water Resources Control Board

Phase 8, Bay-Delta Water Rights Hearings

 

red bar graphic COLORADO

Air Quality Control Commission

Pikes Peak Area–Transportation Improvement Plan

North Front Range–Transportation Improvement Plan

RVP Waiver Request

  • Conoco, Inc. seeks support for their request to U.S. EPA regarding waiver of the 7.8 psi vapor pressure requirement for gasoline in favor of a 9.0 psi standard. Will be discussed at April 20 meeting of the Commission. Details at http://www.cdphe.state.co.us/op/notrvp.html

Water Quality Control Commission

Proposed Regulations

 

red bar graphic FLORIDA

St. Johns River Water Management District

Proposed Regulations-Flows and Levels

  • Proposal would establish minimum flows and levels on water bodies, courses, and aquifers. Public hearing, if requested, will be held on April 12.

South Florida Water Management District

Proposed Regulations

  • Proposed amendments to indicate that a permit may be issued to an eminent domain authority, a contractual buyer of property, or a recorded easement holder, and to clarify the duration of permits. Public hearing, if requested, will be held on April 13.
  • Proposed amendments to clarify existing homeowners association documentation requirements. Public hearing, if requested, will be held on April 13.

 

red bar graphic GEORGIA

Dept. of Natural Resources

Proposed Regulations-Water Quality

  • Proposed stormwater general permits for discharges from construction activity; proposed area-wide stormwater discharge permits for 12 area-wide municipal separate storm sewer systems. Public hearing March 30; written comments due April 5. See http://www.ganet.org/dnr/environ/pubnote/pnot2_25.html

Air Permit Applications

 

 red bar graphic KENTUCKY

Natural Res. & Envtl. Protection Cabinet

Proposed TMDL

 

red bar graphic ILLINOIS

Envtl. Protection Agency

Permit Applications

  • Calumet Energy Team, LLC, Chicago, for air permit for a natural gas power plant. Comments due May 11; hearing scheduled for April 26.
  • Indeck-Libertyville, LLC, for construction of a natural gas fired power plant in Libertyville. Comments due May 10; public hearing on April 25.
  • Silvercreek Constr. Co., Knox County, for NPDES permit. Details at http://www.epa.state.il.us/public-notices/2000/2000-04-06-silvercreek.html
  • Reliant Energy Aurora, L.P., for construction of a natural gas-fired electrical generating facility in Aurora. Comments due April 17; hearing scheduled for April 3.

 

red bar graphic INDIANA

Dept. of Envtl. Management

Final Regulations-Air

  • Final rule adds 326 IAC 17.1 to incorporate recent statutory changes to IC 5-14-3, provide for consistent treatment of confidential materials among IDEM program areas, and allow IDEM to simplify and streamline the procedures associated with the submission and handling of confidential information. Details at http://www.state.in.us/legislative/register/March-1-2000.html  

Proposed Regulations-Air

Proposed Regulations-Water

  • May 10 is the new hearing date for amendments to rules establishing wetlands water quality standards and new provisions establishing procedures and criteria for review of projects requiring water quality certification under Section 401 of the CWA. See http://www.state.in.us/legislative/register/March-1-2000.html

Proposed Regulations-Solid Waste

Proposed Regulations-Underground Storage Tanks

red bar graphic LOUISIANA

Dept. of Envtl. Quality

Proposed Regulations

  • Revisions to LAC 33:V.625, 630, 635, 660, and 717, Remedial Action Plans; proposed repeal of certain regulations dealing with control of emissions from motor vehicles and related fees; proposed amendments to LAC 33:XV.2508, dealing with fee determination. For further information, including copies of the proposed regulations and comment information, see http://www.deq.state.la.us/planning/regs/addition/2000

Hospital/Medical/Infectious Waste Incinerator Compliance Deadline

  • Compliance with 40 C.F.R. 60, subparts Ec and Ce is required by Aug. 16, 2000. Facilities that cannot meet the deadline and qualify for an extension of compliance deadlines must request an extension on or before May 22.

red bar graphic MICHIGAN

Dept. of Envtl. Quality

Clean Corporate Citizen Designation

Management Team Public Meetings

Proposed Regulations-Wetlands

Permit Applications-Air

  • Alchem Aluminum, Inc., for a permit to install for a facility to be located in Buena Vista, Michigan.
  • Tuscarora Incorporated, for increased emissions from an existing polystyrene foam manufacturing facility in Chesaning.
  • Lafarge Corporation, for a change in raw material mix and increases in HCl emissions from cement kilns in Alpena.
  • Midland Township, for operation of a municipal solid waste landfill.
  • Central Michigan University, for operation of a power plant.
  • Detroit Edison, Monroe Power Plant.
  • Thompson Marine Products, for boat manufacturing facility in Saginaw County.
  • Paulstra CRC Cadillac Division, Wexford County, for manufacturing of automotive parts.
  • Wisconsin Electric Power Company, for Preque Isle Power Plant, Marquette County.

For details, see http://www.deq.state.mi.us/aqd

Proposed Consent Orders

Exemptions from Permit to Install Requirement

red bar graphic MINNESOTA

Pollution Control Agency

Proposed Regulations–Animal Feedlots

Permit Applications

  • For air permit to U.S. Steel Taconite Facility, Mountain Iron; comments due April 7.
  • For air permit to Pechiney Plastic Packaging, Inc., Minneapolis. Comments due April 10.
  • For air permit to Sunrise Fiberglass Corp., Wyoming. Comments due April 5.
  • For air permit to Great River Energy, Pleasant Valley Township. Comments due April 5.
  • For reissued NPDES permit to NSP Prairie Island Nuclear Generating Plant. Comments due April 3.
  • For permit modification to 3M Cottage Grove. Comments due April 17.

For details regarding the permit applications, see http://data.pca.state.mn.us/cgi-bin/whatsnew.pl

red bar graphic NEW YORK

Dept. of Envtl. Conservation

Environmental Notice Bulletin

Notice of Complete Application/Draft Permit

red bar graphic NORTH CAROLINA

Dept. of Envt. and Natural Resources

Governor's Clean Air Plan

Hog Farming-Odor Management Plans

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Envtl. Protection Agency

Proposed Denial-Wetlands Fill

Permit Application-Air

 

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Dept. of Envtl. Quality

Draft Source Water Assessment and Protection Program Document

 

red bar graphic OREGON

Dept. of Envtl. Quality

NESHAP Annual Rule Updates-Hearing

Enhanced Auto Emission Test Low Income Waiver Proposal

red bar graphic PENNSYLVANIA

Dept. of Envtl. Protection

Proposed Envtl. Quality Board Policy for Processing Petitions

  • Regarding petitions for redesignation of streams under Chapter 93 (water quality standards) and the Clean Streams Law (35 P.S. §§691.1-691.1001). 

Proposed Regulations-Universal Waste

Safe Fill Policy

  • Draft available for comment through May 10. Public hearings will be held on April 27, May 2, and May 4. See http://www.dep.state.pa.us direct link "Safe Fill Policy".

Draft Technical Guidance Document

red bar graphic TENNESSEE

Dept. of Environment and Conservation

Permit Applications

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Natural Resource Conservation Commission

Proposed Regulations

  • Phase II of SB 766 implementation rulemaking, which will add language to Chapter 116, Subchapter B; add permit by rule language to Chapter 106; create a new Subchapter H for multiple plant permits (MPPs); add grandfathered emission fee language to Chapter 101; and revise public participation language in Chapter 116 to reflect MPPs and HB 801. Public hearing May 4; comments due May 8. See http://www.tnrcc.state.tx.us/oprd/rules/propadop.html
  • Proposed revisions to 30 TAC Chapter 104 to delete rules allowing companies and bond issuing authorities to apply for certification that certain property or equipment qualifies as a "control facility"; language is not necessary due to deletion of federal tax bond program. Public hearing April 11; comments due April 17. Details at http://www.tnrcc.state.tx.us/oprd/hearings/99079104.html

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Adopted Regulations

Preproposal