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Weekly Update Volume 30, Issue 13

05/08/2000

LITIGATION

 

Note: The cases listed are available from the ELR Document Service.

red bar graphic CAA TITLE V, PERMIT PROGRAM, PERIODIC MONITORING REQUIREMENTS, GUIDANCE DOCUMENTS:

The D.C. Circuit set aside an EPA guidance document that set forth the periodic monitoring requirements for stationary sources subject to CAA Title V permitting. EPA argued that the guidance document is not reviewable because it is not final agency action. The guidance document, however, reflects a settled Agency position that has legal consequences both for state agencies administering their permit programs and for companies who must obtain Title V permits to continue operating. Additionally, by directing state permitting authorities to conduct wide-ranging sufficiency reviews and to enhance the monitoring required in individual permits beyond that contained in state or federal emission standards even when standards demand some sort of periodic testing, the guidance document in effect amended the periodic monitoring rule set forth at 40 C.F.R. §70.6(a)(3)(i)(B). Consequently, the guidance document should have been promulgated in compliance with notice-and-comment rulemaking procedures. The court, therefore, set aside the document in its entirety. Appalachian Power Co. v. Environmental Protection Agency, Nos. 98-1515 et al. (D.C. Cir. Apr. 14, 2000) (14 pp.).

red bar graphic  RCRA,  LAND DISPOSAL RESTRICTION (LDR) PHASE IV RULE:

The D.C. Circuit held that EPA  improperly classified secondary and residual materials generated in mining and mineral processing operations as "solid waste" in the Land Disposal Restriction Phase IV rule. EPA attempted to regulate secondary materials destined for recycling based on the manner of storage. However, EPA misinterpreted case law and improperly concluded that secondary materials are discarded and, thus, "waste" whenever they leave the production process and are stored for any length of time. Yet RCRA requires material to be thrown away or abandoned before it can be deemed "waste." Consequently, because at least some of the secondary materials EPA sought to regulate as solid waste are destined for reuse as part of a continuous industrial process and, thus, are not abandoned or thrown away, EPA's definition of solid waste was erroneous. EPA's alternative LDR treatment standards for soils placed into a land disposal unit, however, are lawful. Although the final regulations are not identical to the proposed regulations, they are the logical outgrowth of the proposed regulations and, therefore, comply with the APA's notice-and-comment requirements. Additionally, EPA's decision was not arbitrary or capricious. Finally, although EPA justified its use of the toxicity characteristic leaching procedure (TCLP) test to determine the toxicity of mineral processing wastes generally, EPA failed to justify its application of the TCLP to manufactured gas plant wastes. Manufactured gas plant waste is no longer produced and, therefore, will not be disposed of in municipal landfills unless it happens in the case of a remediation effort. Association of Battery Recyclers, Inc. v. U.S. Environmental Protection Agency, Nos. 98-1368 et al. (D.C. Cir. Apr. 21, 2000) (21 pp.). 

red bar graphic  CWA, WETLANDS, CONSENT DECREE: 

The Seventh Circuit denied a developer's motion to bar the enforcement of penalties for illegally filling wetlands without a permit. After being civilly charged with illegally filling a wetland, the developer entered into a consent decree with EPA, the terms of which required him to either create a substitute wetland by a specific date or pay a penalty. The developer failed to complete the wetland by the specified date, so EPA moved to enforce the penalty provision of the consent decree. A district court granted EPA's motion, and the developer filed a motion to vacate the judgment as void for lack of subject matter jurisdiction. The district court, however, had subject matter jurisdiction over EPA's case against the developer because the suit civilly charged a violation of a federal statute that is within the federal court's federal question jurisdiction. Additionally, because the developer entered into a consent decree in which he agreed that the waters involved were "waters of the United States," which is merely an element of the offense and not the basis for federal subject matter jurisdiction, the developer cannot now assail the district court's subject matter jurisdiction. United States v. Krilich, Nos. 99-2271, -2397 (7th Cir. Apr. 12, 2000) (10 pp.).

red bar graphic  RIPENESS, HIGH-LEVEL NUCLEAR WASTE STORAGE, INTERVENTION:

The Tenth Circuit held that the state of Utah could not intervene in the lease approval process between a Native American tribe and a private corporation that intended to construct and operate a temporary storage facility for high-level nuclear waste on the leased lands. As required by 25 U.S.C. §415(a), the tribe submitted the proposed lease to the Bureau of Indian Affairs (BIA) so that it could review and approve the lease. The BIA conditioned approval of the lease on completion of an EIS evaluating the environmental impacts of the lease and on the issuance of a license by the NRC. Despite the BIA's conditional approval, the dispute is not justiciable because it is not ripe for review. The state will not suffer significant hardship if it is not allowed to intervene at the present time. The state seeks to intervene in the lease approval process to ensure that the BIA considers environmental factors as required by 25 U.S.C. §415, but the state will have ample opportunity to raise its environmental concerns during completion of the EIS and during issuance of the NRC license. In fact, the NRC must examine environmental concerns more rigorously in completing an EIS than the BIA does on its subsequent §415 lease review. Moreover, the state's claimed harms are contingent, not certain or immediate, because it can do no more than presently allege that if the lease is approved and the facility developed, it may detrimentally impact the environment. Utah v. United States Department of the Interior, No. 99-4104 (10th Cir. Apr. 25, 2000) (6 pp.).

red bar graphic INSURANCE, DUTY TO DEFEND, EXPOSURE THEORY TRIGGER OF COVERAGE:

The Fifth Circuit, interpreting Texas law, held that exposure to asbestos is the event that triggers an insurer's duty to defend in asbestos personal injury cases under a uniform comprehensive general liability policy, and, therefore, a district court decision holding that an insurer need not defend an asbestos tile manufacturer is reversed. The district court determined that there was no duty to defend because a required occurrence of bodily injury did not manifest during the relevant policy period. However, the terms "occurrence" and "bodily injury" are ambiguous and susceptible to more than one interpretation. Although an injury must occur during the policy period, an injury occurs not when the symptoms of disease manifest but when subclinical tissue damage occurs on inhalation of asbestos fibers. Thus, on remand, the district court must determine whether the insurer's duty to defend is triggered by examining each underlying complaint for allegations of exposure during the policy period. However, as to the one underlying complaint alleging property damage, the district court correctly held that the insurer did not have a duty to defend because the alleged property damage did not manifest during the relevant policy period. In addition, the district court's ruling that the insurer has no duty to indemnify the manufacturer is reversed. Because the insurer might be found to have a duty to defend the manufacturer, it thus might have a duty to indemnify. Guaranty National Insurance Co. v. Azrock Industries, Inc., No. 98-21031 (5th Cir. Apr. 27, 2000) (14 pp.).

red bar graphic  WASTE DISPOSAL, DORMANT COMMERCE CLAUSE: 

The Fourth Circuit held that a district court properly dismissed as moot a solid waste handler's challenge to West Virginia statutes regulating the disposal of solid waste and properly vacated its own declaratory and permanent injunctions against the enforcement of the statutes. When the solid waste handler initially challenged the state statutes, they were found invalid under the dormant Commerce Clause and the district court entered injunctions barring their enforcement. Subsequently, the state legislature revised the enjoined and other related provisions of the state code, and those amendments were substantial and significant enough to render the solid waste handler's complaint against the state moot. Additionally, even if the legislature possesses the power to reenact the statute after the lawsuit is dismissed, the statutory changes that discontinued the challenged practice are sufficient to render the case moot. The district court properly vacated its declaratory judgment with respect to the non-referenda provisions of the state statutes because the mootness was caused by the state legislature's amendment of the statutory provisions rather than the actions of any of the executive officials being sued by the solid waste handler. Similarly, the district court properly vacated its permanent injunction because the statutory changes were substantial. The district court, however, improperly refused to vacate those portions of its declaratory and permanent injunctions pertaining to the referenda provisions of the challenged state statutes. Because the solid waste handler lacked standing to challenge those provisions, the district court lacked jurisdiction to enter those portions of its judgment. Valero Terrestrial Corp. v. Paige, No. 99-1598P (4th Cir. Apr. 20, 2000) (10 pp.).

red bar graphic  ASBESTOS EXPOSURE, MULTIDISTRICT LITIGATION: 

The Third Circuit denied petitions brought by three groups of individuals seeking to remand their claims for personal injury and wrongful death damages due to asbestos exposure. The petitioners' claims were initially filed in Georgia, New York, and Oregon, but were transferred to a multidistrict litigation in the Eastern District of Pennsylvania pursuant to 28 U.S.C. §1407(a). The petitioners wanted their cases remanded to the original transferor courts. Many of the petitioners, however, failed to seek a suggestion of remand from the transferee court. Moreover, the remaining petitioners failed to demonstrate they had a clear and indisputable right to remand. As evidenced by ongoing settlement negotiations and conferences as well as ongoing discovery on overlapping issues that affect many of the asbestos cases, the coordinated pretrial proceedings in the multidistrict litigation have not yet concluded. In re Joann Patenaude, No. 99-1540 (3d Cir. Apr. 11, 2000) (18 pp.).

red bar graphic  NUCLEAR POWER PLANT LICENSE RENEWAL, INTERVENTION, REQUESTS FOR EXTENSION OF TIME, "UNAVOIDABLE CIRCUMSTANCES":

The D.C. Circuit denied an interest group's petition to review the NRC's denial of intervention by the group in a Maryland nuclear power plant's license renewal proceeding. The NRC properly adopted and applied an unavoidable and extreme circumstances test, in lieu of a good cause test, to assess requests for extensions of time in which to file contentions to the license renewal proceeding. The NRC possesses the authority to change its procedures on a case-by-case basis if it provides timely notice to the parties involved, and the group received timely notice of the NRC's intention to adopt the unavoidable and extreme circumstances standard. Further, the NRC's adoption of the unavoidable and extreme circumstances standard was a procedural rulemaking not subject to notice and comment. In addition, the NRC's adoption of the unavoidable and extreme circumstances standard was not arbitrary or capricious. NRC's adoption of the procedural standard did not significantly or unreasonably change the regime under which extensions for time are judged because the unavoidable and extreme circumstances standard was not an extreme departure from the traditional good cause standard. Moreover, the group showed no detrimental reliance on the old standard. Likewise, the group suffered no prejudicial error when the NRC adopted the unavoidable and extreme circumstances standard. The group sought and received from the NRC two extensions of time in which to file its contentions. When they failed to meet the extended deadlines, the motion to intervene was properly denied. National Whistleblower Center v. Nuclear Regulatory Commission, No. 99-1002 (D.C. Cir. Apr. 11, 2000) (16 pp.).

red bar graphic  NEPA, APA, NATIONAL HISTORIC PRESERVATION ACT (NHPA): 

The Third Circuit held that a district court properly granted summary judgment to the city of Philadelphia on residents' APA, NEPA, and NHPA claims that the city did not properly perform environmental and historic review or provide meaningful public hearings in connection with a grant the city received from the Department of Housing and Urban Development (HUD) for partial funding of a development project. The city initially intended to build a festival park, but it then amended the proposal by abandoning the festival park concept and proposing instead to build a hotel and garage. At the suggestion of HUD, the city withdrew its request for the amendment and then, after conducting public hearings, submitted a virtually identical request for an amendment. Contrary to the residents' view, the city's decision not to prepare an EIS was neither arbitrary nor capricious under the APA. The city did not ignore the concerns of the residents. Rather, it withdrew a defective application, cured the defect by conducting public hearings, and then resubmitted the application. Additionally, the city's EA was not defective for its failure to consider the impact of possible future developments in the area. Further, the city's finding of no significant impact was not arbitrary or capricious because the city rejected an alternative location for the project. Finally, the residents waived their claims that findings of no impact under the NHPA were erroneous. Society Hill Tower Owners' Ass'n v. Rendell, No. 98-1937 (3d Cir. Apr. 17, 2000) (17 pp.).

red bar graphic  MAGNUSON-STEVENS FISHERY CONSERVATION AND MANAGEMENT ACT (MAGNUSON ACT), FISHERY MANAGEMENT PLAN, SUMMER FLOUNDER FISHING QUOTA: 

The D.C. Circuit held that the National Marine Fisheries Service (NMFS) did not comply with the Magnuson Act or its regulations in promulgating a summer flounder fishing quota for the 1999 harvest. The NMFS adopted a summer flounder fishing quota with an 18% likelihood of meeting the Magnuson Act's conservation goals. This falls far below the statutory and regulatory mandate that the NMFS must have a fairly high level of confidence, interpreted by the court to be 50%, that the quota it recommends will not result in a fishing mortality rate greater than the the target mortality rate. Moreover, additional measures adopted by the NMFS do nothing to indicate an improved level of confidence so as to assure a reasonable likelihood of achieving the target mortality rate. There is no meaningful data to support the assertion that a larger mesh size in the fishing nets would reduce the number of undersized fish caught, and the NMFS conducted no analysis to determine the likely effect of this measure on the probability of meeting the target mortality rate. Moreover, the NMFS' second measure, which proposes that states voluntarily allocate a certain portion of the directed commercial fishery toward incidental catch, is merely a recommendation, not a mandatory requirement. Natural Resources Defense Council, Inc. v. Daley, No. 99-5308 (D.C. Cir. Apr. 25, 2000) (9 pp.).

red bar graphic  TAKINGS, INVERSE CONDEMNATION: 

The Federal Circuit affirmed the dismissal of landowners' takings and inverse condemnation claims arising from a contract with the Federal Emergency Management Agency (FEMA) for the cleanup of damage caused by Hurricane Andrew. The landowner argued that the contractor hired by FEMA to perform the cleanup did not do so within the terms of the contract and, instead, ruined the land. A takings claim, however, must be premised on a government action that is either expressly or impliedly authorized by a valid enactment of Congress, and the landowners failed to point to any valid enactment of Congress that authorizes FEMA's destructive action. Additionally, the landowners' claim that FEMA violated the terms of the contract would give rise to a breach of contract claim, not a violation of the Fifth Amendment as the landowner contends. Moreover, the landowner failed to allege that FEMA intended to take the land. The lower court, however, improperly dismissed the landowners' breach of contract claim. Dureiko v. United States, No. 99-5043 (Fed. Cir. Apr. 14, 2000) (13 pp.).

red bar graphic CWA, APA, TOTAL MAXIMUM DAILY LOADS (TMDLs):

A district court ordered EPA to approve or disapprove 10 TMDLs submitted by the state of New York for the Agency's approval, but dismissed all other challenges brought against the Agency under the APA in connection with its management of the TMDL program in New York. Neither EPA's failure to deem the state's slow progress in promulgating TMDLs a "constructive submission" of deficient TMDLs, nor its failure to promulgate appropriate TMDLs was arbitrary or capricious. The administrative record supports the conclusion that the state is making meaningful progress in formulating TMDLs. Moreover, even if EPA's duty to declare a "constructive submission" had been triggered, EPA did not unreasonably delay such a declaration based on the standard set forth in Telecommunications Research and Action Center v. FCC, 750 F.2d 70 (D.C. Cir. 1984). Similarly, EPA's approval of eight TMDLs submitted by the state for the New York City Reservoir is rationally supported by the administrative record. The TMDLs implemented applicable water quality standards, contained a margin of safety, comprised wasteload allocation and load allocation components, established daily pollution limits, and accounted for seasonal variations. The court was also satisfied that EPA's present management of the TMDL program generally complies with the CWA. Nevertheless, EPA breached its nondiscretionary duty to approve or disapprove 10 TMDLs submitted by the state to EPA for approval. Rather than taking action on the submittal, EPA classified the TMDLs as "informational" because it concluded that the TMDLs addressed waterbodies that were not water quality limited and, thus, did not require action. The CWA, however, unambiguously requires agency action on any proposed TMDLs submitted to EPA for water quality level standards included on a state's CWA §303(d) list, and it leaves no room for EPA to define subsets of listed water quality level standards that deserve differential treatment. Natural Resource Defense Council, Inc. v. Fox, No. 94 Civ. 8424 (PKL) (S.D.N.Y. May 2, 2000) (Leisure, J.) (63 pp.) (Plaintiff counsel included Mark A. Izeman of Natural Resources Defense Counsel in New York NY).

red bar graphic  RCRA, TSCA, NEPA, CHEMICAL AGENT STOCKPILE DISPOSAL: 

A district court held that the U.S. government and a private company did not violate RCRA, TSCA, or NEPA in their past operation and continued present operation of a chemical agent stockpile disposal facility. Some of the interest groups' RCRA citizen suit claims were based on wholly passed violations, and the groups failed to establish that violations at the facility were ongoing or likely to recur. Additional claims that the facility's RCRA permit was violated were unsuccessful because they were not supported by sufficient evidence at trial. Similarly, the interest groups failed to satisfy the requirements of RCRA §6972(a)(1)(B) and prove that the operational events and emissions from the common stack at the facility presented an imminent and substantial endangerment to health or the environment. The interest groups also were unsuccessful on their TSCA citizen suit claims because the evidence at trial showed that the facility has in the past and continues to meet the requirements for the destruction of PCBs. Finally, the interest groups' NEPA claims are time-barred. The facility's concealment of information does not rise to the necessary level of active deception to toll the statute of limitations. Chemical Weapons Working Group, Inc. v. United States Department of the Army, No. 2:96-CV-425C (D. Utah Apr. 14, 2000) (Campbell, J.) (22 pp.) (Defense counsel included Craig D. Galli of Parsons Behle & Latimer in Salt Lake City UT).

red bar graphic  CLASS ACTION CERTIFICATION, GROUNDWATER CONTAMINATION, MEDICAL MONITORING: 

A California court of appeals held that a trial court improperly certified as a class residents of a community alleging that the underlying defendants' manufacturing operations contaminated a portion of their city's groundwater. Although there are significant common issues of fact in this case, the issues would be overwhelmed by the numerous inquiries necessary to establish each individual's claim to medical monitoring. Being a member of the class in this situation requires a threshold level of exposure to contaminated water, but such exposure does not determine an individual's right to medical monitoring. The variety of chemicals and the range of possible diseases identified by the individuals are extensive, and the issue of whether medical monitoring would be appropriate for each individual's medical condition or disease must be considered. Moreover, the remedy sought by the individuals does not avoid the reality that entitlement to that remedy depends on factors unique to each individual class member. Lockheed Martin Corp. v. Superior Court of San Bernardino County, Nos. E025064 et al. (Cal. Ct. App. Apr. 11, 2000) (19 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 promulgated the second phase of regulations to control emissions from new nonroad spark-ignition handheld engines at or below 19 kilowatts. 65 FR 24267 (4/25/00).
  • EPA listed two halon substitutes for ozone-depleting substances in the fire suppression and explosion protection sector as acceptable under the significant new alternatives program. 65 FR 24387 (4/26/00). 
  • EPA proposed to make several additions and changes to the Agency's Guideline on Air Quality Models. 65 FR 21505 (4/21/00). 
  • EPA proposed to modify a previously published proposed rule to amend the asbestos worker protection rule. 65 FR 24805 (4/27/00). 
  • EPA delegated the authority to implement and enforce the updated and/or revised new source performance standards and NESHAPs submitted by Iowa, Kansas, Missouri, Nebraska, Lincoln-Lancaster County, Nebraska, and Omaha, Nebraska. 65 FR 20754 (4/18/00).  
  • EPA approved Connecticut's CAA §§111(d)/129 state plan. 65 FR 21354 (4/21/00). 
  • EPA approved Idaho's CAA §111(d) state plan for controlling emissions from existing hospital/medical/infectious waste incinerators. 65 FR 21358 (4/21/00). 
  • EPA approved Oklahoma's CAA §111(d) plan to implement and enforce the emissions guidelines for existing hospital/medical/infectious waste incinerators. 65 FR 25447 (5/2/00). 
  • EPA approved Oregon's negative declaration that there are no hospital/medical/infectious waste incinerators located within its boundaries. 65 FR 21361 (4/21/00). 

red bar graphic HAZARDOUS WASTES AND SUBSTANCES:

  • EPA entered into a proposed administrative agreement under CERCLA §122(h) in connection with the Lawton Property Superfund site in Detroit, Mich. 65 FR 20457 (4/17/00). 
  • EPA entered into a proposed administrative agreement under CERCLA §122(g)(4) in connection with the Organic Chemical, Inc., site in Grandville, Mich. 65 FR 20457 (4/17/00). 
  • EPA entered into a proposed administrative settlement under CERCLA in connection with the U.S. Radium Superfund site in Orange, N.J. 65 FR 20458 (4/17/00).  
  • EPA entered into a proposed administrative settlement under CERCLA §122 in connection with the Blackberry Valley Drum Superfund site in Greenville, S.C. 65 FR 20821 (4/18/00).
  • EPA entered into a proposed prospective purchaser agreement under CERCLA §122(i) in connection with the Yurgin Motors Superfund site in Mantua Township, N.J. 65 FR 20979 (4/19/00).  
  • EPA entered into a proposed administrative settlement under CERCLA §122(h)(1) in connection with the Double A Metals site in Chicago, Ill. 65 FR 21178 (4/20/00). 
  • EPA entered into a proposed administrative settlement under CERCLA §§106 and 107 in connection with the San Fernando Valley Crystal Springs Superfund site--Glendale Operable Units, in Burbank, Cal. 65 FR 24696 (4/27/00). 
  • EPA announced that it is proposing to reissue a no-migration variance for land disposal of hazardous waste to the Exxon Mobil Refining & Supply Company Refinery in Billings, Mont. 65 FR 21419 (4/21/00). 
  • EPA granted a petition to exclude from hazardous waste control desorber solids generated at DuraTherm, Inc.'s San Leon, Tex., facility. 65 FR 21651 (4/24/00).  

red bar graphic DRINKING WATER:

  • EPA promulgated final regulations revising the general public notification regulations for public water systems to implement the public notification requirements of the 1996 SDWA amendments.  65 FR 25981 (5/4/00). 
  • EPA issued additional information relevant to the maximum contaminant level goals, the maximum contaminant levels, and monitoring requirements contained in the July 18, 1991, proposal to limit the amount of radionuclides found in drinking water. 65 FR 21575 (4/21/00). 

red bar graphic EXECUTIVE ORDERS:

  • President Clinton issued Executive Order 13149, Greening the Government Through Federal Fleet and Transportation Efficiency, to ensure that the federal government exercises leadership in the reduction of petroleum consumption through improvements in fleet fuel efficiency and the use of alternative fuel vehicles and alternative fuels. 65 FR 24607 (4/26/00). 
  • President Clinton issued Executive Order 13148, Greening the Government Through Leadership in Environmental Management, to ensure that all necessary actions are taken to integrate environmental accountability in agency day-to-day decisionmaking and long-term planning processes, across all agency missions, activities, and functions. 65 FR 24593 (4/26/00). 
  • President Clinton issued Executive Order 13150, Federal Workforce Transportation, in order to reduce federal employees' contribution to traffic congestion and air pollution and to expand their commuting alternatives. 65 FR 24613 (4/26/00). 

red bar graphic PESTICIDES:

  • EPA issued an advance notice of proposed rulemaking to alert stakeholders that EPA is beginning to develop procedural regulations for registration review under FIFRA §3. 65 FR 24585 (4/26/00).

red bar graphic RULEMAKING:

  • EPA issued its semiannual regulatory agenda providing specific information on the status of regulations under development and revision. 65 FR 23429 (4/24/00). 

red bar graphic SMCRA PROGRAM APPROVAL:

red bar graphic  TOXIC SUBSTANCES:

  • EPA and the DOJ proposed a rule that would provide for access to information concerning the potential off-site consequences of hypothetical accidental chemical releases from industrial facilities. 65 FR 24833 (4/27/00).   

red bar graphic WATER QUALITY:

  • EPA promulgated a rule that specifies that new and revised standards adopted by states and authorized by tribes become applicable standards for CWA purposes only when approved by EPA. 65 FR 24641 (4/27/00).     
  • EPA issued a summary of all data received and collected since publication of its February 3, 1999, proposal to implement technology-based effluent limitations guidelines and standards under the CWA for the discharge of pollutants from oil and gas drilling operations associated with the use of synthetic-based drilling fluids and other non-aqueous drilling fluids into U.S. waters. 65 FR 21547 (4/21/00). 
  • EPA proposed Class II administrative penalties under CWA §309(g) of $137,500 against Colrich Communities, Inc., for NPDES permit violations in Riverside County, Cal. 65 FR 21764 (4/24/00).  
  • EPA announced that it issued NPDES general permits for non-contact cooling water discharges to certain waters of the states Maine, Massachusetts, and New Hampshire for the purpose of reissuing the current permit that expired on May 31, 1999. 65 FR 24195 (4/25/00). 
  • EPA announced the availability of a letter it sent to the state of New York finding that for the most part the state has adopted water quality standards and NPDES permit program revisions that are consistent with CWA §118 and 40 C.F.R. part 132. 65 FR 24957 (4/28/00). 
  • EPA Region 4 announced its final modifications of the NPDES general permit for storm water discharges from construction activities in the following areas: Native American lands in Alabama, the state of Florida, Native American lands in Florida, Native American lands in Mississippi, and Native American lands in North Carolina. 65 FR 25121 (4/28/00). 
  • EPA proposed to reissue a general NPDES permit for seafood processors in Alaska under the CWA. 65 FR 21432 (4/21/00). 
  • EPA and NOAA announced that the intend to fully approve California's coastal nonpoint pollution control program. 65 FR 25311 (5/1/00). 
  • EPA announced the availability of a proposed Project XL final project agreement for Naval Station Mayport in Florida for which it seeks comments. 65 FR 25327 (5/1/00). 

red bar graphic WETLANDS:

  • EPA and the U.S. Army Corps of Engineers proposed to revise their CWA regulations defining the term "fill material." 65 FR 21291 (4/20/00). 
  • DOE announced that it will prepare a floodplain and wetlands assessment in connection with its proposal to convey to the abutting landowner an approximate 182-acre parcel of land located within the 500-year floodplain of the Clinch River in Roane County, Tenn. 65 FR 25711 (5/3/00). 

red bar graphic DOJ NOTICES OF SETTLEMENT:

  • U.S. v. Beazer East, Inc., No. 00-D-561 (D. Colo. Mar. 14, 2000) (settling CERCLA defendants must implement the EPA-selected remedial action at the Smeltertown Superfund site in Salida, Colo., must reimburse all of EPA's past response costs incurred at the site, and must reimburse all of EPA's and Colorado's future response costs to be incurred at one of the operable units at the site), 65 FR 20487 (4/17/00); 
  • U.S. v. Lockheed Martin Corp., No. 00-562 (D. Colo. Mar. 14, 2000) (a CERCLA defendant must $3.5 million over 10 years to the U.S. Air Force for costs incurred and to be incurred at the PJKS NPL site in Jefferson County, Colo., and must provide cleanup services that could ultimately reduce total cleanup costs to the Air Force by as much as $35.25 million), 65 FR 20487 (4/17/00); 
  • U.S. v. Beazer East, Inc., No. 00-561 (D. Colo. Mar. 14, 2000) (settling CERCLA defendants must implement the EPA-selected remedial action at the Smeltertown Superfund site in Salida, Colo., must reimburse all of EPA's past response costs incurred at the site, and must reimburse all of EPA's and Colorado's future response costs to be incurred at one of the operable units at the site), 65 FR 21016 (4/19/00); 
  • U.S. v. Fleetwood Industries, Inc., No. 00-CV-1818 (E.D. Pa. Apr. 7, 2000) ( CERCLA defendants must pay $82,297.77 in past U.S. response costs incurred at the Berks Landfill Superfund site in Spring Township, Pa.), 65 FR 21016 (4/19/00); 
  • U.S. v. Morton International, Inc., No. 1:00-CV-220 (W.D. Mich. Mar. 30, 2000) (a CWA defendant that discharged effluent into Manistee Lake at its magnesium-based chemical manufacturing plant in Manistee, Mich., in violation of its NPDES permit must pay a $75,000 civil penalty and perform supplemental environmental projects), 65 FR 21017 (4/19/00); 
  • U.S. v. Redi-Serve Foods Ltd. Partnership, No. 00-C-0166-C (W.D. Wis. Mar. 24, 2000) (a CAA defendant that violated the Act at its meat processing facility in Fort Atkinson, Wis., must pay a $195,000 civil penalty, must retain a certified opacity observer to perform a daily stack inspection, must report any visible emissions readings that exceed 20 percent to EPA, and must report any temperature excursions, malfunctions, or down times for the thermal oxider), 65 FR 21017 (4/19/00); 
  • U.S. v. SC Holding, No. 1:00CV150 (N.D. Ind. Apr. 11, 2000) (settling CERCLA defendants, in connection with natural resource damages resulting from the release of hazardous substances at or from the Fort Wayne Reduction Superfund site in Fort Wayne, Ind., must reimburse the federal natural resource trustee, DOI, through the FWS, $90,000 in estimated natural resource damage assessment costs and $8,000 in estimated project oversight costs; must reimburse the state natural resource damage trustee, the state of Indiana, through the Indiana Department of Environmental Management and the Indiana Department of Natural Resources, $2,000 and $1,500, respectively, for their natural resource damage assessment costs and estimated project oversight costs; and must implement a restoration plan under which they will, among other things, acquire approximately 75 acres of land adjacent to the Maumee River, reforest and restore approximately 45 acres of that property, place a deed restriction in the form of a conservation easement on the property, and convey the property to the Indiana Department of Natural Resources), 65 FR 24224 (4/25/00);   
  • U.S. v. BHP Petroleum Americas Refining, Inc., No. 00-00264 DAE (D. Haw. Apr. 10, 2000) (a CAA, CWA, CERCLA, and EPCRA defendant must modify the air blower and burner system at its sulfur recovery units, must add capacity to its containment areas, must place new coatings on its berms and containment floors, and must undertake a supplemental environmental project to provide equipment worth $50,000 to the city and county of Honolulu, Haw., for management of inventory data and emergency planning), 65 FR 24225 (4/25/00); 
  • U.S. v. Big Apple Wrecking Corp., No. 9190 (D.S.N.Y. Mar. 30, 2000) (CAA defendants that violated the asbestos NESHAP during the removal, handling, and disposal of asbestos from a building being demolished in New York City must pay $40,000 in civil penalties, and must notify EPA of future demolition or renovation operations), 65 FR 24980 (4/28/00); 
  • U.S. v. 745 Property Investments, Inc., No. 00-1215-Civ-Seitz (S.D. Fla. Mar. 31, 2000) (settling CERCLA defendants must perform the "zone 1" soils excavation and monitoring program at the Anodyne NPL site in Miami, Fla,. as required by the record of decision for the site, must pay up to $100,000 of EPA's oversight of that portion of the remedial action, must pay all of EPA's other future response costs incurred in connection with the consent decree, and must pay $35,704.56 in past U.S. response costs), 65 FR 25759 (5/3/00).

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

IN THE STATES

red bar graphic ALABAMA

Dept. of Envtl. Management

Proposed Regulations-Air

  • Proposed revisions to Division 3 of the Administrative Code will incorporate NSPS and NESHAP revisions from Sept. 1999 through March 2000. Other provisions affected include Chapter 335-3-1 (clarification of definition of "New Source") and Chapter 335-3-16, which is being revised to seek final approval of the state's Title V Major Source Operating Permit Program. Public hearing scheduled for June 7; written comments due June 19. For details,  see http://www.adem.state.al.us/propdiv3.html

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 were due April 30. Details at http://www.akrtt.org/plans.html

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Dept. of Envtl. Quality

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 were accepted through April 12. Details at http://www.adeq.state.ar.us

Proposed Revisions-Air Regulations

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Dept. of Envtl. Quality

Proposed Program Delegations

Draft Regulations-UST State Assurance Fund

Superfund Program-Proposed Registry Inclusions, Prospective Purchaser Agreements

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Air Resources Board

Final Regulations

Proposed Regulations

Integrated Waste Management Board

Landfill Diversion

AB 939 Local Government Compliance Orders

Water Resources Control Board

Water Transfers Public Workshop

Undergound Storage Tanks--Proposed Cleanup Fund Regulations

South Coast Air Quality Management District

Final Regulation-Air Toxics

Final Regulation-Gasoline Transfer/Dispensing

  • Governing Board adopted revisions to Rule 461 on April 21. The revisions require more frequent testing of USTs, gas pumps and associated hardware. Increased inspection frequency and new requirements for training for equipment testers are also included. See http://www.aqmd.gov/news1/Governing_Board/Bs4_21_00.htm

Draft Air Toxics Control Plan

Proposed Rule, Amendments--Public Fleet Vehicles

Proposed Amendments-Fees

  • Proposed amendments to Regulation III-Fees will be considered at public hearing on May 19. The revisions would raise fees by 2.9% and emission fees by an additional 8.1%. The per nozzle compliance fee for gasoline stations would be increased to $25.11. In addition, a $50 per person fee for employee transportation training would be instituted. Details at http://www.aqmd.gov/news1/Governing_Board/Bs4_21_00.htm

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Water Quality Control Commission

Proposed Regulations

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Dept. of Envtl. Protection

Proposed Aquifer Protection Land Use Regulations

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Dept. of Envtl. Protection

Everglades Restoration

Public Hearing-Drinking Water Fund Priority List

  • May 8 hearing in Tallahassee on proposed adoption of FY 2000 Drinking Water State Revolving Fund loan priority list. Approximately $20 million is expected to be available.

Southwest Florida Water Management District

Proposed Regulation-Water Use Form

  • Proposal would establish water use form, the Modification Short Form. Public hearing, if requested, will be held after subsequent notice.

Proposed Regulation-Wetlands, Surface Waters

  • Amendments would establish time frame within which the District must act in evaluating a Petition for a Formal Determination of Wetlands and Other Surface Waters. Public hearing, if requested, will be held after subsequent notice. 

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Dept. of Natural Resources

Proposed Regulations-Air Quality

  • Proposed amendments to Chapter 391-3-1, Procedures for Testing and Monitoring Sources of Air Pollutants, and amendments to the SIP for attaining the ozone standard in the Atlanta Ozone Nonattainment Area. Public hearing on May 18 in Atlanta; written comments due that date. Will be taken up at July 26 meeting of Board of Natural Resources. For details, see http://www.ganet.org/dnr/environ/

Air Permit Applications

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Division of Envtl. Quality

Airshed Management Plan

Permit Applications

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Pollution Control Board

Proposed Procedural Rules

Envtl. Protection Agency

Strategic Planning Process

Permit Applications

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Dept. of Envtl. Management

Final Regulations-Water

Final Regulations-Hazardous Waste

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

Proposed Regulations-Solid & Hazardous Waste

Proposed Regulations-Underground Storage Tanks

Land Application Permit

Guidance Documents

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KDHE Division of Environment

Water Quality-305(b) Report

TMDL Development

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Dept. of Envtl. Quality

Proposed Regulations-Fees

  • 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

Proposed Regulations-Air

  • Revisions to LAC 33:III.2121, to remove the word "pipeline" and make other changes regarding regulations for monitoring requirements for petroleum refineries. Public hearing on May 25; comments due June 1. See http://www.deq.state.la.us/planning/regs/index.htm

  • Revisions to LAC 33:III.5107 and 5112, to reclassify zinc and zinc compounds from Class II (suspected carcinogen or known toxin) to Class III (acute and chronic, non-carcinogenic). Public hearing May 25; comments due June 1. See http://www.deq.state.la.us/planning/regs/index.htm

  • Revisions to LAC 33:III.2107, regarding adding U.S. EPA test methods 18, 25A, and 25B as appropriate test methods for determining compliance with control requirements for loading facilties for volatile organic compounds. Public hearing May 25; comments due June 1. See http://www.deq.state.la.us/planning/regs/index.htm

Proposed Regulations-Laboratories

  • Proposed rule would replace Emergency Rule 0S035E and establish requirements to ensure the quality of data generated by accredited commercial laboratories. Public hearing May 25; comments due June 1. See http://www.deq.state.la.us/planning/regs/index.htm

Proposed Regulations-Beneficial Environmental Projects

Semiannual Regulatory Agenda

Listing of 8-Hour Ozone Attainment/Nonattainment Areas

Permit Applications

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. 

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Dept. of the Environment

Public Meetings/Hearings

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Dept. of Envtl. Protection

Final Regulations-Cathode Ray Tube Management 

  • Cathode ray tubes, which are found in televisions, computer monitors, and certain other electrical equipment, are banned from landfill disposal or incineration pursuant to regulations that became effective April 1. See http://www.state.ma.us/dep under "New Additions" for information regarding the ban, the rationale behind it, and the Commonwealth's recycling program, as well as http://www.state.ma.us/dep/pao/files/crt2.htm

Proposed Regulations-NOx Trading

Proposed Regulations-Hazardous Waste Transport

  • Comment period closes May 8. The proposed amendments are designed to reduce the number of hazardous waste transporter categories from nine to one, consolidate the number of permit modification categories from three to one, and modify the public notice process for license applications. See http://www.state.ma.us/dep under "New Additions." 

Bordering Vegetated Wetlands Manual

  • Includes procedures for delineating Bordering Vegetated Wetland boundaries and recommendations for reviewing boundary delineations presented to conversation commissions. Available at http://www.state.ma.us/dep/new.htm

Penalty Assessments

Drinking Water State Revolving Loan Fund Program

Enforcement Actions

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Dept. of Envtl. Quality

Clean Corporate Citizen Designations

Draft CWA Section 303(a) Report

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. 
  • Stone Container Corp., for permit to install for installation and operation of air pollution control systems at facility in Ontonagon.
  • KM Power Company, for installation of a 550 megawatt natural gas-fired power plant in Jackson. 
  • Viking Energy, Lincoln, for increase in allowed tire-derived fuel usage rate.
  • 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.
  • Cadillac Renewable Energy, for operation of a utility plant in Wexford County.
  • Viking Energy of McBain, for operation of an electric utility.
  • Midland Township, for operation of a municipal solid waste landfill.
  • Central Michigan University, for operation of a power plant.
  • Detroit Edison, Monroe Power Plant.
  • Technisand, Inc., Berrien County, for sand mining operation.
  • MD Enterprises, Grand Rapids, for surface coating operation.
  • 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. 
  • LTV Steel Co., Ferndale, for Renewable Operating Permit. 
  • Genesee Power Station Limited Partnership, for Renewable Operating Permit. 
  • General Motors Powertrain Group, Bay City, for Renewable Operating Permit.
  • Stone Container Corp., Ontonagon, for Permit to Install. 
  • Miller Products, Grand Rapids, for Renewable Operating Permit.
  • Spectrum Industries, Grand Rapids, for Renewable Operating Permit.
  • Valley Asphalt Co., Burnside Township, for Permit to Install.
  • Industrial Steel Treating Co., Jackson, for Renewable Operating Permit.
  • White Tower Industrial Laundry & Cleaner, Detroit, for Renewable Operating Permit.
  • CMS Consumers Energy Co., Gaylord, for Renewable Operating Permit.

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

Exemptions from Permit to Install Requirement

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Pollution Control Agency

Proposed Regulations-Above/Underground Storage Tanks

  • Proposed amendments to Chapters 7001, 7151, and 7150 regarding performance standards for above- and underground storage tanks, to clarify existing language and ensure consistency with federal standards. Comments must be submitted by May 10. No public hearing currently scheduled. For details, see http://www.pca.state.mn.us/publicnotice/pn041000.html

Permit Applications, Other Notices

  • For an air permit for Boise Cascade Corp. Comment period ends May 19. 
  • For an air permit for Hill Wood Products, Mountain Iron. Comment period ends May 31.
  • For construction and operation of a solid waste disposal facility. Comment period ends June 1.
  • For reissued NPDES and SDS permit to City of St. Peter, wastewater treatment facility. Comment period ends June 2.
  • For reissued NPDES and SDS permit to City of Albany, wastewater treatment facility. Comment period ends June 2.
  • For reissued NPDES and SDS permit to City of Gilbert, wastewater treatment facility. Comment period ends May 15.
  • For reissued NPDES and SDS permit for City of Delano, wastewater treatment facility. Comment period ends May 8. 
  • For air permit for Central Minnesota Ethanol Co-op, Little Falls. Comment period ends May 16.
  • Revised Guidance Documents for UST and above ground storage tank release cleanup available.

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

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Air Conservation Commission

Adopted Regulations

  • Amendments to 10 CSR 10-5.390, Control of Emissions from Manufacture of Paints, Varnishes, Lacquers, Enamels and Other Allied Surface Coating Products, were approved by the Commission at its April 27 meeting.

  • New rule 10 CSR 10-6.400, Restriction of Emission of Particulate Matter From Industrial Processes, which consolidates previous rules, was approved by the Commission at its April 27 meeting.

Proposed Regulations

  • Proposed 10 CSR 10-6.350 will use an emission trading program to seek to reduce NOx emissions in the St. Louis ozone nonattainment area. The public hearing was April 27.

  • Proposed 10 CSR 10-5.451, regarding Control of Emissions from Aluminum Foil Roiling, will relax material specification requirements and update test procedures. The public hearing was April 27. 

Dept. of Natural Resources

Water Pollution Control-Permit Applications

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Dept. of Envtl. Quality

TMDLs-Section 303(d) Impaired Waterbodies List

  • A total of 17 meetings have been scheduled through May 18 to receive public comment on the draft 303(d) report. Comments are due June 19. The data report and waterbody data listings are available at http://nris.state.mt.us/wis/environet

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Dept. of Envtl. Quality

Proposed Regulations-Water Quality

Waste Reduction/Recycling Incentive Grants Program

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Dept. of Envtl. Protection

Current DEP Bulletin (Permit Applications; Proposed Regulations)

Greenhouse Gas Emissions

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Dept. of Envtl. Conservation

Environmental Notice Bulletin (Permit Applications)

Environmental Justice Advisory Group

Proposed Forest Mangement Unit

  • "Treaty Line" unit plan, addressing state forests located in Broome, Chenango and Delaware counties, available for comment through June 2. 

Draft Guidance Document

Office of Attorney General

New Report on Waste Recycling

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Dept. of Envt. and Natural Resources

Division of Air Quality Penalty Assessments

DENR Enforcement Data

Million Acres Open Space Initiative

Division of Air Quality-Permit Applications

Wetlands-401(f)(1) Exemptions; Ditch-Digging

  • Subject of proposed rule to deem certain activities compliant with wetland standards. Proposal is intended to create a two-week advance notice requirement for ditch digging activity in wetlands. Hearings scheduled for May 25 (Raleigh), May 30 (Wilmington), and June 1 (New Bern). Written comments due June 8.

Wood Chip Mills-Advisory Report

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Dept. of Envtl. Quality

Draft Source Water Assessment and Protection Program Document

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Dept. of Envtl. Quality

Proposed Regulations

  • Proposed revisions to On-Site Program Rules subject of May 15 hearing. 
  • Proposed changes to Hazardous Waste Program rules subject of May 15 hearing.

For further information, see http://www.deq.state.or.us/od/pp/calndar.htm

Dept. of Agriculture

Pesticide Use Reporting System; Report

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Dept. of Envtl. Protection

New Organization Chart

Proposed General NPDES Permit Revision

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). 

Safe Fill Policy

Draft Technical Guidance Documents

Final Technical Guidance

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Dept. of Health and Envtl. Control

Permit Application Notices

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Dept. of Environment and Conservation

Proposed Regulations-Copy Fees

Permit Applications

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Natural Resource Conservation Commission

Final Regulations

Proposed Regulations

Permit Hearings

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Dept. of Envtl. Quality

River Quality Task Force

New Environmental Excellence Program

Proposed General Permit

  • The State Water Control Board has proposed a general permit for poultry waste management, in accordance with Section 62.1-44.17:1.1, as amended in 1999. Public hearings are scheduled for May 30; June 1; June 5, and June 8 in various locations. Written comments are due by June 23. See http://www.deq.state.va.us/notice/pn/956759081.html

Proposed TMDLs

Permit Applications

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Dept. of Ecology

Adopted Regulations

Preproposal

Corps of Engineers Nationwide Permits

  • Ecology and U.S. EPA Region 10 have issued a joint notice proposing conditions to include with Corps of Engineers new and revised Nationwide Permits. Public comments are due May 26; public hearing on May 17. See http://www.wa.gov/ecology/sea/pac/pac-1.html

TMDLs-Impaired Waterbody List

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Dept. of Envtl. Protection

Public Notice Bulletin (Permit Applications, Proposed Regulations)

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Dept. of Natural Resources

Public Hearing and Meeting Schedule