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Weekly Update Volume 30, Issue 15

05/22/2000

LITIGATION

red bar graphic TAYLOR GRAZING ACT, GRAZING PRIVILEGES, "ENGAGED IN THE LIVESTOCK BUSINESS," PERMANENT RANGE IMPROVEMENTS:

The U.S. Supreme Court held that three 1995 DOI amendments to the federal grazing regulations neither violated the Taylor Grazing Act nor exceeded the Secretary of the Interior's authority under that Act. The new definition of "grazing preference" under 43 C.F.R. §4100.0-5 does not fail to safeguard the grazing privileges that the DOI regulations previously recognized and acknowledged. The new definition of "grazing preference" omits reference to a specified quantity of forage--specifically animal unit months (AUMs)--and further requires that permitted forage must be allocated by or under an applicable land use plan. Although the Taylor Grazing Act, 43 U.S.C. §315b, requires grazing privileges to be adequately safeguarded, 43 U.S.C. §315b also states that such safeguarding will occur "so far as consistent with the purposes and provisions of this subchapter." Further, 43 U.S.C. §315b also states that the issuance of a grazing permit creates no right, title, interest, or estate in or to the lands." Thus, the DOI is free to determine how and to what extent grazing privileges shall be safeguarded. Moreover, the Secretary has always had the authority under the Taylor Grazing Act and later the Federal Land Management Planning Act to reduce a permit's AUMs or to reclassify and withdraw  range land from grazing use. Also, although the new definition of grazing preference seems to tie grazing privileges to land use plans more explicitly than the old regulations, the Secretary has had the authority to use land use plans to determine the amount of permissible grazing since 1976 . In addition, the deletion of the phrase "engaged in the livestock business" from 40 C.F.R. §4110.1(a)'s limitations on who may receive a grazing permit does not violate the Taylor Grazing Act requirement that permits can only be issued to stock owners. It is both the Taylor Grazing Act and the regulations that constrain the Secretary's discretion in issuing permits, and the Act still limits permits to stock owners and still expresses a preference for landowners engaged in the livestock business. Further, the new regulations will not lead to the issuance of grazing permits for conservation uses because grazing permits for conservation uses are unlawful. Last, 40 C.F.R. §4120.3-2's specification that title to permanent range improvements shall be to the United States instead of in shared proportion between the United States and the permit holder does not violate the Taylor Grazing Act. Nothing in the Act denies the Secretary the authority to reasonably decide when or whether to grant title to those who make improvements on public range lands. Public Lands Council v. Babbitt, No. 98-1991 (U.S. May 15, 2000) (23 pp.).

red bar graphic COMMERCE CLAUSE, AGGREGATE EFFECTS OF NONECONOMIC ACTIVITY:

The U.S. Supreme Court, in an opinion written by Chief Justice Rehnquist, held that 42 U.S.C. §13981, which created a federal civil remedy for victims of gender-motivated violence, exceeds Congress' authority under the Commerce Clause and is therefore unconstitutional. Petitioner alleged that two members of a university football team assaulted and raped her, and brought a lawsuit against the university and the students. Congress enacted the legislation after four years of hearings and the review of reports submitted by 21 states and congressional committees. It concluded that crimes of violence motivated by gender have a substantial adverse effect on interstate commerce by deterring victims from traveling and engaging in employment and by increasing medical costs. Such reasoning, however, would allow Congress to regulate murder or any other type of violence, despite the traditional role of states in suppressing violent crime. Moreover, while a categorical rule against aggregating the effects of noneconomic activity is not necessary, gender-motivated crimes are clearly not commercial transactions and the regulation of intrastate activity under the Commerce Clause has previously been held to extend only to economic matters. Justice Souter, joined by three other justices, dissented, arguing that the Court should defer to jurisdictional findings by Congress if they are rational. Justice Breyer also authored a dissenting opinion, arguing that Congress, rather than the courts, should strike the appropriate federal/state balance. United States v. Morrison, Nos. 99-5, -29 (U.S. May 15, 2000) (71 pp.).

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red bar graphic INSURANCE, SUBROGATION, DUTY TO INDEMNIFY:

The Tenth Circuit, applying Wyoming law, affirmed a district court decision holding that a state, as a subrogee to an insured oil company, is not entitled to coverage from the company's insurer for remediation of a petroleum discharge on the company's property. The no action clause of the company's policy plainly and unambiguously states that no action lies against the insurer until the insured's obligation to pay has been determined by judgment or settlement. The amount that the company is obligated to pay as a result of the oil leak has not been determined, and the existence and extent of liability remain open questions. Therefore, the no action clause prohibits an action from being brought against the insurer by the company or its subrogee until the amount of the company's legal obligation is know. Further, the doctrine of judicial estoppel does not bar application of the no action clause because the position taken by the insurer in a New Mexico case, in which it argued that a no action clause applies only to third party claims,  is not contrary to the insurer's argument that further remediation and a legal determination of liability are necessary in the present case. Moreover, public policy considerations do not militate against requiring the state to bring a separate action to establish the extent of the company's liability. Wyoming v. Federated Service Insurance Co., No. 98-8096 (10th Cir. May 2, 2000) (7 pp.).

red bar graphic TOXIC TORTS, BANKRUPTCY, ADEQUATE NOTICE, EXCUSABLE NEGLECT, UNBORN CLAIMANTS:

The Third Circuit affirmed in part and reversed in part a bankruptcy court decision holding that the claims neighborhood plaintiffs filed against a bankrupt manufacturing facility had accrued prior to the bankruptcy bar and that the plaintiffs had failed to demonstrate excusable neglect. The manufacturer's contamination that allegedly caused the plaintiffs' injuries was known in the community in the early 1980's. Further, many neighborhood residents publicly expressed concern about the health effects of the toxins from the contamination in the press and at public meetings. Moreover, the plaintiffs introduced no evidence to show the measures they took to specifically investigate the cause of their medical problems. These factors and the prejudice to the manufacturer's right to a fresh start combine to defeat the plaintiffs' request to file late claims. Likewise, because 20 of the 21 plaintiffs failed to undertake a reasonable investigation of the cause of their manifest injuries, they did not discover that the contamination was a potential cause, and, therefore, their causes of action did not arise before the manufacturer's bankruptcy. However, one plaintiff was unborn when the manufacturer's bankruptcy was confirmed. This unborn plaintiff cannot be deemed to have received adequate notice of the manufacturer's bankruptcy. Additionally, although the unborn claimant's parents could have represented their child's interests, the law does not impose a duty on a parent to take action to protect a potential claim of a child not yet conceived or born. Similarly, a bankruptcy court does not have a duty to appoint a representative for future interests. Therefore, the potential claim of an unborn child not represented in a bankruptcy reorganization is not discharged by bankruptcy confirmation. Jones v. Chemetron Corp., No. 99-3500 (3d Cir. May 9, 2000) (19 pp.).

red bar graphic CERCLA, CONSENT DECREE, SETTLING DEFENDANTS:

The Fifth Circuit vacates a district court decision that a waste handler is bound by an amended CERCLA consent agreement with the United States and previous trust agreements with other settling defendants to sign a new trust agreement. After finding various parties jointly and severally liable under CERCLA, the district court entered a consent decree regarding remediation costs and cleanup methods and the parties negotiated a trust agreement memorializing the share of costs each party would bear. After beginning cleanup, changed circumstances led to an amended consent decree and trust fund agreement. The waste handler participated in the formation of the amended agreements and signed the new consent decree but refused to sign the new trust agreement arguing that the changed circumstances altered its share of costs. Language in the amended consent decree obligates the waste handler to sign some trust agreement but does not lock it into any particular allocation or make the amended trust agreement part of the amended decree. Additional language in the amended consent decree stipulates that the members of the original trust agreement are among the members to the consent decree, but it does not specify that the members' agreements among themselves will remain the same. Further, the waste handler's course of dealings with the other settling defendants did not bind it to the original allocation of costs. Moreover, none of the settling defendants relied on the waste handler's assent to its original allocation share when they signed the amended consent decree. The waste handler, however, did agree in the amended consent decree to enter into some trust agreement with the other parties and, therefore, must agree to some system of allocation. United States v. Amoco Chemical Co., No. 99-20586 (5th Cir. May 15, 2000) (4 pp.).

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red bar graphic CERCLA, REGIONAL RAIL REORGANIZATION ACT (RAIL ACT), JURISDICTION:

A district court denied a railroad's motion to dismiss a power company's CERCLA cost-recovery action against it for lack of subject matter jurisdiction. The Rail Act Court, the jurisdiction of which was transferred to the District Court for the District of Columbia, has exclusive jurisdiction to determine whether CERCLA liability is proper for a railroad's preconveyance activities because such a determination requires interpretation of the Rail Act, the conveyance order, and the conveyance documents. However, decisions regarding strictly issues of CERCLA liability and apportionment of liability are outside the Rail Act Court's province. Here, the power company solely seeks to hold the railroad liable under CERCLA §107(a)(1) as a current owner of a contaminated property within the site. Determination of the railroad's liability as a current owner does not involve examination of preconveyance activities of the railroad's predecessors and does not require interpretation of the Rail Act or conveyance documents to ascertain the respective liabilities of the railroad and its predecessors. Moreover, the power company's allegation that the railroad is a current owner is assumed to be true for purposes of a motion to dismiss. In addition, it is premature to grant summary judgment to a steel company on its claim that it is not liable to the power company under CERCLA. Niagara Mohawk Power Corp. v. Consolidated Rail Corp., No. 98-CV-1039 (N.D.N.Y. May 5, 2000) (Hurd, J.) (5 pp.).

red bar graphic CERCLA, COST RECOVERY, CONTRIBUTION:

A district court denied a corporation's motion to reconsider a ruling that disputed issues of material fact exist as to whether the corporation's neighbor can claim an innocent landowner defense so that it can pursue a CERCLA §107(a) cost recovery action against the corporation. In addition, the court denied reconsideration of the ruling that the corporation does not have settlement protection from the neighbor's CERCLA §113(f)(1) contribution claim. The neighbor began demolition of a building on its property, but the demolition released lead, which had come from the corporation's property, into the air. EPA entered an administrative order of consent (AOC) with the neighbor for remediation of the contamination. The neighbor subsequently filed CERCLA §§107(a) and 113(f)(1) claims against the corporation. The corporation argued that the neighbor could not bring a §107(a) claim because it was a PRP that released hazardous materials into the environment and, thus, could not qualify for the innocent landowner defense. The corporation, though, failed to cite a single case wherein a release occurs when a third party unknowingly commits an action that exposes hazardous substances that had been previously released onto the property by a third party. However, there are disputed facts as to whether the neighbor knew or should have known of the contamination. Nevertheless, with regard to the court's order, the neighbor had no reason to believe that its reasonable use of the property would expose hazardous materials that the corporation placed there. Thus, the corporation is not precluded from asserting a cost recovery action via the innocent landowner defense. In addition, an AOC that the corporation signed with EPA does not provide protection from the neighbor's contribution action because the corporation's AOC did not clearly indicate that it provided protection from parties, such as the neighbor, who had already incurred response costs. Advanced Technology Corp. v. Eliskim, Inc., No. 1:96CV755 (N.D. Ohio May 3, 2000) (Aldrich, J.) (5 pp.).

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red bar graphic SDWA, SURFACE WATER TREATMENT RULE (SWTR), WATER TREATMENT PLANT (WTP), FILTRATION, DISINFECTION TREATMENT:

A district court held that the construction of a WTP by the city of New York does not involve alienation of parkland that requires the city to seek the approval of the state legislature. Pursuant to a consent decree with the state and EPA, the city conducted environmental review of potential sites for the WTP and chose a golf course. The plant would be located underground and would require the destruction and reconstruction of the driving range and the temporary disruption of public use of the parkland. However, the golf course, the driving range, and all structures will be restored or rebuilt, and the area available for public use for recreational purposes after the project is completed will remain undiminished. Changes in the existing grade in some areas of the golf course to accommodate the plant are immaterial because no authority requires a municipality to seek state legislative approval to make changes to the gradient of parkland. Additionally, there is nothing that prohibits underground use of parkland for non-recreational purposes related to a municipality's need to deliver essential services to its residents without legislative approval where that use will not interfere with the recreational use of the surface. Further, state legislative approval is not necessary for the temporary disruption of parkland required by the construction of the WTP. Because the land will remain in the city's ownership, possession, and control during and after the construction, there will be no transfer of an interest in land to another entity. Moreover, an amendment of the city zoning resolution is not required for construction and operation of the WTP at the golf course. Finally, the city fully complied with state environmental laws in conducting its environmental review. United States v. City of New York, Nos. 97 CV 2154 NG SMG et al. (E.D.N.Y. May 12, 2000) (Gershon, J.) (15 pp.).

red bar graphic SDWA, SURFACE WATER TREATMENT RULE (SWTR), FILTRATION:

A district court denied EPA's motion that the Massachusetts Water Resources Authority (MWRA) and the Metropolitan District Commission (MDC) be forced to provide filtration for the water they supply to the metropolitan Boston area based on violations of the SDWA and EPA's SWTR. Pursuant to state enforcement of the SDWA, the state Department of Environmental Protection (DEP) ordered the MWRA to provide filtration and disinfection treatment for the water supply. As part of an administrative consent order, the MWRA and the MDC were to implement a watershed protection plan as part of a larger effort to bring the system into compliance with the filtration avoidance criteria in the SWTR. MWRA sought to achieve the avoidance criteria through treating the water with ozone, and a determination was to be made by DEP at a later date as to whether filtration was still necessary in light of the ozone treatment. DEP ultimately decided that the MWRA's water system met the avoidance criteria of the SWTR, but EPA brought this enforcement action for failure to meet the criteria. The MWRA was not in compliance with the fecal avoidance criterion of the SWTR in January 1999, however, public policy does not support requiring filtration for a single instance of noncompliance. The ozone treatment option proposed by the MWRA will adequately address bacterial threats to the water system, inactivate any known emerging pathogens, reduce levels of disinfection by-products and increase levels of biodegradable organic matter in the distribution system, and improve the aesthetic quality of the finished water. Additionally, any risk to public health entailed by the ozone only treatment option is within acceptable levels. Moreover, the design of the facility will permit the prompt installation of filtration should it become necessary. United States v. Massachusetts Water Resources Authority, No. 98CV10267 (D. Mass. May 5, 2000) (Stearns, J.) (41 pp.).

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red bar graphic CAA, HEAVY DUTY DIESEL ENGINE (HDDE), PREEMPTION:

 A New York appellate court held that the CAA's express preemption provision precludes the state attorney general from suing HDDE manufacturers for including defeat devices in HDDEs that allowed the manufacturers to circumvent federal CAA emissions standards. Therefore, a trial court properly quashed the subpoenas duces tecum that the attorney general served on the manufacturers. As evidenced from the CAA's legislative history, Congress intended CAA §209 to have broad effect and to preempt state laws applicable to the control of emissions from new motor vehicles. Thus, the attorney general's claims are preempted because they concern the manufacturers' manufacture, distribution, and design of HDDE engines that would circumvent federal emissions standards. Further, it is clear the attorney general's claims concerning "in-use emissions" target the manufacturers' practice of producing diesel engines designed to skirt federal emissions standards. Moreover, in light of the CAA's broad preemption provision, states are barred from providing their own regulatory or judicial remedies for conduct prohibited or arguably prohibited by federal law. In addition, the attorney general's common-law claims are preempted because in pursuing the common-law claims the attorney general is improperly attempting to punish the manufacturers for violating federal emissions standards. Detroit Diesel Corp. v. Attorney General of the State of New York, No. 1652N (N.Y. App. Div. May 2, 2000) (15 pp.).

red bar graphic TOXIC TORTS, STATUTE OF LIMITATIONS, ASBESTOS EXPOSURE, JURISDICTION:

The California Supreme Court reversed an appellate court decision that held that an individual's action against an asbestos corporation for damages caused by peritoneal cancer was untimely and that the trial court lacked personal jurisdiction over the individual's separate claim against the corporation for damages caused by asbestosis. Under the state statute of limitations for asbestos related claims, an action for injury or illness from asbestos exposure must be filed within one year after the date the plaintiff first suffered disability and either knew or should have known that the disability was caused or contributed to by that exposure. Disability means the loss of time from work as a result of exposure that precludes the performances of the employee's regular occupation. In the case at bar, there was no doubt that the individual's illness was caused by exposure to asbestos. However, because the individual retired from his regular occupation for reasons unrelated to his earlier asbestos exposure, there was no loss of time from work as a result of asbestos exposure that precluded his regular occupation. Therefore, the individual never suffered a disability, and according to state case law, the one-year statute of limitations had yet to run when the individual filed his claim for damages. Thus, the individual's claim was timely. In addition, the trial court had personal jurisdiction over the corporation for the asbestosis claim even though the individual had not served the corporation in that action. A general appearance is equivalent to personal service of summons on a party. Here, the individual's two claims were consolidated, and the corporation fully participated in the consolidated action without objection. It thereby made a general appearance. Hamilton v. Asbestos Corp., No. S069596 (Cal. May 15, 2000) (35 pp.).  

red bar graphic TOXIC RELEASE INVENTORY (TRI), CALIFORNIA PROPOSITION 65, TOXIC CHEMICALS, REPRODUCTIVE TOXICITY:

A California appellate court affirmed a trial court denial of a writ of mandate that would have prohibited the governor of California from publishing Proposition 65, a list of chemicals known to the state to cause reproductive toxicity. Under the regulations implementing the list of chemicals, a committee was designated to identify specific chemicals known to cause reproductive toxicity. The state environmental health agency would determine whether an authoritative body formally identified chemicals causing reproductive toxicity. EPA was designated as such an authoritative body. After EPA identified 66 agricultural chemicals that caused reproductive toxicity for its TRI, the environmental health agency announced its intent to list the EPA-identified chemicals in California. An organization representing agricultural businesses sought to prohibit the listing based on the argument that the environmental health agency had usurped the identification committee's functions. The organization argued that EPA lists chemicals known to cause and reasonably anticipated to cause reproductive toxicity, whereas California requires that chemicals be known to cause reproductive toxicity. However, the broad federal standard does not prohibit the environmental agency from listing an EPA-identified chemical on the state list. EPA's "known to cause" standard is the same as the state standard, but EPA's "reasonably anticipated to cause" standard is ambiguous. Nevertheless, the ambiguity of that standard does not render the proposed state list of chemicals improper. Under the regulations, the state environmental health agency has the authority to examine the administrative record of the EPA TRI listing procedure to determine if there is substantial evidence that EPA placed a chemical on the TRI because it meets the state's criteria of causing reproductive toxicity. Moreover, the organization failed to supply evidence compelling a finding that EPA reviewers did not use their own TRI studies in listing the chemicals. Therefore, the organization has failed to meet its burden of showing that the disputed chemical list is inconsistent with state statute because it usurped the identification committee's function. Western Crop Protection Ass'n v. Davis, No. C029727 (Cal. Ct. App. May 9, 2000) (24 pp.).

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red bar graphic CALIFORNIA REVENUE AND TAXATION CODE, CONTAMINATED LAND ASSESSMENT, CONTRIBUTION:

A California appellate court held that for tax assessment purposes, the value of contaminated land is the land's fair market value minus the cleanup costs, and such a valuation does not include what the landowner may be able to recover from others by way of contribution for cleanup costs imposed by environmental law. A development company purchased a contaminated parcel of land, and two CERCLA PRPs agreed to contribute $12.5 million of the $16.7 million in response costs necessary to treat contaminated groundwater. Subsequently, a tax assessment appeals board determined the taxable value of the land was the fair market value of the land if unpolluted. It then deducted the cost of cleanup from fair market value, but also added back in the expected contributions from the two PRPs. Under California Revenue and Taxation Code §110, "fair market value" means the amount of cash or its equivalent that property would bring if exposed for sale in the open market under conditions in which neither buyer nor seller could take advantage of the exigencies of the other. Further, California Revenue and Taxation Code §51(a)(2) provides that "full cash value" as defined in California Revenue and Taxation Code §110 must take into account reductions in value due to damages. However, after making a deduction for the present value of cleanup costs, estimated contributions should not be added back into the assessed valuation. The circumstances of the seller, including its ability to recoup cleanup costs through contribution, is irrelevant to the hypothetical buyer. Further, according to state case law, property tax assessment is based on a hypothetical market transaction with a hypothetical buyer, and such an assessment does not take into account the landowner's peculiar benefits or predicaments unrelated to the market. Mola Development Corp. v. Orange County Assessment Appeals Board No. 2, No. G022200 (Cal. Ct. App. Apr. 27, 2000) (23 pp.).

red bar graphic EVIDENCE, ADMISSIBILITY OF EXPERT TESTIMONY:

The Arizona Supreme Court rejected the use of Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 23 ELR 20979 (1993), to determine the admissibility of expert testimony regarding the repressed memory of the victim of an alleged sexual assault. Daubert and its progeny, General Electric Co. v. Joiner, 522 U.S. 136, 28 ELR 20277 (1997), and Kumho Tire Co., Ltd v. Carmichael, 118 S. Ct. 1167, 29 ELR 20638 (1999), put the judge in the position of passing on the weight or credibility of an expert's testimony, something which crosses the line between the legal task of ruling on the foundation and relevance of evidence and the jury's function of whom to believe and why, whose testimony to accept, and on what basis. Instead, when reviewing expert testimony under the Arizona equivalent of Fed. R. Evid. 702, Arizona will retain and apply the rule in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), which requires expert testimony to have gained general acceptance in the particular field in which it belongs. However, in this case, Frye does not apply to the expert's testimony about the victim's repressed memory. Frye is inapplicable when a qualified witness offers relevant testimony or conclusions based on experience and observation about human behavior for the purpose of explaining behavior. The expert at issue is an experienced, well-recognized clinician who is being asked to testify to his experience and observation in caring for patients who report repressed memory of sexual abuse. Therefore, he can testify to his own experience, his observations, his own research and that of others with which he his familiar, and the care of his patients. Logerquist v. McVey, No. CV-98-0587-PR (Ariz. Apr. 19, 2000) (67 pp.).

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

THE FEDERAL AGENCIES

Note: Citations below are to the Federal Register.

red bar graphic AIR:

  • EPA announced that it will be holding the Seventh Conference on Air Quality Modeling as required by CAA §320. 65 FR 31858 (5/19/00).

  • EPA proposed to determine that the Phoenix, Ariz., metropolitan serious ozone nonattainment area has attained the one-hour ozone air quality standard deadline. 65 FR 31859 (5/19/00).

red bar graphic  HAZARDOUS AND SOLID WASTES:

  • EPA granted a petition submitted by the General Motors Corporation Lansing Car Assembly Body Plan in Lansing, Mich., to exclude certain solid wastes generated by its wastewater treatment plant from the lists of hazardous wastes contained in subpart D of 40 C.F.R. part 261. 65 FR 31096 (5/16/00).
  • EPA entered into a proposed administrative settlement under CERCLA §122(i) in connection with the North Penn Area 1 Superfund site in Montgomery County, Penn. 65 FR 31315 (5/17/00). 
  • EPA entered into a proposed administrative settlement under CERCLA §122(i) in connection with the Tri-County/Elgin Landfill site in Kane County, Ill. 65 FR 31315 (5/17/00). 
  • EPA announced that it entered into a proposed prospective purchaser agreement in connection with the South Bay Asbestos Superfund site. 65 FR 31911 (5/19/00).

red bar graphic  NATURAL RESOURCES:

  • The National Marine Fisheries Service is closing an area along eastern North Carolina and Virginia to fishing with large-mesh gillnets with a stretched mesh size of 6 inches or greater for a 30-day period because of its determination that gillnet fishing with large-mesh gillnets is the most likely cause of significant increases in the stranding of sea turtles listed as threatened or endangered in this area. 65 FR 31500 (5/18/00).
  • NOAA proposed to expand the boundary of the Florida Keys National Marine Sanctuary in the westernmost party of the Sanctuary by 96 square nautical miles and to establish a 151 square nautical miles no-take ecological reserve in this area and in 55 square nautical miles of the existing sanctuary to protect important coral reef resources. 65 FR 31633 (5/18/00).

red bar graphic  PESTICIDES:

  • EPA announced the availability of a pesticide registration notice entitled Guidance for Mandatory and Advisory Labeling Statements. 65 FR 31313 (5/17/00).

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red bar graphic  WATER QUALITY:

  • EPA issued its second round of revisions to streamline the NPDES regulations. 65 FR 30886 (5/15/00). 
  • EPA proposed to provide site-specific regulatory flexibility under the CWA as part of an XL Project with International Paper's Androscoggin Mill pulp and paper manufacturing facility in Jay, Me. 65 FR 31120 (5/16/00). 
  • EPA designated an existing dredged material disposal site located in the Gulf of Mexico at the mouth of Atchafalaya Bay for the continued disposal of dredged material removed from the bar channel of the Atchafalaya River and Bayous Chene, Boeuf, and Black, La. 65 FR 31492 (5/18/00). 
  • EPA established numeric criteria for priority toxic pollutants for California. 65 FR 31681 (5/18/00). 

red bar graphic  DOJ NOTICES OF SETTLEMENT:

  • U.S. v. Cytec Industries, Inc., No. 00-CV-2248 (E.D. Pa. May 2, 2000) (CERCLA defendants must perform all operable unit 1 activities as defined in the consent decree for the Boarhead Farms Superfund site in Bridgeton Township, Pa., and must pay all future response costs relating to operable unit 1 activities at the site), 65 FR 31602 (5/18/00);
  • U.S. v. Williams, No. 2:00CV296 (E.D. Va. Apr. 21, 2000) (a CWA defendant that unlawfully discharged dredged and fill materials into U.S. waters at a 40-acres site in the city of Chesapeake, Va., must perform a restoration project at the site), 65 FR 31603 (5/18/00).

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 

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red bar graphic  ALASKA

Dept. of Envtl. Conservation

Cruise Ship Regulation

Proposed Regulations-Drinking Water, Wastewater Treatment

Prince William Sound Tanker Oil Discharge Prevention/Contingency Plan

red bar graphic ARKANSAS

Dept. of Envtl. Quality

Proposed Revisions-Air Regulations

red bar graphic ARIZONA

Dept. of Envtl. Quality

Proposed Program Delegations

Draft Regulations-UST State Assurance Fund

Proposed Regulations

Superfund Program-Proposed Registry Inclusions, Prospective Purchaser Agreements

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red bar graphic CALIFORNIA

Air Resources Board

Final Regulations

Proposed Regulations

Airborne Toxic Control Measure for Asbestos

  • Draft revisions to the Asbestos ATCM would prohibit the use of serpentine and asbestos-containing ultramafic aggregate for unpaved surface applications. Public meeting May 23. Details at http://www.arb.ca.gov.toxics.asbestos.htm

Revised On-Road Motor Vehicle Emissions Inventory

Conditional Rice Straw Burning Permit Program

Innovative Clean Air Technologies Program

Water Resources Control Board

Final Policy-Toxics Standards for Inland Surface Waters, Enclosed Bays, and Estuaries

Carmel River Water Supply

Saltwater Intrusion-Salinas & Pajaro Valleys

Dept. of Toxic Substances Control

Draft Pollution Prevention Report and SB 1916 2-Year Workplan

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 Rule-Alternative Fueled Street Sweepers

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red bar graphic COLORADO

Water Quality Control Commission

Proposed Regulations

red bar graphic  CONNECTICUT

Dept. of Envtl. Protection

Proposed Aquifer Protection Land Use Regulations

red bar graphic  FLORIDA

Dept. of Envtl. Protection

Proposed Rule-Groundwater Permitting

  • Proposed revisions to Chapter 62-522 intended to ensure consistency with recently promulgated provisions in Chapter 62-610 (Reuse of Reclaimed Water and Land Application). Rule development workshop not currently scheduled. 

Proposed Rule-Onsite Sewage Treatment and Disposal Systems

  • Recent revisions to Chapter 64E-6 include procedures for the voluntary inspection of existing onsite sewage treatment and disposal systems. The proposed rule amendments will allow persons performing such inspections to provide only those specific assessments deemed necessary by the person requesting the assessment. 

Southwest Florida Water Management District

Proposed Regulation

  • Concerns adoption by reference of Fla. Rule 40E-4.091, regarding side slope requirements for water retention/detention and stormwater attenuation areas.

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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red bar graphic GEORGIA

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

NPDES Permit Applications

red bar graphic IDAHO

Division of Envtl. Quality

Permit Applications

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red bar graphic ILLINOIS

Envtl. Protection Agency

Strategic Planning Process

Permit Applications

red bar graphic INDIANA

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

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red bar graphic KANSAS

KDHE Division of Environment

Water Quality-305(b) Report

TMDL Development

red bar graphic  LOUISIANA

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 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 facilities 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

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red bar graphic MARYLAND

Dept. of the Environment

Public Meetings/Hearings

red bar graphic MASSACHUSETTS

Dept. of Envtl. Protection

Proposed Regulations-NOx Trading

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

Enforcement Actions

red bar graphic  MICHIGAN

Dept. of Envtl. Quality

Clean Corporate Citizen Designations

Draft CWA §303(a) Report

Management Team Public Meetings

Final Regulations-Air

Final Regulations-Wetlands Permitting

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, Inc., 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

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red bar graphic MINNESOTA

Pollution Control Agency

Permit Applications, Other Notices

  • 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 Grove City, wastewater treatment facility. Comment period ends June 8.
  • For reissued NPDES and SDS permit for City of Vernon, wastewater treatment facility. Comment period ends June 6.
  • For reissued NPDES and SDS permit for City of Wyoming, wastewater treatment facility. Comment period ends June 6. 
  • For reissued NPDES and SDS permit for Department of Veterans Affairs Medical Center, Minneapolis. Comment period ends June 5. 
  • For reissued NPDES and SDS permit for 3M Environmental Technologies and Services, Schumacher Drum Storage Site, West Point. Comment period ends June 6.
  • For reissued NPDES and SDS permit for THS Northstar Associates, Minneapolis. Comment period ends June 6.
  • For an air permit for Blandin Paper Co. and Minnesota Power, LLP, Grand Rapids. Comment period ends June 2. 
  • Revised Guidance Documents for UST and above ground storage tank release cleanup available.
  • Updated Air Toxics Emission Inventory. 

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

red bar graphic  MISSOURI

Dept. of Natural Resources

Water Pollution Control-Permit Applications

red bar graphic MONTANA

Dept. of Envtl. Quality

TMDLs-§303(d) Impaired Waterbodies List

  • A total of 17 meetings were held 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

red bar graphic NEBRASKA

Dept. of Envtl. Quality

Proposed Regulations-Water Quality

Waste Reduction/Recycling Incentive Grants Program

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red bar graphic NEW JERSEY

Dept. of Envtl. Protection

Current DEP Bulletin (Permit Applications; Proposed Regulations)

Greenhouse Gas Emissions

red bar graphic NEW YORK

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. 

red bar graphic  NORTH CAROLINA

Dept. of Envt. and Natural Resources

Division of Air Quality Penalty Assessments

DENR Enforcement Data

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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red bar graphic OKLAHOMA

Dept. of Envtl. Quality

Proposed Regulations-Air

  • Air Quality Council will consider amendments to OAC 252:100-7, Permits for Minor Facilities; OAC 252:100-8, Permits for Part 70 Sources; and OAC 252:100-29, Control of Fugitive Dust, at their June 14 meeting. See http://www.deq.state.ok.us/calendar/index.html

Draft Source Water Assessment and Protection Program Document

red bar graphic OREGON

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

red bar graphic PENNSYLVANIA

Dept. of Envtl. Protection

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). 

Draft Technical Guidance Documents

red bar graphic SOUTH CAROLINA

Dept. of Health and Envtl. Control

Permit Application Notices

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red bar graphic  TENNESSEE

Dept. of Environment and Conservation

Permit Applications

red bar graphic  TEXAS

Natural Resource Conservation Commission

Final Regulations

Proposed Regulations

Permit Hearings

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red bar graphic  VIRGINIA

Dept. of Envtl. Quality

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

red bar graphic  WASHINGTON

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

red bar graphic WEST VIRGINIA

Dept. of Envtl. Protection

Public Notice Bulletin (Permit Applications, Proposed Regulations)

red bar graphic WISCONSIN

Dept. of Natural Resources

Public Hearing and Meeting Schedule