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Weekly Update Volume 30, Issue 28

10/02/2000

LITIGATION
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red bar graphic  NATIVE AMERICANS, TRIBAL LANDS:

The Second Circuit reversed a district court decision and held that land bought by the Mashantucket Peqot Tribe of Connecticut that falls outside an area of land defined by a settlement agreement entered into by the tribe, the state, and the federal government, may be held in trust by the DOI. In 1983 Congress passed the Connecticut Indian Land Claims Settlement Act, which, among other things, identified boundaries within which land purchased by the tribe would be held in trust by the DOI. A decade later, the tribe asked the DOI to take into trust, pursuant to the Indian Reorganization Act, land presently owned by the tribe that falls outside the settlement land and was purchased without the use of settlement funds. The district court held that Settlement Act §(b)(8), which states that lands outside the settlement lands shall be held in fee by the tribe, prohibits the DOI from taking non-settlement lands purchased with non-settlement funds into trust for the benefit of the tribe. However, Settlement Act §(b)(8) prohibits only the taking into trust of non-settlement lands that were purchased with settlement funds. The language and structure of the Act supports this interpretation. The statute is silent with regard to lands not purchaseed with settlement funds, thus, the Settlement Act does not apply to such lands. Additionally, the purpose of the Settlement Act and the unique canon of construction governing statutory provisions involving Native Americans support this interpretation. Connecticut v. United States Department of the Interior, No. 99-6042 (2d Cir. Sept. 25, 2000) (13 pp.).

red bar graphic  SOVEREIGN IMMUNITY, FED. R. CIV. P. 60(b)(4), ATTORNEYS FEES:

The Eight Circuit affirmed a district court order denying sovereign immunity to South Dakota and awarding attorneys fees to a multistate solid waste disposal  facility corporation. The public's opposition to the construction of the facility prompted two ballot initiatives, the second of which ended the corporation's plan to build the facility. The corporation sued and ultimately prevailed in federal court alleging violations of the dormant Commerce Clause. The state sought to set aside the district court judgment on the ground that it was entered in violation of the Eleventh Amendment. However, the state did not seek review of the district court decisions awarding relief to the corporation and, therefore, cannot now collaterally attack the final decisions by way of a Rule 60(b) motion. Additionally, the state has waived its sovereign immunity under the Eleventh Amendment through its vigorous litigation of the corporation's claims in federal court. Further, the district court properly awarded the corporation attorneys fees. Finally, the court refused to issue a mandate ordering a South Dakota state court to revise its ruling granting the state a new trial on the basis of an instructional error. SDDS, Inc v. South Dakota, Nos. 98-3588 et al. (8th Cir. Sept. 15, 2000) (4 pp.).

red bar graphic  SDWA, DRINKING WATER REGULATIONS, "OWNER OR OPERATOR":

A district court granted EPA's motion for partial summary judgment regarding its claims against the owners and operators of public water systems for violating the national primary drinking water regulations for microbial contaminants, lead, and copper. EPA has standing to bring the suit because the state department of health formally requested that EPA file a civil and/or criminal suit against the water systems operators for violating the SDWA. Additionally, documents seized at the lab that tested water samples from the systems were properly authenticated and admitted into evidence. Further, there was sufficient evidence to show that the samples relied on by EPA were routine and not special, and that the operators did not have a written plan ensuring that representative samples would be taken throughout the system. Moreover, it was clear that the individual owners of the water systems could be held liable as owners or operators under the SDWA. United States v. Alisal Water Corp., No. C-97-20099-JF (EAI) (N.D. Cal. Sept. 15, 2000) (Fogel, J.) (12 pp.).

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red bar graphic  CAA, REPORTING REQUIREMENTS, STANDING:

A district court held that individuals lacked standing to bring a citizen suit against a petroleum refinery for failing to report certain CAA emissions violations from its catalyst regenerator, but that they could maintain a suit based on the refinery's failure to report emissions from its clause sulfur recovery unit. With regard to their claim alleging failure to report emissions violations for the catalyst regenerator, the individuals lack standing because the refinery corrected its past excess emissions report before the individuals filed suit. The individuals could not prove that a violation was ongoing or imminent based on the refinery's history of past violations and corrections and, therefore, could not meet the redressability requirement for standing. Additionally, because the suit began over a year ago, the court declined to delay its ruling until more discovery was conducted. The individuals, however, could maintain their claim based on reporting violations for the refinery's clause sulfur recovery unit. A prior consent decree between the refinery and EPA does not cover the violation alleged by the individuals and, thus, does not prevent the individuals from having standing to sue. Berry v. Farmland Industries, Inc., No. 99-2337-JWL (D. Kan. Sept. 8, 2000) (Lungstrum, J.) (8 pp.).

red bar graphic  GROUNDWATER CONTAMINATION, WATER QUALITY STANDARDS, REMEDIATION:

A New Jersey appellate court reversed the state environmental department's disapproval of a groundwater contamination remediation plan submitted by an electric panel manufacturer. The state agency required the electrical panel manufacturer to use state groundwater quality standards (GWQS) and technical rules as minimum remediation standards under New Jersey environmental law S. 1070. However, the GWQS were adopted before enactment of S. 1070, and there is nothing in S. 1070 to support the inference that the GWQS were intended to satisfy the minimum remediation standards in all instances. Similarly, the technical rules were proposed as rules to provide procedures for a remediating party to describe possible risks and injuries to the environment, not to quantify what amounts of which contaminants would require remediation. Because the state agency failed to provide clear and concise notice that the GWQS and technical rules were to be the applicable standards for groundwater remediation under S. 1070, it violated the APA. Such notice was particularly important here because the standards had not been the remediation standards under previous forms of environmental laws that were replaced by S. 1070. Because it failed to promulgate uniform standards in compliance with the APA, the state agency must deal with the electrical panel manufacturer's remediation plan on a case-by-case basis. Federal Pacific Electric Co. v. New Jersey Department of Environmental Protection, No. A-518-98T2 (N.J. Super. Ct. App. Div. Sept. 22, 2000) (14 pp.) (Plaintiffs' counsel included Dennis J. Krumholz of Riker, Danzig, Scherer, Hyland & Perretti LLP in Morristown NJ).

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red bar graphic  WATER ALLOTMENT, LONG-TERM CONTRACTS, CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA):

A California appellate court held that a contracting party to a water allocation agreement between the state department of water resources and 29 local water contractors should not have been the lead agency for conducting an environmental impact report (EIR) under the CEQA and that the EIR was defective. After the parties entered long-term contracts governing the supply of water under a state water project, the state agency and six parties to the contract renegotiated article 18 of the contract dealing with allocation of resources during water shortages. They agreed to let one of the parties to the contract, but not the state agency, serve as the lead agency in conducting an EIR under the CEQA. However, the lead agency for the purpose of preparing the EIR should be the agency that has the principal responsibility for carrying out or approving a project. Here, the state agency, not the contracting party, has the principal responsibility for carrying out or approving the implementation of the negotiated agreement to the original contract. Neither the language of the statute nor the facts of the case support the notion of a shared principal responsibility. Further, the state agency contracted with 29 regional water suppliers, therefore, the 6 parties present at the negotiation were not at liberty to anoint a contracting party to act in place of the state agency. Additionally, the draft EIR was defective because it failed to discuss the implementation of article 18(b), which deals with long-term water shortages as a "no project" alternative. That the terms of article 18(b) will most likely never be applied is irrelevant; as long as it can be plausibly construed in a manner that would result in significant environmental consequences, it should be discussed in the EIR. Moreover, the final EIR's brief discussion of article 18(b) as an infeasible alternative failed to satisfy the CEQA. Finally, the trial court erroneously dismissed the challenge to the state agency's transfer of title to a storage facility and execution of amended contracts for failure to name and serve indispensable parties. Planning & Conservation League v. Department of Water Resources, No. C024576 (Cal. Ct. App. Sept. 15, 2000) (53 pp.) (Plaintiffs' counsel included Antonio Rossman and Roger B. Moore of in San Francisco CA.).

red bar graphic  CAA, TENNESSEE VALLEY AUTHORITY (TVA), PRECONSTRUCTION PERMITS:

The EPA Environmental Appeals Board sustained in part and vacated in part an administrative compliance order EPA issued to the TVA for modifying its coal-fired plants without obtaining new source review (NSR) preconstruction permits as required by the CAA. The changes made by TVA to its plants constitute "physical changes" under the CAA. The changes did not fall within the routine maintenance, repair, and replacement exception under the NSR permitting programs. However, EPA failed to show that the physical changes resulted in "significant net emissions increases" for a number of pollutants under the applicable NSR permitting programs. EPA calculated the baseline emissions level based on the annual average emissions in the two years immediately preceding the physical change, as opposed to the two-year period within the five-year period preceding the change in which emissions were highest. Moreover, instead of using a stringent actual-to-potential test to determine whether NSR violations occurred due to the modifications, EPA should have compared actual premodification emissions with projected actual emissions after the modification. Nevertheless, the compliance order was sustained with respect to 20 other violations of the state and federal preconstruction permitting programs. Therefore, TVA must submit schedules for it to come into compliance with the CAA with respect to the sustained violations and must obtain NSR permits for the units and pollutants for which EPA established violations. In re Tennessee Valley Authority, CAA Docket No. 00-6 (EPA EAB Sept. 15, 2000) (187 pp.).

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

THE FEDERAL AGENCIES
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Note: Citations below are to the Federal Register.

red bar graphic  AIR:

  • EPA announced that it is interested in additional new scientific information on the effects of ground-level ozone on health and vegetation in connection with its effort to update and revise, where appropriate, the air quality criteria for ozone and related photochemical oxidants. 65 FR 57810 (9/26/00). 

red bar graphic  ENFORCEMENT: 

  • EPA announced that its preliminary national enforcement and compliance assurance priorities for fiscal years 2002 and 2003 are available for comment. 65 FR 58273 (9/28/00). 

red bar graphic  HAZARDOUS WASTES AND SOLIDS:

  • EPA finalized the policy change proposed on August 4, 2000 (63 Fed. Reg. 47988), that will allow all sites that are on or have been deleted from the CERCLA NPL to be eligible for inclusion to the construction completion list when all physical construction under all authorities is complete and all other applicable construction completion policy criteria have been satisfied. 65 FR 57810 (9/26/00).  
  • EPA announced the availability of the initial sections of the Results-Based Approaches to Corrective Action draft guidance document. 65 FR 58275 (9/28/00).
  • EPA approved revisions to Pennsylvania's hazardous waste management program under RCRA. 65 FR 57734 (9/26/00). 
  • EPA proposed to grant a petition to exclude, on a one-time basis, certain solid wastes that are interred at an on-site landfill at the American Metals Corporation's Westlake, Ohio, facility from the list of hazardous wastes under RCRA. 65 FR 58015 (9/27/00).
  • EPA proposed to enter into a settlement under CERCLA §122(h)(1) in connection with the Interstate Lead Company site in Leeds, Ala. 65 FR 56577 (9/19/00). 

red bar graphic  PESTICIDES:

  • EPA announced that it forwarded to the Secretary of Agriculture a draft final rule on groundwater pesticide management that, among other things, establishes a program whereby states and tribes will develop and implement plans to manage the use of pesticides determined to leach to groundwater. 65 FR 57585 (9/25/00). 

red bar graphic  SMCRA PROGRAM APPROVALS: 

red bar graphic  WATER QUALITY:

  • EPA proposed a Class II administrative penalty under CWA §311(b)(6) of $3,603 against NEXTLINK Communications, Inc., for failing to prepare spill prevention control and countermeasure plans for 11 facilities where they stored diesel oil in above ground tanks. 65 FR 57605 (9/25/00). 

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red bar graphic  DOJ NOTICES OF SETTLEMENTS:

  • U.S. v. Midwest Farmers Cooperative, No. C00-4098 (N.D. Iowa Sept. 11, 2000) (a CERCLA defendant must pay $165,000 in past U.S. response costs incurred at the Farmers Mutual Cooperative Superfund site in Hospers, Iowa, and must pay an additional $50,380.55 in interest), 65 FR 57828 (9/26/00);
  • U.S. v. Synergy Development, Inc., No. 1:00cv416 (S.D. Miss. Aug. 31, 2000) (a CWA defendant that discharged without authorization dredged or fill material into U.S. waters in connection with the construction of a detention pond in Biloxi, Miss., must pay a $75,000 civil penalty), 65 FR 57828 (9/26/00). 

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

THE CONGRESS
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red bar graphic  CHAMBER ACTION

  • S. 1752 (Coastal Barriers Resources Act), which would reauthorize and amend the Coastal Barrier Resources Act, was passed by the Senate. 146 CONG. REC. S9397 (daily ed. Sept. 27, 2000).
  • S. 2522 (Kenai Mountains/Turnagain Arm National Heritage Area), which would establish the Kenai Mountains-Turnagain Arm National Heritage Area in Alaska, was passed by the Senate. 146 CONG. REC. S9088 (daily ed. Sept. 22, 2000).
  • S. 2796 (water resources), which would provide for the conservation and development of water and related resources, was passed by the Senate. 146 CONG. REC. S9142 (daily ed. Sept. 25, 2000). The bill would also authorize the Secretary of the Army to construct various projects for improvements to rivers and harbors of the United States.
  • Treaty Doc. 105-48 (sea turtles), the Inter-American Convention on Sea Turtles, was ratified by the Senate. 146 CONG. REC. S8867 (daily ed. Sept. 20, 2000).
  • H.R. 999 (CWA, oceans), which would amend the CWA to improve the quality of coastal recreation waters, was passed by the Senate. 146 CONG. REC. S8988 (daily ed. Sept. 21, 2000). 
  • H.R. 2267 (national trails), which would amend the National Trails System Act to clarify federal authority relating to land acquisition from willing sellers for the majority of the trails, was passed by the House. 146 CONG. REC. H8140 (daily ed. Sept. 26, 2000).
  • H.R. 2647 (water rights), which would amend the Act entitled "an Act relating to the water rights of the Ak-Chin Indian Community'' to clarify certain provisions concerning the leasing of such water rights, was passed by the Senate clearing the measure for the President. 146 CONG. REC. S9397 (daily ed. Sept. 27, 2000).
  • H.R. 2752 (land exchange), which would give Lincoln County, Nevada, the right to purchase at fair market value certain public land located within that county, was passed by the House. 146 CONG. REC. H8141 (daily ed. Sept. 26, 2000). 
  • H.R. 3745 (Effigy Mounds National Monument), which would authorize the addition of certain parcels to the Effigy Mounds National Monument, Iowa, was passed by the Senate. 146 CONG. REC. H8136 (daily ed. Sept. 26, 2000). 
  • H.R. 3986 (hydroelectric power; Prosser Diversion Dam), which would provide for a study of the engineering feasibility of a water exchange in lieu of electrification of the Chandler Pumping Plant at Prosser Diversion Dam, Washington, was passed by the House. 146 CONG. REC. H7885 (daily ed. Sept. 20, 2000).
  • H.R. 4613 (historic preservation), which would amend the National Historic Preservation Act to establish a national historic lighthouse preservation program, was passed by the House. 146 CONG. REC. H8137 (daily ed. Sept. 26, 2000).
  • H.R. 4835 (land exchange), which would authorize the exchange of land between the Secretary of the Interior and the Director of Central Intelligence at the George Washington Memorial Parkway in McLean, Virginia, was passed by the House. 146 CONG. REC. H8153 (daily ed. Sept. 26, 2000). 

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red bar graphic  COMMITTEE ACTION

  • S. 426 (land exchange) was reported by the House Committee on Resources. H. Rep. No. 899, 146 CONG. REC. H8199 (daily ed. Sept. 26, 2000). The bill would amend the Alaska Native Claims Settlement Act to provide for a land exchange between the Secretary of Agriculture and the Huna Totem Corporation.
  • S. 1030 (land exchange) was reported by the House Committee on Resources. H. Rep. No. 898, 146 CONG. REC. H8199 (daily ed. Sept. 26, 2000). The bill would provide that the conveyance by the BLM of the surface estate to certain land in Wyoming in exchange for certain private land will not result in the removal of the land from operation of the mining laws.
  • S. 1778 (land exchange) was reported by the House Committee on Resources. H. REP. NO. 871, 146 CONG. REC. H7931 (daily ed. Sept. 20, 2000). The bill would provide for equal exchanges of land around the Cascade Reservoir.
  • S. 2950 (Sand Creek Massacre Historic Site) was reported by the Senate Committee on Energy and Natural Resources. S. Rep. No. 418, 146 CONG. REC. S9195 (daily ed. Sept. 25, 2000). The bill would authorize the Secretary of the Interior to establish the Sand Creek Massacre Historic Site in Colorado. 
  • H.R. 3067 (water resources) was reported by the House Committee on Resources. H. REP. NO. 870, 146 CONG. REC. H7931 (daily ed. Sept. 20, 2000). The bill would authorize the Secretary of the Interior to convey certain facilities to the Nampa and Meridian Irrigation District. 

red bar graphic  BILLS INTRODUCED

  • S. 3078 (Domenici, R-N.M.) (water resources) would amend the Reclamation Wastewater and Groundwater Study and Facilities Act to authorize the Secretary of the Interior to participate in the Santa Fe Regional Water Management and River Restoration Project. 146 CONG. REC. S8823 (Sept. 20, 2000). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 3090 (Allard, R-Colo.) (Rocky Flats National Wildlife Refuge) would establish the Rocky Flats National Wildlife Refuge in Colorado. 146 CONG. REC. S8941 (daily ed. Sept. 21, 2000). The bill was referred to the Committee on Armed Services. A companion bill, H.R. 5264, was introduced in the House this period.
  • S. 3092 (Conrad, D-N.D.) (electricity) would provide incentives for improved and efficient use of energy sources. 146 CONG. REC. S8941 (daily ed. Sept. 21, 2000). The bill was referred to the Committee on Finance.
  • S. 3093 (Boxer, D-Cal.) (energy pricing) would require FERC to roll back the wholesale price of electric energy sold in the Western System Coordinating Council. 146 CONG. REC. S8941 (daily ed. Sept. 21, 2000). The bill was referred to the Committee on Energy and Natural Resources. A companion bill, H.R. 5131, was introduced in the House this period.
  • S. 3108 (Dorgan, D-N.D.) (FIFRA) would amend FIFRA to permit a state to register a Canadian pesticide for distribution and use within that state. 146 CONG. REC. S9267 (daily ed. Sept. 26, 2000). The bill was referred to the Committee on Agriculture, Nutrition, and Forestry.
  • S. 3118 (Leahy, D-Vt.) (crude oil production) would amend the Internal Revenue Code of 1986 to impose a windfall profits adjustment on crude oil and products thereof and to fund heating assistance for consumers and small business owners. 146 CONG. REC. S9381 (daily ed. Sept. 27, 2000). The bill was referred to the Committee on Finance.
  • H.R. 5223 (Sanford, R-S.C.) (national forests) would require the Secretary of Agriculture to carry out a pilot program to evaluate the feasibility and merits of state administration of units of the National Forest System. 146 CONG. REC. H7932 (daily ed. Sept. 20, 2000). The bill was referred to the Committee on Agriculture.
  • H.R. 5226 (Christensen, D-V.I.) (electricity) would amend the Internal Revenue Code of 1986 to provide a credit for electricity produced by certain waste management facilities in U.S. possessions. 146 CONG. REC. H7931 (daily ed. Sept. 20, 2000). The bill was referred to the Committee on Ways and Means. 

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  • H.R. 5252 (Franks, R-N.J.) (Strategic Petroleum Reserve) would require the release of petroleum from the Strategic Petroleum Reserve to address the burdens on the citizens of the United States of the anticipated high home heating costs of the winter of 2000-2001. 146 CONG. REC. H7990 (daily ed. Sept. 21, 2000). The bill was reported to the Committee on Commerce.
  • H.R. 5264 (Udall, D-Colo.) (Rocky Flats National Wildlife Refuge) would establish the Rocky Flats National Wildlife Refuge in Colorado. 146 CONG. REC. H7991 (daily ed. Sept. 21, 2000). The bill was referred to the Committee on Resources. A companion bill, S. 3090, was introduced in the Senate this period.
  • H.R. 5297 (Everett, R-Ala.) (water resources) would amend the Watershed Protection and Flood Prevention Act to authorize the Secretary of Agriculture to provide cost share assistance for the construction of reservoir structures for the storage of water in rural areas. 146 CONG. REC. H8199 (daily ed. Sept. 26, 2000). The bill was referred to the Committee on Agriculture.
  • H.R. 5305 (Slaughter, D-N.Y.) (environmental compliance) would enhance the services provided by EPA to small communities that are attempting to comply with national, state, and local environmental regulations. 146 CONG. REC. H8200 (daily ed. Sept. 26, 2000). The bill was referred to the Committees on Commerce, and Transportation and Infrastructure.
  • H.R. 5307 (Walden, R-Or.) (water resources) would authorize the Secretary of the Interior to conduct a feasibility study on water optimization in the Burnt River basin, Malheur River basin, Owyhee River basin, and Powder River basin, Oregon. 146 CONG. REC. H8200 (daily ed. Sept. 26, 2000). The bill was referred to the Committee on Resources. 
  • H.R. 5310 (Woolsey, D-Cal.) (wastewater) would authorize appropriations to promote innovation and technology transfer in wastewater discharge reduction and water conservation. 146 CONG. REC. H8200 (daily ed. Sept. 26, 2000). The bill was referred to the Committee on Transportation and Infrastructure.
  • H.R. 5316 (Brady, R-Tex.) (energy conservation) would protect the energy security of the United States and decrease America's dependency on foreign oil sources to 50 percent by the year 2010 by enhancing the use of renewable energy resources, conserving energy resources, improving energy efficiencies, and increasing domestic energy supplies, thereby mitigating the effect of increases in energy prices on the American consumer, including the poor and elderly. 146 CONG. REC. H8405 (daily ed. Sept. 27, 2000). The bill was referred to the Committee on Commerce.
  • H.R. 5318 (English, R-Pa.) (oil exploration; Alaska North Slope) would prohibit the exploration of Alaskan North Slope crude oil. 146 CONG. REC. H8405 (daily ed. Sept. 27, 2000). The bill was referred to the Committee on International Relations.

IN THE STATES
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red bar graphic ALABAMA

Dept. of Envtl. Management

Proposed Regulations-Water Quality

Proposed TMDLs

Penalty Assessment

Public Notices–Permit Applications 

Daily Ozone Forecast

Jefferson County Dept. of Health

Daily Air Quality Index

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red bar graphic  ALASKA

Dept. of Envtl. Conservation

Cruise Ship Regulation

Proposed Regulations-Pesticides

Proposed Regulations-Air

Proposed Regulations-Water Quality

red bar graphic ARIZONA

Dept. of Envtl. Quality

Draft TMDL

Water Quality-CWA 305(b) Report

Water Quality-Proposed Regulations

  • Proposal will implement the Water Quality Assurance Revolving Fund reform legislation of 1997, including revisions to remedy selection provisions. The rules include standards governing the conduct of preliminary investigations, site "scoring" for placement on the Registry, public information requirements, and the conduct of early response actions. Written comments due Oct. 18. See http://www.adeq.state.az.us/lead/oac/stat.html and www.sosaz.com/arr for more information. 

Proposed Regulations-Operator Certification

  • Public hearing was Sept. 27; written comments due Oct. 4. 

Reopened Proposed Regulations-UST Release Reporting and Corrective Action

Superfund Program-Proposed Registry Inclusions, Prospective Purchaser Agreements

Arizona Emissions Bank

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red bar graphic ARKANSAS

Dept. of Envtl. Quality

Proposed Regulations-Hazardous Waste

  • Proposed amendments to Regulation No. 23 would amend the definition of "facility" in Section 260.10 to include a facility owner as a responsible party with regard to the requirements of Section 264.101. Comments due Oct. 10; public hearing was Sept. 26. See http://www.adeq.state.ar.us/regs/draft23.htm

Proposed Regulations-Solid Waste Management

  • Proposed amendments to Regulation No. 11 concern changes to fees for out-of-state transporters, funding of the illegal dump eradication program, and the auditing of regional solid waste management boards. Comments due Oct. 2; public hearing was Sept. 18. See http://www.adeq.state.ar.us/regs/draft11.htm

Proposed Regulations-Water Quality

  • Proposed amendments to Regulation No. 2 involve a potential change to a standard for sulfates in Holly Creek (Saline County). Comments due Oct. 10; public hearing was Sept. 26. See http://www.adem.state.ar.us/regs/draft02.htm

red bar graphic CALIFORNIA

Air Resources Board

Alternative Control Plan Regulation

  • Potential changes to the Alternative Control Plan (ACP) regulation, which provides alternative approaches to compliance with VOC standards for consumer products and aerosol coating products, will be the subject of an Oct. 17 public workshop. See http://www.arb.ca.gov/consprod/regact/acp2000/acpwrksp.htm

Zero-Emission Vehicles (ZEVs)

Proposed Regulations-Air Toxics Hot Spots Fees

Proposed Regulations-VOC Emissions from Antiperspirants/Deodorants

Final "Smog Check" Report

Carpool Lane Use-Qualifying Vehicles

Dept. of Toxic Substances Control

Proposed Regulations-Administrative Penalty Assessment

  • Proposed Article 3, Chapter 22, Div. 4.5 of Title 22, CCR, would make specific the statutory requirement in Health and Safety Code Section 25187(a)(4) by assessing administrative penalties based on criteria such as the nature and gravity of the violation, the violator's history and ability to pay the penalty, and the deterrent effect of the penalty on both the violator and the regulated community as a whole. Public workshops were Sept. 14 and 15. See http://www.dtsc.ca.gov/pdf2html.html and http://www.dtsc.ca.gov/whats_new.html

Draft Permits

  • Remedial action workplan and proposed Negative Declaration, Chase Chemical Site, Pacoima.
  • For hazardous waste permit to DeMenno/Kerdoon, Compton. Comments due Nov. 7.
  • For hazardous waste storage and treatment (by incineration, open burning, and/or open detonation) at the U.S. Army Sierra Depot. Public hearings were Sept. 12 and 13. Comments due Oct. 11. See http://www.dtsc.ca.gov/ (click on "What's New"). 

Integrated Waste Management Board

Emergency Regulations-Disposal of Nonhazardous Waste at Hazardous Waste Landfills

Water Resources Control Board

Water Rights Allocation Hearing

South Coast Air Quality Management District

Final Regulations-Food Manufacturing/Processing

  • Rule, which pertains to VOC emissions from solvents used in food processing and in manufacturing equipment, were approved on Sept. 15. See http://www.aqmd.gov

Final Regulations-BACT/RECLAIM

  • Amendments, approved at a Sept. 15 public hearing, will separate BACT for RECLAIM and non-RECLAIM sources into LAER for federal major sources, and BACT for minor sources pursuant to state law. Previously, LAER was required for emission increases from all sources. See http://www.aqmd.gov/hb/000072a.html

Final Regulations-Adhesives

Final Regulations-Fuel Sulfur Content

  • Approved amendments will establish an immediate sulfur content for ultra low sulfur diesel fuel and, after Jan. 1, 2004, will prohibit the purchase, sale, or burning of diesel fuel that exceeds the sulfur standard. See http://www.aqmd.gov/hb/00072a.html

Final Regulations-Boilers, Steam Generators, and Process Heaters

Proposed Regulations-Heavy-Duty Fleet Vehicles

Proposed Regulations-Petroleum Solvent Dry Cleaners

Proposed Regulations-Solvents

  • Public workshop Oct. 12 regarding proposed amended Rule 442, regarding VOC emissions from the use of organic solvents or materials containing organic solvents in equipment not subject to, or exempt from, Regulation XI. See http://www.awmd.gov/pub_edu/notice_442_2.html

Proposed Regulations-Livestock Waste

Proposed Regulations-Composting Operations

Office of Environmental Health Hazard Assessment

Proposed Prop. 65 Listings

  • Comments on the proposed listing of AZT, anthraquinone, and fumonisin B1 were due Sept. 15. OEHHA recently listed o-phenylphenol. See http://www.oehha.ca.gov

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red bar graphic COLORADO

Air Quality Control Commission

Proposed Regulations

  • Proposed revisions to Regulation No. 3, Part A, regarding regulation of open burning on federal lands. Public hearing Nov. 17. See http://www.cdphe.state.co.us/op/SB-145_8-00.html
  • Proposed revisions to Regulation No. 11, regarding motor vehicle emissions, to modify the time period allowed for making valid readings of vehicle emissions through the use of remote sensing equipment. Public hearing Nov. 16. See http://www.cdpdhe.state.co.us/op/Reg11_8-00.html
  • Proposed revisions to Regulation No. 5, Part B, regarding emissions trading and banking, to provide verification of emission reduction credits, establish a baseline year, condition the regulation upon annual appropriations, and incorporate pollution prevention criteria. Public hearing Nov. 16. See http://www.cdphe.state.co.us/op/Reg5_8-00.html

Water Quality Control Commission

Proposed Regulations

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red bar graphic  CONNECTICUT

Dept. of Envtl. Protection

Proposed Regulations-Air Quality

red bar graphic DELAWARE

Dept. of Nat. Resources and Envtl. Control

Penalty Assessment

  • Penalty of $25,000 (plus investigational costs) assessed against Laidlaw Corp. for air permit violations.

Regulatory Update

red bar graphic FLORIDA

Dept. of Envtl. Protection

Drinking Water Operator Certification

Proposed Regulations-NPDES Program; Stormwater

  • Proposed regulations would allow completion of NPDES delegation by incorporating standards governing stormwater and federal facilities. The proposed rule includes fees for implementing the NPDES stormwater program. 

Reuse Reports

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red bar graphic GEORGIA

Dept. of Natural Resources

Proposed Regulations-Hazardous Waste

  • Proposed revisions will incorporate changes in U.S. EPA regulations. Public hearing was held Aug. 25. Will be taken up at Oct. 25 meeting of Board of Natural Resources. See http://www.ganet.org/dnr/environ

Air Permit Applications

NPDES Permit Applications

red bar graphic IDAHO

Dept. of Envtl. Quality

Odor Complaints-Draft Guidelines

Outstanding Resource Waters-Petitions

Risk Based Corrective Action

red bar graphic ILLINOIS

Pollution Control Board

Inquiry Hearings-Peak Load Electric Generating Facilities

Envtl. Protection Agency

Draft TMDLs

Permit Applications

Strategic Planning Process

Clean Lakes Program Grants Available

  • Approximately $750,000 available for distribution. Amy Walkenbach at IEPA is the contact ((217)782-3362). 

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red bar graphic INDIANA

Dept. of Envtl. Management

Final Regulations-Solid Waste

  • Adds 329 IAC 4.1 to incorporate by reference the most recent version of the federal regulations at 40 CFR 761, revised as of  July 1, 1999, for management of wastes containing PCBs or terphenyls. Adds location restrictions, public notice and public participation requirements, and notice of activity requirements for incinerators and high efficiency boilers, chemical waste landfills, and alternative disposal facilities. Adds requirements for mobile facilities that dispose of PCBs. Adds requirements for waste streams containing or contaminated with PCBs that may be disposed of in a municipal solid waste landfill or a nonmunicipal solid waste landfill. Repeals 329 IAC 4.

Proposed Regulations-Air

  • Amends 326 IAC 21-1-1 concerning the acid deposition control.
  • Draft rule language for a new rule concerning national emissions standards for hazardous air pollutants for shipbuilding and ship repair operations. 
  • Draft rule language for new rules concerning the incorporation of NESHAPs for off-site waste and recovery operations, pulp and paper production (noncombustion), phosphoric acid manufacturing and phosphate fertilizers production, generic MACT, pesticide active ingredient, mineral wool production, and wool fiberglass manufacturing.
  • Draft rule language to incorporate by reference 40 CFR 63, Subpart HH, which applies to oil and natural gas production facilities, Subpart HHH, which applies to natural gas transmission and storage facilities, and Subpart VVV, which applies to POTWs.

Proposed Regulations-Waste

  • Oct. 17 public hearing regarding proposed amendments to 329 IAC 3.1, 329 IAC 12, and 329 IAC 13 regarding rules for secondary containment for used oil containers and underground tanks. The proposal also amends 329 IAC 3.1 to require two paper copies and an electronic copy of groundwater laboratory analytical data and field parameters and revises 329 IAC 127-7-6 to allow flexibility in the timing of training courses for solid waste facility operators. See http://www.state.in.us/legislative/register/August-1-2000.html
  • Amendments to rules at 329 IAC 7 concerning the Indiana Scoring Model and the assessment of hazardous substance response sites. This rule will reconsider the maximum score to allow sites to be deleted from the Commissioner's Bulletin. This rule will also consider appropriate criteria for the deletion of sites from the Commissioner's Bulletin as an alternative to using the maximum score for deleting a site. 
  • IDEM has developed draft rule language for amendments to rules concerning the hazardous waste management permit program and related hazardous waste management and has scheduled a public hearing/meeting before the solid waste management board for consideration of preliminary adoption of these rules. The amendments adopted by these rules are amendments to the federal hazardous waste regulations that are incorporated by reference in the Indiana hazardous waste management rules at 329 IAC 3.1.
  • Amendments concerning substantive changes to the rules for municipal solid waste landfills at 329 IAC 10. This rulemaking will provide clarification and consistency to these rules. The rulemaking also may add, modify, or delete requirements.
  • These notices, except as specifically noted, may be viewed at http://www.state.in.us/legislative/register/September-1-2000.html

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red bar graphic KENTUCKY

Dept. for Envtl. Protection, Division of Water

Proposed Regulations-Air Quality

Public Hearing Notices

Permit Applications

Draft Groundwater Protection Plan

red bar graphic LOUISIANA

Dept. of Envtl. Quality

Permit Applications

Proposed Regulations-Hazardous Waste

Proposed Regulations-Water Quality

Proposed Regulations-Solid Waste

  • Proposed amendments would simplify standards for waste tire generators, transporters, and recyclers, and implement a statutory fee for off-road tires and tires weighing more than 100 pounds. Public hearing was Sept. 25; written comments due Oct. 2. See http://www.deq.state.la.us/planning/regs.index.htm

Proposed Regulations-General 

Proposed Regulations-Air Quality

red bar graphic MAINE

Dept. of Envtl. Protection

Proposed Regulations-Air Quality

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red bar graphic MARYLAND

Dept. of the Environment

Proposed Regulations-Soil Erosion/Sediment Control

Public Meetings/Hearings

Water Quality Standard-Triennial Review

MTBE Task Force

red bar graphic MASSACHUSETTS

Dept. of Envtl. Protection

Enforcement Actions

red bar graphic  MICHIGAN

Dept. of Envtl. Quality

Permit Applications-Air

 Air Quality Division Newsletter

Surface Water Quality Division Bulletin

Surface Water Quality Division-Draft Regulations

red bar graphic MINNESOTA

Pollution Control Agency

Permit Applications, Other Notices

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red bar graphic  MISSOURI

Dept. of Natural Resources

Water Pollution Control-Permit Applications

red bar graphic NEW HAMPSHIRE

Proposed Regulations-Groundwater

red bar graphic NEW JERSEY

Dept. of Envtl. Protection

Draft Watershed Management Rules

Current DEP Bulletin (Permit Applications; Proposed Regulations)

red bar graphic NEW YORK

Dept. of Envtl. Conservation

Comparative Risk Project

Environmental Notice Bulletin (Permit Applications)

Permit Applications

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red bar graphic  NORTH CAROLINA

Dept. of Envt. and Natural Resources

Division of Air Quality-Proposed Regulations

Chip Mill Study

  • The report "Economic and Ecologic Impacts Associated with Wood Chip Production in North Carolina," drafted by consultants at North Carolina State University and Duke University, is available at http://taxodium.env.duke.edu/scsf

Smithfield Foods, Inc. Agreement-Hog Lagoons

  • Details of the agreement reached through the Office of Attorney General, which DENR hopes will facilitate the phasing-out of open-air hog lagoons and sprayfields, is available at http://www.jus.state.nc.us/in/press/072500.htm Smithfield and its subsidiaries, the largest operators of hog producing operations in the state, will pay $15 million to North Carolina State University for the development of new technologies and $50 million toward environmental improvements at operations and compliance monitoring. Violations of the agreement will be enforceable. Separately, DENR announced that it was buying out 14 hog farming operations, using funds from the Clean Water Management Fund. See http://www.enr.state.nc.us/files/hogs/hogplan.htm

Proposed Regulations-Groundwater

  • Proposed amendments to well construction and abandonment requirements will clarify minimum separation distances between single family and non-public water systems and potential sources of groundwater contamination, and strengthen standards governing well casings, grouting, and well development. Written comments are due Oct. 2. See http://www.enr.state.nc.us/newsrels/massen7.htm

Division of Air Quality Penalty Assessments

DENR Enforcement Data

Water Quality-Basinwide Assessment Reports

State Personnel Commission

Final Regulations

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red bar graphic OHIO

Envtl. Protection Agency

Proposed Regulations-Scrap Tires

  • Proposed amendments would allow non-registered transporters to transport tire-derived chips sold for civil engineering projects (such as home and septic system construction). Changes in financial assurance requirements are also proposed. Another change would allow a county health commissioner or OEPA to grant a limited exemption from the requirement to obtain a registration for transporting tires. Comments are due Oct. 27. See http://www.epa.state.oh.us/pic/nr/2000/september/tires.html and http://www.epa.state.oh.us/dsiwm

OPEA Actions, Notices by County

Public Meetings

Pending Air Permits

 OKLAHOMA

Dept. of Envtl. Quality

Draft Source Water Assessment and Protection Program Document

 OREGON

Dept. of Envtl. Quality

Water Quality Permit Applications

Proposed Regulations

Public Notices-Cleanup Remedies

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 PENNSYLVANIA

Dept. of Envtl. Protection

Final Regulations-Interstate Ozone Transport

Proposed Regulations-Host Community Fund Allocation

"Growing Smarter" Initiative-Proposed Procedures

  • Comments are sought through Oct. 2 on procedures DEP will use to implement the "Growing Smarter" initiative. See http://www.dep.state.pa.us (direct link "land use reviews"). 

Livestock and Poultry Operations-Best Management Procedures

  • Public meetings through Oct. 13 on the recently issued manual and other information regarding Senate Resolution 91 of 1997. See http://www.dep.state.pa.us

Proposed Regulations-Safe Drinking Water

  • Proposed amendments to Chapter 109 to add maximum residual disinfectant levels and monitoring requirements for free chloride, combined chlorine, and chlorine dioxide. Maximum contaminant levels and monitoring requirements will be established for five haloacetic acids, chlorite, and bromate. Comments to the Environmental Quality Board are due Oct. 2. See http://www.pabulletin.com/secure/date/vol30/30-36/1503.html
  • Proposed amendments to Chapter 109 to establish new requirements for filtration systems that serve populations of at least 10,000. Comments are due Oct. 2. See http://www.pabulletin.com/secure/data/vol30/30-36/1504.html

Proposed Regulations-Land Recycling Program

Final General NPDES Permit-CAFO Operations

Final Regulations-Air

Proposed General NPDES Permit Revision

NPDES Permit Applications

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 SOUTH CAROLINA

Dept. of Health and Envtl. Control

Permit Application Notices

  TENNESSEE

Dept. of Environment and Conservation

Grant Availability-Recycling Marketing

  TEXAS

Natural Resource Conservation Commission

Global Warming Measures

  • Directives and measures adopted by the Commission (including a requirement that the Executive Director issue a report by Dec. 1, 2001, compile information on actual greenhouse gas emissions, survey other states, create a registry for greenhouse gas reductions, and estimate the extent to which emissions have been reduced due to existing programs and measures) are available at http://tnrcc.state.tx.us/exec/media/press/08-00global.html

Stormwater Program-Delegation

Proposed Regulations

  • Preproposal draft of revisions to Surface Water Quality Standards available at http://ww.tnrcc.state.tx.us/oprd/index.html
  • Proposed quadrennial review of Chapter 114 (Control of Air Pollution from Motor Vehicles). See http://www.tnrcc.state.tx.us/oprd/whatsnew.html
  • Proposed regulations would create a nitrogen oxide (NOx) trading program in the Houston-Galveston nonattainment area, require an average of 90% reduction in NOx emissions from new controls in the nonattainment area, impose new vehicle emissions testing requirements, implement a seasonal ban on early-morning use of heavy-duty construction equipment, require the sale of low-sulfur gasoline throughout Central and Eastern Texas (including the Dallas-Ft. Worth and Beaumont areas, starting in 2002), ban the use of small gasoline-powered lawn care equipment between 6 a.m. and noon in summer months, implement requirements for new commercial and residential air conditioning equipment, require early retirement and replacement of off-highway diesel equipment, require emission reductions at area airports, reduce speed limits to 55 (starting in 2002), encourage voluntary measures such as telecommuting and stoplight synchronization, restrict truck engine idling, and reduce the duration of emission reduction credits from ten to five years. Public hearings were held Sept. 18-25. Written comments were due Sept. 25. See http://www.tnrcc.state.tx.us

Permit Hearings

Sunset Advisory Commission

  UTAH

Dept. of Envtl. Quality

Permit Applications

 VERMONT

Dept. of Envtl. Conservation

Permit Applications

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 VIRGINIA

Dept. of Envtl. Quality

Landfill Closure Proposal

  • Comments accepted through Oct. 13 on reports that propose that certain landfills be closed by 2005, other identified facilities by 2010, and five more by 2020, on the basis of risk of exposure to contaminants. The DEQ has also compiled new data regarding the receipt of out-of-state generated municipal solid waste in 1999. For details, see http://www.deq.state.va.us/news/releases/964019031.html

Proposed Regulations-Solid Waste Management

  • Proposed amendments are again available for public comment due to the extent of revisions to the first proposal resulting from public comment. The amendments would address the importation of solid waste by barge, a controversial issue that led to legislation struck down earlier this year by a federal district court. The DEQ proposal would limit the height of stacked containers on barges and increase fees paid by barge owners or operators. Receiving facilities would also be charged initial permit fees and annual inspection fees. Comments due Oct. 27; public hearing Oct. 5 (Glen Allen). For details, see http://www.deq.state.va.us 

RCRA Program Authorization

Public Meeting Notices

WASHINGTON

Dept. of Ecology

Adopted Regulations

Proposed Regulations

 WEST VIRGINIA

Dept. of Envtl. Protection

Public Notice Bulletin (Permit Applications, Proposed Regulations)

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 WISCONSIN

Dept. of Natural Resources

Public Hearing and Meeting Schedule

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

INTERNATIONAL

 GENERAL

  • IUCN holds its World Conservation Congress in Amman, Jordan this week. ELI President Bill Futrell will attend. 

  • IUCN released its 2000 Red List of Threatened Species, the most extensive review conducted to date. Of 18,000 examined species and subspecies, over 11,046 were found to be facing the threat of extinction. Indonesia, India, Brazil and China are among the countries with the highest numbers of threatened mammals and birds; the United States leads in the number of threatened species of fish and invertebrates. See http://www.redlist.org

  • OPEC ministers, meeting in Caracas, gave little indication of a willingness to address higher fuel prices in Europe and the United States through increased production levels, and indicated little sympathy for President Clinton's release of oil from the U.S. Strategic Reserve. Iran's oil minister, for example, said that in his view there is a quite sufficient worldwide supply. Ministers implied that production cuts might be in store if Europe follows the U.S.'s lead.  

  • The World Bank, in the release "Annual Review of the Environment: Environment Matters", issued during its annual meeting in Prague, notes that lack of leadership, rather than lack of resources, is the most pressing problem facing developing countries. See http://wbln0018.worldbank.org/

  • Approximately 9,000 protesters, a smaller number than expected, tangled with police during the IMF/World Bank annual meeting.

  • A Worldwatch Institute report, "Working for the Environment: A Growing Source of Jobs," says that only a small percentage of U.S. workers who have lost their jobs did so because of costs associated with the implementation of environmental laws and regulations. The number is far outweighed by increased employment opportunities in fields such as waste management services, the manufacture of pollution control equipment, and related industries and services. See http://www.worldwatch.org

  CLIMATE CHANGE

  • Germany's Federal Environmental Agency issued a commissioned report, "Stabilization Goals for Greenhouse Gas Emissions: An Estimate of Impacts and Emissions Paths," which concluded that even significant reductions in greenhouse gas emissions--far beyond those recommended by the Kyoto Protocol--would fail to prevent adverse consequences from global warming. 

  • Japan's 1998 greenhouse gas emissions were 3.5% lower than 1997's but fully 5% higher than 1990's, according to a government report.

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EUROPE

  • The European Parliament adopted legislation on providing environmental assistance to developing countries and on forest preservation. 

  • Sweden announced that it is unlikely that the Barseback 2 nuclear reactor, tentatively slated to close next July, will likely remain open until at least 2003 because of shortfalls in available electric generation capacity. Swedish voters passed a referendum in 1980 supporting closure of the plant. 

  • Over two-thirds of fish stocks off the British coast are overexploited according to the Ocean Recovery Campaign of the World Wide Fund for Nature (WWF), reports the BBC. See http://news.bbc.co.uk/hi/english/sci/tech/newsid_932000/932477.stm

  • The European Commission initiated proceedings against Germany and Italy for their alleged failure to implement Directive 98/70, Relating to the Quality of Gasoline and Diesel Fuels and Amending 93/12 on Sulfur Content of Certain Liquid Fuels. 

  • Paul Watson, the founder of Shepherd International, was fined U.S. $37,000 for violating immigration laws by bringing the ship Ocean Warrior into waters of a Danish protectorate, the Faroes, to protest the killing of pilot whales. He claims lack of due process and says that all necessary approvals had been obtained. The whales are not listed as endangered.

  • Bundesamt fur Strahlenschutz, the German nuclear power authority, announced that it would authorize international shipments of spent nuclear fuel to travel through Germany, ending a more than two year ban on the practice. Protests have occurred and environmental groups are strongly opposed. The authority and the Environment Ministry have placed some controls on transportation and are mandating the recycling of plutonium from reprocessing. France and Switzerland have already allowed resumed transport activity. 

  • The acquittal in Norwich of a Greenpeace official and 27 others charged with criminal damage to genetically modified crops will not deter future prosecutions, said British officials. 

  • France's fiscal year 2001 budget bill, as presented to the Cabinet, would increase environmental spending by almost 10 percent. 

  • The World Wildlife Fund argued that Poland's plans to proceed with two controversial dam projects could threaten accession to the European Union. See http://www.wwffreshwater.org/newsroom/newsroom19.html

  • Greenpeace is urging Greece to ban PVC bottles in order to reduce dioxin emissions from uncontrolled fires at landfills, in light of the recent imposition of a European Court of Justice fine of U.S. $18,500 per day for violations at a facility in Kouroupitos, Crete.  

  • The European Council of Economic and Finance Ministers should consider environmental consequences when considering taxing and economic policy, according to the European Commission. The Commission, in a statement, noted that "many environmental problems arise precisely because there are no markets in environmental goods and services." See http://europa.eu.int

CANADA

  • Ontario Environment Minister Dan Newman announced draft legislation that would significantly increase maximum penalties for environmental violations and create a full-time enforcement squad. Penalties for corporations with first-time violations would go from a maximum of U.S. $670,000 to U.S. $4 million per day; for individuals, from $67,000 per day to $2.7 million.

  • The Royal Canadian Mounted Police, in their annual report "Environmental Scan 2000," reported that criminal activity related to environmental concerns, such as the illegal import of foreign-manufactured ozone-depleting substances, is increasing. See http://www.rcmp-grc.gc.ca/html/scan2000-e-1.pdf

  LATIN AMERICA

  • The United States' thirst for hardwood lumber is rapidly depleting big-leaf mahogany trees in the Amazon rainforest, reports TRAFFIC (World Wildlife Fund-IUCN) in the report "Mahogany Matters: the U.S. Market for Big-Leafed Mahogany and its Implications for the Conservation of the Species." See http://www.worldwildlife.org/forests/

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ASIA

  • The founder of the Wanariset Orangutan Reintroduction Project in eastern Borneo warns that orangutans are threatened with extinction, perhaps as early as 2010. Dr. Willie Smits is traveling through the United States seeking governmental and public awareness and support of protection programs. See http://www.orangutan.com/index.shtml
  • The Japanese village of Tokaimura took part in a safety drill a year after an accident at a nearby nuclear fuel processing plant left two employees dead and leaked radiation affecting over 400 people.
  • Speakers assembled at a Chinese government-sponsored seminar said the required relocation of residents near the Three Gorges Project will, according to the deputy director of the Three Gorges Project Construction Committee, "prevent the environment from around the reservoir from deteriorating. Many experts have said that the area would not be able to support too many people." Up to 1.1 million people will be resettled by 2009, the scheduled date of completion. See http://chinadaily.com.cn.net/cndy/history/2000/09/d1-2dam.918.html
  • Deforestation is a leading cause of floods in the Mekong River area, according to the United Nations Economic and Social Commission for Asia and the Pacific. See http://www.unescap.org/unis/G-38_00.htm