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Weekly Update Volume 30, Issue 34

12/04/2000

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

red bar graphic RCRA, FEDERAL ENFORCEMENT, OVERFILING:

A district court rejected the Eighth Circuit's holding in Harmon Industries, Inc. v. Browner, 191 F.3d 894, 29 ELR 21412 (1999), and held that RCRA does not prohibit the federal government from bringing an enforcement action against a metal refinisher for failing to obtain financial assurances even though Colorado, an authorized state under RCRA, filed a state enforcement action against the refinisher. Colorado brought suit against the refinisher for various RCRA and state law violations. The federal government asked the state to enforce RCRA's financial assurance requirements in its suit against the refinisher, and when the state declined, the federal government brought its own enforcement action. The refinisher argued that in light of Harmon, the federal government did not have the authority to "overfile" the state's enforcement action. According to the Eighth Circuit, the federal government can initiate an enforcement action, after providing notice to the state, only if the authorized state fails to initiate an enforcement action or if the federal government withdraws the state's authorization. The district court held that this interpretation of RCRA is incorrect. The plain language of RCRA does not support the Eighth Circuit's conclusion that an authorized state program supplants the federal hazardous waste program in all respects--including enforcement. It is true that RCRA allows for the state administration of RCRA to replace federal administration, but the administration and enforcement of RCRA are not "inexorably intertwined." Therefore, because the plain language of RCRA does not indicate that federal enforcement authority has been supplanted by state authority in authorized states, there is no reason to impose restrictions on federal authority not found explicitly in the statute. Further, EPA's interpretation of RCRA and the Act's legislative history support the view that the federal government has the power to overfile. Thus, because the federal government notified the state prior to commencing its enforcement action, RCRA does not prohibit the action. In addition, the federal government's case is not barred by res judicata because the financial assurances issue was never before the court in the state action. Finally, even though the metal refinisher claims to no longer be in violation of RCRA and asserts that tremendous progress has been made in remediating contamination at and around the property, financial assurances are required . Nothing in RCRA indicates that the owners and operators of hazardous waste facilities are exempt from providing financial assurance requirements before remediation and closure is accomplished. United States v. Power Engineering Co., No. 97-B-1654 (D. Colo. Nov. 24, 2000) (Babcock, J.) (41 pp.).

red bar graphic  CERCLA, SUBJECT MATTER JURISDICTION:

The Eight Circuit upheld a district court's dismissal of landowners' CERCLA claims for response costs from a lead smelter for property contamination in Omaha, Nebraska. The district court dismissed the landowners' class action suit against the lead smelter under Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction because the landowners had not incurred any necessary response costs and, therefore, did not meet all the essential elements of a CERCLA claim. However, the court should have dismissed the case under Fed. R. Civ. P. 12(b)(6) for failure to state a claim because the landowners' claim does not appear to be immaterial and made solely for the purpose of obtaining jurisdiction, nor is it wholly insubstantial and frivolous. Additionally, because matters outside the pleadings related to response costs were presented to, and not excluded by, the district court, the lead smelter's motion to dismiss should have been converted to a summary judgment matter under Fed. R. Civ. P. 56. Nevertheless, the dismissal was upheld because the landowners failed as a matter of law to assert a legally viable private cost-recovery claim under CERCLA. The response costs incurred by the landowners were actually expended by their attorneys, and the landowners have no obligation to repay those costs unless and until they obtain a final judgment against the lead smelter. The mere possibility that an obligation to pay will arise in the future does not establish that a cost has been incurred, but rather establishes that a cost may be incurred. Moreover, the district court properly dismissed the landowners' state-law claims for lack of diversity jurisdiction because no member of the class could satisfy the $75,000 amount-in-controversy requirement. Trimble v. Asarco, Inc., No. 99-2894 (8th Cir. Nov. 28, 2000) (32 pp.).

red bar graphic  ESA, NATIONAL DEFENSE AUTHORIZATION ACT (NDAA), LAND CONVEYANCE:

The Ninth Circuit held that although the sale of an oil field in California did not moot environmental groups' claims against DOE for violating the ESA's consultation provisions, the NDAA relieved DOE of its obligations to reinitiate consultations with the FWS before selling the land. In 1995 the FWS issued a biological opinion and incidental take statement to DOE allowing it to continue oil and gas development of the oil field as long as certain mitigation measures were employed. In 1996 Congress passed the NDAA directing DOE to sell the oil field within two years of the statute's effective date. A year later DOE accepted a purchase offer from a petroleum company that agreed to accept the terms of the incidental take statement, but DOE did not reinitiate consultations under the ESA with the FWS. After the environmental groups failed to obtain a preliminary injunction to stop the sale, the sale was completed. The district court erred in concluding that the sale's completion mooted the environmental groups' ESA claims against DOE. Conveyance of property does not moot a dispute regarding the legality of the conveyance. Additionally, the alleged harm to the environment and protected species could be ameliorated or avoided through a rescission of the contract. Nevertheless, the NDAA relieved DOE of its obligation to reinitiate consultations with the FWS under ESA §7 before the sale of the property. Although the NDAA does not mention ESA §7 explicitly, it does allow for the transfer of the incidental take statement. Further, the NDAA's legislative history reflects Congress' intent to permit the purchaser of the oil field to step into the shoes of DOE and continue operation under the biological opinion without additional consultation with the FWS. Moreover, requiring DOE to reinitiate consultations with the FWS before the sale would conflict with Congress' directive to complete the sale within two years. Tinoqui-Chalola Council of Kitanemuk & Yowlumne Tejon Indians v. United States Department of Energy, No. 99-16384 (9th Cir. Nov. 20, 2000) (9 pp.).

red bar graphic  RULEMAKING, EMERGENCY TEMPORARY STANDARD, RESPIRABLE COAL MINE DUST:

The D.C. Circuit denied a union's request to compel the Department of Labor to promulgate an emergency temporary standard to protect mine workers from exposure to respirable coal mine dust. The department must issue an emergency temporary standard only if the miners are exposed to grave danger and the emergency standard is necessary to protect the miners from such danger. While it is undisputed that respirable coal mine dust is a serious occupational hazard in the mining industry, the union failed to satisfy its burden of showing that an emergency temporary standard is warranted at this time. It is unclear what standards should be adopted to address the problem, and the matter is one committed to the agency's expertise and not for the court to suspend the prescribed statutory process. Therefore, the request for an emergency temporary standard was denied. Further, the court declined to reach the merits of the union's claim that the department unreasonably delayed rulemaking on respirable coal mine dust. An agency's notice of proposed rulemaking moots a claim of unreasonable delay based on a matter that the agency proposes to regulate in that rulemaking. Here, after the union petitioned the court to compel the Department of Labor to issue an emergency temporary standard, the department published notices of two proposed rulemakings aimed at restructuring the respirable dust program for underground coal mines. If the department fails to promulgate, modify, or revoke the proposed rules within the statutory time frame, then the union may file a petition for review. In re International Union, No. 00-1010 (D.C. Cir. Nov. 17, 2000) (3 pp.).

red bar graphic  BOUNDARY DESIGNATION, JURISDICTION:

The D.C. Circuit held that it lacked jurisdiction to hear intervening homeowners' appeal of a suit concerning a boundary dispute between Native Americans and the DOI in Albuquerque, New Mexico. The Native Americans sued the DOI claiming that an 1859 government survey erroneously set the eastern boundary of their 1748 Spanish land grant along the base of a mountain ridge rather than along the mountain's crest line as originally set forth in the land grant. Homeowners in the affected region intervened. The district court found that the circumstances surrounding the land grant were ambiguous and that the DOI was arbitrary and capricious in setting the eastern boundary and, therefore, remanded the case to the DOI. After the DOI and Native Americans settled the case, the homeowners appealed the remand. The district court's decision to remand the case, however, did not end the litigation on the merits. The case was remanded to the DOI for further proceedings, not merely for the ministerial act of issuing a corrected boundary. Thus, the D.C. Circuit lacked jurisdiction and the homeowners' appeal was dismissed. Pueblo of Sandia v. Babbitt, Nos. 98-5428, -5451 (D.C. Cir. Nov. 17, 2000) (5 pp.).

red bar graphic  TAKINGS, RIPENESS:

The Eighth Circuit affirmed a district court decision holding unripe a property owner's federal takings claim against a city for demolishing his building because the owner failed to seek compensation for the taking through available state procedures. Arkansas law provides for inverse condemnation proceedings even if the government did not take the property for a public purpose. Therefore, because the state law provides for compensation and the property owner did not show that an inverse condemnation proceeding would be futile, the property owner must bring an action in state court before his takings claim will be ripe in the federal courts. Ingram v. City of Pine Bluff, No. 99-2246 (8th Cir. Nov. 22, 2000) (3 pp.).

red bar graphic  MOTION FOR CERTIFICATION, WATER TREATMENT PLANT (WTP):

The Second Circuit certified a state-law question to the New York Court of Appeals concerning whether legislative approval is required before New York City can construct a WTP under a portion of Van Cortlandt Park in the Bronx. The city planned to build the WTP pursuant to a consent decree between EPA and the City of New York that requires the city to provide filtration and disinfection for one of its water supply systems. The state and citizens sued the city in district court claiming that legislative approval was required for construction of the WTP because of its location. The district court, however, held that no legislative approval was required. The citizens and the state appealed and requested that the issue of whether state legislative approval is required for the proposed site of the WTP be certified to the New York Court of Appeals. The law of New York is not clear on whether state legislative approval is required and the issue seriously implicates matters of major public interest. Additionally, the fact that the state and the city are on opposite sides of this state-law issue adds a potent reason why the issue should be resolved by the state's highest court. Therefore, the court certified the issue to the state court with the special provision that it will withdraw the certification unless the state court, in the event that it elects to accept the question certified for its decision, indicates that it reasonably expects to be able to decide the certified question within 90 days after accepting certification. The court imposed the 90-day deadline because of potential fines facing the city and the lengthy wait already incurred by the parties. Friends of Van Cortlandt Park v. City of New York, Nos. 00-6183(L) et al. (2d Cir. Nov. 15, 2000) (6 pp.).

red bar graphic NATIONAL PARKLANDS, UNLAWFUL POSSESSION OF A WEAPON, NOTICE:

The Fourth Circuit affirmed the conviction of an individual for possessing a weapon on National Park Service (NPS) lands in violation of 36 C.F.R. §2.4. The regulation, which generally prohibits the use or possession of weapons on NPS lands, does not require the NPS to give specific notice of the weapons prohibition. Publication of the regulation provided sufficient notice to the individual of the criminality of his conduct, and the individual failed to meet any of the listed exceptions to the prohibition. Additionally, 36 C.F.R. §1.7, which requires the public to be notified whenever the authority of 36 C.F.R. §1.5 is invoked to restrict or control a public use or activity, does not apply. While 36 C.F.R. §1.5 is concerned with the specific needs of individual parks and provides the means for tailoring the use of a given park to the particular circumstances of that park, the prohibition against carrying weapons in national parks is a general rule applicable to all parks. Thus, because the prohibition against weapons comes from the system-wide rule 36 C.F.R. §2.4 and not the park-specific rule 36 C.F.R. §1.5, the notice provisions of 36 C.F.R. §1.7 do not apply. Further, because the court decided that notice of the weapons ban need not be given, the park manager's testimony that the regulation was posted, whether true or false, is immaterial to the question of whether the individual unlawfully possessed a weapon in the park. United States v. Lofton, Nos. 99-4169, 00-4135 (4th Cir. Nov. 21, 2000) (6 pp.).

red bar graphic  CERCLA, CONTRACTS, CLEANUP LIABILITY:

A district court, applying Texas law, held that the former owner of all shares of stock in a hazardous waste recycling facility is solely liable for the facility's cleanup based on the terms of a stock purchase agreement it entered into with the purchaser of the facility's stock. The parties entered into a remediation agreement as a condition precedent to the stock purchase agreement that contained a clause stating that the seller would bear the sole expense for remediating the facility. Because nothing in the agreement's language suggests ambiguity in the term "sole expense," the plain meaning of the term was applied. Additionally, by virtue of the "sole expense" language, the seller explicitly waived its contribution rights under CERCLA from other owners, operators, and generators connected to the facility. Further, the seller cannot bring CERCLA cost recovery and contribution claims against customers of the facility because it explicitly contracted to remediate the site at its sole expense. Southdown v. Allen, No. CV-96-J-3300-S (N.D. Ala. Nov. 7, 2000) (Johnson, J.) (30 pp.).

red bar graphic  HISTORIC PRESERVATION, USE VARIANCE:

The New York Court of Appeals affirmed the New York City Board of Standards and Appeals' (BSA's) decision to grant use variances permitting the development of two neighboring properties in a New York City historic district, and to issue a negative declaration rather than require an EIS for the properties' development. Substantial evidence supported the BSA's findings as to all the requirements necessary to issue the proposed use variances. Relying on a study by the City Planning Commission, the BSA showed that the properties had unique physical conditions and, therefore, conforming uses would impose practical difficulties or unnecessary hardships. Further, expert evidence demonstrated that the properties' unique physical configuration would preclude a reasonable rate of return from conforming uses. It was not irrational or erroneous as a matter of law for the BSA to consider comparable properties from outside the zoning district in reaching this conclusion. Moreover, the BSA reasonably concluded that the proposed development plans would not change the essential character of the neighborhood. Additionally, the BSA's determination that an EIS was not necessary was neither irrational nor illegal. The BSA took a hard look at the potential environmental effects of the proposed development, sought input from several interested agencies, and required archaeological studies and soil and groundwater testing. Soho Alliance v. New York City Board of Standards and Appeals, No. 124 (N.Y. Nov. 28, 2000) (4 pp.).

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 revised the accelerated phase-out regulations that govern the production, import, export, transformation, and destruction of substances that deplete the ozone layer under CAA Title VI. 65 FR 70795 (11/28/00).
  • EPA entered into a proposed settlement agreement under the CAA in connection with a suit challenging the Agency's final regulations for new marine compression-ignition engines at or above 37 kilowatts. 65 FR 70355 (11/22/00). 
  • EPA announced that it is seeking comment on draft acid rain permit modifications that adopt alternative, less stringent nitrogen oxide emission limitations. 65 FR 70347 (11/22/00). 
  • EPA granted a petition by the Territory of American Samoa for an exemption from the anti-dumping requirements for gasoline sold in the United States after January 1, 1995. 65 FR 71067 (11/29/00). 
  • EPA determined that certain amendments to the California regulations for standards and test procedures for certain nonroad vehicles and engines are within the scope of previous authorizations of federal preemption granted to California under CAA §209(e). 65 FR 69763 (11/20/00). 
  • EPA determined that amendments to California's small off-road engine regulations are within the scope of a prior authorization of federal preemption under CAA §209(e).  65 FR 69767 (11/20/00). 
  • EPA determined that certain amendments to California's small off-road engine regulations are not within the scope of a prior authorization of federal preemption under CAA §209(e) because the amendments are new standards. 65 FR 69769 (11/20/00).

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red bar graphic  DRINKING WATER:

  • EPA approved revisions to South Dakota's public water system supervision primacy program that adopt regulations for the consumer confidence report rule. 65 FR 69774 (11/20/00). 
  • EPA announced that it intends to approve revisions to Georgia's public water system supervision program. 65 FR 71107 (11/29/00). 
  • EPA announced that it intends to approve revisions to Tennessee's public water system supervision program. 65 FR 71107 (11/29/00). 
  • EPA determined that the Western Uinta Arch Paleozoic Aquifer System at Oakley, Utah, and the immediately adjacent recharge area is the sole or principle source of drinking water for the region. 65 FR 75285 (12/1/00).

red bar graphic  ENDANGERED SPECIES:

  • FWS designated grizzly bears to be reintroduced into the Bitterroot Area of Idaho and Montana as a nonessential experimental population. 65 FR 69623 (11/17/00). 
  • FWS and the National Marine Fisheries Service determined endangered status for the Gulf of Maine distinct population segment of Atlantic salmon. 65 FR 69459 (11/17/00). 
  • FWS designated critical habitat for the tidewater goby under the ESA. 65 FR 69693 (11/20/00).
  • NOAA announced the aboriginal subsistence whaling quota for gray whales and other limitations derived from regulations adopted at the 1997 annual meeting of the International Whaling Commission. 65 FR 75186 (12/1/00).

red bar graphicHAZARDOUS WASTE:

  • EPA proposed to revise the existing regulations that apply to the recycling of hazardous wastes used to make zinc fertilizer products. 65 FR 70953 (11/28/00). 
  • EPA proposed to enter into two administrative settlements under CERCLA §122(h) in connection with the Barceloneta Landfill Superfund site in Barceloneta, P.R. 65 FR 71106 (11/29/00). 
  • EPA entered into a proposed settlement under CERCLA §122(i) in connection with the Nashua River Asbestos site in Nashua, N.H. 65 FR 69524 (11/17/00). 
  • EPA entered into a proposed settlement under CERCLA §122(h) in connection with the CHEMCENTRAL Warehouse Fire CERCLA site in Kent, Wash. 65 FR 69773 (11/20/00). 
  • EPA entered into an administrative settlement under CERCLA §122(h) in connection with the Cedar Service site in Bemidji, Minn. 65 FR 69938 (11/21/00). 
  • EPA entered into a proposed prospective purchaser agreement under CERCLA in connection with the Fischer & Porter Superfund site in Warmister Township, Pa. 65 FR 70354 (11/22/00). 
  • EPA approved revisions to Georgia's hazardous waste program under RCRA. 65 FR 70804 (11/28/00). 

red bar graphic  RADIOACTIVE WASTE:

  • EPA announced the availability DOE documents on waste characterization programs applicable to certain transuranic radioactive waste at the Idaho National Engineering and Environmental Laboratory proposed for disposal at the Waste Isolation Pilot Plant. 65 FR 70828 (11/28/00). 

red bar graphic  RULEMAKING:

  • The federal agencies issued their semiannual regulatory agendas providing specific information on the status of regulations under development and revision. The agendas are organized by agency department, and within each department area the entries are divided into five categories: prerule, proposed rule, final rule, long-term actions, and completed actions. (11/30/00).

red bar graphic  SMCRA PROGRAM APPROVALS:

red bar graphic  SOLID WASTE:

  • EPA promulgated standards and guidelines for new and existing commercial and industrial solid waste incineration units. 65 FR 75337 (12/1/00).
  • EPA announced that it is seeking comment on the Draft Update IVB to the third edition of the methods manual, Test Methods for Evaluating Solid Waste, Physical/Chemical Methods, which contains EPA-approved sampling and analysis methods for use under RCRA. 65 FR 70678 (11/27/00).

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red bar graphic  TOXIC SUBSTANCES:

  • EPA announced the availability of three draft guidance documents for mercury and mercury compounds, polycyclic aromatic compounds, pesticides, and other persistent bioaccumulative toxic chemicals that are subject to reporting under EPCRA §313 and Pollution Prevention Act §6007. 65 FR 70907 (11/28/00). 

red bar graphic  WATER QUALITY:

  • EPA announced the availability of a document entitled Ambient Aquatic Life Water Quality Criteria for Dissolved Oxygen (Saltwater): Cape Cod to Cape Hatteras. 65 FR 71317 (11/30/00). 

red bar graphic  DOJ NOTICES OF SETTLEMENTS:

  • U.S. v. 150 Acres of Land, More or Less, No. 5:95 CV 1009 (N.D. Ohio Nov. 9, 2000) (settling CERCLA defendants will pay a total of $100,000 in past U.S. response costs incurred at the Bohaty Drum site in Medina, Ohio), 65 FR 69787 (11/20/00);
  • U.S. v. Amerada Hess, No. 3:CV00-1912 (M.D. Pa. Nov. 2, 2000) (a proposed consent decree was lodged in a CERCLA action brought by the United States in which it sought injunctive relief and the recovery of costs EPA incurred in connection with the Butler Mine Tunnel Superfund site in Pittston Township, Pa.), 65 FR 69788 (11/20/00);
  • U.S. v. Detroit Edison Co., No. 00-74844 (E.D. Mich. Nov. 3, 2000) (a proposed consent decree was lodged in a CERCLA action brought by the United States in which it sought recovery of costs EPA incurred in connection with the J.E. Berger Superfund site in Detroit, Mich.), 65 FR 69788 (11/20/00);
  • U.S. v. Detroit Edison Co., No. 99-CV-70171 (E.D. Mich. Nov. 9, 2000) (a settling CAA defendant that allegedly failed to obtain various permits and failed to notify EPA about certain renovation activities at its power plant in Detroit, Mich., must pay a $135,000 civil penalty to the United States, a $135,000 civil penalty to Michigan, a civil penalty $135,000 to Wayne County, Mich., and must pay $45,000 in attorneys fees and costs to various citizen groups), 65 FR 70610 (11/24/00);
  • U.S. v. Foster Poultry Farms, No. CIV 00-6869 OWW DLB (E.D. Cal. Nov. 1, 2000) (a settling EPCRA defendant that allegedly failed to submit a Form R reporting that it manufactured, processed, or used toxic chemicals for numerous facilities in California and Oregon must spend a minimum of $549,000 performing supplemental environmental projects and  must pay a $125,000 civil penalty), 65 FR 70611 (11/24/00);
  • U.S. v. City of Dover, No. 1:92-CV-406-M (D.N.H. Nov. 14, 2000) (under a work schedule modification that revises a consent decree entered into by settling CERCLA defendants in 1993, the completion date of the final remedial design and the commencement of the remedial action set forth in the record of decision for the Dover Municipal Landfill Superfund site in Dover, N.H., is extended until November 30, 2001), 65 FR 75307 (12/1/00);
  • U.S. v. Feinstein Family Partnership, No. 96-232-CIV-FTM-24D (M.D. Fla. Nov. 17, 2000) (settling CWA defendants that unlawfully discharged dredged or fill materials into U.S. waters in Lee County, Fla., must preserve wetlands at the site and must purchase credits in a wetlands mitigation bank), 65 FR 75307 (12/1/00);
  • U.S. v. Portrait Homes Construction Co., No. 4:00-3581-12 (D.S.C. Nov. 15, 2000) (CWA defendants that unlawfully discharged dredged or fill material into U.S. waters near Murrells Inlet in Horry County, S.C., must pay a $10,000 civil penalty), 65 FR 75307 (12/1/00);
  • U.S. v. Wilkey, No. 4:97 CV-239-M (W.D. Ky. Nov. 13, 2000) (a settling SDWA defendant that owned and operated four underground injection wells in Daviess County, Ky., must pay a $20,000 civil penalty for violating an EPA administrative order on consent and state underground injection control regulations), 65 FR 75308 (12/1/00). 

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

IN THE STATES
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red bar graphic ALABAMA

Dept. of Envtl. Management

Proposed Regulations-Air Quality

Proposed Regulations-Hazardous Waste

Approved UST Fund Contractors

Public Notices–Permit Applications 

Daily Ozone Forecast

Jefferson County Dept. of Health

Daily Air Quality Index

red bar graphic  ALASKA

Dept. of Envtl. Conservation

Proposed Regulations-Air

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red bar graphic ARIZONA

Dept. of Envtl. Quality

Proposed Regulations-Voluntary Remediation

Proposed Regulations-Air Quality

Water Quality-CWA §305(b) Report

Superfund Program-Proposed Registry Inclusions, Prospective Purchaser Agreements

Arizona Emissions Bank

red bar graphic ARKANSAS

Dept. of Environmental Quality

10-Year Strategic Plan

red bar graphic CALIFORNIA

Air Resources Board

Diesel Emission Standards

  • Several other states--Connecticut, Delaware, Georgia, Maine, Massachusetts, Nevada, New Hampshire, New Jersey, New York, North Carolina, Rhode Island, Texas, and Vermont--are likely to adopt more stringent standards governing diesel truck and bus engine emissions after they are promulgated by the Board. See "Tier 2 Exhaust Standards," below. 

Dec. 7-8 Board Meeting Agenda

Proposed Guidelines-School Bus Emissions

Workshop-Vapor Recovery Equipment Defects

Health-Based Ambient Standards

  • Report reviewing health-based standards will be discussed at Dec. 7 Board meeting. See http://www.arb.ca.gov The Report, "Adequacy of California Ambient Air Quality Standards: Children's Environmental Health Protection Act," is available at http://www.arb.ca.gov/ch/ceh/ceh.htm Comments must be received by Dec. 6. 

Proposed Regulations-Tier 2 Exhaust Standards

Proposed Regulations-Emission Test Procedures

Zero-Emission Vehicles (ZEVs)

Final Regulations-Denatured Ethanol

  • Board, in adopting revisions to Phase 3 Reformulated Gasoline standards, determined that denatured ethanol should contain no more than 10 parts per million of sulfur.

Dept. of Toxic Substances Control

Proposed Regulations

  • Dec. 13-15 workshops regarding proposed regulations for treatment of aqueous waste containing cyanide. 
  • Dec. 18 comment deadline, hearing date for proposed permit modification, classification, and appeal procedure regulations. 

See http://www.dtsc.ca/gov/whats_new.html

Management Memo Review

  • 54 "Management Memos" issued by DTSC that pertain to the Hazardous Waste Management Program. See http://www.dtsc.ca.gov

Draft Regulations-Land Use Covenants

  • Draft text for proposed regulations available at http://www.dtsc.ca.gov/whats_new.html (see also "Land Use Covenant Agreements in California"). Public workshop on draft regulations will be held Dec. 5. 

Integrated Waste Management Board

Emergency Regulations-Disposal of Nonhazardous Waste at Hazardous Waste Landfills

Water Resources Control Board

Dec. 4 Board Meeting Agenda

Sanitary Sewer and Treatment Facility Survey

California Energy Commission

Emergency Regulations-Licensing Procedures, Thermal Power Plants

  • Promulgated licensing procedures as required by Assembly Bill 970 (California Energy Security and Reliability Act). See http://www.energy.ca.gov

Carcinogen Identification Committee

South Coast Air Quality Management District

Proposed Regulations-New Source Review

Defered Proposal-Vehicle Fleet Emissions

  • The District's board chose to postpone review of a methodology for estimating toxic risk from diesel emissions pending work with the state Air Resources Board on a standard approach. See http://www.aqmd.gov

Final Regulations-Boiler Emissions

  • The District promulgated revisions to Rule 1146 governing industrial boilers. See http://www.aqmd.gov

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red bar graphic COLORADO

Air Quality Control Commission

Proposed Regulations

Water Quality Control Commission

Proposed Regulations

red bar graphic DELAWARE

Dept. of Nat. Resources and Envtl. Control

Notices of Violation

Regulatory Update

red bar graphic FLORIDA

Dept. of Envtl. Protection

DEP, Citrus Industry Agreement

Reuse Reports

red bar graphic GEORGIA

Dept. of Natural Resources, Envtl. Prot. Division

Air Permit Applications

NPDES Permit Applications

red bar graphic HAWAII

Office of Envtl. Quality Control

Environmental Impact Notices

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red bar graphic IDAHO

Dept. of Envtl. Quality

Air Quality

  • A preliminary agreement was developed regarding particulate matter emission controls in the Boise area; implementation rulemaking could occur in early 2001. Boise has been the only area lacking a federal standard for PM-10. 

Watershed Assessment

Outstanding Resource Waters-Petitions

Risk Based Corrective Action

red bar graphic ILLINOIS

Pollution Control Board

Open Regulatory Dockets

Envtl. Protection Agency

Permit Applications

Strategic Planning Process

red bar graphic INDIANA

Dept. of Envtl. Management

Proposed Regulations-Air Quality

  • Adds 326 IAC 20-30 concerning NESHAPs for oil and natural gas production. Adds 326 IAC 20-31 concerning natural gas transmission and storage. Adds 326 IAC 20-32 concerning POTWs.
  • Amends 326 IAC 6-1 concerning nonattainment area particulate limitations.
  • Amendments to rules concerning sulfur dioxide emission limitations in Lake County.

Final Regulations-Solid Waste

  • Adds 329 IAC 15 to establish requirements for management of waste tires, including requirements adopted in Public Law 93-1998. Repeals 329 IAC 12-5 and 329 IAC 12-6. Note: Under IC 4-22-2-40, LSA Document #98-96, printed at 22 IR 3137, was recalled by the Solid Waste Management Board. This document was revised and readopted.

Final Regulations-Water Quality

  • Adds 327 IAC 5-16, 327 IAC 5-17, 327 IAC 5-18, 327 IAC 5-19, 327 IAC 5-20, and 327 IAC 5-21 concerning  industrial wastewater pretreatment in order to comply with the federal regulations and to acquire federal delegation of the state's pretreatment program. Repeals 327 IAC 5-11, 327 IAC 5-12, 327 IAC 5-13, 327 IAC 5-14, and 327 IAC 5-15.
  • Amends 327 IAC 5-2-11.7 concerning Great Lakes system dischargers interim antidegradation implementation procedures for outstanding state resource waters.

Proposed Regulations-Water Quality

  • Adds 327 IAC 16 concerning confined feeding operations.

The above notices may be viewed at http://www.state.in.us/legislative/register/November-1-2000.html

Indiana Environment Online

Upper White River Watershed

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red bar graphic IOWA

Dept. of Natural Resources

Final Regulations-Water Quality

Proposed Regulations-Water Quality

  • Proposed regulations would implement the Onsite Wastewater State Revolving Fund to provide low-interest loans to private individuals needing to update or replace their existing onsite septic systems. Comments were due Oct. 24. See http://www.state.ia.us/epd/wtrsuply/septic.htm

red bar graphic KENTUCKY

Dept. for Envtl. Protection, Division of Water

Public Hearing Notices

Permit Applications

red bar graphic LOUISIANA

Dept. of Envtl. Quality

Proposed Regulations-Air Quality

  • Proposed revisions to fugitive emission requirements. Comments due Dec. 15. 

  • Proposed revisions to contingency standards for VOC emission reductions. Comments due Jan. 8. 

  • Proposed revisions to major source definition for ozone control. Comments due Jan. 8. 

See http://www.deq.state.la.us/planning/regs/addition/2000, http://www.deq.state.la.us/planning/regs/addition/2000/0011pot1.pdf, http://www.deq.state.la.us/planning/regs/addition/2000/0011pot2.pdf, and http://www.deq.state.la.us/planning/regs/addition/2000/0011pot3.pdf

Proposed Regulation

Final Regulations-Stormwater

Settlement Agreement

Permit Applications

Semiannual Regulatory Agenda

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red bar graphic MAINE

Dept. of Envtl. Protection

Final Regulations-Oil Terminals/Pipelines

red bar graphic MARYLAND

Dept. of the Environment

Proposed Regulations-Soil/Groundwater Cleanup Standards

Public Meetings/Hearings

Water Quality Standard-Triennial Review

red bar graphic MASSACHUSETTS

Dept. of Envtl. Protection

Municipal Waste Combustor Material Separation Plans

Enforcement Actions

red bar graphic  MICHIGAN

Dept. of Envtl. Quality

Permitting Calendar

Final Regulations-Air Quality

Permit Applications-Air Quality

 Air Quality Division Newsletter

Surface Water Quality Division Bulletin

Surface Water Quality Division-Draft Regulations

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Pollution Control Agency

Proposed Regulations-Air Quality

Permit Applications, Other Notices

Penalty Assessments

red bar graphic  MISSOURI

Dept. of Natural Resources

Proposed Regulations-Air Quality

  • Proposed revision will add U.S. EPA reference method for sulfuric acid mist. Comments due Feb. 13, 2001; public hearing Feb. 6. 

  • Proposed revisions to definitions in medical/hospital/infectious waste combustor emission standards. Comments due Feb. 13, 2001; public hearing Feb. 6.

See http://mosl.sos.state.mo.us/moreg/2000/v25n22/v25n22.htm

Water Pollution Control-Permit Applications

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Dept. of Envtl. Quality

Public Comment Notices

red bar graphic NEBRASKA

Dept. of Envtl. Quality

Proposed Regulations-Hazardous Waste

Settlement Agreement

Proposed Regulations

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Division of Envtl. Protection

Proposed Regulations

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red bar graphic NEW JERSEY

Dept. of Envtl. Protection

Draft Surface Water Quality Standards

Draft Watershed Management Rules

Current DEP Bulletin (Permit Applications; Proposed Regulations)

red bar graphic NEW MEXICO

Water Quality Control Commission

Proposed Regulations-Liquid Waste Disposal

red bar graphic NEW YORK

Dept. of Envtl. Conservation

Final Regulations-Air Quality

  • California low emission vehicle standards (LEV II) were promulgated. The revisions to Parts 218 and 200.9, NYCRR 6, are available at http://www.dec.state.ny.us

ALJ Rulings

Environmental Notice Bulletin (Permit Applications)

Permit Applications

red bar graphic  NORTH CAROLINA

Environmental Management Commission

Hog Waste Treatment Report

  • Hog waste treatment is the subject of a report issued by Environmental Defense, which calls upon the Commission to phase out hog lagoons and sprayfields at larger farms by 2005. See http://www.hogwatch.org

Final Regulations-Coastal Management

Proposed Regulations-Groundwater Quality

Dept. of Envt. and Natural Resources

Division of Air Quality Penalty Assessments

Division of Air Quality Draft Regulations

DENR Enforcement Data

Water Quality-Basinwide Assessment Reports

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red bar graphic OHIO

Envtl. Protection Agency

OPEA Actions, Notices by County

Public Meetings

Pending Air Permits

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Dept. of Envtl. Quality

Proposed Regulations-Air Quality

Draft Source Water Assessment and Protection Program Document

red bar graphic OREGON

Dept. of Envtl. Quality

Proposed Regulations-Water Quality

Proposed Regulations-Air Quality

Water Quality Permit Applications

Proposed Regulations-General 

Public Notices-Cleanup Remedies

Public Notices-Remedial Actions

red bar graphic PENNSYLVANIA

Dept. of Envtl. Protection

Final General NPDES Permit-CAFO Operations

Final Regulations-Air

NPDES Permit Applications

General Permit Extension-Stormwater

Draft Technical Guidance Documents

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red bar graphic SOUTH CAROLINA

Dept. of Health and Envtl. Control

Permit Application Notices

red bar graphic  TENNESSEE

Dept. of Environment and Conservation

Permit Applications

red bar graphic  TEXAS

Natural Resource Conservation Commission

Air Quality-Houston/Galveston Area

  • TNRCC is expected to promulgate new standards on Dec. 6 and submit them to U.S. EPA by the end of the year. See http://www.tnrcc.state.tx.us

Permit Hearings

Public Hearings Proposed Rules

Sunset Advisory Commission

red bar graphic  UTAH

Dept. of Envtl. Quality

Permit Applications

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Dept. of Envtl. Conservation

Permit Applications

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red bar graphic VIRGINIA

Dept. of Envtl. Quality

Proposed Regulations-Solid Waste Management

Proposed Regulations-Dispute Resolution

Proposed Regulations-TMDLs

Proposed Regulations-VPDES General Permits

RCRA Program Authorization

Public Meeting Notices

red bar graphic  WASHINGTON

Dept. of Ecology

Adopted Regulations

Proposed Regulations

red bar graphic WEST VIRGINIA

Dept. of Envtl. Protection

Public Notice Bulletin (Permit Applications, Proposed Regulations)

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Dept. of Natural Resources

Public Hearing and Meeting Schedule

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

INTERNATIONAL
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red bar graphic GENERAL 

  • United Nations Environmental Program Executive Director Klaus Toepfer said he expects final work at a Dec. 4-9 meeting in Johannesburg on a treaty to reduce or control persistent organic pollutants. A follow-up conference is scheduled for Stockholm next May to open up the treaty for signature. The Worldwatch Institute issued a report, "Why Poision Ourselves? A Precautionary Approach to Synthetic Chemicals," urging incorporation of the precautionary principle into the final treaty. See http://www.worldwatch.org. With the exception of a European Union proposal to add a "general obligations" section to the treaty incorporating the precautionary principle--a proposal not endorsed by the United States--most of the earlier differences between the EU and the U.S. have been compromised away. 

  • The Organization for Economic Cooperation and Development held a meeting in Paris, during which agreements were reached on lethal dose laboratory animal testing guidelines, expansion of the Screening Information Data Sets program, and study of the effects of perfluorooctyl sulfonates.

  • Pope John Paul II spoke out against the use of genetically modified organisms in food. 

  • The International Topical Timber Organization agreed to increase monitoring of tropical forest logging activity.

  • The World Commission on Dams reported that while dams have obviously done much good, they have also contributed to environmental harm. 

  • Fishermen opposed to a tonnage limitation on lobster harvesting stormed the offices of the Charles Darwin Research Station in the Galapagos Islands. 

red bar graphic CLIMATE CHANGE

  • Kyoto Protocol talks in The Hague collapsed in light of disputes between the European Union and the so-called "umbrella group" of the United States, Russia, Canada, Japan, Norway, and Australia over the use of the "carbon sinks" and the role of emission trading. 

  • The first week of the meeting made little headway, with squabbles over procedural matters. The second was consumed by debate over the U.S. proposal promoting the use of sinks, emission credits accumulated through activity that preserves plants and soil that absorb carbon dioxide, in the treaty's Clean Development Mechanism. EU Environment Commissioner said too much time was spent discussing "the repetition of well-known positions."

  • The EU opposed the use of sinks, claiming that little emission reduction would be required of countries with large forest reserves in order to meet domestic reduction targets. 

  • The talks essentially ended with the departure of the U.K. delegation on Nov. 25 (the U.K. had largely sided with a U.S. compromise proposal regarding a cap of the tonnage of carbon that could be attributed to a domestic sink; Germany and several other EU members rejected the deal). 

  • U.S. environmental groups were divided in their assessment of the talks, with some blaming the U.S. for their failure, others pointing to the EU. Some observers, however, including Chairman Jan Pronk of the Netherlands, were hopeful that progress might be made at the next scheduled meeting, set for mid-May 2001 in Bonn. Despite the failure of the talks, the European Commission may proceed with an emissions trading system, and private groups, such as the new http://www.CO2e.com service, are also promoting emissions trading. 

  • Ontario's Environment Ministry proposed Regulation No. 10, which would require tracking of emissions of 358 pollutants claimed to be related to climate change. The proposal is available at http://204.40.253.254/envregistry/013805er.htm

  • Japan reduced greenhouse gas emissions by only 0.1 percent from 1990 through 1999, making it highly unlikely that the 2010 target of a 6 percent reduction from 1990 levels can be met. 

  • EU environmental commissioner Margot Wallstrom said that reliance upon nuclear energy was not a viable way to achieve greenhouse gas emission reductions, either environmentally or with regard to cost. 

  • The Pew Center on Global Climate Change issued a report, "Promoting Meaningful Compliance with Climate Change Commitments." See http://www.pewclimate.org

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red bar graphic ASIA

  • Japan's automobile manufacturers and importers agreed to set up a group, The Promotion Center for Automobile Recycling, to encourage auto recycling.

  • Japan's Ministry of Agriculture, Forestry, and Fisheries admitted that a majority of tested samples of feed-use corn found evidence of unapproved genetically modified material. Japan agreed to use a U.S. Department of Agriculture plan for testing U.S. corn shipments. 

  • The Japanese Environment Agency will seek to reduce diesel fuel emissions from vehicles by prohibiting noncomplying vehicles from operating and by establishing new manufacturer reporting requirements.

  • A court in Japan ruled that the Japanese government and 10 companies are responsible for damages caused by vehicular air pollution in Nagoya. It ordered the defendants to pay damages to local residents and to implement control measures. 

  • Tokyo's municipal government reached agreement with manufacturers and transport companies to achieve the utilization of almost 10,000 new compressed natural gas (CNG) and liquified petroleum fueled vehicles by 2005. Mazda released a new CNG-fueled truck. 

  • Japan's whaling fleet began another "scientific" hunt in waters off Antarctica, with considerable opposition from environmental groups. The groups charge that Japan is seeking to influence developing countries into supporting a rescission of the current moratorium on whale hunting.   

  • Police in Indonesia arrested several fishermen who "blast fished" in a coral reef area. Fish bombing is a common practice there, and arrests have previously been rare.  

  • Pakistan's Environmental Protection Agency is beginning to show muscle with a proposal that conditions new industrial projects to Agency approval through an impact assessment process. The Agency acted after a bone disease linked to excessive industrial releases of fluoride affected hundreds of children in a village near Lahore.

red bar graphic CANADA

  • A three-member tribunal, in an expropriation case brought by S.D. Meyers Inc., concluded that a Canadian ban, in effect between 1995 and 1997, on the export of PCB waste to the United States violated NAFTA.

  • British Columbia will continue its moratorium on oil and natural gas development in sensitive offshore areas.

  • Ontario issued a new regulation that strengthens standards for the management of hazardous waste, including use of a Toxicity Characteristic Leaching Procedure that is more stringent than the one utilized in the United States. 

  • Ontario's Auditor, Erik Peters, issued a report criticizing the Ontario Ministry of Environment for significant staff reductions and cutbacks in the number and quality of inspections. 

  • The Canadian and U.S. government agreed that the International Institute for Sustainable Development could intervene in the ongoing NAFTA Chapter 11 case of Methanex v. United States. There, a Canadian company is suing the U.S. government over a California ban on the gasoline additive MTBE. The intervention is the first by a non-governmental organization in a NAFTA Chapter 11 trade proceeding. 

  • The success of the Liberal party at the polls likely signals little change in course for the Canadian environmental policy. 

red bar graphic AUSTRALIA

  • Transport Minister John Anderson pledged to "strengthen ship safety and protection of the marine environment" after a 600-foot container ship damaged coral reef east of Cairns.

  • Bruce Hobbs of the Minerals and Energy ministry said that Australia must commit to "zero waste" and "zero emissions" policies to prevent significant economic and environmental pressures from adversely affecting the country's living standards. 

red bar graphic LATIN AMERICA

  • Mexican President Vicente Fox appointed Victor Lichtinger, formerly Executive Director of the North American Commission for Environmental Cooperation, as Secretary for Environment and Natural Resources. Lichtinger has worked frequently with ELI on environmental projects. 

  • A study prepared by the Massachusetts Institute of Technology claims that air pollution in Mexico City is responsible for thousands of deaths each year. The study placed particular emphasis upon diesel emissions from older delivery trucks. The City may lower the threshold for the issuance of air pollution warnings, which trigger restrictions on automobile use. 

  • Ecuador gave approval for the construction of a new oil pipeline from the Amazon to the Pacific coast. The project, which was opposed by environmental groups, will run in part through a tropical forest. The Information Secretary said the government and the construction firms would take appropriate steps to minimize harm to the environment. 

red bar graphic EUROPE

  • Environmental groups in Europe withdrew their support for a nonbinding EU Charter for Fundamental Rights, charging that the language voicing support for a "clean and healthy environment" is too vague.
  • Those groups, along with the European Commission, are seeking a modification to the Treaty on European Union to allow environmental legislation to be passed by a majority vote of the Council of Ministers, rather than by unanimous vote.
  • Germany's Federal Radiation Protection Agency gave a permit for the movement of nuclear facility waste from France to Germany.
  • Sweden, upon assuming the European Union presidency in January, will seek to address PVC lead content and chemical safety testing.
  • The European Commission charged Sweden, Ireland, Portugal, Belgium, and Italy with violations of EU Directive 86/278 (Sewage Sludge Used in Agriculture).
  • The European Parliament added two carcinogens and a toxin to Directive 76/769 (Restrictions on the Marketing and Use of Dangerous Substances and Preparations).
  • The U.K. announced that it would reduce the tax on low sulfur fuel by U.S. 3 cents per liter.
  • Several environmental organizations called upon the North-East Atlantic Fisheries Commission to, through use of the "precautionary principle," take action to preserve fish stocks in deep-water areas. See http://www.seas-at-risk.org and http://www.ngo.grida.no/wwfneap
  • The national power company in Iceland is seeking to dam 11 rivers and tributaries, a proposal opposed by environmental groups. All of the electrical output would be dedicated to a proposed aluminium smelter (which is also opposed).
  • France's Council of State ruled that farmers could grow and market corn seed containing genetically modified organisms developed by Novartis (now Syngenta). See http://www.conseil-etat.fr (in French).

  • TotalFinaElf, the French concern, said that it would increase spending on coastal cleanup related to the 1999 Erika tanker spill off the Brittany coast.