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Weekly Update Volume 30, Issue 8

03/13/2000

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

red bar graphic PORT AND WATERWAYS SAFETY ACT (PWSA), OIL POLLUTION ACT (OPA), PREEMPTION:

The U.S. Supreme Court unanimously held that the PWSA preempts at least four of Washington state’s regulations governing oil tanker operations and designs. In Ray v. Atlantic Richfield Co., 435 U.S. 151, 8 ELR 20255 (1978), the Court held that the PWSA and its regulations preempted previous Washington state limitations on tanker pilotage, size, and design. The Court of Appeals in this case concluded that Congress’ passage of the OPA narrowed Ray’s preemptive effect in that OPA Title I’s saving clauses purportedly allowed states to regulate tankers. However, OPA Title I only addresses liability for oil spills, not tanker design or operation. Therefore, under OPA Title I, a state can enact oil spill liability laws, but it cannot regulate tanker operation, design, or manning. Consequently, PWSA preemption is not effected by OPA, and Ray controls. Under Ray, PWSA Title I allows states to regulate ports and waterways if the regulation is local and does not conflict with federal authority. Further, under Ray’s interpretation of PWSA Title II, only the federal government may regulate the design, construction, alteration, repair, operation, equipment, and manning of tankers. As a result, due to some overlap in regulation between PWSA Titles I and II, the Court acknowledged that it may be difficult to determine whether a preemption question is controlled by conflict preemption under Title I or field preemption under Title II. Nonetheless, employing a field preemption analysis, the Court concludes that PWSA Title II and its regulations preempt Washington state’s tanker crew training, English language proficiency, navigation watch, and marine casualty reporting requirements. The Court remanded the remaining state regulations to determine if they are preempted under PWSA Title I or II. United States v. Locke, No. 98-1701 (U.S. Mar. 6, 2000) (28 pp.).

red bar graphic FIFRA, PREEMPTION, LABELING REQUIREMENTS:

The California Supreme Court reversed a state appellate court holding that FIFRA does not preempt state-law failure-to-warn claims. The claims at issue arose when a farmer sued the manufacturer of two pesticides that, when mixed together, damaged the farmer’s crops. In order for the farmer’s failure-to-warn claims to succeed in the wake of Cipollone v. Liggett Group, Inc., 505 U.S. 504 (1992), which held that the Public Health Cigarette Smoking Act preempted state-law failure-to-warn claims, FIFRA’s preemption language must be less sweeping than the cigarette act’s language. Yet there is no significant difference between  the provisions. Similarly, contrary to the state appellate court’s holding, the weight of authority has analyzed FIFRA’s preemption provision in light of Cippolone. Moreover, the state appellate court relied on a pre-Cippolone case since rejected by the federal courts. Further, Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996), does not undermine the conclusion that FIFRA preempts state failure-to-warn claims. Medtronic addressed the Medical Device Amendments of 1976 (MDA), which allows the federal Food and Drug Administration to exempt state regulations from the MDA’s preemptive effect. Congress did not give EPA an analogous role in FIFRA implementation. In addition, EPA’s waiver of the submission of efficacy data, which arguably waives the preemption of state-law claims based on efficacy, is irrelevant because the farmer’s claims are based on EPA-regulated phytotoxicity, not inefficacy. Even if phytotoxicity is included in efficacy, EPA requires and reviews efficacy data if problems arise after initial pesticide registration, and FIFRA sanctions the farmer’s state, not lay juries, to regulate phytotoxicity and efficacy. Last, the case is remanded so that the state appellate court can discuss if FIFRA preempts the farmer’s claims because they are based on inadequacies on the pesticides’ labels. Etcheverry v. Tri-Ag Service, Inc., No. S072524 (Cal. Mar. 2, 2000) (47 pp.).

red bar graphic FEDERAL POWER ACT (FPA), "PUBLIC UTILITY," COMPUTERIZED ELECTRIC POWER MARKETS:

The D.C. Circuit denied a computerized electric power market’s petition to review two FERC orders that asserted jurisdiction over the market as an FPA-regulated public utility. The market accepts bids from buyers and sellers of electric power based on prices set by the market’s computerized non-public algorithm. The FPA §201 definition of public utilities as "facilities for sale" of electric power is open to more than one meaning, and power exchanges, such as the market, did not exist when Congress passed §201. Likewise, the absence of other congressional indicia reveals that Congress did not address whether such exchanges are public utilities. Moreover, FERC’s interpretation of "facilities for sale" as facilities that exercise effective control over power exchange sales is a permissible construction of the FPA. Further, FERC precedent does not limit public utilities to those that take title to power. Similarly, FERC’s statutory interpretation is not inconsistent with FERC precedent concerning power brokers because even though the market is voluntary, the market can set a price different from that set by direct negotiation. Therefore, the market is a de facto third party to a buyer-seller transaction and, thus, its services make it an integral part of the transaction. In addition, the court cannot conclude that FERC’s filing requirements for the market are arbitrary. Automated Power Exchange, Inc. v. Federal Energy Regulatory Commission, No. 98-1415 (D.C. Cir. Mar. 7, 2000) (9 pp.).

red bar graphic FEDERAL POWER ACT (FPA), HYDROELECTRIC PROJECT LICENSING, JURISDICTION:

The D.C. Circuit held that FERC did not err when it granted a license to operate a hydroelectric project to a private electric company instead of a city and over a state environmental agency’s objections. FERC gave the agency’s recommendations on fish entrainment and construction of a fish net due weight as required by FPA §10(j). FERC based its finding that entrainment did not significantly affect the project’s fish populations on the agency’s studies. Moreover, FERC adequately concluded a fish net would not have a significant beneficial effect. Similarly, FERC did not err in denying the city’s license application. Evidence substantially supported FERC’s determination that the city’s application was essentially equal to the company’s. Further, FERC did not unfairly prejudice the city by utilizing the first-to-file tiebreaker to award the license to the company. The tiebreaker does not apply to FPA §15 new license proceedings, but FERC awarded the company’s license in an FPA §15 orphan proceeding not subject to the limitation on new licenses. In addition, although the agency’s petition for review only referenced a FERC rehearing order, the court had jurisdiction to review the FERC license order because in light of the agency’s contemporaneous findings, it was obvious that the agency intended to challenge the license, and FERC was not prejudiced. City of Oconto Falls, Wisconsin v. Federal Energy Regulatory Commission, No. 98-1594 (D.C. Cir. Mar. 7, 2000) (8 pp.).

red bar graphic TAX INJUNCTION ACT (TIA), SOLID WASTE, SUBJECT MATTER JURISDICTION:

The Fourth Circuit affirmed a district court holding that it lacked subject matter jurisdiction under the TIA to review landfill owners’ challenge to a West Virginia law that imposes a solid waste assessment charge on the disposal of solid waste at any solid waste disposal facility. Under the TIA, federal courts shall not address the assessment of any tax under state law where a remedy can be had in state courts. The solid waste assessment charge is a tax. The state legislature and not an administrative agency imposed the charge. The charge is imposed on the persons disposing of the waste and, thus, is paid by those citizens and businesses who pay a collection service fee to have their waste picked up. Further, the statute imposing the charge was passed pursuant to an EPA regulation, 40 C.F.R. pt. 258, that sought to reduce the hazard of contaminated landfills. The aim of the statute imposing the charge is to enable landfill owners who cannot comply with EPA regulations because of financial reasons to close or upgrade their facilities. Therefore, the purpose of the charge serves more than a small section of society by protecting the environmental safety of the state’s groundwater. In addition, the placement of revenue from the charge into a special fund does not render it a fee rather than a tax because the fund benefits the population at large. Valero Terrestrial Corp. v. Caffrey, No. 99-1600 (4th Cir. Mar. 2, 2000) (6 pp.).

red bar graphic NEPA, SUPPLEMENTAL EIS (SEIS), HARD LOOK:

The Ninth Circuit affirmed a district court determination that a state animal and plant inspection service satisfied NEPA’s requirements when it prepared an SEIS for a regulation addressing foreign pest infestation of plants and hardwoods. The service’s original EIS assumed without examination that although individual control measures for foreign plant pest species would be ineffective, collectively they would be effective. In the SEIS, however, the service has taken the requisite hard look at the environmental consequences of the regulation. The service disclosed the reasoning and analysis underlying its conclusion that a combination of mitigation measures will reduce foreign pest infestation. It also identified the regulation’s limitations as mitigation measures of methyl bromide fumigation, heat treatment, and visual inspection. Further, although the regulations will require supplementation as the gaps in regulatory data are filled, the fact that the regulatory scheme must be supplemented as necessary does not detract from the conclusion that the service took a hard look at its actions. Oregon Natural Resources Council v. Animal & Plant Health Inspection Service, No. 99-15398 (9th Cir. Feb. 24, 2000) (8 pp.).

red bar graphic NOERR PENNINGTON DOCTRINE, UNDERGROUND NATURAL GAS STORAGE:

A district court held that the Noerr Pennigton doctrine barred an underground natural gas storage company’s racketeering and antitrust claims against a competitor and a citizens group. The company claimed that its competitor and the group made fraudulent statements to FERC, a state environmental agency, and EPA in separate administrative proceedings, and as a result the company did not receive the requisite government approval to create a gas storage facility. The competitor and the group, however, are entitled to Noerr Pennington immunity for any claims arising out of their activities in the administrative proceedings because their activities in those proceedings were not objectively baseless. The competitor and the group did not initiate the proceedings, and the record supports some of the claims that the competitor made about the safety of the company’s proposed facility. In addition, even if the Noerr Pennington doctrine did not bar the company’s claims, the company failed to state a claim. The company failed to plead any facts demonstrating that the competitor’s and the group’s statements in the proceedings were the proximate cause of its injury. Bath Petroleum v. Market Hub Partners, No. 98-CV-6138 CJS (W.D.N.Y. Feb. 25, 2000) (Siragusa, J.) (40 pp.) (Defendants’ counsel included Alan J. Knauf of Knauf, Craig, Koegel & Shaw LLP in Rochester NY).

red bar graphic REGULATORY TAKINGS, RIPENESS, COASTAL WETLANDS:

The Rhode Island Supreme Court held that the state resources management council’s denial of a landowner’s application to fill 18 acres of coastal wetlands did not constitute a taking entitled to compensation. The landowner’s takings claim was not ripe for review. Although the landowner claimed that his property was taken when he was denied permission to develop a 74-lot subdivision, he never applied for permission to develop such a subdivision. His previous applications for development of the land either sought to fill the wetlands so that he could construct a beach club or did not mention what he intended to do with the land once filled. Therefore, the landowner never received a final decision regarding the application of the regulations to the property at issue. Further, the landowner has not sought permission for any other use of the property that would involve filling less wetlands or that would involve development of non-wetlands portions of the parcel. In addition, the landowner failed to demonstrate a per se taking of the land. The landowner did not demonstrate that he has been deprived of all beneficial and reasonable use of the land, and he had no reasonable investment-backed expectations that he could develop a 74-lot subdivision on the land. Palazzolo v. State, No. 98-333-Appeal (R.I. Feb. 25, 2000) (16 pp.) (State counsel included Michael Rubin of the Rhode Island Department of the Attorney General).

red bar graphic MINING, MINERAL RIGHTS:

An Illinois appellate court held that although an environmental group held certain subsurface ownership rights to a property, a cement company that held the property’s surface rights owned limestone on and under the surface. When the original owner conveyed the property to the company’s predecessor, he reserved the coal and other minerals underlying the property, and the group later acquired a majority interest in these rights. The case must be decided on the language of the grant or reservation, the surrounding circumstances, and the grantor’s intention, if it can be ascertained. There is no evidence of the original owner’s intent beyond the original reservation’s ambiguous language, and the surrounding circumstances of the grant do not resolve the ambiguity. However, under the doctrine of ejusdem generis, limestone is not in the same enumerated class as the coal identified in the reservation. Controlling precedent states that limestone is of an entirely different nature than coal. Limestone is not combustible, and no precedent from any jurisdiction construes the term "minerals" as including limestone. In addition, any ambiguity in the deed must be construed in favor of the company as the successor to the grantee. Save Our Little Vermillion Environment, Inc. v. Illinois Cement Co., No. 3-99-0315 (Ill. App. Ct. Feb. 17, 2000) (4 pp.).

red bar graphic RCRA, USTs, TEMPORARY CLOSURE, CHANGE-IN-SERVICE:

The EPA Environmental Appeals Board held that an oil company violated RCRA when it failed to properly permanently close two USTs that had been temporarily closed for over 12 months. The company temporarily closed the two USTs in May or June of 1991 and did not permanently close them 12 months later as required by 40 C.F.R. §280.70(c). Moreover, the company did not effect a change-in-service of its USTs, which is a regulatory alternative to permanent closure, when it filled its USTs with water. Because the company failed to notify a regulatory authority of its intent to make a change-in-service and because the company failed to conduct a site assessment of the USTs, the company did not meet the first two conditions necessary for a change-in-service. In addition, the company’s alleged reliance on an EPA guidance document in effecting a change-of-service does not substitute for full compliance. Further, the company cannot assert an equitable estoppel claim against the government because it cannot establish affirmative government misconduct in issuing a guidance document summarizing UST regulations. Likewise, the company cannot assert a fair notice defense because the regulations at issue are clear and unambiguous. Last, the board affirmed the assessed penalty of $25,000. In re V-1 Oil Co., RCRA Appeal No. 99-1 (EPA EAB Feb. 25, 2000) (40 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 adopted a fee waiver provision for vehicles certified with "closed" fuel systems and for vehicles certified to the clean-fuel vehicle standards.  65 FR 11898 (3/7/00). 

red bar graphic HAZARDOUS WASTES AND SUBSTANCES:

  • EPA announced that it proposed to approve a request submitted by FMC Corporation for a one-year case-by-case extension of the May 26, 2000, effective date of the RCRA land disposal restrictions for five waste streams generated at its Pocatello, Idaho, facility. 65 FR 12233 (3/8/00). 

  • EPA promulgated regulations that allow large quantity generators of F006 sludges (certain sludges from the treatment of electroplating wastewaters) up to 180 days, or up to 270 days as applicable, to accumulate F006 waste without a hazardous waste storage permit or interim status, provided that these generators recycle the F006 through metals recovery and meet certain conditions.  65 FR 12377 (3/8/00). 
  • EPA entered into a proposed administrative de minimis settlement under CERCLA §122(g)(4) in connection with the Syosset Landfill Superfund site in the Town of Oyster Bay, N.Y. 65 FR 12552 (3/9/00).
  • EPA entered into a proposed administrative settlement under CERCLA §122(h)(1) in connection with a removal action conducted by EPA at 5310 Broadway Avenue, N.E., in Altoona, Iowa. 65 FR 12994 (3/10/00). 

red bar graphic PESTICIDES:

  • EPA announced the availability of the revised risk assessments and related documents for disulfoton, an organophosphate pesticide. 65 FR 12992 (3/10/00). 

red bar graphic SMCRA PROGRAM APPROVALS:

red bar graphic WATER QUALITY:

  • EPA announced the availability of two NPDES general permits for coverage of log transfer facilities operating in Alaska. 65 FR 11999 (3/7/00).
  • EPA proposed a  Class I administrative penalty under CWA §309(g) of $11,000 against the Goyenetche Dairy for violating general discharge requirements for concentrated animal feeding operations, including dairies, within the Santa Ana, Cal., region. 65 FR 12994 (3/10/00). 

red bar graphic WETLANDS:

  • The U.S. Army Corps of Engineers issued 5 new Nationwide Permits (NWPs) and modified 6 existing NWPs to replace NWP 26, which expires on June 5, 2000. The new and modified NWPs authorize many of the same activities that NWP 26 authorized, but they are activity-specific, with terms and conditions to ensure that these activities result in minimal adverse effects on the aquatic environment.  65 FR 12817 (3/9/00). 

red bar graphic DOJ NOTICES OF SETTLEMENT:

  • U.S. v. Flippo & Sons, LLC, No.  3:00-CV-58 (E.D. Va. Feb. 4, 2000) (a CERCLA defendant must pay $35,000 in past U.S. response costs incurred at the HH Burn Pit Superfund site in Hanover County, Va.), 65 FR 12279 (3/8/00);
  • U.S. v. Northrop Grumman Corp., No. CV-00-1070 (E.D.N.Y. Feb. 22, 2000) (settling CERCLA defendants must deposit into interest-bearing escrow accounts $890,000 in reimbursement of EPA's past response costs incurred at the Syosset Landfill site located in the Town of Oyster Bay, N.Y.),   65 FR 12576 (3/9/00);
  • U.S. v. Raymark Industries, Inc., No. 3:97CV00035 (D. Conn. Feb. 18, 2000) (a third-party CERCLA defendant must pay $487,832 in past and future U.S. response costs incurred at certain municipal properties located within the Raymark Industries, Inc., Superfund site in Stratford, Conn., must provide EPA with continuing access to town properties that are part of the site, and must establish a public registry of those municipal and residential properties within the town of Stratford that contain residual hazardous waste that was not removed during EPA or state response actions at these properties), 65 FR 12577 (3/9/00).

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

DOCUMENTS AVAILABLE

  • Close Out Procedures for National Priorities List Sites (OSWER No. 9320.2-09A-P) (EPA 1/3/00) (131 pp.) (ELR Order No. AD-4439)
  • Letter Responding to Superfund Hotline Regarding Superfund Emergency Response and Reportable Quantity Questions (EPA 7/8/93) (9 pp.) (ELR Order No. AD-4440)
  • Letter Responding to Superfund Hotline Regarding Disposal of Mercury-Containing Lamps and PCB-Containing Ballasts (EPA 9/29/94) (5 pp.) (ELR Order No. AD-4441)
  • Letter from EPA Asst. Administrator for Water to the Illinois Environmental Protection Agency Director on EPA's View on the Microbiological Criteria Issue With Regard to Water Quality Standards (EPA 5/10/84) (3 pp.) (ELR Order No. AD-4442)
  • Uncovered Finished Water Reservoirs Guidance Manual (EPA 4/99) (92 pp.) (ELR Order No. AD-4443)
  • Letter from Bob Perciasepe to 50 Governors, State Environmental Commissioners, and Over 100 Native American Organizations Regarding EPA and FDA Policy on Fish Consumption Advisory Levels (EPA 6/26/96) (3 pp.) (ELR Order No. AD-4444)
  • EPA Policy on Land Treatment of Municipal Wastewater (EPA 10/3/77) (4 pp.) (ELR Order No. AD-4445)
  • Clarification of "Instantaneous Maximum" as Applied to Steam Electric Facilities Effluent Limitations (EPA 7/27/92) (2 pp.) (ELR Order No. AD-4446)
  • Guidance for the Determination of Appropriate Methods for the Detection of §313 Water Priority Chemicals (EPA 8/89) (49 pp.) (ELR Order No. AD-4447)
  • Protocol for Developing Nutrient TMDLs - First Edition (EPA 11/99) (137 pp.) (ELR Order No. AD-4448)
  • Drinking Water Advisory: Consumer Acceptability Advice and Health Effects Analysis on Methyl Tertiary-Butyl Ether (MtBE) (EPA 12/97) (48 pp.) (ELR Order No. AD-4449)

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

IN THE STATES

red bar graphic ALABAMA:

Dept. of Envtl. Management

Public Notices–Permit Applications

red bar graphic ALASKA:

Dept. of Envtl. Conservation

Proposed Contingency Plan

  • Proposed Interior Alaska Subarea Oil and Hazardous Substances Contingency Plan. The Plan will include information on emergency response notification and procedures, available resources, and environmentally sensitive areas. Public meetings scheduled for March 29 (Fairbanks) and 30 (Anchorage). Comments due April 30. Details at http://www.akrtt.org/plans.html

Request for Grant Proposals

Valdez Marine Terminal Oil Discharge Prevention/Contingency Plan

Proposed Regulations-Underground Storage Tanks

  • March 20 is the deadline for comment. The proposed revisions concern initial response actions, site cleanup rules, site characterization, soil/groundwater/surface water cleanup levels, treatment facilities, and soil storage and disposal. A guidance document is also being proposed. Details at http://www.state.ak.us/local/akpages/ENV.CONSERV/dec_cal.htm

red bar graphic ARIZONA:

Dept. of Envtl. Quality

Air Quality Division-Proposed General Permit

red bar graphic CALIFORNIA:

Dept. of Toxic Substances Control

Emergency Regulations

  • Universal Waste Management regulations effective March 6, 2000. The regulations supersede the Department’s previous policy authorizing disposal of up to 25 fluorescent tubes per day at any one location in non-hazardous trash. For details, see www.dtsc.ca.gov/pdf2html.html

Draft Negative Declaration

  • For Site 17 Source-Zone Interim Remedial Action at Beale Air Force Base. Public comment period ends March 29. Details at http://www.dtsc.ca.gov

Draft Closure Plan

  • For hazardous waste storage unit located at former Fort Ord. Comment period ends March 30. Details at http://www.dtsc.ca.gov

Water Resources Control Board

UST Cleanup Priority List

red bar graphic COLORADO:

Air Quality Control Commission

Proposed Revisions-Reg. No. 17

  • Proposed revisions to the regulations concerning the Clean Fuel Fleet Program, which would allow the Department of Public Health and Environment to grant credits under the Environmental Leadership Program for use in complying with the vehicle purchase requirements, and to the SIP for Carbon Monoxide for the Denver area, which would remove the Clean Fuel Fleet Program from the federally-enforceable SIP, are scheduled for a public hearing on March 16. Details at http://www.cdphe.state.co.us/op/notreg17.html

Proposed Revisions-Reg. No. 12

  • Proposed revisions to the diesel inspection program standards regarding areas outside the Denver non-attainment area will be discussed at a public hearing on March 16. Details at http://www.cdphe.state.co.us/op/notreg12.html

Pagosa Springs PM-10 Nonattainment Area-Redesignation

Telluride PM-10 Nonattainment Area-Redesignation

Pikes Peak Area–Transportation Improvement Plan

North Front Range–Transportation Improvement Plan

RVP Waiver Request

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

Water Quality Control Commission

Proposed Regulations

  • Proposed repeal of subsection 61.3(1)(d) of the Discharge Permit System Regulations, Reg. #61, regarding applicability of the housed commercial swine feeding operation permit requirements to certain facilities. Hearing on March 13. Details at http://www.cdphe.state.co.us/wq/wqcc/wqrmnot.html

red bar graphic FLORIDA:

Dept. of Envtl. Protection

Proposed Regulations

  • Environmental Resource Permitting-Rule 62-330.200-Proposed revision of Figure 12.2.8-1. Hearing on March 8 at St. Johns River Water Mgmt. District, Palatka.
  • Mitigation Banking-Rule 62-342.600-Proposed revision of figure 3, entitled "Regional Watersheds of the SJRWMD for Mitigation Banks." Hearing scheduled for March 16.

Office of Coastal and Aquatic Managed Areas

  • Public meeting March 9 in St. Augustine regarding the Guana Tolomato Matanzas Natural Estuarine Research Reserve.
  • Lake Okeechobee Technical Advisory Committee–Meeting March 15-16 regarding setting of TMDL for total phosphorus.

TMDL Program Policy Advisory Committee

  • Meeting March 24 in Tallahassee.

Upper Suwannee Region Acquisition and Management Advisory Team

  • Meeting March 17 to discuss progress in land acquisition.

St. Johns River Water Management District

Proposed Regulations-Flows and Levels

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

South Florida Water Management District

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

red bar graphic GEORGIA:

Dept. of Natural Resources

Proposed Regulations-Water Quality

Air Permit Applications

red bar graphic ILLINOIS:

Envtl. Protection Agency

Permit Applications

  • Calumet Energy Team, LLC, Chicago, for air permit for a natural gas power plant. Comments due May 11; hearing scheduled for April 26.
  • Indeck-Libertyville, LLC, for construction of a natural gas fired power plant in Libertyville. Comments due May 10; public hearing on April 25.
  • Silvercreek Constr. Co., Knox County, for NPDES permit. Details at http://www.epa.state.il.us/public-notices/2000/2000-04-06-silvercreek.html
  • Holland Energy, Shelby County, for PSD permit for electrical generation facility. Written comments due by March 28; hearing scheduled for March 13.
  • Reliant Energy Aurora, L.P., for construction of a natural gas-fired electrical generating facility in Aurora. Comments due April 17; hearing scheduled for April 3.

red bar graphic KENTUCKY:

Natural Res. & Envtl. Protection Cabinet

Emergency Regulation; Notice of Intent to Promulgate Permanent Rule–Confined Animal Feeding Operations

  • Gov. Patton signed, on Feb. 14, an emergency regulation (401 KAR 5:072E) creating siting and other requirements for confined animal feeding operations (as defined in 401 KAR 5:002) involving 1,000 or more animal units. The Cabinet issued a Notice of Intent, with hearings scheduled for March 28 (Frankfort) and 30 (Madisonville). The draft regulations and NOI were published in the March 1 issue of the Administrative Register. For details, see http://water.nr.state.ky.us/dow/regs.htm

red bar graphic MARYLAND:

Dept. of the Environment

Public Hearings

red bar graphic MICHIGAN:

Dept. of Envtl. Quality

Corporate Clean Citizen Designation

Solid Waste Importation Task Force

Management Team Public Meeting

Proposed Regulations-Water Quality Trading

Proposed Regulations-Wetlands

Childrens’ Health Impact Report Released

Permit Applications-Air

  • Michigan Consolidated Gas Company, for operation of a natural gas storage and transfer facility. Comments due March 28.
  • Mercury Exploration Company, Gaylord, for renewable operating permit for operation of a sour gas flare. Comments due March 29.
  • Material Control, Inc., Sanilac County, for renewable operating permit for operation of equipment used to manufacture fluid control devices. Comments due March 29.
  • Holnam Inc., for air permits for existing cement kilns in Dundee. Comments due March 21.
  • Michigan Paperboard Company, Battle Creek, for renewable operating permit. Comments due March 17.
  • Muskegon Development Company, Clare County, for renewable operating permit for crude oil production. Comments due March 29.
  • For details, see http://www.deq.state.mi.us/aqd

Exemptions from Permit to Install Requirement

red bar graphic MINNESOTA:

Pollution Control Agency:

Proposed Regulations–Animal Feedlots

Permit Applications

  • For air permit to U.S. Steel Taconite Facility, Mountain Iron; comments due April 7.
  • For air permit to Pechiney Plastic Packaging, Inc., Minneapolis. Comments due April 10.
  • For air permit to Sunrise Fiberglass Corp., Wyoming. Comments due April 5.
  • For air permit to Great River Energy, Pleasant Valley Township. Comments due April 5.
  • For reissued NPDES permit to NSP Prairie Island Nuclear Generating Plant. Comments due April 3.
  • For permit modification to 3M Cottage Grove. Comments due April 17.
  • For NDPES permit to St. George Community Wastewater Treatment Facility. Comments due March 27.
  • For NPDES permits to City of Cokato, City of Howard, and to Southdale Shopping Center (Edina). Comments due March 20.
  • For NDPES permit to City of Bethel. Comments due March 15.
  • For NDPES permit to City of Ruthton. Comments due March 13.
  • For indirect source permit for Minn. Dept. of Transportation. Comments due March 14.
  • For details regarding the permit applications, see http://data.pca.state.mn.us/cgi-bin/whatsnew.pl

Penalty Assessment

red bar graphic NEW YORK:

Dept. of Envtl. Conservation

Environmental Notice Bulletin

Notice of Complete Application/Draft Permit

red bar graphic OKLAHOMA:

Dept. of Envtl. Quality

Draft Source Water Assessment and Protection Program Document

red bar graphic OREGON:

Dept. of Envtl. Quality

Title V Permit Fees-Increase Hearing

NESHAP Annual Rule Updates-Hearing

Enhanced Auto Emission Test Low Income Waiver Proposal

red bar graphic PENNSYLVANIA:

Dept. of Envtl. Protection

Proposal-Interstate Ozone Transport Reduction

  • DEP has reopened the comment period for draft regulatory revisions to the Interstate Ozone Transport Reduction Program. DEP seeks to add Section 145.100, Applicability to Upwind States. This section would make the nitrogen oxides trading program applicable to facilities in other states that significantly contribute to ozone nonattainment in the Commonwealth. Specifically, sources in Ohio, West Virginia, Virginia, Maryland, Delaware, New Jersey, New York, North Carolina and Washington D.C. would be included in the regulatory program. Three public hearings, on March 22 (Pittsburgh), 23 (Conshohocken), and 24 (Harrisburg), have been scheduled. A background paper, which addresses anticipated Commerce Clause concerns, is available from Wick Havens (Havens.Wick@dep.state.pa.us). Written comments are due by March 27.

Proposed Regulations-Universal Waste

Safe Fill Policy

  • Draft available for comment through May 10.

Draft Technical Guidance Documents

red bar graphic SOUTH CAROLINA:

Dept. of Health and Envtl. Control

Proposed Regulations-Air

  • Updated NESHAP standards to conform to U.S. EPA revisions, through incorporation by reference. Comments due by March 27.

red bar graphic TEXAS:

Natural Resource Conservation Commission

Proposed Regulations

  • Proposed 30 TAC Chapter 230, Groundwater Availability Certification for Platting. Proposal is intended to implement the provisions of Senate Bill 1323. Written comments due March 13. Details at http://www.tnrcc.state.tx.us/oprd/hearings/99028230.html
  • Proposed revisions to 30 TAC Chapter 113, National Emission Standards for Hazardous Air Pollutants for Source Categories, to incorporate by reference 38 new and amended MACT standards. Public hearing scheduled for March 20; written comments due March 27. Details at http://www.tnrcc.state.tx.us/oprd/hearings/99082113.html
  • Public hearing on March 21 regarding possible revisions to 30 TAC Chapter 307, Surface Water Quality Standards; written comments due March 31. Details at http://www.tnrcc.state.tx.us/oprd/hearings/98055307.html
  • Proposed revisions to 30 TAC Chapter 113, Subchapters A and D, and to the State SIP, regarding control of emissions from hospital/medical/infectious waste incinerators. Public hearing on March 21; written comments due March 27. Details at http://www.tnrcc.state.tx.us/oprd/hearings/98012113.html
  • Proposed revisions to 30 TAC Chapter 114 and the State SIP, requiring volatility controls on gasoline in the 95-county East Texas Regional Control Zone, removal of sulfur requirements, registration of gasoline producers and importers, and to revise enforcement provisions. Public hearings on March 22 (Longview) and 23 (Austin); written comments due March 27. For details, see http://www.tnrcc.state.tx.us/oprd/hearings/00002114.html
  • Proposed revisions to 30 TAC Chapter 104 to delete rules allowing companies and bond issuing authorities to apply for certification that certain property or equipment qualifies as a "control facility"; language is not necessary due to deletion of federal tax bond program. Public hearing April 11; comments due April 17. Details at http://www.tnrcc.state.tx.us/oprd/hearings/99079104.html
  • Proposed revisions to 30 TAC Chapter 122 to incorporate recent federal revisions to acid rain regulations. Hearing on April 13; comments due April 13. Details at http://www.tnrcc.state.tx.us/oprd/hearings/99014122.html

red bar graphic WISCONSIN:

Dept. of Natural Resources

Proposed Regulations-Water Quality

  • Proposed revisions to nonpoint pollution rules. Existing rules that would be revised are NR 120, NR 151, NR 152, NR 153, NR 154, NR 216, and NR 243. A series of public meetings have been scheduled for March 13-28. For further information, see http://www.dnr.state.wi.us/org/caer/ce/news/on/index.htm