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Weekly Update Volume 31, Issue 24

08/27/2001

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

red bar graphic   CERCLA, CONTRIBUTION, ALLOCATION OF LIABILITY:


The First Circuit affirmed, with one exception, a district court decision that entered consent decrees formalizing the settlement of several PRPs and that entered a declaratory judgment holding other PRPs liable for response costs at a Rhode Island CERCLA site. The district court had jurisdiction to approve the consent decrees even though the settlements included parties not sued by the United States because unpleaded claims are allowed as part of consent decrees. Moreover, the consent decrees were procedurally and substantively fair and were reasonable in light of their role in expediting remediation work, the government's substantial cost recovery, and the strength of the cases against the PRPs. Further, the decrees are faithful to CERCLA's purposes even though the nonsettling PRPs may bear disproportionate liability due to the bar on seeking contribution from settling PRPs. The consequence of nonsettlers bearing disproportionate liability is consistent with CERCLA's encouragement of early settlement. In addition, the district court did not err in its declaratory judgment when it found the nonsettling PRPs liable for response costs at the site. Since evidence in the record supports the district court's factual findings and inferences, they are not clearly erroneous and cannot be overturned. Similarly, the district court did not err in admitting and crediting the deposition testimony of an ill witness who received payment for his testimony and did not err in excluding a chart that one PRP prepared for the testimony of that PRP's corporate designee. Additionally, in determining the quantity and hazardous quality of waste disposed of by the nonsettling PRPs, the district court drew a reasonable inference based on the evidence, which supports the finding that each nonsettling PRP deposited waste and that the waste likely contained hazardous substances found at the site in excess of background levels. Moreover, CERCLA permitted the district court to issue a declaratory judgment even though no response costs had yet been incurred because CERCLA §113(g)(2) allows for declaratory relief and applies to contribution actions for both past and future response costs. Further, the district court properly imposed successor-in-interest liability against two companies for waste disposed of by two PRPs. The district court also properly held that a waste hauler was not liable under CERCLA as a transporter or as an arranger and that a city was not liable as an arranger. However, the district court improperly explained its decision to hold the primary PRP responsible for $6 million of the government's response costs, and, therefore, the case was remanded for clarification of the issue. United States v. Davis, Nos. 00-1234 et al. (1st Cir. Aug. 17, 2001) (53 pp.).

red bar graphic  CERCLA, CONTRIBUTION:

The Fifth Circuit affirmed a district court holding that a current owner of contaminated property could not seek CERCLA §113 contribution against a previous owner of the property unless the current owner had incurred or at least faced liability under a CERCLA §106 administrative abatement action or a CERCLA §107 cost recovery action. The plain language of CERCLA §113(f)(1) requires a party seeking contribution to be or to have been a defendant in a §106 or §107 action. Although §113(f)(1) states that any person may seek contribution during or following a §106 or §107 action, the word "may" establishes an exclusive cause of action and means " shall" or " must." Likewise, the CERCLA §113(f)(1) savings clause, which states that nothing in §113(f) shall diminish the right of any person to bring a contribution action in the absence of a §106 or §107 action, does not allow contribution suits regardless of whether the parties are defendants in a §106 or §107 action. The §113(f) savings clause merely states that the statute does not affect a party's ability to bring contribution actions based on state law. A contrary interpretation would impermissibly nullify that part of §113(f)(1) that requires a party seeking contribution  to face a §106 or §107 action. Moreover, the legislative history of CERCLA reinforces the analysis that parties found liable under §106 or §107 have a right to contribution. In addition, the majority of the courts addressing §113(f)(1) have held that a §106 or §107 action must be pending or adjudicated for a party to seek contribution. Therefore, because the current owner conceded that it did not file its §113(f)(1) contribution claim during or following a §106 or §107 action, the district court properly dismissed the current owner's contribution action against the previous owner. Aviall Services Inc. v. Cooper Industries Inc., No. 00-10197 (5th Cir. Aug. 14, 2001) (18 pp.).

red bar graphic  CWA, WETLANDS, DEEP RIPPING:

The Ninth Circuit affirmed a district court's holding that a farmer violated the CWA by deep ripping protected wetlands swales, but reversed the district court's holding that the farmer violated the Act with respect to isolated vernal pools. Deep-ripping is an agricultural procedure in which four- to seven-foot long metal prongs are dragged through soil behind a tractor or bulldozer. The farmer used deep-ripping to convert his property from a cattle ranch to orchards and vineyards. In doing so, the U.S. Army Corps of Engineers and EPA found that the farmer deep ripped wetlands and issued an administrative order requiring him to stop. The farmer challenged the authority of the Corps and EPA to regulate deep ripping. The district court held that the CWA applies to deep ripping and imposed a civil penalty of $500,000 and required the farmer to restore four acres of wetlands. The farmer appealed. Deep ripping, when undertaken in protected wetlands, can constitute a CWA §301(a) prohibited discharge of a pollutant into a wetland. Although deep ripping redeposits materials originally present in the wetland, activities that destroy the ecology of a wetland are not immune from the CWA because they do not introduce material brought in from somewhere else. By deep ripping a protected wetland, the farmer poked a hole in the bottom layer of the wetland, thereby allowing water that was trapped in the wetland to drain out. No new material was added to the wetland, but a pollutant was added when the intact soil holding the wetland in place was wrenched up, moved, and redeposited. Likewise, a tractor engaged in deep ripping qualifies as a CWA point source. Moreover, the farmer does not qualify for the CWA §404 farming exception to the CWA because activities that convert wetlands into a use to which it was not previously subject do not qualify for the exception. The farmer's converting ranch land into orchards and vineyards clearly does not fall within the exception. Further, there is ample evidence that the farmer conducted deep ripping in protected wetlands. However, the farmer's violations for deep ripping in isolated vernal pools must be reversed because under Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, 531 U.S. 159, 31 ELR 20382 (2001), CWA jurisdiction no longer extends to isolated wetlands such as vernal pools. In addition, although the district court properly calculated the penalty on a per violation basis, the penalty must be remanded for recalculation because the original calculation included penalties for discharges to vernal pools over which the Corps and EPA no longer have jurisdiction. Borden Ranch Partnership v. United States Army Corps of Engineers, No. 00-15700 (9th Cir. Aug. 15, 2001) (21 pp.).

red bar graphic  SDWA, GROUNDWATER CONTAMINATION:

The Third Circuit vacated an EPA SDWA emergency order requiring a fertilizer manufacturer to engage in the long-term clean up of an aquifer contaminated with ammonia from the manufacturer's plant. Because the contamination allegedly posed a threat to a city's drinking water, EPA initially ordered the manufacturer to reduce the ammonia to background levels. The manufacturer objected and recommended that a technical committee of all interested parties be formed to review the issue and suggest a remedy. EPA removed the first order and empaneled a committee. The committee issued a final report recommending that the ammonia contamination be captured through pumping and that three other methods be used to supplement the primary remedy of capture. EPA adopted the committee's report and issued an order requiring the manufacturer to engage in long-term cleanup that will reduce ammonia levels in the capture zone to 1.2 mg/l. The manufacturer objected and filed a petition for review challenging EPA's authority under the SDWA to issue the order. EPA failed to provide a rational basis for its determination that a cleanup standard of 1.2 mg/l is necessary to protect the health of those using the city's drinking water system. EPA relied on the committee report in setting the standard, but the committee conducted no technical study determining the maximum level of ammonia that the drinking water system could handle without jeopardizing public health. With no evidence that a technical study was performed, EPA arbitrarily and capriciously selected the 1.2 mg/l standard. In addition, EPA failed to provide a rational basis for its finding that remediation of the aquifer was necessary to protect the public health. In making its public health determination, EPA relied on a conclusion in the committee report, but the committee report's conclusion is not rationally based on the facts concerning ammonia contamination in the aquifer or on the availability of remedies to protect the public health. In fact, the conclusion and the selected remedy apparently were based on the local drinking water board's opposition to other approaches. W.R. Grace & Co. v. United States Environmental Protection Agency, Nos. 99-5662, 00-3302 (3d Cir. Aug. 10, 2001) (21 pp.).

red bar graphic  WATER RIGHTS, INCOME TAX, CAPITAL GAIN:

The Ninth Circuit reversed a tax court ruling that property owners could not allocate any of the cost basis in their farmland to the sale of water rights appurtenant to the land. The owners purchased the land when it had no water rights, but the land was within the boundaries of an irrigation district that was eligible to receive water rights under the Central Arizona Project. Eventually, the owners obtained water rights, and 10 years later the irrigation district allowed the sale of water rights to the government without an accompanying sale of the land. The owners sold their water rights and claimed the sale as a capital gain in their tax return, but they attempted to offset the gain by the portion of the land's original purchase price that they claimed they paid for the expectation of water rights. The Internal Revenue Service (IRS) declared the water rights' full cost to be the owners' capital gain, and the tax court held that the owners could not apply any of their tax basis in the land to the sale of the water rights because they had purchased the land before acquiring the water rights. However, the tax court's holding would create a bright-line rule under which a taxpayer could never apportion any cost basis in land to the sale of appurtenant water rights not fully vested in the land at the time of the purchase, even though in practical economic terms that expectation has a real economic value at purchase. This rule would produce odd consequences, could conflict with existing circuit precedent that allows a taxpayer to attribute some of an original cost basis to items of speculative prospective value, and is inconsistent with an IRS ruling regarding expectation value. Therefore, where a purchaser pays a premium for land based on a realistic expectation that water rights will attach to that land in the future, the purchaser may claim a cost basis equal to the premium paid on the sale of the later-acquired water rights. Thus, if the owners paid a premium for the purchase of their land due to the expectation that they would receive water rights, they should be able to attribute some of that premium to the land's cost basis. However, the amount of the water rights sale that should be applied remains in question because of the difficulty of determining the appropriate cost basis. On remand, the tax court must determine what portion of the land's cost may have been a premium paid for water rights later acquired or whether it is impracticable or impossible to determine the premium. Gladden v. Commissioner of Internal Revenue, No. 00-70081 (9th Cir. Aug. 20, 2001) (10 pp.).

red bar graphic  NATIVE AMERICAN LANDS, INDIAN MINERAL LEASING ACT, FIDUCIARY TRUST:

The Federal Circuit reversed a Court of Federal Claims decision holding that even though the United States had breached a fiduciary obligation to a Native American tribe, the United States did not have a trust relationship with the tribe that rendered the breach actionable and subject to monetary damages. In 1964, the tribe entered into a lease agreement with a mining company for the mining of coal on the tribe's land. The agreement provided for a royalty that could be readjusted after 20 years and with the DOI's approval. After 20 years, the tribe and the company attempted to negotiate a new royalty rate, but no agreement was reached and the tribe asked the DOI to resolve the issue. The DOI increased the royalty rate from 2% of gross proceeds to 20%, and the mining company appealed to the Board of Indian Appeals, which affirmed the rate but did not inform the tribe of its decision. Subsequently, the Secretary of the Interior ordered the decision withdrawn, urged settlement, and secretly met with the company. The tribe agreed to a rate of 12.5%, but it eventually learned of the board's decision and sued the federal government for breach of fiduciary duty. The Court of Federal Claims held that there was no trust relationship between the tribe and the federal government. However, the test of the government's fiduciary responsibility is whether the DOI, rather than the tribe, has control or supervision over the mineral leasing program, even if the government has less than total control. It is quite clear that the Indian Mineral Leasing Act and its regulations assign to the Secretary of the Interior and other government officials the authorization, supervision, and control of Native American mineral leasing activities, including those of the tribe. In fact, the Act and its regulations leave no significant authority in the hands of the tribes whose reservation land contains minerals. Thus, there is a trust relationship between the United States and the tribe, and the United States breached its fiduciary trust duties by suppressing the board's decision and acting to benefit the mining company to the detriment of the tribe. Such breach is subject to remedy by the assessment of damages. The case, therefore, was reversed and remanded for a determination of damages. Navajo Nation v. United States, No. 00-5086 (Fed. Cir. Aug. 10, 2001) (27 pp.).

red bar graphic  NATIVE AMERICAN LANDS, QUIET TITLE ACT (QTA), JURISDICTION:

The Eighth Circuit held that a district court properly granted summary judgment to a state and private landowners that a Native American tribe sued under the QTA in an effort to assert ownership of a North Dakota lake, but improperly granted summary judgment to the federal government in the same suit. The tribe claimed that an 1867 treaty required the federal government to hold title to the lake in trust for the tribe. The federal government claimed that it conveyed title to the lake to the state and that it reacquired partial title in 1971 in order to construct a public works project. The district court should have dismissed the tribe's claim against the federal government for lack of jurisdiction rather than entering summary judgment. The tribe's QTA action against the federal government is barred by the Act's 12-year statute of limitations. The tribe knew or should have known of the federal government's claim to the lake when the government reacquired portions of the lake in 1971, but it did not file its actions until 1986. Moreover, a DOI associate solicitor's memorandum, which in 1976 stated that the tribe held title to the lake, did not constitute abandonment of the federal government's claim to the lake that would allow the tribe to measure the QTA statute of limitations from a later date. The federal government cannot abandon property without congressional authorization, and Congress never abandoned the 1971 claim. Likewise, the solicitor lacked authority to bond the government, the memo did not have the force of law, the government never adopted the memo or acted in a manner consistent with it, and the law-of-the case doctrine does not apply to the memo. Further, despite the tribe's claim that the federal government claimed different portions of the lake at different times, the QTA statute of limitations cannot be applied on a tract-by-tract basis, especially since the tribe's complaint avers that the government holds title to all of the lake in trust for the tribe. The district court, however, properly dismissed the tribe's claims against the state and private landowners due to the tribe's inability to join the federal government. When the government claims an interest in land that squarely conflicts with the interest of a tribe, the government's presence in the litigation is nearly always required to assure effective adjudication. Spirit Lake Tribe v. North Dakota, No. 00-1819 (8th Cir. Aug. 17, 2001) ( 29 pp.).

red bar graphic  QUIET TITLE, CONTRACTS, EMERGENCY LOW INCOME HOUSING PRESERVATION ACT (ELIHPA):

The Ninth Circuit reversed a district court decision that barred the owner of a low-income housing project in Idaho from bringing a quiet title action against the United States concerning the housing project property, which is subject to a government loan. The owner entered a loan contract with the Rural Housing Service (RHS) in 1981 to build the housing project, and the contract allowed prepayments at any time. Congress enacted the ELIHPA in 1987 to discourage housing project owners from prepaying loans and removing low-income housing from the market. The ELIHAPA imposed elaborate requirements for prepayment of loans extended between 1979 and 1989. By 1997, the government had accepted prepayment of most of the owner's loan without requiring ELIHPA compliance, but the RHS refused to accept the owner's final payment and required compliance with ELIHPA's prepayment requirements. The owner subsequently sought to quiet title in the project's property, but the district court held that the unmistakability doctrine, which retains federal sovereign power under all government contracts unless surrendered in unmistakable terms, barred the owner from any remedy under its contract with the government. However, the owner seeks relief under 28 U.S.C. §2410, which waives sovereign immunity for civil actions against the government to quiet title to real property on which the government has a mortgage or lien, and the owner has properly framed its claim as such. Further, the fact that the claim is partially based in contract does not bar the owner's action against the government under §2410. In addition, when the government is acting as a private party, the unmistakability doctrine does not apply. Here, the government was not acting in a sovereign capacity when it enacted the ELIHPA and altered its contract with the owner. The ELIHPA prepayment provisions constituted a targeted piece of legislation intended to relieve the government from onerous contractual provisions. In fact, the ELIHPA prepayment restrictions acted as a partial repudiation of the government's obligation to allow prepayment. To prevent enforcement of these private contracts would give the government powers that private contracting parties lack, and the government cannot exercise its sovereign power to modify its contracts with private parties. Thus, the unmistakability doctrine does not apply, and the owner can seek a declaration quieting title to the property on remand. Kimberly Associates v. United States, No. 99-35188 (9th Cir. Aug. 17, 2001) (13 pp.).

  red bar graphic  BANKRUPTCY LAW, LIENS, AUTOMATIC STAY:

The First Circuit held that Massachusetts' environmental superlien statute, which allows the Commonwealth to place a priority lien on property after spending money assessing or cleaning up a polluted tract of land, evades the Bankruptcy Code's automatic stay provision. The case arose after Massachusetts sought to place a lien against a debtor's property to secure present and future cleanup interests. The automatic stay provision gives debtors breathing room by stopping collection efforts in their tracks and permitting their resumption when the stay is lifted by the bankruptcy court or dissolved by operation of law. The automatic stay, however, is not absolute. To fall under the stay's exception, there must be an act to perfect an interest in property under circumstances in which the perfection-authorizing statute fits within the contours of Bankruptcy Code §546(b)(1)(A). Here, the Commonwealth had an interest in the property at the time the debtor filed its bankruptcy petition. The debtor was liable to the Commonwealth for past and future cleanup costs, the Commonwealth had a present right to record a lien on the property, and the Commonwealth set that process in motion by notifying the debtor of its intentions and by participating vigorously in the administrative hearing. Further, Massachusetts' environmental superlien statute qualifies as an act to perfect. When the Commonwealth takes the step of recording under the environmental superlien statute, that act both creates and perfects its lien. Last, the statute satisfies Bankruptcy Code §546(b)(1)(A) because the law applies generally, it allows creditors to perfect an interest in property, and such perfection is effective against previously acquired rights in the property. Therefore, the Massachusetts environmental superlien statute falls within the exception to the Bankruptcy Code's automatic stay provision. 229 Main Street Ltd. Partnership v. Massachusetts Department of Environmental Protection, No. 00-2236 (1st Cir. Aug. 22, 2001) (31 pp.).

red bar graphic  INSURANCE, CANCELLATION, NOTICE:

The Third Circuit held that under Pennsylvania law a surface and underground coal mining general liability insurance carrier has no duty to notify the Pennsylvania Department of Environmental Protection (DEP) prior to canceling an insurance policy unless a notification provision is included in the policy. The case arose as a result of an action against a mining company brought by the parents of a woman who was pushed to her death through an open shaft in the company's mine. The company's insurance carrier argued that is was not obligated to defend the company or to pay for any recovery because the policy was cancelled. The lower court disagreed and held that the policy could not effectively be cancelled until the DEP was notified. The regulations at issue, however, do not require an insurer to notify the DEP to effect a cancellation of a mining insurance policy. Rather, the regulations require that policies contain notification riders. Further, the regulations speak to the obligations of permittees and permit applicants, not to the obligations of insurers. Therefore, because the insurance carrier canceled the policy in accordance with the policy's cancellation clauses, the lower court decision was reversed. Acceptance Insurance Co. v. Sloan, No. 00-2423 (3d Cir. Aug. 22, 2001) (10 pp.).

red bar graphic  FISHERIES, COMMERCIAL FISHING RIGHTS, AMERICAN FISHERIES ACT:

The Ninth Circuit affirmed a district court dismissal of individuals' in rem class action in admiralty against a fishing vessel that took wild fish pursuant to an allegedly invalid certificate of fishery endorsement issued by the U.S. Coast Guard. The Coast Guard issued the vessel a certificate in 1986, and 10 years later learned that the certificate might not be valid because the contract to purchase the vessel had not been finalized before a deadline for qualification as a domestic vessel. The Coast Guard issued the vessel a notice of intent to cancel its certificate, but before the final cancellation, the U.S. Congress enacted the American Fisheries Act, which, among other things, exempted the vessel from the condition that formed the basis of the Coast Guard's intent to cancel. Thereafter, the vessel continued to fish, but the individuals commenced an admiralty action seeking the conversion of the wild fish the vessel captured during the 10 years during which it operated on an allegedly invalid certificate. However, throughout those 10 years, the vessel held a Coast Guard certificate, and such a certificate is conclusive evidence of qualification to be employed in the fishing trade. The individuals' suit is a veiled attack upon the certificate. The fish were wild and were not owned by the individuals when they were taken by the vessel. Rather, the fish were under the legal control of the United States, which issued the vessel a certificate authorizing it to take fish. When a vessel has such a certificate, no private action is available to attack its taking of fish. The Coast Guard can attack improperly issued certificates and preclude their future use, but here that recourse ended when Congress passed the American Fisheries Act. Myers v. American Triumph F/V, No. 00-35157 (9th Cir. Aug. 13, 2001) (8 pp.).

red bar graphic  ESA, ARKANSAS RIVER SHINER, ATTORNEYS FEES:

The Tenth Circuit upheld a district court holding that an environmental group's lawsuit was not causally linked to the DOI's final agency action on the Arkansas River shiner and, therefore, the group could not recover attorneys fees. The environmental group argued that the chronology of events leading to final agency action on the shiner, standing alone, raised the presumption that its lawsuit was the catalyst for the DOI's final action. The DOI, however, supplemented the environmental group's chronology with evidence that work on listing the shiner began well before the group filed its lawsuit and that the listing timetable was not altered or accelerated in response to the group's lawsuit. The DOI's assertion that action was being taken on the shiner well before the environmental group filed its lawsuit was corroborated by the public notice published in the Federal Register, which reopened the public comment period and allowed additional comments to be submitted. Additionally, a memorandum written after the environmental group gave notice to the DOI of its intent to sue, but before the group commenced the lawsuit, suggested that the timetable on listing the shiner was not accelerated in response to the group's lawsuit. Therefore, viewing the evidence as a whole, the court cannot say that the district court committed clear error when it concluded that final agency action on the shiner was not causally linked to the environmental group's lawsuit. Center for Biological Diversity v. Norton, No. 00-2162 (10th Cir. Aug. 21, 2001) (6 pp.).

red bar graphic  NEPA, WENDELL H. FORD AVIATION INVESTMENT AND REFORM ACT FOR THE 21ST CENTURY (AIR21), TAKE-OFF AND LANDING SLOTS:

The Second Circuit held that the Secretary of Transportation did not violate NEPA or AIR21 in granting take-off and landing slots to airlines servicing New York's Kennedy and LaGuardia Airports without first conducting environmental review. AIR21's nondiscretionary mandates and its imposition of short deadlines relieves the Secretary from having to comply with NEPA. Air21 §41716, which applies to the New York airports, states that the Secretary shall grant the slots, provided that the applicant carrier satisfies the conditions listed in the section. It, therefore, provides objective standards that do not contemplate the exercise of judgment or discretion. Although §41715(c) may allow for the exercise of discretion in granting the slots, the city waived or forfeited any argument based on the subsection because the city failed at any point in the proceeding to discuss it. Additionally, §41718's exempting the Secretary from filing an EIS for Reagan National Airport does not thereby imply that LaGuardia and Kennedy are subject to NEPA's EIS requirement. Further, whether the slot exemptions at issue are discretionary decisions, AIR21's short deadlines make compliance with NEPA impossible. City of New York v. Minetta, No. 00-4124 (2d Cir. Aug. 20, 2001) (13 pp.).

red bar graphic  TIMBER SALE, BLACK HILLS NATIONAL FOREST PLAN, NATIONAL FOREST MANAGEMENT ACT (NFMA), RAPTOR HABITAT:

The Tenth Circuit held that the U.S. Forest Service did not violate the NFMA or the Black Hills National Forest Plan in approving the Hollow Timber Sale in the Black Hills National Forest. The Forest Service did not unreasonably interpret the Black Hills Plan when it determined that the raptor habitat acreage provision of the plan is not binding and overriding. Additionally, the Service did not act arbitrarily or capriciously in adopting an alternative that favors animal species that prefer earlier successional stages of forest. The Service actively and explicitly balanced the provisions of the Forest Plan and chose the alternative it did because, in the Service's expert assessment, it best balanced the many issues identified in the scoping process and best met the multi-use and diversity requirements of the Forest Plan. Further, the Service adequately complied with NFMA §1606(m)(2)'s requirement that an exception to trees being harvested before they achieve the culmination of mean annual incremental growth (CMAI) must be subject to public participation. Although the public participation requirements were not met at the time of approval of the Black Hills Plan, those requirements were met at the time of the approval of the Hollow Project. The Hollow Project EA sufficiently alerted the public that the actions considered entailed exceptions to CMAI, and because those exceptions were subject to public participation at the time of the public scoping process associated with the Hollow Project EA, the Service complied with the commands of §1606(m)(2). Lamb v. Thompson, No. 00-1222 (10th Cir. Aug. 21, 2001) (12 pp.).

red bar graphic  RES JUDICATA, TIMBER SALES:

A district court held that res judicata barred an environmental group's suit alleging that the U.S. Forest Service failed to comply with NEPA, the National Forest Management Act (NFMA), and the APA in preparing timber sales in the Rogue River National Forest in Oregon. A previous suit challenging the sales had been dismissed with prejudice pursuant to a settlement. Soon thereafter, a second suit was filed challenging the sales, and it conceded that res judicata would bar the suit, but argued that the attorney in the first suit lacked the authority to dismiss the case with prejudice. Nevertheless, res judicata barred the second suit. The group filed the instant suit, containing virtually identical claims as those in the second suit, three days after the second suit's dismissal. Under a res judicata analysis, the dismissal of an action with prejudice pursuant to a settlement agreement constitutes a final judgment on the merits and precludes a party from reasserting the same claim in a subsequent action. Further, there is an identity of claims because all three suits seek the same relief for the same alleged violations. Moreover, although the plaintiffs in the instant suit were not the named plaintiffs in the first and second suits, they were sufficiently in privity with those plaintiffs because their stated interests of requiring the Forest Service to comply with NEPA and the NFMA are the same. Thus, the elements of res judicata are satisfied and the instant case was dismissed. Headwaters v. United States Forest Service, No. 01-3056-HO (D. Or. July 26, 2001) (Hogan, J.) (11 pp.)  (Defendant's counsel included Thomas C. Lee of the U.S. Attorney's Office in the District of Oregon).

Copyright© 2001, 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 promulgated NESHAPs for new and existing boat manufacturing facilities. 66 FR 44217 (8/22/01). 

  • EPA removed certain provisions of the nitrogen oxides emission standards for new electric utility steam generating units and industrial-commercial-institutional steam generating units that were promulgated on September 16, 1998. 66 FR 42608 (8/14/01). 

  • EPA entered into a proposed settlement agreement in American Forest & Paper Ass'n v. EPA, No. 00-1218 (D.C. Cir.), which concerned EPA's Memorandum to its Regional Offices regarding New Source Performance Standard Subpart Kb Applicability to Storage Vessels Used in the Pulp and Paper Industry. 66 FR 44342 (8/23/01). 

  • EPA entered into a proposed consent decree to address a lawsuit, Bahr v. Whitman, No. CV-01-835-PHX-ROS (D. Ariz.), filed against the Agency for failing to meet a mandatory deadline under CAA §110(k) to take final action to approve or disapprove the serious area plan for particulate matter having an aerodynamic diameter of 10 microns or less in the Phoenix, Arizona, metropolitan nonattainment area. 66 FR 44343 (8/23/01). 

  • EPA announced the availability of a report, Volatilization Rates From Water to Indoor Air -- Phase II. 66 FR 43011 (8/16/01). 

  • EPA determined that the Spokane, Washington, carbon monoxide (CO) nonattainment area attained the NAAQS for CO by the CAA's December 31, 2000, deadline. 66 FR 44060 (8/22/01). 

  • EPA proposed to redesignate the Denver-Boulder metropolitan serious nonattainment area in Colorado to attainment for the NAAQS for CO. 66 FR 44097 (8/22/01). 

  • EPA approved Washington's operating permits program. 66 FR 42439 (8/13/01). 

  • EPA proposed to fully approve Connecticut's operating permits program. 66 FR 42496 (8/13/01). 

  • EPA proposed to fully approve Idaho's operating permits program. 66 FR 42490 (8/13/01). 

  • EPA approved Pennsylvania's large municipal waste combustor plan under the CAA. 66 FR 43509 (8/20/01). 

red bar graphic  HAZARDOUS & SOLID WASTES:



  • The Agency for Toxic Substances and Disease Registry made available for public comment the priority data needs for 10 priority hazardous substances as part of the continuing development and implementation of the agency's Substance-Specific Applied Research Program, which was authorized under CERCLA. 66 FR 42659 (8/14/01). 

  • EPA entered into a proposed administrative settlement under CERCLA §122(i) in connection with the M Metal site in Indianapolis, Indiana. 66 FR 42857 (8/15/01). 

  • EPA entered into a proposed administrative settlement under CERCLA §122(h) in connection with the Old Storm Plastics Facility Superfund site in Texas. 66 FR 43012 (8/16/01). 

  • EPA entered into a proposed administrative settlement under CERCLA §122(h) in connection with the RSR Corporation Superfund site in Texas. 66 FR 43012 (8/16/01). 

  • EPA entered into a proposed administrative settlement under CERCLA §122(h)(1) in connection with the Chemet site in Moscow, Tennessee. 66 FR 43257 (8/17/01). 

  • EPA entered into a proposed administrative settlement under CERCLA §122(i) in connection with Operable Unit Two of the Peterson Puritan, Inc., Superfund site in Cumberland, Rhode Island. 66 FR 43258 (8/17/01). 

  • EPA entered into a proposed administrative order on consent under CERCLA §122(h) in connection with the PRC Patterson Superfund Removal site in Patterson, California. 66 FR 43258 (8/17/01). 

  • EPA entered into a proposed prospective purchaser agreement under CERCLA in connection with the Vineland Chemical Company Superfund site. 66 FR 43257 (8/17/01). 

  • EPA issued a proposed de minimis administrative order on consent under CERCLA in connection with the PCB Treatment, Inc., Superfund site in Kansas City, Kansas, and Kansas City, Missouri.  66 FR 43867 (8/21/01). 

  • EPA entered into a proposed settlement under CERCLA §122(h)(1) in connection with the Divex site in Columbia, South Carolina. 66 FR 44346 (8/23/01). 

  • EPA entered into a proposed administrative settlement under CERCLA §122(i) in connection with the International Smelter site in Tooele, Utah. 
    66 FR 44634 (8/24/01). 

  • EPA approved a revision to Vermont's hazardous waste program under RCRA. 66 FR 42962 (8/16/01). 

  • EPA approved revisions to South Carolina's hazardous waste program under RCRA. 66 FR 43798 (8/21/01).

  • EPA approved revisions to Idaho's hazardous waste program under RCRA. 66 FR 44071 (8/22/01). 

  • EPA approved a revision to Florida's hazardous waste program under RCRA. 66 FR 44307 (8/23/01).

  • EPA proposed to approve revisions to Indiana's hazardous waste program under RCRA. 66 FR 43143 (8/17/01). 

  • EPA granted a petition to exclude from hazardous waste control dewatered wastewater treatment sludge generated at Eastman Chemical Corporation's Longview, Texas, facility. 66 FR 43053 (8/16/01). 

  • EPA proposed to grant a petition submitted by Ormet Primary Aluminum Corporation to exclude vitrified spent potliner generated at its Hannibal, Ohio, plant from the lists of hazardous wastes. 66 FR 43823 (8/21/01). 

  • EPA promulgated a site-specific rule to implement a project under the Project XL program for the Yolo County Landfill in Davis, California. 66 FR 42441 (8/13/01).  

  • EPA issued a site-specific rule to facilitate implementation of the Buncombe County Solid Waste Management Facility's XL project in Alexander, North Carolina. 66 FR 44061 (8/22/01). 

  • EPA announced the availability of a document entitled Report on the Corrosion of Certain Alloys. 66 FR 44107 (8/22/01). 

red bar graphic  ENDANGERED SPECIES:



  • The National Marine Fisheries Service (NMFS) determined that a petition to list the Eastern North Pacific Southern Resident stock of killer whales as endangered or threatened under the ESA  presented substantial scientific information indicating that listing may be warranted, and, therefore, the agency will initiate an ESA status review. 66 FR 42499 (8/13/01). 

  • NMFS proposed to apply the ESA §9(a)(1) take prohibitions to three threatened evolutionarily significant units (ESUs) of West Coast Salmonids, but also proposed 10 categories of activities for which the take prohibitions would not apply to these ESUs as well as to the Central California Coast coho salmon ESU. 66 FR 43150 (8/17/01). 

  • FWS announced the availability of a final interim strategy regarding conservation measures that should be incorporated into watercraft access facility designs in order that, in some cases, projects would not likely cause incidental take of the Florida manatee. 66 FR 43885 (8/21/01). 

red bar graphic  RADIOACTIVE WASTE:



  • EPA announced its determination that between 1998 and 2000, DOE operated the Waste Isolation Pilot Plant facility in compliance with applicable federal statutes, regulations, and permit requirements. 66 FR 42655 (8/14/01). 

red bar graphic  RISK ASSESSMENT:



  • EPA announced the availability of a final report, Summary Report for the Workshop on Issues Associated with Dermal Exposure and Uptake
    66 FR 42856 (8/15/01). 

  • EPA announced the availability of a final report, Summary Report of the Technical Workshop on Issues Associated with Considering Developmental Changes in Behavior and Anatomy When Assessing Exposure to Children. 66 FR 42857 (8/15/01). 

  • EPA announced the availability of a final report, Summary of the Workshop on Information Needs to Address Children's Cancer Risk. 66 FR 43011 (8/16/01). 

red bar graphic  SMCRA PROGRAM APPROVALS:



  • OSM approved an amendment to Arkansas' regulatory program under SMCRA. 66 FR 42739 (8/15/01).

  • OSM disapproved an amendment to Indiana's regulatory under SMCRA. 66 FR 42743 (8/15/01). 

  • OSM approved an amendment to Pennsylvania's regulatory program under SMCRA. 66 FR 42750 (8/15/01).

  • OSM proposed to approve an amendment to Illinois' regulatory program under SMCRA. 66 FR 42813 (8/15/01).

  • OSM approved, with two exceptions, an amendment to Virginia's permanent regulatory program under SMCRA.66 FR 43480 (8/20/01).

red bar graphic  PESTICIDES:



  • EPA announced the availability of a draft pesticide registration notice entitled Spray and Dust Drift Label Statements for Pesticide Products. 66 FR 44141 (8/22/01). 

red bar graphic  NATIONAL FORESTS:



  • The U.S. Forest Service issued two interim directives to its workforce reserving to the Chief, with some exceptions, authority to approve timber harvest and road construction and reconstruction in roadless areas. 66 FR 44111 (8/22/01). 

  • The U.S. Forest Service announced the availability of its administrative policy to guide transportation planning, analysis, and management, particularly road management, in the National Forest System. 66 FR 44590 (8/24/01).

red bar graphic  U.S. DOJ NOTICES OF SETTLEMENTS:



  • United States v. Mountain Metal Co., Nos. CV-98-2562-S, CV-C-2886-S (N.D. Ala. July 11, 2001). Settling CERCLA defendants must pay $4,877,575 in private and U.S. response costs incurred in connection with the ILCO battery cracking site in Leeds, Alabama. 66 FR 42876 (8/15/01). 

  • United States v. Schorsh, No. 97-0744 (E.D. Pa. July 30, 2001). Two settling CERCLA defendants must pay $105,000 in past U.S. response costs incurred at the Coleman Laboratory Superfund site in Philadelphia, Pennsylvania, and a third defendant must pay $55,000. 66 FR 42876 (8/15/01). 

  • United States v. Chevron USA Inc., No. F-98-5412 REC DLB (E.D. Cal. July 27, 2001). A settling CERCLA defendant, under a second consent decree concerning the Purity Oil Sales Superfund site near Fresno, California, must perform certain activities in connection with the temporary and permanent relocation of residents of a trail park located next to the site,  and EPA must reimburse the defendant up to $1.5 million in costs incurred for performance of such activities. 66 FR 43025 (8/16/01).

  • United States v. Lockheed Martin Corp., No. 3-01-3166-19 (D.S.C. July 31, 2001). Settling CERCLA defendants must pay $1,067,811 in past U.S. response costs incurred at or in connection with the Divex, Inc., Superfund site in Richland County, South Carolina, and must pay $7,189 in past state response costs. In addition, settling federal agencies must pay $930,662 in past U.S. response costs and must pay $6,376 in past state response costs. 66 FR 43025 (8/16/01). 

  • United States v. Powell Duffryn Terminals, Inc., No. CV401-173 (S.D. Ga. July 25, 2001). A settling CAA and CERCLA defendant, in connection with a fire and explosion at its tank farm facility in Savannah, Georgia, must pay $1.8 million in past response costs, and its parent company must provide $320,000 for the purchase of emergency response equipment for the Savannah Fire and Emergency Services Department. 66 FR 43026 (8/16/01). 

  • United States v. Union Pacific Railroad Co., No. H-00-0226 (S.D. Tex. July 27, 2001). A settling CERCLA defendant must pay $300,000 in past U.S. response costs incurred in connection with the Brownsville Federal Courthouse site in Brownsville, Texas. 66 FR 43026 (8/16/01). 

  • United State v. Appleton Papers Inc., No. 01-C-0816 (E.D. Wis. Aug. 14, 2001). Settling CERCLA defendants must pay up to $10 million each year for four years to fund cleanup-related response action projects and natural resource damage restoration projects in connection with the Fox River/Green Bay site in northeastern Wisconsin, and must pay $1.5 million in natural resource damage assessment costs incurred by the DOI. 66 FR 44376 (8/23/01). 

  • United States v. Gulf Oil L.P., No. 3:98CV2226 (AVC) (D. Conn. July 5, 2001). A settling CAA defendant that violated the Connecticut SIP and new source performance standards for bulk gasoline terminals at its New Haven, Connecticut, facility must pay $40,000 in civil penalties, and must perform supplemental environmental projects designed to reduce volatile organic compound emissions at a minimum cost of $421,000. 66 FR 44376 (8/23/01). 

  • United States v. Commerce Holding Co., No. 00-CV-1249 (DRH/ETB) (E.D.N.Y. July 31, 2001). A settling CERCLA defendant must pay at least $631,442.02, and up to $650,000, in past U.S. response costs incurred at the Tronic Plating Superfund site. 66 FR 44645 (8/24/01).

  • United States v. Continental Equities, Inc., No. 99-619-CIV-Seitz-Garber (S.D. Fla. Aug. 9, 2001). A settling CERCLA defendant must pay $350,000 in past and future U.S. response costs incurred and to be incurred at the Anodyne NPL Superfund site in Miami, Florida. 66 FR 44646 (8/24/01).

Copyright© 2001, Environmental Law Institute, Washington, D.C. All rights reserved. 

IN THE STATES
large red bar graphic


red bar graphic ALABAMA


Dept. of Envtl. Management


Operation Trash Cam Pilot Project



Proposed NPDES General Permits



Public Notices–Permit Applications 



Daily Ozone Forecast



Jefferson County (Birmingham) Dept. of Health


Daily Air Quality Index


red bar graphic ARIZONA


Dept. of Envtl. Quality


Proposed Regulations-Water Quality



  • Impaired Water Identification (18 A.A.C. 9, arts. 9, 10). Hearings Sept. 25 and 27 and Oct. 2; comments due Oct. 5. This rulemaking establishes a new Article dealing with the methodology required under A.R.S. §49-232(C) to identify impaired waters and specify the factors required under A.R.S. §49-233(C) for prioritizing navigable waters that require development of total maximum daily loads. See http://www.adeq.state.az.us/lead/osc/draftrules.html#Impaired 

  • Arizona Pollutant Discharge Elimination System (AZPDES) (18 A.A.C. 9, arts. 9, 10). Hearings Sept. 17, 18, 19; comments due Sept. 20. This rulemaking establishes a state program, authorized by the legislature under H.B. 2426 (2001 legislative session), that governs all facilities that discharge pollutants from a point source into navigable waters (waters of the United States). The AZPDES program incorporates by reference certain Code of Federal Regulations (C.F.R.s) relating to the federal NPDES program, and revises certain C.F.R.s for clarity and to reflect conditions in the arid southwest environment. See http://www.adeq.state.az.us/lead/osc/draftrules.html#Arizona 

Air Quality Exceptional and Natural Events Policy



  • In April 1999, the Air Quality Division finalized an Air Quality Exceptional and Natural Events Policy based on U.S. EPA guidance, "Areas Affected by PM10 Natural Events," and stakeholder input. The policy is applicable in areas that violate a PM NAAQS and the violation is shown to be the result of an exceptional or natural event such as unusually high winds or wildfires. The applicable air pollution control agency may utilize ADEQ's policy to develop a natural events action plan (NEAP) in lieu of becoming designated as a nonattainment area by EPA. The NEAP must contain documentation and analysis showing a causal relationship of the ambient air quality monitored exceedance(s) and the natural event, details of public notification and education programs, descriptions of best available control measures (BACM), and area of applicability for the BACM. 

  • ADEQ Air Quality Exceptional and Natural Events Policy, see http://www.adeq.state.az.us/environ/air/plan/download/adeqpolicy.pdf 

  • Comments related to ADEQ's Draft Best Available Control Measures List, see http://www.adeq.state.az.us/environ/air/plan/download/bacmcom.pdf 

  • Responsiveness Summary for ADEQ Air Quality Exceptional and Natural Events Policy PM10 Best Available Control Measures List, see http://www.adeq.state.az.us/environ/air/plan/download/bacsum.pdf 

  • ADEQ Air Quality Exceptional and Natural Events Policy PM10 Best Available Control Measures List, see http://www.adeq.state.az.us/environ/air/plan/download/bacmlist.pdf 

Water Quality-Opening of NPDES Update Rulemaking Docket



  • Arizona Pollutant Discharge Elimination System (AZPDES) (18 A.A.C. 9, Articles 9 and 10). This rulemaking establishes a state program, authorized by the legislature under H.B. 2426 in the 2001 legislative session, that governs all facilities that discharge pollutants from a point source into navigable waters (waters of the United States). The AZPDES program incorporates by reference certain Code of Federal Regulations (C.F.R.s) relating to the federal NPDES program, and revises certain C.F.R.s for clarity and to reflect conditions in the arid southwest environment. Draft rules available. See http://www.sosaz.com/aar/2001/26/docket.pdf 

Air Quality-Opening of Rulemaking Docket



  • San Manuel Copper Smelter (18 A.A.C. 2, Art. 7). The rule would propose source-requested reductions in emission limits applicable to a copper smelter that has been shut down and is considering resuming operation. See http://www.sosaz.com/aar/2001/26/docket.pdf 

Intel Ocotillo Project XL Renewal Update



Safe Drinking Water Workshops Announced



Drinking Water-Monitoring Assistance Program Current, Proposed Fees



Development of an Aquifer Water Quality Standard for Methyl Tertiary Butyl Ether (MTBE)



Superfund Program-Proposed Registry Inclusions, Prospective Purchaser Agreements



Current Air Quality Readings/Forecasts


red bar graphic ARKANSAS


Dept. of Environmental Quality


Proposed Regulation Repeal-Safe Drinking Water




  • Public hearing Sept. 18 regarding proposed repeal of Commission Regulation No. 10, the Arkansas Revolving Loan Fund for wastewater treatment plant construction assistance loans. Act 459 of the 2001 Arkansas General Assembly transferred the authority for operating the Revolving Loan Fund program from the Pollution Control and Ecology Commission and DEQ to the Arkansas Soil and Water Conservation Commission, effective July 1, 2001. To enable continued operation of the Revolving Loan Fund, the Soil and Water Conservation Commission has already adopted a regulation nearly identical to the Pollution Control and Ecology Commission's Regulation No. 10, thus making the PC&E Commission regulation moot. Comments are due Oct. 3. See http://www.adeq.state.ar.us/custsvs/pa/default.htm 


Emergency Regulation-Hazardous Waste Management




  • July 27 emergency rulemaking action regarding Commission Regulation No. 23, the Arkansas Hazardous Waste Code. As a result, the Commission has added the former Red River Aluminum facility at Stamps in Lafayette County to the Arkansas remedial Action Trust Fund Priority List for cleanup of hazardous waste, as contained in Regulation No. 23. The Arkansas DEQ is scheduled to assume responsibility from the U.S. EPA for cleanup of the abandoned facility in the near future. Estimated costs of cleanup at the site exceed the $60,000 limit for state money that can be spent from the Emergency Response Fund for environmental cleanup operations. In order to access money in the State Remedial Action Trust Fund, it is necessary to include the Red River Aluminum site on the State Priority List in Regulation No. 23. As a result, the ADEQ petitioned the Commission to add the Red River Aluminum site to the State Priority list, enabling the ADEQ to use money from the Remedial Action Trust Fund for cleanup activities necessary at the facility. Under state law and Commission regulations, emergency rulemaking actions may remain in effect for up to 180 days. A formal rulemaking procedure, including holding a public hearing, must be conducted to permanently incorporate emergency rulemaking provisions into the applicable regulation.


Self-Audit Form for Arkansas USTs and ASTs


red bar graphic CALIFORNIA


Air Resources Board


Uniform Penalties for Violations of Air Quality Laws Occurring at Petroleum Refineries



Regulatory and Non-regulatory Fuels Activities for 2001



New In-Use Performance Standards for On-Road Heavy-Duty Diesel Vehicles



Bay Area Ozone Attainment Plan Delayed



Proposed Automotive and Mobile Equipment Coatings ATCM 



Voluntary Accelerated Vehicle Retirement Proposed Regulation Update-Draft Regulations



Dept. of Toxic Substances Control


15-Day Comment Period; Universal Waste Regulations



Unified Program Administrative Authority-Workshop Sept. 13



The Secretary's and the California United Program Agency's Responsibilities Regarding the State Surcharge--45-Day Public Notice and Comment Period



Emergency Regulations-Cathode Ray Tubes



Proposed Revision of Hazardous Waste Code System



Guidance Document Availability



Groundwater Remediation Loan Program-Eligibility Information and Application Guidance



Draft Public Participation Policy Manual



Public Notices



Integrated Waste Management Board


Proposed Regulations-Playground Safety and Recycling Act Grants



  • Published in the California Regulatory Notice Register for 45-day public comment period on June 29, 2001. These regulations would implement the provisions of the Playground Safety and Recycling Act Grant Program relating to the award of grants to local public agencies and local public educational agencies to upgrade, repair, refurbish, install, or replace public playground facilities to prevent childhood injuries on public playgrounds while developing a market for recycled materials suitable for use in public playgrounds. The regulations will provide guidance to Board staff and to grant applicants in the administration of the grant program. Emergency Regulations for the Playground Safety and Recycling Act Grant Program, adopted by the Board at its Apr. 18-19, 2000, meeting have been extended and are currently in effect. Comments due Aug. 13. See http://www.ciwmb.ca.gov/Rulemaking/Playground/  

Proposed Regulations-Insurance as a Financial Assurance Demonstration



  • Proposed regulatory amendments of two related financial assurance demonstration requirements under the general term of "insurance." The Board held a public hearing at their regularly scheduled meeting on May 22.  Following the hearing, the Board directed staff to initiate an extended 15-day comment period to allow for review of minor revisions to the regulations and additional stakeholder input. The Board considered adopting the regulations at its Aug. 14-15, 2001, meeting. See http://www.ciwmb.ca.gov/Rulemaking/Insuranc/

Emergency Regulations-Putrescible Waste Transfer/Processing



  • Board adopted emergency regulations for the transfer/processing of putrescible waste. Previous regulations provided that if an activity only receives material that has been separated for reuse prior to receipt, and the residual amount of solid waste in this material is less than 10% of the amount separated for reuse material received by weight, it is not subject to the Board’s transfer/processing operation and facility regulations. The emergency regulations clarify that all "putrescible waste" received as separated for reuse material counts toward the "residual" amount. Activities that receive materials with a residual amount equal to or greater than 10% will be subject to the Board’s transfer/processing operation and facility regulations. Following this action, the Board received feedback from parties concerned about the potential impacts of the emergency regulations. In response to the feedback, staff brought the regulations back to the Board for re-evaluation and discussion of the issues at its Apr. 24-25 meeting. The Board directed staff to make changes to the regulations and then submit to the Office of Administrative Law (OAL) with a request for a delayed effective date (length to be determined) as an emergency rulemaking. Staff is currently preparing the file for submittal to the OAL.

Proposed Regulations-Waste Tires



  • The Board initiated a 45-day comment period to address revisions to the waste tire regulations. Assembly Bill (AB) 1843 established the waste tire program and required the Board to adopt emergency and final regulations for permitting of waste tire storage facilities. The Board adopted emergency regulations on June 26, 1991, and final regulations on Aug. 25, 1993. On May 9, 1996, the Board’s Waste Tire Hauler Regulations became effective pursuant to Senate Bill (SB) 744. On Jan. 29, 1998, the Board adopted emergency regulations to remove certain exclusions from the regulations regarding who needs to acquire a waste tire facility permit. These emergency regulations became final this past year. AB 117 was signed into law in 1998 requiring the Board to prepare a report to the legislature on the current waste tire program and to make recommendations by June 30, 1999, for needed changes. The Board adopted the final version of the report "California Waste Tire Program Evaluation and Recommendations" (Tire Report) at its June 22, 1999, meeting. Since the passage of AB 1843 and SB 744, the Board has been regulating the storage, disposal, and hauling of waste tires. This last year SB 876 was passed by the legislature to make changes to the tire management statutes in order to better serve the regulated community and to protect public health and safety and the environment. The Board staff has proposed changes in the existing regulations to implement, interpret, and make specific the provisions of SB 876, as well as implementing certain recommendations from the AB 117 Tire Report. See http://www.ciwmb.ca.gov/RuleArchive/2000/Exclusions/

Proposed Regulations-Nonhazardous, Nonputrescible, Industrial Waste



  • These regulations set permitting and operational standards for hazardous waste disposal facilities that accept for disposal certain nonhazardous, nonputrescible, industrial solid wastes within a hazardous waste management unit. OAL approved emergency regulations July 31, 2000. The emergency regulations became effective on Oct. 1, 2000. OAL approved an extension through May 30, 2001. Board staff has initiated the process to adopt permanent regulations. The Board conducted a public workshop on Jan. 17, 2001, to discuss the proposed permanent regulations. At its Mar. 20-21, 2001, meeting, the Board approved the proposed permanent regulations to be noticed for 45-day public comment period. Staff is currently preparing the regulation package for noticing. See http://www.ciwmb.ca.gov/Rulemaking/nonhaz/

Proposed Regulations-Compostable Materials



  • Placement of solid waste facilities and operations that handle compostable materials (green material--not composted, woody material--not composted) into regulatory tiers, development of minimum standards, and adjustment of existing regulations to accommodate the above placement. Public workshops in Sept. 1999 were focused on odor monitoring and enforcement at compostable materials handling sites, as well as on regulatory concepts for the revision of the composting regulations. From early July through early Aug. 2000, in eight venues throughout the state, the Board held workshops to discuss proposed changes to the regulations. Staff analyzed the information gathered at the workshops and revised the draft regulations accordingly. In Dec. 2000, Board staff solicited feedback from an external working group and in Jan. 2001, revised the regulations based on this feedback. The Board discussed issues related to this package at its Feb. 20-22, 2001, meeting. The Board considered approval of the regulations for a 45-day public comment period at its Aug. 14-15, 2001, meeting. See http://www.ciwmb.ca.gov/Rulemaking/Organics/  

Proposed Regulations-LEA Grants



  • New regulations for the local enforcement agency (LEA) grants program. The Permitting and Enforcement Committee approved these draft regulations for public notice in Sept. 1997, however, LEA outreach staff workload forestalled the public notice period. The Board approved the regulations for a 45-day public comment period at its June 19-20, 2001 meeting. Staff is currently preparing the regulation package for noticing. See http://www.ciwmb.ca.gov/Rulemaking/leagrant/ 

Draft Regulations-Construction & Demolition Materials



  • Placement of facilities and operations handling inert and construction and demolition debris into regulatory tiers, and setting minimum standards. In Dec. 2000, the Board approved a two-phase approach to this rulemaking. Phase I will cover the transfer and processing of construction and demolition debris. Informal workshops for this Phase I are expected in summer 2001. Phase II will follow and will cover the disposal of construction, demolition, and inert debris. At the Aug. 14-15, 2001, meeting staff presented to the Board a proposed schedule with major milestones, as well as a copy of the initial draft proposed regulations for Phase I. Board and public input will be received during the agenda presentation. See http://www.ciwmb.ca.gov/Rulemaking/cdmater/ 

Draft Regulations-Closure and Post-closure Maintenance Plans



Water Resources Control Board


Total Maximum Daily Load (TMDL) Development Public Notices, Drafts



Office of Environmental Health Hazard Assessment


Final Technical Support Documents for Public Health Goals for Uranium and Nickel in Drinking Water



Update on Proposition 65 Activities



South Coast Air Quality Management District


Proposed Rule 1133–Emission Reductions from Composting Facilities and Related Operations



  • The objective of PR 1133 is to reduce ammonia (NH3), volatile organic compound (VOC), and particulate matter (PM10) emissions from composting and related operations, such as chipping and grinding facilities for wood and green waste. The proposed control strategies include enclosure, aerated static or in-vessel compost pile, biofilter or equivalent emission control equipment, and compliance plans. PR 1133 would implement control measure WST-02 "Emission Reductions from Composting" from the 1997 Air Quality Management Plan (AQMP) and the 1999 Amendment to the 1997 Ozone SIP. The proposal would: (1) require composting and chipping/grinding facilities to submit compliance plans; (2) by January 1, 2003 or January 1, 2005, depending on the type and size of the operation, provide that active composting at all facilities must occur in enclosed aerated static or in-vessel piles with contaminated air vented to an emission control equipment with overall control efficiency of 75% for NH3 and 90% for VOC; (3) require enclosure of the compost feedstock preparation, curing, and storage areas; (4) require operation, monitoring, testing, and recordkeeping; and (5) exempt all backyard, nursery, and community composting of on-site materials, as well as small composting or wood/green waste chipping/grinding facilities. Workshop Sept. 5; comments due Sept. 11. See http://www.aqmd.gov/pub_edu/notice_pr1133.html 

red bar graphic COLORADO


Water Quality Control Commission


Rulemaking Hearings



  • Nov. 13 hearing regarding a proposal by the Cripple Creek & Victor Gold Mining Company to revise the pH standards for Arequa Gulch, segment 22a of the Upper Arkansas, in the Classifications and Numeric Standards for the Arkansas River Basin, Regulation #32 (5 CCR 1002-32). See http://www.cdphe.state.co.us/op/wqcc/0111arequaph.pdf 

  • Nov. 13 hearing regarding revisions to (1) the Procedural Rules, Regulation #21 (5 CCR 1002-21), and (2) the Colorado Discharge Permit Regulations, Regulation #61 (5 CCR 1002-61), to address concerns identified by the Office of Legislative Legal Services. See http://www.cdphe.state.co.us/op/wqcc/wqwcrnot.html 

  • Oct. 9 hearing for consideration of (1) approval of a proposed Water Pollution Control Revolving Fund Intended Use Plan for FY02, Regulation #52 (5 CCR 1002-52); (2) approval of a Domestic Wastewater Treatment Grant Program Intended Use Plan for FY02, Regulation #54 (5 CCR 1002-54); and (3) approval of revisions to Regulation #53 (5 CCR 1002-53) to incorporate changes to expand the program to comply with H.B. 01-1246. See http://www.cdphe.state.co.us/op/wqcc/wqwcrnot.html 

red bar graphic CONNECTICUT


Dept. of Envtl. Protection


Compost Erosion Control Study



Permit Hearings-Calendar


red bar graphic DELAWARE


Dept. of Nat. Resources and Envtl. Control


Notices of Violation



Regulatory Update/Public Notices


red bar graphic FLORIDA


Dept. of Environmental Protection


Governor, Cabinet Approve Land Acquisition



  • Governor Jeb Bush and the Florida Cabinet approved a land purchase that connects the Lake Wales Ridge Wildlife and Environmental Area with the Lake Istokpoga Fish Management Area. This $6.4 million parcel, located in Highlands County, was purchased jointly by DEP and the Florida Fish and Wildlife Conservation Commission. See http://www.dep.state.fl.us/comm/releases/2001/01-150.htm 

Arrest for Illegal Disposal of Biomedical Waste



Proposed Regulations-Air Quality



  • Rule 62-204, federal regulations adopted by reference. Proposed rule amendments change the rule chapter name, correct typographical errors and update through June 30, 2001, the adoptions by reference of air pollution regulations promulgated by the U.S. Environmental Protection Agency at 40 C.F.R. pts. 60, 61, and 63. Comments due Aug. 31. 

red bar graphic GEORGIA


Dept. of Natural Resources, Envtl. Protection Division


Proposed Regulations-Underground Storage Tanks



  • Sept. 7 hearing; comments due Sept. 6. Proposed amendments to Georgia's Rules and Regulations for Underground Storage Tank Management, Chapter 391-3-15 (hereinafter, "the proposed rules amendments"). The proposed rules amendments consist of the revision of Rules 391-3-15-.01 "General Provisions"; 391-3-15-.02 "Definitions, UST Exclusions, UST Deferrals, and Lender Liability"; 391-3-15-.04 "Interim Prohibition for Deferred UST Systems"; 391-3-15-.05 "UST Systems: Design, Construction, Installation and Notification"; 391-3-15-.06 "General Operating Requirements"; 391-3-15-.07 "Release Detection";391-3-15-.08 "Release Reporting, Investigation, and Confirmation"; 391-3-15-.09 "Release Response and Corrective Action for UST Systems Containing Petroleum"; 391-3-15-.11 "Out-of-Service UST Systems and Closure"; 391-3-15-.12 "UST Systems Containing Petroleum; Financial Responsibility Requirements"; 391-3-15-.13 "Georgia Underground Storage Tank (GUST) Trust Fund." All Rules listed above contain amendments to incorporate by reference the currently published version of the Code of Federal Regulations for underground storage tanks, 40 C.F.R. Part 280. Rule -.13 contains amendments to paragraphs 391-3-15-.13(1)(b)2.(iii) "Subsequent Election for New Owners or Operators" and 391-3-15-.13(1)(c)3.(iv) "Recordkeeping." See http://www.dnr.state.ga.us/dnr/environ 

Air Permit Applications


red bar graphic HAWAII


Office of Envtl. Quality Control


Air Quality-Permit Applications



Environmental Impact Notices


red bar graphic IDAHO


Dept. of Envtl. Quality


Outstanding Resource Waters-Petitions



Pending Permit Applications


red bar graphic ILLINOIS


Pollution Control Board (PCB)


Proposed Regulations




  • The PCB is considering a proposal by IEPA to update and clarify rules and to make some substantive changes to the Site Remediation Program (SRP). Hearings have been held concerning In the Matter of: Site Remediation Program: Amendments to 35 Ill. Adm. Code 740 (R01-27). The Board is also considering a proposal submitted by Citizens for a Better Environment (R01-29), which has been consolidated with R01-027. In R01-27 there are two proposed substantive changes to the SRP. The first is establishment of "soil management zones" that would be used for on-site placement of contaminated soils for structural fill or land reclamation, consolidation of contaminated soils within the remediation site, and removal and re-deposit of contaminated soils following on-site treatment. The second change would require that chemical analyses of soil and groundwater samples be performed by accredited laboratories. In R01-29 the Citizens for a Better Environment are calling for additional public hearing, recordkeeping, and reporting requirements on all SRP sites intended to be used as schools. The original proposal would have applied to all SRP sites intended to be used as a school, playground, or public park, however, it was amended following questions at the first public hearing. The Board tentatively plans to move these rulemakings to first notice in the coming months. See http://www.ipcb.state.il.us/RULES/R01-027/HearingRecords.htm and http://www.ipcb.state.il.us/RULES/R01-029/HearingRecords.htm.  



  • In the Matter of: UIC Corrections, U.S. EPA Amendments (July 1, 1999, through June 30, 2000)–Adopted Rule, Final Order, Opinion and Order issued Aug. 9



  • In the Matter of: Wastewater Pretreatment Update, U.S. EPA Amendments (July 1, 2000, through December 31, 2000)–Adopted Rule, Final Order, Opinion and Order issued Aug. 9. 



  • In the Matter of: Proposed Regulated Recharge Area for Pleasant Valley Public Water District, Proposed Amendments to 35 Ill. Adm. Code Part 617–The Board July 26 adopted a final opinion and order in this rulemaking to amend the Board’s public water supply regulations to establish the first regulated recharge area under section 17.3 of the Act (415 ILCS 5/17.3 (2000)). See http://www.ipcb.state.il.us/Meeting/minutes.htm



  • In the Matter of: Proposed Amendments to Tiered Approach to Corrective Action Objectives (TACO): 35 Ill. Adm. Code 742–The Board July 26 adopted a final opinion and order in this matter to amend the standards for tiered approach to corrective action objectives (35 Ill. Adm. Code 742). See http://www.ipcb.state.il.us/Meeting/minutes.htm 



  • In the Matter of: Proposed MTBE Groundwater Quality Standards Amendments: 35 Ill. Adm. Code 620– Proposed Rule, First Notice, Opinion and Order issued July 26. See http://www.ipcb.state.il.us/Meeting/agenda.htm 



  • In the Matter of: Provisional Variances from Water Temperature Standards: Proposed New 35 Ill. Adm. Code 301.109. See http://www.ipcb.state.il.us/rules/proposal.htm  



  • In the Matter of: SDWA Update, USEPA Amendments (July 1, 2000, through December 31, 2000; Radionuclides)–The Board June 21 adopted a proposal for public comment in this “identical-in-substance” rulemaking to amend the Board’s public water supply regulations. See http://www.ipcb.state.il.us/Meeting/minutes.htm 



  • In the Matter of: Petition of Rhodia, Inc. and Thorn Creek Basin Sanitary District for an Adjusted Standard from 35 Ill. Adm. Code 302.208 and 304.105–The Board July 26 found the petition deficient in this request for an adjusted standard involving a Cook County facility, and ordered petitioner to file an amended petition to cure deficiencies no later than Sept. 14, 2001, or the petition would be subject to dismissal. 



  • In the Matter of: Petition of Dixon Marquette Cement Company for an Adjusted Standard from 35 Ill. Adm. Code Parts 811 & 814–The Board July 26 granted parties a motion for leave to file a response instanter and for extension of time to file a reply to the response. 



  • In the Matter of: Proposed Amendments to Tiered Approach to Corrective Action Objectives (TACO) (35 Ill. Adm. Code 742)–The Board on its own motion on June 7 created a third sub-docket. In sub-docket R00-19(C), the Board will address the Illinois EPA proposal and cleanup standards for methyl tertiary-butyl ether (MTBE). See http://www.ipcb.state.il.us/Meeting/minutes.htm 



  • Proposed revisions to the nondegradation rules (In the Matter of: Revisions to Antidegradation Rules: 35 Ill. Adm. Code 302.105, 303.205, 303.206 and 106.990-106.995). The proposed revisions are part of the triennial water quality standards review. Included in the proposal is changing the rules’ name to Antidegradation to conform with federal rules. The Board adopted a first notice opinion and order June 21. See http://www.ipcb.state.il.us/RULES/R01-013/HearingRecords.htm and   http://www.ipcb.state.il.us/RULES/106prop.pdf and http://www.ipcb.state.il.us/Meeting/minutes.htm  



  • In the Matter of: Wastewater Pretreatment Update, USEPA Amendments (July 1, 2000, through Dec. 31, 2000). Proposal for Public Comments adopted May 17, 2001; Illinois Register publication June 1, 2001.   


Open Regulatory Dockets



Envtl. Protection Agency


Permit Applications/Public Hearings


red bar graphic  INDIANA


Dept. of Envtl. Management


Final Regulations-Air Quality



  • Title 326 Air Pollution Control Board-#00-69. Amends 326 IAC 8-12 concerning shipbuilding and ship repair. Adds 326 IAC 20-26 to incorporate by reference federal standards for shipbuilding and ship repair. 

  • Title 326 Air Pollution Control Board-#00-70. Adds 326 IAC 20-28-1 concerning national emission standards for hazardous air pollutants for hazardous waste combustors.

  • Title 326 Air Pollution Control Board-#00-71. Adds 326 IAC 20-27-1 concerning national emission standards for hazardous air pollutants for each new and existing Portland cement plant.

  • Title 326 Air Pollution Control Board-#00-171. Amends 326 IAC 8-1-4 to incorporate by reference federal capture efficiency test methods.   

Proposed Regulations-Indiana Scoring Model



  • Amends 329 IAC 7-2-6, 329 IAC 7-11-1, 329 IAC 7-11-2, 329 IAC 7-11-3 with a new maximum score of 10 to be eligible for deletion from the Commissioner's Bulletin and adds designations that can be attained for consideration for deletion. Senate Enrolled Act 360-1997 required rules be adopted by the solid waste management board to amend 329 IAC 7 concerning the Indiana Scoring Model and assessment of hazardous substance response sites and determine a maximum score to allow sites that either have been the subject of a successful remediation or score at or below the maximum score to be removed from the priority ranking if appropriate. A procedure for deleting a listed site from the priority ranking and a maximum score was established by LSA #98-110(F), which was effective Nov. 27, 1998. A maximum score of 5 was established. The procedures allowed for either a site to petition for deletion or for IDEM to initiate deletion of a site. After consideration of all sites on the list, it was determined by IDEM that this maximum score is inadequate to appropriately delete all the sites that have been the subject of a successful remediation. There are sites that pose no risk to human health or the environment but still accrue a score greater than 5. IDEM would like to again examine the maximum score for a site to be removed from the priority ranking and, in addition, the Department would also like to consider criteria or other approvals (designations) to be applied to a remediated site to determine appropriateness for that site to be deleted from the list. Public hearing was Aug. 21.

  • Amends and considers for readoption pursuant to comments received under IC 13-14-9.5, 329 IAC 11-9, 329 IAC 11-11, and 329 IAC 11-14. 329 IAC 11-9 addresses solid waste processing facilities permit requirements; 329 IAC 11-11 addresses solid waste processing permit issuance; and 329 IAC 11-14 addresses quarterly reporting of solid waste processing facilities. The amendments correct language and references. This rulemaking is required pursuant to IC 13-14-9.5, which provides for the expiration and readoption of administrative rules. A rule that was adopted under a provision of IC 13 and was in effect on Dec. 31, 1995, expires not later than Jan. 1, 2002. All rules adopted after that date under IC 13-14-9, with some exceptions listed in IC 13-14-9.5-1 and IC 13-14-9.5-1.1, expire on Jan. 1 of the seventh year after the year in which each rule takes effect. The First Notice of Comment Period and Continuation of First Notice of Comment Period opened all rules required to be opened in Title 329 for readoption, regardless of their initial effective date. Other comments received are being included and considered within other currently existing rulemakings. Hearing was Aug. 21. 

Proposed Regulations-Air Quality



  • Title 326 Air Pollution Control Board-#01-249. Amends 326 IAC 2-6, Emission Reporting, to add definitions to clarify the requirements, revise existing definitions for clarification and consistency, change applicability, and to require the reporting of hazardous air pollutants (HAPs).

  • Title 326 Air Pollution Control Board- #01-251. Amendments to rule 326 IAC 8-1-2, compliance methods, applicable to dip or flow operations at miscellaneous metal coating operations regulated at 326 IAC 8-2-9. 

Proposed Regulations-Solid Waste Management



  • Title 329 Solid Waste Management Board-#01-237. New rules to establish procedures, requirements, and standards for processing and composting of non-vegetative organic material that is not covered by IC 13-20-10. Comments due Sept. 4. 

Proposed Regulations-Water Quality



  • Amendments to rules for the application of biosolids, industrial waste products, and pollutant-bearing water in 327 IAC 6.1. The purpose of this rule change is to amend and clarify sections of the article that are creating problems for the regulated community and IDEM staff. Comments due Sept. 4. 

  • Title 327 Water Pollution Control Board-#00-266. Amends 327 IAC 8-2 and 327 IAC 8-2.1 concerning public notification requirements for public water supply systems. Repeals 327 IAC 8-2-15, 327 IAC 8-2-16, 327 IAC 8-2-17, and 327 IAC 8-2-18.  

Proposed Regulations-Wastewater Management



  • IDEM has developed draft rule language for new rules concerning management of wastewater. Cleaning of sewage disposal systems, wastewater transportation, wastewater disposal, and related business activities are included in the scope of the draft rules. The new article, 327 IAC 7.1, will replace 327 IAC 7. The new rule language will allow the agency to meet the requirements of 40 C.F.R. pt. 503 and 40 C.F.R. pt. 257 subpt. A regarding the land application of wastewater. To reflect the new rules, IDEM will be repealing 327 IAC 7. See http://www.in.gov/legislative/register/Vol24/09Jun/11ID327970007.pdf

See http://www.in.gov/legislative/register/August-1-2001.html and 


Pending Permit Applications


red bar graphic  IOWA


Dept. of Natural Resources-Envtl. Protection Commission


Final Regulations-Air Quality




  • Amendments to Chapter 22, Iowa Admin. Code. The purpose of this rulemaking was to incorporate the Department’s existing Periodic Monitoring Guidance into the rules. Also, this rulemaking adopts by reference Compliance Assurance Monitoring (CAM) that is required to be included in 40 C.F.R. pts. 70 or 71 operating permits. Periodic monitoring and CAM are needed to provide reasonable assurance of compliance with applicable requirements under the CAA. Item 1 incorporates the Department’s existing Title V Periodic Monitoring Guidance into the rule. Periodic monitoring is required by 40 C.F.R. pts. 70.6 and 71.6 where the applicable requirement does not require periodic testing or instrumental or noninstrumental monitoring. Item 2 adopts by reference 40 C.F.R. pt. 64 CAM for major stationary sources of air pollution that are required to obtain operating permits under Title V of the CAA. The fundamental requirements of CAM are to: (a) monitor compliance in a manner that is sufficient to yield data that provide a reasonable assurance of compliance and allow an owner or operator to make an informed certification of compliance; (b) take necessary corrective actions in response to the monitoring data; (c) report on the results of such monitoring; and (d) maintain records of such monitoring. Effective Aug. 15. See http://www.legis.state.ia.us/Rules/2001/Bulletin/ACB010711.html 

red bar graphic KANSAS


Department of Health & Environment, Division of Environment


KDHE "Kansas Environmental News"


red bar graphic KENTUCKY


Office of State Auditor


Report Critical of Division of Water Regulation of Nonpoint Sources Released




  • The audit found: 

    "More than 180 concentrated animal feeding operations in Kentucky don't have state water pollution control permits required by the Environmental Protection Agency. The straight piping of human waste into waterways and the incidence of faulty sewage systems is largely undocumented and unaddressed across the state. Kentucky is in the dark about the impact of mining operations on water quality. The failure of Kentucky's Natural Resources and Environmental Protection Cabinet to coordinate the regulatory duties of its Division of Water and its Department for Surface Mining, Reclamation, and Enforcement threatens future coal slurry disasters like that which occurred in Martin County." See http://www.kyauditor.net/Public/Audits_Reports/Archive/2001KYNonpointSourceWaterPollution.pdf  


Dept. for Envtl. Protection, Division of Air Quality


Permit Applications/Hearing Notices 



Dept. for Envtl. Protection, Division of Water


Permit Applications  



Proposed Regulations-Concentrated Animal Feeding Operations



Proposed, Draft TMDLs


red bar graphic LOUISIANA


Dept. of Environmental Quality


Proposed Regulations-Air Quality-Revision to Emission Reduction Credits Banking Regulations (LAC 33:III.Chapter 6) 



Proposed Regulations-Air Quality-Control of Nitrogen Oxides Emissions (LAC 33:III.Chapter 22) 



Proposed Regulations-Air Quality-Control of Emission of Organic Compounds-Calcasieu Parish Area (LAC 33:III.2103, 2104, 2109, 2115, 2122, 2143, 2147, 2149, 2151, & 2153) 



Final Regulations-Asbestos-Containing Materials in Schools and State Buildings (LAC 33:III.2707 and 2721) 



Draft Five-Year Strategic Plan



Permit Applications


red bar graphic MAINE


Dept. of Envtl. Protection


Proposed Regulations-Air Quality




  • The Department is proposing to amend the following Chapter 100 definitions: fuel burning equipment, fugitive emissions, general process source, and Part 70 major source. The amendments clarify that rock crushers and asphalt plants are general process sources, Presque Isle is no longer classified as nonattainment for fine particulate matter, and fugitive emissions include emissions from buildings, material transfer, housing material, and processing equipment. The definitions of recovery boiler, six minute block average for non-continuous opacity monitors, and six minute block average for continuous opacity monitors have been added. The U.S. EPA  address has been deleted under that definition. Some of these definitions are being amended because of proposed changes to the Department's Ch. 101 Visible Emissions Regulation. Comments due Oct. 5. 



  • Chapter 101, Visible Emissions. The Department is proposing to repeal and replace this regulation which establishes opacity limits for several types of air emission sources. Opacity is the measure of the density of smoke emitted from a stack. The proposed changes make the opacity limits more stringent for certain types of sources, including recovery boilers, rock crushers, and large oil-fired boilers. Incinerators, permitted open burning, and municipal waste combusters are not regulated by this rule. Comments due Oct. 5. See http://www.state.me.us/sos/cec/rcn/apa/notices/081501.htm 


Final Regulations-Air Quality




  • Chapter 145, NOx Control Program. This new rule requires affected sources to install selective non-catalytic reduction or a control technology determined by the Board to achieve essentially equivalent NOx reductions on each unit by May 1, 2003. In addition to a control technology requirement, the rule establishes interim emission limitations for the period from June 15, 2003, through Dec. 30, 2004, and final emission limitations thereafter. The final emission limitations, which become effective on Jan. 1, 2005, require electric generating units with a maximum heat input capacity of less. than 750 million Btu per hour to meet a 0.22 lb./mm Btu emission limit. Electric generating units with a maximum heat input capacity of 750 million Btu per hour or greater must meet a 0.15 lb./mm Btu emission limit. Finally, indirect heat exchangers, primary boilers and resource recovery units with a maximum heat input capacity greater than 250 million Btu per hour must continue to meet the 0.20 lb./mm Btu emission limit. The rule also establishes provisions for an alternative emission limitation in the event a source cannot achieve the final emission limitations after installing and optimizing an approved control technology. Any source seeking an alternative emission limitation must apply to the Board before the Jan. 1, 2005, final emission limitation deadline, and has the burden of proof in demonstrating that achieving the final emission limitations is technically infeasible. Effective July 22. 

red bar graphic MARYLAND


Dept. of the Environment


General Permit-Water Quality




  • MDE has made a final determination to re-issue and modify discharge permits given to the state’s primary poultry producers. Poultry Processor Discharge Permits, also known as integrator permits, will authorize the poultry companies to continue operation of facilities in Berlin, Cordova and Showell on Maryland’s Eastern Shore. In brief, the Poultry Processor Discharge Permits: 

    (1) Apply to poultry companies only; 

    (2) Require the poultry companies to withhold chickens from the grower only if formal enforcement action for a water quality violation is taken against a grower, and appeals to that action are exhausted or not taken; 

    (3) Require the integrator to help growers develop nutrient management plans, research improvements in feed to reduce phosphorus in manure, provide training on manure management, and help growers with the distribution and use of excess manure; and  

    (4) Require the integrator to submit aggregate information from their growers about the total chickens grown, litter generated, and land available for its utilization and excess manure. Growers do not need to generate
    information not already required by Maryland Department of Agriculture for the Water Quality Improvement Act. See http://www.mde.state.md.us/wma/poultry/final%20allen%20perdue%20tysons.PDF 


Public Meetings/Hearings     



Water Quality Standard-Triennial Review



Maryland Achieves 37.75% Waste Diversion in 2000



Ozone Forecast


red bar graphic MASSACHUSETTS


Dept. of Envtl. Protection


Draft Amendments to 310 CMR 27.00, Underground Injection Control Regulations



Guidelines for Private Drinking Water Wells



Enforcement Actions


red bar graphic  MICHIGAN


Dept. of Envtl. Quality


Proposed Regulations-Air Quality



  • DEQ intends to formally adopt proposed revisions to the air pollution control rules (ORR 1998-036EQ) revising R 336.1210 through R 336.1215 and R 336.1299. These proposed rules include changes intended to address outstanding regulatory issues identified in the U.S. EPA’s Title V Interim Approval notice for Michigan’s Renewable Operating Permit Program. The proposed rules also include several provisions intended to increase operational flexibility at a permitted facility. See http://www.deq.state.mi.us/aqd/rules/rules.html. Following formal adoption, the rules will be submitted to the Office of Regulatory Reform and the Secretary of State. The proposed rules will take effect seven days after filing with the Secretary of State.

  • DEQ intends to develop a proposed revision to the air pollution control rules (ORR 2001-059EQ). The proposed amendments to R 336.1101, R 336.1105, and R 336.1113 define the words used in the proposed new rules for start-ups, shutdowns, and malfunctions that are being processed in ORR 2001-040EQ. The remainder of the changes are to bring the Part 1, General Provisions, of the Air Pollution Control Rules up to date with existing statutes and executive orders.

  • DEQ intends to formally adopt proposed revisions to the air pollution control rules (ORR 2001-001EQ) rescinding R 336.1913 and R 336.1914. This rescission is being proposed because the start-up, shutdown, and malfunction rules are not acceptable to the U.S. Environmental Protection Agency (EPA) and prevent EPA's approval of Michigan's Renewable Operating Permit Program. The proposed rescission can be viewed at http: www.deq.state.mi.us/aqd/rules/proposed%20Amendments.htm. Copies of the proposed rescission may also be obtained by contacting the Air Quality Division, Michigan Department of Environmental Quality, 106 West Allegan Street, P.O. Box 30260, Lansing, Michigan 48909-7760. Following formal adoption, the rescission will be submitted to the Office of Regulatory Reform and the Secretary of State. The proposed rescission will take effect seven days after filing with the Secretary of State.

Proposed Regulations-Environmental Response



  • These rules bring the rules for the state cleanup program under Part 201 up to date with statutory amendments enacted in 1995 and 1996. The rules provide for land use-based cleanup criteria; set forth algorithms for calculation of generic cleanup criteria; explain requirements for remedial action plans and other stages of response activity; clarify which types of response activity require DEQ approval; clarify affirmative obligations of liable persons; and update rules that deal with program administration, such as the inventory of contaminated sites, public funding for the cleanup program, and alternate water service. A public hearing will be held on Aug. 28 at the Forum Auditorium, Michigan Library and Historical Center, 717 West Allegan, Lansing, Michigan 48909. The hearing will take place from 1:00 p.m. to 5:00 p.m. and from 6:30 p.m. to 8:00 p.m. Copies of the proposed rules available at http://www.deq.state.mi.us/erd. Copies of the rules may also be obtained by contacting the Michigan DEQ, Environmental Response Division, 300 S. Washington Square, Lansing, Michigan 48933. Written comments must be received in the Environmental Response Division office identified above by 5:00 p.m., Eastern Daylight Time, on Sept. 11. Comments should be sent to Lynelle Marolf at the address above. Information Contact: Lynelle Marolf, Environmental Response Division, 517-373-9838; E-mail at marolfl@state.mi.us

Permitting Calendar  



Drinking Water Revolving Fund



  • MDEQ will hold a public hearing Aug. 28 on the draft Fiscal Year 2002 PPL for the DWRF that lists projects for which complete final Project Plans were submitted to the DEQ by May 1, 2001, and the draft Fiscal Year 2002 IUP. These documents can be found at http://www.deq.state.mi.us/ead/mfsect The public hearing will be held at Michigan DEQ, Environmental Assistance Division, 2nd Floor Town Center, Conference Room B, 333 S. Capitol, Lansing, Michigan. The hearing record will remain open to receive written comments until 5:00 p.m. on Aug. 31, 2001. Comments should be sent to Chip Heckathorn, Chief, Municipal Facilities Section, Environmental Assistance Division, Michigan DEQ, P.O. Box 30457, Lansing, Michigan 48909-7957. Information Contact: Chip Heckathorn, Environmental Assistance Division, 517-373-4725.

Corporate Clean Citizen Applications



  • Application for Clean Corporate Citizen (C3) designation from Unified Industries, Inc., 1033 Sutton Street, Howell, Michigan (Livingston County), as provided for under Administrative Rules R324.1507 to
    R324.1511: Clean Corporate Citizen Program. A decision on the C3 designation approval or disapproval will be made by Sept. 16. The C3 program provides incentives for improved environmental protection. Regulated establishments that have demonstrated environmental stewardship can receive C3 designation and public recognition for their efforts and are entitled to certain regulatory benefits. 

  • Application by Ford Motor Company-Engine Manufacturing Development Operations, Allen Park. A decision on the C3 designation approval or disapproval will be made by Sept. 18.

Permit Applications-Air Quality



Proposed Enforcement Consent Orders



Air Quality Division Newsletter



Surface Water Quality Division Bulletin


red bar graphic MINNESOTA


Pollution Control Agency


Proposed Amendment to Rule Governing Wastewater Treatment Assistance, Minnesota Rules Chapter 7077-
Notice of Intent to Adopt Expedited Rules without a Public Hearing



Permit Applications, Other Notices



Minnesota 2001-2005 Nonpoint Source Management Plan


red bar graphic  MISSOURI


Dept. of Natural Resources


Proposed Regulations-Air Quality




  • 10 CSR 10-6.050 Start-Up, Shutdown, and Malfunction Conditions. The Air Conservation Commission proposes to amend this rule by amending the Purpose section, adding new sections (1), (2), (4), and (5) and renumbering and amending original section (1) as new section (3). If the Commission adopts this rule action, it will be submitted to the U.S. EPA to replace the current rule in the Missouri SIP. This amendment will clarify what constitutes a malfunction, start-up, or shutdown condition. It will also determine the reporting requirements for each condition. The evidence supporting the need for this proposed rulemaking is the public comment from the U.S. EPA regarding complaints and notices of violation due to excess emissions commonly from the start-up, shutdown, and malfunction conditions at air pollution sources. This rule, applicable to all installations in Missouri, provides the owner or operator of an installation the opportunity to submit data regarding conditions that resulted in excess emissions. These submittals will be used by the director to determine whether the excess emissions were due to a start-up, shutdown, or malfunction condition. These determinations will be used in deciding whether enforcement action is appropriate. Public hearing Aug. 30; Comments due Sept. 6. See http://mosl.sos.state.mo.us/moreg/2001/v26n14/v26n14c.pdf
  • 10 CSR 10-6.280 Compliance Monitoring Usage. The Air Conservation Commission proposes to add new section (1), renumber original section (1), renumber and amend sections (2) and (3), and add new section (4). If the Commission adopts this rule action, it will not be submitted to U.S. EPA for inclusion in the Missouri State Implementation Plan because this rule only establishes methodology and does not establish requirements. Sept. 26 public hearing; comments due Oct. 3. See http://mosl.sos.state.mo.us/moreg/2001/v26n16/v26n16a.pdf   


Proposed Regulations-Water Quality-Preliminary Proposed Changes to the Missouri §303(d) list



Emergency Regulation-Drinking Water-Grants



  • 10 CSR 60-13.010 Grants for Public Water Supply Districts and Small Municipal Water Supply Systems. DNR has added criteria for providing grants for source water protection under the Conservation Reserve Enhancement Program (CREP). Applicants for this funding must have a Department-approved source water protection program. It adopts criteria for making grant money available for rental enhancement grant payments under the CREP. These grants will help local political subdivisions provide better protection of source water used for public drinking water. The grants will be used to compensate farmers for taking agricultural land out of production in critical source water protection areas. This will protect public health, safety, and welfare by decreasing sediment, nutrient, and pesticide run-off into water sources used for public drinking water purposes. Money is available for CREP grants in state fiscal year 2001. This emergency amendment is necessary to use the money available for this purpose this fiscal year. See http://mosl.sos.state.mo.us/moreg/2001/v26n12/v26n12a.pdf 

Proposed TMDLs



Water Pollution Control-Permit Applications


red bar graphic MONTANA


Dept. of Envtl. Quality


Permit Application, Public Comment Notices


red bar graphic NEBRASKA


Dept. of Envtl. Quality


Proposed Regulations-General


red bar graphic NEW HAMPSHIRE


Dept. of Envtl. Services


Proposed Regulations-Air Quality




  • Proposed amendments to Env-A 1406.04 (clarifies the existing rule on in-stack concentration method) and 1450.01 (updates the list of all regulated toxic air pollutants). The proposed amendments to Env-A 1406.04 clarify the existing rule by specifying that the in-stack concentration method is based on uncontrolled emissions. The proposed amendments to Env-A 1450.01 updates the list of all regulated toxic air pollutants, classifications, and ambient air limits in accordance with RSA 125-I:4. Hearing was Aug. 23; comments due Sept. 4. See http://www.des.state.nh.us/ard/prpsdrul.htm and http://www.des.state.nh.us/hearings.htm 



  • Sept. 11 hearing on proposed rule that would require that any heavy-duty diesel engine in a motor vehicle manufactured for model year 2005 or 2006 be certified to meet the California standard for such engines before it can be sold in New Hampshire. The purpose of the rule is to reduce emissions of nitrogen oxides and particulate matter by filling a 2-year gap in the federal standard and, thus, preventing any backsliding by manufacturers. Manufacturers are currently required to meet this standard and will be required to meet it after model year 2006, so this rule will not cause them to change their manufacturing process. See http://www.des.state.nh.us/ard/prpsdrul.htm 


Proposed Regulations-Asbestos Disposal




  • Hearing was Aug. 22; comments due Sept. 3. Concerns management of asbestos disposal sites, including those located in Nashua and Hudson, N.H. The proposed rules specify provisions for covering, monitoring, and maintaining the disposal sites. The rules also specify safe work practices and work plan requirements for excavating or otherwise disturbing the sites. In addition, the rules identify certain notification and disclosure requirements. The proposed rules are posted on the DES website at http://www.des.state.nh.us/rules/asbrules

red bar graphic NEW JERSEY


Dept. of Envtl. Protection


Freshwater Wetlands Regulations; Final Regulations, Proposed Regulations 




  • Final regulations become effective Sept. 4. The rule package includes the following: Special protection for small wetland vernal habitats that are crucial to the breeding of several amphibian species, some of which are threatened or endangered; limits on the placement of new homes near transition areas, or "buffers," to avoid creating backyards that cannot be used because it is a regulated area; stronger penalties for failure to promptly perform required mitigation; more efficient application and permitting procedures including combined general permits and transition area waivers, and combined freshwater wetlands and floodplain permits for some activities that occur in wetlands located in floodplains; stricter limits on the use of the general permit for isolated wetlands in certain waters; new general permits for landfill closures, stream cleaning by local governments, tree cutting for airport safety, livestock watering troughs, and brownfields redevelopment; and standard operating procedures to protect wetlands during dam removal, brownfield redevelopment, and landfill closure. The rule provides new protection for vernal habitats which are isolated wetlands recently found to be key breeding grounds for numerous amphibian and plant species. See http://www.state.nj.us/dep/landuse/announce/announce.html#fwwadoption and http://www.state.nj.us/dep/newsrel/releases/01_0092.htm 



  • Three additional proposed changes are the subject of Sept. 27 hearing. See http://www.state.nj.us/dep/landuse/announce/announce.html#fwwadoption 


2002 Water Quality Limited Segments List 



  • DEP is requesting submission of water quality related data to support the development of the 2002 Water Quality Limited Segments List under §303(d) of the federal CWA and Subchapter 6 of the New Jersey Watershed Management Planning Rules (N.J.A.C. 7:15-6). The Water Quality Limited Segments List is used to establish priorities for implementation of water quality improvement measures including, as appropriate, development of TMDLs. Data received through this solicitation may be used to: (1) confirm impairment of a waterbody and/or presence of a pollutant that is currently on the 1998 Water Quality Limited Segments List; (2) delist a waterbody and/or a pollutant that is currently on the 1998 Water Quality Limited Segments List; or (3) list a waterbody and/or a pollutant that is not included on the 1998 Water Quality Limited Segments List. Submit material to DEP, Division of Science, Research and Technology, Water Assessment Team, 1st Floor, 401 East State Street, P.O. Box 409, Trenton, New Jersey 08625-0409.  

Current DEP Bulletin (Permit Applications; Proposed Regulations) 


red bar graphic NEW MEXICO


Environment Department


Proposed Solid Waste Management Regulations, 20 NMAC 9.1



Proposed TMDLs


  red bar graphic  NEW YORK


Dept. of Envtl. Conservation


Proposed Regulations-6 NYCRR Part 638, Green Building Tax Credit



Emergency Regulations-Air Quality



  • Amendments to the following parts and subparts of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York: Part 200, General Provisions, Part 201, Permits and Registration, Subpart 225-1, Fuel Composition and Use- Sulfur Limitations and Subpart 227-2, Reasonably Available Control Technology (RACT) for Oxides of Nitrogen (NOx). The New York State Public Service Commission, the New York State Energy Research and Development Authority, the New York Independent System Operator (the NYISO), and the New York State Reliability Council have expressed concern about the ability of the electricity generation, transmission and distribution system (the electric grid) in New York State to accommodate increasing loads without additional generation. These parties, all of whom share some responsibility for assuring the reliability of the electric grid in New York State, are concerned that, during the summertime peak electricity demand periods, existing generation capacity in New York State may be insufficient and power outages may occur. This potential supply shortfall is expected to disappear when the first new central electricity generating plants, currently being sited pursuant to the Public Service Law Article X process, begin operating. This should happen prior to the summer of 2003.

  • In response to the above-described concerns, the NYISO developed an Emergency Demand Response Program (EDRP) for the 2001 and 2002 peak demand periods. The EDRP is meant to encourage certain electricity customers to reduce electrical demand during emergency situations to help assure that demand will not outstrip supply and the need for load shedding (rolling blackouts) will not arise. Much of this demand reduction potential will come from the availability of emergency generation capacity. Previously, the DEC’s regulations only allow emergency generators to operate when the usual source of power is actually interrupted rather than when interruption is imminent. These amendments will permit emergency generators that are part of the EDRP to operate for up to 200 hours per year when called on by the NYISO in situations where load shedding is imminent. The emergency generators that take part in the EDRP will be defined as "centrally dispatched emergency power generating units" and the emergency generators that may be used when the primary source of power is actually unavailable will be defined as "facility specific emergency power units." "Centrally dispatched emergency power generating units" must refuel with fuel having a sulfur content of no more than 30 parts per million sulfur unless deemed unavailable. These units, "centrally dispatched emergency power generating units" and "facility specific emergency power generating units," will retain their exemption from the NOx RACT requirements of Subpart 227-2 provided they operate within the parameters of their Part 201 exemptions. 

Draft Regulations-Air Quality-Acid Rain Control



  • DEC released draft acid rain standards. The new draft regulations have been forwarded to the Governor's Office of Regulatory Reform, which will review them with stakeholder groups prior to their formal proposal. Once formally proposed, the public will have at least 45 days to review and comment on the draft regulations. After evaluating all public comments, a final regulation will be sent to the State Environmental Board, which will submit its recommendation on whether to adopt the regulation to the DEC Commissioner. The draft regulations are in response to Governor Pataki's direction to DEC to issue regulations requiring electric generators in the state to further reduce sulfur dioxide emissions by 50% beyond federal CAA requirements by 2007, and to expand summertime NOx controls to year-round in 2003. Under the new regulations, SO2 emissions would be reduced by an additional 130,000 tons annually, and NOx emissions would be reduced by 20,000 tons annually. The rules would require that NOx controls, already in place for most facilities in the summertime ozone season, be used year-round beginning in 2004, and that sulfur dioxide controls be in place by 2008. The compliance dates were extended by one year in order to accommodate the additional investment and construction of control equipment. The draft regulations contain a provision that allows an individual facility a temporary exemption from emission requirements if the State Department of Public Service determines that compliance would imperil the reliability of the New York State electric power system. See http://www.dec.state.ny.us/website/press/pressrel/2001-100.html

Emergency Regulations-Radioactive Waste



  • An Emergency Adoption was filed with the Department of State and became effective on July 6, 2001, to amend 6 NYCRR Part 380 to regulate the disposal of the radioactive wastes generated by the extraction or concentration of uranium or thorium where such waste is not regulated by the NRC. This emergency rule was proposed for permanent adoption in the State Register on Nov. 15, 2000. It allows for this rule to be in effect while it goes through the rulemaking process for permanent adoption. The purpose of the rule is to control the disposal of wastes contaminated with the radioactive wastes from the extraction of uranium and thorium from ores. The rule requires that these radioactive wastes be disposed of at facilities authorized to accept radioactive waste, and will effectively exclude them from Part 360 and Part 373 landfills, unless a variance to Part 380 is requested and granted. Variances may be granted for slightly contaminated wastes, if the proposed disposal will have no significant adverse impact on the public health and safety or the environment. This emergency rule will be effective for 60 days from the date of filing with the Department of State, i.e., until Sept. 4, 2001.

Draft Enforcement Directive



  • Final draft of the Enforcement Directive entitled Management of Coal Tar Wastes and Soils and Sediments Contaminated with Coal Tar from Former Manufactured Gas Plants (MGPs). The main purpose of this directive is to facilitate the permanent treatment of soil contaminated with coal tar from the sites of former MGPs. This guidance outlines the criteria wherein coal tar waste and soils and sediment that have been contaminated with coal tar waste from former MGPs only exhibiting the toxicity characteristic for benzene (D018) may be conditionally excluded from the requirements of 6 NYCRR Parts 370 -374 and 376 when they are destined for permanent thermal treatment. Copies of the final draft of the Enforcement Directive and Responsiveness Summary are available from Eric Obrecht, Division of Environmental Remediation, DEC, 625 Broadway, Albany, NY 12233-7012.

ALJ Rulings



Environmental Notice Bulletin (Permit Applications) 



Permit Applications



Coastal Management Program Notices


red bar graphic  NORTH CAROLINA


Office of the Governor


Gov. Easley Appoints Robert Howard As Chairman Of Clean Water Management Trust Fund



Legislature


Enacted, Passed Legislation



Dept. of Env't and Natural Resources


Hearings On Proposed Coastal Area Management Act Land-Use Planning Improvements 



  • Through Sept. 12. The Coastal Area Management Act (CAMA) requires the 20 coastal counties to develop land-use plans and update them regularly. The practice is optional for cities and towns in those counties. CAMA gives the Coastal Resources Commission (CRC) authority to approve the plans. The CRC is considering needed improvements in the planning guidelines and the way the state helps local governments pay for coastal land-use plans. The new guidelines have several goals, including:

    · Giving local governments more flexibility to tailor planning to meet local needs;

    · Improving coastal water quality by requiring local governments to adopt policies that prevent or control stormwater runoff;

    · Strengthening public education requirements to ensure that all segments of the community, including non-resident property owners, have the opportunity to take part in the development of the land-use plan; and

    · Encouraging the implementation of plans by providing financial incentives to local governments and requiring them to submit periodic reports about the status of their plan. See http://dcm2.enr.state.nc.us/ and http://www.enr.state.nc.us/newsrels/long4.htm 

Proposed Regulations-Laboratories 



  • Proposed amended rules will set forth certification criteria for laboratory facilities performing any tests, analyses, measurements, or monitoring required under G.S. 143, Article 21, or any rules adopted thereunder, and to update the fees for certification. The rules apply to laboratory facilities that perform analyses for persons subject to G.S. 143-215.1, 143-215.63, et seq.; the Environmental Management Commission Rules for Surface Water Monitoring and Reporting (15A NCAC 02B .0500); Groundwater rules (15A NCAC 02L .0100, .0200, and .0300); Waste Not Discharged to Surface waters rules (15A NCAC 02H.0200); Point Source Discharges to the Surface Waters rules (15A NCAC 02H .0100); Local Pretreatment Programs (15A NCAC 02H .0900); and the Underground Storage Tank Program of the Division of Waste Management and will be formally proposed this summer. 

Proposed Regulations-Coastal Management; Land Use Planning Guidelines



  • In November 1998, the CRC authorized the appointment of the Land Use Plan Review Team to evaluate the CAMA land use planning program and make recommendations for improvement. Based on the recommendations submitted in September 2000, the CRC is revising its land use planning guidelines (Subchapter 07B). The revised guidelines aim to improve the quality of local plans by better supporting the purposes and goals of CAMA. The rules include simple, clear requirements for land use plans, improved land suitability analysis, and management topics to tie land use plans to CAMA goals and will be formally proposed this summer. 

For information on the preceding notices, see http://oahnt.oah.state.nc.us/intranet/register/Volume15Issue23.pdf


Division of Air Quality Permit Applications, Hearings



Division of Air Quality Penalty Assessments



DENR Enforcement Data



Water Quality-Basinwide Assessment Reports



Draft Air Quality Regulations


red bar graphic  OHIO


Envtl. Protection Agency


Four Clermont County Companies Agree to Pay $126,990 in Penalties for Air Violations



C.W. Zumbiel Co., Cincinnati, Agrees to Pay $20,000 Civil Penalty



OEPA Actions, Notices by County



Public Meetings



Pending Air Permits


red bar graphic OREGON


Dept. of Envtl. Quality


DEQ Issues $373,580 Penalty For Sewage Disposal Problems at Mobile Home Park near Seaside



Final Regulations-Underground Injection Controls



  • The rules prohibit the use of large capacity cesspools and systems that dispose of motor vehicle waste or hazardous materials such as petroleum products, anti-freeze, and solvents. They also require that injection system owners contact the Oregon Department of Environmental Quality prior to constructing new injection systems. The revised rules give more direction on the kinds of stormwater injection systems that are allowed. After September 2001, owners of some kinds of injection systems will be required to have stormwater management plans to keep pollution out of stormwater before it is injected. See http://waterquality.deq.state.or.us/wq/groundwa/uichome.htm and http://www.deq.state.or.us/news/releases/255.htm 

Air Permit Applications 



Water Quality Permit Applications



Proposed Regulations-General 



Public Notices-Cleanup Remedies



Public Notices-Remedial Actions


red bar graphic PENNSYLVANIA


Dept. of Envtl. Protection


NPDES Permit Applications



Rescinded Technical Guidance Documents



  • DEP ID: 254-2153-748 Title: Use of Whole Tires and Tire-Derived Material (TDM) in the Construction of Municipal Waste Landfills. This policy became effective on June 22, 1992. The technical guidance document provided guidance to the public on the use of whole waste tires and TDM in the construction of municipal waste landfills. In 1996, the Waste Tire Recycling Act (Act 190) was passed and signed into law. Many of the provisions included in the TDM guidance are addressed and cited in Act 190, and the Commonwealth's Municipal Waste Regulations, recently amended and promulgated on Dec. 23, 2001, covering the issues originally spelled out in the TDM guidance. Due to duplication of provisions which exist by regulation and law, this document provides no additional information or guidance to the public and will be rescinded. 

  • DEP ID: 258-2100-747 Title: Municipal-Like Residual Waste and DEP ID: 258-2000-766 Title: Municipal Waste-Like Permitting Guidance (Form S). Prior to sending waste for disposal or processing, generators of residual waste in this Commonwealth are required to submit Form U to DEP. Information submitted on Form U must include detailed data on the physical and chemical properties and waste characteristics of the generator's nonhazardous waste streams. However, manufacturers and other industry often produce waste that has the same physical and chemical characteristics as residential municipal waste. Examples of waste can include paper waste, lunchroom waste, wood trimmings and fabric trimmings. In order to streamline and make the disposal or processing of this type of waste easier, in 1992 the term ''municipal-like residual waste'' was incorporated and used in DEP permit forms.

    ''Municipal-like Residual Waste'' is a type of waste that requires less stringent chemical testing in order to be processed or disposed. In order to develop a documentation process for requests to dispose of ''municipal-like residual waste,'' the DEP developed a new form, Form S. In addition to this form, DEP also developed two policies (Policy Number 258-2100-747 and Policy Number 258-2000-766). These policies, which became effective in 1992 and 1993 respectively, provide guidance to DEP's regional staff on ''municipal-like residual waste.'' Policy number 258-2100-747 provides guidance to staff when they are evaluating requests to dispose of residual waste that exhibits the same characteristics as municipal waste. Policy number 258-2000-766 provides guidance in the permitting process relative to residual waste which is municipal-like. In 1996-1997, under the Regulatory Basics Initiative, the term ''municipal-like residual waste'' was proposed to be incorporated into the Commonwealth's municipal and residual waste regulations. As a result of this proposal, the public became confused about the term and its meaning. Regulatory commentators expressed that the addition of the term did not add any clarity. Furthermore, the commentators also stated that the term was not used consistently and, as a result, created a fourth waste class.

    As a result of the comments received regarding the addition of the proposed term, the Environmental Quality Board deleted the term ''municipal-like residual waste'' from the Commonwealth's final municipal and residual waste regulations. The final-form regulations continue to allow DEP to waive the detailed chemical analysis required for the disposal of residual waste if certain performance standards are met under §287.134 (relating to waste analysis plan). Given these regulatory changes, which became effective on Dec. 23, 2000, for the municipal waste regulations and on Jan. 13, 2001, for the residual waste regulations, Policy Number 258-2100-747 and Policy Number 258-2000-766 are no longer needed and do not provide accurate information to the public, and will be rescinded. See http://www.pabulletin.com/secure/data/vol31/31-32/1467.html 

red bar graphic RHODE ISLAND


Dept. of Envtl. Management


2002-2003 Strategic Work Plan 



Draft Environmental Equity Policy



Upcoming Events


red bar graphic SOUTH CAROLINA


Office of the Governor


Plutonium Shipment Restrictions Sought



  • Governor Hodges called upon Department of Public Safety to, if necessary, evaluate options such as "highway roadblocks or other measures" to keep out-of-state plutonium waste from entering the state in transit to the U.S. Department of Energy Savannah River Site. See http://www.state.sc.us/governor/pressrelease.html 

Dept. of Health and Envtl. Control


Emergency Regulations--Swine Facilities with 1,000,000 Pounds or More of Normal Production Animal Live Weight at Any One Time



  • Filed Aug. 8, effective for 90 days. On April 23, Governor Jim Hodges issued Executive Order No. 2001-11 which declared a State of Emergency due to the threat of a disaster within the State due to additional larger swine facilities proposing to locate in South Carolina. The Executive Order also ordered the "Board of Health and Environmental Control to meet at the earliest possible time to consider an administrative moratorium on the issuance of permits for swine facilities, lagoons and associated waste management plans or other appropriate action that will allow sufficient time for exploration of and analysis of the issues associated with the handling, storage, treatment and final disposal or utilization of wastes created by these facilities." The Board of Health and Environmental Control, as directed by the Governor, met and imposed a moratorium on issuance of permits for swine facilities until Aug. 9, 2001. While the Department is proposing revisions to S.C. Regulation 61-43, Standards for the Permitting of Agricultural Animal Facilities, the new emergency rule will address the emergency until Regulation 61-43 can be permanently amended, anticipated to take place by approximately June 1, 2002. The time period between the moratorium expiration date and probable legislative approval of the proposed regulation includes hurricane season. The regulation does not create a new permit, but ensures that appropriate requirements are applied to swine facilities permitted for 1,000,000 pounds or more of normal production animal weight at any one time until Regulation 61-43 can be permanently amended. See http://www.scdhec.net/co/regs/ 

  • For background, on the emergency rule issued Apr. 23 (with a maximum 15-day limit), but extended by DHEC until Aug. 9, see http://www.scdhec.net/eqc/water/html/agmorat.html and http://www.scdhec.net/eqc/water/pubs/agmotion.pdf. See also http://www.scdhec.net/news/releases/2001/html/nr05brd01.htm

Draft Regulations-Air Quality



  • Comments due Aug. 27 regarding U.S. EPA 8-hour ozone control implementation (Notice of Drafting). 

Proposed Regulations-Hazardous Waste




  • Proposed Amendment of R.61-79, Hazardous Waste Management Regulations: U.S. EPA promulgates amendments to 40 C.F.R. pts.124, 260 through 266, 268, 270, and 273 throughout each calendar year. Recent amendments include revised standards for hazardous air pollutants for hazardous waste combustors (MACT standards); technical amendments to Land Disposal Restrictions Phase IV; a new rule which allows certain generators of F006 sludges up to 180 days to accumulate without a permit under specific conditions; the vacating of previous listings for organobromine production wastes; and other minor amendments. In addition, minor typographical errors may be corrected to achieve conformity with federal regulations. These rules and other amendments have been published in the Federal Register between Sept. 30, 1999, and June 30, 2000. DHEC intends to amend R.61-79 to adopt federal amendments through June 30, 2000, to maintain conformity with federal requirements and ensure compliance with federal standards. No preliminary assessment report, preliminary fiscal impact statement, nor legislative review of this proposed amendment is required. A Notice of Drafting was published in the State Register on Sept. 22, 2000; the drafting comment period closed Oct. 27, 2000. A Notice of Proposed Regulation appeared in the State Register on July 27,  regarding public comment and an Informational Forum. For additional information, contact Ms. Suzanne Rhodes, DHEC, Bureau of Land and Waste Management, 2600 Bull St., Columbia, S.C. 29201; Phone: 803/896-4000; E-mail address: rhodessh@columb34.dhec.state.sc.us.



  • DHEC is proposing amendments to R.61-79 to remove state provisions that are not required for federal compliance and that provide financial assurance for restoration of environmental impairment. Removal of these provisions is proposed as a result of an Apr. 4, 2000, decision of the South Carolina Court of Appeals. This amendment will remove the environmental impairment regulations which were published as proposed in the State Register on June 24, 1994, and published as final regulations in the State Register on June 23, 1995, as Document No. 1823. Affected sections are R.61-79.264, subsections .152, and .153 and cross-references at 264.140 and 265.140. Legislative review will be required. A Notice of Drafting was published in the State Register on Oct. 27, 2000. The drafting comment period closed Nov. 27, 2000. A Notice of Proposed Regulation appeared in the State Register on July 27. For additional information, contact Ms. Suzanne Rhodes, DHEC, Bureau of Land and Waste Management, 2600 Bull St., Columbia, S.C. 29201; Phone: 803/896-4000; E-mail address: rhodessh@columb34.dhec.state.sc.us.



  • Certain waste residues from the production of butyl tins have been demonstrated to be hazardous to marine flora and fauna. Both state and federal laws allow for the promulgation of such regulations, procedures or standards, as may be necessary to protect the health and safety of the public, the health of living organisms, and the environment. DHEC intends to add state listings for solid wastes containing certain organo-tin compounds to R.61-79.261. The intention of this amendment will be to bring certain organo-tin compounds under hazardous waste regulation, since mismanagement of these compounds poses a threat to human health and the environment. Legislative review will be required. A Notice of Drafting was published in the State Register on Dec. 22, 2000. The drafting comment period closed Jan. 22, 2001. A Notice of Proposed Regulation appeared in the State Register on July 27, 2001. For additional information, contact Ms. Suzanne Rhodes, DHEC, Bureau of Land and Waste Management, 2600 Bull St., Columbia, S.C. 29201; Phone: 803/896-4000; E-mail address: rhodessh@columb34.dhec.state.sc.us.


Proposed Regulations-Drinking Water Quality




  • Proposed Amendment of R.61-58, State Primary Drinking Water Regulations. DHEC proposes to revise the regulations to include requirements promulgated under the National Primary Drinking Water Regulations: Public Notification Rule, and the Radionuclide Rule. The Public Notification Rule revises current public notification procedures requiring public water systems to notify the public any time a water system violates a primary drinking water regulation or has other situations posing a risk to public health. This rule applies to all public water systems. The Radionuclide Rule revises the monitoring requirements for radionuclides. Monitoring and reporting of radionuclides applies to Community public water systems. This action is mandated by the 1996 amendments to the federal SDWA. Proposed regulations will comply with 40 C.F.R. pts. 141 and 142. The final Public Notification Rule was published in the May 4, 2000, Federal Register, with an effective date of June 5, 2000. Primacy states must adopt this rule by May 6, 2002. The Radionuclide Rule was published in the Dec. 7, 2000, Federal Register, with an effective date of Dec. 8, 2003. Other minor revisions will include, but not be limited to, deletion of the Maximum Contaminant Level for Nickel and the aldicarbs, deletion of the Phase I VOC monitoring for surface water systems and the review of the analytical methodology for coliform. These revisions are to align the State Primary Drinking Water Regulations with federal regulations. The proposed regulations will comply with federal law and are exempt from legislative review; neither a preliminary assessment report nor a fiscal impact statement is required.


Permit Application Notices


red bar graphic  TENNESSEE


Dept. of Environment and Conservation


Board Meeting Agendas, Schedules



Moratorium on Air Permit Construction, Major Expansion Approvals for "Merchant Peaking Power Plants"



  • For those commercial facilities intending to sell most of their produced power to out-of-state utilities, pending an analysis of environmental impacts. The move follows similar steps by Georgia and Kentucky and does not apply to public utilities. A task force has been established by the Governor's office to examine the matter, although no date for expiration of the moratorium or completion of study has been set. See http://www.state.tn.us/environment/permits/airconst.htm  

Transfer of Land



Underground Storage Tanks-Rule Interpretation Memos



Proposed Regulations-Air Quality



  • Subparagraph 1200-3-9-.01 (4)(b) is amended by making amendments to three definitions in the subparagraph and adding eight definitions as follow: Item (II) of subpart (i) of part 1 is amended by deleting the number "50" and inserting in its place the number "250". Part 2 is amended by adding five items, and Part 22 is amended by deleting "subparts (i) through (iii)" in the opening to the part and inserting in its place " the subparts," inserting "(other than an electric utility steam generating unit specified in subpart (v) below)" between "unit" and "which" in subpart (iv), and adding a subpart. Subparagraph (b) is amended by adding eight parts dealing with following: Electric utility steam generation unit, Pollution control project, Representative actual annual emissions, Clean coal technology, Clean coal technology demonstration project, Temporary clean coal technology demonstration project, Repowering and Reactivation of a very clean coal-fired electric utility steam generating unit. Subparagraph (d) of paragraph (9) of rule 1200-3-26-.02 Construction and Annual Emmission Fees. This rule allows the assessment and collection of fees necessary to run the Title V program within the DEC. Hearing was Aug. 20. See http://www.state.tn.us/environment/news/ppo/sunshine.htm  

Permit Applications



Metropolitan Nashville and Davidson County Health Department, Pollution Control Division


Air Quality Data


red bar graphic  TEXAS


Natural Resource Conservation Commission


Draft Innocent Owner/Operator Guidance




    Proposed Regulations-Underground Injection Wells



    Proposed Regulations-Procedure



    Proposed Regulations-RCRA Cluster Rule



    • RCRA Cluster Rules-Phase II. The rulemaking would revise TNRCC rules to conform to certain federal
      regulations as part of the on-going RCRA authorization process. It would lead to a completion of the required RCRA cluster rules by adding certain hazardous waste air emission interim status and permitting standards to other requirements of Cluster's VII-X in Rule Log No. 2000-044-335-WS. In addition, inconsistencies and errors such as statutory citations and rule references identified in a previous review of Chapter 335 will be edited along with editorial and administrative corrections to improved the readability of the chapter. Comments due Sept. 24. See http://www.tnrcc.state.tx.us/oprd/rule_lib/proposals/00044a305_pro.pdf (Ch. 305 revisions), http://www.tnrcc.state.tx.us/oprd/rule_lib/proposals/00044a335_pro.pdf (Ch. 335 revisions). 

    Proposed Regulations-Air Quality



    • HB 2134: Chapter 114, Inspection and Maintenance (I/M) Program. Includes revisions that will implement portions of House Bill 2134, related to test on resale and waivers. Also includes a proposal to increase fees for the El Paso area should the county opt into LIRAP (low-income vehicle repair assistance, retrofit, and accelerated vehicle retirement program). Additionally, §114.52 will be deleted from the chapter and will be adopted by the Texas Department of Public Safety. Separate from HB 2134, the proposed rules revise the I/M testing network design; adjust administration fees; and provide incentives for inspection stations for early participation in the I/M program. Sept. 13, 14 hearings; comments due Sept. 14. See http://www.tnrcc.state.tx.us/oprd/hearings/01035114_phn.pdf (notice), http://www.tnrcc.state.tx.us/oprd/rule_lib/proposals/01035114_pro.pdf (proposal). 

    • HB 2912, HB 2947, and SB 688: Notice Requirements. Relating to the issuance of certain permits for the emission of air contaminants. This proposal would establish insignificant levels for agricultural facilities, de minimis levels for all other facilities, and criteria for the meaning of net increase, for the purpose of public notice. This addresses the notice and other requirements in Article 2 of HB 2912, HB 2947, and SB 688.688. This bill project has been identified as a project with a short timeline for implementation, because it affects applications for permit amendments pending before the commission on 9/1/01 or filed with the Commission on or after 9/1/01. Hearing Sept. 20, comments due Sept. 24. See http://www.tnrcc.state.tx.us/oprd/hearings/01028a039_phn.pdf (notice), http://www.tnrcc.state.tx.us/oprd/rule_lib/proposals/01028a039_pro.pdf (proposal).

    Permit Hearings



    Public Hearings/Proposed Rule Tracking Log



    Implementation of Laws Passed During the 77th Texas Legislative Session


    red bar graphic  UTAH


    Dept. of Envtl. Quality


    Proposed Regulations-Air Quality



    Proposed Regulations-Hazardous Waste



    Permit Applications


    red bar graphic VERMONT


    Dept. of Envtl. Conservation


    Permit Applications


    red bar graphic VIRGINIA


    Dept. of Envtl. Quality


    Public Meeting, Hearing Notices; Other Regulatory Notices



    • Available at http://www.deq.state.va.us/public/permits.html and http://www.deq.state.va.us/cgi-bin/deq/prweb/BrowseIndex.cgi?URL_NAME=CALENDAR

    • Air Pollution Control Board; Proposed NOx SIP Call Implementation. See http://www.deq.state.va.us/pdf/air/planning/D9805PC.pdf and http://www.deq.state.va.us/pdf/air/planning/D9804TP.pdf for background information. In general, DEQ is seeking comment regarding how to redraft the proposed regulation to meet the federal requirements. However, there are specific issues relative to the changes required by the new legislation on which DEQ is seeking comment. The department is also seeking comment on how to redraft the proposed regulation to address the EPA comments in combination with a June 8, 2001, decision of the U.S. Court of Appeals for the District of Columbia remanding the growth factors that EPA used for the electric generating unit emissions budgets in the NOx SIP Call Rule for reconsideration. In addition, there are specific issues on which DEQ is seeking comment, as noted in the background document. See generally http://www.deq.state.va.us/air/planning/noxsip.html.

    • Sept. 26 hearing to receive comments on the proposed revision to the Regulations for the Control and Abatement of Air Pollution, concerning minor new and modified source review (9 VAC 5 Chapter 80, Revision YY) and the State Implementation Plan. On Feb. 15, 1999, the Board published a proposal (hereafter called the original proposal) to amend its regulations concerning new and modified new source review. In response to that request, comments were submitted that resulted in several changes being made to the original proposal. Because of the nature of the changes, the Board is not seeking comment on the additional changes. See http://www.townhall.state.va.us/meeting/viewMeeting.cfm?MEETING_ID=1276 

    • Sept. 20 Air Pollution Control Board meeting. See http://www.townhall.state.va.us/meeting/viewMeeting.cfm?MEETING_ID=1261 

    • Advisory Committee Meeting - General VPDES Permit for Car Washes, Aug. 28. See http://www.townhall.state.va.us/meeting/viewMeeting.cfm?MEETING_ID=1273 

    • Waste Management Board, Advisory Committee Meeting-Solid Waste Amendment 3. See http://www.townhall.state.va.us/meeting/viewMeeting.cfm?MEETING_ID=1274   

    • Advisory Committee Meeting-Regulation for Reuse of Reclaimed Wastewater, Sept. 11. See http://www.townhall.state.va.us/meeting/viewMeeting.cfm?MEETING_ID=1199   

    • The Virginia Waste Management Board is proposing to amend the Hazardous Waste Management Regulations, 9 VAC 20-60-10 et seq., in Amendment 15 A. Changes proposed include:

      (1) The removal of analogous text in Part XI and its replacement with language incorporating federal text from Title 40 of the Code of Federal Regulations is a major change to the regulations proposed in Amendment 15 A. 

      (2) In 9 VAC 20-60-262, the requirement is removed for generators to give a 15 day prior notification before creating a new accumulation area. 

      (3) In 9 VAC 20-60-264 B 16 & 17, the use of “hazardous constituent” as used in 40 CFR 294.93 is expanded to include 40 C.F.R. pt. 294, Appendix IX constituents, and 40 C.F.R. §264.94(a)(2) is changed to include current primary drinking water standards rather than an out-dated table included in the federal text. U.S. EPA is examining its policy regarding state programs for universal waste that allow crushing of the waste lamps (mercury containing bulbs). In its own universal waste rules for used lamps (incorporated by reference in the proposed regulations), it does not allow crushing; however, many state programs, including Virginia’s, allow crushing. The proposed regulation, in a separate provision, allows crushing under controlled conditions. Hearing was Aug. 15; Sept. 14 comment deadline. See http://www.deq.state.va.us/cgi-bin/deq/prweb/BrowseRecord.cgi?URL_NAME=NOTICE&ID=172 

    red bar graphic  WASHINGTON


    Dept. of Ecology


    Proposed Regulations



    State Environmental Policy Act Register



    Department of Transportation


    Report on Transportation Equity Act for the 21st Century (TEA-21) Implementation


    red bar graphic WEST VIRGINIA


    Dept. of Envtl. Protection


    Public Notice Bulletin (Permit Applications, Proposed Regulations)



    • Latest issue available at http://www.dep.state.wv.us/pio/publicnotice/latestbulletin.pdf

    • Aug. 27 public hearing on proposed TMDL for Paint Creek and 14 tributaries.

    • Public hearing on proposed TMDL for Lower Elk River, Aug. 28

    • Public hearing on proposed TMDL for Stony River and four tributaries, Aug. 29

    • Public hearing on proposed TMDLs for Monongahela River, Aug. 30

    See http://129.71.240.41/pio/pubinfocalendar.cfm 

    red bar graphic WISCONSIN


    Dept. of Natural Resources


    Proposed Regulations-Air Quality-Mercury Emissions From Coal-Fired Power Plants



    • Sept. 5, 6, 11 informational meetings; formal hearings will follow. The proposed rule would cut mercury emissions by 30% within 5 years, 50% in 10 years, and 90% in 15 years from four electric utilities in the state with significant mercury emissions. See http://www.dnr.state.wi.us/org/caer/ce/news/on/index.htm#art1 

    Air Rules Development



    Public Hearing and Meeting Schedule



    red bar graphic WYOMING


    Dept. of Environmental Quality


    NPDES Permit Applications



    Draft Regulations-Water Quality


    Copyright© 2001, Environmental Law Institute, Washington, D.C. All rights reserved. 

    INTERNATIONAL
    large red bar graphic

    red bar graphic GENERAL


    red bar graphic CLIMATE CHANGE



    • Scientists, reporting in the journal Science, say there could be significant health benefits from greenhouse gas reductions--saving as many as 6,000 premature deaths in the Americas. They point, among other things, to health benefits realized during the period of the 1996 Olympics when Atlanta instituted transportation controls. See http://news.bbc.co.uk/hi/english/sci/tech/newsid_1494000/1494798.stm 

    • The U.K. announced details of its greenhouse gas reduction emission trading system. Environment Minister Michael Meacher said "[t]his scheme establishes the U.K. as a world leader in the field of greenhouse gas emissions trading, giving British business a head start in this developing new market. It builds on the success of the recent climate change talks in Bonn by demonstrating that tackling climate change can be good for business. The U.K. climate change program could cut greenhouse gas emissions to 23% below 1990 levels by 2010. I expect our scheme to make a significant contribution and at the same time benefit both business and the environment by stimulating and financially rewarding innovation and investment." See http://www.defra.gov.uk/news/2001/010814b.htm, http://www.defra.gov.uk/environment/climatechange/trading/index.htm, and http://news.bbc.co.uk/hi/english/sci/tech/newsid_1490000/1490845.stm 

    • The Washington Post reported that two new studies suggest that China's claim that it has significantly reduced greenhouse gas emissions may not be true. See http://www.washingtonpost.com/wp-dyn/articles/A10645-2001Aug14.html  

    • The Pacific Island Forum group of nations, made up of Australia, the Cook Islands, Fiji, Kiribati, the Marshall Islands, the Federated States of Micronesia, Nauru, New Zealand, Niue, Palau, Papua New Guinea, Samoa, the Solomon Islands, Tonga, Tuvalu and Vanuatu, asked the U.N. to elevate discussion of global warming in light of concern over rising sea levels.