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Weekly Update Volume 35, Issue 27

09/26/2005

LITIGATION

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


ESA, PESTICIDES, CALIFORNIA RED-LEGGED FROG:

A district court held that EPA violated ESA §7(a)(2) by failing to initiate consultation regarding the effects of pesticide registrations on the federally listed California red-legged frog. An environmental group demonstrated that 47 of the disputed 66 pesticides are applied within the frog's habitat and, thus, has demonstrated that further evaluation of the effects on the endangered species is warranted. And there is a reasonable scientific basis for the assertion that the remaining 19 pesticides found in the air and water may bear on the decline in the frog's population. Thus, there is at least some question about whether these pesticide registrations would affect the frog as well. EPA must therefore begin the ESA consultation process, and the court ordered EPA and the group to agree on a time when the studies should be complete. Center for Biological Diversity v. Leavitt, No. C 02-01580JSW, 35 ELR 20190 (N.D. Cal. Sept. 19, 2005) (White, J.) (7 pp.).


WATER LAW, INJUNCTION:

The Eleventh Circuit vacated a preliminary injunction granting Alabama's and Florida's motion to bar the U.S. Army Corps of Engineers and Georgia from implementing a settlement agreement concerning water allocation in the Apalachicola-Chattahoochee-Flint river basin. An injunction is limited to prospective relief, but all of the harm Alabama and Florida claim has already occurred. Moreover, the settlement agreement requires the Corps to perform all of the analysis required by NEPA before entering into any contracts for water supply use. Thus, the requirement that irreparable harm is threatened has not been met. Last, the preliminary injunction was based on the Corps' alleged violation of a stay order, not on the merits of the underlying case. Thus, Alabama and Florida established neither an imminent threat of irreparable harm nor a substantial likelihood of prevailing on the merits of their case. Alabama v. United States Army Corps of Engineers, Nos. 03-16424, 05-11123, 35 ELR 20188 (11th Cir. Sept. 19, 2005) (37 pp.).


MAGNUSON-STEVENS FISHERY CONSERVATION & MANAGEMENT ACT, DOCUMENTED HARVESTS:

The Ninth Circuit held that NOAA Fisheries erred when it denied a fishing vessel's application for an Aleutian Islands brown king crab endorsement under the license limitation program for the Bearing Sea and Aleutian Islands groundfish and crab fisheries. Three documented harvests are required for an endorsement. The vessel had two fish tickets demonstrating that brown king crab were caught from three state statistical areas on three separate occasions within the endorsement area. NOAA Fisheries, however, interpreted "documented harvest" as an offload of crab through a landing as evidenced by a fish ticket. Because the vessel only had two tickets, NOAA Fisheries argued that only two documented harvests occurred. But interpreting "documented harvest" as a "landing" is inconsistent with the intent of the licensing limitation program and with the plain meaning of that term as defined in the applicable regulations. When interpreted correctly, the vessel made three documented harvests, thereby entitling it to receive the endorsement. Alaska Trojan Partnership v. Gutierrez, No. 04-35753, 35 ELR 20193 (9th Cir. Sept. 22, 2005) (25 pp.).


CERCLA, INSURANCE:

The Fifth Circuit held that an insurer must indemnify a lead smelting company for any remediation costs and expenses EPA incurred remediating lead pollution at the company's facility on Harbor Island, Washington. The insurer issued the company a claims-made insurance policy that had a policy period of September 4, 1981, to November 4, 1983. Although EPA didn't file suit against the company until 2000, it placed the company's facility on the NPL in September 1982. Given the parties' interpretation of the insurance contract, the evidence is sufficient to support the jury's determination that a claim was made against the company by EPA within the policy's coverage period. In addition, any errors attributed to the district court in pre-trial rulings and jury instructions were either not proven or harmless. International Insurance Co. v. RSR Corp., No. 04-10311, 35 ELR 20187 (5th Cir. Sept. 19, 2005) (36 pp.).


CERCLA, INSURANCE:

The Fifth Circuit affirmed a district court order holding that an insurer must indemnify a lead smelting company for cleanup costs and expenses resulting from lead pollution at the company's facility in West Dallas, Texas. Although the company entered into a tolling agreement with EPA without the insurer's consent, this breach of the insurance contract did not prejudice the insurer. The insurer, therefore, is not excused from its obligations to indemnify the company with respect to lead pollution. Exclusion 7(a) of the policy, however, bars coverage of the company's liability resulting from battery chips that were used as fill in residents' driveways and yards. The exclusion bars coverage with respect to polluted "things" that have been transferred to third parties. International Insurance Co. v. RSR Corp., No. 03-11272, 35 ELR 20192 (5th Cir. Sept. 19, 2005) (20 pp.).


CERCLA, RESPONSE COSTS, CONTRIBUTION:

A district court denied an insurance company's motion to dismiss individuals' action for "recovery of response costs" under CERCLA. The insurance company argued that because the individuals did not assert their CERCLA claim for contribution during or following a civil action under §§106 or 107(a), the claim must be dismissed for lack of subject matter jurisdiction. In Cooper Industries, Inc. v. Aviall Services, Inc., 125 S. Ct. 577, 34 ELR 20154 (2004), the U.S. Supreme Court barred a §113(f) claim in the absence of a prior action under §§106 or 107(a) or a judicially approved settlement. Yet the Court expressly left open the question of whether §107(a) provides an avenue for recovery by PRPs such as the plaintiffs here. Because Ninth Circuit precedent provides that CERCLA §107(a) provides an implied right of contribution for PRPs, and because this implied right of contribution was not overruled by Aviall, the court has jurisdiction and the insurance company's motion to dismiss was denied. Aggio v. Aggio, No. C 04-4357 PJH, 35 ELR 20189 (N.D. Cal. Sept. 19, 2005) (Hamilton, J.) (7 pp.).


NATIONAL FORESTS, ESA, FLPMA:

A district court denied in part and granted in part the U.S. Forest Service's motions to dismiss claims challenging a special use permit authorizing a power company to construct, operate, and maintain a right-of-way for an electrical power line through the George Washington and Jefferson National Forests in central and western Virginia and southern West Virginia. The environmental groups challenging the permit have standing. And they properly stated a claim that the Forest Service failed to enter into formal consultation with the FWS to discuss options to reduce the power line's anticipated adverse effect on endangered species. But their allegation that the Forest Service did not have the authority to issue the special permit was dismissed for failure to state a claim. FLPMA §501 delegates to the Forest Service the authority to grant rights-of-way for "systems for generation, transmission, and distribution of electric energy," such as the power line here. And despite the groups' claim to the contrary, FLPMA §501 contains no maximum acreage limitation in the grant of rights-of ways. Sierra Club v. United States Forest Service, No. Civ.A. 7:04CV00591, 35 ELR 20191 (W.D. Va. Sept. 13, 2005) (Turk, J.) (5 pp.).


Copyright© 2005, Environmental Law Institute, Washington, D.C. All rights reserved.


THE FEDERAL AGENCIES

Note: Citations below are to the Federal Register (FR).


AIR:



  • EPA revised certain regulatory definitions that determine the type of sources subject to the Agency's new source performance standards and emission guidelines for commercial and industrial solid waste incineration units under CAA §129. 70 FR 55568 (9/22/05).

  • EPA proposed adjustments to allocations of Article 5 allowances that permit the production of class I ozone depleting substances solely for export to developing countries to meet those countries' basic domestic needs. 70 FR 55479 (9/21/05).

  • SIP Approvals: Illinois (particulate matter; Lake Calumet area), 70 FR 55545 (9/22/05); (particulate matter; Lyons Township area), 70 FR 55541 (9/22/05). Kentucky (eight-hour ozone NAAQS; Christian County area), 70 FR 55550 (9/22/05). Minnesota (sulfur dioxide emissions; Dakota County), 70 FR 54842 (9/19/05). Tennessee (eight-hour ozone NAAQS; Montgomery County area), 70 FR 55559 (9/22/05).

  • SIP Proposals: Illinois (particulate matter; Lake Calumet area; see above for direct final rule), 70 FR 55611 (9/22/05); (particulate matter; Lyons Township area; see above for direct final rule), 70 FR 55610 (9/22/05). Kentucky (eight-hour ozone NAAQS; Christian County area; see above for direct final rule), 70 FR 55613 (9/22/05). Tennessee (eight-hour ozone NAAQS; Montgomery County area; see above for direct final rule), 70 FR 55613 (9/22/05). Wisconsin (general and registration permit programs), 70 FR 55062 (9/20/05).

PESTICIDES:



  • EPA announced the availability of its revised human health and ecological risk assessments for the pesticide malathion. 70 FR 55839 (9/23/05).

  • EPA announced the availability of its revised risk assessments for the insecticide N-Octyl bicycloheptene dicarboximide. 70 FR 55381 (9/21/05).

  • EPA announced the availability of its revised risk assessments for the insecticide piperonyl butoxide. 70 FR 55383 (9/21/05).

  • EPA announced the availability of its revised risk assessments for the pesticide pyrethrins. 70 FR 55378 (9/21/05).

PUBLIC LANDS:



  • BLM announced the availability of the record of decision and resource management plan for the Red Rock Canyon National Conservation Area in Nevada. 70 FR 55413 (9/21/05).

  • The National Park Service announced the availability of the draft South Denali implementation plan and EIS for the Denali National Park and Preserve in Alaska. 70 FR 55414 (9/21/05).

  • The Forest Service rescinded its recent interim directives for grazing and replaced them with the direction that was in place prior to July 19, 2005. 70 FR 55102 (9/20/05).

  • The Forest Service announced that it will revise the land and resource management plan for the Shoshone National Forest. 70 FR 55102 (9/20/05).

RADIOACTIVE WASTE:



  • DOE announced its decision to implement the preferred alternatives identified in the final EIS for the remediation of the Moab Uranium Mill tailings in Grand and San Juan Counties, Utah. 70 FR 55358 (9/21/05).

WATER:



  • EPA approved a new ocean dredged material disposal site in the Atlantic Ocean offshore of Port Royal, South Carolina. 70 FR 55770 (9/23/05).

  • EPA announced the availability of the final NPDES general permits for certain POTWs and other treatment works treating domestic sewage in Massachusetts, New Hampshire, and in Indian country in Massachusetts. 70 FR 55855 (9/23/05).

  • The Natural Resources Conservation Service announced the deauthorization of federal funding for the Broad Creek Watershed project in Kent and Sussex Counties, Delaware. 70 FR 55103 (9/20/05).

  • The Natural Resources Conservation Service announced the availability of a proposed revision to its wastewater treatment strip conservation practice standard. 70 FR 54895 (9/19/05).

WILDLIFE:



  • FWS proposed migratory bird subsistence harvest regulations for the 2006 season in Alaska. 70 FR 55691 (9/22/05).

  • FWS announced the availability of the approved recovery plan for the Barton Springs Salamander, which is found near four spring outlets in Austin, Texas. 70 FR 55412 (9/21/05).

  • FWS announced a notice of decision and the availability of the record of decision for the final comprehensive conservation plan and final EIS for the Maine Coastal Islands National Wildlife Refuge, located in the Gulf of Maine watershed. 70 FR 55413 (9/21/05).

  • FWS announced a five-year review of 14 threatened and endangered southeastern species. 70 FR 55157 (9/20/05).

  • FWS announced the receipt of an application for an enhancement of survival permit and the availability of a proposed candidate conservation agreement with assurances to facilitate conservation measures for the Eastern Massasauga rattlesnake by the Ohio Department of Natural Resources. 70 FR 55159 (9/20/05).

  • FWS announced the availability of a draft safe harbor agreement and the receipt of an application for an enhancement of survival permit associated with proposed restoration activities for the Karner Blue Butterfly in West Gary, Indiana. 70 FR 55158 (9/20/05).

  • FWS prescribed the hunting seasons, hours, areas, and daily bag and possession limits for general waterfowl seasons and those early seasons for which states previously deferred selection. 70 FR 56027 (9/23/05).

  • FWS prescribed final late-season frameworks from which states may select season dates, limits, and other options for the 2005-2006 migratory bird hunting seasons. 70 FR 55665 (9/22/05).

DOJ NOTICES OF SETTLEMENT:



  • United States v. AGP Corn Processing, Inc., No. 8:05 CV418 (D. Neb. Aug. 29, 2005). A settling CAA defendant must pay a civil penalty of $40,000 and must install control technology to address CAA violations relating to the failure to obtain permits and failure to install best achievable control technology at the defendant's ethanol plant. 70 FR 55626 (9/22/05).

  • United States v. Massachusetts Bay Transportation Authority, No. 05-11827 RWZ (D. Mass. Sept. 8, 2005). A settling CERCLA defendant must pay $150,000 in past U.S. response costs incurred at the Morses Pond Culvert Superfund site in Wellesley, Massachusetts. 70 FR 55627 (9/22/05).

  • United States v. Sewerage District No. 1 of Iberia Parish, No. 04-1352 (W.D. La. Dec. 20, 2004). Under a proposed modification to a consent order dated December 20, 2004, a settling CWA defendant would have additional time to complete rehabilitation projects for its sanitary sewer collection system. 70 FR 55627 (9/22/05).

  • United States v. Tropical Fruit, S.E., No. 97-1442-DRD (D.P.R. Sept. 13, 2005). Settling CERCLA and FIFRA defendants must remove and replace trees from certain areas of their farm in Rural Zone Boca, Puerto Rico, may apply low-toxicity pesticides in limited circumstances, and must pay a $50,000 penalty to resolve alleged violations of a prior consent decree dated October 25, 2001. 70 FR 55627 (9/22/05).

  • United States v. Union Corps., Nos. 80-1589, DJ 90-11-2- 1183A (E.D. Pa. Sept. 2, 2005). Settling CERCLA defendants must implement the revised remedial plan for the Metal Bank Superfund site in Philadelphia, Pennsylvania, and must pay $9.6 million plus any additional costs incurred to implement the remedy. 70 FR 55628 (9/22/05).

Copyright© 2005, Environmental Law Institute, Washington, D.C. All rights reserved.


THE CONGRESS

CHAMBER ACTION:



  • H.R. 409 (Sierra National Forest Land Exchange Act of 2005), which would provide for the exchange of land within the Sierra National Forest of California, was passed by the House. 151 Cong. Rec. H8117 (daily ed. Sept. 20, 2005).

COMMITTEE ACTION:



  • S. 360 (CZMA), which would amend the CZMA, was reported by the Committee on Commerce, Science, and Transportation. S. Rep. No. 109-137, 151 Cong. Rec. S10119 (daily ed. Sept. 15, 2005).

BILLS INTRODUCED:



  • S. 1709 (Inhofe, R-Okla.) (Hurricane Katrina) would provide favorable treatment for certain projects in response to Hurricane Katrina with respect to revolving loans under the CWA. 151 Cong. Rec. S10119 (daily ed. Sept. 15, 2005). The bill was referred to the Committee on Environment and Public Works.

  • S. 1711 (Inhofe, R-Okla.) (EPA) would allow the Administrator of EPA to waive or modify the application of certain requirements. 151 Cong. Rec. S10119 (daily ed. Sept. 15, 2005). The bill was referred to the Committee on Environment and Public Works.

  • S. 1721 (Voinovich, R-Ohio) (national heritage areas) would amend the Omnibus Parks and Public Lands Management Act of 1996 to extend the authorization for certain national heritage areas. 151 Cong. Rec. S10187 (daily ed. Sept. 19, 2005). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 1723 (Collins, R-Me.) (fisheries) would amend the Magnuson-Stevens Fishery Conservation and Management Act to establish a grant program to ensure waterfront access for commercial fishermen. 151 Cong. Rec. S10187 (daily ed. Sept. 19, 2005). The bill was referred to the Committee on Finance.

  • H.R. 3807 (Ney, R-Ohio) (CAA) would amend the CAA to create a uniform national standard for gasoline, eliminate "boutique" fuels, and require the Secretary of Energy to construct and sell to private businesses 15 new gasoline refineries. 151 Cong. Rec. H8088 (daily ed. Sept. 15, 2005). The bill was referred to the Committee on Energy and Commerce.

  • H.R. 3811 (Poe, R-Tex.) (oil and natural gas) would terminate the effect of laws prohibiting the spending of appropriated funds to conduct oil and natural gas leasing and preleasing activities for any area of the outer continental shelf. 151 Cong. Rec. H8088 (daily ed. Sept. 15, 2005). The bill was referred to the Committee on Resources.

  • H.R. 3812 (Pombo, R-Cal.) (rivers) would authorize the Secretary of the Interior to prepare a feasibility study with respect to the Mokelumne River. 151 Cong. Rec. H8088 (daily ed. Sept. 15, 2005). The bill was referred to the Committee on Resources.

  • H.R. 3817 (Udall, D-N.M.) (national forests) would withdraw the Valle Vidal Unit of the Carson National Forest in New Mexico from location, entry, and patent under the mining laws. 151 Cong. Rec. H8088 (daily ed. Sept. 15, 2005). The bill was referred to the Committee on Resources.

  • H.R. 3818 (Walden, R-Or.) (national forests) would authorize the Secretary of Agriculture to enter into partnership agreements with entities and local communities to encourage greater cooperation in the administration of Forest Service activities on and near National Forest System lands. 151 Cong. Rec. H8088 (daily ed. Sept. 15, 2005). The bill was referred to the Committee on Agriculture and the Committee on Resources.

  • H.R. 3824 (Pombo, R-Cal.) (ESA) would amend and reauthorize the ESA to provide greater results conserving and recovering listed species. 151 Cong. Rec. H8102 (daily ed. Sept. 19, 2005). The bill was referred to the Committee on Resources.

  • H.R. 3835 (Saxton, R-N.J.) (NOAA) would establish a coordinated national ocean exploration program within NOAA. 151 Cong. Rec. H8162 (daily ed. Sept. 20, 2005). The bill was referred to the Committee on Science and the Committee on Resources.

  • H.R. 3839 (Young, R-Alaska) (Marine Mammal Protection Act) would amend the Marine Mammal Protection Act of 1972 to repeal the long-term goal for reducing to zero the incidental mortality and serious injury of marine mammals in commercial fishing operations, and to modify the goal of take reduction plans for reducing such takings. 151 Cong. Rec. H8162 (daily ed. Sept. 20, 2005). The bill was referred to the Committee on Resources.

  • H.R. 3849 (Lucas, R-Okla.) (FIFRA) would amend FIFRA to implement pesticide-related obligations of the United States under the international conventions or protocols known as the PIC Convention, the POPs Convention, and the LRTAP POPs Protocol. 151 Cong. Rec. H8247 (daily ed. Sept. 21, 2005). The bill was referred to the Committee on Agriculture.

Copyright© 2005, Environmental Law Institute, Washington, D.C. All rights reserved.


IN THE STATES

The entries below cover state developments since the last issue of Update. The entries are arranged by state, and within each section, entries are further subdivided by subject matter area. For a cumulative listing of materials reported by ELR since July 14, 2005, visit our list of Cumulative State Developments Arranged by State, or our list of Cumulative State Developments Arranged by Subject Matter. For state material reported prior to July 14, 2005, visit the ELR Archives.


The states below have updates this week:

Alabama
Idaho
Missouri

Texas

California
Iowa
Oklahoma
Utah

Colorado
Kentucky
Rhode Island
Virginia

Delaware
Massachusetts
South Dakota
West Virginia

Florida
Michigan
Tennessee

ALABAMA


General:



  • The Alabama Department of Environmental Management proposes to amend ADEM Administrative Code Rule 335-1-1-.07, 335-1-6-.04, and 335-1-6-.07 to adjust permit fees and add, delete, and modify Departmental forms. Written comments are due November 4, 2005. A public hearing will be held November 3, 2005. See http://www.adem.state.al.us/PublicNotice/Sept/Div1.htm

CALIFORNIA


Air:



  • A public meeting to discuss funding allocation for cleaner, safer school buses has been tentatively scheduled for the afternoon of November 14, 2005. The State Legislature has appropriated $25 million to the Air Resources Board to clean up California's school bus fleet by replacing or retrofitting older, higher-emitting buses. See http://www.arb.ca.gov/msprog/schoolbus/2005/sbfundmeet1114.pdf

  • The fifth public workshop on a proposed suggested control measure (SCM) for automotive coatings will be held October 5, 2005. The Air Resources Board, in cooperation with the air pollution control and air quality management districts, is developing a SCM for automotive refinishing coatings. The SCM will promote increased uniformity amongst district rules, improve enforceability, and achieve additional emission reductions of volatile organic compounds (VOCs). The SCM is tentatively scheduled for the Board's consideration in October 2005. See http://www.arb.ca.gov/coatings/autorefin/scm/scm.htm

  • Final Amendments to the Airborne Toxic Control Measure for Stationary Compression Ignition Engines (27 CCR §93115). The final rulemaking package was filed with the Office of Administrative Law (OAL) on July 29, 2005. It was approved by OAL and filed with the Secretary of the State on September 9, 2005; the regulation became effective that same day. See http://www.arb.ca.gov/regact/statde05/statde05.htm

  • The South Coast Air Quality Management District (SCAQMD) scheduled a public workshop to present and solicit information and comments from the public regarding Proposed Amended Rule (PAR) 1151, Motor Vehicle And Mobile Equipment Non-Assembly Line Coating Operations. The public workshop may also serve as a California Environmental Quality Act (CEQA) scoping meeting for the proposed actions, and will fulfill the requirement of Health & Safety Code §40920.6 regarding an environmental cost analysis.  The SCAQMD Governing Board will consider the proposed amendments at a public hearing tentatively scheduled for December 2, 2005. The proposed amendments modify Rule 1151 coating categories and VOC limits, add a prohibition of possession, and improve the rule language. The draft 2005 California Air Resources Board SCM for automotive refinishing operations was used as a guideline in developing this proposal. Written comments are due October 7, 2005. A public hearing will be held September 30, 2005. See http://www.aqmd.gov/pub_edu/notice_1151_Sept_30_05.html

  • SCAQMD has scheduled a public workshop to solicit information and suggestions from the public on PAR 1309.1, Priority Reserve, and Proposed Rule (PR) 1316, Requirements for Federal Major Modifications. PAR 1309.1 and PR 1316 will be considered for adoption by the SCAQMD Governing Board at a public hearing tentatively scheduled for December 2, 2005.  The amendment to Rule 1309.1 provides temporary access to the District's Priority Reserve SOx and PM-10 account for new electric generating facilities (EGFs), permitted between 2005 and 2007.  This proposal will allow EGFs to draw specifically SOx and PM-10 ERC offsets from the Priority Reserve account provided they have met all other requirements and paid the appropriate mitigation fee.  In addition, the mitigation fee (price of credits) will be updated to more closely reflect current conditions as well as other changes for clarity and improved enforceability. Written comments are due October 14, 2005. A public hearing will be held September 30, 2005. See http://www.aqmd.gov/pub_edu/notice_13091-1316_Sept_30_05.html

  • SCAQMD has scheduled a public workshop and CEQA scoping meeting to solicit information and suggestions from the public regarding Proposed Rules 3501 and 3502. The objectives of the proposed rules are to identify opportunities for reducing idling emissions and to minimize emissions from idling of locomotives from Class I freight railroads and switching and terminal freight railroads operating in the Basin. Written comments are due October 21, 2005. A public hearing will be held October 12, 2005. See http://www.aqmd.gov/pub_edu/notice_3501-3502_Oct_12_05.html

  • SCAQMD has scheduled a public workshop and CEQA scoping meeting to solicit information and suggestions from the public regarding Proposed Rule 410.  The objective of the proposed rule is to reduce odors from transfer stations and material recovery facilities. Written comments are due October 21, 2005. A public hearing will be held October 13, 2005. See http://www.aqmd.gov/pub_edu/notice_410_Oct_13_05.html

Water:



  • Update of the Public Health Goal for 1,2 Dichloroethane. OEHHA develops public health goals (PHGs) for regulated chemicals in drinking water and reviews and updates the risk assessments every five years (Health and Safety Code Section 116365(e)(1). This memorandum represents an update of the literature review and reevaluation of the existing PHG for 1,2-dichloroethane, also known as ethylene dichloride (OEHHA, 1999). OEHHA concluded that the PHG for 1,2-dichloroethane should remain at 0.4 ppb. See http://oehha.org/water/phg/12dcaupdate.html

COLORADO


Air:



  • The Air Quality Control Commission will consider revisions to the ambient standards regulation in support of revisions to the Denver Metropolitan Area Carbon Monoxide and PM-10 Attainment/Maintenance Plans and to the Longmont Area Carbon Monoxide Attainment/Maintenance Plan. The proposed revisions to the ambient standards regulation set new emission budgets for carbon monoxide and PM10. The proposed revisions to the attainment/maintenance plans remove from the SIP the requirement to implement the motor vehicle emission inspection program and the oxygenated fuels program, but make no changes to the required elements of the regulations. These programs are proposed to be implemented as state-only requirements. The Commission will consider arguments and discuss revisions to the motor vehicle emissions inspection program and the oxygenated fuels program as a part of this hearing. The Commission may consider repeal of the oxygenated fuels program. A public hearing will be held December 15, 2005. Written comments are due 14 days prior to the hearing. See http://www.cdphe.state.co.us/op/aqcc/aqccdown/denlongsipnoticeDEc.pdf

  • The Commission will consider proposed revisions to the Ozone Early Action Compact to require periodic reviews of the effectiveness of the emission control strategies in the Ozone Action Plan. A public hearing will be held December 15, 2005. Written comments are due December 1, 2005. See http://www.cdphe.state.co.us/op/aqcc/aqccdown/ozonenoticedec.pdf

  • The Commission will consider revisions to Regulation Number 9 to revise the program cost used to calculate fees for the Smoke Management Program. The proposed revisions would also resolve publication errors. The Commission will consider proposed revisions to Regulation Number 3, Part A, regarding the Smoke Management Program to insert previously adopted text that was inadvertently omitted from the published version of the rule and to resolve grammatical and typographical inaccuracies. A public hearing will be held December 15, 2005. Written comment is due at least 14 days prior to the hearing. See http://www.cdphe.state.co.us/op/aqcc/aqccdown/Reg3Reg9dec.pdf

  • The Commission will consider a proposal to adopt a new Part G to Regulation Number 3 regarding the Regional Haze Best Available Retrofit Technology (BART) rule. The rule will set forth requirements for the Division and regulated community to follow in the application of regional haze BART and the development of a regional haze element for the SIP. The Commission will consider a broad range of alternatives should they be presented. Written comments are due at least 14 days prior to the public hearing. A public hearing will be held December 15, 2005. See http://www.cdphe.state.co.us/op/aqcc/aqccdown/RegHazedecnotice.pdf

Water:



  • Potential revisions to the Colorado Discharge Permit System Regulations, Regulation #61 (5CCR 1002-61). The purpose of this rulemaking is to consider whether, in view of the provisions of the federal Energy Policy Act of 2005, any revisions should be adopted to current Colorado requirements regarding stormwater discharge permits for oil and gas construction activities. Written comments are due November 8, 2005. A public hearing will be held January 9, 2006. See http://www.cdphe.state.co.us/op/wqcc/MeetingsandHearings/HearingNotices/rulemaking/0601Reg61Rmh.pdf

DELAWARE


Water:



  • The Department of Natural Resources and Environmental Control, Division of Water Resources, Surface Water Discharges Section will hold a public workshop to present proposed revisions to the NPDES permit for the city of Rehoboth Beach. This workshop will highlight the changes in the proposed NPDES permit compared to the current NPDES permit. This workshop is not intended to discuss the merits of potential discharge alternatives for Rehoboth. The workshop will be held September 20, 2005. See http://www.dnrec.state.de.us/DNREC2000/Admin/Press/PublicNotices/PNDetail.asp?NOVID=1627

FLORIDA


Water:



  • Surface Water and Wetlands--The Department's Northwest District Office will hold a public meeting on the Small, Middle, and Large Circles for the Panama City-Bay County International Airport Relocation Ecosystem Team Permitting process on September 29, 2005. The meeting will cover the status of various permits required for the Ecosystem Team Permit as well as the Net Ecosystem Benefits associated with the project. A copy of the permit applications and draft agency actions will be available for inspection at the meeting. The Department will also take public comment on the draft agency actions. See http://tlhora6.dep.state.fl.us/onw/publications/5-Airport-9-16-05-INT.pdf

General:



IDAHO


Air



  • Air Quality 58-0101-0508, Proposed Rule. This proposed rule addresses the process for permitting air quality minor sources (i.e., sources that are not major for PSD or new source review) that wish to obtain a facilitywide emission cap. This will be a voluntary option that will provide facilities increased operational flexibility while maintaining air quality. A public hearing will be held November 4, 2005. Written comments are due the same day. See http://www.deq.idaho.gov/rules/air/58_0101_0508_proposed.cfm

  • Air Quality 58-0101-0507, Proposed Rule. The Department of Environmental Quality (DEQ) is proposing revisions to the Rules for the Control of Air Pollution for certain currently listed sources that are exempt from obtaining an air quality permit to construct. Facilities affected are certain crematoriums, petroleum remediation sources, and dry cleaning facilities that are not major sources. In addition, DEQ proposes to increase the number of operating hours allowed for stationary internal combustion engines used for emergency purposes. Written comments are due October 11, 2005. A public hearing will be held the same day. See http://www.deq.idaho.gov/rules/air/58_0101_0507_proposed.cfm

  • Air Quality 58-0101-0504, Proposed Rule. DEQ proposes to revise sections of the Rules for the Control of Air Pollution that pertain to emission registration requirements for Title V sources of air pollution as outlined in IDAPA 58.01.01.389.04. Changing the registration information rule eliminates a redundancy in Title V facility reporting of emissions. Written comments are due October 11, 2005. A public hearing will be held the same day. See http://www.deq.idaho.gov/rules/air/58_0101_0504_proposed.cfm

Hazardous & Solid Waste:



  • Ore Processing by Cyanidation 58-0113-0502, Proposed Rule. DEQ initiated this rulemaking to revise the rules for ore processing by cyanidation in response to the Idaho Conservation League's Petition for Initiation of Rulemaking filed with the Board of Environmental Quality in February 2005. This rulemaking also addresses an increase in fees associated with the permitting process as well as any other changes deemed necessary to assure consistency with state and federal law and the efficient operation of a system for permitting ore processing by cyanidation within the state of Idaho. In addition, this rulemaking will revise the rules as necessary for consistency with changes made during the rulemaking initiated in response to Senate Bill 1169 (Docket No. 58-0113-0501). This rulemaking also adds the standard rule sections necessary for conformance with IDAPA 44.01.01, "Rules of the Administrative Rules Coordinator." Written comments are due October 5, 2005. See http://www.deq.idaho.gov/rules/cyanidation/58_0113_0502_proposed.cfm

Water:




  • DEQ is seeking public comment on a draft assessment of water quality in the Cow Creek Subbasin near Genesee, Idaho. Based on a recent study of the physical, chemical, and biological conditions in the Cow Creek Subbasin, the Cow Creek Watershed Advisory Group and DEQ are proposing to establish a TMDL to control excess nutrients in Cow Creek. Public comments are due October 31, 2005. See http://www.deq.state.id.us/Applications/NewsApp/shownews.cfm?event_id=1295


  • DEQ is seeking comment on a draft policy to establish a dispute resolution advisory panel to help resolve engineering disputes involving water and sewer system projects. Disputes that would necessitate formation of a dispute resolution advisory panel do not routinely occur, but DEQ is initiating this informal process on a trial basis to enable quicker resolution than the current formal dispute resolution process provides. The policy would be in effect for one year, after which the DEQ director would determine the effectiveness of the panel and whether the policy should become permanent. Written comments are due October 17, 2005. See http://www.deq.state.id.us/Applications/NewsApp/shownews.cfm?event_id=1294

  • Water Quality 58-0102-0503, Proposed Rule. This rulemaking would bring Idaho's toxics criteria up-to-date with current science and recommendations of the U.S. EPA. DEQ proposes to revise the human health criteria to account for revised fish consumption rates and newer information in the Integrated Risk Information System database on health effects, and to adopt an Idaho specific cadmium aquatic life criterion based on recalculation using additional, more recent toxicity data that has become available since U.S. EPA's 2001 cadmium criteria recommendation. Development of the proposed cadmium criteria is discussed in a draft technical support document, "Cadmium Risks to Freshwater Life: Predicted low-effect values in ambient waters based upon laboratory and field studies" (USGS/DEQ Publication, May 2005: 702 kb, 174 pages). Comments are due October 7, 2005. See http://www.deq.idaho.gov/rules/water/58_0102_0503_proposed.cfm

  • Water Quality 58-0102-0504, Proposed Rule. This proposed rule would delete those wastewater rule sections and definitions that are either unnecessary or have been copied from IDAPA 58.01.02, "Water Quality Standards and Wastewater Treatment Requirements," and moved into a new proposed rule chapter, IDAPA 58.01.16, "Wastewater Rules," under proposed rule 58-0116-0501. This rulemaking is necessary to prevent inconsistency and/or redundancy between DEQ rule chapters. As a result of these changes, DEQ proposes to change the title of this rule chapter to "Water Quality Standards." Written comments are due October 5, 2005. See http://www.deq.idaho.gov/rules/water/58_0102_0504_proposed.cfm

  • Public Drinking Water Systems 58-0108-0501, Proposed Rule. The 2005 Legislature enacted Senate Bill 1220 requiring DEQ to establish facility and design standards. DEQ has initiated this rulemaking in response to that legislation. Portions of the existing rule, and portions of documents incorporated as rule that relate to design of drinking water line extensions, will be modified to delete from the rule some items identified as guidance. In addition, this rulemaking adds and/or renumbers the standard rule sections necessary for conformance with IDAPA 44.01.01, "Rules of the Administrative Rules Coordinator." Developers, cities, counties, drinking water system owners, consultants, engineers, and the public at large may be interested in commenting on this proposed rule. Written comments are due October 5, 2005. See http://www.deq.idaho.gov/rules/drinking_water/58_0108_0501_proposed.cfm

  • Wastewater 58-0116-0501, Proposed Rule. The 2005 Legislature enacted Senate Bill 1220 requiring DEQ to establish facility and design standards. DEQ has initiated this rulemaking to create a new rule chapter in response to that legislation. In addition, DEQ proposes to address other wastewater issues for adoption in the new rule chapter. Written comments are due October 5, 2005. See http://www.deq.idaho.gov/rules/wastewater/58_0116_0501_proposed.cfm

IOWA


Air:



  • Pursuant to the authority of Iowa Code §455B.133, the Environmental Protection Commission amended Chapter 22, Controlling Pollution, Iowa Administrative Code. Notice of Intended Action was published in the Iowa Administrative Bulletin on May 11, 2005, as ARC 4160B. Effective October 19, 2005. See http://www.legis.state.ia.us/Rules/Current/Bulletin/IAB050914.pdf (p. 483)

  • Pursuant to the authority of Iowa Code §s455B.133, the Environmental Protection Commission amended Chapter 23, Emission Standards for Contaminants, Iowa Administrative Code. Notice of Intended Action was published in the Iowa Administrative Bulletin on May 11, 2005, as ARC 4158B. Effective October 19, 2005. See http://www.legis.state.ia.us/Rules/Current/Bulletin/IAB050914.pdf (p. 485)

Water:



  • Pursuant to the authority of Iowa Code §§455B.105 and 455B.173, the Environmental Protection Commission announced its intention to amend Chapter 61, Water Quality Standards, Iowa Administrative Code. The proposed amendments will: eliminate the exceptions of the design low flow requirement; revise the general use classification; designate as Class B (WW-1) Warm Water-Type 1 all of Iowa's perennial rivers and streams and intermittent streams with perennial pools that are not currently designated; and designate as Class A1-Primary Contact Recreational Use all of Iowa's perennial rivers and streams and intermittent streams with perennial pools. Written comments are due October 28, 2005. Public hearings will be held October 4, 10, 12, and 14, 2005. See http://www.legis.state.ia.us/Rules/Current/Bulletin/IAB050914.pdf (p. 386)

  • Pursuant to the authority of Iowa Code §§455B.105 and 455B.173, the Environmental Protection Commission announced its intention to amend Chapter 61, Water Quality Standards, Iowa Administrative Code. Written comments are due October 28, 2005. Public hearings will be held October 4, 10, 12, and 14, 2005. See http://www.legis.state.ia.us/Rules/Current/Bulletin/IAB050914.pdf (p. 388)

  • Pursuant to the authority of Iowa Code §459.103 and 2005 Iowa Acts, House File 805, §4, the Environmental Protection Commission proposed to amend Chapter 65, Animal Feeding Operations, Iowa Administrative Code. The amendments separate Chapter 65 into two divisions, one for confinement operations and one for open feedlots. In addition to creating a separate division for open feedlot rules, the amendments implement open feedlot operation requirements in 2005 Iowa Acts, House File 805, including minimum design standards for settled open feedlot effluent basins, nutrient management plans, alternative technology systems and construction permits. Included are provisions necessary to implement the NPDES program. Written comments are due October 14, 2005. Public hearings will be held October 4-7, 2005. See http://www.legis.state.ia.us/Rules/Current/Bulletin/IAB050914.pdf (p. 397)

  • The Environmental Protection Commission adopted emergency amendments to Chapter 65, Animal Feeding Operations, Iowa Administrative Code. The amendments separate Chapter 65 into two divisions, one for confinement operations and one for open feedlots. In addition to creating a separate division for open feedlot rules, the amendments implement open feedlot operation requirements in 2005 Iowa Acts, House File 805, including minimum design standards for settled open feedlot effluent basins, nutrient management plans, alternative technology systems and construction permits. Included are provisions necessary to implement the NPDES program. Effective September 14, 2005. See http://www.legis.state.ia.us/Rules/Current/Bulletin/IAB050914.pdf (p. 454)

  • Pursuant to the authority of 2005 Iowa Acts, Senate File 200, §5(3), the Watershed Improvement Review Board adopted new Chapter 101, Organization and Purpose; Chapter 102, Rules of Practice; Chapter 103, Appointment and Terms of Members; Chapter 104, Local Watershed Improvement Committees; Chapter 105, Watershed Improvement Grant Program; Chapter 106, Watershed Improvement Fund; and Chapter 107, Public Records and Fair Information Practices, Iowa Administrative Code. This amendment establishes rules for the Watershed Improvement Review Board and its organization, purpose, and rules of practice. Provision is also made for appointment of Board members, local watershed improvement committees, and the Watershed Improvement Grant Program. Effective August 25, 2005. See http://www.legis.state.ia.us/Rules/Current/Bulletin/IAB050914.pdf (p. 478)

KENTUCKY


Air:



MASSACHUSETTS


Hazardous & Solid Waste:



  • The Massachusetts Department of Environmental Protection has scheduled public hearings on October 6, 7, 11, 13, and 20, 2005, on proposed revisions to the "Beyond 2000 Solid Waste Master Plan." November 4, 2005, is the deadline for public comment. See http://www.mass.gov/dep/bwp/dswm/files/swmpphn.pdf

MICHIGAN


Water:



  • The Michigan Department of Environmental Quality will hold a public hearing on September 28, 2005, on the draft Fiscal Year 2006 Intended Use Plan and on the draft Fiscal Year 2006 Project Priority List for the State Revolving Fund and Strategic Water Quality Initiatives Fund that list projects for which complete final project plans were submitted to the Department by July 1, 2005. Written comments are due October 3, 2005. See http://www.michigan.gov/deq/0,1607,7-135-3308-125980--,00.html

MISSOURI


Water:



  • 10 CSR 23-3.060, Certification and Registration Reports, is amended. A notice of proposed rulemaking containing the text of the proposed amendment was published in the Missouri Register on May 2, 2005 (30 MoReg 975-976). This proposed amendment became effective 30 days after publication in the Code of State Regulations (September 15, 2005). See http://www.sos.mo.gov/adrules/moreg/current/2005/v30n18/v30n18c.pdf (p. 1944)

OKLAHOMA


Air:



  • Title 252. DEQ proposed amendments to Chapter 100, Air Pollution Control. Written comments are due October 19, 2005. A public hearing will be held October 19, 2005. See http://www.oar.state.ok.us/register/Volume-23_Issue-01.htm

  • Title 252. DEQ Chapter 100, Air Pollution Control. Emergency adoption. Effective August 11, 2005, through July 14, 2006. The Department proposed to redefine the state air toxics program. Amendments are proposed to Subchapter 41, Control of Emission of Hazardous Air Pollutants and Toxic Air Contaminants, to partition existing Subchapter 41 into two subchapters. The proposed amendments will clarify and modify the state-only requirements for emissions from stationary sources and relocate these requirements into the new Subchapter 42. Subchapter 41 will contain the federal requirements for hazardous air pollutants and asbestos. The remaining Sections 15 and 16 of Subchapter 41, which incorporate by reference NESHAPs in 40 CFR Parts 61 and 63 and specific asbestos requirements, would be retained in Subchapter 41. A statement has been added in 252:100-41-1.1 that will allow Subchapter 42 to supersede Subchapter 41, with the exception of Part 3. Also, two new sections would be added as 252:100-41-3 and -4 for conformity with existing rules. See http://www.oar.state.ok.us/register/Volume-23_Issue-01.htm

RHODE ISLAND


Wildlife:



  • The Department of Environmental Management will hold a public hearing on proposed changes to the commercial marine fishing license regulations on October 25, 2005. See http://www.dem.ri.gov/events/index.htm

SOUTH DAKOTA


Wildlife:



  • Game, Fish, and Parks proposed to repeal the Cow Creek State Waterfowl Refuge on the Missouri River and to amend the West River Prairie Deer Season in Gregory and Mellette Counties; 32 SDR 45. A public hearing will be held October 6, 2005. See http://legis.state.sd.us/rules/register/09192005.pdf

TENNESSEE


Hazardous & Solid Waste:



  • There will be a hearing before the Tennessee Department of Environment and Conservation on October 26, 2005, to consider the promulgation of amendments of rules on behalf of the Tennessee Solid Waste Disposal Control Board pursuant to T.C.A. §§68-203-103(a)(1), 68-203-103(b)(3), 68-211-107(a), and 68-211-111(d)(2). Written comments are due November 9, 2005. See http://www.state.tn.us/environment/swm/swmppo/amndtnrh.pdf

TEXAS


Air:



Hazardous & Solid Waste:



Toxic Substances:



Water:



  • HB 2428: Pre-Rinse Spray Valves. HB 2428 amends the Health and Safety Code to set water efficiency standards for commercial pre-rinse spray valves. This bill requires the commission to develop and maintain a current list of commercial pre-rinse spray valves that are certified to the Texas Commission on Environmental Quality by the manufacturer or importer and meet the performance standards. This bill allows the Commission to remove from the list any valve the commission determines to be inaccurately certified. It also allows the Commission to assess a reasonable fee to the manufacturer or importer for an inspection of a commercial pre-rinse spray valve to determine the accuracy of the certification in an amount determined by the commission to cover the expenses incurred in implementing THSC, Chapter 372. Finally, HB 2428 provides temporary exemptions for sellers, distributors, lessors, or importers of these valves. Written comments are due October 31, 2005. See http://www.tceq.state.tx.us/assets/public/legal/rules/rule_lib/proposals/05037290_pro.pdf

  • SB 425 and HB 2876: Certificates of Convenience and Necessity (CCN) Rule Revision. The Texas Commission on Environmental Quality proposes amendments to §§291.3, 291.5, 291.7, 291.101, 291.102, 291.104 - 291.106, 291.109, 291.113, 291.115, 291.117, and 291.119. The Commission also proposes new §291.120. The 79th Legislature, 2005, passed House Bill 2876, which amended Texas Water Code (TWC) §§13.002, 13.241, 13.242, 13.244, 13.246, 13.247, 13.254, 13.255, and 13.257. This bill also added §§13.245, 13.2451, and 13.2551 to the TWC and repealed TWC §§13.254(h) and 13.2541. These changes relate to revising the criteria for obtaining, amending, transferring, and decertifying CCNs for water and sewer service. These changes also amend mapping requirements. The Commission proposes to change the requirements in this chapter to correspond with the newly amended sections of the TWC. The 79th Legislature also passed Senate Bill 425, relating to subdivision platting requirements and assistance for certain counties near an international border, which amended the definition of affected county. The Commission proposes to revise the definition of affected county in this rulemaking to correspond with the TWC. Written comments are due October 31, 2005. A public hearing will be held October 25, 2005. See http://www.tceq.state.tx.us/assets/public/legal/rules/rule_lib/proposals/05036291_pro.pdf

UTAH


Wildlife:



  • R657-9, Taking Waterfowl, Common Snipe and Coot. This rule is being amended pursuant to Regional Advisory Council and Wildlife Board meetings conducted annually for taking public input and reviewing the agency's waterfowl program. Under Section R657-9-2, several definitions are deleted since these definitions are being incorporated by reference to 50 C.F.R 20 (2004). Section R657-9-5 is being amended to require the completion of the swan orientation course prior to applying for a swan permit. Other provisions are being amended for consistency and clarity. Written comments are due October 17, 2005. See http://www.rules.utah.gov/publicat/bulletin/2005/20050915/28187.htm

  • 657-10, Taking Cougar. Section R657-10-2 is being amended to define limited entry hunt and limited entry permit. Harvest objective cougar permits have been designated as statewide permits, which requires amendments to Sections R657-10-4, R657-10-23, R657-10-32, R657-10-33, and R657-10-34. Section R657-10-34 is also being amended to remove the female cougar subquota provision. Other provisions are being amended for clarity and consistency. Written comments are due October 17, 2005. See http://www.rules.utah.gov/publicat/bulletin/2005/20050915/28188.htm

  • 657-11, Taking Furbearers. Section R657-11-4 is being amended to clarify the process by which temporary bobcat tags my be obtained. Section R657-11-9 is being amended to reduce the number of registration numbers that are allowed on any trapping device. Section R657-11-10 is being amended to identify additional areas with trapping restrictions. In addition, Section R657-11-10 is being amended to include additional methods allowed for the checking of trapping devices and to identify additional accepted trapping devices that may be used. Written comments are due October 17, 2005. See http://www.rules.utah.gov/publicat/bulletin/2005/20050915/28189.htm

VIRGINIA


Water:



WEST VIRGINIA


General:



  • DEP will hold a public meeting to discuss the proposed Community Infrastructure Investment Program on September 27, 2005. See http://www.dep.state.wv.us/

Copyright© 2005, Environmental Law Institute, Washington, D.C. All rights reserved.


INTERNATIONAL

BRAZIL LAUNCHES CARBON CREDIT MARKET



  • The Brazilian Development Ministry and the Brazilian Stock Exchange have opened the region's first carbon credit market that will allow industry in developed countries to meet greenhouse gas emissions targets by purchasing carbon credits in Brazil. The Brazilian government has authorized company participation in clean development mechanisms (CDMs) since the Kyoto Protocol came into effect on February 16, 2005, and now these companies can sell credits created by CDMs to foreign industry in the new marketplace. The Brazilian government hopes the increase in CDMs will create jobs and encourage renewable energy generation in Brazil. They estimate that in 21 years, each CDM could reduce emissions by 14 million tons. See http://www.isn.ethz.ch/news/sw/details.cfm?id=12827

KENYAN CHIEF JUSTICE PRIORITIZES ENVIRONMENTAL CASES



  • The Chief Justice of Kenya urged magistrates to consider environmental cases to be urgent when setting the court's calendar. The justice stated that environmental cases overlap with issues of national health and that delaying environmental litigation could cause irreversible damage to the country's already fragile environment. He further urged the nation's magistrates to pursue advanced degrees in environmental law. See http://www.eastandard.net/hm_news/news.php?articleid=29268

UNITED KINGDOM URGED TO REDUCE CO2 EMISSIONS FROM AIR TRAVEL



  • Carbon dioxide (CO2) emissions from the aviation industry undermine the United Kingdom's emission reduction goal because of increasing air travel, according to a recent study by the Tyndall Centre for Climate Change Research. The target of a 60% cut in CO2 by 2050 is based on scientists' estimations of "safe" levels of the gas in the atmosphere to avoid climate change. Plans to meet the goal do not account for growing emissions from air travel, which could eventually force all other sectors to become carbon neutral. See http://news.bbc.co.uk/1/hi/sci/tech/4266466.stm

Copyright© 2005, Environmental Law Institute, Washington, D.C. All rights reserved.


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