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Weekly Update Volume 35, Issue 29

10/17/2005

LITIGATION

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


CAA, APA, MONITORING:

The D.C. Circuit held that EPA violated the APA in revising its "periodic" and "umbrella" monitoring regulations, 40 C.F.R. §§70.6(a)(3) and 70.6(c)(1), respectively. In rejecting two Title V permits, EPA determined that the umbrella rule empowers state permitting authorities to review, on a case-by-case basis, the sufficiency of each permittee's monitoring requirements, independent of any other monitoring that might be imposed under the periodic monitoring rule. Where a permit requires no periodic monitoring, the umbrella rule is satisfied by meeting the more substantive requirements of the periodic monitoring rule. Where there is some periodic monitoring but it is not sufficient to assure compliance, the umbrella rule's "separate regulatory standard" requires a case-by-case enhancement of existing monitoring. EPA then proposed to codify its interpretation. The final rule, however, adopted the opposite position, holding that the periodic and umbrella rules are not separate regulatory standards, and permits that satisfy the periodic rule cannot be supplemented with additional monitoring requirements under the umbrella rule. Thus, under the final rule, state permitting authorities are prohibited from adding new monitoring requirements under the umbrella rule if the Title V permit already contains some (albeit insufficient) monitoring under the periodic monitoring rule. Because the final regulations are not a logical outgrowth of the proposed interim rule, they do not comport with the APA's notice-and-comment requirements. Environmental Integrity Project v. Environmental Protection Agency, No. 04-1083, 35 ELR 20204 (D.C. Cir. Oct. 7, 2005) (12 pp).


SDWA, PENALTIES:

The Ninth Circuit upheld a lower court decision finding a private water company liable for violating public health and safety regulations under the SDWA and ordering the divestiture of all but the largest of the company's water system as a penalty for those violations. The district court's determination that certain water samples were "routine" and not "special" was reasonable, and the company conceded that it committed the remaining SDWA violations. As for ordering the partial divestiture of the company's water system, the court was authorized to do so, and the record reflects that the court tailored a remedy that took into consideration both the substantial public interest and the company's interest. The regulatory violations were numerous and significant, the company failed to effectively respond to water quality problems, and the company acted in a manner inconsistent with an appreciation for the importance of its obligation to the public. Nor did the court violate the company's due process rights, and the imposition of a $200,000 penalty was proper as well. United States v. Alisal Water Corp., Nos. 02-15907, 04-16210, 35 ELR 20210 (9th Cir. Oct. 13, 2005) (27 pp.).


ALASKA NATIONAL INTEREST LAND CONSERVATION ACT (ANILCA), APA, EASEMENTS:

The Ninth Circuit held that the U.S. Forest Service violated the APA in placing conditions on owners' access to their patented mining claims within the Kootenai National Forest in Montana. The owners claimed that the Forest Service violated the APA and the Quiet Title Act when it granted the owners special use permits under ANILCA rather than unconditional permits. Because the Forest Service failed to consider the owners' easement claims as required by 36 C.F.R. §251.114(f), it violated the APA. As for the owners' Quiet Title Act claims, however, the statute of limitations barred one owner's quiet title action. And because the record was unclear as to whether the court has jurisdiction to hear the other owner's claim, this issue was remanded for further development. Skranak v. Castenada, Nos. 04-35053, 035056, 35 ELR 20206 (9th Cir. Oct. 12, 2005) (15 pp.).


MAGNUSON-STEVENS FISHERY CONSERVATION & MANAGEMENT ACT, ESA, NEPA:

A district court dismissed environmental groups' challenges to three NOAA Fisheries decisions relating to the treatment of sea turtles under a fishery management plan (FMP) for the Atlantic Highly Migratory Species Pelagic Longline Fishery. Specifically, the groups challenged a final rule implementing the new FMP regulations, a 2004 biological opinion, and a supplemental EIS. The FMP, however, is consistent with Magnuson-Stevens Act National Standard 2, which requires conservation and management measures to be based on the best scientific information available. Nor does it violate National Standard 9, which requires conservation measures to minimize bycatch and, to the extent bycatch cannot be avoided, minimize the mortality of such bycatch. In addition, NOAA Fisheries considered the best scientific and commercial data available in reaching its conclusions in the 2004 biological opinion. Lastly, the supplemental EIS allowed for sufficient public comment and adequately identified cumulative impacts. The government's motion for summary judgment was therefore granted. Ocean Conservancy v. Gutierrez, No. CIV.A. 04-1155(RJL), 35 ELR 20208 (D.D.C. Oct. 11, 2005) (Leon, J.) (12 pp.).


MAGNUSON-STEVENS FISHERY CONSERVATION & MANAGEMENT ACT:

A district court denied motions to clarify or modify an earlier decision in which it held that the FWS lacked statutory authority to promulgate Framework 16 to the Scallop fishery management plan insofar as it undid the habitat closure areas that had been established by Amendment 10 to that plan. In that decision, the court vacated those parts of Framework 16 that modified the Amendment 10 closures and stated that "for the time being . . . the habitat closures in Amendment 10 . . . will remain in place." The initial ruling should stand, the Amendment 10 closures should be reinstated, and NOAA Fisheries need not repromulgate closure regulations. Oceana, Inc. v. Evans, No. 04-0810 (ESH), 35 ELR 20207 (D.D.C. Oct. 6, 2005) (Huvelle, J.) (8 pp.).


ESA, BIOLOGICAL OPINION:

A district court remanded to NOAA Fisheries a 2004 biological opinion prepared for proposed operations of the Federal Columbia River Power System. The remand order was issued in response to an earlier decision in which the court found that the biological opinion violated the ESA. In the revised biological opinion, the agency must make a jeopardy determination that complies with the requirements of the ESA. It has one year to complete the biological opinion, and it must submit status reports to the court and interested parties on a quarterly basis. National Wildlife Federation v. National Marine Fisheries Service, Nos. CV 01-640-RE, CV 05-23-RE, 35 ELR 20209 (D. Or. Oct. 7, 2005) (Redden, J.) (6 pp.).


CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA), ENVIRONMENTAL IMPACT REPORT (EIR):

A California appellate court held that portions of an EIR for a water quality improvement program in the San Francisco Bay comply with CEQA. The court rejected the majority of challenges that concerned the adequacy of the EIR's analysis of impacts on the environment and agriculture and its treatment of mitigation measures and alternatives. Nevertheless, the EIR failed to discuss an alternative to the program that requires reduced exports of water from the Sacramento-San Joaquin Delta, failed to include an adequate discussion of the environmental impacts of diverting water from various potential sources to meet the program's goals, and failed to include certain information pertaining to an "environmental water account" for banking excess water. In re Bay-Delta Programmatic Environmental Impact Report Proceedings, Nos. C044267, CO44577, 35 ELR 20205 (Cal. App. 3d Dist. Oct. 7, 2005) (224 pp.).


U.S. SUPREME COURT GRANTS OF CERTIORARI:



  • The U.S. Supreme Court granted certiorari in Rapanos v. United States, No. 04-1034, and Carabell v. Army Corps of Engineers, No. 04-1384. The consolidated cases involve developers' right to alter wetlands that drain into the navigable waters of the United States, even if those navigable waters are miles from the developments in question. Prior decisions in the Rapanos litigation are available at 34 ELR 20060, 33 ELR 20249, 31 ELR 20357, and 27 ELR 20961. A lower court decision in Carabell is available at 34 ELR 20147. Click here for the Court's certiorari order.

  • The Court also granted certiorari in S.D. Warren Co. v. ME Board of Environmental Protection, No. 04-1527. That case challenges a state agency volunteer's decision that discharges from dams to a river must meet water quality standards under the CWA. Click here for the Court's certiorari order.

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 finalized the NESHAPs for hazardous waste combustors, which include hazardous waste burning incinerators, cement kilns, lightweight aggregate kilns, industrial/commercial/institutional boilers and process heaters, and hydrochloric acid production furnaces. 70 FR 59401 (10/12/05).

  • EPA retained the existing nitrogen dioxide increments in the Agency's PSD regulations. 70 FR 59581 (10/12/05).

  • EPA proposed an alternative low-sulfur diesel fuel transition program for the control of air pollution from motor vehicles and nonroad diesel engines in rural Alaska. 70 FR 59690 (10/13/05).

  • EPA announced the availability of its final order responding to remand denying a petition to object to a state operating permit issued to the Oglethorpe Power Company in Roopville, Georgia. 70 FR 59337 (10/12/05).

  • EPA announced that Massachusetts, New Hampshire, and Rhode Island have fulfilled their commitment to complete a mid-course review assessing whether or not their respective nonattainment area was making sufficient progress toward attainment of the one-hour ozone standard. 70 FR 59338 (10/12/05).

  • SIP Approvals: California (nitrogen oxides and sulfur compounds; Monterey Bay area), 70 FR 60008 (10/14/05). Connecticut (particulate matter; New Haven area), 70 FR 59657 (10/13/05). Texas (nitrogen oxides; Dallas/Fort Worth area), 70 FR 58978 (10/11/05). Wisconsin (volatile organic compounds, site-specific), 70 FR 60010 (10/14/05).

  • SIP Proposals: California (nitrogen oxides and sulfur compounds; Monterey Bay area; see above for direct final rule), 70 FR 60036 (10/14/05). Connecticut (particulate matter; New Haven area; see above for direct final rule), 70 FR 59690 (10/13/05). Maryland (ozone and fine particulate matter), 70 FR 59688 (10/13/05). Utah (enforceability of rules), 70 FR 59681 (10/13/05). Wisconsin (volatile organic compounds, site-specific; see above for direct final rule), 70 FR 60037 (10/14/05).

DATA MANAGEMENT:



  • EPA established the framework by which it will accept electronic reports from regulated entities to satisfy document submission requirements in the Agency's regulations. 70 FR 59847 (10/13/05).

  • EPA announced the designation of Agency systems that are already receiving electronic reports and that are acceptable to continue receiving electronic reports for a period of up to two years. 70 FR 59748 (10/13/05).

PUBLIC LAND:



  • BLM announced the availability of a draft resource management plan and draft EIS for lands administered by the Hollister field office in California. 70 FR 60103 (10/14/05).

  • BLM announced the availability of a proposed resource management plan and final EIS for the Sloan Canyon National Conservation Area in Nevada. 70 FR 60103 (10/14/05).

  • BLM announced the availability of the record of decision for the Upper Deschutes resource management plan and EIS, which covers lands in Crook, Deschutes, Klamath, and Jefferson counties in central Oregon. 70 FR 60105 (10/14/05).

  • FWS announced the availability of the draft comprehensive conservation plan and EA for the Hagerman National Wildlife Refuge in Sherman, Texas. 70 FR 59763 (10/13/05).

  • FWS announced the availability of a draft comprehensive conservation plan and EA for the Theodore Roosevelt National Wildlife Refuge Complex in Mississippi. 70 FR 59764 (10/13/05).

  • FWS announced the availability of a revised comprehensive conservation plan and EIS for the Alaska Peninsula and Becharof National Wildlife Refuge. 70 FR 59365 (10/12/05).

  • The National Park Service announced the availability of a draft EIS for the proposed reconstruction of the Furnace Creek water collection system at Death Valley National Park in Inyo County, California. 70 FR 59370 (10/12/05).

WATER:



  • EPA revised several provisions of the general pretreatment regulations concerning industrial users who introduce pollutants into POTWs. 70 FR 60133 (10/14/05).

  • EPA announced the availability of its data on the compounds atrazine and alachlor and requested additional data and information to develop ambient water quality criteria for the protection of human health for these compounds. 70 FR 60078 (10/14/05).

WILDLIFE:



  • FWS proposed changes to its regulations governing the captive propagation of raptors. 70 FR 60052 (10/14/05).

  • FWS designated approximately 532 miles of critical habitat for the Arkansas River Basin population of the Arkansas River shiner in Kansas, New Mexico, Oklahoma, and Texas. 70 FR 59807 (10/13/05).

  • FWS designated zero acres of critical habitat for the endangered San Jacinto Valley crownscale, an annual shrub found in seasonal wetlands in Southern California, because all 15,232 acres of identified habitat with features essential to the conservation of this taxon are already adequately protected pursuant to ESA §4(b)(2). 70 FR 59951 (10/13/05).

  • NOAA Fisheries issued a temporary rule for a period of 30 days to allow shrimp fishermen to use limited tow times as an alternative to turtle excluder devices in state and federal waters off Louisiana and Texas. 70 FR 60013 (10/14/05).

DOJ NOTICES OF SETTLEMENT:



  • United States v. FTR, LP, No. 04-CV-930 (D.S.C. Sept. 26, 2005). Settling CERCLA defendants must pay a total of $1,450,000 in past response costs incurred at the Carolina Steel Drum Superfund site in Rock Hill, South Carolina. 70 FR 59770 (10/13/05).

  • In re FV Steel & Wire, No. 04-22421 (Bankr. Ct. E.D. Wis. Sept. 27, 2005). The United States will have a general unsecured claim against a settling CERCLA defendant in the amount of $732,000 and the U.S. Army will pay $1,098,765 in past response costs incurred at the Pascale Property site in Washington Township, New Jersey. 70 FR 59770 (10/13/05).

  • United States v. General Electric Co., No. 05-CV-1270 (N.D.N.Y. Oct. 6, 2005). A settling CERCLA defendant must pay $43,000,000 in past and future response costs related to the release of PCBs in the Hudson River and must dredge approximately 265,000 cubic yards of contaminated sediment from portions of the Upper Hudson River; the defendant may also dredge an additional 2.39 million cubic yards of contaminated sediments and may pay up to an additional $32.5 million in U.S. response costs. 70 FR 59771 (10/13/05).

  • United States v. Grand Truck Western Railroad Inc., No. 1:05-cv-00672 (W.D. Mich. Sept. 30, 2005). Settling CERCLA defendants must continue remedial actions at the Verona Well Field Superfund site in Battle Creek, Michigan, at a cost of approximately $8.2 million, must pay $40,000 in past response costs incurred at the site, and must pay future oversight costs incurred at the site. 70 FR 59771 (10/13/05).

  • United States v. Key Investment Co., No. 98-5162 (E.D. Pa. Sept. 28, 2005). Settling CERCLA defendants must pay a total of $83,000 in past response costs incurred at the North Penn Area Six Superfund site in and adjacent to Lansdale, Pennsylvania. 70 FR 59772 (10/13/05).

  • United States v. Moniteau County, No. 03-4094-CV-C-SOW (W.D. Mo. Oct. 3, 2005). Settling CWA defendants must take affirmative measures to avoid further violations, must implement restoration and mitigation in an impacted area, and must perform an environmental project to resolve claims related to the unpermitted discharge of pollutants into the waters of the United States. 70 FR 59772 (10/13/05).

  • In re Mossberg Industries, Inc., No. 03-12993 (Bankr. Ct. N.D. Ind. Sept. 26, 2005). The United States will have a general unsecured claim in the amount of $768,000 against a settling CERCLA defendant for past response costs incurred at the Peterson/Puritan, Inc., Superfund site in Cumberland and Lincoln, Rhode Island. 70 FR 59772 (10/13/05).

  • United States v. Holbrook Trust, No. CV05-6723 (GHK)(VBKx) (C.D. Cal. Sept. 13, 2005). A settling CERCLA defendant will provide the United States with access and institutional controls required to perform remedial action at the Waste Disposal, Inc., Superfund site in Santa Fe Springs, California. 70 FR 59773 (10/13/05).

 


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


THE CONGRESS

COMMITTEE ACTION:



  • S. 1339 (Junior Duck Stamp Conservation and Design Program Act of 1994) was reported by the Committee on Resources. S. Rep. No. 109-246, 151 Cong. Rec. H8807 (daily ed. Oct. 7, 2005). The bill would reauthorize the Junior Duck Stamp Conservation and Design Program Act of 1994.

BILLS INTRODUCED:



  • S. 1859 (Burr, R-N.C.) (CAA) would amend the CAA to provide for a Federal Fuels List. 151 Cong. Rec. S11313 (daily ed. Oct. 7, 2005). The bill was referred to the Committee on Environment and Public Works.

  • S. 1860 (Domenici, R-N.M.) (Energy Policy Act) would amend the Energy Policy Act of 2005 to improve energy production and reduce energy demand through improved use of reclaimed waters. 151 Cong. Rec. S11313 (daily ed. Oct. 7, 2005). The bill was referred to the Committee on Energy and Natural Resources.

  • H.R. 3968 (Rahall, D-W.Va.) (mining) would modify the requirements applicable to locatable minerals on public domain lands consistent with the principles of self-initiation of mining claims. 151 Cong. Rec. H8732 (daily ed. Oct. 6, 2005). The bill was referred to the Committee on Resources.

  • H.R. 3973 (Udall, D-N.M.) (forests) would authorize the U.S. Forest Service and BLM to carry out a series of pilot projects to encourage collaborative approaches to, and to provide research on, the rehabilitation of forest ecosystem health following uncharacteristic disturbances of forested federal lands in a manner that protects wildlife habitat, water quality, and forest resiliency while also promoting social and economic opportunities in nearby communities. 151 Cong. Rec. H8732 (daily ed. Oct. 6, 2005). The bill was referred to the Committee on Agriculture and to the Committee on Resources.

  • H.R. 3977 (Andrews, D-N.J.) (well water quality) would require owners of property to test and disclose the water quality of qualified wells before selling or leasing the property. 151 Cong. Rec. H8732 (daily ed. Oct. 6, 2005). The bill was referred to the Committee on Energy and Commerce.

  • H.R. 3978 (Beauprez, R-Colo.) (mineral rights) would authorize the Secretary of Energy to purchase certain essential mineral rights and resolve natural resource damage liability claims. 151 Cong. Rec. H8732 (daily ed. Oct. 6, 2005). The bill was referred to the Committee on Resources.

  • H.R. 3981 (Doolittle, R-Cal.) (forests) would authorize the Secretary of Agriculture to carry out certain land exchanges involving small parcels of National Forest System land in the Tahoe National Forest in the state of California. 151 Cong. Rec. H8733 (daily ed. Oct. 6, 2005). The bill was referred to the Committee on Resources.

  • H.R. 4001 (Otter, R-Idaho) (diesel fuel) would temporarily waive the restriction on highway use in applying the tax exemption for diesel fuel used on a farm for farming purposes. 151 Cong. Rec. H8732 (daily ed. Oct. 6, 2005). The bill was referred to the Committee on Ways and Means.
Copyright© 2005, Environmental Law Institute, Washington, D.C. All rights reserved.
IN THE STATES

Note: 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:

California
Indiana
New Jersey
Vermont

Connecticut
Iowa
New Mexico
Virginia

Florida
Maine
Pennsylvania
Wisconsin

Idaho
Maryland
Rhode Island
Wyoming

CALIFORNIA


Air:



  • The California Air Resource Board (ARB) staff will hold a public consultation meeting to discuss potential amendments to the regulation governing the statewide Portable Equipment Registration Program, a uniform program for regulating portable engines and engine-driven equipment units. The suggested amendments include recommendations for district inspection fees, notification requirements, and recordkeeping and reporting requirements. The meeting will be held November 8, 2005. See http://www.arb.ca.gov/perp/perpact/mtgs/meeting1.pdf

  • ARB will hold a public workshop to discuss modifications to the Zero Emission Bus purchase requirements. When the bus regulation was developed, information available indicated that the research and development of fuel cells in transit buses would lead to their development before their application in light-duty vehicles. As it turned out, fuel cell and vehicle manufacturers instead focused their resources on developing light-duty fuel cell applications. Since the development of the heavy-duty technology has not progressed as initially anticipated, staff is initiating this review and soliciting input to guide the revision of the purchase requirements. The workshop will be held October 27, 2005. See http://www.arb.ca.gov/msprog/bus/zeb/zeb-workshop10-07-05.pdf

  • ARB is holding public workshops on the California Hydrogen Highway Network. It is seeking input for the creation and release of two Request for Proposal (RFP) packages--one on establishing hydrogen fueling stations and the other on procuring hydrogen powered vehicles. The workshops will be held October 28 and November 1, 2, and 3, 2005. See http://www.hydrogenhighway.ca.gov/sb76/workshop/finalnotice.pdf

  • The Air Quality Management District (AQMD) is proposing amendments to Rule 1107, Coating of Metal Parts and Products. The air quality objective of the proposed amendment is to reduce volatile organic compound (VOC) emissions through implementation of the 2003 Air Quality Management Plan Control Measure CTS-10-Miscellaneous Industrial Coatings and Solvent Operations.  The proposed amendments establish new, future effective VOC limits for extreme high-gloss and prefabricated architectural coatings, modifies or eliminates certain current exemptions from higher transfer efficiency requirements, reduces allowable outlet concentrations of controlled VOCs, and improves the clarity and enforceability of the rule. A public hearing will be held November 4, 2005. Written comments are due October 25, 2005. See http://www.aqmd.gov/pub_edu/nph_1107_Nov_4_05.html

  • AQMD is proposing amendments to Rule 1118, Control of Emissions from Refinery Flares, to eliminate flaring except for emergencies, startups, shutdowns, turnarounds, and essential operational needs.  In addition, refineries are required to meet annual emission targets.  If targets are exceeded, refinery operators are required to submit Flare Minimization Plans for Executive Officer approval and pay mitigation fees for excess emissions. A public hearing will be held November 4, 2005. Written comments are due October 25, 2005. See http://www.aqmd.gov/pub_edu/nph_1118_Nov_4_05.html

  • AQMD is proposing Rule 1156, Further Reduction of Particulate Emissions from Cement Manufacturing Facilities, in response to Control Measure BCM-08 of the 2003 Air Quality Management Plan to attain further particulate emission that will directly contribute to the region's progress towards attainment of state and federal ambient air quality standards for fine particulate matter . A public hearing will be held November 4, 2005. Written comments are due October 25, 2005. See http://www.aqmd.gov/pub_edu/nph_1156_Nov_4_05.html

CONNECTICUT


Water:



  • The Commissioner of the Department of Environmental Protection announced its intent to reissue a general permit for the discharge of nitrogen from POTWs. The proposed general permit will limit the discharge of total nitrogen to the waters of the state of Connecticut. A public hearing will be held November 8, 2005. See http://dep.state.ct.us/wtr/lis/nitrogengp/nitrogenpn.pdf

FLORIDA


Air:



Water:



  • The Department of Environmental Protection issued a notice of proposed rulemaking to delete Section 15, Township 43S, Range 40E, from the area covered by the Noticed General Permit Rule 62-341.630, F.A.C., for single-family residential lots within the Indian Trail Improvement District. See http://tlhora6.dep.state.fl.us/onw/publications/4-NPR62341-10-7-05-INT.pdf

  • The Department of Environmental Protection announced rule development for Chapter 62-600, F.A.C. The rulemaking will provide regulations governing wastewater management within the Wekiva Study Area to implement the findings of the Wekiva Study as directed by 2005 state legislation. A workshop will be held on November 1, 2005. See http://tlhora6.dep.state.fl.us/onw/publications/3-NRD62600-10-7-05-INT.pdf

IDAHO


Water:



  • The Idaho Department of Environmental Quality seeks comment on a draft assessment of water quality in the Little Salmon River Watershed. A public meeting will be held November 10, 2005. Comments are due December 2, 2005. See http://www.deq.state.id.us/Applications/NewsApp/shownews.cfm?event_id=1315

  • The Idaho Department of Environmental Quality seeks comment on proposed revisions to the wastewater-land application permitting program technical document. The document is a web-based reference under which the agency's wastewater program provides assistance and technical information for municipal and industrial wastewater-land application projects throughout the state. Written comments are due November 11, 2005. See http://www.deq.state.id.us/Applications/NewsApp/shownews.cfm?event_id=1317

INDIANA


Air:



  • The Air Pollution Control Board announced that the date of the public hearing for consideration of preliminary adoption of LSA Document #04-182(APCB), printed at 28 IR 3057, has been changed. The hearing will now be held on December 7, 2005. See http://www.in.gov/legislative/register/Vol29/01Oct/07CH326040182.PDF

  • The Indiana Department of Environmental Management developed draft rule language for amendments to 326 IAC 6.5 and 326 IAC 6.8 concerning particulate matter emission limitations. The agency seeks comment on the draft rule language, on the affected citations, and on any other provisions of Title 326 that may be affected by this rulemaking. A public hearing will be held December 7, 2005. See http://www.in.gov/legislative/register/Vol29/01Oct/11ID326040279.PDF

  • The Indiana Department of Environmental Management has developed draft rule language to amend 326 IAC 8-1-6 to exempt boat manufacturing facilities that are subject to 326 IAC 20-48 and reinforced plastics composites production facilities that are subject to 326 IAC 20-56 from 326 IAC 8-1-6. The agency seeks comment on the draft rule language, on the affected citations, and on any other provisions of Title 326 that may be affected by this rulemaking. A public hearing will be held December 7, 2005. See http://www.in.gov/legislative/register/Vol29/01Oct/11ID326050166.PDF

  • The Indiana Department of Environmental Management is soliciting public comment on new rules in 326 IAC 13 concerning lower-Reid vapor pressure gasoline requirements in the nine ozone nonattainment counties in central Indiana. The agency seeks comment on the affected citations and on any other provisions of Title 326 that may be affected by this rulemaking.Written comments are due November 3, 2005. See http://www.in.gov/legislative/register/Vol29/01Oct/11ID326050267.PDF

  • The Indiana Department of Environmental Management seeks comment on amendments to 326 IAC 4-1 concerning open burning for fire extinguisher training. The agency seeks comment on the affected citations listed and on any other provisions of Title 326 that may be affected by this rulemaking. Written comments are due November 3, 2005. See http://www.in.gov/legislative/register/Vol29/01Oct/11ID326050268.PDF

Hazardous & Solid Wastes:



  • The Solid Waste Management Board announced that the date of the public hearing for consideration of preliminary adoption of LSA Document #05-85(SWMB), printed at 28 IR 2821, the General Motors Fort Wayne Assembly Plant F019 delisting rule, has been changed. The hearing will be now held on October 18, 2005. See http://www.in.gov/legislative/register/Vol29/01Oct/07CH329050085.PDF

  • The Indiana Department of Environmental Management developed draft rule language for new rules and amendments to rules in 329 IAC 3.1 and 329 IAC 13 concerning incorporating by reference the July 1, 2005, edition of the federal hazardous waste management regulations in 40 C.F.R. 260 through 40 C.F.R. 273, and the changes to the federal hazardous waste program published on August 5, 2005, (70 Fed. Reg. 45508), and changes to the listing of chemical munitions as acute hazardous waste in 329 IAC 3.1-6-3 to more accurately describe the actual requirements generators of those wastes must follow. Written comments are due October 31, 2005. See http://www.in.gov/legislative/register/Vol29/01Oct/11ID329050066.PDF

  • The Indiana Department of Environmental Management seeks comment on the addition of new rules at 329 IAC 11.5 concerning collection of mercury switches in end-of-life vehicles. This rule adds pertinent definitions and minimum requirements for operations that plan to store, crush, bale, or dismember end-of-use vehicles, such as auto salvage yards, junk yards, auto dismantlers, or scrap metal dealers. These operations must remove mercury switches and recycle or dispose of the mercury switches properly. The rule would also cause metal shredding operations, scrap metal recyclers, metal smelters, and steel manufacturers to only recycle scrap metal that did not contain any mercury or mercury switches. Written comments are due November 1, 2005. See http://www.in.gov/legislative/register/Vol29/01Oct/11ID329050250.PDF

Land Use:



  • The Natural Resources Commission intends to amend 312 IAC 16-5-4 to authorize the director of the Department of Natural Resources to grant a variance from the requirement to install an intermediate string of casing from the surface to a point 50 feet below the mine floor, whether drilled through a pillar or not. Such variance is authorized under specific circumstances upon receipt of a written application for variance from a person proposing to drill a well for oil and gas purposes on land underlaid by an inactive underground mine or within the permit boundaries of an active underground mine. The agency also intends to amend 312 IAC 16-5-5 to correct an administrative code citation.

Water:



  • The Natural Resources Commission intends to amend 312 IAC 5-7-5, which establishes special watercraft speed zones on Ohio River embayments in Switzerland County, by making the entirety of Turtle Creek Bay an idle speed zone. See http://www.in.gov/legislative/register/Vol29/01Oct/07NO312050263.PDF

  • The Natural Resources Commission intends to amend 312 IAC 9, which establishes watercraft restrictions on waterways owned by public utilities, by adding a new section to govern watercraft operations on Sullivan Lake in Sullivan County. See http://www.in.gov/legislative/register/Vol29/01Oct/07NO312050264.PDF

  • The Natural Resources Commission intends to amend 312 IAC 11-5-2, which governs lawful nonconforming uses for structures subject to licensure under IC 14-26-2 (commonly known as the "Lakes Preservation Act"). The amendment provides greater specificity to the processes used to evaluate lawful nonconforming uses, specifies that the person claiming a lawful nonconforming use has the burden for establishing conformity and provides two years for the submission of documentation, specifies that the Department of Natural Resources has the burden for establishing that a lawful nonconforming use should be terminated if the department contends it is a nuisance or has been abandoned, and clarifies that a temporary structure can qualify as a lawful nonconforming use and acknowledges that the seasonal removal of a structure does not constitute abandonment. Effective January 1, 2007. See http://www.in.gov/legislative/register/Vol29/01Oct/07NO312050274.PDF

  • The Indiana Department of Environmental Management seeks comment on the development of a new rule to modify the procedures for obtaining a variance from water quality-based effluent limits (WQBELs) so that the Indiana rules are consistent with federal regulations and Senate Enrolled Act 620. The agency also seeks comment on the development of a new rule to streamline the process for obtaining a variance from the WQBELs for E.coli and chloride for POTWs. Written comments are due October 30, 2005. See http://www.in.gov/legislative/register/Vol29/01Oct/11ID327050254.PDF

  • The Indiana Department of Environmental Management seeks comment on amendments to 327 IAC 8-2-8.2, 327 IAC 8-11-1, and 327 IAC 8-12 concerning sanitary surveys, operating reports, minor corrections to classifications of water treatment plants and distribution systems, provisions for certification of site specific operators, and certified operators in responsible charge of public water systems; as well as amendments to 327 IAC 8-2.5-6, 327 IAC 8-2.5-7, 327 IAC 8-2.5-8, 327 IAC 8-2.5-9, and 327 IAC 8-2.6-6 to incorporate minor corrections to disinfectants, disinfection byproducts, and filter backwash recycling rules. The agency seeks comment on the affected citations listed and on any other provisions of Title 327 that may be affected by this rulemaking. Written comments are due October 31, 2005. See http://www.in.gov/legislative/register/Vol29/01Oct/11ID327050255.PDF

Wildlife:



IOWA


Air:



  • The Environmental Protection Commission terminated the notice of intended action to amend Chapter 20, Scope of Title--Definitions--Forms--Rules of Practice; Chapter 22, Controlling Pollution; and Chapter 31, Nonattainment Areas; and to adopt Chapter 33, Special Regulations and Construction Permit Requirements for Major Stationary Sources--Nonattainment Areas and PSD of Air Quality, Iowa Administrative Code, that was published in the Iowa Administrative Bulletin on February 16, 2005, as ARC 4005B, in light of a D.C. Circuit ruling concerning the federal PSD program. See http://www.legis.state.ia.us/Rules/Current/Bulletin/IAB051012.pdf (p. 563)

MAINE


Water:



  • The Department of Environmental Protection adopted two new rules, Ch. 530, Surface Water Toxics Control Program, and Ch. 584, Surface Water Quality Criteria for Toxic Pollutants, to replace the existing Ch. 530.5. Chapter 530 establishes applicability and effluent testing requirements for the discharge of toxic pollutants by certain municipal, industrial and other sources. Chapter 584 contains statewide ambient water quality criteria for various toxic pollutants based on U.S. EPA information and methodology. Adjustments are made for fish consumption rates and physical water characteristics in Maine. Effective October 9, 2005. See http://www.maine.gov/sos/cec/rules/notices/2005/101205.htm

  • The Saco River Corridor Commission proposed the following rules: Ch. 101, Regulations for the Processing of Applications for Permits, Variances, or Certificates of Compliance; Ch. 102, Standard Conditions of Approval; Ch. 103, Standards to Address the Environmental Factors Enumerated in 38 MRSA §§957-D.1.A.-K, 959-A.1.A.-K, and 963.1.C.(1)-(1l); Ch. 105, Performance Standards for Campgrounds; Ch. 106, Performance Standards Governing Sand, Gravel, or Topsoil Excavation and Other Mineral Exploration and Extraction Activities within the Saco River Corridor; Ch. 107, Performance Standards Governing Expansions of Existing Nonconforming Uses, Including Structures; Ch. 108, Performance Standards for Parking Areas within the Saco River Corridor; and Ch. 109, Performance Standards for the Construction and Establishment of Roads in Limited Residential and Resource Protection Districts of the Corridor. A public hearing will be held October 26, 2005. Comments are due November 7, 2005. See http://www.maine.gov/sos/cec/rules/notices/2005/100505.htm

Wildlife:



  • Ch. 4, Hunting and Trapping: 4.09, Transportation of Certain Wildlife and Fish into Maine from Outside of the State. The Department of Inland Fisheries and Wildlife proposed to adopt rules to restrict the transportation of cervid carcasses and parts into Maine as allowed under 12 MRSA §§10051, 10103 sub-§2, and 10104 sub-§1. The proposed rules define the parts of cervid carcasses that may be transported into Maine from other jurisdictions that pose a risk to Maine's wildlife from Chronic Wasting Disease. The rules would allow all parts of cervids normally used by hunters to be brought into the state. Comments are due November 11, 2005. See http://www.maine.gov/sos/cec/rules/notices/2005/101205.htm

  • Ch. 13, Watercraft Regulations: Motor Size Restrictions on Certain Inland Waters. The Department of Inland Fisheries and Wildlife has been petitioned to consider the following watercraft regulations: Hosmer Pond, Town of Camden: Motorboats over 10 horsepower prohibited. A public hearing will be held November 2, 2005. Comments are due November 14, 2005. See http://www.maine.gov/sos/cec/rules/notices/2005/101205.htm

  • Ch. 25.95(1)(B)(2)(a), Monhegan Island Lobster Conservation Area, Open Season. The Monhegan Island Lobster Conservation Area, 180-day open lobster fishing season for 2005-2006 will begin December 1, 2005, and end May 29, 2006. This regulation conforms to 12 MRSA §6472. Effective Date: October 3, 2005. See http://www.maine.gov/sos/cec/rules/notices/2005/100505.htm

  • Ch. 1, Open Water and Ice Fishing Regulations. The Department of Inland Fisheries and Wildlife proposed to adopt a list of lakes and ponds identified as "native brook trout waters" that have never been stocked. The law also prohibits the commissioner from stocking or issuing permits to stock fish and prohibits the use or possession of live fish as bait on these waters. Some of the waters may be restricted to the use of artificial lures only or limited to fly fishing only; others will have a "no live fish as bait" (S-4) regulation. Comments are due November 4, 2005. See http://www.maine.gov/sos/cec/rules/notices/2005/100505.htm

  • Ch. 4, Hunting and Trapping: Moose Hunting. The Department of Inland Fisheries & Wildlife is proposing to adopt a rule establishing the number of moose hunting permits to be issued for the 2006 season. Permits will be issued for bulls and antlerless moose. This proposal decreases the number of permits issued in WMDs 8, 9, 29 and increases the number of permits issued in WMDs 27 and 28 for a total decrease of 70 permits. The proposal also contains a clarification on permit restrictions to make it clear if an applicant is awarded a specific permit (bull-only or antlerless only), they must comply with the provisions of that permit. Comments are due November 4, 2005. See http://www.maine.gov/sos/cec/rules/notices/2005/100505.htm

  • Ch. 5.02, Classified Wildlife Management Areas (Open Long Lake Wildlife Management Area to hunting and trapping). The Department of Inland Fisheries and Wildlife is proposing to open Long Lake Wildlife Management Area, Aroostook County, to the hunting and trapping of all wild birds and animals during the open season on these species. All other laws and rules relating to hunting and trapping shall apply. Comments are due November 4, 2005. See http://www.maine.gov/sos/cec/rules/notices/2005/100505.htm

  • Ch. 10, Significant Wildlife Habitat. The Department of Inland Fisheries and Wildlife is proposing to adopt rules that define several Significant Wildlife Habitats, as described under 38 MRSA §480-B(10). This proposed rule contains definitions for high and moderate value tidal waterfowl and wading bird habitats, shorebird nesting, feeding, and staging areas, and vernal pools. This rule will require that applicants for permits under the Natural Resource Protection Act survey their project areas and avoid, minimize, and/or mitigate impacts to these resources. Public hearings will be held October 25 and 27, 2005. Comments are due November 7, 2005. See http://www.maine.gov/sos/cec/rules/notices/2005/100505.htm

  • Ch. 335, Significant Wildlife Habitat; Ch. 375, No adverse environmental effect standard, Section 15: Wildlife and fisheries. The 122nd Maine State Legislature made the following changes to the Natural Resource Protection Act (NRPA): (1) Maine Forest Service's language defining timber harvesting activities was incorporated into the NRPA definition of forest management activities; (2) the statutory requirement to map significant vernal pools, shorebird, and wading and waterfowl habitats as we do any other wetland was removed; and (3) the exemption for the filling of up to one-tenth of an acre of significant wildlife habitat was removed. A public hearing will be held October 21, 2005. Comments are due October 31, 2005. See http://www.maine.gov/sos/cec/rules/notices/2005/092805.htm

MARYLAND


Hazardous & Solid Wastes:



NEW JERSEY


Wildlife:



  • The New Jersey Department of Environmental Protection is proposing amendments of N.J.A.C. 7:12. The amendment would affect the classification of New Jersey waters concerning acceptability for harvesting shellfish. The proposed amendment will downgrade a portion of the Atlantic coastal area east of the effluent outfall for the Township of Neptune Sewage Authority in Monmouth County (66 acres) from approved to prohibited. The change in classification is a result of the need for a precautionary buffer around the Neptune Sewage effluent outfall pipe. This buffer is necessary to maintain public health and safety practices. Written comments are due December 16, 2005. See http://www.nj.gov/dep/rules/notices/101705b.htm

General:



  • Worker and Community Right to Know Regulations, N.J.A.C. 7:1G-1.2, Definition of "Employer." Four NAICS codes that correspond to employers in previously regulated SIC codes were inadvertently omitted from the rule published in the New Jersey Register on September 7, 2004. The Department is proposing to restore these NAICS codes to ensure that the universe of entities regulated under the former SIC codes and N.J.S.A. 13:1D-138 et seq. remains constant under these rules. Written comments are due December 16, 2005. See http://www.nj.gov/dep/rules/notices/101705a.htm

NEW MEXICO


Water:



PENNSYLVANIA


Hazardous & Solid Wastes:



  • The Department of Environmental Protection proposed to authorize, under General Permit WMGR109, the processing of used restaurant oil, yellow grease, grease trap waste, oils and animal fat from food processing or rendering plants, waste from ethanol production, soybean soap stock, and off-specification vegetable oils to produce biofuel and biodiesel for beneficial use as fuel. This will be a statewide general permit. Written comments are due November 30, 2005. See http://www.pabulletin.com/secure/data/vol35/35-40/1825.html

RHODE ISLAND


Water:



  • The Department of Environmental Management proposed regulations for the Narragansett Bay and Watershed Restoration Bond Fund. The proposed regulations create the fund to receive, hold, and administer the use of the $8,500,000 portion of the Rhode Island Open Space, Recreation, Bay, and Watershed Protection Bond allotted for "anti-pollution projects and restoration activities benefiting Narragansett Bay and state watersheds." A public hearing will be held on November 10, 2005. Written comments are due November 17, 2005. See http://www.dem.ri.gov/programs/benviron/water/finance/other/nbbondpn.htm

VERMONT


Air:



  • In response to requests from the public and the high level of interest shown at an agency informational hearing held on September 27, 2005, in Montpelier, the Agency of Natural Resources has decided to hold a second information gathering hearing on a proposed rule regarding air pollution limits on emissions from new outdoor wood-fired boilers. The second hearing is to be held at 7:00 p.m. on Monday, October 17, 2005. See http://www.anr.state.vt.us/air/cfm/AirWhatsNew.cfm#compliance

General:



  • The Agency of Natural Resources is going through a process rethinking the fundamental assumptions and values that were in place at the agency's inception in 1970 and determining which of those are valid today and what has changed since that time so that the agency can move forward in the new millennium. Public hearings will be held October 18, 2005, and November 8, 2005. See http://www.anr.state.vt.us/site/html/rethink/index.cfm

VIRGINIA


Water:



  • A public hearing to receive comments on proposed amendments and on the reissuance of the regulation establishing a general Virginia pollutant discharge elimination system permit for car wash facilities will be held on November 23, 2005. The proposal will appear in the Virginia Register of Regulations on October 31, 2005. The comment period starts on October 31, 2005, and ends on December 30, 2005. See http://www.townhall.state.va.us/meeting/ViewMeeting.cfm?Meeting_ID=6407

  • A public hearing to receive comments on the proposed regulation establishing a Virginia water protection general permit for minor surface water withdrawals will be held on December 5, 2005. The proposed regulation will be published in the Virginia Register of Regulations on October 31, 2005. The public comment period begins on October 31, 2005, and ends on January 13, 2006. See http://www.townhall.state.va.us/meeting/ViewMeeting.cfm?Meeting_ID=6403

  • The final public meeting to discuss the bacteria TMDL and the benthic stressor identification analysis for the North River TMDLs will be held on November 14, 2005. The public notice will appear in the Virginia Register of Regulations on October 31, 2005. The comment period begins on November 14, 2005, and ends on December 14, 2005. See http://www.townhall.state.va.us/meeting/ViewMeeting.cfm?Meeting_ID=6437

  • A public hearing on a proposed revision to Virginia's SIP will be held on November 17, 2005. The proposed revision consists of amendments to existing regulation provisions concerning the definition of volatile organic compound (VOC). The amendments revise the state definition of VOC in order to implement U.S. EPA exemptions for four substances and a partial exemption for one substance. The department is seeking comment on the issue of whether the regulation amendments should be submitted to EPA as a revision to the SIP. See http://www.townhall.state.va.us/meeting/ViewMeeting.cfm?Meeting_ID=6436

WISCONSIN


Air:



  • The Department of Natural Resources will hold a public hearing on October 18, 2005, to receive public comments on the preliminary determination and draft registration construction permit numbers RCP-A01 and RCP-B01 to regulate facilities that are minor sources of air emissions located throughout the state of Wisconsin. See http://www.dnr.state.wi.us/org/caer/ce/news/hearmeet.html

  • The Department of Natural Resources will hold a public hearing on October 18, 2005, to receive public comments on the draft registration operation permit number ROP-A01 to regulate facilities with low actual air emissions located throughout the state of Wisconsin. See http://www.dnr.state.wi.us/org/caer/ce/news/hearmeet.html

Water:



  • On November 1, 2005, the Department of Natural Resources will hold a public informational hearing to receive comments, provide information, and respond to questions regarding the determination of the navigability of an unnamed waterway that flows though property at 5213 Flatrock Heights Lane, Gillett, Wisconsin, and the elevation or location of the ordinary high water mark for that waterway at this property. See http://www.dnr.state.wi.us/org/caer/ce/news/hearmeet.html

  • On October 18, 2005, the Department of Natural Resources will hold a public hearing on revisions to § NR 118.04, Wis. Adm. Code, relating to management zone designations in the Lower St. Croix National Scenic Riverway. The proposed revisions will allow the Village of Osceola and the City of St. Croix Falls the flexibility to allow businesses as a permitted use rather than a conditional use. This requires modifying § NR 118.04 to change the management zone designation for a portion of each of these municipalities from Small Town Historic Management Zone to River Town Management Zone. The remainder of these municipalities will remain in the Small Town Historic Management Zone. No other communities within the riverway are affected by this change. See http://www.dnr.state.wi.us/org/caer/ce/news/hearmeet.html

Wildlife:



  • The Department of Natural Resources will hold public hearings from October 11-19, 2005, on revisions to ch. NR 10, Wis. Adm. Code, relating to deer hunting season and permit issuance regulation changes. See http://www.dnr.state.wi.us/org/caer/ce/news/hearmeet.html

  • The Department of Natural Resources will hold public hearings on October 12, 2005, on amendments to §§ NR 20.20(73)(j)1a. and 3.a. and § NR 25.06(2)(b)1., Wis. Adm Code, relating to sport and commercial fishing for yellow perch in Green Bay. The proposed rule increases the sport fishing bag limit for yellow perch from 10 to 25 fish and increases the annual total allowable commercial harvest from 20,000 pounds to 60,000 pounds. It also eliminates the sunset clause. See http://www.dnr.state.wi.us/org/caer/ce/news/hearmeet.html

  • The Department of Natural Resources will hold a public hearing on October 17, 2005, on Natural Resources Board Emergency Order No. WM-20-05(E) pertaining to the 2005 migratory game bird season. This emergency order took effect on August 31, 2005. See http://www.dnr.state.wi.us/org/caer/ce/news/hearmeet.html

  • The Department of Natural Resources will hold a public hearing on October 19, 2005, on the creation of § NR 10.01(3)(e)2.h., Wis. Adm. Code, creating a deer hunting season at Straight Lake Wilderness state park in Polk County. See http://www.dnr.state.wi.us/org/caer/ce/news/hearmeet.html

WYOMING


Air:



Water



  • The Wyoming Department of Environmental Quality's Water Quality Division will be holding watershed based surface water discharge permitting stakeholder meetings for the Willow, Pumpkin, and Fourmile Creek watersheds in Buffalo, Wyoming. The Willow Creek meeting will be held on November 3, 2005, and the Pumpkin and Fourmile Creek meeting will be held on November 4, 2005. The purpose of the meetings is to complete the stakeholder processes for developing watershed-based permits for produced water discharges in each of the watersheds. See http://deq.state.wy.us/wqd/npdesprogram/cbm/CBM_watershed_planning/Pumpkin_Ck_downloads/PFW%20Public%20Notice%20Meeting%205.pdf

  • The Wyoming Department of Environmental Quality's Water Quality Division will be holding watershed based surface water discharge permitting stakeholder meetings for the Clear Creek and Fence Creek watersheds. The Clear Creek meeting will be held on November 9, 2005, and the Fence Creek meeting will be held on November 10, 2005. The purpose of the meetings is to continue the stakeholder process for developing coal bed methane watershed-based permits in each of the two watersheds. See http://deq.state.wy.us/wqd/npdesprogram/cbm/CBM_watershed_planning/Clear_Ck_downloads/Public%20Notice_Clear_Fence_Meeting%203.pdf

  • The Department of Environmental Quality's Water Quality Division is proposing to reclassify an Unnamed Tributary of Lodgepole Creek and its tributaries in the Cheyenne River Basin. The result of this reclassification will be to remove an aquatic life designation from the associated drainages by changing the classification from the current 3B to 4B. Written comments are due October 14, 2005. See http://deq.state.wy.us/wqd/surfacestandards/Downloads/Lodgepole/5-0997PN.pdf

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


INTERNATIONAL

KENYA DOWNGRADES NATIONAL PARK



  • Conservationists are calling on Kenya's High Court to challenge the government's declaration that the Amboseli National Park will now be managed as a reserve by the Olkejuado county council. Conservationists argue that the move is in violation of the Wildlife Act, which gives the Kenya Wildlife Service the right to manage national parks, and that the county council does not have the technical capacity to manage the reserve sustainably. See http://www.nationmedia.com/dailynation/nmgcontententry.asp?category_id=1&newsid=59222

VIETNAM PILOTS POVERTY-ENVIRONMENT PROJECT



  • Vietnam will work with the United Nations Development Programme to pilot the "Poverty-Environment Project," which coordinates poverty reduction and environmental protection policies. The project will focus on Vietnam's two poorest provinces and aims to integrate poverty reduction goals into all environmental policies in the next socio-economic five-year plan. See http://www.vneconomy.com.vn/eng/index.php?param=article&catid=08&id=f22b908ce5b411

DEFORESTATION DOES NOT CAUSE FLOODS



  • Deforestation is usually not the cause of large-scale flooding, according to a report by the United Nations Food and Agriculture Organization and the Center for International Forestry Research. The misperception that deforestation triggers floods has miguided governments' agricultural policies, they contend. They also argue that there are many good reasons to sustainably manage forests, such as habitat protection and carbon sequestration, without relying on myths. See http://www.cifor.cgiar.org/docs/_ref/media/release/2005/2005_10_13.htm

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


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