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Weekly Update Volume 35, Issue 32

11/14/2005

LITIGATION

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


CWA, JURISDICTIONAL BAR, CIVIL PENALTIES, EQUITABLE RELIEF:

The Tenth Circuit held that contrary to decisions of the First and Eighth Circuits, the jurisdictional bar of CWA §309(g) only applies to claims for civil penalties, not for equitable relief, and, therefore, affirmed the dismissal of union member's civil penalty claims against a tire and rubber products manufacturer for unlawful wastewater discharges. Oklahoma is already diligently prosecuting an action against the manufacturer under state law, and Oklahoma's state-law provisions--particularly its public participation provisions--are comparable to CWA §309(g). The Oklahoma proceedings, therefore, bar federal jurisdiction over the union's civil penalty claims. CWA §309(g), however, does not apply to equitable relief. A strict reading of the statute indicates that while CWA §505--the Act's citizens suit provision--grants jurisdiction over all types of civil remedies, the limitation in §309 only strips jurisdiction with regard to the court's ability to impose civil penalties. The lower court, therefore, properly left the union members' injunctive and declaratory claims intact. In addition, it was appropriate for the lower court to consider extra-pleading evidence in its resolution of the manufacturer's Rule 12(b) motion to dismiss without first converting the motion into one for summary judgment. Paper, Allied-Industrial, Chemical & Energy Workers International Union v. Continental Carbon Co., No. 03-6243, 35 ELR 20227 (10th Cir. Nov. 8, 2005) (23 pp.).


NEPA, NATIONAL FOREST MANAGEMENT ACT (NFMA):

The Ninth Circuit held that the U.S. Forest Service complied with NEPA and the NFMA in connection with a proposed resource management project in the Helena National Forest. The Forest Service did not err in preparing an EA instead of an EIS. Although a "hard look" should involve the discussion of adverse impacts, such information does not automatically make the project "highly controversial" or "highly uncertain" for the purposes of determining whether substantial questions exist as to the significance of the effect. Moreover, the Forest Service's decision to consider only two alternatives--the proposed plan and a "no action" alternative--did not violate NEPA. So long as "all reasonable alternatives" have been considered and an appropriate explanation is provided as to why an alternative was eliminated, the regulatory requirement is satisfied. The regulation does not impose a numerical floor on alternatives to be considered. Nor did the Forest Service fail to ensure goshawk viability in violation of the NFMA. The record does not demonstrate any flaws in the methodology used by the Forest Service to identify goshawk habitat, and the long-term benefit of preventing stand-replacing fires, which completely destroy goshawk habitat, is preferable over any short-term benefit the goshawks might receive from retaining the dense forest structure in the project area. Native Ecosystems Council v. United States Forest Service, No. 04-35274, 35 ELR 20226 (9th Cir. Nov. 7, 2005) (32 pp.).


ESA, NEPA, TRUMPETER SWAN:

The D.C. Circuit dismissed as moot an animal advocacy group's claims against the FWS for denying their petition to list the trumpeter swan in Idaho, Montana, and Wyoming as endangered or threatened and for authorizing the limited take of the swans during the 2001 and 2002 hunting seasons for tundra swan in Nevada and Utah. Any defects in the FWS' 2000 denial letter were cured by the agency's 90-day finding for the swan it issued in 2003. And the FWS' EA for the 2001 and 2002 hunting seasons has since been superseded by a new EA. Fund for Animals, Inc. v. Hogan, No. 03-5077, 35 ELR 20225 (D.C. Cir. Nov. 4, 2005) (12 pp.).


ENVIRONMENTAL JUSTICE, ILLEGAL DUMP:

The Fifth Circuit upheld a lower court's summary judgment and bench trial rulings in favor of a city that was sued by homeowners for failing to police the operation of an illegal dump near their homes. The homeowners argued that city violated FHA §3604(a) because the dump makes it more difficult for them to sell their houses and lowers the value of their houses. Decreased home values, however, do not make dwellings "unavailable" within the meaning of the Act. The homeowners also argued that the dump has made housing "unavailable" because the land underneath the dump is now unavailable for housing for them or prospective residents. Yet there is no indication that the site was offered for sale for the construction of residential buildings, that housing would have been constructed on the land had the city stringently enforced its dumping laws, or that other land is not available for housing in the area. The lower court, therefore, properly rejected their FHA §3604(a) claim. Nor did the city discriminate against the homeowners in violation of FHA §3604(b) when it failed to prevent dumping at the site. The alleged service here--the enforcement of zoning laws--was not "connected" to the sale or rental of a dwelling as the statute requires. Further, there was no proof of official action or discriminatory intent to support the homeowners' claims under 42 U.S.C. §§1981 and 1983. Cox v. City of Dallas, No. 04-11304, 35 ELR 20228 (5th Cir. Nov. 9, 2005) (29 pp.).


NATIVE AMERICANS, LAND USE:

The Tenth Circuit held that the state of Utah lacks authority to regulate billboard advertising displays erected by a Native American tribe on land held in trust by the federal government. Section 465 of the Indian Reorganization Act--the statute authorizing acquisition of the land--does not violate the non-delegation doctrine. In addition, the Indian lands exemption in the Quiet Title Act rendered the government immune from questions as to title to the land at issue. Moreover, arguments that the final EA was inadequate and not completed in good faith because it was conducted after the land at issue had been acquired in trust and the leases executed and approved are moot. Nor does the Highway Beautification Act expressly authorize the state to regulate outdoor advertising displays on the land at issue. And allowing the state to exercise control over the land at issue would "threaten Congress' overriding objective of encouraging tribal self-government and economic development." Thus, the state cannot exercise its police power to regulate the land at issue. Shivwits Band of Paiute Indians v. Utah, No. 03-4274, 35 ELR 20230 (10th Cir. Nov. 10, 2005) (32 pp.).


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

A California appellate court reversed the state transportation agency's approval of an EIR for a proposed freeway interchange project in connection with a proposed hotel and casino complex on Native American lands and remanded the EIR for additional analysis. By analyzing the project's traffic-based air quality impacts exclusively in the context of a regional transportation conformity approach, the EIR failed to provide adequate information regarding the project's individual air quality impacts. To be sufficient, the EIR must disclose and analyze what the project's specific traffic-based nitrogen oxide and reactive-organic gas emissions (or estimates) are, what their contributions to the regional emissions budgets are, and whether these emissions and contributions are significant. The EIR also failed to consider the alternative of a smaller casino and hotel. County of El Dorado v. Department of Transportation, Nos. C046372, C048141, 35 ELR 20229 (Cal. App. 3d Dist. Nov. 8, 2005) (58 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 its guideline on air quality models to include a new recommended dispersion model. 70 FR 68217 (11/9/05).

  • EPA corrected the boundary of the Phoenix metropolitan one-hour ozone nonattainment area by excluding the Gila River Indian Reservation. 70 FR 68339 (11/10/05).

  • EPA proposed to correct the boundary of the Phoenix metropolitan one-hour ozone nonattainment area by excluding the Gila River Indian Reservation (see above for direct final rule). 70 FR 68390 (11/10/05).

  • SIP Approvals: Arizona (Pinal County area), 70 FR 68337 (11/10/05).

  • SIP Proposals: Arizona (Pinal County area; see above for interim final rule), 70 FR 68388 (11/10/05).

HAZARDOUS AND SOLID WASTE:



  • EPA entered into a proposed administrative settlement under CERCLA to recover past response costs incurred at the A&H Sales Superfund site in Tampa, Florida. 70 FR 68448 (11/10/05).

  • EPA entered into a proposed administrative settlement under CERCLA to recover past response costs incurred at the Forty-Third Street Bay Drum Superfund site in Tampa, Florida. 70 FR 68448 (11/10/05).

  • EPA entered into a proposed administrative settlement under CERCLA to recover past response costs incurred at the Northeast Chemical Superfund site in Wilmington, North Carolina. 70 FR 68448 (11/10/05).

  • EPA approved a modification to Indiana's approved municipal solid waste landfill permit program to allow the state to issue research, development, and demonstration permits. 70 FR 68447 (11/10/05).

MINING:



  • OSM announced that West Virginia proposed to amend its SMCRA regulatory program concerning surety bonds. 70 FR 67654 (11/8/05).

PESTICIDES:



  • EPA announced the availability of the human health risk assessment and related documents for the insecticidal fumigant propylene oxide. 70 FR 68031 (11/9/05).

PUBLIC LAND:



  • The Forest Service revised its travel management regulations for National Forest System lands to clarify policies related to motor vehicle use and to require the designation of roads, trails, and areas that are open to motor vehicle use. 70 FR 68263 (11/9/05).

  • The Forest Service adjusted the land management plan revision process for the Colville, Okanogan, and Wenatchee National Forests in Washington. 70 FR 68394 (11/10/05).

  • BLM announced the availability of a draft national programmatic EIS and environmental report on vegetation treatments involving the use of chemical herbicides and other methods used on the public lands administered by the Bureau in 17 western states. 70 FR 68474 (11/10/05).

  • The Natural Resources Conservation Service announced the availability of a draft EIS for proposed flood control improvements along the section of Coal Creek that traverses Cedar City, Utah. 70 FR 67659 (11/8/05).

RADIOACTIVE WASTE:



  • NRC withdrew a notice of proposed rulemaking that presented possible changes to the regulations governing the release of radionuclides from licensed nuclear facilities into sanitary sewer systems. 70 FR 68350 (11/10/05).

STATE ASSISTANCE:



  • EPA announced its intention to solicit proposals for a 2006 grant program to support innovation by state environmental regulatory agencies. 70 FR 68443 (11/10/05).

WATER:



  • EPA announced the availability of the administrative record file for 43 TMDLs and the calculations for these TMDLs for waters in the state of Arkansas. 70 FR 68448 (11/10/05).

  • EPA announced the availability of a draft NPDES general permit for discharges from small municipal separate storm sewer systems to the waters of Puerto Rico. 70 FR 67703 (11/8/05).

WILDLIFE:



  • FWS proposed to designate approximately 3,638 acres of critical habitat for Braunton's milk-vetch and approximately 4,212 acres of critical habitat for Lyon's pentachaeta in Los Angeles, Orange, and Ventura Counties, California. 70 FR 68981 (11/10/05).

  • FWS declined to designate critical habitat for the San Miguel Island fox, the Santa Rosa Island fox, the Santa Cruz Island fox, and the Santa Catalina Island fox because there is no habitat on the four islands occupied by the foxes that meets the definition of critical habitat under the ESA. 70 FR 67924 (11/9/05).

  • FWS proposed to designate approximately 26,935 square miles of critical habitat for the contiguous United States distinct population segment of the Canada lynx in Idaho, Maine, Minnesota, Montana, and Washington. 70 FR 68293 (11/9/05).

  • FWS proposed to designate approximately 115 acres of private lands and additional public lands in San Diego County, California, as critical habitat for the endangered plant willowy monardella. 70 FR 67956 (11/9/05).

DOJ NOTICES OF SETTLEMENT:



  • United States v. California Olive Ranch, No. 2:05-cv-02205-LKK-PAN (E.D. Cal. Nov. 2, 2005). A settling CWA defendant must pay a civil penalty and must purchase mitigation credits to resolve claims relating to the unpermitted discharge of pollutants to waters of the United States. 70 FR 68087 (11/9/05).

  • United States v. Town of Newburgh, No. 3:05-CV-199-RLY-WGH (S.D. Ind. Oct. 31, 2005). A settling CWA defendant must pay a $56,000 civil penalty and must implement a written capacity, management, operation, and maintenance plan for its sewer collection system to resolve claims relating to NPDES permit violations. 70 FR 68087 (11/9/05).

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


THE CONGRESS

COMMITTEE ACTION:



  • H.R. 2875 (Public Lands Corps Act) was reported by the Committee on Resources. H. Rep. No. 109-273 Pt. 1, 151 Cong. Rec. H9961 (daily ed. Nov. 7, 2005). The bill would amend the Public Lands Corps Act of 1993 to provide for the conduct of projects that protect forests.

BILLS INTRODUCED:



  • S. 1957 (Hagel, R-Neb.) (national historic trials) would authorize the Secretary of Interior to convey to The Missouri River Basin Lewis and Clark Interpretive Trail and Visitor Center Foundation, Inc., certain federal land associated with the Lewis and Clark National Historic Trail in Nebraska to be used as an historical interpretive site along the trail. 151 Cong. Rec. S12353 (daily ed. Nov. 3, 2005). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 1962 (Roberts, R-Kan.) (irrigation districts) would authorize the Secretary of the Interior to revise certain repayment contracts with the Bostwick Irrigation District in Nebraska, the Kansas Bostwick Irrigation District No. 2, the Frenchman-Cambridge Irrigation District, and the Webster Irrigation District No. 4, all a part of the Pick-Sloan Missouri Basin Program. 151 Cong. Rec. S12401 (daily ed. Nov. 4, 2005). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 1965 (Cantwell, D-Wash.) (irrigation districts) would authorize the Secretary of the Interior to convey certain buildings and lands of the Yakima Project, Washington, to the Yakima-Tieton Irrigation District. 151 Cong. Rec. S12447 (daily ed. Nov. 7, 2005). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 1970 (Coburn, R-Okla.) (National Trails System Act) would amend the National Trails System Act to update the feasibility and suitability study originally prepared for the Trail of Tears National Historic Trail and provide for the inclusion of new trail segments, land components, and campgrounds associated with that trail. 151 Cong. Rec. S12447 (daily ed. Nov. 7, 2005). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 1971 (Allard, R-Colo.) (national forests) would designate certain National Forest System lands in the Pike and San Isabel National Forests and certain BLM lands in the Royal Gorge Resource Area in the state of Colorado as wilderness. 151 Cong. Rec. S12447 (daily ed. Nov. 7, 2005). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 1977 (Stevens, R-Ark.) (Marine Mammal Protection Act) would repeal §5 of the Marine Mammal Protection Act of 1972. 151 Cong. Rec. S12526 (daily ed. Nov. 8, 2005). The bill was referred to the Committee on Commerce, Science, and Transportation.

  • S. 1979 (Kohl, D-Wis.) (strategic refinery reserve) would provide for the establishment of a strategic refinery reserve. 151 Cong. Rec. S12606 (daily ed. Nov. 9, 2005). The bill was referred to the Committee on Energy and Natural Resources.

  • H.R. 4226 (Frank, D-Mass.) (dams) would authorize the conduct of small projects for the rehabilitation or removal of dams. 151 Cong. Rec. H9641 (daily ed. Nov. 3, 2005). The bill was referred to the Committee on Transportation and Infrastructure.

  • H.R. 4235 (Hefley, R-Colo.) (national forests) would designate certain National Forest System lands in the Pike and San Isabel National Forests and certain BLM lands in the Royal Gorge Resource Area in the state of Colorado as wilderness. 151 Cong. Rec. H9641 (daily ed. Nov. 3, 2005). The bill was referred to the Committee on Resources.

  • H.R. 4255 (Flake, R-Ariz.) (submerged lands benefits) would convey certain submerged lands to the commonwealth of the Northern Mariana Islands in order to give that territory the same benefits in its submerged lands as American Samoa, Guam, the Virgin Islands have in their submerged lands. 151 Cong. Rec. H10038 (daily ed. Nov. 8, 2005). The bill was referred to the Committee on Resources.

  • H.R. 4270 (Grijalva, D-Ariz.) (Reclamation Wastewater and Groundwater Study and Facilities Act) would amend the Reclamation Wastewater and Groundwater Study and Facilities Act to authorize the Secretary of the Interior to participate in the Avra/Black Wash Reclamation and Riparian Restoration Project. 151 Cong. Rec. H10144 (daily ed. Nov. 9, 2005). The bill was referred to the Committee on Resources.

  • H.R. 4271 (Grijalva, D-Ariz.) (Reclamation Wastewater and Groundwater Study and Facilities Act) would amend the Reclamation Wastewater and Groundwater Study and Facilities Act to authorize the Secretary of the Interior to participate in modifications to the Pima County Wastewater Management Regional Treatment System for Improved Reclaimed Water Production. 151 Cong. Rec. H10144 (daily ed. Nov. 9, 2005). The bill was referred to the Committee on Resources.
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
Illinois
New Jersey
Texas

Delaware
Iowa
New Mexico
Utah

Florida
Maine
Oregon
Virginia

Idaho
Maryland
Tennessee
Washington

CALIFORNIA


Air:



  • The California Air Resources Board is currently in the process of reviewing the state area designations for state ambient air quality standards, based on data collected during 2002, 2003, and 2004. Staff will discuss proposed changes to the area designations at a public workshop on December 6, 2005. See http://www.arb.ca.gov/desig/desig.htm

  • The California Air Resources Board will hold a public workshop to discuss development of amendments to the Dry Cleaning airborne toxic control measure on November 29, 2005. See http://arb.ca.gov/toxics/dryclean/workshops.htm

  • The South Coast Air Quality Management District (AQMD) has scheduled a public consultation meeting on proposed amended rule (PAR) 1151--Motor Vehicle And Mobile Equipment Non-Assembly Line Coating Operations.  The AQMD Governing Board will consider the proposed amendments at a public hearing scheduled for December 2, 2005. The proposed amendments modify Rule 1151 coating categories and volatile organic compound (VOC) limits, add a prohibition of possession, and improve the rule language.  The proposal also includes a limited exemption for tertiary-butyl acetate as a VOC. The California Air Resources Board's suggested control measure for automotive coatings, adopted October 20, 2005, was used as a guideline for the PAR 1151 revision. Comments are due November 21, 2005. See http://www.aqmd.gov/pub_edu/notice_1151_Nov_16_05.html

Toxic Substances:




  • The Office of Environmental Health Hazard Assessment (OEHHA) is making available for review and comment the final draft report, "Development of Health Criteria for School Site Risk Assessment Pursuant to Health and Safety Code (HSC) §901(g): Proposed Child-Specific Reference Dose (chRD) for School Site Risk Assessment--cadmium, chlordane, heptachlor/heptachlor epoxide, methoxychlor, and nickel." HSC §901(g) requires the OEHHA, in consultation with the appropriate entities within the California EPA, to identify those chemical contaminants commonly found at school sites and determined by the OEHHA to be of greatest concern based on child-specific physiological sensitivities. HSC §901(g) also requires the OEHHA to annually evaluate and publish, as appropriate, numerical health guidance values or chRDs for those chemical contaminants until the contaminants identified have been exhausted. ChRDs for the aforementioned chemicals are being considered at this time. The announced availability of this final draft report was October 14, 2005. Because it was not available until November 2, 2005, the previously announced ending date for the comment period of November 14, 2005 is changed. OEHHA requests that comments on the final draft report be delivered to the OEHHA by 5:00 p.m. on December 5, 2005. See http://oehha.org/public_info/public/kids/schools1105.html


Water:



  • The public workshop on Salinity Issues in the Central Valley, originally scheduled for November 16, 2005, in Sacramento, has been postponed to at least January 2006. The postponement is due to insufficient time to address all urgent matters before the State Water Board at the November 16 meeting. When the workshop is rescheduled, another announcement will be made, and the time period for submitting written comments will be reopened. See http://www.waterboards.ca.gov/docs/salinity_postponed.pdf

  • 2005-06 Consolidated Grants Program. The State Water Resources Control Board, in coordination with the nine Regional Water Quality Control Boards, U.S. EPA, CALFED, and Resource Agency agencies, are working to implement the 2005-2006 Consolidated Grants Program. The 2005-2006 Consolidated Grants Program integrates and coordinates related grant programs for watershed protection, water management, agricultural water quality, drinking water, urban stormwater, and nonpoint source pollution control. Approximately $143 million will be made available from six interrelated grant programs administered by the State Water Board's Division of Financial Assistance. Consolidation of these grants reduces application efforts and better integrates program goals with its partner agencies, which include the U.S. EPA, CALFED, Coastal Commission, Coastal Conservancy, Department of Water Resources, Department of Fish and Game, Resources Agency, and other related agencies. Draft guidelines are available for public comment. The guidelines are currently under management and legal review. Written comments are due December 5, 2005. Public workshops will be held on November 30 and December 1, 2005. See http://www.waterboards.ca.gov/funding/draft_guidelines.html

DELAWARE


Water:



  • Consistency Determinations have been submitted to the federally approved Delaware Coastal Management Program for the U.S. Coast Guard Oil Spill Removal Equipment Requirements Rule Draft EIS. The Coast Guard has proposed the "Vessel and Facility Response Plans for Oil: 2003 Removal Equipment Requirements and Alternative Technology Revisions" rule. This rule will change requirements for oil-spill removal equipment under the vessel response plans and marine transportation-related facility response plans. These changes will increase the minimum available spill removal equipment required for tank vessels and marine-transportation related facilities and add requirements for new response technologies. It will also clarify methods and procedures for responding to oil spills in coastal waters. Comments are due November 29, 2005. See http://www.dnrec.state.de.us/DNREC2000/Admin/Press/PublicNotices/PNDetail.asp?NOVID=1686

FLORIDA


Air:



Land Use:



Water:



  • The Department of Environmental Protection issued a notice of proposed rulemaking to amend chapter 62-302, F.A.C., to designate Rose Sink, an addition to Ichetucknee Springs State Park, as outstanding Florida waters. An adoption hearing will be held before the Environmental Regulation Commission on December 6, 2005, at Ichetucknee Springs State Park in Fort White, Florida. See http://tlhora6.dep.state.fl.us/onw/publications/5-NPRRoseSink-11-10-05-INT.pdf

  • The Department of Environmental Protection issued a notice of proposed rulemaking to amend chapter 62-302, F.A.C., to amend the Site Specific Alternative Criteria rule. An adoption hearing will be held before the Environmental Regulation Commission on December 6, 2005, at Ichetucknee Springs State Park in Fort White, Florida. See http://tlhora6.dep.state.fl.us/onw/publications/6-NPRSSAC-11-10-05-INT.pdf

  • A meeting of the signatories to the "Joint Statement of Commitment for the Development and Implementation of a Statewide Water Conservation Program for Public Water Supply" will be held on November 16, 2005, to select a university to operate a statewide water conservation clearinghouse. See http://tlhora6.dep.state.fl.us/onw/publications/10-ConserveFlorida-11-4-05-INT.pdf

  • The Department of Environmental Protection announced the initiation of rule development to amend Rule 62-302.800. The amendments will allow the use of alternative scientific methodologies to assess aquatic toxicity for Type II Site Specific Alternative Criteria (SSAC), and revise the list of exempt water quality parameters for Type II SSAC. See http://tlhora6.dep.state.fl.us/onw/publications/11-SSACamend-11-4-05-INT.pdf

IDAHO


Hazardous & Solid Wastes:




  • The Idaho Department of Environmental Quality is seeking public input on potential projects that Burlington Northern Santa Fe Railroad (BNSF) may undertake to help protect the Rathdrum Prairie Aquifer. As a result of last December's petroleum release investigation at BNSF's Hauser Mainline Fueling Facility, BNSF must perform a supplemental environmental project valued at no less than $100,000 in lieu of paying monetary penalties. Comments are due November 16, 2005. See http://www.deq.state.id.us/Applications/NewsApp/shownews.cfm?event_id=1339


ILLINOIS


Hazardous & Solid Wastes:



  • The Illinois Pollution Control Board announced proposed amendments to the Tiered Approach to Corrective Action Objectives (35 Ill. Adm. Code 742). The proposed amendments are designed to improve procedures and to reflect updated contaminant standards, test methods, and toxicity criteria. Public hearings will be held January 31, 2006, and March 1, 2006. See http://www.ipcb.state.il.us/documents/dsweb/Get/Document-49853/

IOWA


Air:



  • The Environmental Protection Commission announced its intent to amend Chapter 20, "Scope of Title--Definitions--Forms--Rules of Practice," and Chapter 22, "Controlling Pollution," of the Iowa Administrative Code. The purpose of this rulemaking is to list additional equipment and processes that, due to their low emissions of regulated air pollutants, are not required to obtain construction permits. A public hearing will be held December 12, 2005. Comments are due December 14, 2005. See http://www.legis.state.ia.us/Rules/Current/Bulletin/IAB051109.pdf (p. 679)

Hazardous & Solid Wastes:



  • The Environmental Protection Commission announced it intent to amend Chapter 101, "Solid Waste Comprehensive Planning Requirements," of the Iowa Administrative Code. The proposed amendments pertain to solid waste comprehensive planning and the disposal of solid waste by planning areas in sanitary landfills outside the planning area. The amendments are needed to implement 2005 Iowa Acts, House File 399. The amendments will add some flexibility for planning areas in addressing the comprehensive planning requirements. Under these amendments, a planning area that closes all of its municipal solid waste sanitary landfills and uses a transfer station to send all waste to a RCRA Subtitle D-compliant sanitary landfill located in another planning area is allowed to retain its autonomy for solid waste comprehensive planning purposes. Comments are due December 2, 2005. A public hearing will be held on the same date. See http://www.legis.state.ia.us/Rules/Current/Bulletin/IAB051109.pdf (p. 702)

  • The Environmental Protection Commission announced it intent to adopt new Chapter 123, "Regional Collection Centers and Mobile Unit Collection and Consolidation Centers," to rescind Chapter 211, "Grants for Regional Collection Centers of Conditionally Exempt Small Quantity Generators and Household Hazardous Wastes," and to adopt new Chapter 211, "Financial Assistance for the Collection of Household Hazardous Materials and Hazardous Waste from Conditionally Exempt Small Quantity Generators," of the Iowa Administrative Code. Comments are due December 5, 2005. A public hearing will be held on the same date. See http://www.legis.state.ia.us/Rules/Current/Bulletin/IAB051109.pdf (p. 703)

Water:



  • The Environmental Protection Commission proposed to amend Chapter 64, "Wastewater Construction and Operation Permits," of the Iowa Administrative Code. This amendment will add a fee structure for wastewater permits. Comments are due December 2, 2005. Public hearings will be held November 29, November 30, and December 1, 2005. See http://www.legis.state.ia.us/Rules/Current/Bulletin/IAB051109.pdf (p. 679)

  • The Environmental Protection Commission announced its intent to amend Chapter 65, "Animal Feeding Operations," of the Iowa Administrative Code. The proposed amendment provides technical corrections and additions to the list of major water sources--rivers and streams listed in Table 1 of Chapter 65. The corrections and additions provide a more consistent and accurate representation of these water sources for the state. Comments are due December 1, 2005. A public hearing will be held on the same date. See http://www.legis.state.ia.us/Rules/Current/Bulletin/IAB051109.pdf (p. 681)

  • The Environmental Protection Commission proposed to amend Chapter 134, "Certification of Groundwater Professionals," and Chapter 135, "Technical Standards and Corrective Action Requirements for Owners and Operators of Underground Storage Tanks," of the Iowa Administrative Code. The amendments to Chapter 134 establish a compliance inspector certification program to be administered by the Department of Natural Resources. The amendments set forth minimum qualifications for education and experience, training requirements, and provisions for certification suspension and revocation. Written comments are due December 2, 2005. Public hearings will be held November 20, November 30, and December 2, 2005. See http://www.legis.state.ia.us/Rules/Current/Bulletin/IAB051109.pdf (p. 710)

LOUISIANA


Hazardous & Solid Wastes:



KENTUCKY


Air:



MAINE


Air:



  • The Department of Environmental Protection amended the Chapter 151 Architectural and Industrial Maintenance (AIM) Coatings rule as required by Public Law 2005, Ch. 181. The adopted amendments establish new volatile organic compound (VOC) content emission limits for interior wood clear and semitransparent stains and varnishes. In addition to these new VOC content limits, the Department also eliminated the three-year sell-through restriction of Section 3(C). Effective November 1, 2005. See http://www.maine.gov/sos/cec/rules/notices/2005/110205.htm

Land Use:



  • The Maine Land Use Regulation Commission amended its rules for floodplain development such that limited development is allowed within floodplains according to the provisions of the state's Model Floodplain Management Ordinance. The Commission's previous rules allowed for no floodplain development. Specifically, these proposed changes clarify that reconstruction of pre-existing docks are allowed by permit but that new or expanded docks will be allowed only by special exception, with provisions established for determining special exceptions. Size limits are also established for docks. Temporary docks would continue to be allowed without a permit. Effective November 7, 2005. See http://www.maine.gov/sos/cec/rules/notices/2005/110905.htm

Wildlife:



  • The Department of Marine Resources proposed to amend the definition of "rigged to fish for lobster." The term would be defined to identify the equipment necessary to determine if a vessel is rigged to fish for lobster. The minimum equipment required would be a pot hauler. The new definition would assist enforcement personnel determining whether a vessel is being used legally to transport lobsters not harvested by a fisherman licensed under Section 6421. Lobsters transported by persons who hold only a "Wholesale seafood license with lobster" permit may transport and possess lobsters in accordance with recent revisions in the statute 12 MRSA §6851, sub-§2-A, provided the vessel used to transport is not rigged to fish lobster. Written comments are due December 10, 2005. A public hearing will be held November 30, 2005. See http://www.maine.gov/sos/cec/rules/notices/2005/110905.htm

  • The Department of Marine Resources proposed amendments to Ch. 25.08(B)(5), Lobster License holder’s presence aboard, to correct the discrepancy between the regulations and enabling statute regarding medical waivers for the license holder's presence aboard their vessel. In accordance with 12 MRSA §6431-E(3)(A), the Commissioner may authorize a person to fish for or take lobsters from a vessel when an owner or family member is not on board, if that person holds a Class I, II, or III lobster and crab fishing license and the owner of the vessel has demonstrated that an illness or disability temporarily prevents that owner from fishing for or taking lobsters from the vessel. The regulations, however, do not indicate that the inability to fish for or take lobsters from the vessel due to the illness or disability must be temporary. Therefore, the regulations are proposed to be rewritten to more closely mirror the enabling statute. Written comments are due December 10, 2005. A public hearing will be held November 30, 2005. See http://www.maine.gov/sos/cec/rules/notices/2005/110905.htm

  • The Department of Marine Resources proposed amendments to Ch. 25.96(3), Lobster Apprentice Program, to further clarify the lobster license eligibility date consistent with and pursuant to statute 12 MRSA §6448(5&6), which requires that the eligibility request at completion of the apprentice program requirements coincide with the time and date of submission to the Department of Marine Resources. An amendment is also proposed to require that an apprentice submit completed log sheets to a Marine Patrol Officer for signing and then forward the completed and signed log sheets to the Department for processing within 30 days of the last entry logged on the sheets. Two grammatical corrections are also proposed. Written comments are due December 10, 2005. A public hearing will be held November 30, 2005. See http://www.maine.gov/sos/cec/rules/notices/2005/110905.htm

MARYLAND


Toxic Substances:



NEW JERSEY


Water:



  • The New Jersey Department of Environmental Protection proposed to readopt, with amendments, the Coastal Permit Program Rules (N.J.A.C. 7:7). This chapter establishes the procedures by which the Department of Environmental Protection reviews permit applications and appeals from permit decisions under the Coastal Area Facility Review Act, the Wetlands Act of 1970, and the Waterfront Development Law. Most of the proposed amendments are minor in nature, including correction of typographical errors, minor additions to requirement lists, and various language clarifications. Substantive changes include the addition of information on jurisdictional determinations, various amendments to existing general permits, and the proposal of three new general permits. Public hearings will be held December 14 and 15, 2005. Comments are due January 5, 2006. See http://www.nj.gov/dep/rules/notices/110705b.htm

  • The New Jersey Department of Environmental Protection proposed to readopt, with amendments, the Sludge Quality Assurance Regulations (SQAR- N.J.A.C. 7:14C). These rules establish the conditions for sludge quality assurance reporting of all domestic and industrial treatment works that generate sludge in the state of New Jersey or that transport sludge into the state for use or disposal. The rules prescribe the method and frequency for reporting on the quantity, quality, and management method of sludge generated by such treatment works. The rules do not establish sludge limits. They only serve as the mechanism to gather data on sludge. The Department proposed to readopt the rules with amendments to reduce the frequency of reporting of certain sludge generation information for domestic and industrial treatment works, to increase the reporting frequency for certain industrial treatment works, to add parameters for which certain domestic or industrial treatment works must conduct monitoring, and to clarify that all potable water treatment plants in New Jersey, whether or not they have a New Jersey Pollutant Discharge Elimination System permit to discharge, fall within the scope of the rules. A public hearing will be held December 19, 2005. Written comments are due January 6, 2006. See http://www.nj.gov/dep/rules/notices/110705a.htm

NEW MEXICO


Water:



  • The New Mexico Environment Department's Surface Water Quality Bureau is inviting the public to comment on draft TMDL documents for the Red River watershed, defined as the Red River (Rio Grande River to the headwaters) and its tributaries. Draft TMDLs include: Acute Aluminum--Red River (Rio Grande to Placer Creek), Bitter Creek, and Placer Creek; Sedimentation/Siltation--Bitter Creek; and Turbidity--Pioneer Creek. A public meeting will be held November 20, 2005. Comments are due December 16, 2005. See http://www.nmenv.state.nm.us/swqb/PublicNotice/RedRiver/RedRiverTMDL-PublicNotice+Flyer.pdf

OREGON


Hazardous & Solid Wastes:



  • The Oregon Department of Environmental Quality proposed to revise the state's cleanup rules to delete out-of-date numeric soil cleanup levels and correct a drafting error to make the rule consistent with the existing state cleanup statute and guidance documents. Public hearings will be held November 15, 2005. Written comments are due November 21, 2005. See http://www.deq.state.or.us/news/publicnotices/uploaded/051018_5523_304-122.pdf

Water:



TENNESSEE


Hazardous & Solid Wastes:



  • A public rulemaking hearing will be held on December 20, 2005, to consider the adoption and promulgation of rules and amendments to rules (revision "z") pursuant to the Tenn. Code Ann. §§68-212-106, -107, -108, -109, -110, and -114; the Tennessee Solid Waste Disposal Act, Tenn. Code Ann. §§68-211-101 et seq; the Tennessee Environmental Protection Fund Act, Tenn. Code Ann. §§68-203-101 et seq; the Used Oil Collection Act of 1993, Tenn. Code Ann. §§68-211-1001 et seq; and the Uniform Administrative Procedures Act, Tenn. Code Ann. §§4-5-101 et seq. Written comments are due January 5, 2006. See http://www.state.tn.us/environment/swm/swmppo/zrule.php

TEXAS


Air:



  • The Texas Commission on Environmental Quality will conduct a public hearing to receive testimony regarding proposed revisions to 30 TAC Chapter 111, Control of Air Pollution from Visible Emissions and Particulate Matter, and the SIP. This rulemaking would eliminate air standards that cannot be scientifically defended. In addition, this rulemaking will make the commission’s approach to particulate matter regulation consistent with federal and other state approaches. A public hearing will be held December 15, 2005. Comments are due January 13, 2006. See http://www.tceq.state.tx.us/assets/public/legal/rules/hearings/05013111_phn.pdf

  • The Texas Commission on Environmental Quality will conduct a public hearing to receive testimony regarding proposed rulemaking to implement provisions of House Bill (HB) 2201. HB 2201 identifies the U.S. DOE's FutureGen research and creates a new set of permitting actions for FutureGen projects, specifically that permits for FutureGen projects are not subject to the contested case hearing process. Amendments to Chapter 91 would address existing statutory requirements for the permitting and public participation process still applicable to FutureGen projects but eliminate the requirement of a contested case hearing. Amendments to Chapter 116, new Subchapter L, would eliminate the requirement of a contested case hearing and address existing statutory requirements for the permitting and public participation process not affected by HB 2201 but still applicable to FutureGen projects. The hearing will be held on December 20, 2005. Comments are due December 27, 2005. See http://www.tceq.state.tx.us/assets/public/legal/rules/hearings/05053091_phn.pdf

  • The Texas Commission on Environmental Quality will conduct a public hearing to receive testimony regarding amendments to 30 TAC Chapter 114, Control of Air Pollution from Motor Vehicles. This rulemaking is needed to comply with HB 1540, Locally Enforced Idling Rule Amendment, effective September 1, 2005. Additional provisions would add an exemption for employee health and safety and clarify a transit exemption, in response to a request from the Austin EAC task force. The hearing will be held January 10, 2006. See http://www.tceq.state.tx.us/assets/public/legal/rules/hearings/05064114_phn.pdf

  • The Texas Commission on Environmental Quality adopted amendments to the Motor Vehicle Emissions Inspection/Maintenance Program in El Paso. The revisions require two-speed idle and on-board diagnostic testing in El Paso beginning January 1, 2007, and update vehicle emissions testing equipment specifications. Approved October 26, 2005. Effective November 17, 2005. See http://www.tceq.state.tx.us/assets/public/legal/rules/rule_lib/adoptions/05026114_adoCLEAN.pdf

General:



  • The Texas Commission on Environmental Quality adopted rulemaking that will place the entire alternative newspaper notice requirement program within the General Notice Provisions (§39.405(h)) of Chapter 39. The rulemaking also deletes the air-specific requirements of §39.603. Prior to this rule adoption, alternative language notice was only required for air quality authorizations. Approved November 9, 2005. Effective November 30, 2005. See http://www.tceq.state.tx.us/assets/public/legal/rules/rule_lib/adoptions/05014039_adoCLEAN.pdf

UTAH


Water:



  • The Water Quality Division announced changes to proposed rule R317-4 Onsite Wastewater Systems. The proposed changes are in response to the comments received during public comment period and hearing on the amendments to the Onsite Wastewater Systems rule. The amendments will allow installation of pretreatment systems in soils unsuitable for installation of conventional onsite systems. The proposed changes simplify, clarify, and amplify the requirements of the proposed amendments to §§R317-1, R317-2, and R317-11 of the Onsite Wastewater Systems rule for pretreatment systems and corresponding management requirements. Written comments are due December 1, 2005. See http://www.rules.utah.gov/publicat/bulletin/2005/20051101/27944.htm

Wildlife:



  • The Division of Wildlife Resources announced a five-year notice of review and statement of continuation for R657-24, Compensation for Mountain Lion and Bear Damage. Under §23-24-1, the Wildlife Board is authorized to provide rules to administer and enforce the procedures to obtain compensation for livestock damage done by mountain lions or bears. See http://www.rules.utah.gov/publicat/bulletin/2005/20051101/28277.htm

VIRGINIA


Air:



  • The Air Pollution Control Board will hold a public meeting on January 5, 2006, to receive comments on the notice of intended regulatory action (NOIRA) to amend the regulations for the control and abatement of air pollution concerning minor new source review. The NOIRA appears in the Virginia Register of Regulations on November 28, 2005. The comment period begins on November 28, 2005, and ends on January 5, 2006. See http://www.townhall.state.va.us/meeting/ViewMeeting.cfm?Meeting_ID=6600

  • The Air Pollution Control Board will hold a public meeting on January 12, 2006, to receive comments on Revision D04 of the regulations for the control and abatement of air pollution concerning the enlargement of volatile organic compounds and nitrogen oxide emissions control areas. The comment period on the proposal begins on November 28, 2005, and ends on January 30, 2006. See http://www.townhall.state.va.us/meeting/ViewMeeting.cfm?Meeting_ID=6602

  • The Air Pollution Control Board will hold a public meeting on January 12, 2006, to receive comments on proposed amendments to the regulations for the control and abatement of air pollution concerning open burning. See http://www.townhall.state.va.us/meeting/ViewMeeting.cfm?Meeting_ID=6601

Hazardous & Solid Wastes:



  • The Waste Management Board will hold a public hearing on January 9, 2006, to receive comments on proposed amendments to the regulations governing coal combustion byproducts. The proposed amendments appear in the November 28, 2005, Virginia Register of Regulations and the comment period runs from November 28, 2005, through January 27, 2006. See http://www.townhall.state.va.us/meeting/ViewMeeting.cfm?Meeting_ID=6599

Water:



  • The second and final meeting on the fecal coliform bacteria TMDL for 16 shellfish propagation waters located in Gloucester and Mathews Counties will be held on January 5, 2006. The public notice appears in the November 28, 2005, Virginia Register of Regulations. The public comment period begins on January 6, 2006, and ends on February 3, 2006. See http://www.townhall.state.va.us/meeting/ViewMeeting.cfm?Meeting_ID=6607

WASHINGTON


Water:



  • The Department of Ecology proposed amendments to Ch. 173-503 WAC, Instream Resources Protection Program, Lower and Upper Skagit Water Resources Inventory Area, WRIAs 3 and 4. These proposed amendments would reserve a limited amount of groundwater for future domestic, municipal, commercial/industrial, agricultural irrigation, and stock watering supply. The amendments also establish closures for certain tributary basins when the reservations are fully allocated and set forth future water right permitting conditions.  The stream flows set in the current rule would not be altered, nor would the current maximum water allocation limits for the Skagit River basin. Public hearings will be held January 11 and 12, 2006. See http://www.ecy.wa.gov/laws-rules/wac173503/p0515.pdf

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


INTERNATIONAL

SCOTTISH WIND POWER INDUSTRY DEMANDS MORE GOVERNMENT SUPPORT FOR RENEWABLE ENERGY




  • A major Scottish wind farm company has accused the national government of failing to produce an effective renewable energy policy and foster public support for domestic renewable energy production. An executive spokesperson defended the nation's energy policy, which outlines a process for determining sites for wind farms, and stated that the policy is also based on other sources of renewable power. Scotland has 25% of Europe's wind resource, 25% of its tidal power, and 10% of its wave energy. See http://news.scotsman.com/index.cfm?id=2223752005


UNITED NATIONS (U.N.) AND CHINA PREPARE FOR "GREEN OLYMPICS"



  • The U.N. Environment Program (UNEP) and the Beijing Organizing Committee for the 2008 Olympic Games will sign an agreement on November 18 to promote environmental initiatives. "Green Olympics" is one of the concepts Beijing is using to promote the games, and the agreement provides support for efforts to control air, water, and noise pollution, to landscape and dispose of solid wastes in a sustainable manner, and to run environmental public awareness campaigns. See http://english.people.com.cn/200511/10/eng20051110_220292.html

IRAQ ENVIRONMENT AT RISK, U.N. SAYS




  • The U.N. issued a warning about the threat to the environment and public health posed by demolished factories, military scrap yards, and battle sites in Iraq. UNEP has examined five sites in its efforts to train Iraqi specialists in detoxification and says that problems with chemical spills, unsecured hazardous material, and widespread pollution from depleted uranium are problems across the country. The cleanup could cost up to $40 million. See http://news.bbc.co.uk/1/hi/world/middle_east/4425562.stm


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


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