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Weekly Update Volume 35, Issue 33

11/21/2005

LITIGATION

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


CWA, NEPA, PRELIMINARY INJUNCTION:

A district court preliminarily enjoined the U.S. Army Corps of Engineers from issuing any new project authorizations under "SAJ-86," a regional general permit that contemplates development of 48,150 acres in Northwest Florida, as well as any construction that is occurring or is about to occur as a result of that permit. Environmental groups challenging the permit demonstrated a substantial likelihood that the general permit fails to comply with the CWA and that the Corps' decision to issue the permit was arbitrary and capricious under the APA. The permit fails to comply with the CWA requirements that a general permit be issued only for activities that are similar in nature and that it only regulate activities that will cause minimal adverse environmental effects both separately and cumulatively. And while the groups submitted affidavits from at least two experts who agree that the environmental impacts of projects under the permitting scheme will be devastating, the Corps failed to articulate any harm it would suffer were an injunction issued. Sierra Club v. United States Army Corps of Engineers, Nos. 3:05CV362J32TEM, 3:05CV459J32TEM, 35 ELR 20232 (M.D. Fla. Nov. 10, 2005) (Corrigan, J.) (12 pp.).


RCRA, CERCLA, FEDERAL TORT CLAIMS ACT (FTCA):

A district court granted the government's motion to dismiss a property owner's RCRA and state law tort claims against the U.S. Army Corps of Engineers for failing to properly and timely implement its remedy and to satisfactorily abate the contamination at a former air force base landfill. The cleanup at issue falls under CERCLA §104, not under §120, which pertains to remedial actions rather than removal actions on federal facilities. Thus, the jurisdictional bar of CERCLA §113(h) applies. And here, CERCLA §113(h) deprives the Court of subject matter jurisdiction over the property owner's RCRA claim because it constitutes a "challenge" to an ongoing cleanup. The property owner effectively seeks injunctive relief to "improve" the ongoing clean up. As such, its RCRA claim is plainly related to the goals of the clean up--and would likely require some interference with ongoing cleanup plans. The court also lacks jurisdiction over the owner's state law tort claims because they fall within the discretionary function exception to the FTCA. The challenged conduct was discretionary because the regulations at issue fail to prescribe a specific course of action that the Corps failed to follow. Moreover, the actions taken are susceptible to policy considerations--the type of decisions that Congress intended to protect from judicial second-guessing. Shea Homes Ltd. Partnership v. United States, No. C04-0092 TEH, 35 ELR 20231 (N.D. Cal. Nov. 10, 2005) (Henderson, J.) (8 pp.).


NEPA, ESA, LOGGING:

A district court dismissed an environmental group's ESA and NEPA claims against FWS and NOAA Fisheries concerning logging activity on private lands in Humboldt County, California, and denied their motion to preliminarily enjoin a lumber company's logging activities at the site. The group argued that the agencies must issue a supplemental EIS for the project, but the group's complaint does not allege any proposed or ongoing "major federal activity" that would trigger such a duty. The major federal actions that required the EIS in the first place were the adoption of the habitat conservation plan (HCP) and issuance of the incidental take permit (ITP), and those actions are complete. The agencies' "adaptive management" under the HCP and ITP does not constitute a major federal action, and although the 2005 biological opinion acknowledged an increased amount of marbled murrelet habitat in the area, this change does not alter the agencies' responsibilities or create a new standard dictating when the agencies must act. The groups also argued that the agencies should revoke the ITP issued to a lumber company on the ground that it violated the HCP. But a "finding" of noncompliance under ESA §10 is within the agencies' discretion and not reviewable by the court. Last, the group failed to demonstrate a likelihood of success on the merits of their claim that the "no jeopardy" finding for the marbled murrelet was arbitrary and capricious. The group's motion to preliminarily enjoin logging activities at the site was therefore denied. Environmental Information Protection Center v. United States Fish and Wildlife Service, No. C 04-04647 CRB, 35 ELR 20233 (N.D. Cal. Nov. 10, 2005) (Breyer, J.) (15 pp.).


EQUAL ACCESS TO JUSTICE ACT, CWA:

A district court denied individuals' motions for attorneys fees and costs they spent defending a CWA action the United States filed against them. They argued that they were entitled to reimbursement because the United States ultimately dismissed its case. The individuals are correct that the lack of a "judicially sanctioned" resolution in their favor does not preclude them from being the prevailing party. Nevertheless, the government's position in the litigation was substantially justified. United States v. Milner, No. C01-0809RBL, 35 ELR 20234 (W.D. Wash. Nov. 15, 2005) (Leighton, J.) (3 pp.).


SOLID WASTE, COLLATERAL ESTOPPEL:

A district court dismissed a company's claims against the prior owners of its property for failing to remove drums, titanium grindings, and other metals from the site pursuant to a purchase agreement. The company also argued that the prior owners violated a state court order, issued in conjunction with a settlement agreement, requiring the removal of the materials at issue. That being so, however, the case is barred by collateral estoppel. The matters at issue here have already clearly been litigated or clearly arise out of the same facts already litigated in state court. Further, the state court retained continuing jurisdiction and left open the possibility for the parties to return to that court if the settlement that it memorialized and the judgment that it entered were not fully executed. Leatherworks Partnership v. Berk Realty, Inc., No. 4:04 CV 0784, 35 ELR 20235 (N.D. Ohio Nov. 15, 2005) (Dowd, J.) (4 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 declined to amend the NESHAP for new and existing sources at brick and structural clay products manufacturing facilities. 70 FR 69655 (11/17/05).

  • EPA amended its regulations governing the exhaust emissions from new commercial aircraft gas turbine engines. 70 FR 69664 (11/17/05).

  • EPA announced revisions to the list of product categories scheduled for regulation under CAA §183(e). 70 FR 69759 (11/17/05).

  • EPA announced the availability of a draft review document for the ozone NAAQS. 70 FR 69761 (11/17/05).

  • EPA amended the requirements on variability in the composition of additives certified under the Agency's Gasoline Deposit Control Program. 70 FR 69239 (11/14/05).

  • EPA proposed to amend the NESHAP for organic liquids distribution. 70 FR 69209 (11/14/05).

  • SIP Approvals: California (particulate matter; Los Angeles and Coachella Valley areas), 70 FR 69081 (11/14/05). Indiana (eight-hour ozone; Delaware County), 70 FR 69443 (11/16/05); (eight-hour ozone; Greene County and Jackson County areas), 70 FR 69085 (11/14/05). Maryland (one-hour ozone; metropolitan Washington, D.C., area), 70 FR 69440 (11/16/05).

  • SIP Proposals: Indiana (eight-hour ozone; Delaware County; see above for direct final rule). 70 FR 69488 (11/16/05); (eight-hour ozone; Greene County and Jackson County areas; see above for direct final rule), 70 FR 69130 (11/14/05).

HAZARDOUS AND SOLID WASTE:



  • EPA extended the interim authorization of the Massachusetts cathode ray tube regulatory program to January 1, 2011. 70 FR 69900 (11/18/05).

  • EPA proposed to extend the interim authorization of the Massachusetts cathode ray tube regulatory program to January 1, 2011 (see above for direct interim rule). 70 FR 69922 (11/18/05).

PESTICIDES:



  • EPA announced the availability of the risk assessment for the pesticide dicloran. 70 FR 69551 (11/16/05).

PUBLIC LAND:



  • The National Park Service announced the availability of a record of decision on the abbreviated final EIS for the Boston Harbor Islands general management plan. 70 FR 69163 (11/14/05).

WATER:



  • EPA announced that Michigan is revising its approved Public Water System Supervision Program. 70 FR 69151 (11/14/05).

WILDLIFE:



  • FWS proposed to establish a distinct population segment (DPS) of the grizzly bear for the greater Yellowstone Ecosystem area and proposed to remove the Yellowstone DPS from the list of threatened and endangered wildlife. 70 FR 69853 (11/17/05).

  • FWS added the white abalone and the U.S. distinct vertebrate population segment of the smalltooth sawfish to the list of endangered and threatened wildlife. 70 FR 69464 (11/16/05).

  • FWS announced a 90-day finding denying a petition to list the Uinta mountainsnail as endangered under the ESA. 70 FR 69303 (11/15/05).

  • FWS announced the availability of a final EIS on resident Canada goose management. 70 FR 69985 (11/18/05).

  • NOAA Fisheries announced the withdrawal of a request to list the eastern oyster as threatened or endangered. 70 FR 69143 (11/14/05).

  • NOAA Fisheries issued a final determination to list the southern resident killer whale distinct population segment as endangered under the ESA. 70 FR 69903 (11/18/05).

DOJ NOTICES OF SETTLEMENT:



  • In re Equinox Oil Co., Inc., Nos. 99-12688, -13071 (Bankr. Ct. E.D. La. Nov. 4, 2005). A settling Oil Pollution Act defendant must pay $1.2 million in natural resource damages to resolve claims relating to the discharge of oil into Lake Grande Ecaille in Plaquemines Parish, Louisiana, during an oil well blowout. 70 FR 69586 (11/16/05).

  • United States v. Lone Moose Meadows, LLC, No. CV 05-76-BU-SEH (D. Mont. Nov. 3, 2005). A settling CWA defendant must pay a civil penalty, restore impacted areas, and perform mitigation to resolve claims relating to the unpermitted discharge of pollutants into waters of the United States. 70 FR 69586 (11/16/05).

  • United States v. City of Nashua, New Hampshire, No. 1:05-cv-00376-PB (D.N.H. Nov. 2, 2005). A settling CWA defendant must implement an extensive combined sewer outfall abatement plan to resolve claims relating to past violations of the CWA. 70 FR 69586 (11/16/05).

  • United States v. Tecumseh Products Co., No. 03-C-401 (E.D. Wis. Nov. 4, 2005). Under an amended consent decree, a third party will be jointly and severally liable for completing the defendant's cleanup of the Upper River section of the Sheboygan River and Harbor Superfund site in Sheboygan County, Wisconsin, pursuant to the original consent decree. 70 FR 69587 (11/16/05).

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


THE CONGRESS

CHAMBER ACTION:



  • S. 166 (Deschutes River Conservancy Reauthorization Act), which would amend the Oregon Resource Conservation Act of 1996 to reauthorize the participation of the Bureau of Reclamation in the Deschutes River Conservancy, was passed by the Senate. 151 Cong. Rec. S13060 (daily ed. Nov. 16, 2005).

  • S. 206 (Ice Floods National Geologic Trail), which would designate the Ice Floods National Geologic Trail, was passed by the Senate. 151 Cong. Rec. S13042 (daily ed. Nov. 16, 2005).

  • S. 213 (Rio Arriba County Land Conveyance Act), which would direct the Secretary of the Interior to convey certain federal land to Rio Arriba County, New Mexico, was passed by the Senate. 151 Cong. Rec. S13060 (daily ed. Nov. 16, 2005).

  • S. 251 (Little Butte/Bear Creek Subbasins Water Feasibility Act), which would authorize the Secretary of the Interior, acting through the Bureau of Reclamation, to conduct a water resource feasibility study for the Little Butte/Bear Creek Subbasins in Oregon, was passed by the Senate. 151 Cong. Rec. S13060 (daily ed. Nov. 16, 2005).

  • S. 485 (National Geologic Mapping Reauthorization Act), which would reauthorize and amend the National Geologic Mapping Act of 1992, was passed by the Senate. 151 Cong. Rec. S13057 (daily ed. Nov. 16, 2005).

  • S. 584 (Rocky Mountain National Park), which would require the Secretary of the Interior to allow the continued occupancy and use of certain land and improvements within Rocky Mountain National Park, was passed by the Senate. 151 Cong. Rec. S13044 (daily ed. Nov. 16, 2005).

  • S. 592 (Glendo Unit of the Missouri River Basin Project Contract Extension Act), which would extend the contract for the Glendo Unit of the Missouri River Basin Project in the state of Wyoming, was passed by the Senate. 151 Cong. Rec. S13061 (daily ed. Nov. 16, 2005).

  • S. 761 (Morley Nelson Snake River Birds of Prey National Conservation Area Act), which would rename the Snake River Birds of Prey National Conservation Area in the state of Idaho as the Morley Nelson Snake River Birds of Prey National Conservation Area in honor of the late Morley Nelson, an international authority on birds of prey who was instrumental in the establishment of this National Conservation Area, was passed by the Senate. 151 Cong. Rec. S13057 (daily ed. Nov. 16, 2005).

  • S. 777 (Catoctin Mountain National Recreation Area Designation Act), which would designate Catoctin Mountain Park in the state of Maryland as the "Catoctin Mountain National Recreation Area," was passed by the Senate. 151 Cong. Rec. S13062 (daily ed. Nov. 16, 2005).

  • S. 819 (Pactola Reservoir Reallocation Authorization Act), which would authorize the Secretary of the Interior to reallocate costs of the Pactola Dam and Reservoir, South Dakota, to reflect increased demands for municipal, industrial, and fish and wildlife purposes, was passed by the Senate. 151 Cong. Rec. S13061 (daily ed. Nov. 16, 2005).

  • S. 891 (Nebraska Water Service Extension), which would extend the water service contract for the Ainsworth Unit, Sandhills Division, Pick-Sloan Missouri Basin Program, Nebraska, was passed by the Senate. 151 Cong. Rec. S13061 (daily ed. Nov. 16, 2005).

  • S. 895 (Rural Water Supply Program), which would direct the Secretary of the Interior to establish a rural water supply program in the reclamation states to provide a clean, safe, affordable, and reliable water supply to rural residents, was passed by the Senate. 151 Cong. Rec. S13045 (daily ed. Nov. 16, 2005).

  • S. 958 (Star-Spangled Banner Trail), which would amend the National Trails System Act to designate the Star-Spangled Banner Trail in Maryland and Virginia and in the District of Columbia as a National Historic Trail, was passed by the Senate. 151 Cong. Rec. S13053 (daily ed. Nov. 16, 2005).

  • S. 1154 (Acadia National Park Improvement Act), which would extend the Acadia National Park Advisory Commission to provide improved visitor services at the park, was passed by the Senate. 151 Cong. Rec. S13053 (daily ed. Nov. 16, 2005).

  • S. 1170 (Fort Stanton-Snowy River National Cave Conservation Area Act), which would establish the Fort Stanton-Snowy River Cave National Conservation Area, was passed by the Senate. 151 Cong. Rec. S13058 (daily ed. Nov. 16, 2005).

  • S. 1238 (Public Land Corps Healthy Forests Restoration Act), which would amend the Public Lands Corps Act of 1993 to provide for the conduct of projects that protect forests, was passed by the Senate. 151 Cong. Rec. S13054 (daily ed. Nov. 16, 2005).

  • S. 1338 (Alaska Water Resources Act), which would require the Secretary of the Interior, acting through the Bureau of Reclamation and the U.S. Geological Survey, to conduct a study on groundwater resources in the state of Alaska, was passed by the Senate. 151 Cong. Rec. S13061-62 (daily ed. Nov. 16, 2005).

  • S. 1627 (Delaware National Coastal Special Resources Study Act), which would authorize the Secretary of the Interior to conduct a special resources study to evaluate resources along the coastal region of the state of Delaware and to determine the suitability and feasibility of establishing a unit of the National Park System in Delaware, was passed by the Senate. 151 Cong. Rec. S13056 (daily ed. Nov. 16, 2005).

  • H.R. 126 (Cape Lookout National Seashore), which would amend Public Law 89-366 to allow for an adjustment in the number of free roaming horses permitted in Cape Lookout National Seashore, was passed by the Senate, clearing the measure for the President. 151 Cong. Rec. S13056 (daily ed. Nov. 16, 2005).

  • H.R. 539 (Caribbean National Forest Act), which would designate certain National Forest System land in the commonwealth of Puerto Rico as a component of the National Wilderness Preservation System, was passed by the Senate, clearing the measure for the President. 151 Cong. Rec. S13056 (daily ed. Nov. 16, 2005).

  • H.R. 1101 (California Public Land Order), which would revoke a public land order with respect to certain lands erroneously included in the Cibola National Wildlife Refuge, California, was passed by the Senate. 151 Cong. Rec. S13062 (daily ed. Nov. 16, 2005).

  • H.R. 1972 (Franklin National Battlefield Study Act), which would direct the Secretary of the Interior to conduct a special resource study to determine the suitability and feasibility of including in the National Park System certain sites in Williamson County, Tennessee, relating to the Battle of Franklin, was passed by the Senate, clearing the measure for the President. 151 Cong. Rec. S13042 (daily ed. Nov. 16, 2005).

COMMITTEE ACTION:



  • S. 363 (Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990) was reported by the Committee on Commerce, Science, and Transportation. S. Rep. No. 109-181, 151 Cong. Rec. S12948 (daily ed. Nov. 16, 2005). The bill would amend the Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990 to establish vessel ballast water management requirements.

  • S. 1869 (Coastal Barriers Resources Act) was reported by the Committee on Environment and Public Works. S. Rep. No. 109-286, 151 Cong. Rec. S12839 (daily ed. Nov. 15, 2005). The bill would reauthorize the Coastal Barrier Resources Act.

  • H.R. 1096 (historical park) was reported by the Committee on Resources. H. Rep. No. 109-286, 151 Cong. Rec. H10155 (daily ed. Nov. 10, 2005). The bill would establish the Thomas Edison National Historical Park in the state of New Jersey as the successor to the Edison National Historic Site.

  • H.R. 1436 (property use restrictions) was reported by the Committee on Resources. H. Rep. No. 109-287, 151 Cong. Rec. H10155 (daily ed. Nov. 10, 2005). The bill would remove certain use restrictions on property located in Navajo County, Arizona.

  • H.R. 1564 (irrigation district) was reported by the Committee on Resources. H. Rep. No. 109-288, 151 Cong. Rec. H10155 (daily ed. Nov. 10, 2005). The bill would authorize the Secretary of the Interior to convey certain buildings and lands of the Yakima Project, Washington, to the Yakima-Tieton Irrigation District.

  • H.R. 1721 (Federal Water Pollution Control Act (FWPCA)) was reported by the Committee on Transportation and Infrastructure. H. Rep. No. 109-292, 151 Cong. Rec. H10160 (daily ed. Nov. 14, 2005). The bill would amend the FWPCA to reauthorize programs to improve the quality of coastal recreation waters.

  • H.R. 1972 (national parks) was reported by the Committee on Resources. H. Rep. No. 109-289, 151 Cong. Rec. H10156 (daily ed. Nov. 10, 2005). The bill would direct the Secretary of the Interior to conduct a special resource study to determine the suitability and feasibility of including in the National Park System certain sites in Williamson County, Tennessee, relating to the Battle of Franklin.

  • H.R. 3443 (water distribution facilities) was reported by the Committee on Resources. H. Rep. No. 109-290, 151 Cong. Rec. H10156 (daily ed. Nov. 10, 2005). The bill would direct the Secretary of the Interior to convey certain water distribution facilities to the Northern Colorado Water Conservancy District.

  • H.R. 3963 (FWPCA) was reported by the Committee on Transportation and Infrastructure. H. Rep. No. 109-293, 151 Cong. Rec. H10160 (daily ed. Nov. 14, 2005). The bill would amend the FWPCA to extend the authorization of appropriations for Long Island Sound.

BILLS INTRODUCED:



  • S. 1995 (Jeffords, I-Vt.) (FWPCA) would amend the FWPCA to enhance the security of wastewater treatment works. 151 Cong. Rec. S12681 (daily ed. Nov. 10, 2005). The bill was referred to the Committee on Environment and Public Works.

  • S. 2011 (Jeffords, I-Vt.) (performance standards) would require the EPA Administrator to establish performance standards for fine particulates for certain pulp and paper mills. 151 Cong. Rec. S12839 (daily ed. Nov. 15, 2005). The bill was referred to the Committee on Environment and Public Works.

  • S. 2012 (Stevens, R-Ark.) (Magnuson-Stevens Fishery Conservation and Management Act) would authorize appropriations to the Secretary of Commerce for the Magnuson-Stevens Fishery Conservation and Management Act for fiscal years 2006 through 2012. 151 Cong. Rec. S12839 (daily ed. Nov. 15, 2005). The bill was referred to the Committee on Commerce, Science, and Transportation.

  • S. 2013 (Stevens, R-Ark.) (Marine Mammal Protection Act) would amend the Marine Mammal Protection Act of 1972 to implement the Agreement on the Conservation and Management of the Alaska-Chukotka Polar Bear Population. 151 Cong. Rec. S12839 (daily ed. Nov. 15, 2005). The bill was referred to the Committee on Commerce, Science, and Transportation.

  • S. 2023 (Inhofe, R-Okla.) (Oil Pollution Act of 1990) would amend the Oil Pollution Act of 1990 to improve that Act. 151 Cong. Rec. S12949 (daily ed. Nov. 16, 2005). The bill was referred to the Committee on Environment and Public Works.

  • H.R. 4294 (Porter, R-Nev.) (national parks) would authorize the Secretary of the Interior to enter into cooperative agreements to protect natural resources of units of the National Park System through collaborative efforts on land inside and outside of units of the National Park System. 151 Cong. Rec. H10156 (daily ed. Nov. 10, 2005). The bill was referred to the Committee on Resources.

  • H.R. 4301 (Herseth, D-S.D.) (habitat loss mitigation) would direct the Secretary of the Interior to convey certain parcels of land acquired for the Blunt Reservoir and Pierre Canal features of the initial stage of the Oahe Unit, James Division, South Dakota, to the Commission of Schools and Public Lands and the Department of Game, Fish, and Parks of the state of South Dakota for the purpose of mitigating lost wildlife habitat, on the condition that the current preferential leaseholders shall have an option to purchase the parcels from the Commission. 151 Cong. Rec. H10156 (daily ed. Nov. 10, 2005). The bill was referred to the Committee on Resources.

  • H.R. 4308 (Waxman, D-Cal.) (TSCA) would amend TSCA to reduce the exposure of children, workers, and consumers to toxic chemical substances. 151 Cong. Rec. H10156 (daily ed. Nov. 10, 2005). The bill was referred to the Committee on Energy and Commerce.

  • H.R. 4315 (Kennedy, R-Minn.) (Duck Stamp Act, Wetland Loan Act) would amend the Acts popularly known as the Duck Stamp Act and the Wetland Loan Act to reauthorize appropriations to promote the conservation of migratory waterfowl and to offset or prevent the serious loss of important wetlands and other waterfowl habitat essential to the preservation of such waterfowl. 151 Cong. Rec. H10160 (daily ed. Nov. 14, 2005). The bill was referred to the Committee on Resources.

  • H.R. 4318 (Peterson, R-Pa.) (outer continental shelf) would terminate the effect of all provisions of federal law that prohibit the expenditure of appropriated funds to conduct natural gas leasing and preleasing activities for any area of the outer continental shelf, to terminate all withdrawals of federal submerged lands of the outer continental shelf from leasing for exploration for, and development and production of, natural gas. 151 Cong. Rec. H10225 (daily ed. Nov. 15, 2005). The bill was referred to the Committee on Resources.

  • H.R. 4333 (Sanders, I-Vt.) (performance standards) would require the EPA Administrator to establish performance standards for fine particulates for certain pulp and paper mills. 151 Cong. Rec. H10226 (daily ed. Nov. 15, 2005). The bill was referred to the Committee on Energy and Commerce.
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
Maine
Missouri
Tennessee

Delaware
Michigan
New Jersey
Utah

Louisiana
Minnesota
North Carolina
Wyoming

CALIFORNIA


Water:




  • The State Water Resources Control Board has scheduled workshops in Southern and Northern California to accept comments on recommendations for changes to the CWA §303(d) list. The Northern California workshop will be held on December 6, 2005, and the Southern California workshop will be held on January 5, 2006. Written comments are due January 17, 2006. See http://www.waterboards.ca.gov/tmdl/docs/303d_update/workshopnotice303d.pdf


DELAWARE


Air:



  • The Department of Natural Resources and Environmental Control, Air Quality Management Section, is announcing two public meetings to discuss its plan to revise the process of regulating major stationary sources of air pollution. A review committee, including representatives from industry, environmental, and public health organizations, met to consider regulatory revisions. The committee proposed a new approach to new source review applicability for modified facilities that would provide administrative simplicity and maximum certainty for industry and solid control of emissions for the public. More information about the proposal can be found at http://www.dnrec.state.de.us/air/aqm_page/NSR/NSR.htm. This proposal was later reviewed and supported by members of the Chamber of Commerce and various environmental organizations. These public meetings are to discuss the proposal before a larger audience. The meetings will be held on December 1, 2005. See http://www.dnrec.state.de.us/DNREC2000/Admin/Press/PublicNotices/PNDetail.asp?NOVID=1688

Land Use:



  • The Division of Soil and Water Conservation, Shoreline and Waterway Management Branch, will hold a public hearing regarding proposed revisions to the Regulations Governing Beach Protection and the Use of Beaches. The proposed revisions will increase the effectiveness of the Coastal Construction Program and improve its protection of the beach and dune system. They will also reduce ambiguity within the regulations and limit the amount and type of construction permitted seaward of the Building Line. Redrawing of the Building Line, incorporation of changes to the Beach Preservation Act, and the addition of new construction standards for coastal structures will result in less damage to structures and improvements to the dune and beach resource. The hearing will be held on December 14, 2005. Written comments are due December 7, 2005. See http://www.dnrec.state.de.us/DNREC2000/Admin/Press/PublicNotices/PNDetail.asp?NOVID=1683

LOUISIANA


Air:



  • The Office of Environmental Assessment, Plan Development Section, will submit a proposed revision to the ozone maintenance plan for Grant Parish. This revision to the SIP is mandated under CAA §110(a)(1). The comment period has been extended until 4:30 p.m., December 19, 2005. The public hearing will still be held at 1:30 p.m. on November 29, 2005. See http://www.deq.state.la.us/planning/regs/pdf/0511Pot2_GrantParish_comment_extension.pdf

  • The Department of Environmental Quality announced that an emergency action is necessary to implement rules concerning the revised primary and secondary NAAQS for ozone and transitional provisions for nonattainment new source review under the revised standard. The rules, LAC 33:III.111, 504, 607, 711, 2201, and 2202, went into effect on October 13, 2005. This emergency rule is necessary to address two of the most immediate aspects of implementation of U.S. EPA's revised eight-hour NAAQS classifications: (1) revision of LAC 33:III.711 to replace the one-hour primary ambient air quality standard with the eight-hour standard; and (2) revision of nonattainment new source review provisions for parishes that were reclassified from severe under the one-hour standard to marginal under the eight- hour standard (parishes of Ascension, East Baton Rouge, Iberville, Livingston, and West Baton Rouge).See http://www.deq.state.la.us/planning/regs/pdf/AQ253E1.pdf

  • The Department of Environmental Quality renewed an emergency rule on the laboratory accreditation exemption for analyses of target volatile organic compounds. The rule also revises LAC 33:I.4719.E to establish laboratory requirements outlined in the Technical Assistance Document for Sampling and Analysis of Ozone Precursors as guidance to those responsible for implementing the Photochemical Assessment Monitoring Stations
    program. See http://www.deq.state.la.us/planning/regs/pdf/OS064E2.pdf

General:



  • The Department of Environmental Quality announced new public participation procedures regarding proposed permit actions in areas impacted by Hurricanes Katrina and Rita. The dislocation of residents and the damage to infrastructure in the emergency areas has affected the ability of the Department to solicit and receive comments on proposed permit actions. The new procedures are intended to address these issues in a manner that offers the opportunity for meaningful public participation and that meets the requirements and intent of the state and federal permitting statutes and regulations. Public notice and comment procedures will vary according to the categorization of the parish in which the facility at issue is located. The Department will categorize parishes after evaluating all relevant factors. When arranging public hearings to solicit comments regarding permitting activities, the Department will work with stakeholders to find suitable hearing site locations. See http://www.deq.state.la.us/planning/regs/pdf/0511Pot3.pdf

  • The Department of Environmental Quality issued an emergency rule to revise and replace Emergency Rule OS054E6, which was effective on October 8, 2005. The rule, Expedited Penalty Agreement (LAC 33:I.801, 803, 805, and 807), went into effect on November 10, 2005. The revised rule retains the edited language of OS054E6 and revises the penalty amounts of three Stage II Vapor Recovery violations. The rule will abate the delay in correcting minor and moderate violations of the Environmental Quality Act. Delays in enforcement reduce the effectiveness of the action, unnecessarily utilize resources, and slow down the enforcement process. In the past three years alone, the Enforcement Division has received 8,139 referrals and has issued 4,259 actions. Currently strained budget and resource issues pose imminent impairment to addressing minor and moderate violations. This rule will provide an alternative penalty assessment mechanism that the department may utilize, at its discretion, to expedite penalty agreements in appropriate cases. See http://www.deq.state.la.us/planning/regs/pdf/OS054E7.pdf

MAINE


Hazardous & Solid Wastes:



  • The Department of Environmental Protection adopted Chapter 415, Reasonable Costs for the Handling and Recycling of Electronic Wastes. This rule establishes the requirements and procedures for determining reasonable costs for the consolidation and recycling of electronic waste generated by households in Maine pursuant to 38 MRSA §1610. Effective November 13, 2005. See http://www.maine.gov/sos/cec/rules/notices/2005/111605.htm

MICHIGAN


Hazardous & Solid Wastes:



  • The Office of Geological Survey will be holding public hearings on proposed new nonferrous metallic mineral mining rules: R 425.101 to R 425.602 (SOAHR 2005-001EQ). The proposed rules provide detailed instructions, criteria, and processes to implement the terms of the statute and include standards for construction, operation, closure, postclosure, monitoring, and remediation of a mine. The meetings will be held on November 30, 2005, and December 7, 2005. An informational meeting will be held on November 30, 2005. See http://www.michigan.gov/deq/0,1607,7-135-3308-128989--,00.html#PublicHearings

Water:



  • The Department of Environmental Quality Remediation and Redevelopment Division has revised the drinking water cleanup criteria for arsenic and developed new drinking water criteria for bromate applicable to residential and industrial/commercial sites of environmental contamination in Michigan. The revisions were made under the authority of Part 201 (Environmental Remediation) and Part 213 (Leaking Underground Storage Tanks) of the Natural Resources and Environmental Protection Act, 1994 PA 451, as amended. This is the first time bromate has been included in the Part 201 and Part 213 cleanup criteria tables. The modifications, which become effective October 31, 2005, follow new state drinking water standards established for arsenic and bromate in April 2005 and January 2003, respectively. Additional interim soil and groundwater criteria were developed for bromate based on an oral cancer slope factor published in the U.S. EPA Integrated Risk Information System. Public comments on the interim soil and groundwater cleanup criteria developed for bromate are due December 15, 2005. See http://www.michigan.gov/deq/0,1607,7-135-3308-129669--,00.html#PublicHearings

MINNESOTA


Water:



  • The Minnesota Pollution Control Agency proposed to adopt amendments to rules governing individual sewage treatment systems, Minnesota Rules, Chapter 7080. These amendments are proposed in response to Laws 2004, ch. 249, §1. This law requires amendments clarifying the use of redoximorphic features as a means of identification and interpretation of seasonally saturated soil for individual sewage treatment system design and compliance. The law also requires the rule to add a dispute resolution procedure for controversial determinations of the seasonally saturated soil. The agency intends to adopt the rules without a public hearing following the procedures set forth in the rules of the Office of Administrative Hearings, Minnesota Rules, parts 1400.2300 to 1400.2310, and the Administrative Procedure Act, Minnesota Statutes, §§14.22 to 14.28. If, however, 25 or more persons submit a written request for a hearing on the rules by 4:30 p.m. on December 14, 2005, a public hearing will be held. See http://www.pca.state.mn.us/news/data/bdc.cfm?noticeID=269490&blobID=11630&docTypeID=4

MISSOURI


Wildlife:



  • The Conservation Commission proposed to amend provisions of 3 CSR 10-7.450, Furbearers: Hunting Seasons, Methods. The amendment will reorganize the rule for consistency; clarify provisions for selling furbearer pelts, and standardize terminology used when referring to the deer rule. Comments are due within 30 days of publication of this notice (November 14, 2005). See http://www.sos.mo.gov/adrules/moreg/current/2005/v30n22/v30n22b.pdf (p. 2385)

  • The Conservation Commission proposed to amend §4 of 3 CSR 10-8.515, Furbearers: Trapping Seasons. This amendment will allow holders of the Fur Handler's Permit, as provided in 3 CSR 10-10.711, to possess pelts of furbearers beyond the dates established in this section. Comments are due within 30 days of publication of this notice (November 14, 2005). See http://www.sos.mo.gov/adrules/moreg/current/2005/v30n22/v30n22b.pdf (p. 2386)

  • The Conservation Commission proposed to adopt 3 CSR 10-10.711, Resident Fur Handlers Permit, to provide for a new permit that extends the possession period for hunters and trappers to hold and process raw furs intended for shipment to established fur auction sites or to licensed fur dealers through June 1. Comments are due within 30 days of publication of this notice (November 14, 2005). See http://www.sos.mo.gov/adrules/moreg/current/2005/v30n22/v30n22b.pdf (p. 2386)

NEW JERSEY


Water:



  • The Department of Environmental Protection readopted and recodified, with amendments, the Groundwater Quality Standards. The standards have been readopted and recodified at N.J.A.C. 7:9C with amendments to the ground water quality criteria listed in Appendix Table 1. In addition, the department made administrative corrections to 28 rules that refer to the standards. Effective November 7, 2005. See http://www.nj.gov/dep/rules/adoptions.html

General:



  • The Department of Environmental Protection readopted the Payment Schedule for Permit Application Fees, NJAC 7:1L. This chapter institutes a system for the payment of permit fees (if over $1,000) in three installments. The due date of each installment is based upon the department's completion of its duties and responsibilities at specific stages of the application review process. The chapter applies to any permit, registration, or license issued by the department that establishes the regulatory and management requirements for an ongoing regulated activity under any federal law or certain state laws. Effective November 7, 2005. See http://www.nj.gov/dep/rules/adoptions.html

NORTH CAROLINA


Wildlife:



  • The Wildlife Resources Commission intends to amend 15A NCAC 10B .0121 to add Mute swans to the list of birds excluded form the definition of "wild birds." The Commission also intends to amend 15A NCAC 10B .0215 to adjust the season for crows. A public hearing will be held January 31, 2006. Written comments are due February 2, 2006. See http://www.ncoah.com/rules/register/Volume20Issue10.pdf (p. 740)

  • The Wildlife Resources Commission intends to adopt 15A NCAC 10B .0114 to allow dog training using domestically raised birds during the closed season, and 15A NCAC 10B .0123 to add species to list of those prohibited for import, export, purchase, sale, stocking, or releasing. The Commission also intends to amend 15A NCAC 10B .0124 to ban cervid carcass or parts from states or provinces where Chronic Wasting Disease occurs as part of the effort to prevent entry of this disease into North Carolina; 15A NCAC 10B .0202 to adjust bear seasons and to remove the Mt. Mitchell Bear Sanctuary from the sanctuary program; 15A NCAC 10B .0203 to adjust deer seasons and bag limits; 15A NCAC 10B .0206 to open certain counties to squirrel hunting; 15A NCAC 10B .0209 to adjust the harvest of male or bearded turkeys; 15A NCAC 10B .0219 to adjust regulations for weaponry and day or nighttime hunting for coyote; 15A NCAC 10B .0221 to adjust season and bag limits for Striped Skunk; 15A NCAC 10B .0302 to allow trapping of nutria east of I-77; 15A NCAC 10C .0205 and .0305 to adjust seasons and bag limits; 15A NCAC 10C .0401 and .0402 to protect herrings stocks in coastal/inland rivers; 15A NCAC 10D .0102 to increase the either-sex deer season from conservative to moderate on certain game lands; 15A NCAC 10D .0103 to add certain properties to existing gamelands and change the name of White Oak River Impoundment Game Land to White Oak River Game Land; and 15A NCAC 10J .0102 to limit the operation of motorized land vehicles that are not licensed for highway use on Wildlife Conservation Areas to those persons who have a permit pursuant to G.S. 113-297. Public hearings will be held January 9, 11, 12, 17, 18, 19, 24, 25, and 26, 2006. Written comments are due February 26, 2006. See http://www.ncoah.com/rules/register/Volume20Issue10.pdf (p. 741)

TENNESSEE


Air:



  • The Tennessee Air Pollution Control Board announced a public hearing to consider the promulgation of amendments to the Tennessee Air Pollution Control Regulations and the SIP pursuant to Tennessee Code Annotated, §68-201-105. The comments received at these hearings will be presented to the Tennessee Air Pollution Control Board for their consideration in regards to the proposed regulatory amendment. The hearing will be held on December 20, 2005. Written comments are due the same day. See http://www.state.tn.us/environment/apc/apcppo/rulemakinghearing.php

Water:



  • The Water Quality Control Board will hold a series of hearings to consider the promulgation of amendments of rules pursuant to the Tennessee Water Quality Control Act of 1977, §§69-3-105 (1), 69-3-105 (3), and 69-3-107 (11). The rulemaking would revise certain parts of chapters 1200-4-7 (Aquatic Resource Alteration Permits and §401 Water Quality Certifications), 1200-4-3 (General Water Quality Criteria), and 1200-4-4 (Stream Use Classifications). Written comments are due January 31, 2006. Hearings will be held January 3, 5, 9, 10, 11, 12, and 18, 2005. See http://www.state.tn.us/environment/wpc/wpcppo/arap/pn05_52.pdf

  • The Department of Environment and Conservation announced the availability of Tennessee's proposed TMDLs for pathogens in the Harpeth River watershed, located in middle Tennessee. Written comments are due December 12, 2005. See http://www.state.tn.us/environment/wpc/tmdl/HarpethPathPN.php

UTAH


Hazardous & Solid Wastes:




  • The Department of Environmental Quality amended Rule 315-15, Standards for the Management of Used Oil. This amendment adopts the equivalent federal regulation language to maintain consistency with U.S. EPA rules and to retain authorization for the Used Oil Program. The federal regulation language corresponding to the proposed rule change is found in the following sections of the federal regulations: 40 CFR §279.45 for used oil transfer facilities; 40 CFR §279.54 for used oil processors and re-refiners; and 40 CFR §279.64 for used oil burners. The proposed rule change would allow used oil transfer facilities, processors, re-refiners, and used oil burners the option to submit technical information for an alternative secondary containment system to the Division of Solid and Hazardous Waste for review as a condition of the required used oil permit for the facility. If the proposed alternative secondary containment meets the requirements outlined in the rules and is deemed equivalent, the alternative secondary containment will be recommended for approval by the Executive Secretary of the Utah Solid and Hazardous Waste Control Board as a condition of the facility's used oil permit. Written comments are due December 16, 2005. See http://www.rules.utah.gov/publicat/bulletin/2005/20051115/28308.htm


Water:



  • The Department of Environmental Quality proposed changes to Rule 317-4, Onsite Wastewater Systems. The proposed revisions define a process and criteria for evaluating approval of a variance for installation of onsite wastewater systems in areas with physical constraints such as sloping ground or proximity to a gully, gulch, and dry wash. The revisions also address the issue of installation of a non-conforming system in replacement of a non-conforming system in existence prior to promulgation of the onsite system rule. The Water Quality Board has initiated two concurrent rulemaking actions on this issue. The two proposals are identical with the exception that at Rule 317-4-4(4.7)(7-2)(A), the phrase "or is not practical" is either included or omitted from the sentence, "A wastewater system consistent with R317-4 and local health department requirements cannot be constructed or is not practical, and a connection to a public or community-based sewerage system is not available." See http://www.rules.utah.gov/publicat/bulletin/2005/20051115/28317.htm. The other proposed amendment to the rule does contain the phrase. See http://www.rules.utah.gov/publicat/bulletin/2005/20051115/28316.htm. Written comments are due December 15, 2005. A public hearing will be held December 6, 2005.

Wildlife:



  • The Division of Wildlife Resources amended Rule 657-13, Taking Fish and Crayfish. This rule is being amended to accommodate the use of reciprocal permits instead of stamps because the division is moving to a more integrated online sales system. Other changes are being made for consistency and clarity. Written comments are due December 15, 2005. See http://www.rules.utah.gov/publicat/bulletin/2005/20051115/28303.htm

WYOMING


Air:



  • The Wyoming Air Quality Advisory Board will hold a public meeting on December 8, 2005, at 10:00 a.m. at the Casper Department of Environmental Quality Field Office, 152 N. Durbin, Suite 100, Casper, Wyoming.  The Air Quality Division will propose additional changes to the Chapter 6, Permitting Requirements, §4, prevention of significant deterioration rule package, currently under review.  The U.S. Court of Appeals for the D.C. Circuit handed down a decision on June 24, 2005, that significantly impacted new source review reform. To be consistent with the decision, the division has modified sections pertaining to clean units, pollution control projects, and recordkeeping.  Minor, miscellaneous changes were also made to provide more consistency within the rule.  A briefing on upcoming rulemaking concerning controlling mercury emissions from power plants will also be provided. See http://deq.state.wy.us/aqd/prop/PublicnoticeAQAB12-8-05.pdf

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


INTERNATIONAL

JAPAN TO COMPENSATE ASBESTOS VICTIMS:




  • Japan plans to issue a special measures law that will compensate asbestos victims and their families for medical costs and related expenses. The law will cover people who have been or become affected between 1970 and 2010 and who have mesothelioma, lung cancer, or other asbestos-related diseases. The government expects 20,000 people to be covered under the law and plans to provide 70 billion yen for the program. See http://www.asahi.com/english/Herald-asahi/TKY200511170263.html


EUROPEAN PARLIAMENT APPROVES TOXIC CHEMICAL LAW:



  • Members of the European Parliament passed an amended bill on Registration, Evaluation and Authorization of Chemicals (REACH), which aims to protect the public from toxic substances. Under the law, which still must be approved by European Union (EU) member states, companies would have to register the properties of chemicals produced or imported in the EU, test and receive authorization to use chemicals of high concern (such as carcinogens), and substitute safe chemicals for hazardous ones when alternatives are available. The amended law includes a compromise that significantly reduces the number of chemicals that require testing--a provision that disappointed environmentalists and consumer activists. See http://today.reuters.co.uk/news/newsArticle.aspx?type=scienceNews&storyID=2005-11-17T130802Z_01_RID741575_RTRIDST_0_SCIENCE-ENVIRONMENT-EU-CHEMICALS-DC.XML

SOUTH KOREA PLANS TO RAISE "GREEN GROWTH POTENTIAL":



  • South Korea is planning to boost its "green growth potential"--a nation's capacity to achieve economic growth with environmentally friendly policies--in order to catch up with other advanced countries. The Ministry of Environment seeks to launch environmental policies that will address the degradation of natural resources and ecosystems that has occurred as a result of the growth-oriented development policies over the last 40 years. See http://times.hankooki.com/lpage/nation/200511/kt2005111720305911950.htm

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


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