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Weekly Update Volume 35, Issue 34

12/05/2005

LITIGATION

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


CERCLA, REMOVAL ACTION, RESPONSE COSTS:

The Ninth Circuit upheld a lower court decision finding a company liable for response costs incurred at a former mining and processing operation in Libby, Montana, ordering the company to pay $54.53 million in reimbursement, including $11.32 million in indirect costs, and granting a declaratory judgment that the company would be liable for future cleanup costs. Given the sweeping language in the definition of "removal," the significant deference due to EPA's interpretation of this language, and the scope of the interim cleanup, EPA's cleanup of the asbestos-related contamination falls within the bounds of a removal action. In addition, EPA's cleanup was exempt from CERCLA's general 12-month, $2 million cap for removal actions. The public health situation in Libby is extraordinary. Confronted with this information, EPA determined on the basis of its professional judgment, and in accord with its administrative interpretation of the scope of removal actions, that the situation warranted an immediate, aggressive response to abate the public health threat. Considering the widespread and pervasive asbestos contamination and the potential for further migration of asbestos fibers, EPA's decision to exceed the statutory cap was not arbitrary and capricious. The court, therefore, did not err in granting EPA over $54 million in reimbursement plus a declaratory judgment for future costs. Likewise, the accounting methods used to calculate EPA's indirect costs were proper. United States v. W.R. Grace & Co., No. 03-35924, 35 ELR 20245 (9th Cir. Dec. 1, 2005) (51 pp.).


CWA, NATIONWIDE PERMIT 21 (NWP 21):

The Fourth Circuit held that the U.S. Army Corps of Engineers complied with CWA §404 in promulgating NWP 21, a general permit for the discharge of dredged or fill material into U.S. waters that allows projects to proceed only after receiving individualized authorization from the Corps. The Corps identified a category of activities, it determined that those activities would have a minimal environmental impact both separately and cumulatively, and it provided notice and opportunity for public hearing before issuing the permit. The Corps' issuance of NWP 21 thus fell within its authority under CWA §404(e). Consequently, the court vacated a district court's contrary judgment and its injunction against NWP 21 authorizations. Ohio Valley Environmental Coalition v. Bulen, Nos. 04-2129 et al., 35 ELR 20242 (4th Cir. Nov. 23, 2005) (19 pp.).


CAA, NONATTAINMENT AREAS, BOUNDARY DESIGNATION:

The D.C. Circuit held that the boundaries EPA established for ozone nonattainment areas under the CAA are neither arbitrary nor capricious. This case concerns Ocean County, New Jersey, and Cecil County, Maryland. Ocean County is in the New York-Northern New Jersey-Long Island one-hour nonattainment area, and Cecil County is in the Philadelphia-Wilmington-Atlantic City one-hour nonattainment area. Because Ocean County is downwind of the Philadelphia area, New Jersey requested that its designation be transferred to the Philadelphia nonattainment area. And although Cecil County is downwind of the Baltimore-Washington-Northern Virginia nonattainment area, Maryland opposed its transfer. In its final rule, EPA placed both counties in the Philadelphia nonattainment area. Delaware and Pennsylvania filed suit, arguing that this designation was contradictory. EPA's Designation Guidance, however, says quite clearly it will exercise its discretion to modify home state recommendations only when it receives evidence on 11 relevant factors that demonstrate that the presumptive boundary--the one-hour nonattainment area in this case--is inappropriate. Here, no one provided an 11-factor analysis to overcome the Cecil County's presumptive placement, and Maryland did not recommend its transfer. And as for Ocean County, not only did New Jersey recommend placing the county in the Philadelphia nonattainment area, it provided a supporting 11-factor analysis as well. Pennsylvania v. Environmental Protection Agency, No. 04-1211, 35 ELR 20243 (D.C. Cir. Nov. 29, 2005) (9 pp.).


CAA, OPACITY VIOLATIONS:

The Eleventh Circuit affirmed a district court's grant of summary judgment to TVA on environmental groups' request for civil penalties and on its claim as to violations of the CAA's 20% opacity limitation occurring before May 20, 1999, but it reversed summary judgment for TVA on the groups' claim as to violations of the opacity limitation on or after that date. The environmental group failed to establish any violations of the opacity requirement prior to May 20, 1999, because it only has continuous opacity monitoring system (COMS) data, and that data cannot be used to show violations that occurred before Alabama adopted its credible evidence rule on that date. In addition, sovereign immunity bars the assessment of civil penalties against TVA in a CAA citizens suit such as this one. After May 20, 1999, however, TVA relied on the 2% de minimis rule, which allows emissions as measured by COMS to exceed the 20% opacity limitation for up to 2% of the operating hours of the plant in each quarter, measured in six-minute intervals and excluding times during which an exception applies. The state's use of this rule is an illegal, unilateral modification of the EPA-approved Alabama SIP. It was not simply an interpretation of Alabama's credible evidence rule, which is part of its SIP. Thus, the grant of summary judgment in favor of the TVA for violations after May 20, 1999, was reversed. Sierra Club v. Tennessee Valley Authority, No. 04-15324, 35 ELR 20237 (11th Cir. Nov. 22, 2005) (46 pp.).


NATIVE AMERICANS, WATER RIGHTS:

The Ninth Circuit held that although a Native American tribe may change the use of their water rights established under a 1944 federal court decree from irrigation use to instream use, it may not apply the transportation loss portion of those rights to the new use. The decree provides that the amount allocated to transportation loss is only an "estimated" one, which can be increased or decreased as conditions demand, and the estimates are based on the assumption that the water will be used for irrigation. The tribe's transportation loss right is thus inseparable from the actual conditions of irrigation, and the transportation loss component of the right becomes irrelevant when, as here, water is transferred to a use that does not involve transportation loss. United States v. Truckee-Carson Irrigation District, Nos. 04-16032, -16033, 35 ELR 20236 (9th Cir. Nov. 21, 2005) (14 pp.).


LAND USE, TAKINGS, EXACTIONS:

The Federal Circuit upheld the dismissal of real estate developers' illegal exaction and Fifth Amendment compensation claims. The developers relied on the U.S. Army Corps of Engineers' 1988 wetlands delineation in purchasing the 470-acre plot at issue. Due to public controversy, however, the delineation was revised in 1991, substantially increasing the acreage of jurisdictional wetlands on the subject property. In 1999, the Corps issued the developers a CWA §404 permit allowing them to fill approximately 60 acres of wetlands. In exchange, it required the developers to create or restore approximately 195 acres of wetlands as mitigation and to transfer title in 220.85 acres of the property to a non-profit property owners' association. The developers then filed suit, arguing that because they bought the 470-acre parcel in reliance upon the 1988 delineation, the subsequent and less favorable re-delineation "culiminated in" a taking of the 220.85 acres set aside nearly a decade later in accordance with the 1999 §404 permit. Yet the causal relationship between the revocation of the 1988 delineation and their alleged loss is simply too attenuated to support the weight the developers place upon it. Moreover, the developers provided no basis on which to reverse the trial court's conclusion that no physical, categorical, or regulatory taking occurred. Likewise, the trial court properly found that it lacked jurisdiction over the developer's illegal exaction claim. Norman v. United States, No. 05-5039, 35 ELR 20239 (Fed. Cir. Nov. 18, 2005) (26 pp.).


SOLID WASTE, STANDING:

The D.C. Circuit dismissed a petition challenging an EPA rule allowing the director of an approved state landfill to grant variances from EPA criteria for sanitary landfills. The environmental group challenging the rule lacks associational standing because none of its members is injured or is about to be injured by the rule. GrassRoots Recycling Network, Inc. v. United States Environmental Protection Agency, No. 04-1196, 35 ELR 20238 (D.C. Cir. Nov. 18, 2005) (7 pp.).


INSURANCE, EXCESS POLICIES:

A California appellate court upheld, with modification, a trial court decision in favor of an insurance company in a case involving an aerospace manufacturer's claim for coverage under numerous insurance policies for pollution-related liability totaling hundreds of millions of dollars. It was error for the trial court to have sustained the demurrers of certain excess insurers. But since the court affirmed the trial court's ruling in favor of the primary insurer on each of the coverage issues, there is no potential that the manufacturer will exhaust its primary coverage and reach the excess policies. The court, therefore, modified the judgment to include an appropriate declaration. Lockheed Corp. v. Continental Insurance Co., No. H026867, 35 ELR 20241 (Cal. App. 6th Dist. Nov. 22, 2005) (41 pp.).


WILDLIFE, IMPORTS:

A California appellate court held that California Penal Code 653o, which bans the import of products made from certain animals, including kangaroos, into California is preempted by federal law and by general federal objectives of kangaroo conservation. The statute as applied in this case conflicts with federal law and with substantial federal objectives of persuading Australian federal and state governments to impose kangaroo population management programs in exchange for allowing the importation of kangaroo products. Thus, the grant of summary judgment in favor of a shoe manufacturer that imports and sells in California markets athletic shoes made from kangaroo leather was affirmed. Viva! International Voice for Animals v. Adidas Promotional Retail Operations, Inc., No. A106960, 35 ELR 20240 (Cal. App. 1st Dist. Nov. 21, 2005) (19 pp.).


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

A California appellate court held that a city need not prepare an EIR under CEQA for a hotel project in San Diego, California. The potential environmental impacts of the project were adequately examined in two earlier EIRs for a city redevelopment plan and for a baseball stadium, and CEQA does not require the preparation of a separate EIR under the circumstances of this case. Citizens for Responsible Equitable Environmental Development v. City of San Diego Redevelopment Agency, No. D045274, 35 ELR 20244 (Cal. App. 4th Dist. Nov. 30, 2005) (25 pp.).


RCRA, HAZARDOUS WASTE:

An administrative law judge (ALJ) issued a preliminary order on the respondent's motion for partial accelerated decision as to all counts in a complaint filed by EPA. The complaint asserted that fly ash waste generated at the respondent's gray iron foundry is a hazardous waste under RCRA, and asserted other violations of RCRA and the CWA in connection with this waste as well. The respondent contended that the fly ash waste is exempt under Subtitle C of RCRA and, therefore, EPA's allegations should be dismissed. The ALJ preliminarily concluded that, subject to needed expert testimony, EPA has not complied with the plain terms of the relevant statutes and that fly ash is not regulated under RCRA. In re Leed Foundry, Inc., RCRA No. 03-2004-0061, 35 ELR 47862 (ALJ Oct. 12, 2005).


RCRA, HAZARDOUS WASTE:

An administrative law judge (ALJ) granted EPA's motion for an accelerated decision on liability for the first of two counts in its complaint. In this complaint, EPA alleged that the respondents own and operate a facility where hazardous wastes were stored without a permit in violation of RCRA. The ALJ found that because there were no genuine issues of material fact as to respondents' liability on the first count, the respondents are liable for the RCRA violation alleged in that count. However, the issue of an appropriate penalty for the first count and the issues of liability and potential penalties for the second count alleged in the complaint remain disputed and were reserved for further proceedings. In re Zaclon, Inc., RCRA No. 05-2004-0019, 35 ELR 47864 (ALJ Nov. 3, 2005).


RCRA, DISCOVERY:

An administrative law judge (ALJ) denied EPA's motion for discovery and motion in limine. In these motions, EPA sought to clarify the respondent's liability for alleged violations of UST regulations under RCRA and also sought to bar the respondent from introducing into evidence any of the information sought by the motion for discovery for which the respondent failed to provide discovery. The respondent countered that this broad discovery would be extremely burdensome for a small company and would unreasonably delay the proceeding. The court directed both parties to carefully review their witness summaries and supplement them if necessary. In re Duncan Petroleum Corp., RCRA No. 03-2004-0004, 35 ELR 47863 (ALJ Oct. 21, 2005).


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 took final action on most of the remaining elements of its program to implement the eight-hour ozone NAAQS, including reasonably available control technology and measures, reasonable further progress, modeling and attainment demonstrations, and new source review (NSR) for nonattainment areas; revisions to regulations governing the nonattainment NSR program; and certain aspects of the reformulated gasoline program. 70 FR 71611 (11/29/05).

  • EPA announced it will reconsider four specific issues in the Agency's rule to reduce interstate transport of fine particulate matter and ozone. 70 FR 72268 (12/2/05).

  • EPA revised the schedule for the nationwide transition of most diesel fuel in 2006 from low-sulfur diesel to ultra-low sulfur diesel. 70 FR 70498 (11/22/05).

  • EPA proposed amendments to the NESHAPs for new and existing sources in the portland cement manufacturing industry. 70 FR 72329 (12/2/05).

  • EPA proposed to revise the schedule for the nationwide transition in 2006 of most diesel fuel from low-sulfur diesel to ultra-low sulfur diesel; see above for direct final rule. 70 FR 70566 (11/22/05).

  • EPA announced the availability of the first external review draft of a document on air quality criteria for lead. 70 FR 72300 (12/2/05).

  • EPA announced the availability of data and information concerning proposals for the addition of certain substances as persistent organic pollutants (POPs) to the 1998 Aarhus POPs Protocol Under the Long-Range Transboundary Air Pollution Convention of the United Nations Economic Commission for Europe. 70 FR 70840 (11/23/05).

  • EPA solicited applications for essential use exemptions to the production and import phaseout of ozone depleting substances under the Montreal Protocol for the years 2007 and 2008. 70 FR 70071 (11/21/05).

  • EPA proposed to update a portion of the outer continental shelf (OCS) air regulations pertaining to the requirements for OCS sources by the state of California and South Coast air quality management district. 70 FR 72094 (12/1/05).

  • EPA denied a petition to object to a CAA operating permit issued by the Clark County Department of Air Quality and Environmental Management in Boulder City, Nevada. 70 FR 71136 (11/25/05).

  • SIP Approvals: California (Imperial and Santa Barbara Counties), 70 FR 70734 (11/23/05); (carbon monoxide), 70 FR 71776 (11/30/05). Indiana (sulfur dioxide; Dearborn County area), 70 FR 70999 (11/25/05); (eight-hour ozone; Vigo County), 70 FR 70612 (11/22/05). New Jersey (volatile organic compounds), 70 FR 71774 (11/30/05).

  • SIP Proposals: California (Imperial and Santa Barbara Counties; see above for direct final rules), 70 FR 70750 (11/23/05); (carbon monoxide; see above for direct final rule), 70 FR 71794 (11/30/05). Indiana (Vigo County; eight-hour ozone NAAQS), 70 FR 70751 (11/23/05); (sulfur dioxide; Dearborn County area; see above for direct final rule), 70 FR 71071 (11/25/05).

  • SIP Withdrawal: Texas (concrete batch plants), 70 FR 70736 (11/23/05).

CLIMATE CHANGE:



  • NOAA announced the availability of the U.S. Climate Change Science Program's synthesis and assessment draft product 1.1, which addresses temperature trends in the lower atmosphere. 70 FR 70061 (11/21/05).

HAZARDOUS & SOLID WASTE:



  • EPA entered into a proposed administrative settlement under CERCLA to settle claims for payment of all past and future costs related to the Calhoun Park Area site located in Charleston, South Carolina. 70 FR 72116 (12/1/05).

  • EPA entered into a proposed cost recovery settlement under CERCLA that requires the settling party to pay $300,000 and to complete remediation of contaminated surface soils at the Zimble Drum Superfund site in Norwood, Massachusetts. 70 FR 71846 (11/30/05).

  • EPA entered into a proposed cost recovery settlement under CERCLA that resolves the settling party's liability at five Superfund sites in California and Florida. 70 FR 71142 (11/25/05).

  • The Forest Service entered into a proposed administrative settlement under CERCLA that requires the settling party to pay $65,000 in past response costs incurred at the Duncan Township Landfill in Houghton County, Michigan. 70 FR 72103 (12/1/05).

  • EPA granted final authorization to changes to Indiana's hazardous waste program under RCRA. 70 FR 70740 (11/23/05).

  • EPA proposed to authorize changes to Michigan's hazardous waste management program under RCRA. 70 FR 70761 (11/23/05).

  • EPA announced that it is proposing to approve a modification to Illinois' approved municipal solid waste landfill permit program. 70 FR 70841 (11/23/05).

  • EPA granted a petition to exclude wastewater treatment sludges generated by the General Motors Corporation plant in Janesville, Wisconsin, from the list of hazardous wastes. 70 FR 71002 (11/25/05).

  • EPA amended an existing exclusion to the list of hazardous wastes to reflect changes in ownership and name for the Vulcan Materials Company in Port Edwards, Wisconsin. 70 FR 71002 (11/25/05).

MINING:



  • OSM approved a number of revisions to Alaska's regulatory program under SMCRA to make the state program consistent with corresponding federal regulations, clarify ambiguities, and improve operational efficiency. 70 FR 71383 (11/29/05).

  • OSM approved an amendment to Illinois' regulatory program under SMCRA concerning revegetation success standards. 70 FR 71394 (11/29/05).

  • OSM proposed to approve an amendment to Missouri's regulatory program under SMCRA that revises regulations regarding the bonding of surface coal mining and reclamation operations to allow Missouri to transition from a "bond pool" approach to a "full cost bond" approach. 70 FR 71425 (11/29/05).

  • OSM proposed to approve a number of revisions to Montana's regulatory program under SMCRA to make the state program consistent with corresponding federal regulations, clarify ambiguities, and improve operational efficiency. 70 FR 71428 (11/29/05).

  • OSM proposed to approve an amendment to Texas' regulatory program under SMCRA that concerns the annual fees of coal mining permit holders. 70 FR 71441 (11/29/05).

  • OSM proposed to approve an amendment to Wyoming's abandoned mine land reclamation plan under SMCRA. 70 FR 71444 (11/29/05).

  • OSM approved an amendment to the North Dakota regulatory program under SMCRA. 70 FR 71240 (11/28/05).

PESTICIDES:



  • EPA established a tolerance for residues of tralkoxydim in or on barley grain, barley hay, barley straw, wheat grain, and wheat hay, wheat forage, and wheat straw. 70 FR 70737 (11/23/05).

  • EPA announced the availability of its human health risk assessment and related documents for the chloroacetanilide pesticide acetochlor. 70 FR 70832 (11/23/05).

  • EPA announced the availability of its tolerance reassessment decision for the pesticide maleic hydrazide. 70 FR 70834 (11/23/05).

  • EPA announced the availability of its risk assessments and related documents for the synthetic pyrethroid pesticide resmethrin. 70 FR 70829 (11/23/05).

PUBLIC LAND:



  • BLM announced the implementation of interim management guidelines for certain lands in Humboldt County, California, that will be in effect until a resource management plan amendment for the area is completed. 70 FR 72313 (12/2/05).

  • BLM announced the availability of a draft general management plan for the Grand Canyon-Parashant National Monument and of a draft EIS for the draft resource management plan for the Arizona Strip, the Vermilion Cliffs National Monument, and the Grand Canyon-Parashant National Monument. 70 FR 71168 (11/25/05).

  • BLM announced the availability of a draft EIS for the Seminoe Road Gas Development Project, a proposed coalbed natural gas development and production operation in south central Wyoming. 70 FR 71169 (11/25/05).

  • The Forest Service issued an interim directive that revises directions governing advertising and sponsorship related to concessions involving privately owned improvements operated under special use permits on National Forest System lands. 70 FR 71081 (11/25/05).

  • FWS announced the availability of a draft comprehensive conservation plan and EA for the Salt Plains National Wildlife Refuge in Oklahoma. 70 FR 70089 (11/21/05).

  • The National Park Service announced the availability of a draft EIS for the Fort King Special Resource Study in Ocala, Florida. 70 FR 70096 (11/21/05).

  • The National Park Service announced the availability of the record of decision for the Selma to Montgomery National Historic Trail comprehensive management plan and final EIS. 70 FR 70097 (11/21/05).

TOXIC SUBSTANCES:



  • EPA issued a significant new use rule under TSCA §5(a)(2) for 2-ethoxyethanol, 2-ethoxyethanol acetate, 2-methoxyethanol, and 2-methoxyethanol acetate. 70 FR 71401 (11/29/05).

WATER:



  • EPA announced the availability of a proposed NPDES general permit for stormwater discharges from industrial activity in EPA Regions 1, 2, 3, 5, 6, 9, and 10. 70 FR 72116 (12/1/05).

  • EPA announced the availability of additional data related to the Agency's proposed NPDES regulations for cooling water intake structures at Phase III facilities under CWA 316(b). 70 FR 71057 (11/25/05).

  • EPA revised the underground injection control requirements for Class I municipal disposal wells in Florida. 70 FR 70513 (11/22/05).

WILDLIFE:



  • FWS announced the availability of a draft document reassessing methods to estimate population size and sustainable mortality limits for the Yellowstone grizzly bear. 70 FR 70632 (11/22/05).

  • FWS announced its 90-day finding on a petition to delist Peirson's milk-vetch as a threatened species and initiated a status review to determine if delisting the species is warranted. 70 FR 71795 (11/30/05).

  • FWS announced the availability of the final recovery plan for six aquatic snails found in the Mobile River Basin. 70 FR 72307 (12/2/05).

  • FWS announced its intent to prepare a comprehensive conservation plan and EA for the Logan Cave National Wildlife Refuge in Benton County, Arkansas. 70 FR 70878 (11/23/05).

  • FWS announced the availability of the draft post-delisting monitoring plan for the Douglas County distinct population segment of the Columbian white-tailed deer. 70 FR 70876 (11/23/05).

  • NOAA Fisheries issued a 30-day temporary rule to allow shrimp fishermen to continue to use limited tow times as an alternative to turtle excluder devices in certain waters affected by Hurricanes Katrina and Rita. 70 FR 71406 (11/29/05).

  • NOAA Fisheries denied a petition for rulemaking concerning sea turtles because the petitioner failed to request specific and discrete actions that are properly within the scope of a rulemaking petition. 70 FR 72099 (12/1/05).

  • NOAA Fisheries proposed measures to adjust the Spiny Dogfish fishery management plan that would allow the specification of commercial quotas and other management measures for up to five years. 70 FR 72100 (12/1/05).

  • NOAA Fisheries proposed to amend the manner in which the total allowable catch for "other species" is annually determined in the Gulf of Alaska. 70 FR 71450 (11/29/05).

  • The Animal and Plant Health Inspection Service announced the availability of a record of decision for the final EIS for Black-Tailed Prairie Dog conservation and management in the Nebraska National Forest. 70 FR 71079 (11/25/05).

  • NOAA Fisheries announced the closure of summer flounder in federal waters to coincide with the closure announced by the Massachusetts Division of Marine Fisheries; vessels issued a commercial federal fisheries permit for the summer flounder fishery may not land summer flounder in Massachusetts for the remainder of calendar year 2005, unless additional quota becomes available through a transfer. 70 FR 70744 (11/23/05).

  • NOAA Fisheries announced that the Gulf of Mexico Fishery Management Council has submitted an amendment to the fishery management plan to stabilize participation in the shrimp fishery of the Gulf of Mexico exclusive economic zone and provide better information by which to manage the fishery. 70 FR 70780 (11/23/05).

DOJ NOTICES OF SETTLEMENT:



  • United States v. DeMert & Dougherty, Inc., No. 2:02CV434 (N.D. Ind. Nov. 4, 2005). Under a proposed revised consent decree, the group performing the remedy at the American Chemical Service, Inc., Superfund site in Griffith, Indiana, will have a general unsecured claim of $2,225,000 against a bankrupt settling CERCLA defendant and will have rights to receive payments under the defendant's insurance policies for the site. 70 FR 72125 (12/1/05).

  • Burns v. MBK, No. 03-3021-HO (D. Or. Nov. 18, 2005). Settling CERCLA defendants must pay $433,333, and the United States must pay $400,000, to complete a remedial investigation/feasibility study at the North Ridge Estates residential real estate development in Klamath Falls, Oregon. 70 FR 71171 (11/25/05).

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


THE CONGRESS

COMMITTEE ACTION:



  • S. 1390 (Coral Reef Conservation Act) was reported by the Committee on Commerce, Science, and Transportation. S. Rep. No. 109-182, 151 Cong. Rec. S13160 (daily ed. Nov. 17, 2005). The bill would reauthorize the Coral Reef Conservation Act of 2000.

  • S. 2006 (hurricane relief) was reported by the Committee on Environment and Public Works. 151 Cong. Rec. S13160 (daily ed. Nov. 17, 2005). The bill would provide for recovery efforts relating to Hurricanes Katrina and Rita for U.S. Army Corps of Engineers projects.

BILLS INTRODUCED:



  • S. 2033 (Kennedy, D-Mass.) (Wild and Scenic Rivers Act) would amend the Wild and Scenic Rivers Act to designate segments of the Taunton River in the commonwealth of Massachusetts as a component of the National Wild and Scenic Rivers System. 151 Cong. Rec. S13160 (daily ed. Nov. 17, 2005). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 2034 (Kennedy, D-Mass.) (national parks) would direct the Secretary of the Interior to conduct a study to evaluate the significance of the Colonel James Barrett Farm in the commonwealth of Massachusetts and assess the suitability and feasibility of including the farm in the National Park System as part of the Minute Man National Historical Park. 151 Cong. Rec. S13160 (daily ed. Nov. 17, 2005). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 2035 (Craig, R-Idaho) (hydroelectric project) would extend the time required for construction of a hydroelectric project in the state of Idaho. 151 Cong. Rec. S13160 (daily ed. Nov. 17, 2005). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 2037 (Salazar, D-Colo.) (national heritage area) would establish the Sangre de Cristo National Heritage Area in the state of Colorado. 151 Cong. Rec. S13160 (daily ed. Nov. 17, 2005). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 2041 (Reid, D-Nev.) (FWS site conveyance) would provide for the conveyance of an FWS administrative site to the city of Las Vegas, Nevada. 151 Cong. Rec. S13161 (daily ed. Nov. 17, 2005). The bill was referred to the Committee on Environment and Public Works.

  • S. 2042 (Chambliss, R-Ga.) (FIFRA) would amend FIFRA to implement pesticide-related obligations of the United States under the international conventions or protocols known as the PIC Convention, the POPs Convention, and the LRTAP POPs Protocol. 151 Cong. Rec. S13161 (daily ed. Nov. 17, 2005). The bill was referred to the Committee on Agriculture, Nutrition, and Forestry.

  • S. 2050 (Snowe, R-Me.) (inland waters) would establish a commission on inland waters policy. 151 Cong. Rec. S13161 (daily ed. Nov. 17, 2005). The bill was referred to the Committee on Commerce, Science, and Transportation.

  • S. 2052 (Roberts, R-Kan.) (chemicals) would amend the Internal Revenue Code of 1986 to provide a credit to certain agriculture-related businesses for the cost of protecting certain chemicals. 151 Cong. Rec. S13360 (daily ed. Nov. 18, 2005). The bill was referred to the Committee on Finance.

  • S. 2053 (Clinton, D-N.Y.) (lead-based paint) would amend the Internal Revenue Code of 1986 to provide a tax credit for property owners who remove lead-based paint hazards. 151 Cong. Rec. S13361 (daily ed. Nov. 18, 2005). The bill was referred to the Committee on Finance.

  • S. 2054 (Jeffords, I-Vt.) (water resources study) would direct the Secretary of the Interior to conduct a study of water resources in the state of Vermont. 151 Cong. Rec. S13361 (daily ed. Nov. 18, 2005). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 2067 (Enzi, R-Wyo.) (chemicals) would assist chemical manufacturers and importers in preparing material safety data sheets pursuant to the requirements of the hazard communication standard and to establish a commission to study and make recommendations regarding the implementation of the Globally Harmonized System of Classification and Labeling of Chemicals. 151 Cong. Rec. S13361 (daily ed. Nov. 18, 2005). The bill was referred to the Committee on Health, Education, Labor, and Pensions.

  • S. 2070 (Schumer, D-N.Y.) (hydroelectric projects) would provide certain requirements for hydroelectric projects on the Mohawk River in the state of New York. 151 Cong. Rec. S13361 (daily ed. Nov. 18, 2005). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 2072 (Reid, D-Nev.) (land conveyances) would provide for the conveyance of certain public lands in and around historic mining townsites in Nevada. 151 Cong. Rec. S13361 (daily ed. Nov. 18, 2005). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 2077 (Sessions, R-Ala.) (private forest landowners) would amend the Internal Revenue Code of 1986 to allow income averaging for private forest landowners. 151 Cong. Rec. S13361 (daily ed. Nov. 18, 2005). The bill was referred to the Committee on Finance.

  • S. 2079 (Smith, R-Or.) (catastrophic event recovery) would improve the ability of the Secretary of Agriculture and the Secretary of the Interior to promptly implement recovery treatments in response to catastrophic events affecting the natural resources of Forest Service and BLM land, to support the recovery of non-federal land damaged by catastrophic events, to assist impacted communities, and to revitalize Forest Service experimental forests. 151 Cong. Rec. S13361 (daily ed. Nov. 18, 2005). The bill was referred to the Committee on Energy and Natural Resources.

  • H.R. 4375 (McNulty, D-N.Y.) (hydroelectric projects) would provide certain requirements for hydroelectric projects on the Mohawk River in the state of New York. 151 Cong. Rec. H10909 (daily ed. Nov. 17, 2005). The bill was referred to the Committee on Energy and Commerce.

  • H.R. 4377 (Otter, R-Idaho) (hydroelectric project) would extend the time required for construction of a hydroelectric project. 151 Cong. Rec. H10909 (daily ed. Nov. 17, 2005). The bill was referred to the Committee on Energy and Commerce.

  • H.R. 4383 (Salazar, D-Colo.) (national heritage area) would establish the Sangre de Cristo National Heritage Area in the state of Colorado. 151 Cong. Rec. H10909 (daily ed. Nov. 17, 2005). The bill was referred to the Committee on Resources.

  • H.R. 4409 (Kingston, R-Ga.) (alternative fuels) would promote the national security and stability of the United States economy by reducing the dependence of the United States on foreign oil through the use of alternative fuels and new vehicle technologies. 151 Cong. Rec. H11034 (daily ed. Nov. 18, 2005). The bill was referred to the Committees on Energy and Commerce; Science; Ways and Means; Transportation and Infrastructure; and Government Reform.

  • H.R. 4418 (Pearce, R-N.M.) (rural water supply program) 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. 151 Cong. Rec. H11034 (daily ed. Nov. 18, 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:

Alabama
Kansas
Montana
Ohio
South Dakota

California
Louisiana
New Hampshire
Oklahoma
Tennessee

Florida
Maine
New Jersey
Rhode Island
Utah

Idaho
Massachusetts
New York
South Carolina
Wisconsin

ALABAMA


Air:



  • The Alabama Department of Environmental Management (ADEM) proposed revisions to the Alabama SIP concerning redesignating the Birmingham eight-hour ozone nonattainment area to attainment. Achieving the eight-hour ozone standard has been accomplished through several SIPs developed and implemented by ADEM, regulations and programs established by the federal government, and through voluntary reductions by the public. A public hearing will be held January 4, 2006. Written comments are due January 6, 2006. See http://www.adem.state.al.us/PublicNotice/Nov/118hour.htm

Hazardous & Solid Wastes



  • The Alabama Department of Environmental Management (ADEM) proposed revisions to Division 14 of the ADEM Administrative Code dealing with hazardous waste. A public hearing will be held January 11, 2006. Written comments are due January 13, 2006. See http://www.adem.state.al.us/PublicNotice/Nov/Div14.htm

CALIFORNIA


Toxic Substances:



FLORIDA


Air:



  • The Department of Environmental Protection proposed amendments to Rule 62-204.800, F.A.C., to update the adoptions by reference of air pollution regulations promulgated by U.S. EPA at 40 CFR Parts 60, 61, 63, and 75. Objections must be received within 14 days of publication of this notice (November 23, 2005) and must specify the portions of the proposed rule to which the person objects and the reason for the objection. Frivolous objections will not be considered sufficient to prohibit adoption of the rule as published. Written comments are due within 21 days of this notice. See http://tlhora6.dep.state.fl.us/onw/publications/1-NOI052530-11-23-05-INT.pdf

  • The Department of Environmental Protection gave a Notice of Change for Rule 62-212.400, F.A.C., as published September 30, 2005, in response to comments received into the record of the rulemaking. See http://tlhora6.dep.state.fl.us/onw/publications/3-NOC212-11-18-05-INT.pdf

  • The Department of Environmental Protection gave a Notice of Change for Rules 62-210.200, 62-210.370, and 62-210.900, F.A.C., as published September 30, 2005, in response to comments received. See
    http://tlhora6.dep.state.fl.us/onw/publications/4-NOC210-11-18-05-INT.pdf

Hazardous & Solid Wastes:



Land Use:



Water:



  • The Department of Environmental Protection announced a Notice of Correction to the Notice of Proposed Rulemaking for Rule 62-302.700, F.A.C., (Rose Sink Outstanding Florida Water) published on November 10, 2005. The correction clarifies that the Notice of Rule Development was published on the Department's Official Notice website on July 18, 2003, and not May 9, 2003. See http://tlhora6.dep.state.fl.us/onw/publications/13-NOCRoseSinkOFW-11-18-05-INT.pdf

General:



IDAHO


Water:




  • The Idaho Department of Environmental Quality (DEQ) is seeking public comment on a draft policy aimed at accelerating processing of certain drinking water and wastewater projects. The draft policy establishes conditions under which DEQ may enter into a memorandum of understanding with qualified cities to review and authorize construction of the following types of infrastructure projects: drinking water booster stations; well locations for drinking water supplies; pressurized sewer mains; sewage lift stations; septic tank effluent pumping systems; and gravity sewer mains up to 48 inches in diameter. The draft policy is one of several efforts DEQ has undertaken in recent months to address a backlog in plan and specification reviews that has occurred as a result of rapid growth, particularly in the Treasure Valley. Written comments are due December 29, 2005. See http://www.deq.state.id.us/Applications/NewsApp/shownews.cfm?event_id=1344


KANSAS


Air:



Hazardous & Solid Wastes:



Land Use:



Water:



General



LOUISIANA


Hazardous & Solid Wastes:



  • The Department of Environmental Quality declared that an emergency action is necessary in order to implement rules to address the remediation of sites with contaminated environmental media. This is a renewal of Emergency Rule HW084E6, which was effective July 30, 2005, and published in the Louisiana Register on August 20, 2005. The Department has proposed a rule to promulgate these regulation changes. This emergency rule, HW084E7, is effective on November 27, 2005, and shall remain in effect for a maximum of 120 days or until a final rule is promulgated, whichever occurs first. See http://www.deq.state.la.us/planning/regs/pdf/HW084E7.pdf

  • The Department of Environmental Quality extended the comment period for proposed rule HW084, concerning remediation of sites with contaminated media. The notice of intent for this rule was published in the September 20, 2005, issue of the Louisiana Register. Comments must be received no later than December 23, 2005. See http://www.deq.state.la.us/planning/regs/pdf/0511Pot1.pdf

MAINE


Water:



  • The Department of Environmental Protection (DEP) proposed amendments to Ch. 531, Regulations for Wastewater Operator Certification. This chapter governs the certification of persons qualified to operate public and private wastewater treatment plant in Maine. It establishes criteria for determining a grade for each wastewater facility based on flows and pollutant loading as well as criteria that must be met by a person wishing to be certified as qualified to operate a wastewater facility having a given grade. Many of the proposed amendments are minor clarifications and formatting changes. However, the amendments will create a new classification of wastewater treatment plant operator for small facilities using spray irrigation for treatment. If this class of operators is not created, owners and operators of campgrounds, trailer parks, and seasonal industries that typically use this type of treatment will be required to employ operators who are certified to operate facilities that discharge to the surface waters of the state. Since the type of treatment, and therefore the skills and knowledge necessary to properly operate these systems, are different, establishing a new category of operators is necessary. The fee structure is being removed from the chapter in anticipation of transferring the administration of the Wastewater Operator Certification Program to an outside organization. The Commissioner will continue to sign all wastewater operator certificates and DEP staff will oversee the program. A public hearing will be held December 15, 2005. Written comments are due December 27, 2005. See http://www.maine.gov/sos/cec/rules/notices/2005/112305.htm

Wildlife:



  • The Department of Inland Fisheries and Wildlife proposed 65 additional designations of areas as essential habitat for bald eagle nest sites; 27 deletions of previously designated essential habitats for bald eagles; 1 relocation of previously designated essential habitats for bald eagles; and 2 administrative relabels of previously designated essential habitats for bald eagles. Written comments are due December 30, 2005. A public hearing may be scheduled if requested. See http://www.maine.gov/SOS/cec/rules/notices/2005/113005.htm

  • The Commissioner of Inland Fisheries and Wildlife has adopted a rule amending the wild turkey hunting season by adding wildlife management districts (WMDs) 10 and 11 to the turkey hunting zone and removing WMD 27. This is being done as a result of the adjustments made to the WMDs in an earlier rulemaking that takes effect with the spring wild turkey hunting season. Effective November 23, 2005. See http://www.maine.gov/SOS/cec/rules/notices/2005/113005.htm

  • The Department of Marine Resources proposed regulations that would adopt, through the regular rulemaking process, changes that become effective with the adoption of the emergency rules establishing the 2005-2006 shrimp season. The proposed season would take place from December 12, 2005, through April 30, 2006. The season for the harvest of shrimp by trawl and by trap would be the same dates. Written comments are due December 23, 2005. A public hearing may be scheduled if requested. See http://www.maine.gov/SOS/cec/rules/notices/2005/112305.htm

  • The Department of Marine Resources issued emergency regulations establishing the 2005- 2006 Northern Shrimp season in compliance with the Atlantic States Marine Fisheries Commission Northern Shrimp Fishery Management Plan. The season shall take place from December 12, 2005, through April 30, 2006. The season for the harvest of shrimp by trawl and by trap shall be the same dates. A public hearing will be held in the affected area if requested of the Commissioner in writing by five persons. The hearing will be held within 30 days of the Commissioner receiving the written requests. Effective November 23, 2005. See http://www.maine.gov/SOS/cec/rules/notices/2005/112305.htm

  • The Department of Inland Fisheries and Wildlife proposed regulation changes for the upcoming open water fishing seasons. The changes would add a "no size or bag limit on bass" regulation, would add an "all trout caught must be released alive at once" regulation, and would increase the minimum length limit on brook trout from 12 inches to 14 inches for certain waters within the state. Written comments may be submitted on any of these proposals. Written comments are due December 23, 2005. A public hearing may be scheduled if requested. See http://www.maine.gov/SOS/cec/rules/notices/2005/112305.htm

MASSACHUSETTS


Air:




  • The Massachusetts Department of Environmental Protection proposed amendments to 310 CMR 7.36, Transit System Improvement Regulations. The proposed amendments were requested by the Executive Office of Transportation and include substitute projects for the three remaining transit projects required as air quality mitigation measures for the Central Artery/Third Harbor Tunnel project. The proposed amendments also modify the procedures in the regulation to delay and substitute transit projects. The Department will hold two public hearings to accept comments on December 21, 2005, both at the agency's offices in Boston.  January 3, 2006, is the deadline for public comment.  See http://www.mass.gov/dep/air/laws/catpub.pdf


Water:



  • The Massachusetts Department of Environmental Protection announced its intent to revise the Massachusetts Surface Water Quality Standards (WQS) 314. The most significant revisions to the WQS clarify the Department's authority to establish TMDLs and site specific criteria, explain when compliance schedules in surface water discharge permits are appropriate, add a new tier of antidegradation review for special resource waters, replace fecal coliform with E. coli and enterococci as indicator organisms for certain recreational uses under the bacteria criteria, and incorporate U.S. EPA's National Recommended Water Quality Criteria: 2002, EPA-822-R-02-047, November, 2002, for toxics. The Department will hold public hearings to accept comments on January 18, 2006, in the four Regional Offices and Boston, and on January 19, 2006, in Boston. January 30, 2006 is the deadline for public comment. See http://www.mass.gov/dep/water/laws/dredgepn.htm

MONTANA


Water:



  • The Department of Environmental Quality extended the comment period for its proposed amendment and adoption of ARM 17.30.670 and 17.30.1202, which concern nondegradation requirements for electrical conductivity and sodium adsorption ratio and definitions for technology-based effluent limitations, and the adoption of new rules I through X, which concern minimum technology-based controls and treatment requirements for the coal bed methane industry (MAR Notice No. 17-236). Comments are due January 27, 2006. See http://deq.mt.gov/dir/legal/Notices/17-236pro.pdf

NEW HAMPSHIRE


Air:



  • The Department of Environmental Service proposed amendments to its definition of "volatile organic compounds" under Env-A 101.211. The change is needed to make New Hampshire's rule consistent with the current U.S. EPA definition. A public hearing will be held December 8, 2005. Comments are due December 19, 2005. See http://www.des.state.nh.us/RuleMaking/notice2005/Env-A_101_211.pdf

  • The Department of Environmental Service proposed amendments to its table of regulated toxic air pollutants (RTAPs) under Env-A 1450.01. This table is updated every year based on changes made to the list of chemical substances by the American Conference of Government Industrial Hygienists (ACGIH). The proposed amendments update the table of RTAPs in Env-A 1450.01 based on changes made to the list of chemical substances by the ACGIH in 2005. A public hearing will be held December 22, 2005. Comments are due January 3, 2006. See http://www.des.state.nh.us/RuleMaking/notice2005/Env-A_1450.01.pdf

Hazardous & Solid Wastes



Water:



NEW JERSEY


Air:



  • The Department of Environmental Protection reclassified carbon dioxide (CO2) as an air contaminant. The adopted amendments--N.J.A.C. 7:27; N.J.A.C. 7:27-1.36, 8.1, 8.2, 8.12, Appendix 1, 16.1, 17.1, 19.1, 22.1, 22.2, 22.35, and Appendix--reclassify CO2 as an air contaminant by removing it from the list of chemical species defined as "distillates of air" at N.J.A.C. 7:27. Effective November 21, 2005. See http://www.nj.gov/dep/rules/adoptions.html

NEW YORK


Hazardous & Solid Wastes:



  • The Department of Environmental Conservation issued draft regulations for Brownfield and Superfund Programs. The draft regulations reflect statutory revisions to the Inactive Hazardous Waste Disposal Site Remedial Program (Superfund Program) and the Environmental Restoration Program and incorporate new provisions to implement the new Brownfield Cleanup Program. These changes are necessary to fully implement the comprehensive legislation enacted in 2003 to refinance and reform the state's Brownfield and Superfund programs. Public hearings will be held March 6, 9, and 15, 2006. Written comments are due March 27, 2006. See http://www.dec.state.ny.us/website/der/superfund/index.html

Water:



  • The Department of Environmental Conservation proposed regulations on the operation of mechanically propelled vessels and aircraft in the Forest Preserve. This regulation will prohibit the use of mechanically propelled vessels by the public on Lows Lake. Comments are due December 31, 2005. See http://www.dec.state.ny.us/website/dlf/regs/index.html#operation

Wildlife:



OHIO


Air:



  • Ohio EPA proposed rulemaking governing the Diesel School Bus Retrofit Grant Program, Ohio Administrative Code rules 3745-49-50 Definitions; 3745-49-51, Permitted uses, eligibility, and prioritization; and 3745-49-52, Grant administration. The purpose of this rulemaking is to establish the Diesel School Bus Retrofit Grant Program set forth in HB 66 and the administrative process for its operation. A public hearing will be held December 6, 2005. Comments are due December 6, 2005. See http://www.registerofohio.state.oh.us/pdfs/phn/3745_NO_28073_20051028_1006.pdf

  • Ohio EPA's Department of Air Pollution Control performed a five-year rule review of Ohio Administrative Code (OAC) rules 3745-78-01, Definitions; 3745-78-02, Fee emission reports; 3745-78-03, Asbestos notification, removal, and cleanup fees; 3745-78-04, Permit fees; and 3745-78-05, Fee penalties, to satisfy the requirements of §119.032 of the Ohio Revised Code. The Department found the above rules to be necessary and with need for change only to correct the statutory authority for these rules. The Department found OAC rules 3745-78-01 and 3745-78-02 to be necessary proposed to amend them only to correct the statutory authority for these rules. The Department proposes to rescind OAC rules 3745-78-03, 3745-78-04, and 3745-78-05. These rules have been determined to be no longer necessary as the language in these rules is mirrored in Ohio Revised Code §3745.11. Effective December 2, 2005. See http://www.registerofohio.state.oh.us/pdfs/phn/3745_NO_26644_20050804_1116.pdf

OKLAHOMA


Water:



  •  The Department proposes to update Subchapter 1, Introduction, 252:606-1-4, and Subchapter 9, Land Application of Biosolids, 252:606-9-1. The change incorporates by reference certain federal regulations and updates the publication date of the federal rules to July 1, 2005. Additionally, the Department proposes to amend its rules to prohibit the land application of biosolids in the watershed of an outstanding resource water. Written comments on the proposed rulemaking will be accepted prior to and at the Water Quality Management Advisory Council hearing on January 10, 2006, but to be thoroughly considered, written comments should be submitted no later than January 6, 2006. See http://www.oar.state.ok.us/register/Volume-23_Issue-06.htm#a24578

Wildlife:



  • The Department of Wildlife Conservation proposed to adjust hunter education class hours in accordance with House Concurrent Resolution 1010 (adopted 2005) and establish additional certification procedures. Public hearings will be held January 9 and 10, 2006. Written comments are due January 13, 2006. See http://www.oar.state.ok.us/register/Volume-23_Issue-06.htm#a24578

  • The Department of Wildlife Conservation proposed to adjust bag limits and size limits on various fish species and lakes. Proposals include a rule to include Sooner Lake with a limit of 20 striped bass hybrids and/or white bass, or 20 in combination, of which only 5 may be 20 inches or longer; a rule to include Lake Murray with a minimum size limit of 14 inches on walleye; and a rule to change the current size limit on walleye and saugeye at Foss Lake from 16 inches to 14 inches. Public hearings will be held January 9 and 10, 2006. Written comments are due January 13, 2006. See http://www.oar.state.ok.us/register/Volume-23_Issue-06.htm#a24578

  • The Department of Wildlife Conservation proposed to remove duplicate language that is already stated in Title 29; 4-103 and correct misspelled words. Public hearings will be held January 9 and 10, 2006. Written comments are due January 13, 2006. See http://www.oar.state.ok.us/register/Volume-23_Issue-06.htm#a24578

  • The Department of Wildlife Conservation proposed to add Salvinia species to the "Prohibited Species List" and move alligatorweed from the "Species to Watch List" to the "Prohibited Species List" and add congeneric species. Public hearings will be held January 9 and 10, 2006. Written comments are due January 13, 2006. See http://www.oar.state.ok.us/register/Volume-23_Issue-06.htm#a24578

  • The Department of Wildlife Conservation proposed amendments to clarify what regulations/rules the Department will be enforcing on U.S. Army Corps of Engineers nonlicensed property and provide for a variety of other revisions to hunting regulations. Public hearings will be held January 9 and 10, 2006. Written comments are due January 13, 2006. See http://www.oar.state.ok.us/register/Volume-23_Issue-06.htm#a24578

  • The Department of Wildlife Conservation proposed to change the rules for all-terrain vehicle use on the Ouachita and Rita Blanca wildlife management areas to be the same as the U.S. Forest Service rules and will update policy and charges for oil and gas activity/exploration on department lands. Public hearings will be held January 9 and 10, 2006. Written comments are due January 13, 2006. See http://www.oar.state.ok.us/register/Volume-23_Issue-06.htm#a24578

RHODE ISLAND


General:



  • The Director of the Rhode Island Department of Environmental Management (DEM) proposed to adopt regulations for a DEM pilot program for accelerated application processing and announced its intent to hold a public hearing to receive public comment on the proposed regulations and to afford interested parties an opportunity to submit data, views, or arguments orally and/or in writing on the proposed regulations. The public hearing will be held on Friday, December 23, 2005. See http://www.dem.ri.gov/programs/director/legal/accapppn.htm

SOUTH CAROLINA


Air:



  •  The Department of Health and Environmental Control proposed to amend Regulations 61-62.60, South Carolina Designated Facility Plan and New Source Performance Standards; 61-62.61, NESHAPs; and 61-62.63, NESHAPs for Source Categories to incorporate recent federal amendments promulgated during the period from January 1, 2005, through December 31, 2005. The proposed amendments will not be more stringent than the current federal requirements. The proposed amendments will not require legislative review. Comments are due January 23, 2006. See http://www.scdhec.gov/administration/regs/docs/regupdate.doc

SOUTH DAKOTA


Wildlife:



  • The Water Management Board proposes to amend a rule that will designate the beneficial use of warmwater semipermanent and marginal fish life propagation waters and limited contact recreation waters to a segment of Long Creek, a tributary of the Vermillion River in Lincoln and Turner Counties; 32 SDR 93. A public hearing will be held December 5, 2005. See http://legis.state.sd.us/rules/register/11282005.pdf

TENNESSEE


Air:




  • There will be a public hearing before the Technical Secretary of the Tennessee Air Pollution Control Board to consider amendments to Chapter 1200-3-3 (Ambient Air Quality Standards), and Supplemental Material for Chapter 1200-3-3 (Parts 1 and 2). The hearing will be held December 20, 2005. See http://www.state.tn.us/environment/apc/apcppo/apcb_ph_dec2005.php


Water:



UTAH


Air:



  • The Department of Environmental Quality proposed changes to R307-101-2, Definitions, to clarify the general definitions that are used throughout Title R307. This amendment is part of revisions to rules related to the federal new source review program (see separate filings on R307-401, R307-405, and R307-410, below). Comments are due January 17, 2006. A public hearing will be held December 14, 2005. See http://www.rules.utah.gov/publicat/bulletin/2005/20051201/28319.htm

  • The Department of Environmental Quality proposed changes to R307-110-9, Section VIII, Prevention of Significant Deterioration, to reflect the provisions of the revised federal prevention of significant deterioration (PSD) permitting rule (40 CFR 52.21e), which is being incorporated by reference in the new text for Rule R307-405. Section R307-110-9 incorporates by reference Utah's SIP for the PSD. Comments are due January 17, 2006. A public hearing will be held December 14, 2005. See http://www.rules.utah.gov/publicat/bulletin/2005/20051201/28320.htm

  • The state proposed amendments to R307-325,  Davis and Salt Lake Counties and Ozone Nonattainment Areas:  Ozone Provisions, to clarify the applicability of this rule. This amendment is part of revisions to rules related to the federal new source review program (see separate filings on R307-110-9, R307-401, and R307-405, above and below). Comments are due January 17, 2006. A public hearing will be held December 14, 2005. See http://www.rules.utah.gov/publicat/bulletin/2005/20051201/28321.htm

  • The Department of Environmental Quality proposed amendments to R307-401, Permit: Notice of Intent and Approval Order, to clarify and simplify the language of the rule, and to include exemptions that are currently located in Rule R307-413. Comments are due January 17, 2006. A public hearing will be held December 14, 2005. See http://www.rules.utah.gov/publicat/bulletin/2005/20051201/28325.htm

  • The Department of Environmental Quality proposed to amend R307-405, Permits:  Major Sources in Attainment or Unclassified Areas, to incorporate the new federal prevention of significant deterioration (PSD) permitting rule in 40 CFR 52.21 by reference, thereby making the federal new source review reform provisions effective in Utah. On December 31, 2002, EPA published a major revision to the federal PSD program that is commonly referred to as the new source review reform rule. Comments are due January 17, 2006. A public hearing will be held December 14, 2005. See http://www.rules.utah.gov/publicat/bulletin/2005/20051201/28322.htm

  • The Department of Environmental Quality proposed to clarify R307-410, Permits:  Emissions Impact Analysis. This amendment is part of revisions to rules related to the federal new source review program. Comments are due January 17, 2006. A public hearing will be held December 14, 2005. See http://www.rules.utah.gov/publicat/bulletin/2005/20051201/28322.htm

  • The Department of Environmental Quality proposed to amend R307-413, Permit:  Exemptions and Special Provisions. Comments are due January 17, 2006. A public hearing will be held December 14, 2005. See http://www.rules.utah.gov/publicat/bulletin/2005/20051201/28324.htm

Hazardous & Solid Wastes :




  • The Department of Environmental Quality proposed to amend R315-102, Penalty Policy. In the 2005 General Session, the Legislature passed S.B. 24, which made changes to the statue as found in Subsection 19-6-113(2). The Legislature enacted an increase in the maximum civil penalty amount from $10,000 to $13,000. This rule change increases the maximum penalty amount for hazardous waste or solid waste violations from $10,000 to $13,000 and the minimum from $40 to $50. Written comments are due January 3, 2006. See http://www.rules.utah.gov/publicat/bulletin/2005/20051201/28346.htm


Land Use:



  • The Department of Natural Resources proposed to amend R647-1-106, Definitions. The purpose of this amendment is to clarify definitions and references in the minerals regulatory program as they relate to changes brought on by S.B. 65 from the 2003 Legislature. The changes clarify how definitions apply to mining and exploration operations that are less than five acres in size. Comments are due January 25, 2006. A public hearing will be held December 7, 2005. See http://www.rules.utah.gov/publicat/bulletin/2005/20051201/28337.htm

  • The Department of Natural Resources proposed to amend R647-2,Exploration. The purpose of this rule change is to establish the procedural requirements for bonding exploration operations granted by S.B. 65 from the 2003 Legislature. This rule change tells how bonds for the reclamation of exploration operations are to be estimated, submitted to the division, reviewed, changed, and forfeited. Comments are due January 25, 2006. A public hearing will be held December 7, 2005. See http://www.rules.utah.gov/publicat/bulletin/2005/20051201/28338.htm

  • The Department of Natural Resources proposed to amend R647-3, Small Mining Operations. The purpose of this rule change is to establish the procedural requirements for bonding small (less than five acre) mining operations as granted by S.B. 65 from the 2003 Legislature. This rule change tells how bonds for the reclamation of small mining operations are to be estimated, submitted to the division, reviewed, changed, and forfeited. Comments are due January 25, 2006. A public hearing will be held December 7, 2005. See http://www.rules.utah.gov/publicat/bulletin/2005/20051201/28339.htm

  • The Department of Natural Resources proposed to amend R647-4, Large Mining Operations. This rule change is proposed to clarify certain bonding requirements for large mining operations and to codify certain procedures that were included as policies prior to the passage of S.B. 30 in the 2003 Legislature. The rule change clarifies certain procedural requirements for estimating, submitting, reviewing, and modifying reclamation bonds for mining operations. Comments are due January 25, 2006. A public hearing will be held December 7, 2005. See http://www.rules.utah.gov/publicat/bulletin/2005/20051201/28340.htm

  • The Department of Natural Resources proposed to amend R647-5-101, Formal and Informal Proceeding. This rule change updates the lists of formal and informal adjudicative procedures available under the Minerals Reclamation Program as they relate to changes brought on by S.B. 65. Surety forfeitures are added to the list of formal procedures conducted before the Board, surety releases are added to the list of informal procedures conducted before the Division, and surety form and amount determinations are added to the list of informal procedures to be conducted before the Board. Comments are due January 25, 2006. A public hearing will be held December 7, 2005. See http://www.rules.utah.gov/publicat/bulletin/2005/20051201/28341.htm

WEST VIRGINIA


Water:



WISCONSIN


Water:



  • The Department of Natural Resources will hold public hearings on January 4, 5, 11, and 12, 2006, on revisions to §§ NR 102.10 and 102.11, Wis. Adm. Code, relating to listing additional waters as Outstanding or Exceptional Resource Waters. Outstanding and Exceptional Resource Waters are waters that are characterized as being valuable or unique from various standpoints including fisheries, hydrology, geology, and recreation. In August 2004, the Department received a petition from various conservation organizations requesting that the Department designate 100 water segments as Outstanding or Exceptional. Department staff have evaluated available information pertaining to the segments in question and recommend that 30 segments be added to the existing list of Outstanding Resource Waters in s. NR 102.10 and 12 segments be added as Exceptional Resource Waters in s. NR 102.11. The waters are located in Ashland, Barron, Bayfield, Burnett, Douglas, Forest, Iron, Langlade, Lincoln, Oneida, Price, Rusk, Sawyer, Taylor, Vilas, and Washburn counties. See http://www.dnr.state.wi.us/org/caer/ce/news/hearmeet.html

Wildlife:



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


INTERNATIONAL

UNITED NATIONS CLIMATE CHANGE CONFERENCE APPROVES PLAN TO IMPLEMENT KYOTO PROTOCOL:



  • Delegates at the United Nations climate change conference in Montreal have agreed on rules that describe how greenhouse gas emissions will be reported and verified. Known as the Marrakesh Accords, the new rules include the establishment of an international trading system for greenhouse gases, credits for industrial nations who help developing countries produce clean energy, and recognition of natural resources that absorb carbon emissions such as forests. See http://www.cbc.ca/montreal/story/qc-envir20051130.html

ENVIRONMENTAL GROUPS SUPPORT ELEPHANT CULLING IN SOUTH AFRICA:



  • Seven environmental groups are supporting the South African National Parks' plan to cull a growing elephant population that is damaging the biodiversity of a national park. The groups, which include the Endangered Wildlife Trust, the Wildlife & Environment Society of South Africa, and the World Wildlife Fund-South Africa, agreed in a joint statement with the National Parks that culling is a more feasible method than birth control techniques, which culling opponents advocate. See http://www.sabcnews.com/south_africa/general/0,2172,117295,00.html

ZAMBIA URGES INDUSTRY TO DEVELOP ENVIRONMENTAL PLANS:



  • The Zambian government is calling on non-mining industries in the Copperbelt to develop plans to minimize their environmental impacts in the manner of their neighbors in the mining industry. The Minister of Mines and Mineral Development has said that efforts by the mining sector to mitigate its environmental impacts will have very little effect if they are not joined by other industries. Continued pollution of the Kafue River will negatively impact water quality and human health, he said. See http://allafrica.com/stories/200511300234.html

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


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