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Weekly Update Volume 35, Issue 36

12/27/2005

LITIGATION

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


CERCLA, OVERSIGHT COSTS:

The Third Circuit held that CERCLA authorizes the United States to recover costs incurred in supervising a hazardous waste cleanup conducted by responsible private parties. The United States incurred costs of $1,394,796.94 supervising removal and remedial actions at the DuPont Newport Superfund Site in Delaware. In light of the plain meaning of the relevant CERCLA provisions, the overall statutory framework, the functional benefits of agency oversight, and the overarching statutory objective of ensuring that those responsible for environmental harm are "tagged" with "the cost of their actions," the court concluded that CERCLA §107 authorizes the United States to recover costs incurred in overseeing private party removal and remedial actions that are not inconsistent with the NCP. In so holding, the court overruled its previous decision in United States v. Rohm & Haas Co., 2 F.3d 1265, 23 ELR 21345 (3d Cir. 1993). United States v. E.I. DuPont de Nemours & Co., No. 04-4546, 35 ELR 20258 (3d Cir. Dec. 22, 2005) (24 pp.).


NEPA, IRRIGATION:

The Eighth Circuit held that the U.S. Army Corps of Engineers complied with NEPA in connection with its plan to preserve an aquifer in the Grand Prairie Region in East Central Arkansas, a major rice producing area. The plan includes the construction of a system that would pump excess water from the White River into the Grand Prairie region. The Corps adequately considered the project's cumulative impacts of past, present, and future actions on the White River, and the Corps did not act arbitrarily or capriciously in refusing to prepare a supplemental EIS based on new information. The environmental groups challenging the project failed to show that the changes were substantial. Arkansas Wildlife Federation v. United States Army Corps of Engineers, No. 04-35446, 35 ELR 20257 (8th Cir. Dec. 20, 2005) (12 pp.).


NATURAL GAS PIPELINE, STANDING:

The D.C. Circuit dismissed an environmental group's petition for review of seven FERC orders concerning a natural gas pipeline extension from Virginia to North Carolina. The group lacked standing to assert its claim that the natural gas company's route realignments were unauthorized because they deviated too far from the route FERC originally certified. The group failed to explain why any realignment would inflict a concrete and particularized injury on its members. Nor are the injuries discussed in the affidavits redressable by the relief requested. In addition, the group's appeal of a FERC order rejecting its claim that the company failed to consider a particular route alternative is barred on res judicata grounds. The D.C. Circuit has already rejected the group's claim that route alternatives were not adequately considered. And the group's remaining claims were either moot or frivolous. National Committee for the New River, Inc. v. Federal Energy Regulatory Commission, No. 03-1251, 35 ELR 20254 (D.C. Cir. Dec. 16, 2005) (8 pp.).


FOIA, FEE WAIVER:

The Ninth Circuit held that the U.S. Forest Service wrongfully denied environmental groups' request for a waiver of fees in connection with their procurement of geospatial information systems (GIS) data records under FOIA. Although 7 U.S.C. §1387 allows the Secretary of Agriculture to charge fees for furnishing reproductions of GIS data, fees are not mandatory. And the Office of Management and Budget, the agency responsible for promulgating FOIA guidelines, has clarified that only statutes setting mandatory fees, rather than statutes setting discretionary ones, meet the exception to the FOIA fee waiver provision. The lower court therefore erred in holding that the groups were not entitled to the fee waiver. Environmental Protection Information Center v. United States Forest Service, No. 04-15512, 35 ELR 20255 (9th Cir. Dec. 19, 2005) (9 pp.).


EMINENT DOMAIN, PROPERTY VALUATION:

A California appellate court affirmed a trial court's judgment condemning three residential rental properties for redevelopment purposes in a quick take eminent domain proceeding. In quick take eminent domain proceedings, the date of valuation of the property, for purposes of trial on the issue of the property owner's just compensation, is statutorily required to be no later than the date the plaintiff makes a deposit of probable compensation. Here, the redevelopment company deposited $287,000 on December 16, 2002, and on January 20, 2004, it deposited an additional $30,500. The trial court set the date of valuation on December 20, 2002, the approximate date of the original deposit. This complies with the statutory valuation requirements, and the initial deposit of $287,000 was not substantially less than the $317,500 amount that the redevelopment company later admitted and the trial court implicitly determined was the fair market value of the rental properties on December 20, 2002. Cathedral City Redevelopment Agency v. Stickles, No. E036456, 35 ELR 20256 (Cal. App. 4th Dist. Dec. 19, 2005) (26 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 amended the NESHAP for miscellaneous coating manufacturing to specify that certain raw material formulation data may be used to demonstrate compliance with the weight percent hazardous air pollutant limit. 70 FR 75923 (12/21/05).

  • EPA amended the NESHAP for hazardous waste combustors to revise the compliance date for new or revised bag leak detection system requirements for Phase I sources. 70 FR 75042 (12/19/05).

  • EPA finalized permanent exemptions from the Title V operating permit program for five categories of nonmajor sources that are subject to NESHAPs: dry cleaners; halogenated solvent degreasers; chrome electroplaters; ethylene oxide sterilizers; and secondary aluminum smelters. 70 FR 75319 (12/19/05).

  • EPA exempted refiners, importers, and blenders of gasoline subject to California's Phase 3 reformulated gasoline regulations from certain enforcement provisions in the federal reformulated gasoline regulations. 70 FR 75913 (12/21/05).

  • EPA finalized the federal on-board diagnostic system requirements for the control of air pollution from new motor vehicles and new motor vehicle engines. 70 FR 75403 (12/20/05).

  • EPA removed the compound methyl ethyl ketone from the list of hazardous air pollutants under CAA §112. 70 FR 75047 (12/19/05).

  • EPA proposed to revise its standards to limit emissions of perchloroethylene from existing and new dry cleaning facilities. 70 FR 75883 (12/21/05).

  • EPA proposed to amend the NESHAP for hazardous waste combustors to revise the compliance date for new or revised bag leak detection system requirements for Phase I sources; see above for direct final rule. 70 FR 75096 (12/19/05).

  • EPA proposed to revise the emissions limits in the new source performance standards and emission guidelines for large municipal waste combustion units. 70 FR 75347 (12/19/05).

  • EPA announced the issuance of a PSD permit to the Great Lakes Band Corporate Commission to authorize changes in the method of operation of the three existing diesel-fired engine-generator sets at the Grand Casino Resort and Hotel in Mille Lacs County, Minnesota. 70 FR 76051 (12/22/05).

  • EPA entered into a proposed administrative settlement under the CAA that requires the Agency to either deny or propose to grant a petition filed by Environmental Defense asking that the Agency add diesel engine exhaust to the list of hazardous air pollutants contained in CAA §112(b)(3). 70 FR 75797 (12/21/05).

  • SIP Approvals: Iowa (general rulemaking), 70 FR 75399 (12/20/05). Virginia (redesignation; ozone) 70 FR 76165 (12/23/05).

  • SIP Proposals: Iowa (general rulemaking; see above for direct final rule), 70 FR 75440 (12/20/05). Missouri (inadequacy of lead implementation plan; Jefferson County area), 70 FR 75093 (12/19/05).

HAZARDOUS AND SOLID WASTE:



  • EPA entered into a settlement for the reimbursement of past response costs under CERCLA §122(h)(1) concerning the A&H Sales Superfund Site located in Tampa, Florida. 70 FR 76284 (12/23/05).

  • EPA granted a petition submitted by Saturn Corporation in Spring Hill, Tennessee, to exclude (or delist) a certain hazardous waste from the lists of hazardous wastes. 70 FR 76168 (12/23/05).

  • EPA proposed to revise the codification authorizing the Idaho state hazardous waste management program. 70 FR 75098 (12/19/05).

NANOTECHNOLOGY:



  • EPA announced the availability of the external review draft of its nanotechnology white paper. 70 FR 75812 (12/21/05).

PESTICIDES:



  • EPA announced the availability of the risk assessments and related documents for the imidazolinone pesticide imazapyr. 70 FR 75799 (12/21/05).

PUBLIC LAND:



  • The Forest Service and FWS proposed to establish regulations for fishing seasons, harvest limits, methods, and means related to taking of fish and shellfish for subsistence uses on public lands in Alaska during the 2007-08 regulatory year. 70 FR 76010 (12/22/05).

  • FWS announced the availability of the final comprehensive conservation plan for the North Mississippi National Wildlife Refuge complex. 70 FR 75830 (12/21/05).

  • BLM announced the availability of a draft EIS on the effects of three multiple use decisions on sensitive avian species in Elko County, Nevada. 70 FR 75830 (12/21/05).

  • FWS announced the availability of the final comprehensive conservation plan for the Bon Secour National Wildlife Refuge in Alabama. 70 FR 75471 (12/20/05).

TOXIC SUBSTANCES:



  • EPA amended the TSCA §8(a) inventory update reporting regulations. 70 FR 75059 (12/19/05).

WATER:



  • EPA announced the availability of a draft policy regarding NPDES permit requirements for peak wet weather discharges from POTW treatment plants serving separate sanitary sewer collection systems. 70 FR 76013 (12/22/05).

  • EPA proposed to extend certain compliance dates in the NPDES permitting requirements and effluent limitations guidelines and standards for concentrated animal feeding operations. 70 FR 75771 (12/21/05).

WILDLIFE:



  • FWS proposed to designate approximately 633 river miles of critical habitat for two fish species, the spikedace and the loach minnow, in Arizona and New Mexico. 70 FR 75545 (12/20/05).

  • FWS announced a 12-month finding on a petition to list the spider Cicurina cueva under the ESA; the Service found that this spider is not a distinct species and is therefore not a listable entity. 70 FR 75071 (12/19/05).

  • FWS announced that a draft comprehensive conservation plan and EA for the Maxwell National Wildlife Refuge is available for review and comment. 70 FR 76323 (12/23/05).

  • FWS and NOAA Fisheries announced the availability of the final recovery plan for the Gulf of Maine distinct population segment of Atlantic salmon. 70 FR 75473 (12/20/05).

  • NOAA Fisheries implemented a new rule to further reduce the incidental catch of seabirds in the Hawaii-based longline fishery. 70 FR 75075 (12/19/05).

DOJ NOTICES OF SETTLEMENT:



  • United States v. Airco Co., No. 05-1671 (W.D. Pa. Dec. 2, 2005). Settling CERCLA defendants must pay a total of approximately $412,000 in past and future response costs incurred at the Breslube Penn Superfund site in Coraopolis, Pennsylvania. 70 FR 76077 (12/22/05).

  • United States v. Atlas Tack Corp., Nos. 03-CV-11601 WGY et al. (D. Mass. Dec. 12, 2005). Settling CERCLA defendants must pay a total of $2,335,000 plus 95% of the net proceeds from the sale of their property at the Atlas Tack Corporation Superfund site in Fairhaven, Massachusetts, to resolve claims relating to the site; additionally, the U.S. Army Corps of Engineers must pay $50,000 and the Town of Fairhaven must pay to the United States unpaid real estate taxes it collects with respect to the property that are in excess of $80,000. 70 FR 76078 (12/22/05).

  • United States v. Chemclene Corp. Inc., Nos. 99-3715 et al. (E.D. Pa. Dec. 2, 2005). Settling CERCLA defendants must pay a total of $1,417,200 in response costs incurred at the Malvern Superfund site in Chester County, Pennsylvania. 70 FR 76078 (12/22/05).

  • United States v. Holly Corp., No. 1:05-cv-00503 (LMB) (D. Idaho Dec. 9, 2005). A settling CERCLA defendant must pay $450,000 in past response costs incurred at the Cinnabar Mine site located near Yellow Pine, Idaho, in the Payette National Forest. 70 FR 76078 (12/22/05).

  • United States v. Jimenez Landscaping, No. 04 C 2806 (N.D. Ill. Dec. 14, 2005). Settling CWA defendants must pay a civil penalty, must permit the U.S. Army Corps of Engineers to conduct a wetland delineation of the subject site, and must hire a professional surveyor to survey the wetland boundary on their property within 14 days of completion of the wetland delineation to resolve claims of filling wetlands without a permit; the impacted wetlands have been restored. 70 FR 76079 (12/22/05).

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


THE CONGRESS

CHAMBER ACTION:



  • S. 435 (Lower Farmington River and Salmon Brook Wild and Scenic River Study Act), which would amend the Wild and Scenic Rivers Act to designate a segment of the Farmington River and Salmon Brook in the state of Connecticut for study for potential addition to the National Wild and Scenic Rivers System, was passed by the Senate. 151 Cong. Rec. S13934 (daily ed. Dec. 16, 2005).

  • S. 1096 (Musconetcong Wild and Scenic Rivers Act), which would amend the Wild and Scenic Rivers Act to designate portions of the Musconetcong River in the state of New Jersey as a component of the National Wild and Scenic Rivers System, was passed by the Senate. 151 Cong. Rec. S13935 (daily ed. Dec. 16, 2005).

  • S. 1165 (James Campbell National Wildlife Refuge Expansion Act), which would provide for the expansion of the James Campbell National Wildlife Refuge, Honolulu County, Hawaii, was passed by the Senate. 151 Cong. Rec. S13938-39 (daily ed. Dec. 16, 2005).

  • S. 1310 (Delaware Water Gap National Recreation Area Improvement Act), which would authorize the Secretary of the Interior to allow the Columbia Gas Transmission Corporation to increase the diameter of a natural gas pipeline located in the Delaware Water Gap National Recreation Area, to allow certain commercial vehicles to continue to use Route 209 within Delaware Water Gap National Recreation Area, and to extend the termination date of the National Park System Advisory Board to January 1, 2007, was passed by the Senate. 151 Cong. Rec. S13935-36 (daily ed. Dec. 16, 2005).

  • S. 1390 (Coral Reef Conservation Amendments Act), which would reauthorize the Coral Reef Conservation Act of 2000, was passed by the Senate. 151 Cong. Rec. S13684-86 (daily ed. Dec. 15, 2005).

  • S. 1496 (Electronic Duck Stamp Act), which would direct the Secretary of the Interior to conduct a pilot program under which up to 15 states may issue electronic federal migratory bird hunting stamps, was passed by the Senate. 151 Cong. Rec. S13939-41 (daily ed. Dec. 16, 2005).

  • S. 1578 (Upper Colorado and San Juan River Basin Endangered Fish Recovery Programs Reauthorization Act), which would reauthorize the Upper Colorado and San Juan River Basin endangered fish recovery implementation programs, was passed by the Senate. 151 Cong. Rec. S13936-37 (daily ed. Dec. 16, 2005).

  • S. 1869 (Coastal Barrier Resources Reauthorization Act), which would reauthorize the Coastal Barrier Resources Act, was passed by the Senate. 151 Cong. Rec. S13938 (daily ed. Dec. 16, 2005).

  • H.R. 797 (Native American Housing Enhancement Act of 2005), which would amend the Native American Housing Assistance and Self-Determination Act of 1996 and other Acts to improve housing programs for Indians, was passed by the House. 151 Cong. Rec. H12187 (daily ed. Dec. 18, 2005).

  • H.R. 3963 (Federal Water Pollution Control Act Amendment), which would amend the Federal Water Pollution Control Act to extend the authorization of appropriations for Long Island Sound, was passed by the Senate, clearing the measure for the President. 151 Cong. Rec. S13937 (daily ed. Dec. 16, 2005).

  • H.R. 4195 (Southern Oregon Bureau of Reclamation Repayment Act), which would authorize early repayment of obligations to the Bureau of Reclamation within Rogue River Valley Irrigation District or within Medford Irrigation District, was passed by the Senate, clearing the measure for the President. 151 Cong. Rec. S13937 (daily ed. Dec. 16, 2005).

BILLS INTRODUCED:



  • S. 2106 (Feinstein, D-Cal.) (Reclamation Wastewater and Groundwater Study and Facilities Act) would amend the Reclamation Wastewater and Groundwater Study and Facilities Act to authorize the Secretary of the Interior to participate in the Prado Basin Natural Treatment System Project, authorize the Secretary to carry out a program to assist agencies in projects to construct regional brine lines in California, and authorize the Secretary to participate in the Lower Chino Dairy Area desalination demonstration and reclamation project. 151 Cong. Rec. S13659 (daily ed. Dec. 15, 2005). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 2110 (Crapo, R-Idaho) (ESA) would amend the ESA to enhance the role of states in the recovery of endangered species and threatened species, implement a species conservation recovery system, to establish certain recovery programs, and provide federal financial assistance and a system of incentives to promote the recovery of species. 151 Cong. Rec. S13659 (daily ed. Dec. 15, 2005). The bill was referred to the Committee on Finance.

  • S. 2114 (Talent, R-Mo.) (national heritage corridor) would establish the Confluence National Heritage Corridor in the states of Missouri and Illinois. 151 Cong. Rec. S13659 (daily ed. Dec. 15, 2005). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 2127 (Allen, R-Va.) (national wildlife refuge) would redesignate the Mason Neck National Wildlife Refuge in the state of Virginia as the "Elizabeth Hartwell Mason Neck National Wildlife Refuge." 151 Cong. Rec. S13786 (daily ed. Dec. 16, 2005). The bill was referred to the Committee on Environment and Public Works.

  • S. 2148 (Sessions, R-Ala.) (national heritage corridor) would direct the Secretary of the Interior to study the suitability and feasibility of establishing the Chattahoochee Trace National Heritage Corridor in Alabama and Georgia. 151 Cong. Rec. S14185 (daily ed. Dec. 20, 2005). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 2150 (Wyden, D-Or.) (land conveyance) would direct the Secretary of the Interior to convey certain BLM land to the city of Eugene, Oregon. 151 Cong. Rec. S14185 (daily ed. Dec. 20, 2005). The bill was referred to the Committee on Energy and Natural Resources.

  • H.R. 4559 (Green, D-Tex.) (national forests) would provide for the conveyance of certain National Forest System land to the towns of Laona and Wabeno, Wisconsin, and authorize the Secretary of Agriculture to convey certain isolated parcels of National Forest System land in Florence and Langlade Counties, Wisconsin. 151 Cong. Rec. H11878 (daily ed. Dec. 15, 2005). The bill was referred to the Committee on Agriculture.

  • H.R. 4560 (Duncan, R-Tenn.) (Federal Water Pollution Control Act) would amend the Federal Water Pollution Control Act to authorize appropriations for state water pollution control revolving funds. 151 Cong. Rec. H11878 (daily ed. Dec. 15, 2005). The bill was referred to the Committee on Transportation and Infrastructure and the Committees on Resources.

  • H.R. 4581 (Akin, R-Mo.) (National Trails System Act) would amend the National Trails System Act relating to the statute of limitations that applies to certain claims. 151 Cong. Rec. H12048 (daily ed. Dec. 16, 2005). The bill was referred to the Committee on Resources and the Committee on the Judiciary.

  • H.R. 4587 (DeGette, D-Colo.) (National Wilderness Preservation System) would designate certain lands in the state of Colorado as components of the National Wilderness Preservation System. 151 Cong. Rec. H12048 (daily ed. Dec. 16, 2005). The bill was referred to the Committee on Resources.

  • H.R. 4588 (Doolittle, R-Cal.) (Water Resources Research Act) would reauthorize grants for and require applied water supply research regarding the water resources research and technology institutes established under the Water Resources Research Act of 1984. 151 Cong. Rec. H12048 (daily ed. Dec. 16, 2005). The bill was referred to the Committee on Resources.

  • H.R. 4591 (Gillmor, R-Ohio) (international conventions) would implement the Stockholm Convention on Persistent Organic Pollutants, the Protocol on Persistent Organic Pollutants to the Convention on Long-Range Transboundary Air Pollution, and the Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade. 151 Cong. Rec. H12048 (daily ed. Dec. 16, 2005). The bill was referred to the Committee on Energy and Commerce.

  • H.R. 4623 (Kennedy, R-Minn.) (Energy Policy Act) would repeal tax subsidies for oil and gas enacted by the Energy Policy Act of 2005 and to use the proceeds to double certain alternative energy incentives provided for in such Act. 151 Cong. Rec. H12167 (daily ed. Dec. 17, 2005). The bill was referred to the Committee on Ways and Means.

  • H.R. 4637 (Gillmor, R-Ohio) (Energy Policy Act) would make certain technical corrections in amendments made by the Energy Policy Act of 2005. 151 Cong. Rec. H12288 (Daily ed. Dec. 18, 2005). The bill was referred to the Committee on Energy and Commerce.

  • H.R. 4638 (Hall, R-Tex.) (natural gas) would increase domestic supplies of natural gas through an accelerated program of development and deployment of new technologies. 151 Cong. Rec. H12288 (Daily ed. Dec. 18, 2005). The bill was referred to the Committee on Science and to the Committee on Resources.

  • H.R. 4640 (Gerlach, R-Pa.) (alternative fuels) would reduce the nation's oil dependence and enhance the nation's ability to produce alternative fuels. 151 Cong. Rec. H12288 (Daily ed. Dec. 18, 2005). The bill was referred to the Committee on Energy and Commerce, the Committee on Ways and Means, and the Committee on Transportation and Infrastructure.
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
Iowa
New Jersey
Texas

Arkansas
Maine
North Carolina
Utah

California
Massachusetts
Oklahoma
Virginia

Delaware
Missouri
South Dakota
West Virginia

Florida
Montana
Tennessee
 

ALABAMA


General:



  • The Alabama Environmental Management Commission is considering proposed amendments to Division 2 of the ADEM Administrative Code, Rule No. 335-2-3-.04, Meetings; Rule No. 335-2-3-.05, Agenda; Rule No. 335-2-3-.07, Motions; and Rule No. 335-2-3-.08, Voting. A new paragraph is proposed to be added to 335-2-3-.04, specifying that proceedings of the Commission and its Committees will be governed by Robert's Rules of Order, latest revised edition, except where otherwise provided in the Commission's rules or under state law.  The proposed deletion of 335-2-3-.05(5) and the repeal of Rules 335-2-3-.07 and 335-2-3-.08 would excise duplications of Robert's Rules of Order. Written comments are due February 3, 2006. A public hearing will be held February 3, 2006. See http://www.adem.state.al.us/PublicNotice/Dec/12Div2.htm

ARKANSAS


Water:



  • The Arkansas Pollution Control and Ecology Commission will hold a public hearing at Dell, Arkansas, on January 30, 2006, to receive comments on a third-party proposal by Associated Electric Cooperative, Inc., (AECI) to change the Arkansas Water Quality Standards for three streams that will be affected by the wastewater discharge from the AECI electric generating plant under construction in Mississippi County.  AECI proposes to discharge wastewater from the power plant to Ditch No. 27, which flows into Ditch No. 6, which then flows into the Tyronza River. The wastewater consists primarily of cooling tower blowdown, along with filter backwash and low volume waste, comprised of boiler blowdown, wastewater from water treatment, and effluent from floor and yard drains. Written comments are due February 13, 2006. See http://www.adeq.state.ar.us/ftproot/pub/pa/Regulation_Notices/2005-12-15_Notice_of_Proposed_Third-party_Changes_to_Regulation_2.mht

General:




  • The Arkansas Pollution Control and Ecology Commission will hold public hearings at Little Rock, Arkansas, on January 17, 2006, to receive comments on proposed changes to Commission Regulation Nos. 9 and 13. Regulation 9 is the permit fee regulation for most environmental permits issued by the Arkansas Department of Environmental Quality (ADEQ), and Regulation 13 deals with the fee system for the ADEQ's laboratory certification program. The public hearing topics involve the proposed repeal of Regulation 13 and incorporation of most of the provisions of Regulation 13 into Regulation 9. Written comments are due January 31, 2006. See http://www.adeq.state.ar.us/ftproot/pub/pa/Regulation_Notices/2005-12-14_Notice_of_Proposed_Changes_to_Regulations_9_and_13.mht


CALIFORNIA


Toxic Substances:



  • The Office of Environmental Health Hazard Assessments extended the public comment period for the proposal to list (2,4-dichlorphenoxy) acetic acid; 2,4-D n-butyl ester; 2,4-D isopropyl ester; 2,4-D isooctyl ester; propylene gylcol butyl ether ester (of 2,4-D); 2,4-D butoxyethanol ester; and 2,4-D dimethylamine salt as reproductive toxicants to February 2, 2006. See http://oehha.org/prop65/CRNR_notices/admin_listing/intent_to_list/extendpkg5d.html

DELAWARE


Land Use:



FLORIDA


Toxic Substances: 



  • The Department of Environmental Protection announced the initiation of rule development for revisions to Chapter 62-761, F.A.C., Underground Storage Tank Systems. The entire rule will be rewritten to simplify language, update reference standards, and combine sections to eliminate confusion over past deadlines. New proposed concepts include requiring proof of financial responsibility for registration placard issuance, periodic integrity testing of secondary containment, secondary containment for new spill containment devices, release detection standards for bulk product piping, a new registration and updating process for equipment, and new forms for cathodic protection tests and equipment registration. In conjunction with this rulemaking effort, the Department will hold public workshops on January 23 and 24, 2006. See http://tlhora6.dep.state.fl.us/onw/publications/1-wkshp761-12-16-05-INT.pdf and http://tlhora6.dep.state.fl.us/onw/publications/2-wkshp762-12-16-05-INT.pdf

Water:



  • The Department of Environmental Protection announced the continuation of the hearing before the Environmental Regulation Commission to amend Chapter 62-340, F.A.C., "Delineation of the Landward Extent of Wetlands and Surface Waters," to list slash pine and gallberry as facultative plants. A public meeting will be held February 23, 2006. See http://tlhora6.dep.state.fl.us/onw/publications/7-CONTINUATION-12-16-05-INT.pdf

  • The Department of Environmental Protection announced the initiation of rule development to amend Rule 62-302.800 to establish site specific alternative criteria for dissolved oxygen in the lower portion of the St. Johns River. The Department, in consultation with other state and federal agencies, has evaluated the appropriateness of establishing site specific alternative criteria for dissolved oxygen in the marine portion of the lower St. Johns River in Clay, Duval, and St. Johns Counties. Establishment of site specific alternative criteria for dissolved oxygen in the marine portion of the lower St. Johns River must protect the designated use of the water body. See http://tlhora6.dep.state.fl.us/onw/publications/9-NRDLSJRSSAC-12-16-05-INT.pdf

IOWA


Water:



  • The Environmental Protection Commission announced its intention to amend Iowa Administrative Code Chapter 40, "Scope of Division--Definitions--Forms--Rules of Practice"; to rescind Chapter 44, "Drinking Water Revolving Fund," and adopt new Chapter 44, "Drinking Water State Revolving Fund"; to amend Chapter 90, "Scope of Title--Definitions--Forms"; to amend Chapter 91, "Criteria for Rating and Ranking Projects for the Water Pollution Control State Revolving Fund"; to rescind Chapter 92, "State Revolving Fund Loans for Wastewater Treatment and Water Pollution Control," and adopt new Chapter 92, "Clean Water State Revolving Fund"; and to rescind Chapter 93, "Onsite Wastewater Treatment System Assistance Program," and adopt new Chapter 93, "Nonpoint Source Pollution Control Set-Aside Programs." The primary purposes of the proposed amendments are to transfer responsibility for financial analysis and loan processing to the Iowa Finance Authority and to update program rules to reflect new, streamlined processes. Written comments are due January 11, 2006. A public hearing will be held January 11, 2006. See http://www.legis.state.ia.us/Rules/Current/Bulletin/IAB051221.pdf (p. 975)

  • The Environmental Protection Commission announced its intent to amend Chapter 65, "Animal Feeding Operations," of the Iowa Administrative Code. The proposed amendment will establish a list of designated wetlands in a new document that will be available at the State Law Library and via the Internet. The definition of "designated wetland" in Iowa Code subsection 459.102(21) was utilized in determining the wetlands that should be designated. Written comments are due February 1, 2006. Public hearings will be held January 19, 25, 26, and 31, 2006. See http://www.legis.state.ia.us/Rules/Current/Bulletin/IAB051221.pdf (p. 994)

MAINE


Air:



  • The Board of Environmental Protection adopted amendments to Ch. 127, New Motor Vehicle Emission Standards, which incorporate California's greenhouse gas emission (GHG) standards for new motor vehicles commonly referred to as the "Pavley" standards. These climate change emission standards are incorporated into Ch. 127, the California Low Emission Vehicle program for passenger cars, light duty, and medium duty passenger vehicles. The standards will phase in beginning with 2009 model year through 2016, allowing changes to be made as part of the automobile manufacturers' product improvement cycle. The regulation allows significant flexibility for manufacturers to average emissions across their vehicle models, bank excess credits for later use, and trade credits in order to meet the GHG emission standards. Effective December 19, 2005. See http://www.maine.gov/sos/cec/rules/notices/2005/122105.htm

MASSACHUSETTS


Air:



  • The Department of Environmental Protection will hold public hearings on proposed amendments to 310 CMR 7.00: Appendix B, Emission Banking, Trading, and Averaging, and 310 CMR 7.29, Emissions Standards for Power Plants. The goal of the proposed regulations is to reduce, avoid, or sequester emissions of greenhouse gases and to create a crediting process for these projects for purposes of compliance with the applicable provisions of 310 CMR 7.29 (5)(a)5.  Affected facilities are the six largest and oldest electricity-generating facilities in Massachusetts. The hearings will be held on January 17, 18, 19, and 20, 2006, and comments will be accepted. January 30, 2006, is the final deadline for public comment.  

MISSOURI


Wildlife:



  • The Conservation Commission amended 3 CSR 10-4.135, Transportation; 3 CSR 10-4.136, Giving Away Wildlife; 3 CSR 10-4.137, Wildlife Identification; 3 CSR 10-4.140, Possession, Storage, and Processing; 3 CSR 10-4.145, Preparing and Serving Wildlife; 3 CSR 10-6.535, Trout; 3 CSR 10-12.115, Bullfrogs and Green Frogs; and 3 CSR 10-12.125, Hunting and Trapping. See http://www.sos.mo.gov/adrules/moreg/current/2005/v30n24/v30n24c.pdf (pp. 2574 and 2575)

MONTANA


Air:



  • The Department of Environmental Quality proposed to amend ARM 17.8.504, 505, 744, and 1204 and to adopt new rules I-IX, pertaining to establishing a registration system for certain facilities that presently require an air quality permit. A public hearing will be held January 23, 2006. Written comments are due January 30, 2006. See http://deq.mt.gov/dir/legal/Notices/17-238pro.pdf

Hazardous & Solid Wastes:



  • The Department of Environmental Quality proposed to amend ARM 17.50.201 and 202 and to adopt new rule I pertaining to motor vehicle recycling and disposal and motor vehicle wrecking facility licenses. A public hearing will be held February 16, 2006. Written comments are due February 23, 2006. See http://deq.mt.gov/dir/legal/Notices/17-237pro.pdf

General:



  • The Department of Environmental Quality will hold a public hearing on the proposed amendment, repeal, and adoption of regulations pertaining to air quality, asbestos, hazardous waste, junk vehicle, major facility siting, metal mine reclamation, opencut mining, public water supply, septic pumpers, solid wastes, strip and underground mine reclamation, subdivisions, underground storage tanks, and water quality. The Department proposed to amend ARM 17.24.132, 17.24.133, 17.24.134, 17.24.136, 17.24.1206, 17.24.1211, 17.24.1218, 17.24.1219, 17.24.1220, and 17.56.121, and to repeal ARM 17.24.1212, pertaining to revising enforcement procedures under the Montana Strip and Underground Mine Reclamation Act, the Metal Mine Reclamation Laws, and the Opencut Mining Act. It also proposed to amend ARM 17.30.2001 and 17.30.2003, to repeal of 17.24.1212, 17.30.2005, 17.30.2006, and 17.38.606, and to adoption of new rules I through VII, pertaining to providing uniform factors for determining penalties. A public hearing will be held January 31, 2006. Written comments are due January 7, 2006. See http://deq.mt.gov/dir/legal/Notices/17-239pro.pdf

NEW JERSEY


Air:



  • The Department of Environmental Protection proposed new rules and amendments at N.J.A.C. 7:27-8 and N.J.A.C. 7:27-22, which concern fees, electronic submission of applications, and other miscellaneous issues regarding sources of air pollution. The Department is also proposing related amendments to N.J.A.C. 7:27-20, Used Oil Combustion. The proposal constitutes proposed revisions to the state's ozone SIP, a copy of which was forwarded to U.S. EPA. A public hearing is scheduled for January 23, 2006. Written comments are due February 17, 2006. See http://www.nj.gov/dep/rules/notices/121905a.htm

Water:



  • The Department of Environmental Protection proposed new rules at N.J.A.C. 7:14A-11 and 14, Monitoring and Pollutant Minimization Plans for Polychlorinated Biphenyls (PCBs). The proposed new rules will require major facilities discharging to PCB-impaired waters to monitor their discharge for PCBs using a very sensitive method capable of measuring PCBs at levels that previous methods were unable to detect. Based on the results of the monitoring, some of those facilities will be required to develop and implement a PCB Pollutant Minimization Plan (PMP). Since PCBs are no longer used in industrial processes, most pollutant loading will likely be from contaminated areas around the dischargers' facilities, either from old leaky equipment or from production of PCBs as an unwanted byproduct. A public hearing will be held January 30, 2006. Written comments are due February 17, 2006. See http://www.nj.gov/dep/rules/notices/121905b.htm

  • The Department of Environmental Protection is proposing a readoption with amendments of the Highlands Water Protection and Planning Act rules, N.J.A.C. 7:38. A public hearing will be held January 25, 2006. Written comments are due February 17, 2006. See http://www.nj.gov/dep/rules/notices/121905.htm

NORTH CAROLINA


Water:



  • The Water Treatment Facility Operators Certification Board intends to amend 15A NCAC 18D.0105, .0201-.0202, .0301, .0309, and .0701 and to repeal 15A NCAC 18D.0302 and .0405. The purpose of this rulemaking is to update the rule for water treatment facility operators based on changes in technology and responsibilities. A public hearing will be held January 12, 2006. Written comments are due February 13, 2006. See http://www.ncoah.com/rules/register/Volume20Issue12.pdf (p. 990).

Wildlife:



  • The Wildlife Resources Commission intends to amend 15A NCAC 10F.0336, .0355, and .0359. The purpose of this action is to add no wake zones to public waters in Cherokee, Northampton, and Perquimans counties. A public hearing will be held January 30, 2006. Written comments are due February 14, 2006. See http://www.ncoah.com/rules/register/Volume20Issue12.pdf

OKLAHOMA


Air:



  • The Department of Environmental Quality is proposing amendments to Chapter 100, Subchapter 8, Permits for Part 70 Sources. The Department proposes to revise Parts 7 and 9 to incorporate U.S. EPA's revisions to the new source review (NSR) permitting program. These proposed amendments include revisions to the method of determining whether a modification to an NSR source is a major modification and includes Plantwide Applicability Limitations exclusions. The Department also proposes to update and clarify Parts 7 and 9. This will include federal revisions not previously incorporated by the Department. Updates to a few definitions in OAC 252:100-1-3 are also being proposed. The Department proposes to revise the definition of "insignificant activities" in Section 8-2 of Subchapter 8 due to the recent revision to Subchapter 41 and the promulgation of new Subchapter 42. The Department is proposing a new Part 11, which incorporates the federal best available retrofit technology requirements into Chapter 100. A public hearing will be held January 19, 2006. Written comments are due January 19, 2006. See http://www.oar.state.ok.us/register/Volume-23_Issue-07.htm#a24332

Water:



  • The Department of Environmental Quality proposed amendments to Chapter 710, Waterworks and Wastewater Works Operator Certification, to reflect language clarifications and corrections of typographical errors and to add a new provision that provides clarification for plumbing contractors. Comments are due January 20, 2006. A public hearing will be held January 20, 2006. See http://www.oar.state.ok.us/register/Volume-23_Issue-07.htm#a24332

General:



  • The Department of Environmental Quality proposed amendments to Chapter 300, Laboratory Accreditation. Written comments are due January 17, 2006. A public hearing will be held January 19, 2006. See http://www.oar.state.ok.us/register/Volume-23_Issue-07.htm#a24332

  • The Department of Environmental Quality proposed amendments to Chapter 305, Laboratory Services. The proposed rule changes are necessitated by increased costs for providing analytical services to public water supplies, other governmental entities, and the programs of the Department. Written comments are due January 17, 2006. A public hearing will be held January 19, 2006. See http://www.oar.state.ok.us/register/Volume-23_Issue-07.htm#a24332

SOUTH DAKOTA


Wildlife:



  • The Department of Game, Fish, and Parks intends to amend the Spring Wild Turkey Hunting Season regulations, its list of endangered and threatened species, its regulations on turtles, and its regulations on waters open to taking of bait and biological specimens. The general authority for these rules is SDCL 34A-8-3, 41-2-18, and 41-11-5. Written comments are due January 4, 2006. A public hearing will be held January 5, 2006. See http://legis.state.sd.us/rules/register/12192005.pdf

TENNESSEE


Air:



  •  

    There will be a public hearing before the Technical Secretary of the Tennessee Air Pollution Control Board to consider the promulgation of an amendment to the Tennessee Air Pollution Control Regulations and the SIP pursuant to Tennessee Code Annotated, Section 68-201-105. The hearing will be held January 19, 2006. Written comments are due the same day. See http://www.state.tn.us/environment/apc/apcppo/PHjan192006.pdf


TEXAS


Air:



  • The Texas Commission on Environmental Quality will conduct a public hearing to receive testimony regarding proposed amendments to §§106.2, 106.4, 106.6, 106.8, and 106.50, the repeal of §§106.261 - 106.263, and new §§106.261, 106.263, 106.268, and 106.269 of Chapter 106, Permits by Rule; amendments to §§116.10, 116.111, 116.116, 116.311, 116.614, 116.615, and 116.710 of Chapter 116, Control of Air Pollution by Permits for New Construction or Modification; and corresponding revisions to the SIP for §§106.2, 106.4, 106.6, 106.8, 116.10, 116.111, 116.116, 116.311, 116.614, 116.615, and 116.710. In addition, the Commission is proposing that §106.50 be removed from consideration as a proposed revision to the SIP. Although not approved by U.S. EPA as a revision to the SIP, the Commission submitted a previous version of §106.50, effective October 20, 2002, as a revision to the SIP. The proposed rulemaking would revise Chapter 106 to reduce the emission limitations for nitrogen oxide, hazardous air pollutants, and carbon monoxide; define how emission increases are quantified at facilities using best available control technology; clarify the maximum amount of emissions that can be authorized without public notice; prohibit relaxation of emission controls; limit permit by rule (PBR) emissions in Air Pollutant Watch List areas; clarify that non-routine, non-normal emissions are not authorized unless specifically stated in an applicable PBR; eliminate conflicting requirements; and include PBRs for maintenance startup and shutdown (MSS) and certain quantifiable and anticipated emissions. The proposed rulemaking would also revise Chapter 116 to facilitate the inclusion of MSS emissions in standard permits and new source review permits. A public hearing will be held January 31, 2006. Written comments are due February 3, 2006. See http://www.tceq.state.tx.us/assets/public/legal/rules/hearings/05016106_phn.pdf

  • The Texas Commission on Environmental Quality will conduct a public hearing to receive comments concerning revisions to 30 TAC Chapter 114, Control of Air Pollution from Motor Vehicles, Subchapter C, Division 2, Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program, on January 24, 2006. Written comments are due January 30, 2006. See http://www.tceq.state.tx.us/assets/public/legal/rules/hearings/05073114_phn.pdf

  • The Texas Commission on Environmental Quality adopted proposed rules HB 2129: Emissions Events. This rulemaking will modify and add definitions and will revise reporting requirements, demonstration criteria, and notice requirements. Effective January 5, 2006. See http://www.tceq.state.tx.us/assets/public/legal/rules/rule_lib/adoptions/05024101_adoCLEAN.pdf

  • The Texas Commission on Environmental Quality adopted proposed rules on utilities reflecting SB 425 and HB 2876: Certificates of Convenience and Necessity. This rulemaking will implement changes to 30 TAC Chapter 291, Subchapter A, General Provisions, and Subchapter G, Certificates of Convenience and Necessity (CCN) resulting from legislative requirements, and address CCN concerns discussed at Commission Work Session and with stakeholders. Effective January 1, 2006. See http://www.tceq.state.tx.us/assets/public/legal/rules/rule_lib/adoptions/05036291_adoCLEAN.pdf

Water:



UTAH


Wildlife:



  • The Division of Wildlife Resources amended R657-5, Taking Big Game, to add consistency and clarity and to better conform to rulewriting standards. Written comments are due January 17, 2006. See http://www.rules.utah.gov/publicat/bulletin/2005/20051215/28379.htm

  • The Division of Wildlife Resources amended R657-17, Lifetime Hunting and Fishing License, to simplify the rule so it is easier for customers to read and understand. Changes were also made to reflect the user-friendly option of submitting Lifetime License Questionnaires using the Division of Wildlife Resource's website. Comments are due January 17, 2006. See http://www.rules.utah.gov/publicat/bulletin/2005/20051215/28382.htm

  • The Division of Wildlife Resources amended R657-23, Utah Hunter Education Program, to remove the provision that the Division will issue a state of Utah hunter education card (Blue Card) free of charge to individuals who have completed an approved hunter education course in another state, province, or country and has since become a Utah resident. This change was prompted by a desire for the Division to treat transfer hunter education cards similar to how other states handle them. Written comments are due January 17, 2006. See http://www.rules.utah.gov/publicat/bulletin/2005/20051215/28377.htm

  • The Division of Wildlife Resources amended R657-38, Dedicated Hunter Program. Written comments are due January 17, 2006. See http://www.rules.utah.gov/publicat/bulletin/2005/20051215/28371.htm

  • The Division of Wildlife Resources amended R657-42, Fees, Exchanges, Surrenders, Refunds, and Reallocation of Wildlife Documents, to make the rule more customer friendly. Sections R657-42-3 and R657-42-4 are being amended to allow participants in the Dedicated Hunter Program to more easily exchange and surrender Dedicated Hunter Permits. Written comments are due January 17, 2006. See http://www.rules.utah.gov/publicat/bulletin/2005/20051215/28376.htm

VIRGINIA


Water:



  • The Department of Environmental Quality will hold a public meeting on the development of a TMDL to address impairments of Laurel Fork in Pocahontas and Tazewell County on February 13, 2006. The public notice will appear in the Virginia Register of Regulations on January 9, 2006. The public comment period begins on February 13, 2006, and ends on March 7, 2006. See http://www.townhall.state.va.us/meeting/ViewMeeting.cfm?Meeting_ID=6753

  • The Department of Environmental Quality will hold a public meeting on the development of a TMDL to address impairments of Knox Creek and Pawpaw Creek in Buchanan County on February 6, 2006. The public notice appears in the Virginia Register of Regulations on January 9, 2006. The public comment period begins on February 6, 2006, and ends on March 7, 2006. See http://www.townhall.state.va.us/meeting/ViewMeeting.cfm?Meeting_ID=6757

  • The Department of Environmental Quality will hold a public meeting on the development of a TMDL to address bacteria impairments of Chestnut Creek in Galax and in Carroll and Grayson Counties on January 30, 2006. The public notice appears in the Virginia Register of Regulations on January 9, 2006. The public comment period begins on January 30, 2006, and ends on February 28, 2006. See http://www.townhall.state.va.us/meeting/ViewMeeting.cfm?Meeting_ID=6752

  • The Department of Environmental Quality will hold a public meeting on the development of a TMDL to address impairments of the Staunton (Roanoke) River watershed located in Campbell, Charlotte, Halifax, and Pittsylvania Counties on January 23, 2006. The public notice appears in the Virginia Register of Regulations on January 9, 2006. The public comment period begins on January 23, 2006, and closes on February 22, 2006. See http://www.townhall.state.va.us/meeting/ViewMeeting.cfm?Meeting_ID=6766

  • The Department of Environmental Quality will hold a public meeting on the development of a TMDL to address impairments of the North Fork Holston River in Smyth and Washington Counties on January 23, 2006. The public notice appears in the Virginia Register of Regulations on January 9, 2006. The public comment period begins on January 23, 2006, and ends on February 21, 2006. See http://www.townhall.state.va.us/meeting/ViewMeeting.cfm?Meeting_ID=6751

  • The Department of Environmental Quality will hold a public meeting on the development of a TMDL to address impairments of Stock Creek located in Scott County on January 17. 2006. The public notice appears in the Virginia Register of Regulations on January 9, 2006. The public comment period begins on January 17, 2006, and ends on February 15, 2006. See http://www.townhall.state.va.us/meeting/ViewMeeting.cfm?Meeting_ID=6754

WEST VIRGINIA


Water:



  • The Department of Environmental Protection has extended the antidegradation comment period for streams proposed for Tier 2.5 protection. Comments are due December 31, 2005. See www.wvdep.org/antideg

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


INTERNATIONAL

WORLD BANK CALLS FOR BALANCE OF DEVELOPMENT AND ENVIRONMENT IN AMAZON:



  • The new president of the World Bank intends to support Amazonian projects that balance the goals of economic development and environmental protection. After an extensive tour of Brazil, the president spoke in Sau Paulo about the international community's interest in supporting the region's vision for development and conservation. He called desires to see the Amazon remain pristine "unrealistic," complementing another World Bank official's statement that it is better to work with people who are deforesting the region to limit the environmental impacts of their work. See http://www.tmcnet.com/usubmit/-world-bank-wants-development-environment-balance-amazon-/2005/dec/1231871.htm

JAPANESE GOVERNMENT AND LANDOWNERS DISAGREE ON FOREST MANAGEMENT:



  • The Japanese government is battling private landowners in a northern region of the country over forest protection. The Okinawa region is home to multiple World Heritage Sites, but these sites are being threatened by landowners' decisions to clearcut private forests throughout the region. The government is attempting to register more World Heritage Sites in the area and is discussing plans to encourage landowner environmental education and cooperation. See http://www.japanupdate.com/en/?id=6685

EUROPEAN COMMISSION PROPOSES RECYCLING STRATEGY:



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


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