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Weekly Update Volume 36, Issue 1

01/09/2006

LITIGATION

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

PESTICIDES, PREEMPTION:

The Seventh Circuit held that a Wisconsin state statute that forbids a city or county to regulate pesticides does not preempt a local ordinance forbidding the sale or use of phosphorous-containing fertilizers. Producers and suppliers of "weed and feed" lawn care products, which contain both an herbicide and a phosphorous-containing fertilizer, argued that their product was a pesticide and, thus, could only be regulated by the state. State law, however, provides that weed and feed products are both a pesticide, which only the state can regulate, and a fertilizer, which local governments can regulate. This dual definition is necessary to avoid a regulatory loophole that would allow manufacturers to mix their pesticides with fertilizers to avoid pesticide regulation or to mix their fertilizers with pesticides to avoid fertilizer regulation. And although the weed and feed producers and suppliers complain that they have to reconstitute their product in the county at issue, they have presented no evidence that such reconstitution is infeasible or even that it is costly. CropLife America, Inc. v. City of Madison, No. 05-3033, 36 ELR 20001 (7th Cir. Dec. 23, 2005) (6 pp.).

SOLID WASTE, CONSTITUTIONAL LAW:

The Eighth Circuit held that a solid waste management district regulation requiring solid waste to be disposed at either in-district or out-of-state landfills, unless otherwise authorized, does not violate the U.S. or Arkansas Constitutions. The regulation does not violate the Commerce Clause because it is not discriminatory and any burden it places on interstate commerce is not clearly excessive in relation to the putative local benefits. Nor does the regulation violate the anti-monopoly provision of the Arkansas Constitution because even if a de facto monopoly exists, it is a necessary exercise of the state's police powers. In addition, the district did not tortiously interfere with a landfill operator's business relationships by passing the regulation, and there is no evidence that the District's actions were improper. IESI AR Corp. v. Northwest Arkansas Regional Solid Waste Management District, No. 05-1299, 36 ELR 20004 (8th Cir. Jan. 5, 2006) (10 pp.).

CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA), PRIVATE RESIDENCES:

A California appellate court held that a municipality may not lawfully require the owner of a private single-family residence who proposes to modify a portion of the interior of his residence, in an area not visible to the general public, to undergo a review of the proposed project pursuant to CEQA. Although a municipality has very broad statutory discretion to grant or deny a required building permit, that authority does not extend to imposing CEQA review upon such an interior home project, even where the residence is listed as a city landmark and is located within an area registered as a state and a national historic district. What an owner plans to do to the private interior of his or her home does not implicate a significant adverse effect on the environment, which is the predicate for requiring CEQA review by a municipality. Martin v. City & County of San Francisco, No. A107768, 36 ELR 20003 (Cal. App. 1st Dist. Dec. 29, 2005) (15 pp.).

DRINKING WATER, CALIFORNIA PROPOSITION 65:

A California appellate court affirmed a trial court ruling that a nonprofit organization failed to demonstrate that the manufacturers and distributors of plumbing parts discharged lead into a source of California drinking water in violation of the Safe Drinking Water and Toxic Enforcement Act, commonly known as Proposition 65. The trial court held that the organization's designated testing method did not meet the requirements of any of the "methods of analysis" permitted by state regulation. While this appeal was pending, that regulation was repealed. On appeal, the organization argued that the trial court misinterpreted the regulation. But the trial court's misinterpretation of the regulation does not warrant reversal. In addition, the repeal of that regulation does not entitle the organization to another trial. As You Sow v. Conbraco Industries, No. A106660, 36 ELR 20005 (Cal. App. 1st Dist. Jan. 4, 2006) (39 pp.).

WILDLIFE, PEAFOWL:

A California appellate court reversed a lower court decision enjoining a city's peafowl management program that allowed a minimum peafowl population on certain city-owned parkland and canyon property. Residents opposing the program argued that the program violated restrictions in deeds by which the municipality obtained title to the parkland and canyon property, and the lower court agreed. But because the peafowl that inhabit the parklands and canyons are feral rather than domesticated creatures, they are not instrumentalities of the municipality. As such, the program does not violate the deed restrictions under which title to the parklands and canyons was taken. Butler v. City of Palos Verdes, No. B177260, 36 ELR 20002 (Cal. App. 2d Dist. Dec. 28, 2005) (14 pp.).

CAA, PSD PERMIT:

The EPA Environmental Appeals Board denied a petition to review a federal PSD permit authorizing the construction of a new 200-megawatt pulverized coal-fired electric power generating facility in Eureka County, Nevada. The petitioner made no showing of clear error, abuse of discretion, or important policy matter warranting Board review of the permit. In re Newmont Nevada Energy Investment, LLC, PSD Appeal No. 05-04, 36 ELR 41298 (EPA EAB Dec. 21, 2005).

HAZARDOUS WASTE, PREHEARING EXCHANGE:

An administrative law judge (ALJ) granted EPA's motion for leave to supplement its prehearing exchange in a case involving RCRA violations at a facility in Ohio. The ALJ found that EPA's proposed supplement may include information that is relevant to one or more penalty factors in the RCRA Penalty Policy. In re Zaclon, Inc., RCRA No. 05-2004-0019, 36 ELR 47865 (EPA ALJ Dec. 20, 2005).

HAZARDOUS WASTE, PENALTIES:

An administrative law judge (ALJ) ordered the owner and operator of an unpermitted hazardous waste storage facility to pay a civil administrative penalty to EPA for being in default for failure to comply with its prehearing exchange orders and for violating the requirements of RCRA subtitle C and the Delaware Regulations Governing Hazardous Waste. The ALJ assessed the owner a civil administrative penalty of $103,378 to be paid in full within 30 days after the default order becomes final. The ALJ also stated that failure to pay the penalty within the prescribed period may result in the additional assessment of interest. In re Marc Mathys d/b/a Green Tree Spray Technologies, LLC, RCRA No. 03-2005-0191, 36 ELR 47866 (ALJ Dec. 16, 2005).

Copyright© 2006, Environmental Law Institute, Washington, D.C. All rights reserved.

THE FEDERAL AGENCIES

Note: Citations below are to the Federal Register (FR).

AIR:

  • EPA promulgated amendments to NESHAPs for industrial, commercial, and institutional boilers and process heaters. 70 FR 76917 (12/28/05).
  • EPA amended the NESHAPs for surface coating of metal cans. 71 FR 1377 (1/6/06).
  • EPA took direct final action to interpret and clarify the 2006 default standard applicable under the Renewable Fuel Program set forth in the Energy Policy Act of 2005. 70 FR 77325 (12/30/05).
  • EPA took final action to extend the global laboratory and analytical use exemption for production and import of class I ozone-depleting substances. 70 FR 77048 (12/29/05).
  • EPA announced its decision to reconsider one additional specific issue in the Clean Air Interstate Rule (CAIR), which relates to the potential impact of a recent court decision on the analysis used in developing CAIR to identify highly cost-effective emission reductions. 70 FR 77101(12/29/05).
  • EPA proposed to amend the NESHAP for surface coating of metal cans (see above for direct final rule). 71 FR 1386 (1/6/06).
  • EPA proposed amendments to consolidate, reduce, and simplify its current emission inventory reporting requirements; to add limited new requirements; and to provide additional flexibility to states in the way they collect and report emissions data. 71 FR 69 (1/3/06).
  • EPA proposed a limited set of regulations for the default standard for 2006 that will provide for collective compliance by refiners, blenders, and importers to meet the 2.78 volume percent requirement of gasoline sold or dispensed set forth in the Energy Policy Act of 2005. 70 FR 77351 (12/30/05).
  • EPA entered into a proposed consent decree under CAA §113(g) requiring the Agency to respond to environmental groups' petition seeking an objection to a CAA Title V permit proposed by the Illinois Environmental Protection Agency for the Onyx Environmental Services' waste incinerator in Sauget, Illinois. 70 FR 76450 (12/27/05).
  • SIP Approvals: Alabama (ozone NAAQS) 70 FR 76694 (12/28/05). California (particulate matter and ammonia emissions) 71 FR 241 (1/4/06); (nitrogen oxides emissions) 71 FR 244 (1/4/06). Indiana (ozone NAAQS) 70 FR 77026 (12/29/05); (ozone NAAQS) 71 FR 541 (1/5/06). Montana (emergency episode avoidance plan) 71 FR 19 (1/3/06). Tennessee (ozone NAAQS) 70 FR 76408 (12/27/05); (vehicle inspection and maintenance program) 71 FR 21 (1/3/06). Virginia (ozone NAAQS ) 71 FR 24 (1/3/06).
  • SIP Proposals: Alabama (ozone NAAQS) 70 FR 76733 (12/28/05). Maine (ozone nonattainment areas) 71 FR 569 (1/05/06). Michigan (affected rules) 70 FR 77113 (12/29/05); (nitrogen oxide exemptions) 71 FR 577 (1/05/06). Montana (emergency episode avoidance plan) 71 FR 85 (1/3/06). Tennessee (ozone NAAQS) 70 FR 76435 (12/27/05); (vehicle inspection and maintenance program; see above for direct final rule) 71 FR 85 (1/3/06). Virginia (nonattainment new source review) 71 FR 890 (1/06/06); (existing ambient air quality standards amendments) 71 FR 892 (1/6/06).

HAZARDOUS & SOLID WASTE:

  • EPA entered into a proposed settlement under CERCLA §122(i) that requires the settling parties to pay $170,000 to the Hazardous Substances Superfund for costs incurred at the PM Northwest site located on the Swinomish Indian Reservation, near Laconnor, Washington. 70 FR 77391 (12/30/05).

MINING:

  • OSM approved an amendment to the West Virginia regulatory program under the SMCRA concerning surety bonds. 70 FR 77321 (12/30/05).
  • OSM proposed to approve an amendment to the Oklahoma regulatory program under SMCRA that concerns subsidence control, impoundments, and revegetation success standards. 70 FR 77348 (12/30/05).

PESTICIDES:

  • EPA announced the availability of its risk assessments and related documents for the pyrethroid pesticide cypermethrin. 70 FR 76818 (12/28/05).
  • EPA announced the availability of its risk assessments and related documents for the pesticide dicamba. 70 FR 76820 (12/28/05).
  • EPA announced the availability of its tolerance reassessment decision for the pesticide imazaquin. 70 FR 76823 (12/28/05).
  • EPA announced the availability of its risk assessments and related documents for the pesticide metaldehyde. 70 FR 77382 (12/30/05).
  • EPA announced the availability of its human health risk assessment and related documents for the pesticide iodomethane. 71 FR 930 (1/6/06).

PUBLIC LAND:

  • NOAA revised the federal consistency regulations under the CZMA. 71 FR 787 (1/5/06).
  • The U.S. Forest Service proposed to amend its 2005 planning rule to allow the Tongass National Forest to revise its land management plan in response to a court order. 71 FR 307 (1/4/06).

TOXIC SUBSTANCES:

  • EPA announced the availability of a petition for exemption from EPCRA and CERCLA reporting requirements for ammonia from poultry operations. 70 FR 76452 (12/27/05).
  • The FDA announced the availability of two draft documents regarding a recommended maximum lead level in candy likely to be consumed frequently by small children. 70 FR 76462 (12/27/05).

WATER:

  • EPA proposed to codify in its regulations changes to the Federal Water Pollution Control Act that would modify the NPDES regulations to provide that certain stormwater discharges from field activities would be exempt from the NPDES permit requirements. 71 FR 894 (1/6/06).
  • EPA promulgated national primary drinking water regulations that require the use of treatment techniques, along with monitoring, reporting, and public notification requirements, for all public water systems that use surface water sources. 71 FR 653 (1/5/06).
  • EPA promulgated the Stage 2 Disinfectants and Disinfection Byproducts Rule, which EPA believes will reduce the potential risks of cancer and reproductive and developmental health effects associated with disinfection byproducts (DBPs) by reducing peak and average levels of DBPs in drinking water supplies. 71 FR 387 (1/4/06).
  • EPA announced that it intends to approve revisions to Wisconsin's approved public water system supervision program. 71 FR 345 (1/4/06).

WILDLIFE:

  • NOAA-Fisheries announced the availability of a proposed Puget Sound Salmon Recovery Plan for the evolutionarily significant unit of Puget Sound chinook salmon. 70 FR 76445 (12/27/05).
  • NMFS issued final determinations to list 10 distinct population segments of West Coast steelhead under the ESA. 71 FR 833 (1/05/06).
  • FWS announced a 90-day finding on a petition to list the northern Mexican gartersnake as threatened or endangered with critical habitat under the ESA. 71 FR 315 (1/4/06).
  • FWS announced that draft comprehensive conservation plans and EAs for select wildlife refuges in Kentucky and Tennessee are available for review and comment. 71 FR 353 (1/4/06).

DOJ NOTICES OF SETTLEMENT:

  • United States v. Cambridge-Lee Industries, LLC, No. 2:05-cv-5482 (WJM) (D.N.J. Nov. 18, 2005). Settling CERCLA defendants must reimburse certain U.S. response costs incurred at the Pittsburgh Metal and Equipment Site in Jersey City, New Jersey. 70 FR 77188 (12/29/05).
  • United States v. Detroit Diesel Corp., No. 98-02548 (D.D.C. 2005). A settling CAA defendant that allegedly used illegal emission-control "defeat devices" on its 1998 and prior heavy-duty diesel engines must pay a $535,000 penalty, must make provisions for the completion of previously initiated recalls, and must obtain nitrogen oxide emission reductions through modifications to its engine control software. 70 FR 77189 (12/29/05).
  • United States v. DaimlerChrysler Corp., No. 05-2440 (D.D.C. Dec. 21, 2005). A settling CAA defendant must pay $1 million in civil penalties, must handle the performance of a supplemental environmental project to reduce emissions from in-use diesel engines at a cost of no less than $3 million, and must implement enhanced emissions-related defect reporting procedures. 71 FR 618 (1/5/06).
  • United States v. MGP Ingredients of Illinois, Inc., No. 05-1395 (C.D. Ill. Dec. 21, 2005). A settling CAA defendant must pay $171,800 (one half to the United States and one half to Illinois); must install new equipment, including a thermal oxidizer to control volatile organic compounds (VOCs), particulate, and carbon monoxide (CO) emissions from its dryer; must achieve at least 95% removal of VOCs; must meet stringent limits on CO, particulate matter, and nitrogen oxide emissions; must implement a program to reduce emissions during loading and transport operations and to manage dust on roads at the facility; must comply with various monitoring and recordkeeping requirements; and must apply for a revised operating permit from the Illinois EPA to resolve claims of violations of the PSD provisions of the CAA, new source performance standards, and the Illinois SIP. 71 FR 618 (1/5/06).

Copyright© 2006, Environmental Law Institute, Washington, D.C. All rights reserved.

THE CONGRESS PUBLIC LAWS:

  • S. 52 (land conveyance), which directs the Secretary of the Interior to convey a parcel of real property to Beaver County, Utah, was signed by President Bush on December 20, 2005. Pub. L. No. 109-130, 151 Cong. Rec. D1323 (daily ed. Dec. 21, 2005).
  • S. 136 (national parks), which authorizes the Secretary of the Interior to provide supplemental funding and other services that are necessary to assist certain local school districts in the state of California in providing educational services for students attending schools located within Yosemite National Park, to authorize the Secretary of the Interior to adjust the boundaries of the Golden Gate National Recreation Area, and to adjust the boundaries of Redwood National Park, was signed by President Bush on December 20, 2005. Pub. L. No. 109-131, 151 Cong. Rec. D1323 (daily ed. Dec. 21, 2005).
  • S. 212 (Valles Caldera Preservation Act), which amends the Valles Caldera Preservation Act to improve the preservation of the Valles Caldera, was signed by President Bush on December 20, 2005. Pub. L. No. 109-132, 151 Cong. Rec. D1323 (daily ed. Dec. 21, 2005).
  • H.R. 3963 (Federal Water Pollution Control Act (FWPCA)), which amends the FWPCA to extend the authorization of appropriations for Long Island Sound, was signed by President Bush on December 22, 2005. Pub. L. No. 109-137, 151 Cong. Rec. D1337 (daily ed. Dec. 30, 2005).
  • H.R. 4195 (irrigation districts), which authorizes early repayment of obligations to the Bureau of Reclamation within Rogue River Valley Irrigation District or within Medford Irrigation District, was signed by President Bush on December 22, 2005. Pub. L. No. 109-138, 151 Cong. Rec. D1337 (daily ed. Dec. 30, 2005).

BILLS INTRODUCED:

  • S. 2161 (Inhofe, R-Okla.) (SDWA) would amend the SDWA to prevent the enforcement of certain national primary drinking water regulations unless sufficient funding is available or variance technology has been identified. 151 Cong. Rec. S14316 (daily ed. Dec. 21, 2005). The bill was referred to the Committee on Environment and Public Works.

Copyright© 2006, 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 in 2006, 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 2006, visit the ELR Archives.

The states below have updates this week:

Alabama Illinois Massachusetts South Carolina Alaska Indiana Missouri Utah Arizona Iowa Montana Virginia California Kentucky North Carolina Wyoming Florida Maine Rhode Island

ALABAMA

Water:

  • The Alabama Department of Environmental Management (ADEM) will hold a public hearing to provide an opportunity to comment on water quality standards for Alabama waters. ADEM is soliciting public input and comments on current provisions of ADEM Administrative Code Chapter 335-6-10, Water Quality Criteria, and Chapter 335-6-11, Water Use Classifications for Interstate and Intrastate Waters. The hearing will be held February 8, 2006. Written comments are due February 14, 2006. See http://www.adem.state.al.us/PublicNotice/Dec/12TriReview06.htm

ALASKA

Water:

  • The Department of Environmental Conservation (DEC) adopted regulation changes dealing with drinking water, 18 AAC 80, on December 9, 2005, with an effective date of January 11, 2006. The revisions include new monitoring and maximum contaminant level requirements for public water systems for arsenic and radioactive contaminants, and new monitoring requirements for recycling water when backwashing filters. DEC also amended the regulations to set installation standards for all public water systems that govern drinking water source wells to include those serving public water systems and to ensure that sources of drinking water and aquifers used by public water system are adequately protected from contamination. The revised regulations also include changes in the requirements for obtaining variances and exemptions for some public water systems. Changes to the sanitary survey inspector requirements were also made, and the DEC instituted new fees and revised current fees. See http://www.state.ak.us/local/akpages/ENV.CONSERV/public_notices.htm
  • The DEC proposed to adopt regulation changes dealing with drinking water, 18 AAC 80. Specifically, it proposed to adopt sections of the Code of Federal Regulations that include new requirements involving the treatment of surface water and ground water under the direct influence of surface water for public water systems serving fewer than 10,000 people, to adopt by reference the fifth edition of U.S. EPA's Manual for the Certification of Laboratories Analyzing Drinking Water, to add requirements for a master meter for public water systems, and to add reporting and recordkeeping requirements for laboratories, including Electronic Data Reporting System requirements. These proposed changes also clarify elements related to technical, managerial, and financial capacity required of public water systems. DEC is proposing that sanitary survey inspectors provide their reports electronically. DEC is also changing the regulations to make them comply with federal drinking water regulations, to make them internally consistent, to improve the readability, to clarify and add definitions, delete outdated provisions, and to update references adopted in the regulations. Written comments are due January 24, 2006. See http://www.state.ak.us/local/akpages/ENV.CONSERV/public_notices.htm

General:

  • The DEC proposed to repeal, adopt, and amend regulations in 18 AAC 34, the Seafood Processing and Inspection Regulations. Specifically, it proposed to clarify what activities constitute processing; update requirements adopted by reference; clarify permit requirements, application, renewal, and prohibited activities; revise certain facility plan approval and facility requirements, including water supply, ice, and toilet requirements; change labeling requirements for "export only" products; amend seafood product and product testing standards; establish provisions regulating direct market shore based processors and geoduck dive vessels; and clarify language regarding oil contamination procedures. The DEC proposes to make other changes necessary to improve the regulations, including those changes that appear necessary after reviewing public comments. Comments are due March 2, 2006. See http://www.state.ak.us/local/akpages/ENV.CONSERV/public_notices.htm
  • The DEC adopted regulations dealing with Seafood Processing and Inspection on November 23, 2005, with an effective date of December 23, 2005. Seafood permit certification, waiver, compliance, and lab fees were revised. 18 AAC 34.900 and 18 AAC 34.905 were amended, and 18 AAC 34.901 was repealed. See http://www.state.ak.us/local/akpages/ENV.CONSERV/public_notices.htm

ARIZONA

Air:

  • The Arizona Department of Environmental Quality will hold public hearings to receive comments on the proposed new Article 17 of Title 18, Chapter 2, of the Arizona Administrative Code (A.A.C.), Arizona State Hazardous Air Pollutants Program. The public hearings will also include discussion of proposed revisions to other related sections of the A.A.C. The public hearings will be held January 3, 2006, and January 31, 2006. Written comments are due January 31, 2006. See http://www.azdeq.gov/function/laws/download/hapscomment.pdf and http://www.azdeq.gov/function/laws/download/haps1229.pdf

CALIFORNIA

Air:

  • The California Air Resources Board (CARB) will hold a public workshop on January 27, 2006, to discuss the status of Zero Emission Bus technology and regulations. See http://www.arb.ca.gov/msprog/bus/zeb/zeb-workshop12-27-05Notice.pdf
  • CARB will hold a public consultation meeting to discuss and provide input on proposed amendments to its Statewide Portable Equipment Registration Regulation on January 17, 2006. See http://www.arb.ca.gov/portable/perpact/mtgs/meeting2.pdf
  • CARB will hold a public workshop to discuss developing a control measure to reduce diesel particulate matter emissions from in-use, off-road, diesel-fueled mobile equipment greater than 25 horsepower. This control measure will affect construction equipment, mining equipment, airport ground support equipment, and industrial equipment such as forklifts. The proposal would not cover equipment used in agricultural operations, cargo handling equipment used at ports and intermodal rail facilities, or equipment already covered by an in-use rule or agreement. The workshop will be held on January 24 and January 31, 2006. See http://www.arb.ca.gov/msprog/ordiesel/documents/OffRoad_Equip_Jan_Wrkshp_Notice.pdf
  • The South Coast Air Quality Management District (SCAQMD) is considering adoption of Proposed Rule 3501, Recordkeeping for Locomotive Idling, and 3502, Minimization of Emissions from Locomotive Idling.  The purpose of Proposed Rule 3501 is to record idling events to identify opportunities for reducing idling emissions and to assist in quantifying idling emissions from freight locomotives operating within the jurisdiction of the SCAQMD. Proposed Rule 3502 is to minimize emissions from unnecessary idling of freight locomotives operating within the same area. Written comments are due January 24, 2006. A public hearing will be held February 3, 2006. See http://www.aqmd.gov/pub_edu/nph_3501-3502_Feb_3_06.html

Toxic Substances:

  • The Office of Environmental Health Hazard Assessment (OEHHA) announced the availability of the final report, Development of Health Criteria for School Site Risk Assessment Pursuant to Health and Safety Code Section 901(g): Child-Specific Reference Dose (chRDs) for School Site Risk Assessment--cadmium, chlordane, heptachlor, heptachlor epoxide, methoxychlor, and nickel. Section 901(g) of the Health and Safety Code (HSC) requires the OEHHA to identify those chemical contaminants commonly found at school sites and determined to be of greatest concern based on child-specific physiological sensitivities. HSC 901(g) also requires OEHHA to annually evaluate and publish, as appropriate, numerical health guidance values or chRDs for those chemical contaminants until the contaminants identified have been exhausted. The report is available at http://oehha.org/public_info/public/kids/pdf/FinalSchoolReport121205.pdf

Water:

  • The State Water Board will hold a joint workshop with the Central Valley Regional Board on January 31, 2006, to gather information and receive comment on the issue of salinity accumulation in the waters of the Central Valley Region. Subsequent to the Workshop, the State Water Board and the Central Valley Water Board will jointly consider whether there is a need for further action on this issue. See http://www.waterboards.ca.gov/salinity/docs/pn_013106salinityissues.pdf

FLORIDA

Air:

Water:

ILLINOIS

Hazardous & Solid Wastes:

  • On November 21, 2005, the Illinois Pollution Control Board received rulemaking proposal from Illinois EPA to amend the clean construction or demolition debris operations regulations as a new Part 1100, Board-accepted proposal. Public hearings will be held January 26, 2006 and March 1, 2006. For the March 1 hearing in Springfield, prefiled testimony must be filed by February 17, 2006. See http://www.ipcb.state.il.us/documents/dsweb/Get/Document-50527/

INDIANA

Air:

  • The Air Pollution Control Board gives notice that the date of the public hearing for consideration of preliminary adoption of LSA Document #04-181(APCB), printed at 28 IR 413, has been changed. The hearing will now be held February 1, 2006. The Board is considering new rules at 326 IAC 20-80, concerning NESHAPs for surface coating of miscellaneous metal parts and products, and 326 IAC 20-81, concerning NESHAPs for surface coating of plastic parts and products. All interested persons are invited and will be given reasonable opportunity to express their views concerning the proposed amendments. See http://www.in.gov/legislative/register/Vol29/04Jan/07CH326040181.PDF
  • The Air Pollution Control Board gives notice that the date of the public hearing for consideration of preliminary adoption of LSA Document #05-117(APCB), printed at 29 IR 909, has been changed. The Board will now hold a hearing on new rules 326 IAC 10-4-16, 326 IAC 24-1, 326 IAC 24-2, and 326 IAC 24-3 on April 13, 2006. All interested persons are invited and will be given reasonable opportunity to express their views concerning the proposed new rules. See http://www.in.gov/legislative/register/Vol29/04Jan/07CH326050117.PDF

Water:

  • The Natural Resources Commission proposes to amend 312 IAC 11-5-2, which governs lawful nonconforming uses for structures subject to licensure under IC 14-26-2 (commonly known as the Lakes Preservation Act), to provide greater specificity to the processes used to evaluate lawful nonconforming uses, to specify that the person claiming a lawful nonconforming use has the burden for establishing conformity and provide two years for the submission of documentation, to specify that the Department of Natural Resources has the burden for establishing that a lawful nonconforming use should be terminated if the department contends it poses a nuisance or has been abandoned, and to clarify that a temporary structure can qualify as a lawful nonconforming use and acknowledge that the seasonal
    removal of a structure does not constitute abandonment. Effective January 1, 2007. A public hearing will be held January 24, 2006. See http://www.in.gov/legislative/register/Vol29/04Jan/08P312050274.PDF

Wildlife:

  • The Natural Resources Commission proposes a new rule to establish a special youth deer hunting season the weekend before the start of the early archery season (October 1) to allow any youth age 15 years or younger, accompanied by an adult of at least 18 years of age, to be able to take one antlerless deer during this special youth deer season and to require the youth hunter to possess a valid youth hunting license, to have taken a hunter education course, and to comply with all other deer hunting regulations. A public hearing will be held on February 2, 2006. See http://www.in.gov/legislative/register/Vol29/04Jan/08P312050262.PDF

IOWA

Water:

  • The Natural Resource Commission announced its intention to amend Chapter 40, Boating Speed and Distance Zoning, Iowa Administrative Code. The Department has been petitioned by the Dubuque County Conservation Board and the U.S. FWS to draft a rule that will establish a "no-wake" zone in a portion of a backwater area known as Mud Lake on the Mississippi River in Dubuque County. The Department has also been petitioned by the East Okoboji Lakes Improvement Corporation for rulemaking that would establish a speed limit for vessels on certain Dickinson County lakes between sunset and sunrise. Written comments are due January 24, 2006. A public hearing will be held January 26, 2006. See http://www.legis.state.ia.us/Rules/Current/Bulletin/IAB060104.pdf

KENTUCKY

Air:

  • The Kentucky Environmental and Public Protection Cabinet will conduct a public hearing on January 24, 2006, to receive comments on 401 KAR 50:057, Credible evidence. The proposed administrative regulation clarifies that any credible evidence, including but not limited to testing and monitoring methods other than the reference test method, may be used for determining compliance and for establishing violations of the underlying emission limitation and standard. Written comments are due January 31, 2006. The regulation will be submitted to U.S. EPA for inclusion in Kentucky's SIP. See http://www.air.ky.gov/NR/rdonlyres/938C9E25-B224-4CFA-872A-60CAAE41D113/0/CredibleEvidencePHNotice.pdf

MAINE

Wildlife:

  • The Department of Inland Fisheries & Wildlife has adopted a rule (Ch. 4.04, Moose Hunting, 2005-534) establishing the number of moose permits to be issued for the 2006 moose hunting season. Effective December 28, 2005. See http://www.maine.gov/sos/cec/rules/notices/2006/010406.htm
  • The Department of Inland Fisheries and Wildlife has adopted a rule (Ch. 5.02, Classified Wildlife Management Areas, 2005-535) opening the Long Lake Wildlife Management Area in Aroostook County to the hunting and trapping of all wild birds and animals during the open season on these species. See http://www.maine.gov/SOS/cec/rules/notices/2006/010406.htm

MASSACHUSETTS

Air:

  • The Massachusetts Department of Environmental Protection will hold public hearings on January 17, 18, 19, and 20, 2006, to solicit comments on proposed greenhouse gas 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. Comments are due January 31, 2006. See http://www.mass.gov/dep/public/communicate/ghgphnot.htm
  • The Massachusetts Department of Environmental Protection held two public hearings on December 21, 2005, to accept comments on proposed amendments to 310 CMR 7.36, Transit System Improvement Regulations. The deadline for public comment has been extended to January 17, 2005. See http://www.mass.gov/dep/air/laws/catpub.pdf

Water:

  • The Massachusetts Department of Environmental Protection and the Rhode Island Department of Environmental Management will hold public meetings on the Draft TMDL Report for Bacteria and Total Phosphorus for the Kickemuit River (Massachusetts-Rhode Island). The Rhode Island meeting will be held on January 9, 2006, and the Massachusetts meeting will be held on January 11, 2006. See http://www.dem.ri.gov/programs/benviron/water/quality/rest/pdfs/kickemui.pdf
  • The Massachusetts Department of Environmental Protection proposed revisions to 310 CMR 30.00, relating to dredged material; 314 CMR 4.00, various provisions; and 314 CMR 9.00, provisions relating to dredged material. The most significant revisions clarify the Department's authority to establish total maximum daily loads 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; in the bacteria criteria, replace fecal coliform with E. coli and enterococci as indicator organisms for certain recreational uses; 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 in 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
  • The Massachusetts Department of Environmental Protection announced the Draft 2006 Intended Use Plan (IUP) for the Clean Water State Revolving Fund (CWSRF) loan program. The purpose of the CWSRF program is to assist communities to implement the requirements of the federal and state CWAs. The IUP lists by priority ranking those projects that the Department will recommend to be financed through the Water Pollution Abatement Trust in 2006. Written comments are due January 26, 2006. See http://www.mass.gov/dep/water/wastewater/06cwiup.pdf

MISSOURI

Air:

  • The Department of Natural Resources proposed to amend subsection (3)(A) and section (4) of 10 CSR 10-6.061, Construction Permit Exemptions. This rule lists specific construction or modification projects that are not required to obtain permits to construct under 10 CSR 10-6.060. This proposed rulemaking relocates the recordkeeping requirements to section (4) of the rule and clarifies the exemption for grain handling, storage, and drying facilities. A public hearing will be held February 2, 2006. Written comments are due February 9, 2006. See http://www.sos.mo.gov/adrules/moreg/current/2006/v31n1/v31n1a.pdf

Land Use:

  • The Department of Natural Resources is amending sections (1) through (7) of 10 CSR 40-7.011, Bond Requirements, and removing the forms that follow the rule from the Code of State Regulations. This rule will change the bond requirements for surface coal mining operations from a bond pool to full cost bonding. This rule also clarifies what types of bonds are acceptable and establishes the specific requirements for each. Public comments are due within 30 days of publication (January 4, 2006). See http://www.sos.mo.gov/adrules/moreg/current/2006/v31n1/v31n1a.pdf
  • The Department of Natural Resources is amending sections (1) and (2) of 10 CSR 40-7.021, Duration and Release of Reclamation Liability. This rule sets forth requirements for the duration and release of reclamation liability and bonding under the full cost bonding provisions of this chapter and removes the references to the existing bond pool system. Public comments are due within 30 days of publication (January 4, 2006). See http://www.sos.mo.gov/adrules/moreg/current/2006/v31n1/v31n1a.pdf
  • The Department of Natural Resources is amending sections (2), (3), and (4) of 10 CSR 40-7.031, Permit Revocation, Bond Forfeiture, and Authorization to Expend Reclamation Fund Monies. This rule clarifies, revises, and sets forth requirements, criteria, and procedures for permit revocation, bond forfeiture, and authorization to expend reclamation fund monies pursuant to sections 444.810, 444.830, 444.885, 444.960, and 444.970, RSMo. Public comments are due within 30 days of publication (January 4, 2006). See http://www.sos.mo.gov/adrules/moreg/current/2006/v31n1/v31n1a.pdf
  • The Department of Natural Resources is deleting sections (1), (2), and (3) of 10 CSR 40-7.041, Form and Administration of the Coal Mine Land Reclamation Fund, and amending sections (4) and (5). This rule sets forth requirements for administration of the Coal Mine Land Reclamation Fund pursuant to sections 444.960, 444.965, and 444.970, RSMo. Public comments are due within 30 days of publication (January 4, 2006). See http://www.sos.mo.gov/adrules/moreg/current/2006/v31n1/v31n1a.pdf

Wildlife:

  • The Conservation Commission proposed to amend section (2) of 3 CSR 10-4.135, Transportation. This amendment allows holders of the Fur Handler's
    Permit, as provided in 3 CSR 10-10.711, to possess and ship pelts of furbearers according to specified obligations. Public comments are due within 30 days of publication (January 4, 2006). See http://www.sos.mo.gov/adrules/moreg/current/2006/v31n1/v31n1a.pdf

MONTANA

Air:

  • On January 31, 2006, at 10:30 a.m., the Board of Environmental Review and the Department of Environmental Quality will hold a public hearing on the proposed amendment, repeal, and adoption of rules contained in Title 17, Chapters 24, 30, 38, and 56 (Enforcement Penalty Procedures--Uniform Factors for Determining Penalties). See http://deq.mt.gov/dir/legal/Notices/17-239pro.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:

NORTH CAROLINA

Water:

  • The Commission for Health Services announced its intention to adopt the rule cited as 15A NCAC 18A .1970 and amend the rules cited as 15A NCAC 18A .1935, .1957, and .1969, concerning sewage treatment and disposal systems. The proposed rules are intended to comply with S1152 (Session Law 2004-161). A public hearing will be held January 27, 2006. Written comments are due March 6, 2006. See http://www.ncoah.com/rules/register/Volume20Issue13.pdf (p. 1041)
  • The Environmental Management Commission announced its intention to amend the rule cited as 15A NCAC 02B .0315. A segment of the upper Neuse River, Richland Creek, and associated unnamed tributaries (Wake County, Neuse River Basin) are proposed to be reclassified from Class WS-IV and WS-IV CA to WS-V. A public hearing will be held February 2, 2006. Written comments are due March 6, 2006. See http://www.ncoah.com/rules/register/Volume20Issue13.pdf (p. 1029)

RHODE ISLAND

Air:

  • The Department of Environmental Management held a public meeting to discuss greenhouse gas-related initiatives in Rhode Island and the region on January 5, 2006. See http://www.dem.ri.gov/events/index.htm

Water:

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. A public hearing was held on Friday, December 23, 2005, and will continue on January 13, 2006. See http://www.dem.ri.gov/programs/director/legal/accapppn.htm

SOUTH CAROLINA

Toxic Substances:

  • The Department of Health and Environmental Control is proposing to repeal R.61-85, Prevention and Control of Lead Poisoning in Children. The regulation reflects protocols and procedures that have significantly changed since its inception in 1981, and is now inconsistent with protocols and procedures prescribed by the Centers for Disease Control and Prevention regarding childhood lead poisoning. The public comment period closed November 29, 2005. A public hearing will be held January 12, 2006. See http://www.scdhec.gov/administration/regs/docs/regupdate.doc#envhealth

Water:

  • The Department of Health and Environmental Control is proposing to simultaneously repeal Regulations 121-1, Capacity Use Declaration, Waccamaw Area and 121-2, Capacity Use Declaration, Low Country Area, and replace them with one new Chapter 61 regulation that addresses these regulations and other groundwater withdrawals in all designated capacity use areas. The public comment period closed November 20, 2005. A public hearing will be held January 12, 2006. See http://www.scdhec.gov/administration/regs/docs/regupdate.doc#water
  • The Department of Health and Environmental Control proposed to amend its regulations for permitting in the critical areas of the coastal zone (R.30-1(D), Definitions, R.30-1, Statement of Policy, and R.30-12, Specific Project Standards for Tidelands and Coastal Waters). These proposed changes would add definitions and detailed project standards to be utilized in the evaluation of permits for access to islands. The changes are proposed to address the gap in the critical area regulations created by the South Carolina Supreme Court and ensure consistent and effective Department review of applications for access to islands. Generally, the language proposed provides more specific, protective, and enforceable standards for the management of coastal islands, which are important and distinct features of the South Carolina coast. The public comment period closed November 28, 2005. A public hearing will be held January 12, 2006. See http://www.scdhec.gov/administration/regs/docs/regupdate.doc#ocean

Wildlife:

  • The Department of Health and Environmental Control is proposing to amend the Shellfish Regulation to bring it up to date with current National Shellfish Sanitation Program guidance and practices; include a section on severability; update and expand definitions; update certification and permitting procedures; update growing area survey and classification standard references; update requirements for the harvesting, handling, and transportation of shellfish; update compliance and inspection procedures; update certified shipper facility and aquaculture requirements; and revise style, language, and grammar for clarity, readability, and consistency. The public comment period closed on November 30, 2005. A public hearing will be held January 12, 2006. See http://www.scdhec.gov/administration/regs/docs/regupdate.doc#water

UTAH

Water:

  • The Department of Environmental Quality proposed to amend R309-105-9, Minimum Water Pressure. The reason for the change is to describe additional minimum pressure under conditions of flow for new public water systems designed and constructed after March 1, 2006, and to make the rule more in accordance with typical design standards, as well as standards of other agencies such as the American Water Works Association, the American Society of Civil Engineers, and other nearby states. Written comments are due January 31, 2006. See http://www.rules.utah.gov/publicat/bulletin/2006/20060101/28416.htm
  • The Department of Environmental Quality proposed to amend R309-150-6, Physical Facilities. The reason for the change is to change wording to refer to minimum water pressures described in Section R309-105-9. The change makes reference to Section R309-105-9 so that minimum pressures associated with existing systems will not be confused with minimum pressures required for new public water systems designed and constructed after March 1, 2006. Written comments are due January 31, 2006. See http://www.rules.utah.gov/publicat/bulletin/2006/20060101/28417.htm
  • The Department of Environmental Quality proposed to amend R309-405-4, Assessment of a Penalty and Calculation of Settlement Amounts. The amendment changes wording to refer to minimum water pressure described in Section R309-105-9. Comments are due January 31, 2006. See http://www.rules.utah.gov/publicat/bulletin/2006/20060101/28418.htm
  • The Department of Environmental Quality proposed to amend R309-510-9, Distribution System Sizing. The reason for the change is to change wording to refer to minimum water pressure described in Section R309-105-9. Comments due January 31, 2006. See http://www.rules.utah.gov/publicat/bulletin/2006/20060101/28419.htm
  • The Department of Environmental Quality proposed to amend R309-540-6, Hydropneumatic Systems. The reason for the change is to change wording to refer to minimum water pressure described in Section R309-105-9. Comments are due January 31, 2006. See http://www.rules.utah.gov/publicat/bulletin/2006/20060101/28420.htm
  • The Department of Environmental Quality proposed to amend R309-545-7, Location of Tanks. The reason for the change is to change wording to refer to minimum water pressure described in Section R309-105-9. Comments due January 31, 2006. See http://www.rules.utah.gov/publicat/bulletin/2006/20060101/28421.htm
  • he Department of Environmental Quality proposed to amend R309-550-5, Water Main Design. The reason for the change is to change wording to refer to minimum water pressure described in Section R309-105-9. Comments are due January 31, 2006. See http://www.rules.utah.gov/publicat/bulletin/2006/20060101/28422.htm

VIRGINIA

Water:

  • The State Water Control Board will hold a public hearing on March 27, 2006, to receive comments on proposed amendments to the water quality standards regulation to designate tributaries of Simpson Creek as Tier III exceptional state resource waters. The proposed amendments will appear in the Virginia Register on January 23, 2006. The public comment period begins on January 23, 2006, and ends on April 11, 2006.  See http://www.townhall.state.va.us/meeting/ViewMeeting.cfm?Meeting_ID=6816
  • The State Water Control Board will hold a public hearing on March 23, 2006, to receive comments on proposed amendments to the water quality standards to establish nutrient criteria for certain lakes and reservoirs. The proposal appears in the Virginia Register on January 23, 2006. The comment period begins on January 23, 2006, and ends on April 7, 2006. An informal question and answer period will begin one-half hour before the hearing. See http://www.townhall.state.va.us/meeting/ViewMeeting.cfm?Meeting_ID=6817
  • The State Water Control Board will hold a public hearing on March 21, 2006, on proposed tier III exceptional water designations for Amherst County . The comment period begins on January 23, 2006, and ends on April 5, 2006. An informal question and answer period will begin one-half hour before the public hearing. See http://www.townhall.state.va.us/meeting/ViewMeeting.cfm?Meeting_ID=6815

WYOMING

Land Use:

  • The Land Quality Division is proposing to revise Chapter 3 of the Noncoal Rules in Rules Package 1-V. The changes address the performance standards used for the evaluation of postmining revegetation success and are intended to clarify that individual plant species are the focus for evaluating revegetation success; clarify that "total vegetation cover" is a separate performance standard; eliminate "productivity" and "grazing" as revegetation success standards; allow for the collection of data to support revegetation success in a single year, starting no earlier than the fifth growing season; and make various housekeeping revisions due to proposed changes discussed above. The revisions in Rules Package 1-V are proposed in response to experience and knowledge gained by the Division and mine operators since the performance standards were last revised in 1989. The Environmental Quality Council will hear public comment on these regulations on February 15, 2006. See http://deq.state.wy.us/out/downloads/NOI%20for%201V%2012_27_2005%20(final).pdf

Copyright© 2006, Environmental Law Institute, Washington, D.C. All rights reserved.

INTERNATIONAL

STOCKHOLM TESTS TRAFFIC TOLLS:

  • The Swedish capital has begun a seven-month trial of traffic tolls as a way to reduce city congestion. Drivers entering or exiting the city will be charged between 10 and 20 kronor until July 31, after which city residents will vote on whether to keep the tolls. Supporters of the tolls say it is the only way to achieve the desired 10 to 15% reduction of city traffic, although polls suggest that two out of three city residents oppose the measure. Traffic was down 16% on the day the tolls were implemented. See http://news.bbc.co.uk/2/hi/europe/4578922.stm

AFGHANISTAN DEVELOPS ITS FIRST ENVIRONMENTAL LAWS:

  • The Afghanistan government and the United Nations Environment Program have developed the country's first legislation intended to protect wildlife, water, and forests. The Environment Act outlines frameworks to manage Afghanistan's natural resources sustainably and rehabilitate its damaged environment, clarifies institutional responsibilities, and sets compliance and enforcement provisions. Two decades of conflict and a recent drought have degraded the country's natural resources, endangering the livelihoods of the 80% of the population that relies directly on these resources for their daily needs. See http://paktribune.com/news/index.php?id=130337

ARGENTINEANS PROTEST PLANNED PAPER MILLS:

  • Hundreds of protesters blocked three international bridges to show their anger over Uruguay's plans to build two large paper mills on the river it shares with Argentina. Opponents fear the mills will contaminate farmland, kill fish, and harm river tourism. Uruguay has cited studies showing that pollutants from the mills will be within internationally accepted levels and maintains that the mills will create 600 jobs and significantly boost the country's gross domestic product and national exports. See http://www.enn.com/today.html?id=9579

Copyright© 2006, Environmental Law Institute, Washington, D.C. All rights reserved.

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