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Weekly Update Volume 36, Issue 12

04/24/2006

LITIGATION

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

FOIA, CLEAN AIR MERCURY RULE (CAMR):

A district court held that certain documents relating to the CAMR are not exempt from disclosure under FOIA. The CAMR regulates mercury emissions from power plants nationwide. During the rulemaking process, EPA used a proprietary computerized model called the Integrated Planning Model (IPM) to prepare forecasts used in evaluating the relative costs and benefits of alternative proposed regulatory approaches to pollution control. The Massachusetts Attorney General filed suit against EPA challenging the CAMR. In so doing, he filed a FOIA request for the IPM results of several regulatory alternatives. EPA denied the request, claiming that they were exempt under FOIA Exemption #5. Exemption #5, however, does not apply because the IPM runs are not deliberative materials nor part of the deliberative process. Rather, the IPM runs are investigative tools that generate raw data or empirical evidence used by EPA in its rulemaking, and releasing the IPM runs would not reveal the Agency's "protectable thought processes." Reilly v. United States Environmental Protection Agency, CIV.05-10450 RBC, 36 ELR 20074 (D. Mass. Apr. 13, 2006) (Collings, J.) (15 pp.).

LAND RESOURCE MANAGEMENT PLANS (LRMPs), MANAGEMENT INDICATOR SPECIES:

A district court held that regulations promulgated in 1982 require the U.S. Forest Service to maintain the viability of the sage grouse as a management indicator species for the Curlew National Grassland. Although the 1982 regulations were rescinded by regulations taking effect in 2005, the Curlew continues to be governed by the 1982 regulations. The LRMP for the Curlew was prepared under the 1982 regulations; therefore, the 1982 regulations apply until a new LRMP is passed under the 2005 regulations. The Forest Service cannot dilute its management indicator species obligations by passing new regulations without also amending the LRMP that relied on the greater obligations. Idaho Wildlife Federation v. Tower, No. CV-04-372-E-BLW, 36 ELR 20075 (D. Idaho Apr. 13, 2006) (Winmill, J.) (2 pp.).

TIMBER HARVEST PLANS, CUMULATIVE IMPACTS:

A California appellate court held that an environmental group may proceed with its petition for writ of mandate in which they seek to overturn the state department of forestry's approval of three timber harvesting plans. The forestry department failed to follow the state's forest practice rules for reviewing the plans' chosen geographical areas in its assessment of the cumulative impacts on the California spotted owl and the Pacific fisher. It also failed to fulfill its procedural obligation in obtaining, considering, and disclosing information regarding the environmental effects of possible herbicide use after harvest. The court therefore reversed the lower court's dismissal of the petition. Ebbetts Pass Forest Watch v. California Department of Forestry & Fire Protection, No F042896, 36 ELR 20073 (Cal. App. 5th Dist. Apr. 14, 2006) (79 pp.).

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

THE FEDERAL AGENCIES

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

AIR:

  • DOE issued the final Technical Guidelines for the Voluntary Reporting of Greenhouse Gases Program. 71 FR 20783 (4/21/06).
  • OSHA seeks information about potential objections to the public release of air sampling data conducted by the agency between 1979 and 2005. 71 FR 20732 (4/21/06).
  • EPA, in response to a 2003 petition to reconsider amendments to the NESHAP general provisions, amended certain aspects of the startup, shutdown, and malfunction requirements for sources subject to NESHAPs. 71 FR 20445 (4/20/06).
  • EPA delegated the Louisiana Department of Environmental Quality (LDEQ) authority to implement and enforce certain NESHAPs within the state. 71 FR 19652 (4/17/06).
  • EPA proposed to delegate the LDEQ authority to implement and enforce certain NESHAPs within the state; see above for direct final rule. 71 FR 19674 (4/17/06).

HAZARDOUS WASTE:

  • EPA revised the codification of the Idaho authorized hazardous waste management program and incorporated by reference certain provisions of the state's statutes and regulations. 71 FR 20341 (4/20/06).
  • EPA announced the availability of additional information on the electronic manifest (e-manifest) project of developing a nearly paperless electronic approach for implementing the hazardous waste manifest system requirements; the Agency now believes that a centralized, national e-manifest system is the preferred approach for this project. 71 FR 19842 (4/18/06).

MINING:

  • OSM proposed to approve amendments to Wyoming's regulatory program under SMCRA; the amendments make the state program consistent with corresponding federal regulations, provide additional safeguards, clarify ambiguities, and improve operational efficiency. 71 FR 20604 (4/21/06).

NATIONAL PARKS:

  • The President issued Proclamation No. 8002 designating April 22 through April 30, 2006, National Park Week. 71 FR 20517 (4/21/06).

PESTICIDES:

  • EPA announced the availability of its risk assessment, preliminary risk reduction options, and related documents for alkylbenzene sulfonates, a pesticide that encompasses certain C10-C16 alkyl derivatives. 71 FR 20090 (4/19/06).

WATER:

  • DOI's Bureau of Reclamation announced the availability of water management plans prepared for certain irrigation districts pursuant to the Central Valley Project Improvement Act of 1992 and the Reclamation Reform Act of 1982. 71 FR 20415 (4/20/06).

WILDLIFE:

  • FWS decided not to list the Gunnison sage-grouse as threatened or endangered under the ESA based on a review of the best available scientific and commercial information. 71 FR 19953 (4/18/06).
  • FWS announced its 12-month finding on a petition to remove the Pacific Coast population of the western snowy plover from the list of threatened and endangered wildlife and determined that the petitioned action is not warranted at this time. 71 FR 20607 (4/21/06).
  • FWS proposed special regulations under ESA §4(d) that would promote the conservation of the Pacific Coast distinct population segment of western snowy plover. 71 FR 20625 (4/21/06).
  • FWS proposed to revise the regulations that implement the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES); the revisions would incorporate resolutions adopted through the 13th meeting of the Conference of the Parties to CITES. 71 FR 20167 (4/19/06).
  • FWS announced it will conduct a 5-year review of 25 southwestern species under the ESA to ensure that the classification of species as threatened or endangered is accurate. 71 FR 20714 (4/21/06).
  • FWS announced it will conduct a 5-year review of the following species to ensure that their classification as threatened or endangered is accurate: the Purple Bean; Clubshell; Northern Red-bellied Cooter; Roanoke Logperch; Swamp Pink; Northern Riffleshell; Flat-spired Three-toothed Land Snail; Puritan Tiger Beetle; and Dwarf Wedgemussel. 71 FR 20717 (4/21/06).
  • FWS announced the availability of the final EIS and report for the Coachella Valley Multiple Species Habitat Conservation Plan and Natural Community Conservation Plan for Riverside County, California; the plan includes a 75-year incidental take permit to take 27 species in the area due to urban development activities, rural infrastructure projects, and preserve management activities within a 1.1 million-acre planning area. 71 FR 20719 (4/21/06).
  • FWS announced the availability of a final comprehensive conservation plan and FONSI for the Cameron Prairie National Wildlife Refuge in north central Cameron Parish, Louisiana. 71 FR 20121 (4/19/06).
  • NMFS issued permits and amendments to seven entities for the purposes of conducting scientific research on marine mammal species and importing marine mammal part specimens. 71 FR 19875 (4/18/06).
  • NMFS proposed to require that any offshore pound net leader in the Virginia waters of the main stem Chesapeake Bay and other certain surrounding waters during the period of May 6, 2006, through July 15, 2006, meet the definition of a modified pound net leader; the modification is necessary to conserve threatened and endangered sea turtles during the regulated period while enabling fishermen to use leaders, an important component of pound net gear. 71 FR 19675 (4/17/06).

DOJ NOTICES OF SETTLEMENTS:

  • United States v. Richardson Construction Co., No. 3:06 cv 1079 (D.S.C. Apr. 7, 2006). Settling CWA defendants who discharged pollutants without a permit into waters of the United States must pay a civil penalty and must restore the impacted wetlands to their previous condition. 71 FR 20418 (4/20/06).
  • United States v. Standard Oil Co., No. 3:06-cv-00539-JBA (D. Conn. Apr. 6, 2006). Settling CERCLA defendants must pay $4,000,000 in past response costs incurred at the Chase Brass & Copper Superfund site in Watertown, Connecticut. 71 FR 20418 (4/20/06).

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

THE CONGRESS

Congress has been in recess since the last issue of Update but will reconvene April 24, 2006.

 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:

California New Hampshire Tennessee Florida North Carolina Texas Missouri Rhode Island Wisconsin

 

CALIFORNIA

Air:

Toxic Substances:

  • The Office of Environmental Health Hazard Assessment announced the availability of its final draft report, “Development of Health Criteria for School Site Risk Assessment Pursuant to Health and Safety Code Section 901(g): Proposed Child-Specific Reference Doses for School Site Risk Assessment--Manganese and Pentachlorophenol.” Comments are due May 15, 2006. See http://oehha.org/public_info/public/kids/schools0406.html

FLORIDA

Water:

  • The Department of Environmental Protection announced a change to proposed Rule No. 62-304.500, Ocklawaha River Basin TMDL, as initially published on February 24, 2006. The word “Nitrogen” in subsection 15(b)2 of the rule, which pertains to the TMDL for total phosphorus for Trout Lake, was changed to “Phosphorus.” See http://tlhora6.dep.state.fl.us/onw/publications/7-NOC62304500-4-14-06-INT.pdf

MISSOURI

Air:

Hazardous & Solid Wastes:

Wildlife:

NEW HAMPSHIRE

Water:

  • The Department of Environmental Services adopted Chapter Env-Wq 700, Standards of Design and Construction for Sewerage and Wastewater Treatment Facilities. The standards, which are intended to protect public health and the environment by establishing minimum technical standards and requirements for the planning, design, and construction of sewerage and wastewater treatment facilities, including solids handling and disposal facilities, went into effect March 25, 2006. See http://www.des.state.nh.us/RuleMaking/adopted2006/Env-Wq700.pdf
  • The Department of Environmental Services adopted Chapter Env-Wq 600, Selection of Consulting Engineering Firms. The regulations, effective February 9, 2006, set forth prequalification eligibility requirements for consulting engineering firms and specify the procedures for contracting with prequalified consulting engineering firms for water supply and water pollution control projects that receive state or federal financial assistance. See http://www.des.state.nh.us/RuleMaking/adopted2006/Env-Wq600.pdf

NORTH CAROLINA

Water:

  • The Commission for Health Services intends to amend the rules cited as 15A NCAC 18A.1809, .2201, and .3501, concerning local water supplies. 15A NCAC 18A.1809 will be updated to include the Division of Water Quality's package treatment plant, 15A NCAC 18A.1809 will be revised to fix a definition that conflicts with a statute, and 5A NCAC 18A A.3501 concerns day camps. A public hearing will be held May 5, 2006. Comments are due June 16, 2006. See http://www.ncoah.com/rules/register/Volume20Issue20.pdf (p. 1717)

General:

  • The Department of Environment and Natural Resources proposed to amend the rules cited as 15A NCAC 01O.0101 and .0105. The proposed rule changes will allow registered environmental health specialists to work for the North Carolina Alliance of Public Health Agencies pursuant to Senate Bill 622. A public hearing will be held May 18, 2006. Comments are due June 16, 2006. See http://www.ncoah.com/rules/register/Volume20Issue20.pdf (p 1716)
  • The Department of Environment and Natural Resources implemented temporary rules 15A NCAC 01O .0101 and .0105, effective March 28, 2006. In order to implement Senate Bill 622 and funding in the area of environmental health staffing, temporary amendments to the authorization rules are required. See http://www.ncoah.com/rules/register/Volume20Issue20.pdf (p. 1748)

RHODE ISLAND

Wildlife:

  • The Department of Environmental Management proposed amendments to the Rhode Island Marine Fisheries Regulations and will hold a public hearing on May 18, 2006, to afford interested parties the opportunity for public comment. The proposed amendments concern changes to lobster management necessary to comply with the Atlantic States Marine Fisheries Commission Addendum VII to Amendment 3 to the Interstate Fishery Management Plan for Lobster. See http://www.dem.ri.gov/programs/bnatres/fishwild/pn051806.htm

TENNESSEE

Water:

TEXAS

Air:

  • The Commission on Environmental Quality will hold a public comment on May 22, 2006, to receive testimony concerning proposed revisions to 30 TAC Chapter 101. The proposed rulemaking would address deficiencies in the Commission’s Discrete Emission Reduction Credit Program and would implement revisions to Texas Health and Safety Code §382.0172(c), as required by Senate Bill 784, to allow greater flexibility in the generation of credits for emission reductions outside the United States. Comments are due May 30, 2006. See http://www.tceq.state.tx.us/assets/public/legal/rules/hearings/05054101_phn.pdf

Water:

UTAH

Water:

  • The Department of Environmental Quality proposed to amend R317-4, Onsite Wastewater Systems. The proposed amendments are being made to allow the installation of alternative onsite wastewater treatment systems in areas that may have been unsuitable for traditional wastewater disposal systems because of conditions such as slow percolating or shallow soils. The proposed amendments also provide a procedure that may be used by applicants that are unable to comply with the current rule but have no other option for wastewater disposal. Comments are due May 15, 2006. See http://www.rules.utah.gov/publicat/bulletin/2006/20060415/28596.htm

WEST VIRGINIA

Water:

  • The Department of Environmental Protection will hold an open meeting on April 28, 2006, to solicit information on new or revised water quality criteria regarding the Triennial Review of Water Quality Standards. The following topics will be discussed and public input on these issues is welcomed: nutrient criteria; trout waters; aluminum; selenium; mercury; priority pollutant prioritization; bacteria criteria; variances; and Category A public water supply. See http://www.wvsos.com/adlaw/register/current/041406.pdf (p. 7)

WISCONSIN

Water:

  • The Department of Natural Resources will hold public hearings on May 30 and 31, 2006, on revisions to ss. NR 19.91(3) and 19.94(7), Wis. Adm. Code, relating to permitting the use of natural bodies of water as fish farms. This amendment of s. NR 19.91(3) will eliminate regulation of legally constructed artificial wetland ponds. This will allow fish farming in manmade isolated wetland ponds without a natural waterbody permit. The proposed revisions to s. NR 19.94(7) will modify public notice requirements to improve the process efficiency and focus resources on projects that require greater scrutiny. See http://www.dnr.state.wi.us/org/caer/ce/news/hearmeet.html
  • The Department of Natural Resources will hold public hearings on May 11 and 15, 2006, on revisions to ch. NR 320, Wis. Adm. Code, relating to the regulation of bridges and culverts in or over navigable waterways. The proposed revisions contain construction, design, and location standards for a general permit for temporary in-stream crossings, a technique used by the forest industry during logging projects. Revisions also include some housekeeping changes to consolidate standards that apply to all general permits in the rule and to repeal unnecessary clearance standards for temporary bridges. See http://www.dnr.state.wi.us/org/caer/ce/news/hearmeet.html

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

INTERNATIONAL

UGANDAN RESIDENTS TO SUE AUTHORITIES FOR INACTION ON POLLUTION:

  • Residents of the Mbale Municipality in Uganda plan to sue their municipal government for its failure to address requests to alleviate pollution. The residents suffer from air and water pollution from a nearby animal product processing plant, and since 2002, they have unsuccessfully sought redress from local council authorities, the National Environment Management Authority, and the resident district commission. See http://allafrica.com/stories/200604200792.html

SMALL INDIAN CITIES BECOMING MORE POLLUTED THAN LARGE CITIES:

  • Small Indian cities are increasingly suffering from air pollution, primarily from cars, and in some cases these cities are more polluted than the country's large metropolitan areas, according to a report released by the Centre for Science and Environment. The report found that Delhi today would have 38% more particulate matter if the Supreme Court had not called for the introduction of cleaner fuels and emission technology. The report calls on the government to make a stronger effort to promote cleaner fuels throughout the country. See http://www.hindu.com/2006/04/21/stories/2006042116510400.htm

EUROPEAN AUTOMAKERS FAIL TO MEET AIR QUALITY GUIDELINES:

  • The European auto industry is under criticism for failing to fulfill the pledge it made to the European Union in 1998 to improve fuel efficiency. In order to fulfill its goal of producing cars that produce an average of 140 grams of carbon dioxide (CO2) per kilometer by 2008, automakers need to improve car efficiency by 4.3% per year for the next three years. Last year, new cars produced on average 160 grams of CO2 per kilometer, just a 1% reduction from the previous year. See http://www.allheadlinenews.com/articles/7003236509

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

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