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Weekly Update Volume 36, Issue 13

05/01/2006

LITIGATION

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

CWA, TMDLs, "DAILY":

The D.C. Circuit vacated EPA's approval of TMDLs limiting the annual discharge of oxygen-depleting pollutants and the seasonal discharge of pollutants contributing to turbidity in the Anacostia River in Washington, D.C. EPA argued that Congress, in requiring the establishment of TMDLs to cap effluent discharges of "suitable" pollutants into highly polluted waters, left room for EPA to establish seasonal or annual loads for those same pollutants. But these non-daily "daily" loads are contrary to the unambiguous language of the CWA. Daily means daily, nothing else. If EPA believes using daily loads for certain types of pollutants has undesirable consequences, then it must either amend its regulation designating all pollutants as suitable for daily loads or take its concerns to Congress. Friends of the Earth, Inc. v. Environmental Protection Agency, No. 05-5015, 36 ELR 20077 (D.C. Cir. Apr. 25, 2006) (14 pp.).

INSURANCE, LEAD POISONING, SETTLEMENT AGREEMENTS:

The Second Circuit upheld summary judgment in favor of an insurance company over policyholders' claims against it for rejecting a settlement offer in an underlying suit concerning lead poisoning to a young child. The policyholders argued that the rejection constituted bad faith because it exposed them to the risk of an adverse judgment that significantly exceeded their policy limits. But there were no obstacles preventing the policyholders from entering into a settlement agreement with the underlying plaintiffs. The policyholders were represented not only by counsel appointed by the insurance company, but also by private counsel who could have taken any number of steps to shield them from financial liability for the child's injuries. Where, as here, the policyholders were represented by private counsel and had ample opportunity to protect their own interests, the insurance company's refusal to consent to a declaratory judgment action brought by the underlying plaintiffs did not constitute a "deliberate or reckless failure" to consider the policyholders' interests in negotiating a settlement. Greenidge v. Allstate Insurance Co., No. 04-1515, 36 ELR 20078 (2d Cir. Apr. 25, 2006) (14 pp.).

CERCLA, CONTRIBUTION:

A district court held that a manufacturing company need not contribute to response costs incurred by the owner of a landfill near Seneca Falls, New York. The landfill was closed in 1974, but the owner was ordered to remediate the site after it decided to reopen and expand the landfill. The evidence suggests that trichloroethylene (TCE) caused the contamination at the site, and the owner failed to establish that the manufacturing company deposited liquid TCE or any other material containing TCE at or near the site. In addition, the landfill owner's argument that it should be responsible for only 50% of the response costs was unpersuasive, not supported by the evidence, and arbitrary. Instead, much of the so-called response costs should be attributed to the landfill, as the work at the site has resulted in great economic benefit to the owner. Moreover, the court posits that the landfill owner is merely seeking to extract funds for work that it could have, and should have, performed itself, at its own expense, 20 years earlier when the site was closed. There were problems at the site in the 1970s, and the owner's failure to deal with those problems to the extent necessary exacerbated the situation and caused the site to deteriorate. Seneca Meadows, Inc. v. ECI Liquidating, Inc., No. 95-CV-6400L, 36 ELR 20080 (W.D.N.Y. Apr. 20, 2006) (Larimer, J.) (20 pp.).

USTs, CERCLA, TORTS:

A district court granted in part and denied in part motions to dismiss land purchasers' CERCLA, negligence, fraud, and state law claims against an environmental consulting firm and the prior owners. The prior owners sold the land without disclosing the existence of four abandoned USTs, and the consulting firm failed to identify the USTs and other environment concerns during its examination of the property. The court dismissed the purchaser's Illinois Environmental Protection Act claim against the prior owners because there is no private right of action under that Act. The court also dismissed the purchaser's CERCLA §113 claim against the prior owners in light of the U.S. Supreme Court's decision in Cooper Industries, Inc. v. Aviall Services, Inc., 543 U.S. 157, 34 ELR 20154 (2004). The purchaser's CERCLA §107 claim against the prior owners, however, was not dismissed. The prior owners argued that the court should abstain from considering this issue under Burford v. Sun Oil Co., 319 U.S. 315 (1943), because the state already provides a forum for resolving UST matters. But CERCLA does not undermine the state UST scheme. The court also denied the prior owners' motions to dismiss the purchasers' Illinois Joint Tortfeasors Contribution Act and fraud claims. In addition, the court refused to dismiss consumer fraud and negligence claims filed against the environmental consulting firm. Neumann v. Carlson Environmental, Inc., No. 03 C 8769, 36 ELR 20081 (N.D. Ill. Apr. 20, 2006) (Gottschall, J.) (10 pp.).

HAZARDOUS SUBSTANCES, PRPs, STANDING:

A district court dismissed an individual's claim for $2,500,000 in compensatory and punitive damages against a PRP of the Omaha, Nebraska Superfund site. The individual lived on the site from the date of his birth until his 18th birthday. He claims that he was exposed to lead in the soil and suffered brain damage, diminished mental capacity and intellectual development as a result. The individual, however, lacks standing. His complaint does not set forth a single fact that the PRP had ownership of the site or that it operated a plant on the site during the time the individual allegedly suffered his injuries. Without this critical link, there is no injury fairly traceable to the PRP. Davis v. Gould Electronics, No. 1:06 CV 0072, 36 ELR 20079 (N.D. Ohio Apr. 21, 2006) (Polster, J.) (2 pp.).

STATE RULEMAKING, HAZARDOUS MATERIALS CHARGES:

The Supreme Court of California reversed a lower court summary judgment decision upholding the state department of toxic substance control's determination that virtually all corporations with 50 or more employees in the state must pay a hazardous materials charge. This determination amounts to a regulation under the state APA. Although the department's interpretation of statutory language was reasonable, it was not plainly ineluctable. Thus, the department cannot avail itself of the APA exception that applies if an agency's construction of a statute represents "the only legally tenable interpretation of a provision of law." A corporation challenging the fee was therefore entitled to relief declaring the scheme invalid. Morning Star Co. v. State Board of Equalization, No. S123481, 36 ELR 20076 (Cal. Apr. 24, 2006) (27 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:

  • EPA finalized regulations to include Delaware and New Jersey in the Clean Air Interstate Rule (CAIR) for particulate matter with a diameter of 2.5 microns or less (PM2.5). 71 FR 25287 (4/28/06).
  • EPA denied North Carolina's CAA §126 petition requesting the Agency to find that sulfur dioxide (SO2) and/or nitrogen oxide (NOx) emissions from electric generating units in 13 states are significantly contributing to PM2.5 and/or eight-hour ozone nonattainment and maintenance problems in North Carolina and instead promulgated federal implementation plans (FIPs) for all jurisdictions covered by the CAIR to address interstate transport. EPA also revised the CAIR SIP model trading rules to address the interaction between the EPA-administered CAIR FIP trading programs and the EPA-administered CAIR state trading programs and revised the Acid Rain Program so that the administrative appeals procedures also apply to EPA-administered FIP trading programs. 71 FR 25327 (4/28/06).
  • EPA announced its final decisions on issues for which it granted petitions for reconsideration of the CAIR rule on December 2, 2005, and December 29, 2005. 71 FR 25303 (4/28/06).
  • EPA is soliciting applications for critical use exemptions from the phaseout of methyl bromide for 2009 and beyond. 71 FR 24698 (4/26/06).
  • EPA delegated Maine the authority to implement and enforce its perchloroethylene dry cleaner regulation in place of the federal dry cleaning NESHAPs for area sources. 71 FR 20895 (4/24/06).
  • EPA proposed to delegate Maine the authority to implement and enforce its perchloroethylene dry cleaner regulation in place of the federal dry cleaning NESHAPs for area sources; see above for direct final rule. 71 FR 20931 (4/24/06).
  • EPA announced the availability of applicability determinations, alternative monitoring decisions, and regulatory interpretations for new source performance standards, NESHAPs, and the stratospheric ozone protection program. 71 FR 21014 (4/24/06).
  • SIP Approvals: Pennsylvania (NOx reasonably available control technology (RACT) determinations) 71 FR 25070 (4/28/06). Tennessee (NOx budget trading program revisions) 71 FR 25072 (4/28/06).
  • SIP Proposals: Pennsylvania (RACT, volatile organic compound (VOC), and NOx determinations) 71 FR 24831 (4/27/06); (RACT, VOC, and NOx determinations) 71 FR 24834 (4/27/06). Tennessee (NOx budget trading program revisions; see above for direct final rule) 71 FR 25123 (4/28/06).

HAZARDOUS WASTE:

  • EPA authorized revisions to Georgia's hazardous waste program under RCRA. 71 FR 23864 (4/25/06).
  • EPA authorized revisions to Missouri's hazardous waste program under RCRA. 71 FR 25079 (4/28/06).
  • EPA proposed to authorize revisions to Georgia's hazardous waste program under RCRA; see above for final rule. 71 FR 23885 (4/25/06).
  • EPA proposed to authorize revisions to Missouri's hazardous waste program under RCRA; see above for immediate final rule. 71 FR 25124 (4/28/06).

WATER:

  • EPA, after determining that the Bear Creek segment is not fully attaining the water quality standards established by the state of Colorado, made a decision to add the creek to the state's list of water quality-limited segments in need of TMDLs. 71 FR 23918 (4/25/06).
  • EPA announced the availability of application and nomination information for its 2006 CWA recognition awards; the awards recognize municipalities and industries for outstanding and innovative technological achievements in wastewater treatment and pollution abatement programs. 71 FR 23919 (4/25/06).
  • EPA announced the availability of its draft guidance, Awards of Grants to Indian Tribes Under Section 106 of the Clean Water Act for Fiscal Year 2007 and Future Years. 71 FR 24852 (4/27/06).

WILDLIFE:

  • FWS announced a 90-day finding on a petition to list the Siskiyou Mountains salamander and Scott Bar salamander as threatened or endangered; the agency found that the petition did not present substantial scientific or commercial information and determined that listing the species is not warranted at this time. 71 FR 23886 (4/25/06).
  • NMFS issued a final rule to implement regulatory and nonregulatory management measures to reduce the incidental mortality and serious injury of the western North Atlantic coastal bottlenose dolphin stock in the mid-Atlantic coastal gillnet fishery and eight other coastal fisheries operating within the dolphin's distributional range; the rule also revises the large mesh size restriction under the mid-Atlantic large mesh gillnet rule for the conservation of endangered and threatened sea turtles. 71 FR 24775 (4/26/06).
  • NMFS, as required by the Marine Mammal Protection Act, published the proposed list of fisheries for 2006; the proposed list reflects new information on interactions between commercial fisheries and marine mammals. 71 FR 20941 (4/24/06).
  • NMFS issued the Washington Department of Fish and Wildlife, the Idaho Department of Fish and Wildlife, and the Bureau of Indian Affairs a permit for the taking of anadromous fish for scientific research. 71 FR 23899 (4/25/06).

MISCELLANEOUS:

  • EPA issued its semiannual regulatory agenda providing specific information on the status of regulations under development and revision. 71 FR 23226 (4/24/06).
  • EPA announced the availability of a memorandum entitled Award of Grants and Cooperative Agreements for the Special Projects and Programs Authorized by the Agency's Fiscal Year 2006 Appropriations Act. 71 FR 25173 (4/28/06).

DOJ NOTICES OF SETTLEMENTS:

  • United States v. AOL Express, Inc., No. C06-5204FDB (W.D. Wash. Apr. 13, 2006). Settling defendants must fund the construction of a salmon habitat restoration project in Pierce County, Washington, must pay the natural resource trustees $150,000 for project oversight, and must pay $1,793,888.46 in trustee damage assessment costs to compensate the trustees for natural resource damages in Commencement Bay, Washington, resulting from releases of hazardous substances. 71 FR 24760 (4/26/06).
  • United States v. Caterpillar, Inc., No. 06-1096-JTM (D. Kan. Apr. 13, 2006). A settling CAA defendant must pay a $300,000 civil penalty and a second settling defendant must perform injunctive relief for their failure to apply for a case-by-case determination of maximum achievable control technology at a manufacturing plant in Emporia, Kansas. 71 FR 24761 (4/26/06).
  • Crane Co. v. United States, Nos. CIV-03-2226-PHX-ROS, -04-1400-PHX-ROS (D. Ariz. Apr. 11. 2006). Settling CERCLA defendants must conduct all necessary investigatory and remedial activities at the Goodyear Airport Area Superfund site in Goodyear, Arizona, must pay $6.7 million to reimburse the United States for its past costs, must pay future response costs, must perform a supplemental environmental project valued at $1 million, and must pay a $500,000 civil penalty. 71 FR 24761 (4/26/06).
  • United States v. NCR Corp., No. 06-CV-00484 (E.D. Wis. Apr. 12, 2006). Settling defendants must implement initial cleanup at a portion of the Lower Fox River and Green Bay Superfund site near Green Bay, Wisconsin, must dredge PCB-contaminated sediments at the site, and must dispose of the dredged sediments in an upland landfill at an estimated cost of $30 million. 71 FR 24761 (4/26/06).
  • United States v. Valero Terrestrial Corp., No. 05:06-CR-43 (N.D. W. Va. Apr. 17, 2006). Settling CAA defendants that failed to install appropriate control technology and failed to conduct an initial performance test and routine monitoring at the Brooke County Sanitary Landfill in Brooke County, West Virginia, must pay a $300,000 civil penalty, plus interest, for violating new source performance standards. 71 FR 24762 (4/26/06).

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

THE CONGRESS

CHAMBER ACTION:

  • S. 592 (Glendo Unit of the Missouri River Basin Project Contract Extension Act of 2005), which would extend the contract for the Glendo Unit of the Missouri River Basin Project in the state of Wyoming, was passed by the House, clearing the measure for the President. 152 Cong. Rec. H1688 (daily ed. Apr. 25, 2006).

COMMITTEE ACTION:

  • S. 476 (land exchange) was reported by the Committee on Energy and Natural Resources. S. Rep. No. 109-231, 152 Cong. Rec. S3419 (daily ed. Apr. 24, 2006). The bill would authorize the Boy Scouts of America to exchange certain land in the state of Utah acquired under the Recreation and Public Purposes Act.
  • S. 1131 (land exchange) was reported by the Committee on Energy and Natural Resources. S. Rep. No. 109-232, 152 Cong. Rec. S3419 (daily ed. Apr. 24, 2006). The bill would authorize the exchange of certain federal land within the state of Idaho.
  • S. 1165 (James Campbell National Wildlife Refuge) was reported by the Committee on Resources. S. Rep. No. 109-429, 152 Cong. Rec. H1740 (daily ed. Apr. 25, 2006). The bill would provide for the expansion of the James Campbell National Wildlife Refuge in Honolulu County, Hawaii.
  • S. 1288 (national parks) was reported by the Committee on Energy and Natural Resources. S. Rep. No. 109-233, 152 Cong. Rec. S3419 (daily ed. Apr. 24, 2006). The bill would authorize the Secretary of the Interior to enter into cooperative agreements to protect natural resources of the National Park System through collaborative efforts on land inside and outside of the System.
  • S. 1346 (maritime sites) was reported by the Committee on Energy and Natural Resources. S. Rep. No. 109-234, 152 Cong. Rec. S3419 (daily ed. Apr. 24, 2006). The bill would direct the Secretary of the Interior to conduct a study of maritime sites in the state of Michigan.
  • S. 1378 (National Historic Preservation Act) was reported by the Committee on Energy and Natural Resources. S. Rep. No. 109-235, 152 Cong. Rec. S3419 (daily ed. Apr. 24, 2006). The bill would amend the National Historic Preservation Act to provide appropriation authorization and improve the operations of the Advisory Council on Historic Preservation.
  • S. 1869 (Coastal Barrier Resources Act) was reported by the Committee on Resources. S. Rep. No. 109-428, 152 Cong. Rec. H1740 (daily ed. Apr. 25, 2006). The bill would reauthorize the Coastal Barrier Resources Act.
  • S. 1970 (National Trails System Act) was reported by the Committee on Energy and Natural Resources. S. Rep. No. 109-239, 152 Cong. Rec. S3419 (daily ed. Apr. 24, 2006). The bill would amend the National Trails System Act to update the feasibility and suitability study originally prepared for the Trail of Tears National Historic Trail and provide for the inclusion of new trail segments, land components, and campgrounds associated with that trail.
  • S. 2253 (oil and gas leasing) was reported by the Committee on Energy and Natural Resources. S. Rep. No. 109-240, 152 Cong. Rec. S3419 (daily ed. Apr. 24, 2006). The bill would require the Secretary of the Interior to offer the 181 Area of the Gulf of Mexico for oil and gas leasing.
  • H.R. 122 (Reclamation Wastewater and Groundwater Study and Facilities Act) was reported by the Committee on Resources. S. Rep. No. 109-423, 152 Cong. Rec. H1740 (daily ed. Apr. 25, 2006). The bill would amend the Reclamation Wastewater and Groundwater Study and Facilities Act to authorize the Secretary of the Interior to participate in the Eastern Municipal Water District Recycled Water System Pressurization and Expansion Project.
  • H.R. 318 (national parks) was reported by the Committee on Energy and Natural Resources. S. Rep. No. 109-241, 152 Cong. Rec. S3419 (daily ed. Apr. 24, 2006). The bill would authorize the Secretary of the Interior to study the suitability and feasibility of designating Castle Nugent Farms located on St. Croix, Virgin Islands, as a unit of the National Park System.
  • H.R. 326 (national heritage area) was reported by the Committee on Energy and Natural Resources. S. Rep. No. 109-242, 152 Cong. Rec. S3419 (daily ed. Apr. 24, 2006). The bill would amend the Yuma Crossing National Heritage Area Act of 2000 to adjust the boundary of the Yuma Crossing National Heritage Area.
  • H.R. 409 (national forests) was reported by the Committee on Energy and Natural Resources. S. Rep. No. 109-242, 152 Cong. Rec. S3419 (daily ed. Apr. 24, 2006). The bill would provide for the exchange of land within the Sierra National Forest, California.
  • H.R. 518 (migratory bird conservation) was reported by the Committee on Resources. S. Rep. No. 109-421, 152 Cong. Rec. H1740 (daily ed. Apr. 25, 2006). The bill would require the Secretary of the Interior to refine the DOI program for providing assistance for the conservation of neotropical migratory birds.
  • H.R. 1129 (land exchange) was reported by the Committee on Energy and Natural Resources. S. Rep. No. 109-245, 152 Cong. Rec. S3419 (daily ed. Apr. 24, 2006). The bill would authorize the exchange of certain land in the state of Colorado.
  • H.R. 1307 (Wild and Scenic Rivers Act) was reported by the Committee on Resources. S. Rep. No. 109-427, 152 Cong. Rec. H1740 (daily ed. Apr. 25, 2006). The bill 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.
  • H.R. 1728 (national parks) was reported by the Committee on Energy and Natural Resources. S. Rep. No. 109-246, 152 Cong. Rec. S3419 (daily ed. Apr. 24, 2006). The bill would authorize the Secretary of the Interior to study the suitability and feasibility of designating portions of Ste. Genevieve Country in the state of Missouri as a unit of the National Park System.
  • H.R. 2563 (water shortages) was reported by the Committee on Resources. S. Rep. No. 109-420, 152 Cong. Rec. H1740 (daily ed. Apr. 25, 2006). The bill would authorize the Secretary of the Interior to conduct feasibility studies to address certain water shortages within the Snake, Boise, and Payette River systems in Idaho.
  • H.R. 2978 (water rights) was reported by the Committee on Resources. S. Rep. No. 109-419, 152 Cong. Rec. H1740 (daily ed. Apr. 25, 2006). The bill would allow the Assiniboine and Sioux Tribes of the Fort Peck Indian Reservation to enter into a lease or other temporary conveyance of water rights recognized under the Fort Peck-Montana Compact for the purpose of meeting the water needs of the Dry Prairie Rural Water Association, Inc.
  • H.R. 3443 (water distribution facilities) was reported by the Committee on Energy and Natural Resources. S. Rep. No. 109-248, 152 Cong. Rec. S3419 (daily ed. Apr. 24, 2006). The bill would direct the Secretary of the Interior to convey certain water distribution facilities to the Northern Colorado Water Conservancy District.
  • H.R. 3462 (land conveyance) was reported by the Committee on Resources. S. Rep. No. 109-418, 152 Cong. Rec. H1740 (daily ed. Apr. 25, 2006). The bill would provide for the conveyance of BLM parcels known as the White Acre and Gambel Oak properties and related real property to Park City, Utah.
  • H.R. 3682 (wildlife refuge) was reported by the Committee on Resources. S. Rep. No. 109-433, 152 Cong. Rec. H1740 (daily ed. Apr. 25, 2006). The bill would redesignate the Mason Neck National Wildlife Refuge in Virginia as the Elizabeth Hartwell Mason Neck National Wildlife Refuge.
  • H.R. 3967 (Pactola Dam and Reservoir) was reported by the Committee on Resources. S. Rep. No. 109-431, 152 Cong. Rec. H1740 (daily ed. Apr. 25, 2006). The bill would authorize the Secretary of the Interior to reallocate costs of the Pactola Dam and Reservoir, South Dakota, to reflect increased demands for municipal, industrial, and fish and wildlife purposes.
  • H.R. 4080 (Missouri River Basin Project) was reported by the Committee on Resources. S. Rep. No. 109-432, 152 Cong. Rec. H1740 (daily ed. Apr. 25, 2006). The bill would extend the contract for the Glendo Unit of the Missouri River Basin Project in the state of Wyoming.
  • H.R. 4204 (American River Pump Station Project) was reported by the Committee on Resources. S. Rep. No. 109-430, 152 Cong. Rec. H1740 (daily ed. Apr. 25, 2006). The bill would direct the Secretary of the Interior to transfer ownership of the American River Pump Station Project.

BILLS INTRODUCED:

  • S. 2627 (Domenici, R-N.M.) (national parks) would amend the Act of August 21, 1935, and extend the authorization for the National Park System Advisory Board. 152 Cong. Rec. S3420 (daily ed. Apr. 24, 2006). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2633 (Burns, R-Mont.) (national forests) would grant rights-of-way to owners of dams located in the Bitterroot National Forest in the state of Montana. 152 Cong. Rec. S3420 (daily ed. Apr. 24, 2006). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2645 (Allen, R-Va.) (national heritage areas) would establish the Journey Through Hallowed Ground National Heritage Area. 152 Cong. Rec. S3506 (daily ed. Apr. 25, 2006). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2662 (Smith, R-Or.) (salmon fishery restrictions) would direct the Secretary of Commerce to provide emergency disaster assistance to mitigate the economic losses caused by salmon fishery restrictions along the California and Oregon coast. 152 Cong. Rec. S3588 (daily ed. Apr. 26, 2006). The bill was referred to the Committee on Finance.
  • H.R. 5180 (Hayworth, R-Ariz.) (conservation program) would authorize appropriations for the Bureau of Reclamation to carry out the Lower Colorado River Multi-Species Conservation Program in the states of Arizona, California, and Nevada. 152 Cong. Rec. H1741 (daily ed. Apr. 25, 2006). The bill was referred to the Committee on Resources.
  • H.R. 5195 (Wolf, R-Va.) (national heritage area) would establish the Journey Through Hallowed Ground National Heritage Area. 152 Cong. Rec. H1742 (daily ed. Apr. 25, 2006). The bill was referred to the Committee on Resources.

 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 Indiana Montana Virginia Colorado Iowa New Jersey Washington Florida Louisiana Ohio Illinois Maryland Tennessee

 

CALIFORNIA

Air:

  • The Air Resources Board is holding a public workshop regarding proposed amendments to the procedures for reporting failures of emission-related components. The workshop will be held May 2, 2006. Written comments are due April 25, 2006. See http://www.arb.ca.gov/msprog/mailouts/mso0601/mso0601.pdf
  • The Air Resources Board has scheduled public workshops to discuss the staff report and technical support document entitled, "Review of the California Ambient Air Quality Standard For Nitrogen Dioxide." The report contains findings and recommendations for revising the California one-hour ambient air quality standard for nitrogen dioxide (NO2) and establishing a new annual California standard for NO2. The workshops will be held May 8 and 11, 2006. See http://www.arb.ca.gov/research/aaqs/no2-rs/no2-ws.htm

COLORADO

Air:

  • The Air Quality Control Commission will hold a hearing to consider proposed revisions to the Common Provisions Regulation and Regulation No. 3 to address issues identified by U.S. EPA during review of Colorado’s SIP in 2005, to incorporate federal changes to the new source review program, to revise the definition of "volatile organic compounds" and the list of hazardous air pollutants consistent with federal actions, and to make technical corrections. The hearing will be held August 17, 2006. See http://www.cdphe.state.co.us/op/aqcc/aqccdown/noticeaug06reg3.pdf

Water:

FLORIDA

Water:

  • The Department of Environmental Protection announces the promulgation of a rule establishing a TMDL and its allocation for a portion of the Choctawhatchee River from the state line to Wrights Creek. The purpose of the proposed rule is to establish fecal and total coliform TMDLs. If requested within 21 days of the date of this notice, a hearing will be held on May 18, 2006. See http://tlhora6.dep.state.fl.us/onw/publications/11-NPRChoctawhatchee-4-21-06-INT.pdf
  • The Department of Environmental Protection announces the promulgation of a rule establishing TMDLs and their allocations for three impaired segments of the Upper St. Johns River (St. Johns River above Lake Poinsett, Lake Hell n' Blazes, and St. Johns River above Sawgrass Lake). If requested within 21 days of the date of this notice, a hearing will be held on May 18, 2006. See http://tlhora6.dep.state.fl.us/onw/publications/13-NPRUpperSJohns-4-21-06-INT.pdf
  • The Department of Environmental Protection announces the promulgation of a rule establishing TMDLs and their allocations for four impaired waters within the Middle St. Johns River Basin (Lake Jesup, Crane Strand Drain, Crane Strand, and Long Branch). If requested within 21 days of the date of this notice, a hearing will be held on May 18, 2006. See http://tlhora6.dep.state.fl.us/onw/publications/12-NPRMiddleSJohns-4-21-06-INT.pdf
  • The Department of Environmental Protection announces the promulgation of a rule establishing a TMDL and its allocation for Nine Mile Canal, an impaired water in the Caloosahatchee River Basin. If requested within 21 days of the date of this notice, a hearing will be held on May 18, 2006. See http://tlhora6.dep.state.fl.us/onw/publications/10-NPRNineMileCanal-4-21-06-INT.pdf
  • The Department of Environmental Protection made a correction to proposed Rule No. 62-304.500, concerning the Ocklawaha River Basin TMDL, published on April 14, 2006. The change corrects a typographical error that may be substantive in nature. See http://tlhora6.dep.state.fl.us/onw/publications/6-CNOC62304500-4-21-06-INT.pdf

ILLINOIS

Air:

INDIANA

Air:

Hazardous & Solid Wastes:

  • The Solid Waste Management Board proposed to amend 329 IAC 4.1, concerning regulation of wastes containing PCBs, to update the incorporation by reference of the Code of Federal Regulations, update the viewing/copying location and addresses, clarify public notice requirements, remove the language relating to manifests to reflect the current statute, simplify certain notifications, and update references. A public hearing will be held July 18, 2006. See http://www.in.gov/legislative/register/Vol29/08May/08P329050219.PDF

Land Use:

  • The Natural Resource Commission proposed to amend 312 IAC 25-6-143 to allow commercial forest resources on reclaimed prime farmland provided that soil productivity is demonstrated according to soil productivity standards, and proposed to amend 312 IAC 25-4-102 to require an applicant that proposes to establish commercial forest resources on prime farmland to submit a commercial forest planting plan, commercial forest management plan, and documentation of landowner consent. A public hearing will be held June 2, 2006. See http://www.in.gov/legislative/register/Vol29/08May/08P312060067.PDF
  • The Natural Resources Commission proposed to amend 312 IAC 25-1-57, 312 IAC 25-4-87, 312 IAC 25-5-16, 312 IAC 25-6-20, 312 IAC 25-6-66, and 312 IAC 25-7-1, to assist in the administration of IC 14-34, the Indiana Surface Control and Reclamation Act, to help assure conformance with state and federal law, to qualify approved reclamation projects financed with less than 50% federal funding as "government-financed construction," to remove requirements for submittal of an application for water impoundments of less than 100-acre feet and exempt impoundments that are entirely contained within an incised structure from examination requirements, to add provisions allowing the director of the Department of Natural Resources to initiate an application for bond release and clarify the procedure for conducting informal conferences regarding a proposed bond release, to clarify requirements for construction or reconstruction of primary roads, and to clarify the definition of "abandoned site" as used in 312 IAC 25-7-1. A public hearing will be held June 2, 2006. See http://www.in.gov/legislative/register/Vol29/08May/08P312060068.PDF

Toxic Substances:

  • The Indiana Pesticide Review Board adopted 357 IAC 1-12 to establish definitions for the term "drift" and other related terms and to prohibit anyone from applying a pesticide in a manner that results in drift of the pesticide from the target site in sufficient quantities to cause harm to a nontarget site. See http://www.in.gov/legislative/register/Vol29/08May/02F357050215.PDF

Water:

  • The Natural Resources Commission created a temporary rule that amends 312 IAC 18-3 to regulate Brazilian elodea (Egeria densa) as a pest or pathogen. Effective March 28, 2006. See http://www.in.gov/legislative/register/Vol29/08May/06E312060088.PDF
  • The Water Pollution Control Board proposed to amend 327 IAC 8-2-8.2, 327 IAC 8-2.5-6, 327 IAC 8-2.5-7, 327 IAC 8-2.5-8, 327 IAC 8-2.5-9, 327 IAC 8-2.6-6, 327 IAC 8-11- 1, 327 IAC 8-12-1, 327 IAC 8-12-2, 327 IAC 8-12-3, 327 IAC 8-12-3.2, 327 IAC 8-12-3.4, 327 IAC 8-12-3.6, 327 IAC 8-12-4, 327 IAC 8-12-6, 327 IAC 8-12-7, and 327 IAC 8-12-7.5 and to add 327 IAC 8-12-3.5 and 327 IAC 8-12-4.5 concerning sanitary surveys and operator certification. A public hearing will be held May 10, 2006. See http://www.in.gov/legislative/register/Vol29/08May/08P327050255.PDF

IOWA

Water:

  • The Environmental Protection Commission amended Chapter 65 of the Iowa Administrative Code, "Animal Feeding Operations." The amendment corrects an erroneous omission in prior amendments separating Chapter 65 into two divisions, one for confinement operations and one for open feedlots, and specifying minimum design standards for open feedlot manure and effluent control systems, that were adopted and filed and published in the April 12, 2006, Iowa Administrative Bulletin as ARC 5046B. Effective May 17, 2006. See http://www.legis.state.ia.us/Rules/Current/Bulletin/IAB060426.pdf

LOUISIANA

Air:

  • The Department of Environmental Quality declared that an emergency action is necessary to implement rules concerning the use of new or revised emissions estimation methods for annual compliance certifications under LAC 33:III.507.H. This is a renewal of Emergency Rule AQ240E4, which was effective on December 23, 2005, and published in the Louisiana Register on January 20, 2006. This Emergency Rule clarifies requirements set forth in LAC 33:III.919, concerning emissions inventory, and LAC 33:III.507.H, concerning annual compliance certifications. Effective April 22, 2006. See http://www.deq.louisiana.gov/portal/portals/0/planning/regs/pdf/AQ240E5.pdf

MARYLAND

Air:

  • The Air and Radiation Management Administration will hold a public hearing concerning proposed regulations under a new chapter, COMAR 26.11.27, Clean Power Regulations. The regulations are to: (1) set emission limitations for oxides of nitrogen and sulfur dioxide on Maryland's six largest electric power plants to ensure that Maryland attains the new health-based NAAQS for ozone and fine particles by the 2010 attainment deadline; (2) reduce atmospheric deposition of nitrogen to the Chesapeake Bay and other waters of the state; and (3) establish limits on emissions of mercury from the power plants subject to these regulations. The hearing will be held May 31, 2006. Written comments are due May 31, 2006. See http://www.mde.state.md.us/calendar/event.asp?id=913&rframe=0&cid=19%2C+20%2C+23&type=0&date=5%2F1%2F2006

MONTANA

Air:

  • The Board of Environmental Review amended ARM 17.8.504, 17.8.505, 17.8.744, and 17.8.1204 and adopted new rules I through IX pertaining to the establishment of a registration system for certain facilities that presently require an air quality permit. Effective April 7, 2006. See http://www.deq.state.mt.us/dir/legal/Notices/17-238adp.pdf

Hazardous & Solid Wastes:

Toxic Substances:

NEW JERSEY

Water:

  • The Department of Environmental Protection has readopted with amendments the Coastal Permit Program Rules. The Coastal Permit Program Rules at N.J.A.C. 7:7 establish the procedures by which the Department reviews permit applications and appeals from permit decisions under the Coastal Area Facility Review Act (N.J.S.A. 13:19-1 et seq.), the Waterfront Development Law (N.J.S.A. 12:5-3 et seq.), and the Wetlands Act of 1970 (N.J.S.A. 13:9A-1 et seq.). Amendments include: additions to the definitions section; the establishment of a process for obtaining jurisdictional determinations; corrections of typographical errors; clarifications of certain language; amendments to various general permits; and the addition of two new general permits, general permit #27 for geotechnical borings and general permit #29 for habitat enhancement. Effective Mary 21, 2006. See http://www.nj.gov/dep/rules/adoptions.html

OHIO

Air:

  • The Ohio Environmental Protection Agency (Ohio EPA) proposed to amend OAC rule 3745-14-05, Nitrogen Oxide (NOx) Allowance Allocations; OAC rule 3745-72-01, Applicability; and OAC rule 3745-72-02, Definitions. The amendments address a shortfall in the full replacement of emission reductions required for the replacement of the "E-Check" program in the Cincinnati/Dayton metropolitan areas as a result of the lack of the low-Reid vapor pressure (RVP) fuel program for the 2006 ozone season. A public hearing will be held June 2, 2006. See http://www.registerofohio.state.oh.us/pdfs/phn/3745_NO_30719_20060424_0856.pdf
  • The Ohio Environmental Protection Agency will be adopting the following emergency rules: OAC rule 3745-14-05, Nitrogen Oxide Allowance Allocations; OAC rule 3745-72-01, Applicability; and OAC rule 3745-72-02, Definitions. The emergency rule amendments are being adopted to address a shortfall in the full replacement of emission reductions required for the replacement of the "E-Check" program in the Cincinnati/Dayton metropolitan areas as a results of the lack of the low-Reid vapor pressure fuel program for the 2006 ozone season. Effective from April 24, 2006, to July 23, 3006. See http://www.registerofohio.state.oh.us/pdfs/phn/3745_NO_PREFILE_20060424_1114.pdf

Water:

  • The Director of Environmental Protection proposed to revise rules 3745-1-08, 3745-1-09, 3745-1-11, 3745-1-12, 3745-1-13, 3745-1-15, 3745-1-19, 3745-1-21, 3745-1-22, 3745-1-26, and 3745-1-28 of the Administrative Code. The revisions change beneficial use designations (aquatic life, water supply, and recreational categories) for specified water bodies in the Hocking River, Scioto River, Maumee River, Sandusky River, Central Ohio Tributaries, Little Beaver Creek, Huron River, Great Miami River, Chagrin River, Cuyahoga River, and Vermilion River drainage basins. A public hearing will be held May 31, 2006. See http://www.registerofohio.state.oh.us/pdfs/phn/3745_NO_30738_20060425_0827.pdf

TENNESSEE

Water:

VIRGINIA

Water:

  • The Department of Environmental Quality will hold public meeting on the development of TMDLs in the Jackson River watershed to address dissolved oxygen levels and biological impairments. The stream segments are located in Alleghany and Botetourt Counties and in Covington. The public comment period begins on June 8, 2006, and ends on July 8, 2006. The meeting will be held June 8, 2006. See  http://www.townhall.state.va.us/meeting/ViewMeeting.cfm?Meeting_ID=7336

WASHINGTON

Air:

  • The Department of Ecology proposed amendments to Chapter 173–430 WAC, Agricultural Burning. The department is initiating rulemaking to comply with a settlement agreement and to fulfill the mandatory regulatory review described in the Washington State Administrative Procedure Act, Chapter 34.05 RCW. The primary accomplishment of this review and update is to address legislative changes, technological changes, and settlement agreement items. Public hearings will be held May 23, 24, 25, and 30, 2006. See http://www.ecy.wa.gov/laws-rules/wac173430/p0410.pdf

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

INTERNATIONAL

SPAIN CALLS FOR COOPERATION WITH NORWAY TO PROTECT FISHERIES:

INDIAN STATE INTRODUCES MOBILE POLLUTION LAB:

  • The Pollution Control Board of the Indian state of Goa will launch a mobile lab that can investigate complaints of pollution. The lab is equipped to measure problems such as water contamination and sound pollution, and will keep tabs on industrial facilities and mines. See http://www.newkerala.com/news2.php?action=fullnews&id=49712

BRITAIN CONSIDERS BURYING NUCLEAR WASTE:

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

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