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Weekly Update Volume 36, Issue 14

05/08/2006

LITIGATION

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

TAKINGS, STATUTE OF LIMITATIONS:

The Federal Circuit reversed the dismissal of the Louisiana Fish & Game Preserve Commission's takings claim against the United States in a case involving a conflict between the state commission's duty to maintain the Northwest Fish and Game Preserve and the U.S. Army Corps of Engineers' responsibility to maintain year-round riparian navigation along the Red River. The commission argued that the Corps's Red River navigation project prevented it from being able to draw down the level of Louisiana’s Black Lake. Accordingly, the commission could not control the growth of vegetation in the lake, thereby rendering the northern part of the lake inaccessible, unmanageable, and virtually useless. The lower court dismissed the case, holding that the takings claim accrued no later than December 1994 at which time the commission knew or should have known that damage would occur due to a rise in water levels. Because the claim was filed in 2001, the six-year statute of limitations process expired. But when damages from a taking emerge gradually, a litigant may postpone a suit for a taking until "the situation becomes stabilized." Here, the growth of natural vegetation was a slow process, and the growth and resulting harm had not stabilized until at least 1997. The takings claim, therefore, is not time-barred. Northwest Louisiana Fish & Game Preserve Commission v. United States, No. 05-5031, 36 ELR 20082 (Fed Cir. May 2, 2006) (20 pp.).

CERCLA, JOINT AND SEVERAL LIABILITY, PREEMPTION:

A district court granted in part and denied in part motions to dismiss CERCLA and state law claims against a company that caused the release of hazardous substances on a landowner's property while it was removing equipment from that property. If the landowner is a PRP, the company is correct that the landowner's claim for joint and several liability under CERCLA §107 must be dismissed because, as currently pled, the complaint seeks to hold defendants jointly and severally liable for the full amount of the recovery costs. However, to the extent that the company suggests that the landowner can only bring a claim for equitable contribution under CERCLA §113 and not CERCLA §107, it is incorrect. The landowner was given leave to amend the complaint to clarify whether it is a PRP. If so, it is limited to seeking contribution. Alternatively, it may seek joint and several liability against the company if it pleads it is an innocent landowner. In addition, the complaint sufficiently alleges that the company is a PRP, and the landowner's nuisance and negligence claims are not preempted by CERCLA. Sunnyside Development Corp. v. Opsys U.S. Corp., No. C 05-01447 SI, 36 ELR 20083 (N.D. Cal. Apr. 27, 2006) (Illston, J.) (5 pp.).

CWA, STORMWATER PERMITS, MOOTNESS:

A district court held that a timber company's procurement of a general permit for stormwater discharges stemming from its logging activities in Bear Creek, California, does not render an environmental group's CWA action against the company moot. The timber company failed to meet its burden to prove that the alleged violations underlying the group's lawsuit are unlikely to recur. Moreover, the court will be able to grant the group relief. At the very least, the group's claim for civil penalties would remain viable if it were to prevail on the merits of its claims. The court also dismissed the group's motion for summary judgment as to the timber company's liability. Just because the company applied for a stormwater permit does not mean that it has conceded that it has made unpermitted discharges, and the group failed to produce evidence that the company has discharged stormwater or pollutants from a point source into Bear Creek. Environmental Protection Information Center v. Pacific Lumber Co., No. C 01-2821 MHP, 36 ELR 20084 (N.D. Cal. Apr. 28, 2006) (Patel, J.) (13 pp.).

TAKINGS, CONDITIONAL USE PERMITS:

A California appellate court held that a county did not effect a physical or regulatory taking when it imposed conditions on a landowner's permit to activate a well on its property. The conditional use permit limited the landowner from extracting no more than 12,000 acre/feet per year of water from the aquifer underlying its property. The imposition of a permit condition limiting the total quantity of groundwater available for the landowner's use cannot be characterized as or analogized to the kinds of permanent physical occupancies or invasions sufficient to constitute a categorical physical taking, and the court refused to apply Tulare Lake Basin Water Storage Dist. v. United States, 49 Fed. Cl. 313, 31 ELR 20648 (2001), as support for the proposition that use restrictions on underground water rights are analogous to a categorical physical taking. Nor do the restrictions constitute a regulatory taking. The conditions do not deprive the landowner of all economic use of the property, and the landowner was not deprived of reasonable investment-backed expectations. Further, the permit conditions advance a legitimate governmental objective. Allegretti & Co. v. County of Imperial, D045156, 36 ELR 20085 (Cal. Ct. App. 4th Dist. Mar. 28, 2006) (33 pp.) (Defense counsel included Antonio Rossmann of Rossmann and Moore, LLP, in San Francisco, Cal.).

LAND USE, BUFFER ZONES:

The New Jersey appellate court upheld a New Jersey regulation that creates a 300-foot buffer on each side of water bodies designated as "Category 1" waters and their associated perennial or intermittent streams. Category 1 waters exhibit exceptional characteristics that require special protection. The regulation falls within the scope of the state agency's statutorily delegated authority, and there was an adequate factual basis to support the creation of the 300-foot buffers. The state agency used not only water quality, but habitat and other values in prescribing the buffer size. And the building association challenging the regulation contested neither the technical and scientific justification for such protective measures nor the need for some regulation in the area. In re Stormwater Management Rules, A-3847-03T3, 36 ELR 20086 (N.J. Super. Ct. App. Div. Apr. 12, 2006) (23 pp.).

CWA, NPDES PERMIT:

The EPA Environmental Appeals Board denied a town's petition to review its NPDES permit for its wastewater treatment plant. The town challenged the permit's imposition of new, more stringent effluent limits on discharges of copper, nickel, and zinc. But the town made no showing of clear error, abuse of discretion, or important policy matter warranting review of the permit. In re Scituate Wastewater Treatment Plan, NPDES Appeal No. 04-17, 36 ELR 41300 (EPA EAB Apr. 19, 2006) (42 pp.).

RCRA, CORPORATE OFFICERS:

An EPA administrative law judge denied EPA's motion for leave to file a third amended complaint against a chemical manufacturer for RCRA violations. EPA sought to amend its complaint that it had filed on February 24, 2006, by adding twp corporate officers as respondents because it believed them to be operators of the RCRA facility over which they both exercised complete control. Adding the two officers to the complaint, however, would further delay the case and would unfairly burden both the existing and proposed respondents. In re Zaclon, RCRA No. 05-2004-0019, 36 ELR 47870 (EPA ALJ Apr. 21, 2006) (9 pp.).

RCRA, DEFAULT ORDER:

An EPA administrative law judge (ALJ) granted a motion to set aside a default order against the owner and operator of a hazardous waste facility for RCRA violations. The default order found the individual liable for RCRA violations at the facility and assessed a $103,738 civil penalty against him. The individual, however, mistakenly believed that EPA's enforcement action was against his corporation and not against him directly. The ALJ held that it was reasonable for the individual to be mistaken and, therefore, set aside the default order and reopened the record. In re Mathys, RCRA No. 03-2005-0191, 36 ELR 47871 (EPA ALJ Apr. 17, 2006) (3 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 amended certain provisions of the Highway Diesel Rule and the Nonroad Diesel Rule to help facilitate compliance with the diesel fuel regulations and ensure a smooth transition to ultra low sulfur diesel fuel. 71 FR 25705 (5/1/06).
  • EPA proposed to amend the Highway Diesel Rule and the Nonroad Diesel Rule to help facilitate compliance with the diesel fuel regulations and ensure a smooth transition to ultra low sulfur diesel fuel; see above for direct final rule. 71 FR 25727 (5/1/06).
  • EPA proposed to amend NESHAPs for site remediation activities that were promulgated on October 8, 2003, to resolve questions subsequent to promulgation, to correct technical omissions, and to correct typographical errors. 71 FR 25531 (5/1/06).
  • EPA designated two new reference methods for measuring concentrations of nitrogen dioxide and carbon monoxide in the ambient air and three new equivalent methods for measuring concentrations of sulfur dioxide and ozone in the ambient air. 71 FR 25587 (5/1/06).
  • EPA announced a proposed settlement in Utility Air Regulatory Group v. EPA, No. 06-1056 (D.C. Cir.), that requires the Agency to issue guidance on its regional haze regulations and its guidelines for best available retrofit technology determinations. 71 FR 25838 (5/2/06).
  • EPA, under CAA §211(e), canceled the registration of the Platinum GaSaver fuel additive for nonsubmittal of applicable test data 71 FR 25840 (5/2/06).
  • EPA delegated authority to Texas to implement and enforce certain federal NESHAPs within the state. 71 FR 25753 (5/2/06).
  • EPA proposed to delegate authority to Texas to implement and enforce certain federal NESHAPs; see above for direct final rule. 71 FR 25802 (5/2/06).
  • EPA issued PSD permits to Newmont Nevada Energy Investment, LLC, to construct a 200 megawatt (MW) pulverized coal-fired boiler plant near Dunphy, Nevada; to Hawaii Electric Light Company to construct two 20 MW combustion turbine generators in Keahole, Hawaii; and to Peabody Western Coal Company to operate two contiguous coal mines in northeastern Arizona on the reservations of the Navajo Nation and the Hopi Tribe. 71 FR 26497 (5/5/06).
  • EPA denied petitions to object to state operating permit amendments issued by the Georgia Environmental Protection Division to several Georgia Power Company facilities within the state. 71 FR 26364 (5/4/06).
  • SIP Proposals: Pennsylvania (volatile organic compounds (VOCs) and nitrogen oxides (NOx); stationary sources) 71 FR 26297 (5/4/06). New York (NOx and VOCs; stationary sources) 71 FR 25800 (5/2/06). West Virginia (eight-hour ozone NAAQS) 71 FR 26299 (5/4/06).

HAZARDOUS WASTE:

  • EPA entered into a proposed administrative settlement under CERCLA §122(i) for past response costs incurred at the Estate of Evelyn Porter Superfund site in Foxborough, Massachusetts; the settling party must pay 100% of the net liquid assets of the estate and 100% of the net sales proceeds from the sale of the site to the Hazardous Substance Superfund. 71 FR 26499 (5/5/06).
  • EPA, under CERCLA §122(h)(1), entered into a proposed settlement for the partial reimbursement of past response costs concerning the Baxley Complaint Superfund site in Baxley, Georgia. 71 FR 25841 (5/2/06).

MINING:

  • OSM proposed to approve an amendment to Kentucky's regulatory program under SMCRA; the proposed revisions make the state program consistent with corresponding federal regulations and SMCRA. 71 FR 25989 (5/3/06).

PUBLIC LANDS:

  • FWS proposed to revise the jurisdiction of the Federal Subsistence Management Program by adding submerged lands and waters in the area of Makhnati Island, near Sitka, Alaska; this revision would allow federal subsistence users to harvest marine resources in this area under the seasons, harvest limits, and methods specified in federal subsistence management regulations. 71 FR 25528 (5/1/06).

WILDLIFE:

  • FWS announced a 90-day finding on a petition to list the Andrews' dune scarab beetle as threatened or endangered under the ESA; it determined that listing the beetle is not warranted at this time. 71 FR 26444 (5/5/06).
  • NMFS announced that it issued an incidental harassment authorization to Kuukpik Veritas DGC to take small numbers of marine mammals, by harassment, for the purpose of conducting on-ice vibroseis seismic operations in the Harrison Bay portion of the western U.S. Beaufort Sea. 71 FR 26336 (5/4/06).

DOJ NOTICES OF SETTLEMENTS:

  • United States v. Alabama Power Co., No. 2:01-cv-00152-VEH (N.D. Ala. Apr. 24, 2006). A settling CAA defendant who violated PSD requirements at its coal-fired electric power plant in Jefferson County, Alabama, must commence continuous year-round operation of selective catalytic reduction technology for control of nitrogen oxide (NOX) emissions on a year-round basis beginning in 2008; must install and begin year-round operation of flue gas desulfurization technology for control of sulfur dioxide (SO2) emissions by December 31, 2011; must achieve by December 31, 2006, and thereafter maintain a specified emission rate for particulate matter emissions; must install and operate by December 31, 2008, a mercury continuous emissions monitoring system; must purchase and permanently retire $4.9 million worth of vintage 2007 SO2 emissions allowances; must restrict its right to transfer any surplus SO2 emissions allowances it may generate after the year 2020; and must pay a civil penalty of $100,000. 71 FR 26109 (5/3/06).
  • CoZinCo, Inc. v. United States Environmental Protection Agency, No. 98-K-1724 (D. Colo. Apr. 21, 2006). A settling CERCLA defendant must pay $100,000 in past and future response costs for groundwater contamination at Operable Unit 3 of the Smeltertown Superfund site in Salida, Colorado. 71 FR 26110 (5/3/06).

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

THE CONGRESS

COMMITTEE ACTION:

  • H.R. 3418 (Reclamation Wastewater and Groundwater Study and Facilities Act) was reported by the Committee on Resources. H. Rep. No. 109-442, 152 Cong. Rec. H1914 (daily ed. Apr. 27, 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 Central Texas Water Recycling and Reuse Project.
  • H.R. 4013 (Reclamation Projects Authorization and Adjustment Act of 1992) was reported by the Committee on Resources. H. Rep. No. 109-443, 152 Cong. Rec. H1915 (daily ed. Apr. 27, 2006). The bill would amend the Reclamation Projects Authorization and Adjustment Act of 1992 to provide for conjunctive use of surface and groundwater in Juab County, Utah.
  • H.R. 4686 (fisheries) was reported by the Committee on Resources. H. Rep. No. 109-444, 152 Cong. Rec. H1915 (daily ed. Apr. 27, 2006). The bill would reauthorize various fisheries management laws.

BILLS INTRODUCED:

  • S. 2667 (Boxer, D-Cal.) (river revitalization) would revitalize the Los Angeles River. 152 Cong. Rec. S3703 (daily ed. Apr. 27, 2006). The bill was referred to the Committee on Environment and Public Works.
  • S. 2669 (Reid, D-Nev.) (Omnibus Parks and Public Lands Management Act of 1996) would amend the Omnibus Parks and Public Lands Management Act of 1996 to authorize the Secretary of the Interior to enter into cooperative agreements with any of the management partners of the Boston Harbor Islands National Recreation Area. 152 Cong. Rec. S3703 (daily ed. Apr. 27, 2006). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2676 (Crapo, R-Idaho) (national forests) would authorize the Secretary of Agriculture to enter into partnership agreements with entities and local communities to encourage greater cooperation in the administration of Forest Service activities on or near National Forest System land. 152 Cong. Rec. S3704 (daily ed. Apr. 27, 2006). The bill was referred to the Committee on Agriculture, Nutrition, and Forestry.
  • S. 2696 (Talent, R-Mo.) ( Farm Security and Rural Investment Act of 2002) would extend all of the authorizations of appropriations and direct spending programs under the Farm Security and Rural Investment Act of 2002 until after implementing legislation for the Doha Development Round of World Trade Organization negotiations is enacted into law. 152 Cong. Rec. S3893 (daily ed. May 2, 2006). The bill was referred to the Committee on Agriculture, Nutrition, and Forestry.
  • S. 2698 (Allard, R-Colo.) (national parks) would establish the Granada Relocation Center National Historic Site as an affiliated unit of the National Park System. 152 Cong. Rec. S3893 (daily ed. May 2, 2006). The bill was referred to the Committee on Energy and Natural Resources.
  • H.R. 5227 (Delahunt, D-Mass.) (Omnibus Parks and Public Lands Management Act of 1996) would amend the Omnibus Parks and Public Lands Management Act of 1996 to authorize the Secretary of the Interior to enter into cooperative agreements with any of the management partners of the Boston Harbor Islands National Recreation Area. 152 Cong. Rec. H1915 (daily ed. Apr. 27, 2006). The bill was referred to the Committee on Resources.
  • H.R. 5229 (English, R-Pa.) (Animal Welfare Act) would amend the Animal Welfare Act to ensure that all dogs and cats used by research facilities are obtained legally. 152 Cong. Rec. H1915 (daily ed. Apr. 27, 2006). The bill was referred to the Committee on Agriculture.
  • H.R. 5232 (Kanjorski, D-Pa.) (national wildlife refuge) would direct the Secretary of the Interior to initiate and complete an evaluation of lands and waters located in Northeastern Pennsylvania for their potential acquisition and inclusion in a future Cherry Valley National Wildlife Refuge. 152 Cong. Rec. H1915 (daily ed. Apr. 27, 2006). The bill was referred to the Committee on Resources.
  • H.R. 5241 (McIntyre, D-N.C.) (Water Resources Development Act or 1976) would amend the Water Resources Development Act of 1976 to allow the Secretary of the Army to extend the period during which the Secretary may provide beach nourishment for a water resources development project. 152 Cong. Rec. H1915 (daily ed. Apr. 27, 2006). The bill was referred to the Committee on Transportation and Infrastructure.
  • H.R. 5266 (Kucinich, D-Ohio) (genetically engineered organisms) would provide additional protections for farmers and ranchers that may be harmed economically by genetically engineered seeds, plants, or animals, and ensure fairness for farmers and ranchers in their dealings with biotech companies that sell genetically engineered seeds, plants, or animals. 152 Cong. Rec. H1979 (daily ed. May 2, 2006). The bill was referred to the Committee on Agriculture.
  • H.R. 5267 (Kucinich, D-Ohio) (genetically engineered organisms) would prohibit the open-air cultivation of genetically engineered pharmaceutical and industrial crops, prohibit the use of common human food or animal feed as the host plant for a genetically engineered pharmaceutical or industrial chemical, and establish a tracking system to regulate the growing, handling, transportation, and disposal of pharmaceutical and industrial crops and their byproducts to prevent human, animal, and general environmental exposure to genetically engineered pharmaceutical and industrial crops and their byproducts. 152 Cong. Rec. H1979 (daily ed. May 2, 2006). The bill was referred to the Committee on Agriculture.
  • H.R. 5268 (Kucinich, D-Ohio) (genetically engineered organisms) would amend the Federal Food, Drug, and Cosmetic Act with respect to the safety of genetically engineered foods. 152 Cong. Rec. H1979 (daily ed. May 2, 2006). The bill was referred to the Committee on Energy and Commerce.
  • H.R. 5269 (Kucinich, D-Ohio) (genetically engineered organisms) would amend the Federal Food, Drug, and Cosmetic Act, the Federal Meat Inspection Act, and the Poultry Products Inspection Act to require that food that contains a genetically engineered material, or that is produced with a genetically engineered material, be labeled accordingly. 152 Cong. Rec. H1979 (daily ed. May 2, 2006). The bill was referred to the Committee on Agriculture, and in addition to the Committee on Energy and Commerce.
  • H.R. 5270 (Kucinich, D-Ohio) (genetically engineered organisms) would ensure that efforts to address world hunger through the use of genetically engineered animals and crops actually help developing countries and peoples while protecting human health and the environment. 152 Cong. Rec. H1979 (daily ed. May 2, 2006). The bill was referred to the Committee on International Relations, and in addition to the Committees on Ways and Means, Financial Services, and Agriculture.
  • H.R. 5271 (Kucinich, D-Ohio) (genetically engineered organisms) would assign liability for injury caused by genetically engineered organisms. 152 Cong. Rec. H1979 (daily ed. May 2, 2006). The bill was referred to the Committee on the Judiciary, and in addition to the Committee on Energy and Commerce.
  • H.R. 5282 (Lewis, R-Ca.) (Reclamation Wastewater and Groundwater Study and Facilities Act) would amend the Reclamation Wastewater and Groundwater Study and Facilities Act to authorize the Secretary of the Interior to participate in the Southern California Desert Region Integrated Water and Economic Sustainability Plan. 152 Cong. Rec. H2101 (daily ed. May 3, 2006). The bill was referred to the Committee on Resources.
  • H.R. 5283 (Musgrave, R-Colo.) (national parks) would establish the Granada Relocation Center National Historic Site as an affiliated unit of the National Park System. 152 Cong. Rec. H2101 (daily ed. May 3, 2006). The bill was referred to the Committee on Resources.
  • H.R. 5287 (Sweeney, R-N.Y.) (hunting) would recognize the heritage of hunting and provide opportunities for continued hunting on federal public land. 152 Cong. Rec. H2101 (daily ed. May 3, 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 Michigan North Carolina Texas Florida Missouri Oklahoma Utah Louisiana Montana Oregon Washington Maine New York Tennessee

 

CALIFORNIA

Toxic Substances:

  • The Office of Environmental Health Hazard Assessment (OEHHA) is providing notice of changes made to the proposed regulations, Title 22, California Code of Regulations, section 12805. These proposed regulations were originally the subject of a Notice of Proposed Rulemaking issued on June 24, 2005. This modification addresses an issue that was raised by the Office of Administrative Law in its review of a similar regulatory proposal, the proposed maximum allowable dose levels for DEHP by the intravenous (iv) route. Comments regarding the proposed changes to the text of regulations, or the inclusion of the specified document, will be accepted by OEHHA May 5, 2006, through May 22, 2006. All written comments must be submitted to OEHHA by May 22, 2006. See http://oehha.org/prop65/law/dehpmods050506.html
  • The Office of Environmental Health Hazard Assessment (OEHHA) is providing notice that documents and other information which the agency has relied upon in proposing amendments to Title 22, California Code of Regulations, section 12805, have been added to the rulemaking file and are available for public inspection and comment. All the documents included in this notice had not been previously included in the Rulemaking File, OAL File No. Z-05-0614-06, but have been considered by OEHHA in establishing the proposed maximum allowable dose levels for DEHP by oral exposure. Comments are due May 22, 2006. See http://oehha.org/prop65/law/DEHPOraladds050106.html
  • The Department of Toxic Substances Control has revised the text of proposed regulations that would specify qualification criteria for determining whether "unified program agencies" are qualified to conduct environmental assessments and implement corrective action. A written comment period has been established commencing on April 28, 2006, and closing on May 15, 2006. See http://www.dtsc.ca.gov/LawsRegsPolicies/Regs/upload/OEAR_PN_15-Day.pdf

FLORIDA

Land Use:

Water:

  • The Department of Environmental Protection proposed to amend Chapter 62-330, F.A.C., to update the rules of the Southwest Florida Water Management District establishing minimum flows for the Middle Peace and Myakka Rivers that are incorporated by reference for use by the Department. Written objections are due within 14 days of the date of this notice. See http://tlhora6.dep.state.fl.us/onw/publications/10-NPR623302003c40D8-4-28-06-INT.pdf
  • The Department of Environmental Protection proposed to amend chapter 62-302, F.A.C., to establish site specific alternative criteria for dissolved oxygen in the marine portions of the lower St. Johns River. An adoption hearing will be held before the Environmental Regulation Commission on May 25, 2006. See http://tlhora6.dep.state.fl.us/onw/publications/13-NPR62302-4-28-06-INT.pdf

LOUISIANA

Hazardous & Solid Wastes:

  • The Department of Environmental Quality declares that emergency action is necessary to prevent the unauthorized disposal of sewage sludge in treatment works treating domestic sewage and other areas unprepared to receive the waste stream. This is a renewal of Emergency Rule OS066E1, which was effective on December 30, 2005, and published in the Louisiana Register on January 20, 2006. This Emergency Rule is effective on April 29, 2006, and shall remain in effect for a maximum of 120 days or until a final rule is promulgated, whichever occurs first. See http://www.deq.louisiana.gov/portal/portals/0/planning/regs/pdf/OS066E2.pdf

MAINE

Wildlife:

  • The Maine Atlantic Salmon Commission proposed to create an experimental open fishing season for anadromous Atlantic salmon. The proposed open season is for a one-month period in the fall in a specified location on the Penobscot River. The permitted activity would be limited to catch and release by fly fishing only. A public hearing will be held May 25, 2006. Comments are due June 5, 2006. See http://www.maine.gov/sos/cec/rules/notices/2006/050306.htm
  • The Atlantic States Marine Fisheries Commission's (ASMFC's) Atlantic Herring Section approved Amendment 2 to the Interstate Fishery Management Plan (FMP) for Atlantic Herring on January 25, 2006. In part, the amendment redefines Managements Areas 1B, 2, and 3, resulting in a larger area covered by Management Area 3 (Georges Bank). This proposed regulation would be effective January 1, 2007, for compliance with the ASMFC FMP Amendment 2 for Atlantic herring. A public hearing will be held May 24, 2006. Comments are due June 3, 2006. See http://www.maine.gov/sos/cec/rules/notices/2006/050306.htm
  • The Department of Marine Resources has proposed a rulemaking that would implement a prohibition in Maine's territorial waters for the process of "finning" spiny dogfish or coastal sharks. This measure would provide enforcement consistency with the National Marine Fisheries Service federal regulations for sharks and the Atlantic States Marine Fisheries Commission Fisheries Management Plan for spiny dogfish. A public hearing will be held May 24, 2006. Comments are due June 3, 2006. See http://www.maine.gov/sos/cec/rules/notices/2006/050306.htm
  • The Department of Marine Resources has proposed a rulemaking that would implement a four hour tending and hauling requirement to fish bait gillnets in the New Meadows River north of a line from Hopkins Island to a point on the Phippsburg shore south of the 'Basin' Cove entrance. This proposal is in response to the occurrence of untended nets resulting in large numbers of dead fish during 2005 in this area. This rule would expire after two seasons on December 31, 2007. A public hearing will be held May 24, 2006. Comments are due June 3, 2006. See http://www.maine.gov/sos/cec/rules/notices/2006/050306.htm

MICHIGAN

Water:

  • The Land and Water Management Division will conduct a public hearing on proposed administrative rule R 281.924. The rule is intended to clarify the function of the Department of Environmental Quality's wetlands identification program, set limits on the acreage for Level 1 and Level 2 wetland assessments, and increase application fees to cover operating costs. The public hearing will be held on May 4, 2006. Written comments will be accepted until May 14, 2006. See http://www.michigan.gov/deq/0,1607,7-135-3308-141598--,00.html#Rules
  • In the October 31, 2005, DEQ Calendar, the Michigan Department of Environmental Quality (DEQ) solicited comments on the interim cleanup criteria developed for bromate. The DEQ has not received any comments. Therefore, effective May 1, 2006, the interim criteria became final. See http://www.michigan.gov/deq/0,1607,7-135-3308-141598--,00.html#Announcements

MISSOURI

Air:

  • The Air Conservation Commission proposes to amend 10 CSR 10-5.300, Control of Emissions From Solvent Metal Cleaning. This rule specifies equipment, operating procedures, and training requirements for the reduction of volatile organic compound emissions from solvent metal cleaning operations in the St. Louis metropolitan area. This proposed amendment addresses industry concerns about provisions in the current rule related to enforcement and compliance. This amendment clarifies the rule by consolidating exemptions in the applicability section, adding new exemptions (such as hand cleaning/wiping and flush cleaning operations), adding definitions of new and previously undefined terms, and clarifying rule language regarding operating procedure requirements for spray gun cleaners and air-tight and airless cleaning systems. A public hearing will be held June 29, 2006. Written comments are due July 6, 2006. See http://www.sos.mo.gov/adrules/moreg/current/2006/v31n9/v31n9b.pdf (p. 714)

Hazardous & Solid Wastes:

  • The Hazardous Waste Management Commission proposes to amend 10 CSR 25-3.260, Definitions, Modifications to Incorporations and Confidential Business Information, to incorporate by reference the most current edition of the Code of Federal Regulations. This amendment would add to the state regulations changes made to the corresponding parts of the federal regulations between July 1, 2000, and July 1, 2004. A public hearing will be held June 15, 2006. Written comments are due June 29, 2006. See http://www.sos.mo.gov/adrules/moreg/current/2006/v31n9/v31n9b.pdf (p. 719)
  • The Hazardous Waste Management Commission proposes to amend 10 CSR 25-4.261, Methods for Identifying Hazardous Waste, to incorporate by reference the most current edition of the Code of Federal Regulations. This amendment would add to the state regulations changes made to the corresponding parts of the federal regulations between July 1, 2000, and July 1, 2004. A public hearing will be held June 15, 2006. Comments are due June 8, 2006. See http://www.sos.mo.gov/adrules/moreg/current/2006/v31n9/v31n9b.pdf (p. 720)
  • The Hazardous Waste Management Commission proposes to amend 10 CSR 25-5.262, Standards Applicable to Generators of Hazardous Waste, to incorporate by reference the most current edition of the Code of Federal Regulations. This amendment would add to the state regulations changes made to the corresponding parts of the federal regulations between July 1, 2000, and July 1, 2004. A public hearing will be held June 15, 2006. Comments are due June 29, 2006. See http://www.sos.mo.gov/adrules/moreg/current/2006/v31n9/v31n9b.pdf (p. 720)
  • The Hazardous Waste Management Commission proposes to amend 10 CSR 25-6.263, Standards for Transporters of Hazardous Waste, to incorporate by reference the most current edition of the Code of Federal Regulations. This amendment would add to the state regulations changes made to the corresponding parts of the federal regulations between July 1, 1997, and July 1, 2004. A public hearing will be held June 15, 2006. Comments are due June 8, 2006. See http://www.sos.mo.gov/adrules/moreg/current/2006/v31n9/v31n9b.pdf (p. 721)
  • The Hazardous Waste Management Commission proposes to amend 10 CSR 25-7.264, Standards for Owners and Operators of Hazardous Waste Treatment, Storage and Disposal Facilities, to incorporate by reference the most current edition of the Code of Federal Regulations. This amendment would add to the state regulations changes made to the corresponding parts of the federal regulations between July 1, 2000, and July 1, 2004. A public hearing will be held June 15, 2006. Comments are due June 8, 2006. See http://www.sos.mo.gov/adrules/moreg/current/2006/v31n9/v31n9b.pdf (p. 721)
  • The Hazardous Waste Management Commission proposes to amend 10 CSR 25-7.265, Interim Status Standards for Owners and Operators of Hazardous Waste Treatment, Storage and Disposal Facilities, to incorporate by reference the most current edition of the Code of Federal Regulations. This amendment would add to the state regulations changes made to the corresponding parts of the federal regulations between July 1, 2000, and July 1, 2004. A public hearing will be held June 15, 2006. Comments are due June 8, 2006. See http://www.sos.mo.gov/adrules/moreg/current/2006/v31n9/v31n9b.pdf (p. 722)
  • The Hazardous Waste Management Commission proposes to amend 10 CSR 25-7.266, Standards for the Management of Specific Hazardous Wastes and Specific Types of Hazardous Waste Management Facilities, to incorporate by reference the most current edition of the Code of Federal Regulations. This amendment would add to the state regulations changes made to the corresponding parts of the federal regulations between July 1, 2000, and July 1, 2004. A public hearing will be held June 15, 2006. Comments are due June 8, 2006. See http://www.sos.mo.gov/adrules/moreg/current/2006/v31n9/v31n9b.pdf (p. 722)
  • The Hazardous Waste Management Commission proposes to amend 10 CSR 25-7.268, Land Disposal Restrictions, to incorporate by reference the most current edition of the Code of Federal Regulations. This amendment would add to the state regulations changes made to the corresponding parts of the federal regulations between July 1, 2000, and July 1, 2004. A public hearing will be held June 15, 2006. Comments are due June 8, 2006. See http://www.sos.mo.gov/adrules/moreg/current/2006/v31n9/v31n9b.pdf (p. 723)
  • The Hazardous Waste Management Commission proposes to amend 10 CSR 25-7.270, Missouri Administered Permit Programs: The Hazardous Waste Permit Program, to incorporate by reference the most current edition of the Code of Federal Regulations. This amendment would add to the state regulations changes made to the corresponding parts of the federal regulations between July 1, 2000, and July 1, 2004. A public hearing will be held June 15, 2006. Comments are due June 8, 2006. See http://www.sos.mo.gov/adrules/moreg/current/2006/v31n9/v31n9b.pdf (p. 723)
  • The Hazardous Waste Management Commission proposes to amend 10 CSR 25-11.279, Recycled Used Oil Management Standards, to incorporate by reference the most current edition of the Code of Federal Regulations. This amendment would add to the state regulations changes made to the corresponding parts of the federal regulations between July 1, 2000, and July 1, 2004. A public hearing will be held June 15, 2006. Comments are due June 8, 2006. See http://www.sos.mo.gov/adrules/moreg/current/2006/v31n9/v31n9b.pdf (p. 724)
  • The Hazardous Waste Management Commission proposes to amend 10 CSR 25-16.273, Standards for Universal Waste Management, to incorporate by reference the most current edition of the Code of Federal Regulations. This amendment would add to the state regulations changes made to the corresponding parts of the federal regulations between July 1, 2000, and July 1, 2004. A public hearing will be held June 15, 2006. Comments are due June 8, 2006. See http://www.sos.mo.gov/adrules/moreg/current/2006/v31n9/v31n9b.pdf (p. 724)

MONTANA

Air:

  • The Board of Environmental Review proposes to amend ARM 17.8.740 and 17.8.767, concerning mercury emission standards and mercury emission credit allocations. Public hearings will be held May 31 and June 1, 2006. Comments are due July 6, 2006. See http://deq.mt.gov/dir/legal/Notices/17-246pro.pdf

Land Use:

  • The Board of Environmental Review amended ARM 17.24.132, 17.24.133, 17.24.134, 17.24.136, 17.24.1206, 17.24.1211, 17.24.1218, 17.24.1219, 17.24.1220, and 17.56.121 and repealed ARM 17.24.1212, to revise the enforcement procedures under the Montana Strip and Underground Mine Reclamation Act, the Metal Mine Reclamation Laws, and the Opencut Mining Act. The board also amended ARM 17.30.2001 and 17.30.2003 and repealed ARM 17.24.1212, 17.30.2005, 17.30.2006, and 17.38.606 to provide uniform factors for determining penalties. This rule is effective May 5, 2006. See http://www.deq.state.mt.us/dir/legal/Notices/17-239adp.pdf

NEW YORK

Wildlife:

  • The Department of Environmental Conservation amended its sportfishing regulations. This rulemaking was necessary to maintain or improve the quality of the state's fisheries resources. Changes to the sportfishing regulations will promote optimum opportunity for public use consistent with resource conservation. The minor amendments to commercial inland fisheries regulations are intended to remove provisions that have become obsolete. This rule was adopted on April 26, 2006. See http://www.dec.state.ny.us/website/dfwmr/propregs/part10text.html

NORTH CAROLINA

Air:

  • The Environmental Management Commission intends to adopt the rules cited as 15A NCAC 02D .2501-.2511. These rules will implement EPA's guidelines, 40 CFR Part 60, Subpart HHHH-Emission Guidelines and Compliance Times for Coal-Fired Electric Steam Generating Units, for mercury emissions. Public hearings will be held May 25, June 1, and June 8, 2006. Comments are due June 30, 2006. See http://www.ncoah.com/rules/register/Volume20Issue21.pdf (p. 1792)

Land Use:

  • The Soil and Water Conservation Commission intends to amend the rules cited as 15A NCAC 06G .0101-.0105. The proposed amendments clarify the procedure for public participation in the Conservation Reserve Enhancement Program. Requests for a public hearing must be made in writing within 15 days of this notice. Comments are due June 30, 2006. See http://www.ncoah.com/rules/register/Volume20Issue21.pdf (p. 1799)

Water:

  • The Department of Environment and Natural Resources intends to adopt the rules cited as 15A NCAC 01J .1401 - .1402, .1501, .1601 - .1602, .1701, .1801, .1901 - .1902, .2001 - .2003, .2101 - .2102, .2201; and repeal rules cited as 15A NCAC 01J .0101 - .0102, .0201 - .0205, .0301 - .0304, .0401 - .0403, .0502 - .0505, .0601 - .0604, .0606, .0701 - .0704, .0801 - .0803, .0901 - .0904, .1001 - .1002, .1101 - .1102. This rule deals with the state clean water revolving loan and grant program. A public hearing will be held May 24, 2006. Comments are due June 30, 2006. See http://www.ncoah.com/rules/register/Volume20Issue21.pdf (p. 1776)

OKLAHOMA

Air:

  • The Department of Environmental Quality has cancelled the public hearing scheduled for June 20, 2006, on the proposed permanent rulemaking action on Chapter 100, Air Pollution Control. The hearing will be rescheduled. See http://www.oar.state.ok.us/register/Volume-23_Issue-16.htm
  • The Department of Environmental Quality amended Subchapter 41, Control of Emission of Hazardous Air Pollutants and Toxic Air Contaminants, to partition existing Subchapter 41 into two subchapters. The amendments will clarify and modify the state-only requirements for emissions from stationary sources and relocate these requirements into the new Subchapter 42. Subchapter 41 will contain the federal requirements for hazardous air pollutants and asbestos. This rule is effective June 15, 2006. See http://www.oar.state.ok.us/register/Volume-23_Issue-16.htm
  • The Department of Environmental Quality amended the Ambient Air Quality Standards. This rule will become effective June 15, 2006. See http://www.oar.state.ok.us/register/Volume-23_Issue-16.htm

Hazardous & Solid Wastes:

  • The Department of Environmental Quality amended its hazardous waste management regulations under Chapter 205 to incorporate by reference the federal hazardous waste regulations found in 40 CFR pts. 124 and 260-279, to incorporate amendments to the federal regulations that took effect after July 1, 2005, to eliminate rules that pertain to revoked statutes, to update regulatory citations, and to make minor formatting changes. See http://www.oar.state.ok.us/register/Volume-23_Issue-16.htm

Water:

  • The Department of Environmental Quality has adopted proposed amendments to Chapter 656, Water Pollution Control Facility Construction Standards. This rule revises and clarifies the water pollution control facility construction rules. These rules amend existing procedures and requirements for the construction of wastewater treatment and collection systems. New provisions include clarification of requirements for submittal of engineering reports, plans and specifications, and construction standards for sanitary sewers, pump stations, and wastewater treatment facilities. This rule becomes effective June 15, 2006. See http://www.oar.state.ok.us/register/Volume-23_Issue-16.htm

OREGON

Hazardous & Solid Wastes:

  • The Department of Environmental Quality proposes to revise its Toxics Use and Hazardous Waste Reduction Program regulations in order to align the rules with the Toxics Use Reduction Hazardous Waste Reduction statute. A public hearing will be held May 16, 2006. These rules only apply to Oregon businesses that report under federal Toxics Release Inventory program and that generate large quantity generator and small quantity generator amounts of hazardous waste. Comments are due May 23, 2006. See http://arcweb.sos.state.or.us/rules/0506_Bulletin/0506_rulemaking_bulletin.html

Wildlife:

  • The Department of Fish and Wildlife proposed to amend its Wildlife Habitat Conservation and Management Program regulations to allow the Director to designate land as eligible for wildlife habitat special assessment. A public hearing will be held June 9, 2006. Comments are due June 9, 2006. See http://arcweb.sos.state.or.us/rules/0506_Bulletin/0506_rulemaking_bulletin.html
  • The Department of Fish and Wildlife proposed to establish a gear limitation program for all vessels fishing off Oregon in the commercial ocean Dungeness crab fishery. The program may include provisions for permits, licenses, gear requirements and restrictions, fishing area restrictions, cost recovery, reporting requirements, and a process for appeals before the Crab Fishery Permit Review Board. A public hearing will be held June 9, 2006. Comments are due June 9, 2006. See http://arcweb.sos.state.or.us/rules/0506_Bulletin/0506_rulemaking_bulletin.html

TENNESSEE

Water:

  • The Water Quality Control Board will hold a series of hearings to consider the promulgation of amendments of rules pursuant to the Tennessee Water Quality Control Act of 1977, Sections 69-3-101 et seq. and the Tennessee Environmental Protection Fund 68-203-101 et seq. Hearings will be held May 30, June 1, June 5, June 6, and June 7, 2006. Comments are due June 26, 2006. See http://www.state.tn.us/environment/wpc/wpcppo/0406TarNotice.pdf

TEXAS

Air:

  • The Texas Commission on Environmental Quality will conduct a public hearing to receive testimony regarding the proposed amendment to §116.603 of 30 TAC Chapter 116, Control of Air Pollution by Permits for New Construction or Modification. This proposal includes the amendment of §116.603 as a revision to its SIP. The proposed rulemaking would amend Chapter 116 to require newspaper notice of proposed standard permits with statewide applicability in Austin, Dallas, Houston, and any other regional newspapers designated by the executive director on a case-by-case basis. Also, the executive director would use press releases and notify select state and local officials by electronic means for public notice of standard permits. A public hearing will be held June 12, 2006. Comments are due June 14, 2006. See http://www.tceq.state.tx.us/assets/public/legal/rules/hearings/05038116_phn.pdf
  • The Texas Commission on Environmental Quality has approved rules implementing SB 1032: Repeal of Low Emission Vehicle Fleet Requirements. The rule establishes and implements low emission vehicle requirements for mass transit fleets and for private and local government fleets (Texas Clean Fleet Program). The rule becomes effective May 17, 2006. See http://www.tceq.state.tx.us/rules/adopt.html
  • The Texas Commission on Environmental Quality has approved the Texas Low Emission Diesel Rule (TxLED). This rule revision addresses concerns raised by EPA during its review of the Commission's recent TxLED rule revision (March 9, 2005). In addition, this rule revision addresses minor changes to rule references in sections of the rule that were not revised in the March 9, 2005, rule revision. The SIP revision addresses concerns raised by EPA regarding its consideration of TxLED Alternative Emission Reduction Plans. The rule becomes effective May 17, 2006. See http://www.tceq.state.tx.us/assets/public/legal/rules/rule_lib/adoptions/05063114_ado_clean.pdf
  • The Texas Commission on Environmental Quality has approved rules implementing HB 1540: Locally Enforced Idling Rule Amendment. Additional provisions add an exemption for employee health and safety and clarify a transit exemption. This rule becomes effective May 17, 2006. See http://www.tceq.state.tx.us/assets/public/legal/rules/rule_lib/adoptions/05064114_ado_clean.pdf

Water:

  • The Texas Commission on Environmental Quality will conduct a public hearing to receive comments concerning proposed revisions to 30 TAC §321.33, Applicability and Required Authorizations for Concentrated Animal Feeding Operations (CAFOs). The proposed rulemaking would implement SB 1707, which changed the permitting requirements under Texas Water Code, Chapter 26, for dry litter poultry CAFOs in sole-source surface drinking water protection zones. SB 1707 removes the requirement for dry litter poultry CAFOs located in a protection zone of a sole-source surface drinking water supply to obtain an individual permit. This allows these facilities the ability to apply for coverage under the CAFO general permit. The proposed rulemaking would also modify the permitting requirements for new source dry litter poultry CAFOs and expand dry litter poultry animal feeding operations for consistency with state regulations regarding existing dry litter poultry CAFOs. A public hearing will be held June 13, 2006. Comments are due June 19, 2006. See http://www.tceq.state.tx.us/assets/public/legal/rules/hearings/05062321_phn.pdf

UTAH

Air:

  • The Department of Environmental Quality proposes amendments to R307-210-1, Standards of Performance for New Stationary Sources. This rule incorporates by reference federal standards adopted since July 8, 2004. The federal rules already apply to the sources; incorporating them into the state rule allows the Division of Air Quality to enforce the standards. A public hearing will be held May 18, 2006. Comments are due May 31, 2006. See http://www.rules.utah.gov/publicat/bulletin/2006/20060501/28601.htm

WASHINGTON

Water:

  • The Department of Ecology proposes to amend Chapter 173-153 WAC, Water Conservancy Boards, to reflect legislative amendments made to 90.80 RCW and 90.03 RCW during the last two sessions and to provide additional information concerning the crediting of training credit to board commissioners during their term of service. Public hearings will be held June 6 and June 8, 2006. Comments are due June 16, 2006. See http://www.ecy.wa.gov/laws-rules/wac173153/p0518.pdf

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

INTERNATIONAL

CANADA CUTS FUNDING FOR EMISSION REDUCTIONS:

  • Canada has cut funds for environmental programs aimed at reducing greenhouse gas emissions. The cuts were made through the federal budget, which omitted $3.2 billion allotted for environmental programs to pay municipalities and businesses through 2010 to reduce carbon dioxide emissions. Environmentalists view the budget cuts as the government's withdrawal of support for efforts to meet the goals outlined in the Kyoto Protocol. See http://www.washingtonpost.com/wp-dyn/content/article/2006/05/02/AR2006050201774.html?referrer=emailarticle

TAIWAN TIGHTENS WATER POLLUTION POLICY:

EU PLANS BATTERY RECYCLING PROGRAMS:

  • The European Parliament has given preliminary approval to a new program to collect and recycle batteries to limit pollution. The legislation would require EU members to establish programs for collecting used consumer batteries by 2008, to ban some cadmium batteries, and to prohibit the dumping or burning of automotive and industrial batteries. Battery producers and distributors will finance most of the program implementation, which is expected to cost between 200 and 400 million Euros. See http://www.iht.com/articles/2006/05/03/business/batteries.php

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

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