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Weekly Update Volume 36, Issue 17

06/12/2006

LITIGATION

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

CONSERVATION EASEMENTS, TAX DEDUCTIONS:

The U.S. Tax Court rejected a real estate investor's claim for a charitable tax deduction stemming from a conservation easement he created on land sold to a developer. The investor claimed that the easement permanently reduced the number of homes that could be built on the land from 62 to 30. But half of the land was in a floodplain, and the rest was already restricted to 30 residential lots by historic district zoning. The land donation, therefore, did not protect open space or an historically important land area. And because the sought-after tax deduction was based on assumptions known to be false or erroneous, the court assessed a $56,000 penalty against the investor. This marks the first time a tax court has rejected a conservation easement deduction. Turner v. Commissioner of Internal Revenue, 126 T.C. 16, 36 ELR 20103 (May 16, 2006).

NEPA, TERRORIST ATTACKS:

The Ninth Circuit held that the NRC violated NEPA by categorically refusing to consider the environmental effects of a potential terrorist attack in connection with its approval of a proposed spent fuel storage installation. The NRC argued that the possibility of a terrorist attack on a nuclear facility is so remote and speculative that the potential consequences of such an attack need not be considered at all during a NEPA review. But none of the factors on which the NRC relied to eschew consideration of the environmental effects of a terrorist attack satisfies the standard of reasonableness. Considering the policy goals of NEPA and the rule of reasonableness that governs its application, the possibility of a terrorist attack is not so "remote and highly speculative" as to be beyond NEPA's requirements. The court, however, rejected petitioners' claims for review under the Atomic Energy Act and the APA. San Luis Obispo Mothers for Peace v. Nuclear Regulatory Commission, No. 03-74628, 36 ELR 20101 (9th Cir. June 2, 2006) (31 pp.).

NEPA, DEEPWATER PORT ACT:

The Fifth Circuit denied a petition for review challenging the DOT Secretary's decision to grant a license for a liquefied natural gas facility in the Gulf of Mexico. The DOT's EIS for the project complied with NEPA. The Secretary did not act arbitrarily or abuse his discretion in concluding that the effects of three potential future projects in the Gulf of Mexico were too speculative to consider in evaluating the cumulative impact of the licensing decision under NEPA. Nor did the Secretary violate the Deepwater Port Act by failing to require that the proposed facility use a closed loop system rather than an open loop system. The Act's requirement that the applicant demonstrate that it will construct the port using the best technology "so as to prevent or minimize adverse impact on the marine environment" is best read to require construction that reasonably minimizes adverse impact to a reasonable degree given all relevant circumstances, including costs. Gulf Restoration Network v. United States Department of Transportation, No. 05-60321, 36 ELR 20105 (5th Cir. June 8, 2006) (20 pp.).

ESA, CRITICAL HABITAT DESIGNATION:

The Ninth Circuit held that the FWS' decision not to designate critical habitat for the stickleback was not arbitrary and capricious, and that the FWS was not required to ensure compliance with federal and state laws before issuing an incidental take statement to a company allowing it to mine in areas that may impact the fish. Although the FWS proposed to designate critical habitat for the stickleback in 1980, a proposal to designate critical habitat for an endangered species listed prior to the 1982 ESA Amendments does not create a mandatory duty to make that designation final. Congress conferred discretion on the FWS to choose whether to designate critical habitat for endangered species listed before 1982. Nor was the FWS required to ensure compliance with federal and state law before issuing the incidental take statement. There is simply no evidence that the FWS has ever interpreted its regulatory definitions to impose a sweeping duty to require compliance with all other laws before issuing an incidental take statement. Such a requirement would impose an enormous burden on the FWS, which is already operating with a serious backlog of mandatory duties. The court, therefore, upheld a lower court's grant of summary judgment in favor of the FWS and the mining company. Center for Biological Diversity v. United States Fish & Wildlife Service, No. 04-55084, 36 ELR 20102 (9th Cir. June 5, 2006) (25 pp.).

AGRICULTURE, PLANT PROTECTION ACT:

The Ninth Circuit upheld a USDA rule conditionally allowing the importation of Spanish clementines into the United States. Domestic fruit growers, concerned about the infestation of Mediterranean fruit flies, challenged the rule. They argued that the USDA must identify the level of risk it will accept in performing its duty "to prevent the introduction into the United States . . . of a plant pest" under the Plant Protection Act. But the court disagreed. Although a governmental agency must "articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made," it need not define an explicit standard to guide its decisionmaking. Because the USDA articulated a rational connection between the facts found and the choice made, the rule is neither arbitrary nor capricious. The court, therefore, affirmed the lower court's grant of summary judgment in favor of the USDA. Cactus Corner, LLC v. U.S. Department of Agriculture, No. 04-16003, 36 ELR 20104 (9th Cir. June 8, 2006) (16 pp.).

CONSERVATION OFFICERS, QUALIFIED IMMUNITY:

The Sixth Circuit reversed a lower court's denial of qualified immunity to conservation officers in an individual's 42 U.S.C. §1983 case against them for malicious prosecution and unlawful retaliation. Because a jury found the individual guilty for wanton endangerment, he cannot show the absence of probable cause. Thus, the officers should have been granted qualified immunity as to the malicious prosecution claim. And while the individual's criticism of the officers may have been protected by the First Amendment, the officers had probable cause to seek an indictment and to arrest the individual. Thus, the individual's unlawful conduct also barred his retaliation claim. Barnes v. Wright, No. 04-6288, 36 ELR 20100 (6th Cir. June 2, 2006) (9 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 made minor adjustments and clarifications to the CAA §112(n) Revision Rule of March 29, 2005, and the Clean Air Mercury Rule of May 18, 2005, in response to petitions for their reconsideration. 71 FR 33383 (6/9/06).
  • EPA withdrew the direct final rule published in the Federal Register on April 11, 2006, that sought to exempt importers of aircraft fire extinguishing vessels containing halon-1301 from the import petition process in order to facilitate the routine hydrostatic testing of the vessels for environmental and safety purposes. 71 FR 32840 (6/7/06).
  • EPA implemented requirements for sulfur, cetane, and aromatics for certain types of diesel fuel produced, imported, distributed, or used in the rural areas of Alaska; diesel fuel used in these applications must meet a 15 parts per million (maximum) sulfur content standard beginning June 1, 2010. 71 FR 32450 (6/6/06).
  • EPA partially approved the Washington State Department of Health's request for delegation of authority to implement and enforce NESHAPs for radionuclide air emissions. 71 FR 32276 (6/5/06).
  • SIP Approvals: Michigan (reasonably available control technology and new source review exemptions) 71 FR 32448 (6/6/06). Minnesota (alternative public participation process) 71 FR 32274 (6/5/06). New Jersey (transportation conformity budgets) 71 FR 33305 (6/8/06).
  • SIP Proposals: Missouri (nitrogen oxides SIP call requirements) 71 FR 32291 (6/5/06). Nevada (updates) 71 FR 33413 (6/9/06).

HAZARDOUS WASTE:

  • EPA entered into a proposed administrative settlement under CERCLA concerning the Rawleigh Building Superfund site in Freeport, Illinois, that requires the settling parties to pay $35,000 in response costs to the Superfund. 71 FR 32960 (6/7/06).
  • EPA amended its regulations for the toxics release inventory (TRI) program so that facilities may rely on the list of covered North American Industry Classification System codes to determine whether they are required to report to the TRI program. 71 FR 32464 (6/6/06).

MINING:

  • OSM approved an amendment to Missouri's regulatory program under SMCRA that revises regulations concerning the bonding of surface coal mining and reclamation operations and improves operational efficiency. 71 FR 33243 (6/8/06).
  • OSM approved a revised amendment to Utah's regulatory program under SMCRA; the revision clarifies and strengthens certain parts of state administrative rules. 71 FR 33249 (6/8/06).
  • OSM proposed to partially approve Mississippi's abandoned mine land reclamation plan under SMCRA. 71 FR 33273 (6/8/06).

WATER:

  • EPA proposed to expressly exclude water transfers from regulation under the NPDES permitting program. 71 FR 32887 (6/7/06).

WILDLIFE:

  • FWS proposed to designate portions of the Econfina Creek drainage in Florida; the Apalachicola Flint River drainage in Alabama, Florida, and Georgia; the Ochlockonee River drainage in Florida and Georgia; and the Suwannee River drainage in Florida as critical habitat for the endangered "seven mussels." 71 FR 32745 (6/6/06).
  • FWS announced the availability of the draft economic analysis and draft EA for its proposal to designate critical habitat for the spikedace and loach minnow. 71 FR 32496 (6/6/06).

MISCELLANEOUS:

  • OSHA announced the re-establishment of the Maritime Advisory Committee for Occupational Safety and Health. 71 FR 32374 (6/5/06).

DOJ NOTICES OF SETTLEMENTS:

  • United States v. Industrial Excess Landfill, Inc., No. 5:89-CV-1988 (N.D. Ohio May 26, 2006). Settling CERCLA defendants must pay the state of Ohio $15,984 in reimbursement of response costs and must pay the United States a total of $406,516 in reimbursement of response costs incurred and to be incurred at the Industrial Excess Landfill Superfund site in Uniontown, Ohio. 71 FR 33001 (6/7/06).
  • United States v. Purze, No. 04 C 7697 (N.D. Ill. May 31, 2006). Settling CWA defendants that filled wetlands without a permit must pay a civil penalty, must donate funds to a wetlands restoration fund, and must restore the impacted wetlands. 71 FR 33002 (6/7/06).

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

THE CONGRESS

CHAMBER ACTION:

  • S. 2013 (U.S.-Russia Polar Bear Conservation and Management Act), which would amend the Marine Mammal Protection Act of 1972 to implement the Agreement on the Conservation and Management of the Alaska-Chukotka Polar Bear Population, was passed by the Senate. 152 Cong. Rec. S5511 (daily ed. June 6, 2006).
  • S. 2803 (Mine Improvement and New Emergency Response Act of 2006), which would amend the Federal Mine Safety and Health Act of 1997 to improve the safety of mines and mining, was passed by the House, clearing the measure for the President. 152 Cong. Rec. H3449, S3480 (daily ed. June 7, 2006).
  • S. Res. 456 (North Atlantic Council), which would express the sense of the Senate on the discussion by the North Atlantic Council of secure, sustainable, and reliable sources of energy, was agreed to by the Senate. 152 Cong. Rec. S5675 (daily ed. June 8, 2006).
  • H.R. 5254 (Refinery Permit Process Schedule Act), which would set schedules for the consideration of permits for refineries, was passed by the House. 152 Cong. Rec. H3477 (daily ed. June 7, 2006).

COMMITTEE ACTION:

  • S. 2041 (FWS) was reported by the Committee on Environment and Public Works. S. Rep. No. 109-260, 152 Cong. Rec. S5489 (daily ed. June 6, 2006). The bill would provide for the conveyance of a FWS administration site to the city of Las Vegas, Nevada.
  • H.R. 4084 (national forest system) was reported by the Committee on Resources. H. Rep. No. 109-490 Pt. 1, 152 Cong. Rec. H3495 (daily ed. June 7, 2006). The bill would amend the Forest Service use and occupancy permit program to restore the authority of the Secretary of Agriculture to utilize the special use permit fees collected by the Secretary in connection with the establishment and operation of marinas in units of the National Forest System derived from the public domain.   

BILLS INTRODUCED:

  • S. 3404 (Johnson, D-S.D.) (water resources) would reauthorize the Mni Wiconi Rural Water Supply Project. 152 Cong. Rec. S5489 (daily ed. June 6, 2006). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 3422 (Murkowski, R-Alaska) (Exxon Valdez) would provide for the tax treatment of income received in connection with the litigation concerning the Exxon Valdez oil spill. 152 Cong. Rec. S5490 (daily ed. June 6, 2006). The bill was referred to the Committee on Finance.
  • S. 3478 (Bond, R-Mo.) (National Trails System Act (NTSA)) would amend the NTSA relating to the statute of limitations that applies to certain claims. 152 Cong. Rec. S5659 (daily ed. June 8, 2006). The bill was referred to the Committee on Energy and Natural Resources.
  • H.R. 5531 (Israel, D-N.Y.) (energy) would require the federal government to acquire not fewer than 50,000 plug-in hybrid electric vehicles. 152 Cong. Rec. H3423 (daily ed. June 6, 2006). The bill was referred to the Committee on Government Reform.
  • H.R. 5534 (Rogers, R-Mich.) (fuel economy) would establish a grant program whereby moneys collected from violations of the corporate average fuel economy program are used to expand infrastructure necessary to increase the availability of alternative fuels. 152 Cong. Rec. H3423 (daily ed. June 6, 2006). The bill was referred to the Committee on Energy and Commerce.
  • H.R. 5538 (Smith, R-Tex.) (oil dependence) would reduce the nation's dependence on foreign sources of oil by promoting plug-in hybrid electric vehicles and related advanced vehicle technologies. 152 Cong. Rec. H3496 (daily ed. June 7, 2006). The bill was referred to the Committee on Science.
  • H.R. 5539 (Pombo, R-Cal.) (wetlands conservation) would reauthorize the North American Wetlands Conservation Reauthorization Act. 152 Cong. Rec. H3496 (daily ed. June 7, 2006). The bill was referred to the Committee on Resources.
  • H.R. 5543 (Davis, R-Va.) (fuel economy) would ensure that the average fuel economy achieved by automobiles manufactured after 2016 is no less than 33 miles per gallon. 152 Cong. Rec. H3496 (daily ed. June 7, 2006). The bill was referred to the Committee on Energy and Commerce.
  • H.R. 5544 (Green, D-Tex.) (energy) would provide for the security of critical energy infrastructure. 152 Cong. Rec. H3496 (daily ed. June 7, 2006). The bill was referred to the Committee on Energy and Commerce.
  • H.R. 5547 (Jindal, R-La.) (hurricane recovery) would direct the Secretary of Homeland Security to establish a Gulf Coast Long-Term Recovery Office to administer amounts available to the department for providing assistance to the residents of the Gulf Coast region for recovering from Hurricanes Katrina and Rita. 152 Cong. Rec. H3496 (daily ed. June 7, 2006). The bill was referred to the Committee on Transportation and Infrastructure and the Committee on Homeland Security.
  • H.R. 5554 (Norwood, R-Ga.) (mining) would amend the OSH Act of 1970 and the Federal Mine Safety and Health Act of 1977 to prohibit the promulgation of safety and health standards that do not meet certain requirements for national consensus standards. 152 Cong. Rec. H3641 (daily ed. June 8, 2006). The bill was referred to the Committee on Education and the Workforce.
  • H.R. 5556 (Shimkus, R-Ill.) (hazards) would establish a unified national hazard alert system. 152 Cong. Rec. H3641 (daily ed. June 8, 2006). The bill was referred to the Committee on Energy and Commerce and the Committee on Science.
  • H.R. 5558 (Duncan, R-Tenn.) (Federal Water Pollution Control Act (FWPCA)) would amend the FWPCA to provide more effective permitting and enforcement mechanisms for stormwater discharges associated with residential construction activities. 152 Cong. Rec. H3641 (daily ed. June 8, 2006). The bill was referred to the Committee on Transportation and Infrastructure.
  • H.R. 5565 (Herseth, D-S.D.) (Pick-Sloan Missouri River basin program) would enhance and provide to the Oglala Sioux Tribe and Angostura Irrigation Project certain benefits of the Pick-Sloan Missouri River basin program. 152 Cong. Rec. H3642 (daily ed. June 8, 2006). The bill was referred to the Committee on Resources.
  • H.R. 5566 (Herseth, D-S.D.) (hydroelectricity) would facilitate the transfer of Spearfish Hydroelectric Plant Number 1 to the city of Spearfish, South Dakota. 152 Cong. Rec. H3642 (daily ed. June 8, 2006). The bill was referred to the Committee on Energy and Commerce and the Committee on Resources.
  • H. Res. 856 (Ros-Lehtinen, R-Fla.) (marine sanctuaries) would recognize the national marine sanctuaries program as critical to managing the ocean and Great Lake resources of the United States and commend local and state partners and volunteers of the program for their contribution. 152 Cong. Rec. H3642 (daily ed. June 8, 2006). The resolution was referred to the Committee on Resources.
  • H. Con. Res. 424 (Goodlatte, R-Va.) (energy) would express the sense of Congress that it is the goal of the United States that, not later than January 1, 2025, the agricultural, forestry, and working land of the United States should provide from renewable resources not less than 25% of the total energy consumed in the United States and continue to produce safe, abundant, and affordable food, feed, and fiber. 152 Cong. Rec. H3496 (daily ed. June 7, 2006). The concurrent resolution was referred to the Committee on Agriculture, the Committee on Energy and Commerce, and 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:

Alaska Missouri Oregon California Nebraska Rhode Island Delaware New York Virginia Iowa Oklahoma  

ALASKA

Air:

  • The Department of Environmental Conservation (DEC) proposed to revise the air emissions user fees regulations in Title 18, Chapter 50, of the Alaska Administrative Code (AAC). Specifically, DEC proposed to amend 18 AAC 50, Article 4, User Fees, to change the emission fee rate for air emissions for stationary sources subject to AS 46.14.130(b) and for stationary sources not subject to AS 46.14.130(b) but to the other parts of AS 46.14.130. Emission fee rates for portable oil and gas drilling operations are also being adjusted as a result of the changed emission fee rates. The public workshop has been rescheduled for June 27, 2006. See http://notes4.state.ak.us/pn/pubnotic.nsf/1604e1912875140689256785006767f6/edef4e8c1b3b3b52892571810079af91?OpenDocument

Land Use:

CALIFORNIA

Air:

  • The Air Resources Board (ARB) will hold a second workshop on the Voluntary Accelerated Vehicle Retirement Program on June 29, 2006. A voluntary accelerated vehicle retirement (VAVR) program, also known as a scrap or old vehicle buy back program, provides monetary or other incentives to a vehicle owner to voluntarily retire their older, more polluting vehicle. A primary goal of the VAVR program is to encourage a more timely removal of higher emitting vehicles from California roadways to be replaced with newer, cleaner vehicles or alternative transportation options. ARB staff is developing proposed revisions to the VAVR regulation that would incorporate the use of remote sensing devises as an additional means of identifying higher emitting vehicles as possible candidates for voluntary retirement. See http://www.arb.ca.gov/msprog/avrp/avrp.htm
  • The Air Resources Board will hold two workshops to discuss its regulatory and nonregulatory fuel activities. Topics may include, but are not limited to, issues relating to the California Phase 3 Reformulated Gasoline regulations and the California diesel fuel regulations for vehicular and non-vehicular uses. The workshops will be held June 16 and 30, 2006. See http://www.arb.ca.gov/fuels/gasoline/meeting/2006/061606mtgnotice.pdf

Water:

  • The State Water Resources Control Board is accepting comments on an amendment to the Water Quality Control Plan for the Central Coast Region that would establish a TMDL for nitrate-nitrogen in San Luis Obispo Creek. San Luis Obispo Creek is not meeting standards due to elevated nitrate-nitrogen concentrations. These elevated concentrations are impairing the designated beneficial use of the municipal and domestic supply of water. This TMDL addresses the water impairment and articulates an implementation plan to meet water quality standards by the year 2012. Comments are due June 14, 2006. See http://www.waterboards.ca.gov/tmdl/docs/nitrate.pdf

DELAWARE

Hazardous & Solid Wastes:

  • The Department of Natural Resources and Environmental Control (DNREC) will hold a public hearing to consider adoption of proposed amendments to the Delaware Regulations Governing Hazardous Waste. Delaware is authorized by U.S. EPA to administer its own hazardous waste management program. In order for Delaware to maintain its program delegation and authority, U.S. EPA requires Delaware to maintain a program that is equivalent to and no less stringent than the federal program. Many of the changes DNREC is proposing to make are already in effect at the federal level. Additionally, the state is making miscellaneous changes to the existing regulations to correct errors and to add consistency or clarification to the existing regulations. A public hearing will be held June 28, 2006. See http://www.dnrec.state.de.us/DNREC2000/Admin/Press/PublicNotices/PNDetail.asp?NOVID=1944

IOWA

Air:

  • The Environmental Protection Commission announced its intent to amend Chapter 20, Scope of Title-Definitions-Forms-Rules of Practice; Chapter 22, Controlling Pollution; and to adopt a new Chapter 33, Special Regulations and Construction Permit Requirements for Major Stationary Sources-Prevention of Significant Deterioration of Air Quality, of the Iowa Administrative Code. Three elements of the major new source review (NSR) program are affected by this rulemaking: the procedure for calculating baseline actual emissions; actual-to-projected-actual emissions calculation methodology; and plantwide applicability limitations. The rulemaking also clarifies which pollutants are regulated for purposes of the major NSR program. A public hearing will be held July 10, 2006. See http://www.legis.state.ia.us/Rules/Current/Bulletin/IAB060607.pdf (p. 1779)
  • The Environmental Protection Commission amended Chapter 20, Scope of Title-Definitions-Forms-Rules of Practice; Chapter 21, Compliance; and Chapter 22, Controlling Pollution; and adopted new Chapter 34, Provisions for Air Quality Emissions Trading Programs, of the Iowa Administrative Code. The purpose of the amendments is to adopt the recently finalized federal Clean Air Interstate Rule (CAIR) into the state air quality rules. The amendments also make necessary updates and changes to existing air quality rules to implement CAIR. The amendments become effective July 12, 2006. See http://www.legis.state.ia.us/Rules/Current/Bulletin/IAB060607.pdf (p. 1802)
  • The Environmental Protection Commission amended Chapter 22, Controlling Pollution; Chapter 23, Emission Standards for Contaminants; and Chapter 25, Measurement of Emissions; and adopted new Chapter 34, Provisions for Air Quality Emissions Trading Programs, of the Iowa Administrative Code. The purpose of the amendments is to adopt the recently finalized federal Clean Air Mercury Rule (CAMR) into the state air quality rules. The amendments also make necessary updates and changes to existing air quality rules to implement CAMR. The amendments become effective July 12, 2006. See http://www.legis.state.ia.us/Rules/Current/Bulletin/IAB060607.pdf (p. 1811)

Hazardous & Solid Wastes:

  • The Environmental Protection Commission amended Chapter 105, Organic Materials Composting Facilities, of the Iowa Administrative Code. The amendments pertain to animal mortality composting and include other composting rule updates. The amendments are needed to address the increased use of composting by Iowa farmers as a means to manage dead livestock. These revisions will add flexibility for farmers wanting to compost routine livestock mortalities from multiple sites at a centralized site, as well as aid compliance with the rules. Under these amendments, a farmer wishing to compost routine livestock mortalities from multiple sites would no longer be required to obtain a permit to do so. Additionally, further provisions are included in the rules to ensure proper livestock mortality composting methods are used, related rules are modified to conform to the revised rules regarding mortality composting, references to DNR form numbers are updated and corrected, and the definition and filing of a "current cost estimate" are updated. The amendments become effective July 12, 2006. See http://www.legis.state.ia.us/Rules/Current/Bulletin/IAB060607.pdf (p. 1817)

Water:

  • The Environmental Protection Commission amended Chapter 50, Scope of Division-Definitions-Forms-Rules of Practice; Chapter 51, Water Permit or Registration-When Required; Chapter 52, Criteria and Conditions for Authorizing Withdrawal, Diversion, and Storage of Water; Chapter 53, Protected Water Sources-Purposes-Designation Procedures-Information in Withdrawal Applications-Limitations-List of Protected Sources; and Chapter 54, Criteria and Conditions for Permit Restrictions or Compensation by Permitted Users to Nonregulated Users Due to Well Interference, of the Iowa Administrative Code. These chapters pertain to the water use/water allocation program, which is a permit program that was administered by the Natural Resources Council until it merged in 1983 with the agency now called the Department of Natural Resources. Revisions were needed because few changes had been made to the program or its rules since that time. The administrative updates include eliminating expired dates, updating references, eliminating obsolete rules, and clarifying existing language in the rules. The amendments become effective July 12, 2006. See http://www.legis.state.ia.us/Rules/Current/Bulletin/IAB060607.pdf (p. 1816)

MISSOURI

Water:

  • The Department of Natural Resources Clean Water Commission proposed to adopt rule 10 CSR 20-1.020, Clean Water Commission Appeals and Requests for Hearings. This rule contains all procedural regulations for all contested cases heard by the commission or assigned to a hearing officer by the commission. A public hearing will be held July 12, 2006. Comments are due July 9, 2006. See http://www.sos.mo.gov/adrules/moreg/current/2006/v31n11/v31n11a.pdf (p. 851)

NEBRASKA

Air:

  • The Department of Environmental Quality proposes changes to Title 129, the Nebraska Air Quality Regulations. Specifically, the agency is proposing revisions to Chapter 6, Emissions Reporting-When Required; Chapter 17, Construction Permits-When Required; Chapter 18, New Source Performance Standards and Emission Limits for Existing Sources; Chapter 28, Hazardous Air Pollutant Emissions Standards; Appendix II, Hazardous Air Pollutants Sorted By CAS Number; and Appendix III, Hazardous Air Pollutants Sorted by Chemical Name. The changes are proposed for adoption at the June 9, 2006, Environmental Quality Council hearing. See http://www.deq.state.ne.us/Proposed.nsf/Pages/T129-06

Water:

NEW YORK

Hazardous & Solid Wastes:

  • The Department of Environmental Conservation adopted emergency rule Part 41, Sanitary Condition of Shellfish Lands. This rulemaking is necessary to reclassify underwater lands for shellfishing in order to protect public health. This emergency rule is effective on May 30, 2006, and expires on August 27, 2006. See http://www.dec.state.ny.us/website/dfwmr/propregs/index.html#41e

OKLAHOMA

Hazardous & Solid Wastes:

  • The Department of Environmental Quality made a number of minor amendments to Chapter 515, Management of Solid Waste, to reflect language clarifications and corrections of legal citations and typographical errors. One new proposed rule was added to clarify that certain facilities may take advantage of the corporate financial test to demonstrate financial assurance just as municipal solid waste landfills can, and the arsenic value in Appendix B was changed from 0.05 to 0.01. The changes are effective June 15, 2006. See http://www.oar.state.ok.us/register/Volume-23_Issue-18.htm#a250396
  • The Department of Environmental Quality amended subchapters 3 and 21 of Chapter 515, Management of Solid Waste. The amendments arise from legislation enacted in 2005, effective June 2005. Definitions contained in the Act were deleted in the rules and new definitions were added where necessary, and some proposed rules were reformatted with minor amendments. Permit application information required for tire-derived fuel (TDF) facilities that store more than 50 waste tires was added, and requirements for TDF facilities that choose to collect and transport waste tires to the facility were added as well. Community wide or other special collection events were added to reasons dumps were placed on the priority cleanup list, and monthly, quarterly, and annual reports were moved to a new rule. Language was added to clarify and emphasize that certain entities are eligible to receive compensation only for collection and transportation of waste tires that are listed by the Oklahoma Tax Commission in its rules. Rim diameter restrictions were deleted, and provisions for the Erosion Control Installer to comply with certain provisions of the Act were added. The changes are effective June 15, 2006. See http://www.oar.state.ok.us/register/Volume-23_Issue-18.htm#a257554
  • The Department of Environmental Quality amended Appendices H and I in Chapter 515, Management of Solid Waste. The solid waste rules, specifically OAC 252:515-27-4, required revision of closure and post-closure cost data in Appendices H and I every five years. The cost estimates included in Appendices H and I have been updated to reflect current cost estimates for financial assurance. These rules are not "fee" rules. The costs are mandated by statute to ensure certain facilities have sufficient financial resources to properly close and provide post-closure care for those facilities. Facilities provide a financial assurance mechanism as required by statute (27A O.S. §2-10-701). These rules simply implement that law. The changes are effective June 15, 2006. See http://www.oar.state.ok.us/register/Volume-23_Issue-18.htm#a269597
  • The Department of Environmental Quality (DEQ) amended Chapter 20, Emergency Planning and Community Right-to-Know. The changes become effective June 15, 2006. The amendments require Tier II forms to be submitted to the DEQ electronically via the DEQ website using its approved software, with a grace period given to facilities with less than five full-time employees and companies operating under SIC code 1311 with less than 20 locations. Additionally, DEQ will require that latitude/longitude information be included on Tier II forms. The procedure for submitting reporting forms has been amended to clarify that submitting a paper Tier II report to the appropriate Local Emergency Planning Committee and the local Fire Department is no longer necessary since the DEQ will make the information available to those entities. See http://www.oar.state.ok.us/register/Volume-23_Issue-18.htm#a177152

Water:

  • The Department of Environmental Quality amended Chapter 606, Oklahoma Pollutant Discharge Elimination System Standards. The Department updated its rules concerning the date of the incorporation by reference of certain federal regulations. The change updates the publication date of the federal rules to July 1, 2005. The changes are effective June 15, 2006. See http://www.oar.state.ok.us/register/Volume-23_Issue-18.htm#a270862
  • The Department of Environmental Quality amended Chapter 611, General Water Quality. The Department updated its rules concerning the date of the incorporation by reference of certain federal regulations. The change updates the publication date of the federal rules to July 1, 2005. The changes are effective June 15, 2006. See http://www.oar.state.ok.us/register/Volume-23_Issue-18.htm#a271912
  • The Department of Environmental Quality amended Chapter 616, Industrial Wastewater Systems. The Department amended its rules concerning the conditions for sand and gravel mining operations to obtain a permit. The changes are effective June 15, 2006. See http://www.oar.state.ok.us/register/Volume-23_Issue-18.htm#a273168
  • The Department of Environmental Quality amended Chapter 631, Public Water Supply Operation. The Department updated its rules concerning the date of the incorporation by reference of certain federal regulations. The change updates the publication date of the federal rules to July 1, 2005. The changes are effective June 15, 2006. See http://www.oar.state.ok.us/register/Volume-23_Issue-18.htm#a274444
  • The Department of Environmental Quality amended Chapter 690, Water Quality Standards Implementation. The Department updated its rules concerning the date of the incorporation by reference of certain federal regulations. The change updates the publication date of the federal rules to July 1, 2005. The changes are effective June 15, 2006. See http://www.oar.state.ok.us/register/Volume-23_Issue-18.htm#a275494
  • The Department of Environmental Quality amended Chapter 710, Waterworks and Wastewater Works Operator Certification. The amendments were intended to clarify the current operator certification rule concerning the exception to the certification requirement for licensed plumbers and contractors, as well as to correct several typographical errors contained within the rules. The revised provisions include language intended to clarify the type of contractor covered by the exception. The changes are effective June 15, 2006. See http://www.oar.state.ok.us/register/Volume-23_Issue-18.htm#a282906

OREGON

Air:

  • The Oregon Department of Environmental Quality (DEQ) is updating the Portland-Vancouver and Salem Ozone Maintenance Plan and Supporting Rule Revisions, the clean air plan for maintaining compliance with the federal eight-hour ozone ambient air quality standard in the Portland area, and developing a maintenance plan for the Salem area, as required by the federal CAA. This rulemaking also proposes to update DEQ's rules to reflect the federal ozone ambient air quality standard, designate Salem as an ozone "maintenance" area under state rules, modify Salem's new source review requirements for new and expanding major industry, modify Portland-area rules regarding Employee Commute Options, update rules for the Industrial Emission Management program in Portland, and make housekeeping changes to clarify the spelling of the Salem-Keizer Area Transportation Study air quality area. Public hearings will be held July 11, 2006. Comments are due July 14, 2006. See http://arcweb.sos.state.or.us/rules/0606_Bulletin/0606_rulemaking_bulletin.html
  • The Oregon Department of Environmental Quality (DEQ) is proposing that the Environmental Quality Commission (EQC) adopt recent revisions to NESHAPs, New Source Performance Standards, and the list of hazardous air pollutants. DEQ also proposes that the EQC adopt standards that implement the new federal Clean Air Mercury Rule, the new federal emission guidelines for solid waste incineration units, and the amended federal emission guidelines for municipal waste combustors. Adoption by the EQC will ensure that Oregon remains consistent with the federal requirements. Public hearings will be held June 19, 20, and 21, 2006. Comments are due June 26, 2006. See http://arcweb.sos.state.or.us/rules/0606_Bulletin/0606_rulemaking_bulletin.html

RHODE ISLAND

Wildlife:

  • The Department of Environmental Management proposes amendments to the Rhode Island Freshwater and Anadromous Fishing Regulations for the 2007-2008 Season and the Rhode Island Hunting Regulations for the 2006 and 2007 Season. Public hearings will be held June 14, 2006. Comments are due June 14, 2006. See http://www.dem.ri.gov/programs/bnatres/fishwild/pn061406.htm

VIRGINIA

Water:

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

INTERNATIONAL

SOLAR POWER ON THE RISE IN CHINA:

The low-priced solar hot water heater industry is growing quickly as oil prices rise in China, where approximately 30 to 40 million families have already installed the units on their rooftops. The solar industry there is growing 20 to 30% a year, and the government has pledged that 10% of the nation's energy will come from renewable sources by 2020. See http://www.charlotte.com/mld/charlotte/news/world/14763804.htm

EUROPEAN UNION (EU) STRUGGLES WITH BIO-FUELS POLICY:

The European Commission is currently developing a policy to increase the use of bio-fuels to help the EU reach its goals for greenhouse gas reductions and increased use of renewable energy. With environmental groups voicing their concerns about the impacts on biodiversity from increased production of crops for use as bio-fuels, the Commission is struggling to determine how to encourage bio-fuel production without causing environmental degradation. See http://www.businessupdated.com/shownews.asp?news_id=1440&cat=EU+Sustainable+Bio-Fuels+Policy and http://www.birdlife.org/news/news/2006/06/biofuels.html

JAKARTA TAKES STEPS TO IMPROVE AIR QUALITY:

The Jakarta Environmental Management Agency (BPLHD) is trying to limit emissions from three-wheeled diesel taxis known as bajaj. According to a recent report, bajaj are a major contributor to air pollution because they often use cheap fuel blends that cause the vehicles to release up to 12 times more pollutants than cars with catalytic converters. On World Environment Day last week, the BPLHD tested bajaj emissions for free. The government is also planning to import 250 natural gas bajaj from India to begin replacing older vehicles. See http://www.thejakartapost.com/detailcity.asp?fileid=20060608.C03&irec=3

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

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