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Weekly Update Volume 36, Issue 18

06/19/2006

LITIGATION

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

CWA, CIVIL PENALTIES:

The Second Circuit affirmed the imposition of civil penalties against New York City for operating a tunnel that delivers water from Schoharie Reservoir in the Catskill Mountains to the city without a permit. Water from the reservoir is eventually used for city drinking water. As part of the delivery process, water is discharged into Esopus Creek. These discharges from the tunnel into the creek are more turbid than the waters of the Esopus, thereby impairing use of the Esopus for fly fishing and other recreational activities. In a previous decision, the court held that the city was required to obtain a permit for these discharges. A lower court then assessed a $5,749,000 civil penalty against the city for the CWA violations. The city appealed both its requirement to obtain a permit as well as the penalty assessment. But there are no compelling reasons to overturn the court's previous decision that the city needs to obtain a permit. And in arriving at the penalty, the lower court carefully considered the factors laid out in CWA §309(d), relied on facts not clearly erroneous, and did not abuse its discretion in deciding the penalty. The court, however, discovered a calculation error and, therefore, remanded the case for recalculation of the penalty. Catskill Mountains Chapter of Trout Unlimited, Inc. v. City of New York, Nos. 03-7203(L), -7253(XAP), 36 ELR 20111 (2d Cir. June 13, 2006) (26 pp.).

ESA, CONSULTATION REQUIREMENTS:

The Ninth Circuit held that the Forest Service violated the ESA when it failed to reinitiate informal consultation with the FWS on the environmental impact of cattle grazing on the Water Canyon Allotment of the Apache-Sitgreaves National Forests. In August 1998, the Forest Service and the FWS entered into an agreement establishing guidance criteria that governed livestock grazing pursuant to the Water Canyon Allotment's land management plan. The agreement provided that, for the life of each 10-year grazing permit, the Forest Service was allowed to presume annual concurrence by the FWS in its "not likely to adversely affect" finding only if it confirmed each year that the guidance criteria were being satisfied. Here, however, the Forest Service failed to conduct adequate annual monitoring of the amount of forage being consumed by grazing animals necessary to protect the ESA-listed species in the area. As a result, its "not likely to adversely affect" findings were invalid. Reinitiation of consultation was therefore required to obtain the FWS' annual concurrence in the findings because such concurrence could no longer be presumed. Forest Guardians v. Johanns, No. 04-16179, 36 ELR 20109 (9th Cir. June 13, 2006) (20 pp.).

CERCLA, RCRA, JURISDICTION:

The First Circuit affirmed the dismissal of individuals' state-law counterclaims against a gasoline company that was suing them under CERCLA and RCRA for contamination at a service station. A magistrate judge dismissed the individuals' counterclaims as time-barred. The individuals then filed a motion for reconsideration. While that motion was pending, the U.S. Supreme Court issued its decision in Cooper Industries, Inc. v. Aviall Services, Inc., 543 U.S. 157, 34 ELR 20154 (2004). The magistrate judge then denied the individuals' motion for reconsideration and, at the same time, ordered the company to show cause on its CERCLA claim in light of Cooper Industries. The company then moved for voluntary dismissal of both its CERCLA and RCRA claims. The individuals then filed a motion to vacate the judge's previous judgment, arguing that it lacked jurisdiction. The magistrate judge correctly denied their motion. While it is true that the judge lacked subject matter jurisdiction over the CERCLA claim, it retained jurisdiction under RCRA. The magistrate judge, therefore, had supplemental jurisdiction over the individuals' state counterclaims when it ruled that those claims were time-barred. Esso Standard Oil Co. v. Rodríguez-Pérez, No. 05-1722, 36 ELR 20110 (1st Cir. June 14, 2006) (12 pp.).

AGRICULTURE, SWAMPBUSTER:

The Fourth Circuit upheld a USDA decision denying a farming operation's application for farm benefits. The farm illegally converted wetlands in violation of the Swampbuster provision of the Food Security Act. The farm also ignored advice from the USDA National Resources Conservation Service to seek a determination of wetland status before it began clearing any woodland so as to avoid any wetlands violations. And the farm denied access to USDA officials who sought to investigate a whistleblower complaint. The USDA, therefore, did not act arbitrarily, capriciously, or in abuse of its discretion in denying the benefits. Holly Hill Farms Corp. v. United States, No. 05-1857, 36 ELR 20108 (4th Cir. May 8, 2006) (17 pp.).

OIL & GAS LAW, ISSUE PRECLUSION:

The D.C. Circuit upheld the dismissal of a complaint against the DOE involving a 1986 settlement agreement that allocated refunds of crude oil overcharges. Under the agreement, the refunded overcharges would be apportioned between the parties to the settlement agreement, which included the DOE, all 50 states, and various nongovernmental entities. The agreement also established a reserve fund for those not party to the agreement. In the instant case, a group of energy utilities and manufacturers that are entitled to recover from the reserve fund filed a complaint for a declaratory judgment that the federal and state governments, as well as their respective departments and agencies, are not entitled to recover from the reserve fund because they were parties to the settlement agreement. But a previous federal court already ruled that parties to the settlement were entitled to receive refunds from the reserve fund. The doctrine of issue preclusion, therefore, bars the instant case. Consolidated Edison Co. of New York v. Bodman, No. 05-5302, 36 ELR 20107 (D.C. Cir. June 9, 2006) (11 pp.).

WATER RIGHTS, HEARINGS:

The Supreme Court of Texas held that while §11.122(b) of the Texas Water Code significantly restricts the issues that may be reviewed in a contested-case proceeding, it does not altogether preclude one when a proposed water-rights amendment requests a change in use but does not seek to increase the amount of water appropriated or the rate of diversion. After a city sought to amend its water-use certificate so that it could supply untreated water for industrial use, another city opposed the application and sought a contested-case hearing. Even though the application did not request a change in the amount of water or rate of diversion, the opposing city alleged the amendment would have serious adverse environmental and socioeconomic consequences. The state agency, however, concluded that §11.122(b) mandated approval of the amendment without a contested-case hearing. But depending upon the particular amendment application, a hearing may be necessary to allow the agency to assess certain limited criteria other than the application's effect on other water-rights holders and the on-stream environment that the state legislature considered necessary to protect the public interest, including assessment of water conservation plans, consistency with the state and any approved regional water plans, and groundwater effects. The court, therefore, remanded the case so that the agency could determine whether a contested-case proceeding would be appropriate in light of this interpretation. City of Marshall v. City of Uncertain, No. 03-1111, 36 ELR 20106 (Tex. June 9, 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 proposed two options for amending the hazardous organic NESHAP for new and existing synthetic organic chemical manufacturing industry process units; the first option would impose no further controls, while the second option would provide further reductions of organic hazardous air pollutants at certain process units. 71 FR 34421 (6/14/06).
  • EPA proposed new source standards of performance for stationary spark ignition internal combustion engines and NESHAPs for certain stationary reciprocating internal combustion engines. 71 FR 33803 (6/12/06).
  • SIP Approvals: Indiana (revisions for ozone) 71 FR 33625 (6/12/06). Maryland (revised definition of interruptible gas service) 71 FR 34014 (6/13/06); (ambient air quality standard for ozone and fine particulate matter) 71 FR 34257 (6/14/06). Missouri (lead smelter-refinery installations) 71 FR 33622 (6/12/06). Pennsylvania (nitrogen oxides (NOx) and volatile organic compounds (VOC) reasonably available control technology (RACT) determinations) 71 FR 34011 (6/13/06); (NOx and VOC RACT determinations for 12 individual sources) 71 FR 34259 (6/14/06).
  • SIP Proposals: Indiana (revisions for ozone; see above for direct final rule) 71 FR 33668 (6/12/06). Missouri (lead smelter-refinery installations; see above for direct final rule) 71 FR 33668 (6/12/06). Pennsylvania (NOx and VOC RACT determinations; see above for direct final rule) 71 FR 34050 (6/13/06); (NOx and VOC RACT determinations for 12 individual sources; see above for final rule) 71 FR 34297 (6/14/06); (limited approval conversion of NOx and VOC RACT regulations) 71 FR 34864 (6/16/06). Virginia (maintenance, nonattainment, and PSD areas) 71 FR 33669 (6/12/06).

MINING:

  • OSM approved an amendment to the Texas regulatory program under SMCRA that revises its fish and wildlife habitat revegetation guidelines by adding technical guidelines and management practices concerning habitat suitable for bobwhite quail and other grassland bird species. 71 FR 34251 (6/14/06).

TOXIC SUBSTANCES:

  • EPA promulgated a significant new use rule under TSCA §5(a)(2) for tetrabromodiphenyl ether, pentabromodiphenyl ether, hexabromodiphenyl ether, heptabromodiphenyl ether, octabromodiphenyl ether, and nonabromodiphenyl ether, or any combination of these substances resulting from a chemical reaction. 71 FR 34015 (6/13/06).

WATER:

  • EPA established CWA §316(b) requirements for the control of cooling water intake structures at existing Phase III facilities and at new offshore oil and gas extraction facilities. 71 FR 35005 (6/16/06).
  • EPA codified regulatory changes to the CWA resulting from the Energy Policy Act of 2005; the revisions exempt certain stormwater discharges from field activities or operations associated with oil and gas exploration, production, processing, or treatment operations or transmission facilities from the NPDES permit requirements and encourage voluntary application of best management practices for oil and gas field activities and operations to minimize the discharge of pollutants in stormwater runoff and to protect water quality. 71 FR 33628 (6/12/06).
  • EPA proposed to issue a general NPDES permit for groundwater remediation discharge facilities in Idaho. 71 FR 34131 (6/13/06).
  • EPA announced its intent to approve revisions to Ohio's Public Water System Supervision Program; the state changed its definition of a public water system and revised the Consumer Confidence Report Rule, Public Notification Rule, Interim Enhanced Surface Water Treatment Rule, and Stage 1 Disinfectants and Disinfection Byproducts Rule. 71 FR 33749 (6/12/06).

WILDLIFE:

  • NMFS proposed to designate critical habitat for the Southern Resident killer whale distinct population segment in waters around the San Juan Islands, Puget Sound, and the Strait of Juan de Fuca, and in the summer core area in Haro Strait. 71 FR 34571 (6/15/06).
  • FWS, in cooperation with Tennessee and Conservation Fisheries, Inc., proposed to reintroduce 15 endangered mussels, 3 threatened species of fish, 2 endangered species of fish, and 1 endangered aquatic snail into their historical habitat located in the Lower French Broad River and in the Lower Holston River, Tennessee. 71 FR 34195 (6/13/06).
  • FWS proposed to amend critical habitat for the wintering population of the piping plover in Dare and Hyde counties in North Carolina. 71 FR 33703 (6/12/06).
  • FWS announced the availability of a draft comprehensive conservation plan and EA for the Grand Cote National Wildlife Refuge in Avoyelles Parish, Louisiana. 71 FR 34955 (6/16/06).

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

THE CONGRESS

CHAMBER ACTION:

  • H.R. 3967 (Pactola Reservoir Reallocation Authorization Act of 2005), which 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, was amended and passed by the House. 152 Cong. Rec. H3728 (daily ed. June 12, 2006).
  • H.R. 4162 (Los Padres National Forest Land Exchange Act of 2005), which would provide for an exchange of lands between the Secretary of Agriculture and the United Water Conservation District of California to eliminate certain private inholdings in the Lost Padres National Forest, was amended and passed by the House. 152 Cong. Rec. H3727 (daily ed. June 12, 2006).

COMMITTEE ACTION:

  • H.R. 5136 (drought monitoring) was reported by the Committee on Science. H. Rep. No. 109-503, 152 Cong. Rec. H4133 (daily ed. June 15, 2006). The bill would establish a National Integrated Drought Information System within NOAA to improve drought monitoring and forecasting capabilities.

BILLS INTRODUCED:

  • S. 3490 (Santorum, R-Pa.) (wildlife refuge) would direct the Secretary of the Interior to initiate and complete an evaluation of land and water located in northeastern Pennsylvania for future acquisition and inclusion in a potential Cherry Valley National Wildlife Refuge. 152 Cong. Rec. S5717 (daily ed. June 12, 2006). The bill was referred to the Committee on Environment and Public Works.
  • S. 3497 (Kyl, R-Ariz.) (BLM) would provide for the exchange of certain BLM land in Pima County, Arizona. 152 Cong. Rec. S5779 (daily ed. June 13, 2006). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 3501 (McCain, R-Ariz.) (water rights) would amend the Shivwits Band of the Paiute Indian Tribe of Utah Water Rights Settlement Act to establish an acquisition fund for the water rights and habitat acquisition program. 152 Cong. Rec. S5779 (daily ed. June 13, 2006). The bill was referred to the Committee on Indian Affairs.
  • S. 3503 (Boxer, D-Cal.) (Superfund) would amend the Internal Revenue Code of 1986 to extend the financing of the Superfund. 152 Cong. Rec. S5779 (daily ed. June 13, 2006). The bill was referred to the Committee on Finance.
  • S. 3509 (Voinovich, R-Ohio) (remediation) would amend the Internal Revenue Code of 1986 to provide tax incentives for the remediation of contaminated sites. 152 Cong. Rec. S5874 (daily ed. June 14, 2006). The bill was referred to the Committee on Finance.
  • S. 3513 (Bunning, R-Ky.) (National Trails System Act) would amend the National Trails System Act to extend the Lewis and Clark National Historic Trail to include additional sites associated with the preparation or return phase of the Lewis and Clark expedition. 152 Cong. Rec. S5874 (daily ed. June 14, 2006). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 3515 (Cantwell, D-Wash.) (cleanup) would amend title II of the U.S. Code to ensure that liable entities meet environmental cleanup obligations. 152 Cong. Rec. S5874 (daily ed. June 14, 2006). The bill was referred to the Committee on Environment and Public Works.
  • S. 3519 (Hatch, R-Utah) (agriculture) would reform the state inspection of meat and poultry in the United States. 152 Cong. Rec. S5949 (daily ed. June 15, 2006). The bill was referred to the Committee on Agriculture, Nutrition, and Forestry.
  • S. 5322 (Wyden, D-Or.) (Fisheries Restoration and Irrigation Mitigation Act) would amend the Bonneville Power Administration portions of the Fisheries Restoration and Irrigation Mitigation Act of 2000 to authorize appropriations for fiscal years 2006 through 2012. 152 Cong. Rec. S5950 (daily ed. June 15, 2006). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 3526 (McCain, R-Ariz.) (Indian Land Consolidation Act) would amend the Indian Land Consolidation Act to modify certain requirements under that Act. 152 Cong. Rec. S5950 (daily ed. June 15, 2006). The bill was referred to the Committee on Indian Affairs.
  • H.R. 5575 (Chabot, R-Ohio) (class action) would provide a mechanism for the determination on the merits of the claims of claimants who met the class criteria in a civil action relating to racial discrimination by the USDA but who were denied that determination. 152 Cong. Rec. H3723 (daily ed. June 9, 2006). The bill was referred to the Committee on the Judiciary.
  • H.R. 5579 (Markey, D-Mass.) (gas guzzler tax) would amend the Internal Revenue Code of 1986 to include heavier vehicles and sport utility vehicles in the limitation on the depreciation of certain luxury automobiles and to impose the gas guzzler tax on such vehicles. 152 Cong. Rec. H3723 (daily ed. June 9, 2006). The bill was referred to the Committee on Ways and Means.
  • H.R. 5580 (Wilson, R-S.C.) (energy) would promote global energy security through increased cooperation between the United States and India in diversifying sources of energy, stimulating development of alternative fuels, developing and deploying technologies that promote the clean and efficient use of coal, and improving energy efficiency. 152 Cong. Rec. H3723 (daily ed. June 9, 2006). The bill was referred to the Committee on International Relations.
  • H.R. 5592 (Weller, R-Ill.) (energy) would amend the Energy Policy Act of 1992 to direct the head of each federal agency to ensure that, in areas in which ethanol-blended gasoline is reasonably available at a generally competitive price, the federal agency purchases ethanol-blended gasoline containing at least 10% ethanol rather than nonethanol-blended gasoline for use in gasoline-powered vehicles used by the agency. 152 Cong. Rec. H3907 (daily ed. June 13, 2006). The bill was referred to the Committee on Government Reform.
  • H.R. 5594 (Smith, R-Tex.) (energy) would direct the Secretary of Energy to establish a photovoltaic demonstration program. 152 Cong. Rec. H3907 (daily ed. June 13, 2006). The bill was referred to the Committee on Science.
  • H.R. 5611 (Conaway, R-Tex.) (energy) would provide for the establishment of a partnership between the Secretary of Energy and appropriate industry groups for the creation of a transportation fuel conservation education campaign. 152 Cong. Rec. H4008 (daily ed. June 14, 2006). The bill was referred to the Committee on Energy and Commerce.
  • H.R. 5612 (Deal, R-Ga.) (national forest system) would establish the Mountaintown National Scenic Area in the Chattahoochee National Forest, Georgia, and designate additional National Forest System land in the state of Georgia as components of the National Wilderness Preservation System. 152 Cong. Rec. H4008 (daily ed. June 14, 2006). The bill was referred to the Committee on Resources and the Committee on Agriculture.
  • H.R. 5614 (Kelly, R-N.Y.) (nuclear power) would amend title 14 of the U.S. Code to vest in the Coast Guard primary responsibility in the federal government for the naval defense of nuclear power facilities located on navigable waters of the United States. 152 Cong. Rec. H4008 (daily ed. June 14, 2006). The bill was referred to the Committee on Transportation and Infrastructure.
  • H.R. 5617 (Young, R-Alaska) (Alaska Native Claims Settlement Act) would amend the Alaska Native Claims Settlement Act to provide an equitable distribution of land to the 13th Alaska Native Regional Corporation. 152 Cong. Rec. H4008 (daily ed. June 14, 2006). The bill was referred to the Committee on Resources.
  • H.R. 5622 (Pombo, R-Cal.) (conservation) would reauthorize the Coral Reef Conservation Act of 2000. 152 Cong. Rec. H4133 (daily ed. June 15, 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:

Alabama Maryland Virginia Alaska Michigan Washington California Nebraska West Virginia Louisiana New Jersey  

ALABAMA

Hazardous Wastes & Substances:

  • The Department of Environmental Management (ADEM) is proposing revisions to ADEM Administrative Code 335-15, Brownfield Redevelopment and Voluntary Cleanup Program. The Department is proposing to add language in 335-15-4 that requires delineation of any groundwater contamination at a site wishing to enter the Voluntary Cleanup Program, and requires that any contamination found at these sites be remediated to levels specified by the Department. ADEM is proposing to add language in 335-15-7 that states that the Department, the Alabama Land Recycling Loan Authority, or the state can only loan money from the Brownfield Cleanup State Revolving Fund and cannot be held liable for debts incurred by an applicant when conducting remediation using Fund monies. The Department is also proposing to remove the $200,000 limit placed on Fund loan amounts in 335-15-7. A public hearing will be held July 6, 2006. Written comments are due July 7, 2006. See http://www.adem.state.al.us//PubHearings/Div15/D15SumofReasonProposedChanges051806.pdf

Water:

  • The Department of Environmental Management (ADEM) proposes to repeal ADEM Administrative Code, Chapter 335-6-7A, NPDES Best Management Practices, Permit Coverage Requirements, Technical Standards and Guidelines, Construction and Operation Requirements, and Facility Closure Requirements for New and Existing Concrete Batch Plants. On February 15, 2006, the Department submitted Chapter 335-6-7A to U.S. EPA for review as a change to Alabama's NPDES program.  Because a draft NPDES general permit for Concrete Batch Plants is included in Chapter 335-6-7A as Appendix D, EPA's review of the rule encompasses a review of the draft general permit.  By letter dated May 17, 2006, U.S. EPA notified ADEM of its objection to the draft permit and of its continuing evaluation of the rule as a program change.  To address U.S. EPA's objection to the draft permit, ADEM proposes to repeal the rule, which includes the draft permit. A public hearing will be held July 26, 2006. Written comments are due August 4, 2006. See http://www.adem.state.al.us//PublicNotice/June/6Div6.htm

ALASKA

Land Use:

CALIFORNIA

Air:

  • The Air Resources Board will hold a Commercial Harbor Craft Workshop on June 28, 2006. The agenda includes discussion of a preliminary staff regulatory proposal and other activities for reducing diesel particulate matter and oxides of nitrogen emissions from in-use diesel-fueled engines on commercial harbor craft. Commercial harbor craft include, but are not limited to, tugboats, fishing vessels, work boats, crew boats, ferries, and military vessels. See http://www.arb.ca.gov/msprog/offroad/marinevess/meetings/062806hcnotice.pdf
  • The Air Resources Board revised the starting and ending times for the June 21, 2006, workshop to discuss the status of Zero Emission Bus technology and regulations. See revised workshop notice at http://www.arb.ca.gov/msprog/bus/zeb/meetings/062106/msc06-10-zbuswsnot-revised.pdf

Toxic Substances :

  • The Office of Environmental Health Hazard Assessment added environmental tobacco smoke to the list of chemicals known to the state to cause reproductive toxicity for purposes of the Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65). The listing went into effect June 9, 2006. See http://oehha.org/prop65/prop65_list/files/060906lstnotice.pdf

LOUISIANA

Air:

  • The Department of Environmental Quality has initiated rulemaking procedures to amend the air regulations at LAC 33:III.505. This rule replaces the existing Acid Rain Program regulations with an incorporation by reference of the recently revised federal regulations concerning the Acid Rain Program. This proposed rule is identical to federal regulations found in 40 CFR pt. 72, and 70 Fed. Reg. 25162 (May 12, 2005), and 71 Fed. Reg. 25328 (April 28, 2006). A public hearing will be held July 25, 2006. Comments are due July 25, 2006. See http://www.deq.louisiana.gov/portal/portals/0/planning/regs/pdf/AQ259ftpro.pdf
  • The Department of Environmental Quality has initiated rulemaking procedures to adopt the air regulations at LAC 33:III.506. This rule incorporates by reference the federal regulations concerning the Clean Air Interstate Rule Sulfur Dioxide Trading Program. This proposed rule is identical to federal regulations found in 40 CFR pt. 96, subpts. AAA, BBB, CCC, FFF, GGG, and HHH, and 70 Fed. Reg. 25162 (May 12, 2005), and 71 Fed. Reg. 25328 (April 28, 2006). A public hearing will be held July 25, 2006. Comments are due July 25, 2006. See http://www.deq.louisiana.gov/portal/portals/0/planning/regs/pdf/AQ260ftpro.pdf
  • The Department of Environmental Quality (DEQ) has initiated rulemaking procedures to amend the air regulations at LAC 33:III.2117. The basis and rationale for this rule are to establish a regulatory mechanism to allow the DEQ to permanently exempt emissions units from the control of emissions of organic compounds when conformity with applicable provisions would create an unreasonable risk to health, welfare, or safety. Approval of such an exemption will not be implied, but must be expressly granted in writing by the department. This rule is also being proposed as a revision to the Louisiana SIP. A public hearing will be held July 25, 2006. Comments are due August 1, 2006. See http://www.deq.louisiana.gov/portal/portals/0/planning/regs/pdf/AQ263pro.pdf
  • The Department of Environmental Quality has initiated rulemaking procedures to amend the air regulations at LAC 33:III.2301, which regulates opacity and emissions of particulate matter, sulfur oxides, and total reduced sulfur (TRS) at certain pulp manufacturing plants. The federal regulations set forth at 40 CFR pt. 60, subpt. BB, Standards of Performance for Kraft Pulp Mills (NSPS BB), also regulate particulate, TRS, and opacity from these sources. The TRS and opacity standards established by the NSPS BB are equivalent to or more stringent than those set forth in the state regulation. Therefore, in order to simplify regulatory applicability, this rule revision will provide an exemption from the TRS and opacity portions of LAC 33:III.2301 for sources subject to NSPS BB. This rule is also being proposed as a revision to the Louisiana SIP. A public hearing will be held July 25, 2006. Comments are due August 1, 2006. See http://www.deq.louisiana.gov/portal/portals/0/planning/regs/pdf/AQ264pro.pdf
  • The Department of Environmental Quality has initiated rulemaking procedures to amend the air regulations at LAC 33:III.501 and 503. This rule revision will allow construction of minor source crude oil and natural gas production facilities, or any modification to such facilities, to commence upon submittal of a permit application, provided the source is not a Part 70 Source as defined in LAC 33:III.502 and the appropriate permit fee has been paid in accordance with LAC 33:III.Chapter 2. A public hearing will be held July 25, 2006. Comments are due August 1, 2006. See http://www.deq.louisiana.gov/portal/portals/0/planning/regs/pdf/AQ265pro.pdf
  • The Department of Environmental Quality has initiated rulemaking procedures to amend the air regulations at LAC 33:III.513. The rule clarifies the public notice requirements for general permits for Part 70 sources. This rule is also being proposed as a revision to the Louisiana SIP. A public hearing will be held July 25, 2006. Written comments are due August 1, 2006. See http://www.deq.louisiana.gov/portal/portals/0/planning/regs/pdf/AQ267pro.pdf
  • The Department of Environmental Quality has initiated rulemaking procedures to amend the air regulations at LAC 33:III.531. LAC 33:III.531.B.3 incorrectly uses the term "draft permit" to denote the version of the permit being referred to in the regulation. A public hearing will be held on July 25, 2006. Written comments are due August 1, 2006. See http://www.deq.louisiana.gov/portal/portals/0/planning/regs/pdf/AQ268pro.pdf
  • The Department of Environmental Quality is developing revisions to the air toxic rule and to the corresponding portions of the fee rule in LAC 33:III.211, 223, 551, and Chapter 51, Subchapter A. This is a preliminary step in the rulemaking process. Official rulemaking will be initiated after review and consideration of the comments received on this advanced notice. All interested persons are encouraged to submit written comments on the draft proposal. Comments are due no later than 4:30 p.m., August 4, 2006. See http://www.deq.louisiana.gov/portal/portals/0/planning/regs/pdf/0606Pot1_AQ256.pdf
  • The Office of Environmental Assessment, Plan Development Section, will submit a proposed revision to the ozone maintenance plan for Grant Parish. A final maintenance plan was published in March 2006. Since that time, plan revisions have made it necessary to repropose the plan. Plan revisions include changes to the contingency plan and updates to the nonpoint stationary and nonroad mobile emission inventories. A public hearing will be held July 25, 2006. Comments are due August 1, 2006. See http://www.deq.louisiana.gov/portal/portals/0/planning/regs/pdf/0606Pot2.pdf
  • The Office of Environmental Assessment, Plan Development Section, is proposing a revision to the SIP for St. Mary Parish. According to the Phase 1 eight-hour implementation rule published April 30, 2004, a revision to the SIP is required for areas that are designated attainment for the 8-hour ozone NAAQS and designated attainment for the 1-hour ozone NAAQS with an approved maintenance plan. The CAA §110(a)(1) maintenance plan for St. Mary Parish must be submitted to U.S. EPA no later than June 15, 2007. A public hearing will be held July 25, 2006. Comments are due August 1, 2006. See http://www.deq.louisiana.gov/portal/portals/0/planning/regs/pdf/0606Pot3.pdf
  • The Department of Environmental Quality declared that emergency action is necessary to implement rules concerning the revised primary and secondary NAAQS for ozone and transitional provisions for nonattainment new source review. This is a renewal and revision of Emergency Rule AQ253E2, which was effective on February 10, 2006, and published in the Louisiana Register on February 20, 2006. This emergency rule is effective June 10, 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/AQ253E3.pdf

Water:

  • The Department of Environmental Quality has finalized rules on pretreatment streamlining (LAC 33:IX.2903, 6105, 6109, 6111, 6113, 6115, 6123, 6129, and 7127.Appendix N). The rule becomes effective June 20, 2006. See http://www.deq.louisiana.gov/portal/portals/0/planning/regs/pdf/WQ067ftfin.pdf
  • The Department of Environmental Quality declared that an 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 emergency rule, OS066E3, rescinds and reissues with amendments prior Emergency Rule OS066E2, which was effective on April 29, 2006, and published in the Louisiana Register on May 20, 2006. The rule attempts to streamline and expedite the permitting process by removing the solid waste requirements for the management of sewage sludge from the solid waste regulations (LAC 33:Part VII). Sewage sludge will be managed under Chapter 69 of LAC 33:IX, which is reflective of and equivalent to the CWA§503. This Emergency Rule is effective on June 1, 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/OS066E3.pdf

MARYLAND

Toxic Substances:

  • The Maryland Department of the Environment, Technical and Regulatory Services Administration, is hosting a public meeting on July 7, 2006, to discuss the legislative report on Decabrominated Diphenyl Ether (deca-BDE) required by House Bill 83 (2005). The purpose of the meeting is to provide stakeholders with an update on the status of the report and to hear comments and opinions from stakeholders on the future of deca-BDE in Maryland. See http://www.mde.state.md.us/calendar/event.asp?id=950&rframe=0&cid=19%2C+20%2C+23&type=0&date=7%2F1%2F2006

MICHIGAN

Air:

  • The Air Quality Division will be holding a public hearing on July 10, 2006, the proposed addition of R 336.1660 and R 336.1661. The proposed amendments will reduce volatile organic compound emissions from a variety of consumer products sold in the state of Michigan. Written comments will be accepted until 5:00 p.m. on July 10, 2006. See http://www.michigan.gov/deq/0,1607,7-135-3308-144903--,00.html#PublicHearings

General:

  • The Environmental Science and Services Division will be holding a public hearing on the proposed amendments to the Clean Corporate Citizen (C3) Program rules. The proposed amendments will provide clarity to the existing rules and strengthen the criteria necessary to receive and retain C3 designation. The hearing will be held June 27, 2006. See http://www.michigan.gov/deq/0,1607,7-135-3308-144903--,00.html#PublicHearings

NEBRASKA

Hazardous & Solid Wastes:

  • The Department of Environmental Quality proposes several changes to Title 128--Nebraska Hazardous Waste Regulations. The revisions concern, among other things, the definition and identification of hazardous waste, requirements for small and large generators of hazardous waste, and land disposal restrictions. The proposed changes will be considered for adoption at the June 9, 2006, Environmental Quality Commission hearing. See http://www.deq.state.ne.us/Proposed.nsf/Pages/Proposed and http://www.deq.state.ne.us/Proposed.nsf/Pages/T128

NEW JERSEY

Air:

  • The Department of Environmental Protection adopted several amendments to the base fees and supplementary fees for facilities permitted under, applying for a permit under, or registering under N.J.A.C. 7:27-8. The department amended its preconstruction permit base fee tables and supplementary fee schedule at N.J.A.C. 7:27-8.6, and its base and supplementary fee schedules for significant modification applications at N.J.A.C. 7:27-22.31(r), (s) and (t). It also adopted amendments to conform the N.J.A.C. 7:27-22 fee provisions to the mandated fees in the Omnibus Fee Legislation of 2002 (OFL) (P.L. 2002, c.34); amendments to the application, registration, notice, and renewal submission processes; and amendments to exempt dry cleaning equipment that uses liquid carbon dioxide as the cleaning agent from the air permitting requirements. The Department also made technical corrections, deleted outdated provisions, changed payment and filing methods, updated contact information, and reduced from 60 to 30 days the time for payment of Department invoices. The amendments were adopted May 1, 2006, and become effective July 1, 2006. See http://www.nj.gov/dep/rules/adoptions/Fee_Adoption_6_19_06.pdf

VIRGINIA

Air:

  • The Department of Environmental Quality (DEQ) proposed revisions to the Virginia SIP. The proposed revision includes an ozone air quality maintenance plan to reduce and maintain volatile organic compound (VOC) and nitrogen oxide (NOx) emissions in the Hampton Roads eight-hour ozone nonattainment area through the year 2018 such that they do not exceed the 2005 attainment year level. The purpose of the maintenance plan is to ensure that emissions of VOC and NOx remain at or below levels that will enable the area to continue to meet the national air quality standard for ozone. The revisions also include mobile emissions budgets established under the plan for the year 2005 and beyond, and the base-year 2002 air pollutant emissions inventory, which serves as the basis for all planning activities related to the eight-hour ozone standard for the Hampton Roads area. The maintenance plan will be submitted as a SIP revision in conjunction with a request to U.S. EPA to redesignate the area from nonattainment to attainment. DEQ is also taking comments on the redesignation request, but that document will not be submitted as part of the SIP revision. A public hearing will be held July 19, 2006. See http://www.townhall.state.va.us/meeting/ViewMeeting.cfm?Meeting_ID=7484

WASHINGTON

Hazardous & Solid Wastes:

  • The Department of Ecology is proposing a new chapter, Chapter 173-182 WAC, Oil Spill Contingency Planning. This rule sets standards for vessel and facility oil spill contingency plans, drills that test plans, and the approval of primary response contractors. Public hearings will be held July 11, 13, 16, 18, and 19, 2006. Public comments are due July 26, 2006. See http://www.ecy.wa.gov/laws-rules/activity/wac173181_31710.html and http://www.ecy.wa.gov/laws-rules/wac173181/p0003.pdf
  • The Department of Ecology is proposing to create a new chapter, Chapter 173-180 WAC, Facility Oil Handling Standards, to add new oil transfer requirements and to consolidate the following four existing chapters: Chapter 173-180A, Facility oil handling operations and design standards; Chapter 173-180B, Facility oil handling operations manual standards; Chapter 173-180C, Facility personnel oil-handling training and certification; and Chapter 173-180D WAC, Facility oil spill prevention plan standards. The Department also proposes to amend WAC 317-40, Bunkering Operations, to update existing requirements and incorporate new oil transfer requirements for vessels transferring oil. The new title for this chapter will be Vessel Oil Transfer Standards. Public hearings will be held July 11, 13, 16, 18, and 19, 2006. Public comments are due July 26, 2006. See http://www.ecy.wa.gov/news/2006news/2006-096.html and http://www.ecy.wa.gov/laws-rules/activity/wac173180ABCD_31740.html

WEST VIRGINIA

Air:

Water:

  • The Department of Waste Management will be holding a public hearing on July 11, 2006, concerning the Standards for Beneficial Use of Filtrate from Water Treatment Plants. Comments are due July 11, 2006. See http://www.wvsos.com/adlaw/register/current/060906.pdf (p. 9)

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

INTERNATIONAL

GREEK SCHOOLS RECEIVE AIR POLLUTION SENSORS:

The Greek government is installing sensors that will measure and regulate carbon dioxide (CO2) levels in schools in densely populated areas or near major roads. Studies in Attica schools showed that CO2 levels in classrooms and schoolyards significantly exceeded EU maximum levels. See http://www.ekathimerini.com/4dcgi/_w_articles_politics_100012_15/06/2006_70910

EU VOTES TO STRENGTHEN GROUNDWATER PROTECTION RULES:

The European Parliament voted to tighten groundwater pollution rules by setting threshold values for agricultural pesticides and nitrates and by standardizing the methods for measuring water pollutants. Member countries are free to set threshold values for other type of groundwater pollutants. Because the new limits are expected to incur costs for farmers, aid procedures are suggested in the new proposal and must now be approved by the EU Council of Ministers. See http://www.euractiv.com/en/environment/parliament-tightens-eu-groundwater-pollution-rules/article-156111

DUBAI INVESTIGATES CREEK POLLUTION:

Dubai Municipality inspectors caught a truck driver dumping thousands of liters of chemicals into Dubai Creek. Police seized 80 barrels from the driver; 60 had already been dumped into the water. Water quality tests revealed that the chemicals exceeded permitted levels and the case is currently under investigation. The penalties for illegally dumping wastes in the United Arab Emirates range from fines of approximately $2,700 to $27,000 (U.S. dollars), to life imprisonment. See http://www.tradearabia.com/tanews/newsdetails_snENV_article106682.html

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

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