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Weekly Update Volume 36, Issue 2

01/23/2006

LITIGATION

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

CERCLA, CLEANUP COSTS, NCP COMPLIANCE:

The Ninth Circuit upheld the denial of a property owner's request for cleanup costs against a former lessee of the property. There are no genuine issues of material fact regarding whether the property owner substantially complied with the NCP. The property owner afforded the public no opportunity to comment on, or even learn of, the proposed remediation plan, and it failed to produce any evidence that it in any way complied with the feasibility study requirement of the NCP. The former lessee was therefore entitled to summary judgment on the property owner's claims. Carson Harbor Village, Ltd. v. County of Los Angeles, No. 04-55024, 36 ELR 20011 (9th Cir. Jan. 12, 2006) (16 pp.).

CAA, WHISTLEBLOWER ACTION:

The Fourth Circuit reversed the dismissal of an individual's complaint against his employer under the CAA's whistleblower provision. The Department of Labor Administrative Review Board (ARB) dismissed the complaint reasoning that the individual did not engage in a protected activity under the CAA because the individual only complained of asbestos being emitted within his workplace rather than into the ambient air. But based on his testimony, the individual observed asbestos escaping into the ambient air. Thus, although he did not specifically convey this observation to management, he reasonably believed that asbestos was being emitted into the ambient air. The individual, therefore, engaged in a protected activity under the CAA when he complained to management. Knox v. United States Department of Labor, No. 04-2486, 36 ELR 20013 (4th Cir. Jan. 17, 2006) (6 pp.).

TAKINGS, GROUNDWATER:

The Sixth Circuit reversed and remanded a lower court decision that a city's dewatering activities did not constitute a taking of homeowners' property. The court previously certified the issue to the Ohio Supreme Court, and that court held that Ohio homeowners have a property interest in the groundwater underlying their land and that governmental interference with that right can constitute an unconstitutional taking. Hensley v. City of Columbus, No. 02-3778, 36 ELR 20006 (6th Cir. Jan. 10, 2006) (2 pp.).

TAKINGS, GRAZING, WATER RIGHTS:

The Federal Circuit affirmed the dismissal of a rancher's Fifth Amendment claim against the United States for the taking his water rights on federally owned grazing land within the Lewis and Clark National Forest. The rancher alleged that by allowing another permittee to graze on the land at issue, the United States effected a taking of his exclusive water rights. The trial court, however, held that the rancher failed to file his claim within the six-year statute of limitations prescribed by 28 U.S.C. §2501. Because the trial court correctly determined that the issuance of the Forest Service's record of decision and final EIS marked the accrual of the rancher's claim, the trial court's ruling was affirmed. Goodrich v. United States, No. 05-5047, 36 ELR 20008 (Fed Cir. Jan. 9, 2006) (12 pp.).

NEPA, CATEGORICAL EXCLUSIONS, TREE SALVAGE:

The Tenth Circuit upheld the Forest Service's decision allowing the salvage of dead and/or dying trees on up to 250 acres to proceed without the preparation of an EIS or EA. The methodology the Forest Service used in promulgating the categorical exclusion was not arbitrary or capricious. Nor did the Forest Service err substantively in concluding that projects under the exclusion will normally not have significant impacts on the human environment. Colorado Wild v. United States Forest Service, No. 05-1265, 36 ELR 20015 (10th Cir. Jan. 19, 2006) (26 pp.).

NEPA, NATIONAL FOREST MANAGEMENT ACT (NFMA), FLPMA:

The Tenth Circuit affirmed a lower court decision dismissing nonprofit organizations' NEPA, NFMA, and FLPMA claims against the FWS and the BLM in connection with changes to winter recreational access to public land near Durango, Colorado. The agencies satisfied NEPA's hard look requirement, and the organizations waived their claim that the agencies should have prepared an EIS instead of an EA because they failed to raise this issue during the administrative proceedings. Nor did the agencies violate the NFMA by failing to formally amend the forest plan at issue because their compliance with NEPA satisfied any requirement that would be necessary under the NFMA. And the organizations failed to exhaust their remedies under the FLPMA. Silverton Snowmobile Club v. United States Forest Service, No. 05-1005, 36 ELR 20014 (10th Cir. Jan. 13, 2006) (23 pp.).

NATIVE AMERICANS, NEPA:

The D.C. Circuit dismissed a group of residents' claims challenging the Bureau of Indian Affairs' (BIA's) decision to take certain land into trust for the Pokagon Band of Potawatomi Indians so that it could be used in part for a proposed casino. The BIA's preparation of an EA rather than an EIS was proper, its handling of the casino's potential impact on air quality was neither arbitrary and capricious nor an abuse of its discretion, and the agency's cumulative impacts analysis was sufficient. In addition, the language and legislative history of the Restoration Act clearly demonstrate that the Pokagon Band is a "restored" tribe within the meaning of the Indian Gaming Regulatory Act, and §6 of the Restoration Act constitutes a lawful delegation of power from Congress to the Secretary of the Interior. TOMAC v. Norton, No. 05-5206, 36 ELR 20007 (D.C. Cir. Jan. 6, 2006) (25 pp.).

NATIONAL PARKS, WILDERNESS, STANDING:

The D.C. Circuit dismissed an environmental group's claims that the National Park Service (NPS) failed to comply with certain statutory mandates, deadlines, and management policies involving national park management, and denied the group's non-statutory claim that the NPS failed to develop wilderness management plans. The group lacks standing over the majority of its statutory-based claims because it failed to establish injury-in-fact or redressibility. And the group's non-statutory claims are predicated on unenforceable agency statements of policy. Wilderness Society v. Norton, No. 05-5032, 36 ELR 20012 (D.C. Cir. Jan. 17, 2006) (20 pp.).

CIVIL PROCEDURE, REMOVAL:

The Second Circuit vacated and remanded to state court a district court's remand of a removed case asserting environmental claims. Individuals filed suit in state court against a local authority concerning improvements to a bridge. The state court removed the case to federal district court, and the district court then remanded the case to the state court for failure to comply with a local court rule. The remand order, which was appealable, was erroneously issued. Further, the district court's subject matter jurisdiction was properly invoked. The remand order, therefore, was vacated, and the case was remanded to the district court for further proceedings. Mitskovski v. Buffalo & Fort Erie Public Bridge Authority, No. 04-5878, 36 ELR 20010 (2d Cir. Jan. 12, 2006) (21 pp.).

ANIMAL RIGHTS, CIVIL PROCEDURE:

A California appellate court reversed a lower court decision denying animal activists' motion to strike state employees' workplace violence protective orders under the state's anti-SLAPP statute. Following a nighttime protest at one of the employees' homes, a trial court issued temporary restraining orders against the activists, denied without prejudice a temporary restraining order against one of the activists, and set the matter for a hearing with respect to the city's request for permanent injunctive relief. In response, the activists filed special motions to strike the actions under §425.16 of the California Code of Civil Procedure, the anti-SLAPP statute. The lower court denied the motions, holding that the protective orders were civil enforcement actions brought in the name of the state and, therefore, were exempt from motions to strike. The workplace violence protective orders, however, are not civil enforcement actions, and §527.8 of the Code of Civil Procedure provides that workplace violence protective orders are subject to special motions to strike under the anti-SLAPP statute. City of Los Angeles v. Animal Defense League, No. B177908, 36 ELR 20009 (Cal. App. 2d Dist. Jan. 9, 2006) (28 pp.).

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

THE FEDERAL AGENCIES

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

AIR:

  • EPA finalized updates for delegation of new source performance standards and NESHAPs to state and local agencies in various states. 71 FR 2472 (1/17/06).
  • EPA proposed procedures to be used by manufacturers of light-duty vehicles, light-duty trucks, and some heavy-duty vehicles to demonstrate that new motor vehicles will comply with EPA emission standards throughout their useful lives. 71 FR 2809 (1/17/06).
  • EPA proposed to revise the primary and secondary NAAQS for particulate matter (PM) to provide requisite protection of public health and welfare and to make corresponding revisions in monitoring reference methods and data handling conventions for PM. 71 FR 2619 (1/17/06).
  • EPA proposed to revise the ambient air monitoring requirements for criteria pollutants in support of the proposed revisions to NAAQS for particulate matter published above. 71 FR 2709 (1/17/06).
  • EPA proposed to approve updates for delegation of certain federal standards to state and local agencies in various states for delegation of new source performance standards and NESHAPs; see above for direct final rule. 71 FR 2509 (1/17/06).
  • EPA requested comments on three options for addressing component durability during the vehicle emissions certification process regarding its proposed rule of procedures to be used by manufacturers of light-duty vehicles, light-duty trucks, and heavy-duty vehicles; see above for the proposed rule. 71 FR 2843 (1/17/06).
  • EPA announced that it delegated authority to the Indiana Department of Environmental Management under CAA §112(l) to implement and enforce several maximum achievable control technology standards. 71 FR 2225 (1/13/06).
  • SIP Approvals: Texas (volatile organic compound emissions) 71 FR 3009 (1/19/06). West Virginia (nitrogen oxide emissions reductions) 71 FR 1696 (1/11/06).
  • SIP Proposals: Georgia (general nuisance rule removal) 71 FR 2177 (1/13/06). Maryland (interruptible gas service) 71 FR 1996 (1/12/06). Texas (volatile organic compound emissions; see above for direct final rule) 71 FR 3029 (1/19/06). Wisconsin (construction permit permanency) 71 FR 1994 (1/12/06).

GENERAL:

  • The U.S. Marshals Service proposed to add Appendix E to Part 61 of the DOJ's regulations to ensure better compliance with NEPA. 71 FR 3248 (1/20/06).

HAZARDOUS & SOLID WASTE:

  • EPA gave notice, in accordance with CERCLA §122(i), of eight proposed administrative settlements for recovery of past response costs concerning the New Buffalo site in New Buffalo, Michigan. 71 FR 2040 (1/12/06).
  • EPA authorized revisions to Ohio's hazardous waste program under RCRA. 71 FR 3220 (1/20/06).
  • EPA Region 5 proposed to approve a modification to Wisconsin's approved municipal solid waste landfill permit program. 71 FR 3293 (1/20/06).

MINING:

  • OSM approved an amendment to Virginia's regulatory program under SMCRA that revises the Virginia Coal Surface Mining Reclamation Regulations. 71 FR 1488 (1/10/06).

PESTICIDES:

  • EPA announced the availability of the Food Quality Protection Act Tolerance Reassessment Progress and Risk Management Decision report for the fungicide bitertanol. 71 FR 1750 (1/11/06).

PUBLIC LAND:

  • BLM announced that it intends to amend the Cascade resource management plan to address offering the sale of public lands within four counties in Idaho that are not currently identified for disposal. 71 FR 2272 (1/13/06).

TOXIC SUBSTANCES:

  • DOE announced its acceptance of claims in fiscal year 2006 from eligible active uranium and thorium processing sites for reimbursement under Title X of the Energy Policy Act, and its continuing acceptance of plans for subsequent remedial action. 71 FR 2030 (1/12/06).
  • EPA proposed new requirements to reduce exposure to lead hazards created by renovation, repair, and painting activities that disturb lead-based paint. 71 FR 1587 (1/10/06).

WILDLIFE:

  • DOI's Bureau of Indian Affairs published regulations on the Alaska native reindeer industry pursuant to the Reindeer Act of 1937, as amended. 71 FR 2425 (1/13/06).
  • NMFS withdrew its June 2004 proposal for listing the Oregon Coast coho evolutionarily significant unit (ESU) as a threatened species under the ESA; the Oregon Coast coho ESU is not in danger of extinction and does not warrant listing at this time. 71 FR 3033 (1/19/06).
  • NOAA imposed temporary fishing restrictions in an area southeast of Portland, Maine, in order to protect an aggregation of northern right whales. 71 FR 1980 (1/12/06).
  • FWS proposed threatened status for the Graham's beardtongue, a plant species from Colorado and Utah, under the ESA. 71 FR 3157 (1/19/06).
  • FWS announced a five-year review of the Mt. Graham red squirrel and the Little Colorado spinedace under ESA §4(c)(2)(A) to ensure that their classifications as threatened or endangered are accurate. 71 FR 1765 (1/11/06).
  • FWS announced that a draft comprehensive conservation plan and EA for St. Marks National Wildlife Refuge located in Florida's Wakulla, Jefferson, and Taylor counties are available for review and comment. 71 FR 3317 (1/20/06).
  • FWS announced a notice of decision and record of decision for the final comprehensive conservation plan and EIS for the Roanoke River National Wildlife Refuge in Bertie County, North Carolina. 71 FR 3316 (1/20/06).
  • FWS announced that the draft comprehensive conservation plan and EA for the Lacreek National Wildlife Refuge and Wetland Management District in Martin, South Dakota, is available for public review and comment. 71 FR 2264 (1/13/06).
  • FWS announced that a draft comprehensive conservation plan and EA for Mackay Island National Wildlife Refuge are available for review and comment. 71 FR 2560 (1/17/06).
  • FWS gave notice that it intends to gather information necessary to prepare a comprehensive conservation plan and associated environmental documents for the Rainwater Basin Wetland Management District in southcentral Nebraska. 71 FR 1451 (1/9/06).

DOJ NOTICE OF SETTLEMENT:

  • Lyondell Chemical Co. v. Albemarle Corp., No. 01CV890 (E.D. Tex. Dec. 30, 2005). Settling CERCLA defendants must pay the United States $37,000 in EPA response costs incurred at the Petro-Chemical Systems, Inc., Superfund site in Liberty County, Texas, and must pay a total of $369,000 to contributing parties. 71 FR 3327 (1/20/06).

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

THE CONGRESS

PUBLIC LAWS:

  • S. 1238 (forests), which amends the Public Lands Corps Act of 1993 to provide for the conduct of projects that protect forests, was signed into law by President Bush on December 30, 2005. Pub. L. No. 109-154, 152 Cong. Rec. D6 (daily ed. Jan. 18, 2006).
  • S. 1310 (natural gas pipeline), which authorizes the Secretary of the Interior to allow the Columbia Gas Transmission Corporation to increase the diameter of a natural gas pipeline located in the Delaware Water Gap National Recreation Area, allows certain commercial vehicles to continue to use Route 209 within the Delaware Water Gap National Recreation Area, and extends the termination date of the National Park System Advisory Board to January 1, 2007, was signed into law by President Bush on December 30, 2005. Pub. L. No. 109-156, 152 Cong. Rec. D6 (daily ed. Jan. 18, 2006).
  • H.R. 3179 (Junior Duck Stamp Conservation and Design Program Act), which reauthorizes and amends the Junior Duck Stamp Conservation and Design Program Act of 1994, was signed into law by President Bush on January 10, 2006. Pub. L. No. 109-166, 152 Cong. Rec. D6 (daily ed. Jan. 18, 2006).

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

Note: The entries below cover state developments since the last issue of Update. The entries are arranged by state, and within each section, entries are further subdivided by subject matter area. For a cumulative listing of materials reported in 2006, visit our list of Cumulative State Developments Arranged by State, or our list of Cumulative State Developments Arranged by Subject Matter. For state material reported prior to 2006, visit the ELR Archives.

The states below have updates this week:

CaliforniaIowaOregonWashington DelawareMissouriSouth Dakota Wyoming FloridaNorth Carolina Tennessee  GeorgiaOhioTexas  IdahoOklahomaVirginia 

CALIFORNIA

Air:

  • The California Air Resources Board and the State Water Resources Control Board will hold a joint workshop to receive information on the relationship between atmospheric deposition and water quality. The first portion of the workshop will consist of formal presentations on the subject by invited speakers. For the remainder of the workshop, Board staff will receive comments from other agencies, stakeholders, interest groups, and the general public. Board staff will accept both written and oral comments on the topic. Written comments are due February 7, 2006. The meeting will be held February 9, 2006. See http://www.waterboards.ca.gov/workshops/2006/atmospheric/0209pn.pdf

Water:

  • Public comments are being accepted on the second draft technical support documents for proposed public health goals for the following chemicals in drinking water: cis/trans-1,2-Dichloroethylene, 1,1,1-Trichloroethane, 1,1,2-Trichloroethane, Radium-226 and -228, Strontium-90, and Tritium. Written comments are due February 15, 2006. See http://oehha.org/water/phg/cistransdraft2.html
  • The State Water Resources Control Board and the California Air Resources Board will hold a joint workshop to receive information on the relationship between atmospheric deposition and water quality. The first portion of the workshop will consist of formal presentations on the subject by invited speakers. For the remainder of the workshop, Board staff will receive comments from other agencies, stakeholders, interest groups, and the general public. Board staff will accept both written and oral comments on the topic. Written comments are due February 7, 2006. The meeting will be held February 9, 2006. See http://www.waterboards.ca.gov/workshops/2006/atmospheric/0209pn.pdf
  • The State Water Resources Control Board at the January 5, 2006, workshop on the CWA §303(d) list update, received several requests for an extension of the deadline for submittal of comments. Based on these requests, the Board has granted a two-week extension. The new deadline for comment submittal is 5:00 PM on Tuesday, January 31, 2006. See http://www.waterboards.ca.gov/tmdl/docs/303d_update/303d_comments_ext.pdf

DELAWARE

Air:

  • The Department of Natural Resources and Environmental Control, Air Quality Management Section, will conduct a public hearing on the draft source category permits for perchloroethylene dry cleaning facilities. The source category permits will be customized for each perchloroethylene dry cleaning facility to include regulatory language applicable for each type of equipment in operation at the facility. Once finalized, the Delaware Department of Natural Resources and Environmental Control intends to issue these source category permits to all perchloroethylene dry cleaning facilities located within the state to operate the dry cleaning equipment and air pollution control devices located at each facility. The public hearing will be held January 26, 2006. See http://www.dnrec.state.de.us/DNREC2000/Admin/Press/PublicNotices/PNDetail.asp?NOVID=1768

FLORIDA

Water:

  • The Department of Environmental Protection gave notice of proposed rulemaking to adopt an environmental resource general permit under Chapter 62-341 to repair, stabilize, or pave existing county or municipally owned roads and bridges within the Suwannee River, St. Johns River, Southwest Florida, and South Florida Water Management Districts. If requested within 21 days of the date of this notice, a hearing will be scheduled. See http://tlhora6.dep.state.fl.us/onw/publications/7-NPR62341DirtRoads-1-13-06-INT.pdf
  • The Department of Environmental Protection gave notice of proposed rulemaking to adopt a no fee wetland resource general permit under Chapter 62-312 for the repair, stabilization, or paving of existing county or municipally owned roads and bridges within the jurisdiction of the Northwest Florida Water Management District. If requested within 21 days of the date of this notice, a hearing will be scheduled. See http://tlhora6.dep.state.fl.us/onw/publications/8-NPR62312DirtRoads-1-13-06-INT.pdf
  • The Florida Coastal Management Program has posted for the public's review and comment the draft assessment and strategy document required by §309 of the Coastal Zone Management Act. The due date for comments is February 13, 2006. See http://tlhora6.dep.state.fl.us/onw/publications/3-AssessmentStrategy309-1-13-06-INT.pdf
  • The Department of Environmental Protection announced a rule development workshop to receive public comments on its proposed amendment to Rule 62-302.800, F.A.C., which will establish site specific alternative criteria for dissolved oxygen in the marine portions of the lower St. Johns River and its tributaries. The workshop will be held January 20, 2006. See http://tlhora6.dep.state.fl.us/onw/publications/11-WkshpLSJRSSAC-1-6-06-INT.pdf

GEORGIA

Water:

  • Notice is hereby given that, pursuant to the authority set forth below, the Environmental Protection Division of the Georgia Department of Natural Resources proposed amendments to Georgia's rules for Flint River drought protection, 391-3-28. A public hearing will be held February 2, 2006. Written comments are due February 3, 2006. See http://www.gaepd.org/environet/28/notice.pdf

IDAHO

Water:

  • The Department of Environmental Quality initiated rulemaking to allow public drinking water systems the flexibility to use point of use treatment technology for treating some chemical contaminants such as arsenic. The rule will exempt small public drinking water systems from the requirement in Idaho Code §39-118 to submit engineering plan and specifications if they serve less than 200 service connections and submit technical and managerial documentation to the Department. The rule also allows public drinking water systems serving over 200 service connections the option to apply to the state for a waiver of the engineering plan and specification requirements. Comments are due February 1, 2006. See http://www.deq.idaho.gov/rules/drinking_water/58_0108_0601_temporary_proposed.cfm
  • The Department of Environmental Quality (DEQ) proposed rulemaking to revise the Rules for Administration of Water Pollution Control Loans to allow DEQ to collect a fee in the form of a percentage of each loan. The fees collected will be used to provide funds for loan program administration. The actual interest rate charged on State Revolving Fund (SRF) loans will be reduced by the amount of the fee charged so that there is no cost to the communities using the SRF loans. Cities, counties, districts, and associations that own and operate public wastewater treatment systems may be interested in participating in this rulemaking. Comments are due February 1, 2006. See http://www.deq.idaho.gov/rules/water_pollution_control_loans/58_0112_0501_temporary_proposed.cfm

IOWA

Air:

  • The Environmental Protection Commission hereby gives Notice of Intended Action to amend Chapter 20, “Scope of Title—Definitions—Forms—Rules of Practice,” Chapter 21, “Compliance,” and Chapter 22, “Controlling Pollution,” and to adopt new Chapter 34, “Provisions for Air Quality Emissions Trading Programs,” Iowa Administrative Code. The purpose of the proposed amendments is to adopt the recently finalized federal Clean Air Interstate Rule (CAIR) into the state air quality rules. The proposed amendments will also make necessary updates and changes to existing air quality rules to implement CAIR. The new Chapter 34 that will contain the emissions trading provisions for CAIR. A public hearing will be held February 21, 2006. Written comments are due February 27, 2006. See http://www.legis.state.ia.us/Rules/Current/Bulletin/IAB060118.pdf (p. 1128)
  • The Environmental Protection Commission hereby gives Notice of Intended Action to amend Chapter 22, “Controlling Pollution,” Chapter 23, “Emission Standards for Contaminants,” and Chapter 25, “Measurement of Emissions,” and to adopt new Chapter 34, “Provisions for Air Quality Emissions
    Trading Programs,” Iowa Administrative Code. The purpose of the proposed amendments is to adopt the recently finalized federal Clean Air Mercury Rule (CAMR) into the state air quality rules. A public hearing will be held February 21, 2006. Written comments are due February 27, 2006. See http://www.legis.state.ia.us/Rules/Current/Bulletin/IAB060118.pdf (p. 1135)

General:

  • The Natural Resource Commission rescinded Chapter 17, Barge Fleeting Regulations, Iowa Administrative Code, and adopted new Chapter 17 with the same title. This new chapter clarifies application and appeal procedures, barge fleeting operation standards, and restrictions and prohibitions on locating fleeting areas and provides necessary definitions. Procedures for determining lease fees are substantially revised, new lease fees are established, and future fee adjustments are provided for. These rules shall become effective February 22, 2006. See http://www.legis.state.ia.us/Rules/Current/Bulletin/IAB060118.pdf (p. 1155)

Hazardous & Solid Wastes:

  • The Environmental Protection Commission hereby gives Notice of Intended Action to amend Chapter 144, “Household Hazardous Materials,” Iowa Administrative Code. Iowa Code chapter 455F includes in the definition of a household hazardous material hazardous waste and hazardous substances used for residential purposes. Adding hazardous waste and hazardous substances to the rule will make it consistent with the Iowa Code. Written comments are due February 8, 2006. A public hearing will be held February 8, 2006. See http://www.legis.state.ia.us/Rules/Current/Bulletin/IAB060118.pdf (p. 1140)

MISSOURI

Air:

  • The Department of Natural Resources proposed to amend 10 CSR 10-6.010 to make it consistent with the federal 8-hour ozone standard. A notice of proposed rulemaking containing the text of the proposed amendment was published in the Missouri Register on August 15, 2005 (30 MoReg 1727-1729). This proposed amendment becomes effective 30 days after publication in the Code of State Regulations. See http://www.sos.mo.gov/adrules/moreg/current/2006/v31n2/v31n2b.pdf (p. 136)

Wildlife:

  • The Department of Conservation proposed to amend exceptions to 3 CSR 10-5.205, Wildlife Permits. A notice of proposed rulemaking containing the text of the proposed amendment was published in the Missouri Register on November 1, 2005 (30 MoReg 2241). This proposed amendment becomes effective 30 days after publication in the Code of State Regulations. http://www.sos.mo.gov/adrules/moreg/current/2006/v31n2/v31n2b.pdf (p. 122)

NORTH CAROLINA

Water:

  • The Environmental Management Commission and the Division of Water Resources have scheduled three public hearings in January to give the public a chance to comment on proposed rules that would govern water use during drought and other water shortage emergencies. The hearings will be held January 19, 24, and 31, 2006. See http://www.enr.state.nc.us/newsrels/hb1215hearing.pdf

OHIO

Air:

  • The Ohio Environmental Protection Agency, Division of Air Pollution Control (DAPC), performed a five-year rule review of Ohio Administrative Code (OAC) rules 3745-19-01 through 19-05 and new OAC rule 3745-19-06. The DAPC finds the following rules to be necessary and with need for changes: OAC rule 3745-19-01: Definitions; OAC rule 3745-19-02: Relations to other prohibitions; OAC rule 3745-19-03: Open burning in restricted areas; OAC rule 3745-19-04: Open burning in unrestricted areas; and OAC rule 3745-19-05: Permission to individuals and notification to the Ohio EPA. DAPC also proposes to incorporate new rule and appendix: OAC rule 3745-19-06: Open burning unilateral order, and OAC rule 3745-19-03: Appendix: Open burning of storm debris. The amendments are being proposed to incorporate new language that resulted from questions and comments received over the past few years from both DAPC staff in field offices and those parties directly affected by the regulations. Written comments are due February 21, 2006. A public hearing will be held February 20, 2006. See http://www.registerofohio.state.oh.us/pdfs/phn/3745_NO_29130_20060113_1133.pdf
  • The Ohio Environmental Protection Agency, Division of Air Pollution Control (DAPC), performed a five-year rule review of Ohio Administrative Code (OAC) rule 3745-21-07. DAPC is proposing changes to the current rule to limit its continued applicability to emissions units that have been required to install controls, or employ control measures pursuant to the existing rule, and to maintain the requirements of paragraph (G)(1) in the current rule. The number of changes being made require that the existing rule be rescinded and a new rule be proposed in its place. DAPC has found OAC rule 3745-21-07, Control of emissions of organic materials from stationary sources (i.e., emissions that are not regulated by rule 3745-21-09, 3745-21- 12, 3745-21-13, 3745-21-13, 3745-21-14, 3745-21-15, or 3745-21-16 of the Administrative Code), continues to be necessary, but with significant applicability changes. A public hearing will be held February 20, 2006. Written comments are due February 21, 2006. See http://www.registerofohio.state.oh.us/pdfs/phn/3745_NO_29131_20060113_1136.pdf
  • The Ohio Environmental Protection Agency, Division of Air Pollution Control, finalized amendments to the Ohio Administrative Code (OAC) rules 3745-18-01, Definitions; 3745-18-02, Ambient air quality standards - sulfur dioxide; 3745-18-03, Attainment dates and compliance time schedules; 3745-18-04, Measurement methods and procedures; and 3745-18-06, General emission limit provisions. The Division also finalized amendments to the emissions limits for various counties throughout the state. See http://www.registerofohio.state.oh.us/pdfs/phn/3745_NO_28068_20051028_0924.pdf
  • The Director of Environmental Protection has finalized rules governing the Diesel School Bus Retrofit Grant Program: OAC rule 3745-49-50, Definitions;
    OAC rule 3745-49-51, Permitted uses, eligibility, and prioritization; and OAC rule 3745-49-52, Grant administration. See http://www.registerofohio.state.oh.us/pdfs/phn/3745_NO_28073_20051028_1006.pdf

OKLAHOMA

General:

  • The Department of Environmental Quality (DEQ) proposed amendments to its Emergency Planning and Right-to-Know rules, 252:20-1-3, 252:20-1-4, 252:20-1-6, and 252:20-1-7. The proposed amendments require submittals of Tier II forms to be submitted to the DEQ electronically via the DEQ website, with a grace period given to facilities with less than 5 full time employees and companies operating under SIC code 1311 with less than 20 locations. Additionally, DEQ will require latitude/longitude information be collected 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. Fee rules have been restructured, separating the facilities into two groups: (1) non-oil and gas production facilities that will be charged a set fee per hazardous substance or extremely hazardous substance, with a cap of $1,000 as a maximum fee; and (2) oil and natural gas production facilities that will be charged a set fee per location, again with a cap of $1,000 as a maximum fee. Written comments are due February 17, 2006. A public hearing will be held February 24, 2006. See http://www.oar.state.ok.us/register/Volume-23_Issue-09.htm#a27175

OREGON

Air:

Water:

SOUTH DAKOTA

Water:

TENNESSEE

Hazardous & Solid Wastes:

  • The Division of Remediation will hold hearings on behalf of the Solid Waste Disposal Control Board to receive public comments regarding the promulgation of amendment of rules pursuant to T.C.A. §§68-212-203 and 68-212-215, Hazardous Substance Site Remediation. The hearings will be held March 16 and 21, 2006. See http://www.state.tn.us/environment/dsf/dsfppo/Mar2106PH_23501.pdf

Water:

  • A series of hearings before representatives of the Water Quality Control Board will be held in February and March to consider the promulgation of rules pursuant to the Tennessee Water Quality Control Act of 1977, §§69-3-105 (1), 69-3-105 (3), and 69-3-107 (11) regarding pretreatment. The hearings will be held February 27 and 28, 2006, and March 1, 2, and 3, 2006. See http://www.state.tn.us/environment/wpc/wpcppo/PretreatmentRules1200_4_14.pdf

TEXAS

Air:

General:

VIRGINIA

Water:

  • The Department of Environmental Quality will hold a public hearing to receive comments on a draft permit modification to the Livingston Landfill's permit that would allow the implementation of a groundwater corrective action plan on March 2, 2006. The comment period begins on January 25, 2006, and ends on March 17, 2006. See http://www.townhall.state.va.us/meeting/ViewMeeting.cfm?Meeting_ID=6892
  • The Department of Environmental Quality will hold a public hearing on a permit modification to the Rainwater CDD Landfill located in Fairfax County on March 1, 2006. The modification addresses implementation of a groundwater corrective action plan. The public comment period begins on January 25, 2006, and ends on March 16, 2006. See http://www.townhall.state.va.us/meeting/ViewMeeting.cfm?Meeting_ID=6893
  • The Department of Environmental Quality will hold a public meeting on the development of the fecal coliform TMDLs for shellfish propagation waters located in Westmoreland County on February 23, 2006. The public notice will appear in the Virginia Register of Regulations on February 6, 2006. The public comment period begins on February 23, 2006, and ends on March 25, 2006. See http://www.townhall.state.va.us/meeting/ViewMeeting.cfm?Meeting_ID=6909
  • The Department of Environmental Quality will hold a public meeting on the development of fecal coliform bacteria TMDLs in shellfish propagation waters located in Lancaster County on February 15, 2006. The public notice will appear in the Virginia Register of Regulations on February 6, 2006. The public comment period begins on February 15, 2006, and ends on March 24, 2006.  See http://www.townhall.state.va.us/meeting/ViewMeeting.cfm?Meeting_ID=6913
  • The Department of Environmental Quality will hold a public meeting of the development of fecal coliform TMDLs for shellfish propagation waters in Farnham Creek located in Richmond County on February 14, 2006. The public notice will appear in the Virginia Register of Regulations on February 6, 2006. The public comment period begins on February 14, 2006, and ends on March 16, 2006. See http://www.townhall.state.va.us/meeting/ViewMeeting.cfm?Meeting_ID=6911

WASHINGTON

Water:

  • The Department of Ecology proposed to amend Chapter 173-224 WAC, Wastewater discharge permit fees. The purpose of this rule is to increase annual permit fees for holders of wastewater and stormwater discharge permits. Public hearings will be held March 6, 7, and 8, 2006. See http://www.ecy.wa.gov/laws-rules/wac173224/p0517.pdf
  • The Department of Ecology proposed to amend Chapter 173-503 WAC, Instream Resources Protection Program Lower and Upper Skagit Water Resources Inventory Area, WRIAs 3 and 4. These proposed amendments would reserve a limited amount of groundwater for future domestic, municipal, commercial/industrial, agricultural irrigation, and stock watering supply. The amendments also establish closures for certain tributary basins when the reservations are fully allocated and set forth future water right permitting conditions.  The stream flows set in the current rule would not be altered, nor would the current maximum water allocation limits for the Skagit River basin. The public comment period has been extended to January 31, 2006. See http://www.ecy.wa.gov/laws-rules/wac173503/p0515cont.pdf

WYOMING

Air:

Water:

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

INTERNATIONAL

CARIBBEAN EXPLORES ALTERNATIVE ENERGY:

  • Caribbean nations are exploring alternative energy options in response to increasingly high costs of imported oil. Dependence on imported energy is hindering economic development in most Caribbean countries because the ratio of energy consumption to gross domestic product is rising. Jamaica's 2005 oil bill was over $1 billion. The country hopes that 15% of its energy will come from ethanol and other renewables by 2015. See http://www.enn.com/today.html?id=9685

CHINA COLLABORATES WITH AFRICA TO PROMOTE SUSTAINABLE DEVELOPMENT:

  • In its first policy paper aimed at strengthening its ties with Africa, China announced it intends to work with the continent to develop its natural resources. According to China, it can add value to African products that are exported as raw materials by helping African countries build processing factories and provide technical training. It also encourages Chinese enterprises to cooperate with African nations to develop resources. China says it promotes rational exploitation of resources and attention to the local environment. See http://english.people.com.cn/200601/16/eng20060116_235660.html

NONGOVERNMENTAL ORGANIZATIONS ACCUSE ROMANIA OF BREAKING LAW FOR MINING PROJECT:

  • Two Romanian nongovernmental organizations (NGOs) are calling on the Ministry of the Environment to immediately halt procedures to approve a mining project in the Apuseni Mountains because the project will negatively affect the environment and local communities. The project will require the relocation of 2,000 people and an archeological site. The move of the archeological site has not been approved by a court, making the Ministry's actions to grant the mining company authorization for the project illegal, according to the NGOs. The groups are calling on the General Prosecutor's Office to investigate the Ministry and the mining company. See http://www.daily-news.ro/article_detail.php?idarticle=21447

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

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