Jump to Content

Weekly Update Volume 36, Issue 22

08/07/2006

LITIGATION

NEPA, MINING:

The Ninth Circuit held that BLM’s cumulative impact analyses prepared in conjunction with two gold mining permits it issued to a mining company violated NEPA. BLM prepared an EIS for each permit. The first EIS stated that cumulative mining emissions would be minimized due to the distance between projects, meteorological conditions, and the fact that not all projects would produce emissions concurrently. Yet nowhere is this statement supported by data broken down by mine, or even by cumulative data. The EIS also stated that the project would cumulatively result in larger volumes of hazardous waste but that the volumes of waste could not be quantified until future hazardous waste generators were identified. At the very least, BLM could have quantified existing volumes of hazardous waste, but it failed to do so. Similarly, the second EIS’ analysis of cumulative impacts on air is only five sentences long and includes no mine-specific or cumulative data. Nor does it contain any discussion of the cumulative impacts of sludge or hazardous waste disposal. Such vague and conclusory statements, without any supporting data, do not constitute a “hard look” at the environmental consequences of the action as required by NEPA. The EISs, therefore, were remanded. Great Basin Mine Watch v. Hankins, No. 04-16125, 36 ELR 20150 (9th Cir. Aug. 1, 2006) (37 pp.).

CWA, SENTENCING GUIDELINES:

The Fourth Circuit vacated an individual’s sentence for illegally dredging North Carolina’s Croatan Sound during a bridge construction project and remanded the case for resentencing. The district court misapplied U.S. Sentencing Guideline §5K2.20 when it granted the individual a downward departure for aberrant behavior. A defendant may be eligible for a §5K2.20 departure if he “committed a single criminal occurrence or single criminal transaction that (1) was committed without significant planning; (2) was of limited duration; and (3) represents a marked deviation by the defendant from an otherwise law-abiding life.” Here, while the individual’s conduct might have had a single motivation—to remove a temporary bridge—it was not a single occurrence or transaction. Rather, it constituted multiple criminal acts, with each occurrence of dredging representing a violation of his permit and applicable federal laws. Moreover, the crime was committed with considerable planning, and his conduct was not of limited duration. On remand the district court must resentence the individual without granting any §5K2.20 departure. United States v. Hillyer, No. 05-4295, 36 ELR 20151 (4th Cir. Aug. 1, 2006) (10 pp.).

INJUNCTIONS, RES JUDICATA:

The Seventh Circuit affirmed a lower court decision denying environmental groups’ motion to preliminarily enjoin a highway expansion project in Wisconsin. The groups argued that the project violated the APA, CWA, NEPA, and the Federal-Aid Highway Act. The project, however, was already challenged in a previous suit, and the claims they raise now could have been raised in that earlier suit. The groups’ claims, therefore, are likely barred by res judicata. Consequently, they failed to show a reasonable likelihood of success on the merits. Highway J Citizens Group v. United States Department of Transportation, No. 05-2667, 36 ELR 20152 (7th Cir. Aug. 2, 2006) (21 pp.).

CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA), MITIGATION:

The Supreme Court of California vacated and remanded a lower court decision upholding a state university’s approval of an environmental impact report prepared in connection with plans to expand its campus on a former army base. Although the university agreed to mitigate effects occurring on the campus itself, it disclaimed responsibility for mitigating some effects occurring off campus. In particular, the university refused to share the cost of certain infrastructure improvements proposed by the base’s new civilian governing authority. Yet the university failed to adequately explain why off-campus mitigation was infeasible. This constitutes an abuse of discretion under CEQA. City of Marina v. Board of Trustees of the California State University, No. S117816, 36 ELR 20149 (Cal. July 31, 2006) (46 pp.).

GROUNDWATER, AUGMENTATION FEES:

A California appellate court upheld a local water agency ordinance that increased the groundwater augmentation fee to be charged to operators of wells within its jurisdiction. None of the agency board members voting for the augmentation charge had a disqualifying financial interest in approving the ordinance. In addition, the augmentation charge does not amount to a property tax or a property assessment. Nor is it incidental to property ownership. Rather, the charge is based on consumption. Thus, the court rejected claims that the ordinance violates state constitutional provisions limiting the power of local entities to impose property taxes, assessments, and property-related charges. Pajaro Valley Water Management Agency v. Amrhen, No. H027817, 36 ELR 20147 (Cal. App. 6th Dist. July 26, 2006) (51 pp.).

HAZARDOUS MATERIALS TRANSPORTATION ACT (HMTA), PREEMPTION:

A California appellate court partially reversed a lower court decision dismissing the people of California’s lawsuit against two railroad companies for spilling substantial quantities of calcium oxide into the environment. The lower court held that the claims were preempted by the HMTA. But the state requirement of an immediate verbal notice of the discharge of a hazardous material, and the civil penalty that attaches to such a violation, are not preempted by federal law. Nor are remedial claims, such as abatement, cleanup, assessment and remediation of injury to natural resources, and consequential damages, preempted by federal law. However, the people’s claims for civil penalties for the alleged failure to train employees and for the fact of the calcium oxide spill itself are preempted by HMTA. The case was therefore remanded to the trial court for further proceedings. People v. Union Pacific Railroad Co., No. C048336, 36 ELR 20153 (Cal. App. 1st Dist. Aug. 2, 2006) (41 pp.).

INSURANCE LAW, POLLUTION EXCLUSION:

A California appellate court held that an insurer has no duty to defend or indemnify a company in underlying actions concerning its unauthorized discharge of fill material into a creek. The discharges occurred after the company placed fill dirt along a road so that it could access a quarry. As a result of the discharges, EPA issued an administrative order against the company, and the company’s lessor filed a civil lawsuit against it for damaging the creek and surrounding property. The company then sought coverage from its insurer. The insurer, however, need not indemnify the company for the EPA administrative order because the EPA proceeding was not a “suit” within the scope of the policies. And because the pollution exclusion endorsements in the insurance policies excluded coverage for the company’s activities, the insurer need not defend or indemnify the company in the civil proceedings. Ortega Rock Quarry. v. Golden Eagle Insurance Corp., No E037906, 37 ELR 20148 (Cal. App. 4th Dist. July 27, 2006) (30 pp.).

CAA, DEFAULT ORDER:

The EPA Environmental Appeals Board (EAB) affirmed an administrative law judge’s (ALJ’s) finding that a demolition company was in default of a CAA administrative enforcement proceeding involving asbestos abatement activities at a shopping center in Tullytown, Pennsylvania. The company argued that the totality of the circumstances in this case justifies the setting aside of the default order. To support this argument, the company’s counsel cited his lack of familiarity with defending administrative enforcement actions in the environmental context, his confusion related to multiple asbestos cases filed against the company, his associate’s report (upon which he allegedly relied) that the matter had been settled as to all parties, and his engagement in other matters and heavy work load during the relevant time frame. None of these circumstances are legitimate bases for excusing the company’s repeated disregard of the ALJ’s orders in this case. The company also contended that it has meritorious defenses to the charges in this case, but the company proffered meager evidentiary support for its positions and failed to establish a “strong probability” of success on the merits. Accordingly, the EAB found no error or abuse of discretion in the ALJ’s decision to enter a default judgment in this case, affirmed the default order, and assessed the proposed civil penalty of $24,310 against the company. In re Four Strong Builders, Inc., CAA Appeal no. 05-02, 36 ELR 41302 (EPA July 11, 2006) (17 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 announced the availability of data concerning the nitrogen oxide annual and ozone season allocations for electric generating units covered by the clean air interstate rule federal implementation plan trading programs for 2009 to 2014. 71 FR 44283 (8/4/06).
  • EPA proposed to determine that control technique guidelines (CTGs) will be substantially as effective as national regulations in reducing emissions of volatile organic compounds in ozone NAAQS nonattainment areas for the Lithographic Printing Materials, Letterpress Printing Materials, Flexible Packaging Printing Materials, Flat Wood Paneling Coatings, and Industrial Cleaning Solvents product categories; based on this determination, EPA may issue CTGs for these product categories in lieu of regulations. 71 FR 44521 (8/4/06).
  • SIP Approval: Arizona (best available control measure and most stringent measure demonstrations). 71 FR 43979 (8/3/06).

HAZARDOUS WASTE:

  • EPA entered into a proposed administrative settlement under CERCLA concerning the Industrial Chrome Plating Time-Critical Removal Superfund site in Portland, Oregon, that requires the settling party to pay $66,000.00 in response cost to the Hazardous Substance Superfund. 71 FR 44291 (8/4/06).

MINING:

  • OSM announced the receipt of a proposed amendment to the North Dakota regulatory program under SMCRA. 71 FR 43085 (7/31/06).
  • OSM announced the receipt of a proposed amendment to the Pennsylvania regulatory program SMCRA. 71 FR 43087 (7/31/06).
  • OSM announced the receipt of additional explanatory information pertaining to a previously proposed amendment to the Wyoming regulatory program under SMCRA. 71 FR 43092 (7/31/06).

PUBLIC LAND:

  • FWS gave notice of subsistence management regulations for public lands in Alaska concerning Chinook and sockeye salmon seasonal adjustments for the Copper, Unalakleet, and Yukon rivers. 71 FR 43368 (8/1/06).

RADIOACTIVE WASTE:

  • EPA announced the availability of and sought comment on the proposed approval of the radioactive transuranic waste characterization program implemented by the Advanced Mixed Waste Treatment Project at Idaho National Laboratory. 71 FR 43150 (7/31/06).

SOLID WASTE:

  • EPA took direct final action to codify a longstanding generator-specific delisting determination for brine purification muds generated by Olin Corporation at its facility in Charleston, Tennessee. 71 FR 43067 (7/31/06).

WATER:

  • EPA announced that it received a program modification application from Michigan to administer and enforce a sewage sludge (biosolids) management program. 71 FR 44291 (8/4/06).

WILDLIFE:

  • FWS announced its intent to prepare a comprehensive conservation plan for the Ridgefield National Wildlife Refuge in Clark County, Washington. 71 FR 43787 (8/2/06).
  • FWS developed regulations that would authorize the nonlethal, incidental, unintentional take of small numbers of polar bears and Pacific walrus during year-round oil and gas industry exploration, development, and production operations in the Beaufort Sea and adjacent northern coast of Alaska. 71 FR 43925 (8/2/06).
  • FWS announced a 12-month finding on a petition to establish the northern Rocky Mountain gray wolf population as a distinct population segment (DPS) and to remove the wolf DPS from the list of endangered and threatened wildlife; the agency determined that the petitioned action is not warranted at this time because if the protections of the ESA were removed, necessary regulatory mechanisms would not be provided to assure that Wyoming’s numerical and distributional share of a recovered gray wolf population would be conserved. 71 FR 43410 (8/1/06).

DOJ NOTICE OF SETTLEMENT:

  • United States v. Trinski, No. 05 C 0197 (N.D. Ill. July 19, 2006). Settling CWA defendants that installed a boat ramp and associated structures without a permit in the Fox River Chain-O-Lakes in Illinois must either remove the boat ramp and associated structures they installed or purchase and abandon another ramp, must pay a civil penalty, and must donate real property to the Fox Waterway Agency. 71 FR 43811 (8/2/06).

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

THE CONGRESS

PUBLIC LAWS:

  • S. 310 (land conveyance), which directs the Secretary of the Interior to convey the Newlands Project Headquarters and Maintenance Yard Facility to the Truckee-Carson Irrigation District in the state of Nevada, was signed into law by President Bush on August 3, 2006. Pub. L. No. 109-265, 152 Cong. Rec. D902 (daily ed. Aug. 3, 2006).
  • S. 1496 (Electronic Duck Stamp Act of 2005), which would direct the Secretary of the Interior to conduct a pilot program under which up to 15 states may issue electronic federal migratory bird hunting stamps, was signed into law by President Bush on August 3, 2006. Pub. L. No. 109-266, 152 Cong. Rec. D902 (daily ed. Aug. 3, 2006).

CHAMBER ACTION:

  • S. 3711 (Gulf of Mexico Energy Security Act), which would provide for exploration, development, and production activities for mineral resources in the Gulf of Mexico, was passed by the Senate. 152 Cong. Rec. S8482-8513 (daily ed. Aug. 1, 2006).
  • H.R. 3683 (wildlife refuge), which would redesignate the Mason Neck National Wildlife Refuge in Virginia as the Elizabeth Hartwell Mason Neck National Wildlife Refuge, was passed by the Senate, clearing the measure for the President. 152 Cong. Rec. S8552 (daily ed. Aug. 1, 2006).

COMMITTEE ACTION:

  • S. 997 (land conveyance) was reported by the Committee on Energy and Natural Resources. S. Rep. No. 109-299, 152 Cong. Rec. S8451 (daily ed. July 31, 2006). The bill would direct the Secretary of Agriculture to convey certain land in the Beaverhead-Deerlodge Forest, Montana, to Jefferson County, Montana, for use as a cemetery.
  • S. 1529 (land conveyance) was reported by the Committee on Energy and Natural Resources. S. Rep. No. 109-300, 152 Cong. Rec. S8451 (daily ed. July 31, 2006). The bill would provide for the conveyance of certain federal land in the city of Yuma, Arizona.
  • S. 1548 (land conveyance) was reported by the Committee on Energy and Natural Resources. S. Rep. No. 109-301, 152 Cong. Rec. S8451 (daily ed. July 31, 2006). The bill would provide for the conveyance of certain Forest Service land to the city of Coffman Cove, Alaska.
  • S. 2003 (watershed restoration) was reported by the Committee on Energy and Natural Resources. S. Rep. No. 109-302, 152 Cong. Rec. S8451 (daily ed. July 31, 2006). The bill would make permanent the authorization for watershed restoration and enhancement agreements.
  • S. 2028 (FERC) was reported by the Committee on Energy and Natural Resources. S. Rep. No. 109-303, 152 Cong. Rec. S8451 (daily ed. July 31, 2006). The bill would provide for the reinstatement of a license for a certain FERC project.
  • S. 2035 (hydroelectricity) was reported by the Committee on Energy and Natural Resources. S. Rep. No. 109-304, 152 Cong. Rec. S8451 (daily ed. July 31, 2006). The bill would extend the time required for construction of a hydroelectric project in the state of Idaho.
  • S. 2054 (water resources) was reported by the Committee on Energy and Natural Resources. S. Rep. No. 109-305, 152 Cong. Rec. S8451 (daily ed. July 31, 2006). The bill would direct the Secretary of the Interior to conduct a study of water resources in the state of Vermont.
  • S. 2150 (land conveyance) was reported by the Committee on Energy and Natural Resources. S. Rep. No. 109-306, 152 Cong. Rec. S8451 (daily ed. July 31, 2006). The bill would direct the Secretary of the Interior to convey certain BLM land to the city of Eugene, Oregon.
  • S. 2373 (public land) was reported by the Committee on Energy and Natural Resources. S. Rep. No. 109-307, 152 Cong. Rec. S8451 (daily ed. July 31, 2006). The bill would provide for the sale of approximately 132 acres of public land to the city of Green River, Wyoming, at fair market value.
  • S. 2403 (national parks) was reported by the Committee on Energy and Natural Resources. S. Rep. No. 109-308, 152 Cong. Rec. S8451 (daily ed. July 31, 2006). The bill would authorize the Secretary of the Interior to include the boundaries of the Grand Teton National Park land and interests in land of the Grand Teton Park Subdivision.
  • S. 2568 (National Trails System Act) was reported by the Committee on Energy and Natural Resources. S. Rep. No. 109-309, 152 Cong. Rec. S8451-52 (daily ed. July 31, 2006). The bill would amend the National Trails System Act to designate the Captain John Smith Chesapeake National Historic Trail.
  • S. Res. 458 (national parks) was reported by the Committee on Energy and Natural Resources. S. Rep. No. 109-310, 152 Cong. Rec. S8452 (daily ed. July 31, 2006). The resolution would support the continued administration of Channel Islands National Park, including Santa Rosa Island, in accordance with the laws, regulations, and policies of the National Park Service.
  • H.R. 394 (national parks) was reported by the Committee on Energy and Natural Resources. S. Rep. No. 109-311, 152 Cong. Rec. S8452 (daily ed. July 31, 2006). The bill would direct the Secretary of the Interior to conduct a boundary study to evaluate the significance of the Colonel James Barrett Farm in the commonwealth of Massachusetts and the suitability and feasibility of its inclusion in the National Park System as part of the Minute Man National Historic Park.
  • H.R. 482 (land exchange) was reported by the Committee on Energy and Natural Resources. S. Rep. No. 109-312, 152 Cong. Rec. H8452 (daily ed. July 31, 2006). The bill would provide for a land exchange involving federal lands in the Lincoln National Forest in the state of New Mexico.
  • H.R. 486 (land exchange) was reported by the Committee on Energy and Natural Resources. S. Rep. No. 109-313, 152 Cong. Rec. H8452 (daily ed. July 31, 2006). The bill would provide for a land exchange involving private land and BLM land in the vicinity of Holloman Air Force Base, New Mexico, for the purpose of removing private land from the required safety zone surrounding munitions storage bunkers at Holloman Air Force Base.
  • H.R. 4000 (irrigation) was reported by the Committee on Energy and Natural Resources. S. Rep. No. 109-315, 152 Cong. Rec. H8452 (daily ed. July 31, 2006). The bill would authorize the Secretary of the Interior to revise certain repayment contracts with the Bostwick Irrigation District and the Frenchman-Cambridge Irrigation District in Nebraska, and the Kansas Bostwick Irrigation District No. 2 and Webster Irrigation District No. 4 in Kansas, which are all part of the Pick-Sloan Missouri Basin Program.
  • H.R. 4650 (levees) was reported by the Committee on Transportation and Infrastructure. H. Rep. No. 109-609, 152 Cong. Rec. H6230 (daily ed. July 28, 2006). The bill would direct the Secretary of the Army to carry out programs and activities to enhance the safety of levees in the United States.
  • H.R. 4957 (fish hatcheries) was reported by the Committee on Resources. H. Rep. No. 109-612, 152 Cong. Rec. H6230 (daily ed. July 28, 2006). The bill would direct the Secretary of the Interior to convey the Tylersville division of the Lamar National Fish Hatchery and fish Technology Center to the state of Pennsylvania.
  • H.R. 5656 (energy) was reported by the Committee on Science. H. Rep. No. 109-611, 152 Cong. Rec. H6230 (daily ed. July 28, 2006). The bill would provide for federal energy research, development, demonstration, and commercial application activities.
  • H.R. 5681 (appropriations) was reported by the Committee on Transportation and Infrastructure. H. Rep. No. 109-614, 152 Cong. Rec. H6230 (daily ed. July 28, 2006). The bill would authorize appropriations for the Coast Guard for fiscal year 2007.
  • H.R. 5810 (CERCLA) was reported by the Committee on Transportation and Infrastructure. H. Rep. No. 109-608 Pt. 1, 152 Cong. Rec. H6230 (daily ed. July 28, 2006). The bill would amend CERCLA to authorize funding for brownfields revitalization activities and state response programs.

BILLS INTRODUCED:

  • S. 3762 (McCain, R-Ariz.) (rivers) would designate segments of Fossil Creek, a tributary to the Verde River in the state of Arizona, as wild and scenic rivers. 152 Cong. Rec. S8411 (daily ed. July 28, 2006). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 3772 (Ensign, R-Nev.) (conservation) would establish wilderness areas, promote conservation, improve public land, and provide for high quality development in White Pine County, Nevada. 152 Cong. Rec. S8537 (daily ed. Aug. 1, 2006). The bill was referred to the Committee on Energy and Natural Resources.
  • H.R. 5957 (Renzi, R-Ariz.) (rivers) would designate segments of Fossil Creek, a tributary to the Verde River in the state of Arizona, as wild and scenic rivers. 152 Cong. Rec. H6231 (daily ed. July 28, 2006). The bill was referred to the Committee on Resources.
  • H.R. 5959 (Lofgren, D-Cal.) (alternative fuel) would amend the Internal Revenue Code of 1986 to impose an excise tax on automobiles sold in the United States that are not alternative fueled automobiles. 152 Cong. Rec. H6231 (daily ed. July 28, 2006). The bill was referred to the Committee on Ways and Means and the Committee on Energy and Commerce.
  • H.R. 5964 (DeFazio, D-Or.) (forests) would establish management priorities for federal forest lands in Oregon and Washington covered by the Northwest Forest Plan that protect old growth timber while improving the health of young managed stands, increasing the volume of commercial timber available from these lands, and providing economic opportunities in rural areas. 152 Cong. Rec. H6231 (daily ed. July 28, 2006). The bill was referred to the Committee on Agriculture and the Committee on Resources.
  • H.R. 5965 (Hoyer, D-Md.) (energy) would reduce the nation’s reliance on foreign oil, improve vehicle technology and efficiency, increase the distribution of alternative fuels, bolster rail infrastructure, and expand access to public transit. 152 Cong. Rec. H6231 (daily ed. July 28, 2006). The bill was referred to the Committee on Energy and Commerce, and in addition to the Committees on Armed Services, Government Reform, Rules, Science, Ways and Means, House Administration, and Transportation and Infrastructure.
  • H.R. 5978 (Blunt, R-Mo.) (national park system) would authorize the Secretary of the Interior to conduct a special resource study to determine the suitability and feasibility of including the battlefields and related sites of the First and Second Battles of Newtonia, Missouri, during the Civil War as part of Wilson’s Creek National Battlefield or designating the battlefields and related sites as a separate unit of the National Park System. 152 Cong. Rec. H6232 (daily ed. July 28, 2006). The bill was referred to the Committee on Resources.
  • H.R. 5980 (Boozman, R-Ariz.) (resource study) would direct the Secretary of the Interior to conduct a resource study along the “Ox-Bow Route” of the Butterfield Overland Trail in the states of Arkansas, Arizona, California, Missouri, New Mexico, Oklahoma, Tennessee, and Texas. 152 Cong. Rec. H6232 (daily ed. July 28, 2006). The bill was referred to the Committee on Resources.
  • H.R. 5985 (Cardoza, D-Cal.) (conservation and energy tax incentives) would amend the Internal Revenue Code of 1986 to extend and modify conservation and energy efficiency tax incentives, extend the energy efficient appliance rebate program, and establish the Center for Advanced Solar Research. 152 Cong. Rec. H6232 (daily ed. July 28, 2006). The bill was referred to the Committee on Ways and Means, and in addition to the Committees on Financial Services, Science, and Energy and Commerce.
  • H.R. 5987 (Cole, R-Okla.) (water supply) would provide for a feasibility study of alternatives to augment the water supplies of the Central Oklahoma Master Conservancy District and cities served by the District. 152 Cong. Rec. H6232 (daily ed. July 28, 2006). The bill was referred to the Committee on Resources.
  • H.R. 5999 (Hastings, R-Wash.) (land conveyance) would provide for the conveyance of a parcel of National Forest System land in Kittitas County, Washington, and facilitate the construction of a new fire and rescue station. 152 Cong. Rec. H6233 (daily ed. July 28, 2006). The bill was referred to the Committee on Resources.
  • H.R. 6000 (Holden, D-Pa.) (agriculture) would revise the USDA’s Farmland Protection Program. 152 Cong. Rec. H6233 (daily ed. July 28, 2006). The bill was referred to the Committee on Agriculture.
  • H.R. 6010 (Miller, R-Mich.) (floods) would ensure that flood level estimates in the Great Lakes basin represent true flood risk. 152 Cong. Rec. H6233 (daily ed. July 28, 2006). The bill was referred to the Committee on Financial Services.
  • H.R. 6013 (Pearce, R-N.M.) (National Park System) would amend the Act of August 21, 1935, and extend the authorization for the National Park System Advisory Board. 152 Cong. Rec. H6233 (daily ed. July 28, 2006). The bill was referred to the Committee on Resources.
  • H.R. 6014 (Pombo, R-Cal.) (water supply) would authorize the Secretary of the Interior, acting through the Bureau of Reclamation, to improve California’s Sacramento-San Joaquin Delta and water supply. 152 Cong. Rec. H6233 (daily ed. July 28, 2006). The bill was referred to the Committee on Resources.
  • H.R. 6019 (Slaughter, D-N.Y.) (national heritage area) would establish the Niagara Falls National Heritage Area in the state of New York. 152 Cong. Rec. H6233 (daily ed. July 28, 2006). The bill was referred to the Committee on Resources.
  • H.R. 6025 (Whitfield, R-Ky.) (fuel) would promote coal-to-liquid fuel activities. 152 Cong. Rec. H6234 (daily ed. July 28, 2006). The bill was referred to the Committee on Energy and Commerce and the Committee on Science.
  • H.R. 6026 (Young, R-Alaska) (land conveyance) would authorize the Administrator of General Services to convey a parcel of real property to the Alaska Railroad Corporation in exchange for replacement property and other consideration. 152 Cong. Rec. H6243 (daily ed. July 28, 2006). The bill was referred to the Committee on Transportation and Infrastructure.
  • H. Con. Res. 460 (Alexander, R-La.) (oil refineries) would express the sense of Congress that American oil companies should build additional refining capacity on existing refinery campuses. 152 Cong. Rec. H6234 (daily ed. July 28, 2006). The concurrent resolution was referred to the Committee on Energy and Commerce.
  • H. Con. Res. 461 (Boustany, R-La.) (hurricanes) would express the support of the Congress for the creation of a National Hurricane Museum and Science Center in southwest Louisiana. 152 Cong. Rec. H6234 (daily ed. July 28, 2006). The concurrent resolution was referred to the Committee on Resources.
  • H. Con. Res. 466 (Watt, D-N.C.) (Hurricane Katrina) would observe the one year anniversary of the date on which the Gulf Coast region was struck by Hurricane Katrina, acknowledging the significant deficiencies that still exist in the ability of cities in the Gulf Coast region to provide necessary social services and subsistence to their residents or to attract the return of many displaced residents, and reaffirm the commitment of Congress to assist in rebuilding the Gulf Coast region, improving the quality of life for all its residents, and ending poverty in America. 152 Cong. Rec. H6234 (daily ed. July 28, 2006). The concurrent resolution was referred to the Committee on Transportation and Infrastructure.
  • H. Res. 971 (Fitzpatrick, R-Pa.) (oil) would express the sense of the House of Representatives that Congress should enact legislation to slow, stop, and reverse the growth of the nation’s dependence on imported oil in ways that provide cleaner air, reduce emissions of carbon dioxide, and enhance America’s competitiveness. 152 Cong. Rec. H6234-35 (daily ed. July 28, 2006). The bill was referred to the Committee on Energy and Commerce.

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 Idaho Minnesota Oregon Tennessee Washington Alaska Illinois Nebraska Pennsylvania Texas Wisconsin Arizona Maine Nevada South Carolina Utah   California Massachusetts New York South Dakota Vermont  

ALABAMA

General:

  • The Department of Environmental Management will hold a public meeting on proposed amendments to Chapter 335-1-1 that would allow for electronic signatures with the submittal of electronic applications and that would add, delete, and modify departmental forms. Proposed amendments to Chapter 335-1-6 would increase permit fees. The meeting will be held September 5, 2006. Comments are due September 7, 2006. See http://www.adem.state.al.us//PublicNotice/July/Div1.htm.

ALASKA

Wildlife:

  • The Alaska Commercial Fisheries Entry Commission to will hold a public meeting to discuss proposals to adopt regulation changes in Title 20, Chapter 05 of the Alaska Administrative Code. The proposed changes would amend 20 AAC 05.245 to update the references to the federal guidelines and the application form used to determine eligibility for reduced permit fees; would amend 20 AAC 05.250(b) to update the references to the federal guidelines used to determine eligibility for reduced permit application fees; would repeal 20 AAC 05.1805(d), dealing with commission actions affected by administrative errors; would repeal 20 AAC 05.1820(f), dealing with burden of proof in an administrative error proceeding; would amend 20 AAC 05.1850(b) to state the standards the commission applies to evaluate a request for reconsideration of a final commission decision; and would amend 20 AAC 05.1910(h) to update the references to the federal guidelines used to determine eligibility for reduced transfer fees. The meeting will be held August 31, 2006. Comments are due August 28, 2006. See http://notes4.state.ak.us/pn/pubnotic.nsf/1604e1912875140689256785006767f6/1b5032b305c0c034892571b80069d9f8? OpenDocument

ARIZONA

Air:

  • The Department of Environmental Quality proposed to amend R18-2-401 so that the definition of “dispersion technique” at R18-2-401(4) is consistent with the definition of “dispersion technique” at R18-2-301(6). There will be a public hearing September 6, 2006. Comments are due September 13, 2006. See http://www.azdeq.gov/function/laws/draft.html#air

CALIFORNIA

Toxic Substances:

Water:

  • The State Water Board extended the deadline for public comment on the Storm Water Panel Recommendations on the Feasibility of Numeric Effluent Limits Applicable to Storm Water Discharges. The deadline to receive comments has been extended until September 1, 2006. See http://www.waterboards.ca.gov/stormwtr/index.html#limits

IDAHO

Hazardous and Solid Waste:

ILLINOIS

Air:

MAINE

Toxic substances:

  • The Department of Environmental Protection proposes to amend Chapter 870 of its rules. Chapter 870 sets forth standards for labeling mercury-added products. The board proposes to further amend the rule to provide for labeling of mercury-added lamps. Comments are due September 1, 2006. See http://www.maine.gov/sos/cec/rules/notices/2006/080206.htm

Wildlife:

  • The Atlantic Salmon Commission adopted rule number 2006-343, Chapter 1, Rules of the Atlantic Salmon Commission. The rule creates an experimental open fishing season for anadromous Atlantic salmon. The open season is for a one-month period in the fall in a specified location on the Penobscot River. The permitted activity is limited to catch and release by fly-fishing only. The rule became effective August 1, 2006. See http://www.maine.gov/sos/cec/rules/notices/2006/080206.htm

MASSACHUSETTS

Air:

  • The Department of Environmental Protection will hold a public hearing on proposed amendments to 310 CMR 7.00, Appendix B, Emission Banking, Trading, and Averaging, and 310 CMR 7.29, Emissions Standards for Power Plants. The proposed regulations are intended to reduce, avoid, or sequester emissions of greenhouse gases and to create a crediting process for these projects for purposes of complying with the applicable provisions of 310 CMR 7.29 (5)(a)5. The public hearing will be held August 21, 2006. Comments are due August 31, 2006. See http://www.mass.gov/dep/public/communicate/ghgphnot.htm

MINNESOTA

Hazardous and Solid Waste:

  • The Minnesota Pollution Control Agency (MPCA) proposed amendments to Minnesota Rules Chapters 7035, governing the inspection of structures to be demolished and the removal of hazardous materials prior to commencement of demolition. The MPCA intends to publish the proposed rule amendments in February of 2007 and to have the rule finalized by December of 2007. Comments are due September 29, 2006. See http://www.pca.state.mn.us/news/data/bdc.cfm?noticeID=272174&blobID=13775&docTypeID=4

NEBRASKA

Water:

  • The Department of Environmental Quality is accepting public comments on a pre-draft version of a general permit for stormwater discharges from construction sites. Comments are due September 15, 2006. See http://www.deq.state.ne.us/

NEVADA

Air:

  • The State Environmental Commission has scheduled a regulatory hearing on Regulation R139-06, Air Quality Reforms--New Source Review; Regulation R151-06, Air Pollution Control Permitting Provisions; Regulation R154-06, Air Pollution Control Permitting Fees; Regulation R162-06, Clean Air Mercury Rule; and Regulation P2006-19, Mercury Storage. The hearing will be held September 6, 2006. Comments are due August 28, 2006. See http://www.sec.nv.gov/docs/public_notice_all_090606.pdf

Hazardous and Solid Waste:

Land Use:

  • The State Environmental Commission has scheduled a regulatory hearing on Regulation R141-06, Spent Ore, and Regulation R138-06, Clarification of Certain Fee Categories for Mining Facility Permits. The hearing will be held September 6, 2006. Comments are due August 28, 2006. See http://www.sec.nv.gov/docs/public_notice_all_090606.pdf

Water:

  • The State Environmental Commission has scheduled a regulatory hearing on Regulation R158-06, Standards for Toxic Materials Applicable to Designated Waters; Regulation R159-06, Colorado River Salinity Standards; and Regulation R160-06, Class Waters. The hearing will be held September 6, 2006. Comments are due August 28, 2006. See http://www.sec.nv.gov/docs/public_notice_all_090606.pdf

NEW YORK

Hazardous and Solid Waste:

  • The Department of Environmental Conservation adopted amendments to Parts 370, 371, 372, 373, and Appendix 30 of 6 NYCRR to change the hazardous waste manifest regulations. The amendments, made in response to revisions to the federal hazardous waste manifest form, require the revised form to be used as of September 5, 2006. See http://www.dec.state.ny.us/website/enb2006/20060726/not0.html

OREGON

Air:

Hazardous and Solid Waste:

Water:

Wildlife:

  • The Department of Fish and Wildlife will hold a public hearing on proposed amendments to ORS 635-008, 045, 051, 052, 053, 054, 060, and 100 regarding the harvest of game birds including 2006-2007 season dates, open areas, and bag limits. The hearing was held August 4, 2006. Comments were due August 4, 2006. See http://arcweb.sos.state.or.us/rules/0806_Bulletin/0806_rulemaking_bulletin.html
  • The Department of Fish and Wildlife will hold a public hearing on proposed amendments to ORS 635-006, concerning limited entry permits for bay clams, to allow unrestricted transfers up to two times per year. Housekeeping and technical correction to the regulations may also occur to ensure rule consistency. The hearing will be held September 8, 2006. Comments are due September 8, 2006. See http://arcweb.sos.state.or.us/rules/0806_Bulletin/0806_rulemaking_bulletin.html

General:

  • The Department of Agriculture will hold a public hearing on their proposal to adopt the 2006 American Society for Testing and Materials International specifications for gasoline, diesel fuel, biodiesel, and E85 fuel methanol; biofuel dispenser labeling requirements; and delivery documentation requirements; and to update Oregon’s motor fuel quality regulations based on the national model regulations published in a 2006 National Institute of Standards and Technology Handbook entitled Uniform Laws and Regulations in the Areas of Legal Metrology and Engine Fuel Quality. The hearing will be held August 29, 2006. Comments are due September 8, 2006. See http://arcweb.sos.state.or.us/rules/0806_Bulletin/0806_rulemaking_bulletin.html

PENNSYLVANIA

Air:

  • The Environmental Quality Board is accepting public comment on the new proposed Mercury Rule, a state-specific policy that would require mercury emission reductions at coal-fired power plants in Pennsylvania while a competing federal rule would make those controls optional. The General Assembly currently is considering legislation that would block the state-specific policy and impose the federal rule. Comments are due August 26, 2006. See http://www.depweb.state.pa.us/news/cwp/view.asp?a=3&q=508189

SOUTH CAROLINA

Air:

  • The Department of Health and Environmental Control proposed to amend its SIP and S.C. Regulation 61-62, Air Pollution Control Regulations and Standards, to incorporate revisions in the federally approved state minor source permitting program and to support the Department’s goal of promoting and protecting the health of the public and the environment in a more efficient and effective manner. The proposed amendments will require legislative review. An informational forum will be held August 28, 2006, and a public hearing will be held October 12, 2006. Comments are due August 28, 2006. See http://www.scstatehouse.net/regs/3069.doc

Hazardous and Solid Waste:

  • The Department proposed to amend Regulation 61-107, Solid Waste Management Regulations. The Department proposed to simultaneously repeal sections 61-107.11, Construction, Demolition, and Land-clearing Debris Landfills; 61-107.13, Municipal Solid Waste Incinerator Ash Landfills; 61-107.16, Industrial Solid Waste Landfills; and 61-107.258, Municipal Solid Waste Landfills, and replace them with a new section that encompasses all solid waste landfills and structural fill activities to broaden disposal options. Legislative review will be required. See http://www.scdhec.gov/administration/regs/docs/regupdate.doc#air

Toxic Substances:

  • Department of Health and Environmental Control proposed to amend Regulation 61-63, Radioactive Materials, and Regulation 61-83, Transportation of Radioactive Waste Into or Within South Carolina, to maintain conformity with the federal requirements. This amendment will not be more stringent than the federal equivalent and will not require legislative review, nor is a preliminary assessment report or a fiscal impact statement required. See http://www.scdhec.gov/administration/regs/docs/regupdate.doc#air
  • The Department of Health and Environmental Control proposed to amend Regulation 61-86.1, Standards of Performance for Asbestos Projects, as necessary, to provide adequate funding for the implementation and enforcement of the asbestos program. The proposed amendments will require legislative review. See http://www.scdhec.gov/administration/regs/docs/regupdate.doc#air

Water:

  • The Department of Health and Environmental Control proposed to revise the State Primary Drinking Water Regulation to include requirements promulgated under the National Primary Drinking Water Regulations: Stage 2 Disinfectants and Disinfection Byproducts Rule. The proposed regulation revision would amend the State Primary Drinking Water Regulations to comply with requirements of 40 C.F.R. pts. 141 and 142. A public hearing will be held October 12, 2006. Comments are due September 1, 2006. See http://www.scdhec.gov/administration/regs/docs/regupdate.doc#air

Wildlife:

  • The Department of Health and Environmental Control proposed to amend Regulation 61-47. The amendments would bring it up-to-date with current national shellfish sanitation program guidance and practices, include a section on severability, update and expand definitions, update certification and permitting procedures, update growing area survey and classification standard references, update requirements for the harvesting, handling, and transportation of shellfish, update compliance and inspection procedures, and update certified shipper facility and aquaculture requirements. See http://www.scdhec.gov/administration/regs/docs/regupdate.doc#air

SOUTH DAKOTA

Wildlife:

  • The Department of Game, Fish, and Ducks will hold a public hearing on proposed amendments to the duck hunting season regulations to establish bag limits, season dates, and zone boundaries for the High Plains and Low Plains North, Middle, and South Duck Hunting Zones. The Department also proposed amendments to the goose hunting regulations to establish bag limits and change the length of the Canada goose hunting season and to establish bag limits and change the season length for light geese and white-fronted geese, and proposed amendments to its requirements for depredation permits to change the process used in establishing the pool of hunters that may be called upon to shoot depredating deer, antelope, and turkeys from the current big game license application. A hearing was held August 3, 2006. See http://legis.state.sd.us/rules/register/07312006.pdf

TENNESSEE

Hazardous and Solid Waste:

  • The Division of Remediation will hold a hearing on behalf of the Solid Waste Disposal Control Board to receive public comments on an amendment to Rule 1200-1-13-.13 that would add a new site to the List of Inactive Hazardous Substance Sites. The hearing will be held September 18, 2006. See http://www.state.tn.us/environment/dor/ppo/ph091806.pdf

TEXAS

Air:

  • The Texas Commission on Environmental Quality adopted §§101.501 - 101.504, 101.506, 101.508, 122.420, 122.422, 122.424, 122.426, 122.428, 122.440, 122.442, 122.444, 122.446, and 122.448, and amended §§122.10, 122.12, 122.120, and 122.410. The rules establish the control measures and enforcement mechanism for the Texas Clean Air Interstate Rule (CAIR) SIP. The rules reduce nitrogen oxide and sulfur dioxide emissions from electric generating units to assist downwind states in achieving compliance with the NAAQS for fine particulate matter. The rules also amend Chapter 122 to incorporate the permitting requirements for CAIR and the Clean Air Mercury Rule (CAMR) by reference. The CAIR and CAMR permits will establish federal enforceability of the CAIR and CAMR trading programs by listing all applicable requirements of the trading programs applicable to each CAIR and CAMR unit at the source. The amendments and new rules became effective August 3, 2006. See http://www.tceq.state.tx.us/rules/adopt.html
  • The Texas Commission on Environmental Quality adopted §§101.601 and 101.602 to establish the control measures and enforcement mechanism for the Texas Clean Air Mercury Rule state plan. The rules became effective August 3, 2006. See http://www.tceq.state.tx.us/assets/public/legal/rules/rule_lib/adoptions/05047101_ado_clean.pdf

Hazardous and Solid Waste:

  • The Texas Commission on Environmental Quality amended §§285.2, 285.7, 285.33, 285.50, 285.61, 285.70, 285.71, and 285.90, repealed §285.64, and adopted new §285.64 and §285.65 to implement requirements in House Bill 2510, 79th Legislature, 2005, relating to the regulation of on-site sewage disposal systems using aerobic treatment and the maintenance of those systems. The adopted rules also address enforcement for noncompliance. The amendments became effective August 3, 2006. See http://www.tceq.state.tx.us/assets/public/legal/rules/rule_lib/adoptions/05040285_ado_clean.pdf
  • The Texas Commission on Environmental Quality amended §335.261, Industrial Solid Waste and Municipal Hazardous Waste. The amendment will allow incorporation by reference of an EPA rule that adds mercury-containing equipment to the list of universal waste. The amendment also implements House Bill 2793. The amendment became effective August 3, 2006. See http://www.tceq.state.tx.us/assets/public/legal/rules/rule_lib/adoptions/05072335_ado_clean.pdf

Water:

  • The Texas Commission on Environmental Quality adopts new §§37.9160, 37.9165, 37.9170, 37.9175, 37.9180, 37.9185, 37.9190, 37.9195, 37.9200, 37.9205, 37.9210, 37.9215, 37.9220, 37.9225, 37.9230, 37.9235, 37.9240, and 311.71 - 311.82. These adoptions, which relate to the protection of water quality in watersheds threatened by quarry activities, establish a pilot program and provide for penalties. These rules became effective August 3, 2006. See http://www.tceq.state.tx.us/assets/public/legal/rules/rule_lib/adoptions/05051311_ado_clean.pdf

UTAH

Hazardous & Solid Waste:

  • The Department of Environmental Quality, Environmental Response, and Remediation will hold a public hearing on proposed amendments to R311-206, Underground Storage Tanks: Financial Assurance Mechanisms. The proposed amendments would implement changes made to the Utah Underground Storage Tank Act by the 2006 Utah legislature in House Bill 271. The hearing will be held August 22, 2006. Comments are due August 31, 2006. See http://www.rules.utah.gov/publicat/bulletin/2006/20060801/28880.htm

VERMONT

Hazardous & Solid Waste:

  • The Vermont Hazardous Waste Management Regulations are being revised to incorporate new federal regulatory requirements, changes that the Vermont program has found necessary through implementation of the current rule, and minor typographical and grammatical corrections. A public hearing was held August 1, 2006. Comments are due August 11, 2006. See http://www.anr.state.vt.us/dec/wastediv/rcra/hazregs/06Notice.pdf

WASHINGTON

Hazardous & Solid Waste:

  • The Department of Ecology will hold a series of public hearings on a proposal for a new chapter in the Washington Administrative Code to implement the Electronic Product Recycling Program created by the Legislature in 2006 (ESSB 6428). The hearings will be held August 22, 24, and 29, 2006. See http://www.ecy.wa.gov/laws-rules/erecycling/p0607.pdf

Toxic Substances:

  • The comment period on a proposed amendment to the Model Toxics Control Act Cleanup Regulation (Chapter 173-340 WAC) has been extended to August 11, 2006. The proposed amendment would clarify the policies and procedures for establishing cleanup levels for mixtures of dioxins/furans, polycyclic aromatic hydrocarbons, and PCBs. See http://www.ecy.wa.gov/programs/tcp/regs/amendment_2006/amend.htm

WISCONSIN

Air:

  • The Department of Natural Resources will hold public hearings on revisions to Chapters NR 406 and 410, Wis. Adm. Code, relating to construction permit waiver requests from air contaminant sources. The hearings will be held August 7 and 8, 2006. See http://www.dnr.state.wi.us/org/caer/ce/news/hearmeet.html

Land Use:

  • The Department of Natural Resources will hold public hearings on the creation of Section NR 1.25, Wis. Adm. Code, relating to the definition of “generally accepted forestry management practices.” The hearings will be held August 29, 30, and 31, 2006. See http://www.dnr.state.wi.us/org/caer/ce/news/hearmeet.html

Wildlife:

  • The Department of Natural Resources will hold public hearings on revisions to Chapter NR 10, Wis. Adm. Code, relating to the 2006 migratory game bird seasons and waterfowl hunting zones. The hearings will be held August 7, 8, 9, and 10, 2006. See http://www.dnr.state.wi.us/org/caer/ce/news/hearmeet.html

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

INTERNATIONAL

UNITED KINGDOM (U.K.) TAKES STEPS TO BURY NUCLEAR WASTE:

The Committee on Radioactive Waste Management has advised ministers to quickly assemble a body to oversee the process of identifying suitable sites to bury the U.K.’s radioactive waste deep underground. The committee’s chief recommendations include: in the long term, “geological disposal” is the most suitable option; the need for “robust interim storage” because the process of identifying and building such a disposal facility may take “several decades”; the immediate creation of an “oversight body” to begin implementing the committee’s recommendations; and, an “equal partnership between government and potential host communities.” The committee’s chairman said that “although it will take several decades, we think we have now set a direction that government can follow and where there will be at least sufficient public confidence to move ahead.” See http://news.bbc.co.uk/2/hi/science/nature/5231416.stm

CHINA ANNOUNCES MEASURES TO STRENGTHEN LAND MANAGEMENT POLICY:

The Chinese government has declared new measures to strengthen land management, curb the excessive use of land for construction and industrial projects, check violations of laws and regulations in land requisitions, and ban illegal requisition of farmland. The State Council decided that compensation for farmers whose land is compulsorily acquired will be raised to levels that will allow them to maintain their living standards and guarantee their long-term rights. Charges for land use rights and taxation on the use of land will be raised, and the government will also set up a standard for minimum pricing of industrial land use rights. See http://english.people.com.cn/200607/28/eng20060728_287448.html

U.K. AND CALIFRONIA FORM CLIMATE CHANGE PACT:

The U.K. and California will collaborate to reduce greenhouse gases and promote low carbon technologies. The agreement was the result of a climate change meeting in Long Beach of Prime Minister Tony Blair, California governor Arnold Schwarzenegger, and business leaders. The mission statement—signed by both Blair and Schwarzenegger—says Britain and California will “commit to urgent action to reduce greenhouse gas emissions and promote low carbon technologies.” See http://news.bbc.co.uk/2/hi/in_depth/5233466.stm

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

Note: To order documents or request additional information, please call (800) 433-5120 or (202) 939-3844. Orders may also be sent by e-mail to orders@eli.org or by fax to (202) 939-3817. Please specify the issue of UPDATE about which you are inquiring. In most instances, for the cost of copying and postage, ELR can supply copies of materials cited. Charges for ELR Subscribers are 25 cents/page, $10 minimum; all others, 50 cents/page, $20 minimum. Documents may also be available free or at a nominal charge from the applicable court or agency. Copyright© 2006, Environmental Law Institute, Washington, D.C. All rights reserved. Copyright© 2006, Environmental Law Institute, Washington, D.C. All rights reserved.

ELR STAFF

Leslie Carothers, Publisher
Scott Schang, Editor-in-Chief
Linda L. Johnson, Managing Editor
Rachel Jean-Baptiste, Senior Editor
Erin Webreck, Associate Editor
Carolyn Fischer, Books Editor
William J. Straub, Desktop Publisher
April King, Editorial Associate
Rebecca Gruby, Contributing Editor
Bonnie Vanzler, Publications Intern