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Weekly Update Volume 36, Issue 24

08/28/2006

LITIGATION

CAA, OPERATING PERMITS, MODIFICATIONS:

The Seventh Circuit held that coal-fired electric power plants must obtain a permit from EPA to make modifications that will increase annual emissions even if the modifications do not increase hourly emissions. The regulation at issue, 40 C.F.R. §52.21, requires a permit for any "major modification," defined as any physical change or change in operating methods, of a major stationary source that would result in a significant increase of regulated emissions. Increases in the hours of operation or in the production rate are both excluded from the definition of "physical change." EPA interpreted the regulation to mean that if a physical change enables the plant to increase its output, the exclusion for merely operating the plant for longer hours is inapplicable. The court agreed, concluding that EPA's interpretation was reasonable. Further, to interpret the regulation otherwise would allow a plant to elude the permit requirement and distort the plant's choice between renovating an existing plant and replacing it with a newer, cleaner one. United States v. Cinergy Corp., No. 06-1224, 36 ELR 20167 (7th Cir. Aug. 17, 2006) (9 pp.).

NEPA, CUMULATIVE IMPACTS:

The Ninth Circuit held that the U.S. Army Corps of Engineers took the requisite "hard look" at the environmental and economic impacts of a project that would deepen the Columbia River's navigation channel from 40 feet to 43 feet and add new sites for the disposal of dredged materials. The court concluded that the Corps performed exhaustive studies over numerous years, solicited and accommodated input from stakeholders, and thoroughly re-analyzed areas of particular concern. The Corps did not simply consider the channel deepening project in isolation, but analyzed its cumulative impact in conjunction with other projects. Moreover, the Corps responded to concerns from Oregon and Washington about sediment availability and provided additional analyses that led the states to certify the project. And it subjected its analyses to review by independent scientists who subsequently verified the Corps' findings. Northwest Environmental Advocates v. National Marine Fisheries Service, No. 05-35806, 36 ELR 20176 (9th Cir. Aug. 23, 2006) (66 pp.).

TAKINGS, WETLANDS:

The Federal Circuit dismissed a farmer's takings claim against the U.S. government for requiring him to remediate wetlands on his property. Prior to his ownership of the farm, portions of his land were drained with the assistance of the USDA. After he acquired the property from his parents, the farmer attempted to fill and drain wetlands on the property. EPA filed an enforcement suit against him, and the parties entered into a consent decree that required the farmer to restore the affected property to its pre-1985 wetlands state. The farmer then filed the instant action under the Fifth Amendment. The government's action, however, did not result in a regulatory taking. The limitations associated with the consent decree and the underlying requirements of the CWA resulted only in a noncompensable diminution in the value of the parcel as a whole and allow the farmer to realize to a significant degree his reasonable investment-backed expectations. Nor did the government effectuate a physical taking. A consent decree cannot give rise to a physical taking, there is no evidence that flooding on his property was the result of the restoration work, and the consent decree did not create a conservation easement on his property. Brace v. United States, No. 98-897L, 36 ELR 20168 (Fed. Cir. Aug. 17, 2006) (27 pp.).

CWA, WETLANDS:

A district court held that for purposes of issuing a search warrant, it was reasonable for a judge to conclude that there was probable cause to believe that CWA jurisdiction extends to a creek that runs behind and receives unpermitted human waste discharge from the defendants' farm labor camp near Palatka, Florida. The creek is a relatively permanent, continuously flowing body of water with quantifiable geographic features. In addition, the creek is a natural tributary of the St. Johns River, a navigable-in-fact waterway. Therefore, the creek met both Justice Scalia's and Justice Kennedy's tests for "waters of the United States" as set forth in Rapanos v. United States, 126 S. Ct. 2208, 36 ELR 20116 (2006). United States v. Evans, No. 3:05 CR 159 J 32HTS, 36 ELR 20165 (M.D. Fla. Aug. 2, 2006) (36 pp.) (Corrigan, J.).

ESA, NEPA, GENETICALLY MODIFIED CROPS:

A district court held that the Animal and Plant Health Inspection Service (APHIS) violated the ESA and NEPA in permitting four companies to plant genetically modified crops in Hawaii to produce experimental drugs. APHIS argued that it complied with the ESA because it determined that its proposed actions would not affect listed species or critical habitat, thereby negating any need for formal consultation. But regardless of whether formal consultation was required, APHIS skipped the initial, mandatory step of obtaining information about listed species and critical habitats from FWS and the NMFS. Similarly, APHIS violated NEPA because it failed to articulate its reasons for declining to prepare an EA or EIS. There is nothing in the administrative record to indicate that APHIS considered the applicability of NEPA, categorical exclusions, or the exceptions to those exclusions. Consequently, APHIS acted arbitrarily and capriciously in issuing the permits. Center for Food Safety v. Johanns, No. 03-00621 JMS/BMK, 36 ELR 20175 (D. Haw. Aug. 10, 2006) (Seabright, J.) (52 pp.).

CERCLA, RESPONSE COSTS:

The Sixth Circuit upheld a lower court summary judgment decision dismissing an airport authority's action for response costs incurred during an airport expansion project. The costs were not "necessary" and the authority failed to present "appropriate remedial alternatives" in a timely manner. The authority, therefore, failed to comply with the NCP and is ineligible to recover under CERCLA §107. In addition, because CERCLA provides an adequate legal remedy, the authority's common law equitable indemnification claim was properly dismissed. Finally, Rule 26 of the Federal Rules of Civil Procedure creates a bright-line rule mandating disclosure of all documents, including attorney opinion work product, given to testifying experts. A magistrate judge, therefore, did not err in compelling the production of certain allegedly privileged documents. Regional Airport Authority of Louisville & Jefferson County v. LFG, LLC, No. 05-5754, 36 ELR 20166 (6th Cir. Aug. 17, 2006) (17 pp.).

CERCLA, CONTRIBUTION:

The Eighth Circuit held that a manufacturer that voluntarily cleaned up a site for which it was only partially liable may pursue an action for direct recovery or contribution under CERCLA §107 against another PRP. The manufacturer was barred from contribution under §113 because it commenced suit before, rather than "during or following," a CERCLA enforcement action. But because §113 is not a PRP's exclusive remedy, the manufacturer may seek recovery of cleanup costs exceeding its own equitable share under §107. The broad language of §107 supports a right of cost recovery and an implied right to contribution, and a PRP need not go through §113 to obtain relief under §107. However, while §107 allows for 100% cost recovery, a PRP may not use §107 to recover its full response costs. In the instant action, therefore, the manufacturer may recover a portion of its costs from the U.S. government, a PRP. Atlantic Research Corp. v. United States, No. 05-3152, 36 ELR 20164 (8th Cir. Aug. 11, 2006) (17 pp.).

CERCLA, CONTRIBUTION:

The Third Circuit held that it lacked jurisdiction to hear a company's appeal of a lower court decision dismissing its contribution claim against a corporation for mercury contamination surrounding Berry's Creek in Bergen County, New Jersey. In 1983, a state court found the company and several other entities jointly and severally liable for the contamination. The company then sought contribution in federal court from several companies, including the parent corporation of a former manufacturer that operated near the creek. In 1999, the federal court dismissed the action against the parent corporation for want of personal jurisdiction. The company now appeals that dismissal. The 1999 dismissal order, however, was not final when entered because other defendants then remained in the case. In addition, a 2001 order dismissing all of the then remaining defendants did not render the 1999 dismissal order final because the 2001 order was issued without prejudice. The court, therefore, lacks jurisdiction to hear the company's appeal. Morton International, Inc. v. A.E. Staley Manufacturing Co., No. 04-3936, 36 ELR 20169 (3d Cir. Aug. 18, 2006) (19 pp.).

PESTICIDES, TOLERANCE ASSESSMENTS:

The Second Circuit upheld the dismissal of a complaint brought by several nonprofit organizations challenging EPA's decision to leave in effect five pesticide tolerances after their reassessment under the Food Quality Protection Act. The lower court properly held that it lacked subject matter jurisdiction to hear the complaint. The groups argued that §346a(h) of the Federal Food, Drug, and Cosmetic Act governs judicial review only over EPA decisions to establish, modify, or revoke tolerances and that decisions to leave tolerances in effect are reviewable in the district courts. But while a decision to leave a tolerance in effect is not specifically enumerated in §346a(h), the fact remains that the organizations are challenging an issue that does fall within the scope of §346a(h). The organizations' argument that the tolerances were reviewable under the APA or FIFRA was rejected because §346a(h) precludes judicial review of such issues "under any other provision of law." Further, they could have sought relief from the tolerance reassessments by petitioning to modify or revoke them under §346a(d). Thus, because §346a(h) requires the organizations' challenges to be reviewed by an appellate court only after the statutory provisions for administrative review had been exhausted, the lower court properly dismissed their case. Natural Resources Defense Council v. Johnson, No. 04-5337-cv, 36 ELR 20174 (2d Cir. Aug. 22, 2006) (28 pp.).

NEPA, WILD HORSES AND BURROS ACT:

The D.C. Circuit affirmed the dismissal of animal defense organizations' action challenging BLM’s strategy to achieve an appropriate management level for national wild horse and burro populations on public lands under the Wild Free-Roaming Horses and Burros Act. The challenged four-year removal strategy was developed by BLM in response to the detrimental impact to watersheds caused by over-population of these rangelands species. The organizations argued that BLM violated NEPA by failing to prepare an EIS and violated the Wild Horses and Burros Act by adopting a plan that would reduce herd populations to below their appropriate management levels. The challenged strategy was set forth in two documents. One document was a short-term memorandum that had already expired. Thus, the organizations' claims were moot with respect to that document. The second document was BLM's approved budget request, which outlined the goals and methods of the administrative program. But while a budget request may serve as a useful planning document, it is not a final agency action or rule that can be reviewed under the APA. Fund for Animals, Inc. v. United States Bureau of Land Management, No. 04-5359, 36 ELR 20171 (D.C. Cir. Aug. 18, 2006) (31 pp.).

FEDERAL POWER ACT, HYDROELECTRICITY:

The D.C. Circuit partially granted petitions for review of FERC orders granting a conditional license to a city to operate a hydroelectric project on the Skokomish River in the state of Washington, but it did not vacate the license. FERC exceeded its statutory authority under the Federal Power Act by requiring the DOI to meet a tight deadline for submitting licensing conditions on actions taking place on a Native American reservation. When two or more federal agencies have shared authority to impose license conditions, they can certainly agree on an appropriate time frame to govern the process. FERC, however, has no authority to impose a 60-day limitation unilaterally, thereby effectively stripping the DOI of its statutorily delegated authority. Nevertheless, the court refused to vacate the license on this ground because vacating the license would likely have greater adverse impact on water quality than leaving the license in place. On remand, FERC must determine whether to include DOI's conditions in the license. The court denied the remaining petitions for review, which involved, among other things, claims that FERC violated the CWA, the CZMA, the National Historic Preservation Act, and interagency consultation requirements. City of Tacoma, Washington v. Federal Energy Regulatory Commission, No. 05-1054, 36 ELR 20173 (D.C. Cir. Aug. 22, 2006) (40 pp.).

CRIMINAL LAW, OIL POLLUTION:

The Third Circuit vacated and remanded a six-level sentencing enhancement imposed against the operator of a foreign vessel for failing to keep an accurate "oil record book" in violation of §1908(a) of the Act to Prevent Pollution from Ships, part of legislation implementing MARPOL 73/78. The operator made false entries in the oil record book in an attempt to conceal improper discharges of oil-contaminated bilge waste into the ocean. Only those violations that occur in U.S. ports or waters are criminal under §1908(a). Because the improper discharges occurred outside U.S. waters or ports, they are not "relevant conduct" that can be considered as part of the offense under the U.S. Sentencing Guidelines. Thus, under U.S. Sentencing Guideline §2Q1.3, the offense of failing to maintain the oil record book did not "result in" the repeated discharges of oily waste upon which the six-level sentencing enhancement was based. The court also rejected the government’s policy argument that the Sentencing Guidelines should be used to punish substantive environmental offenses. The case was therefore vacated and remanded for resentencing. United States v. Abrogar, No. 06-1215, 36 ELR 20170 (3d Cir. Aug. 18, 2006) (11 pp.).

RADIATION EXPOSURE, ACCESS TO THE COURTS:

The D.C. Circuit upheld the dismissal of military veterans' claims that they were denied meaningful access to administrative proceedings before the Department of Veterans Affairs (VA) to pursue compensation for their alleged exposure to dangerous levels of atomic radiation while members of the U.S. armed forces. Because the veterans failed to show that no avenue exists through which they can meaningfully pursue their underlying benefits claims, they failed to state a claim for denial of access to the courts. Broudy v. Mather, No. 05-5085, 36 ELR 20177 (D.C. Cir. Aug. 23, 2006) (32 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 adjusted the allocation of allowances for certain ozone-depleting substances by removing the 2007-2009 step-down reduction for companies that manufacture CFCs-11, -12, or -114 for export to meet the basic domestic needs of developing countries to prevent a shortfall in the availability of pharmaceutical-grade CFCs for use in metered dose inhalers in those countries. 71 FR 49395 (8/23/06).
  • EPA proposed revised NESHAPs to limit emissions of methylene chloride, perchloroethylene, and trichloroethylene from existing and new halogenated solvent cleaning machines. 71 FR 47669 (8/17/06).
  • EPA proposed modifications to the existing requirements for sources affected by the federally administered emission trading programs, including the Nitrogen Oxide Budget Trading Program, the Acid Rain Program, the Clean Air Interstate Rule, and the Clean Air Mercury Rule. 71 FR 49253 (8/22/06).
  • EPA proposed to promulgate a federal implementation plan for tribes in Indian country that would include two basic air quality regulations: one for minor stationary sources and minor modifications at major stationary sources in Indian country; and one for all new major stationary sources and major modifications located in nonattainment areas of Indian country. 71 FR 48695 (8/21/06).
  • OSHA revised its respiratory protection standard by adding definitions and requirements for assigned protection factors and maximum use concentrations; the changes are necessary to better protect employees who use respirators. 71 FR 50121 (8/24/06).
  • EPA proposed to update a portion of the outer continental shelf air regulations that correspond to the Ventura County air pollution control district onshore area. 71 FR 47758 (8/18/06).
  • EPA delegated authority to the Indiana Department of Environmental Management to implement and enforce NESHAPs for secondary lead smelting. 71 FR 48923 (8/22/06).
  • SIP Approvals: Missouri (plan for nitrogen oxides) 71 FR 46860 (8/15/06). Montana (open burning rules modification) 71 FR 49999 (8/24/06). South Dakota (PSD program and administrative rules revisions) 71 FR 46403 (8/14/06). Virginia (volatile organic compounds), 71 FR 47742 (8/18/06); (PSD revisions), 71 FR 47744 (8/18/06).
  • SIP Proposals: Maryland (volatile organic compound emissions) 71 FR 49393 (8/23/06). Michigan (gasoline volatility control) 71 FR 46879 (8/15/06). New Hampshire (reformulated gasoline program withdrawal) 71 FR 47161 (8/16/06). South Dakota (PSD program and administrative rules revisions; see above for direct final rule) 71 FR 46428 (8/14/06). Texas (eight-hour ozone nonattainment area) 71 FR 48870 (8/22/06).

HAZARDOUS & SOLID WASTE:

  • EPA adjusted the reportable quantities for 28 individual carbamates and 5 carbamate-related hazardous waste streams and for the inorganic chemical manufacturing process waste K178. 71 FR 47106 (8/16/06).
  • EPA published grant guidelines on the prohibition of certain deliveries to USTs. 71 FR 46471 (8/14/06).
  • EPA issued a strategy for implementing the UST program in Indian Country. 71 FR 46471 (8/14/06).
  • EPA entered into a proposed de minimis administrative agreement under CERCLA concerning the Mercury Refining Superfund site in Colonie and Guilderland, New York, that requires the settling parties to pay a combined total of $2,160,742.74 in cleanup costs into a special account. 71 FR 49450 (8/23/06).

MINING:

  • OSM approved Mississippi's partial abandoned mine land reclamation plan under SMCRA. 71 FR 50339 (8/25/06).

PUBLIC LAND:

  • FWS revised the jurisdiction of the Federal Subsistence Management Program by adding submerged lands and waters in the Makhnati Island area near Sitka, Alaska. 71 FR 49997 (8/24/06).
  • FWS and the U.S. Forest Service amended the regulations governing subsistence use of fish and wildlife in Alaska by creating an additional subsistence resource region for the Kenai Peninsula. 71 FR 46400 (8/14/06).
  • FWS and the U.S. Forest Service proposed to amend the regulations governing subsistence use of fish and wildlife in Alaska by creating an additional subsistence resource region for the Kenai Peninsula; see above for direct final rule. 71 FR 46427 (8/14/06).
  • FWS proposed a rule that would establish regulations in Alaska for hunting and trapping seasons, harvest limits, methods, and means related to taking of wildlife for subsistence uses during the 2007 to 2008 regulatory year. 71 FR 46423 (8/14/06).
  • FWS proposed a rule that would revise the list of nonrural areas in Alaska identified by the federal subsistence board. 71 FR 46416 (8/14/06).

TOXIC SUBSTANCES:

  • EPA added certain voluntary High Production Volume Challenge Program orphan (unsponsored) chemicals to the TSCA §8(d) Health and Safety Data Reporting rule. 71 FR 46130 (8/16/06).
  • EPA announced the release of a draft brochure entitled Current Best Practices for Preventing Asbestos Exposure Among Brake and Clutch Repair Workers that, when finalized, is intended to provide information for automotive professionals and home mechanics on preventing exposure to brake and clutch dust that may contain asbestos fibers. 71 FR 50060 (8/24/06).

WATER:

  • The U.S. Coast Guard announced the enactment of the Delaware River Protection Act of 2006, which amends the Oil Pollution Act's liability limits for discharges and substantial threats of discharge of oil from vessels. 71 FR 47737 (8/18/06).
  • EPA, pursuant to CWA §303(d)(2), announced the availability of its decisions identifying water quality limited segments and associated pollutants in Massachusetts to be listed. 71 FR 46481 (8/14/06).
  • EPA announced that Utah revised its Public Water System Supervision Primacy Program by adopting federal regulations for the Arsenic Rule and Filter Backwash Recycling Rule. 71 FR 50062 (8/24/06).
  • EPA announced the availability of the draft TMDL report for Squaw Creek and Stillwell Creek in Wisconsin. 71 FR 50419 (8/25/06).

WILDLIFE:

  • FWS created a special rule for the southwest Alaska distinct population segment of the northern sea otter. 71 FR 46864 (8/15/06).
  • FWS proposed to designate critical habitat for 11 species of Hawaiian picture-wing flies; the proposed critical habitat is located in the city and county of Hawaii, Honolulu, Kauai, and Maui. 71 FR 46993 (8/15/06).
  • FWS proposed to designate critical habitat in the U.S. Virgin Islands for the endangered plant Catesbaea melanocarpa (no common name). 71 FR 48883 (8/22/06).
  • FWS announced its 90-day findings for two petitions to remove the island night lizard from the list of endangered and threatened wildlife and found that listing may be warranted based on one of the petitions; the agency will issue a 12-month finding on the petition following a status review of the species. 71 FR 48900 (8/22/06).
  • FWS announced its 90-day finding on a petition to list 16 insect species from the Algodones Sand Dunes, Imperial County, California, as threatened or endangered and determined that listing is not warranted at this time. 71 FR 47765 (8/18/06).
  • FWS proposed special migratory bird hunting regulations for certain tribes on federal Indian reserves, off-reservation trust lands, and ceded lands for the 2006-2007 migratory bird hunting season. 71 FR 47461 (8/17/06).
  • FWS announced the availability of a final revised recovery plan for the endangered Chittenango ovate amber snail. 71 FR 48554 (8/21/06).
  • FWS announced the availability of the final comprehensive conservation plan and EIS for the Sweetwater Marsh and South San Diego Bay Units of the San Diego Bay National Wildlife Refuge. 71 FR 47824 (8/18/06).
  • FWS announced the availability of the final comprehensive conservation plan for the Great Dismal Swamp and Nansemond National Wildlife Refuges. 71 FR 47510 (8/17/06).
  • FWS announced the availability of the draft comprehensive conservation plan and EA for the Rachel Carson National Wildlife Refuge. 71 FR 47511 (8/17/06).
  • NMFS published its List of Fisheries for 2006, which reflects new information on interactions between commercial fisheries and marine mammals. 71 FR 48802 (8/22/06).
  • NMFS issued a final rule requiring sea turtle conservation measures for certain sea scallop dredge vessels fishing from May 1st through November 30th each year to help reduce mortality and injury to endangered and threatened sea turtles. 71 FR 50361 (8/25/06).
  • NMFS announced the availability of a proposed recovery plan for the Hood Canal and Eastern Strait of Juan de Fuca Summer Chum salmon evolutionarily significant unit. 71 FR 47180 (8/16/06).
  • NMFS announced the availability of the draft updated recovery plan for the U.S. distinct population segment of smalltooth sawfish. 71 FR 49418 (8/23/06).

DOJ NOTICES OF SETTLEMENTS:

  • United States v. A. Finkl & Sons Co., No. 06 C 4297 (N.D. Ill. Aug. 11, 2006). A settling CAA defendant that violated the new source performance standards (NSPS) for electric arc furnaces and argon-oxygen decarburization vessels at its steel foraging plant in Chicago, Illinois, must comply with all applicable requirements of the NSPS, must apply for an amendment to its Title V permit to provide for compliance with the emissions limitations and other requirements of the NSPS, must pay a $75,000 civil penalty, and must spend $620,000 on two supplemental environmental projects. 71 FR 47830 (8/18/06).
  • United States v. Midland Hapster Refining Co., No. 06-1200-JTM (D. Kan. July 10, 2006). Settling CERCLA defendants must pay $110,000.03 in costs incurred at the 57th and North Broadway Superfund site in Wichita, Kansas, and must make additional payments of a percentage of the gross income derived from certain property at the site. 71 FR 47830 (8/18/06).
  • United States v. Asarco Inc., No. C91-5528B (W.D. Wash. July 27, 2006). Under a proposed second amendment to a consent decree concerning property that is part of the Commencement Bay Nearshore/Tideflats Superfund site, should the settling CERCLA defendant sell its property, the purchaser must assume the defendant's cleanup obligations on the property as well as certain cleanup obligations on the site adjacent to the purchased property; in addition, the United States must release its existing lien in return for a payment of $1,500,000 at closing and contingent payments that could total $4,000,000 based on revenue from the development of the property. 71 FR 47246 (8/16/06).
  • United States v. City of Brockton, No. 06-11334-NMG (D. Mass. Aug. 2, 2006). A settling CWA defendant who allegedly failed to comply with the discharge permit for its POTW must pay a $120,000 civil penalty, must perform three supplemental environmental projects at a cost of $180,000, and must institute necessary improvements at the POTW costing an estimate of $95 million. 71 FR 47247 (8/16/06).
  • United States v. ConocoPhillips Co., No. 06-CV-195-J (D. Wyo. Aug. 1. 2006). A settling CWA and Oil Pollution Act defendant must pay the United States $1,037,500 and must release any claims it might have against the Oil Spill Liability Trust Fund relating to the Glenrock Oil Seep Superfund site outside Glenrock, Wyoming, or arising out of response actions at the Superfund site for which past costs were incurred. 71 FR 47247 (8/16/06).
  • United States v. University of Miami, No. 06-22000-CIV-JORDAN (S.D. Fla. Aug. 8, 2006). A settling CERCLA defendant must pay $393,473 in past response costs incurred at a Superfund site in Perrine, Florida. 71 FR 50084 (8/24/06).
  • United States v. Macalloy Corp., No. 2:06-cv-02265-DCN (D.S.C. Aug. 14, 2006). Settling CERCLA defendants and two settling federal agencies must pay $575,000 in natural resource damages resulting from the release of hazardous substances at the Macalloy Superfund site in Charleston, South Carolina. 71 FR 49474 (8/23/06).
  • United States v. FMC Corp., No. 01-0476 (JCL), (D.N.J. Aug. 9, 2006). A settling CERCLA defendant must pay $14,500,000, plus interest, in U.S. response costs incurred at the Higgins Farm Superfund site in Franklin Township, New Jersey; must pay $2 million, plus interest, in past U.S. response costs incurred at the Higgins Disposal Superfund site in Kingston, New Jersey; and must pay $225,000 to reimburse the United States for interim costs incurred at the Higgins Disposal Superfund site. 71 FR 49474 (8/23/06).
  • United States v. NCH Corp., No. 98-5268 (SDW) (D.N.J. Aug. 9, 2006). A settling CERCLA defendant must take over the operation and maintenance of the Higgins Farm Superfund site groundwater treatment system in Franklin Township, New Jersey; must conduct a groundwater migration investigation; must conduct additional studies and/or response actions EPA determines are necessary as a result of the investigation; must reimburse EPA's oversight costs relating to the groundwater investigation; must pay $1,000,000 in past and future U.S. response costs incurred at the site; must pay $565,000 to reimburse the United States for the interim costs incurred at the site; and must pay $500,000 in past and future U.S. response costs incurred at the Higgins Disposal Superfund site in Kingston, New Jersey. The United States, on behalf of DOE, must pay $2,800,000 to the Superfund in past costs incurred at the Higgins Farm Superfund site; must pay the settling defendant $2,000,000 in future costs to be incurred at the Higgins Farm Superfund site; and must pay $4,500,000 to the Superfund in past and future costs incurred at the Higgins Disposal Superfund site. 71 FR 49475 (8/23/06).
  • United States v. New York City Transit Authority, No. 04-00732 (S.D.N.Y. Aug. 7, 2006). A settling CAA defendant must pay a civil penalty of $165,000 for violating EPA's stratospheric ozone protection regulations, which govern the maintenance and repair of commercial air conditioning systems to prevent the leakage of ozone-destroying CFCs. 71 FR 49475 (8/23/06).
  • United States v. Meldahl dba SJM Properties, No. 06-3202 JNE/JJG (D. Minn. Aug. 3, 2006). A settling Lead-Based Paint Hazard Act defendant must certify that he is complying with residential lead paint notification requirements, must pay a $10,000 civil penalty, must develop and comply with a Hazard Reduction Plan, must complete hazard abatement for the properties, must submit annual reports on the progress of the hazard abatement work, and must implement ongoing operations and maintenance of any window replacement or hazard reduction work. 71 FR 49475 (8/23/06).
  • United States v. Mid-Valley Pipeline Co., No. 06-57-KKC (E.D. Ky. Aug. 15, 2006). Settling CWA defendants involved in a crude oil spill in Kentucky must pay a $2.57 million civil penalty, must pay $230,000 for a state environmental project, must perform injunctive relief related to the enhancement of spill response preparation, and must reimburse Kentucky for certain response costs; the defendants must also pay a $300,000 civil penalty for a similar spill in Louisiana. 71 FR 48555 (8/21/06).

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

THE CONGRESS

Congress is currently on recess but will reconvene on September 5, 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:

Alaska Connecticut Louisiana Minnesota North Carolina Arizona Illinois Maine Nebraska Rhode Island California Iowa Maryland New Jersey   Colorado Kentucky Michigan New York  

ALASKA

Toxic Substances:

Water:

Wildlife:

ARIZONA

Hazardous and Solid Waste:

  • The Department of Environmental Quality has proposed rules that will update and revise Title 18 of the Arizona Administrative Code, Chapter 7, Article 2, concerning Soil Remediation Standards, to make it consistent with current scientific data and statutory requirements. Public hearings will be held October 11 and 12, 2006. Comments are due October 13, 2006. See http://www.azdeq.gov/function/laws/draft.html#art7

Water:

  • The Department of Environmental Quality will hold a public hearing on a proposal to repeal and amend the licensing time-frame (LTF) rule (18 A.A.C. 1, Art. 5) and to repeal, amend, and add licenses to LTF tables as required to conform to licensing program requirements that have evolved in response to statutory and rulemaking changes. The rulemaking would also clarify the agency's obligations to act under Article 7.1 of the Administrative Procedure Act (the LTF statutes) based on its actual experience under the rule. The hearing will be held September 29, 2006. Comments are due September 29, 2006. See http://www.azdeq.gov/function/laws/draft.html#art7

CALIFORNIA

Air:

  • The Air Resources Board will conduct a public hearing to consider adoption of amendments to Title 13, California Code of Regulations, §§1956.1 and 1956.8, California’s heavy-duty diesel engine regulations and test procedures. The hearings will be held September 28 and 29, 2006. Comments are due September 27, 2006. See http://www.arb.ca.gov/regact/inuse06/notice.pdf
  • The Air Resources Board will conduct a public hearing to consider adopting amendments to the existing Hexavalent Chromium Airborne Toxic Control Measure for Chrome Plating and Chromic Acid Anodizing Operations. The amendments would further reduce the public’s exposure to hexavalent chromium by reducing hexavalent chromium emissions. The hearings will be held September 28 and 29, 2006. Comments are due September 27, 2006. See http://www.arb.ca.gov/regact/chrom06/cpnotice.pdf
  • The Air Resources Board will conduct a public hearing to review the technical status and implementation of California’s on-board diagnostic (OBD) II requirements. The Board will consider amendments to the OBD II regulation to update the diesel monitoring requirements to be more consistent with the newly adopted heavy-duty OBD regulation, to improve incorporation of OBD II into inspection and maintenance programs, to clarify and improve the regulation where necessary, and to make clarifications to the OBD II enforcement provisions, among other things. The Board will also consider amendments to the emission warranty regulations to update the references to emission-related parts that are presently used in emission control technology and to simplify the requirements where possible. The hearings will be held September 28 and 29, 2006. Comments are due September 28, 2006. See http://www.arb.ca.gov/regact/obdii06/obdnotice.pdf
  • The South Coast Air Quality Management District is considering the amendment of Regulation IX, Standards of Performance for New Stationary Sources, to update the current regulation to mirror final U.S. EPA regulations concerning the addition of alternative emissions monitoring requirement; corrections and definitions; and establishing a “cap-and-trade” program for mercury emissions from coal-fired electric utility generating units.  A public hearing will be held September 8, 2006. Comments are due August 29, 2006. See http://www.aqmd.gov/pub_edu/nph_reg_ix_Sept_8_06.html
  • The South Coast Air Quality Management District is considering the adoption of Proposed Rule 1315, New Source Review Tracking System, to formalize its accounting methodology for tracking credits to and debits from its new source review (NSR) offset accounts and to demonstrate programmatic equivalency between the its NSR program and federal NSR requirements. A public hearing will be held September 8, 2006. Comments are due August 29, 2006. See http://www.aqmd.gov/pub_edu/nph_1315_Sept_8_06.html
  • The South Coast Air Quality Management District is considering the amendment of Rule 1302, Definitions, and Rule 1309.1, Priority Reserve System. The amendments are intended to ensure emission credits are available to mitigate the emission impacts from new biosolids processing facilities, electrical generating facilities, and energy projects of regional significance. A public hearing will be held September 8, 2006. Comments are due August 29, 2006. See http://www.aqmd.gov/pub_edu/nph_1302-13091_Sept_8_06.html
  • The South Coast Air Quality Management District is considering the adoption of proposed Rule 410, which would reduce odors from transfer stations and material recovery facilities. A public hearing will be held October 6, 2006. Comments are due September 1, 2006. See http://www.aqmd.gov/pub_edu/notice_410_Aug_24_06.html

Toxic Substances:

  • The Office of Environmental Health Hazard Assessment of the California Environmental Protection Agency added propoxur (CAS No. 114-26-1) to the list of chemicals known to the state to cause cancer for purposes of the Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65 ). The listing was effective August 11, 2006. See http://oehha.org/prop65/docs_admin/081106listprop.html

Water:

  • The comment period for the "Statewide Policy for Once-Through Cooling," which would implement federal requirements under CWA §316(b), has been extended to September 15, 2006. CWA §316(b) requires that the location, design, construction, and capacity of cooling water intake structures reflect the best technology available for minimizing adverse environmental impacts. See http://www.waterboards.ca.gov/
  • The State Water Board extended the public comment period for the California Ocean Plan--Model Ocean Discharge Monitoring Amendments, to September 1, 2006. See http://www.waterboards.ca.gov/
  • The public comment period for the California Ocean Plan/Areas of Special Biological Significance--Special Protections to Address Storm Water and Nonpoint Source Discharges, has been extended to September 1, 2006. See http://www.waterboards.ca.gov/
  • The State Water Board has extended the deadline for public comment on the Storm Water Panel Recommendations on the Feasibility of Numeric Effluent Limits Applicable to Storm Water Discharges to September 1, 2006. See http://www.waterboards.ca.gov/ 

COLORADO

Hazardous and Solid Waste:

  • The Colorado Hazardous Waste Commission will hold a public hearing on proposed amendments to §262.34(a)(2) (tracking accumulation time for tanks), §§261.5 and 262.13 (de minimis conditionally exempt small quantity generator generation rates), §265.192 (tank requirements), and §100.32 (effective date of permits). The hearing will be held September 19, 2006. Comments are due September 5, 2006. See http://www.cdphe.state.co.us/op/hwc/hwchom.asp

Water:

  • The Colorado Water Quality Control Commission will hold a public hearing on a proposal to adopt revisions to current temporary modifications of water quality standards for multiple segments in the Classifications and Numeric Standards for the Arkansas River Basin, Regulation #32 (5 CCR 1002-32); the Upper Colorado River Basin and North Platte River (Planning Region 12), Regulation #33 (5 CCR 1002-33); the Rio Grande Basin, Regulation #36 (5 CCR 1002-36); the Lower Colorado River Basin, Regulation #37 (5 CCR 1002-37); and the South Platte River Basin, Laramie River Basin, Republican, Smoky Hill River Basin, Regulation #38 (5 CCR 1002-38). A prehearing conference will be held November 14, 2006. The hearing will be held December 11 , 2006. See http://www.cdphe.state.co.us/op/wqcc/MeetingsandHearings/HearingNotices/rulemaking/TMnotice1206.pdf

CONNECTICUT

Wildlife:

  • The Connecticut Department of Environmental Protection will hold a public hearing on recreational fishing regulations for scup, summer flounder, and black sea bass and on the issue of "highgrading." The hearing will be held September 7, 2006. See http://dep.state.ct.us/calendar/viewev.asp?id=2618
  • The Connecticut Department of Environmental Protection will hold a public hearing to receive public comments on proposed changes to regulations for inland fisheries. The hearing will be held September 14, 2006.Comments are due September 28, 2006. See http://dep.state.ct.us/calendar/viewev.asp?id=2614

ILLINOIS

Air:

IOWA

Water:

KENTUCKY

Air:

  • The Kentucky Environmental and Public Protection Cabinet will hold a public hearing on September 25, 2006, to receive comments on three proposed regulations concerning the federally mandated Clean Air Interstate Rule and associated revisions to the Kentucky SIP. See http://www.air.ky.gov/homepage_repository/Public+Hearings.htm

LOUISIANA

Air:

  • The Department of Environmental Quality announced that a §111(d) plan is proposed for coal-fired electrical steam generating units in Louisiana to comply with provisions of the federal Clean Air Mercury Rule. A public hearing will be held September 26, 2006. Comments are due September 26, 2006. See http://www.deq.louisiana.gov/portal/portals/0/planning/regs/pdf/0608Pot1.pdf
  • The Department of Environmental Quality proposed to amend LAC 33:I.3908, 3919, and 3931. The amendments would require the owner or operator of any source that releases an unauthorized amount of a toxic air pollutant at a rate greater than the reportable quantity listed in LAC 33:I.3931 to determine compliance with the appropriate ambient air standard listed in LAC 33:III.5112, Table 51.2, when the modeling is requested by the department. The amendments would also modify the table of reportable quantities in LAC 33.I.3931 for total highly reactive volatile organic compounds. A public hearing will be held September 26, 2006. Comments are due October 3, 2006. See http://www.deq.louisiana.gov/portal/portals/0/planning/regs/pdf/OS071pro.pdf
  • The Department of Environmental Quality has renewed and revised Emergency Rule AQ240E5, concerning the use of new or revised emissions estimation methods for annual compliance certifications under LAC 33:III.507.H. This Emergency Rule became effective on August 20, 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/AQ240E6.pdf

Water:

  • The Department of Environmental Quality proposed to amend LAC 33:IX.1105, 1109, and 1113. The proposed rule would amend the water quality standards in LAC 33:IX, Chapter 11 to protect wetland areas that may receive treated wastewater effluent. A public hearing will be held September 26, 2006. Comments are due October 3, 2006. See http://www.deq.louisiana.gov/portal/portals/0/planning/regs/pdf/WQ068pro.pdf

MAINE

Hazardous and Solid Waste:

  • The Department of Environmental Protection amended Chapters 1, 3, 5, and 6, concerning the certification of USTs. The amendments add ethical standards of practice for installers, removers, and inspectors to require certified persons having knowledge of violations of the Board’s enabling statute to provide the Board information and assistance necessary to the final determination of such violation. The amendments became effective on August 9, 2006. See http://www.maine.gov/sos/cec/rules/notices/2006/081606.htm

Water:

  • The Department of Environmental Protection will be requesting permission from the Board of Environmental Protection to post amendments to Chapter 305, Permit by Rule, and 310, Wetlands and Waterbodies Protection Rules, this fall. Permission is expected to be requested on September 7, 2006. See http://www.maine.gov/dep/blwq/rules/NRPA/2006/index.htm

Wildlife:

MARYLAND

Air:

MICHIGAN

Hazardous and Solid Waste:

  • The Department of Environmental Quality has announced the inauguration of the Refined Petroleum Temporary Reimbursement Program (TRP), which will address leaking UST sites by reimbursing owners and operators for a portion of newly incurred cleanup costs associated with releases from petroleum UST systems. Starting November 1, 2006, the Department will be able to accept up to 900 participants in the TRP program. See http://www.michigan.gov/deq/0,1607,7-135-3308-149448--,00.html

MINNESOTA

Hazardous and Solid Waste:

NEBRASKA

Air:

  • The Nebraska Department of Environmental Quality, Air Quality Division, has initiated a rulemaking process to respond to U.S. EPA's Clean Air Mercury Rule. The Division expects to propose mercury regulations to the Environmental Quality Council at a hearing on December 1, 2006. See http://www.deq.state.ne.us/

NEW YORK

Land Use :

  • The Department of Environmental Conservation proposed to repeal 6 NYCRR Part 192 and adopt a new 6 NYCRR Part 192. This new regulation will allow the planting of disease-resistant or immune cultivars of the genus Ribes (currants and gooseberries). Comments are due September 23, 2006. See http://www.dec.state.ny.us/website/dlf/regs/index.html

Water:

NORTH CAROLINA

Toxic Substances:

  • The Board of Agriculture proposed to amend 02 NCAC 48B .0121, concerning fertilizer products containing nickel. Comments are due October 16, 2006. The proposed effective date is December 1, 2006. See http://www.ncoah.com/rules/register/Volume21Issue04.pdf (21 N.C. Register 350)

RHODE ISLAND

Wildlife:

  • The Department of Environmental Management proposed amendments to the Rhode Island Marine Fisheries Regulations. It proposed changes to the floating fish trap regulations; to adopt Safe Harbor regulations; and to adopt cod, monkfish, and sea scallop regulations to address loopholes between state regulations and federal fishery management plans. A public hearing will be held September 11, 2006. Comments are due September 11, 2006. See http://www.dem.ri.gov/programs/bnatres/fishwild/pn091106.htm

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

INTERNATIONAL

PROPOSED SHRIMP FARM RULES PROTECT ASIAN MANGROVES:

Next month, the U.N.'s Food and Agriculture Organization (FAO) will consider the adoption of tougher guidelines that will regulate the asian shrimp farming industry, which is responsible for the devastation of mangrove forests throughout the region. The Network of Aquaculture Centres in Asia-Pacific published eight principles that an FOA panel will consider for adoption; once adopted, the guidelines would be incorporated in the national shrimp farming policies of different governments. The rules relate to such issues as shrimp farm location, design and construction, shrimp feeding, health and nutrition, as well as food safety issues and concerns over sharing a farm's benefits with surrounding communities. See http://today.reuters.com/news/articlenews.aspx?type=scienceNews&storyID=2006-08-22T101503Z_01_KLR307792_RTRUKOC_0_US-ENVIRONMENT-MALAYSIA-SHRIMP.xml

GAMBIA LAUNCHES NEW ENVIRONMENTAL PLAN:

Gambian Secretary of State for Forestry and the Environment, Hon. Edward Singhateh, has officially launched the National Capacity Self-Assessment Strategy and Action Plan (NCSA), an ongoing global initiative funded by the Global Environment Facility (GEF). The NCSA, developed by the U.N. Environmental Program (UNEP) and the GEF, provides developing countries the opportunity to assess their capacity needs in the areas of biodiversity, conservation, climate change, and desertification. Singhateh said, "[this] global project was conceptualized to assess the capacities of [developing] countries with a view of strengthening the national institutions and processes to enable these countries meet their international obligations as required under treaties and conventions." See http://www.thegambiajournal.com/artman/publish/article_274.shtml

SOMALIAN ISLAMIC COURTS BAN EXPORTS OF CHARCOAL AND RARE WILDLIFE:

The Executive Committee of the Union of Islamic Courts (UIC) issued a directive banning exports of charcoal and rare birds and animals after a full committee meeting agreed to the ban. Sheikh Abdulkadir Ali Omar, the UIC Vice-Chairman, said, "the decision was reached after the committee was briefed on the dangers posed by the indiscriminate cutting of our trees." The directive has been sent to all those involved in the charcoal trade and, according to Omar, "[it] will be enforced in all areas under UIC control." See http://www.irinnews.org/report.asp?ReportID=55234&SelectRegion=Horn_of_Africa&SelectCountry=SOMALIA

CHINA ISSUES NEW POLICY TO REDUCE ELECTRONIC WASTE

The Chinese State Environmental Protection Administration has issued a new "guiding technical document" to reduce the country's electronic waste and encourage "polluter responsibility." The rules encourage manufacturers to recycle and extend the working life of components, provide information about toxins on the products, and seek non-toxic replacements for current technology. However, the new announcement did not delineate penalties for violations. See http://www.enn.com/today.html?id=11121

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

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