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Weekly Update Volume 36, Issue 27

09/25/2006

LITIGATION

CWA, SHIPPING VESSEL DISCHARGES:

A district court issued a permanent injunction ordering EPA to regulate shipping vessel discharges under the CWA by September 30, 2008. In a previous decision, the court ruled that a 30-year regulation that exempts all effluent discharges "incidental to the normal operation of a vessel" from the NPDES program violates the CWA. At issue here, therefore, was the remedy. Although ballast water discharges were a primary concern of the environmental groups that challenged the regulation, the court denied EPA's request to limit the remedy to such discharges because the groups initially sought to invalidate the entire regulation. And given that the regulation is plainly contrary to the congressional intent embodied in the CWA, the court reasoned that the entire regulation should be set aside. But rather than vacating the rule immediately, the court decided to give EPA two years to address the problem. Northwest Environmental Advocates v. United States Environmental Protection Agency, No. C 03-05760 SI, 36 ELR 20194 (N.D. Cal. Sept. 18, 2006) (Illston, J.) (21 pp.).

NEPA, ESA, ROADLESS RULE:

A district court held that the U.S. Forest Service violated NEPA and the ESA when it repealed the nationally uniform "roadless area conservation rule" and replaced it with a less protective "state petitions rule." The roadless rule prohibited road construction and reconstruction and timber harvesting, subject to certain limited exceptions, in inventoried roadless areas on a uniform nationwide basis. The state petitions rule eliminated the uniform national protections of roadless areas, reverting to the prior regime of forest-by-forest plans, and added an optional state-by-state petitioning process to alter the level of protection of roadless areas within individual state borders. In adopting the state petitions rule, the Forest Service failed to conduct any environmental analysis under NEPA. Because the rule did not fit within the categorical exclusion for routine administrative procedures, and because the "no action" alternative included in the 2000 final EIS for the roadless rule did not satisfy the Forest Service's environmental review obligations under NEPA for the state petitions rule, the Forest Service violated NEPA. Similarly, the Forest Service violated the ESA's consultation requirements because its determination that the repeal of the roadless rule would have no impact on threatened or endangered species was arbitrary and capricious. The court, therefore, reinstated the 2001 roadless rule and enjoined any management activities contrary to that rule. However, the Tongass National Forest will remain exempt from the roadless rule in light of a prior settlement. People v. United States Department of Agriculture, Nos. C05-03508, -04038, 36 ELR 20197 (N.D. Cal. Sept. 20, 2006) (LaPorte, J.) (55 pp.).

NEPA, FLPMA, OFF-ROAD VEHICLES (ORVs):

The Tenth Circuit upheld several ORV restrictions imposed by the BLM in certain parts of Utah. The BLM complied with FLPMA and NEPA when it enacted the restrictions, the BLM's decision to close various public lands to ORV use was supported by substantial evidence, and the agency's reasoning in doing so was not implausible. In addition, the group challenging the restrictions lacked standing under the National Defense Authorization Act because its interest in using the public lands for ORV use does not fall within the zone of interests protected by the Act. The group also lacked standing to challenge the posting of signs encouraging, but not requiring, ORV use on particular trails. Utah Shared Access Alliance v. Carpenter, No. 05-4009, 36 ELR 20196 (10th Cir. Sept. 19, 2006) (23 pp.).

NEPA, NATIONAL HISTORIC PRESERVATION ACT (NHPA):

The Fifth Circuit upheld HUD's evaluation of environmental and historic preservation impacts of a revitalization project in New Orleans. In issuing a FONSI and EA in lieu of an EIS for the project, HUD did not act arbitrarily, capriciously, or contrary to law in deciding that the project did not cause significant effects to human environment. In addition, HUD complied with the NHPA's procedural requirements, and its reliance on a National Park Service letter that the project would have no adverse effect on National Historic Landmarks in the area was not arbitrary or capricious. HUD, therefore, need not cease its federal funding of the project at this time. Coliseum Square Ass'n, Inc. v. Jackson, Nos. 03-30875, 04-30522, 36 ELR 20195 (5th Cir. Sept. 18, 2006) (92 pp.).

APA, FINAL AGENCY ACTION:

The Ninth Circuit held that the U.S. Forest Service's issuance of annual operating instructions to permittees who graze livestock on national forest land constitutes final agency action for purposes of judicial review under the APA. The annual operating instructions are a discrete, site-specific action representing the Forest Service's last word from which binding obligations flow, have a direct and immediate effect on the day-today operations of the permit holder, and impose substantial and intricate legal obligations on the permit holder. Consequently, the court reversed the lower court's dismissal order and remanded the matter for determination on the merits. Oregon Natural Desert Ass'n v. United States Forest Service, No. 05-35637, 36 ELR 20198 (9th Cir. Sept. 21, 2006) (27 pp.).

ELECTRICITY, CALIFORNIA ENERGY CRISIS:

The Ninth Circuit dismissed petitions for review of two FERC orders concerning the calculation of settlement statements relating to the California energy crisis. The California Independent System Operator (Cal-ISO) sought review of a FERC order in which it declined Cal-ISO's request to re-run certain settlement statements to correct instances of "doubling selling." But the court lacked subject matter jurisdiction over this petition because it implicates FERC's prosecutorial discretion. And the court dismissed an electric company's petition for review because it was an impermissible collateral attack on a prior FERC order. Pacific Gas & Electric Co. v. Federal Energy Regulatory Commission, No. 04-70635, 36 ELR 20193 (9th Cir. Sept. 18, 2006) (18 pp.).

FOOD, DRUG, AND COSMETIC ACT (FDCA), PREEMPTION:

A California appellate court held that the FDCA preempts individuals' state law claims against several grocery stores for selling artificially colored farmed salmon without disclosing to consumers the artificial coloring. In enacting FDCA §337(a), Congress made clear its intention to preclude private enforcement of the FDCA and that a state law private right of action based on an FDCA violation would frustrate the purposes of exclusive federal and state governmental prosecution of the Act. In re Farm Raised Salmon Cases, No. B182901, 36 ELR 20178 (Cal. App. 2d Dist. Aug. 31, 2006) (15 pp.).

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

THE FEDERAL AGENCIES

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

AIR:

  • EPA finalized Methods 203A, 203B, and 203C for determining the visibility of emissions using data reduction procedures that are more appropriate for SIP rules than Method 9, the method currently used. 71 FR 55119 (9/21/06).
  • EPA proposed to expand and amend the list of acceptable substitutes for ozone-depleting substances through the significant new alternatives policy program. 71 FR 55140 (9/21/06).
  • EPA amended the credit generation provisions of the geographic phase-in area (GPA) gasoline sulfur program to yield the correct number of credits for refineries and importers that produce GPA gasoline and to eliminate the generation of windfall credits by refineries or importers that have gasoline sulfur baselines below 150 parts per million. 71 FR 54908 (9/20/06).
  • SIP Approvals: Maine (motor vehicle emissions budgets) 71 FR 54985 (9/20/06). Utah (revised definitions) 71 FR 55284 (9/22/06). Wisconsin (volatile organic compound (VOC) control requirements for yeast manufacturing) 71 FR 55287 (9/22/06).
  • SIP Proposals: Utah (revised definitions; see above for direct final rule) 71 FR 55402 (9/22/06). Wisconsin (VOC control requirements for yeast manufacturing; see above for direct final rule) 71 FR 55403 (9/22/06).

HAZARDOUS WASTE:

  • EPA entered into a settlement under CERCLA concerning the P&W Electric Superfund site in Yorkville, Tennessee, for reimbursement of past response costs. 71 FR 55472 (9/22/06).

MINING:

  • OSM approved an amendment to Colorado's abandoned mine land reclamation plan under SMCRA. 71 FR 54583 (9/18/06).
  • OSM, with one exception, approved an amendment to Kentucky's regulatory program under SMCRA. 71 FR 54586 (9/18/06).
  • OSM removed six required amendments to Pennsylvania's regulatory program under SMCRA because they are no longer necessary for the program to be consistent with the corresponding federal regulations. 71 FR 54590 (9/18/06).
  • OSM announced the receipt of a proposed amendment to West Virginia's abandoned mine land reclamation plan under SMCRA; the amendment would update and improve the effectiveness of the state plan. 71 FR 54601 (9/18/06).

PESTICIDES:

  • EPA announced the availability of a draft Pesticide Registration Notice entitled Use of Antimicrobial Pesticide Products in Heating, Ventilation, Air Conditioning and Refrigeration Systems. 71 FR 55471 (9/22/06).

PUBLIC LANDS:

  • The Forest Service announced that five Forest Service Recreation Resource Advisory Committees will be established to provide BLM and the Forest Service recommendations regarding fees on recreation lands and waters. 71 FR 55416 (9/22/06).

TOXIC SUBSTANCES:

  • EPA announced the availability of a final report titled, Approaches for the Application of Physiologically Based Pharmacokinetic (PBPK) Models and Supporting Data in Risk Assessment. 71 FR 55469 (9/22/06).

WILDLIFE:

  • FWS announced the availability of the final comprehensive conservation plan for the Chesapeake Marshlands National Wildlife Refuge (NWR) Complex in Maryland, which includes the Blackwater, Martin, and Susquehanna NWRs. 71 FR 54836 (9/19/06).
  • FWS announced the availability of a recovery plan for the San Benito evening-primrose, a plant species found primarily in the Clear Creek management area in San Benito County, California. 71 FR 54837 (9/19/06).
  • FWS announced the availability of a recovery plan for the Newcomb's snail, a threatened species endemic to the Hawaiian Island of Kaua`i. 71 FR 54682 (9/18/06).
  • FWS announced the availability of a draft recovery plan for listed species of the Rogue Valley Vernal Pool and Illinois Valley Wet Meadow ecosystems. 71 FR 55508 (9/22/06).

MISCELLANEOUS:

  • EPA announced that its Headquarters Library will close its doors to walk-in patrons and visitors on October 1, 2006, due to budget reductions and the increasing number of employees and the public requesting information electronically. 71 FR 54986 (9/20/06).
  • EPA announced temporary changes to the EPA Docket Center Public Reading Room in Washington, D.C., due to construction starting on September 22, 2006. 71 FR 54815 (9/19/06).
  • NOAA announced the establishment of the NOAA Climate Change Science Program Product Development Committee for Synthesis and Assessment Product 5.3; the committee will consist of no more than 30 appointed members and will function solely as an advisory body in compliance with the provisions of the Federal Advisory Committee Act. 71 FR 54615 (9/18/06).

DOJ NOTICE OF SETTLEMENT:

  • United States v. City of New Orleans, No. 02-3618 (E.D. La. Aug. 31, 2006). A settling CERCLA defendant must pay $335,000 in past response costs incurred at the Agriculture Street Landfill in New Orleans, Louisiana. 71 FR 55014 (9/20/06).

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

THE CONGRESS

CHAMBER ACTION:

  • S. 260 (Partners for Fish and Wildlife Act), which would authorize the Secretary of the Interior to provide technical and financial assistance to private landowners to restore, enhance, and manage private land to improve fish and wildlife habitats through the Partners for Fish and Wildlife Program, was passed by the House, clearing the measure for the President. 152 Cong. Rec. H6797 (daily ed. Sept. 20, 2006).
  • S. 2463 (New England Wilderness Act), which would designate certain land in New England as wilderness for inclusion in the National Wilderness Preservation system and certain land as a National Recreation Area, was passed by the Senate. 152 Cong. Rec. S9732 (daily ed. Sept. 19, 2006).
  • S. Res. 580 (National Pollinator Week), which would designate June 24 through June 30, 2007, as "National Pollinator Week" to recognize the importance of pollinators to ecosystem health and agriculture in the United States and to increase awareness and support for protecting and sustaining pollinators, was passed by the Senate. 152 Cong. Rec. S10004 (daily ed. Sept. 21, 2006).
  • H.R. 2334 (City of Oxnard Water Recycling and Desalination Act of 2005), which would amend the Reclamation Wastewater and Groundwater Study and Facilities Act to reauthorize the Secretary of the Interior to participate in the design, planning, and construction of permanent facilities for the GREAT project to reclaim, reuse, and treat impaired waters in the area of Oxnard, California, was passed by the House. 152 Cong. Rec. H6799 (daily ed. Sept. 20, 2006).
  • H.R. 3408 (Livestock Mandatory Reporting Act), which would reauthorize the Livestock Mandatory Reporting Act of 1999 and amend the swine reporting provisions of that Act, was passed by the Senate, clearing the measure for the President. 152 Cong. Rec. S9852 (daily ed. Sept. 20, 2006).
  • H.R. 4957 (Tylersville Fish Hatchery Conveyance Act), which 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, was passed by the House. 152 Cong. Rec. H6794 (daily ed. Sept. 20, 2006).
  • H.R. 5450 (NOAA), which would provide an organic act for NOAA, was passed by the House. 152 Cong. Rec. H6757 (daily ed. Sept. 20, 2006).

COMMITTEE ACTION:

  • S. 374 (tribal lands) was reported by the Committee on Indian Affairs. S. Rep. No. 109-344, 152 Cong. Rec. S9786 (daily ed. Sept. 20, 2006). The bill would provide compensation to the Lower Brule and Crow Creek Sioux Tribes of South Dakota for damage to tribal land caused by Pick-Sloan projects along the Missouri River.
  • S. 1535 (tribal lands) was reported by the Committee on Indian Affairs. S. Rep. No. 109-343, 152 Cong. Rec. S9786 (daily ed. Sept. 20, 2006). The bill would amend the Cheyenne River Sioux Tribe Equitable Compensation Act to provide compensation to members of the Cheyenne River Sioux Tribe for damage resulting from the Oahe Dam and Reservoir Project.
  • S. 2781 (CWA) was reported by the Committee on Environment and Public Works. S. Rep. No. 109-345, 152 Cong. Rec. S9896 (daily ed. Sept. 21, 2006). The bill would amend the CWA to enhance the security of wastewater treatment works.
  • S. 2912 (Great Lakes) was reported by the Committee on Environment and Public Works. S. Rep. No. 109-338, 152 Cong. Rec. S9785 (daily ed. Sept. 20, 2006). The bill would establish the Great Lakes Interagency Task Force and establish the Great Lakes Regional Collaboration.
  • S. 3551 (fish hatcheries) was reported by the Committee on Environment and Public Works. S. Rep. No. 109-339, 152 Cong. Rec. S9785-86 (daily ed. Sept. 20, 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.
  • S. 3617 (wetlands) was reported by the Committee on Environment and Public Works. S. Rep. No. 109-340, 152 Cong. Rec. S9786 (daily ed. Sept. 20, 2006). The bill would reauthorize the North American Wetlands Conservation Act.
  • H.R. 854 (tribal lands) was reported by the Committee on Indian Affairs. S. Rep. No. 109-342, 152 Cong. Rec. S9786 (daily ed. Sept. 20, 2006). The bill would provide for certain lands to be held in trust for the Utu Utu Gwaitu Paiute Tribe.
  • H.R. 5622 (Coral Reef Conservation Act) was reported by the Committee on Resources. H. Rep. No. 109-665, 152 Cong. Rec. H6732 (daily ed. Sept. 19, 2006). The bill would reauthorize the Coral Reef Conservation Act of 2000.
  • H.R. 5811 (shipping) was reported by the Committee on Transportation and Infrastructure. H. Rep. No. 109-667, 152 Cong. Rec. H6732 (daily ed. Sept. 19, 2006). The bill would implement the Protocol of 1997 of the International Convention for the Prevention of Pollution from Ships, 1973.  
  • H.R. 3849 (FIFRA) was reported by the Committee on Agriculture. H. Rep. No. 109-668, 152 Cong. Rec. H6732 (daily ed. Sept. 19, 2006). The bill would amend FIFRA to implement pesticide-related obligations of the United States under the international conventions or protocols known as the PIC Convention, the POPs Convention, and the LRTAP POPs Protocol.
  • H.R. 5061 (fish hatcheries) was reported by the Committee on Environment and Public Works. S. Rep. No. 109-341 (daily ed. Sept. 20, 2006). The bill would direct the Secretary of the Interior to convey Paint Bank National Fish Hatchery and Wytheville National Fish Hatchery to the state of Virginia.

BILLS INTRODUCED:

  • S. 3907 (Domenici, R-N.M.) (water) would direct the Secretary of the Interior to conduct a study of water resources in the state of New Mexico. 152 Cong. Rec. S9680 (daily ed. Sept. 18, 2006). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 3908 (Wyden, D-Or.) (oil) would amend the Internal Revenue Code of 1986 to provide a credit for fuel-efficient motor vehicles and to require major integrated oil companies to amortize intangible drilling and development costs. 152 Cong. Rec. S9680 (daily ed. Sept. 18, 2006). The bill was referred to the Committee on Finance.
  • S. 3916 (Sessions, R-Ala.) (wildlife) would expand the boundaries of the Cahaba River National Wildlife Refuge. 152 Cong. Rec. S9896 (daily ed. Sept. 21, 2006). The bill was referred to the Committee on Environment and Public Works.
  • S. 3917 (Burr, R-N.C.) (oil and gas) would establish the American-Made Energy Trust Fund, increase the tax credits for cellulosic biomass ethanol, extend tax incentives for solar and fuel cell property, promote coal-to-liquid fuel activities, and direct the Secretary of the Interior to establish and implement a competitive oil and gas leasing program for the Coastal Plain of Alaska. 152 Cong. Rec. S9896 (daily ed. Sept. 21, 2006). The bill was referred to the Committee on Finance.
  • S. 3926 (Santorum, R-Pa.) (energy) would provide for the energy, economic, and national security of America. 152 Cong. Rec. S9897 (daily ed. Sept. 21, 2006). The bill was referred to the Committee on Finance.
  • H.R. 6103 (English, R-Pa.) (national heritage area) would amend the Act establishing the Rivers of Steel National Heritage Area in order to include Butler County, Pennsylvania, within the boundaries of that heritage area. 152 Cong. Rec. H6733 (daily ed. Sept. 19, 2006). The bill was referred to the Committee on Resources.
  • H.R. 6108 (Matsui, D-Cal.) (flood insurance) would authorize the Director of FEMA to make grants to communities to be used for outreach efforts to encourage participation in the national flood insurance program. 152 Cong. Rec. H6733 (daily ed. Sept. 19, 2006). The bill was referred to the Committee on Financial Services.
  • H.R 6110 (Ruppersberger, D-Md.) (natural gas) would require persons seeking FERC approval for a liquefied natural gas facility to identify employees and agents engaged in activities to persuade communities of the benefits of such approval. 152 Cong. Rec. H6733 (daily ed. Sept. 19, 2006). The bill was referred to the Committee on Energy and Commerce.
  • H.R. 6112 (Young, R-Alaska) (land exchange) would authorize the exchange of certain lands in Denali National Park in the state of Alaska. 152 Cong. Rec. H6733 (daily ed. Sept. 19, 2006). The bill was referred to the Committee on Resources.
  • H.R. 6119 (Dicks, D-Wash.) (treaty rights) would provide for the equitable settlement of claims of Native American tribes in the region of Puget Sound, Washington, regarding treaty rights to take shellfish from lands in that region. 152 Cong. Rec. H6845 (daily ed. Sept. 20, 2006). The bill was referred to the Committee on Resources.
  • H.R. 6121 (Baker, R-La.) (CWA) would amend the CWA to reauthorize a program relating to the Lake Pontchartrain Basin. 152 Cong. Rec. H6845 (daily ed. Sept. 20, 2006). The bill was referred to the Committee on Transportation and Infrastructure.
  • H.R. 6130 (Blunt, R-Mo.) (food inspection) would enhance the state inspection of meat and poultry in the United States. 152 Cong. Rec. H6931 (daily ed. Sept. 21, 2006). The bill was referred to the Committee on Agriculture.
  • H.R. 6131 (Chocola, R-Ind.) (USTs) would permit certain expenditures from the Leaking UST Trust Fund. 152 Cong. Rec. H6931 (daily ed. Sept. 21, 2006). The bill was referred to the Committee on Ways and Means and the Committee on Energy and Commerce.
  • H.R. 6144 (Blumenauer, D-Or.) (natural disasters) would reduce vulnerability to natural disasters in foreign countries through the use of disaster mitigation techniques. 152 Cong. Rec. H6932 (daily ed. Sept. 21, 2006). The bill was referred to the Committee on International Relations.
  • H.R. 6146 (Feeney, R-Fla.) (coastal resources) would revise the boundaries of John H. Chafee Coastal Barrier Resources System Ponce Inlet Unit P08. 152 Cong. Rec. H6932 (daily ed. Sept. 21, 2006). The bill was referred to the Committee on Resources.
  • H.R. 6156 (Pearce, R-N.M.) (land exchange) would provide for the exchange of certain land in the Lincoln National Forest, New Mexico, with the owners of Ranchman's Camp and the C Bar X Ranch, and adjust the proclamation boundary of that national forest. 152 Cong. Rec. H6933 (daily ed. Sept. 21, 2006). The bill was referred to the Committee on Resources.

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

IN THE STATES

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

The states below have updates this week:

Alaska Idaho Maryland New Jersey Ohio Washington Colorado Iowa Massachusetts New Mexico Oklahoma Wisconsin District of Columbia Louisiana Missouri North Carolina Rhode Island   Florida Maine New Hampshire New York Tennessee  

ALASKA

General:

COLORADO

Water:

  • The Public Utilities Commission will hold a public hearing on its proposed rules regulating water utilities at 4 Code of Colorado Regulations 723-5. The hearing will be held November 16-17, 2006. Comments are due November 3, 2006. See http://www.dora.state.co.us/puc/rulemaking/RulemakingNotices.htm#BM723_3
  • The Department of Public Health and Environment will hold a public hearing on proposed revisions to current provisions regarding water temperature criteria and standards in the Basic Standards and Methodologies for Surface Water, Regulation #31 (5 CCR 1002-31), and on corresponding revisions to the Classifications and Numeric Standards for the Arkansas River Basin, Upper Colorado River Basin and North Platte River, San Juan and Dolores River Basins, Gunnison and Lower Dolores River Basins, Rio Grand Basin, Lower Colorado Basin, and the South Platte, Laramie, Republican and Smoky Hill River Basins, Regulations #32-38 (5 CCR 1002-32 to 38). The hearing will be held January 8, 2007. See http://www.cdphe.state.co.us/op/wqcc/MeetingsandHearings/HearingNotices/rulemaking/wqrmnot.html
  • The Water Quality Control Commission will hold a written comment only rulemaking hearing for consideration of the repeal of the Commission's current regulation entitled Passive Treatment of Mine Drainage Control, Regulation #83 (5 CCR 1002-83). Comments are due January 8, 2007. See http://www.cdphe.state.co.us/op/wqcc/MeetingsandHearings/HearingNotices/Rulemaking/WrittenComment/wqwcrnot.html

DISTRICT OF COLUMBIA

Wildlife:

  • The Department of the Environment is soliciting public comment on its draft Comprehensive Wildlife Conservation Strategy. The Department's Fisheries and Wildlife Division has prepared the draft as part of the nation's core program to conserve wildlife and their natural habitats. Comments are due September 30, 2006. See http://www.amlegal.com/nxt/gateway.dll?f=templates$fn=default.htm$vid=dcr:free

FLORIDA

Hazardous and Solid Waste:

  • The Department of Environmental Protection proposed to amend rule number 62-730.186, Universal Pharmaceutical Waste. The proposed amendments establish requirements for handlers of hazardous waste pharmaceuticals. It includes definitions, prohibitions, notification, waste and container management, labeling, accumulation time limits, employee training, response to releases, off-site shipments, recordkeeping, and conditions related to handlers who are reverse distributors. A public hearing will be held October 26, 2006. See http://faw.dos.state.fl.us/fawframes.html (37 FAW 4326)

IDAHO

Air:

  • The Department of Environmental Quality proposed to amend Rule 58.01.01, Rules for the control of air pollution in Idaho. This rulemaking is necessary to ensure that the rules remain consistent with federal regulations. This proposed rule updates citations to federal regulations incorporated by reference to include those revised as of July 1, 2006, and deletes unnecessary, outdated references. This rulemaking also specifically exempts certain federal regulations from incorporation by reference into the rules. A public hearing will be held October 10, 2006. See http://adm.idaho.gov/adminrules/bulletin/bul/06sept.pdf (p. 224)

Water:

  • The Department of Environmental Quality proposed to amend Rule 58.01.02, Water Quality Standards. The Department has initiated this rulemaking to modify the current rules dealing with application of standards based on flow conditions (low flow or high flow). Among other things, the amendments would add a new beneficial use and associated criteria for streams that are unable
    to support viable fish populations. Comments are due October 6, 2006. See http://adm.idaho.gov/adminrules/bulletin/bul/06sept.pdf (p.233)

IOWA

Wildlife:

General:

LOUISIANA

Air:

  • The Department of Environmental Quality amended air regulation LAC 33:III.3003. This rulemaking incorporates by reference the federal Clean Air Mercury Rule and provides for participation in the U.S. EPA-administered cap-and-trade program for annual mercury emissions. See http://www.doa.louisiana.gov/osr/reg/0609/0609RUL.pdf (p.1596)
  • The Department of Environmental Quality adopted air regulation LAC 33:III.506. This rule incorporates by reference the federal regulations concerning the Clean Air Interstate Rule Sulfur Dioxide Trading Program. See http://www.doa.louisiana.gov/osr/reg/0609/0609RUL.pdf (p.1597)
  • The Department of Environmental Quality amended air regulation LAC 33:III.505. This rule replaces the existing Acid Rain Program regulations with an incorporation by reference of the recently revised federal regulations. See http://www.doa.louisiana.gov/osr/reg/0609/0609RUL.pdf (p.1598)
  • The Department of Environmental Quality amended air regulations LAC 33:III.111, 504, 509, 607, 709, and 711. The amendments concern major stationary source/major modification emission thresholds for the Baton Rouge ozone nonattainment area. See http://www.doa.louisiana.gov/osr/reg/0609/0609RUL.pdf (p.1598)

Water:

  • The Department of Environmental Quality amended water quality regulations LAC 33:IX.2511. This rule implements the June 12, 2006, revision to 40 CFR 122 (71 Fed. Reg. 33628), which modifies the NPDES regulations to provide that certain storm water discharges from field activities or operations, including construction, associated with oil and gas exploration, production, processing, or treatment operations or transmission facilities are exempt from NPDES permit requirements. See http://www.doa.louisiana.gov/osr/reg/0609/0609RUL.pdf (p.1603)

MAINE

Hazardous and Solid Waste:

  • The Bureau of Remediation and Waste Management amended Chapter 900, Biomedical Waste Management Rules, to, among other things, establish an annual registration fees for hazardous waste generators and a mail-in process for sharps. See http://www.maine.gov/dep/rwm/rules/rulemaking.htm

Wildlife:

  • The Department of Marine Resources adopted Chapter 25, Lobster and Crab: 25.95(1)(B)(2)(a), Monhegan Island Lobster Conservation Area, Open season, Rule number 2006-408. The Monhegan Island Lobster Conservation Area's 180-day, 2006-2007 open lobster fishing season will begin December 1, 2006, and end on May 29, 2007. See http://www.maine.gov/sos/cec/rules/notices/2006/092006.htm

MARYLAND

Wildlife:

  • On September 5, 2006, the Secretary of Natural Resources adopted amendments to Regulation .02 under COMAR 08.02.06, Terrapin and Snapping Turtles. This action, which was proposed for adoption in 33:15 Md. R. 1287-1288 (July 21, 2006), has been adopted as proposed. The amendments will become effective September 25, 2006. See http://www.dsd.state.md.us/mdregister/3319/main_register.htm
  • On August 31, 2006, the Secretary of Natural Resources adopted amendments to Regulation .02 under COMAR 08.03.04, Forest Wildlife. This action, which was proposed for adoption in 33:14 Md. R. 11680-1169 (July 7, 2006), has been adopted as proposed. The amendments will become effective September 25, 2006. See http://www.dsd.state.md.us/mdregister/3319/main_register.htm

MASSACHUSETTS

Wildlife:

  • The Division of Marine Fisheries and the Marine Fisheries Advisory Commission will hold a hearing on proposed and emergency rule changes regulating the commonwealth's commercial lobster fisheries. The hearing will be held September 26, 2006. Comments are due September 29, 2006. See http://www.sec.state.ma.us/spr/sprpub/090806e.pdf.

MISSOURI

Wildlife:

NEW HAMPSHIRE

Hazardous and Solid Waste:

  • The Department of Environmental Services held a public hearing on proposed rule Env-Ws 800, which contains the requirements and standards for the management, processing, recycling, and disposal of sludge generated by wastewater treatment. Testing requirements and chemical criteria are included for the land application of municipal sewage sludge and industrial sludge. The proposed amendments add the statutory definitions for “biosolids” and “short paper fiber” to the rules and make other editorial revisions for clarity. The hearing was held September 18, 2006. Comments are due September 28, 2006. See http://www.des.state.nh.us/RuleMaking/notice2006/Env-Wq_800.pdf

NEW JERSEY

Air:

  • The Department of Environmental Protection will hold a public hearing on a proposed amendment to N.J.A.C. 7:27-14, Control and Prohibition of Air Pollution from Diesel-Powered Motor Vehicles, and N.J.A.C. 7:27A, Air Administrative Procedures and Penalties. The proposed amendments will reduce the number and types of allowable exemptions to the three-minute diesel idling standard, which will reduce the amount of diesel exhaust released into the ambient air; describe the conditions during which extended idling is allowed; alter the structure of penalties for school bus owners, operators, and schools utilizing school buses found to be in violation of the idling provisions; and change the penalty amounts for all others found to be in violation of these regulations. The hearing will be held October 20, 2006. Comments are due November 17, 2006. See http://www.nj.gov/dep/rules/notices/091806a.htm
  • The Department of Environmental Protection is adopting amendments to the standards and procedures for the control and prohibition of mercury from coal-fired boilers, N.J.A.C. 7:27-27.7 and 7:27A-3.10. These amendments became effective September 14, 2006. See http://www.nj.gov/dep/rules/adoptions.html

Toxic Substances:

  • The Department of Environmental Protection is adopting amendments to the Department Oversight of the Remediation of Contaminated Sites Rules, N.J.A.C. 7:26C, to set forth penalties for violations of the Underground Storage Tank Rules, N.J.A.C. 7:14B; the Industrial Site Recovery Act Rules, N.J.A.C. 7:26B; the Oversight Rules, N.J.A.C. 7:26C; and the Technical Requirements for Site Remediation Rules, N.J.A.C. 7:26E; and identify these violations as either minor or non-minor for the purpose of providing grace periods in accordance with the Fast Track Compliance Act, N.J.S.A. 13:1D-125 et seq. The rules became effective September 18, 2006. See http://www.nj.gov/dep/rules/adoptions.html

NEW MEXICO

General:

  • The State Parks Division has adopted an emergency amendment to 18.17.2 NMAC, Section 11, boat operation and safety, effective September 15, 2006.

NEW YORK

Wildlife:

NORTH CAROLINA

Air:

  • The Environmental Management Commission will hold a public hearing on proposed amendments to rules 15A NCAC 02D.0902, .0909, .1402, and .1403 to require reasonable available control technology for volatile organic compounds and nitrogen oxides in the counties in the Charlotte ozone nonattainment area to meet U.S. EPA requirements for a complete SIP submittal for the Charlotte ozone nonattainment SIP. The hearing will be held October 4, 2006. Comments are due November 14, 2006. See http://www.ncoah.com/rules/register/Volume21Issue06.pdf (p.476)

OHIO

Air:

Toxic Substances:

  • The Public Health Council will conduct public hearings to consider the proposal to rescind rule 3701:1-50-08 of the Ohio Administrative Code. This rule pertains to labeling and packaging requirements for radioactive materials, previously approved by the U.S. NRC. The hearing will be held October 12, 2006. Comments are due October 12, 2006. See http://www.registerofohio.state.oh.us/pdfs/phn/3701$1_NO_32946_20060907_1540.pdf

OKLAHOMA

Air:

  • The Department of Environmental Quality will hold a public hearing on proposed amendments to the Oklahoma Administrative Code (OAC) 252:100-8-1.1, OAC 252:100-37-2, and OAC 252:100-39-2 to clarify definitions including particulate matter and volatile organic compounds. The hearing will be held October 18, 2006. See
    http://www.oar.state.ok.us/register/Volume-24_Issue-01.htm#a15659

RHODE ISLAND

Wildlife:

  • The Department of Environmental Management will hold a public hearing on proposed amendments to the Rhode Island Marine Fisheries Regulations. The Department has proposed Management Plans for the Shellfish, Finfish, and Crustacean sectors, and has proposed amendments to the commercial fishing licensing regulations regarding the availability of licenses and endorsements in 2007. The hearing will be held October 16, 2006. Comments are due October 16, 2006. See http://www.dem.ri.gov/programs/bnatres/fishwild/pn101606.htm

TENNESSEE

Air:

  • The Air Pollution Control Board will hold a public hearing to consider the promulgation of an amendment to the Tennessee Air Pollution Control Regulations and its Title V Program pursuant to TCA §68-201-105. The hearing will be held October 18, 2006. Comments are due October 18, 2006. See http://state.tn.us/sos/pub/tar/2006-09.pdf

Hazardous and Solid Waste:

  • The Division of Solid Waste Management will hold a public hearing to consider the adoption and promulgation of rules and amendments to rules pursuant to the TCA §§68-212-106, 68-212-107, 68-212-108, 68-212-109, 68-212-110, and 68-212-114; the Tennessee Solid Waste Disposal Act, TCA §§68-211-101 et seq.; the Tennessee Environmental Protection Fund Act, TCA §§68-203-101 et seq.; the Used Oil Collection Act of 1993, TCA §§68-211-1001 et seq.; and the Uniform Administrative Procedures Act, TCA §§4-5-101 et seq. The hearing will be held October 19, 2006. Comments are due October 19, 2006. See http://state.tn.us/sos/pub/tar/2006-09.pdf

Water:

  • The State Revolving Fund Loan Program Staff, representing the Department of Environment and Conservation, will hold a hearing concerning amendments to the Priority Ranking System Rules, Chapter 1200-22-1, pursuant to TCA Title 68, Chapter 221, Parts 8 and 10. The proposed amendments set forth criteria and procedures for developing and maintaining a priority ranking system and list for the financing of wastewater treatment works and wastewater facilities. The hearing will be held October 23, 2006. Comments are due November 3, 2006. See http://state.tn.us/sos/pub/tar/2006-09.pdf

WASHINGTON

Land Use:

  • The Department of Ecology will hold a public hearing on proposed amendments to Shoreline Management Act (SMA) rules WAC 173-18, 20, 22, and 27. The proposed revisions would introduce a streamlined local process for updating the geographic extent of SMA application, bring rules up to date with current law and court decisions, remove redundant text, and add clarity. The hearing will be held September 21, 25-27, 2006. Comments are due October 4, 2006. See   http://www.ecy.wa.gov/laws-rules/RulesCalendar.html

WISCONSIN

Air:

  • The Department of Natural Resources will hold a public hearing on the creation of ch. NR 432, Wis. Adm. Code, relating to the establishment of provisions for major electric generating units in Wisconsin to comply with the U.S. EPA's Clean Air Interstate Rule. The hearing will be held October 10 and 12, 2006. See http://www.dnr.state.wi.us/org/caer/cec/news/hearmeet.html

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

INTERNATIONAL

SOUTH AFRICA PROMULGATES NEW LAWS TO MANAGE RADIOACTIVE WASTE

The Cape Town Government is working to establish new management structures and launch new laws to start implementing its radioactive waste management policy. The department released the policy and strategy for the management of radioactive waste last year, but the measures to implement it are not expected to be finalized until March 2008. The new implementation laws will introduce the "polluter pays" principle, which will require generators of waste to contribute to a fund on a tax-free basis. See http://www.businessday.co.za/Articles/TarkArticle.aspx?ID=2226294

UGANDAN PARLIAMENT TAKES MEASURES TO BAN POLYTHENE

The Ugandan Parliament has ordered the government to begin implementing a mechanism for recycling polythene bags (buveera). In the 2006 Finance Bill that Parliament passed recently, members of parliament agreed that incentives should be extended to potential investors for using alternative packaging materials. The Bill additionally sanctions the imposition of an environmental levy on used motor vehicles and home appliances. See http://allafrica.com/stories/200609200050.html

KENYA TO DEVELOP POLICY ON DDT USE

Shortly after the World Health Organization's (WHO's) September 16 announcement that it will lift the ban on DDT, which is used to control mosquitoes, the Kenyan Government announced its plans to develop a policy on the use of the chemical. Malaria kills about 34,000 children and 8,000 pregnant women per year in Kenya alone. Dr. Enock Kibunguchy, the nation's health assistant minister, said, "DDT is known to be very effective, but it can affect other organisms negatively. This is why the [Kenyan] Government must develop clear guidelines on its use." A meeting to develop guidelines on the use of the chemical will be held before December. See http://allafrica.com/stories/200609220137.html

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

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