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Weekly Update Volume 36, Issue 29

10/16/2006

LITIGATION

NATURAL GAS ACT, WATER QUALITY:

The Second Circuit held that a state environmental agency arbitrarily and capriciously denied a pipeline company's application for a water quality certificate that would allow it to discharge into waters of Long Island Sound during the construction of an interstate natural gas pipeline. The agency failed to adequately explain or support its denial with record evidence and to acknowledge or explain contradictory record evidence. On remand, the agency must conduct a further review of the application and either provide record evidence in support of its denial order or allow the project to move forward. Islander East Pipeline Co. v. Connecticut Department of Environmental Protection, No. 05-4139, 36 ELR 20207 (2d Cir. Oct. 5, 2006) (25 pp.).

NEPA, HURRICANE KATRINA:

A district court held that the U.S. Army Corps of Engineers failed to take a "hard look" at the environmental impacts and consequences of dredging and disposing of contaminated sediment from the Industrial Canal, a five-mile link just east of New Orleans in the navigational system that connects the Gulf Intracoastal Waterway and the Mississippi River-Gulf Outlet with the Mississippi River and Lake Pontchartrain. In light of Hurricane Katrina, the underlying purpose of NEPA will not be served if the Corps moves forward with the project according to a plan devised almost a decade ago. Further, extra-record materials submitted by citizen groups challenging the project shed light on this fact and, thus, are proper for inclusion in the administrative record. Notably, the Corps' EIS failed to consider the reasonable dredging and disposal alternatives that the Corps recently adopted for maintenance dredging of the same waters. Thus, without further study and planning, the project cannot be considered "environmentally conscious." Holy Cross v. United States Army Corps of Engineers, No. 03-370, 36 ELR 20208 (E.D. La. Oct. 4, 2006) (Fallon, J.) (6 pp.).

WATER LAW, ESA:

The Federal Claims Court held that the U.S. Bureau of Reclamation did not breach its repayment contract with a municipal water district concerning a water reclamation project on the Ventura River in California when it required the district to build a $9.1 million fish passage facility and to relinquish a portion of the project's water supply to assist the migratory passage of steelhead trout in the river. The contract provided that the water district would repay, over a period of 40 years, the United States' construction costs, which would be capped off at $30.9 million. The contract also provided that the district would assume all operation and maintenance costs of the project from the time of its completion. Because the costs at issue here were not incurred in the performance of work deemed necessary for completion of the project, they do not fall within the cost reimbursement limitations of the contract. Rather, these costs are more appropriately regarded as operation and maintenance expenditures for which the district is contractually responsible. Nor did the contract impose a duty on the government to guarantee the district's water supply. Any reduction in that supply was the result of compliance with the ESA--a sovereign act for which the government in its role as a contractor is not responsible. Casitas Municipal Water District v. United States, No. 05-168L, 36 ELR 20209 (Fed. Cl. Oct. 2, 2006) (8 pp.).

OIL DRILLING, PREEMPTION:

The Fifth Circuit held that a local ordinance that forbids any new oil and gas drilling within 1,000 feet of lake is "preempted" by state law rather than "invalid." As explained by a prior panel of the court, a state statute expressly prohibits local political subdivisions from interfering with the drilling of a well. The court, therefore, vacated a lower court's declaratory judgment finding that the ordinance was invalid. The court, however, affirmed the lower court's denial of damages because the takings claim brought by the company challenging the ordinance is time-barred and its due process claim fails on the merits. The court also affirmed the lower court's denial of attorneys fees. But it remanded the issue of allocation of costs. Energy Management Corp. v. City of Shreveport, No. 05-30551, 36 ELR 20206 (5th Cir. Oct. 6, 2006) (17 pp.).

NPDES PERMIT, CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA):

A California appellate court held that a regional water board violated CEQA when it issued an NPDES permit concerning municipal stormwater and urban runoff discharges in Los Angeles County. Contrary to the board's argument, state law does not exempt the permit from CEQA's environmental review process. Nor does federal law exempt the NDPES permit from environmental review. County of Los Angeles. v. California State Water Resources Control Board, No. B184034, 36 ELR 20205 (Cal. App. 1st Dist. Oct. 5, 2006) (47 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 revised the Regional Haze Rule as it pertains to alternative emissions trading programs for certain western states and tribes. 71 FR 60611 (10/13/06).
  • SIP Approval: Alabama (modifications of volatile organic compounds (VOCs)) 71 FR 59674 (10/11/06).
  • SIP Proposals: Alabama (modifications of VOCs; see above for direct final rule) 71 FR 59697 (10/11/06). Maryland (control of VOCs from medical device manufacturing) 71 FR 59413 (10/10/06); (eight-hour ozone NAAQS) 71 FR 59414 (10/10/06). New York (motor vehicle enhanced inspection and maintenance program) 71 FR 60098 (10/12/06).

WATER:

  • EPA proposed to approve revisions to Utah's Public Water System Supervision Primacy Program for the Arsenic Rule and Filter Backwash Recycling Rule. 71 FR 60145 (10/12/06).

WILDLIFE:

  • FWS designated critical habitat for the St. Andrew beach mouse and revised critical habitat for the Perdido Key beach mouse and Choctawhatchee beach mouse in Baldwin County, Alabama, and in Bay, Escambia, Gulf, Okaloosa, and Walton counties, Florida. 71 FR 60237 (10/12/06).
  • FWS withdrew its March 30, 1998, proposed rule (63 FR 15152) of listing the Cow Head tui chub as an endangered species under the ESA because it determined that the proposed listing of the species is no longer warranted. 71 FR 59700 (10/11/06).
  • FWS announced its revised 12-month finding for a petition to list the Beaver Cave beetle under the ESA; the agency determined that listing the species is not warranted at this time. 71 FR 59711 (10/11/06).

MISCELLANEOUS:

  • EPA announced the availability of a final report titled A Framework for Assessing Health Risks of Environmental Exposures to Children. 71 FR 60514 (10/13/06).

DOJ NOTICES OF SETTLEMENT:

  • United States v. E.I. DuPont De Nemours & Co., Inc., No. 06-612 (D. Del. Sept. 29, 2006). Settling CERCLA and Delaware Hazardous Substances Cleanup Act defendants must hold an environmental covenant for the DuPont-Newport chemical facility located in Newport, Delaware, (Pike Property) to protect it in perpetuity, must fund restoration projects on the Pike Property as set forth in the Damage Assessment and Restoration Plan, must reimburse each trustee for its damage assessment costs, and must make a payment to the state for groundwater injuries to resolve claims of releasing hazardous substances from the Pike Property; the expenses and projects will cost the defendants $2,237,205. 71 FR 60193 (10/12/06).
  • United States v. CEMEX, Inc., No. 1:06-CV-0607 (W.D. Mich. Aug. 24, 2006). Settling CAA defendants must pay a civil penalty of $1,359,422; must install a baghouse filtering system, which is estimated to cost in excess of $11 million; and must spend at least $6.2 million on the installation of a new indirect firing system for the kiln at the portland cement manufacturing facility in Charlevoix, Michigan, to resolve claims of failing to control and limit particulate matter emissions, failing to perform required compliance monitoring, and failing to comply with various other requirements for portland cement manufacturing plants. 71 FR 59818 (10/11/06).

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

THE CONGRESS

Congress is currently in recess but will reconvene on November 9, 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:

California Montana Oklahoma Louisiana New Jersey Pennsylvania Maine New York Texas Minnesota Ohio Virginia

CALIFORNIA

Air:

  • The Air Resources Board will hold a public hearing to consider the adoption of amendments to title 17, California Code of Regulations, §§60201, 60202, 60205, and 60210, Area Designations to State Ambient Air Quality Standards. The hearing will be held November 16, 2006. See http://www.oal.ca.gov/notice/39z-2006.pdf (p. 1429)
  • The Air Resources Board will hold a public hearing to consider the adoption of amendments to title 17, California Code of Regulations, §§94508, 94509, 94510, 94513, and 94523, concerning the Regulation for Reducing Volatile Organic Compound Emissions from Consumer Products and the Regulation for Reducing the Ozone Formed from Aerosol Coating Product Emissions. The hearing will be held November 16, 2006. See http://www.oal.ca.gov/notice/39z-2006.pdf (p. 1432)
  • The Air Resources Board will conduct a public hearing to consider adoption of amendments to title 17, California Code of Regulations, §93300.5, which incorporates by reference the Emission Inventory Criteria and Guidelines Report under Assembly Bill 2588, the Air Toxics “Hot Spots” Act. The hearing will be held November 16, 2006. See http://www.oal.ca.gov/notice/39z-2006.pdf (p. 1434)
  • The Air Resources Board will conduct a public hearing to consider adoption of amendments to the Airborne Toxic Control Measure (ATCM) for Stationary Compression Ignition Engines. The primary purpose of the proposed amendments is to establish regulatory requirements for in-use stationary diesel engines used in agriculture. Other amendments are being proposed to clarify and streamline implementation of the Stationary Diesel Engine ATCM. The hearing will be held November 16, 2006. See http://www.oal.ca.gov/notice/39z-2006.pdf (p. 1437)
  • The Air Resources Board will conduct a public hearing to consider the adoption of proposed Airborne Toxic Control Measure amendments regarding onboard incineration on cruise ships and other ocean-going ships at California ports and terminals and along the California coast. The hearing will be held November 16, 2006. See http://www.oal.ca.gov/notice/39z-2006.pdf (p. 1445)

Toxic Substances:

  • The Department of Health Services is soliciting public comment on proposed amendments to Title 17, California Code of Regulations, §§30346.3 and 30350.3, concerning the leak testing of sealed sources (devices containing radioactivity) and the abandonment of irretrievable sources. Comments are due November 17, 2006. See http://www.oal.ca.gov/notice/39z-2006.pdf (p. 1449)

LOUISIANA

Air:

  • The Department of Environmental Quality will hold a public hearing on proposed regulations, LAC 33:III.1323, 1325, 1327, 1329, 1331, and 1333, to reduce particulate matter emissions from any facility that engages in or contracts to provide abrasive blasting and that is classified under a Standard Industrial Classification (SIC) Code beginning with 34, 35, or 37, or under SIC Code 1622 or 1721. The hearing will be held November 28, 2006. See http://www.deq.louisiana.gov/portal/portals/0/planning/regs/pdf/AQ249pro.pdf
  • The Department of Environmental Quality will hold a public hearing on proposed amendments to the Office of the Secretary regulations, LAC 33:I.3931. The amendments concern the administrative reporting exemption for certain air releases of nitrogen oxides. The hearing will be held November 28, 2006. See http://www.deq.louisiana.gov/portal/portals/0/planning/regs/pdf/OS076ftpro.pdf

Hazardous and Solid Waste:

  • The Department of Environmental Quality will hold a public hearing on proposed amendments to LAC 33:V.1107 and 5136 and LAC 33:VII.10505, 10519, 10521, and 10533 to remove state hazardous waste manifest requirements that are no longer valid. The hearing will be held November 28, 2006. Comments are due December 5, 2006. See http://www.deq.louisiana.gov/portal/portals/0/planning/regs/pdf/HW093pro.pdf

General:

MAINE

Hazardous and Solid Waste:

  • The Department of Environmental Protection has adopted Chapter 543, Rule 2006-431, of the Rules to Control the Subsurface Discharge of Pollutants. The rule describes the regulatory requirements for discharging wastewater into the ground in Maine and is a counterpart to the federal Underground Injection Control program. This rule became effective October 3, 2006. See http://www.maine.gov/sos/cec/rules/notices/2006/101106.htm

MINNESOTA

Water:

General:

  • The Legislative-Citizen Commission on Minnesota Resources is requesting proposals to prepare a comprehensive Statewide Conservation and Preservation Plan for Minnesota's environment and natural resources pursuant to Minnesota Laws 2006, Chapter 243, Section 20, Subdivision 10. Proposals are due November 17, 2006. See http://www.comm.media.state.mn.us/bookstore/stateregister/31_15.pdf (p. 506)

MONTANA

Air:

Hazardous and Solid Waste:

  • The Department of Environmental Quality will hold a public hearing on a proposed amendment to ARM 17.53.105 that would incorporate by reference current federal regulations into the hazardous waste program. The hearing will be held November 8, 2006. See http://sos.mt.gov/arm/Register/archives/MAR2006/MAR06-19.pdf

Toxic Substances:

  • The Department of Environmental Quality will hold a public hearing on proposed amendments to ARM 17.74.502, 17.74.503, and 17.74.507 pertaining to incorporation by reference of current federal regulations into the methamphetamine cleanup rules and clearance sampling. The hearing will be held November 17, 2006. See http://sos.mt.gov/arm/Register/archives/MAR2006/MAR06-19.pdf
  • The Department of Environmental Quality will hold a public hearing on proposed amendments to ARM 17.74.350, 17.74.352, 17.74.356, and 17.74.357 concerning definitions, asbestos project control measures, and clearing asbestos projects. The amendments also would incorporate by reference current federal regulations into the asbestos control program. The hearing will be held November 15, 2006. See http://sos.mt.gov/arm/Register/archives/MAR2006/MAR06-19.pdf

Water:

  • The Department of Environmental Quality will hold a public hearing on proposed amendments to ARM 17.30.617 and 17.30.638 pertaining to outstanding resource water designation for the Gallatin River. The hearing will be held November 15, 2006. See http://sos.mt.gov/arm/Register/archives/MAR2006/MAR06-19.pdf

NEW JERSEY

Water:

  • The Department of Environmental Protection will hold a series of public hearings on the proposal to repeal the existing Flood Hazard Area Control rules, N.J.A.C. 7:13, and to adopt new rules that will better protect the public from the hazards of flooding, preserve the quality of surface waters, and protect the wildlife and vegetation that exist within and depend upon such areas for sustenance and habitat. The public hearings will be held November 20, 27, and December 4, 2006. Comments are due December 31, 2006. See http://www.nj.gov/dep/njflood/docs/web_rule_8_31_06.pdf

NEW YORK

Hazardous and Solid Waste:

OHIO

Water:

  • The Director of Environmental Protection will hold a public hearing on proposed new rules for water quality trading to support U.S. EPA's January 2003 Water Quality Trading Policy and to develop a voluntary water quality trading program in Ohio that would allow an NPDES permit holder to meet its regulatory obligations by using pollutant reductions generated by another wastewater point source or nonpoint source. The hearing will be held November 15, 2006. Comments are due November 16, 2006. See http://www.registerofohio.state.oh.us/pdfs/phn/3745_NO_33547_20061010_1401.pdf

OKLAHOMA

Hazardous and Solid Waste:

PENNSYLVANIA

Air:

TEXAS

Air:

  • The Commission on Environmental Quality adopted amendments to 30 TAC Chapter 114, Control of Air Pollution from Motor Vehicles; Chapter 166, Control of Air Pollution by Permits for New Construction of Modification; and Chapter 321, Control of Certain Activities by Rule. The amendments became effective October 12, 2006. See http://www.sos.state.tx.us/texreg/sos/adopted/30.ENVIRONMENTAL%20QUALITY.html#166

Water:

VIRGINIA

Hazardous and Solid Waste:

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

INTERNATIONAL MALAYSIA URGES INDONESIA TO JOIN SMOG FIGHT

Large potions of Indonesia, Malaysia, and Singapore suffer from smog attributed to illegal bush fires on the islands of Sumatra and Borneo. However, Indonesia is the only country in the 10-member Association of Southeast Asian Nations not to formally approve the group's agreement on Transboundary Haze Pollution. The agreement endeavors to coordinate a regional center for reacting rapidly to the haze, which is largely the product of slash-and-burn farming. Accusing Indonesia of "dragging its feet," Malaysian environment minister asked for offending firms to be prosecuted. Indonesia has outlawed the use of fire to clear land, but the laws are widely ignored in remote areas of the country. See http://news.bbc.co.uk/2/low/asia-pacific/4801749.stm

BOTSWANA SIGNS TROPICAL FOREST CONSERVATION AGREEMENT

On October 5, 2006, Botswana became the first African country to sign a Tropical Forest Conservation Agreement (TFCA) with the United States. The U.S. government created the TFCA to ease the economic strains of external debt on developing countries that may lead to the exploitation of natural resources. The agreement reduces Botswana's debt payments by US$7 million. Instead, Botswana has committed those funds to nongovernmental organizations and local communities to conserve and protect natural resources. See http://allafrica.com/stories/200610090831.html

EU SUPPORTS TOUGH NEW CHEMICAL LEGISLATION

The European Parliament's environment committee has endorsed new legislation called Registration, Evaluation, and Authorization of Chemicals (REACH), which would require companies to replace dangerous chemical substances with safer ones, should they exist. The legislation would also compel manufacturers to demonstrate the safety of the 30,000 substances already in use, including chemicals used in household products. Additionally, companies would be obliged to register all chemicals they produce or import and obtain authorization for the substances deemed most dangerous. The European Union hopes to finalize REACH early next year. See http://news.bbc.co.uk/2/hi/europe/6037958.stm

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

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