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Weekly Update Volume 36, Issue 30

10/30/2006

LITIGATION

ESA, LISTING:

The Ninth Circuit reversed a grant of summary judgment in favor of the FWS concerning the listing of the Sierra Nevada Mountain Yellow-Legged Frog under the ESA. The agency determined that listing the frog as an endangered species was “warranted but precluded” under §4(b)(3)(B) of the ESA. When an agency makes a “warranted but precluded finding,” the ESA requires that it publish such a decision in the Federal Register together with a description and evaluation of the reasons and data on which its finding is based. Here, the FWS published its warranted but precluded finding separate from the description and evaluation of its reasons. Because the FWS did not meet the procedural requirements of the Act, the court reversed and remanded the grant of summary judgment. Center for Biological Diversity v. Kempthorne, No. 04-16563, 36 ELR 20212 (9th Cir. Oct. 18, 2006) (11 pp.).

CAA, SIP REVISIONS:

The Sixth Circuit affirmed EPA’s final rulemaking action approving revisions to Kentucky’s SIP involving air quality standards under the CAA. The revisions allowed the state to move its vehicle inspection and maintenance program for certain counties from the active or “regulatory” portion of its SIP to the contingency measures portion of the plan. EPA interpreted CAA §110(1) to allow approval of a SIP revision unless it finds that the plan will worsen air quality. Because EPA’s interpretation was reasonable and because its findings were supported by the record, the Agency was entitled to deference and its decision was upheld. Kentucky Resources Council, Inc. v. United States Environmental Protection Agency, No. 05-4349, 36 ELR 20213 (6th Cir. Oct. 20, 2006) (12 pp.).

CAA, TRANSPORTATION PLANS:

The D.C. Circuit denied in part and granted in part environmental groups’ petition for review of three sets of regulations promulgated by EPA governing how states are to bring their transportation plans into conformity with the requirements of the CAA. The court lacked jurisdiction over one set of regulations that were first promulgated in 1997 and then published as a final rule with only minor changes in 2004 because the 60-day statutory period for review had passed. The court denied review of a second set of regulations because EPA’s interpretation of the CAA was reasonable. The CAA does not require that activities involving transportation actually reduce pollutants; it merely requires that they not frustrate an implementation plan’s purpose to reduce overall emissions. But the court granted review over a third set of regulations because they were inconsistent with the CAA’s requirement that activities that emit pollutants comply with an approved transportation implementation plan. The court, therefore, remanded this regulation to EPA. Environmental Defense v. United States Environmental Protection Agency, No. 04-1291, 36 ELR 20214 (D.C. Cir. Oct. 20, 2006) (20 pp.).

HAZARDOUS MATERIALS TRANSPORTATION ACT, STANDING:

The D.C. Circuit held that associations of hazardous materials manufacturers, shippers, and transporters lacked standing to challenge a DOT rule defining when hazardous materials are being loaded, unloaded, or stored incidental to their movement, which largely controls whether such materials will be subject to federal regulation under the Hazardous Materials Transportation Act. The associations failed to demonstrate that at least one of their members had standing to pursue their challenge. The associations argued that one of their members would suffer injuries due to the rule's failure to preempt certain local laws. Yet the associations failed to demonstrate that the DOT is fairly responsible for that member's injury. They also failed to show that if the court were to set aside the DOT rule, it is likely that a future rule promulgated by the DOT would preempt local law requirements. Nor did the associations demonstrate that any of their members would suffer a concrete and particularized harm due to any "regulatory gap" in the rule. American Chemistry Council v. Department of Transportation, No. 03-1456, 36 ELR 20210 (D.C. Cir. Oct. 13, 2006) (32 pp.).

SDWA, SUBMETERING:

The Fourth Circuit upheld EPA regulations that require the owners of mobile-home parks and other manufactured housing complexes who submeter water to their tenants to comply with SDWA regulations. Submetering allows property owners to meter and bill their tenants for water the owner purchases and then distributes for their tenants’ use. In the regulations at issue, EPA granted apartment houses an exemption from the Agency's long-held view that submetering was equivalent to the practice of selling water and subject to the SDWA. Manufactured homes, however, were not included and, thus, remained subject to federal drinking water regulations. The court held that EPA’s regulation, enacted to ensure clean drinking water, was supported by a rational basis and neither arbitrary nor capricious. EPA deemed water distribution systems to be safe from pollution in apartment houses, but it could not say the same for distribution systems in manufactured home communities. Manufactured Housing Institute v. United States Environmental Protection Agency, No. 04-1157, 36 ELR 20216 (4th Cir. Oct. 25, 2006) (14 pp.).

CWA, RCRA, COURT ORDERS:

The Eleventh Circuit affirmed the denial of a property owner's motion to show cause as to why a junkyard operator had not implemented a legally sufficient stormwater pollution prevention plan pursuant to a prior court order, but it reversed the district court's denial of her motion to show cause as to why the operator had not obtained a solid waste handling permit. The district court abused its discretion in finding that the operator was not required to seek a solid waste handling permit under RCRA and denying the property owner's motion to show cause on this issue. The district court based its decision on a state agency letter that stated that the operator no longer needed to obtain a permit. But the Eleventh Circuit had affirmed the district court's prior court order requiring the operator to obtain a permit, and a district court may not act contrary to an appellate court's command. The property owner, however, failed to produce clear and convincing evidence that the operator had violated the prior court order to develop and implemental a legally sufficient stormwater pollution prevention plan under the CWA. Rather, the record demonstrates that the operator made an effort to comply with the order. In addition, the court reversed the district court's dismissal of the property owner's state law claims for damages. The district court had jurisdiction to hear the claims. Parker v. Scrap Metal Processors, Inc., No. 05-16904, 36 ELR 20215 (11th Cir. Oct. 24, 2006) (27 pp.).

ANIMAL RIGHTS, ANTI-SLAPP STATUTE:

A California appellate court held that a biomedical company may go forward with its suit for injunctive relief to stop terrifying acts allegedly committed by members of an animal rights group who targeted the company's employees as part of an effort to expose animal abuse in biomedical labs. The group argued that the company's complaint arises from speech about matters of the public interest--a protected activity under the anti-SLAPP statute. But the gravamen of the company's complaint is not speech, but the acts of harassment, infliction of emotional distress, intrusion, and trespass that occurred during "home visits" perpetrated by certain unnamed individuals. Moreover, there is ample evidence that the group conspired with the individuals to commit these wrongful acts, and the company met its burden of showing a probability of prevailing on its claims. The lower court, therefore, properly dismissed the group's motion to strike the company's suit. Novartis Vaccines & Diagnostics, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc., Nos. A107538, A108292, 36 ELR 20211 (Cal. App. 1st Dist. Oct. 12, 2006) (20 pp.).

WIND POWER, PUBLIC TRUST DOCTRINE:

A California court dismissed an environmental group's lawsuit against wind power operators in the Altamont Pass Wind Resource Area. The group argued that the operators violated the state's unfair competition law and the common law public trust doctrine based on bird collisions with the wind turbines. But the group's public trust-based ownership interest in the birds was insufficient to satisfy the lost property standing requirement under the state's unfair competition law. And even though wild birds are referred to at times as part of the "public trust," a public trust doctrine cause of action must be related to navigable waters and tidelands, which were not implicated in this case. Center for Biological Diversity v. FPL Group, Inc., No. RG04-183113, 36 ELR 20217 (Cal. Super. Ct. Oct. 12, 2006) (17 pp.) (Defense council included George Kaplan of Kaye Scholer LLP in Los Angeles, California).

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, based on its review of the air quality criteria and NAAQS for particulate matter (PM), revised the primary and secondary NAAQS for PM to provide increased protection of public health and welfare. 71 FR 61143 (10/17/06).
  • EPA amended the ambient air monitoring requirements for criteria pollutants. 71 FR 61235 (10/17/06).
  • EPA amended the effective date of the particulate matter NESHAP for new cement kilns that burn hazardous waste. 71 FR 62388 (10/25/06).
  • EPA proposed amendments to the final rule it published on May 22, 2003 (68 FR 28605), concerning NESHAPs for Semiconductor Manufacturing to clarify the emission requirements for process vents. 71 FR 61701 (10/19/06).
  • EPA released a Regulatory Impact Analysis that provides estimates of the range of the monetized human health benefits, control costs, and net benefits associated with meeting the revised NAAQS standards for fine particles. 71 FR 60853 (10/17/06).
  • EPA entered into a Partial Delegation of Administrative Authority to carry out certain day-to-day activities associated with the administration of the federal implementation plan for the Confederated Tribes of the Umatilla Indian Reservation. 71 FR 60852 (10/17/06).
  • SIP Approvals: Maryland (volatile organic compound emissions; source specific) 71 FR 62210 (10/24/06). Tennessee (10-year carbon monoxide (CO) maintenance plan) 71 FR 62384 (10/25/06).
  • SIP Proposals: Arizona (PM emissions from fugitive dust) 71 FR 60934 (10/17/06). Maine (eight-hour ozone NAAQS) 71 FR 60937 (10/17/06). Tennessee (10-year CO maintenance plan; see above for direct final rule) 71 FR 62415 (10/25/06).
  • SIP Withdrawal: Indiana (eight-hour ozone NAAQS) 71 FR 61686 (10/19/06).

HAZARDOUS & SOLID WASTE:

  • EPA entered into a proposed administrative settlement agreement under CERCLA concerning the Terrero Mine Superfund site in San Miguel County, New Mexico, that requires the settling party to pay $212,000.00 in response costs to the Hazardous Substances Superfund. 71 FR 63012 (10/27/06).

MINING:

  • OSM approved an amendment to the New Mexico regulatory program under SMCRA. 71 FR 61680 (10/19/06).
  • OSM announced receipt of a proposed amendment to the Ohio regulatory program under SMCRA. 71 FR 61695 (10/19/06).

RADIOACTIVE WASTE:

  • NRC amended its list of approved spent fuel storage casks as it pertains to the Holtec International HI-STORM 100 cask system. 71 FR 60659 (10/16/06).
  • NRC proposed to amend its list of approved spent fuel storage casks as it pertains to the Holtec International HI-STORM 100 cask system. 71 FR 60672 (10/16/06).

TOXIC SUBSTANCES:

  • EPA proposed to require testing for certain chemicals on the Agency for Toxic Substances and Disease Registry/EPA Priority List of Hazardous Substances, which is compiled under CERCLA. 71 FR 61926 (10/20/06).

WATER:

  • EPA gave notice of the final Guidance on Awards of Grants to Indian Tribes under Section 106 of the Clean Water Act: For Fiscal Year 2007 and Future Years. 71 FR 61972 (10/20/06).

WILDLIFE:

  • FWS proposed to designate critical habitat in Monterey County, California, for the endangered plant species Piperia yadonii (Yadon's piperia). 71 FR 61545 (10/18/06).
  • FWS announced the reinstatement of its July 15, 2002, (67 FR 46441) proposed rule to list slickspot peppergrass as endangered under the ESA. 71 FR 62078 (10/23/06).
  • FWS announced the availability of the final comprehensive conservation plan and FONSI for the Pea Island National Wildlife Refuge in Dare County, North Carolina. 71 FR 62606 (10/26/06).
  • FWS announced its intent to prepare a comprehensive conservation plan for the Cape Meares, Oregon Islands, and Three Arch Rocks National Wildlife Refuges in Oregon. 71 FR 62605 (10/26/06).

DOJ NOTICES OF SETTLEMENT:

  • United States v. Afton Chemical Corp., No. 3: 06-cv-763 (S.D. Ill. Oct. 4, 2006). Settling CERCLA defendants must pay $2,601,594.20 in response costs incurred in connection with a 1999 to 2000 removal action at Sauget Area 2, Southern Site Q, in Cahokia, Illinois. 71 FR 61507 (10/18/06).
  • United States v. Cooper Industries, LLC, No. 4:06-CV-467 RP-TJS (S.D. Iowa Sept. 29, 2006). A settling CERCLA defendant must pay for the reimbursement of response costs incurred or to be incurred for response actions taken at or in connection with the release or threatened release of hazardous substances at the McGraw Edison Superfund site in Centerville, Iowa. 71 FR 61507 (10/18/06).
  • United States v. Cummins Engine Co., Inc., No. 98- 02546 (D.D.C. Oct. 6, 2006). A settling CAA defendant must pay a penalty of $950,000, must continue a recall to fix or disable the overheat auxiliary emission control device it used to prevent engine overheating on approximately 11,600 engines sold for use in school buses and recreational vehicles, and must recoup the excess tons of nitrogen oxides emitted by its violations to resolve matters involving the alleged failure to comply with a 1999 Consent Decree. 71 FR 61508 (10/18/06).
  • United States v. City of Indianapolis, No. 1:06-cv-1456 (S.D. Ind. Oct. 4, 2006). A settling CWA defendant must implement a long-term control plan which would greatly reduce combined sewer overflows; must implement a plan designed to eliminate sanitary sewer discharges; must perform a supplemental environmental project which must cost a minimum of $2 million; must pay the United States a civil penalty of $588,900; must either pay the state a civil penalty of $588,900, or pay the state a civil penalty of $58,890 and undertake a state supplemental environmental project which must cost a minimum of $1,060,020; and must perform various other remedial measures to resolve alleged violations in connection with the city's operation of its municipal wastewater and sewer system. 71 FR 61508 (10/18/06).
  • United States v. Mallinckrodt, No. 4:02CV1488 (E.D. Mo. Oct. 3, 2006). A settling CERCLA defendant must pay $300,000 for reimbursement of past response costs incurred at the Great Lakes Container Corporation Superfund site located in St. Louis, Missouri. 71 FR 61509 (10/18/06).
  • United States v. Union Pacific Railroad Co., No. 1:06-CV-00115-BSJ (D. Utah Sept. 25, 2006). A settling CERCLA defendant must pay $20,779 in reimbursement of outstanding response costs, must perform cleanup work valued at $4,500,000 at the Ogden Rail Yard Superfund Site in Weber County, Utah, and must reimburse EPA for all future oversight costs. 71 FR 61509 (10/18/06).
  • United States v. A-L Processors, No. C-3-91-309 (S.D. Ohio Oct. 12, 2006). In this ability-to-pay settlement based on financial analyses conducted by the DOJ's Antitrust Corporate Finance Unit, a settling CERCLA defendant must pay the United States $312,000 in reimbursement of response costs incurred at the United Scrap Lead Superfund site in Troy, Ohio, and must pay the respondent group $88,000 in response costs under an earlier consent decree in connection with a previous cleanup at the site. In addition, some of the defendant's present and former shareholders must pay the United States $49,500 under a stipulated settlement in a related action. 71 FR 62487 (10/25/06).
  • United States v. Martin Marietta Materials, Inc., No. 7:06-cv-00154-FL (E.D.N.C. Oct. 13, 2006). Settling CERCLA defendants must pay $650,000 in reimbursement of past response costs incurred at the Reasor Chemical Company Superfund site in Castle Hayne, North Carolina, must pay future response costs, and must undertake remedial work at the site. 71 FR 62488 (10/25/06).

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:

Alabama Florida Massachusetts New Mexico Texas Alaska Illinois Minnesota New York Utah California Iowa Missouri Ohio Vermont Colorado Maine Nebraska Rhode Island Virginia Connecticut Maryland New Jersey Tennessee Wisconsin

ALABAMA

General:

ALASKA

Water:

CALIFORNIA

Air:

  • The Air Resources Board will hold a public hearing to consider amendments to California’s Emission Warranty Information Reporting (EWIR) and recall regulations and emission test procedures. The proposed amendments would revise, clarify, and specify vehicle and engine manufacturers’ responsibilities regarding the reporting of emission-related warranty activities and would require corrective action for systemic emission-control defects identified through the EWIR Program. The hearing will be held December 7, 2006. See http://www.oal.ca.gov/notice/42z-2006.pdf (p. 1559)
  • The Air Resources Board will hold a public hearing to consider adoption of amendments to the existing Voluntary Accelerated Vehicle Retirement (VAVR) regulation. The proposed amendments include using remote sensing devices as an additional means of identifying higher emitting vehicles as possible candidates for voluntary retirement, providing appropriate credit for identified high-emitting vehicles, and clarifying existing regulatory language. The hearing will be held December 7, 2006. See http://www.oal.ca.gov/notice/42z-2006.pdf (p. 1563)
  • The Air Resources Board will conduct a public hearing to consider revisions to the Carl Moyer Incentive Program Guidelines: Light-Duty Vehicle Chapter. The proposed revisions to the VAVR regulation include adding criteria for the Voluntary Repair of Light–Duty Vehicles. The hearing will be held December 7, 2006. See http://www.oal.ca.gov/notice/42z-2006.pdf (p.1570)

Toxic Substances:

  • The Office of Environmental Health Hazard Assessment has extended the public comment period for its intent to list anthraquinone under Proposition 65 as a chemical known to the state to cause cancer in accordance with the regulatory criteria in 22 Cal. Code Regs. §12306. Comments are due December 19, 2006. See http://www.oal.ca.gov/notice/41z-2006.pdf (p. 1542)

Wildlife:

  • The Fish and Game Commission will hold a public hearing on proposed amendments to 14 Cal. Code Regs. §671.5, relating to Disposition of Wild Animals Possessed in Violation of Regulations. The hearing will be held December 8, 2006. Comments are due December 6, 2006. See http://www.oal.ca.gov/notice/42z-2006.pdf (p.1568)

COLORADO

Water:

CONNECTICUT

Fisheries:

FLORIDA

Waste:

  • The Department of Environmental Protection, Division of Waste Management will hold a series of workshops to provide training to the general public on Risk Based Corrective Action in accordance with Chapter 62-780, Florida Administrative Code. The workshops will be held November 8 and 27, 2006. See http://faw.dos.state.fl.us/fawframes.html (p.4972)

Water:

  • The Department of Environmental Protection will hold a public meeting to inform the public on the development process of the Terra Ceia Aquatic Preserve Management Plan and to solicit input on issues in the plan. The meeting will be held November 13, 2006. See http://faw.dos.state.fl.us/fawframes.html (p.4874)
  • Northwest Florida Water Management District will hold a public hearing on regulatory matters, on land acquisition matters, and on the 2006 Update to the Regional Water Supply Plan for Santa Rosa, Okaloosa, and Walton Counties. The hearing will be held October 26, 2006. See http://faw.dos.state.fl.us/fawframes.html (p. 4879)

ILLINOIS

Water:

IOWA

Land Use:

  • The Environmental Protection Commission will hold a public hearing on proposed amendments to Chapter 11, "Tax Certification of Pollution Control or Recycling Property," Iowa Administrative Code. These amendments reflect the expansion of the property tax exemption to include property used to process waste glass products. The hearing will be held November 8, 2006. See http://www.legis.state.ia.us/Rules/Current/Bulletin/IAB061011.htm

Water:

  • The Environmental Protection Commission will hold a public hearing the proposed amendment of Chapter 43, "Water Supplies--Design and Operation," Iowa Administrative Code. This chapter pertains to the public water supply program's requirements for design and operation. The hearing will be held November 1, 2006. See http://www.legis.state.ia.us/Rules/Current/Bulletin/IAB061011.htm

MAINE

Fisheries:

  • The Department of Marine Resources will hold a public hearing on proposed amendments to Chapter 2, Aquaculture Lease Regulations, §§12, 45, and 60 (Rule Number 2006-P277). The amendments would revise the acreage cap set forth in Chapter 2 to 1,000 acres in accordance with 12 MRSA §6072(13-A), paragraph B, effective April 4, 2006. Other proposed changes would add the definition of mean low-water, add the option and circumstances under which the Department could delete a species from a lease, add a lease transfer fee exemption for immediate family members, and correct a reference in the experimental decision standards that applies only to standard leases. The hearing will be held November 13, 2006. Comments are due November 27, 2006. See http://www.maine.gov/sos/cec/rules/notices/2006/102506.htm

Land Use :

  • The Department of Conservation's Land Use Regulation Commission has proposed rule changes regarding Permit Application Fees, affecting Ch. 1, General Provisions, and Ch. 10, Land Use Districts and Standards. Comments are due November 17, 2006. See http://www.maine.gov/sos/cec/rules/notices/2006/101806.htm

Toxic Substances :

  • The Board of Environmental Protection has proposed new Chapter 872, Exemptions from the Ban on Sale of Mercury-Added Switches, Relays and Measuring Devices, Rule Number 2006-P271. The rule establishes the procedure by which the manufacturer or user of a mercury relay, switch, instrument, or measuring device may apply for an exemption from the sales prohibition under the Maine Revised Statutes, Title 38, §1661-C, subsections 6 and 7. Comments are due November 17, 2006. See http://www.maine.gov/sos/cec/rules/notices/2006/101806.htm

MARYLAND

Fisheries:

MASSACHUSETTS

Air:

  • The Massachusetts Department of Environmental Protection will hold a public hearing on its proposed acceptance of the Massachusetts Turnpike Authority's "Central Artery (I-93)/Tunnel (I-90) Project Operating Certification (Certification) of the Project Ventilation System" under 310 CMR 7.38 (Certification of Tunnel Ventilation Systems in the Metropolitan Boston Air Pollution Control District).  The hearing will be held November 14, 2006. See http://www.mass.gov/dep/public/opcert.htm
  • The Massachusetts Department of Environmental Protection will hold public hearings on a state plan and proposed amendments to 310 CMR 7.02, Plan Approval and Emission Limitations, and 310 CMR 7.29, Emissions Standards for Power Plants.  A copy of the proposed state plan and amendments is available at http://mass.gov/dep/air/laws/regulati.htm#proposed.  The goal of the proposed amendments is to implement the requirements of the federal Clean Air Mercury Rule promulgated by U.S. EPA on May 18, 2005. The hearings will be held November 20 and 21, 2006. Comments are due December 1, 2006.  See http://www.mass.gov/dep/public/camrplan.htm

Hazardous and Solid Waste

  • The Massachusetts Department of Environmental Protection will hold public hearings on 310 CMR 30.000, Hazardous Waste. The proposed regulations would revise existing hazardous waste manifest regulations. The hearings will be held November 13, 14, 16, 17, 2006. Comments are due December 1, 2006. See http://www.mass.gov/dep/public/manifest.htm

MINNESOTA

General:

MISSOURI

General:

  • The Department of Natural Resources proposed to amend 10 CSR 23-1.075, Disciplinary Action and Appeal Procedures. This amendment proposes procedural regulations for all contested cases before the administrative board and outlines the procedures that would be taken when a permittee is affected by disciplinary action. No public hearing is scheduled. See http://www.sos.mo.gov/adrules/moreg/current/2006/v31n20/v31n20b.pdf (p. 1644)
  • The Department of Natural Resources is proposing to amend 10 CSR 50-2.030, Application for Permit to Drill, Deepen, Plug-Back, or Inject. The amendment would allow submission of oil and gas well locations as determined by a global positioning system receiver. No public hearing is scheduled. See http://www.sos.mo.gov/adrules/moreg/current/2006/v31n20/v31n20b.pdf (p. 1645)

NEBRASKA

  • The Department of Environmental Quality will hold a public hearing on proposed changes to Title 124, Rules and Regulations for the Design, Operation and Maintenance of On-site Wastewater Systems. The hearing will be held December 1, 2006. See http://www.deq.state.ne.us/

NEW JERSEY

Hazardous and Solid Waste:

  • The Department of Environmental Protection adopted special amendments and new rules to the Underground Storage Tank Rules, N.J.A.C. 7:14B, and amendments to the Department Oversight of the Remediation of Contaminated Sites Rules, N.J.A.C. 7:26C. These amendments and new rules were effective upon filing (October 3, 2006). See http://www.nj.gov/dep/rules/adoptions.html
  • The Department of Environmental Protection will hold a public hearing on a new rule and proposal to readopt with amendments the Discharges of Petroleum and Other Hazardous Substances rules, N.J.A.C. 7:1E. The hearing will be held November 15, 2006. Comments are due December 15, 2006. See http://www.nj.gov/dep/rules/notices/101606b.htm

Water:

  • The Department of Environmental Protection adopted amendments to revise and update several provisions of the Surface Water Quality Standards. These amendments will become effective October 16, 2006. See http://www.nj.gov/dep/rules/adoptions.html
  • The Department of Environmental Protection will hold a series of public hearings on the proposal to repeal the existing Flood Hazard Area Control rules and to adopt new rules in its place. The Department is also proposing related amendments to the Ninety-Day Construction Permits rules, Coastal Permit Program rules, and Coastal Zone Management rules. The hearings will be held November 20, 27, and December 4, 2006. See http://www.nj.gov/dep/rules/notices/100206a.htm

General:

  • The Department of Environmental Protection will hold a public hearing on the proposal to readopt, with amendments, the Well Construction and Maintenance Sealing of Abandoned Wells rules, N.J.A.C. 7:9D. These rules implement the provisions of the Subsurface and Percolating Waters Act, N.J.S.A. 58:4A-4.1 et seq. The hearing will be held November 2, 2006. See http://www.nj.gov/dep/rules/notices/101606a.htm

NEW MEXICO

Wildlife:

NEW YORK

Air:

  • The Department of Environmental Conservation will hold a public hearing on proposed amendments to 6 NYCRR§200.1(av) that would incorporate the new federal eight-hour ozone nonattainment designations, classifications, and geographic boundaries set forth at 69 Fed. Reg. 23951 (Apr. 30, 2004); and the new federal designations and geographic boundaries for fine particulate matter. The hearing will be held November 27, 2006. See http://www.dos.state.ny.us/info/register/2006/oct25/pdfs/Rules.pdf (p. 6)

OHIO

Air:

  • The Director of Environmental Protection will hold a public hearing on proposed amendments to the Ohio Administrative Code rules 3745-16-01 and 3745-16-02. These rules address good engineering practices for stack height design. The hearing will be held November 8, 2006. See http://www.registerofohio.state.oh.us/pdfs/phn/3745_NO_33418_20061003_0808.pdf
  • The Environmental Protection Agency's Division of Air Pollution Control has performed a review of the Ohio Administrative Code (OAC) Chapter 3745-103, which addresses the requirements for issuance of acid rain operating permits for electrical generating units. Because the Division found these rules to be necessary but with need for change, it proposed revisions to update the rules to match corresponding language in federal regulations, to address specific comments from U.S. EPA, and to add incorporation-by-reference language to meet the requirements of Ohio Revised Code (ORC) 121.72. The following rules are “reserved” in content and exempt from the requirements of ORC 119.032 (5-year review), but are being amended nonetheless, to update and clarify their authoring and amplifying statutes: 3745-103-30, 3745-103-40, 3745-103-46, 3745-103-49, and 3745-103-54. A public hearing will be held November 13, 2006. Comments are due November 13, 2006. See http://www.registerofohio.state.oh.us/pdfs/phn/3745_NO_33559_20061011_0914.pdf

Water:

RHODE ISLAND

Fisheries:

TENNESSEE

Air:

  • There will be a public hearing before the Technical Secretary of the Tennessee Air Pollution Control Board to consider the promulgation of amendments to the Tennessee Air Pollution Control Regulations and SIP. The proposed revisions to Rules 1200-3-4-.02, Definitions, and 1200-3-4-.04, Exceptions To Prohibition, include updated definitions and clarifications of existing exceptions necessary to effectively regulate open burning statewide. The hearing will be held November 20, 2006. See http://state.tn.us/sos/pub/tar/2006-10.pdf

TEXAS

Air:

  • The Commission on Environmental Quality has adopted amendments to its general air quality rules as they pertain to the emissions banking and trading. The revisions pertain to deficiencies U.S. EPA identified in its conditional approval of Texas's discrete emission reduction credits program as part of its SIP. This rulemaking became effective October 23, 2006. See http://www.sos.state.tx.us/texreg/sos/adopted/30.ENVIRONMENTAL%20QUALITY.html#314

Water:

UTAH

Hazardous and Solid Waste:

  • The Department of Environmental Quality is soliciting public comment on proposed revisions to its hazardous waste management program. The Department proposed revisions to R315-1, Utah Hazardous Waste Definitions and References; R315-2, General Requirements--Identification and Listing of Hazardous Waste; R315-3, Application and Permit Procedures for Hazardous Waste Treatment, Storage, and Disposal Facilities; R315-4-1, General Program Requirements; R315-5, Hazardous Waste Generator Requirements; R315-6, Hazardous Waste Transporter Requirements; R315-7, Interim Status Requirements for Hazardous Waste Treatment, Storage, and Disposal Facilities; R315-8, Standards for Owners and Operators of Hazardous Waste Treatment, Storage, and Disposal Facilities; R315-12, Administrative Procedures; R315-13, Land Disposal Restrictions; R315-14, Standards for the Management of Specific Hazardous Wastes and Specific Types of Hazardous Waste Management Facilities; and R315-50, Appendices. The purpose of these amendments is to adopt federal regulations to maintain equivalency with U.S. EPA rules and to retain authorization. Comments are due November 15, 2006. See http://www.rules.utah.gov/publicat/bulletin/2006/20061015/content.htm

Water:

VERMONT

Hazardous and Solid Waste:

VIRGINIA

Hazardous and Solid Waste:

WISCONSIN

Air:

  • The Department of Natural Resources will hold a public hearing on revisions to ch. NR 440, Wis. Adm. Code, relating to incorporation of revisions and additions to the federal New Source Performance Standards. The hearing will be held November 21, 2006. Comments are due December 1, 2006. See http://www.dnr.state.wi.us/org/caer/ce/news/hearmeet.html
  • The Department of Natural Resources will hold a public hearing on revisions to chs. NR 460, 463 and 484, Wis. Adm. Code, relating to NESHAPs for iron and steel foundries. The hearing will be held November 16, 2006. Comments are due November 30, 2006. See http://www.dnr.state.wi.us/org/caer/ce/news/hearmeet.html

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

INTERNATIONAL

CANADA PROPOSES CLEAN AIR ACT

Canada has introduced new legislation, the Clean Air Act, that would cut greenhouse gas emissions by 40 to 65 percent by 2050 but sets no short-term targets for cutting greenhouse emissions. The proposed legislation would transfer a number of substances previously defined as toxic under the Canadian Environmental Protection Act to a new category labeled "air pollutants." The legislation, which must be passed by the House of Commons, is chided for being "far too weak and mak[ing] no reference to Canada's commitments under the Kyoto treaty." See http://www.newsone.ca/westfallweeklynews/ViewArticle.aspx?id=17361&source=2

UGANDA REJECTS WORLD BANK ENVIRONMENTAL POLICIES

The Ugandan Minister for Water and Environment, Maria Mutagamba, has announced that Uganda will soon adopt its own environmental policies apart from those of the World Bank (WB) and the African Development Bank (ADB). Mutagamba said that "Uganda will take approaches similar to those of development partners." The ADB and the WB require every loan seeker to have an environmental program within their proposals. Mutagamba said Uganda would address environmental issues without working under pressure from the WB and ADB. See http://allafrica.com/stories/200610160071.html

LIBERIAN PRESIDENT SIGNS NATIONAL FORESTRY REFORM LAW

Liberian President Ellen Johnson-Sirleaf, Africa's first democratically elected female head of state, has signed the landmark National Forestry Reform Law of 2006. Passage of the new law is a signal moment in Liberia's effort to turn the corner on a recent past when "blood timber" was used to fuel local and regional conflict under the Charles Taylor regime. "The new forestry law represents a giant step forward toward sustainable forestry, community empowerment, and economic recovery in Liberia," said Environmental Law Institute (ELI) Senior Attorney Bruce Myers. ELI has provided legal analysis and drafting guidance to Liberians as a core member of the Liberia Forest Initiative, a collaborative effort by government agencies, nongovernmental organizations, and other international organizations that promotes forestry reform in this West African nation of 3 million. See http://www.enn.com/net.html?id=1680

 

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