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Weekly Update Volume 36, Issue 34

12/04/2006

LITIGATION

ANIMAL WELFARE ACT, FINAL AGENCY ACTION:

The Ninth Circuit reversed the dismissal of an action challenging a USDA decision not to adopt a draft policy that would have provided guidance to zoos, research facilities, and other regulated entities in how to ensure the psychological well-being of non-human primates under the Animal Welfare Act (AWA). At least one of the individual plaintiffs, a "long-time volunteer and advocate for primates," had Article III standing based on the aesthetic injury she described, and, thus, federal jurisdiction was proper. In addition, the USDA's withdrawal of the draft policy constituted a final agency action reviewable under the APA. Had the policy been adopted, it would have been reviewable because it would have been characterized as a proposed interpretive rule having legal consequences that clarify existing obligations prescribed by the AWA. Similarly, the USDA's decision not to adopt the policy carried legal consequences. By leaving the status quo in place, the USDA gave regulated entities no incentive to adopt environmental enhancement plans and comply with standards once deemed necessary for the effective implementation of the AWA. Additionally, prior to abandoning its draft policy, the USDA held rulemaking proceedings and assembled a record amenable to judicial review. On remand, the district court must determine whether the USDA's withdrawal of the draft policy was arbitrary and capricious in violation of §706(2) of the APA. Animal Legal Defense Fund v. Veneman, No. 04-15788, 36 ELR 20232 (9th Cir. Nov. 22, 2006) (47 pp.).

NEPA, PRELIMINARY INJUNCTION, FORESTS:

The Ninth Circuit upheld a lower court decision refusing to preliminarily enjoin the U.S. Forest Service's implementation of a "hazardous fuel reduction project" in the Bitterroot National Forest in Montana. The project entails the treatment of 4,938 acres of land within the forest. The group argued that the Service irreversibly and irretrievably committed resources in advance of a final decision by premarking trees for harvesting in violation of NEPA. While the Service did indeed spend $208,000 before the issuance of the record of decision, such expenditure did not necessarily prejudice the final outcome. Similarly, the group was unlikely to succeed on its claim that the Service engaged in a "pattern and practice of selective inclusion and exclusion" of public collaboration in choosing the plan for the project. And although the group raised some valid concerns regarding the opinions of a soil scientist, many of the scientist's recommendations were incorporated into the final EIS and, therefore, the probability of success on this claim was low. Nor did the district court abuse its discretion in weighing the respective hardships. WildWest Institute v. Bull, No. 06-35662, 36 ELR 20238 (9th Cir. Nov. 29, 2006) (12 pp.).

FUNGICIDES, SETTLEMENT AGREEMENTS:

The Eleventh Circuit upheld a lower court decision denying a consortium of Florida growers' motions to amend their complaints against a fungicide manufacturer and entering summary judgment against them on their claims of fraudulent settlement, spoliation, and racketeering. The growers alleged that the fungicide was contaminated with a toxic chemical that killed their plants instead of the fungus on their plants. The parties eventually settled the case, but after learning of certain discovery infractions in a related case, the growers filed the instant action. The manufacturer filed a counterclaim for breach of the settlement agreement. The district court did not abuse its discretion in denying the growers' motion to amend as untimely. The growers waited too long to file the motion, and to allow an amendment at this stage of the litigation would prejudice the defendant. In addition, the lower court properly dismissed the growers' fraud, spoliation, and racketeering claims. Florida case law provides absolute immunity from tort claims based on a party's conduct during the course of litigation. And because the growers breached the settlement agreement by filing the instant suit, the lower court properly granted summary judgment in favor of the manufacturer on its breach of contract claim. Florida Evergreen Foliage v. E.I. Dupont de Nemours & Co., Nos. 04-14455, -14506, 36 ELR 20233 (11th Cir. Nov. 27, 2006) (17 pp.).

HAZARDOUS WASTE, FRAUD:

The Fifth Circuit affirmed in part and reversed in part a lower court decision dismissing homeowners' suit against a former landowner for allegedly dumping hazardous waste on the property before selling it to a developer. The homeowners failed to plead fraud with sufficient particularity, and the lower court did not abuse its discretion in denying a motion for leave to amend. However, the lower court erred in dismissing several tort claims sua sponte because it failed to provide the parties with any notice or opportunity to be heard before issuing its order of dismissal. This treatment of the case did not provide adequate fairness to the parties and, thus, constitutes reversible error. Carroll v. Fort James Corp., No. 05-60582, 36 ELR 20234 (5th Cir. Nov. 27, 2006) (13 pp.).

CWA, NEPA, WETLANDS:

A district court held that, "by the slimmest of margins," the U.S. Army Corps of Engineers' issuance of a regional general permit authorizing the dredge and fill of wetlands in a 48,150-acre region in Northwest Florida does not violate the CWA or NEPA. The scope of the permit is not beyond that contemplated by the CWA's general permitting scheme, it adequately describes a category of activities that are similar in nature, and the permit activities will cause only minimal adverse effects to the environment both individually and cumulatively. In addition, the Corps adequately addressed the required criteria of the CWA §404(b)(1) guidelines as well as the public interest review factors of 33 C.F.R. §320.4. The Corps also took the requisite "hard look" at the evidence in arriving at its FONSI determination, and it did not violate NEPA in rejecting the "no action" alternative. The court, therefore, vacated the preliminary injunction it had previously issued. Sierra Club v. United States Army Corps of Engineers, Nos. 3:05-cv-362-J-32TEM, 3:05-cv-459-J-32TEM, 36 ELR 20236 (M.D. Fla. Nov. 19, 2006) (Corrigan, J.) (115 pp.).

RCRA, USTs:

An EPA administrative law judge (ALJ) imposed a $3,085,293 penalty against a company for violating RCRA as well as certain federal and state UST regulations. Specifically, the ALJ ruled that the company failed to maintain required leak detection and control equipment and to perform required leak detection activities for 72 USTs at 23 gasoline stations in Maryland, Virginia, and the District of Columbia. This represents the largest penalty ever assessed by an EPA ALJ for violations of a federal environmental statute. In re Euclid of Virginia, Inc., RCRA No. 3-2002-0303, 36 ELR 47878 (EPA ALJ Nov. 9, 2006) (118 pp.).

CWA, NPDES PERMITS:

The EPA Environmental Appeals Board denied a mining company's petition for review of an EPA NPDES permit that places certain conditions on the company's ability to discharge treated wastewater from its mine into the South Fork Coeur d'Alene River. Specifically, the company challenged the permit's use of total recoverable metals rather than dissolved metals to express effluent limits, the permit's upper limit for pH, and the permit's inclusion of a requirement for both bioassessment monitoring and whole effluent toxicity testing. But because the mining company failed to show any clear error, abuse of discretion, or important policy matter warranting review of the permit, its petition was denied. In re HECLA Mining Co., NPDES Appeal Nos. 03-10, 06-05, 36 ELR 41306, 41307 (EPA EAB Oct. 31, 2006).

CWA, BEST MANAGEMENT PRACTICES:

A California appellate court denied an environmental group's petition for writ of mandate challenging a state permit allowing the U.S. Department of the Navy to discharge stormwater into the San Diego Bay. Although the state could have issued a permit that imposed numeric limits on chemicals in the Navy's stormwater discharges under the CWA and other applicable regulations, the state was authorized to instead require that the Navy limit its stormwater chemical discharges by employing best management practices (BMPs). The organization argued that CWA §402(p) does not authorize BMPs to control industrial stormwater discharges and that the only authority for use of BMPs in an industrial setting is provided by 40 CFR §122.44 (k)(3), which permits BMPs when numeric effluent limitations are not feasible. But there is nothing on the face of the statute that suggests that Congress intended to limit the use of BMPs in controlling stormwater discharges in general or that BMPs may be used in the case of municipalities and other nonindustrial stormwater discharges but not in the case of industrial discharges. Thus, it is reasonable to conclude that in enacting §402(p), Congress intended to give EPA and other permitting authorities wide discretion in regulating stormwater runoff, including the use of BMPs where the agencies believed they were appropriate. Divers' Environmental Conservation Organization v. State Water Resources Control Board, No. D046112, 36 ELR 20237 (Cal. App. 4th Dist. Nov. 29, 2006) (22 pp.).

TOXIC CHEMICALS, CIVIL PROCEDURE, FORUM NON CONVENIENS:

A California appellate court held that Texas is a suitable alternative forum for a family's California survival and wrongful death action against a chemical manufacturer in a case involving their husband and father who contracted fatal leukemia due to his alleged exposure to chemicals in both California and Texas. The decedent suffered some injury from exposure to chemicals in California, the forum selected by the family, but subsequently experienced exposure to chemicals for almost two decades in Texas, the forum preferred by the chemical manufacturer. The district court did not err in determining that California is a seriously inconvenient forum and that Texas provides a convenient one. The decedent spent the vast majority of his employment in Texas, the majority of the benzene exposure occurred in Texas at Texas printing companies, the decedent was diagnosed and treated in Texas, and he passed away in Texas. In addition, California has little interest in this litigation given the decedent's lengthy work history in Texas and the relative insignificance played by California corporations among the defendants. Meanwhile, Texas, where most of the chemical exposure occurred and where the decedent lived, worked, was treated, and died, has a superior interest in hearing this litigation. Morris v. AGFA Corp., No. A112832, 36 ELR 20235 (Cal. App. 1st Dist. Nov. 21, 2006) (19 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 amended NESHAPs for site remediation activities. 71 FR 69011 (11/29/06).
  • EPA approved the New Hampshire Department of Environmental Services' request to implement and enforce its regulation entitled "Asbestos Management and Control'' in lieu of the Asbestos NESHAPs as it applies to certain asbestos-related activities. 71 FR 68746 (11/28/06).
  • EPA approved New Mexico's plan to implement and enforce the emissions guidelines for existing municipal solid waste landfills under CAA §111(d). 71 FR 67807 (11/24/06).
  • EPA proposed to approve the New Hampshire Department of Environmental Services' request to implement and enforce its regulation entitled "Asbestos Management and Control'' in lieu of the Asbestos NESHAPs as it applies to certain asbestos-related activities; see above for direct final rule. 71 FR 68777 (11/28/06).
  • EPA proposed to approve New Mexico's plan to implement and enforce the emissions guidelines for existing municipal solid waste landfills; see above for direct final rule. 71 FR 67833 (11/24/06).
  • EPA announced that on September 27, 2006, the EPA Environmental Appeals Board denied in part and remanded in part a petition for review of a federal PSD permit issued to Indeck-Elwood, LLC, by the Illinois Environmental Protection Agency (decision available at 36 ELR 41305). 71 FR 67560 (11/22/06).
  • EPA announced that Maricopa County, Arizona, has resolved all of the issues identified in the Agency's May 17, 2005, Notice of Deficiency pertaining to the county's CAA title V operating permits program. 71 FR 67061 (11/20/06).
  • EPA announced that a first draft document titled Review of the National Ambient Air Quality Standards for Lead: Policy Assessment of Scientific and Technical Information will be available on or about December 4, 2006, and the related draft technical support document titled Lead Human Exposure and Health Risk Assessments and Ecological Risk Assessment for Selected Areas will be available on or about December 15, 2006. 71 FR 69117 (11/29/06).
  • SIP Approvals: Florida (reasonably available control technology (RACT) control techniques) 71 FR 68743 (11/28/06). Georgia (transportation control measure removal) 71 FR 68740 (11/28/06). Louisiana (Baton Rouge ozone nonattainment area) 71 FR 67308 (11/21/06). Texas (reid vapor pressure (RVP) requirements for gasoline) 71 FR 68480 (11/27/06).
  • SIP Proposals: Arkansas (PSD and new source review permitting provisions) 71 FR 69519 (12/1/06). Florida (RACT control techniques; see above for direct final rule) 71 FR 68776 (11/28/06). Georgia (transportation control measure removal; see above for direct final rule) 71 FR 68776 (11/28/06). Louisiana (Baton Rouge ozone nonattainment area; see above for final rule) 71 FR 67317 (11/21/06). Texas (RVP requirements for gasoline; see above for direct final rule) 71 FR 68517 (11/27/06).
  • SIP Withdrawal: Texas (volatile organic compounds) 71 FR 67311 (11/21/06).

HAZARDOUS AND SOLID WASTES:

  • EPA announced the availability of the Secondary Containment Grant Guidelines for States. 71 FR 67560 (11/22/06).
  • EPA announced the future availability of draft grant guidelines for states regarding the inspection provisions and state compliance report on the government USTs provision pursuant to the Energy Policy Act of 2005. 71 FR 67350 (11/21/06).
  • EPA entered into a proposed settlement under CERCLA concerning past response costs incurred at the General Electric Rome site in Rome, Georgia. 71 FR 67577 (11/22/06).
  • EPA entered into a proposed agreement under CERCLA concerning the McCormick & Baxter Superfund site, the Portland Harbor Superfund site, and the Triangle Park removal area located in Portland, Oregon, that requires the respondent to spend $3 million conducting a non-time critical removal action on the Triangle Park property and pay EPA's costs of overseeing that removal action. 71 FR 68613 (11/27/06).
  • The Agency for Toxic Substances and Disease Registry (ATSDR) announced the availability of one new and five updated final toxicological profiles of priority hazardous substances comprising the 18th set prepared by ATSDR. 71 FR 67871 (11/24/06).

MINING:

  • OSM approved an amendment to New Mexico's regulatory program under SMCRA concerning the award of costs and expenses, including attorney fees, incurred in connection with the administrative and judicial appeals process. 71 FR 69191 (11/29/06).

PUBLIC LAND:

  • FWS announced the availability of the final comprehensive conservation plan and FONSI for the D'Arbonne National Wildlife Refuge in Louisiana. 71 FR 67626 (11/22/06).
  • FWS announced the availability of a draft comprehensive conservation plan and EA for the Mississippi Sandhill Crane National Wildlife Refuge in Mississippi. 71 FR 67627 (11/22/06).
  • The National Park Service prepared a final EIS for the General Management Plan and Comprehensive River Management Plan for the Middle and South Forks Kings River, the North Fork Kern River, and for Sequoia and Kings Canyon National Parks in California. 71 FR 67158 (11/20/06).

TOXIC SUBSTANCES:

  • EPA announced the availability of a final report titled, An Inventory of Sources and Environmental Releases of Dioxin-Like Compounds in the United States for the Years 1987, 1995 and 2000. 71 FR 69564 (12/1/06).
  • EPA seeks comment on the external review draft documents entitled Toxicological Reviews of Cyanobacterial Toxins: Anatoxin-a, Cylindrospermopsin and Microcystins LR, RR, YR and LA; these draft assessments discuss potential human health effects of exposure to these cyanobacterial toxins for four durations--acute, short-term, subchronic, and chronic--focusing on noncancer effects due to oral exposure. 71 FR 67119 (11/20/06).
  • EPA seeks comment on the implementation of the pilot phase of the Voluntary Children's Chemical Evaluation Program, which was designed to collect health effects, exposure, and risk information on chemicals to which children are likely to be exposed, and to make that information available to the public so the public may better understand the potential health risks to children associated with certain chemical exposures. 71 FR 67121 (11/20/06).

WATER:

  • EPA is soliciting nominations for the 2007 Blue Ribbon Water Quality Trading Awards. 71 FR 67124 (11/20/06).
  • EPA announced that it intends to approve revisions to Texas' Public Water System Supervision Program; the state adopted Lead and Copper Rule Minor Revisions, the Filter Backwash Recycling Rule, and the Long Term 1 Enhanced Surface Water Treatment Rule. 71 FR 67579 (11/22/06).
  • EPA announced that it has tentatively approved a revision to Pennsylvania's public water system supervision program; the revision establishes a new maximum contaminant level for uranium and revises monitoring requirements. 71 FR 67855 (11/24/06).
  • EPA announced that it has tentatively determined that adequate facilities for the safe and sanitary removal and treatment of sewage from all vessels are reasonably available for the navigable waters of the Lynnhaven River and its tributaries near Virginia Beach, Virginia. 71 FR 67352 (11/21/06).

WILDLIFE:

  • FWS announced its 90-day finding on a petition to list the Columbian sharp-tailed grouse as threatened or endangered; the agency determined that listing is not warranted at this time. 71 FR 67318 (11/21/06).
  • FWS announced that it intends to prepare an EIS for the proposed Southern Nye County Multiple Species Habitat Conservation Plan and to issue an incidental take permit for endangered and threatened species, including the desert tortoise, in connection with proposed development in the area. 71 FR 67363 (11/21/06).
  • FWS proposed to revise currently designated critical habitat in Orange and San Diego counties, California, for the tidewater goby by expanding the habitat to Del Norte, Humboldt, Los Angeles, Marin, Mendocino, Monterey, San Luis Obispo, San Mateo, Santa Cruz, Santa Barbara, Sonoma, and Ventura counties, California. 71 FR 68913 (11/28/06).
  • FWS proposed to list six foreign birds as endangered under the ESA: black stilt, caerulean Paradise-flycatcher, giant ibis, Gurney's pitta, Socorro mockingbird, and long-legged thicketbird. 71 FR 67530 (11/22/06).
  • FWS proposed to designate critical habitat in San Bernardino County, California, for the Bear Valley sandwort, ash-gray paintbrush, and southern mountain wild-buckwheat. 71 FR 67711 (11/22/06).
  • NOAA-Fisheries announced the availability of the proposed recovery plan for southern resident killer whales. 71 FR 69101 (11/29/06).
  • NOAA-Fisheries implemented Amendment 26 to the Fishery Management Plan for the Reef Fish Fishery of the Gulf of Mexico to establish an individual fishing quota program for the commercial red snapper sector. 71 FR 67447 (11/22/06).
  • NOAA-Fisheries issued a final rule to implement Amendment 68, the Central Gulf of Alaska Rockfish Pilot Program, to the Fishery Management Plan for Groundfish of the Gulf of Alaska. 71 FR 67209 (11/20/06).
  • NOAA-Fisheries announced that the quotas for the Atlantic surfclam and ocean quahog fisheries for 2007 remain status quo. 71 FR 67105 (11/20/06).

DOJ NOTICES OF SETTLEMENT:

  • United States v. Alcoa, Inc., No. A-03-CA-222-SS (W.D. Tex. Nov. 15, 2006). Settling CAA defendants that failed to comply with an earlier consent decree concerning its facility in Rockdale, Texas, must, among other things, pay $859,000 in stipulated penalties; must shut down three existing electricity generating units four months earlier than originally required by the consent decree; and must commit to meeting certain emissions control limits. 71 FR 67640 (11/22/06).
  • United States v. Arnett, No. 3:05cv270-RS (N.D. Fla. Nov. 14, 2006). Settling CWA defendants that discharged pollutants into U.S. waters without a permit must restore or mitigate portions of the wetlands at issue and pay civil penalties. 71 FR 67641 (11/22/06).
  • United States v. Rathon Corp., No. 06-07048 (C.D. Cal. Nov. 3, 2006). Settling CERCLA defendants must perform remedial action and pay response costs in connection with the release and threatened release of hazardous substances at the Puente Valley Operable Unit of the San Gabriel Valley Area 4 Superfund site in Los Angeles County, California. 71 FR 67641 (11/22/06).
  • United States v. Saint-Gobain Corp., No. 06-07047 (C.D. Cal. Nov. 2, 2006). Settling CERCLA defendants must perform remedial action and pay response costs in connection with the release and threatened release of hazardous substances at the Puente Valley Operable Unit of the San Gabriel Valley Area 4 Superfund site in Los Angeles County, California. 71 FR 67641 (11/22/06).
  • United States v. CBS Co., No. 1-06-CV-2130 (M.D. Pa. Oct. 31, 2006). Two settling CERCLA defendants must pay $239,480, plus interest, in response costs incurred at the Shriver's Corner Superfund site in Adams County, Pennsylvania; a third settling defendant must pay the United States the sum of $98,000; and the United States, on behalf of certain military departments and agencies, must contribute $372,480 toward remedial costs incurred by EPA and must contribute $182,411 toward past response costs incurred by private defendants. 71 FR 67367 (11/21/06).
  • United States v. Honeywell International, Inc., No. 06-00387-MCE-JFM (E.D. Cal. Nov. 3, 2006). A settling CERCLA defendant must pay $2 million in past U.S. response costs incurred at the Central Eureka Mine Superfund Site in Amador County, California, in addition to the approximately $3 million it has already spent responding to releases at the site. 71 FR 67162 (11/20/06).
  • United States v. Pala Band of Mission Indians, No. 06-cv-2323-H (NLS) (S.D. Cal. Nov. 2, 2006). Settling CWA defendants that discharged pollutants into waters of the United States without a permit must pay a civil penalty and mitigate the environmental impacts by making a contribution to The Nature Conservancy. 71 FR 67162 (11/20/06).

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

THE CONGRESS

Congress is currently in recess but will reconvene on December 4, 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 Massachusetts South Carolina Alaska Minnesota Utah California New Jersey Washington Colorado New Mexico   Florida Oklahoma  

ALABAMA

Water:

  • The Department of Environmental Management will hold a public hearing for the purpose of amending Chapter 335-10-1 to clarify existing procedures and revising continuing education requirements for certified water and wastewater operators. The hearing will be held January 4, 2007. See http://www.adem.state.al.us//PubHearings/11Div10.htm

ALASKA

Air:

CALIFORNIA

Land Use:

  • The Board of Forestry and Fire Protection will hold a public hearing on a proposed amendment to California Code of Regulations, title 14, division 1.5, chapter 7, article 4. The proposed regulation amends the fire prevention standards for electrical utilities. Specifically, it adds §1257(a)(3), a new exemption to existing utility vegetation clearing requirements that allows for healthy, mature trees (trunks and limbs) that are sufficiently rigid so they do not present a risk to public safety to be closer to powerlines than the minimum clearing distance under existing regulations. The hearing will be held January 10, 2007. Comments are due January 2, 2007. See http://www.oal.ca.gov/notice/46z-2006.pdf (p. 1711)

Toxic Substances:

  • The Department of Toxic Substances Control is soliciting public comment on proposed amendments to California Code of Regulations, title 22, division 4.5, chapter 11, article 5, Appendix XII. The amendments, which would add §66261.9.5 and §§67386.1 through 67386.11, would establish permanent streamlined management standards for treated wood waste with which the regulated community may comply in place of the general hazardous waste control laws. Comments are due January 8, 2006. See http://www.oal.ca.gov/notice/47z-2006.pdf (p. 1755)

COLORADO

Air:

  • The Department of Public Health and Environment will hold a series of public hearings before the Colorado Air Quality Control Commission regarding proposed revisions to the Colorado SIP that pertain to the interstate transport of criteria air pollutants, fine particulate matter, and the eight-hour ozone standard. The hearings will be held February 15 and 16, 2007. See http://www.cdphe.state.co.us/op/aqcc/aqccnot.html

Water:

  • The Department of Public Health and Environment will hold a public hearing for consideration of the adoption of revised ammonia standards for multiple segments in the Arkansas River Basin, the Lower and Upper Colorado River Basins, North Platte River (Planning Region 12), the Rio Grande Basin, the South Platte River Basin, the Laramie River Basin, the Republican Basin, and the Smoky Hill River Basin (Regulation Nos. #32 (5 CCR 1002-32); #33 (5 CCR 1002-33); #36 (5 CCR 1002-36); #37 (5 CCR 1002-37); and #38 (5 CCR 1002-38)). The hearing will be held March 13, 2007. See http://www.cdphe.state.co.us/op/wqcc/MeetingsandHearings/HearingNotices/rulemaking/wqrmnot.html

FLORIDA

Water:

  • The Southwest Florida Water Management District proposed to amend Rule 40D-1.659 to incorporate by reference revisions to the proposed well construction location and design form relating to water use permitting. See http://faw.dos.state.fl.us/fawframes.html (p. 5563)
  • The Southwest Florida Water Management District has proposed an amendment to Rule 40D-1.607 to update reference to the form used to request modification of certain environmental resource construction permits. See http://faw.dos.state.fl.us/fawframes.html (p.5564)
  • The Southwest Florida Water Management District has proposed an amendment to Rule 40D-8 to establish minimum lake levels and guidance levels for Big Gant Lake, Lake Deaton, Lake Miona, Black Lake, Lake Okahumpka and Lake Panasoffkee in Sumter County, Florida, based on the District's current minimum lake level establishment methodology described in Rule 40D-8.624, F.A.C. The proposed amendments also repeal guidance levels previously adopted for these lakes and correct a rule reference. See http://faw.dos.state.fl.us/fawframes.html (p. 5565)

MASSACHUSETS

Water:

MINNESOTA

Land Use:

  • The Minnesota Department of Natural Resources will hold a public meeting on the proposal to designate select non-motorized areas and trails in the Badoura State Forest, Paul Bunyan State Forest, and county lands in Hubbard County, Minnesota. The proposal is a continuation of the approved Hubbard County Off-Highway Vehicle plan, which was signed into law on March 17, 2006. The meeting will be held January 17, 2007. Comments are due January 31, 2007. See http://www.comm.media.state.mn.us/bookstore/stateregister/31_21.pdf (p.676)

NEW JERSEY

Land Use:

  • The Department of Environmental Protection is readopting, with amendments, the Highlands Water Protection and Planning Act rules, N.J.A.C. 7:38. The rules incorporate the requisite standards of various land use, water resource, and environmental protection statutes and establish a consolidated Highlands permitting review and approval process for activities constituting major Highlands development in the preservation area. The rule adoption will be published in the December 4, 2006, New Jersey Register. See http://www.nj.gov/dep/rules/adoptions.html

General:

  • The Department of Environmental Protection is soliciting public comment on the readoption and amendment of N.J.A.C. 7:2, State Park Service Code. The amendments update definitions; update the manner in which the Park Service accepts reservations for its overnight facilities; update the local golf course rules, reservations policy, golf tournament procedures, school team practices, and golf etiquette sections of the rules relating to the state-owned golf courses; modify berthing permit and assignment procedures at state marinas to improve operations and customer service; increase some fees and add fees for newly acquired facilities and newly reinstated services that the Park Service provides; and modify the fee structure to provide flexibility to collect the increased sales tax. Comments are due January 19, 2007. A copy of the proposal is available at http://www.nj.gov/dep/rules. See http://www.nj.gov/dep/rules/notices/112006a.htm

NEW MEXICO

Air:

NEW YORK

Air:

  • The Department of Environmental Conservation has adopted an emergency amendment to Part 205 of Title 6 NYCRR, Architectural and Industrial Maintenance Coatings, in order to reduce volatile organic compound emissions to attain the ozone NAAQS. This amendment became effective November 7, 2006. See http://www.dos.state.ny.us/info/register/2006/Nov22/pdfs/rules.pdf (p. 6)
  • The Department of Environmental Conservation will hold a public hearing to consider the amendment of section 621.4(g)(2)(iii) of Title 6 NYCRR, New Source Review for New Modified Facilities. The hearing will be held January 9, 2007. See http://www.dos.state.ny.us/info/register/2006/Nov22/pdfs/rules.pdf (p. 10)

Hazardous and Solid Waste:

  • The Department of Environmental Conservation has repealed Part 375 and added new Part 375 to Title 6 NYCRR, the Environmental Remediation Program, in order to revise, reorganize, and restructure existing Part 375 to cover the requirements provided by, and to provide for the implementation of, the 2003 and 2004 Superfund/Brownfield Acts. See http://www.dos.state.ny.us/info/register/2006/nov29/pdfs/rules.pdf (p. 15)

OKLAHOMA

Water:

SOUTH CAROLINA

Hazardous and Solid Waste:

  • The Board of Health and Environmental Control will hold a public hearing on proposed amendments to R. 61-79, Hazardous Waste Management Regulations, intended to meet compliance requirements of the U.S. EPA and to maintain state consistency with relaxed regulations of the U.S. EPA. The hearing will be held February 8, 2007. See http://www.scdhec.gov/lwm/pubs/notices/fed_comp.pdf

UTAH

Air:

  • The Department of Environmental Quality will hold a public hearing on a proposed amendment that would add a new Section XXII, Interstate Transport, to the SIP that is incorporated by reference by Rule R307-110. The hearing will be held December 21, 2006. Comments are due January 2, 2007. See http://www.rules.utah.gov/publicat/bulletin/2006/20061201/29227.htm
  • The Department of Environmental Quality is soliciting public comment on the proposed amendment of Rule R307-214-2, Sources, which updates the incorporation of all changes to delegated maximum achievable control technology (MACT) standards through July 1, 2006, of the current Code of Federal Regulations. State operation of the MACT program is a federally required component of the operating permits program under Title V of the CAA. By updating this rule, the state will ensure the enforcement of the most current versions of the MACT, and will maintain primacy over administration of these standards on Utah sources. Comments are due January 2, 2007. See http://www.rules.utah.gov/publicat/bulletin/2006/20061201/29194.htm
  • The Department of Environmental Quality will hold a public hearing on the proposed amendment of Rule R307-210, Stationary Sources, to update Utah's rule to incorporate the latest federal requirements, and to exclude from incorporation the recent Subpart HHHH, which regulates mercury emissions from electric generating units (see filings below on Rules R307-220, R307-224, and R307-424). The hearing will be held December 12, 2006. Comments are due January 2, 2007. See http://www.rules.utah.gov/publicat/bulletin/2006/20061201/29228.htm
  • The Department of Environmental Quality will hold a public hearing on the proposed amendment of Rule R307-220 to add a new Section R307-220-5 to incorporate by reference the new Plan for Mercury Emissions at Coal-Fired Electric Generating Units, and to delete specific definitions from Section R307-220-1. The hearing will be held December 12, 2006. Comments are due January 2, 2007. See http://www.rules.utah.gov/publicat/bulletin/2006/20061201/29229.htm
  • The Department of Environmental Quality will hold a public hearing on the proposed new Rule R307-224, Mercury Emission Standards: Coal-Fired Electric Generating Units, to reduce present and future emissions of mercury from coal-fired electric generating units. The hearing will be held December 12, 2006. Comments are due January 2, 2007. See http://www.rules.utah.gov/publicat/bulletin/2006/20061201/29230.htm
  • The Department of Environmental Quality will hold a public hearing on the proposed new Rule R307-424, Mercury Requirements for Electric Generating Units, to reduce present and future emissions of mercury from coal-fired electric generating units. The hearing will be held December 12, 2006. Comments are due January 2, 2007. See http://www.rules.utah.gov/publicat/bulletin/2006/20061201/29231.htm

Solid and Hazardous Waste:

WASHINGTON   Air:

  • The Department of Ecology will hold a public hearing on proposed amendments to Chapter 173 to consolidate air quality program fees into a new chapter, Chapter 173-455 WAC, Air Quality Fee Rule. The hearing will be held January 8, 2007. Comments are due January 15, 2007. See http://www.ecy.wa.gov/laws-rules/wac173455/p0614.pdf

Land Use:

  • The Department of Ecology has adopted amendments to Chapter 173-160 WAC, Minimum Standards for Construction and Maintenance of Wells, and Chapter 173-162 WAC, Rules and Regulations Governing the Regulation and Licensing of Well Contractors and Operators. Chapters 173-160 and 173-162 were revised for several reasons, including the need to remain consistent with legislative changes that were made to the drilling statute (Chapter 18.104 RCW) in 2005, to be current with new drilling technologies, to clarify provisions of the existing rules, and because of driller request. The amendments will become effective December 22, 2006. See http://www.ecy.wa.gov/pubs/0611037.pdf

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

INTERNATIONAL

RUSSIAN UPPER CHAMBER OF PARLIAMENT PASSES FORESTRY CODE

Russia's upper chamber of parliament passed a new forestry code that would remove forests from private ownership and transfer the task of protecting and maintaining them from federal to regional governments. The new bill is severely criticized by environmentalists, who say that it lacks enabling legislation to make it work and paves the way for development in forests. See http://www.enn.com/today.html?id=11723

TEN AFRICAN COUNTRIES TO SIGN PACT ON NILE USE

Burundi, Democratic Republic of Congo, Egypt, Eritrea, Ethiopia, Kenya, Rwanda, Sudan, Tanzania, and Uganda will sign a new agreement on the use of the Nile River before the end of this year, a Kenyan Cabinet minister said. The initiative was launched in February 1999 as a regional partnership in pursuit of long-term development and management of the Nile. A commission, with headquarters in Uganda, will regulate the use of the river. Additionally, the treaty will prohibit any projects that could decrease the volume of the water reaching Egypt; it also gives Cairo the right to inspect the length of the river. See http://allafrica.com/stories/200611210525.html

FIJI FINALIZES ENVIRONMENTAL IMPACT ASSESSMENT REGULATIONS

A final draft of Fiji's Environment Impact Assessment Regulations has been completed, implementing Part 4 of the Environment Management Act (2005). Director of Environment Epeli Nasome said that the regulation "aims to predict environmental impacts at an early stage in project planning and design, find ways and means to reduce adverse impacts, shape projects to suit the local environment and present the predictions and options to decisionmakers." See http://www.fijitimes.com/story.aspx?id=52609

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

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