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Weekly Update Volume 36, Issue 36

12/26/2006

LITIGATION

CAA, BEST AVAILABLE RETROFIT TECHNOLOGY:

The D.C. Circuit upheld EPA's regional haze rule, which was promulgated to remedy visibility impairment in national parks and wilderness areas. The rule requires that under specified circumstances, states impose best available retrofit technology (BART) on any BART-eligible sources. The rule also permits states to reduce haze by alternate means, including a regional approach, so long as the alternative would improve visibility more rapidly than under BART. Industry groups argued that the rule inappropriately requires states to apply BART to too many sources, whereas environmental groups argued that the rule improperly allows states to exempt too many source from BART. The court, however, concluded that EPA's interpretation of CAA §169A in enacting the rule was reasonable and rejected both challenges. Utility Air Regulatory Group v. Environmental Protection Agency, No. 05-1353, 36 ELR 230246 (D.C. Cir. Dec. 12, 2006) (15 pp.).

WORLD TRADE CENTER, PARTICULATE MATTER, INSURANCE:

The Second Circuit vacated and remanded a lower court's grant of summary judgment in favor of an insurance company in a case involving building damage caused by particulate matter emanating from the collapse of the World Trade Center Towers. The insurer denied the claim under the insurance policy's contamination exclusion. Yet questions of material fact exist as to the meaning of the term "contamination" under the policy. Contamination was not the cause of the damage that resulted from contact between the cloud of particulate matter and the building, but the resulting damage itself. Insofar as the damage constituted contamination, it is excluded from coverage. Insofar as the damage was not contamination, however, it is covered by the policy. Parks Real Estate Purchasing Group v. National Union Fire Insurance Co., No. 05-5890, 36 ELR 20251 (2d Cir. Dec. 21, 2006) (26 pp.).

APA, SMCRA, COAL MINING:

The Fourth Circuit upheld a lower court decision that the DOI violated the APA when it approved certain amendments to West Virginia's surface coal mining regulatory program. Contrary to arguments of the DOI, the agency was required to comply with the APA's §553 rulemaking procedures. SMCRA does not preempt the APA's requirement to publish a written statement explaining the findings that lead to the approval of a state program. In addition, the approval of state program amendments constitutes rulemaking for purposes of judicial review. Hence, the lower court did not err in applying APA standards to the rulemaking. In addition, the DOI's failure to analyze and explain its decision to approve West Virginia's state program amendment rendered the action arbitrary and capricious. The amendment deleted the definition of "cumulative impact" from the state regulations. The DOI based its decision to approve the deletion exclusively on the absence of a corresponding definition in the federal regulations, ignoring any actual effect that the change might have on West Virginia's program. The APA procedures, however, are designed to avoid that kind of rubber-stamp approval and require more of the agency. Ohio River Valley Environmental Coalition, Inc. v. Kempthorne, No. 06-1122, 36 ELR 20247 (4th Cir. Dec. 12, 2006) (13 pp.).

ESA, CONSULTATION REQUIREMENTS:

The Ninth Circuit denied a petition to review FERC's decision not to initiate formal consultation with NOAA-Fisheries about the operation of a hydroelectric project. The project is operated by a utility under a 30-year license that FERC issued in 1980. The petitioners seek the consultation in order to protect Chinook salmon that were declared a threatened species in 1999. The ESA, however, imposes no duty to consult about activities conducted by the utility pursuant to the previously issued, valid FERC license. The ESA and the applicable regulations mandate consultation with NOAA-Fisheries only before an agency takes some affirmative agency action, such as issuing a license. Here, FERC took no affirmative action concerning the utility's existing license that would trigger the ESA's consultation requirements. California Sportfishing Protection Alliance v. Federal Energy Regulatory Comm'n, No. 05-73064, 36 ELR 20245 (9th Cir. Dec. 12, 2006) (12 pp.).

MIGRATORY BIRD TREATY ACT, MUTE SWANS:

The D.C. Circuit affirmed a lower court decision denying a motion for preliminary injunction that would require the protection of mute swans under the Migratory Bird Treaty Act. The Act, which implements the migratory bird conventions, makes it unlawful to hunt or kill migratory birds native to the United States. Congress, however, amended the Act in 2004 under the Migratory Bird Treaty Reform Act. The amended Act makes clear that mute swans are no longer protected by the Act. Therefore, the canon against interpreting a statute to abrogate a treaty does not apply because the amended statute is unambiguous. Fund for Animals, Inc. v. Kempthorne, No. 05-5352, 36 ELR 20248 (D.C. Cir. Dec. 15, 2006) (19 pp.).

RADIATION, VICARIOUS LIABILITY:

A Colorado court dismissed individuals' claims for personal injuries and property damage against a company that contracted with an oil and gas corporation that engaged in radioactive tracer "fracing" near the individuals' property in the early 1990s. The individuals claimed that the fracing contaminated their water well, causing one of them to suffer from neurological disorders. The complaint, however, contains no factual allegations from which it can be inferred that the company was participating in the fracing or is otherwise vicariously liable for the corporation's conduct at that time. Mobaldi v. CER Corp., No. 06-cv-6335, 36 ELR 20249 (Colo. Dist. Ct. Dec. 15, 2006) (McMullen, J.) (2 pp.) (Defense counsel included Daniel J. Dunn of Holme Roberts & Owen LLP in Denver, Colo.).

USTs, NEW JERSEY SPILL COMPENSATION AND CONTROL ACT:

A New Jersey appellate court reversed and remanded a lower court decision dismissing a property owner's claims against the former tenants and operators of a gas station in New Jersey and two oil companies that supplied gasoline to the site. There were issues of material fact as to whether delivery spills and overfills caused contamination based on the site data and a forensic analysis of the gasoline samples. There were also issues of material fact concerning leakage from the USTs at the site based on documents showing inventory discrepancies and water in the tanks.  In addition, the court erred in denying the plaintiff's request for a jury trial on its contract and negligence claims. These claims should have been before a jury even though the New Jersey Spill Compensation and Control Act (Spill Act) claim is to be tried by the bench.  Finally, the lower court erred in holding that one of the tenant/operators owned the USTs and that the principal of that company was personally liable for cleanup costs under the Spill Act and all leasehold damages under veil-piercing theory.  W.R. Grace & Co. v. Weja, Inc., No. A-5527-03T1, 36 ELR 20250 (N.J. Super. Ct. App. Div. Nov. 30, 2006) (40 pp.) (Plaintiffs' counsel included Robert G. Rose of Pitney Hardin LLP in Morristown, N.J.).

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 surface coating of automobiles and light-duty trucks, metal parts and products, and plastic parts and products. 71 FR 76922 (12/22/06).
  • EPA finalized one of its two June 14, 2006, proposed options (71 FR 34421) regarding whether to amend the current NESHAPs for synthetic organic chemical manufacturing industry units; the Agency decided not to impose further controls and not to revise the existing standards based on the residual risk and technology review. 71 FR 76603 (12/21/06).
  • EPA promulgated its final rule amendments concerning NESHAPs for new and existing sources in the Portland cement manufacturing industry. 71 FR 76517 (12/20/06).
  • EPA issued a final rule interpreting the scope of certain monitoring requirements for state and federal operating permit programs. 71 FR 75422 (12/15/06).
  • EPA made specific findings that certain states did not submit their Clean Air Mercury Rule state plans by the November 17, 2006, deadline and provided notice of the status of other state plan submissions. 71 FR 75117 (12/14/06).
  • EPA issued a notice of data availability in support of the proposed rule issued on August 17, 2006, entitled National Emission Standards for Hazardous Air Pollutants--Halogenated Solvent Cleaning (71 FR 47669); the notice addresses new information the Agency received concerning the unique nature and size of degreasing machines used by certain types of facilities. 71 FR 75182 (12/14/06).
  • EPA finalized an exemption to the phaseout of methyl bromide to meet the needs of 2007 critical uses. 71 FR 75385 (12/14/06).
  • EPA announced that it is reconsidering the new source standards for mercury and total hydrocarbons that are part of NESHAPs for the Portland cement manufacturing industry, noted above. 71 FR 76553 (12/20/06).
  • EPA proposed to amend NESHAPs for surface coating of automobiles and light-duty trucks, metal parts and products, and plastic parts and products; see above for direct final rule. 71 FR 76956 (12/22/06).
  • EPA proposed a federal plan to implement CAA §111 mercury standards of performance for new and existing coal-fired electric utility steam generating units located in states or Indian Country covered by the Clean Air Mercury Rule (CAMR) that do not have EPA approved and currently effective state plans; in addition, the Agency proposed certain revisions to both the CAMR state plan model cap-and-trade rule and the acid rain program regulations. 71 FR 77099 (12/22/06).
  • EPA proposed a federal plan to implement emission guidelines for existing other solid waste incineration units located in states and Indian country without effective state or tribal plans. 71 FR 75815 (12/18/06).
  • EPA proposed to promulgate a federal implementation plan if it approves the Forest County Potawatomi Community's request to redesignate certain trust lands within its reservation as Class I with respect to the CAA PSD construction permit program. 71 FR 75694 (12/18/06).
  • SIP Approvals: Maine (eight-hour ozone NAAQS) 71 FR 71489 (12/11/06). Maryland (eight-hour ozone NAAQS) 71 FR 76920 (12/22/06). Nevada (monitoring and volatile organic compound rules) 71 FR 71486 (12/11/06). Ohio (nitrogen oxides emissions regulations) 71 FR 76918 (12/22/06).
  • SIP Proposals: California (permitting requirements) 71 FR 75916 (12/19/06). Nevada (excess emissions provisions) 71 FR 75690 (12/18/06). North Dakota (new source review reform regulations) 71 FR 75687 (12/18/06).

HAZARDOUS WASTE:

  • EPA revised the toxics release inventory reporting requirements to reduce regulatory burden. 71 FR 76932 (12/22/06).

MINING:

  • OSM approved an amendment to North Dakota's regulatory program under SMCRA. 71 FR 76145 (12/20/06).

PUBLIC LAND:

  • FWS issued regulations providing winter subsistence harvest opportunities for lake trout, Dolly Varden, and rainbow trout in Alaska's Tustumena Lake. 71 FR 75883 (12/19/06).
  • FWS proposed to establish regulations for public lands in Alaska for fishing seasons, harvest limits, methods, and means related to the taking of fish and shellfish for subsistence uses during the 2008 to 2009 regulatory year. 71 FR 75899 (12/19/06).

SAFETY & HEALTH:

  • OSHA, as part of the ongoing process of routinely conducting reviews of its existing safety and health standards, issued an advance notice of proposed rulemaking to initiate phase III of its standards improvement project. 71 FR 76623 (12/21/06).

WATER:

  • EPA announced its proposal to reissue the NPDES general permit for the western portion of the outer continental shelf of the Gulf of Mexico for discharges from existing and new dischargers and sources in the offshore subcategory of the oil and gas extraction point source category under CWA §402.71 FR 76667 (12/21/06).
  • EPA gave notice of its annual Effluent Guidelines Program Plan for 2006. 71 FR 76644 (12/21/06).
  • EPA announced its tentative determination to issue seven NPDES general permits for stormwater discharges from regulated industrial activities; the proposed general permits would apply to federal facilities within Colorado and to Indian country within Colorado, South Dakota, and Utah. 71 FR 71540 (12/11/06).
  • EPA announced that it intends to approve revisions to Nebraska's public water supply supervision program. 71 FR 71541 (12/11/06).
  • EPA announced that it intends to approve revisions to Kansas' public water supply supervision program. 71 FR 71542 (12/11/06).

WETLANDS:

  • EPA announced the availability of a draft nutrient criteria technical guidance manual for wetlands. 71 FR 75247 (12/14/06).

WILDLIFE:

  • FWS, in response to a settlement agreement, proposed to revise designated critical habitat in Santa Cruz and Monterey Counties, California, for the Monterey spineflower. 71 FR 75189 (12/14/06).
  • FWS announced two 90-day findings made under the ESA concerning a petition to remove the Uinta Basin hookless cactus from the list of endangered and threatened plants and a petition to list the Pariette cactus as a threatened or endangered plant; the agency determined that removing the hookless cactus is not warranted at this time and that listing the Pariette cactus is warranted at this time. 71 FR 75215 (12/14/06).
  • FWS announced the availability of a draft comprehensive conservation plan and EIS for the Hanford Reach National Monument in Washington. 71 FR 74929 (12/13/06).
  • FWS announced the availability of a comprehensive conservation plan for Lacreek National Wildlife Refuge and Wetland Management District in South Dakota. 71 FR 74931 (12/13/06).
  • FWS proposed migratory bird subsistence harvest regulations in Alaska for the 2007 season; the regulations are intended to provide a framework to enable the continuation of customary and traditional subsistence uses of migratory birds within the state. 71 FR 75051 (12/13/06).
  • FWS designated critical habitat in San Diego County, California, for the Laguna Mountains skipper. 71 FR 74591 (12/12/06).
  • FWS, due to recovery of the West Virginia northern flying squirrel, proposed to remove the subspecies from the federal list of endangered and threatened wildlife. 71 FR 75924 (12/19/06).
  • FWS withdrew its January 19, 2006, proposed rule (71 FR 3158) to list the Graham's beardtongue as a threatened species with critical habitat under the ESA; the agency determined that listing the species is not warranted at this time. 71 FR 76023 (12/19/06).
  • FWS announced a 90-day finding on two petitions to list the Mono Basin area population of greater sage-grouse in California and Nevada as threatened or endangered under the ESA; the agency determined that listing is not warranted at this time. 71 FR 76057 (12/19/06).
  • NOAA announced the extension of temporary restrictions that apply to lobster trap and anchored gillnet fishermen in an area east of Portland, Maine, in order to protect an aggregation of Northern right whales. 71 FR 75679 (12/18/06).
  • NOAA announces the extension of temporary restrictions that apply to lobster trap and anchored gillnet fishermen in an area south of Portland, Maine, to protect an aggregation of Northern right whales. 71 FR 75681 (12/18/06).
  • EPA announced the availability of a document titled Ecological Benefits Assessment Strategic Plan; the document identifies and communicates key research and institutional actions that will improve the Agency's ability to perform assessments of the ecological benefits of its environmental policies and decisions. 71 FR 75752 (12/18/06).

DOJ NOTICES OF SETTLEMENT:

  • United States v. L.A.D. General Contractors, No. 06-4560 (E.D. Pa. Oct. 13, 2006). Based on defendants' very limited ability to pay, settling CERCLA defendants must pay $100 to defray partial past response costs incurred at the Andela and River Bend Superfund sites in Warwick Township, Pennsylvania. 71 FR 75272 (12/14/06).
  • United States v. McCann Resources, Inc., No. 04 cv 744 TCK-FHM (N.D. Okla. Nov. 28, 2006). Settling CWA and SDWA defendants must jointly pay a civil penalty of $11,000, must take corrective action to bring the oil production facilities into compliance with federal law in accordance with the recommendations of an environmental consultant and other measures specified in the consent decree, must remediate soils damaged by brine discharges, must adopt a stringent operation and maintenance program to prevent future discharges, must update spill prevention control and countermeasures plans, and must plug and/or test injection wells pursuant to underground injection control regulations to resolve their liability for violations incurred at their oil production facilities in Osage County, Oklahoma. 71 FR 75272 (12/14/06).
  • United States v. PSEG Fossil LLC, No. 02-CV-340 (D.N.J. Nov. 30, 2006). A settling CAA defendant who requested an amendment be made to its July 26, 2002, consent decree allowing for additional time in which to install and commence operation of the pollution control technologies specified in the decree must pay a civil penalty of $6 million for failure to comply with the time schedule within the decree, must install and operate emission controls and implement emission reductions measures at Unit 2 of its Hudson plant and at other units in the defendant's system in New Jersey, and must spend $3.25 million on environmentally beneficial projects in the state. 71 FR 75272 (12/14/06).
  • United States v. Smurfit Stone Container Enterprises, Inc., No. 06 C 6543 (N.D. Ill. Nov. 29, 2006). Settling CAA defendants must install a regenerative thermal oxidizer to destroy volatile organic material by means of high temperature thermal oxidation to meet the Illinois SIP requirements for capture and destruction of volatile organic matter; must comply with the cap and trade requirements of the Illinois SIP by paying the Illinois EPA $151,440.36 for alleged emissions in excess of its allotment trading units; must comply with the applicable SIP requirements regarding volatile organic material; and must pay a civil penalty of $325,000 to resolve violations incurred at the defendant's printing facility in Schaumburg, Illinois. 71 FR 75273 (12/14/06).
  • United States v. Von Roll America, Inc., No. 4:06 CV 2893 (N.D. Ohio Dec. 1, 2006). A settling CAA and RCRA defendant must pay a civil penalty of $750,000; must control waste vapors containing volatile organic compounds, including benzene, by installing and operating a carbon absorption system; must install and operate a total hydrocarbon continuous emissions monitor system; and must undertake a household hazardous waste collection project valued at $34,000, among other things, to resolve claims incurred at a hazardous waste treatment, storage, and disposal facility in East Liverpool, Ohio. 71 FR 75273 (12/14/06).
  • United States v. Blue Tee Corp., No. 06- 5128-CV-SW-REL (W.D. Mo. Dec. 12, 2006). A settling CERCLA defendant must pay $198,645.11 for past response costs, must pay future response costs, and must implement a removal action to provide a safe and permanent drinking water source for residents affected by releases and threatened releases of hazardous substances at and from the Granby Subdistrict of the Newton County Mine Tailings Superfund site in Newton County, Missouri. 71 FR 76688 (12/21/06).
  • United States v. Southgate Development Co., No. 05-5447-RLB (W.D. Wash. Dec. 14, 2006). A settling CERCLA defendant must pay $1,095,000 in response costs, must pay $30,000 to the Palermo Wellfield Environmental Trust, and must assign to the Palermo Wellfield Environmental Trust certain claims under insurance policies previously issued to the defendant to resolve claims that took place at the Palermo Wellfield Superfund site in Tumwater, Washington. 71 FR 76688 (12/21/06).

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

THE CONGRESS

Note: Citations below are to the Congressional Record (Cong. Rec.).

Chamber Action:

  • S. 214 (United States--Mexico Transboundary Aquifer Assessment Act), which would authorize the Secretary of the Interior to cooperate with the states on the border with Mexico and other appropriate entities in conducting a hydrogeologic characterization, mapping, and modeling program for priority transboundary aquifers, was passed by the Senate, clearing the measure for the President. 152 Cong. Rec. S11830 (daily ed. 2006).
  • S. 362 (Marine Debris Research, Prevention, and Reduction Act), which would establish a program within NOAA and the U.S. Coast Guard to help identify, determine sources of, assess, reduce, and prevent marine debris and its adverse impacts on the marine environment and navigation safety in coordination with nonfederal entities, was passed by the Senate, clearing the measure for the President. 152 Cong. Rec. S11838 (daily ed. Dec. 8, 2006).
  • S. 482 (Water Infrastructure Revitalization Act), which would provide environmental assistance to nonfederal interests in the state of North Dakota, was passed by the House, clearing the measure for the President. 152 Cong. Rec. H9251 (daily ed. Dec. 8, 2006).
  • S. 895 (Rural Water Supply Act), which would authorize the Secretary of the Interior to carry out a rural water supply program in the Reclamation States to provide a clean, safe, affordable, and reliable water supply to rural residents, was passed by the Senate, clearing the measure for the President. 152 Cong. Rec. S11831 (daily ed. Dec. 8, 2006).
  • S. 1096 (Musconetcong Wild and Scenic Rivers Act), which would amend the Wild and Scenic Rivers Act to designate portions of the Musconetcong River in the state of New Jersey as a component of the National Wild and Scenic Rivers System, was passed by the House, clearing the measure for the President. 152 Cong. Rec. H9254 (daily ed. Dec. 8, 2006).
  • S. 1378 (National Historic Preservation Act Amendments Act of 2006), which would amend the National Historic Preservation Act to provide appropriation authorization and improve the operations of the Advisory Council on Historic Preservation, was passed by the House, clearing the measure for the President. 152 Cong. Rec. H9253 (daily ed. Dec. 8, 2006).
  • S. 2150 (Eugene Land Conveyance Act), which would direct the Secretary of the Interior to convey certain BLM to the city of Eugene, Oregon, was passed by the House, clearing the measure for the President. 152 Cong. Rec. H9251 (daily ed. Dec. 8, 2006).
  • S. 2735 (Dam Safety Act of 2006), which would amend the National Dam Safety Program Act to reauthorize the national dam safety program, was passed by the House. 152 Cong. Rec. H9205 (daily ed. Dec. 8, 2006).
  • H.R. 4588 (Water Resources Research Act Amendments of 2006), which would reauthorize grants for and require applied water supply research regarding the water resources research and technology institutes established under the Water Resources Research Act of 1984, was passed by the House, clearing the measure for the President. 152 Cong. Rec. H9253 (daily ed. Dec. 8, 2006).
  • H.R. 5946 (Stevens-Inouye International Fisheries Monitoring and Compliance Legacy Act of 2006), which would amend the Magnuson-Stevens Fishery Conservation and Management Act to authorize activities to promote improved monitoring and compliance for high seas fisheries, or fisheries governed by international fishery management agreements, was passed by the House, clearing the measure for the President. 152 Cong. Rec. H9206 (daily ed. Dec. 8, 2006).
  • H.R. 6131 (USTs), which would permit certain expenditures from the Leaking UST Trust Fund, was passed by the Senate, clearing the measure for the President. 152 Cong. Rec. S11552 (daily ed. Dec. 8, 2006).
  • H.R. 6428 (hurricane and storm damage), which would authorizing the Secretary of the Army to carry out certain elements of the project for hurricane and storm damage reduction from Morganza to the Gulf of Mexico, Louisiana, was passed by the House. 152 Cong. Rec. H9203 (daily ed. Dec. 8, 2006).

Bills Introduced:

  • S. 4111 (Landrieu, D-La.) (water resources) would provide for certain water resources projects in the state of Louisiana. 152 Cong. Rec. S11740 (daily ed. Dec. 8, 2006). The bill was referred to the Committee on Environment and Public Works.
  • S. 4118 (Lautenberg, D-N.J.) (EPCRA) would amend EPCRA to strike a provision relating to modifications in reporting frequency. 152 Cong. Rec. S11740 (daily ed. Dec. 8, 2006). The bill was referred to the Committee on Environment and Public Works.
  • S. 4120 (Snowe, R-Me.) (national parks) would authorize the Secretary of the Interior to conduct a special resource study to evaluate resources at the Harriet Beecher Stowe House in Brunswick, Maine, to determine the suitability and feasibility of establishing the site as a unit of the National Park System. 152 Cong. Rec. S11740 (daily ed. Dec. 8, 2006). The bill was referred to the Committee on Energy and Natural Resources.
  • H.R. 6421 (Gillmor, R-Ohio) (pesticides) would implement the Stockholm Convention on Persistent Organic Pollutants, the Protocol on Persistent Organic Pollutants to the Convention on Long-Range Transboundary Air Pollution, and the Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade. The bill was referred to the Committee on Energy and Commerce.
  • H.R. 6436 (Udall, D-N.M.) (Colorado River) would amend the Colorado River Storage Project Act and Public Law 87-483 to authorize the construction and rehabilitation of water infrastructure in northwestern New Mexico, the use of the reclamation fund to fund the Reclamation Water Settlements Fund, the conveyance of certain Reclamation land and infrastructure, and authorize the Commissioner of Reclamation to provide for the delivery of water. 152 Cong. Rec. H9317 (daily ed. Dec. 8, 2006). The bill was referred to the Committee on Resources.

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

IN THE STATES

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

The states below have updates this week:

Alabama Georgia Maine New York Utah Alaska Hawaii Maryland North Carolina Vermont Arizona Idaho Michigan Ohio Virginia California Illinois Missouri Oklahoma Washington Colorado Indiana Montana Rhode Island West Virginia Florida Kentucky New Jersey Texas  

ALABAMA

Hazardous and Solid Waste:

  • The Department of Environmental Management will hold a public hearing on amendments to Chapters 335-4-1, 335-4-2, 335-4-3, 335-4-4, 335-4-5, 335-4-7, 335-4-8 and 335-4-9 to reflect statutory changes made during the 2006 session of the Alabama Legislature to the Alabama Scrap Tire Environmental Quality Act, Code of Alabama 1975, §22-40A-1 et seq.  The hearing will be held February 7, 2007. Copies of the proposed rules and their reasoning can be found at http://adem.alabama.gov/PubHearings/PubHearings.htm. See http://www.adem.state.al.us//PubHearings/12Div4.htm

Water:

ALASKA

Hazardous and Solid Waste:

Water:

General:

ARIZONA

Air:

  • The Arizona Department of Environmental Quality has proposed to amend a number of rules in Article 7 to correct several technical and typographical errors. This rulemaking includes the repeal of R18-2-718, Standards of Performance for Existing Kraft Pulp Mills, since there are no longer any operating sources of this sort in Arizona; the deletion of the reference to the now-defunct smelter at San Manuel; and the deletion of language in R18-2-729, Standards of Performance for Cotton Gins, which refers to language in R18-2-702, General Provisions, that is no longer applicable. The hearing will be held January 9, 2007. Comments are due January 12, 2007. See http://www.azdeq.gov/function/laws/draft.html

CALIFORNIA

Air:

  • The Air Resources Board will conduct a public hearing to consider amendments to the existing dry cleaning regulation that would phase out the use of perchloroethylene (Perc) from dry cleaning operations and to consider the adoption of requirements for manufacturers and distributors of Perc. The hearing will be held January 25, 2007. See http://www.oal.ca.gov/notice/49z-2006.pdf (p.1823)

Toxic Substances:

  • The Office of Environmental Health Hazard Assessment of the California Environmental Protection Agency removed isosafrole [CAS No. 120–58–1], 5–nitro–o–anisidine [CAS No. 99–59–2], and tris(aziridinyl)–p–benzoquinone (triaziquone) [CAS No. 68–76–8] from the list of chemicals known to the state to cause cancer for purposes of the Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65). The delisting of the three chemicals became effective December 8, 2006. See http://www.oal.ca.gov/notice/49z-2006.pdf (p.1828)

COLORADO

Water:

FLORIDA

Air:

  • The Department of Environmental Protection has proposed 62-204.800, Federal Regulations Adopted by Reference, which updates, through September, 30, 2006, the department's adoption-by-reference of air pollution regulations promulgated by U.S. EPA at 40 CFR Parts 51, 60, 63 and 65. See http://faw.dos.state.fl.us/fawframes.html (p.5937)

Land Use:

  • The Department of Environmental Protection, Division of Beaches and Shores, will hold a public hearing on proposed changes to several sections of Chapter 62B-33, F.A.C., which provides the rules and procedures for obtaining a coastal construction control line (CCCL) permit for activities seaward of the CCCL. The proposed amendments would clarify and/or update rule requirements for exemptions, denials, impact evaluations, emergency protection measures, permit application requirements, survey requirements, permit time extensions, emergency reporting procedures, general permit conditions, permit compliance reporting forms, and 30-year erosion projection procedures. In addition, these amendments would add or revise definitions for government entity, survey datum NAD 83/90, protective value, and rebuilding. The hearing will be held January 4, 2007. See http://faw.dos.state.fl.us/fawframes.html (p.5769)

GEORGIA

Air:

  • The Environmental Protection Division will hold a public hearing on proposed amendments to the state's Rules for Air Quality Control, Chapter 391-3-1. The proposed amendments would add 391-3-1-.02(12), Clean Air Interstate Rule Nitrogen Oxide (NOx) Annual Trading Program, to implement the control measures required by 40 CFR Part 51.123 to address interstate transport of NOx emissions from electric generating units. The amendments would also add rule 391-3-1-.02(13), Clean Air Interstate Rule Sulfur Dioxide (SO2) Annual Trading Program, to implement the control measures required by 40 CFR Part 51.124 to address interstate transport of SO2 emissions from electric generating units. The hearing will be held January 16, 2007. Comments are due January 26, 2007. See http://www.gaepd.org/environet/1/cair_notice_20061215.pdf

HAWAII

Fisheries:

  • The Department of Land and Natural Resources will hold public hearings to receive testimony on proposed amendments to Hawaii Administrative Rules (HAR) Chapter 13-75, Rules Regulating the Possession and Use of Certain fishing Gear. The proposed amendments to HAR 13-75 are available at http://www.hawaii.gov/dlnr/dar/regs/ch75dram.pdf. The public hearings will be held January 16 and 17, 2007.

Land Use:

  • The National Park Service (NPS) is initiating the conservation planning and environmental impact analysis process regarding a commercial services plan proposed for Haleakala National Park. The NPS is soliciting public participation in the initial scoping and in the alternative development process. See http://www.state.hi.us/health/oeqc/notice/current_issue.pdf

Wildlife:

  • The USDA and Hawaii's Department of Land and Natural Resources held a series of public hearings on a statewide draft safe harbor agreement to protect native wildlife. This draft agreement was developed by the USDA's Natural Resources Conservation Service for landowners who are enrolled in one of the various Farm Bill Conservation Programs. The draft agreement is available at http://www.state.hi.us/dlnr/dofaw/pubs/index.html. The hearings were held December 5, 7, 12, 13, 19, and 21, 2006. Comments are due January 7, 2007. See http://www.hawaii.gov/dlnr/CalendarEvents.htm.

IDAHO

Air:

  • The Board of Environmental Quality has adopted Rules 58.01.01, Rules for the Control of Air Pollution in Idaho. The rule is pending review by the 2007 Idaho State Legislature for final approval. This rule was adopted as a temporary rule by the Board in February 2006 and is currently effective. See http://adm.idaho.gov/adminrules/bulletin/bul/06dec.pdf

Hazardous and Solid Waste:

Water:

ILLINOIS

Toxic Substances:

INDIANA

Air:

  • The Air Pollution Control Board will hold a public hearing on amendments to rules concerning extended permit renewal terms at 326 IAC 2-1.1-9.5, specifically for minor source operating permits at 326 IAC 2-6.1-7 and federally enforceable state operating permits at 326 IAC 2-8-4. The hearing will be held February 7, 2007. See http://www.in.gov/legislative/register/20061101-IR-326060487PHA.xml.pdf

Water:

KENTUCKY

Air:

  • The Department for Environmental Protection, Division for Air Quality, amended 401 KAR 51:210, Clean Air Interstate Rule Nitrogen Oxide Annual Trading Program; 401 KAR 51:220, Clean Air Interstate Rule Nitrogen Oxide Ozone Season Trading Program; and 401 KAR 51:230, Clean Air Interstate Rule Sulfur Dioxide Trading Program. See http://www.lrc.state.ky.us/kar/title401.htm##chp051

Water:

  • The Department for Environmental Protection, Division for Water, held a public hearing on proposed amendments to 401 KAR 4:060, Stream Construction Criteria. This administrative regulation provides minimum standards necessary to ensure the wise use of the commonwealth's flood-prone areas while protecting the safety and welfare of the public and preventing both flood damages and increased flood levels. The hearing was held December 12, 2006. See http://www.lrc.state.ky.us/kar/401/004/060reg.htm

MAINE

Hazardous and Solid Waste:

Fisheries:

  • The Department of Marine Resources will hold a series of public hearings on proposed regulations to Chapter 55, Gear Restrictions, specifically, 55.06, Fish Passage Regulations. The proposed regulations would provide clear passage for all species of fish in any tidal river, brook, stream, or other watercourse by keeping one-third of the waterbody free of nets or traps and therefore open at any time. Current laws and regulations pertaining to alewives and elvers would remain in effect. The hearings will be held January 8, 9, and 10, 2007. Comments are due January 20, 2007. See http://www.maine.gov/sos/cec/rules/notices/2006/122006.htm
  • The Department of Inland Fisheries and Wildlife will hold a public hearing on proposed regulations to Chapter 1.02, Ice Fishing Regulations. The hearing will be held January 11, 2007. Comments are due January 26, 2007. See http://www.maine.gov/sos/cec/rules/notices/2006/122006.htm

MARYLAND

Hazardous and Solid Waste:

  • The Secretary of the Environment is soliciting public comment on amendments to Regulation .03-1 under COMAR 26.10.02, Underground Storage Tanks. The purpose of this action is to require owners of UST systems in the "High Risk Groundwater Use Areas" of Baltimore, Carroll, Cecil, Frederick, and Harford counties to increase monitoring and to prevent the release of petroleum products into groundwater that is used for drinking water purposes. Comments are due January 18, 2007. See http://www.dsd.state.md.us/mdregister/3325/main_register.htm
  • The Secretary of the Environment is soliciting public comment on amendments to Regulation .01 under COMAR 26.10.04, General Operating Instructions. The purpose of this action is to: (1) clarify the requirements that an owner, who is required to do daily inventory measurements on USTs, must implement when daily inventory variations for seven consecutive days show a total shortage of 80 gallons or more; and (2) increase the testing interval frequency of heating oil UST systems if the UST meets certain requirements. Comments are due January 18, 2007. See http://www.dsd.state.md.us/mdregister/3325/main_register.htm

MICHIGAN

Air:

Water:

General:

  • The Department of Environmental Quality has amended R 324.1501, R 324.1503, R 324.1504, R 324.1505, R 324.1506, R 324.1507, R 324.1508, and R 324.1509 of the Michigan Administrative Code, and added R 324.1509a of the Code, all relating to the Clean Corporate Citizen Program. These rules became effective December 1, 2006. See http://www.michigan.gov/documents/cis/MR22_121506_180457_7.pdf (p.22)

MISSOURI

Water:

  • The Department of Natural Resources will hold a public hearing on a proposed amendment to 10 CSR 20-7.050, General Methodology for Development of Impaired Waters List. The amendment incorporates by reference the detailed methodology for listing impaired waters. The rule amendment allows the state to complete the development of the CWA §303(d) Impaired Waters List within the schedule mandated by U.S. EPA and to meet the statutory requirement that the methodology be promulgated in accordance with Chapter 536, RSMo. The hearing will be held March 7, 2007. See http://www.sos.mo.gov/adrules/moreg/current/2006/v31n24/v31n24.pdf (p.2050)

MONTANA

Air:

Toxic Substances:

NEW JERSEY

Water:

  • The Department of Environmental Protection is readopting with amendments the Highlands Water Protection and Planning Act rules, N.J.A.C. 7:38. These rules became effective December 4, 2006. See http://www.nj.gov/dep/rules/adoptions.html

NEW YORK

Air:

Toxic Substances:

Water:

  • The Department of Environmental Conservation will hold a public hearing on the proposed amendment of Parts 700-704 of Title 6 NYCRR to add, revise, and delete water quality standards, and to add and/or revise standard-setting procedures and related regulations, based upon the most current scientific information. The hearing will be held January 25, 2007. See http://www.dos.state.ny.us/info/register/2006/dec13/pdfs/Rules.pdf (p.8)

NORTH CAROLINA

Water:

  • The Department of Environment and Natural Resources will hold a public hearing on proposed 15A NCAC 02R, which establishes the North Carolina Wetlands Restoration Program Ecosystem Enhancement Program pursuant to G.S. 143-214.8 through 143-214.13. The hearing will be held January 3, 2007. Comments are due February 13, 2007. See http://www.ncoah.com/rules/register/Volume21Issue12December152006.doc (p.1086)

OHIO

Hazardous and Solid Waste:

  • The Ohio Environmental Protection Agency will hold a public hearing to submit rules governing hazardous waste management under Ohio Revised Code (ORC) §119.032, which requires their review every five years. As part of that review, Ohio EPA proposes to: submit four rules for review without amendment (no-change rules); rescind one rule because its content is covered in another existing rule; and amend seven rules to remove unnecessary language, correct rule references, address Senate Bill (SB)189 regarding fees, address SB265 regarding cross-references, make some rules more clearly consistent with statute, and clarify meaning by making minor wording corrections. In addition, eight rules will be amending only the "rule amplifies" and/or "statutory authority" sections; the content of these eight rules will not change. The hearing will be held January 19, 2007. Comments are due February 16, 2007. See http://www.registerofohio.state.oh.us/pdfs/phn/3745_NO_34559_20061214_1021.pdf

OKLAHOMA

Air:

  • The Department of Environmental Quality will hold a public hearing on several proposed amendments to Chapter 100, Air Pollution Control. The proposed rules are available at http://www.deq.state.ok.us/AQDnew/council_mtgs/index.htm. The hearing will be held January 17, 2007. See http://www.oar.state.ok.us/register/Volume-24_Issue-07.htm
  • The Environmental Quality Board has adopted emergency Rules 252:100-8-70 to 252:100-8-77. The Department added new Part 11, Visibility Protection Standards, to Subchapter 8. This new Part incorporates the federal Best Available Retrofit Technology (BART) requirements into Chapter 100. States are required to implement the federal BART requirements as part of a Regional Haze Implementation Plan no later than December 2007. Effective through July 14, 2007, unless superseded by another rule or disapproved by the legislature. See http://www.oar.state.ok.us/register/Volume-24_Issue-07.htm

Fisheries:

  • The Department of Environmental Quality Water Quality Division will hold a public hearing on the proposal to modify Ohio pollutant discharge elimination system permits of several wastewater dischargers to require laboratory toxicity tests with freshwater mussels, and to allow discharge of perchlorate. The hearing will be held January 25, 2007. See http://www.oar.state.ok.us/register/Volume-24_Issue-07.htm

Water:

  • The Department of Environmental Quality will hold a public hearing to implement the requirements set forth in Senate Bill 1293 (2006) which was codified at 59 O.S. §1118, Waterworks and Wastewater Works Operator Certification. The hearing will be held January 19, 2007. See http://www.oar.state.ok.us/register/Volume-24_Issue-07.htm

RHODE ISLAND

Air:

  • The Department of Environmental Management will hold a public hearing on the proposal to adopt Air Pollution Control Regulation No. 43, entitled "General Permits for Smaller-Scale Electric Generation Facilities," and to amend Air Pollution Control Regulation No. 9, entitled "Air Pollution Control Permits." The hearing will be held January 18, 2007. See http://www.dem.ri.gov/programs/benviron/air/drft439.htm

Hazardous and Solid Waste:

TEXAS

Air:

  • The Texas Commission on Environmental Quality has adopted amendments to §§115.10, 115.119, 115.129, 115.139, 115.149, 115.219, 115.239, 115.319, 115.359, 115.419, 115.439, 115.449, 115.519, and 115.539. Sections 115.149 and 115.239 are adopted with changes to the proposed text as published in the July 14, 2006, issue of the Texas Register (31 TexReg 5558). Sections 115.10, 115.119, 115.129, 115.139, 115.219, 115.319, 115.359, 115.419, 115.439, 115.449, 115.519, and 115.539 are adopted without changes to the proposed text and will not be republished. The amendments relate to the control of air pollution from volatile organic compounds. See http://www.sos.state.tx.us/texreg/archive/December82006/adopted/30.ENVIRONMENTAL%20QUALITY.html#227

UTAH

Water:

  • The Drinking Water Board is soliciting public comment on proposed the amendment of R309-100-4, Drinking Water. The proposed amendment adds subsections (f)(i) and (f)(ii) under Subsection R309-100-4(1) requiring that any new public drinking water system categorized as a community water system or a public water system serving water to multiple property owners no matter how the system is categorized shall be under the sponsorship of a body politic as defined in Section R309-110-4. The amendment also provides that existing privately owned public drinking water systems that propose to expand their service to new subdivisions must comply with Subsection R309-100-4(f)(i) before the Division of Water Quality may approve any plans and specifications for expanded service facilities or pipelines. Comments are due January 15, 2007. See http://www.rules.utah.gov/publicat/bulletin/2006/20061215/29304.htm
  • The Department of Environmental Quality is soliciting public comment on the proposed amendment of R317-2, Standards of Quality for Waters of the State. The proposed amendments are being made to bring Utah's water quality standards into conformance with U.S. EPA guidance, add clarifying language, and update stream classifications based on current information. Comments are due January 10, 2007. See http://www.rules.utah.gov/publicat/bulletin/2006/20061215/29295.htm
  • The Department of Environmental Quality is soliciting public comment on the proposed amendment of R317-6, Groundwater Quality Protection. The proposed amendments provide clarifying language pertaining to soil petroleum cleanup procedures and standards and authorize local city/county health districts to regulate transportation petroleum spills. Comments are due January 15, 2007. See http://www.rules.utah.gov/publicat/bulletin/2006/20061215/29294.htm
  • The Department of Environmental Quality is soliciting public comment on the proposed amendment of R317-11, Certification Required to Design, Inspect, and Maintain Underground Wastewater Disposal Systems, or Conduct Percolation and Soil Tests for Underground Wastewater Disposal Systems. The proposed amendments are being made to clarify the guidelines and procedures used by staff of the Division of Water Quality as they implement the legislation of Section 19-5-121.Comments are due January 15, 2007. See http://www.rules.utah.gov/publicat/bulletin/2006/20061215/29296.htm

VERMONT

Fisheries:

  • The Vermont Fish and Wildlife Board held a public hearing on a proposed regulation that would update Vermont's law on bringing fish into the state.  A copy of the proposed regulation is available on the Vermont Fish and Wildlife Department's website at http://www.vtfishandwildlife.com. The hearing was held December 7, 2007.

VIRGINIA

Air:

  • The Department of Environmental Quality will hold a public hearing on a proposed variance to the open burning rule, Article 40 of 9 VAC 5 Chapter 40, Rule 4-40. The proposal consists of a variance from existing regulation provisions for the control of emissions of volatile organic compounds and nitrogen oxides to the atmosphere from open burning conducted in the affected localities. The variance will temporarily relieve the affected localities from immediate compliance with the seasonal restrictions in 9 VAC 5-40-5630 A 8 and 10 of the open burning rule by requiring a phased-in compliance. The hearing will be held January 19, 2007. See http://www.townhall.state.va.us/meeting/ViewMeeting.cfm?Meeting_ID=8565

Water:

  • The Department of Environmental Quality will hold a public hearing to receive comments on the fast-track rulemaking to amend the City of Fredericksburg's nutrient waste load allocation in the water quality management plan. The proposed amendment appeared in the Virginia Register of Regulations on November 27, 2006. The public comment period began on November 27, 2006, and ends on January 26, 2007. The hearing will be held January 4, 2007. See http://www.townhall.state.va.us/meeting/ViewMeeting.cfm?Meeting_ID=8320

WASHINGTON

Land Use:

  • The Department of Ecology has adopted amendments to Chapters 173-160 WAC and 173-162 WAC. These sections were revised to make them consistent with legislative changes that were made to the drilling statute (Chapter 18.104 RCW) in 2005, to make them current with new drilling technologies, to clarify provisions of the existing rules, and based on driller request. The amendments became effective December 22, 2006. See http://www.ecy.wa.gov/pubs/0611037.pdf

Water:

  • The Department of Ecology has adopted amendments to Water Quality Standards, Chapter 173-201A WAC. These amendments became effective on December 21, 2006. See http://www.ecy.wa.gov/pubs/0610090.pdf

WEST VIRGINIA   General:

 

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

INTERNATIONAL

EU PASSES FAR-REACHING RULES GOVERNING CHEMICALS INDUSTRY

On December 18, 2006, the European Union (EU) ratified sweeping rules governing the chemicals industry. The new law, which will become effective next year, will ban some of the most dangerous chemicals from the 25-nation bloc. Approximately 30,000 other substances will require registration in a central EU database. See http://archive.gulfnews.com/articles/06/12/19/10090840.html

SOUTH AFRICA REVEALS DRAFT LAW TO CURB “CANNED HUNTING”

South Africa has released draft regulations that crack down on hunting predators bred in captivity, also known as “canned hunting.” The new law would prohibit the hunting of large predators in a controlled environment, as well as animals that are under the influence of immobilizing or tranquilizing agents. The regulations, which are expected to come into effect in March 2007, follow three years of talks between the state, wildlife industry, and animal groups. Activists criticize the draft laws as being "inadequate." See http://za.today.reuters.com/news/NewsArticle.aspx?type=topNews&storyID=2006-12-15T061040Z_01_BAN522228_RTRIDST_0_OZATP-SAFRICA-HUNTING-20061215.XML

EU INCLUDES AIRLINES IN POLLUTION ALLOWANCES TRADING PROGRAM

The European Commission has announced a new program that requires airlines flying within the European Union to trade carbon dioxide allowances beginning in 2011. According to the plan, all airlines will have to trade carbon dioxide allowances beginning in 2012 for all flights to and from European airports. Though the plan could add between $2.40 and $11.80 to a typical return flight within Europe, the program gives airlines a financial incentive to reduce emissions because they can sell allowances that they don't use. However, if they are unable to convert to low-carbon technology, or they increase their flights, airlines will be forced to buy additional allowances to release more carbon dioxide. Emissions will be capped at the average from 2004 to 2006. See http://www.enn.com/today.html?id=11900

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

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