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Weekly Update Volume 36, Issue 5

02/13/2006

LITIGATION

Note: The cases listed are available from the ELR Document Service.

CWA, DREDGE AND FILL, INCIDENTAL FALLBACK:

The D.C. Circuit held that various associations' challenge to an EPA and U.S. Army Corps of Engineers regulation concerning permit requirements for the discharge of dredged or fill material into waters of the United States is ripe and reversed a lower court's dismissal of the associations' claim. The regulation provides that the use of mechanized earth-moving equipment in U.S. waters will require a permit unless "project-specific evidence" shows that the dredging results in only "incidental fallback." The regulation defines incidental fallback as the "redeposit of small volumes of dredged material incidental to excavation activity" if the material "falls back to substantially the same place as the initial removal." The associations argue that the regulation creates an impermissible rebuttable presumption that all dredging results in unlawful discharge and that its definition of incidental fallback exceeds the scope of the Corps' authority under CWA §404. Contrary to the lower court's conclusion, the case is fit for review. The case presents a legal issue, the agency action is final, and the legality of the two challenged features of the regulation will not change from case to case or become clearer in a concrete setting. Further, the associations' members will suffer hardship should the challenge be delayed. National Ass'n of Homebuilders v. U.S. Army Corps of Engineers, Nos. 04-5221 et al., 36 ELR 20032 (D.C. Cir. Feb. 6, 2006) (11 pp.).

PIPELINE SAFETY IMPROVEMENT ACT, PREEMPTION:

The Ninth Circuit held that the Pipeline Safety Improvement Act of 2002 preempts a city's regulatory efforts to provide safety oversight of a hazardous liquid pipeline within city boundaries. After a section of a hazardous liquid pipeline exploded in Seattle, Washington, the city refused to renew the pipeline operator's franchise for the section of pipeline within the city limits until the operator complied with the city's list of pipeline safety demands. The Pipelines Safety Improvement Act, however, preempts the city's efforts. The DOT has not delegated the city authority to regulate intrastate pipelines and impose safety requirements. Rather, this authority was delegated to a state commission. Nor do the city's actions fall within the market proprietor exception. In requiring the operator to comply with certain safety demands, Seattle was acting as a regulator rather than as a municipal proprietor. The court, therefore, affirmed the lower court's grant of summary judgment in favor of the operator, as well as its preliminary injunction halting Seattle's effort to shut down the pipeline. Olympic Pipe Line Co. v. City of Seattle, No. 04-35307, 36 ELR 20033 (9th Cir. Feb. 8, 2006) (19 pp.).

NATIONAL PARKS, ACCESS:

The Ninth Circuit upheld the dismissal of property owners' claims against the National Park Service (NPS) concerning the use of an abandoned road crossing federally protected land to access their property, which was surrounded by the Wrangell-St. Elias National Park and Preserve in Alaska. The property owners sought an injunction requiring the NPS to provide what they deemed adequate and feasible access to their property, a declaratory judgment that the NPS was violating their right-of-way over the road by requiring a permit, and a declaratory judgment that issuing a permit for temporary use of the road did not constitute a major federal action subject to the requirements of NEPA. Even if the property owners had a valid right-of-way over the abandoned road, their use of the road was subject to reasonable regulation by the NPS. Consequently, the property owners were required to apply for a permit regardless of any right-of-way they might possess. And since the NPS had not acted on their permit application, the lower court lacked jurisdiction under the APA because there was no final agency action to review. Hale v. Norton, No. 03-36032, 36 ELR 20037 (9th Cir. Feb. 9, 2006) (7 pp.).

AIR QUALITY, CERCLA, CITIZEN SUIT, SEPTEMBER 11, 2001:

A district court partially granted EPA's and individuals' motions to dismiss a class action suit stemming from plaintiffs' exposure to hazardous substances in the interior of their residences, schools, and workplaces as a result of the dust and debris released from the collapse of the World Trade Center towers and surrounding buildings following the terrorist attacks on September 11, 2001. The court dismissed the constitutional claims against a former assistant administrator of EPA because none of the complained of actions are attributed to her individually, and the complaint contains no allegedly false statement made by the assistant individually concerning air quality. The former EPA Administrator, however, is not entitled to qualified immunity and her motion to dismiss was denied. No reasonable person would have thought that telling thousands of people that it was safe to return to Lower Manhattan, while knowing that such return could pose long-term health risks and other dire consequences, was conduct sanctioned by U.S. laws. In addition, while the regulations asserted by plaintiffs as the basis for their APA claim are discretionary in nature and, therefore, precluded from judicial review under the Stafford Act, the court has jurisdiction over the plaintiffs' claim under the APA for violation of their substantive due process rights. EPA's motion to dismiss the plaintiffs' APA claim was also denied because the court has jurisdiction and the plaintiffs identified a final agency action. Last, the court lacked jurisdiction over the plaintiffs' CERCLA citizen suit claim because their allegations against EPA are for its failures to carry out its duties under CERCLA as administrator of CERCLA, not as a regulated party. EPA, as administrator of CERCLA, does not regulate itself. The appropriate citizen suit provision for the type of allegations by plaintiffs here is §9659(a)(2), which limits venue to the District of Columbia. Benzman v. Whitman, No. 04 Civ. 1888(DAB), 36 ELR 20036 (S.D.N.Y. Feb. 2, 2006) (Batts, J.) (30 pp.).

CERCLA, LIABILITY, ESTOPPEL:

A district court partially granted the United States' motion to collaterally estop defendants from denying their liability as owners and operators of the Armour Road Superfund site in North Kansas City, Missouri. Except for the one of the defendants, prior actions against the defendants were final, or sufficiently final, to preclude them from relitigating their status as owners or operators of the site. United States v. Horne, No. 05-0497 CV W NKL, 36 ELR 20035 (W.D. Mo. Feb. 6, 2006) (Laughrey, J.) (7 pp.).

WATER QUALITY, FLOW OBJECTIVES, MITIGATION:

A California appellate court affirmed, modified, and reversed a lower court's judgments in seven coordinated cases involving the California State Water Resource Control Board's implementation of a water quality plan in a water rights proceeding, a related environmental impact report, a joint points of diversion petition, a change petition, and challenges to the Board's impartiality. The court agreed with the lower court in most respects, but disagreed in a few instances. Most significantly, the court agreed that the Board erred when it failed to allocate responsibility for meeting all of the flow objectives in the 1995 San Francisco Bay/Sacramento-San Joaquin Delta Estuary Plan (Bay-Delta Plan). The Board was not entitled to implement alternate flow objectives agreed to by various interested parties in lieu of the flow objectives actually provided for in the plan. The Board also failed to adequately implement certain salinity objectives in the 1995 Bay-Delta Plan and failed to implement the minimum flows necessary to achieve the narrative objective for salmon protection in plan. Contrary to the lower court's findings, however, a 1965 water district merger statute did not impose a ministerial duty on the Board to augment the authorized place of use in U.S. Bureau of Reclamation Central Valley Project permits to include all of the lands within the Westlands water district service area without mitigation. The court also rejected all of the alternate arguments for upholding this aspect the lower court's decision. State Water Resources Control Board Cases, No. C044714, 36 ELR 20038 (Cal. App. 3d Dist. Feb. 9, 2006) (285 pp.).

RECYCLING, UNFAIR COMPETITION:

A California appellate court upheld the dismissal of an individual's claims against a state agency and corporations for failing to provide convenient, economical, and efficient beverage container redemption opportunities as required by the California Beverage Container Recycling and Litter Reduction Act. The lower court correctly ruled that no mandatory duty was created for defendants by the relevant law, and equitable abstention principles barred her unfair competition claims. Shamsian v. Department of Conservation, No B184680, 36 ELR 20034 (Cal. App. 2d Dist. Feb. 8, 2006) (23 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 entered into a proposed consent decree requiring it to respond to a petition filed by Sierra Club challenging CAA Title V permit amendments proposed by the Georgia Environmental Protection Division for two steam generating plants. 71 FR 7037 (2/10/06).
  • EPA entered into a proposed settlement agreement with the Sierra Club requiring the Agency to respond to a court's remand order concerning EPA's maximum achievable control technology determinations for new and existing hospital, medical, and infectious waste incinerators . 71 FR 7036 (2/10/06).
  • EPA proposed to revise its definition of volatile organic compounds for purposes of preparing SIPs to attain NAAQS for ozone under title I of the CAA. 71 FR 6729 (2/9/06).
  • EPA provided advance notice of key issues for consideration in the development of potentially new or revised policies and/or regulations to implement proposed revisions to NAAQS for particulate matter and will take final action on the proposal by late September. 71 FR 6718 (2/9/06).
  • EPA took final action making findings that Illinois, Indiana, Kentucky, Michigan, and Virginia failed to make complete SIP submittals required under the CAA. 71 FR 6347 (2/8/06).
  • EPA took direct final action to determine that the Ajo, Arizona, nonattainment area has attained NAAQS for particulate matter with a diameter of 10 microns or less (PM10) .71 FR 6352 (2/8/06).
  • EPA proposed to determine that the Ajo, Arizona, nonattainment area has attained NAAQS for PM10 (see above for direct final rule). 71 FR 6437 (2/8/06).
  • EPA took final action to exempt methyl bromide production and import for 2006 critical uses. 71 FR 5985 (2/6/06).
  • SIP Approvals: California (volatile organic compound emissions) 71 FR 6350. Wisconsin (general and registration permit programs) 71 FR 5979 (2/6/06). Kentucky (PSD and nonattainment new source review regulations) 71 FR 6988 (2/10/06).
  • SIP Proposals: California (volatile organic compound emissions; see above for direct final rule) 71 FR 6437 (2/8/06). Maryland (volatile organic compound emissions) 71 FR 6028 (2/6/06).

HAZARDOUS & SOLID WASTE:

  • EPA revised the waste treatment standard for 1,3-phenylenediamine for a biosludge generated at DuPont's Chambers Works facility in Deepwater, New Jersey. 71 FR 6209 (2/7/06).
  • EPA proposed to revise the waste treatment standard for 1,3-phenylenediamine for a biosludge generated at DuPont's Chambers Works facility in Deepwater, New Jersey (see above for direct final rule). 71 FR 6238 (2/7/06).

PESTICIDES:

  • EPA announced the availability of its risk assessments and related documents for the pesticide rotenone. 71 FR 7041 (2/10/06).
  • EPA announced the availability of its risk assessment for the organochlorine pesticide lindane, gamma hexachlorocyclohexane (HCH), and the other HCH isomers. 71 FR 6479 (2/8/06).

TOXIC SUBSTANCES:

  • EPA proposed amendments to the TSCA §12(b) export notification regulations that would require the Agency to notify foreign governments once after it receives the first export notification from an exporter of chemical substances or mixtures. 71 FR 6733 (2/9/06).

WATER:

  • EPA proposed to approve Florida's drinking water regulations for the interim enhanced surface water treatment, radionuclides, arsenic, and filter backwash recycling rules. 71 FR 6480 (2/8/06).
  • EPA proposed to approve Mississippi's drinking water regulations for the radionuclides, arsenic, and filter backwash recycling rules. 71 FR 6481 (2/8/06).

WILDLIFE:

  • FWS identified critical habitat for 4 vernal pool crustaceans and 11 vernal pool plants in 34 counties in California and 1 county in southern Oregon. 71 FR 7117 (2/10/06).
  • NMFS proposed two areas of designation for the northern right whale--an area in the southeast Bering Sea and an area in the Gulf of Alaska south of Kodiak Island. 71 FR 6999 (2/10/06).
  • NMFS announced that the South Carolina Department of Natural Resources, Marine Resources Division, has been issued a permit to take loggerhead, Kemp's ridley, green, leatherback, and hawksbill sea turtles for purposes of scientific research. 71 FR 7019 (2/10/06).
  • NMFS gave notice that Patricia Bargo of East Coast Observers, Inc., in Norfolk, Virginia, has been issued a permit to take loggerhead, green, hawksbill, Kemp's ridley, and leatherback sea turtles, and shortnose sturgeon for purposes of scientific research. 71 FR 7018 (2/10/06).
  • FWS announced that a draft comprehensive conservation plan and EA for Currituck National Wildlife Refuge in Currituck County, North Carolina, are available for review and comment. 71 FR 6786 (2/9/06).
  • FWS announced its 90-day finding on a petition to list the polar bear as a threatened species and determined that listing may be warranted under the ESA. 71 FR 6745 (2/9/06).
  • FWS, pursuant to the ESA, designated critical habitat in Boundary County, Idaho, for the Kootenai River population of the white sturgeon. 71 FR 6383 (2/8/06).
  • FWS announced its intention to conduct rulemaking to establish a distinct population segment of the gray wolf located in the northern Rocky Mountains and to propose that the wolf in these mountains be removed from the list of threatened and endangered wildlife under the ESA, provided that the state of Wyoming adopts a state law and a state wolf management plan that is approved by the agency. 71 FR 6633 (2/8/06).
  • NOAA announced temporary restrictions lasting 15 days to certain fishermen in an area northeast of Boston, Massachusetts, consistent with the requirements of the Atlantic Large Whale Take Reduction Plan's implementing regulations in order to provide protection to an aggregation of northern right whales. 71 FR 6396 (2/8/06).NMFS and NOAA announced that an incidental harassment authorization to take small numbers of marine mammals incidental to conducting an oceanographic survey in the southwestern Pacific Ocean has been issued to the Scripps Institution of Oceanography. 71 FR 6041 (2/6/06).
  • FWS announced that a draft comprehensive conservation plan and EA for Pea Island National Wildlife Refuge in Dare County, North Carolina, are available for review and comment. 71 FR 6089 (2/6/06).

MISCELLANEOUS:

  • EPA's Risk Assessment Forum announced the availability of a final report titled Guidance on Selecting Age Groups for Monitoring and Assessing Childhood Exposures to Environmental Contaminants. 71 FR 6775 (2/9/06).

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

THE CONGRESS

BILLS INTRODUCED:    

  • S. 2251 (Wyden, D-Or.) (Energy Policy Act of 2005) would amend the Energy Policy Act of 2005 to repeal the ultra-deepwater and unconventional onshore natural gas and other petroleum research and development program. 152 Cong. Rec. S769 (daily ed. Feb. 7, 2006). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2253 (Domenici, R-N.M.) (oil and gas leasing) would require the Secretary of the Interior to offer the 181 Area of the Gulf of Mexico for oil and gas leasing. 152 Cong. Rec. S769 (daily ed. Feb. 7, 2006). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2254 (Domenici, R-N.M.) (Rio Grande restoration) would authorize the Secretary of the Army to carry out restoration projects along the Middle Rio Grande. 152 Cong. Rec. S769 (daily ed. Feb. 7, 2006). The bill was referred to the Committee on Environment and Public Works.

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

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

The states below have updates this week:

Alaska Georgia New Jersey South Dakota Arkansas Massachusetts New Mexico Texas California Michigan Oregon Virginia Florida New Hampshire Rhode Island Washington

ALASKA

Hazardous & Solid Wastes:

  • The Department of Environmental Conservation proposed to amend Title 18, Chapter 75, of the Alaska Administrative Code to recognize the substantial advances in oil spill prevention since the regulations were first drafted and to remove outdated standards. The proposed changes would include new regulations regarding flow lines associated with oil production facilities and a significant revision of the facility piping regulations, would replace 87 standards currently identified in the regulations with 21 updated industry consensus standards, would clarify the regulatory intent and the level of compliance that is required, making compliance requirements clearer, and would improve the consistency and predictability of regulations. Comments are due March 3, 2006. See http://www.state.ak.us/local/akpages/ENV.CONSERV/public_notices.htm

General:

  • The Alaska Department of Environmental Conservation (DEC) proposed to amend Title 18, Chapter 69, of the of the Alaska Administrative Code dealing with the Commercial Passenger Vessel Environmental Compliance Program. DEC proposed to clarify the discharge information that it will seek in a vessel specific sampling plan and to make other changes necessary to improve the regulations, including those changes that appear necessary after reviewing public comments. This supplemental notice is being issued because considerable time has elapsed since the March 15, 2005, original public notice, and the proposed regulations identify a different reference for information on herring spawning areas. Comments are due March 6, 2006. See http://www.state.ak.us/local/akpages/ENV.CONSERV/public_notices.htm

ARKANSAS

Water:

  • The Arkansas Pollution Control and Ecology Commission (PC&EC) will hold four public hearings during March and April of 2006 to receive comments on a third-party proposal by River Valley Regional Water District to change the Arkansas Water Quality Standards (PC&EC Regulation No. 2) by establishing a procedure to remove the current prohibition against making alterations to waterbodies designated as extraordinary resource waters in order to construct public drinking water supply systems on the designated waters. The hearings will be held March 27, 2006, and April 3, 10, and 17, 2006. See http://www.adeq.state.ar.us/ftproot/pub/pa/Regulation_Notices/2006-02-05_Notice_of_Proposed_3rd-Party_Changes_to_Regulation_2.mht

CALIFORNIA

Air:

  • The South Coast Air Quality Management District will hold a public hearing on the Regional Clean Air Incentives Market (RECLAIM) Compliance Year 2004 Annual Audit Report on Friday, March 3, 2006.  The report assesses emission reductions, average annual price and availability of RECLAIM Trading Credits, job impacts, compliance issues, and other measures of performance for the 11th year of this program. A list of facilities that were unable to reconcile emissions in compliance year 2004 is included in this report. See http://www.aqmd.gov/pub_edu/nph_reclaim_Mar_3_06.html

Toxic Substances:

  • The Office of Environmental Health Hazard Assessment added "areca nut" and "betel quid without tobacco" to 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). A betel quid generally contains betel leaf, areca nut, and slaked lime, and may contain tobacco. Areca nut is the seed of the fruit of the oriental palm Areca catechu. It should be noted that it is the nut and not other elements of the areca nut plant (such as the husk) that is being listed under Proposition 65. The listing is effective February 3, 2006. See http://oehha.org/prop65/docs_admin/listarecabetel.html
  • The Department of Toxic Substances Control is accepting comments on the Draft 2006-2008 Pollution Prevention Report and Two Year Workplan. The public comment period will remain open until March 6, 2006. The final plan is scheduled for publication on April 1, 2006. http://www.dtsc.ca.gov/PollutionPrevention/SB1916/upload/P2_FLY_sb1916_06-08_workplan_Public_Notice.pdf

FLORIDA

Water:

  • The Department of Environmental Protection seeks public comments on three sets of proposed wetland resource and environmental resource general permits in Chapters 62-312 and 62-341, F.A.C., regarding public boat ramps, public marinas, and public mooring fields. The proposed general permits in Chapter 62-312, F.A.C., will apply to qualifying public boat ramps, public marinas, and public mooring fields that require wetland resource permits within the geographical area of the Northwest Florida Water Management District. The proposed noticed general permits in Chapter 62-341, F.A.C., will apply to qualifying public boat ramps, public marinas, and public mooring fields that require an environmental resource permit in the rest of the state. Hearings will be held February 21, 27, and 28, 2006. See http://tlhora6.dep.state.fl.us/onw/publications/1-WkshpBoatRamp62341-2-3-06-INT.pdf
  • The Department of Environmental Protection issued a corrected notice of proposed rulemaking for rule 62-600.550, Wastewater Management Requirements for the Wekiva Study Area. The original notice published on January 27, 2006, failed to include the date and time of the rule adoption hearing, which is February 23, 2006, at 9 a.m. See http://tlhora6.dep.state.fl.us/onw/publications/11-NPRcorrectedWekiva-2-3-06-INT.pdf
  • The Department of Environmental Protection (DEP) announced that the Numeric Nutrient Criteria Technical Advisory Committee, formed to assist DEP in establishing numeric nutrient water quality criteria, will hold a public meeting on February 17, 2006. See http://tlhora6.dep.state.fl.us/onw/publications/8-TACmtg-2-3-06-INT.pdf

GEORGIA

Air:

  • The Environmental Protection Division proposed amendments to Georgia's rules for air quality control, Chapter 391-3-1. The proposed amendments would revise rule 391-3-1-.02(2)(ooo), Heavy-Duty Diesel Engine Requirements, by correcting a subparagraph that references an incorrect subparagraph; rule 391-3-1-.02(7), Prevention of Significant Deterioration of Air Quality, by incorporating changes to the federal rule promulgated on December 31, 2002, in order to protect air quality, add clarity, ensure enforceability, and to provide consistency with Georgia rules; rule 391-3-1-.03(6)(b), Permit Exemption for Combustion Equipment, by adding two new subparagraphs that exempt temporary boilers and electric generators that are used to replace a facility’s boilers or generators during periods of repair or maintenance from the requirement to obtain a permit; and rule 391-3-1-.03(8)(c), Permit Requirements for Non-Attainment New Source Review, by adding language to clarify that the provisions of rule 391-3-1-.02(7) also apply to sources subject to this rule and to specify that where conflicts between the requirements of 391-3-1-.02(7) and 391-3-1-.03(8)(c) exist, the provisions of 391-3-1-.03(8)(c) apply. A public hearing will be held March 2, 2006. Written comments are due March 6, 2006. See http://www.gaepd.org/environet/1/notice.pdf

MASSACHUSETTS

Air:

  • The dates for the public hearings on proposed greenhouse gas amendments to 310 CMR 7.29 & 310 CMR 7.00 Appendix B have been changed. The public hearings will be now be held February 15, 16, 20, and 23, 2006. Comments are due March 6, 2006. See http://www.mass.gov/dep/public/communicate/ghgphnot.htm

MICHIGAN

Air:

  • The Department of Environmental Quality intends to formally adopt proposed revisions to the air pollution control rules R 336.1627, R 336.2004, and R 336.2005. The proposed amendments will require gasoline delivery vessels to be tested annually using U.S. EPA Method 27 as referenced in R 336.2004(u), which will be consistent with the U.S. DOT requirements. Submittal of the test results will be changed from July 15 to within 30 days from the date of the test. The proposed rules will take effect immediately after filing with the Secretary of State. See http://www.michigan.gov/deq/0,1607,7-135-3308-135291--,00.html#Rules

Water:

  • The Water Bureau announced the availability of Michigan’s 2006 Draft Integrated Report for public comment during the period of February 6 through March 6, 2006. See http://www.michigan.gov/deq/0,1607,7-135-3308-135291--,00.html#Rules
  • The draft Buck Creek pathogen TMDL is available for comment. This waterbody is located in Kent County in the vicinity of Wyoming and Cutlerville and was included on Michigan’s Year 2004 §303(d) list due to elevated E. coli levels. The TMDL is being developed to identify the necessary pathogen reductions to meet water quality standards. Comments are due February 23, 2006. See http://www.michigan.gov/deq/0,1607,7-135-3308-135291--,00.html#Rules

NEW HAMPSHIRE

Air:

  • The Department of Environmental Services proposed rulemaking for Permits for the Combustion of Non-Exempt Fuel (Env-A 624 and Env-A 607.03). The proposed rule will require any source required to obtain a title V operating permit that will combust a non-exempt fuel to perform a best available control technology (BACT) analysis, air pollution deposition modeling, and a health risk assessment as part of that source’s permit application. The procedures for determining BACT and performing the air deposition modeling and health risk assessment are specified. Stack testing requirements are included, as are routine fuel testing requirements to ensure compliance with emission limitations on particulate matter (including lead), mercury, and dioxins. A public hearing will be held February 27, 2006. Written comments are due March 10, 2006. See http://www.des.state.nh.us/RuleMaking/notice2005/Env-A_624_RMN.pdf

NEW JERSEY

Wildlife:

  • The Division of Fish and Wildlife is proposing an amendment to N.J.A.C. 7:25-18.16 to provide for a moratorium on the horseshoe crab commercial bait fishery for the calendar years 2006 and 2007. The purpose of the moratorium on the harvesting of horseshoe crabs is to improve conditions immediately for the threatened red knot and other migratory shorebirds whose survival depends upon an abundant supply of horseshoe crab eggs in Delaware Bay. The red knot population is in jeopardy, as data and modeling show high risk of species extinction within five years. The Department has previously used emergency rulemaking to close portions of the harvest season in 1997, 2003, and 2005 in reaction to the most current data on shorebird populations. Written comments are due April 7, 2006. See http://www.nj.gov/dep/rules/notices/020606a.htm

NEW MEXICO

Water:

  • The New Mexico Water Quality Control Commission will hold a public hearing on February 22, 2006, to consider a petition by the New Mexico Department of Game and Fish seeking approval to use piscicides to eradicate non-native fishes in the Rio Costilla watershed, Taos, New Mexico. See http://www.nmenv.state.nm.us/wqcc/WQCC_Costilla_Notice_2-22-06.pdf

OREGON

Land Use:

  • The Department of Geology and Mineral Industries amended OAR 632-030-0022 to make it consistent with HB 2120 (2005), which restructured the fees for permits under the Mineral Land Regulation and Reclamation Act. The statute and rule raise the application fee from $1,200 to $1,260 and change the annual fee to a formula with a base fee of $635 plus $.0075 per ton extracted. See http://arcweb.sos.state.or.us/rules/0206_Bulletin/0206_ch632_bulletin.html

Wildlife:

RHODE ISLAND

Wildlife:

  • The Department of Environmental Management proposed amendments to the Rhode Island Freshwater and Anadromous Fishing Regulations for the 2006-2007 season, relative to taking of alewife or blueback herring from freshwaters of the state, and announced its intent to hold a public hearing to afford interested parties the opportunity for public comment. Public comment will be solicited on the following proposals: (1) proposed implementation of river herring regulations in marine waters; (2) tautog quota management proposals; (3) Striped Bass quota management proposal; and (4) changes to mussel dredging and mussel minimum size regulations. A public hearing will be held March 13, 2006. See http://www.dem.ri.gov/programs/bnatres/fishwild/pn031306.htm

SOUTH DAKOTA

Water:

  • The Department of Environment and Natural Resources proposed amendments to the Operator Certification Program to modify the experience requirement for a water/wastewater operator that does not have applicable post-high school education in order to become certified as a Class III or IV operator. Applicable post-high school education includes "college or vocational school majoring in engineering, environmental sciences, or related fields." A public hearing will be held April 4, 2006. See http://legis.state.sd.us/rules/register/02062006.pdf

TEXAS

Hazardous & Solid Wastes:

Water:

  • The Texas Commission on Environmental Quality created a new chapter, 30 TAC Chapter 222, to implement the requirements of the new chapter of the Texas Water Code, Chapter 32, that was created by HB 2651: Subsurface Area Drip Dispersal Systems. 30 TAC Chapter 222 will create a new permitting program to regulate all wastewater treatment facilities--domestic, commercial, and industrial--that use subsurface area drip dispersal systems to beneficially reuse their treated effluent. A public hearing will be held March 14, 2006. Comments are due March 20, 2006. See http://www.tceq.state.tx.us/assets/public/legal/rules/hearings/05050222_phn.pdf

VIRGINIA

Water:

  • The Department of Environmental Quality will hold the final public meeting on the development of fecal coliform bacteria TMDLs for shellfish propagation waters located in the cities of Hampton and Poquoson and York County on March 23, 2006. The public notice will appear in the Virginia Register of Regulations on February 20, 2006. The comment period begins on March 23, 2006, and ends on April 21, 2006.   See http://www.townhall.state.va.us/meeting/ViewMeeting.cfm?Meeting_ID=7022

WASHINGTON

Toxic Substances:

  • The Department of Ecology adopted Chapter 173-333 WAC, Persistent Bioaccumulative Toxins (PBT) Regulation. The PBT Rule is a procedural rule that establishes the department's process and procedures for addressing PBTs and helps the department set its internal priorities in addressing PBTs. Effective February 13, 2006. See http://www.ecy.wa.gov/biblio/0607007.html

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

INTERNATIONAL

UGANDA BLAMED FOR LOW WATER LEVELS IN LAKE VICTORIA:

  • Uganda is taking 55% more than its share of water from Lake Victoria and lowering the water level by 45 centimeters, a hydrologist with the United Nation's International Strategy for Disaster Reduction in Nairobi stated in a report published by the International Rivers Network. The country draws water for hydroelectric power plants and has blamed drought for the recent drop in the lake's water levels. The report argues that drought is responsible for only half the drop in water level, which is at its lowest in 80 years. See http://news.bbc.co.uk/1/hi/world/africa/4696240.stm

LIBERIA NULLIFIES ALL FOREST CONCESSIONS:

  • New Liberian president Ellen Johnson-Sirleaf has signed her first executive order, which declares null and void all existing forest concessions. The move follows the recommendation of the Forest Concession Review Committee, which has ordered corrective measures to reform natural resource management in Liberia. The Forestry Reform Monitoring Committee is tasked with developing new forest concessions that will ensure timber harvesting complies with international standards and the principles of accountability, sustainability, and transparency. See http://allafrica.com/stories/200602070637.html

U.N. BROKERS INTERNATIONAL CHEMICALS AGREEMENT:

  • Environmental officials representing 150 countries agreed upon international standards for chemical production on Tuesday in Dubai. The voluntary agreement, known as the Dubai Declaration, sets guidelines for the chemical industry, which is growing by 1,500 new compounds per year with little oversight. The talks were polarized by U.S.- and European Union-led camps that disagreed about the inclusion of provisions requiring stringent testing of new chemicals. See http://www.enn.com/today.html?id=9835

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

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Leslie Carothers, Publisher
Scott Schang, Editor-in-Chief
Linda L. Johnson, Managing Editor
Rachel Jean-Baptiste, Associate Editor
Carolyn Fischer, Books Editor
William J. Straub, Desktop Publisher
April King, Editorial Associate
Allison Watkins, Contributing Editor
Erin Webreck, Publications Intern