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Weekly Update Volume 36, Issue 6

02/27/2006

LITIGATION

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

CWA, WETLANDS, JURISDICTION:

The First Circuit held that the U.S. Army Corps of Engineers' jurisdiction under the CWA extends to three cranberry farms in Carver, Massachusetts. The sites are inseparably bound up with the navigable-in-fact Weweantic River because of the uncontested fact that there is a hydrological connection--through a tributary system and its adjacent wetlands--linking them together. A dissenting judge disagreed with the majority on both statutory and constitutional grounds. United States v. Johnson, No. 05-1444, 36 ELR 20040 (1st Cir. Feb. 13, 2006) (69 pp.).

CWA, DREDGE AND FILL:

The Tenth Circuit affirmed an individual's conviction for discharging pollutants into the Wind River in Wyoming in violation of the CWA. The individual argued that his use of a bulldozer to construct dikes did not amount to the addition of a pollutant into the river because the construction did not add materials from outside the river’s banks. But his use of a bulldozer to remove river bottom materials in order to construct his dikes unquestionably falls within the scope of U.S. Army Corps of Engineers regulations, and the CWA, in order to apply, does not require proof that the defendant's discharge of pollutants into a tributary caused any deleterious effect on the navigable waters downstream. In addition, the lower court did not err in admitting certain evidence. United States v. Hubenka, No. 05-8006, 36 ELR 20043 (10th Cir. Feb. 22, 2006) (20 pp.).

NATIVE AMERICANS, SOVEREIGN IMMUNITY:

The Tenth Circuit affirmed the denial of the Quapaw Tribe's motion to dismiss companies' counterclaims against it in a suit alleging that the companies and their predecessors in interest caused environmental contamination on tribal lands due to mining activities in the 1900s. Because a tribe waives its sovereign immunity as to counterclaims sounding in recoupment by filing suit, and because the companies' counterclaims for common law contribution and indemnity are claims in recoupment, the tribe's motion was properly dismissed. Berrey v. Asarco, Inc., No. 04-5131, 36 ELR 20045 (10th Cir. Feb. 23, 2006) (16 pp.).

SOLID WASTE, COMMERCE CLAUSE:

The Second Circuit held that municipal flow control ordinances do not violate the dormant Commerce Clause of the U.S. Constitution. The municipal scheme at issue requires that the garbage generated by local households and businesses be delivered to facilities that are owned and operated by a public corporation, thereby preventing the trash from being processed at non-local facilities. After processing, the trash is then delivered by a private contractor to a designated landfill site, or is reused or recycled. The lower court held that the ordinances did not burden interstate commerce. But even if the ordinances were found to burden interstate commerce, any burden imposed by the ordinances is not clearly excessive in relation to the local benefits conferred by them. The lower court's judgment in favor of the defendants was therefore affirmed. United Haulers Ass'n, Inc. v. Oneida-Herkimer Solid Waste Management Authority, No. 05-2024, 36 ELR 20041 (2d Cir. Feb. 16, 2006) (21 pp.).

BOUNDARY WATERS CANOE WILDERNESS ACT (BWCAW ACT), MOTORBOATS:

The Eighth Circuit held that the U.S. Forest Service has the authority to recalculate the annual motorboat use base-period for certain lake chains within the Boundary Waters Canoe Areas Wilderness to correct a significant legal error made manifest in an earlier court ruling. Although Congress was silent as to whether the Forest Service may recalculate the statutory cap based on legal error, the Forest Service's interpretation that the BWCAW Act allows it to recalculate the base period in this instance is reasonable and not contrary to the purposes of the Act. The court, therefore, reversed in part a lower court's grant of summary judgment in favor of an environmental group challenging the agency's authority. The court, however, affirmed the lower court's decision that the Forest Service's homeowner and resort non-exempt lake chain use recalculation for the Moose, Saganaga, and Farm Lake Chains was arbitrary and capricious. Friends of the Boundary Waters Wilderness v. Bosworth, Nos. 04-3629, -3632, 36 ELR 20039 (8th Cir. Feb. 15, 2006) (22 pp.).

MAGNUSON-STEVENS FISHERY CONSERVATION AND MANAGEMENT ACT, STATUTE OF LIMITATIONS:

The Ninth Circuit upheld the dismissal of an environmental group's motion to preliminarily enjoin the reopening of the Hawaii-based longline swordfish fishery. Because the group's environmental claims were appropriately characterized as an attack on regulations reopening a fishery, the Magnuson-Stevens Fishery Conservation and Management Act's statute of limitations applies. And because the group's petition was filed beyond the Act's 30-day time limitation, their claims are barred. Turtle Island Restoration Network v. United States Department of Commerce, No. 05-15035, 36 ELR 20044 (9th Cir. Feb. 21, 2006) (21 pp.).

PESTICIDES, REGISTRATION, CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA):

A California appellate court upheld a lower court decision denying a nonprofit group's petition for writ of mandate and claim for declaratory relief in a case challenging a state pesticide department's decision to renew a number of pesticide registrations for 2002. The department’s procedure of renewing pesticide registrations prior to completing the process of inviting, considering, and responding to public comments regarding the impact of continued registration does not violate the CEQA. And although the trial court erred by dismissing the group's mandamus claims as moot, the department did not abuse its discretion or violate CEQA by renewing pesticide registrations without reevalulation. Californians for Alternatives to Toxics v. California Department of Pesticide Regulation, No. C046813, 36 ELR 20043 (3d. App. Cal. Dist. Feb. 15, 2006) (39 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 the plywood and composite wood products NESHAPs. 71 FR 8341 (2/16/06).
  • EPA amended NESHAPs for new and existing refractory products manufacturing facilities. 71 FR 7415 (2/13/06).
  • EPA revised certain portions of the standards of performance for stationary gas turbines in order to clarify that it is not imposing new requirements for turbines constructed after 1977. 71 FR 9423 (2/24/06).
  • EPA amended the fuels regulations to remove the oxygen content requirement for reformulated gasoline (RFG) produced and sold for use in California pursuant to CAA §211(k). 71 FR 8965 (2/22/06).
  • EPA amended the fuels regulations to remove the oxygen content requirement for RFG as well as requirements that were included in the regulations to implement and ensure compliance with the oxygen content requirement pursuant to CAA §211(k). 71 FR 8973 (2/22/06).
  • EPA proposed to amend NESHAPs for new and existing refractory products manufacturing facilities (see above for direct final rule). 71 FR 7494 (2/13/06).
  • EPA proposed to revise certain portions of the standards of performance for stationary gas turbines (see above for direct final rule). 71 FR 9504 (2/24/06).
  • EPA proposed to amend the fuels regulations to remove the oxygen content requirement for RFG produced and sold for use in California (see above for direct final rule). 71 FR 9064 (2/22/06).
  • EPA proposed to amend the fuels regulations to remove the oxygen content requirement for RFG and to remove requirements that were included in the regulations to implement and ensure compliance with the oxygen content requirement (see above for direct final rule). 71 FR 9070 (2/22/06).
  • EPA proposed to partially approve a delegation request submitted by the Washington State Department of Health concerning delegation authority to implement and enforce NESHAPs for radionuclide air emissions. 71 FR 9059 (2/22/06).
  • EPA, pursuant to CAA §112, announced the availability of an updated model used to demonstrate compliance with NESHAPs applicable to radionuclides. 71 FR 8854 (2/21/06).
  • EPA gave notice that it has approved a different procedure for determining localized carbon monoxide concentrations (hot-spot analysis) for transportation conformity under the CAA in Washington state. 71 FR 7776 (2/14/06).
  • EPA announced the availability of a letter and technical support document approving Arkansas' request to identify Crittenden County as a zone targeted for economic development under CAA §173(a)(1)(B). 71 FR 8857 (2/21/06).
  • SIP Approvals: California (particulate matter emissions) 71 FR 7683 (2/14/06); (emission sources) 71 FR 8461 (2/17/06). Colorado (startup and shutdown provisions) 71 FR 8958 (2/22/06). Texas (ozone nonattainment areas) 71 FR 8962 (2/22/06). Utah (rule recodification) 71 FR 7679 (2/14/06).
  • SIP Proposal: Texas (ozone nonattainment areas; see above for direct final rule) 71 FR 9059 (2/22/06).

HAZARDOUS WASTE:

  • EPA entered into a proposed administrative settlement under CERCLA §122(h) concerning the Grand Junction Anti-Freeze Superfund site in Grand Junction, Colorado. 71 FR 8303 (2/16/06).
  • EPA entered into a proposed administrative settlement under CERCLA §122(h)(1) concerning the Union Creosoting Superfund site in Union Parish, Louisiana. 71 FR 7959 (2/15/06).
  • EPA entered into a proposed agreement and covenant not to sue pursuant to CERCLA concerning the Davenport and Flagstaff Smelters Superfund site located in Salt Lake County, Utah. 71 FR 7776 (2/14/06).
  • EPA proposed to grant a petition to exclude a certain solid waste generated at the Bayer Material Science LLC facility in Baytown, Texas, from the list of hazardous wastes under RCRA. 71 FR 7704 (2/14/06).

MINING:

  • OSM approved an amendment to the Texas regulatory program under SMCRA concerning annual fees from coal mining permit holders. 71 FR 8458 (2/17/06).
  • OSM proposed to approve amendments to New Mexico's regulatory program under SMCRA concerning administrative review of decisions and the award of attorneys fees and legal costs. 71 FR 7477 (2/13/06).
  • OSM proposed to approve an amendment to Ohio's regulatory program under SMCRA concerning the state's alternate bonding system. 71 FR 7480 (2/13/06).
  • OSM proposed to approve amendments to Utah's regulatory program under SMCRA concerning permit change, renewal, transfer, sale, and assignment; cross sections and maps; processing and approval of extensions to approved permit areas; determining civil penalty amounts; and assessing daily civil penalties. 71 FR 7489 (2/13/06).
  • OSM proposed to approve an amendment to Wyoming's regulatory program under SMCRA concerning bond release and highwall retention. 71 FR 7492 (2/13/06).

MISCELLANEOUS:

  • EPA issued guidance entitled Indian General Assistance Program 2006 Grant Administration Guidance, which summarizes the issues and procedures required to ensure compliance with current grant policies and regulations. 71 FR 9547 (2/24/06).

PESTICIDES:

  • EPA announced the availability of its risk assessments and related documents for the pesticide oxytetracycline. 71 FR 7942 (2/15/06).
  • EPA announced the availability of its risk assessments and related documents for the triazole fungicide propiconazole and for its free triazole metabolites. 71 FR 7949 (2/15/06).
  • EPA announced the availability of its risk assessments and related documents for the pesticide streptomycin. 71 FR 7940 (2/15/06).
  • EPA announced the availability of its risk assessments and related documents for the triazole fungicide triadimefon and for its free triazole metabolites. 71 FR 7945 (2/15/06).
  • EPA announced the availability of its risk assessment and related documents for the triazole fungicide triadimenol and for its free triazole metabolites. 71 FR 7947 (2/15/06).
  • EPA announced the availability of its risk assessment for the pesticide boric acid/sodium borate salts. 71 FR 9112 (2/22/06).
  • EPA announced the availability of its revised risk assessments for the fumigant/sterilant pesticide ethylene oxide. 71 FR 9110 (2/22/06).
  • EPA announced the availability of EPA's Tolerance Reassessment Decision for tridemorph, and opened a public comment period on this document, related risk assessments, and other support documents. 71 FR 9114 (2/22/06).

TOXIC SUBSTANCES:

  • EPA took direct final action to amend TSCA §8(a) inventory update reporting regulations by adding four chemical substances to the list of chemical substances in 40 CFR §710.46(b)(2)(iv). 71 FR 8467 (2/17/06).
  • EPA amended its regulations for awarding TSCA compliance monitoring grant funds to states so that the grants will be awarded to states on an allotment basis rather than on a competitive basis. 71 FR 7414 (2/13/06).

WATER:

  • EPA announced the availability of final recommended aquatic life ambient water quality criteria for the organophosphorus pesticide diazinon. 71 FR 9336 (2/23/06).
  • EPA announced the availability of final recommended aquatic life ambient water quality criteria for the organic chemical nonylphenol. 71 FR 9337 (2/23/06).
  • EPA received a petition from the state of Maine requesting a determination by the Agency that adequate facilities for the safe and sanitary removal and treatment of sewage from all vessels are reasonably available for the Casco Bay area. 71 FR 7964 (2/15/06).

WILDLIFE:

  • FWS, in anticipation of the possible removal of the bald eagle from the ESA list of endangered and threatened wildlife, proposed a definition of "disturb'' under the Bald and Golden Eagle Protection Act to guide post-delisting bald eagle management. 71 FR 8265 (2/16/06).
  • FWS updated information on nesting of American peregrine falcons in the western United States and determined the allowed take of nestlings in 12 western states in 2006. 71 FR 9143 (2/22/06).
  • FWS announced its 12-month finding for a petition to list the Yellowstone cutthroat trout as a threatened species under the ESA; it determined that listing the trout is not warranted at this time. 71 FR 8818 (2/21/06).
  • FWS announced a 90-day finding on a petition to list the Douglas County pocket gopher in Colorado as threatened or endangered under the ESA and determined that listing is not warranted at this time. 71 FR 7715 (2/14/06).
  • FWS announced a five-year review of the Florida scrub-jay under ESA §4(c)(2) to ensure the accuracy of the species' classification on the list of endangered and threatened wildlife and plants. 71 FR 7993 (2/15/06).
  • FWS announced that a final comprehensive conservation plan for Lost Trail National Wildlife Refuge in Marion, Montana, is available. 71 FR 7794 (2/14/06).
  • FWS announced that the final comprehensive conservation plan is available for the Sherburne National Wildlife Refuge in Minnesota. 71 FR 7562 (2/13/06).
  • NOAA, in order to provide protection to an aggregation of northern right whales, announced temporary restrictions to certain fishermen that are consistent with the requirements of the Atlantic Large Whale Take Reduction Plan's implementing regulations. 71 FR 7441 (2/13/06).
  • NOAA announced temporary restrictions on gillnet fishing in the southeast U.S. restricted area in order to protect North Atlantic right whales from further serious injury or mortality. 71 FR 8223 (2/16/06).
  • NMFS and NOAA, in accordance with the Marine Mammal Protection Act, gave notice that a letter of authorization to take three species of marine mammals incidental to missile launch operations from San Nicolas Island, California, has been issued to the Naval Air Warfare Center Weapons Division in Point Mugu, California. 71 FR 7536 (2/13/06).
  • NMFS announced the aboriginal subsistence whaling quota for bowhead whales, which will govern the harvest of the whales by members of the Alaska Eskimo Whaling Commission. 71 FR 7539 (2/13/06).

DOJ NOTICES OF SETTLEMENTS:

  • United States v. Exxon Mobile Corp., No. 7:06-00360-GRA. (D.S.C. Feb. 3, 2006). Settling CERCLA defendants must perform the remedial design and remedial action for the Aqua-Tech Environmental, Inc., Superfund site near Greer, South Carolina, and must reimburse EPA for past and future costs incurred at the site. 71 FR 7998 (2/15/06).
  • United States v. City of New York, No. 02-9653 (S.D.N.Y. Jan. 25, 2006). Settling RCRA defendant must pay a $1.3 million civil penalty, must upgrade its USTs, must monitor its tanks for leaks, and must implement injunctive relief to resolve claims of various RCRA violations. 71 FR 7998 (2/15/06).
  • In re Imperial Home Decor Group, Inc., No. 00-19 (Bankr. Del. Feb. 10, 2006). The United States is provided an allowed unsecured claim of $919,705 stemming from response costs incurred at the SRS Superfund Site in Southington, Connecticut. 71 FR 9598 (2/24/06).
  • United States v. Ryder System, Inc., No. C06-5072RJB. (W.D. Wash. Feb. 8, 2006). A settling CERCLA defendant must pay natural resources trustees $25,838.61 for natural resource damages and assessment costs incurred in Commencement Bay, Washington. 71 FR 9598 (2/24/06).

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

THE CONGRESS

BILLS INTRODUCED:

  • S. 2288 (Feingold, D-Wis.) (water resources) would modernize water resources planning. 152 Cong. Rec. S1353 (daily ed. Feb. 15, 2006). The bill was referred to the Committee on Environment and Public Works.
  • S. 2290 (Pryor, D-Ark.) (natural gas) would provide for affordable natural gas by rebalancing domestic supply and demand and by promoting the production of natural gas from domestic resources. 152 Cong. Rec. S1353 (daily ed. Feb. 15, 2006). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2294 (Boxer, D-Cal.) (oil and gas) would permanently prohibit oil and gas leasing off the coast of the state of California. 152 Cong. Rec. S1413 (daily ed. Feb. 16, 2006). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2295 (Akaka, D-Haw.) (chemical disposal) would require the Secretary of the Army to conduct a survey and monitoring of off-shore sites in the vicinity of the Hawaiian Islands where chemical munitions were disposed of by the Army Forces, to support research regarding the public and environmental health impacts of chemical munitions disposal in the ocean, and to require the preparation of a report on remediation plans for such disposal sites. 152 Cong. Rec. S1413 (daily ed. Feb. 16, 2006). The bill was referred to the Committee on Armed Services.
  • S. 2297 (Schumer, D-N.Y.) (hydroelectric projects) would clarify the applicability of deadlines relating to construction of hydroelectric projects to certain hydroelectric projects located or proposed to be located on the Upper Hudson River in the state of New York. 152 Cong. Rec. S1413 (daily ed. Feb. 16, 2006). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2298 (Feinstein, D-Cal.) (perchlorate contamination) would facilitate remediation of perchlorate contamination in water sources in the state of California. 152 Cong. Rec. S1413 (daily ed. Feb. 16, 2006). The bill was referred to the Committee on Environment and Public Works.
  • S. 2314 (Feinstein, D-Cal.) (oil and natural as royalties) would suspend the application of any provision of federal law under which persons are relieved from the requirement to pay royalties for production of oil or natural gas from federal lands in periods of high oil and natural gas prices, to require the Secretary to seek to renegotiate existing oil and natural gas leases to similarly limit suspension of royalty obligations under such leases. 152 Cong. Rec. S1413 (daily ed. Feb. 16, 2006). The bill was referred to the Committee on Energy and Natural Resources.
  • H.R. 4761 (Jindal, R-La.) (mineral resources) would provide for exploration, development, and production activities for mineral resources on the outer continental shelf. 152 Cong. Rec. H332 (daily ed. Feb. 15, 2006). The bill was referred to the Committee on Resources.
  • H.R. 4778 (Abercrombie, D-Haw.) (chemical disposal) would require the Secretary of the Army to conduct a survey and monitoring of off-shore sites in the vicinity of the Hawaiian Islands where chemical munitions were disposed of by the Armed Forces, to support research regarding the public and environmental health impacts of chemical munitions disposal in the ocean, and to require the preparation of a report on remediation plans for such disposal sites. 152 Cong. Rec. H388 (daily ed. Feb. 16, 2006). The bill was referred to the Committee on Armed Services.
  • H.R. 4782 (Capps, D-Cal.) (oil and gas leasing) would permanently prohibit oil and gas leasing off the coast of the state of California. 152 Cong. Rec. H388 (daily ed. Feb. 16, 2006). The bill was referred to the Committee on Resources.
  • H.R. 4783 (Davis, D-Fl.) (offshore drilling) would prohibit offshore drilling on the outer continental shelf off the state of Florida. 152 Cong. Rec. H388 (daily ed. Feb. 16, 2006). The bill was referred to the Committee on Resources.
  • H.R. 4784 (Defazio, D-Or.) (land conveyance) would direct the Secretary of Interior to convey certain BLM land to the city of Eugene, Oregon. 152 Cong. Rec. H388 (daily ed. Feb. 16, 2006). The bill was referred to the Committee on Resources.
  • H.R. 4788 (Faleomavaega, D-Am. Sam.) (coral reefs) would reauthorize the Coral Reef Conservation Act of 2000. 152 Cong. Rec. H388 (daily ed. Feb. 16, 2006). The bill was referred to the Committee on Resources.
  • H.R. 4789 (Hastings, R-Wash.) (land conveyance) would require the Secretary of the Interior to convey certain public land located wholly or partially within the boundaries of the Wells Hydroelectric Project of Public Utility District No. 1 of Douglas County, Washington, to the utility district. 152 Cong. Rec. H388 (daily ed. Feb. 16, 2006). The bill was referred to the Committee on Resources.
  • H.R. 4798 (Pombo, R-Cal.) (perchlorate contamination) would facilitate remediation of perchlorate contamination in water sources in the state of California. 152 Cong. Rec. H388 (daily ed. Feb. 16, 2006). The bill was referred to the Committee on Energy and Commerce and the Committee on Transportation and Infrastructure.
  • H.R. 4800 (Solis, D-Cal.) (TSCA) would amend TSCA to 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. 152 Cong. Rec. H388 (daily ed. Feb. 16, 2006). The bill was referred to the Committee on Energy and Commerce.

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

IN THE STATES

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

The states below have updates this week:

Alabama Florida Maine Oklahoma Alaska Idaho Nebraska Rhode Island Arizona Illinois New Jersey Texas California Iowa New York Virginia Colorado Louisiana Ohio Wisconsin

ALABAMA

Air:

  • The Alabama Department of Environmental Management (ADEM) proposed to amend ADEM Administrative Code Rules 335-3-3-.05, Incineration of Commercial and Industrial Solid Waste; 335-3-10-.01, General; 335-3-10-.02, Designated Standards of Performance; 335-3-11-.01, General; 335-3-11-.06, NESHAPs for Source Categories; 335-3-14-.02, Permit Procedure; 335-3-14-.03, Standards for Granting Permits; 335-3-14-.04, Air Permits Authorizing Construction in Clean Air Areas; as well as Chapters 335-3-5, Control of Sulfur Compound Emissions; and 335-3-8, Control of Nitrogen Oxides Emissions. ADEM also proposed to amend Appendices C, EPA Regulations Reference Documents for New Source Performance Standards and NESHAPS; D, Nonattainment Areas; and G List of Hazardous Air Pollutants. Written comments are due April 7, 2006. A public hearing will be held April 5, 2006. See http://www.adem.state.al.us/PublicNotice/Feb/2Div3.htm

General:

  • The Alabama Department of Environmental Management (ADEM) proposed to amend ADEM Administrative Code Rule 335-1-6-.07, Payment of Fees-Schedule D, to establish fees to cover costs related to its review of biological study proposals, data, and reports related to cooling water intake structures. ADEM also proposed to amend Rule 335-1-1-.07, Departmental Forms, Instructions, and Procedures; and 335-1-1-.06, Availability of Records and Information. Written comments are due April 7, 2006. A public hearing will be held April 5, 2006. See http://www.adem.state.al.us/PublicNotice/Feb/2Div1.htm

ALASKA

Air:

  • Regulations dealing with Air Quality Inspection and Maintenance of Motor Vehicles at 18 AAC 52 were adopted by the Department of Environmental Conservation on January 17, 2006, with an effective date of February 18, 2006. The regulation changes removed outdated language and lengthened the time period before new vehicles are required to obtain their first certificate. The changes also clarified the requirements for windshield stickers and updated the Mechanic Training Course Requirements in the Alaska Inspection/Maintenance Program Manual, which was adopted by reference. See http://www.state.ak.us/local/akpages/ENV.CONSERV/public_notices.htm

Toxic Substances:

  • Regulations dealing with 18 AAC 90, Pesticide Control, were adopted by the Department of Environmental Conservation on January 9, 2006, with an effective date of February 15, 2006. The regulations established an annual fee for pesticide products to be used in the state and established a licensing fee for in-state pesticide applicators. See http://www.state.ak.us/local/akpages/ENV.CONSERV/public_notices.htm

Water:

  • Regulations dealing with water quality standards at 18 AAC 70 were adopted by the Department of Environmental Conservation on January 12, 2006, with an effective date of February 15, 2006. Revisions were made to the site specific water quality criteria for total dissolved solids in the section of Red Dog Creek downstream from the Red Dog Mine. The criteria adopted are protective of the growth and propagation of fish and other aquatic life in Red Dog Creek. See http://www.state.ak.us/local/akpages/ENV.CONSERV/public_notices.htm

ARIZONA

General:

  • The Department of Environmental Quality amended R18-7-301, concerning the fee for the preparation of a prospective purchaser agreement. The Department evaluated the cost of completing a prospective purchaser agreement and determined that the actual cost is different from the fee in the current rule. Effective March 11, 2006, the Department has amended the fee rule to more closely reflect the actual costs for this activity. See http://www.azsos.gov/aar/2006/5/contents.shtm

CALIFORNIA

Air:

  • The California Air Resources Board will hold meetings to allow the public to discuss and provide input on proposed amendments to the Statewide Portable Equipment Registration Regulation. The meetings will take place March 30 and April 4, 2006. See http://www.arb.ca.gov/portable/perpact/mtgs/wrkshp1.pdf

Toxic Substances:

  • The Office of Environmental Health Hazard Assessment (OEHHA) announces the availability of the draft report entitled Draft Health Advisory: Safe Eating Guidelines for Fish and Shellfish from Lake Berryessa and Putah Creek (Napa, Yolo, and Solano Counties). The report contains an evaluation of findings on mercury in fish from Lake Berryessa and Putah Creek, and provides health guidelines for consumption of fish from these water bodies. OEHHA is soliciting comments from interested parties on the draft report and advisories during a 30-day public comment period. OEHHA will also hold two public workshops to make a presentation, answer questions, and take comments. The workshops will be held February 27 and 28, 2006. Comments are due March 20, 2006. See http://oehha.org/fish/so_cal/lakeberry.html

Water:

  • The State Water Board proposed to add Article 7 to chapter 18, division 3, title 23, of the California Code of Regulations (commencing with §2814.20), relating to the Orphan Site Cleanup Account. A public hearing will be held if any interested person, or duly authorized representative of an interested person, submits a written request for a public hearing to the State Water Board no later than 15 days before the close of the written comment period. Written comments are due March 27, 2006. See http://www.waterboards.ca.gov/cwphome/ustcf/docs/osca/noticeof_proposed_rulemaking.pdf

General:

  • Cal/EPA proposed to amend California Code of Regulations, title 27, division 1, subdivision 4, chapter 1, part II, article 5, §§15241 and 15242. The proposed regulations make permanent the current emergency regulations and are necessary to implement the legislative mandate contained in Health and Safety Code, division 20, chapter 6.11 (§25404 et seq.). Under this chapter, certain environmental protection measures are unified within the jurisdiction of a single agency. This ensures that the human health and the environment will be safeguarded in a manner that is easier for regulated businesses because they will need to work only with one regulatory agency rather than with several. A public hearing will be held March 6, 2006. Comments are due March 6, 2006. See http://www.dtsc.ca.gov/LawsRegsPolicies/upload/Oeara_REG_CUPAFee_Final_Notice1.pdf

COLORADO

Water:

FLORIDA

Air:

Hazardous & Solid Wastes:

Water:

IDAHO

Hazardous & Solid Wastes:

  • The Department of Environmental Quality is seeking public comment on proposed revisions to its guidance for evaluating whether contaminated properties pose risks to human health. The proposed revisions are designed to assure that the document remains scientifically current and include corrections to the guidance narrative, updates to toxicity factors for selected chemicals, changes in screening levels, and revision of the software. Written comments are due March 22, 2006. See http://www.deq.state.id.us/Applications/NewsApp/shownews.cfm?event_id=1430

ILLINOIS

Toxic Substances:

  • The Illinois Pollution Control Board will hold a public hearing on March 23, 2006, to consider In re Proposed Amendments to Regulation of Petroleum Leaking Underground Storage Tanks (35 Ill. Adm. Code 732) (Consolidated: R04-22B and R04-23B). The public hearing will be continued on March 24, if necessary. See http://www.ipcb.state.il.us/documents/dsweb/Get/Document-51139/

IOWA

Hazardous & Solid Wastes:

  • The Environmental Protection Commission announced its intention to amend Chapter 105, “Organic Materials Composting Facilities,” Iowa Administrative Code. The proposed amendments pertain to animal mortality composting and include other composting rule updates. The proposed amendments are needed to address the increased use of composting by Iowa farmers as a means to manage dead livestock. These revisions will add flexibility for farmers wanting to compost routine livestock mortalities from multiple sites at a centralized site, as well as aid compliance with the rules. Any interested person may make written suggestions or comments pertaining to the proposed amendments on or before March 15, 2006. A public hearing will be held March 15, 2006. See http://www.legis.state.ia.us/Rules/Current/Bulletin/IAB060215.pdf
  • The Environmental Protection Commission amended Chapter 101, “Solid Waste Comprehensive Planning Requirements,” Iowa Administrative Code. The amendments pertain to solid waste comprehensive planning and the disposal of solid waste by planning areas in sanitary landfills outside the planning area. Effective March 22, 2006. See http://www.legis.state.ia.us/Rules/Current/Bulletin/IAB060215.pdf (p. 1286)
  • The Environmental Protection Commission adopted Chapter 123, “Regional Collection Centers and Mobile Unit Collection and Consolidation Centers,” rescinded Chapter 211, “Grants for Regional Collection Centers of Conditionally Exempt Small Quantity Generators and Household Hazardous Wastes,” and adopted new Chapter 211, “Financial Assistance for the Collection of Household Hazardous Materials and Hazardous Waste from Conditionally Exempt Small Quantity Generators,” Iowa Administrative Code. Effective March 22, 2006. See http://www.legis.state.ia.us/Rules/Current/Bulletin/IAB060215.pdf (p. 1286)

Land Use:

  • The Environmental Protection Commission announced its intention to amend Chapter 65, “Animal Feeding Operations,” Iowa Administrative Code. The proposed amendments would authorize the Director to condition or deny a construction permit, to modify or disapprove a manure management plan, or to prohibit construction of a proposed confinement feeding operation at the proposed location if the Director concludes, after an evaluation by the Department of Natural Resources, that the proposed confinement feeding operation or proposed expansion of a confinement feeding operation would reasonably be expected to cause pollution of a water of the state, violation of state water quality standards, or an unreasonable burden on natural resources or the environment due to the current concentration of confinement feeding operations or associated manure application fields in a specific area. The proposed amendments would also authorize the Director to deny a construction permit, to disapprove a nutrient management plan, or to prohibit construction of a proposed open feedlot operation or the proposed expansion of an existing open feedlot operation. Written comments are due March 10, 2006. Public hearings will be held March 7, 8, 9, and 10, 2006. See http://www.legis.state.ia.us/Rules/Current/Bulletin/IAB060215.pdf (p. 1231)

Water:

LOUISIANA

Air:

  • The Department of Environmental Quality announced that rulemaking procedures have been initiated to amend the Air regulations, LAC 33:III.111, 507, 1432, 2160, 3003, 5116, 5122, 5311, and 5901. This rulemaking incorporates by reference (IBR) the corresponding federal regulations in 40 C.F.R. pts. 51 (Appendix M), 60, 61, 63, 68, 70.6(a), and 93, Subpart A, into the Air Quality regulations. Exceptions to the IBR are explicitly provided in the regulations. A public hearing will be held March 28, 2006. Written comments are due March 28, 2006. See http://www.deq.louisiana.gov/portal/portals/0/planning/regs/pdf/AQ258ftpro.pdf
  • The Department of Environmental Quality finalized amendments to Chapter 9, General Regulations on Control of Emissions and Emission Standards, in February 2006. See http://www.deq.louisiana.gov/portal/portals/0/planning/regs/pdf/AQ255fin.pdf
  • The Department of Environmental Quality proposed general revisions to the air quality SIP. The revisions include amendments to various air quality regulations in LAC 33:III Chapters 2, 5, 6, 9, 11, 14, 15, 21, 22, and 23 that were previously promulgated in 2004 and 2005, and that were not previously included in other revisions to the SIP. A public hearing will be held March 28, 2006. Written comments are due April 4, 2006. See http://www.deq.louisiana.gov/portal/portals/0/planning/regs/pdf/0602Pot2.pdf
  • The Department of Environmental Quality determined that emergency action is necessary to implement rules concerning the revised primary and secondary NAAQS for ozone and transitional provisions for nonattainment new source review under the revised standard. This is a renewal of Emergency Rule AQ253E1, which was effective on October 13, 2005, and published in the Louisiana Register on November 20, 2005. This emergency rule is effective on February 10, 2006, and shall remain in effect for a maximum of 120 days or until a final rule is promulgated, whichever occurs first. See http://www.deq.louisiana.gov/portal/portals/0/planning/regs/pdf/AQ253E2.pdf
  • The Department of Environmental Quality declared that an emergency action is necessary to implement rules concerning the use of new or revised emissions estimation methods for annual compliance certifications required by LAC 33:III.507.H. This is a renewal of Emergency Rule AQ240E3, which was effective on August 25, 2005,
    and published in the Louisiana Register on September 20, 2005. This Emergency Rule clarifies requirements set forth in LAC 33:III.919, concerning emissions inventory, and LAC 33:III.507.H, concerning annual compliance certifications. LAC 33:III.919.C requires that emissions reported in the emissions inventory shall be calculated using the best available information. This emergency rule is effective on December 23, 2005, and shall remain in effect for a maximum of 120 days or until a final rule is promulgated, whichever occurs first. See http://www.deq.louisiana.gov/portal/portals/0/planning/regs/pdf/AQ240E4.pdf

Hazardous & Solid Wastes:

  • The Department of Environmental Quality gave notice that rulemaking procedures have been initiated to amend the hazardous waste regulations, LAC 33:V.105, 108, 109, 1501, 1705, 1717, 2247, 3001, 3873, 4101, 4103, 4105, 4107, 4109, 4111, 4113, 4115, 4117, 4119, 4121, 4123, 4125, 4127, 4129, 4131, 4133, 4135, 4139, 4141, 4143, 4145, and 4301. This proposed rule is identical to federal regulations found in 40 C.F.R. §261.6. This proposed rule will reorganize LAC 33:V Chapter 41 and repeal parts that have been incorporated into other chapters of the hazardous waste regulations (e.g., regulations regarding universal waste). This will eliminate the confusion of inconsistent regulations and make the state regulations consistent with the federal regulations. A public hearing will be held March 28, 2006. Written comments are due March 28, 2006. See http://www.deq.louisiana.gov/portal/portals/0/planning/regs/pdf/HW089ftpro.pdf

Water:

  • The Department of Environmental Quality announced that rulemaking procedures have been initiated to amend the water quality regulations, LAC 33:IX.1123.Table 3. The proposed rule establishes Luling Wetland as subsegment 020303-001, located west of St. Martinville. This action is required to establish site-specific criteria and designated uses for Luling Wetland in the water quality standards. A public hearing will be held March 28, 2006. Written comments are due April 4, 2006. See http://www.deq.louisiana.gov/portal/portals/0/planning/regs/pdf/WQ062pro.pdf
  • The Department of Environmental Quality announced that rulemaking procedures have been initiated to amend the water quality regulations, LAC 33:IX.1123.Table 3. The proposed rule establishes South Slough Wetland as subsegment 040604-001, located southeast of Hammond. This action is required to establish site-specific criteria and designated uses for South Slough Wetland in the Water Quality Standards. A public hearing will be held March 28, 2006. Written comments are due April 4, 2006. See http://www.deq.louisiana.gov/portal/portals/0/planning/regs/pdf/WQ063pro.pdf
  • The Department of Environmental Quality gave notice that rulemaking procedures have been initiated to amend the water quality regulations, LAC 33:IX.1123.Table 3. The proposed rule establishes Cote Gelee Wetland as subsegment 060801-001, located east of Broussard. This action is required to establish site-specific criteria and designated uses for Cote Gelee Wetland in the Water Quality Standards. A public hearing will be held March 28, 2006. Written comments are due April 4, 2006. See http://www.deq.louisiana.gov/portal/portals/0/planning/regs/pdf/WQ064pro.pdf
  • The Department of Environmental Quality determined that an emergency action is necessary in order to prevent the unauthorized disposal of sewage sludge in treatment works treating domestic sewage and other areas unprepared to receive the waste stream. This is a renewal of Emergency Rule OS066E, which was effective on September 1, 2005, and published in the Louisiana Register on September 20, 2005. This version of the emergency rule has been revised to improve clarity and consistency, to be more in accordance with the federal regulations, to make corrections to the regulations concerning buffer zones, and to clarify compliance dates for surface disposal. This Emergency Rule is effective on December 30, 2005, and shall remain in effect for a maximum of 120 days or until a final rule is promulgated, whichever occurs first. See http://www.deq.louisiana.gov/portal/portals/0/planning/regs/pdf/OS066E1.pdf

General:

  • The Department of Environmental Quality announced that rulemaking procedures have been initiated to incorporate by reference into LAC 33:I, V, IX, and XV (environmental quality regulations) the corresponding regulations in 10 C.F.R. pt. 71 (Appendix A), 2005, and 40 C.F.R. pts.117.3, 136, 266 (Appendices I-IX and XI-XIII), 302.4, 401, and 405-471. This rulemaking is necessary to maintain delegation, authorization, etc., granted to Louisiana by U.S. EPA. A public hearing will be held March 28, 2006. Written comments are due March 28, 2006. See http://www.deq.louisiana.gov/portal/portals/0/planning/regs/pdf/OS068ftpro.pdf
  • The Department of Environmental Quality determined that an emergency action is necessary to correct a discrepancy in the radiation regulations regarding financial assurance amounts. The appendix showing financial assurance arrangements is being updated to mirror the federal regulations for financial assurance requirements. This emergency rule is effective on February 20, 2006, and shall remain in effect for a maximum of 120 days or until a final rule is promulgated, whichever occurs first. See http://www.deq.louisiana.gov/portal/portals/0/planning/regs/pdf/RP042E.pdf

MAINE:

Wildlife:

  • The Commissioner of Inland Fisheries and Wildlife adopted rules pertaining to open water fishing. This body of rules is printed in its entirety in the 2006 Open Water Fishing Regulations Booklet available from the Department as well as from license agents. Effective April 1, 2006. See http://www.maine.gov/sos/cec/rules/notices/2006/021506.htm

NEBRASKA

Water:

NEW JERSEY

Air:

NEW YORK

Water:

  • The Department of Environmental Conservation proposed revisions to Part 649--New York State Water Pollution Control Revolving Fund Regulations. The proposed revisions conform the state revolving fund regulations to current administrative purposes and practices. The revisions also update the Project Priority System to ensure equitable statewide treatment of funding priorities and integrate the water quality objectives as set forth in §§212, 319 and 320 of the federal CWA. A public meeting will be held April 3, 2006. Comments are due April 10, 2006. See http://www.dec.state.ny.us/website/dow/cwsrfrege.html

OHIO

Water:

  • The Ohio Environmental Protection Agency, Division of Air Pollution Control (DAPC), performed a five-year rule review of Ohio Administrative Code (OAC) rule 3745-23-01, Ambient Air Quality Standards, and OAC rule 3745-23-02, Methods of Analysis for Nitrogen Dioxide, and determined that amendments are warranted. The proposed amendments would use the current U.S. EPA methods of analysis, remove the former wet chemistry method, and update the authorizing and amplifying statutes. A public hearing will be held March 23, 2006. Written comments are due March 24, 2006. See http://www.registerofohio.state.oh.us/pdfs/phn/3745_NO_29550_20060213_1402.pdf

OKLAHOMA

Water:

  • The Department of Environmental Quality proposed to amend Subchapter 19, Classifications, in order to respond to the needs of the Water Quality Division. An additional method for accreditation was needed for general water quality laboratories to concur with Oklahoma Pollution Discharge Elimination System permits. Comments are due March 17, 2006. A public hearing will be held March 28, 2006. See http://www.oar.state.ok.us/register/Volume-23_Issue-11.htm#a28672

RHODE ISLAND

Hazardous & Solid Wastes:

  • The Department of Environmental Management proposed to amend the "Rules and Regulations for Composting Facilities and Solid Waste Management Facilities." The proposed amendment is to Solid Waste Regulation No. 1 - General Requirements, and Rule 1.13.04 - Solid Waste Disposal Fee. The amendment removes the exemption for the Tiverton Municipal Landfill and provides that the fee shall be used solely and exclusively for inspections under R.I.G.L. 23-18.9-1 et seq. A hearing will be held March 14, 2006. Written comments are due March 14, 2006. See http://www.dem.ri.gov/programs/benviron/waste/cmpstdft.htm

TEXAS

Water:

  • The Commission on Environmental Quality proposed to extend certain deadlines under the 2004 Confined Animal Feeding Operation (CAFO) rule. The proposed rulemaking would harmonize state requirements with federal requirements concerning the date that existing dry litter poultry operations must obtain authorization and the date that all concentrated animal feeding operations must develop and implement a nutrient management plan. A public hearing will be held March 15, 2006. Written comments are due March 27, 2006. See http://www.tceq.state.tx.us/assets/public/legal/rules/hearings/06021321_phn.pdf
  • The Commission on Environmental Quality proposed rules to implement HB 2510, On-Site Sewage Facilities (OSSF) Aerobic Unit Maintenance. These rules will establish certification and registration requirements for companies and individuals that maintain aerobic treatment of OSSFs. The proposed rules would also address enforcement for noncompliance. Written comments are due March 27, 2006. See http://www.tceq.state.tx.us/assets/public/legal/rules/rule_lib/proposals/05040285_pro_clean.pdf
  • The Commission on Environmental Quality adopted rules that implement HB 2510, On-Site Sewage Facilities Aerobic Unit Maintenance. The rules create a registration program for maintenance providers, defined as a person that services or maintains on-site sewage disposal systems using aerobic treatment. Effective March 1, 2006. See http://www.tceq.state.tx.us/assets/public/legal/rules/rule_lib/adoptions/05039030_ado-clean.pdf

VIRGINIA

Water:

  • The Department of Environmental Quality will hold the final public meeting on the development of a TMDL for bacteria impairments of Mattox Creek in Prince George and Westmoreland Counties on April 11, 2006. The public notice appears in the Virginia Register of Regulations on March 6, 2006. The comment period begins on March 22, 2006, and ends on April 21, 2006. See http://www.townhall.state.va.us/meeting/ViewMeeting.cfm?Meeting_ID=7106

WISCONSIN

Wildlife:

  • The Department of Natural Resources will hold the 2006 Spring Wildlife & Fisheries Rules Hearing and Conservation Congress County Meeting on April 10, 2006. The joint meeting will convene to take comments on revisions to chs. NR 10, 15, 17 and 19, Wis. Adm. Code, relating to wildlife rule changes, and to chs. NR 20, 21, 23 and 24, Wis. Adm. Code, relating to fisheries rule changes. The Department of Natural Resources will also hold public hearings on Natural Resources Board Emergency Order No. WM-10-06(E), relating to the issuance of turkey hunting permits. Written comments are due April 11, 2006. See http://www.dnr.state.wi.us/org/nrboard/congress/springhearings/

General:

  • The Department of Natural Resources will hold public hearings on the repeal and recreation of ch. NR 149, Wis. Adm. Code, relating to laboratory certification and registration. Since the last revision of ch. NR 149 in 1998, the Department realized the need for updating the rule to reflect current analytical practices, give specificity to vague language, provide needed flexibility, and promote efficient means of administering the certification and registration program. Hearings will be held March 23, 28, 29, and 30, and April 6, 2006. See http://www.dnr.state.wi.us/org/caer/ce/news/hearmeet.html

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

INTERNATIONAL

HONG KONG TO LEVY "GREEN" TAXES:

  • The Hong Kong government will introduce "green" taxes and tax breaks to encourage environmentally friendly behavior as part of its 2006-2007 budget. The Secretary of the Environment, Transport, and Works will introduce a bill to the Legislative Council to establish the legal framework for the new tax scheme. Planned taxes include fees on tires and plastic bags, and expected tax breaks include the exemption of electric vehicles from the registration tax. See http://english.people.com.cn/200602/22/eng20060222_244987.html

EUROPEAN UNION CHEMICAL REGULATION COULD SAVE 95 BILLION EUROS:

  • The E.U.'s forthcoming regulation on the registration, evaluation, and authorization of chemicals is predicted to produce 95 billion Euros in environmental benefits, according to a study published by the European Commission. The study focused on four hazardous chemicals to determine past health costs, assess cleanup cost savings, and calculate potential savings in drinking water treatment costs. See http://www.rsc.org/chemistryworld/News/2006/February/22020602.asp

CHINA ALLOWS PUBLIC PARTICIPATION IN ENVIRONMENTAL IMPACT ASSESSMENTS:

  • The Chinese State Environmental Protection Administration (SEPA) released two provisional measures on public participation in environmental impact assessments (EIAs) that ensure residents will be informed about proposed projects' impacts on the environment and allow citizens to offer input on project proposals. Public participation will take the form of answering an EIA questionnaire, consulting experts, or participating in a public hearing. Project contractors will be required to provide the public with documents that describe in layman's terms how the construction will affect the environment and what preventive measures will be taken. See http://news.xinhuanet.com/english/2006-02/23/content_4215672.htm

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

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