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Weekly Update Volume 36, Issue 8

03/20/2006

LITIGATION

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

ENERGY POLICY ACT OF 1992, ALTERNATIVE-FUEL VEHICLES:

A district court held that DOE violated the Energy Policy Act in refusing to require large private and municipal fleets of motor vehicles to use alternative-fuel vehicles. The Energy Policy Act, which was designed to reduce air pollution, global warming, and U.S. dependence on foreign oil, required DOE to consider imposing alternative fuel vehicle purchasing requirements on private and municipal fleets. Specifically, DOE was supposed to revise the "Thirty Percent by 2010" goal as needed to make it realistic and then, with the benefit of the revised goal, determine whether a fleet rule was necessary to meet that goal. Here, DOE simply refused to revise the goal, even while acknowledging that the goal was unachievable. The court, therefore, vacated the agency's decision and ordered it to revise the law's petroleum reduction goal to an achievable number and then decide whether to impose purchasing requirements on the fleets. Center for Biological Diversity v. U.S. Department of Energy, No. C 05-01526 WHA, 36 ELR 20054 (N.D. Cal. Mar. 6, 2006) (Alsup, J.) (11 pp.).

OZONE-DEPLETING SUBSTANCES, CRITICAL USE EXEMPTIONS, STANDING:

The D.C. Circuit dismissed a petition for review challenging an EPA rule implementing critical use exemptions for methyl bromide, a pesticide with significant ozone-depleting potential. The petitioner argued that EPA violated consensus decisions of the parties to the Montreal Protocol on Substances That Deplete the Ozone Layer. Although the legal status of consensus decisions of parties to a treaty--decisions not ratified by the U.S. Senate or otherwise incorporated into domestic statutory law--presents novel and difficult issues, the court did not reach these issues because the petitioner lacked standing. Claims that the petitioner's members will face a greater chance of contracting skin cancer, cataracts, and other ailments as a result of EPA's rule are too speculative and hypothetical to constitute an injury-in-fact for standing purposes. Natural Resources Defense Council v. Environmental Protection Agency, No. 04-1438, 36 ELR 20051 (D.C. Cir. Mar. 7, 2006) (14 pp.).

CONTRACT LAW, ASBESTOS REMOVAL, PREJUDGMENT INTEREST:

The Eighth Circuit partially affirmed a judgment and award of damages in favor of a subcontractor hired to remove asbestos prior to a housing project's demolition. The evidence supported a jury's findings that the demolition company breached its contract with the subcontractor. Although the demolition company presented some evidence that the subcontractor violated EPA and OSHA regulations, witnesses disagreed as to whether these infractions actually occurred and whether, if they had occurred, they were substantial. It was therefore proper for the district court to deny the company's motion for judgment as a matter of law. In addition, the record supported the jury's award of $815,800 in damages. The district court, however, erred in allowing prejudgment interest on the entire jury award. Prejudgment interest is not allowed for lost profits. Lepi Enterprises, Inc. v. National Environmental Service Corp., No. 04-3609, 36 ELR 20052 (8th Cir. Mar. 8, 2006) (5 pp.).

PRIVACY ACT, INTERNET, WHISTLEBLOWERS:

The Ninth Circuit held that the U.S. Army Corps of Engineers did not violate the Privacy Act by disclosing an individual's personal information on its public website. The Corps posted the information to defend itself from media inquiries stemming from a newspaper article that was critical of the Corps' activities in Alaska and that referred to the individual's whistleblower activities during his tenure with the Corps. Because the individual filed suit more than two years after he first learned of the disclosure, the Privacy Act's statute of limitations bars his claims. The court rejected his argument that the "single publication rule" should not apply to Internet publications because posting information on the Internet is a continuing tort. Publications in print and on the Internet are functionally equivalent, and applying the single publication rule to Internet publication will adequately focus Privacy Act claims against a defendant, thereby economizing judicial resources while preserving a plaintiff's ability to bring the claims. Oja v. United States Army Corps of Engineers, No. 03-35877, 36 ELR 20053 (9th Cir. Mar. 14, 2006) (26 pp.).

CERCLA, CONSENT DECREE, CIVIL PROCEDURE:

The Eighth Circuit affirmed the denial of an intervenor's motions for reconsideration of a consent decree between a sewer district and EPA concerning the Great Lakes Container Corporation Superfund site in St. Louis, Missouri. The intervenor argued that the district falsely represented itself as a passive owner and that newly discovered evidence established that the district actually materially contributed to the contamination. The lower court properly denied the intervenor's motion under Fed. R. Civ. P. 60(b)(3) because he failed to show that the district engaged in fraud or misrepresentation. Nor did the intervenor meet his burden for a new trial under Fed. R. Civ. P. 59(e) because he could have offered or raised the new evidence prior to the entry of judgment. United States v. Metropolitan St. Louis Sewer District, No. 05-1598, 36 ELR 20050 (8th Cir. Mar. 6, 2006) (10 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 established the criteria for determining which transportation projects must be analyzed for local particle emissions impacts in particulate matter nonattainment and maintenance areas to ensure that those projects do not adversely impact NAAQS and human health. 71 FR 12467 (3/10/06).
  • EPA proposed a rule to govern the review and handling of air quality monitoring data influenced by exceptional events--events for which the normal planning and regulatory process established by the CAA is not appropriate. 71 FR 12591 (3/10/06).
  • EPA gave notice of its plans and schedule for the review of the air quality criteria and NAAQS for lead. 71 FR 11561 (3/8/06).
  • EPA announced that it established a minimum interval of 80,000 miles for the scheduled maintenance (cleaning) of diesel particulate filters used in some space-constrained truck applications for model years 2007-2009. 71 FR 11411 (3/7/06).
  • EPA approved a request to redesignate South Dakota's Rapid City area from unclassifiable to attainment for particulate matter with a diameter of 10 microns or less (PM10) because the state has adequately demonstrated that this area is in attainment of the PM10 NAAQS. 71 FR 11162 (3/6/06).
  • SIP Approvals: Alabama (modifications to open burning rules) 71 FR 12138 (3/9/06). Arizona (Yuma nonattainment area for particulate matter with a diameter of 10 microns or less (PM10)) 71 FR 13021 (3/14/06). Arkansas (update to materials incorporated by reference) 71 FR 13543 (3/16/06). Georgia (provision removal) 71 FR 13551 (3/16/06). Maine (architectural and industrial maintenance coatings regulation) 71 FR 13767 (3/17/06). Missouri (emissions of sulfur compounds) 71 FR 12623 (3/13/06). New Jersey (reasonably available control technology for nitrogen oxides) 71 FR 13019 (3/14/06). Pennsylvania (reasonably available control technology (RACT) determinations) 71 FR 11514 (3/8/06). Texas (preconstruction permits) 71 FR 12285 (3/10/06); (permits by rule) 71 FR 13549 (3/16/06).
  • SIP Proposals: Alabama (modifications to open burning rules; see above for direct final rule). 71 FR 12155 (3/9/06). Arizona (NAAQS for PM10; see above for direct final rule) 71 FR 13063 (3/14/06). Pennsylvania (RACT determinations; see above for final rule) 71 FR 11563 (3/8/06). Texas (preconstruction permits) 71 FR 12310 (3/10/06).
  • SIP Withdrawal: Colorado (class I visibility protection) 71 FR 13019 (3/14/06).

HAZARDOUS WASTE:

  • EPA entered into a proposed agreement under CERCLA §122(h) concerning the Stringfellow Acid Pits Superfund site located near Glen Avon, California, that requires the Agency to reimburse the state of California an amount consistent with the recommendations of the Office of the Inspector General for recovery of past response costs. 71 FR 12197 (3/9/06).
  • EPA entered into a proposed administrative settlement under CERCLA §122(h) concerning the Intermountain Waste Oil Refinery NPL site in Davis County, Utah, that requires the settling party to pay EPA the net proceeds from the sale of its property to resolve claims for past response costs incurred at the site. 71 FR 12196 (3/9/06).
  • EPA entered into a proposed prospective purchaser agreement concerning the Chem-Wood facility in Ewa Beach, Hawaii, that requires the prospective purchaser to perform groundwater and soil response actions, to secure the property, to maintain the integrity of the existing asphalt cap, and to provide EPA access to the site. 71 FR 13125 (3/14/06).
  • EPA approved Pennsylvania's UST program and incorporated by reference appropriate provisions of state statutes and regulations. 71 FR 13769 (3/17/06).
  • EPA granted Michigan final authorization of revisions to its hazardous waste management program under RCRA. 71 FR 12141 (3/9/06).
  • EPA, under RCRA, recodified Montana's authorized state hazardous waste management program. 71 FR 11536 (3/8/06).
  • EPA granted final authorization to the hazardous waste program revisions submitted by South Dakota. 71 FR 11533 (3/8/06).

PESTICIDES:

  • EPA proposed to update and revise its data requirements for the registration of microbial and biochemical pesticide products and proposed to update the definitions of a biochemical pesticide and a microbial pesticide to more accurately describe the categories of pesticides. 71 FR 12071 (3/8/06).
  • EPA announced that its tolerance reassessment decision for the pesticide bromine is available for public review and comment. 71 FR 13838 (3/17/06).
  • EPA received an application from BHN Research requesting an experimental use permit for the plant-incorporated protectant Bacillus thuringiensis subsp kurstaki (Cry1A(c)) in tomatoes. 71 FR 11626 (3/8/06).

TOXIC SUBSTANCES:

  • EPA promulgated a final rule under TSCA that requires manufacturers and processors of 17 high production volume (HPV) chemicals to conduct a wide variety of toxicity and environmental fate testing in order to develop data to determine or predict the effects on health or the environment of the manufacture, distribution in commerce, processing, use, or disposal of the HPV chemicals. 71 FR 13707 (3/16/06).
  • EPA proposed to amend a significant new use rule under §5(a)(2) of TSCA to include certain perfluoroalkyl sulfonates substances. 71 FR 12311 (3/10/06).
  • EPA announced that its new lead hazard information pamphlet for renovation activities, Protect Your Family From Lead During Renovation, Repair & Painting, is available for review and comment. 71 FR 11570 (3/8/06).

WATER:

  • EPA announced that it intends to approve revisions to New Mexico public water system supervision program; the state adopted the Long Term 1 Enhanced Surface Water Treatment Rule to improve control of microbial pathogens in drinking water. 71 FR 13844 (3/17/06).
  • EPA gave notice that Connecticut, New Hampshire, and Rhode Island are in the process of revising their approved public water system supervision programs to meet the requirements of the SDWA. 71 FR 12197 (3/9/06).

WILDLIFE:

  • FWS announced the availability of its five-year review of the Mexican wolf blue range reintroduction project. 71 FR 13624 (3/16/06).
  • FWS announced that a comprehensive conservation plan and summary for Sand Lake National Wildlife Refuge in Columbia, South Dakota, is available to the public. 71 FR 12213 (3/9/06).
  • FWS announced the availability of a recovery plan for vernal pool ecosystems in California and southern Oregon that covers 33 species--20 of which are federally listed as threatened or endangered. 71 FR 11441 (3/7/06).
  • FWS announced that the draft recovery plan for Spalding's Catchfly is available for public review and comment. 71 FR 13625 (3/16/06).
  • FWS announced the availability of the draft study plan for an avian egg injection study for the Hudson River Natural Resource Damage Assessment. 71 FR 13418 (3/15/06).
  • FWS announced that the draft conservation agreement for the Yellow-billed Loon is available for public review and comment. 71 FR 13155 (3/14/06).
  • FWS announced that the draft comprehensive conservation plan and EA for the Great Dismal Swamp National Wildlife Refuge in North Carolina and Virginia is available for review. 71 FR 12709 (3/13/06).
  • FWS gave notice of intent to prepare a draft comprehensive conservation plan and EA for the Red River National Wildlife Refuge in Louisiana. 71 FR 12710 (3/13/06).
  • FWS announced that the DOI Secretary established the Sporting Conservation Council to provide advice and guidance to the federal government on how to increase public awareness of the importance of wildlife resources and the social and economic benefits of recreational hunting. 71 FR 11220 (3/6/06).
  • NMFS announced that the United States accepted conservation and management measures pertaining to fishing in Antarctic waters managed by the Commission for the Conservation of Antarctic Marine Living Resources. 71 FR 13353 (3/15/06).
  • NMFS announced that the draft Snake River salmon recovery plan for southeast Washington as well as a supplement to the draft recovery plan are available for review. 71 FR 13094 (3/14/06).
  • NMFS, upon application from BP Exploration of Alaska, issued regulations to govern the unintentional takings of small numbers of marine mammals incidental to the operation of an offshore oil and gas platform at the Northstar facility located in state waters in the Beaufort Sea. 71 FR 11314 (3/7/06).
  • NOAA, in order to provide immediate protection to an aggregation of Northern right whales, announced a 15-day extension of temporary restrictions that apply to certain fishermen in an area located southeast of Portland, Maine. 71 FR 11163 (3/6/06).

DOJ NOTICES OF SETTLEMENT:

  • United States v. Elkem Metals Co., No. 2:03-CV-529 (S.D. Ohio Feb. 28, 2006). Settling CERCLA and CWA defendants must pay a total of $3.25 million to resolve the various claims of CWA violations and injury to natural resources resulting from wastewater discharges from a facility located in Marietta, Ohio. 71 FR 12217 (3/9/06).
  • United States v. Quanex Corp., No. 3:05-cv-50102 (N.D. Ill. Feb. 21. 2006). A settling CERCLA defendant must pay $1 million in past EPA response costs incurred at the Jepscor Metals Superfund site in Lee County, Illinois. 71 FR 12218 (3/9/06).
  • United States v. Coffee County, No. 4:05-CV-5 (E.D. Tenn. Feb. 24, 2006). Settling CERCLA defendants that released hazardous substances at the Coffee County Landfill located on the Arnold Air Force Base in Tennessee must pay $225,000 in U.S. response costs. 71 FR 13431 (3/15/06).
  • United States v. Prow, No. 05-1452-RHK (D. Minn. Mar. 2, 2006). Settling CWA defendants that discharged pollutants into waters of the United States either without a permit or in violation of a permit must restore the impacted areas, perform mitigation, and pay a civil penalty. 71 FR 13432 (3/15/06).
  • United States v. Edward Kraemer & Sons, Inc., No. CIV-06-0480-PHX-NWV (D. Ariz. Feb. 14, 2006). A settling CAA defendant that failed to install suitable trackout control devices, failed to immediately clean up trackout, and failed to comply with their dust control plan must pay $190,000 in civil penalties and must abate fugitive dust emissions by installing trackout control devices at its work sites, employing a dust control monitor at certain sites, and requiring dust control training for employees. 71 FR 13432 (3/15/06).
  • In re NTS/Virginia Development Corp. A settling Park System Resources Protection Act defendant must pay the DOI $88,351 for damages at Civil War era earthworks at the Fredericksburg and Spotsylvania National Military Park in Spotsylvania County, Virginia. 71 FR 13433 (3/15/06).
  • United States v. Raymond & Donnis Holbrook Trust, No. CV05- 6723 (GHK) (VBKx) (C.D. Cal. Sept. 13, 2005). A settling CERCLA defendant must pay the United States $280,000 over a two-year period in partial reimbursement of response costs incurred at the Waste Disposal, Inc. Superfund site in Santa Fe Springs, California. 71 FR 13433 (3/15/06).

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

THE CONGRESS

CHAMBER ACTION:

  • S. 1578 (Upper Colorado and San Juan River Basin Endangered Fish Recovery Programs Reauthorization Act of 2005), which would reauthorize the Upper Colorado and San Juan River Basin endangered fish recovery implementation programs, was passed by the House, clearing the measure for the President. 152 Cong. Rec. H652 (daily ed. Mar. 8, 2006).
  • S. Res. 402 (National Asbestos Awareness Day), which would designate the first day of April 2006, as "National Asbestos Awareness Day," was passed by the Senate. 152 Cong. Rec. S2222 (daily ed. Mar. 15, 2006).
  • H.R. 1190 (San Diego Water Storage and Efficiency Act of 2005), which would direct the Secretary of the Interior to conduct a feasibility study to design and construct a four-reservoir intertie system for the purposes of improving the water storage opportunities, water supply reliability, and water yield of El Capitan, Loveland, Murray, and San Vicente Reservoirs in San Diego County, California, in consultation and cooperation with the city of San Diego and the Sweetwater Authority, was passed by the House. 152 Cong. Rec. H651 (daily ed. Mar. 8, 2006).
  • H.R. 4841 (Ojito Wilderness Act), which would amend the Ojito Wilderness Act to make a technical correction, was passed by the House. 152 Cong. Rec. H879 (daily ed. Mar. 14, 2006).

COMMITTEE ACTION:

  • S. 1110 (Federal Hazardous Substances Act) was reported by the Committee on Commerce, Science, and Transportation. S. Rep. No. 109-220, 152 Cong. Rec. S2122 (daily ed. Mar. 14, 2006). The bill would amend the Federal Hazardous Substances Act to require engine coolant and antifreeze to contain a bittering agent in order to render the coolant or antifreeze unpalatable.

BILLS INTRODUCED:

  • S. 2364 (Cantwell, D-Wash.) (national forests) would provide lasting protection for inventoried roadless areas within the National Forest System. 152 Cong. Rec. S1644 (daily ed. Mar. 2, 2006). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2371 (Thune, R-S.D.) (recovery and mitigation) would permit the use of certain funds for recovery and mitigation activities in the upper basin of the Missouri River. 152 Cong. Rec. S1790 (daily ed. Mar. 6, 2006). The bill was referred to the Committee on Environment and Public Works.
  • S. 2384 (Lott, R-Miss.) (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 and provide a portion of the revenues from that leasing to producing states and coastal political subdivisions. 152 Cong. Rec. S1893 (daily ed. Mar. 8, 2006). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2398 (Baucus, D-Mont.) (alternative energy) would establish an Advanced Research Projects Administration-Energy to initiate high risk, innovative energy research to improve the energy security of the United States, to extend certain energy tax incentives, and for other purposes. 152 Cong. Rec. S1965 (daily ed. Mar. 9, 2006). The bill was referred to the Committee on Finance.
  • S. 2401 (Grassley, R-Iowa) (energy tax incentives) would amend the Internal Revenue Code of 1986 to extend certain energy tax incentives. 152 Cong. Rec. S2027 (daily ed. Mar. 13, 2006). The bill was referred to the Committee on Finance.
  • S. 2403 (Thomas, R-Wyo.) (Grand Teton National Park) would authorize the Secretary of the Interior to include in the boundaries of the Grand Teton National Park land and interests in land of the GT Park Subdivision. 152 Cong. Rec. S2027 (daily ed. Mar. 13, 2006). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2411 (Snowe, R-Me.) (salmon) would reliquidate certain entries of salmon. 152 Cong. Rec. S2122 (daily ed. Mar. 14, 2006). The bill was referred to the Committee on Finance.
  • S. 2417 (Pryor, D-Ark.) (National Historic Sites) would authorize the Secretary of the Interior to designate the Pres. William Jefferson Clinton Birthplace home in Hope, Arkansas, as a National Historic Site and unit of the National Park System. 152 Cong. Rec. S2202 (daily ed. Mar. 15, 2006). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2420 (Landrieu, D-La.) (Outer Continental Shelf Lands Act) would amend the Outer Continental Shelf Lands Act to provide for payments for producing coastal states. 152 Cong. Rec. S2202 (daily ed. Mar. 15, 2006). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2421 (Vitter, R-La.) (hurricane protection) would establish the Louisiana Hurricane and Flood Protection Council for the improvement of hurricane and flood protection in Louisiana. 152 Cong. Rec. S2202 (daily ed. Mar. 15, 2006). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2422 (Vitter, R-La.) (Conservation and Habitat Restoration Fund) would establish a Conservation and Habitat Restoration Fund and would require the Secretary of Commerce to provide grants to states for coastal zone management, coastal wetlands conservation, coastal land protection, and fisheries habitat restoration and to improve understanding of coastal areas. 152 Cong. Rec. S2202 (daily ed. Mar. 15, 2006). The bill was referred to the Committee on Commerce, Science, and Transportation.
  • H.R. 4864 (Everett, R-Ala.) (national heritage corridor) would direct the Secretary of the Interior to study the suitability and feasibility of establishing the Chattahoochee Trace National Heritage Corridor in Alabama and Georgia. 152 Cong. Rec. H564 (daily ed. Mar. 2, 2006). The bill was referred to the Committee on Resources.
  • H.R. 4875 (Udall, D-Colo.) (Healthy Forests Restoration Act) would amend the Healthy Forests Restoration Act of 2003 to help reduce the increased risk of severe wildfires to communities in forested areas affected by infestations of bark beetles and other insects. 152 Cong. Rec. H564 (daily ed. Mar. 2, 2006). The bill was referred to the Committee on Agriculture, and in addition to the Committees on Resources, Ways and Means, and Science.
  • H.R. 4908 (Poe, R-Tex.) (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. H790 (daily ed. Mar. 2, 2006). The bill was referred to the Committee on Resources.
  • H.R. 4918 (Brady, R-Tex.) (pollution control) would permit the issuance of tax-exempt bonds for air and water pollution control facilities. 152 Cong. Rec. H866 (daily ed. Mar. 9, 2006). The bill was referred to the Committee on Ways and Means. H866 Mar. 9, 2006
  • H.R. 4930 (Saxton, R-N.J.) (solid waste) would amend title 49, United States Code, to clarify that state and local permitting requirements relating to the processing, sorting, or transporting of solid waste apply to rail carriers. 152 Cong. Rec. H867 (daily ed. Mar. 9, 2006). The bill was referred to the Committee on Transportation and Infrastructure.
  • H.R. 4933 (Stupak, D-Mich.) (acid mine drainage) would prevent acid mine drainage from sulfide mining into the Great Lakes. 152 Cong. Rec. H867 (daily ed. Mar. 9, 2006). The bill was referred to the Committee on Resources.
  • H.R. 4935 (Udall, D-Colo.) (wilderness areas) would designate as wilderness certain lands within the Rocky Mountain National Park and adjust the boundaries of the Indian Peaks Wilderness and the Arapaho National Recreation Area on the Arapaho National Forest in the state of Colorado. 152 Cong. Rec. H867 (daily ed. Mar. 9, 2006). The bill was referred to the Committee on Resources.
  • H.R. 4940 (Frank, D-Mass.) (fisheries) would amend the Magnuson-Stevens Fishery Conservation and Management Act. 152 Cong. Rec. H874 (daily ed. Mar. 13, 2006). The bill was referred to the Committee on Resources.
  • H.R. 4947 (Bachus, R-Ala.) (boundary expansion) would expand the boundaries of the Cahaba River National Wildlife Refuge. 152 Cong. Rec. H874 (daily ed. Mar. 13, 2006). The bill was referred to the Committee on Resources.
  • H.R. 4951 (Grijalva, D-Ariz.) (trust lands) would direct the Secretary of the Interior to take lands in Yuma County, Arizona, into trust as part of the reservation of the Cocopah Indian Tribe. 152 Cong. Rec. H972 (daily ed. Mar. 14, 2006). The bill was referred to the Committee on Resources.
  • H.R. 4953 (Kildee, D-Mich.) (Great Lakes) would amend the Great Lakes Fish and Wildlife Restoration Act of 1990 to provide for implementation of recommendations of the FWS contained in the Great Lakes Fishery Resources Restoration Study. 152 Cong. Rec. H972 (daily ed. Mar. 14, 2006). The bill was referred to the Committee on Resources.
  • H.R. 4957 (Peterson, R-Pa.) (fisheries) would direct the Secretary of the Interior to convey the Tylersville division of the Lamar National Fish Hatchery and Fish Technology Center to the state of Pennsylvania; to the Committee on Resources. 152 Cong. Rec. H972 (daily ed. Mar. 14, 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:

California Hawaii Louisiana North Carolina Rhode Island Colorado Idaho Maine North Dakota South Dakota Delaware Illinois Massachusetts Ohio Texas Florida Iowa Missouri Oklahoma Wisconsin

CALIFORNIA

Air:

  • The Air Resources Board will hold public workshops for on-road heavy duty diesel trucks on April 5, 12, and 13, 2006. The first set of public workshops will discuss developing a diesel particulate matter control measure for private fleets of on-road heavy-duty diesel-fueled trucks. See http://www.arb.ca.gov/msprog/onrdiesel/Documents/workshopnotice.pdf
  • The Air Resources Board is soliciting comments on the draft report, "Evaluation of Cold-Ironing Vessels at California Ports." The deadline for comments is April 3, 2006. See http://www.arb.ca.gov/msprog/offroad/marinevess/documents.htm#coldiron0306
  • The South Coast Air Quality Management District proposed to amend Rule 1178, Further Reductions of VOC Emissions from Storage Tanks at Petroleum Facilities, to clarify that other devices with control efficiencies equivalent to slotted fabric membrane covers are allowed as floating roof drain covers, and to modify specifications for mechanical shoe seals for internal floating roof tanks. These proposed amendments do not affect air quality or emission limitations. A workshop will be held April 7, 2006. See http://www.aqmd.gov/pub_edu/nph_1178_Apr_7_06.html

Toxic Substances:

  • The Office of Environmental Health Hazard Assessment adopted new section 12900 to Title 22, California Code of Regulations, concerning the use of specified methods of detection and analysis for listed chemicals for voluntary compliance testing under Proposition 65. Effective April 8, 2006. See http://oehha.org/prop65/law/12900adopt.html

Water:

  • The Office of Environmental Health Hazard Assessment published the final technical support documents for the public health goal and responses to comments for six chemicals in drinking water: cis/trans-1,2-Dichloroethylene; 1,1,1-Trichloroethane; 1,1,2-Trichloroethane; Radium-226 and –228; Strontium-90; and Tritium. See http://oehha.org/water/phg/cistransfinal.html

COLORADO

Air:

  • The Colorado Air Quality Control Commission will hold a public hearing to consider proposed revisions to Regulation Number 4: New Wood Stoves and the Use of Certain Wood Burning Appliances During High Pollution Days. The Commission will consider a proposal to revise Regulation Number 4 to adopt a testing protocol for masonry heaters, to add a definition for exempt devices, to clarify definitions in the regulation, and to correct grammatical and typographical errors. The hearing will be held June 15, 2006. Written comments are due June 1, 2006. See http://www.cdphe.state.co.us/op/aqcc/aqccdown/Junenoticereg4.pdf
  • The Colorado Air Quality Control Commission will hold a public hearing on Banded Peak Area Ranches Prescribed Fire Planning Documents. The hearing will be held March 16, 2006. Written comments are due March 1, 2006. See http://www.cdphe.state.co.us/op/aqcc/aqccdown/march06burnnotice.pdf

DELAWARE

Hazardous & Solid Wastes:

FLORIDA

Air:

Water:

HAWAII

Land Use:

  • The Department of Land and Natural Resources is holding public hearings statewide, beginning Thursday, March 9, 2006, to receive public testimony on proposed amendments to Chapter 13-222, Hawaii Administrative Rules, regarding shoreline certifications. Currently, the definition of "shoreline" under the Board of Land and Natural Resources's shoreline certification rules differs from that of the definition under Chapter 205A-1, Hawaii Revised Statutes. The Board recently approved a change so the rule mirrors the law. See http://www.hawaii.gov/dlnr/chair/pio/HtmlNR/06-N040.htm

IDAHO

Water:

  • The Idaho Department of Environmental Quality is seeking public comment on a draft assessment and proposed plans to manage the temperature of five stream segments in the Weiser River Watershed. Temperature is a key factor in the quality of water bodies and the health of coldwater fish such as salmon and trout. Public comments are due April 14, 2006. See http://www.deq.state.id.us/Applications/NewsApp/shownews.cfm?event_id=1446

ILLINOIS

Air:

Water:

IOWA

Water:

  • The Department of Natural Resources issued a regulatory analysis concerning rules proposed in the Iowa Administrative Bulletin on November 9, 2005, as ARC 4652B. The proposed administrative rules would establish wastewater fees for NPDES permit holders in Iowa. The period for public comment on the proposed rules will be extended to April 7, 2006. A public hearing will be held April 6, 2006. See http://www.legis.state.ia.us/Rules/Current/Bulletin/IAB060315.pdf (p. 1361)
  • The Environmental Protection Commission proposes to adopt new Chapter 13, "Environmental Covenants," and to amend Chapter 135, "Technical Standards and Corrective Action Requirements for Owners and Operators of Underground Storage Tanks," and Chapter 137, "Iowa Land Recycling Program and Response Action Standards," Iowa Administrative Code. Written comments are due April 7, 2006. A public hearing will be held April 5, 2006. See http://www.legis.state.ia.us/Rules/Current/Bulletin/IAB060315.pdf (p. 1363).
  • The Environmental Protection Commission announced its intention to amend Chapter 50, "Scope of Division-Definitions-Forms-Rules of Practice;" Chapter 51, "Water Permit or Registration-When Required;" Chapter 52, "Criteria and Conditions for Authorizing Withdrawal, Diversion, and Storage of Water;" Chapter 53, "Protected Water Sources-Purposes-Designation Procedures-Information in Withdrawal Applications- Limitations-List of Protected Sources;" and Chapter 54,"Criteria and Conditions for Permit Restrictions or Compensation by Permitted Users to Nonregulated Users Due to Well Interference," Iowa Administrative Code. Written comments are due April 12, 2006. A public hearing will be held April 5, 2006. See http://www.legis.state.ia.us/Rules/Current/Bulletin/IAB060315.pdf (p. 1366).
  • The Environmental Protection Commission amended Chapter 40, "Scope of Division-Definitions-Forms-Rules of Practice;" rescinded Chapter 44, "Drinking Water Revolving Fund" and adopted new Chapter 44, "Drinking Water State Revolving Fund;" amended "Scope of Title-Definitions-Forms;" amended Chapter 91, "Criteria for Rating and Ranking Projects for the Water Pollution Control State Revolving Fund;" rescinded Chapter 92, "State Revolving Fund Loans for Wastewater Treatment and Water Pollution Control" and adopted new Chapter 92, "Clean Water State Revolving Fund;" and rescinded Chapter 93, "Onsite Wastewater Treatment System Assistance Program" and adopted new Chapter 93, "Nonpoint Source Pollution Control Set-Aside Programs," Iowa Administrative Code. Effective April 19, 2006. See http://www.legis.state.ia.us/Rules/Current/Bulletin/IAB060315.pdf (p. 1410).

General:

LOUISIANA

Air:

  • The Secretary of the Department of Environmental Quality renewed Emergency Rule OS064E2, which was effective on November 13, 2005, and published in the Louisiana Register on November 20, 2005. This emergency rule establishes laboratory requirements outlined in the Technical Assistance Document for Sampling and Analysis of Ozone Precursors as guidance to those responsible for implementing the Photochemical Assessment Monitoring System program. Effective March 13, 2006. See http://www.deq.louisiana.gov/portal/portals/0/planning/regs/pdf/OS064E3.pdf
  • The Department of Environmental Quality will conduct a public hearing to receive comments regarding proposed revisions to the inspection/maintenance (I/M) SIP for Baton Rouge. The proposed revisions include, but are not limited to: (1) requirements to exempt the newest two model-year vehicles from on-board diagnostic testing; and (2) the revised corresponding I/M program rule and modeling demonstration. A public hearing will be held April 25, 2006. Comments are due Mary 2, 2006. See http://www.deq.louisiana.gov/portal/portals/0/planning/regs/pdf/0603POT1.pdf

Hazardous & Solid Wastes:

  • The Department of Environmental Quality proposed to amend the Hazardous Waste regulations, LAC 33:V.105, 109, 901, 905, 907, 909, 911, 921, 923, 1101, 1107, 1108, 1109, 1113, 1119, 1123, 1301, 1307, 1309, 1516, 1529, 2205, 2208, 2299.Tables 2 and 7, 3105, 4145, 4351, 4353, 4355, 4356, and 4901. This proposed rule is identical to federal regulations that are applicable in Louisiana. The proposed rule lists hazardous nonwastewaters generated from the production of certain dyes, pigments, and food, drug, and cosmetic colorants (K181) to the list of hazardous wastes. It also revises the Uniform Hazardous Waste Manifest regulations and the manifest and continuation sheet forms used to track hazardous waste from a generator's site to the site of disposition. A public hearing will be held April 25, 2006. Comments are due the same date. See http://www.deq.louisiana.gov/portal/portals/0/planning/regs/pdf/HW090FTpro.pdf

Water:

  • The Department of Environmental Quality renewed, with revisions, Emergency Rule OS054E7, which was effective on November 10, 2005, and published in the Louisiana Register on November 20, 2005. Emergency action is necessary in order to implement expedited penalty agreements. This renewal of the emergency rule changes the definition describing which water permits are subject to this rule, redefines the violations for the water citations, and adds the requirement of mandatory training in a department-sponsored class for certain of the water violations. Additionally, the History of Previous Violations or Repeated Noncompliance paragraph has been clarified. The emergency rule will abate the delay in correcting minor and moderate violations of the Environmental Quality Act. Effective March 10, 2006. See http://www.deq.louisiana.gov/portal/portals/0/planning/regs/pdf/OS054E8.pdf
  • The Department of Environmental Quality proposed to amend the water quality regulations, LAC 33:IX.2701 (Log #WQ065). This rule change will require discharge monitoring reports (DMRs) to be filled out completely before submittal. An incomplete DMR submittal will be considered a violation of the regulations. Incomplete DMR submittals are delaying the evaluation of facility compliance with facility permits for effluent discharges and are adding to the workload of department staff reviewing these submittals. The basis and rationale for this rule are to protect the waters of the state. A public hearing will be held April 25, 2006. Written comments are due May 2, 2006. See http://www.deq.louisiana.gov/portal/portals/0/planning/regs/pdf/WQ065pro.pdf

General:

  • 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 reflect the financial assurance amendments made in state rule activity RP039ft, finalized July 20, 2005, to mirror the federal regulations for financial assurance requirements. In this rulemaking, the amounts of financial assurance required for recommissioning by licensees were increased to mirror the federal regulations. The updates to the amounts in the appendix were overlooked in the rulemaking at that time. Effective February 20, 2006. See http://www.deq.louisiana.gov/portal/portals/0/planning/regs/pdf/RP042E.pdf
  • The Department of Environmental Quality proposed to amend the radiation protection regulations, LAC 33:XV.102, 322, 421, 442, 703, 706, 723, 728, 736, 737, 741, 742, 743, 755, 757, 763, and 804. This proposed rule is identical to federal regulations found in 10 CFR Parts 20, 31, 35, and 39, which are applicable in Louisiana. A public hearing will be held April 25, 2006. Comments are due April 25, 2006. See http://www.deq.louisiana.gov/portal/portals/0/planning/regs/pdf/RP041FTpro.pdf
  • The Department of Environmental Quality proposed to amend the radiation protection regulations, LAC 33:XV.399.Appendix A (Log #RP042ft). This proposed rule is identical to federal regulations found in 10 CFR 30.35, which are applicable in Louisiana. A public hearing will be held April 25, 2006. Comments are due April 25, 2006. See http://www.deq.louisiana.gov/portal/portals/0/planning/regs/pdf/RP042FTpro.pdf

MAINE

Wildlife:

  • The Department of Marine Resources proposed a double lobster trap tagging provision that uses removable tags by non-Zone G lobstermen who fish in Zone G and by non-Zone F lobstermen who fish in Zone F in order to increase the Marine Patrol’s ability to enforce the current 49/51% trap component of the Lobster Zone Limited Entry rules of Zone G and Zone F. This proposed tagging requirement would be effective September 1, 2006. Comments are due April 10, 2006. A public hearing will be held March 30, 2006. See http://www.maine.gov/sos/cec/rules/notices/2006/030806.htm

MASSACHUSETTS

Water:

  • The Department of Environmental Protection proposed revisions to the perchlorate drinking water and cleanup standards set forth in 310 CMR 22.00, Drinking Water, and 310 CMR 40.0000, Massachusetts Contingency Plan.  The proposed revisions to 310 CMR 22.00 will establish a state maximum contaminant level of 2.0 parts per billion (ppb) for perchlorate, thereby replacing the interim drinking water guidance of 1.0 ppb. Public hearings will be held April 10, 11, 19, 20, 25, and 27, 2006. See http://www.mass.gov/dep/water/drinking/pubnot0306.htm

MISSOURI

Air:

NORTH CAROLINA

Water:

  • The Environmental Management Commission proposed to adopt 15A NCAC 02H .1020, the Universal Stormwater Management Program Rule. There are presently a myriad of various stormwater programs that are in place within North Carolina. Many of these programs overlap, causing a considerable amount of confusion among the regulated public and a substantial amount of difficulty in administering the program at the city or county level. The proposed rule seeks to alleviate these difficulties by developing one program that would replace many of these existing, overlapping programs with a single set of understandable requirements. Not only would the new Universal Stormwater Management Program be simpler to implement and administer throughout the state, but it would also be more protective of water quality and aquatic species than the existing stormwater programs. Public hearings will be held April 4, 6, and 11, 2006. Comments are due May 15, 2006. See http://www.ncoah.com/rules/register/Volume20Issue18.pdf (p. 1596)

NORTH DAKOTA

Air:

  • The Department of Health and the Air Pollution Advisory Council will hold a hearing on proposed changes to administrative rules relating to air pollution control. The public hearing will also address a proposed plan under CAA §111(d) to reduce mercury emissions from power plants and a SIP revision that would allow alternative monitoring of visible emissions from the catalytic cracking unit at the Mandan Refinery. A public hearing will be held May 4, 2006. Comments are due May 15, 2006. See http://www.health.state.nd.us/AQ/Dockets/Public%20Notice.pdf

OHIO

Hazardous & Solid Wastes:

  • The Ohio Environmental Protection Agency approved amendments to Ohio Revised Code 3745-400-12, Final closure of facilities, to establish an additional time frame for placing a cap system in the case that a construction and demolition debris facilities license has been revoked or denied. Effective March 23, 3006. See http://www.registerofohio.state.oh.us/jsps/PublicDisplayRules/processPub...

Water:

OKLAHOMA

Air:

  • The Department of Environmental Quality proposed to amend a number of its air pollution control regulations set forth in title 252, chapter 100, subchapters 5, 7, 9, 17, and 44, in order to add a new definition for "regulated air pollutant," to update the incorporations by reference for commercial and industrial solid waste incineration units to comply with modifications made by U.S. EPA, and to limit emissions of mercury from new and existing coal-fired electric steam generating units. Written comments are due April 19, 2006. Public hearings will be held April 19 and 20, 2006. See http://www.oar.state.ok.us/register/Volume-23_Issue-13.htm
  • The Department of Environmental Quality proposed a new Part 11 to title 252, chapter 100, to incorporates the federal Best Available Retrofit Technology (BART) requirements. The BART requirements are part of the Regional Haze SIP. Written comments are due April 19, 2006. Public hearings will be held April 19 and 20, 2006. See http://www.oar.state.ok.us/oar/codedoc02.nsf/frmMain?OpenFrameSet&Frame=Main&Src=_75tnm2shfcdnm8pb4dthj0chedppmcbq8dtmmak31ctijujrgcln50ob7ckj42tbkdt374obdcli00_

RHODE ISLAND

Water:

  • The Department of Environmental Management proposed amendments to the Rhode Island Freshwater and Anadromous Fishing Regulations for the 2006-2007 Season, and held a public hearing on March 13, 2006, to afford interested parties the opportunity for public comment. See http://www.dem.ri.gov/programs/bnatres/fishwild/pn031306.htm

SOUTH DAKOTA

Air:

  • The Department of Environment and Natural Resources' Board of Minerals and Environment filed rules to adopt revisions to federal regulations for the air pollution control program, including reinforce plastic composites production, stationary turbines, stationary reciprocating internal combustion engines, and industrial, commercial, and institutional boilers and process heaters. A public hearing will be held April 19, 2006. Written comments are due April 18, 2006. See http://legis.state.sd.us/rules/register/03132006.pdf

TEXAS

Air:

  • The Commission on Environmental Quality proposed rules to establish the control measures and enforcement mechanism for the Texas Clean Air Interstate Rule (CAIR) SIP. The proposed rules would reduce oxides of nitrogen and sulfur dioxide emissions from electric generating units to assist downwind states in achieving compliance with the NAAQS for fine particulate matter. The proposed rulemaking would also amend Chapter 122 to incorporate the permitting requirements for CAIR and the Clean Air Mercury Rule (CAMR) by reference. The CAIR and CAMR permits will establish federal enforceability of the CAIR and CAMR trading programs by listing all applicable requirements of the trading programs applicable to each CAIR and CAMR unit at the source. Public hearings will be held April 11, 12, and 13, 2006. Comments are due April 17, 2006. See http://www.tceq.state.tx.us/assets/public/legal/rules/hearings/05046101_phn.pdf
  • The Commission on Environmental Quality proposed rules to establish the control measures and enforcement mechanism for the Texas Clean Air Mercury Rule (CAMR) state plan. The proposed rules would apply to stationary, coal-fired boilers or coal-fired combustion turbines serving a generator with a nameplate capacity of more than 25 megawatts of electricity (MWe) and producing electricity for sale. The proposed rules would also apply to cogeneration units serving a generator with a nameplate capacity of more than 25 MWe and supplying in any calendar year more than one-third of the unit’s potential electric output capacity or 219,000 megawatt-hours, whichever is greater, to any utility power distribution system for sale. Public hearings will be held April 11, 12, and 13, 2006. Comments are due April 17, 2006. See http://www.tceq.state.tx.us/assets/public/legal/rules/hearings/05047101_phn.pdf
  • The Commission on Environmental Quality adopted HB 2201: FutureGen/Clean Coal. The rulemaking creates a new set of permitting actions for FutureGen projects, specifically for FutureGen projects not subject to the contested case hearing process. Effective March 29, 2006. See http://www.tceq.state.tx.us/rules/adopt.html
  • The Commission on Environmental Quality revised Chapter 106 concerning the air permit by rule and air standard permit for municipal solid waste landfill facilities. The permit by rule will be revised to limit the confusion by industry that all activities occurring at a landfill are authorized by the permit by rule. Effective March 23, 2006. See http://www.tceq.state.tx.us/assets/public/legal/rules/rule_lib/adoptions/03066106_ado_clean.pdf
  • The Commission on Environmental Quality revised Chapter 116 concerning the air permit by rule and air standard permit for municipal solid waste landfill facilities. The rulemaking repeals the existing municipal solid waste landfill air standard permit. Effective September 1, 2006. See http://www.tceq.state.tx.us/assets/public/legal/rules/rule_lib/adoptions/03066116_ado_clean.pdf

Hazardous & Solid Wastes:

Water:

WISCONSIN

Wildlife:

  • The Department of Natural Resources held public hearings on revisions to ss. NR 10.01(3), 10.104(11) and 10.105(2), Wis. Adm. Code, relating to deer hunting as they pertain to the control and eradication of chronic wasting disease. Hearings were held March 13, 14, 15, and 17, 2006. See http://www.dnr.state.wi.us/org/caer/ce/news/hearmeet.html

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

INTERNATIONAL

CANADA WILL CONTINUE PARTICIPATION IN THE KYOTO PROTOCOL:

WORLD WATER FORUM BEGINS IN MEXICO:

NORDIC ENVIRONMENTAL MINISTERS AGREE ON ARCTIC PROTECTION:

  • The environmental ministers of the Nordic countries agreed to collaborate on strategies to protect the Arctic region from the effects of climate change and pollution. They are particularly interested in protecting the marine environment and reducing emissions of heavy metals quickly. See http://www.norden.org/webb/news/news.asp?id=6016&lang=6

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

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