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Weekly Update Volume 37, Issue 1

01/08/2007

LITIGATION

CAA, OZONE NAAQS:

The D.C. Circuit vacated the Final Phase 1 Rule to Implement the Eight-Hour Ozone NAAQS, promulgated by EPA in 2004 under the CAA to reduce smog. The court held that EPA "failed to heed the restrictions on its discretion set forth in the Act." The manner in which the rule treats the relationship between Subpart 1 and Subpart 2 fails to adhere to the statutory scheme enacted by Congress in 1990 to address ground-level ozone in nonattainment areas. Specifically, it violates the Act by subjecting areas with eight-hour ozone in excess of 0.09 parts per million to Subpart 1 requirements. In addition, while EPA retains the authority to revoke the one-hour ozone standard, it must comply with the Act's anti-backsliding requirements and keep in place measures intended to constrain ozone levels--even those that apply to outdated standards. This principle encompasses the one-hour new source review requirements, one-hour penalties, rate-of-progress milestones, contingency plans, and motor vehicle conformity demonstrations. Withdrawing any of them from a SIP, as contemplated by the 2004 rule, constitutes impermissible backsliding. South Coast Air Quality Management District v. Environmental Protection Agency, No. 04-1200, 37 ELR 20003 (D.C. Cir. Dec. 22, 2006) (40 pp.).

PUNITIVE DAMAGES, MITIGATION:

The Ninth Circuit cut nearly in half the $4.5 billion punitive damages award against Exxon Mobil in connection with its 1989 oil spill in Prince William Sound, Alaska. The ratio of punitive damages to actual economic harm resulting from the spill exceeded by a material factor the ratio that would be appropriate under a prior decision in this litigation and current controlling U.S. Supreme Court analysis. Prompt action taken by Exxon both to clean up the oil and to compensate the plaintiffs for economic losses mollify, at least to some degree, the reprehensibility in economic terms of Exxon's original misconduct. In addition, in considering the relationship between the size of the award and the amount of harm, the substantial costs that Exxon had already borne in clean up and loss of cargo lessen the need for deterrence in the future. The court therefore, ordered, a remittitur of $2 billion, resulting in punitive damages of $2.5 billion. In re Exxon Valdez, No. 04-35182, -35183, 37 ELR 20001 (9th Cir. Dec. 22, 2006) (63 pp.).

TAX LAW, CONSERVATION EASEMENTS:

The Sixth Circuit upheld a tax court's decision that taxpayers' conservation easements were qualified contributions under I.R.C. §170(h)(1). The IRS argued that the taxpayers were not entitled to deductions for the two easements because they did not qualify as "qualified conservation contributions" under the Code. But the tax court disagreed, concluding that the taxpayers were entitled to deductions since the easements prohibit the taxpayers from using their retained rights in the encumbered property in a way that undermines the easements' conservation purpose of protecting a threatened natural habitat of wildlife and plants in perpetuity. Because the tax court correctly interpreted the applicable statutes and implementing regulations, its decision was affirmed. Glass v. Commissioner of Internal Revenue, No. 06-1398, 37 ELR 20002 (6th Cir. Dec. 21, 2006) (15 pp.).

RCRA, CITIZEN SUITS:

The Second Circuit affirmed a lower court decision against a company in a RCRA citizen suit action concerning mercury contamination along the Penobscot River. The lower court found that the company's disposal activities may have created an imminent and substantial danger and, hence, that the plaintiffs met their burden of proof. It then directed the parties to agree on a study plan. The parties complied, and the lower court ultimately approved a plan that would likely require the company to spend around $4,000,000 for laboratory analyses. The company then appealed, arguing that the plaintiffs lacked standing, that the lower court set the bar too low for RCRA citizen suits, and that the lower court abused its discretion in fashioning relief. Yet contrary to these claims, the plaintiffs have standing. Likewise, the plaintiffs established that the potential risk from mercury is serious and likely to be present here and now. These findings, in turn, support a conclusion that there may be an imminent and substantial endangerment to the lower Penobscot River. No more is needed. And once liability has been found, equitable relief in RCRA citizen suits is largely in the informed discretion of the trial court, and the court below did not abuse this discretion in its choice of remedy. Maine People's Alliance v. Mallinckrodt, Inc., No. 05-2331, 37 ELR 20008 (1st Cir. Dec. 22, 2006) (48 pp.).

CERCLA, CONTRIBUTION ACTION:

The Eighth Circuit affirmed in part and reversed in part a lower court judgment requiring certain parties to pay a past operator 90% of past and future response costs it incurred and will incur at the Armour Road Superfund site in Kansas City, Missouri. The district court abused its discretion in refusing to amend its allocation order before final judgment was entered to credit the pretrial settlements obtained by the past operator from EPA and private entities against the judgment. In addition, the court remanded the district court's calculation of prejudgment interest, but it found no abuse of discretion in the district court's determination of the prejudgment interest accrual dates. Last, the district court erred as a matter of law in granting summary judgment against one of the parties and holding it liable as a successor corporation. Its share must therefore be reallocated to another party. All other aspects of the decision were affirmed. K.C. 1986 Ltd. Partnership v. Reade Manufacturing, Nos. 05-2064 et al., 37 ELR 20009 (8th Cir. Jan. 4, 2007) (27 pp.).

NEPA, ENVIRONMENTAL IMPACTS:

The Eight Circuit upheld a Surface Transportation Board decision approving a railroad company's proposal to build approximately 240 miles of new rail line to reach the coal mines of Wyoming's Powder River Basin and to upgrade more than 600 miles of existing rail line in Minnesota and South Dakota. The Board thoroughly examined the purposes of the two projects, and this examination informed its conclusion that another rail link did not provide a reasonable alternative to its route through Rochester, Minnesota. NEPA, therefore, did not require the Board to consider the environmental impacts of that alternative, and its decision not to do so was not arbitrary and capricious or an abuse of discretion. Similarly, the Board's rejection of a horn noise mitigation measure was not arbitrary and capricious. Lastly, the Board more than adequately considered the reasonably foreseeable significant adverse effects of increased coal consumption on the human environment. Mayo Foundation v. Surface Transportation Board, Nos. 06-2031 et al, 37 ELR 20006 (8th Cir. Dec. 28, 2006) (19 pp.).

TAKINGS, RES JUDICATA:

The Supreme Court of Texas dismissed a landowner's takings claim against a county for denying it a variance from a local ordinance that prohibits landfills within three miles of a water-supply reservoir. The action was barred by res judicata. The facts relevant to the landowner's present takings claim--the county ordinance's wholesale prohibition, the manner in which it would be applied, and the nature of the damage suffered--were all evident in the landowner's prior suit challenging the ordinance, and the landowner's requested variance proposed no new or different application. Although styled a "variance request," the request was nothing more than a demand for the county to reconsider what had been its position all along. Hallco Texas, Inc. v. McMullen County, No. 02-1176, 37 ELR 20005 (Tex. Dec. 29, 2006) (19 pp.).

WATER LAW, FORFEITURE:

A California appellate court reversed a lower court decision concerning the forfeiture of certain previously appropriated waters of the Kern River. The parties' primary dispute concerned the theoretical entitlement of a junior user versus the volume of water actually available to that user on a given day. The court held that the actual entitlement of a junior appropriator must include all water in the river to which it has a right of access, including release water actually available to it. In determining the amount forfeited from junior appropriative rights, each right is exercised in turn with respect to water actually available to it, and it is the failure to fully exercise each right to the available water that is the cause of forfeiture. In sum, what is forfeited is the right to appropriate water in excess of historical beneficial use as reflected in the forfeiture period. As to what to do with the forfeited water, the trial court incorrectly determined that the forfeiture created unappropriated water subject to appropriation through the State Water Resources Control Board (SWRCB) process; instead, the initial determination whether the forfeiture creates an allocable excess is reserved in the first instance to the SWRCB. North Kern Water Storage District v. Kern Delta Water District, No. F047706, 37 ELR 20007 (Cal. App. 5th Dist. Jan. 2, 2007) (37 pp.).

INSURANCE LAW, POLLUTION EXCLUSION:

A California appellate court reversed a lower court decision holding that insurers need not indemnify the state for damage caused to third parties due to the discharge of pollutants from the Stringfellow Acid Pits waste disposal site. The trial court granted summary judgment in favor of the insurers based on exclusions in their policies for liability based on pollution and on the discharge of pollutants into a watercourse. But the record raised a triable issue as to whether the discharge fell within the sudden and accidental exception to the pollution exclusion clause. In addition, the watercourse exclusion fails to specify whether a discharge that enters a watercourse and from there pollutes the land falls within the exclusion. Because it is ambiguous, the language should be construed in favor of the insured and expand coverage to a discharge that damages the soil, even if the discharge initially enters a watercourse. When the language is construed that way, there is at least a triable issue as to whether the exclusion applies. State v. Underwriters at Lloyd's London, No. E037627, 37 ELR 20004 (Cal. App. 4th Dist. Dec. 28, 2006) (63 pp.).

Copyright© 2007, Environmental Law Institute, Washington, D.C. All rights reserved.

THE FEDERAL AGENCIES

Note: Citations below are to the Federal Register (FR).

AIR:

  • EPA promulgated NESHAPs for oil and natural gas production facilities that are area sources; in addition, the Agency amended a general provision in the regulation to allow the use of an ASTM standard as an alternative test method to EPA Method 18 in NESHAPs from these certain types of facilities. 72 FR 26 (1/3/07).
  • EPA amended the NESHAPs for shipbuilding and ship repair (surface coating) operations promulgated on December 15, 1995 (60 FR 64330). 71 FR 78369 (12/29/06).
  • EPA changed the methods used to calculate the fuel economy estimates that are posted on window stickers of all new cars and light trucks sold in the United States; in addition, the Agency announced that it will adopt a new fuel economy label design with a new look and updated information that should be more useful to prospective car buyers. 71 FR 77871 (12/27/06).
  • EPA exempted three U.S. Pacific Island Territories--American Samoa, Guam, and the Commonwealth of the Northern Mariana Islands--from the gasoline sulfur requirements that EPA promulgated in the Tier 2 motor vehicle rule. 71 FR 78086 (12/28/06).
  • EPA proposed amendments to the General Provisions to NESHAPs that provide that a major source may become an area source at any time by limiting its potential to emit hazardous air pollutants to below specific major source thresholds. 72 FR 69 (1/3/07).
  • EPA proposed to amend the NESHAPs for shipbuilding and ship repair (surface coating) operations promulgated on December 15, 1995 (60 FR 64330); see above for direct final rule 71 FR 78392 (12/29/06).
  • EPA proposed to exempt three U.S. Pacific Island Territories--American Samoa, Guam, and the Commonwealth of the Northern Mariana Islands--from the gasoline sulfur requirements that EPA promulgated in the Tier 2 motor vehicle rule; see above for the direct final rule. 71 FR 78123 (12/28/06).
  • SIP Approvals: Arizona (basic and enhanced vehicle emissions inspection programs) 71 FR 78115 (12/28/06). California (air pollution sources) 72 FR 9 (1/3/07); (volatile organic compound (VOC) emissions from architectural coatings and organic liquid storage tanks) 72 FR 267 (1/4/07). Maryland (test methods for particulate matter with a diameter of 10 microns or less (PM10)) 72 FR 18 (1/3/07). Nevada (requests for rescission) 72 FR 11 (1/3/07). Pennsylvania (update to materials incorporated by reference) 72 FR 199 (1/3/07). Tennessee (air quality regulations for open burning, permits, and regulation of VOCs) 72 FR 20 (1/3/07); (air quality regulations for definitions and regulation of fugitive dust and materials) 72 FR 23 (1/3/07); (VOC air quality regulations) 72 FR 265 (1/4/07).
  • SIP Proposals: California (air pollution sources; see above for direct final rule) 72 FR 69 (1/3/07); (VOC emissions from architectural coatings and organic liquid storage tanks; see above for direct final rule) 72 FR 296 (1/4/07). Maryland (PM10 test methods; see above for direct final rule) 72 FR 68 (1/3/07). Ohio (ozone maintenance plan for Belmont County) 71 FR 77666 (12/27/06); (ozone maintenance plans for Allen and Stark counties) 71 FR 77678 (12/27/06). Tennessee (air quality regulations for open burning, permits, and regulation of VOCs; see above for direct final rule) 72 FR 67 (1/3/07); (air quality regulations for definitions and regulation of fugitive dust and materials; see above for direct final rule) 72 FR 67 (1/3/07); (VOC air quality regulations) 72 FR 296 (1/4/07). Virginia (VOC and nitrogen oxide emissions control areas) 71 FR 77353 (12/26/06).

HAZARDOUS & SOLID WASTE:

  • EPA entered into a proposed administrative settlement under CERCLA concerning the El Monte Operable Unit of the San Gabriel Valley Superfund Site in El Monte, California, that requires the settling party to pay $160,000 in past response costs to the Agency. 72 FR 546 (1/5/07).
  • EPA entered into a proposed administrative agreement under CERCLA concerning portions of the Fort Ord Superfund site in Monterey, California, that requires the respondent to perform certain CERCLA response actions for the site; to prepare and perform removal actions, remedial investigations, feasibility studies, remedial designs, and remedial actions for certain contaminants present on the transferred portions of the site; and to reimburse direct and indirect future response costs incurred by EPA and the state in connection with the transferred portions of the site. 71 FR 78436 (12/29/06).

WATER:

  • EPA proposed to issue NPDES general permits regulating discharges from oil and gas wells in the Coastal Subcategory in Texas and regulating produced water discharges from wells in the Stripper and Offshore Subcategories that discharge into coastal waters of Texas. 71 FR 78204 (12/28/06).
  • EPA proposed to amend its existing CWA §106 grant allotment regulation to provide the Agency with the flexibility to allot separately an NPDES permit fee incentive amount. 72 FR 293 (1/4/07).
  • EPA, pursuant to the SDWA, published the next set of unregulated contaminants to be monitored and the requirements for such monitoring for the 2007 to 2011 cycle. 72 FR 367 (1/4/06).

WILDLIFE:

  • FWS designated critical habitat in Washington County, Utah, for the endangered plant Shivwits milk-vetch and in Mojave County, Arizona, and Washington County, Utah, for the endangered plant Holmgren milk-vetch. 71 FR 77971 (12/27/06).
  • FWS announced the availability of a final comprehensive conservation plan and FONSI for the Grand Cote National Wildlife Refuge in Louisiana. 71 FR 77782 (12/27/06).
  • FWS announced the availability of a draft comprehensive conservation plan and EA for the Merritt Island National Wildlife Refuge in Florida. 71 FR 77783 (12/27/06).
  • FWS issued certain companies letters of authorization to take polar bears incidental to oil and gas industry exploration activities in the Beaufort Sea and adjacent northern coast of Alaska. 71 FR 78220 (12/28/06).
  • NOAA-Fisheries, after completing a comprehensive status review of right whales in the northern hemisphere, proposed to list the North Atlantic right whale as an endangered species. 71 FR 77704 (12/27/06).
  • NOAA-Fisheries, after completing a comprehensive status review of right whales in the northern hemisphere, proposed to list the North Pacific right whale as an endangered species. 71 FR 77694 (12/27/06).

DOJ NOTICES OF SETTLEMENT:

  • United States v. WCI Steel, Inc., No. 4:06-CV-03000 (N.D. Ohio Dec. 18, 2006). A settling Solid Waste Disposal Act defendant must implement specified measures to reduce risks to birds and wildlife due to the management of oily wastes at impoundments at the defendant's facility in Warren, Ohio, and must pay a $620,000 civil penalty for willfully violating, or failing or refusing to comply with, an administrative order. 71 FR 77413 (12/26/06).
  • United States v. American Cyanamid, Nos. 1:02-CV-109-1, 1:03-CV-122-3 (M.D. Ga. Dec. 14, 2006). A settling CERCLA defendant must pay $2,850,000 to the Hazardous Substances Superfund in reimbursement of the costs incurred at the Stoller Chemical Company/Pelham Phosphate Company Superfund site in Pelham, Georgia. 71 FR 78465 (12/29/06).
  • United States v. Ashland Inc., No. 06-1378 (D. Kan. Dec. 21, 2006). Settling CERCLA defendants and settling federal agencies must pay past response costs incurred at the Chemical Commodities Inc. Superfund site in Olathe, Kansas. 71 FR 78466 (12/29/06).
  • United States v. Birch Creek Construction, Inc., No. 06-CV-617-AS (D. Or. Dec. 20, 2006). A settling CERCLA defendant that violated the asbestos NESHAPs must pay $30,000 in penalties and implement a compliance program. 71 FR 78466 (12/29/06).
  • United States v. Union Pacific R.R. Co., No. 2:06-CV-2841-FCD-KJM (E.D. Cal. Dec. 14, 2006). A settling CERCLA defendant that unlawfully disposed of hazardous materials at the McCormick and Baxter Superfund site in Stockton, California, must design and implement the EPA-selected remedy at the site; must pay $1 million in past EPA response costs; and must pay $900,000 in past state response costs. 71 FR 78466 (12/29/06).

Copyright© 2007, Environmental Law Institute, Washington, D.C. All rights reserved.

THE CONGRESS

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

PUBLIC LAWS:

  • S. 1219 (Native Americans), which authorizes certain tribes in the state of Montana to enter into a lease or other temporary conveyance of water rights to meet the water needs of the Dry Prairie Rural Water Association, Inc., was signed by President Bush on Dec. 18, 2006. Pub. L. No. 109-410, 152 Cong. Rec. D61127 (daily ed. Dec. 27, 2006).
  • H.R. 3817 (mining), which withdraws the Valle Vidal Unit of the Carson National Forest in New Mexico from location, entry, and patent under the mining laws, was signed by President Bush on December 12, 2006. Pub. L. No. 109-385, 152 Cong. Rec. D61127 (daily ed. Dec. 27, 2006).
  • H.R. 4377 (hydroelectricity), which extends the time required for construction of a hydroelectric project, was signed by President Bush on December 13, 2006. Pub. L. No. 109-393, 152 Cong. Rec. D61127 (daily ed. Dec. 27, 2006).
  • H.R. 4559 (land conveyance), which provides for the conveyance of certain National Forest System land to the towns of Laona and Wabeno, Wisconsin, was signed by President Bush on December 12, 2006. Pub. L. No. 109-387, 152 Cong. Rec. D61127 (daily ed. Dec. 27, 2006).
  • H.R. 5061 (fisheries), which directs the Secretary of the Interior to convey Paint Bank National Fish Hatchery and Wytheville National Fish Hatchery to the state of Virginia, was signed by President Bush on December 12, 2006. Pub. L. No. 109-388, 152 Cong. Rec. D61127 (daily ed. Dec. 27, 2006).
  • H.R. 5466 (National Trails System Act), which amends the National Trails System Act to designate the Captain John Smith Chesapeake National Historic Trail, was signed by President Bush on Dec. 20, 2006. Pub. L. No. 109-418, 152 Cong. Rec. D61127 (daily ed. Dec. 27, 2006).
  • H.R. 5690 (boundary adjustment), which adjusts the boundaries of the Ouachita National Forest in the states of Arkansas and Oklahoma, was signed by President Bush on December 12, 2006. Pub. L. No. 109-391, 152 Cong. Rec. D61127 (daily ed. Dec. 27, 2006).
  • H.R. 6121 (Federal Water Pollution Control Act (FWPCA)), which amends the FWPCA to reauthorize a program relating to the Lake Pontchartrain Basin, was signed by President Bush on December 12, 2006. Pub. L. No. 109-392, 152 Cong. Rec. D61127 (daily ed. Dec. 27, 2006).

Copyright© 2007, 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 2007, 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 2007, visit the ELR Archives.

The states below have updates this week:

Arizona Maine Pennsylvania South Dakota California Maryland Rhode Island Texas Louisiana Montana South Carolina West Virginia

ARIZONA

Air:

  • The Arizona Department of Environmental Quality has amended the permit rules, R18-2-323 and R18-2-509, referring to the “hearing board,” so that they refer to the correct body to hear permit decision appeals, the “Office of Administrative Hearings.” The rules become effective February 3, 2007. See http://www.azsos.gov/public_services/Register/2006/51/final.pdf (p.4698)
  • The Arizona Department of Environmental Quality has amended R18-2-701, and added new R18-2-733, R18-2-733.01, and R18-2-734, to impose both federal and state mercury emission standards on coal-fired power plants. The rules become effective January 29, 2007. See http://www.azsos.gov/public_services/Register/2006/51/final.pdf (p.4701)

CALIFORNIA

Air:

  • The Department of Pesticide Regulation will hold a public hearing on proposed amendments to section 6860 of Title 3, California Code of Regulations. The proposed regulatory action designates the pesticide chemical sulfur fluoride as a toxic air contaminant in subsection (a) pursuant to Food and Agricultural Code section 14023. The hearing will be held January 31, 2007. Comments are due February 1, 2007. See http://www.oal.ca.gov/notice/50z-2006.pdf (p.1855)

LOUISIANA

Air:

  • The Department of Environmental Quality will hold a public hearing on the proposal to amend the Air regulations, LAC 33:III.1502, 1503, 1507, 1511, and 1513. The proposals concern emission limitations, monitoring, recordkeeping, and reporting requirements. The hearing will be held January 24, 2007. Comments are due January 31, 2007. See http://www.deq.louisiana.gov/portal/portals/0/planning/regs/pdf/AQ271pro.pdf
  • The Department of Environmental Quality will hold a public hearing on the proposal to amend the Air regulations, LAC 33:III.221, 223, 551, 5101, 5103, 5105, 5107, 5109, 5111, and 5112. The air toxics rule has been in effect for 15 years. It currently contains dated language that needs to be removed or modified. The hearing will be held January 24, 2007. Comments are due January 31, 2007. See http://www.deq.louisiana.gov/portal/portals/0/planning/regs/pdf/AQ256pro.pdf
  • The Department of Environmental Quality will hold a public hearing on the proposal to amend the Air regulations, LAC 33:III.2103 (Log #AQ272). This rule exempts drums storing pyrophoric catalyst at the Vistalon Production Facility of ExxonMobil Chemical Company Baton Rouge Chemical Plant from the submerged fill pipe provisions of LAC 33:III.2103.A. The hearing will be held January 24, 2007. Comments are due January 31, 2007. See http://www.deq.louisiana.gov/portal/portals/0/planning/regs/pdf/AQ272pro.pdf

Hazardous and Solid Waste:

  • The Department of Environmental Quality will hold a public hearing on substantive changes to proposed amendments the Notification and Reportable Quantity List regulations, LAC 33:I.3908, 3919, 3925, and 3931. The proposed changes touch on a variety of issues. The hearing will be held January 24, 2007. Comments are due January 31, 2007. See http://www.deq.louisiana.gov/portal/portals/0/planning/regs/pdf/0612POT1.pdf
  • The Department of Environmental Quality will hold a public hearing on proposed amendments to Solid Waste regulations, LAC 33:VII.Subpart 1. This proposed rule amends, reorganizes, and replaces the Solid Waste regulations in LAC 33:VII.Subpart 1. The hearing will be held January 24, 2007. Comments are due February 28, 2007. http://www.deq.louisiana.gov/portal/portals/0/planning/regs/pdf/SW037pro.pdf
  • The Department of Environmental Quality will hold a public hearing on the proposed amendment of the Hazardous Waste regulations, LAC 33:V.105, 106, 199, and 5147. This rule implements Act 778 of the 2006 Regular Session of the Louisiana Legislature and the provisions of Emergency Rule HW084E10 relating to the management of listed wastes at contaminated sites on the basis of risk. The hearing will be held January 24, 2007. Comments are due January 31, 2007. See http://www.deq.louisiana.gov/portal/portals/0/planning/regs/pdf/HW092pro.pdf
  • The Department of Environmental Quality will hold a public hearing on the adoption of regulations for reporting requirements of hazardous materials for Category 3 or higher hurricanes in LAC 33:V.Subpart 2, 11101, 11103, and 11105. This proposed rule provides a process for the reporting of information regarding hazardous materials that are in transit and/or temporarily stored at a facility and that could present a threat to human health and the environment if compromised during a Category 3 or higher hurricane. The hearing will be held January 24, 2007. Comments are due January 31, 2007. See http://www.deq.louisiana.gov/portal/portals/0/planning/regs/pdf/DPS001pro.pdf

Water:

MAINE

Land Use:

  • The Department of Environmental Protection is soliciting public comment on the proposal to amend Ch. 378, Variance Criteria for the Excavation of Rock, Borrow, Topsoil, Clay, or Silt, Rule 2006-P347. Comments are due January 26, 2007. See http://www.maine.gov/sos/cec/rules/notices/2006/122706.htm

MARYLAND

Fisheries:

  • On November 28, 2006, the Secretary of Natural Resources adopted amendments to Regulations .01-.06, .09, and .10 under COMAR 08.02.11, Fishing in Nontidal Waters. This action, which was proposed for adoption in 33:18 Md. R. 1508-1511 (September 1, 2006), has been adopted as proposed. The amendments became effective January 1, 2007. See http://www.dsd.state.md.us/mdregister/3326/main_register.htm
  • The Secretary of Natural Resources is soliciting public comment on the proposal to amend Regulations .05 and .07, repeal existing Regulation .10 and adopt new Regulation .10 under COMAR 08.02.03, Crabs. The purpose of this action is to clarify and correct crab regulations regarding crab pots, channel pounds and bank traps, and recreational crabbing catch limits on a boat. Comments are due January 9, 2007. See http://www.dsd.state.md.us/mdregister/3326/main_register.htm

Hazardous and Solid Waste:

  • On December 11, 2006, the Secretary of the Environment adopted new Regulations .01-.04 under a new chapter, COMAR 26.02.04 Hazardous Substances. This action, which was proposed for adoption in 33:14 Md. R. 1234 -1235 (July 7, 2006), has been adopted as proposed. The regulations became effective January 1, 2007. See http://www.dsd.state.md.us/mdregister/3326/main_register.htm
  • On December 11, 2006, the Secretary of the Environmental adopted amendments to Regulation .05 under COMAR 26.13.02, Identification and Listing of Hazardous Waste and new Regulation .26 under COMAR 26.13.10, Standards for the Management of Specific Hazardous Wastes and Specific Types of Hazardous Waste Management Facilities. The amendments became effective January 1, 2007. See http://www.dsd.state.md.us/mdregister/3326/main_register.htm

MONTANA

Hazardous and Solid Waste:

Water:

General:

  • The Department of Environmental Quality has amended ARM 17.85.101, 17.85.103, 17.85.105, 17.85.107, 17.85.110, 17.85.111, and 17.85.114, and adopted New Rule I (17.85.104), pertaining to the Alternative Energy Revolving Loan Program exactly as proposed. See http://sos.mt.gov/arm/Register/archives/MAR2006/MAR06-24.pdf (p. 3074)

PENNSYLVANIA

Air:

  • The Department of Environmental Protection will hold a public hearing on its eight-hour ozone redesignation request, the 2002 base year inventory, and a SIP revision setting forth a maintenance plan, which includes the Pennsylvania Clean Vehicles Program, demonstrating that the area can maintain the health-based ozone standard for the next 10 years as required under CAA §175A(a). The maintenance plan, once approved by EPA, will also establish new motor vehicle emission budgets for purposes of transportation conformity.  This proposal is available on the Department's website at http://www.depweb.state.pa.us (choose ''Air Topics'').  The hearing will be held January 23, 2007. Comments are due January 26, 2007. See http://www.pabulletin.com/secure/data/vol36/36-51/2526.html
  • The Department of Environmental Protection will hold a public hearing on a proposed revision to the State Implementation Plan for Ozone for the Harrisburg-Lebanon-Carlisle 8-Hour Ozone Nonattainment Area. The hearing will be held January 23, 2007. Comments are due January 26, 2007. See http://www.pabulletin.com/secure/data/vol36/36-51/2527.html

Water:

  • The Department of Environmental Protection requests public comment and gives notice of public meetings for proposed TMDLs for: (1)  East Branch Mahoning Creek Watershed in Clearfield and Jefferson Counties; (2) Laurel Branch Run Watershed located in Clearfield County; (3) Stump Creek Watershed located in Clearfield and Jefferson Counties; (4) UNT 26051 to Trout Run and UNT 26053 to Pine Run in Clearfield County; and (5) West Creek in Elk and Cameron Counties. See http://www.pabulletin.com/secure/data/vol36/36-51/index.html

Wildlife:

  • The Environmental Quality Board has amended Chapters 271, 279, 287, and 293, based on a petition by the U.S. Department of Defense requesting that the Department of Environmental Protection address the potential hazards posed to military aircraft from bird strikes near waste landfill and transfer facilities. The proposed rulemaking would broaden the definition of ''airport'' to include military airports, extend existing airport notification requirements for waste landfills to military airports, and impose an airport notification requirement on waste transfer facilities. See http://www.pabulletin.com/secure/data/vol36/36-51/2515.html

RHODE ISLAND

Fisheries:

SOUTH CAROLINA

General:

  • The Department proposes to amend Regulation 30-1, Definitions, and Regulation 30-12, Specific Project Standards for Tidelands and Coastal Waters, to specify the Department’s policies regarding construction of docks and piers. This proposed amendment would provide clearly defined terms and specific standards to be utilized in the evaluation of permit applications for docks and piers. See http://www.scdhec.gov/administration/regs/docs/regupdate.doc#ocean

SOUTH DAKOTA

Land Use:

  • The Board of Minerals and Environment will hold a public hearing on the proposal to adopt 33 SDR 117 to identify the requirements an applicant must meet to obtain a state mine permit and to operate an in situ leach mine. The hearing will be held January 18, 2007. See http://legis.state.sd.us/rules/register/12262006.pdf (p.3)

TEXAS

Fisheries:

WEST VIRGINIA

Land Use:

Copyright© 2007, Environmental Law Institute, Washington, D.C. All rights reserved.

INTERNATIONAL

UGANDAN GOVERNMENT TO TAKE OVER FISHERIES

The Ugandan government is in the final stages of centralizing the appointment and posting of district fisheries officers in an effort to streamline their operations and improve service delivery. According to The Monitor, the state Minister for fisheries, Fred Mukisa, said the U-turn is following failure of the districts to facilitate district fisheries and veterinary officers, which has affected work of the fisheries department in protecting against overfishing. The district officers are against the move, calling it a ploy by the government to usurp their powers. See http://allafrica.com/stories/200612200922.html

AUSTRALIA INSTITUTES TOUGH WATER BANS FOR WATER WASTERS

A new three-strike rule in Melbourne will result in serial water wasters having their water turned down to a trickle--"just enough to dampen a washcloth.” The new measure, instituted when the campaign to reduce water was raised to stage 3, gives water police the authority to go into homes and reduce water pressure. Melbourne’s water officials have already identified a number of homes to receive the pressure cut. Offenders will have to pay a fee to have their water restored to normal, and a locked silver box will be put over the water meter to prevent offenders from restoring water flow. See http://www.news.com.au/heraldsun/story/0,21985,20984273-661,00.html

SOUTH AFRICA PROPOSES NEW WASTE MANAGEMENT BILL

The South Africa Environmental Affairs and Tourism Department has proposed a new waste management bill that recommends national standards for regulating the management of waste. The bill proposes the appointment of national, provincial, and local waste management officers. It also proposes tough penalties, including fines and imprisonment for up to 10 years, for those found guilty of contravening measures aimed at controlling and limiting the disposal of waste. Further, the bill obliges the Environmental Affairs and Tourism minister to establish a national waste management strategy, which outlines standards for waste management, including planning and national standards for service delivery. See http://allafrica.com/stories/200612290532.html

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