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Weekly Update Volume 37, Issue 14

05/14/2007

LITIGATION

WASTE ISOLATION PILOT PLANT, NEPA:

The Tenth Circuit upheld a lower court decision denying a citizen group's lawsuit to enjoin DOE's approved operation of the Waste Isolation Pilot Plant, a nuclear waste repository located in southeastern New Mexico. The group argued that DOE relied on faulty data regarding the subsurface geomorphology of the site in its environmental review, thereby under representing the environmental hazards of waste storage at the site in violation of NEPA. The lower court properly upheld DOE's approval. DOE was not arbitrary and capricious in its review of the geological data before it. It did not ignore the "Magenta" layer in its evaluation, but rather provided careful and reasoned explanations for modeling the "Culebra" instead. Based on the record, therefore, DOE did not make a "clear error in judgment" in concluding that its site modeling was adequate. Nor did the district court abuse its discretion in rejecting the group's proffer of extra-record evidence in its review of the agency decision. Citizens for Alternatives to Radioactive Dumping v. United States Department of Energy, No. 04-2314, 37 ELR 20098 (10th Cir. May 3, 2007) (16 pp.).

TAKINGS, LAW OF THE CASE:

The Federal Claims Court denied the U.S. government's motion to dismiss property owners' takings claims against it in connection with a U.S. Army Corps of Engineer project along the shore of Lake Michigan. The owners claimed that the Corps' construction and maintenance of jetties from 1950 to 1989 caused erosion of their shoreline property. The United States moved to dismiss, claiming that the landowners' actions were time barred. The motion was ultimately denied. Now, the U.S. government claims that evidence has come to light since the prior court decision. Specifically, it argued that the landowners "had no justifiable uncertainty regarding the erosion to their property." Hence, their claims should be deemed time barred. The court, however, concluded that in the circumstances of this case, neither landowners without actual knowledge of the Corps's efforts to mitigate their alleged loss nor landowners who actually knew of the mitigation undertaken by the Corps are barred by the statute of limitations. The landowners' subjective knowledge may be new evidence, but the U.S. government failed to show how it is "material" to the question at hand. Hence, the court is bound by the law of the case as set forth in the prior decision. The court also held that a landowner who filed suit after the prior court decision may also go forward with its case. That landowner is in the same position as the other landowners who were held to be justifiably uncertain of the alleged takings. Banks v. United States, Nos. 99-4451 et al., 37 ELR 20102 (Fed. Cl. May 3, 2007) (Hewitt, J.) (10 pp.).

CERCLA, AS-APPLIED CHALLENGE:

A district court granted a company's motion to reconsider its as-applied constitutional challenge to a unilateral administrative order issued by EPA against it directing the company to perform cleanup activities at an airport. The court initially dismissed the claim for lack of subject matter jurisdiction pursuant to CERCLA §113(h) on the grounds that cleanup at the site was not yet complete. Once cleanup was finished, the company filed a motion to reconsider its previous challenge. The United States does not dispute that cleanup at the site has been completed and that EPA has issued a Notice of Completion to the company. Nonetheless, the United States argues that the court cannot exercise jurisdiction over the company's as-applied challenge because the claim does not fall within any of the five enumerated exceptions to §113(h). But because the remedial action has been completed, §113(h) simply does not apply and the exceptions to §113(h) are never implicated. The court, therefore, granted the company's motion and reinstated its earlier claim. Raytheon Aircraft Co. v. United States, No. 05-2328-JWL, 37 ELR 20100 (D. Kan. May 3, 2007) (Lungstrum, J.) (3 pp.).

ESA, CONSULTATION, ATTORNEYS FEES:

A district court denied an environmental group's motion for attorneys fees and costs stemming from an underlying case involving an incidental take permit's impact on three species of butterfly. Below, the parties settled their claims. Pursuant to the consent judgment, FWS agreed to reinitiate consultation on the San Bruno Mountain Habitat Conservation Plan and the incidental take permit; report on the consultation process; publish a biological opinion regarding such consultation; and pay the group $130,000 in attorney's fees. When FWS failed to initiate consultation, the group sought to enforce the consent decree. FWS has since complied with all aspects of the decree. The group now seeks additional attorneys fees for its actions in "monitoring" and "enforcing" the consent judgment. However, there was no deadline specified in the consent decree as to when FWS must begin consultation. Thus, the group cannot establish that FWS was in violation of the consent judgment as of the time it filed its motion to enforce the consent judgment. The group's claim for fees and costs is therefore without merit. San Bruno Mountain Watch v. U.S. Fish & Wildlife Service, No. C 00-2485 PJH, 37 ELR 20101 (N.D. Cal. May 4, 2007) (Hamilton, J.) (3 pp.).

WATER, CALIFORNIA ENVIRONMENTAL QUALITY ACT:

A California appellate court upheld the dismissal of a petition challenging a city's decision to adopt a resolution renewing a Central Valley Project water contract with the Bureau of Reclamation. The contract, originally made in 1961, requires the United States to deliver 60,000 acre-feet of Class I water to the city per year. Petitioners claimed that the city violated the California Environmental Quality Act in adopting the resolution. The lower court properly dismissed the CEQA petition because the petitioners did not file a request for hearing within 90 days of filing their petition, as was required by §21167.4(a) of the California Public Resources Code. Furthermore, filing a request for hearing on the 91st day did not cure the failure to meet the deadline, even though it was filed before the motion to dismiss. In addition, the lower court did not abuse its discretion when it denied relief under the discretionary relief provisions of Code of Civil Procedure §473. Fiorentino v. City of Fresno, No. F050578, 37 ELR 20099 (Cal. App. 5th Dist. May 4, 2007) (20 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 issued a supplemental notice of proposed rulemaking in connection with its October 20, 2005, (70 FR 61081) proposal to revise the emissions test for existing electric generating units that are subject to the regulations governing the PSD and nonattainment major New Source Review programs. 72 FR 26201 (5/8/07).
  • EPA revised the Code of Federal Regulations to reflect the current delegation status of NESHAPs in Arizona and Nevada. 72 FR 25980 (5/8/07).
  • EPA proposed to revise the Code of Federal Regulations to reflect the current delegation status of NESHAPs in Arizona and Nevada; see above for direct final rule. 72 FR 26069 (5/8/07).
  • EPA approved negative declarations submitted by Iowa, Kansas, and Missouri that certify that other solid waste incineration (OSWI) units subject to the requirements of CAA §§111(d) and 129 do not exist in those states. 72 FR 25978 (5/8/07).
  • EPA proposed to approve negative declarations submitted by Iowa, Kansas, and Missouri that certify that OSWI units subject to the requirements of CAA §§111(d) and 129 do not exist in those states; see above for direct final rule. 72 FR 26069 (5/8/07).
  • EPA promulgated a source-specific federal implementation plan to regulate emissions from the Four Corners Power Plant, a coal-fired power plant located on the Navajo Indian Reservation near Farmington, New Mexico. 72 FR 25698 (5/7/07).
  • EPA denied a petition to object to a state operating permit issued by the Alaska Department of Environmental Conservation to BP Exploration Inc.'s Gathering Center 1 in Prudhoe Bay, Alaska. 72 FR 26813 (5/11/07).
  • SIP Approvals: Arizona (particulate matter with a diameter of 10 microns or less (PM10) emissions from open burning) 72 FR 25973 (5/8/07). California (carbon monoxide NAAQS), 72 FR 26718 (May 11, 2007). Missouri (interstate transport of air pollutants) 72 FR 25975 (5/8/07). Nevada (visible emissions and particulate matter) 72 FR 25971 (5/8/07); (particulate matter emissions from fugitive dust sources) 72 FR 25969 (5/8/07). West Virginia (redesignation request for eight-hour ozone NAAQS) 72 FR 25967 (5/8/07).
  • SIP Proposals: Arizona (PM10 emissions from open burning; see above for direct final rule) 72 FR 26045 (5/8/07). Indiana (maintenance plan and redesignation request for eight-hour ozone NAAQS) 72 FR 26057 (5/8/07). Iowa (clean air interstate rule requirements) 72 FR 26040 (5/8/07). Kentucky (Huntington-Ashland eight-hour ozone nonattainment area) 72 FR 26759 (5/11/07). Missouri (interstate transport of air pollutants; see above for direct final rule) 72 FR 26045 (5/8/07). Nevada (particulate matter emissions from fugitive dust sources; see above for direct final rule) 72 FR 26046 (5/8/07). Pennsylvania (maintenance plan, redesignation request for eight-hour ozone NAAQS, and 2002 base year inventory) 72 FR 26046 (5/8/07).

CLIMATE CHANGE:

  • EPA announced the establishment of the Adaptation for Climate-Sensitive Ecosystems and Resources Advisory Committee; the committee will provide advice on the conduct of a U.S. Climate Change Science Program study titled "Preliminary Review of Adaptation Options for Climate-Sensitive Ecosystems and Resources.'' 72 FR 26628 (5/10/07).
  • EPA announced the establishment of the Human Impacts of Climate Change Advisory Committee; the committee will provide advice on the conduct of a U.S. Climate Change Science Program study titled "Analyses of the Effects of Global Change on Human Health and Welfare and Human Systems.'' 72 FR 26628 (5/10/07).

HAZARDOUS & SOLID WASTE:

  • EPA entered into a proposed administrative settlement under CERCLA concerning the Hilliard's Creek Superfund site, the Route 561 Dump Superfund site, and the U.S. Avenue Burn Superfund site in Camden County, New Jersey, that requires the settling party to pay a total of $385,000 in response costs. 72 FR 26631 (5/10/07).
  • EPA issued its UST inspection grant guidelines for states. 72 FR 26359 (5/9/07).
  • EPA issued the grant guidelines for state compliance reports on government USTs. 72 FR 26367 (5/9/07).

MINING:

  • OSM approved an amendment to the Ohio regulatory program under SMCRA concerning the removal of certain conflict of interest provisions. 72 FR 26291 (5/9/07).
  • OSM proposed to approve an amendment to Virginia's regulatory program under SMCRA concerning a revision to the state's coal surface mining reclamation regulations that pertain to the review of a decision not to inspect or enforce. 72 FR 26329 (5/9/07).

PUBLIC LAND:

  • U.S. Forest Service proposed a criminal citation to be issued for unauthorized mineral operations on National Forest System lands. 72 FR 26578 (5/10/07).
  • FWS revised the list of nonrural areas identified in the subsistence management regulations for public lands in Alaska. 72 FR 25688 (5/7/07).

WATER:

  • EPA announced the availability of a general NPDES permit for groundwater remediation discharge facilities in Idaho; the general permit authorizes the discharge of treated groundwater from new and existing facilities to U.S. surface waters within the state. 72 FR 26114 (5/8/07).
  • EPA announced that the Great Lakes Initiative Toxicity Data Clearinghouse is available for use by states, tribes, and other interested parties; the online clearinghouse acts as a central location for toxicity data, exposure parameters, and supporting documents used in deriving water quality criteria and guidance values in the Great Lakes Basin. 72 FR 25756 (5/7/07).

WILDLIFE:

  • NOAA-Fisheries listed the distinct population segment of steelhead in Puget Sound, Washington, as a threatened species under the ESA. 72 FR 26722 (5/11/07).

DOJ NOTICES OF SETTLEMENT:

  • In re Armstrong World Industries, Inc., No. 00-4471 (Bankr. D. Del. Apr. 25, 2007). Settling CERCLA defendants must pay an allowed general unsecured claim of $500,000 with respect to the Berry's Creek Study Area in Bergen County, New Jersey. 72 FR 26647 (5/10/07).
  • United States v. Total Petrochemicals USA, Inc., No. 07-CV-00248-MAC (E.D. Tex. Apr. 30, 2007). A settling CAA defendant must pay a $2.9 million civil penalty and must implement injunctive relief to improve the performance of its petroleum refinery in Port Arthur, Texas, including reducing emissions from major refinery units, reducing the flaring of process upset gasses, improving leak detection and repair procedures, and improving the management of benzene wastewater streams. 72 FR 26648 (5/10/07).

GUIDANCE DOCUMENTS:

  • EPA announced the availability of a draft final report, Comparison of the Alternative Asbestos Control Method and the NESHAP Method for Demolition of Asbestos-Containing Buildings. 73 FR 26816 (5/11/07).
  • EPA announced the availability of a draft document titled, EPA's 2007 Report on the Environment: Science Report; the Agency released this draft document solely for the purpose of pre-dissemination peer review. 72 FR 26629 (5/10/07).

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

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

PUBLIC LAW:

  • H.R. 137 (animal rights), which amends title 18 of the U.S. Code to strengthen prohibitions against animal fighting, was signed by President Bush on May 3, 2007. Pub. L. No. 110-22, 153 Cong. Rec. D619 (daily ed. May 4, 2007).

CHAMBER ACTION:

  • H.R. 30 (Eastern Municipal Water District Recycled Water System Pressurization and Expansion Project), which would amend the Reclamation Wastewater and Groundwater Study and Facilities Act to authorize the Secretary of the Interior to participate in the Eastern Municipal Water District Recycled Water System Pressurization and Expansion Project, was passed by the House. 153 Cong. Rec. H4506 (daily ed. May 7, 2007).
  • H.R. 487 (Cheyenne River Sioux Tribe Equitable Compensation Amendments Act of 2007), which would amend the Cheyenne River Sioux Tribe Equitable Compensation Act to provide compensation to members of the Cheyenne River Sioux Tribe for damage resulting from the Oahe Dam and Reservoir Project, was passed by the House. 153 Cong. Rec. H4502 (daily ed. May 7, 2007).
  • H.R. 1025 (Lower Republican River Basin Study Act), which would authorize the Secretary of the Interior to conduct a study to determine the feasibility of implementing a water supply and conservation project to improve water supply reliability, increase the capacity of water storage, and improve water management efficiency in the Republican River Basin between Harlan County Lake in Nebraska and Milford Lake in Kansas, was passed by the House. 153 Cong. Rec. H4506, H4527 (daily ed. May 7, 2007).
  • H.R. 1080 (Grand Teton National Park Extension Act of 2007), which would modify the boundaries of Grand Teton National Park to include certain land within the GT Park Subdivision, was passed by the House.153 Cong Rec. H4502 (daily ed. May 7, 2007).
  • H.R. 1114 (Alaska Water Resources Act of 2007), which would require the Secretary of the Interior, acting through the Bureau of Reclamation and the U.S. Geological Survey, to conduct a study on groundwater resources in the state of Alaska, was passed by the House. 153 Cong. Rec. H4507 (daily ed. May 7, 2007).
  • H.R. 1140 (South Orange County Recycled Water Enhancement Act), which would authorize the Secretary, in cooperation with the City of San Juan Capistrano, California, to participate in the design, planning, and construction of an advanced water treatment plant facility and recycled water system, was passed by the House. 153 Cong. Rec. H4508 (daily ed. May 7, 2007).
  • H.R. 1294 (Thomasina E. Jordan Indian Tribes of Virginia Federal Recognition Act of 2007), which would extend federal recognition to the Chickahominy Indian Tribe, the Chickahominy Indian Tribe-Eastern Division, the Upper Mattaponi Tribe, the Rappahannock Tribe, Inc., the Monacan Indian Nation, and the Nansemond Indian Tribe, was passed by the House. 153 Cong. Rec. H4562, H4592 (daily ed. May 8, 2007).
  • H.R. 1737 (City of Oxnard Water Recycling and Desalination Act of 2007), which would amend the Reclamation Wastewater and Groundwater Study and Facilities Act to authorize the Secretary of the Interior to participate in the design, planning, and construction of permanent facilities for the GREAT project to reclaim, reuse, and treat impaired waters in the area of Oxnard, California, was passed by the House. 153 Cong. Rec. H4505 (daily ed. May 7, 2007).

COMMITTEE ACTION:

  • H.R. 487 (Cheyenne River Sioux Tribe Equitable Compensation Amendments Act of 2007) was reported by the Committee on Natural Resources. H. Rep. No. 110-128, 153 Cong. Rec. H4552 (daily ed. May 7, 2007). The bill would amend the Cheyenne River Sioux Tribe Equitable Compensation Act to provide compensation to members of the Cheyenne River Sioux Tribe for damage resulting from the Oahe Dam and Reservoir Project.
  • H.R. 1080 (Grand Teton National Park Extension Act of 2007) was reported by the Committee on Natural Resources. H. Rep. No. 110-127, 153 Cong. Rec. H4552 (daily ed. May 7, 2007). The bill would modify the boundaries of Grand Teton National Park to include certain land within the GT Park Subdivision.
  • H.R. 1114 (Alaska Water Resources Act of 2007) was reported by the Committee on Natural Resources. H. Rep. No. 110-126, 153 Cong. Rec. H4552 (daily ed. May 7, 2007). The bill would require the Secretary of the Interior, acting through the Bureau of Reclamation and the U.S. Geological Survey, to conduct a study on groundwater resources in the state of Alaska.
  • H.R. 1140 (South Orange County Recycled Water Enhancement Act) was reported by the Committee on Natural Resources. H. Rep. No. 110-125, 153 Cong. Rec. H4552 (daily ed. May 7, 2007). The bill would authorize the Secretary of the Interior, in cooperation with the City of San Juan Capistrano, California, to participate in the design, planning, and construction of an advanced water treatment plant facility and recycled water system.
  • H.R. 1294 (Thomasina E. Jordan Indian Tribes of Virginia Federal Recognition Act of 2007) was reported by the Committee on Natural Resources. H. Rep. No. 110-124, 153 Cong. Rec. H4552 (daily ed. May 7, 2007). The bill would extend federal recognition to the Chickahominy Indian Tribe, the Chickahominy Indian Tribe--Eastern Division, the Upper Mattaponi Tribe, the Rappahannock Tribe, Inc., the Monacan Indian Nation, and the Nansemond Indian Tribe.

BILLS INTRODUCED:

  • S. 1311 (Kerry, D-Mass.) (oil and gas) would permanently prohibit oil and gas leasing in the North Aleutian Basin Planning Area. 153 Cong. Rec. S5616 (daily ed. May 4, 2007). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 1321 (Bingaman, D-N.M.) (biofuels) would promote biofuels, energy efficiency, and carbon capture and storage. 153 Cong. Rec. S5655 (daily ed. May 7, 2007). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 1324 (Reid, D-Nev.) (CAA) would amend the CAA to reduce greenhouse gas emissions from transportation fuel sold in the United States. 153 Cong. Rec. S5655 (daily ed. May 7, 2007). The bill was referred to the Committee on Environment and Public Works.
  • S. 1329 (Collins, R-Me.) (Acadia National Park) would extend the Acadia National Park Advisory Commission to provide improved visitor services at the park. 153 Cong. Rec. S5716 (daily ed. May 8, 2007). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 1341 (Kyl, R-Ariz.) (land exchange) would provide for the exchange of certain BLM land in Pima County, Arizona. 153 Cong. Rec. S5869 (daily ed. May 9, 2007). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 1346 (Mikulski, D-Md.) (biofuels) would amend conservation and biofuels programs of the USDA to promote the compatible goals of economically viable agricultural production and reducing nutrient loads in the Chesapeake Bay and its tributaries by assisting agricultural producers to make beneficial, cost-effective changes to cropping systems, grazing management, and nutrient management associated with livestock and poultry production, crop production, bioenergy production, and other agricultural practices on agricultural land within the Chesapeake Bay watershed. 153 Cong. Rec. S5869 (daily ed. May 9, 2007). The bill was referred to the Committee on Agriculture, Nutrition, and Forestry.
  • S. 1347 (Feinstein, D-Cal.) (Native Americans) would amend the Omnibus Indian Advancement Act to modify the date as of which certain tribal land of the Lytton Rancheria of California is deemed to be held in trust and to provide for the conduct of certain activities on the land. 153 Cong. Rec. S5869 (daily ed. May 9, 2007). The bill was referred to the Committee on Indian Affairs.
  • S. 1358 (Grassley, R-Iowa) (CAA) would amend the CAA to require all gasoline sold for use in motor vehicles to contain 10 percent renewable fuel in the year 2010 and thereafter. 153 Cong. Rec. S5928 (daily ed. May 10, 2007). The bill was referred to the Committee on Environment and Public Works.
  • S. 1365 (Kerry, D-Mass.) (public lands) would amend the Omnibus Parks and Public Lands Management Act of 1996 to authorize the Secretary of the Interior to enter into cooperative agreements with any of the management partners of the Boston Harbor Islands National Recreation Area. 153 Cong. Rec. S5929 (daily ed. May 10, 2007). The bill was referred to the Committee on Energy and Natural Resources.
  • H.R. 2185 (Kirk, R-Ill.) (Tropical Forest Conservation Act) would amend the Tropical Forest Conservation Act of 1998 to provide debt relief to developing countries that take action to protect forests and coral reefs and associated coastal marine ecosystems and reauthorize such Act through fiscal year 2010. 153 Cong. Rec. H4552 (daily ed. May 7, 2007). The bill was referred to the Committee on Foreign Affairs.
  • H.R. 2186 (Alexander, R-La.) (national forests) would provide for the conveyance of National Forest System land in the state of Louisiana. 153 Cong. Rec. H4552 (daily ed. May 7, 2007). The bill was referred to the Committee on Agriculture.
  • H.R. 2193 (Israel, D-N.Y.) (Animal Welfare Act) would amend the Animal Welfare Act to increase the penalties for violations of such Act and prohibit the use of animals for marketing medical devices. 153 Cong. Rec. H4552 (daily ed. May 7, 2007). The bill was referred to the Committee on Agriculture.
  • H.R. 2196 (Reyes, D-Tex.) (Public Utility Regulatory Policies Act) would amend the Public Utility Regulatory Policies Act of 1978 to provide for disclosure to consumers of the fuels and sources of electric energy purchased from electric utilities. 153 Cong. Rec. H4552 (daily ed. May 7, 2007). The bill was referred to the Committee on Energy and Commerce.
  • H.R. 2197 (Space, D-Ohio) (boundary adjustment) would modify the boundary of the Hopewell Culture National Historical Park in the state of Ohio. 153 Cong. Rec. H4553 (daily ed. May 7, 2007). The bill was referred to the Committee on Natural Resources.
  • H.R. 2207 (Obey, D-Wis.) (agriculture) would make supplemental appropriations for agricultural and other emergency assistance for the fiscal year ending September 30, 2007. 153 Cong. Rec. H4627 (daily ed. May 8, 2007). The bill was referred to the Committee on Appropriations and the Committee on the Budget.
  • H.R. 2208 (Boucher, D-Va.) (coal-to-liquid) would provide for a standby loan program for certain coal-to-liquid projects. 153 Cong. Rec. H4627 (daily ed. May 8, 2007). The bill was referred to the Committee on Energy and Commerce and the Committee on Science and Technology.
  • H.R. 2215 (Inslee, D-Wash.) (greenhouse gas emissions) would provide a reduction in the aggregate greenhouse gas emissions per unit of energy consumed by vehicles and aircraft. 153 Cong. Rec. H4628 (daily ed. May 8, 2007). The bill was referred to the Committee on Energy and Commerce.
  • H.R. 2218 (Kaptur, D-Ohio) (biofuels) would provide for a Biofuels Feedstocks Energy Reserve and authorize the Secretary of Agriculture to make and guarantee loans for the production, distribution, development, and storage of biofuels. 153 Cong. Rec. H4628 (daily ed. May 8, 2007). The bill was referred to the Committee on Agriculture.
  • H.R. 2251 (Michaud, D-Me.) (Acadia National Park) would extend the Acadia National Park Advisory Commission to provide improved visitor services at the park. 153 Cong. Rec. H4752 (daily ed. May 9, 2007). The bill was referred to the Committee on Natural Resources.
  • H.R. 2255 (Udall, D-N.M.) (occupational illness) would amend the Energy Employees Occupational Illness Compensation Program Act of 2000 to extend and increase the authority for the ombudsman under the Energy Employees Occupational Illness Compensation Program. 153 Cong. Rec. H4752 (daily ed. May 9, 2007). The bill was referred to the Committee on the Judiciary and the Committee on Education and Labor.
  • H.R. 2256 (Walberg, R-Mich.) (ethanol) would amend the Internal Revenue Code of 1986 to allow a credit against income tax for the use of ethanol in tetraethyl orthosilicate (TEOS) production. 153 Cong. Rec. H4752 (daily ed. May 9, 2007). The bill was referred to the Committee on Ways and Means.
  • H. Res. 390 (Ross, D-Ariz.) (Ouachita National Forest) would recognize the importance of the Ouachita National Forest on its 100th anniversary. 153 Cong. Rec. H4753 (daily ed. May 9, 2007). The resolution was referred to the Committee on Natural Resources.

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:

California Illinois Maine Minnesota Ohio Virginia Colorado Kentucky Maryland New Mexico Oregon Washington Delaware Louisiana Massachusetts North Carolina Rhode Island  

CALIFORNIA

Air:

  • The Air Resources Board will conduct a public hearing to consider adoption of amendments to the California Reformulated Gasoline (CaRFG) Regulations. The proposed amendments are intended to: (1) help preserve the benefits of the Phase 2 CaRFG standards and update the Predictive Model to reflect the current motor vehicle fleet and new data on how fuel properties affect motor vehicle emission; (2) lower the sulfur cap limit from 30 parts per million by weight (ppmw) to 20 ppmw; (3) restore the 7.00 pounds per square inch Reid vapor pressure flat limit when the evaporative emissions portion of the Predictive Model is used to certify ethanol blends; (4) add provisions allowing for the use of alternative emission reduction plans to mitigate emissions associated with permeation; (5) add provisions to allow the option of using short term averaging to address emissions occurring when sulfur levels unintentionally exceed applicable flat or averaging limits; and (6) include other miscellaneous changes to improve consistency, flexibility, and enforceability. The hearing will be held June 14, 2007. Comments are due June 13, 2007. See http://www.arb.ca.gov/regact/2007/carfg07/notice.pdf
  • The Air Resources Board will conduct a public hearing to consider adopting amendments to the Emission Control and Smog Index Label regulation. The proposed amendments would revise the smog index in the existing Smog Index Label and establish a global warming index to be incorporated into that label. The meeting will be held June 21-22, 2007. Comments are due June 20, 2007. See http://www.arb.ca.gov/regact/2007/labels07/notice.pdf
  • The Air Resources Board will conduct a public hearing to consider the adoption of regulations for the certification and testing of gasoline vapor recovery systems installed at gasoline dispensing facilities using aboveground storage tanks. The hearing will be held June 21-22, 2007. Comments are due June 20, 2007. See http://www.arb.ca.gov/regact/2007/ast07/notice.pdf
  • The Air Resources Board will conduct a public hearing to consider the approval of Board staff's "Proposed State Strategy for California's SIP" to attain the NAAQS for eight-hour ozone and fine particulate matter. At the public hearing, the Board will also consider a modification to the current SIP commitment for pesticide emission reductions in the Ventura County nonattainment area. If adopted, the Board will submit these items to U.S. EPA for approval as revisions to the California SIP. The hearing will be held June 21-22, 2007. Comments are due June 20, 2007. See http://www.arb.ca.gov/regact/nonreg/sip07.pdf

Water:

COLORADO

Air:

  • The Air Quality Control Commission will hold a public rulemaking hearing to consider a proposal to modify the criteria for clean screening motor vehicles to permit the substitution of a low emitting vehicle index in lieu of one remote sensing clean screen reading. This modification is intended to improve the participation rate of the Clean Screen Program and further implement the legislative intent of HB06-1302 by improving the convenience of the inspection/maintenance program to the motorist. The hearing will be held June 21, 2007. Comments are due June 7, 2007. See http://www.cdphe.state.co.us/op/aqcc/aqccdown/junereg11notice.pdf

DELAWARE

Air:

Water:

  • The Department of Natural Resources and Environmental Control will hold public hearings on proposed rule 7 DE Admin. Code 7403, Pollution Control Strategy for the Indian River, Indian River Bay, Rehoboth Bay, and Little Assawoman Bay Watersheds, Delaware. The proposed strategy includes both voluntary and regulatory actions that need to be implemented in order to achieve the nitrogen and phosphorus load reductions required by the TMDLs for these watersheds. The proposed regulations would impact multiple sources of nutrients including point sources, stormwater, and onsite wastewater treatment and disposal systems. The meetings will be held June 13 and 14, 2007. Comments are due June 29, 2007. http://regulations.delaware.gov/register/may2007/proposed/10%20DE%20Reg%201671%2005-01-07.htm#P9_234 (p. 1671)

ILLINOIS

Air:

  • The Pollution Control Board will conduct a public hearing to consider proposed amendments to 35 Ill. Adm. Code Part 201.146, proposed amendments and additions to 35 Ill. Adm. Code Part 211, and proposed amendments and additions to 35 Ill. Adm. Code 217, all of which concern nitrogen oxide emissions. The hearing will be held May 27, 2007. Comments are due June 25, 2007. See http://www.cyberdriveillinois.com/departments/index/register/register_volume31_issue18.pdf (pp. 6559-6577, 6578-6596, and 6597-6628)

Hazardous and Solid Waste:

KENTUCKY

Air:

LOUISIANA

Hazardous and Solid Waste:

  • The Department of Environmental Quality has adopted an emergency rule to supplement the Expedited Penalty Agreement Rule, adding certain violations of the solid waste regulations to LAC 33:I.807 and amending LAC 33:VII.115 and 315 accordingly. The emergency rule is intended to abate delays that have occurred in correcting violations of the Environmental Quality Act concerning the unauthorized transporting, disposal, and/or burning of solid wastes. This rule became effective March 20, 2007. See http://www.doa.louisiana.gov/osr/reg/0704/0704emr.pdf (pp. 625-626)

MAINE

Fisheries:

  • The Department of Marine Resources adopted regulations in Chapter 25.96 based on a referendum response by Zone A members and a recommendation by the Zone A Lobster Management Council members in accordance with the provisions of 12 MRSA §6447(6). These regulations would establish two new requirements in Zone A. Apprentices who wish to enter Zone A must complete their apprenticeship in that zone, and sponsors of Zone A apprentices must have held a Class I, II, or III lobster and crab fishing license for at least 5 years. In accordance with 12 MRSA §6447(5-C)(C), paragraph 2, current apprentices are grandfathered for the length of the program that they began their apprenticeship in prior to the effective date of this regulation. This regulation became effective May 6, 2007. See http://www.maine.gov/sos/cec/rules/notices/2007/050907.htm

Water:

  • The Maine Department of Environmental Protection is soliciting public comment on proposed amendments to Chapter 529, General Permits for Certain Wastewater Discharges. This is a routine periodic update of an existing rule being done to maintain consistency with U.S. EPA's parallel regulations and to make various administrative changes. This chapter describes the regulatory requirements for issuance of general permits authorizing the discharge of certain pollutants to waters of the state. Comments are due May 25, 2007. See http://www.maine.gov/dep/blwq/rules/529_2007_notice.pdf

MARYLAND

Air:

  • The Maryland Department of the Environment will hold a public hearing on a SIP addressing the eight-hour ozone standard for the Baltimore nonattainment area.  The Baltimore nonattainment area includes Baltimore, Anne Arundel, Carroll, Howard, and Harford counties and Baltimore City. The hearing will be held May 22, 2007. Comments are due May 22, 2007. See http://www.mde.state.md.us/AboutMDE/reqcomments.asp#baltSIP
  • The Maryland Department of the Environment will hold a public hearing on a SIP addressing the eight-hour ozone standard for Cecil County, Maryland.  The Philadelphia Nonattainment Area (Philadelphia - Wilmington - Atlantic City ozone nonattainment region), which includes Cecil County, Maryland, has been designated nonattainment under the eight-hour ozone standard. The hearing will be held May 24, 2007. See http://www.mde.state.md.us/AboutMDE/reqcomments.asp#cecilSIP

MASSACHUSETTS

Water:

  • The Massachusetts Department of Environmental Protection is soliciting public comment on its proposed revisions to the Wetlands Protection Act Regulations, 310 CMR 10.00 (the "Wetlands Regulations") and the 401 Water Quality Certification for Discharge of Dredged or Fill Material, Dredging, and Dredged Material Disposal in Waters of the United States within the Commonwealth, 314 CMR 9.00 ("Water Quality Certification Regulations"). Hearings will be held May 1, 2, and 3, 2007. Comments are due May 14, 2007. See http://www.mass.gov/dep/public/hearings/wetwqcpn.htm

MINNESOTA

  • The Pollution Control Agency of the Environmental Analysis & Outcomes Division intends to adopt proposed permanent rules relating to air quality unless 25 or more persons request a hearing. The proposed amendments concern air quality performance standards, air emissions permits, emission inventory reporting, miscellaneous definitions, and incorporations by reference to be codified in Minnesota Rules Chapters 7002, 7005, 7007, 7011, 7017, and 7019. See http://www.comm.media.state.mn.us/bookstore/state_register.asp (pp. 1580-1604)

Fisheries:

Water:

  • The Department of Natural Resources will hold public hearings to consider the adoption of proposed permanent rules relating to drainage projects impacting state-owned lands in consolidated conservation areas. The hearing will be held June 26, 27, and 28, 2007. See http://www.comm.media.state.mn.us/bookstore/state_register.asp (p. 1541-1544)

NEW MEXICO

Water:

  • The New Mexico Water Quality Control Commission will hold a public hearing on a proposed variance from certain provisions of 20.6.2.3109 NMAC: Ground and Surface Water Protection for the Lee Hill leaching and stockpiling operations conducted by the Chino Mines Company. The hearing will be conducted May 22, 2007. See http://www.nmenv.state.nm.us/indx_tb2ns.htm

NORTH CAROLINA

Hazardous and Solid Waste:

  • The Department of Environment and Natural Resources has amended 15A NCAC 13A .0106, Identification and Listing of Hazardous Wastes, Part 261. The amendments became effective April 1, 2007. See http://www.ncoah.com/rules/register/ (p. 1927)

Water:

  • The Department of Environment and Natural Resources has amended 15A NCAC 07H .0306, General Use Standards for Ocean Hazard Areas. The amendments became effective April 1, 2007. See http://www.ncoah.com/rules/register/ (pp. 1925-1927)

OHIO

Air:

  • The Ohio Environmental Protection Agency will conduct a public hearing on proposed new OAC rules 3745-112-01 to 3745-112-08 - "Consumer Products." These new rules concern the control of volatile organic compound (VOC) emissions from consumer products. The hearing will be held June 12, 2007. Comments are due June 12, 2007. See http://www.registerofohio.state.oh.us/pdfs/phn/3745_NO_36673_20070504_0837.pdf

OREGON

Water:

  • The Department of State Lands will conduct a public hearing on proposed adoptions of 141-140-0010 to 141-140-0130, Rules Governing Placement of Ocean Energy Conversion Devices Within the Territorial Sea. The proposed rules apply to: (1) ocean energy monitoring equipment and ocean energy conversion devices placed on or over state-owned submerged and submersible land in the Territorial Sea for a research project, demonstration project, or commercial operation; and (2) all associated buoys, anchors, energy collectors, cables, control and transmission lines, and other equipment that are a necessary component of an energy conversion device research project, demonstration project, or commercial operation. These rules establish a process for authorizing ocean energy research projects, demonstration projects, and commercial operations through the granting of temporary use permits and ocean energy facility licenses. The hearing will be conducted June 27, 2007. Comments are due July 31, 2007. See http://arcweb.sos.state.or.us/rules/0507_Bulletin/0507_rulemaking_bulletin.html

RHODE ISLAND

Air:

  • The Department of Environmental Management will conduct a public hearing regarding proposed Air Pollution Control Regulation No. 45, Rhode Island Diesel Engine Anti-Idling Program, and amendments to the SIP. The hearing will be held June 15, 2007. Comments are due June 15, 2007. See http://www.dem.ri.gov/programs/benviron/air/drft4507.htm

VIRGINIA

Air:

  • The Department of Environmental Quality held a public hearing on April 26, 2007, on a proposed CAA §111(d) plan for mercury emissions from coal-fired electric steam generating units. This plan is intended to meet the requirements of the federal Clean Air Mercury Rule. The proposed plan includes: (1) demonstration of legal authority; (2) emission limitations consisting of a cap-and-trade program; (3) an inventory of emissions from the affected units; (4) the allowance allocations to the units covered by the cap-and-trade program; and (5) other supporting documentation. The department is seeking comment on the overall plan and on the issue of whether any regulations included in the plan should be submitted to U.S. EPA as part of the plan. See http://www.townhall.state.va.us/meeting/ViewMeeting.cfm?Meeting_ID=9093

WASHINGTON

Hazardous and Solid Waste:

  • The Department of Ecology is beginning rulemaking to amend and propose new language in Chapter 173- 900 WAC, Electronic Product Recycling Program, to implement chapter 70.95N RCW, passed by the 2006 legislature. This is Phase 2 of the rulemaking and will focus on writing rules to implement the portions of the law that were not addressed in phase 1 such as: more details on recycling plans; requirements for manufacturers, retailers, collectors, transporters, and plan implementers; performance standards for processors; and warnings, penalties, and violations associated with these requirements. A hearing will be held May 15, 2007. Comments are due May 22, 2007. See http://www.ecy.wa.gov/laws-rules/activity/wac173900.html

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

INTERNATIONALDESTRUCTIVE FISHING PRACTICE BANNED IN SOUTH PACIFIC Twenty South Pacific nations have agreed upon a collective prohibition on bottom-trawling in the deep seas of the South Pacific. Bottom-trawling, a fishing practice in which a boat drags a heavy net across the ocean floor, can crush coral reefs and severely damage marine life.  The agreement bans bottom-trawling in sensitive marine ecosystems unless an impact assessment has been performed and fishermen adopt precautionary measures to prevent excess damage.Individual bottom-trawler fishing boats will bear the costs of complying with the new regulations. The multinational meeting in Reñaca, Chile, follows a December resolution by the United Nations General Assembly to implement strong "precautionary measures" for bottom-trawling.The agreement becomes effective September 30, 2007. See http://news.bbc.co.uk/2/hi/science/nature/6627425.stmFOREST GIVEAWAY ANGERS UGANDANS, CONCERNS CONSERVATIONISTS The Ugandan government has proposed to give 7,100 hectares of Mabira Forest, a nature reserve since 1932, to a sugarcane grower known as the Mehta Group.  President Yoweri Museveni has defended his decision, citing the potential for sugarcane jobs and tax revenue.  The president's offer has sparked anger and protest among Ugandans, particularly those whose water, food, medicine, and livelihoods are derived from the forest.In addition, experts have expressed concern that several species endemic to Mabira and the surrounding forests would face risk of extinction if their habitat were converted to sugarcane plantations.See http://www.reuters.com/article/latestCrisis/idUSL04491539

JAPAN TO LIMIT EMISSIONS IN URBAN AREAS

On Friday, the Japanese legislature passed new regulations to cut nitrogen oxide emissions from vehicles, particularly near metropolitan theaters, hotels, and offices. The new law requires that potential builders estimate the air pollution impact of their buildings and take measures such as planning shuttle services to reduce emissions from traffic. In addition, local governments must now act to cut automobile emissions by addressing vehicle congestion in large cities. Previously, only trucking and transportation companies were required to estimate and submit plans to reduce nitrous oxide emissions in Japan. See http://www.enn.com/today.html?id=12747

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

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