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Weekly Update Volume 37, Issue 17

06/11/2007

LITIGATION

CAA, NITROGEN OXIDE:

The D.C. Circuit upheld an EPA rule that increased the stringency of nitrogen oxide emission standards applicable to newly certified commercial aircraft gas turbine engines under CAA §231. Although the final rule tightens EPA regulations by 16%, almost all aircraft already satisfy this requirement by virtue of their compliance with international standards. A national trade association filed suit, asserting that EPA's interpretation of §231 to allow codification of current practices rather than requiring a technology-forcing approach constitutes an impermissible construction of the Act because it allows EPA to promulgate a rule that will not actually effect an emissions reduction. The association, however, failed to raise three of its arguments with "reasonable specificity" in the proceedings before EPA. Those arguments, therefore, are waived. And the association's fourth claim--that EPA did not adequately explain its refusal to extend the 16% reduction to newly manufactured engines of already certified models--lacks merit. The final rule's deviation from past practice is supported by reasoned decisionmaking. National Ass'n of Clean Air Agencies v. Environmental Protection Agency, No. 06-1023, 37 ELR 20126 (D.C. Cir. June 1, 2007) (17 pp.).

FISHERIES, LEATHERBACK SEA TURTLES:

The D.C. Circuit upheld NOAA-Fisheries' longline fishing regulations for the Atlantic fishery. In a 2001 biological opinion, NOAA-Fisheries determined that longline fishing was likely to jeopardize the continued existence of leatherback sea turtles. It therefore included a "reasonable and prudent alternative" (RPA) in the opinion to avoid jeopardy to leatherbacks while allowing longline fishermen to continue their operations. In 2004, NOAA-Fisheries issued a new biological opinion and RPA. As a result, NOAA-Fisheries expects the 2007 post-release mortality rate to be 13.1 percent. According to the agency, the total estimated mortality of sea turtles would be brought down from about 264 per year in 2004 to about 77 per year starting in 2007 and continuing indefinitely. An environmental group filed suit, arguing that NOAA-Fisheries acted arbitrarily when it predicted that the measures it was putting in place would result in a 13.1 percent mortality rate by 2007. The group's objection is directed not at the RPA's goal of reducing the post-release mortality to 13.1 percent, but at the agency's determination that the goal could be achieved. Agencies, however, make predictive judgments like this all the time. Here, NOAA-Fisheries' judgments are reasonable. The lower court, therefore, properly dismissed the group's claim. Oceana, Inc. v. Gutierrez, No. 05-5448, 37 ELR 20124 (D.C. Cir. June 1, 2007) (11 pp.).

PROPERTY LAW, EASEMENTS:

The Third Circuit vacated a lower court judgment enjoining two power companies from removing trees along a street so that they could inspect and maintain three underground, high-pressure, natural gas pipelines. There are genuine issues of material as to whether removal of the trees is reasonably necessary to the maintenance of the pipelines and whether the companies are barred by the doctrine of laches from asserting a right to remove the trees pursuant to an easement grant. Hence, the lower court's judgment was vacated and the case was remanded for further proceedings. Township of Piscataway v. Duke Energy, No. 05-4521, 37 ELR 20025 (3d Cir. June 6, 2007) (23 pp.).

TAKINGS, RIPENESS:

The Sixth Circuit held that under Ohio law, a landowner must exhaust his state remedies before proceeding with his takings claim against a county in federal court. Although Ohio does not have an inverse condemnation statutory cause of action, the owner has not filed a trespass action, a mandamus action, or indeed any action at all with the Ohio state courts. Nor is there any reason to believe, except based on the owner's alleged theories, that a taking attributable to county has actually occurred. And given the nature of the owner's takings allegations--which are quite novel in their assertion that the county's development policies have somehow appropriated to the public good what was formerly an entirely private rainwater drainage system--it would seem eminently reasonable for the state courts to be given first crack at this puzzle. River City Capital, L.P. v. Board of County Commissioners, No. 05-4331, 37 ELR 20132 (6th Cir. June 6, 2007) (8 pp.).

PROPERTY LAW, FLOODING:

The Supreme Court of Connecticut upheld a lower court decision dismissing a developer's appeal of a state administrative order directing him to remedy deficiencies in a dam and an associated detention basin in Naugatuck. The agency commissioner properly acted within his statutory authority in issuing the order. Prior to issuing the order, he inspected the dam and found it to be in an unsafe condition. In addition, the commissioner properly declined to impose liability against certain easement holders of the property. There is insufficient evidence to conclude that they had accepted the easement granted to them by the developer. Even if they had accepted the easement, that fact would serve only to subject them to liability, not necessarily to relieve the developer from liability. Last, the commissioner properly assigned liability to the developer in his individual capacity. Any burden the corporate officer doctrine imposes upon real estate developers is sufficiently outweighed by the benefit of safe dams that it confers upon the public. Celentano v. Rocque, No. SC 17703, 37 ELR 20127 (Conn. June 12, 2007) (19 pp.).

PROPERTY LAW, WETLANDS, PERMITS:

The Supreme Court of Connecticut held that a lower court improperly ordered the state wetlands commission to issue an inland wetlands permit to a developer. Although the record lacks substantial evidence to support the commission's denial of the developer's application, approving the application is not, as a matter of law, the only conclusion that the commission reasonably could reach. The lower court should have remanded the case to the commission for further proceedings on the developer's application. Toll Brothers, Inc. v. Inland Wetlands Commission of Bethel, No. AC 27652, 37 ELR 20128 (Conn. June 5, 2007) (6 pp.).

WASTEWATER TREATMENT PLANT, SOVEREIGN IMMUNITY:

The Texas Supreme Court held that recent legislative enactments waive, with certain limitations, immunity from suit for contract claims against local government entities. Hence, the court reversed and remanded lower court decisions denying a city's plea to jurisdiction in a case involving disputes surrounding a contract to build a wastewater treatment plant. City of Pasadena v. Kinsel Industries, Inc., No. 06-0353, 37 ELR 20131 (Tex. June 1, 2007) (2 pp.).

NEW JERSEY SPILL COMPENSATION AND CONTROL ACT, NATURAL RESOURCE DAMAGES:

A New Jersey appellate court, in a matter of first impression, held that an entity may be strictly liable under the New Jersey Spill Compensation and Control Act for damages for the "loss of use" of natural resources adversely affected by its discharge of hazardous substances. The case arose after the state filed suit against an oil company under the Spill Act. The oil company did not dispute that it was strictly liable for the costs of physical restoration of natural resources damaged or destroyed by its discharge of hazardous substances. It also acknowledged that "loss of use" damages are available to the state under common law and other state statutes. The only issue, therefore, was whether the Spill Act affords the state the same relief. The Spill Act provides for strict joint and several liability, without regard to fault, "for all cleanup and removal costs no matter by whom incurred." The definition of "cleanup and removal cost" includes costs "incurred" to "mitigate damage to the public . . . welfare." The court concluded that "loss of use" damages are a component of costs of mitigating damage to public natural resources. The court also found a clear legislative recognition of the state's authority to seek compensation not just for physical injury to natural resources, but also for the loss of the benefits they provide. The court, therefore, reversed and remanded a lower court decision dismissing on summary judgment the state's statutory claim against an oil company to recover such natural resource damages. New Jersey Department of Environmental Protection v. Exxon Mobil Corp., No. A-6588-05T5, 37 ELR 20129 (N.J. Super. Ct. App. Div. June 6, 2007) (33 pp.).

INSURANCE LAW, POLLUTION EXCLUSION:

A Minnesota appellate court held that an insurance company had no duty to defend or indemnify a pig owner in an underlying lawsuit brought by his neighbor claiming injury and damage from manure odors. The neighbor's complaint fell squarely within the insurance policy's pollution exclusion, which only applied to pollution of the atmosphere, not to pollution of the air inside the neighbor's home. Here, the complaint did not allege damage from pollution that originated from within the neighbor's home; the complaint was based on pollution released directly into the atmosphere that indirectly affected the inside of their house. Hence, the lower court properly granted summary judgment in favor of the insurer. Wakefield Pork, Inc. v. RAM Mutual Insurance Co., No. A06-847, 37 ELR 20130 (Minn. App. May 15, 2007) (5 pp.).

FIFRA, PENALTY ASSESSMENT:

The EPA Environmental Appeals Board upheld an administrative law judge's (ALJ's) $235,290 penalty assessment against a company for distributing and selling an unregistered pesticide in violation of FIFRA. Although the Board is troubled by some aspects of the ALJ's penalty analysis, it declined to vacate the ALJ's analysis where, as here, the parties have agreed on the outcome, where the ALJ prepared an alternative analysis under the FIFRA Enforcement Response Policy that produces essentially the same result that neither party has appealed, and where the ALJ's determination will have a limited effect on future cases. In re Rhee Brothers, Inc., FIFRA Appeal No. 06-02, 37 ELR 41309 (EPA EAB May 17, 2007) (17 pp.).

RCRA, PENALTY ASSESSMENT:

The EPA Environmental Appeals Board upheld a $309,091 penalty assessment against a company for shipping used potassium hydroxide (KOH) to a fertilizer manufacturer in violation of RCRA. The used KOH that the company sent to the fertilizer manufacturer was "spent material." Hence, it is a hazardous waste under RCRA. In addition, the company failed to prove that it had not received fair notice of the regulations. EPA has over time consistently interpreted spent material--an interpretation that was discernable by members of the regulated community. In re Howmet Corp., RCRA (3008) Appeal No. 05-04, 37 ELR 41310 (EPA EAB May, 24 2007) (52 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, in response to comments received on its notice of reconsideration regarding phase 2 of the final rule to implement the eight-hour ozone NAAQS, changed the deadline for states in the Clean Air Interstate Rule (CAIR) region to submit electric generating unit nitrogen oxide (NOx) reasonably available control technology (RACT) SIPs for moderate and above subpart 2 ozone nonattainment areas; in addition, the Agency modified its guidance on the issue of NOx RACT for electric generating units in CAIR states. 72 FR 31727 (6/8/07).
  • EPA proposed to refine the PSD increment modeling procedures to clarify how states and regulated sources may calculate increases in concentrations of pollutants. 72 FR 31371 (6/6/07).
  • EPA determined that the Phoenix nonattainment area in Arizona, the Owens Valley nonattainment area in California, and the tribal areas therein did not attain the 24-hour NAAQS for particulate matter with a diameter of 10 microns or less (PM10) by the December 31, 2006, deadline; Arizona and California must submit plan provisions that provide for attainment of the 24-hour PM10 NAAQS and that achieve 5% annual reductions in PM10 or PM10 precursor emissions by December 31, 2007. 72 FR 31183 (6/6/07).
  • SIP Approvals: Connecticut (motor vehicle emission budgets for transportation conformity purposes) 72 FR 31069 (6/5/07). Pennsylvania (volatile organic compound (VOC) and NOx RACT determinations for five major sources) 72 FR 31749 (6/8/07). Texas (negative declaration) 72 FR 31457 (6/7/07).
  • SIP Proposals: Arizona (reassessment of best available control measure and most stringent measure demonstrations) 72 FR 31778 (6/8/07). Nevada (permits for stationary sources) 72 FR 31781 (6/8/07). Pennsylvania (ozone redesignation request, maintenance plan, 2002 base-year inventory) 72 FR 31495 (6/7/07). Texas (negative declaration; see above for direct final rule) 72 FR 31492 (6/7/07). Virginia (open burning regulation amendments) 72 FR 31493 (6/7/07).

HAZARDOUS & SOLID WASTE:

  • EPA granted a petition submitted by the Ford Motor Company Kansas City Assembly Plant to exclude (or delist) a wastewater treatment plant sludge generated by Ford in Claycomo, Missouri, from the lists of hazardous wastes. 72 FR 31185 (6/6/07).
  • EPA proposed to authorize changes to Ohio's hazardous waste program under RCRA. 72 FR 31237 (6/6/07).

PESTICIDES:

  • EPA sought review of draft risk management evaluations and risk profiles for certain chemicals proposed for addition under the Stockholm Convention on Persistent Organic Pollutants. 72 FR 30796 (6/4/07).

TOXIC SUBSTANCES:

  • EPA proposed to add child-occupied facilities to the buildings covered by the Agency's January 10, 2006 (71 FR 1587), proposal to reduce exposure to lead hazards created by renovation, repair, and painting activities that disturb lead-based paint in target housing. 72 FR 31022 (6/5/07).

WATER:

  • EPA issued a final NPDES general permit for the Western Portion of the outer continental shelf of the Gulf of Mexico that authorizes discharges from new sources, existing sources, and new dischargers in the offshore subcategory of the oil and gas extraction point source category. 72 FR 31575 (6/7/07).
  • EPA issued an NPDES general permit 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 the state. 72 FR 31579 (6/7/07).

WILDLIFE:

  • FWS proposed new permit regulations to authorize the take of bald and golden eagles under the Bald and Golden Eagle Protection Act; in addition, the agency proposed regulatory provisions to provide take authorization to ESA §10 permittees who continue to operate in full compliance with the terms and conditions of their existing permits. 72 FR 31141 (6/5/07).
  • FWS announced a 90-day finding on a petition to remove the Bliss Rapids snail from the list of endangered and threatened wildlife; the agency found that the petition may be warranted and, therefore, issued a status review of the species. 72 FR 31250 (6/6/07).
  • FWS announced a 90-day finding on a petition to list the yellow-billed loon as threatened or endangered under the ESA; the agency found that the petition may be warranted and, therefore, will begin a status review of the species. 72 FR 31256 (6/6/07).
  • FWS announced a 90-day finding on a petition to remove the Utah (desert) valvata snail from the list of endangered and threatened wildlife; the agency found that the petition may be warranted, and, therefore, initiated a status review of the species. 72 FR 31264 (6/6/07).
  • FWS announced the availability of the final comprehensive conservation plan for Mingo, Ozark Cavefish, and Pilot Knob National Wildlife Refuges in Missouri. 72 FR 30818 (6/4/07).
  • FWS announced the availability of a final recovery plan for the Chiricahua leopard frog. 72 FR 30820 (6/4/07).

DOJ NOTICES OF SETTLEMENT:

  • United States v. Brown, No. 4:05-3586-RBH (D.S.C. May 25, 2007). A settling CERCLA defendant must pay $140,000 in partial reimbursement of response costs incurred at the Henry Wood Superfund site near Hemingway, South Carolina. 72 FR 31608 (6/7/07).
  • United States v. Capital Tax Corp., No. 04-cv-04138 (N.D. Ill. May 22, 2007). Settling CERCLA defendants must pay $330,000 in past response costs to resolve claims related to the removal action at the National Lacquer and Paint Superfund site in Chicago, Illinois. 72 FR 31608 (6/7/07).
  • United States v. General Motors Corp., No. 3:07CV239RL (N.D. Ind. May 21, 2007). Settling CERCLA defendants that disposed of hazardous waste at the Lakeland Disposal Service, Inc., Superfund site in Kosciusko County, Indiana, must pay $1.12 million in past response costs, $50,000 in assessment costs, and $200,000 into the Natural Resource Damage Assessment and Restoration Fund to fund DOI and state co-trustee sponsored restoration projects. 72 FR 31608 (6/7/07).
  • United States v. Linder & Assocs., No. 07-3152 MMM (C.D. Cal. May 14, 2007). A settling Residential Lead-Based Paint Hazard Reduction Act defendant must pay an administrative penalty of $7,700 to the United States, must pay $2,300 in costs to the state of California, must certify that it is complying with residential lead paint notification requirements, must inspect 254 studio units within 30 days of entry of the consent decree, must abate any lead found to be in fair or deteriorating condition and apply interim controls to any paint found to be in intact condition, and must replace all window units in every unit found to contain lead to settle claims related to certain residential properties located in Inglewood, Los Angeles, North Hills, and Victorville, California. 72 FR 31609 (6/7/07).

GUIDANCE DOCUMENTS:

  • EPA and U.S. Army Corps of Engineers issued agency guidance regarding CWA jurisdiction following the U.S. Supreme Court's decision in the consolidated cases of Rapanos v. United States and Carabell v. United States. 72 FR 31824 (6/8/07) (available from the ELR Guidance & Policy Collection, ELR Order No. AD03050).
  • EPA announced the availability of a draft guidance for pesticide registrants entitled, Guidance for Antimicrobial Pesticide Products With Anthrax-Related Claims. 72 FR 31325 (6/6/07).

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

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

COMMITTEE ACTION:

  • S. 1142 (Coastal and Estuarine Land Protection Act) was reported by the Committee on Commerce, Science, and Transportation. S. Rep. No. 110-78, 153 Cong. Rec. S7070 (daily ed. June 5, 2007). The bill would authorize the acquisition of interests in undeveloped coastal areas in order better to ensure their protection from development.

BILLS INTRODUCED:

  • S. 1541 (Vitter, R-La) (hazard mitigation) would allow for expanded uses of funding allocated to Louisiana under the hazard mitigation program while preserving the goals of the program to reduce future damage from disasters through mitigation. 153 Cong. Rec. S7070 (daily ed. June 5, 2007). The bill was referred to the Committee on Homeland Security and Governmental Affairs.
  • S. 1543 (Bingman, D-N.M.) (energy) would establish a national geothermal initiative to encourage increased production of energy from geothermal resources. 153 Cong. Rec. S7070 (daily ed. June 5, 2007). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 1554 (Collins, R-Me.) (climate change) would comprehensively address challenges relating to energy independence, air pollution, and climate change facing the United States. 153 Cong. Rec. S7177 (daily ed. June 6, 2007). The bill was referred to Committee on Finance.
  • S. 1562 (Biden, D-Del.) (fluorescent lights) would direct the Secretary of Energy to provide grants to states for the distribution of compact fluorescent lights. 153 Cong. Rec. S7332 (daily ed. June 7, 2007). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 1566 (Inhofe, R-Okla.) (Oil Pollution Act) would amend the Oil Pollution Act of 1990 to improve that Act. 153 Cong. Rec. S7332 (daily ed. June 7, 2007). The bill was referred to the Committee on Environment and Public Works.
  • S. 1567 (Klobuchar, D-Minn.) (renewable portfolio standard) would amend the Public Utility Regulatory Policies Act of 1978 to provide a renewable portfolio standard. 153 Cong. Rec. S7332 (daily ed. June 7, 2007). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 1578 (Inouye, D-Haw.) (ballast water) would amend the Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990 to establish vessel ballast water management requirements. 153 Cong. Rec. S7333 (daily ed. June 7, 2007). The bill was referred to the Committee on Commerce, Science, and Transportation.
  • S. 1579 (Snowe, R-Me.) (CZMA) would amend the Coastal Zone Management Act. 153 Cong. Rec. S7333 (daily ed. June 7, 2007). The bill was referred to the Committee on Commerce, Science, and Transportation.
  • S. 1580 (Inouye, D-Haw.) (Coral Reef Conservation Act) would reauthorize the Coral Reef Conservation Act of 2000. 153 Cong. Rec. S7333 (daily ed. June 7, 2007). The bill was referred to the Committee on Commerce, Science, and Transportation.
  • S. 1581 (Lautenberg, D-N.J.) (ocean acidification) would establish an interagency committee to develop an ocean acidification research and monitoring plan and to establish an ocean acidification program within NOAA. 153 Cong. Rec. S7333 (daily ed. June 7, 2007). The bill was referred to the Committee on Commerce, Science, and Transportation.
  • S. 1583 (Inouye, D-Haw.) (coral reef conservation) would reauthorize the Coral Reef Conservation Act of 2000. 153 Cong. Rec. S7333 (daily ed. June 7, 2007). The bill was referred to the Committee on Commerce, Science, and Transportation.
  • H.R.2 614 (Calvert, R-Cal.) (water projects) would amend the Reclamation Wastewater and Groundwater Study and Facilities Act to authorize the Secretary of the Interior to participate in certain water projects in California. 153 Cong. Rec. H6179 (daily ed. June 7, 2007). The bill was referred to the Committee on Natural Resources.
  • H.R. 2618 (Hirono, D-Haw.) (National Park System) would direct the Secretary of the Interior to study the suitability and feasibility of designating certain lands along the northern coast of Maui, Hawaii, as a unit of the National Park System. 153 Cong. Rec. H6180 (daily ed. June 7, 2007). The bill was referred to the Committee on Natural Resources.
  • H.R. 2619 (Johnson, R-Ill.) (ethanol) would direct the Secretary of Transportation to make a grant for the establishment and operation of an ethanol anti-idling power unit research program. 153 Cong. Rec. H6180 (daily ed. June 7, 2007). The bill was referred to the Committee on Science and Technology.
  • H.R. 2625 (Pallone, D-N.J.) (Atlantic striped bass) would prohibit the commercial harvesting of Atlantic striped bass in the coastal waters and the exclusive economic zone. 153 Cong. Rec. H6180 (daily ed. June 7, 2007). The bill was referred to the Committee on Natural Resources.
  • H.R. 2632 (Udall, D-N.M.) (Sabinoso Wilderness Area) would establish the Sabinoso Wilderness Area in San Miguel County, New Mexico. 153 Cong. Rec. H6180 (daily ed. June 7, 2007). The bill 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 Nebraska North Carolina Rhode Island Idaho New Jersey Ohio South Carolina Missouri New Mexico Oklahoma Washington Montana New York Oregon West Virginia

CALIFORNIA

Air:

  • The Air Resources Board will hold a public workshop to obtain input from interested stakeholders and members of the public on the revised draft indoor air cleaning device regulation and preliminary economic impact assessments. California Assembly Bill 2276 (2006, Pavley), signed by Governor Schwarzenegger in September 2006, directs the Air Resource Board to develop and adopt a regulation to limit the ozone emitted from indoor air cleaning devices in order to protect public health. Draft rules are available at http://www.arb.ca.gov/research/indoor/aircleaners/proposed_reg_order_6-5-07.pdf. The hearing will be held June 11, 2007. See http://www.arb.ca.gov/research/indoor/aircleaners/aircleaners.htm
  • The Air Resources Board will conduct a public hearing to consider 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 hearing will be held June 21 and 22, 2007. See http://www.arb.ca.gov/regact/2007/labels07/notice.pdf

Toxic Substances:

  • The Office of Environmental Health Hazard Assessment of the California Environmental Protection Agency is adding iprovalicarb (CAS No. 140923-17-7 and 140923-25-7) to the list of chemicals known to the state to cause cancer for purposes of the Safe Drinking Water and Toxic Enforcement Act of 1986 (Health and Safety Code §25249.5 et seq., commonly known as Proposition 65). The listing of iprovalicarb is effective June 1, 2007. See http://www.oal.ca.gov/pdfs/notice/22z-2007.pdf (pp. 950-951)
  • The California Environmental Protection Agency's Office of Environmental Health Hazard Assessment will conduct a public workshop on the Draft Interpretive Guideline for Hand-To-Mouth Transfer of Lead Exposure from Fishing Tackle Products. The workshop will be held August 1, 2007. See http://oehha.org/prop65/CRNR_notices/pbtxfr053107.html

Water:

  • The State Water Resources Control Board will hold a public workshop regarding suction dredge mining. The purpose of this workshop is to accept public comments regarding the effects of suction dredge mining on water quality. Comments should be limited to the water quality concerns associated with suction dredge mining. The hearing will be held June 12, 2007. Comments are due June 22, 2007. See http://www.waterboards.ca.gov/cwa401/docs/suctiondredge/pn_workshop_suction.pdf

IDAHO

Toxic Substances:

  • The Department of Environmental Quality will conduct a public hearing on proposed Rule No. 58.01.24, Standards and Procedures for Application of Risk Based Corrective Action at Chemical Release Site. The text of the rule will be developed by the Department in conjunction with a negotiating committee made up of persons having an interest in the promulgation of these rules. Cities, counties, bankers, lenders, realtors, petroleum marketers, consultants, and members of the public may be interested in participating in this rulemaking. The hearing will be held June 21, 2007. Comments are due June 29, 2007. See http://adm.idaho.gov/adminrules/bulletin/bul/07jun.pdf

Land Use:

  • The Idaho Department of Lands will conduct public hearings on proposed Rule No. 20.03.17, Rules Governing Leases on State-Owned Submerged Lands and Formerly Submerged Lands. The Department is initiating this rulemaking to provide continuity with IDAPA 20.03.04 and to address significant issues created by development pressure and escalating resource demands. The issues to be addressed by this rulemaking include, but are not limited to, changing definitions to match those of IDAPA 20.03.04, clarifying the definitions of commercial and community marinas, and specifying what types of rental rates should be used. The hearings will be held June 12 and 13, 2007. See http://adm.idaho.gov/adminrules/bulletin/bul/07jun.pdf (p. 78)

MISSOURI

Air:

  • The Air Conservation Commission adopted amendments to Air Quality Standards and Air Pollution Control Rules Specific to the Kansas City Metropolitan Area. Amended rules include 10 CSR 10-2.070, Restriction of Emission of Odors, and 10 CSR 10-2.390, Kansas City Area Transportation Conformity Requirements. See http://www.sos.mo.gov/adrules/moreg/current/2007/v32n11/v32n11c.pdf (pp. 912-918)
  • The Air Conservation Commission adopted amendments to 10 CSR 10-3.090, Restriction of Emission of Odors in the Air Pollution Control Rules Specific to the Outstate Missouri Area. See http://www.sos.mo.gov/adrules/moreg/current/2007/v32n11/v32n11c.pdf (p. 918)
  • The Air Conservation Commission adopted amendments to 10 CSR 10-4.070, Restriction of Emission of Odors in the Air Quality Standards and Air Pollution Control Regulations for the Springfield-Greene County Area. See http://www.sos.mo.gov/adrules/moreg/current/2007/v32n11/v32n11c.pdf (pp. 918-919)
  • The Air Conservation Commission adopted amendments to Air Quality Standards and Air Pollution Control Rules Specific to the St. Louis Metropolitan Area. Amended rules include 10 CSR 10-5.160, Control of Odors in the Ambient Air, and 10 CSR 10-5.480, St. Louis Area Transportation Conformity Requirements. See http://www.sos.mo.gov/adrules/moreg/current/2007/v32n11/v32n11c.pdf (pp. 919-925)

Fisheries:

  • The Department of Conservation amended 3 CSR 10-6.410, Fishing Methods, by rescinding a season for hand fishing in Missouri. Additionally, the Department rescinded 3 CSR 10-6.511, Experimental Catfish Hand Fishing Season, Methods, Limits, by rescinding a season for hand fishing in Missouri. These rules became effective May 7, 2007. See http://www.sos.mo.gov/adrules/moreg/current/2007/v32n11/v32n11c.pdf (p. 911)

Toxic Substances:

  • The Petroleum Storage Tank Insurance Fund Board of Trustees adopted amendments to numerous rules, including 10 CSR 100-2.010, Definitions; 10 CSR 100-4.010, Participation Requirements for Underground Storage Tanks; and 10 CSR 100-4.020, Participation Requirements for Aboveground Storage Tanks. Additionally, the Board withdrew 10 CSR 100-5.010, Claims for Cleanup Costs. See http://www.sos.mo.gov/adrules/moreg/current/2007/v32n11/v32n11c.pdf (pp. 925-926).

MONTANA

Water:

NEBRASKA

General:

  • The Department of Natural Resources will conduct a public hearing on proposed amendments to Title 256, Chapter 2, Section 7, and Title 256, Chapter 4, Section 1, Administration of the Resources Development Fund. The amendments provide for new priority ranking at the project proposal and fund allocation stages of project approval. The hearing will be held June 11, 2007. See http://www.sos.state.ne.us/business/regtrack/details.cgi?proposal_id=0000000000000391

NEW JERSEY

Hazardous Wastes & Substances:

  • The Department of Environmental Quality held a public hearing on proposed minimum remediation standards for groundwater, surface water, and soil under the Brownfield and Contaminated Site Remediation Act, N.J.S.A. 58:10B-12(a). Remediation standards for soil are proposed at new N.J.A.C. 7:26D-4. The Department proposes to recodify with amendments the existing remediation standards for surface water and groundwater from the Technical Rules at N.J.A.C. 7:26E-1.13 to the proposed new remediation standards rules at N.J.A.C. 7:26D-2 and 3, respectively. The hearing was held June 7, 2007. Comments are due July 6, 2007. See http://www.nj.gov/dep/rules/notices/050707a.htm

Water:

  • The Department of Environmental Quality seeks public comment on the readoption of the Water Supply Loan Programs rules. The existing rules govern loans made to publicly owned community water supply systems so they can rehabilitate or repair antiquated, obsolete, damaged, or inadequately operating water facilities; connect unconnected or inadequately connected water systems; rehabilitate, repair, or construct new drinking water treatment facilities; or build water supply facilities or public water systems to address groundwater contamination problems. Comments are due August 17, 2007. See http://www.nj.gov/dep/rules/notices/061807a.htm

NEW MEXICO

Water:

  • The Water Quality Control Commission will hold a public hearing on proposed amendments to WQCC 06-11 (R), Changing the Standards for Interstate and Intrastate Surface Waters (anti-degradation). The hearing will be held June 12, 2007. See http://www.nmenv.state.nm.us/wqcc/Agendas/06-12-07.pdf

NEW YORK

Fisheries:

  • The Department of Environmental Conservation amended Parts 10, 35, and 188 of Title 6 NYCRR, concerning the possession and personal use of bait fish, taking bait fish for commercial purposes, and fish health inspection requirements. The intent of the amendments is to prevent the spread of viral hemorrhagic septicemia virus sylvania (VHS) in New York, to protect New York’s fish resources, and to prevent negative effects to the state's economy. The rules became effective June 6, 2007. See http://www.dos.state.ny.us/info/register/2007/jun6/pdfs/rules.pdf (pp. 7-13)

NORTH CAROLINA

Air:

Fisheries:

  • The Department of Environment and Natural Resources will hold public hearings on its intention to adopt rules cited as 15A NCAC 03N .0106 and 03R .0115, to amend the rules cited as 15A NCAC 03I .0101; 03J .0103, .0107, and .0209; 03M .0205 and .0513; 03N .0101 and .0103; and 03O .0501 and .0503; and to repeal the rule cited as 15A NCAC 03N .0102. These rules concern numerous topics of fisheries regulation of particular concern to the striped bass fishery. The hearings will be held June 19, 20, 21, and 25, 2007. Comments are due July 31, 2007. See http://www.ncoah.com/rules/register/Volume21Issue23June12007.pdf (pp. 2061-2077)

Water:

OHIO

Water:

OKLAHOMA

Toxic Substances:

Water:

  • The Department of Environmental Quality adopted amendments to Chapter 606, Oklahoma Pollutant Discharge Elimination System Standards; Chapter 611, General Water Quality; Chapter 616, Industrial Wastewater Systems; Chapter 623, Pretreatment for Central Treatment Trusts; Chapter 626, Public Water Supply Construction Standards; Chapter 631, Public Water Supply Operation; and Chapter 690, Water Quality Standards Implementation. The amendments become effective June 15, 2007. See http://www.oar.state.ok.us/register/Volume-24_Issue-18.htm#a106012

OREGON

Water:

  • The Department of State Lands will hold a public hearing on the proposed adoption of 141-140-0010 through 141-140-0130, Rules Governing Placement of Ocean Energy Conversion Devices Within the Territorial Sea. These rules apply to 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. 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 held June 28, 2007. Comments are due July 31, 2007. See http://arcweb.sos.state.or.us/rules/0607_Bulletin/0607_rulemaking_bulletin.html

RHODE ISLAND

Air:

  • The Department of Environmental Management will hold a public hearing on amendments to the Regulations for Underground Storage Facilities Used for Petroleum Products and Hazardous Materials. The proposed amendments are intended to meet the requirements of the Federal Energy Act, Title XV, Ethanol and Motor Fuels, Section 1527. This Act states that it will be unlawful to deliver to, deposit into, or accept a regulated substance into a UST at a facility that has been identified by the Department to be ineligible for fuel delivery or deposit. The hearing will be held June 26, 2007. Comments are due July 10, 2007. See http://www.dem.ri.gov/programs/benviron/waste/ustdraft.htm

SOUTH CAROLINA

Air:

Water:

  • The Department of Health and Environmental Control extended the comment period for proposed amendments to specific sections of R.61-68, Water Classifications and Standards, and sections of R. 61-69, Classified Waters. Comments are due June 25, 2007. See http://www.scdhec.net/environment/water/docs/wqs/nod052507.pdf

WASHINGTON

Air:

  • The Department of Ecology adopted amendments to ambient air quality standards and emission limits for radionuclides, Chapter 173-480 WAC. This amendment becomes effective on June 24, 2007. See http://www.ecy.wa.gov/pubs/0702013.pdf
  • The Department of Ecology adopted a new Chapter 173-455 WAC, air quality fee rule, that will include air quality program fees. The chapter includes pre-existing and new fees. The new fees are for air pollution standard variances and portable/temporary source permits. This rule became effective June 3, 2007. See http://www.leg.wa.gov/documents/wsr/2007/11/07-11-018.htm

WEST VIRGINIA

Water:

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

INTERNATIONAL

CLIMATE AGREEMENT REACHED AT G8 SUMMIT

Last week, leaders of the eight wealthiest nations agreed on a plan to develop an international greenhouse gas emissions agreement by the end of 2009. The exact terms of the agreement, such as the rate of emissions reductions, will be settled through a United Nations process. German Chancellor Angela Merkel hopes to include a 50 percent reduction in greenhouse gas emissions by 2050 in the finalized agreement. Many had predicted that climate change would be the most contentious issue at the meeting in Heiligendamm, Germany. See http://news.bbc.co.uk/2/hi/europe/6731045.stm

G5 TO ISSUE ALTERNATIVE TO G8 CLIMATE PACT

Five of the world’s leading developing countries are expected to announce a counter-proposal to the climate agreement reached by the G8 countries. Brazil, Mexico, China, India, and South Africa met in Berlin last week concurrently with the G8 meeting in Heiligendamm. These countries are advocating for differentiated emissions reduction requirements and for the free transfer of new energy technology without the burden of intellectual property rights. In the past, the United States has opposed emissions reductions requirements that distinguish between industrialized and developing nations, such as those in the Kyoto Protocol. See http://ipsnews.net/news.asp?idnews=38088

JAPAN’S ATTEMPT TO REVERSE WHALING MORATORIUM DEFEATED

Japan's bid to re-legalize the whaling industry in four coastal towns came to a halt when the Convention on International Trade in Endangered Species (CITES) declined to review the status of whale populations worldwide. Japan petitioned CITES for the review in the hope that new findings would support the reversal of the international whaling ban after the International Whaling Commission showed no movement on the issue at its annual meeting. See http://news.bbc.co.uk/2/hi/science/nature/6728919.stm

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

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