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Weekly Update Volume 37, Issue 20

07/16/2007

LITIGATION

GROUNDWATER CONTAMINATION, VINYL CHLORIDE:

The Fifth Circuit affirmed a lower court's grant of summary judgment in favor of a chemical company in a lawsuit failed against it by approximately 600 former residents of a trailer park in Plaquemine, Louisiana, for groundwater contamination. The residents claimed strict liability and negligence due to the company's alleged vinyl-chloride contamination of the groundwater in and surrounding the trailer park and sought compensatory and punitive damages. However, an Agency for Toxic Substances and Disease Registry report that provided the groundwater sampling results for the trailer park stated, among other things, that "the total vinyl chloride exposures at [the trailer park] were not high enough to produce any of the known adverse health effects attributable to vinyl chloride." The residents failed to present competent summary judgment evidence to dispute that report's conclusions. In addition, the residents were afforded sufficient opportunity for discovery. Nor did the lower court lack subject matter jurisdiction over the case, and it did not err in excluding affidavits of the residents' expert witnesses. The lower court's grant of summary judgment in favor of the chemical company was therefore proper. Anderson v. Dow Chemical Co., No. 06-30445, 37 ELR 20175 (5th Cir. June 28, 2007) (9 pp.).

NEPA, FLOOD CONTROL:

A district court held that the U.S. Army Corps of Engineers violated NEPA when it prepared an EA in lieu of an EIS for proposed levee work along the Missouri River. The EA failed to properly consider the cumulative impact of the proposed levee combined with the other flood control structures that currently flank the Missouri River. The Corps' conclusion that the current proposed levee would not create a significant change in the flood profile was arbitrary and capricious since it failed to consider the cumulative impact of adding the proposed levee to the flood control structures already in place. In so doing, it violated NEPA. However, the court dismissed allegations that the Corps failed to evaluate potential development impacts of the proposed levee. Sierra Club v. United States Army Corps of Engineers, No. 03-04254-CV-C-SOW, 37 ELR 20170 (W.D. Mo. May 24, 2007) (Wright, J.) (11 pp.) (Plaintiffs' counsel included Bruce A. Morrison of the Great Rivers Environmental Law Center in Saint Louis, Missouri).

INSURANCE LAW, EXCLUSIONS:

A district court held that various exclusions contained in a mobile home insurance policy do not bar coverage for underlying claims stemming from an explosion in the insured's trailer. The insured, who lived in a mobile home, allowed guests to stay in a trailer on the insured's property. The guests suffered severe injuries when they attempted to light a gas oven that was not correctly connected to the gas line. The insurer claimed that several exclusions barred coverage. But the policy exclusion for persons who regularly reside on the premises does not apply because the guests did not regularly reside there and because the trailer is not a "structure" under the terms of the policy exclusion. Nor did the exclusion for vehicle use apply because the trailer was not being used as a vehicle at the time of the accident and had not been so used for years. And the policy's pollution exclusion clause did not apply because the guests' injuries did not arise from the release of gas or the ingestion, inhalation, or absorption of propane gas but rather from the alleged negligence of the insured. The insured's motion for summary judgment was therefore denied. Foremost Signature Insurance Co. v. Parker, No. 4:05-cv-02777-RBH, 37 ELR 20174 (D.S.C. June 26, 2007) (Harwell, J.) (6 pp.).

AIR POLLUTION, STATIONARY SOURCE PERMITS:

The Connecticut Supreme Court upheld the dismissal of a town's appeal of seven stationary source air permits granted to an energy company by the state's environmental agency. The lower court ruled that the agency's decision was not a "final decision" in a "contested case" as defined by General Statutes §4-166. The statute defines a contested case as "a proceeding . . . in which the legal rights, duties or privileges of a party are required by statute to be determined by an agency after an opportunity for hearing or in which a hearing is in fact held . . . " (emphasis added). Because the public hearing in the present case was required to be held by federal statute and state regulation, but not by state statute, the lower court ruled that there was no contested case. On appeal, the town pointed out that subsequent to the lower court's dismissal, the statute was amended to expand the definition of a contested case to include an agency decision rendered after a hearing required to be held by state regulation. But because the amendment implements a substantive change in the law, it applies prospectively only. Hence, the court affirmed the dismissal. Town of Middlebury v. Department of Environmental Protection, No. SC 17332, 37 ELR 20169 (Conn. July 7, 2007) (20 pp.).

EQUAL PROTECTION, DUE PROCESS:

The Connecticut Supreme Court held that General Statutes §22a-196, which prohibits the operation of asphalt batching and continuous mix facilities within one-third of a mile from any hospital, nursing home, school, area of critical environmental concern, watercourse, or residential area, does not violate the due process or equal protection rights of a company seeking to construct and operate an asphalt plant located 400 feet from a river. The state environmental agency issued the company provisional permits to construct and operate an asphalt plant in November 1996. The contested statute, which was enacted in 1998, was effective for plants that began operations after December 31, 1997. Because the company's plant was not yet operational at that time, the agency revoked the provisional permits. The company challenged the decision in court, but the court properly ruled in favor of the agency because §22a-196 is rationally related to a legitimate state purpose, namely, protecting the environment and public health. Nor did the agency improperly construe §22a-196 to apply retrospectively to the provisional permits. Section 22a-196 barred the location of an asphalt plant on the site proposed by the company. The agency, therefore, could not grant the company a permit to operate an asphalt plant in that location. Contractor's Supply of Waterbury, LLC v. Commissioner of Environmental Protection, No. SC 17592, 37 ELR 20168 (Conn. July 10, 2007) (16 pp.).

INSURANCE LAW, POLLUTION EXCLUSION CLAUSE:

Massachusetts' highest court held that a home heating oil spill that occurred during a company's installation of a furnace at a client's home is excluded from coverage under the company's commercial general liability policy. The company argued that its insurer had the duty to defend or indemnify the company in an underlying suit filed against it by the client. But the oil leak is excluded by the insurance policy's pollution exclusion clause. A policyholder reading the company's policy could reasonably expect that oil leaking into the ground constitutes a pollutant within the meaning of the policy. The claims in the underlying suit allege just such a circumstance and, therefore, unambiguously fit within the pollution exclusion of the policy. The lower court's grant of summary judgment in favor of the company was therefore reversed. McGregor v. AllAmerica Insurance Co., No. SJC-09735, 37 ELR 20167 (Mass. July 10, 2007) (4 pp.).

LAND USE, MARSHLANDS:

A Georgia appellate court held that the Georgia Coastal Marshlands Protection Act (CMPA), which regulates activities and structures in marshlands, may not be construed to regulate activities or structures in high land or upland areas, including storm water runoff from those areas, that may adversely impact the marshlands. The case arose after a developer applied for, and received, a permit to construct two public marinas and three community docks as part of its overall residential development project in the area. An administrative law judge remanded the permit on the grounds that the CMPA required the permitting agency to regulate any feature of the developer's upland development that may adversely alter the marshlands, including storm water runoff from the upland residential areas of the development project. Under the state permitting provisions, however, the permitted project is limited to the marshlands component, comprised of the marina and dock structures proposed to be constructed or located on or over the marshlands, and the upland component, comprised of adjoining upland areas intended to service or augment the marina and dock. But nothing in the CMPA can be construed to include the adjacent residential development as part of the permitted project merely because it is part of the overall development and enhances the economic value of the residential development. Coastal Marshlands Protection Committee v. Center for a Sustainable Coast, Nos. A07A0752 et al., 37 ELR 20171 (Ga. Ct. App. July 11, 2007) (10 pp.).

TOXIC SUBSTANCES, PROPOSITION 65:

A California appellate court upheld a lower court decision finding that a manufacturer's product--automobile touch up paint--is exempt from the warning requirements of the California Safe Drinking Water and Toxic Enforcement Act, commonly known as Proposition 65. Because the paint contained toluene, listed as a reproductive developmental toxin under the Act, the manufacturer placed Proposition 65 warnings on its Material Safety Data Sheets included with wholesale shipments of the touch-up paint to automobile manufacturers. However, it placed no warnings on the actual paint bottles. An individual filed suit, alleging that the manufacturer violated the Act's warning requirements. The lower court ruled in favor of the manufacturer, and the appellate court affirmed. Substantial evidence supports the lower court's conclusion that the amount of toluene in the product does not reach the maximum allowable dose level, thereby rendering it exempt from the warning requirements. Nor was the individual entitled to a jury trial on the manufacturer's affirmative defense that warnings under the Act were not required. In addition, the lower court did not err in denying the manufacturer's motion for attorneys fees because the manufacturer did not vindicate an important public right or confer a significant benefit on the general public. DiPirro v. Bondo Corp., No. A110913, 37 ELR 20173 (Cal. Ct. App. 1st Dist. July 12, 2007) (50 pp.).

PCBs, CIVIL PROCEDURE:

A Pennsylvania could upheld a jury verdict absolving a company from liability for PCB contamination at a former state government building. The verdict was based on the jury's conclusion that the company's product, PCBs, was not defective. After the court entered judgment in favor of the company, the state filed post-trial motions seeking judgment notwithstanding the verdict (JNOV) on the issue of product defect or, alternatively, a new trial. The court denied the motions. The state failed to preserve a request for a JNOV because it did not ask the trial judge to consider a directed verdict on the first special interrogatory. And the state's request for a new trial was denied because the jury's verdict is supported by the evidence and because the trial court did not commit legal error with respect to two evidentiary rulings or improperly limit voir dire. Commonwealth v. United States Mineral Products Co., Nos. 284 M.D. 1990, 244 M.D. 1996, 37 ELR 20172 (Pa. Commw. Ct. July 3, 2007) (37 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 proposed to determine that control techniques guidelines will be substantially as effective as national regulations in reducing emissions of volatile organic compounds in ozone NAAQS nonattainment areas from paper, film, and foil coatings; metal furniture coatings; and large appliance coatings; the Agency may therefore issue guidelines in lieu of national regulations. 72 FR 37581 (7/10/07).
  • EPA issued a notice of data availability (NODA) in support of the proposed rule published on November 7, 2006, (71 FR 65301) concerning standards of performance for equipment leaks of volatile organic compounds in petroleum refineries and the synthetic organic chemicals manufacturing industry; the NODA addresses new data collected and analyses conducted in response to comments the Agency received concerning the impacts of the proposed monitoring provisions for open-ended lines and valves. 72 FR 37157 (7/9/07).
  • SIP Proposals: Alabama (clean air interstate rule (CAIR)) 72 FR 38045 (7/12/07). Mississippi (CAIR) 72 FR 38051 (7/12/07). Pennsylvania (eight-hour ozone redesignation request, maintenance plan, and 2002 base year inventory) 72 FR 37683 (7/11/07).

HAZARDOUS AND SOLID WASTE:

  • EPA entered into a settlement under CERCLA for reimbursement of past response costs incurred at the Georgia-Pacific Hardwood Superfund site in Plymouth, North Carolina. 72 FR 38580 (7/13/07).
  • EPA entered into a proposed administrative cost recovery settlement under CERCLA concerning the Imel Battery and Lead Superfund site in Fort Wayne, Indiana, that requires the settling parties to sell the real property at the site and pay to the Hazardous Substances Superfund a percentage of the proceeds from that sale minus reasonable closing costs; the payment is estimated to be $70,000. 72 FR 37529 (7/10/07).
  • EPA entered into a proposed administrative settlement for response costs under CERCLA concerning Operable Unit 4 of the Palmerton Zinc Pile Superfund site in Carbon County, Pennsylvania. 72 FR 37220 (7/9/07).

SAFETY AND HEALTH:

  • OSHA announced that it is reviewing the Methylene Chloride Standard it promulgated on January 10, 1997, (62 FR 1494) to protect workers from occupational exposure to the solvent; the purpose of this review is to determine whether there are ways to modify this standard to reduce regulatory burden on small business and to improve its effectiveness. 72 FR 37501 (7/10/07).

WATER:

  • EPA amended the federal regulations to withdraw its 1992 federally promulgated marine copper and cyanide chronic aquatic life water quality criteria for Washington, thereby enabling the state to implement its current Agency-approved chronic numeric criteria for copper and cyanide that cover all marine waters of the state. 72 FR 37109 (7/9/07).
  • EPA proposed to amend the federal regulations to withdraw its 1992 federally promulgated marine copper and cyanide chronic aquatic life water quality criteria for Washington, thereby enabling the state to implement its current Agency-approved chronic numeric criteria for copper and cyanide that cover all marine waters of the state; see above for direct final rule. 72 FR 37161 (7/9/07).
  • EPA announced that it intends to approve revisions to Alaska's State Public Water Supply Supervision Primacy Program. 72 FR 37532 (7/10/07).

WILDLIFE:

  • FWS removed the bald eagle in the lower 48 states of the United States from the federal list of endangered and threatened wildlife; the best available scientific and commercial data indicate that the species has recovered and no longer meets the definition of "threatened" or "endangered" under the ESA. 72 FR 37345 (7/9/07).
  • FWS announced a 90-day finding on a petition to list 12 penguin species as threatened or endangered under the ESA; the agency found that listing 10 of the species may be warranted at this time and that listing two of the species is not warranted at this time. 72 FR 37695 (7/11/07).
  • FWS added all forms of live silver carp, gametes, viable eggs, and hybrids, and all forms of live largescale silver carp, gametes, viable eggs, and hybrids, to the list of injurious fish, mollusks, and crustaceans. 72 FR 37459 (7/10/07).
  • FWS announced the availability of a draft comprehensive conservation plan and EA for the Pocosin Lakes National Wildlife Refuge in Hyde, Tyrrell, and Washington counties, North Carolina. 72 FR 38097 (7/12/07).
  • NOAA-Fisheries announced temporary restrictions that apply to lobster trap/pot and anchored gillnet fishermen in an area east of Chatham, Massachusetts, to protect an aggregation of northern right whales. 72 FR 37674 (7/11/07).

DOJ NOTICES OF SETTLEMENT:

  • In re Collins & Aikman Corp., No. 05-55927 (Bankr. E.D. Mich. July 5, 2007). Settling CERCLA and RCRA defendants entered into a proposed settlement agreement concerning the Mosaic Tile Plant Dump Superfund site in Zanesville, Ohio. 72 FR 37797 (7/11/07).
  • United States v. East Kentucky Power Cooperative, Inc., No. 04-34-KSF (E.D. Ky. July 2, 2007). A settling CAA defendant must pay a $750,000 civil penalty; must reduce sulfur dioxide, nitrogen oxide, and particulate matter emissions at its coal-fired power plants through the installation and operation of state-of-the-art pollution control technologies and/or the retirement or re-powering of certain units; and must install and operate wet electrostatic precipitators at its Spurlock Plant located near Maysville, Kentucky. 72 FR 37797 (7/11/07).
  • United States v. Findett Real Estate Corp., No. 07-1215 (E.D. Mo. July 3, 2007). Settling CERCLA defendants who released hazardous substances at operable unit 3 (OU3) of the Hayford Bridge Road Groundwater Superfund site in St. Charles, Missouri, must perform the EPA-selected remedy for OU3 and must pay their allocated share of the costs to implement the remedy, including EPA oversight costs; the work to be performed by the settling defendants at OU3 is expected cost about $1.12 million. 72 FR 37798 (7/11/07).
  • United States v. Frazer Exton Development LP, No. 2:07-cv-02666-ER (E.D. Pa. June 26, 2007). A settling CERCLA defendant must finance and perform the remedial action selected by EPA and must pay $311,447 in reimbursement of costs incurred at the Foote Mineral Superfund site in East Whiteland Township, Pennsylvania. 72 FR 37799 (7/11/07).
  • United States v. Icicle Seafoods, Inc., No. 3:06-cv-00268- JWS (D. Alaska June 29, 2007). Settling CWA defendants that allegedly violated their NPDES permit for discharges from the M/V Northern Victor to Udagak Bay, Alaska, must pay a $900,000 civil penalty. 72 FR 37799 (7/11/07).
  • United States v. Pflueger, No. CV 06-00140 BMK (D. Haw. June 27, 2007). Settling CWA defendants that allowed fill and stormwater runoff to be discharged into U.S. waters in connection with their construction activities on the Island of Kauai, Hawaii, must revise their construction schedules for certain remedial work and must add a new status report requirement regarding the remedial work to be done. 72 FR 37799 (7/11/07).

GUIDANCE DOCUMENTS:

  • EPA announced the availability of two draft documents: TSCA Inventory Status of Nanoscale Substances—General Approach; and Concept Paper for the Nanoscale Materials Stewardship Program Under TSCA. 72 FR 38083 (7/12/07) (available from the ELR Guidance & Policy Collection, ELR Order Nos. AD03051 and AD03052).

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

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

BILLS INTRODUCED

  • S. 1756 (Bingaman, D-N.M.) (nuclear testing program compensation) would provide supplemental ex gratia compensation to the Republic of the Marshall Islands for impacts of the nuclear testing program of the United States. 153 Cong. Rec. S8943 (daily ed. July 10, 2007). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 1766 (Bingaman, D-N.M.) (global warming) would reduce greenhouse gas emissions from the production and use of energy. 153 Cong. Rec. S9019 (daily ed. July 11, 2007). The bill was referred to the Committee on Environment and Public Works.
  • S. 1774 (Boxer, R-Cal.) (National Parks) would designate the John Krebs Wilderness in the state of California and add certain land to the Sequoia-Kings Canyon National Park Wilderness. 153 Cong. Rec. S9135 (daily ed. July 12, 2007). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 1785 (Nelson, D-Fla.) (CAA) would amend the CAA to establish deadlines by which the EPA Administrator shall issue a decision on whether to grant certain waivers of preemption under that Act. 153 Cong. Rec. S9135 (daily ed. July 12, 2007). The bill was referred to the Committee on Environment and Public Works.
  • H.R. 2959 (Bishop, R-Utah) (National Park Centennial Challenge fund) would establish a fund for the National Park Centennial Challenge. 153 Cong. Rec. H7489 (daily ed. July 10, 2007). The bill was referred to the Committee on Natural Resources.
  • H.R. 2961 (Garrett, R-N.J.) (Wallkill National Wildlife Refuge) would expand the boundaries of the Wallkill National Wildlife Refuge in Sussex County, New Jersey, and authorize appropriations for the acquisition of lands and waters located within such expanded boundaries. 153 Cong. Rec. H7489 (daily ed. July 10, 2007). The bill was referred to the Committee on Natural Resources.
  • H.R. 3022 (Costa, D-Cal.) (National Parks) would designate the John Krebs Wilderness in the state of California and add certain land to the Sequoia-Kings Canyon National Park Wilderness. 153 Cong. Rec. H7775 (daily ed. July 12, 2007). The bill was referred to the Committee on Natural Resources.
  • H.R. 3029 (Grijalva, D-Ariz.) (bears) would conserve global bear populations by prohibiting the importation, exportation, and interstate trade of bear viscera and items, products, or substances containing, or labeled or advertised as containing, bear viscera. 153 Cong. Rec. H7775 (daily ed. July 12, 2007). The bill was referred to the Committee on Natural Resources.
  • H.R. 3031 (Inslee, D-Wash.) (green building) would promote the construction of green buildings in the United States. 153 Cong. Rec. H7776 (daily ed. July 12, 2007). The bill was referred to the Committee on Energy and Commerce.
  • H.R. 3037 (Schwartz, D-Pa.) (environmental vendors) would ensure that all federal agencies consider the environmentally preferable features and practices of a vendor in purchases of meeting and conference services. 153 Cong. Rec. H7776 (daily ed. July 12, 2007). The bill was referred to the Committee on Oversight and Government Reform.
  • H. Con. Res. 184 (Sali, R-Idaho) (dam removal) would express the sense of Congress opposing the removal of dams on the Columbia and Snake Rivers for fishery restoration purposes, supporting the renewable energy that the dams produce, and agreeing that their removal does not make sound environmental nor fiscal sense. 153 Cong. Rec. H7776 (daily ed. July 12, 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:

Alabama Louisiana Nevada Oregon California Maine New Jersey Wisconsin Colorado Massachusetts North Dakota   Idaho Mississippi Ohio  

ALABAMA

Water:

CALIFORNIA

Air:

  • The Executive Officer of the Air Resources Board seeks comment on proposed amendments to the list of equipment defects that substantially impair the effectiveness of gasoline vapor recovery systems used in motor vehicle refueling operations. Health and Safety Code §41960.2(c) requires the Executive Officer to adopt and periodically update the list of defects, which is incorporated by reference in §94006, title 17, California Code of Regulations, and is otherwise known as the Vapor Recovery Equipment Defects List. Such defects are sufficiently egregious to warrant the removal of the fueling point from service until the defect is repaired. Written comments are due August 21, 2007. No oral public hearing is currently scheduled, but one may be requested by August 6, 2007. See http://www.oal.ca.gov/pdfs/notice/27z-2007.pdf (pp. 1163-1165)

Toxic Substances:

COLORADO

Air:

  • The Air Quality Control Commission will hold a public hearing on rulemaking to incorporate by reference federal amendments to 40 C.F.R. Part 63, NESHAPs, into Regulation Number 8, Part E. The hearing will be held October 18, 2007. Comments are due October 5, 2007. See http://www.cdphe.state.co.us/op/aqcc/aqccdown/reg8oct.pdf

Hazardous and Solid Waste:

  • The Department of Public Health and Environment, Hazardous Materials and Waste Management Division, will conduct a public hearing on proposed amendments to the hazardous waste rules, including Cathode Ray Tube Amendments (Amendments to 6 CCR 1007-3, Parts 260 and 261), Part 279, Used Oil Amendments, and Part 273, Mercury-Containing Devices Amendments. The hearing will be held August 21, 2007. See http://www.sos.state.co.us/CCR/RegisterContents.do?Volume=30&Month=7&Year=2007

Water:

IDAHO

Hazardous and Solid Waste:

  • The Department of Environmental Quality will conduct a public hearing on proposed rules regulating UST systems. This rulemaking would incorporate by reference 40 CFR Part 280 Technical Standards and Corrective Action Requirements for Owners and Operators of USTs and address inspection and certification of USTs; operator training and certification of installers; release prevention, detection, compliance, and enforcement; delivery prohibitions; additional measures to protect groundwater such as secondary containment for new or replacement UST systems or connecting pipes; and development of a database system for UST information status. The hearing will be held July 19, 2007. See http://www.deq.idaho.gov/rules/ust/58_0107_0701_negotiated.cfm

Toxic Substances:

  • The Department of Environmental Quality held a public hearing on proposed rules on standards and procedures for application of risk-based corrective action at chemical release sites. This rule will describe standards and procedures for application of risk based corrective action at chemical release sites. The hearings were held June 21 and July 9, 2007. See http://www.deq.idaho.gov/rules/risk/58_0124_0701_negotiated.cfm

Water:

  • The Department of Environmental Quality has given notice of its final decision on the Wildhorse Subbasin Assessment and TMDL, the South Fork Palouse River Subbasin TMDL, the Lindsay Creek Subbasin TMDLs, and the Upper Hangman Creek Subbasin TMDLs. See http://adm.idaho.gov/adminrules/bulletin/bul/07jul.pdf (pp. 95-89)
  • The Department of Environmental Quality is conducting public hearings to consider the promulgation of a new Groundwater Quality Rule. The purpose of this rulemaking is to clarify portions of the Groundwater Quality Rule to promote consistency in application of the rule to mining activities. One hearing was held July 10; a second hearing will be held July 18. Comments are due July 27, 2007. See http://adm.idaho.gov/adminrules/bulletin/bul/07jul.pdf (pp. 90-91)

LOUISIANA

Air:

  • The Department of Environmental Quality will conduct a public hearing on proposed amendments to the air regulations at LAC 33:III.510, 603, 605, 607, 613, and 615. This rulemaking would repeal and delete references to LAC 33:III.510, which provides for control technology requirements and emission offsets only in Calcasieu Parish. The hearing will be held August 28, 2007. Comments are due September 4, 2007. See http://www.deq.louisiana.gov/portal/portals/0/planning/regs/pdf/AQ287Ppro.pdf

MAINE

Air:

  • The Department of Environmental Protection will conduct a public hearing on proposed amendments to Chapter 152 to address volatile organic compound emissions from consumer products. The proposed amendments would add approximately 18 categories of regulated consumer products and would place limits on certain toxic compounds in some consumer product categories. The amendments would also modify the date-coding requirements. The hearing will be held August 2, 2007. Comments are due August 16, 2007. See http://www.maine.gov/sos/cec/rules/notices/2007/071107.htm

MASSACHUSETTS

Water:

  • The Department of Environmental Protection will conduct a public hearing on its proposal to extend the variance for combined sewer overflow (CSO) discharges by the Massachusetts Water Resources Authority (MWRA), the city of Cambridge, and the Boston Water and Sewer Commission to the Lower Charles River/Charles Basin (Watertown Dam to New Charles River Dam), and to extend the variance for CSO discharges by MWRA and the cities of Cambridge and Somerville to the Alewife Brook/Upper Mystic River. The hearing will be held July 18, 2007. Comments are due August 2, 2007. See http://www.mass.gov/dep/public/hearings/csovar07.htm

MISSISSIPPI

Air:

NEVADA

Air:

  • The Bureau of Air Pollution Control will conduct a public hearing to consider Regulation R057-07, which would update NAC 445B.221, Adoption by reference and applicability of certain provisions of federal law and regulations. The regulation would adopt into state regulation sections of the federal New Source Performance Standards and NESHAPs rules that have been adopted by U.S. EPA and published in the Federal Register since July 6, 2006. The hearing will be held September 7, 2007. Comments are due September 2, 2007. See http://www.sec.nv.gov/docs/public_notice_all_090707.pdf
  • The Bureau of Air Pollution Control will conduct a public hearing to consider Regulation R019-07, Mercury Storage. This regulation was originally adopted by the State Environmental Commission (SEC) as a temporary regulation in September 2006. Following this action, the 2007 session of the Nevada Legislature enacted Senate Bill 118. This legislation directs the SEC to permanently adopt a regulation for the handling and storage of mercury when present in a quantity of 200,000 pounds (100 tons) or more. This is the identical threshold quantity defined in the temporary regulation. The hearing will be held September 7, 2007. Comments are due September 2, 2007. See http://www.sec.nv.gov/docs/public_notice_all_090707.pdf
  • The Bureau of Air Pollution Control will conduct a public hearing to consider Regulation R056-07, Nevada Mercury Air Emissions Control Program Fees. This regulation amends the Nevada Mercury Air Emissions Control Program (NMCP), NAC 445B.3611 to 445B.3689, which governs the precious metal mining industry in Nevada. For state fiscal year 2008, the regulation would increase annual maintenance fees for all thermal units that emit mercury by an amount sufficient to support two full-time state employees for 6 months (i.e., $125,000) and fund start-up equipment costs of $32,500. For fiscal year 2009 and each year thereafter, the collective annual maintenance fee would be increased by $250,000 to cover the continuing cost of the two employees. The hearing will be held September 7, 2007. Comments are due September 2, 2007. See http://www.sec.nv.gov/docs/public_notice_all_090707.pdf

Hazardous and Solid Waste:

  • The Bureau of Waste Management will conduct a public hearing to consider Regulation R179-05, Waste Landfill Cover Requirements. This regulation addresses "cover requirements" of compacted solid waste at certain landfills in Nevada and would amend NAC 444.688. The requested change would reverse an existing requirement that allows certain landfills in Nevada to operate for up to six days without applying cover soil to exposed waste. The hearing will be held September 7, 2007. Comments are due September 2, 2007. See http://www.sec.nv.gov/docs/public_notice_all_090707.pdf

Land Use:

  • The State Environmental Commission will conduct a public hearing to consider Regulation R141-06, Provision Governing the Stabilization of Spent Ore. This regulation would amend NAC 445A.430 by focusing stabilization of spent ore on effluent chemistry levels rather then dictating a particular stabilization action or method (e.g., rinsing). The existing language in the regulation does not reflect the changes and advancements in spent ore stabilization methods and technologies that have occurred since the regulation was first promulgated. The proposed changes are designed to broaden spent ore stabilization options for spent ore that has been left on pads, or which will be removed from pads. The amended regulation will continue to require that spent ore effluent demonstrate Cyanide and pH stability levels in accordance with existing regulatory limits. The hearing will be held September 7, 2007. Comments are due September 2, 2007. See http://www.sec.nv.gov/docs/public_notice_all_090707.pdf

NEW JERSEY:

Air:

  • The Department of Environmental Protection adopted amended rules limiting the amount of time a diesel vehicle is allowed to idle. Specifically, the adopted amendments address exemptions to the limits and the penalties associated with violations of the limits. The adopted amendments are being included in the SIP because the original idling rule was included in a previous SIP revision and because the amendments will provide additional air quality benefits to the state. See http://www.nj.gov/dep/rules/adoptions/20070702_diesel.pdf

NORTH DAKOTA

Air:

OHIO

Air:

  • The Ohio Environmental Protection Agency, Division of Air Pollution Control, will conduct a public hearing on proposed amendment of OAC rule 3745-77-01, Definitions. The amendment addresses recent changes in the corresponding federal regulations that affect how ethanol facilities are defined as a major source. OAC rule 3745-31-01 is also affected by this change but will be addressed separately as part of the permit-to-install and operate (PTIO) rulemaking package (see below). The hearing will be held August 10, 2007. Comments are due August 10, 2007. See http://www.registerofohio.state.oh.us/pdfs/phn/3745_NO_37711_20070703_0807.pdf
  • The Ohio Environmental Protection Agency will conduct a public hearing to consider the Five-Year Rule Review and proposed amendment of OAC rule 3745-15-03, proposed amendment and/or rescission of select rules in OAC Chapter 3745-31, and proposed rescission of all rules in OAC Chapter 3745-35. The hearing will be held August 10, 2007. Comments are due August 10, 2007. The amendments are being proposed to implement the permit-to-install and operate
    program. See http://www.registerofohio.state.oh.us/pdfs/phn/3745_NO_37712_20070703_0809.pdf

OREGON

Air:

  • The Department of Forestry will hold public hearings on its proposed Oregon Smoke Management Plan Revision and Update. The proposed changes would revise and update the Oregon Smoke Management Plan for prescribed burning of forestland in the state of Oregon, set out areas of the state in which forestland burning is controlled and rules for conducting prescribed burning, and designates areas that are to be protected from smoke impacts. The hearings will be held July 25 and August 1, 7, 14, and 16, 2007. See http://arcweb.sos.state.or.us/rules/0707_Bulletin/0707_rulemaking_bulletin.html

WISCONSIN

Water:

  • The Department of Natural Resources will hold public hearings on revisions to chapter NR 115, Wis. Adm. Code, relating to minimum standards for county shoreland zoning ordinances. Major provisions of the proposed rule include changes to vegetation management in the primary shoreland buffer and changes to regulation of nonconforming structures. Hearings will be held July 24, 25, 26, and 31, and August 2, 7, and 8, 2007. Comments are due September 7, 2007. See http://www.dnr.state.wi.us/org/caer/ce/news/hearmeet.html
  • The Department of Natural Resources adopted emergency rules relating to general permits for dredging in Great Lakes navigable waterways. These rules became effective June 10, 2007. A hearing was held July 10, 2007. See http://www.legis.state.wi.us/rsb/code/register/reg618b.pdf (p. 9)

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

INTERNATIONAL

ENVIRONMENT MINISTERS ANNOUNCE PLANS FOR TRANSFRONTIER AFRICAN CONSERVATION AREA

Environment ministers from Angola, Botswana, Namibia, Zambia, and Zimbabwe met in late June to discuss plans for the Kavango-Zambezi Transfrontier Conservation Area (KAZA-TFCA), a 280,000 square kilometer area in the Kavango and Zambezi river ecosystems. Once established, the KAZA-TFCA will be the world’s largest transfrontier conservation area. So far the project has received funding from organizations such as Kreditanstalt fur Wiederaufbau, Peace Parks Foundation, and the World Wildlife Foundation's Netherlands branch. See http://allafrica.com/stories/200707110543.html

WORLD GOVERNMENTS TAKE STEPS TO PROTECT PLANT DIVERSITY

Governments from around the world recognized the importance of plant diversity in a Convention on Biological Diversity (CBD) scientific advisory body meeting in Paris that opened on July 9. They reaffirmed support for the CBD's Global Strategy for Plant Conservation (GSPC), which includes objectives such as conservation, sustainable use, and capacity building for the conservation of plant diversity. Past efforts by the GSPC in conjunction with the World Conservation Union have resulted in the development of tools and standards to protect medicinal and aromatic plants and to address invasive species. See http://www.iucn.org/themes/ssc/news/2007_articles/global_plant_strategy.htm.

BRAZIL APPROVES TWO HYDROELECTRIC DAMS ON AMAZON TRIBUTARY

The Brazilian government gave initial approval for the construction of two hydroelectric dams on the Madeira River, home to one of the world's most diverse aquatic ecosystems. The project could provide between 8 and 10% of Brazil's electric demand, which supporters argue is necessary to meet the country's needs. Electricity production has become an especially important issue following the widespread impact of the country's 2001 power cuts. Environmental critics of the project cite several concerns, including disruption of sediment flow in the Amazon region, worsened over-exploitation of scarce resources by dam workers brought into the area, and increased mercury levels in the river. The dams still need final approval before the project can proceed. See http://news.bbc.co.uk/2/hi/americas/6286804.stm.

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

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