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Weekly Update Volume 37, Issue 24

08/27/2007

LITIGATION

CAA, PREEMPTION:

The Ninth Circuit affirmed a lower court decision that the CAA does not preempt certain provisions of local "fleet rules" requiring operators to meet specified emission standards or engine requirements, but reversed and remanded the court's refusal to consider whether the CAA preempts other provisions of the rules. The lower court properly held that, under the market participant doctrine, the CAA does not preempt those provisions of the fleet rules directing state and local governmental entities' purchasing, procuring, leasing, and contracting decisions. The CAA does not contain any express or implied indication by Congress that the presumption embodied by the market participant doctrine should not apply to preemption under the Act. Here, the provisions at issue constitute direct state participation in the market and reflect the state's own interest in its efficient procurement of needed goods and services. The lower court, however, erred in holding that because those provisions were protected by the market participant doctrine, the plaintiffs' facial challenge to the rules entirely failed. Instead, the court should have gone on to address whether the remaining provisions were preempted. Each fleet rule contains multiple provisions, placing restrictions on specific lists of public or private entities. On remand, the court must decide whether these remaining provisions are preempted by the CAA. Engine Manufacturers Ass'n v. South Coast Air Quality Maintenance District, No. 05-56654, 37 ELR 20210 (9th Cir. Aug. 20, 2007) (30 pp.).

CAA, OZONE-DEPLETING SUBSTANCES, PENALTIES:

The Tenth Circuit reversed and remanded a lower court decision declining to impose a monetary penalty against an insecticide manufacturer for CAA violations. A competitor company filed a citizen suit against the manufacturer for manufacturing, selling, and distributing an insecticide that contains hydrochlorofluorocarbons, an ozone-depleting substance. The lower court concluded that the manufacturer's actions were in violation of CAA §610(d)(1)(A), but it refused to penalize the company for those violations or to award the competitor attorneys fees, relying heavily on its conclusion that the suit was brought to remove a competitor from the market and not out of a concern for the environment. The appellate court reversed. The lower court erred as a matter of law in its penalty assessment. It failed to consider all the necessary statutory factors in a CAA penalty analysis, considered some factors it ought not to have considered, and improperly applied some of those factors it did consider. The lower court also abused its discretion and erred in its attorney fee analysis because it did not consider whether the competitor company achieved some degree of success on the merits. It also erred by concluding that a party bringing a CAA claim is disqualified from receiving attorney fees solely because it is an economic competitor of the alleged violator. Pound v. Airosol Co., No. 06-3299, 37 ELR 20209 (10th Cir. Aug. 20, 2007) (23 pp.).

NUCLEAR WASTE, GOVERNMENT CONTRACTOR DEFENSE:

The Ninth Circuit affirmed in part and reversed in part lower court rulings in an action initially brought by over 2,000 residents against the operators of the Hanford Nuclear Weapons Reservation in southeastern Washington claiming that emissions from the facility caused various cancers and other life-threatening diseases. The site was a plutonium-production facility that helped make the atomic bomb that dropped on Nagasaki, Japan, in World War II. After almost two decades of litigation, the parties agreed to a bellwether trial. That trial, which focused on six plaintiffs, is the subject of this appeal. The court affirmed the lower court's major rulings. Complete immunity under the common law government contractor defense was inapplicable to the operator as a matter of law, and none of the operators' contentions were sufficient to relieve them of strict liability for the injuries they caused. The district court also properly instructed the jury that, under Washington law, to impose liability the jury must find that the facility was the "but for" cause of the residents' diseases and not just a contributing cause under the more lenient "substantial factor" test. The district court also properly dismissed any medical monitoring claims as not cognizable under the federal law at issue. As for the individual plaintiffs, the court affirmed judgment in favor of one plaintiff and against a second plaintiff, reversed judgment in favor of a third plaintiff on statute of limitations grounds, and reversed judgments against the three remaining plaintiffs on evidentiary grounds. In re Hanford Nuclear Reservation Litigation, Nos. 05-35648 et al., 37 ELR 20211 (9th Cir. Aug. 14, 2007) (48 pp.).

CERCLA, COST RECOVERY, CONTRIBUTION:

The Third Circuit, in light of the U.S. Supreme Court's decision in United States v. Atlantic Research Corp., 127 S. Ct. 2331, 37 ELR 20139 (2007), affirmed in part and reversed in part a lower court decision dismissing a town's cost recovery action against the owners of a contaminated tract of land. The Court held in Atlantic Research that CERCLA §113(f)(1) authorizes a contribution action to PRPs with common liability stemming from an action instituted under §106 or §107(a), while §107(a) permits cost recovery (as distinct from contribution) by a private party that has itself incurred cleanup costs. In other words, a PRP can sue another PRP for contribution under §113(f), but can only sue under §107(a) for reimbursement of its own cleanup costs. Accordingly, the lower court in the instant case was correct in concluding that the town could not sue for contribution under §113(f) because it faced no liability under CERCLA §§106 or 107(a). But the lower court was incorrect in concluding that the town could not sue to recover costs under §107(a) because it was a PRP. The lower court's decision was therefore remanded. Montville Township v. Woodmont Builders, LLC, No. 05-4888, 37 ELR 20213 (3d Cir. Aug. 8, 2007) (4 pp.).

CLIMATE CHANGE, GLOBAL CHANGE RESEARCH ACT:

A district court held that the Bush administration's Climate Change Science Program violates the Global Change Research Act of 1990. The Act requires the government to update its National Global Change Research Plan every three years, and to prepare a scientific assessment of current climate change research and effects every four years. Environmental groups filed suit, claiming that the administration failed to meet these deadlines. The court rejected the administration's argument that the environmental groups lack standing. The groups' procedural and informational injuries can be directly traced to the administration's failure to issue a revised research plan and scientific assessment, and injunctive relief would redress these injuries. The groups also satisfied the requirements for organizational and statutory standing. As for the merits, the groups are entitled to judgment as a matter of law. The administration has not updated its research plan since 2003, and it has been almost seven years since the last scientific assessment was published and submitted to Congress in late 2000. Thus, the administration failed to adhere to the text of the statute or its mandates.In addition, the court denied Sen. John Kerry's (D-Mass.) and Rep. Jay Inslee's (D-Wash.) motions to intervene as plaintiffs. Center for Biological Diversity v. Brennan, No. C 06-7062 SBA, 37 ELR 20217 (N.D. Cal. Aug. 21, 2007) (Armstrong, J.) (38 pp.).

COMMERCE CLAUSE, SEWAGE TREATMENT WASTE:

A district court held that a county ordinance that bans the land application of "Los Angeles sludge" in the unincorporated areas of the county violates the Commerce Clause. The city of Los Angeles generates a large amount of sewage treatment residues, some substantial portion of which it would ship to farmland located in unincorporated areas of the county for use as fertilizer. The ban does not violate the Equal Protection Clause because it rationally furthers legitimate local interests in guarding against potential environmental harm and nuisance associated with biosolids. Although the county's attacks on Los Angeles sludge certainly demonstrated animosity toward the city, this animosity was directly related to the perceived harm the ban legitimately sought to redress. However, the ban violates the Commerce Clause. Its objective of removing the city's biosolid recycling operations from the county as a whole forces the city to locate and develop alternate recycling sites, most probably in Arizona. At the same time, it allows in-county sludge producers to continue disposing of their biosolids locally, thus accomplishing its legitimate environmental purpose through impermissible means. This discriminatory effect subjects the ban to strict scrutiny review, which it cannot withstand. The county could easily have guarded against the perceived environmental harm with a more tailored regulation regarding the location, quality, and volume of biosolids that could be applied to land. The ban also violates the California Integrated Waste Management Act. The Act expresses a statewide policy of promoting recycling over other disposal methods for "solid waste," and the statute defines this to include biosolids. Hence, the ban frustrates this statutory purpose and is invalid due to conflict preemption. City of Los Angeles v. County of Kern, No. 06-5094, 37 ELR 20214 (C.D. Cal. Aug. 10, 2007) (Feess, J.) (28 pp.).

ESA, NEPA:

A district court held that the BLM violated the ESA and NEPA in connection with its September 2005 decision to lease 32,000 acres of land in Colorado for oil and gas development. Although the BLM did not formally consult with the FWS under the ESA in advance of its decision to resume leasing on lands where the federally protected hookless cactus or its habitat is found, the violation was harmless in light of the informal consultation that occurred between the agencies two months later. Requiring the BLM and FWS to confer again would not serve any meaningful purpose. In addition, the plaintiffs failed to show that the FWS had an obligation to “emergency list” the DeBeque phacelia because the proposed leasing threatened the plant's habitat. However, the BLM--and the FWS--violated the ESA in finding, after informal consultation, that awarding the leases was not likely to affect the hookless cactus. The agencies adequately considered the effect that future development would have on the cactus, but they did not consider the effects that development would have outside the “action area”--all 16 parcels to be leased, not just the nine parcels known to contain hookless cactus. Development on other parcels might have impacts that affect the hookless cactus in ways that development on the nine parcels themselves might not. This error was not harmless. FWS and the BLM must confer under the ESA with regard to the effects of the decision to resume leasing on the entire action area. Until sufficient conference takes place, the BLM is enjoined from taking any further action regarding or giving effect to any lease issued as a result of its September 2005 decision. The BLM also violated NEPA because the EA does not adequately explain why the "no surface occupancy" alternative was dropped. The court, therefore, set aside the EA. By extension, the FONSI, which assesses the environmental impact of the action chosen by the EA, was set aside as well. Wilderness Society v. Wisely, No. 06-cv-00296, 37 ELR 20215 (D. Colo. Aug. 6, 2007) (Krieger, J.) (19 pp.).

ESA, SALMON:

A district court dismissed farm and development groups' lawsuit against NOAA-Fisheries for distinguishing between hatchery-bred and wild salmon populations in its listing determinations for 16 population segments of Pacific salmon. Specifically, the groups challenged the agency's decision to list 16 evolutionarily significant units of Pacific salmon as threatened or endangered under the ESA as well as its protective regulation for salmon populations listed as threatened. But the ESA does not prohibit the approach taken by NOAA-Fisheries. The agency first considered the viability of natural salmon populations within the geographic boundaries of historical listed population segments. It then considered the extinction risk of population segments, comprised of natural salmon populations and hatchery stocks, before making its final listing determinations. The ESA does not require that protective regulations treat natural populations and hatchery stocks equally. In addition, the agency's interpretation of what constitutes a distinct population segment of vertebrate fish that "interbreeds when mature" is within the permissible limits of the ESA. The groups' position that actual interbreeding is required would prohibit the agencies from listing the U.S. population of an animal that is abundant elsewhere in the world. The court, therefore, denied the plaintiffs' motion for summary judgment and dismissed the case. Alsea Valley Alliance v. Lautenbacher, No. 06-6093-HO, 37 ELR 20218 (D. Or. Aug. 14, 2007) (Hogan, J.) (6 pp.).

INSURANCE, DEFENSE COSTS, INDEMNITY COSTS:

A district court held that certain consulting costs an oil company incurred in mitigating and remediating a methyl tertiary-butyl ether spill in Fort Montgomery, New York, do not qualify as defense costs immediately reimbursable from its insurer. The court applied the New Jersey presumption that mandated cleanup costs are indemnity costs to be allocated to the indemnity provisions of an insurance policy. Policyholders may rebut that presumption by showing that the insurance company would derive an unjust benefit from such an allocation if it would relieve the insurance company of an expense that it would otherwise have incurred under its obligation to defend. Here, the oil company presented no factual basis that would rebut the presumption that the expenses associated with the consultant's work to remediate the site and mitigate liability were indemnity expenses. Sunoco, Inc. v. Illinois National Insurance Co., No. 04-4087, 37 ELR 20216 (E.D. Pa. Aug. 13, 2007) (Padova, J.) (9 pp.).

ELEVENTH AMENDMENT, COMMERCE CLAUSE, AQUATIC NUISANCE SPECIES:

A district court dismissed international shipping entities' lawsuit seeking to invalidate Michigan's Ballast Water Statute, which is aimed to prevent the introduction of aquatic nuisance species into the Great Lakes. The statute requires all oceangoing vessels to obtain permits from the state if they wish to use Michigan ports. The court lacked jurisdiction over the entities' state law claims, since under the Eleventh Amendment a state official may not be enjoined by a federal court on a state law claim absent a state's consent. The entities' federal claims were dismissed for failure to state a claim. Their due process claim fails because it was clearly rational for Michigan to enact this statute in light of the environmental harms posed by aquatic nuisance species. Nor does the statute violate the Commerce Clause since it poses no discriminatory effect or undue burden on interstate commerce. And the statute is not preempted by federal law. Fednav v. Chester, No. 07-11116, 37 ELR 20219 (E.D. Mich. Aug. 15, 2007) (Feikens, J.) (14 pp.).

WATER QUALITY, GROUNDWATER:

A California appellate court upheld water quality orders issued by a regional water board requiring a county to establish limitations for coliform effluent in groundwater underlying a county-operated, youth correctional facility wastewater treatment plant. The county argued that the board misapplied the water quality objective for bacteria in groundwater set forth in the regional water quality control plan because the groundwater in the vicinity of the plant is not used for domestic or municipal supply. But nothing in the water plan distinguishes between present and future uses of water. Restricting the water quality objective for bacteria to groundwater based on current uses would read in a temporal element not found in the language of the plan. In sum, the water quality orders are consistent with the water plan and effectuate the intent to protect present and future beneficial uses of groundwater. County of Sacramento v. State Water Resources Control Board, No. C052237, 37 ELR 20212 (Cal. Ct. App. 3d Dist. Aug. 9, 2007) (22 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:

  • SIP Approvals: Alaska (revised air quality regulations) 72 FR 45378 (8/14/07). Arizona (particulate matter with a diameter of 10 microns or less emissions from fugitive dust sources). 72 FR 46564 (8/21/07). Colorado (carbon monoxide (CO) NAAQS, CO maintenance plans, revised transportation conformity budgets, and removal of certain regulations) 72 FR 46148 (8/17/07). Louisiana (clean air mercury rule (CAMR)) 72 FR 46161 (8/17/07). Montana (CO NAAQS, CO maintenance plan, and CO periodic emission inventories) 72 FR 46158 (8/17/07). Ohio (eight-hour ozone NAAQS attainment, maintenance plan, and motor vehicle emissions budgets) 72 FR 45169 (8/13/07). Pennsylvania (eight-hour ozone NAAQS, 2002 base-year inventory, maintenance plan, and motor vehicle emissions budgets) 72 FR 48559 (8/24/07). South Carolina (revisions to ambient air quality standards) 72 FR 46903 (8/22/07). Tennessee (clean air interstate rule (CAIR)) 72 FR 46388 (8/20/07). Virginia (variance regulations) 72 FR 45165 (8/13/07).
  • SIP Proposals: Colorado (CO NAAQS, CO maintenance plans, revised transportation conformity budgets, and removal of certain regulations; see above for direct final rule) 72 FR 46188 (8/17/07). Louisiana (clean air interstate rule nitrogen oxides trading programs) 72 FR 45705 (8/15/07); (CAMR; see above for direct final rule) 72 FR 46188 (8/17/07). South Carolina (revisions to ambient air quality standards; see above for direct final rule) 72 FR 46939 (8/22/07). Tennessee (CAIR; see above for direct final rule) 72 FR 46432 (8/20/07). Virginia (variance regulations; see above for direct final rule) 72 FR 45200 (8/13/07).
  • SIP Withdrawal: Idaho and Washington (interstate transport of pollution) 72 FR 46157 (8/17/07).

HAZARDOUS & SOLID WASTE:

  • EPA proposed to enter into an administrative settlement agreement under CERCLA concerning a residential property in South Plainfield, New Jersey, that would require the settling defendant to pay $203,249 in past response costs and $25,000 in penalties, and to grant the Agency access onto its property to perform remedial action, which includes soil excavation and demolition of contaminated buildings. 72 FR 48637 (8/24/07).
  • EPA entered into a proposed settlement under CERCLA concerning the Pennsylvania Railroad Transformer Superfund site in Pittsburgh, Pennsylvania, to resolve a settling party's potential liability for response costs. 72 FR 48637 (8/24/07).
  • EPA entered into a proposed ability to pay settlement agreement under CERCLA concerning the Westwood Chemical Corporation Superfund site in Middletown, New York, that requires the settling party to pay $25,000 toward reimbursement of past costs. 72 FR 48638 (8/24/07).
  • EPA entered into a proposed administrative settlement under CERCLA for recovery of past response costs concerning the THORCO Transformer Time-Critical Removal Superfund site in Coeur d'Alene, Idaho, that requires the settling party to pay $18,000.00 to the Hazardous Substance Superfund. 72 FR 45809 (8/15/07).
  • EPA entered into a proposed administrative settlement under CERCLA concerning the Weld County Waste Disposal Superfund site located in Weld County, Colorado, that requires the settling party to pay a total of $178,118.15 for past response costs. 72 FR 45809 (8/15/07).
  • EPA entered into a proposed administrative settlement under CERCLA concerning the Wampus Milford Associates Superfund site in Milford, Connecticut, that requires the settling party to perform the response action. In turn, the Agency has agreed not to seek recovery of $91,541 in past response costs or to pursue future oversight costs from the settling party. 72 FR 45426 (8/14/07).
  • EPA granted Arkansas final authorization of the changes to its hazardous waste program under RCRA. 72 FR 45663 (8/15/07).
  • EPA granted Louisiana final authorization of the changes to its hazardous waste program under RCRA. 72 FR 45905 (8/16/07).
  • EPA granted New Mexico final authorization of the changes to its hazardous waste program under RCRA. 72 FR 46165 (8/17/07).
  • EPA proposed to grant Arkansas final authorization of the changes to its hazardous waste program under RCRA; see above for immediate final rule. 72 FR 45712 (8/15/07).
  • EPA proposed to grant Louisiana final authorization of the changes to its hazardous waste program under RCRA; see above for immediate final rule. 72 FR 46009 (8/16/07).
  • EPA proposed to grant New Mexico final authorization of the changes to its hazardous waste program under RCRA; see above for immediate final rule. 72 FR 46189 (8/17/07).

NANOTECHNOLOGY:

  • The National Science and Technology Council announced the availability of a document titled, The Prioritization of Environmental, Health, and Safety Research Needs for Engineered Nanoscale Materials: An Interim Document for Public Comment. 72 FR 46101 (8/16/07).

NATIONAL FORESTS:

  • The U.S. Forest Service, in response to a court order in Citizens for Better Forestry v. USDA, No. C05-1144 (N.D. Cal.), proposed a rule that sets forth a framework for National Forest System land management planning to provide for sustainability of social, economic, and ecological systems and establishes direction for developing, amending, and revising land management plans.72 FR 48513 (8/23/07).

OFFICE OF THE PRESIDENT:

  • The President issued Executive Order No. 13443 to facilitate the expansion and enhancement of hunting opportunities and the management of game species and their habitat. 72 FR 46535 (8/20/07).

SAFETY & HEALTH:

  • The U.S. Department of Health and Human Services announced the establishment of the Secretary's Advisory Committee on National Health Promotion and Disease Prevention Objectives for 2020; the Committee shall advise the Secretary regarding national health promotion and disease prevention initiatives, in particular the work to develop goals and objectives to improve the health status and reduce health risks for Americans. 72 FR 46631 (8/21/07).

WILDLIFE:

  • FWS revised the regulations that implement the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES); the revisions reorganize sections of 50 CFR pt. 23 and add provisions from certain applicable resolutions and decisions adopted by the CITES Conference of the Parties at its second through thirteenth meetings. 72 FR 48401 (8/23/07).
  • FWS proposed to designate approximately 19,746 acres of critical habitat for the bay checkerspot butterfly in Santa Clara and San Mateo and counties, California. 72 FR 48177 (8/22/07).
  • FWS announced a 90-day finding on a petition to list the Goose Creek milk-vetch as threatened or endangered under the ESA; the agency found that listing may be warranted and initiated a status review of the species. 72 FR 46023 (8/16/07).
  • FWS announced a 90-day finding on a petition to list the Yellowstone National Park bison herd as endangered under the ESA; the agency determined that listing the species is not warranted at this time and, therefore, will not initiate a status review in response to the petition. 72 FR 45717 (8/15/07).
  • FWS announced the availability of the draft recovery plan for the Ivory-billed Woodpecker. 72 FR 47064 (8/22/07).
  • FWS announced the availability of its draft economic analysis and provided amended required determinations for its proposal to revise critical habitat for the Cape Sable seaside sparrow. 72 FR 46189 (8/17/07).
  • FWS announced the availability of the draft economic analysis for the proposed critical habitat designation for the three plant species: Arenaria ursina, Castilleja cinerea, and Eriogonumkennedyi var. austromontanum. 72 FR 45407 (8/14/07).
  • FWS announced that it intends to gather information necessary to prepare a comprehensive conservation plan and EA for the Carolina Sandhills National Wildlife Refuge in Chesterfield County, South Carolina. 72 FR 47062 (8/22/07).
  • FWS announced the availability of the final comprehensive conservation plan and FONSI for the Rachel Carson National Wildlife Refuge in York County, Maine. 72 FR 47062 (8/22/07).
  • FWS announced the availability of a final comprehensive conservation plan and EIS for the Vieques National Wildlife Refuge in Puerto Rico. 72 FR 47063 (8/22/07).
  • FWS announced the availability of a comprehensive conservation plan and FONSI for the Flattery Rocks, Quillayute Needles, and Copalis National Wildlife Refuges in Clallam, Jefferson, and Grays Harbor counties, Washington. 72 FR 45443 (8/14/07).
  • FWS announced its intent to prepare a comprehensive conservation plan and EA for the Protection Island and San Juan Islands National Wildlife Refuges in Island, Jefferson, San Juan, Skagit, and Whatcom counties, Washington. 72 FR 45444 (8/14/07).
  • NOAA-Fisheries announced the adoption of an ESA recovery plan and five-year review for the Hawaiian monk seal. 72 FR 46966 (8/22/07).

DOJ NOTICES OF SETTLEMENT:

  • United States v. Alder-Gold Copper Co., No. 2:07-CV-00255- EFS (E.D. Wash. Aug. 3, 2007). A settling CERCLA defendant involved with groundwater contamination at the Alder Mill Superfund site in Okanogan County, Washington, must sell three parcels of land and must pay a portion of the proceeds of the sale to the United States in reimbursement for its costs in cleaning up the site; the United States estimates that the Consent Decree will result in the payment of between $200,000 and $300,000 to the Superfund. 72 FR 45827 (8/15/07).
  • United States v. ArvinMeritor, Inc., No. 1:07-cv-00735-GJQ (W.D. Mich. July 30, 2007). A settling CERCLA defendant must pay $3,475,000 in past response costs and must pay future response costs related to removal and remedial actions at the Rockwell International Superfund site in Allegan, Michigan. 72 FR 45827 (8/15/07).
  • United States v. Ludlow's Sand and Gravel Co., Inc., No. 07-cv-00793-GLS-DEP (N.D.N.Y. Aug. 2, 2007). Settling CERCLA defendants must perform services in support of the cleanup activities by the United States at the Ludlow's Sand and Gravel Superfund site in Paris, New York. 72 FR 45828 (8/15/07).
  • United States v. Waste Management of Wisconsin, Inc., No. 07- C-0424-C (W.D. Wis. Aug. 2, 2007). A settling CERCLA defendant who released and threatened release of hazardous substances at the Hagen Farm Superfund site in Dane County, Wisconsin, must complete performance of the site remedy and must reimburse the United States for response costs that the United States will incur at the site. 72 FR 45828 (8/15/07).
  • United States v. Zavaras, No. 07-CV-01643-MSK-MSW (D. Colo. Aug. 3, 2007). Settling CWA defendants must pay a civil penalty of $50,000 and must perform supplemental environmental projects valued at $225,000 to resolve claims of discharging pollutants at the Sterling Correctional Facility in Logan County, Colorado. 72 FR 48301 (8/23/07).
  • United States v. BFI Waste Systems of North America, Inc., No. 07 C 4499 (N.D. Ill. Aug. 10, 2007). Settling CERCLA and RCRA defendants who released or threatened releases of hazardous substances at or from the Wauconda Sand and Gravel Superfund site in Lake County, Illinois, must pay past and future response costs incurred at the site, must complete the connection of over 400 homes to the Village of Wauconda's municipal water works, must expand the Village's municipal water works to accommodate the increased demand, must perform operation and maintenance at the site, and must conduct groundwater monitoring activities. 72 FR 48301 (8/23/07).
  • United States v. City of Woodstock, No. 3:07- cv-50145 (N.D. Ill. Aug. 9, 2007). Settling CERCLA defendants must pay $567,000 in past response costs, must pay future response costs, must pay $400,000 for natural resource damages, and must complete the remedial action at the City of Woodstock Municipal Landfill Superfund site in Woodstock, Illinois, to resolve claims related to the site. 72 FR 48302 (8/23/07).
  • United States v. Jupiter Aluminum Corp., No. 2:07 CV 262 PS (N.D. Ind. Aug. 10, 2007). A settling CAA defendant who allegedly violated NESHAPs applicable to secondary aluminum production facilities under the Act must pay a civil penalty of $2.0 million; must properly weigh scrap aluminum before melting it in the furnaces; must keep records of the type and amount of scrap used; must fund an independent monitoring consultant to assist the regulatory agencies in monitoring compliance; must allow the city of Hammond, Indiana, to video record its furnace operations for compliance purposes; must resubmit an Operation, Maintenance and Monitoring Plan; must improve maintenance and recordkeeping practices; and must perform tests to determine whether its pollution control equipment on its melting furnaces adequately captures fugitive emissions and adequately removes dioxin/furans, hydrochloric acid, and particulate matter; if not, the settling defendant must make further modifications, or alter its production processes to ensure compliance. 72 FR 46661 (8/21/07).
  • United States v. TE Products Pipeline Co., No. 1:07-CV-0569-TH (E.D. Tex. Aug. 15, 2007). Settling CWA defendants that were involved with spills of crude and refined petroleum products from pipelines in four separate spill events in Arkansas, Oklahoma, and Texas must pay a civil penalty of $2,865,000; must conduct a close interval survey of a segment of the pipeline system from Beaumont, Texas, to Many, Louisiana, and take corrective action to bring the cathodic protection into compliance with standards; must install remote surveillance cameras at specified points on the pipeline to ensure constant monitoring of pipeline systems and provide surveillance of the pipeline system equipment; and must update the Supervisory Control and Data Acquisition system on the pipeline system. 72 FR 46662 (8/21/07).

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

THE CONGRESSCongress is currently on recess, but will reconvene September 4.

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

IN THE STATES

Note: The entries below cover state developments since the last issue of Update. The entries are arranged by state, and within each section, entries are further subdivided by subject matter area. For a cumulative listing of materials reported in 2007, visit our list of Cumulative State Developments Arranged by State, or our list of Cumulative State Developments Arranged by Subject Matter. For state material reported prior to 2007, visit the ELR Archives.

The states below have updates this week:

Arizona Delaware Iowa Minnesota New Hampshire Rhode Island Tennessee California District of Columbia Louisiana Missouri North Carolina South Carolina Texas Colorado Florida Maine Montana Ohio South Dakota Wisconsin Connecticut Idaho Massachusetts Nevada Oklahoma    

ARIZONA

Air:

  • The Arizona Department of Environmental Quality will conduct public hearings to consider changes to existing rules and the adoption of new rules concerning USTs. The proposed rules and revisions would provide for the issuance of no further action (NFA) letters for leaking UST (LUST) sites once the source has been removed and a corrective action plan or state assurance fund work plan has been approved. The proposals would also allow the Department to close certain groundwater LUST cases where there is an exceedance of the aquifer water quality standards and to monitor LUST sites that have been issued an NFA letter and to perform additional corrective actions if necessary. The hearings will be held September 17 and September 20, 2007. Comments are due September 28, 2007. See http://www.azsos.gov/public_services/Register/2007/32/proposed.pdf (pp. 2760-2771)

CALIFORNIA

Air:

  • The Air Resources Board will conduct a public hearing to consider adoption of a regulation establishing emission standards and certification, labeling, and recordkeeping requirements for indoor air cleaning devices used in occupied spaces. The proposed regulation would, among other things, require that such devices be tested and certified not to emit ozone at an emission concentration in excess of 0.050 parts per million and prohibit the introduction into California of such devices that exceed this emission standard. The hearing will be held September 27, 2007. Comments are due September 26, 2007. See http://www.oal.ca.gov/pdfs/notice/32z-2007.pdf (pp. 1323-1327)

Wildlife:

  • The Department of Food and Agriculture amended §3591.20(a) of the regulations in Title 3 of the California Code of Regulations, pertaining to Light Brown Apple Moth Eradication Area, as an emergency action effective on July 13, 2007. The Department proposes to continue the regulation as amended and to complete the amendment process by submission of a Certificate of Compliance no later than January 9, 2008. See http://www.oal.ca.gov/pdfs/notice/33z-2007.pdf (pp. 1347-1348)
  • The Department of Food and Agriculture adopted §3434 in Title 3 of the California Code of Regulations, pertaining to Light Brown Apple Moth Interior Quarantine, as an emergency action effective on April 20, 2007. The Department proposes to continue the regulation as amended and to complete the amendment process by submission of a Certificate of Compliance no later than October 17, 2007. See http://www.oal.ca.gov/pdfs/notice/33z-2007.pdf (pp. 1348-1350)

Hazardous & Solid Wastes:

  • The Department of Conservation, Division of Recycling, seeks public comment on the proposal to adopt amendments to Title 14 of the California Code of Regulations, Division 2, Chapter 5, concerning handling fees at recycling centers. Comments are due October 1, 2007. See http://www.oal.ca.gov/pdfs/notice/33z-2007.pdf (pp. 1358-1361).

Land Use:

  • The Board of Forestry and Fire Protection will hold a public hearing to consider amendments to the following sections of Title 14 of the California Code of Regulations: §895.1, Definitions;§1052, Emergency Notice; §1052.1, Emergency Conditions; and §1052.4, Emergency Notice for Fuel Hazard Reduction. The proposed amendments are intended to reduce wildfire threat and hazardous fuel conditions in the state's private timberlands. The proposed amendments would modify fuel treatment standards, modify the minimum post harvest stocking standards, clarify treatment requirements, and establish a rule extension period. The hearing will be held October 10, 2007. Comments are due October 1, 2007. See http://www.oal.ca.gov/pdfs/notice/33z-2007.pdf (pp. 1350-1354)
  • The Board of Forestry and Fire Protection is soliciting public comment on the proposal to amend §1038(i) of Title 14 of the California Code of Regulations concerning the 2007 Forest Fire Prevention Exemption 2007. The hearing will be held October 10, 2007. Comments are due October 1, 2007. See http://www.oal.ca.gov/pdfs/notice/33z-2007.pdf (pp. 1355-1357)

COLORADO

Air:

  • Department of Public Health and Environment, Air Quality Control Commission, adopted numerous permanent rules, including 5 CCR 1001-3, Regulation No. 1, Emission Control for Particulate Matter, Smoke, Carbon Monoxide, and Sulfur Oxides; 5 CCR 1001-10, Regulation No. 8, Control of Hazardous Air Pollutants; 5 CCR 1001-11, Regulation No. 9, Open Burning, Prescribed Fire, and Permitting; and 5 CCR 1001-13, Regulation No. 11, Motor Vehicle Emissions Inspection Program. These rules become effective August 30, 2007. See http://www.sos.state.co.us/CCR/RegisterContents.do?Volume=30&Month=8&Year=2007
  • The Air Quality Control Commission will conduct a public hearing to consider a proposal to adopt a regional haze element to the Colorado SIP and proposed revisions to Regulation Number 3 to establish an effective date for the implementation of the Best Available Retrofit Technology requirements of the federal regional haze rule that are a part of the SIP revision. The hearing will be held September 15 and 16, 2007. See http://www.cdphe.state.co.us/op/aqcc/aqccdown/NoticeReg3November.pdf

Toxic Substances:

  • The Department of Public Health and Environment, Hazardous Materials and Waste Management Division, adopted the following permanent rules: 6 CCR 1007-1, Part 01, Radiation Control—General Provisions; 6 CCR 1007-1, Parts 16-20, Radiation Control; and 6 CCR 1011-1, Standards for Hospitals and Health Facilities. These rules become effective August 30, 2007. See http://www.sos.state.co.us/CCR/RegisterContents.do?Volume=30&Month=8&Year=2007

Water:

  • The Colorado Water Quality Control Commission will conduct a public hearing to consider the adoption of revisions to current temporary modifications of water quality standards expiring on or before February 28, 2010, for multiple segments in the Classifications and Numeric Standards for Arkansas River Basin, Regulation #32 (5 CCR 1002-32); Upper Colorado River Basin and North Platte River (Planning Region 12), Regulation #33 (5 CCR 1002-33); Lower Colorado River Basin, Regulation #37 (5 CCR 1002-37); and South Platte River Basin, Laramie River Basin, Republican, Smoky Hill River Basin, Regulation #38 (5 CCR 1002-38). The hearing will be held December 10, 2007. See http://www.cdphe.state.co.us/op/wqcc/MeetingsandHearings/HearingNotices/rulemaking/NoticeTempMods2007.pdf
  • The Colorado Water Quality Control Commission will conduct a public hearing to consider revisions to statewide organic chemicals standards in the Basic Standards and Methodologies for Surface Water, Regulation #31 (5 CCR 1002-31) and in the Basic Standards for Ground Water, Regulation #41 (5 CCR 1002-41), as well as other proposed revisions to Regulation #41. The hearing will be held December 10, 2007. See http://www.cdphe.state.co.us/op/wqcc/MeetingsandHearings/HearingNotices/rulemaking/31_41Notice.pdf

CONNECTICUT

Air:

  • The Commissioner of Environmental Protection will hold a public hearing on its proposal to adopt section 22a-174-44 of the Regulations of Connecticut State Agencies. This new section would regulate air emissions from the use of adhesives and sealants. The emissions reductions associated with this new section would assist the state in attaining and maintaining the eight-hour NAAQS. It will be submitted to the U.S. EPA for review and approval as a revision to the SIP. The hearing will be held October 16, 2007. See http://www.ct.gov/dep/cwp/view.asp?A=2586&Q=391476

DELAWARE

Air:

  • The Division of Air & Waste Management announced that the public hearing originally scheduled for Thursday, August 23, 2007, on amendments to Regulation No. 32, Transportation Conformity, has been rescheduled for September 24, 2007. The proposed amendments would simplify Delaware's transportation conformity regulations and would bring the Salisbury/Wicomico Metropolitan Planning Organization into the Interagency Transportation Conformity Consultation Workgroup. See http://www.dnrec.state.de.us/DNREC2000/Admin/Press/PublicNotices/PNDetail.asp?NOVID=2501

DISTRICT OF COLUMBIA

Air:

FLORIDA

Water:

  • The Department of Environmental Protection proposed amendments to rule 62-4.050, Procedures to Obtain Permits and Other Authorizations, and rule 62-4.052, Regulatory Program and Surveillance Fees for Wastewater Facilities or Activities Discharging to Surface Waters. If requested, a hearing will be held September 3, 2007. See http://faw.dos.state.fl.us/newfaw/FAWVOLUMEFOLDERS2007/3332/SECTII.pdf (pp. 3625-3628)

General:

  • The Department of Agriculture and Consumer Affairs will conduct a hearing on its proposal to provide funding for renewable energy matching grants for demonstration, commercialization, research, and development projects relating to bioenergy projects. The proposed new rule would implement the statutory requirements of Section 570.975, Florida Statutes, established by the Florida Legislature. The hearing will be held September 10, 2007. See http://faw.dos.state.fl.us/newfaw/FAWVOLUMEFOLDERS2007/3333/SECTII.pdf (pp. 3761-3765)

IDAHO

Toxic Substances:

  • The Department of Environmental Quality seeks public comment on proposed rulemaking to further limit the types of radioactive materials that are eligible for unrestricted disposal in Idaho by adding a new category of radioactive materials that must be disposed of at a permitted hazardous waste disposal facility. Comments are due August 29, 2007. See http://www.deq.idaho.gov/rules/radioactive_materials/58_0110_0701_proposed.cfm

IOWA

Toxic Substances:

LOUISIANA

Air:

  • The Department of Environmental Quality amended air regulations LAC 33:III.507, 2160, 3003, 5116, 5122, 5311, and 5901 (Log #AQ284ft). This rule is identical to federal regulations found in 40 CFR Parts 51, Appendix M, 60, 61, 63, 68, and 70.6.(a); 72 Fed. Reg. 27437-27443 (May 16, 2007); and 72 Fed. Reg. 26 (January 3, 2007). See http://www.doa.louisiana.gov/osr/reg/0708/0708RUL.pdf (pp. 1619-1621)
  • The Department of Environmental Quality amended the air regulations LAC 33:III.506 (Log #AQ285). This rule defines the state's methodology under the Clean Air Interstate Rule (CAIR) Nitrogen Oxide (NOx) Annual and Ozone Season Trading Programs for allocating NOx allowances to electrical generating units subject to CAIR. See http://www.doa.louisiana.gov/osr/reg/0708/0708RUL.pdf (pp. 1621-1624)
  • The Department of Environmental Quality is seeking to incorporate revised substantive changes to the proposed amendments to the air quality regulations at LAC 33:III.211, 223, 551, 5101, 5103, 5105, 5107, 5109, 5111, and 5112 (Log # AQ256S1), concerning the Comprehensive Toxic Air Pollutant Emission Control Program. A hearing will be held September 26, 2007. Comments are due October 3, 2007. See http://www.deq.louisiana.gov/portal/portals/0/planning/regs/pdf/AQ256S1pro.pdf
  • The Department of Environmental Quality is seeking to incorporate substantive changes to the proposed amendments to the Office of the Secretary regulations, LAC 33:I.3905, 3919, 3925, and 3931 (OS078S), concerning notification requirements and the reportable quantity list. A hearing will be held September 26, 2007. Comments are due October 3, 2007. See http://www.deq.louisiana.gov/portal/portals/0/planning/regs/pdf/OS078Spro.pdf

Hazardous & Solid Wastes:

  • The Department of Environmental Quality amended the hazardous waste regulations at LAC 33:V.109, 305, 323, 517, 2309, 3013, 3719, 4339, 4357, 4501, and 4901. This rule makes minor corrections to several sections of the hazardous waste regulations. The corrections include missing and out-of-place words, incorrect citations, formatting errors, missing capitalizations, and a modified definition. See http://www.doa.louisiana.gov/osr/reg/0708/0708RUL.pdf (pp. 1624-1627)

Water:

  • The Department of Environmental Quality initiated rulemaking procedures to amend the water quality regulations at LAC 33:IX.2315, 2501, 2707, 3113, 4730, 4735, and 4761-4779, concerning cooling water intake structures and the application of pesticides. This proposed rule is identical to federal regulations found in 71 Fed. Reg. 35006 (June 16, 2006); 71 Fed. Reg. 68492 (November 27, 2006); and 72 Fed. Reg. 37107-09 (July 9, 2007), which are applicable in Louisiana. A hearing will be held September 26, 2007. Comments are due September 26, 2007. See http://www.deq.louisiana.gov/portal/portals/0/planning/regs/pdf/WQ071ftpro.pdf

MAINE

Air:

  • The Maine Department of Environmental Protection, Bureau of Air Quality, is soliciting public comment on amendments to Ch. 121, Emission Limitations And Emission Testing Of Resource Recovery Facilities; and §111(d) Municipal Waste Combustor State Plan for Large and Small (Class I and II) Facilities. This state plan and amendments would update the emission standards for municipal waste combustors in the state of Maine. Comments are due September 21, 2007. See http://www.maine.gov/sos/cec/rules/notices/2007/082207.htm
  • The Department of Environmental Protection will conduct a public hearing on proposed adoption of Ch. 156, Carbon Dioxide (CO2) Budget Trading Program. The proposed rule would establish the Maine component of the CO2 Budget Trading Program, which is designed to stabilize and then reduce man-made emissions of CO2, a greenhouse gas, from large electric generators. The hearing will be held September 6, 2007. Comments are due September 20, 2007. See http://www.maine.gov/sos/cec/rules/notices/2007/082207.htm
  • The Department of Environmental Protection will conduct a public hearing on proposed adoption of Ch. 157, Carbon Dioxide (CO2) Budget Trading Program Waiver and Suspension. The regulation would provide the Department Commissioner the authority, under exceptional circumstances, to waive or suspend requirements of the CO2 Budget Trading Program, 06-096 CMR Ch. 156. The hearing will be held September 6, 2007. Comments are due September 20, 2007. See http://www.maine.gov/sos/cec/rules/notices/2007/082207.htm

Fisheries:

  • The Department of Marine Resources seeks comment on proposed amendments to Ch. 36.01(D)(1)&(3), Herring Management Plan, Catch restrictions. The proposed amendments would bring Maine's herring regulations into compliance with the Atlantic States Marine Fisheries Commission, Technical Addendum I to Amendment 2 to the Interstate Fishery Management Plan for Atlantic Herring, regarding zero tolerance of spawn herring taken from within a restricted spawning management area. The vessel transit provision, when carrying legally caught spawn herring, would also be amended to require that all fishing gear be stowed when transiting a closed area. Comments are due September 14, 2007. See http://www.maine.gov/sos/cec/rules/notices/2007/082207.htm

MASSACHUSETTS

General:

  • The Massachusetts Department of Environmental Protection will hold four public hearings on the adoption and amendment of the following regulations: 310 CMR 7.70, Carbon Dioxide (CO2) Budget Trading Program; 310 CMR 7.29, Emissions Standards for Power Plants; and 310 CMR 7.00 Appendix B(7), Emission Banking, Trading, and Averaging. 310 CMR 7.70 would implement a cap and trade system to control emissions of CO2 from power plants in Massachusetts. It is based on the Model Rule that was developed as part of the Regional Greenhouse Gas Initiative. Portions of 310 CMR 7.29 addressing CO2 emissions from six power plants in the commonwealth would be modified and ultimately replaced by 310 CMR 7.70. Likewise, 310 CMR 7.00, addressing the creation of Greenhouse Gas Credits, would be modified and ultimately replaced by 310 CMR 7.70. The hearings will be held September 10-12, 2007. Comments are due September 24, 2007. See http://www.mass.gov/dep/public/hearings/co2trade.htm

MINNESOTA

Water:

  • The Minnesota Pollution Control Agency seeks comments on the draft report for the Pomme de Terre River from Muddy Creek to Marsh Lake Fecal Coliform TMDL. One reach in the Pomme de Terre River Watershed is impaired because it does not meet the fecal coliform bacteria water quality standard. The draft TMDL is available for review at http://www.pca.state.mn.us/water/tmdl/tmdl-draft.html. Following the comment period, the agency will revise the draft TMDL Report and submit it to U.S. EPA for approval. Comments are due September 20, 2007. See http://www.comm.media.state.mn.us/bookstore/stateregister/32_08.pdf (pp. 350-351).

MISSOURI

Air:

MONTANA

Toxic Substances:

Water:

  • The Fish, Wildlife and Parks Commission has repealed emergency rules closing the Missouri River from American Bar Gulch to Beartooth Landing, Lewis and Clark County, Montana. As conditions have substantially changed and public safety is no longer an issue, the temporary emergency rule is no longer necessary. See http://sos.mt.gov/arm/Register/archives/MAR2007/MAR07-16.pdf (p. 1182)
  • The Fish, Wildlife and Parks Commission adopted emergency rules closing Placid Lake and Seeley Lake, Missoula County, for aircraft to scoop water from the lakes. This rule became effective August 10, 2007. See http://sos.mt.gov/arm/Register/archives/MAR2007/MAR07-16.pdf (pp. 1183-1184)
  • The Fish, Wildlife and Parks Commission adopted emergency rules closing Lake Inez, Missoula County, for aircraft to scoop water from the lake to fight nearby fires. This rule became effective August 14, 2007. See http://sos.mt.gov/arm/Register/archives/MAR2007/MAR07-16.pdf (pp. 1185-1186)
  • The Board of Environmental Review will hold a public hearing in the matter of the amendment of ARM 17.38.101 and 17.38.106, pertaining to plans for public water supply or wastewater system and fees. The hearing will be held August 30, 2007. See http://deq.mt.gov/dir/legal/Notices/17-262pro.pdf

Wildlife:

NEVADA

Air:

Land Use:

Toxic Substances:

NEW HAMPSHIRE

Air:

Water:

NORTH CAROLINA

Water:

  • The Department of Environment and Natural Resources will conduct public hearings to consider its proposal to amend 15A NCAC 02H .1005, Stormwater Requirements: Coastal Counties. The proposed amendments would extend controls similar to the more stringent Phase 2 Stormwater control requirements that were mandated for several of the Coastal Counties in Session Law 2006-246 to all 20 of North Carolina's Coastal Counties. This rulemaking is deemed necessary as a result of a study that found that the existing rules were outdated and ineffective in protecting some of the state's coastal aquatic resources. The hearing will be held September 18, 20, and 25, and October 2, 2007. Comments are due October 15, 2007. See http://www.ncoah.com/rules/register/Volume22Issue04August152007.pdf (pp. 241-244)

OHIO

Water:

  • The Ohio Environmental Protection Agency will conduct a public hearing to consider Rule # 3745-520-50, Groundwater monitoring fee. The proposed rule would levy a five cent per cubic yard or ten cent per ton fee on the disposal of construction and demolition debris at a construction and demolition debris facility to be used to fund and conduct groundwater monitoring of these facilities by the licensing authority. The hearing will be held September 12, 2007. Comments are due September 12, 2007. See http://www.registerofohio.state.oh.us/pdfs/phn/3745_NO_38344_20070810_1340.pdf
  • The Ohio Environmental Protection Agency (Ohio EPA) will conduct a public hearing to consider Rule # 3745-39-04, Ohio EPA NPDES requirements for industries, and large and medium municipal separate storm sewer systems. The hearing will be held September 20, 2007. Comments are due September 21, 2007. See http://www.registerofohio.state.oh.us/pdfs/phn/3745_NO_38380_20070814_1003.pdf

OKLAHOMA

Hazardous & Solid Wastes:

  • The Department of Environmental Quality will conduct public hearings to consider the adoption of several permanent and emergency rules pertaining to solid waste fees for recoupment of wheel wash costs. Hearings will be held September 20, 2007, and November 15, 2007. Comments are due September 20, 2007. See http://www.oar.state.ok.us/register/Volume-24_Issue-23.htm#a16173
  • The Department of Environmental Quality will conduct public hearings to consider the adoption of several permanent and emergency rules pertaining to the management of waste tires. Hearings will be held September 20, 2007, and November 15, 2007. Comments are due September 20, 2007. See http://www.oar.state.ok.us/register/Volume-24_Issue-23.htm#a16173
  • The Department of Environmental Quality will conduct public hearings to amend OAC 252:515 by replacing Appendix C, List of Hazardous Inorganic and Organic Constituents, with a new list. Hearings will be held September 20, 2007, and November 15, 2007. Comments are due September 20, 2007. See http://www.oar.state.ok.us/register/Volume-24_Issue-23.htm#a16173

Water:

  • The Department of Environmental Quality will hold public hearings on proposed changes to the Water Quality Application Tier rules. The proposed changes would clean up language to make the classifications of Tier I permits consistent, clarify that modifications to or the addition of impoundments to an existing permitted industrial wastewater system is a Tier I application, and add language to clarify that a new industrial wastewater treatment system application is classified as a Tier II. The hearings will be held October 2, 2007, and November 15, 2007. Comments are due October 2, 2007. See http://www.oar.state.ok.us/register/Volume-24_Issue-23.htm#a16173
  • The Department of Environmental Quality will conduct public hearings to consider the amendment, adoption, and revocation of numerous permanent rules concerning the Drinking Water State Revolving Fund. The hearings will be held October 2, 2007, and November 15, 2007. Comments are due October 2, 2007. See http://www.oar.state.ok.us/register/Volume-24_Issue-23.htm#a16173

RHODE ISLAND

Hazardous & Solid Wastes:

  • The Rhode Island Department of Environmental Management will conduct a public hearing on the proposed amendment of Rules and Regulations for Composting Facilities and Solid Waste Management Facilities. The hearing will be held September 20, 2007. Comments are due September 20, 2007. See http://www.dem.ri.gov/programs/benviron/waste/sw137pn.htm

Water:

  • The Rhode Island Department of Environmental Management will conduct a public hearing on proposed amendments to the Rules and Regulations Establishing Minimum Standards Relating to Location, Design, Construction and Maintenance of Individual Sewage Disposal Systems. The hearing will be held September 21, 2007. Comments are due September 28, 2007. See http://www.dem.ri.gov/programs/benviron/water/permits/isds/draftreg.htm

SOUTH CAROLINA

Water:

SOUTH DAKOTA

Water:

  • The Board of Minerals and Environment will conduct a public hearing to consider amendments to one of the Underground Injection Control Class II rules that apply to oil field injection wells. The intent of the amendment is to protect potential underground sources of drinking water. The hearing will be held September 19, 2007. Comments are due September 18, 2007. See http://www.state.sd.us/denr/DES/Ground/UIC/Notice_of_Public_Hearing_UIC_Rule_Change.pdf

TENNESSEE

Water:

TEXAS

Air:

  • The Texas Commission on Environmental Quality will hold a public hearing on proposed revisions to 30 TAC Chapter 116, Control of Air Pollution by Permits for New Construction or Modification, and to the SIP. The hearing will be held September 24, 2007. Comments are due September 26, 2007. See http://www.tceq.state.tx.us/assets/public/legal/rules/rule_lib/proposals/07023116_phn.pdf
  • The Texas Commission on Environmental Quality will hold a public hearing on proposed revisions to 30 TAC Chapter 113, Standards of Performance for Hazardous Air Pollutants and for Designated Facilities and Pollutants, and to the SIP. The hearing will be held September 18, 2007. Comments are due September 24, 2007. See http://www.tceq.state.tx.us/assets/public/legal/rules/rule_lib/proposals/07012113_phn.pdf
  • The Texas Commission on Environmental Quality will hold public hearings on proposed revisions to 30 TAC Chapter 114, Control of Air Pollution from Motor Vehicles, §114.622, and to the SIP. The proposed rulemaking would authorize the commission to allow travel on designated highways and roadways to count towards the requirement that grant-funded vehicles operate at least 75% of the annual miles in the eligible counties; raise the cost-effectiveness criteria from $13,000 per ton of nitrogen oxides reduced to $15,000 per ton; and remove the option that vehicles, equipment, and engines replaced under the program be removed from the state in lieu of being recycled or scrapped. The hearing will be held September 11, 2007. Comments are due September 12, 2007. See http://www.tceq.state.tx.us/assets/public/legal/rules/rule_lib/proposals/07022114_phn.pdf
  • The Texas Commission on Environmental Quality will conduct a public hearing on proposed revisions to 30 TAC Chapter 116, Control of Air Pollution by Permits for New Construction or Modification, and to the SIP. The proposed rulemaking would revise §116.114(a) to add deadlines associated with the review of Advanced Clean Energy Projects permit applications. The hearing will be held September 24, 2007. Comments are due September 26, 2007 See http://www.tceq.state.tx.us/assets/public/legal/rules/rule_lib/proposals/07023116_phn.pdf

Toxic Substances:

  • The Texas Commission on Environmental Quality will conduct a public hearing on proposed revisions to 30 TAC Chapter 37, Financial Assurance; Chapter 39, Public Notice; Chapter 281, Applications Processing; and Chapter 336, Radioactive Substance Rules. The proposed rulemaking would implement Senate Bill 1604 from the 80th Texas Legislative Session relating to the transfer of certain regulatory responsibilities for radioactive waste from the Texas Department of State Health Services to the Texas Commission on Environmental Quality. The hearing will be held September 25, 2007. Comments are due October 15, 2007. See http://www.tceq.state.tx.us/assets/public/legal/rules/rule_lib/proposals/07028336_phn.pdf

Water:

  • The Texas Commission on Environmental Quality seeks comment on proposed rule, HB 4, SB 3: Water Conservation Plan Review. The intent of this rulemaking is to implement water conservation plan legislation from the 80th Texas Legislative Session. Comments are due October 9, 2007. See http://www.tceq.state.tx.us/rules/prop.html#07023

WISCONSIN

Fisheries:

  • The Department of Natural Resources held public hearings on revisions to chs. NR 19 and 20, Wis. Adm. Code, relating to the control of fish diseases and invasive species. The proposed rule would make permanent and clarify recent emergency measures for the control and prevention of viral hemorrhagic septicemia in fish in waters of the state. The hearings were held August 23, 2007. See http://www.dnr.state.wi.us/org/caer/ce/news/hearmeet.html

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

INTERNATIONAL

IRAQ SEEKS WATER AGREEMENT WITH SYRIA AND TURKEY

The Iraqi government has requested that neighboring countries collaborate to develop a treaty that will govern regional water supplies. Water levels on the Tigris and the Euphrates Rivers, which provide most of Iraq’s water, have fallen dramatically over the past few decades. Iraq is concerned that upstream damming projects in Turkey and Syria could further decrease downstream water levels. In addition, Iraqi Water Resources Minister Abdul Latif Rasheed hopes that a regional water agreement could prevent potential armed conflict over water resources in the future. See http://www.reuters.com/article/environmentNews/idUSL2314804420070823?feedType=RSS&feedName=environmentNews&rpc=22&sp=true BRAZIL ANNOUNCES DECREASE IN DEFORESTATION IN AMAZON The president of Brazil, Luiz Inacio da Silva, announced that the annual rate of Amazonian deforestation dropped 25 percent in 2005-2006, while the country experienced a 3.7 percent increase in economic growth. The president anticipates a further drop in the deforestation rate for the 2006-2007 cycle. Government officials attribute the decrease in deforestation to improved enforcement of environmental laws, but environmental groups believe that the reduction was largely due to the depressed price of soybeans and the strengthening of Brazil’s currency, which has made clearing forests for crops less profitable. In a similar vein, environmentalists also have expressed concern that increasing international interest in biofuels will contribute to deforestation, although the president believes that the country can use degraded lands, instead of old growth forest, to meet agricultural demand. See http://www.msnbc.msn.com/id/20261736/

VANCOUVER FACES SECOND MAJOR OIL SPILL IN LAST TWO MONTHS

On August 20, a barge overturned near Vancouver Island, dumping a diesel fuel truck into the waters by an ecological reserve. Approximately 50 killer whales have been observed swimming through the slick, which was reported as being between two and eight kilometers long. The quantity of diesel leaked into the ocean is unknown. British Columbia’s Ministry of the Environment claims that the accident occurred outside of the reserve, but other reports claim that it happened inside the boundaries. While strong currents will dissipate the oil quickly, scientists have expressed concerns about the whales’ exposure to the harmful fumes. See http://www.enn.com/animals/article/22116

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

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