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Weekly Update Volume 37, Issue 26

09/17/2007

LITIGATION

CAA, GREENHOUSE GASES, AUTOMOBILES:

A district court ruled that states have the authority to adopt California's more stringent tailpipe laws that control greenhouse gases from cars. CAA §209(a) preempts states from adopting their own motor vehicle emission control standards. However, CAA §209(b) requires EPA to waive preemption for a California-adopted standard that meets certain conditions. Other states may adopt a California standard for which waiver has been granted. At the same time, §502 of the Energy Policy and Conservation Act (EPCA) directs the DOT to set corporate average fuel economy (CAFE) standards for new passenger vehicles and light trucks. In 2005, Vermont adopted California's greenhouse gas emissions standards for new automobiles. Because EPCA §509 preempts any state laws or regulations related to fuel economy standards, and because there is an arguable relationship between decreasing carbon dioxide emissions from the tailpipe of a motor vehicle and increasing its fuel economy, a number of automobile manufacturers, dealers, and associations challenged Vermont's regulations, arguing that they were preempted by the EPCA. The court rejected their claims. Given the legislative history of the CAA and EPCA, Congress intended California emissions standards for which EPA granted a waiver pursuant to CAA §209(b) to constitute "other motor vehicle standards of the Government" that the DOT must consider when establishing CAFE standards under EPCA §502. The court applied principles of express, field, and conflict preemption to the regulations, finding in each case that the auto industry failed to prove the regulations were preempted. Congress did not intend that regulations adopted by California for which EPA grants a waiver under CAA §209(b) be preempted. In addition, the regulations at issue set greenhouse gas emissions standards and are sufficiently unrelated to fuel economy standards not to be expressly preempted. Further, Congress did not intend EPCA's CAFE standards to occupy the field of fuel economy exclusively. The court also concluded that the auto industry failed to demonstrate that Vermont's greenhouse gas regulations represent an insufferable intrusion upon the field of foreign affairs, or that they conflict with national foreign policy. Green Mountain Chrysler Plymouth Dodge Jeep v. Crombie, Nos. 2:05-cv-302, -304, 37 ELR 20232 (D. Vt. Sept. 12, 2007) (Sessions, J.) (244 pp.).

SOLID WASTE, PREEMPTION:

The Third Circuit remanded a lower court decision that all of New Jersey's health, safety, and environmental regulations concerning the transfer of solid waste from truck to rail car were preempted by the Interstate Commerce Commission Termination Act. In so ruling, the court found that all of the state regulations were preempted rather than considering each regulation separately. The Termination Act, however, does not preempt state regulation if it is nondiscriminatory and not unreasonably burdensome. Because it appears from the record that some, but not all, of the regulations may meet this test, the lower court's order permanently enjoining the state from enforcing the regulations was vacated. On remand, the court must individually consider each regulation. New York Susquehanna & Western Railway Corp. v. Jackson, No. 07-1675, 37 ELR 20228 (3d Cir. Sept. 4, 2007) (47 pp.).

NEPA, MINING:

The Ninth Circuit upheld an injunction limiting, but not entirely prohibiting, coal-bed methane development in the Powder River Basin of Montana and Wyoming while the BLM expands its EIS for the project. The lower court concluded that although the final EIS was generally sufficient under NEPA, it improperly failed to consider the "phased development" alternative proposed by the commenters. The court then issued a partial injunction, as proposed by BLM, prohibiting coal-bed methane development on 93% of the resource area until BLM completed a revised EIS, but permitting development on 7% of the resource area. In essence, the district court allowed what amounted to the phased development alternative to proceed while BLM decided whether to adopt it. Because the partial injunction provides an equitable resolution consistent with the purposes of NEPA, the court did not abuse its discretion. Northern Cheyenne Tribe v. Norton, Nos. 05-35408 et al., 37 ELR 20227 (9th Cir. Sept. 11, 2007) (22 pp.).

INJUNCTIONS, SONAR:

The Ninth Circuit granted the U.S. Navy's emergency motion to stay a preliminary injunction prohibiting its use of sonar during training activities. Environmental groups argued that the Navy's use of sonar was harmful to the environment, particularly whales. The lower court issued an injunction, but it failed to provide any explanation as to why it absolutely prohibited the use of medium frequency active sonar in the Navy's training program rather than tailor the injunction with mitigation measures that had been approved in prior litigation. The lower court's injunction, therefore, was stayed pending appeal of the case. Natural Resources Defense Council, Inc. v. Winter, No. 07-56157, 37 ELR 20229 (9th Cir. Aug. 31, 2007) (25 pp.).

CONSTITUTIONAL LAW, EQUAL PROTECTION:

The Eleventh Circuit reversed and remanded a lower court decision allowing a chicken plant owner's equal protection claims against various state and local officials to go forward. The owner filed a §1983 suit against the officials on the theory that they violated the owner's constitutional right to equal protection by subjecting the plant to more rigorous environmental regulation than its competitor. The owner, however, failed to sufficiently allege a violation of its equal protection rights on a "class of one" theory. The owner was not similarly situated to its competitor in light of all the factors that would be relevant to an objectively reasonable governmental decisionmaker. Moreover, there was a rational basis for the officials' actions. And even if the owner did state an equal protection claim, the officials did not violate any right that was clearly established at the time. Hence, they are protected by qualified immunity. Griffin Industries, Inc. v. Irvin, No. 06-12370, 37 ELR 20230 (11th Cir. Aug. 21, 2007) (14 pp.).

CERCLA, LIABILITY:

A district court held that the United States is an "owner" of the Midnite Mine Superfund site, a former open-pit uranium mine located on a Native American reservation in Washington state. The United States filed a cleanup action against several mining companies under CERCLA. The companies filed counterclaims, arguing that the United States was an owner of the site. It is undisputed that the United States holds title to the Spokane Indian Reservation. The United States also possessed some other "indicia of ownership" of the property. Hence, the United States' bundle of ownership rights, along with its title to the property, is more than sufficient to find it to be an owner under CERCLA. The United States had the authority to prevent the very contamination for which it brings this action. This finding is supported by CERCLA's overarching purpose to impose costs of the cleanup on those responsible for the contamination. In addition, the companies' counterclaims were not barred by a CERCLA provision limiting a fiduciary's liability to the value of trust assets. United States v. Newmont USA Ltd., No. CV-05-020-JLQ, 37 ELR 20234 (E.D. Wash. Aug. 21, 2007) (Quackenbush, J.) (19 pp.).

CERCLA, NATURAL RESOURCE DAMAGE ASSESSMENT COSTS:

A district court denied the United States' motion to dismiss a Native American tribe's CERCLA claims for natural resource damage assessment costs in connection with the government's release of radionuclides and other hazardous substances at the Hanford Nuclear Reservation in Washington. The government argued that the claims were not ripe because the final remedial action has not yet been selected. However, an action for the recovery of injury assessment costs under CERCLA §107(a)(4)(C) is ripe when such costs are incurred. Ripeness does not depend on the selection of a "remedial action" specified in §113(g)(1). This allows the remedial action to address whatever natural resource damage there may be. Hence, CERCLA §113(g)(1) does not apply to the tribe's claim for natural resource damage assessment costs, and the government's motion to dismiss was denied. Confederated Tribes & Bands of the Yakima Nation v. United States, No. CY-02-3105-LRS, 37 ELR 20238 (E.D. Wash. Sept. 4, 2007) (Suko, J.) (5 pp.).

STANDING, INJURY:

A district court dismissed environmental groups' claims that emergency orders issued by the state of Louisiana following Hurricanes Katrina and Rita conflict with and/or are preempted by RCRA, the CWA, and the CAA. The orders altered existing state regulations for the disposal of solid waste at certain landfills. The court ruled that the groups lacked standing. While the orders present a live controversy with respect to six landfills, the groups failed to show that they have suffered injuries as a result of activities at these facilities. The groups have established that they find the sights and smells of landfills offensive, but they have not alleged that their injuries are a result of activities that violate RCRA, the CWA, and the CAA. Louisiana Environmental Action Network v. McDaniel, No. 06-4161, 37 ELR 20237 (E.D. La. Sept. 5, 2007) (Vance, J.) (5 pp.).

ESA, INCIDENTAL TAKE PERMITS:

A district court upheld the No Surprises Rule and the Permit Revocation Rule, promulgated by FWS and NOAA-Fisheries under the ESA. Both rules concern incidental take permits made available to landowners and developers who agree to mitigate impacts to listed species through a habitat conservation plan. The Permit Revocation Rule significantly narrows the circumstances under which the agencies may revoke incidental take permits. So long as "the taking will not appreciably reduce the likelihood of the survival and recovery of the species in the wild," the permittee commits no procedural violations, and the law does not change, the rule precludes the agencies from revoking an incidental take permit. Native American and environmental organizations argued that the Permit Revocation Rule is contrary to the ESA under Chevron because the ESA as a whole and §10 in particular require measures that insure the survival and recovery of listed species. They also argued that the rule contradicts the ESA's general purpose of protecting the recovery of listed species. Yet the statutory criteria for habitat conservation plans under ESA §10 directly undercut their arguments that incidental take permits must promote the recovery of listed species. To the contrary, applicants are only required to minimize and mitigate the impact on species "to the maximum extent possible." Further, the statutory text of ESA §10 demonstrates congressional intent to allow the agencies to grant incidental take permits even if they do not protect the recovery of listed species. Incidental take permits may be granted if the likelihood of recovery, but not survival, is appreciably reduced. Nor is the No Surprises Rule contrary to the ESA. The groups argued that the No Surprises Rule makes more permanent conditions in an incidental take permit that may not promote or maintain the recovery of listed species. But as discussed above, the ESA does not require such permits to promote or maintain the recovery of species. The court also held that the rules are not arbitrary or capricious under the APA. Spirit of the Sage Council v. Kempthorne, No. No. 98-1873 (EGS), 37 ELR 20235 (D.D.C. Aug. 30, 2007) (Sullivan, J.) (9 pp.).

INSURANCE, DUTY TO DEFEND, DUTY TO INDEMNIFY:

A district court held that an insurance company has a duty to defend, but not indemnify, a plumber and his employer in an underlying action concerning damages suffered by an individual who inhaled noxious fumes after the plumber poured chemicals down a clogged drain. Under Hawaiian case law, an insurer's obligation to defend is broader than the duty to pay claims and arises wherever there is the mere potential for coverage. But there is a deep split among state courts regarding whether a total pollution exclusion precludes coverage in cases of personal injury resulting from relatively isolated inhalation or exposure to pollutants or whether such clauses only preclude coverage in cases of "traditional" environmental pollution. Hawaii has yet to rule on the issue. Because the underlying complaint raised the possibility that the plumber and his employer were entitled to indemnification, the court ruled that the insurance company has a duty to defend. However, based on the terms of the policy, the court concluded that the total pollution exclusion clause excludes coverage for bodily injuries resulting from the contamination of the air. The insurance company, therefore, has no duty to indemnify the plumber and his employer for the individual's injuries. Apana v. TIG Insurance Co., No. 06-00653JMS/LEK, 37 ELR 20031 (D. Haw. Aug. 16, 2007) (Seabright, J.) (6 pp.).

INJUNCTION, RADIOACTIVE WASTE:

A district court denied DOE's motion to preliminarily enjoin Nevada from interfering with DOE's use of water for borehole drilling so that it may proceed with development and operation of the national nuclear waste repository at Yucca Mountain. Despite an earlier stipulation among the parties, the DOE announced in February 2007 that it needed 4 million gallons of water to drill 48 bore holes to obtain geotechnical information below the footprints of the surface facilities planned for the repository. The State Engineer ultimately issued a cease-and-desist order. DOE filed the instant action to enjoin the order. In the meantime, it has resumed the drilling operations and apparently has refused entry by the State Engineer to enforce the order. The court ruled that DOE failed to meet any of the criteria necessary to justify a preliminary injunction against the state precluding it from exercising its rights and duties with respect to state water law and state water rights. DOE presented no evidence or argument to demonstrate that it would prevail in the underlying case, i.e., to prove that the State Engineer's denial was unreasonable, arbitrary, or incorrect. There is no congressional or legal mandate for bore hole drilling, and there is no reason to believe that the DOE's deadlines are mandated by any congressional mandate or federal law. The arbitrariness of the DOE's actions is underscored by its increasing demand for more water. The DOE has intentionally multiplied its demands to create a crisis of its own making. Further, the drilling can be accomplished by trucking water from a well for which the DOE already has a permit. And since it was the DOE's desire to use more (and more) water for the bore drilling project, and there was a stipulation in place that limited the amount of water it would use, the burden was on the DOE to initiate discussions to reach an agreement about water use. Nor can the court attribute any damages due to delay caused by the cease-and-desist order that were not already the result of the DOE's own actions. And the potential hardship upon the state and its rights is far greater that any potential hardship upon the DOE for short term delays or the curtailing of the DOE's activities back to its original projections and promises. United States v. Nevada, No. 2:00-CV-0268-RLH-LRL, 37 ELR 20236 (D. Nev. Aug. 31, 2007) (Hunt, J.) (12 pp.).

CONSTITUTIONAL LAW, DAMAGES:

The Montana Supreme Court held that where adequate alternative remedies exist under the common law or statute, the right to a clean and healthful environment under the Montana Constitution does not authorize a distinct cause of action in tort for money damages between two private parties. Downstream landowners brought an action against a mining company for contamination of their property, alleging tort claims and a right to money damages for violating their constitutional right to a clean and healthful environment. Because the landowners provided no indication that traditional tort remedies, amplified by restoration damages, will not afford them complete redress for the environmental damage, the lower court properly denied damages. Shammel v. Canyon Resources Corp., No. 05-206, 37 ELR 20233 (Mont. Aug. 20, 2007) (2 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 revisions to the regulations governing state and federal operating permit programs and the new source review program to provide greater operational flexibility. 72 FR 52205 (9/12/07).
  • EPA proposed amendments to NESHAPs for petroleum refineries and proposed two options for both wastewater treatment systems and storage vessels based on the results of its eight-year residual risk and technology review; in addition, the Agency proposed two options for amendments to add emissions standards for cooling towers. 72 FR 50715 (9/4/07).
  • EPA proposed to approve a tribal implementation plan submitted by the Mohegan Tribe of Indians of Connecticut that establishes an enforceable cap on nitrogen oxide emissions from stationary sources owned by the Mohegan Tribal Gaming Authority and located within the external boundaries of the Mohegan Reservation. 72 FR 51204 (9/6/07).
  • SIP Approvals: Delaware (control of volatile organic compound (VOC) emissions from crude oil lightering operations) 72 FR 52285 (9/13/07). Indiana (VOC emissions from fuel grade ethanol production operations) 72 FR 52286 (9/13/07). Kentucky (VOC definition updates) 72 FR 52282 (9/13/07). Minnesota (particulate matter with a diameter of 10 microns or less (PM10) for Lafarge North America Corporation) 72 FR 51713 (9/11/07). New Hampshire (revised carbon monoxide (CO) maintenance plan for Nashua) 72 FR 51564 (9/10/07). New Mexico (PSD and nonattainment new source review regulations) 72 FR 50879 (9/5/07). North Carolina (revisions to the Mecklenburg County Air Pollution Control Ordinance (MCAPCO)) 72 FR 52010 (9/12/07). Tennessee (PSD and new source review) 72 FR 52472 (9/14/07). West Virginia (clean air interstate rule (CAIR)) 72 FR 52289 (9/13/07).
  • SIP Proposals: Indiana (VOC emissions from fuel grade ethanol production operations; see above for direct final rule) 72 FR 52320 (9/13/07). Iowa (clean air mercury rule) 72 FR 50913 (9/5/07). Kentucky (VOC definition updates; see above for direct final rule) 72 FR 52319 (9/13/07). Minnesota (PM10 for Lafarge North America Corporation; see above for direct final rule) 72 FR 51747 (9/11/07). Michigan (CAIR) 72 FR 52038 (9/12/07). New Hampshire (revised CO maintenance plan for Nashua; see above for direct final rule) 72 FR 51574 (9/10/07). New Jersey (zero emission vehicle component of the low emission vehicle program) 72 FR 50650 (9/4/07). North Carolina (MCAPCO revisions; see above for direct final rule) 72 FR 52027 (9/12/07). Ohio (nitrogen oxide budget trading program) 72 FR 52320 (9/13/07). Pennsylvania (eight-hour ozone NAAQS redesignation request, maintenance plan, 2002 base year inventory, and motor vehicle emission budgets) 72 FR 51747 (9/11/07); (clean air mercury rule) 72 FR 52325 (9/13/07). South Carolina (PSD and nonattainment new source review rules) 72 FR 52031 (9/12/07). Virginia (Fredericksburg VOC emissions control area) 72 FR 52028 (9/12/07). West Virginia (CAIR; see above for direct final rule) 72 FR 52325 (9/13/07).

HAZARDOUS AND SOLID WASTE:

  • EPA entered into a proposed administrative settlement under CERCLA for recovery of past costs concerning the Somers Plating Superfund site in Somers, Connecticut, that requires the settling parties to pay 40% of the net sales proceeds of the transfer of the property to the hazardous substance Superfund. 72 FR 51226 (9/6/07).
  • EPA announced the availability of its Recovered Materials Advisory Notice V; the items for which EPA is making recommendations are compost and fertilizers made from recovered organic materials.72 FR 52561 (9/14/07).

WILDLIFE:

  • FWS announced that it plans to reintroduce 15 endangered species of mussels, 1 endangered aquatic snail, 2 endangered species of fish, and 3 threatened species of fish into their historical habitat in the Lower French Broad River and in the Lower Holston River, Tennessee, under the authority of ESA §10(j); the species would be classified as a nonessential experimental population. 72 FR 52433 (9/13/07).
  • FWS, in cooperation with the National Park Service, and the United States Section of the International Boundary and Water Commission, proposed to reestablish the endangered Rio Grande silvery minnow into its historic habitat in the Big Bend reach of the Rio Grande in Brewster, Presidio, and Terrell counties, Texas. 72 FR 50918 (9/5/07).
  • FWS designated critical habitat in Cook, DuPage, and Will counties in Illinois; Alpena, Mackinac, and Presque Isle counties in Michigan; and Door and Ozaukee counties in Wisconsin, for the Hine's emerald dragonfly. 72 FR 51101 (9/5/07).
  • FWS announced a 90-day finding on a petition to list the Kenk's amphipod, the Virginia well amphipod, and the copepod Acanthocyclops columbiensis as endangered under the ESA; the agency found that listing the three crustacean species is not warranted at this time. 72 FR 51766 (9/11/07).
  • FWS prepared a draft EA of its proposal to revise the 2005 special rule for the central Idaho and Yellowstone area nonessential experimental populations of the gray wolf in the northern Rocky Mountains. 72 FR 51770 (9/11/07).
  • FWS announced the availability of a final comprehensive conservation plan and FONSI for the Wheeler National Wildlife Refuge Complex in Alabama. 72 FR 52574 (9/14/07).
  • FWS announced the availability of the recovery plan for the Carson wandering skipper. 72 FR 52386 (9/13/07).
  • FWS, for the purpose of public review and comment, announced the availability of the draft recovery plan for the pygmy rabbit. 72 FR 51461 (9/7/07).
  • FWS, for the purpose of public review and comment, announced the availability of the draft recovery plan for the Copperbelly Water Snake. 72 FR 51242 (9/6/07).
  • NOAA-Fisheries announced its finding on a petition to list the Lynn Canal (Alaska) stock of Pacific herring as a threatened or endangered species under the ESA; the agency found that the petitioned action may be warranted and issued a status review of the species. 72 FR 51619 (9/10/07).
  • NOAA announced that it approved the revised management plan for the Wells National Estuarine Research Reserve in Maine. 72 FR 50939 (9/5/07).

DOJ NOTICES OF SETTLEMENT:

  • United States v. Gwen Campbell Trust 1995, No. 07-05350 GHK (FFMx) (C.D. Cal. Aug. 16, 2007). Settling CERCLA defendants who are connected with the release or threatened release of hazardous substances into the environment at the Waste Disposal, Inc. Superfund site in Santa Fe Springs, California, must provide the United States the access and institutional controls or environmental restriction covenants which are required to perform the remedial action at the site. 72 FR 51466 (9/7/07).
  • United States v. Premier Industries, Inc., No. ED CV 07-01092 (SGL)(OPx) (C.D. Cal. Aug. 28, 2007). A settling CAA defendant must pay a $326,000 civil penalty, must comply with the South Coast Air Quality Management District Rule 1175 VOC emissions limits, must operate an emission control system that meets the requirements in the Rule, must adhere to specified operational requirements, and must limit the pentane content of raw materials used in the manufacturing process at the expandable polystyrene foam block manufacturing facility in Chino, California, to resolve claims for alleged violations of the Act and the federally approved SIP, including Rule 1175. 72 FR 52393 (9/13/07).
  • United States v. Teledyne Technologies, Inc., No. CV 07-05674 ODW(FFMx) (C.D. Cal. Aug. 30, 2007). A settling CERCLA and RCRA defendant, in connection with the release and threatened release of hazardous substances at the Puente Valley Operable Unit of the San Gabriel Valley Area 4 Superfund site in Los Angeles County, California, must pay $535,000 to the United States and $4,000 to the California Department of Toxic Substances Control to resolve liability for past costs, future costs, and work associated with the remedial action required for the site set forth in EPA's 1998 Interim Record of Decision. 72 FR 52394 (9/13/07).
  • United States v. United Park City Mines Co., No. 2:07-cv-00642-BSJ (D. Utah Aug. 28, 2007). A settling CERCLA defendant must pay EPA certain future response costs incurred at the Richardson Flat Tailings Superfund site near Park City, Utah, and must implement the remedy selected by the Agency for the site. 72 FR 52394 (9/13/07).

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

THE CONGRESS

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

CHAMBER ACTION:

  • S. Res. 316 (National Childhood Lead Poisoning Prevention Week), which would designate the week of October 21 through October 27, 2007, as "National Childhood Lead Poisoning Prevention Week," was passed by the Senate. 153 Cong. Rec. S11459 (daily ed. Sept. 11, 2007).
  • H.R. 2850 (Green Chemistry Research and Development Act of 2007), which would provide for the implementation of a Green Chemistry Research and Development Program, was passed by the House. 153 Cong. Rec. H10023 (daily ed. Sept. 4, 2007).

COMMITTEE ACTION:

  • H.R. 1011 (National Forest System), was reported by the Committee on Natural Resources. H. Rep. No. 110-315, 153 Cong. Rec. H10075 (daily ed. Sept. 4, 2007). The bill would designate additional National Forest System lands in the state of Virginia as wilderness or a wilderness study area, designate the Kimberling Creek Potential Wilderness Area for eventual incorporation in the Kimberling Creek Wilderness, establish the Seng Mountain and Bear Creek Scenic Areas, and provide for the development of trail plans for the wilderness areas and scenic areas.

BILLS INTRODUCED:

  • S. 2017 (Bingaman) (Energy Policy and Conservation Act) would amend the Energy Policy and Conservation Act to provide for national energy efficiency standards for general service incandescent lamps. 153 Cong. Rec. S11051 (daily ed. Sept. 4, 2007). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2020 (Lugar) (Tropical Forest Conservation Act) would reauthorize the Tropical Forest Conservation Act of 1998 through fiscal year 2010 and to rename it as "The Tropical Forest and Coral Conservation Act of 2007." 153 Cong. Rec. S11213 (daily ed. Sept. 6, 2007). The bill was referred to the Committee on Foreign Relations.
  • S. 2032 (Murray) (water quality) would authorize the Secretary of Agriculture to carry out a competitive grant program for the Puget Sound area to provide comprehensive conservation planning to address water quality. 153 Cong. Rec. S11269 (daily ed. Sept. 7, 2007). The bill was referred to the Committee on Agriculture, Nutrition, and Forestry.
  • S. 2034 (Wyden) (Oregon Wilderness Act) would amend the Oregon Wilderness Act of 1984 to designate the Copper Salmon Wilderness and amend the Wild and Scenic Rivers Act to designate segments of the North and South Forks of the Elk River in the state of Oregon as wild or scenic rivers. 153 Cong. Rec. S11326 (daily ed. Sept. 10, 2007). The bill was referred to the Committee on Energy and Natural Resources.
  • H.R. 3473 (Bishop, Utah) (land exchange) would provide for a land exchange with the City of Bountiful, Utah, involving National Forest System land in the Wasatch-Cache National Forest to further land ownership consolidation in that national forest. 153 Cong. Rec. H10156 (daily ed. Sept. 5, 2007). The bill was referred to the Committee on Natural Resources.
  • H.R. 3486 (Ellsworth) (mine safety) would amend the Internal Revenue Code of 1986 to provide incentives for improving mine safety. 153 Cong. Rec. H10244 (daily ed. Sept. 6, 2007). The bill was referred to the Committee on Ways and Means.
  • H.R. 3490 (Radanovich) (Native Americans) would transfer administrative jurisdiction of certain federal lands from the BLM to the Bureau of Indian Affairs and take such lands into trust for the Tuolumne Band of Me-Wuk Indians of the Tuolumne Rancheria. 153 Cong. Rec. H10244 (daily ed. Sept. 6, 2007). The bill was referred to the Committee on Natural Resources.
  • H.R. 3491 (Welch, Vt.) (Atomic Energy Act) would amend the Atomic Energy Act of 1954 to improve and strengthen the safety inspection process of nuclear facilities. 153 Cong. Rec. H10244 (daily ed. Sept. 6, 2007). The bill was referred to the Committee on Energy and Commerce.
  • H.R. 3513 (Defazio) (Oregon Wilderness Act; Wild and Scenic Rivers Act) would amend the Oregon Wilderness Act of 1984 to designate the Copper Salmon Wilderness and amend the Wild and Scenic Rivers Act to designate segments of the North and South Forks of the Elk River in the state of Oregon as wild or scenic rivers. 153 Cong. Rec. H10362 (daily ed. Sept. 10, 2007). The bill was referred to the Committee on Natural Resources.
  • H. Res. 634 (Gillibrand) (hunting and fishing) would encourage participation in hunting and fishing and support the goals and ideals of National Hunting and Fishing Day and the efforts of hunters and fishermen toward the scientific management of wildlife and conservation of the natural environment. 153 Cong. Rec. H10156 (daily ed. Sept. 5, 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 Delaware Kentucky Minnesota New Jersey Oklahoma Utah Arizona Florida Louisiana Missouri New Mexico Oregon Vermont California Idaho Maryland Montana New York South Dakota Washington Colorado Illinois Massachusetts Nebraska North Carolina Tennessee Wisconsin Connecticut Indiana Michigan New Hampshire Ohio Texas  

ALABAMA

Air:

  • The Department of Environmental Management will conduct a public hearing to consider the revision of Division 3 of the ADEM Administrative Code with the amendment of Rule 335-3-1-.02 (Definitions). Rule 335-3-1-.02 is being revised to be consistent with EPA regulations of the definition of volatile organic compounds. The hearing will be held October 10, 2007. Comments are due October 12, 2007. See http://www.alabamaadministrativecode.state.al.us/UpdatedMonthly/AAM-AUG-07/335-3-1-.02.pdf
  • The Department of Environmental Management will conduct a public hearing to consider the revision of Division 3 of the ADEM Administrative Code to incorporate amendments to Rule 335-3-3-.01 (Open Burning). Revisions to the Division 3 Code are being proposed to amend 335-3-3-.01 to delete a provision that only applied for 2006. The hearing will be held October 10, 2007. Comments are due October 12, 2007. See http://www.alabamaadministrativecode.state.al.us/UpdatedMonthly/AAM-AUG-07/335-3-3-.01.pdf
  • The Department of Environmental Management (ADEM) will conduct a public hearing to consider the revision of Division 3 of the ADEM Administrative Code with the amendment of Rules 335-3-10-.01 (General), 335-3-10-.02 (Designated Standards of Performance), and 335-3-10-.03 (Appendices to 40 CFR 60). The revisions would incorporate by reference changes to the new source performance standards from July 2, 2006, to July 2, 2007. This incorporation allows EPA to delegate administrative enforcement of these regulations to ADEM. The hearing will be held October 10, 2007. Comments are due October 12, 2007. See http://www.alabamaadministrativecode.state.al.us/UpdatedMonthly/AAM-AUG-07/335-3-10.pdf
  • The Department of Environmental Management will conduct a public hearing to consider the revision of Rule 335-3-11-.01, General; Rule 335-3-11-.02, Designated Emission Standards; and Rule 335-3-11-.06, NESHAPs for Source Categories. The hearing will be held October 10, 2007. Comments are due October 12, 2007. See http://www.alabamaadministrativecode.state.al.us/UpdatedMonthly/AAM-AUG-07/335-3-11.pdf

ARIZONA

Air:

  • The Arizona Department of Environmental Quality proposed to amend R18-2-903, Standards of Performance for Fossil-fuel Fired Steam Generators, to reflect proposed changes to the compliance demonstration by Arizona Public Service at the Cholla generating station resulting from the addition of air pollution control equipment to the facility. A hearing will be held October 9, 2007. Comments are due October 9, 2007. See http://www.azsos.gov/public_services/Register/2007/36/proposed.pdf

CALIFORNIA

Air:

  • The Air Resources Board will conduct a public hearing to consider adoption of amendments to California's regulations regarding new aftermarket and used catalytic converters sold, offered for sale, or advertised for use on California motor vehicles, or installed on California motor vehicles. The hearing will be held October 25, 2007. Comments are due October 24, 2007. See http://www.oal.ca.gov/pdfs/notice/36z-2007.pdf (pp. 1475-1478)
  • The Air Resources Board will conduct a public hearing to consider adoption of regulations to reduce emissions of diesel particulate matter and oxides of nitrogen from the use of diesel engines on commercial harbor craft operating in any California port, roadstead, or terminal facility or within all California inland waters; all California estuarine waters; and within 24 nautical miles, except as otherwise specified in this proposal, of the California baseline. The hearing will be held October 25, 2007. Comments are due October 24, 2007. See http://www.oal.ca.gov/pdfs/notice/36z-2007.pdf (pp. 1482-1492)

Fisheries:

  • The Fish and Game Commission will conduct public hearings on the proposal to amend Section 630, Title 14, California Code of Regulations, relating to Ecological Reserves. Hearings will be held October 12 and November 2, 2007. Comments are due November 2, 2007. See http://www.oal.ca.gov/pdfs/notice/36z-2007.pdf (pp. 1492-1498)

Hazardous & Solid Wastes:

  • The California Integrated Waste Management Board will conduct a public hearing to consider the proposal to amend Title 14, California Code of Regulations (14 CCR), §§17210.2, 17210.4, 17855.2, 17862, and 17867. The proposed changes would modify the regulations governing emergency waiver of standards and compostable material handling regulatory requirements. The hearing will be held November 1, 2007. Comments are due October 22, 2007. See http://www.oal.ca.gov/pdfs/notice/36z-2007.pdf (pp. 1492-1494)

Toxic Substances:

  • The California Environmental Protection Agency's Office of Environmental Health will conduct a meeting to consult with the Carcinogen Identification Committee to consider the following chemicals identified for possible preparation of hazard identification materials under Proposition 65, the Safe Drinking Water and Toxic Enforcement Act of 1986: N,N–Dimethylformamide; Marijuana smoke; and 2,4,6–Trinitrotoluene. The meeting will be held November 19, 2007. Comments are due November 6, 2007. See http://www.oal.ca.gov/pdfs/notice/36z-2007.pdf (pp. 1513-1514)
  • The California Environmental Protection Agency's Office of Environmental Health will conduct a meeting to consult with the Developmental and Reproductive Toxicant Identification Committee to consider several chemicals identified for possible preparation of hazard identification materials under Proposition 65, the Safe Drinking Water and Toxic Enforcement Act of 1986. The meeting will be held December 10, 2007. Comments are due November 6, 2007. See http://www.oal.ca.gov/pdfs/notice/36z-2007.pdf (p. 1514)

Water:

  • The Office of Environmental Health Hazard Assessment within the California Environmental Protection Agency will conduct a workshop on the draft technical support document for a proposed Public Health Goal for the rice herbicide molinate in drinking water. The hearing will be held October 9, 2007. Comments are due October 23, 2007. See http://www.oal.ca.gov/pdfs/notice/36z-2007.pdf (pp. 1512-1513)

Wildlife:

  • The California Fish and Game Commission announced that it received a petition to take emergency action to list longfin smelt (Spirinchus thaleichthys) as an endangered species. Longfin smelt are a pelagic, estuarine-anadromous species. They tolerate a wide range of salinities and are capable of living in fresh, brackish, and marine waters. The Commission will consider taking emergency action to list longfin smelt as an endangered species at its October 11, 2007, meeting. Interested parties may contact the Department of Fish and Game for information on the petition or to submit information to the Department relating to the petitioned species. See http://www.oal.ca.gov/pdfs/notice/36z-2007.pdf (p. 1512)

COLORADO

Hazardous & Solid Wastes:

Water:

  • The Water Quality Control Commission has adopted numerous permanent rules concerning administrative procedures, classifications, and numeric standards for multiple river basins, reclaimed domestic wastewater control, and primary drinking water regulations. See http://www.sos.state.co.us/CCR/RegisterContents.do?Volume=30&Month=9&Year=2007#
  • The Hazardous Materials and Waste Management Division of the Department of Public Health and Environment has adopted the following permanent rules: 5 CCR 1003-2, Regulation No. 100, Water and Wastewater Facility Operators Certification Requirements 1; and 5 CCR 1003-2, Regulation No. 100, Water and Wastewater Facility Operators Certification Requirements 2. The rules become effective September 30, 2007. See http://www.sos.state.co.us/CCR/RegisterContents.do?Volume=30&Month=9&Year=2007#

CONNECTICUT

Air:

  • The Commissioner of Environmental Protection will conduct a public hearing as part of a rulemaking proceeding 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 should assist the state to attain and maintain the eight-hour ozone NAAQS. It will be submitted to EPA for review and approval as a revision to the SIP for air quality. The hearing will be held October 16, 2007. Comments are due October 19, 2007. See http://www.ct.gov/dep/cwp/view.asp?A=2586&Q=391476

DELAWARE

Air:

  • The Department of Natural Resources and Environmental Control will hold a public hearing on the proposal to amend Regulation 32, Transportation Conformity, of the state of Delaware's Regulations Governing the Control of Air Pollution. The proposed amendments to Regulation 32 would simplify Delaware's transportation conformity regulations and bring the Salisbury/Wicomico Metropolitan Planning Organization into the Interagency Transportation Conformity Consultation Workgroup. The hearing will be held September 24, 2007. Comments are due September 24, 2007. See http://regulations.delaware.gov/register/september2007/proposed/11%20DE%20Reg%20281%2009-01-07.htm#P34_2686

Land Use:

FLORIDA

Air:

  • The Department of Environmental Protection announced its intent to develop permanent rule 62-210.300, F.A.C., Permits Required, as an amendment to Chapter 62-210, F.A.C., related to implementation of permitting requirements for Title V sources subject to EPA's Clean Air Interstate Rule, Clean Air Mercury Rule, and Acid Rain program. The notice for Chapter 62-210, F.A.C., failed to include Rule 62-210.300, F.A.C., but conforming amendments to rule citations in this section will be needed as part of the overall rulemaking project. If requested, a rule development workshop will be planned. See http://faw.dos.state.fl.us/newfaw/FAWVOLUMEFOLDERS2007/3335/SECTI.pdf (p. 4003)

Water:

  • The Department of Environmental Protection gives notice of its proposal to amend rule 62-113.100, Purpose. The revision would repeal the City of Tallahassee's delegation to review and take agency action on stormwater general permits under Chapter 62-25, F.A.C., on behalf of the Department. A hearing will be held if requested by September 28, 2007. See http://faw.dos.state.fl.us/newfaw/FAWVOLUMEFOLDERS2007/3336/SECTII.pdf (pp. 4165-4166)

IDAHO

Water:

  • The Department of Agriculture will conduct public hearings to consider the adoption of amendments to 02.03.01, Rules Governing Pesticide Management Plans for Ground Water Protection. The additional chemical-specific rules will be associated with steps to prevent DCPA (chlorthal or chlorthal-dimethyl) from impacting Idaho's ground water in the future. In addition, it updates the incorporation by reference and the abbreviations sections. The hearings will be held September 18 and 19, 2007. Comments are due September 26, 2007. See http://adm.idaho.gov/adminrules/bulletin/bul/07sept.pdf (pp. 18-22)
  • The Department of Environmental Quality will conduct a public hearing to consider the adoption of amendments to the Ground Water Quality Rule. The purpose of this rulemaking is to clarify the rule and to promote consistency in its application to mining activities. The hearing will be held September 26, 2007. Comments are due October 3, 2007. See http://adm.idaho.gov/adminrules/bulletin/bul/07sept.pdf (pp. 322-330)

ILLINOIS

Air:

INDIANA

Hazardous & Solid Wastes:

Water:

  • The Water Pollution Control Board will hold a public hearing concerning amendments to 327 IAC 2-1-6, 327 IAC 2-1.5-8, and 327 IAC 5-10-6 concerning compliance with the bacteriological criteria and the application of a single sample maximum limitation of 235 most probable number or colony forming units/100 ml of Escherichia coli bacteria in waters of the state. The hearing will be held October 10, 2007. See http://www.in.gov/legislative/iac/20070912-IR-327060573PHA.xml.html

KENTUCKY

Air:

LOUISIANA

Air:

  • The Department of Environmental Quality amended the air regulations at LAC 33:III.507, 2160, 3003, 5116, 5122, 5311, and 5901, 2006 Incorporation by Reference for Air Quality. See http://www.doa.louisiana.gov/osr/reg/0708/0708RUL.pdf (pp. 1619-1621)
  • The Department of Environmental Quality amended the air regulations at LAC 33:III.506, Clean Air Interstate Rule Nitrogen Oxide Annual and Ozone Season Trading Programs. See http://www.doa.louisiana.gov/osr/reg/0708/0708RUL.pdf (pp. 1621-1624)
  • The Department of Environmental Quality will conduct a public hearing on the incorporation of 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. The proposed rule would move the unauthorized discharge reporting requirements in LAC 33:III.5107.B to LAC 33:I., Chapter 39, in an effort to streamline reporting requirements and remove duplicative reporting language from the regulations. The hearing will be held September 26, 2007. Comments are due October 3, 2007. See http://www.doa.louisiana.gov/osr/reg/0708/0708POT.pdf (pp. 1796-1803)
  • The Department of Environmental Quality will conduct a public hearing on the incorporation of revised substantive changes to the proposed amendments to the Office of the Secretary regulations at LAC 33:I.3905, 3919, 3925, and 3931. The changes address comments received during the public comment period for the substantive changes to the proposed rule. The hearing will be held September 26, 2007. Comments are due October 3, 2007. See http://www.doa.louisiana.gov/osr/reg/0708/0708POT.pdf (pp. 1803-1805)

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, Hazardous Waste Corrections. See http://www.doa.louisiana.gov/osr/reg/0708/0708RUL.pdf (pp. 1624-1627)
  • The Louisiana Office of Conservation has amended LAC 43:XIX Chapter 3 (Statewide Order No. 29-B), Pollution Control-Onsite Storage, Exploration and Production Waste Generated from the Drilling and Production of Oil and Gas Wells. See http://www.doa.louisiana.gov/osr/reg/0708/0708RUL.pdf (pp. 1653-1658)

Water:

  • The Department of Environmental Quality will conduct a public hearing to consider the adoption of amendments to LAC 33:IX.2315, 2501, 2707, 3113, 4730, 4735, and 4761-4779, Cooling Water Intake Structures and Application of Pesticides. The hearing will be held September 26, 2007. Comments are due September 26, 2007. See http://www.doa.louisiana.gov/osr/reg/0708NOI.pdf (pp. 1713-1722)

General:

  • The Department of Natural Resources Office of Conservation is soliciting public comments on proposed amendments to LAC 43:XIX.701, 703, and 707. The amendments would replace the existing Statewide Order No. 29-R-06/07 and adopt Statewide Order No. 29-R-07/08 (LAC 43:XIX, Subpart 2, Chapter 7), which establishes the annual Office of Conservation Fee Schedule for the collection of Application, Production, and Regulatory Fees. Comments are due October 1, 2007. See http://www.doa.louisiana.gov/osr/reg/0708NOI.pdf (pp. 1785-1787)

MARYLAND

Land Use:

  • The Secretary of Natural Resources is soliciting public comment on the proposal to amend Regulation .03 under COMAR 08.07.05, Woodland Incentive Program. The amendment would increase the current cost share rate for private forest landowners seeking Woodland Incentive Program cost share assistance. Comments are due October 1, 2007. See http://www.dsd.state.md.us/mdregister/3418/main_register.htm

General:

  • The Department of Natural Resources adopted new Regulation .01 under a new chapter, COMAR 08.01.08, Form and Procedure for Petitions for Declaratory Rulings. This action, which was proposed for adoption in 34:14 Md. R. 1254-1255 (July 6, 2007), has been adopted as proposed. This change became effective September 10, 2007. See http://www.dsd.state.md.us/mdregister/3418/main_register.htm

MASSACHUSETTS

General:

  • The Department of Environmental Protection will hold public hearings to provide the public with the opportunity to comment on proposed regulations to 310 CMR 5.01, Administrative Penalties. The hearings will be held September 28, October 3, and October 4, 2007. Comments are due October 12, 2007. See http://www.mass.gov/dep/public/hearings/adpenphn.htm

MICHIGAN

Water:

  • The Michigan Department of Environmental Quality, Land and Water Management Division, will conduct a public hearing on proposed administrative rules to establish the Grand Traverse Bay Great Lakes State Bottomland Preserve. The public hearing will be held on September 11, 2007. Comments are due September 21, 2007. See http://www.michigan.gov/documents/cis/MR_090107_207319_7.pdf (pp. 47-48)

MINNESOTA

Air:

MISSOURI

Hazardous & Solid Wastes:

MONTANA

Water:

  • The Fish, Wildlife and Parks Commission made numerous changes to temporary emergency rules concerning the closure of lakes. The Commission amended the emergency rule closing Placid Lake and Seeley Lake, repealed the emergency rule closing Placid Lake and the emergency rule closing Lake Inez, and adopted a temporary emergency rule closing a portion of Rock Creek in Granite and Missoula Counties. See http://sos.mt.gov/arm/Register/archives/MAR2007/MAR07-17.pdf (pp. 1315-1322).

NEBRASKA

Toxic Substances:

  • The State Environmental Commission has proposed a rule relating to notification of release of hazardous substances. The rule would establish triggers for release events that require immediate notification to the Director, triggers for release and discovery events that require notification within one working day, and appropriate format for notification. Reporting in accordance with this proposed regulation would not satisfy requirements to notify other federal, state, or local agencies. See http://www.deq.state.ne.us/Proposed.nsf/Pages/Proposed

Water:

  • The Environmental Quality Commission approved changes to Nebraska Administrative Code, Title 124, Rules and Regulations for the Design, Operation and Maintenance of On-site Wastewater Treatment Systems, to meet requirements of the recently amended Private Onsite Wastewater Treatment System Contractors Certification and System Registration Act. See http://www.deq.state.ne.us/Proposed.nsf/Pages/Proposed

General:

  • The Department of Energy proposed two rules that would implement the provisions of A.B. 621 (2007 Legislative Session), which directs the Director of the Office of Energy to establish a system for rating buildings based upon the Leadership in Energy and Environmental Design Green Building Rating System and authorizes the Director to grant, under certain conditions, a partial abatement of taxes imposed on real property and a partial abatement of property taxes for certain buildings based upon the rating of the building. See http://www.leg.state.nv.us/register/indexes/2007_NAC_REGISTER_KEYWORD.htm

NEW HAMPSHIRE

Air:

  • The Department of Environmental Services will conduct a public hearing to consider the readoption of Env-A 3300, with amendments. This rule governs the control of emissions from municipal waste combusters. The proposed amendments would reduce the emission limits for particulate matter, cadmium, lead, and dioxins/furans so as to be consistent with new federal requirements. The hearing will be held October 23, 2007. Comments are due November 2, 2007. See http://www.gencourt.state.nh.us/rules/september-7-07.pdf (pp. 1-3)

Water:

  • The Department of Environmental Services will conduct a public hearing to consider the readoption of interim rule Env-Ws 378, Small Production Wells for Community Water Systems, with amendments. The existing rule sets forth the procedures and standards for the development of new small production wells for small community water systems. The amendments are intended to clarify the rule, add language to reflect the federal requirement for additional testing for wells in proximity to surface waters, add requirements for certain licensed professionals to oversee well siting and testing for evaluating source capacity after hydrofracturing an existing well and for reporting compliance with the wellhead protection program, establish a less intensive process for developing replacement wells, and redesignate the rules as Env-Dw 301. The hearing will be held September 21, 2007. Comments are due October 1, 2007. See http://www.gencourt.state.nh.us/rules/august-31-07.pdf (pp. 1-2)
  • The Department of Environmental Services will conduct a public hearing to consider the readoption of Env-Ws 379, Large Production Wells for Community Water Systems, with amendments. The existing rule sets forth the procedures and standards for the development of new large production wells for small community water systems. The amendments are intended to clarify the rule, add language to reflect the federal requirement for additional testing for wells in proximity to surface waters, add requirements for certain licensed professionals to oversee well siting and testing and for reporting compliance with the wellhead protection program, reflect the recently enacted less-intensive process for developing replacement wells, and redesignate the rules as Env-Dw 302. The hearing will be held September 21, 2007. Comments are due October 1, 2007. See http://www.gencourt.state.nh.us/rules/august-31-07.pdf (pp. 3-4)
  • The Department of Environmental Services has proposed the readoption of interim rules Env-Ws 363, Capacity Assurance for Existing Public Water Systems ,and Env-Ws 371, Capacity Assurance for Proposed Public Water Systems. The purpose of the rule is to ensure that existing community and nontransient, noncommunity public water systems have sufficient technical, managerial, and financial capability to meet the requirements of the New Hampshire Safe Drinking Water Act and to provide effective and reliable service to customers. See http://www.gencourt.state.nh.us/rules/august-31-07.pdf (pp. 5-6)

NEW JERSEY

Water:

  • The Department of Environmental Protection will conduct a public hearing on the proposal to readopt with several substantive amendments the Freshwater Wetlands Protection Act rules. The hearings will be held October 4, 11, and 16, 2007. Comments are due November 3, 2007. See http://www.nj.gov/dep/rules/notices/090407a.html

NEW MEXICO

Toxic Substances:

  • The New Mexico Environmental Improvement Board will hold a public hearing to consider the New Mexico Environment Department's proposed Remediation of Clandestine Drug Laboratories Rule, 20.4.5 NMAC. The proposed rule would require the remediation of any chemical contamination of property where a clandestine drug laboratory has been discovered and seized. Prior to remediation, the rule would prohibit the occupation of the premises and require that notice of the contamination be given to any purchaser, renter, or other transferee. The property owner would be responsible for the remediation. The hearing will be held October 22, 2007. Comments are due October 22, 2007. See http://www.nmcpr.state.nm.us/nmregister/xviii/xviii16/EIBnotice.htm

NEW YORK

Fisheries:

NORTH CAROLINA

Fisheries:

  • The North Carolina Marine Fisheries Commission will conduct a public hearing on the proposal to amend the rules cited as 15A NCAC 03K .0102 - .0103, .0304, .0501; 03O .0402 - .0404 and repeal the rule cited as 15A NCAC 03K .0506. These rules concern scallop fisheries and related environmental issues, as well as the eligibility of individuals for Standard Commercial Fishing License. The hearing will be held October 9, 2007. Comments are due November 5, 2007. See http://www.ncoah.com/rules/register/Volume22Issue05September42007.pdf (pp. 291-294)

General:

  • The Coastal Resources Commission will conduct a public hearing to consider the amendment of the rule cited as 15A NCAC 07J .0409, which pertains to development permits and variance request in coastal areas. Changes to the existing rule include restructuring the procedures for assessing punitive and investigative costs associated with an enforcement action, the procedures for calculating the amount of civil penalty for both major and minor development violations, and addressing existing ambiguous rule language and procedures. The hearing will be held September 27, 2007. Comments are due October 5, 2007. See http://www.ncoah.com/rules/register/Volume22Issue05September42007.pdf (pp. 294-305)

OHIO

Air:

  • The Ohio Environmental Protection Agency, Division of Air Pollution Control, will conduct a public hearing on the proposal to amend Ohio Administrative Code rule 3745-18-82, Stark County Emission Limits. The amendments are being proposed to correct the emission limitation for Canton Drop Forge, boiler number one, from 5.0 pounds of sulfur dioxide per MM Btu actual heat input to 2.5 pounds of sulfur dioxide per MM Btu actual heat input. The hearing will be held October 11, 2007. Comments are due October 11, 2007. See http://www.registerofohio.state.oh.us/pdfs/phn/3745_NO_38717_20070904_0943.pdf
  • The Ohio Environmental Protection Agency, Division of Air Pollution Control (DAPC), will conduct a public hearing on the proposal to amend Ohio Administrative Code rule 3745-21-07 A, Control of Emissions of Organic Materials from Stationary Sources. DAPC is proposing changes to the current rule to limit its continued applicability to emissions units that have been required to install controls, or employ control measures pursuant to the existing rule, and to maintain the requirements of paragraph (G)(1) in the current rule. The number of changes being made require that the existing rule be rescinded and that a new rule be proposed in its place. The hearing will be held October 3, 2007. Comments are due October 3, 2007. See http://www.registerofohio.state.oh.us/pdfs/phn/3745_NO_38617_20070827_0814.pdf

OKLAHOMA

Hazardous & Solid Wastes:

  • The Department of Environmental Quality will conduct public hearings to consider amendments to OAC 252:205-3-1, concerning hazardous waste management. The purpose of the proposed amendment is to incorporate by reference the federal hazardous waste regulations found in 40 CFR Parts 124 and 260-279 revised as of July 1, 2007. The hearings will be held October 11 and November 15, 2007. Comments are due October 11, 2007. See http://www.oar.state.ok.us/register/Volume-24_Issue-24.htm#a16161

Water:

  • The Department of Environmental Quality will conduct a public hearing to consider amendments to OAC 252:710-3-33, Waterworks and Wastewater Works Operator Certification. The proposed changes to the Waterworks and Wastewater Works Operator Certification rules modify Appendix A to add clarifying language. The hearings will be held October 5 and November 15, 2007. Comments are due October 5, 2007. See http://www.oar.state.ok.us/register/Volume-24_Issue-24.htm#a16900

OREGON

Land Use :

  • The Department of State Lands will conduct a public hearing to consider amendments to Mitigation Banking Prospectus, Public Notice Process. The agency is changing the publication requirements for noticing its intent to create a mitigation bank by posting notice of the prospectus on the official agency website. The agency has had a temporary rule in place since March 20, 2007. Prior to that date, the agency was required to publish the notice no less than three successive weeks in both a statewide and local newspaper. The hearing was held September 14, 2007. Comments are due September 22, 2007. See http://arcweb.sos.state.or.us/rules/0907_Bulletin/0907_rulemaking_bulletin.html

Wildlife:

  • The Department of Fish and Wildlife will conduct a public hearing to consider amendments to Oregon Administrative Rules for the Summer Lake & the White River Wildlife Area Management Plans. Amendments will guide management activities for the next 10 years. The hearing will be held October 12, 2007. Comments are due October 12, 2007. See http://arcweb.sos.state.or.us/rules/0907_Bulletin/0907_rulemaking_bulletin.html

SOUTH DAKOTA

Water:

  • The Department of Environment and Natural Resources, Board of Minerals and Environment, will conduct a public hearing to consider amendments to 34 SDR 55 to change the Underground Injection Control Class II Permits to allow injection at a pressure that may fracture the injection zone but not the confining zone. The hearing will be held September 19, 2007. See http://legis.state.sd.us/rules/register/09102007.pdf (pp. 79-80)

TENNESSEE

Water

  • The Department of Environment and Conservation is soliciting public comment on the adoption of proposed TMDL for PCBs for Woods Reservoir in the Upper Elk River Watershed, located in southern middle Tennessee. Comments are due October 15, 2007. See http://www.state.tn.us/environment/wpc/tmdl/WoodsPCBsPN.pdf

TEXAS

Air:

  • The Texas Commission on Environmental Quality proposed amendments to §116.114, concerning the control of air pollution by permits for new construction or modification. If adopted, the proposed amended section will be submitted to EPA as a revision to the Texas SIP. The hearing will be held September 24, 2007. Comments are due September 26, 2007. See http://www.sos.state.tx.us/texreg/sos/PROPOSED/30.ENVIRONMENTAL%20QUALITY.html#534

Toxic Substances:

  • The Texas Commission on Environmental Quality will conduct a public hearing on proposed amendments to rules governing radiation control. The proposed changes are part of a larger proposal to revise the commission's radiation control rules. The hearing will be held September 25, 2007. Comments are due October 15, 2007. See http://www.sos.state.tx.us/texreg/sos/PROPOSED/30.ENVIRONMENTAL%20QUALITY.html#550
  • The Texas Commission on Environmental Quality will conduct a public hearing on proposed amendments to 30 TAC §§39.702, 39.703, 39.707, 39.709, rules governing radioactive material licenses. The changes proposed to this chapter are part of a larger proposal to revise the commission's radiation control rules. The hearing will be held September 25, 2007. Comments are due October 15, 2007. See http://www.sos.state.tx.us/texreg/sos/PROPOSED/30.ENVIRONMENTAL%20QUALITY.html#527

Water:

  • The Texas Commission on Environmental Quality is soliciting public comment on proposed amendments to §288.1 and §288.30, concerning water management plans. New provisions passed by the legislature in 2007 include new submittal requirements for water conservation plans and require the commission to provide for the enforcement of these requirements. Comments are due October 9, 2007. See http://www.sos.state.tx.us/texreg/sos/PROPOSED/30.ENVIRONMENTAL%20QUALITY.html#543

UTAH

Air:

  • The Department of Environmental Quality will conduct a public hearing to consider the adoption of amendments to R307-415-4, Applicability. The purpose of the amendment is to update Section R307-415-4 to match changes in federal regulations and to remove an outdated cross-reference. The hearing will be held September 19, 2007. Comments are due October 1, 2007. See http://www.rules.utah.gov/publicat/bull_pdf/2007/b20070901.pdf (pp.12-14)

Toxic Substances:

  • The Department of Environmental Quality is soliciting public comment on amendments to R313-15, Standards for Protection Against Radiation. The purpose of this amendment is to add reporting requirements for radioactive material licensees possessing sources to be tracked by the NRC's National Source Tracking System. Comments are due October 1, 2007. See http://www.rules.utah.gov/publicat/bull_pdf/2007/b20070901.pdf (pp.14-17)
  • The Department of Environmental Quality is soliciting public comment on amendments to R313-19-100, Transportation. The amendment is intended to make Utah's Radiation Control rules compatible with federal requirements found in 10 CFR 71. Comments are due October 1, 2007. See http://www.rules.utah.gov/publicat/bull_pdf/2007/b20070901.pdf (pp.17-20)
  • The Department of Environmental Quality is soliciting public comment on amendments to R313-22, Specific Licenses. The purpose of this amendment is to add a requirement for the serialization of sources containing radioactive material manufactured in Utah that need to be reported and tracked by the NRC's National Source Tracking System. Comments are due October 1, 2007. See http://www.rules.utah.gov/publicat/bull_pdf/2007/b20070901.pdf (pp. 20-21)

VERMONT

Water:

  • The Agency of Natural Resources conducted public hearings to consider the adoption of the Lake Champlain Wetland Restoration Plan. Hearings were held September 10 and 13, 2007. Comments are due September 27, 2007. See http://www.anr.state.vt.us/site/cfm/cal.cfm

WASHINGTON

Water:

  • The Department of Ecology adopted amendments to permanent rule WSR 07-17-007. The amendment establishes instream flow water rights; modifies seasonal surface waters closures; closes gravel aquifers, which are directly connected to surface waters; limits future withdrawals during high-flow periods to projects resulting in net environmental benefits; manages future permit-exempt groundwater withdrawals from the gravel aquifer in "high density" areas; and limits stockwatering based on parcel sizes. Changes become effective September 5, 2007. See http://apps.leg.wa.gov/documents/laws/wsr/2007/17/07-17-007.htm

WISCONSIN

Air:

  • The Department of Natural Resources will hold a public hearing on revisions to chs. NR 404 and 484, Wis. Adm. Code, relating to ambient air quality standards for total suspended particulates and particulate matter and affecting small business. The SIP developed under §285.11(6), Stats., is also revised. The hearing will be held October 12, 2007. Comments are due October 22, 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

ELEVATED LEVELS OF ARSENIC IN INDIAN STATE

In the northeast Indian state of Bihar, experts have raised warning flags about dangerously high levels of arsenic. Arsenic, a naturally occurring element often found in water, can cause numerous delayed-onset, deadly health effects. Government officials have measured elevated arsenic levels in the drinking water of 12 state districts, which averaged 500 parts per billion (ppb) of arsenic. The Indian government standard for safety is 50 ppb, and the World Health Organization uses a 10 ppb benchmark to determine the safety of drinking water. Many residents of Bihar have experienced symptoms such as bone weakness and skin conditions that are associated with the high levels of arsenic. See http://news.bbc.co.uk/2/hi/south_asia/6982031.stm

CARBON TRADING IN AUSTRALIAN STATE AT BRINK OF FAILURE

A carbon trading scheme in the Australian state of New South Wales is nearing collapse, according to an article in a Sydney newspaper. The program, which has been in place for four years, allows environmentally friendly companies in all industries to sell carbon “certificates” to energy producers who purchase them to meet state legislated emissions standards. However, the price of a one-ton carbon credit has fallen 50 percent since June, which has made carbon credits unprofitable to produce. Some blame the state government, which may have flooded the market by making emissions credits too easy for companies to produce. Others point out that concerns about the integration of the New South Wales scheme into the newly announced federal carbon trading system have shaken investor confidence. At risk is not just the efficacy of the trading scheme, but hundreds of jobs in environmentally friendly companies. See http://www.smh.com.au/news/environment/red-faces-as-the-states-green-scheme-hits-wall/2007/09/10/1189276633560.html

SOUTH AFRICA STUDIES IMPACT OF ENVIRONMENTAL PROGRAMS ON WOMEN

The South African Department of Water Affairs and Forestry is undertaking a study of gendered impacts of its programs, a South African newspaper reported last week. In particular, the audit will investigate how the programs developed by Water Affairs and Forestry have benefited women. Because the Department’s strategies for natural resource management also address economic and social issues, they may affect women differently from men. This study is part of a larger effort by the Department to develop a strategic framework to better serve South African women, particularly those living in rural areas. The study began this summer and will wrap up in late September. See http://allafrica.com/stories/200709050766.html

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

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