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Weekly Update Volume 37, Issue 27

09/24/2007

LITIGATION

CAA, KNOWING ENDANGERMENT, ASBESTOS:

The Ninth Circuit reinstated a number of claims the U.S. government filed against a mining company in connection with its vermiculite operation in Libby, Montana, that were dismissed by a lower court. The company was indicted for knowingly conspiring to release asbestos into the ambient air, thereby knowingly placing persons in imminent danger of death or serious bodily injury in violation of the CAA, and for conspiring to defraud the United States in violation of 18 U.S.C. § 371. Contrary to rulings of the lower court, the government's knowing endangerment charge was not time-barred. Although the government failed to allege necessary overt acts in its original indictment, it timely filed a superseding indictment, thereby curing this flaw. The court also reversed a lower court order adopting the regulatory definition of asbestos used for civil regulation. Instead, the court directed that the definition in the criminal statute, i.e., the definition provided in CAA §112(b), applies. In addition, the lower court properly excluded indoor air studies and other scientific reports, but it erred in excluding them—and historic testing—as bases underlying an expert’s opinion or testimony. United States v. W.R. Grace, Nos. 06-30472, -30524, 37 ELR 20244 (9th Cir. Sept. 20, 2007) (36 pp.).

NUISANCE, CLIMATE CHANGE:

A district court dismissed the state of California's nuisance claim against automakers for contributing to climate change. The state sought to hold each automaker jointly and severally liable for creating, contributing to, and maintaining a public nuisance under federal and/or state law. The complaint, however, raises non-justiciable political questions that are beyond the limits of the court’s jurisdiction. Climate change and its causes are issues of public and foreign policy fraught with scientific complexity, as well as political, social, and economic consequences. Resolution of the state's federal nuisance claim would require the court to make an initial policy decision. In addition, by seeking to impose damages for the automakers' lawful worldwide sale of automobiles, the state's nuisance claims sufficiently implicates the political branches’ powers over interstate commerce and foreign policy, thereby raising compelling concerns that warn against the exercise of subject matter jurisdiction in this case. There is also a lack of judicially discoverable or manageable standards by which to resolve the state's claim. Hence, the political branches of the federal government, and not the courts, should address and resolve the state's concerns. California v. General Motors Corp., No. C06-05755 MJJ, 37 ELR 20239 (N.D. Cal. Sept. 17, 2007) (Jenkins, J.) (24 pp.).

FLOOD CONTROL, APA, CWA, NEPA:

A district court held that the U.S. Army Corps of Engineers' authorization of a flood control project in the St. Johns Bayou and New Madrid Floodway on the west bank of the Mississippi River violates the APA and enjoined further construction work on the project. Environmental groups argued that the Corps violated the Water Resources Development Act, the CWA, NEPA, the Rivers and Harbor Appropriation Act, and the APA. Although the court may not determine whether the project is a good idea or a bad one, or to pass judgment on the policy implications of public works, the Corps resorted to arbitrary and capricious reasoning--manipulating models and changing definitions where necessary--to make the project seem compliant with the CWA and NEPA when it is not. Because it is not, and because the government’s arbitrary and capricious actions violate the APA, the court granted the groups' motion for summary judgment and enjoined further work on the project. In addition, the Corps must restore the disturbances created by the preliminary construction work that has already been completed. Environmental Defense v. U.S. Army Corps of Engineers, No. 04-1575, 37 ELR 20243 (D.D.C. Sept. 13, 2007) (Robertson, J.) (37 pp.).

NATIVE AMERICANS, LIQUEFIED NATURAL GAS:

The First Circuit held that a lower court improperly dismissed Native American's case against the Bureau of Indian Affairs (BIA) for leasing tribal land to a developer to construct a liquefied natural gas terminal. The plaintiffs argued that the BIA failed to appraise the land, to prepare an EA, to provide an opportunity for public comment, or to consider the historical, religious, and cultural significance of the leased land in violation of the Leasing Act, NEPA, the National Historic Preservation Act (NHPA), the ESA, and the APA. The lower court dismissed all of their claims, concluding that either the claims were not ripe or that the plaintiffs lacked standing. The circuit court reversed. It is clear that the violations and injuries alleged in their complaint are the sort that NEPA, the NHPA, and the ESA were specifically designed to protect, and the plaintiffs are asserting their own interests rather than those of third parties. In addition, their interests arguably fall within the zone of interests protected by the Leasing Act. And given the BIA's reversal of position as to the lease's finality, the case is ripe. While the construction of the terminal is hypothetical and uncertain at this juncture, the approval of the lease is complete. The dispute is not over the hypothetical construction and operation of a liquefied natural gas terminal, but the allegedly improper approval of the lease that is the prerequisite to the terminal. Nulankeyutmonen Nkihtaqmikon v. Impson, No. 06-2733, 37 ELR 20241 (1st Cir. Sept. 14, 2007) (26 pp.).

LAND USE, EMINENT DOMAIN:

The Seventh Circuit upheld the denial of a church's motion for a preliminary restraining order to prevent the relocation of a cemetery in conjunction with plans to renovate Chicago's O'Hare International Airport. Eminent domain does not constitute a "land use" regulation subject to the Religious Land Use and Institutionalized Persons Act. Had Congress wanted to include eminent domain within the Religious Land Use and Institutionalized Persons Act, it would have said so given the importance of eminent domain as a governmental power affecting land use. In addition, the statute enabling the relocation was facially neutral in regards to religious practices, and there is no evidence to support the claim that religious institutions or practices were being specifically targeted. The church's equal protection claims also failed. St. John's United Church of Christ v. City of Chicago, Nos. 05-4418 et al., 37 ELR 20242 (7th Cir. Sept. 13, 2007) (54 pp.).

WIND POWER, CONDITIONAL USE PERMITS:

The Virginia Supreme Court upheld a county's decision approving the construction of 20 wind turbines about 400 feet in height, a height that exceeds the maximum height permitted by the zoning ordinance, as well as an electric generation substation on property that is located in an agricultural zoning district. Two groups of residents challenged the county's approval of the wind farm. One of the challenges was dismissed because the residents failed to name the county board of supervisors as a defendant in their action contesting the board's decision to grant a conditional use permit for the wind farm. The second challenge was dismissed because neighboring landowners may not file a declaratory judgment action contesting a county planning commission's decision that a certain conditional use is in "substantial accord" with that county's comprehensive plan. Only the owner of the property at issue, or the owner's agent, may appeal to the governing body from a substantial accord determination of the planning commission. Miller v. Highland County, Nos. 062111, 062489, 37 ELR 20245 (Va. Sept. 14, 2007) (23 pp.).

INSURANCE, DAMAGES:

A California appellate court held that sums agreed to be paid as a settlement of litigation are not subject to indemnification as "damages" under excess liability insurance policies. The case arose after a rocket and missile manufacturer sued for breach of contract and declaratory relief against its excess liability insurance carriers due to their refusal to indemnify the company for costs it incurred remediating groundwater pollution pursuant to a settlement agreement in an underlying action. But because the court in the underlying case did not order the payment of any money, the insurers had no duty under the terms of their insurance policies to indemnify the company for the costs it incurred in implementing its settlement agreement. Aerojet-General Corp. v. Commercial Union, No. C051124, 37 ELR 20240 (Cal. Ct. App. 3d Dist. Sept. 13, 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:

  • EPA added electric arc furnace steelmaking facilities to the list of source categories subject to regulation under CAA §112(c)(6) and revised the area source category list for the Integrated Urban Air Toxics Strategy; in addition, the Agency proposed national emission standards for electric arc furnace steelmaking facilities that are area sources of hazardous air pollutants. 72 FR 53813 (9/20/07).
  • EPA amended the rules that establish emission standards for nonroad diesel engines so that they provide nonroad diesel equipment manufacturers with a production technical relief provision for Tier 3 equipment. 72 FR 53118 (9/18/07).
  • EPA proposed to facilitate implementation of a PSD program for particulate matter with a diameter of 2.5 microns or less (PM 2.5) in areas attaining the PM2.5 NAAQS by developing PM2.5 increments, significant impact levels, and a significant monitoring concentration. 72 FR 54111 (9/21/07).
  • EPA proposed NESHAPs for the clay ceramics manufacturing, glass manufacturing, and secondary nonferrous metals processing area source categories. 72 FR 53837 (9/20/07).
  • EPA proposed to amend the rules that establish emission standards for nonroad diesel engines so that they provide nonroad diesel equipment manufacturers with a production technical relief provision for Tier 3 equipment. 72 FR 53204 (9/18/07).
  • EPA proposed NESHAPs for iron and steel foundries; the proposed rule establishes different requirements for the two area source categories based on size. 72 FR 52983 (9/17/07).
  • EPA proposed NESHAPs for area sources engaged in paint stripping and miscellaneous surface coating operations. 72 FR 52957 (9/17/07).
  • SIP Approvals: California (volatile organic compound (VOC) emissions from the usage of solvents) 72 FR 57291 (9/17/07). Delaware (open burning regulation) 72 FR 53686 (9/20/07). Georgia (redesignation of the Macon eight-hour ozone nonattainment area) 72 FR 53432 (9/19/07).
  • SIP Proposals: California (VOC emissions from the usage of solvents; see above for direct final rule) 72 FR 52828 (9/17/07). Missouri (clean air interstate rule) 72 FR 52828 (9/17/07).

ENERGY:

  • DOE announced the availability of its draft study work plan for performing the Wind Hydropower Integration Feasibility Study, which involves a study on the integration of wind energy generated by Native American tribes and hydropower generated by the U.S. Army Corps of Engineers on the Missouri River to supply power to western states. 72 FR 53560 (9/19/07).

GENERAL:

  • EPA amended its procedures for implementing the requirements of NEPA. 72 FR 53651 (9/19/07).

HAZARDOUS AND SOLID WASTE:

  • EPA announced the availability of the proposed acute exposure guideline level values for 37 hazardous substances. 72 FR 53577 (9/19/07).
  • EPA entered into six settlements for reimbursement of past response costs under CERCLA concerning the Davis Refining Superfund site in Tallahassee, Florida. 72 FR 53249 (9/17/07).
  • EPA entered into a settlement for reimbursement of past response costs under CERCLA concerning the Constitution Road Drum Superfund site in Atlanta, Georgia. 72 FR 52877 (9/17/07).
  • EPA entered into a settlement for reimbursement of past response costs under CERCLA concerning the Sikes Oil Service Superfund Site in Arcade, Georgia. 72 FR 52877 (9/17/07).

WILDLIFE:

  • FWS prescribed final late-season frameworks from which states may select season dates, limits, and other options for the 2007 through 2008 migratory bird hunting seasons. 72 FR 53881 (9/20/07).
  • FWS announced its 12-month finding on a petition to list the Pariette cactus as an endangered or threatened species under the ESA and found that reclassifying the plant species as endangered is warranted but precluded by higher priority actions at this time; in addition, the agency proposed to change the taxonomy of the currently threatened Sclerocactus glaucus "complex'' to three distinct species (Sclerocactus brevispinus, S. glaucus, and S. wetlandicus) to maintain their status as threatened species. 72 FR 53211 (9/18/07).
  • FWS announced the availability of the final comprehensive conservation plan FONSI for the Missisquoi National Wildlife Refuge in Swanton, Vermont. 72 FR 54056 (9/21/07).
  • FWS announced the availability of nine U.S. Geological Survey reports that provide current data and modeling outputs relevant to the final determination of whether the polar bear qualifies for listing under the ESA. 72 FR 53749 (9/20/07).
  • FWS announced the availability of the draft comprehensive conservation plans and EAs for the Baker Island National Wildlife Refuge, Howland Island National Wildlife Refuge, and Jarvis Island National Wildlife Refuge; the three refuges are unincorporated U.S. territories located in the central Pacific Ocean. 72 FR 53260 (9/18/07).
  • FWS announced the availability of a draft comprehensive conservation plan and draft EA for the Washita National Wildlife Refuge in Custer County, Oklahoma, and Optima National Wildlife Refuge in Texas County, Oklahoma. 72 FR 52903 (9/17/07).
  • NOAA proposed to revise the seabird avoidance measures for the Alaska hook-and-line groundfish and halibut fisheries in the Bering Sea and Aleutian Islands Management Area. 72 FR 53516 (9/19/07).

DOJ NOTICES OF SETTLEMENT:

  • United States v. Bayer Healthcare LLC, No. 2:07CV304 (TS) (N.D. Ind. Sept. 7, 2007). A settling CERCLA defendant who generated waste disposed of at the Himco Dump Superfund site in Elkhart, Indiana, must implement a remedial action selected by EPA at an estimated cost of $9,156,000; in addition, the CERCLA defendant as well as other CERCLA defendants that owned, operated, or arranged for disposal of hazardous waste at the site must pay $3,875,000 in past costs to resolve claims related to the site. 72 FR 53795 (9/20/07).
  • United States v. Johnson, No. 07-1048 (D. Minn. Sept. 7, 2007). A settling CWA defendant who discharged pollutants without a permit into waters of the United States must restore the impacted areas and must pay a civil penalty. 72 FR 53795 (9/20/07).
  • United States v. Redesign Landscape Contractors, Inc., No. 06- 1103 (N.D. Ill. Sept. 13, 2007). Settling CWA defendants who discharged pollutants without a permit into waters of the United States must pay a civil penalty; the defendants have already restored the impacted area. 72 FR 53795 (9/20/07).

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

THE CONGRESS

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

COMMITTEE ACTION:

  • S. 169 (National Trails System Act) was reported by the Committee on Energy and Natural Resources. S. Rep. No. 110-167, 153 Cong. Rec. S11585 (daily ed. Sept. 17, 2007). The bill would amend the National Trails System Act to clarify federal authority relating to land acquisition from willing sellers for the majority of the trails in the System.
  • S. 278 (National Heritage Area) was reported by the Committee on Energy and Natural Resources. S. Rep. No. 110-168, 153 Cong. Rec. S11585 (daily ed. Sept. 17, 2007). The bill would establish a program and criteria for National Heritage Areas in the United States.
  • S. 289 (National Heritage Area) was reported by the Committee on Energy and Natural Resources. S. Rep. No. 110-169, 153 Cong. Rec. S11585 (daily ed. Sept. 17, 2007). The bill would establish the Journey Through Hallowed Ground National Heritage Area.
  • S. 443 (National Heritage Area) was reported by the Committee on Energy and Natural Resources. S. Rep. No. 110-170, 153 Cong. Rec. S11585 (daily ed. Sept. 17, 2007). The bill would establish the Sangre de Cristo National Heritage Area in the state of Colorado.
  • S. 444 (National Heritage Area) was reported by the Committee on Energy and Natural Resources. S. Rep. No. 110-171, 153 Cong. Rec. S11585 (daily ed. Sept. 17, 2007). The bill would establish the South Park National Heritage Area in the state of Colorado.
  • S. 471 (National Historic Trail) was reported by the Committee on Energy and Natural Resources. S. Rep. No. 110-156, 153 Cong. Rec. S11585 (daily ed. Sept. 17, 2007). The bill would authorize the Secretary of the Interior to convey to the Missouri River Basin Lewis and Clark Interpretive Trail and Visitor Center Foundation, Inc., certain federal land associated with the Lewis and Clark National Historic Trail in Nebraska, to be used as an historical interpretive site along the trail.
  • S. 637 (Chattahoochee Trace National Heritage Corridor) was reported by the Committee on Energy and Natural Resources. S. Rep. No. 110-157, 153 Cong. Rec. S11585 (daily ed. Sept. 17, 2007). The bill would direct the Secretary of the Interior to study the suitability and feasibility of establishing the Chattahoochee Trace National Heritage Corridor in Alabama and Georgia.
  • S. 645 (Energy Policy Act) was reported by the Committee on Energy and Natural Resources. S. Rep. No. 110-158, 153 Cong. Rec. S11585 (daily ed. Sept. 17, 2007). The bill would amend the Energy Policy Act of 2005 to provide an alternate sulfur dioxide removal measurement for certain coal gasification project goals.
  • S. 647 (wilderness) was reported by the Committee on Energy and Natural Resources. S. Rep. No. 110-172, 153 Cong. Rec. S11585 (daily ed. Sept. 17, 2007). The bill would designate certain land in the state of Oregon as wilderness.
  • S. 722 (Walnut Canyon National Monument) was reported by the Committee on Energy and Natural Resources. S. Rep. No. 110-173, 153 Cong. Rec. S11585 (daily ed. Sept. 17, 2007). The bill would direct the Secretary of the Interior and the Secretary of Agriculture to jointly conduct a study of certain land adjacent to the Walnut Canyon National Monument in the state of Arizona.
  • S. 800 (National Heritage Area) was reported by the Committee on Energy and Natural Resources. S. Rep. No. 110-174, 153 Cong. Rec. S11585 (daily ed. Sept. 17, 2007). The bill would establish the Niagara Falls National Heritage Area in the state of New York.
  • S. 817 (National Heritage Area) was reported by the Committee on Energy and Natural Resources. S. Rep. No. 110-175, 153 Cong. Rec. S11585 (daily ed. Sept. 17, 2007). The bill would amend the Omnibus Parks and Public Lands Management Act of 1996 to provide additional authorizations for certain National Heritage Areas.
  • S. 955 (National Heritage Area) was reported by the Committee on Energy and Natural Resources. S. Rep. No. 110-177, 153 Cong. Rec. S11585 (daily ed. Sept. 17, 2007). The bill would establish the Abraham Lincoln National Heritage Area.
  • S. 1089 (Alaska Natural Gas Pipeline Act) was reported by the Committee on Energy and Natural Resources. S. Rep. No. 110-178, 153 Cong. Rec. S11585 (daily ed. Sept. 17, 2007). The bill would amend the Alaska Natural Gas Pipeline Act to allow the Federal Coordinator for Alaska Natural Gas Transportation Projects to hire employees more efficiently.
  • S. 1182 (Quinebaug and Shetucket Rivers Valley National Heritage Corridor Act) was reported by the Committee on Energy and Natural Resources. S. Rep. No. 110-159, 153 Cong. Rec. S11585 (daily ed. Sept. 17, 2007). The bill would amend the Quinebaug and Shetucket Rivers Valley National Heritage Corridor Act of 1994 to increase the authorization of appropriations and modify the date on which the authority of the Secretary of the Interior terminates under the Act.
  • S. 1203 (electricity) was reported by the Committee on Energy and Natural Resources. S. Rep. No. 110-160, 153 Cong. Rec. S11585 (daily ed. Sept. 17, 2007). The bill would enhance the management of electricity programs at DOE.
  • S. 1728 (National Parks and Recreation Act) was reported by the Committee on Energy and Natural Resources. S. Rep. No. 110-161, 153 Cong. Rec. S11585 (daily ed. Sept. 17, 2007). The bill would amend the National Parks and Recreation Act of 1978 to reauthorize the Na Hoa Pili O Kaloko-Honokohau Advisory Commission.
  • H.R. 85 (energy) was reported by the Committee on Energy and Natural Resources. S. Rep. No. 110-162, 153 Cong. Rec. S11585 (daily ed. Sept. 17, 2007). The bill would provide for the establishment of centers to encourage demonstration and commercial application of advanced energy methods and technologies.
  • H.R. 247 (Willamette National Forest) was reported by the Committee on Energy and Natural Resources. S. Rep. No. 110-163, 153 Cong. Rec. S11585 (daily ed. Sept. 17, 2007). The bill would designate a Forest Service trail at Waldo Lake in the Willamette National Forest in the state of Oregon as a national recreation trail in honor of Jim Weaver, a former Member of the House of Representatives.
  • H.R. 407 (Columbia-Pacific National Heritage Area) was reported by the Committee on Energy and Natural Resources. S. Rep. No. 110-164, 153 Cong. Rec. S11585 (daily ed. Sept. 17, 2007). The bill would direct the Secretary of the Interior to conduct a study to determine the feasibility of establishing the Columbia-Pacific National Heritage Area in the states of Washington and Oregon.
  • H.R. 1100 (boundary adjustment) was reported by the Committee on Energy and Natural Resources. S. Rep. No. 110-180, 153 Cong. Rec. S11585 (daily ed. Sept. 17, 2007). The bill would revise the boundary of the Carl Sandburg Home National Historic Site in the state of North Carolina.
  • H.R. 1126 (Steel and Aluminum Energy Conservation and Technology Competitiveness Act) was reported by the Committee on Energy and Natural Resources. S. Rep. No. 110-181, 153 Cong. Rec. S11585 (daily ed. Sept. 17, 2007). The bill would reauthorize the Steel and Aluminum Energy Conservation and Technology Competitiveness Act of 1988.
  • H.R. 2095 (hazardous materials) was reported by the Committee on Transportation and Infrastructure. H. Rep. No. 110-336, 153 Cong. Rec. H10624 (daily ed. Sept. 19, 2007). The bill would amend title 49, United States Code, to prevent railroad fatalities, injuries, and hazardous materials releases and to authorize the Federal Railroad Safety Administration.
  • H. Res. 549 (America's Waterway Watch), was reported by the Committee on Transportation and Infrastructure. H. Rep. No. 110-324, 153 Cong. Rec. H10369 (daily ed. Sept. 14, 2007). The resolution would recognize the importance of America's Waterway Watch program.

BILLS INTRODUCED:

  • S. 2067 (Martinez, R-Fla.) (FWPCA) would amend the FWPCA relating to recreational vessels. 153 Cong. Rec. S11654 (daily ed. Sept. 18, 2007). The bill was referred to the Committee on Environment and Public Works.
  • S. 2073 (McCaskill, D-Mo.) (National Trails System Act) would amend the National Trails System Act relating to the statute of limitations that applies to certain claims. 153 Cong. Rec. S11853 (daily ed. Sept. 20, 2007). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2076 (Reid, D-Nev.) (Federal Power Act) would amend the Federal Power Act to require the president to designate certain geographical areas as national renewable energy zones. 153 Cong. Rec. S11853 (daily ed. Sept. 20, 2007). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2078 (Schumer, D-N.Y.) (energy) would require updating of state building energy efficiency codes and standards. 153 Cong. Rec. S11853 (daily ed. Sept. 20, 2007). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2079 (Schumer, D-N.Y.) (energy) would amend the Public Utility Regulatory Policies Act of 1978 to establish an energy efficiency resource standard for retail electricity and natural gas distributors. 153 Cong. Rec. S11853 (daily ed. Sept. 20, 2007). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2080 (Lautenberg, D-N.J.) (FWPCA) would amend the FWPCA to ensure that sewage treatment plants monitor for and report discharges of raw sewage. 153 Cong. Rec. S11853 (daily ed. Sept. 20, 2007). The bill was referred to the Committee on Environment and Public Works.
  • H.R. 3542 (Hooley, D-Or.) (lead) would declare water hoses containing lead to be banned hazardous substances. 153 Cong. Rec. H10432 (daily ed. Sept. 17, 2007). The bill was referred to the Committee on Energy and Commerce.
  • H.R. 3560 (Young, R-Alaska) (Alaska Native Claims Settlement Act) would provide for the completion of certain land selections under the Alaska Native Claims Settlement Act. The bill was referred to the Committee on Natural Resources. 153 Cong. Rec. H10509 (daily ed. Sept. 18, 2007).
  • H.R. 3570 (Boren, D-Okla.) (Native Americans) would take certain property in McIntosh County, Oklahoma, into trust for the benefit of the Muscogee (Creek) Nation. 153 Cong. Rec. H10510 (daily ed. Sept. 18, 2007). The bill was referred to the Committee on Natural Resources.
  • H.R. 3573 (Frelinghuysen, R-N.J.) (National Historical Park) would authorize the addition of 100 acres to Morristown National Historical Park. 153 Cong. Rec. H10510 (daily ed. Sept. 18, 2007). The bill was referred to the Committee on Natural Resources.
  • H.R. 3574 (Hooley, D-Or.) (Willamette River) would continue the work to enhance access to the Willamette River that has been initiated by the Willamette River Basin communities; state, regional, local, and Indian tribal governments; and nongovernment partnerships. 153 Cong. Rec. H10510 (daily ed. Sept. 18, 2007). The bill was referred to the Committee on Natural Resources and the Committee on Transportation and Infrastructure.
  • H.R. 3575 (Matheson, D-Utah) (land conveyance) would provide for the sale of approximately 25 acres of public land to the Turnabout Ranch, Escalante, Utah, at fair market value. 153 Cong. Rec. H10510 (daily ed. Sept. 18, 2007). The bill was referred to the Committee on Natural Resources.
  • H.R. 3603 (Simpson, R-Idaho) (land exchange) would authorize the exchange of certain land located in the state of Idaho. 153 Cong. Rec. H10625 (daily ed. Sept. 19, 2007). The bill was referred to the Committee on Natural Resources.
  • H.R. 3616 (Emerson, R-Mo.) (National Historic Trail) would authorize the Secretary of the Interior to conduct a study to determine the suitability and feasibility of extending the Lewis and Clark National Historic Trail to include additional sites associated with the preparation and return phases of the expedition. 153 Cong. Rec. H10695 (daily ed. Sept. 20, 2007). The bill was referred to the Committee on Natural Resources.
  • H.R. 3617 (Giffords, D-Ariz.) (land exchange) would provide for the exchange of certain BLM land in Pima County, Arizona. 153 Cong. Rec. H10695 (daily ed. Sept. 20, 2007). The bill was referred to the Committee on Natural Resources.
  • H. Res. 666 (Rodriguez, D-Tex.) (Guadalupe Mountains National Park) would recognize and celebrate the 35th anniversary of Guadalupe Mountains National Park. 153 Cong. Rec. H10625 (daily ed. Sept. 19, 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:

Arizona Louisiana Montana Pennsylvania Virginia California Maine New Mexico South Dakota Washington Colorado Maryland Ohio Tennessee West Virginia Idaho Michigan Oklahoma Utah Wisconsin Illinois Missouri      

ARIZONA

Air:

  • The Arizona Department of Environmental Quality (ADEQ) proposed to amend R18-2-326 and R18-2-511, which would change the fees ADEQ charges for air quality permits. The fees that would be affected are fees for permit actions, administrative- and emission-based fees for Title V sources, inspection fees for non-Title V sources, and fees for general permits. ADEQ is seeking an immediate effective date for these rules to ensure fund solvency. A hearing will be held October 18, 2007. Comments are due October 18, 2007. See http://www.azsos.gov/public_services/Register/2007/37/proposed.pdf (pp. 3141-3154)

Toxic Substances:

  • The Department of Environmental Quality has issued two Substantive Policy Statements: "UST Systems: Inspecting and Maintaining Sumps and Spill Buckets (Practical Help and Checklist)," regarding ADEQ’s current approach to, or opinion of, the requirements of 40 CFR 280, Subpart C, A.R.S. § 49-1009, and A.A.C. Title 18, Chapter 12, Article 2; and "Guidance for Release Reporting and Corrective Actions," concerning ADEQ’s current approach to, or opinion of, the requirements of 40 CFR 280.50 through 67, A.R.S. § 49-1004 and 1005, and A.A.C. R18-12-250 through 264.01. See http://www.azsos.gov/public_services/Register/2007/37/policy.pdf

CALIFORNIA

Water:

  • The Office of Environmental Health Hazard Assessment will conduct a public workshop to consider the draft technical support document for a proposed Public Health Goal for the organic solvent 1,2,3–trichloropropane in drinking water. The public workshop will be held on October 9, 2007. Comments are due October 30, 2007. See http://www.oal.ca.gov/pdfs/notice/37z-2007.pdf (pp. 1544-1545)

COLORADO

Water:

IDAHO

Air:

  • The Department of Environmental Quality will conduct a public hearing to consider a rulemaking to ensure that the purpose and applicability of Sections 725 through 729, as they relate to sulfur content of fuels, are clear.  The department does not intend to change the substance of the rules. The hearing will be held October 24, 2007. Comments are due October 24, 2007. See http://www.deq.idaho.gov/rules/air/58_0101_0703_negotiated.cfm

ILLINOIS

Land Use:

  • The Illinois Environmental Protection Agency seeks public comment on proposed rule changes that would set forth the procedures to be followed by remediation applicants to obtain agency review and approval of remediation costs prior to applying for the River Edge Redevelopment Zone Site Remediation Tax Credit under Section 201(n) of the Illinois Income Tax Act [35 ILCS 5/201(n)]. Comments are due October 28, 2007. See http://www.cyberdriveillinois.com/departments/index/register/register_volume31_issue37.pdf (pp. 13053-13054)

LOUISIANA

Air:

  • The Department of Environmental Quality will conduct a public hearing to consider amendments to its air regulations at LAC 33:III.5112. The amendments would revise certain ambient air standards for toxic air pollutants in LAC 33:III.5112. The hearing will be held October 25, 2007. Comments are due October 25, 2007. See http://www.deq.louisiana.gov/portal/portals/0/planning/regs/pdf/AQ281.pdf

Toxic Substances:

  • The Department of Environmental Quality has adopted the UST regulations, LAC 33:XI.401 and 403. The new rule establishes standards for the red tag/delivery prohibition of regulated substances for USTs. See http://www.doa.louisiana.gov/osr/reg/0709/0709RUL.pdf (pp. 1866-1868)
  • The Department of Environmental Quality will conduct a public hearing to consider amendments to its radiation protection regulations at LAC 33:XV.493, 602, 2017, and 2051. This proposed rule is identical to federal regulations found in 10 CFR §§20.2207, 39.15, and 39.41 and 21 CFR §1020.30, which are applicable in Louisiana. The hearing will be held October 25, 2007. Comments are due October 25, 2007. See http://www.deq.louisiana.gov/portal/portals/0/planning/regs/pdf/RP046ft.pdf

Water:

  • The Department of Environmental Quality will conduct a public hearing to consider amendments to its water quality regulations at LAC 33:IX.2501, 2505, and 2703. This proposed rule is identical to federal regulations found in 72 FR 40245-250 (July 24, 2007), which are applicable in Louisiana. The hearing will be held October 25, 2007. Comments are due October 25, 2007. See http://www.deq.louisiana.gov/portal/portals/0/planning/regs/pdf/WQ073ft.pdf

MAINE

Wildlife:

  • The Maine Outdoor Heritage Fund Board is soliciting public comment on its proposal to amend its strategic plan to help with clarity during the scoring and data compilation process and to provide a six-year review of the plan. These amendments are being proposed to expand the types of projects eligible for funding from the Heritage Fund, to clarify how matches are calculated by the Board, and to increase competition by soliciting a greater number of grant applications. Comments are due October 19, 2007. See http://www.maine.gov/sos/cec/rules/notices/2007/091907.htm

MARYLAND

Fisheries:

Wildlife:

MICHIGAN

Air:

  • The Department of Environmental Quality adopted air pollution control rule 336.1640, concerning emissions of volatile organic compounds and existing process operations used in the manufacture of Portland cement at facilities located in Lenawee, Livingston, Macomb, Monroe, Oakland, St. Clair, Washtenaw, and Wayne counties. See http://www.michigan.gov/documents/cis/MR16_091507_208741_7.pdf (pp. 6-7)
  • The Michigan Department of Environmental Quality, Air Quality Division, will conduct a second public hearing on a proposed administrative rule promulgated pursuant to Part 55, Air Pollution Control, of the Natural Resources and Environmental Protection Act, 1994 PA 451, as amended (Act 451). The proposed rule, R 336.1640, would limit volatile organic compound emissions at a cement manufacturing facility. The public hearing will be held on September 27, 2007. Comments are due September 28, 2007. See http://www.michigan.gov/documents/cis/MR16_091507_208741_7.pdf (pp. 8-88)

Hazardous & Solid Wastes:

  • The Michigan Department of Environmental Quality, Waste and Hazardous Materials Division, held public hearings on two different proposed administrative rules packages. The first proposed rules package addresses the storage, handling, and dispensing of liquefied petroleum gas and provides for the use of new technology. The second proposed rules package addresses the storage, handling, and dispensing of liquefied and gaseous hydrogen. The public hearings were held on September 18, 2007. Comments are due September 25, 2007. See http://www.michigan.gov/documents/cis/MR16_091507_208741_7.pdf (pp. 89-117)

MISSOURI

Water:

MONTANA

Water:

  • The Board of Environmental Review has extended the comment period in the matter of the amendment of ARM 17.30.617 and 17.30.638 pertaining to outstanding resource water designation for the Gallatin River. Comments are now due January 4, 2008. See http://sos.mt.gov/arm/Register/archives/MAR2007/MAR07-18.pdf (pp. 1398-1399)

NEW MEXICO

Air:

  • The New Mexico Environmental Improvement Board will hold a public hearing on the New Mexico Environment Department's proposal to adopt a new regulation, 20.2.88 NMAC, Emissions Standards for New Motor Vehicles.  The proposal is part of a broader state effort to address emissions of greenhouse gases and is being proposed in accordance with Governor Richardson's Executive Order No. 2006-69. The hearing will be held November 14, 2007. See http://www.nmcpr.state.nm.us/nmregister/xviii/xviii17/EIBnotice.htm

Land Use:

  • The New Mexico Energy, Minerals and Natural Resources Department amended 19.20.4 NMAC, Commercial Timber Harvesting Requirements, to change the definition of "commercial forest species." This definition was amended to include juniper and piñon species. No other changes were made. This amendment became effective September 14, 2007. See http://www.nmcpr.state.nm.us/nmregister/xviii/xviii17/19.20.4amend.pdf

General:

  • The New Mexico Energy, Minerals and Natural Resources Department will conduct a public hearing on proposed rules for the administration of the Biodiesel Blending Facility Tax Credit. The hearing will be held October 2, 2007. See http://www.nmcpr.state.nm.us/nmregister/xviii/xviii17/Energynotice1.htm
  • The New Mexico Energy, Minerals and Natural Resources Department will conduct a public hearing on proposed rules 3.3.29 NMAC and 3.4.16 NMAC, concerning the administration of the Sustainable Building Tax Credit for Residential Buildings, and 3.3.30 NMAC and 3.4.17 NMAC, concerning the administration of the Sustainable Building Tax Credit for Commercial Buildings. The hearing will be held on October 2, 2007. See http://www.nmcpr.state.nm.us/nmregister/xviii/xviii17/Energynotice2.htm

OHIO

Air:

  • The Ohio Environmental Protection Agency, Division of Air Pollution Control, will conduct a public hearing on the proposal to amend numerous rules of Ohio Administrative Code Chapter 3745-17 and to repeal OAC rule 3745-17-05. The revisions would include NAAQS for fine particular matter, among other changes. The hearing will be held October 19, 2007. Comments are due October 19, 2007. See http://www.registerofohio.state.oh.us/pdfs/phn/3745_NO_38851_20070912_0856.pdf

OKLAHOMA

Air:

  • The Department of Environmental Quality will conduct a public hearing on proposed amendments to numerous air pollution control rules concerning registration, emission inventory and annual operating fees, excess emission reporting requirements, and incinerators. The hearing will be held October 17, 2007. Comments are due October 17, 2007. See http://www.oar.state.ok.us/register/Volume-25_Issue-01.htm#a16164
  • The Department of Environmental Quality will conduct a public hearing on proposed amendments to air pollution control rules concerning general provisions, permits for minor facilities, permits for Part 70 sources, control of emission of volatile organic compounds (VOCs), and emission of VOCs in nonattainment areas and former nonattainment areas. The hearing will be held November 15, 2007. Comments are due November 15, 2007. See http://www.oar.state.ok.us/register/Volume-25_Issue-01.htm#a17195

Water:

PENNSYLVANIA

Air:

  • The Department of Environmental Protection is seeking comment on a SIP revision that confirms the commonwealth's compliance with CAA §110(a)(2)(A)--(M), pertaining to general responsibilities; and a SIP revision meeting the interstate transport requirements of CAA §110(a)(2)(D)(i). Comments are due October 16, 2007. See http://www.pabulletin.com/secure/data/vol37/37-37/1714.html
  • The Environmental Quality Board will conduct public hearings on its proposal to amend Chapter 130, Subchapter B (relating to consumer products). The proposed rulemaking would amend the Table of Standards to add volatile organic compound (VOC) content limits for an additional 11 categories of consumer products and would amend the VOC content limits for one category of consumer products currently regulated. The proposed rulemaking would also add definitions for approximately 30 new terms, including those that relate to the new product categories that will be regulated, and would amend definitions for approximately 110 existing terms to provide clarity. The hearings will be held October 15, 2007. Comments are due November 14, 2007. See http://www.pabulletin.com/secure/data/vol37/37-37/1752.html

SOUTH DAKOTA

Water:

  • The Department of Environment and Natural Resources Water Management Board will conduct a public hearing on the proposal to amend rules to Surface Water Quality Standards. The amendments would, among other things, add a definition for "Epilimnion"; update references to reflect the most current version of the Code of Federal Regulations; designate that the dissolved oxygen criteria applies only to the epilimnion of a waterbody that has stratified, or to any location in an unstratified waterbody; change the pH criteria to reflect the intent of U.S. EPA's pH criteria document; and add beneficial uses to the low flow rates for low quality fishery waters. The hearing will be held October 3, 2007. Comments are due October 2, 2007. See http://legis.state.sd.us/rules/register/09172007.pdf (p. 82)

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

UTAH

Water:

  • The Department of Environmental Quality is soliciting public comment on proposed incorporation by reference of six completed and recently approved U.S. EPA TMDL water quality determinations into R317-1-7, TMDLs. Comments are due October 15, 2007. See http://www.rules.utah.gov/publicat/bull_pdf/2007/b20070915.pdf (pp. 16-17)
  • The Department of Environmental Quality is soliciting public comment on proposed amendments to R317-4-9, Absorption Systems. The amendment would update this section to make it more generic to apply to a broader range of wastewater absorption systems and would replace an outdated reference with a more descriptive one. Comments are due October 15, 2007. See http://www.rules.utah.gov/publicat/bull_pdf/2007/b20070915.pdf (pp. 17-19)
  • The Department of Environmental Quality is soliciting public comment on proposed amendments to R317-10, Certification of Wastewater Works Operators. The amendment would clarify the requirements and procedures used by the wastewater operator certification program and would bring rules into harmony with actual practices of the Division. Comments are due October 15, 2007. See http://www.rules.utah.gov/publicat/bull_pdf/2007/b20070915.pdf (pp. 19-23)
  • The Department of Environmental Quality is soliciting public comment on proposed amendments to R317-101, Utah Wastewater Project Assistance Program. The amendment would revise definitions and provide procedures for State Revolving Fund Hardship Grants for Nonpoint Source Projects in response to statutory changes in Title 73, Chapter 10c, from H.B. 99, 2007 General Legislative Session. Comments are due October 15, 2007. See http://www.rules.utah.gov/publicat/bull_pdf/2007/b20070915.pdf (pp. 23-29)
  • The Department of Environmental Quality is soliciting public comment on proposed amendments to R317-102, Utah Wastewater State Revolving Fund Program. The proposed changes are intended to comply with statutory changes to Title 73, Chapter 10c from H.B. 99, 2007 General Legislative Session. Comments are due October 15, 2007. See http://www.rules.utah.gov/publicat/bull_pdf/2007/b20070915.pdf (pp. 29-32)

General:

  • The Department of Natural Resources is soliciting public comment on proposed amendments to R638-2, Renewable Energy Systems Tax Credits. The amendment would incorporate changes suggested by stakeholders and correct several minor typographical errors. Comments are due October 15, 2007. See http://www.rules.utah.gov/publicat/bull_pdf/2007/b20070915.pdf (pp. 49-57)

VIRGINIA

Water:

  • The Department of Environmental Quality is soliciting public comment on the amendment of 9 VAC 25-260, Water Quality Standards. The proposed action would include a new designation of “Aquaculture Enhancement Zones” on the Eastern Shore of Virginia as well as narrative criteria to provide additional protection to these waters that are used or could reasonably be used for shellfish aquaculture or to support aquaculture. The proposal would require applicants to demonstrate that practicable alternatives to discharging pollutants to the listed waters have been evaluated and that the proposed discharge is the alternative that produces the least environmental impact. Comments are due October 24, 2007. See http://townhall.virginia.gov/L/viewaction.cfm?actionid=2425
  • The Department of Environmental Quality is soliciting public comment on the amendment of 18 VAC 160-20, Board for Waterworks and Wastewater Works Operators Regulations. The action would set entry requirements and standards of conduct for onsite soil evaluators, alternative onsite sewage system installers, and alternative onsite sewage system operators. Comments are due November 5, 2007. See http://townhall.virginia.gov/L/viewaction.cfm?actionid=2430

WASHINGTON

Toxic Substances :

WEST VIRGINIA

Hazardous and Solid Waste:

WISCONSIN

Air:

  • The Department of Natural Resources has issued a scoping statement to amend or repeal ch. NR 462, relating to the Boiler Maximum Achievable Control Technology rule. The proposed rulemaking would repeal or amend Chapter NR 462 so that it is not in effect or has no compliance date in effect in the short term since the underlying counterpart federal rule has been vacated by the D.C. Circuit Court of Appeals. See http://www.legis.state.wi.us/rsb/code/register/reg621a.pdf (p. 12)
  • 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. The SIP developed under s. 285.11(6), Stats., is also revised. The hearing will be held October 12, 2007. Comments are due October 22, 2007. See http://www.legis.state.wi.us/rsb/code/register/reg621a.pdf (pp. 14-15)

Water:

  • The Department of Natural Resources has issued a scoping statement on the development of an amendment to ch. NR 219, relating to water test procedures and analysis methods. In March 2007, EPA published two final rules, “Guidelines Establishing Test Procedures for the Analysis of Pollutants Under the Clean Water Act; National Primary Drinking Water Regulations, and National Secondary Drinking Water Regulations” and “Guidelines Establishing Test Procedures for the Analysis of Pollutants; Analytical Methods for Biological Pollutants in Wastewater and Sewage Sludge.” The proposed revision to ch. NR 219 incorporates these changes. See http://www.legis.state.wi.us/rsb/code/register/reg621a.pdf (p. 11-12)

Wildlife:

  • The Department of Natural Resources has requested authorization to begin development of an administrative rule to establish a grant program to help implement the Wildlife Action Plan. The State Wildlife Grants Program, funded through annual congressional appropriations and administered by the U.S. FWS, provides federal money to Wisconsin to prevent wildlife from becoming endangered. The Department will provide financial assistance, through State Wildlife Grant funds, for projects that protect Species of Greatest Conservation Need and their habitats, as described in the Wildlife Action Plan. See http://www.legis.state.wi.us/rsb/code/register/reg621a.pdf (p. 11)

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

INTERNATIONAL

PINE BEETLE POPULATION THREATENS FORESTS IN BRITISH COLUMBIA

A widespread infestation of the pine beetle has destroyed 40 percent of the pine trees in infected areas of British Columbia's timber forests. The beetle has been established in the region for thousands of years; however, the regular cold snaps that formerly kept the pest under control have not occurred in recent years. In addition, forest fires have limited major beetle infestations in past years, but efforts to control forest fires have inadvertently made the region more vulnerable to infestation. See http://www.reuters.com/article/scienceNews/idUSN1733330820070918?pageNumber=1

HEAD OF U.N. URGES BOLD ACTION ON CLIMATE CHANGE

U.N. Secretary General Ban Ki-moon is encouraging representatives at this week's U.N. meeting on climate change to embrace strong perspectives on climate change. The meeting will bring 80 heads of state to New York on September 24, but it will not include negotiations, which are slated for a December meeting in Bali. Ban wants to develop a replacement for the Kyoto Protocol well before its expiration in 2012. He re-stated his appreciation that President Bush intends to participate in the U.N. process, and he discouraged disagreements between developed and developing countries from taking center stage. See http://www.alertnet.org/thenews/newsdesk/N18439666.htm

ENVIRONMENTALISTS PUSH AUSTRALIA TO PROTECT CORAL SEA

Conservationist organizations are pressuring the Australian government to create a protective marine preserve in the Coral Sea, an area characterized as a "stunning blue water highway full of oceanic predators." Off the eastern coast of Australia, and near the Great Barrier Reef, the Coral Sea is home to many species of sharks and manta rays. Many oceanic experts are concerned about the vulnerability of this area to illegal fishing, particularly for shark fin. The Australian government has created a panel of specialists to consider the request. See http://news.bbc.co.uk/2/hi/asia-pacific/6998121.stm

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

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