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Weekly Update Volume 37, Issue 3

01/29/2007

LITIGATION

CAA, CARBON DIOXIDE, AUTOMOBILES:

A district court stayed an automobile industry lawsuit over California's greenhouse gas rules for cars pending the outcome of the U.S. Supreme Court's decision in Massachusetts v. EPA, 415 F.3d 50, 35 ELR 20148 (D.C. Cir. 2005), cert. granted, 126 S. Ct. 2960 (2006), which concerns EPA's authority to regulate vehicle-generated carbon dioxide. The plaintiffs--automobile dealers and an association--argued that the regulations were preempted by CAA §209, by the Energy Policy and Conservation Act (EPCA), and under the foreign policy of the United States and the foreign affairs powers of the federal government. But their CAA claims are moot because the court previously ruled that the new regulations could not be enforced until they are granted a waiver from EPA. Further, the plaintiffs' exposure to potential inequity or hardship if injunctive relief on their EPCA and foreign policy claims are delayed for six months is negligible and not sufficient to warrant the court moving forward in these proceedings without the benefit of whatever simplification of the issues the Supreme Court's decision in Massachusetts may afford. Central Valley Chrysler-Jeep, Inc. v. Witherspoon, No. 04-6663, 37 ELR 20023 (E.D. Cal. Jan. 16, 2007) (Ishii, J.) (12 pp.).

NEPA, WETLANDS, REMEDIES:

The Fifth Circuit affirmed in part and reversed in part a lower court decision that the U.S. Army Corps of Engineer violated NEPA in issuing a developer a CWA §404 permit to dredge and fill wetlands for a residential project. The Corps' FONSI for the permit was arbitrary and capricious because the EA on which the FONSI was based failed to articulate how mitigation measures would render adverse effects insignificant. The EA also failed to consider the cumulative effects of the project, area urbanization, and permits issued to third parties. But the Corps did not improperly segment the project by failing to include full analysis of two possible future phases of development in its EA. In addition, the district erred in enjoining the permit. If, as here, a court finds that an EA is inadequate in a manner that precludes making a determination as to whether the project may have a significant impact, the court should remand the case to the agency to correct the deficiencies in its analysis. The case, therefore, was remanded to the Corps for further proceedings, including the preparation of a new EA, a new FONSI, an EIS, or other appropriate disposition. O'Reilly v. United States Army Corps of Engineers, No. 04-31026, 37 ELR 20021 (5th Cir. Jan. 24, 2007) (34 pp.).

CWA, COOLING WATER INTAKE STRUCTURES:

The Second Circuit remanded portions of an EPA rule promulgated under CWA §316(b) intended to protect fish, shellfish, and other aquatic organisms from being harmed or killed by cooling water intake structures at large, existing power-producing facilities. Certain aspects of the rule are based on a reasonable interpretation of the Act and supported by substantial evidence in the administrative record. But the provision requiring structures to reflect the "best technology available for minimizing adverse environmental impact" is inadequately explained. Similarly, the provisions that set performance standards as ranges without requiring facilities to achieve the greatest reduction of adverse impacts they can, that allow compliance through restoration measures, and that authorize a site-specific cost-benefit variance are inconsistent with the statute. Hence these provisions, in addition to other aspects of the rule for which EPA failed to give adequate notice of its rulemaking or for which there is no final agency action to review, were remanded. Riverkeeper, Inc. v. United States Environmental Protection Agency, Nos. 04-6692 et al., 37 ELR 20022 (2d Cir. Jan. 25, 2007) (80 pp.).

COLUMBIA RIVER, FISH PASSAGE:

The Ninth Circuit held that the Bonneville Power Administration (BPA) arbitrarily and capriciously transferred the functions performed by the Fish Passage Center--providing technical assistance and information to fish and wildlife agencies, Indian tribes, and the general public on matters related to salmon and steelhead passage through the Columbia River and its tributaries--to the Battelle Pacific Northwest Laboratory and the Pacific States Marine Fisheries Commission. The BPA acted contrary to law in concluding that language from two 2005 congressional committee reports carried the force of law and bound it to transfer the functions of the Fish Passage Center to the other entities. It also failed to provide a rational basis for its change of course. Northwest Environmental Defense Center v. Bonneville Power Administration, Nos. 06-70430, 071182, 37 ELR 20020 (9th Cir. Jan. 24, 2007) (38 pp.).

APPELLATE JURISDICTION, SOIL AND GROUNDWATER CONTAMINATION:

The Second Circuit held that it lacked appellate jurisdiction over a lower court's partial grant of summary judgment in favor of the parent company of a chemical plant in Bhopal, India, that allegedly caused soil and groundwater contamination. Property owners and residents near the plant sought monetary and equitable relief under New York common law. The lower court granted summary judgment in favor of the company on all but one of the property owners' and residents' claims, and the plaintiffs appealed. But because the grant of partial summary judgment below was not a final order under 28 U.S.C. §1291 at the time the appeal was heard, and because it was not an interlocutory order under 28 U.S.C. §1292(a)(1) having serious, irreparable consequences, the court lacks appellate jurisdiction. Although a final judgment was entered by the district court after the Second Circuit heard the appeal, subsequent entry of final judgment will cure a premature notice of appeal only if the appellee suffered no prejudice and the judgment was entered before the appeal was heard, which was not the case here. Sahu v. Union Carbide Corp., No. 05-6944, 37 ELR 20018 (2d Cir. Jan. 17, 2007) (7 pp.).

APPELLATE JURISDICTION, INTERNATIONAL LAW, MARITIME LAW:

The Second Circuit modified a lower court order compelling arbitration, enjoining an action in Nigeria, and staying a company's admiralty and maritime law claims against various shipping entities for damages arising from a contaminated shipment of oil that was transported from New Jersey to Nigeria. Based on principles of international comity and reciprocity, the permanent injunction should be directed specifically to the parties rather than to the "defendants", and the parties need only be enjoined from the court proceedings in Nigeria until the arbitration is over and the instant case is resolved. The company also appealed the lower court's refusal to voluntarily dismiss the case, but the appellate court lacked jurisdiction because the order is not final and the collateral order doctrine does not apply. Ibeto Petrochemical Industries Ltd. v. M/T Beffen, No. 05-6610, 37 ELR 20017 (2d Cir. Jan. 17, 2007) (14 pp.).

WATER RIGHTS, FEES, CONSTITUTIONAL LAW:

A California appellate court reversed state agency legislation implementing emergency regulations and imposing new annual fees on holders of water right permits and licenses under California Water Code §1525. As applied through the emergency regulations, the annual fees are unlawful taxes in violation of the state constitution. The State Water Resources Control Board failed to demonstrate how charges allocated to a payor bore a fair or reasonable relationship to the payor's burdens on or benefits from the regulatory activity. In addition, the formula for allocating annual fees under one of the emergency regulations violates the Supremacy Clause by requiring federal contractors to pay for the entire amount of annual fees that would otherwise be imposed on the U.S. Bureau of Reclamation. The court thus reversed the judgment below in part and remanded with directions regarding the adoption of new regulatory fee schedules and refund of annual fees unlawfully imposed. California Farm Bureau Federation v. State Water Resources Control Board, No. C050289, 37 ELR 20019 ( Cal. App. 3d Dist. Jan. 17, 2007) (55 pp.).

GRANT OF CERTIORARI:

The U.S. Supreme Court granted cert in United States v. Atlantic Research Corp., No. 06-652 (U.S. Jan. 19, 2007). In Cooper Industries v. Aviall Services, No. 02-1192, 34 ELR 20154 (U.S. Dec. 14, 2004), the Court ruled that PRPs who have incurred cleanup costs but have neither been sued under CERCLA nor resolved their liability to the government may not seek contribution under CERCLA §113. At issue in Atlantic Research is whether this same class of PRPs may recover costs from other potentially liable parties under CERCLA §107. The Eighth Circuit's decision in Atlantic Research can be found at 36 ELR 20164 [No. 05-3152 (8th Cir. Aug. 11, 2006)].

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 issued NESHAPs for four area source categories: polyvinyl chloride and copolymers production, primary copper smelting, secondary copper smelting, and certain primary nonferrous metals. 72 FR 2929 (1/23/07).
  • EPA proposed onboard diagnostic system (OBD) requirements for 2010 and later heavy-duty engines used in highway applications over 14,000 pounds and proposed to revise certain existing OBD requirements for diesel engines used in heavy-duty vehicles under 14,000 pounds. 72 FR 3199 (1/24/07).
  • EPA denied a request for reconsideration of whether sewage sludge incinerators should be excluded from the other solid waste incineration units (OSWI) rules and concluded that no additional changes are necessary to the final OSWI rules it published on December 16, 2005 (70 FR 74869). 72 FR 2620 (1/22/07).
  • SIP Approvals: Arizona (sulfur dioxide (SO2) NAAQS) 72 FR 3061 (1/24/07). Indiana (NESHAPs for boat manufacturing or reinforced plastics composites manufacturing) 72 FR 3377 (1/25/07). Texas (carbon monoxide (CO) NAAQS) 72 FR 2776 (1/23/07).
  • SIP Proposals: Arizona (SO2 NAAQS; see above for direct final rule) 72 FR 3093 (1/24/07). Ohio (equivalent visible emission limits) 72 FR 2823 (1/23/07). Texas (CO NAAQS; see above for direct final rule) 72 FR 2825 (1/23/07).

OFFICE OF THE PRESIDENT:

  • The President issued Executive Order No. 13423 pertaining to the strengthening of federal environmental, energy, and transportation management. 72 FR 3917 (1/26/07).

TOXIC SUBSTANCES:

  • EPA approved Kentucky's request to waive the requirements of the federal asbestos-in-schools program. 72 FR 2879 (1/23/07).
  • EPA announced the availability of the 59th report of the TSCA Interagency Testing Committee; the report was transmitted to its Administrator on December 13, 2006, and contains revisions to TSCA §4(e). 72 FR 2755 (1/22/07).

WILDLIFE:

  • FWS proposed to delist the Deseret milk-vetch from the list of endangered and threatened plants; in addition, the agency determined that critical habitat designation would not be beneficial to the species at this time. 72 FR 3379 (1/25/07).

DOJ NOTICES OF SETTLEMENT:

  • United States v. A.O. Corp., No. 04-5918 (D.N.J. Dec. 27. 2006). A settling CERCLA defendant must conduct a public sale of the A.O. Polymer Superfund site in Sparta Township, New Jersey, and must pay 85% of the sales proceeds for recovery of past and future response cost incurred at the site. 72 FR 3407 (1/25/07).
  • United States v. Balthaser, No. 07-cv-0156 (E.D. Pa. Jan. 12, 2007). A settling CERCLA defendant must make a cash payment of $20,000 in reimbursement of response costs incurred at the Peach Alley Parking Lot Superfund site in Hamburg, Pennsylvania, and must provide access to and restrict use of the site. 72 FR 3408 (1/25/07).
  • United States v. ConocoPhillips Co., No. H-05-0258 (S.D. Tex. Jan. 11, 2007). A settling CAA defendant (under a first amendment to consent decree) must install additional pollution control technology and will be entitled to numerous deadline extensions at its refinery in Belle Chasse, Louisiana, because of damage the refinery suffered from Hurricane Katrina. 72 FR 3408 (1/25/07).
  • United States v. Electra Realty Co., No. 06-2238 (E.D. Pa. Jan. 8, 2007). Settling CERCLA defendants must either pay $350,000 in partial reimbursement of response costs to the EPA Hazardous Substance Superfund or must elect the option to sell the Electra Property and comply with the terms set forth in Section VI of the proposed consent decree to resolve claims in connection with the North Penn Area Six Superfund site in Lansdale, Pennsylvania. 72 FR 3409 (1/25/07).
  • United States v. Johnson & Johnson, No. 06- 6077 (D.N.J. Dec. 22, 2006). Settling CAA defendants must perform a remedial design and remedial action at the Atlantic Resources Corporation (ARC) Superfund site and a remedial design at the Horseshoe Road Superfund Site in Sayreville, New Jersey, and must pay $863,579.41 in past response costs incurred at the ARC site as well as future costs incurred or to be incurred at both sites. 72 FR 3409 (1/25/07).
  • United States v. Winchester Municipal Utilities, No. 06-102-KSF (E.D. Ky. Jan. 16, 2007). Settling CWA defendants that discharged a pollutant from a point source to navigable waters of the United States without a permit must perform injunctive measures valued at over $79 million; must pay a civil penalty of $75,000; and must perform a supplemental environmental project valued at $230,000 that is designed to abate stormwater runoff pollution to an impaired waterway. 72 FR 3410 (1/25/07).

GUIDANCE DOCUMENTS:

  • U.S. EPA, Draft Guidance for Munitions and Explosive of Concern Hazard Assessment (November 2006), 72 FR 2685 (1/22/07) (available at http://www.elistore.org/guidance.asp, Doc. ID # AD05031).
  • U.S. EPA, Grant Guidelines to States for Implementing The Provision of the Energy Policy Act of 2005 Requiring States to Report on the Compliance of Government Underground Storage Tanks (January 2007) (available at http://www.elistore.org/guidance.asp, Doc. ID # AD05032).

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

THE CONGRESS

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

COMMITTEE ACTION:

  • S. Res. 38 (energy) was reported by the Committee on Energy and Natural Resources. 153 Cong. Rec. S1056 (daily ed. Jan. 24, 2007). The original resolution would authorize expenditures by the Committee on Energy and Natural Resources.

BILLS INTRODUCED:

  • S. 341 (Kerry, D-Mass.) (oil and gas) would adjust incentives for oil and gas production. 153 Cong. Rec. S827 (daily ed. Jan. 22, 2007). The bill was referred to the Committee on Finance.
  • S. 346 (Vitter, R-La.) (national parks) would adjust the boundary of the Barataria Preserve Unit of the Jean Lafitte National Historical Park and Preserve in the state of Louisiana. 153 Cong. Rec. S827 (daily ed. Jan. 22, 2007). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 353 (Nelson, D-Fla.) (restoration) would authorize ecosystem restoration projects for the Indian River Lagoon-South and the Picayune Strand, Collier County, in the state of Florida. 153 Cong. Rec. S827 (daily ed. Jan. 22, 2007). The bill was referred to the Committee on Environment and Public Works.
  • S. 357 (Feinstein, D-Cal.) (greenhouse gases) would improve passenger automobile fuel economy and safety, reduce greenhouse gas emissions, and reduce dependence on foreign oil. 153 Cong. Rec. S827 (daily ed. Jan. 22, 2007). The bill was referred to the Committee on Commerce, Science, and Transportation.
  • S. 365 (Graham, R-S.C.) (energy) would authorize the Secretary of Energy to establish monetary prizes for achievements in overcoming scientific and technical barriers associated with hydrogen energy. 153 Cong. Rec. S911 (daily ed. Jan. 23, 2007). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 366 (Domenici, R-N.M.) (land conveyance) would authorize the conveyance of certain federal land in the state of New Mexico. 153 Cong. Rec. S911 (daily ed. Jan. 23, 2007). The bill was referred to the Committee on Agriculture, Nutrition, and Forestry.
  • S. 386 (Chambliss, R-Ga.) (CAA) would amend the CAA to require a higher volume of renewable fuel derived from cellulosic biomass. 153 Cong. Rec. S1057 (daily ed. Jan. 24, 2007). The bill was referred to the Committee on Environment and Public Works.
  • S. 390 (Bennett, R-Utah) (land exchange) would direct the exchange of certain land in Grand, San Juan, and Uintah counties, Utah. 153 Cong. Rec. S1189 (daily ed. Jan. 25, 2007). The bill was referred to the Committee on Energy and Natural Resources.   
  • S. 391 (Menendez, D-N.J.) (offshore drilling) would amend the Outer Continental Shelf Lands Act to permanently prohibit the conduct of offshore drilling on the outer continental shelf in the Mid-Atlantic and North Atlantic planning areas. 153 Cong. Rec. S1189 (daily ed. Jan. 25, 2007). The bill was referred to the Committee on Energy and Natural Resources.
  • H.R. 586 (Hinchey, D-N.Y.) (oil and gas) would restore fairness in the provision of incentives for oil and gas production. 153 Cong. Rec. H789 (daily ed. Jan. 19, 2007). The bill was referred to the Committee on Ways and Means and Committee on Natural Resources.
  • H.R. 589 (Inslee, D-Wash.) (hybrid vehicles) would promote the development and use of plug-in hybrid electric vehicles. 153 Cong. Rec. H789 (daily ed. Jan. 19, 2007). The bill was referred to the Committees on Science and Technology, Ways and Means, and Oversight and Government Reform.
  • H.R. 591 (Musgrave, R-Colo.) (rivers) would amend the Cache La Poudre River Corridor Act to designate a new management entity, make certain technical and conforming amendments, and enhance private property protections. 153 Cong. Rec. H789 (daily ed. Jan. 19, 2007). The bill was referred to the Committee on Natural Resources.
  • H.R. 594 (Stupak, D-Mich.) (energy) would regulate over-the-counter trading of energy derivatives. 153 Cong. Rec. H789 (daily ed. Jan. 19, 2007). The bill was referred to the Committee on Agriculture.
  • H.R. 609 (Edwards, D-Tex.) (water) would amend the Reclamation Wastewater and Groundwater Study and Facilities Act to authorize the Secretary of the Interior to participate in the Central Texas Water Recycling and Reuse Project. 153 Cong. Rec. H834 (daily ed. Jan. 22, 2007). The bill was referred to the Committee on Natural Resources.
  • H.R. 617 (Hastings, D-Fla.) (restoration) would authorize ecosystem restoration projects for the Indian River Lagoon-South and the Picayune Strand, Collier County, in the state of Florida. 153 Cong. Rec. H834 (daily ed. Jan. 22, 2007). The bill was referred to the Committee on Transportation and Infrastructure.
  • H.R. 620 (Olver, D-Mass.) (greenhouse gases) would accelerate the reduction of greenhouse gas emissions in the United States by establishing a market-driven cap-and-trade system for greenhouse gases, reduce dependence upon foreign oil, and ensure benefits to consumers from the trading in such allowances. 153 Cong. Rec. H834 (daily ed. Jan. 22, 2007). The bill was referred to the Committees on Energy and Commerce, Science and Technology, and Natural Resources.
  • H.R. 632 (Lipinski, D-Ill.) (energy) would authorize the Secretary of Energy to establish monetary prizes for achievements in overcoming scientific and technical barriers associated with hydrogen energy. 153 Cong. Rec. H885 (daily ed. Jan. 23, 2007). The bill was referred to the Committee on Science and Technology.
  • H.R. 635 (Upton, R-Mich.) (CAA) would amend the CAA to require that, after the year 2012, all gasoline sold to consumers in the United States for motor vehicles contain not less than 10% renewable fuel. 153 Cong. Rec. H886 (daily ed. Jan. 23, 2007). The bill was referred to the Committee on Energy and Commerce.
  • H.R. 644 (Gary G. Miller, R-Cal.) (brownfields) would facilitate the provision of assistance by the Department of Housing and Urban Development for the cleanup and economic redevelopment of brownfields. 153 Cong. Rec. H886 (daily ed. Jan. 23, 2007). The bill was referred to the Committee on Financial Services.
  • H.R. 646 (Rogers, R-Ky.) (national heritage area) would establish the Kentucky Artisan Heritage Trails National Heritage Area Act in the commonwealth of Kentucky. 153 Cong. Rec. H886 (daily ed. Jan. 23, 2007). The bill was referred to the Committee on Natural Resources.
  • H.R. 652 (Reynolds, R-N.Y.) (national parks) would make the National Parks and Federal Recreational Lands Pass available at a discount to certain veterans. 153 Cong. Rec. H941 (daily ed. Jan. 24, 2007). The bill was referred to the Committee on Natural Resources and Committee on Agriculture
  • H.R. 656 (Reichert, R-Wash.) (fuel efficiency) would require higher standards of automobile fuel efficiency with the goal of reducing the amount of oil used for fuel by automobiles in the United States by 10% beginning in 2017. 153 Cong. Rec. H941 (daily ed. Jan. 24, 2007). The bill was referred to the Committee on Energy and Commerce.   
  • H.R. 658 (Porter, R-Nev.) (national parks) would authorize the Secretary of the Interior to enter into cooperative agreements to protect natural resources of units of the National Park System through collaborative efforts on land inside and outside of units of the National Park System. 153 Cong. Rec. H941 (daily ed. Jan. 24, 2007). The bill was referred to the Committee on Natural Resources.    
  • H.R. 664 (Campbell, R-Cal.) (water) would amend the Water Desalination Act of 1996 to authorize the Secretary of the Interior to assist in research and development, environmental and feasibility studies, and preliminary engineering for the Municipal Water District of Orange County, California, Dana Point Desalination Project. 153 Cong. Rec. H941 (daily ed. Jan. 24, 2007). The bill was referred to the Committee on Natural Resources and Committee on Science and Technology.
  • H.R. 667 (Costa, D-Cal.) (agriculture) would authorize the Secretary of Agriculture to enter into cooperative agreements with states to augment their efforts to conduct early detection and surveillance to prevent the establishment or spread of plant pests that endanger agriculture, the environment, and the economy of the United States. 153 Cong. Rec. H942 (daily ed. Jan. 24, 2007). The bill was referred to the Committee on Agriculture.
  • H.R. 670 (Engel, D-N.Y.) (alternative fuel) would reduce the United States' dependence on foreign oil through the use of alternative fuels and new vehicle technologies. 153 Cong. Rec. H942 (daily ed. Jan. 24, 2007). The bill was referred to the Committees on Energy and Commerce, Science and Technology, Ways and Means, Transportation and Infrastructure, and Oversight and Government Reform.
  • H.R. 671 (Fortuño, R-P.R.) (forests) would make funds generated from the Caribbean National Forest in the commonwealth of Puerto Rico available to the Secretary of Agriculture for land acquisition intended to protect the integrity of the buffer zone surrounding the Caribbean National Forest. 153 Cong. Rec. H942 (daily ed. Jan. 24, 2007). The bill was referred to the Committee on Natural Resources.
  • H.R. 672 (Fortuño, R-P.R.) (water) would protect the critical aquifers and watersheds that serve as a principal water source for the commonwealth of Puerto Rico and protect the tropical forests of the Karst Region of the commonwealth. 153 Cong. Rec. H942 (daily ed. Jan. 24, 2007). The bill was referred to the Committee on Natural Resources and Committee on Ways and Means.
  • H.R. 673 (Grijalva, D-Ariz.) (Native Americans) would direct the Secretary of the Interior to take lands in Yuma County, Arizona, into trust as part of the reservation of the Cocopah Indian Tribe. 153 Cong. Rec. H942 (daily ed. Jan. 24, 2007). The bill was referred to the Committee on Natural Resources.
  • H.R. 682 (Kaptur, D-Ohio) (alternative fuel) would expand the Strategic Petroleum Reserve to include alternative fuels. 153 Cong. Rec. H942 (daily ed. Jan. 24, 2007). The bill was referred to the Committee on Energy and Commerce.
  • H.R. 683 (Lewis, R-Ky.) (energy) would amend the Internal Revenue Code of 1986 to promote investment in energy independence through coal-to-liquid technology, biomass, and oil shale. 153 Cong. Rec. H943 (daily ed. Jan. 24, 2007). The bill was referred to the Committee on Ways and Means.

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:

Connecticut Louisiana New Hampshire Florida Maryland Oregon Georgia Massachusetts Vermont Indiana Missouri Virginia Kansas Nebraska Wyoming

CONNECTICUT

Land Use:

  • The Department of Environmental Protection will hold a public hearing to receive testimony and opinions on proposed changes to State Parks Regulations. The regulations identify when the facilities are open; entrance, rental, and parking fees; and when the fees are charged. The hearing will be held February 5, 2007. See http://dep.state.ct.us/calendar/viewev.asp?id=2792

FLORIDA

Hazardous and Solid Waste:

  • The Department of Environmental Protection will hold a public hearing on proposed amendments to: 62-730.150, General; 62-730.186, Universal Pharmaceutical Waste; and 62-730.900, Forms. This rule establishes requirements for handlers of hazardous waste pharmaceuticals. The hearing will be held February 22, 2007. See http://faw.dos.state.fl.us/newfaw/FAWVOLUMEFOLDERS2007/3303/3303DOC.pdf (p. 214)

GEORGIA

Fisheries:

  • The Coastal Resources Division of the Department of Natural Resources held public hearings on proposed amendments to the rules relating to coastal marshlands protection. Rule 391-2-3 is being amended by inserting new Rule 391-2-3-.02 to establish stormwater management measures, impervious surface coverage standards, and buffer design and maintenance requirements for the upland component of a project that is subject to permitting under the Coastal Marshlands Protection Act. The hearings were held January 9 and 11, 2007. See http://crd.dnr.state.ga.us/content/displaycontent.asp?txtDocument=1095

INDIANA

Water:

  • The Water Pollution Control Board will hold a public hearing on LSA Document #06-501 on the proposal to add 327 IAC 18, which concerns the establishment of two voluntary performance based leadership programs, the Environmental Stewardship Program and the Comprehensive Local Environmental Action Network, that are new Indiana programs offering recognition and incentives for companies and units of local government that consistently demonstrate environmental stewardship and strive for continual environmental improvement initiatives in Indiana's environmental programs. The hearing will be held February 14, 2007. See http://www.in.gov/legislative/register/20070117-IR-327050233PHA.xml.html

Wildlife:

  • The Natural Resources Commission will hold a public hearing on proposed amendments to 312 IAC 9-3-3, 312 IAC 9-3-4, 312 IAC 9-3-19, 312 IAC 9-4-2, 312 IAC 9-4-14, 312 IAC 9-5-4, 312 IAC 9-6-9, and 312 IAC 9-9-4, which govern the management of fish and wildlife; hunting deer by firearms, bow, and arrows; endangered species; and migratory birds and waterfowl. The hearing will be held February 14, 2007. See http://www.in.gov/legislative/register/20070117-IR-327050233PHA.xml.html

KANSAS

Air:

  • The Kansas Small Business Environmental Assistance Program is conducting air quality workshops to assist small businesses in identifying potential hazardous air pollutants at facilities, calculating the potential to emit, identifying the requirements for construction permits and construction approvals, and identifying the requirements for air operating permits and air emission inventories. The workshops will be held February 7, 13, and 28, 2007. See http://www.kdheks.gov/sbcs/index.html

LOUISIANA

Fisheries:

Hazardous and Solid Waste:

  • The Department of Environmental Quality has amended the Solid Waste regulations, LAC 33:VII.10505, 10519, 10521, and 10533 (Log #SW042). This rule establishes an exemption from the waste tire fee for tires salvaged from Louisiana-titled vehicles and sold by scrap or salvage yards. Act 821 of the 2006 Regular Session of the Louisiana Legislature provides for this exemption for the period of July 1, 2006, through June 30, 2008. See http://www.doa.louisiana.gov/osr/reg/0701/0701RUL.pdf (p.89)

Toxic Substances:

  • The Louisiana Department of Agriculture and Forestry, Weights and Measures Commission, adopts Chapter 5-Consumer Products Testing and Labeling, Subchapter A-Chloramphenicol, §501-Definitions, regarding the testing for Chloramphenicol in seafood and honey. Chloramphenicol is a broad-spectrum antibiotic that has been restricted by the FDA for use in humans only in those cases where other antibiotics have not been successful. See http://www.doa.louisiana.gov/osr/reg/0701/0701RUL.pdf (p.34)
  • The Commissioner of Agriculture and Forestry adopts Chapter 5-Consumer Products Testing and Labeling, Subchapter B-Fluoroquinolones, §511-Prohibited Fluoroquinolones in Seafood, governing the testing and sale of seafood in Louisiana. The commissioner intends to promulgate these rules and regulations to implement standards relating to Fluoroquinolones in seafood that are consistent with standards adopted by the FDA for Fluoroquinolones in foods. All seafood sold in Louisiana must meet the standards set out in these regulations prior to distribution and sale of seafood in Louisiana. See http://www.doa.louisiana.gov/osr/reg/0701/0701RUL.pdf (p.38)

General:

  • The Department of Environmental Quality has renewed Emergency Rule OS073E1, which was effective on September 11, 2006, and published in the Louisiana Register on September 20, 2006. This Emergency Rule provides a program for expedited permit processing and implementation of the associated expedited permit processing fees authorized by Acts 586 and 779 of the 2006 Regular Legislative Session. This Emergency Rule is effective on January 9, 2007, and shall remain in effect for a maximum of 120 days or until a final rule is promulgated, whichever occurs first. See http://www.doa.louisiana.gov/osr/reg/0701/0701emr.pdf (p.4)

MARYLAND

Air:

Fisheries:

  • The Secretary of Natural Resources is soliciting public comment on proposed amendments to Regulation .05 under COMAR 08.02.01, General. The purpose of this action is to reflect changes in the Maryland Code for clarity. Senate Bill 274, which became effective on July 1, 2006, removed the two-year minimum participation requirement in the apprenticeship program and modified the practical experience requirements by crediting past experience in certain circumstances. This action will also modify the number of commercial fishing license authorization targets. Comments are due February 20, 2007. See http://www.dsd.state.md.us/mdregister/3402/main_register.htm

MASSACHUSETTS

Air:

  • The Department of Environmental Protection will hold public hearings on proposed amendments to 310 CMR 7.25, Best Available Controls for Consumer and Commercial Products.  These amendments are designed to reduce emissions of volatile organic compounds from consumer products and architectural and industrial maintenance coatings. The hearings will be held February 28, 2007, and March 2, 2007. See http://www.mass.gov/dep/public/aimcpphn.htm

Hazardous and Solid Waste:

  • The Department of Environmental Protection will hold public hearings on proposed amendments to 310 CMR 40.0000, the Massachusetts Contingency Plan. These amendments are intended to update numerical cleanup standards and strengthen and clarify the performance standards and requirements for the assessment and cleanup of disposal sites. The hearings will be held February 27, 2007, and March 1, 6, and 13, 2007. Comments are due April 16, 2007. See http://www.mass.gov/dep/cleanup/laws/mcppn.htm

Toxic Substances:

  • The Department of Environmental Protection will hold public hearings on proposed amendments to 310 CMR 50.00, Toxics Use Reduction. The Toxics Use Reduction Act was amended in July 2006.  The proposed regulatory amendments are intended to implement the statutory changes that affect calendar year 2006 toxics use reports that are due to be filed with the Department of Environmental Protection by July 1, 2007.  The hearings will be held February 20, 21, and 22, 2007. Comments are due March 20, 2007. See http://www.mass.gov/dep/public/turaphn.htm

Water:

  • The Department of Environmental Protection has adopted 314 CMR 4.00 addressing water quality standards. The regulations set water quality criteria and contained provisions for the review and authorization of discharges so that the quality of surface waters of the commonwealth will be maintained and protected. Another primary goal of the regulations is to restore impaired waters through the development and implementation of TMDLs pursuant to the regulations. The regulations contain new water quality criteria for bacteria for recreational uses such as swimming. See http://www.mass.gov/dep/water/laws/regulati.htm#wqual

MISSOURI

Air:

  • The Department of Natural Resources will hold a public hearing on proposed amendments to 10 CSR 10-6.070, New Source Performance Regulations. This rule establishes acceptable design and performance criteria for specified new or modified emission sources. The purpose of this rulemaking is to amend 10 CSR 10-6.070 to incorporate portions of 40 CFR part 60 that were amended between July 1, 2004, and June 30, 2005. The hearing will be held March 29, 2007. Comments are due April 5, 2007. See http://www.sos.mo.gov/adrules/moreg/current/2007/v32n2/v32n2a.pdf (.p139)
  • The Department of Natural Resources will hold a public hearing on proposed amendments to 10 CSR 10-6.075, Maximum Achievable Control Technology Regulations. This rule establishes emission control technology, performance criteria, and work practices to achieve emission standards for sources that emit or have the potential to emit hazardous air pollutants. The purpose of this rulemaking is to amend 10 CSR 10-6.075 to incorporate portions of 40 CFR part 63 that were promulgated or amended between July 1, 2004, and June 30, 2005. The hearing will be held March 29, 2007. Comments are due April 5, 2007. See http://www.sos.mo.gov/adrules/moreg/current/2007/v32n2/v32n2a.pdf (p.139)
  • The Department of Natural Resources will hold a public hearing on proposed amendments to 10 CSR 10-6.080, Emission Standards for Hazardous Air Pollutants. This rule establishes emission standards and performance criteria for new or modified sources emitting hazardous air pollutants. The purpose of this rulemaking is to amend 10 CSR 10- 6.080 to incorporate portions of 40 CFR part 61 that were amended between July 1, 2004, and June 30, 2005. The hearing will be held March 29, 2007. Comments are due April 5, 2007. See http://www.sos.mo.gov/adrules/moreg/current/2007/v32n2/v32n2a.pdf (p.141)

Wildlife:

  • The Department of Conservation has adopted amendments to 3 CSR 10-4.117, Prohibited Species. A notice of proposed rulemaking containing the text of the proposed amendment was published in the Missouri Register on November 1, 2006 (31 MoReg 1703). This amendment will become effective 30 days after publication in the Code of State Regulations. See http://www.sos.mo.gov/adrules/moreg/current/2007/v32n2/v32n2a.pdf

NEBRASKA

Hazardous and Solid Waste:

  • The Department of Environmental Quality proposes to adopt amendments to Title 128 at the Environmental Quality Council's March 2, 2007, meeting. Adoption of these proposed amendments will keep Nebraska current with most federal regulations promulgated through July 1, 2005. In addition, these changes will assist in meeting the requirements necessary to obtain state authorization approval from U.S. EPA for the RCRA hazardous waste program in Nebraska. See http://www.deq.state.ne.us/

NEW HAMPSHIRE

Toxic Substances:

  • The Department of Health and Human Services will hold a public hearing on a proposed amendment of He-P 1600, Lead Poisoning Prevention and Control Rules. The rule implements federally funded and state mandated activities for lead paint poisoning prevention and control. The Department is amending the rule to address changes in state requirements and improve program integrity. The hearing will be held February 2, 2007. Comments are due February 12, 2007. See http://www.gencourt.state.nh.us/rules/january-12-07.pdf

OREGON

Water:

  • The Department of Environmental Protection is soliciting public comment on the proposed total maximum daily loads (TMDLs) developed for: Coal Bank Run Watershed in Armstrong County; Dooley Run Watershed in Greene County; Dunkard Creek Watershed in Greene County; Freeman Run Watershed in Westmoreland County; Laurel Run Watershed in Boggs, Decatur and Morris Townships of Clearfield County; and UNT Buffalo Creek Watershed in Armstrong County. Comments are due February 20, 2007. See http://www.pabulletin.com/secure/data/vol37/37-3/index.html

VERMONT

  • The Air Pollution Control Division is soliciting public comments on the pre-proposal of Vermont’s draft rule to implement the Regional Greenhouse Gas Initiative (RGGI) in the state. The RGGI is a cooperative effort by Northeastern and Mid-Atlantic states to reduce emissions of carbon dioxide from power plants through a market-based cap-and-trade program.  Comments are due March 1, 2007.  The Division will formally propose the rule after consideration of the comments received during the comment period. The draft rule is available at http://www.anr.state.vt.us/air/docs/VTPreProposal%20Draft%20Rule%20to%20Implement%20RGGI.pdf. See http://www.anr.state.vt.us/air/htm/RGGI.htm

VIRGINIA

Water:

  • The Department of Environmental Quality will hold a series of public meetings to provide information and solicit comments from citizens and local government on preparation of the draft reports of the fecal coliform TMDL's studies for shellfish propagation waters in Northampton County. The meetings will be held February 6 and 8, 2007. The public comment period begins on February 6, 2007, and ends on March 8, 2007. See http://www.townhall.state.va.us/meeting/ViewMeeting.cfm?Meeting_ID=8669

WYOMING

Air:

  • The Wyoming Department of Environmental Quality has adopted amendments to Chapter 14, Emission Trading Program Regulations. Chapter 14 was modified to add a new Section 4, mercury budget trading program, to meet the State Mercury Emission Budget established by U.S. EPA under 40 CFR part 60, Subpart HHHH-Emission Guidelines and Compliance Times for Coal-Fired Electric Steam Generating Units. This rule only applies to large coal-fired electric steam generating units in the state of Wyoming.  Under this new section, the state will meet the budget by participating in the national cap-and-trade program for mercury. The rule became effective December 13, 2006. See http://deq.state.wy.us/aqd/
  • The Wyoming Department of Environmental Quality has adopted newly revised Chapter 6, Permitting Requirements. Section 9, best available retrofit technology (BART), of Chapter 6 was added to satisfy some of the requirements established under the National Regional Haze Rule in 40 CFR part 51.  The federal rule directs states to examine visibility impairment in Class I areas resulting from large, older emission sources, i.e., BART sources.  This rule only applies to 14 existing sources in the state of Wyoming and continues to allow Wyoming sources to participate in emissions trading programs with other Western states. This revised rule became effective December 5, 2006.  See http://deq.state.wy.us/aqd/

Hazardous and Solid Waste:

Water:

  • The Environmental Quality Council will hold a public hearing to solicit public comment and consider proposed revisions to Chapter 1 of the Wyoming Water Quality Rules and Regulations. The major revisions proposed in this rulemaking include: two new stream classifications and a procedure for calculating ambient-based criteria applicable to effluent dependent waters; revision of the pathogen criteria for recreational use protection; updates of the numeric criteria for a broad range of chemical pollutants; establishment of site-specific criteria in selected watersheds; and creation of new criteria and procedures for establishing effluent limits for the protection of agricultural uses. The hearing will be held on February 15, potentially extending through February 16, 2007. See http://deq.state.wy.us/wqd/events/EQC/2-14-07%20Hearing/PN_12_2006.pdf

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

INTERNATIONAL

EUROPE POSTPONES DECISION ON CAR EMISSIONS

An EU decision on whether to impose mandatory limits on greenhouse gas emissions in new autos, originally scheduled for January 23, has been delayed. The postponement of three proposals to reduce vehicle carbon dioxide emissions results from a clash between environment commissioner Stavros Dimas and industry commissioner Guenter Verheugen. Dimas would like to see a new EU law requiring European, Japanese, and Korean cars to reduce emissions from new passenger cars to 120 grams per kilometer by 2012 (down from current figures averaging approximately 160 grams/km). Verheugen, meanwhile, opposes binding legislation. President of the European Commission, José Manuel Barroso, wants more time for consensus to be reached. This delay comes as some experts "doubt it is realistic" to reach the 120 gram target. See: http://environment.Newscientist.com/article/dn11008-europe-postpones-decision-on-car-emissions.html

UK TO SET STANDARDS FOR CARBON OFFSETTING SCHEMES

In a move to bring "greater clarity and certainty" to industry and consumers, the UK government set standards for carbon offsetting schemes. Now, schemes must have certified credits either under the Kyoto protocol or EU allowance system. The Department for Environment, Food and Rural Affairs named four offset providers that meet its new guidelines: Pure, Global Cool, Equiclimate, and Carbon Offsets. These new standards will be based only on projects that can be certified, including flexible schemes agreed under the Kyoto protocol on climate change. See: http://news.bbc.co.uk/2/hi/business/6276305.stm

NIGERIA SET TO CHECK ENVIRONMENTAL POLLUTANTS

The Nigerian federal government recently initiated measures to assess health hazards caused by persistent organic pollutants (POPs). In order to protect human health and the environment from POP exposure, Nigeria ratified the Stockholm Convention on POPs. As such, Nigeria was one of seven nations selected to take part in the Africa Stockpile Programme, an initiative "designed to clean up, dispose off and prevent accumulation of stockpiles of obsolete pesticides in warehouses and its unwholesome disposal within the region." The Ministry of Environment and Housing, in collaboration with international partners, has organized an international awareness-raising seminar and sensitization workshop on hazardous substances and has begun an inventory on obsolete pesticides and dioxins in Nigeria. See http://allafrica.com/stories/200701230318.html

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

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