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Weekly Update Volume 37, Issue 32

11/12/2007

LITIGATION

CWA, CITIZEN SUITS, ADMINISTRATIVE LAW:

The Ninth Circuit reversed and remanded for further proceedings a lower court's dismissal of citizen suit claims brought by an environmental advocate group alleging EPA failed to fulfill its mandate to timely review effluent guidelines and limitations in accord with CWA technology-based standards. Because the claims are brought under CWA §505(a), jurisdiction is limited to controversies involving EPA's non-discretionary CWA duties. EPA's decision whether to revise the effluent guidelines falls within EPA's discretion, but, using the Chevron analysis, EPA does not have discretion in its review of the guidelines to ignore technology-based criteria in favor of a hazard-based review. The case is remanded because the lower court wrongly found that all of EPA's review requirements are discretionary. The lower court's decisions denying appellants' other CWA claims regarding timing of EPA's plan publication for annual review, revision of its CWA guidelines, and identification of new categories of toxic and nonconventional pollutants are affirmed. Our Children's Earth Foundation v. U.S. Environmental Protection Agency, No. 05-16214, 37 ELR 20269 (9th Cir. Oct. 29, 2007) (27 pp.).

SDWA, ADMINISTRATIVE LAW, COST-BENEFIT ANALYSIS:

The D.C. Circuit denied petitioner cities' challenge of EPA's SDWA rule regulating microbial contaminants in drinking water and requiring subject cities to take several steps to eliminate the parasite Cryptosporidium from their drinking water. Cost benefit analyses are allowed under SDWA, however the statute requires EPA to select the most stringent feasible treatment technique for Cryptosporidium regardless of the outcome of that analysis. Additionally, EPA's rule is not arbitrary and capricious because, contrary to cities' claims, EPA did consider certain comments and data even though EPA had no obligation to respond to the comments given that they were incapable of affecting the final rule. The cities' claims that EPA failed to use the best available science and issued a final rule unsupported by the record are without merit. The claim that EPA improperly chose to use treatment techniques in lieu of the MCL is waived because it was not raised during the rulemaking process. City of Portland v. U.S. Environmental Protection Agency, No. 06-1068, 37 ELR 20274 (D.C. Cir. Nov. 6, 2007) (18 pp.).

NEPA, RADIOACTIVE WASTE:

A district court denied plaintiff environmental group's motion for summary judgment under the APA to compel compliance with NEPA and to enforce a 1987 stipulation. The Department of Energy (DOE) did not violate NEPA's policy prohibiting segmentation when it split its waste management and facility closure processes into two separate EISs. Under applicable scoping regulations, related projects may be segregated if each project is of sufficient length to address environmental effects of a broad scope and where the projects have independent utility or significance. DOE's decisions regarding its low-level radioactive wastes do not have a direct and substantial probability of influencing its decision on facility closure, and therefore may be considered separately. Additionally, because DOE's strategy is not a means of evading NEPA review, it is also not a basis to find a breach of the agency's contractual obligations under the 1987 Stipulation. DOE is also entitled to summary judgment regarding its authority to implement criteria for waste reclassification. Coalition on West Valley Nuclear Wastes v. U.S. Department of Energy, No. 05-CV-0614-C, 37 ELR 20271 (W.D.N.Y. Sept. 28, 2007) (Curtin, J.) (10 pp.).

CERCLA, ADMINISTRATIVE WARRANTS

A district court denied EPA's application for an administrative warrant pursuant to CERCLA that sought access to an allegedly abandoned property for the purpose of removing and disposing of hazardous materials or, in the alternative, for sampling, identifying and securing such materials. The issuance of a warrant is denied without prejudice pending EPA's showing that it is unable to identify a person or entity with the authority to consent to EPA's access to the property or, upon identifying such a person, that access is denied. While CERCLA does not specifically grant jurisdiction for the issuance of administrative warrants, precedence and a plain reading of CERCLA indicate that where Congress gives power to an agency to enter and make inspections, the agency is ipso facto empowered to seek a warrant. In re Yoder's Slaughterhouse Site, Misc. No. 07-250, 37 ELR 20277 (D. Md. Oct 16, 2007) (Bredar, J.) (4 pp.).

CERCLA, RICO, MOTION PRACTICE:

A district ruled on several pre-trial motions of both defendants and plaintiffs alleging property damage caused by a defendant's contamination at its nearby chemical manufacturing facility (a designated Superfund site), negligence, fraud, fraudulent concealment, strict liability, trespass and civil RICO. With respect to environmental law, plaintiffs' affidavits are not barred where they aver diminution in market value without assistance of expert testimony or other sophisticated analyses of value; defendant's motion for partial summary judgment on fraud and RICO claims are granted where plaintiffs failed to demonstrate reliance to their detriment on defendant's statements concerning the risks and prevalence of DDT in the community; and plaintiffs' claims for alleged property damage based on defendant's actions several decades ago are not time-barred by the "federally required commencement date" requirement. Fisher v. Ciba Specialty Chemicals Corp., No. 03-0566-WS-B, 37 ELR 20279 (S.D. Ala. Oct. 11, 2007) (Steele, J.) (27 pp.).

CERCLA, EXPERT WITNESS, LIABILITY ALLOCATION

A district court granted in part and denied in part two motions in limine by a third-party defendant to bar testimony by plaintiffs' two expert witnesses in a CERCLA §§ 107 and 113 cost recovery and contribution action. Expert testimony relying on the "Quick Domenico" fate and transport and the mass contaminant models is admissible where it is neither speculative nor based on assumptions that suggest bad faith. However, expert testimony on the Gore equitable factors, which are applied by courts to allocate response costs among liable parties, is excluded from trial because experts are precluded from stating ultimate legal conclusions and assuming an essentially judicial function. Additionally testimony concerning waste volume and character is admissible even if based on experience at other locations where it is not devoid of factual reference or reliable foundation. Experts’ testimony on the consistency of incurred response costs with the NCP is excludable where such testimony is based on estimates and projections and not on the actual expenditures for specific work performed. Chitayat v. Vanderbilt Associates, No. 03-5314 (DRH)(MLO), 37 ELR 20272, (E.D.N.Y. Sept. 27, 2007) (Hurley, J.) (8 pp.).


PRIVATE ATTORNEY GENERAL, FEE AWARD, CONSTITUTIONAL LAW

A California appellate court denied an appeal of a postjudgment award of attorney fees to plaintiff as the successful party in a proceeding under the California Environmental Quality Act challenging a proposed housing development due to its environmental impacts on wildlife and traffic. Plaintiff is entitled to an award of attorney fees under California Civil Code §1021 as a successful party in an action resulting in significant benefit to the general public, where the financial burden of private enforcement outweighs plaintiff's personal interest in the matter. The defendant developer and defendant city, as parties with direct interest in the litigation, are liable for attorney fees under the statute, and because the primary purpose of §1021 is to encourage enforcement of important public policies, and is incidental to the Constitution's right to petition, defendant developer's First Amendment claim is denied. Mejia v. City of Los Angeles, No. B189444, 37 ELR 20273 (Cal. Ct. App. Oct. 17, 2007) (Yaffe, J.) (14 pp.).

UNDERGROUND STORAGE TANKS, INNOCENT LANDOWNER

A North Carolina appeals court denied respondent agency’s appeal of a lower court's reversal of the agency's assessment of a civil penalty for petitioner's failure to meet certain requirements related to leaking underground storage tanks (USTs). Petitioner inherited the property from his father who operated USTs on the property and who was notified of contaminants attributable to the USTs prior to his death in 1991. Petitioner-son removed the USTs and associated soils in 1993, and North Carolina Dept. of Environmental and Natural Resources requested that he perform a Comprehensive Site Assessment (CSA). Petitioner failed to submit a complete CSA and after notices of violation and voluminous correspondence, the agency assessed in excess of $7,000 in penalties against petitioner. Petitioner appealed the agency decision to the superior court which reversed on the basis that petitioner acquired the property by inheritance without knowledge or reasonable basis for knowing that groundwater contamination at the site had occurred and was therefore absolved of liability under the innocent landowner exception of 15A N.C.A.C. 2L.0101(b). The appeals court affirmed. Ownership of the USTs is not sufficient to impute liability where such liability attaches to "responsible parties," the definition for which specifically excludes persons who acquire property without prior knowledge of contamination. Further, petitioner had no obligation to file a CSA because the discharge occurred before he acquired the subject property. A.J. Lancaster v. North Carolina Department of Environmental and Natural Resources, No. COA07-149, 37 ELR 20278 (N.C. Ct. App. Nov. 6, 2007) (5 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 took direct final action on motor vehicle refrigerant recovery and recycling equipment standards by updating its reference to the new Society of Automotive Engineers (SAE) standards. 72 FR 63490 (11/9/07).
  • EPA proposed to update motor vehicle refrigerant recovery and recycling equipment standards by updating its reference to the new SAE standards; see above for direct final rule. 72 FR 63535 (11/9/07).    
  • EPA designated two new equivalent methods for monitoring ambient air quality—one for measuring concentrations of ozone and one for measuring concentrations of sulfur dioxide. 72 FR 63176 (11/8/07).
  • SIP Approvals: California (permitting requirements) 72 FR 63107 (11/8/07). Colorado (particulate matter with a diameter of 10 microns or less (PM10) maintenance plan) 72 FR 62571 (11/6/07). Louisiana (eight-hour ozone maintenance plans for the parishes of Beauregard, Grant, and St. Mary) 72 FR 62579 (11/6/07).
  • SIP Proposals: Colorado (PM10 maintenance plan; see above for direct final rule) 72 FR 62615 (11/6/07). Connecticut (interstate transport of air pollutants) 72 FR 62420 (11/5/07). Delaware (transportation conformity regulations) 72 FR 62807 (11/7/07). Louisiana (eight-hour ozone maintenance plans for the parishes of Beauregard, Grant, and St. Mary; see above for direct final rule) 72 FR 62616 (11/6/07). Massachusetts (transit system improvements) 72 FR 62422 (11/5/07). West Virginia (eight-hour ozone maintenance plan and amendments to the one-hour ozone maintenance plan) 72 FR 62809 (11/7/07).
  • SIP Withdrawal: West Virginia (clean air interstate rule nitrogen oxides (NOx) annual and NOx ozone season trading programs) 72 FR 62788 (11/7/07).

HAZARDOUS & SOLID WASTE:

  • EPA entered into a proposed administrative settlement under CERCLA concerning part of the PCB Treatment Inc. Superfund site located in Kansas City, Kansas, that requires the settling party to pay $5,000 in past response costs to the hazardous substance Superfund. 72 FR 62853 (11/7/07).

WILDLIFE:

  • NOAA-Fisheries re-proposed, with some modifications, the chain mat dredges requirements it issued in 2006 to help reduce mortality and injury to endangered and threatened sea turtles captured in scallop dredge gear. 72 FR 63537 (11/9/07).
  • FWS announced that Vancouver Island is a significant portion of the goshawk's range and that listing the subspecies as threatened or endangered on Vancouver Island is warranted; in addition, the agency found that the subspecies' populations in Alaska and British Columbia constitute distinct population segments (DPS) of the Queen Charlotte goshawk and determined that the entire British Columbia DPS warrants listing as threatened or endangered but that listing the Alaska DPS as threatened or endangered is not warranted at this time. 72 FR 63123 (11/8/07).
  • FWS revised its February 2, 2005 (70 FR 5404), proposed rule to remove the Preble's meadow jumping mouse from the list of endangered and threatened wildlife; the agency now proposes to amend the listing for the Preble's meadow jumping mouse to specify over what portion of its range the subspecies is threatened. 72 FR 62991 (11/7/07).
  • NOAA-Fisheries announced temporary restrictions that apply to lobster trap/pot and anchored gillnet fishermen in an area southeast of Portland, Maine, to protect an aggregation of northern right whales. 72 FR 62587 (11/6/07).
  • FWS revised the designation of critical habitat to approximately 84,865 acres in Miami-Dade County, Florida, for the endangered Cape Sable seaside sparrow. 72 FR 62735 (11/6/07).

DOJ NOTICES OF SETTLEMENT:

  • United States v. Acadia Woods Add. #2 Sewer Co., No. 6:98-0687 (W.D. La. Nov. 1, 2007). A consent decree issued in 2000 must be modified to adjust its stipulated penalty provisions and its plan and schedule so that Total Environmental Solutions, Inc., brings the sewage treatment plants it purchased into compliance with the Clean Water Act. 72 FR 63185 (11/8/07).
  • United States v. Andruss Family Trust, No. 2:07-cv-06873 FMC (C.D. Cal. Oct. 23, 2007). Settling CERCLA defendants must pay EPA $3,350,000 and must pay the California Department of Toxic Substances Control $100,000 in reimbursement of response costs incurred or to be incurred in connection with the release or threatened release of hazardous substances at the South El Monte Operable Unit of the San Gabriel Valley Area 1 Superfund site in South El Monte, California. 72 FR 63185 (11/8/07).
  • In re ASARCO LLC, No. 05-21207 (Bankr. S.D. Tex. Oct. 26, 2007). Settling CERCLA defendants must pay the United States $144,000,000 for past and future response costs and natural resource damages incurred at the Tar Creek Superfund site in Ottawa County, Oklahoma; the Cherokee County Superfund site in Cherokee County, Kansas; the Oronogo-Duenweg Lead Mining Belt Superfund site in Jasper County, Missouri; and the Newton County Mine Tailings Superfund site in Newton County, Missouri (the Tri-State Mining District sites)and must pay Kansas, Missouri, and Oklahoma $3,250,000, $3,250,000, and $7,500,000, respectively, to resolve claims relating to the Tri-State Mining District sites. 72 FR 63186 (11/8/07).
  • United States v. Sea Bay Development Corp., No. 2:06-cv-624 (E.D. Va. Oct. 26, 2007). Settling CWA defendants who discharged dredged or fill material and/or controlled and directed the discharge of dredged or fill material into waters of the United States without a permit at an approximately 1,560-acre property located in Chesapeake, Virginia, must collectively pay a civil penalty of $100,000, must restore and mitigate a portion of the property consisting of approximately 873 acres of wetlands, and must preserve in perpetuity of that portion under a conservation easement or deed restriction. 72 FR 63186 (11/8/07).

GUIDANCE DOCUMENTS:

  • EPA announced the availability of a Pesticide Registration Notice titled Labeling Revisions Required by the Final Rule 'Pesticide Management and Disposal; Standards for Pesticide Containers and Containment.' 72 FR 62852 (11/7/07).

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

THE CONGRESS

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

Public Laws

  • H.R. 1495 (Water Resources Development Act of 2007), which overrides a presidential veto to provide for the conservation and development of water and related resources and to authorize the Secretary of the Army to construct various projects for improvements to rivers and harbors of the United States, was passed by the House, 153 Cong. Rec. H12788-98 (daily ed. Nov. 6, 2007), and the Senate, Pub. L. No. 110-114, 153 Cong. Rec. S14113-18 (daily ed. Nov. 7, 2007).

Chamber Action

  • S. 1347 (Omnibus Indian Advancement Act), which would amend the Omnibus Indian Advancement Act to modify the date as of which certain tribal land of the Lytton Rancheria of California is deemed to be held in trust and would provide for the conduct of certain activities on the land, was passed by the Senate. 153 Cong. Rec. S13937 (daily ed. Nov. 5, 2007).

Committee Action

  • S. 950 (coastal and ocean integrated system of observation) was reported by the Committee on Commerce, Science, and Transportation. S. Rep. No. 110-217, 153 Cong. Rec. S13725 (daily ed. Nov. 2, 2007). The bill would develop and maintain an integrated system of coastal and ocean observations for the nation's coasts, oceans, and Great Lakes, improve warnings of tsunami, hurricanes, El Niño events, and other natural hazards, enhance homeland security, support maritime operations, and improve management of coastal and marine resources.
  • S. 1582 (Hydrographic Services Improvement Act) was reported by the Committee on Commerce, Science, and Transportation. S. Rep. No. 110-218, 153 Cong. Rec. S13725 (daily ed. Nov. 2, 2007). The bill would reauthorize and amend the Hydrographic Services Improvement Act.
  • H.R. 798 (energy) was reported by the Committee on Environment and Public Works. H. Rep. No. 110-224, 153 Cong. Rec. S14062 (daily ed. Nov. 7, 2007). The bill would direct the Administrator of General Services to install a photovoltaic system for the headquarters building of the Department of Energy.

Bills Introduced

  • S. 2306 (Dorgan, D-N.D.)(renewable fuel) would encourage and facilitate the use of renewable fuel in the United States. 153 Cong. Rec. S13768 (daily ed. Nov. 5, 2007). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2307 (Kerry, D-Mass.)(Global Change Research Act of 1990) would amend the Global Change Research Act of 1990. 153 Cong. Rec. S13768 (daily ed. Nov. 5, 2007). The bill was referred to the Committee on Commerce, Science, and Transportation.
  • S. 2313 (Brown, D-Ohio)(Public Health Service Act) would amend the Public Health Service Act to enhance efforts to address antimicrobial resistance. 153 Cong. Rec. S13989 (daily ed. Nov. 6, 2007). The bill was referred to the Committee on Health, Education, Labor, and Pensions.
  • S. 2314 (Salazar, D-Colo.)(energy credits) would amend the Internal Revenue Code of 1986 to make geothermal heat pump systems eligible for the energy credit and the residential energy efficient property credit. 153 Cong. Rec. S13989 (daily ed. Nov. 6, 2007). The bill was referred to the Committee on Finance.
  • S. 2316 (Lieberman, ID-Conn.) (Arctic National Wildlife Refuge) would designate a portion of the Arctic National Wildlife Refuge as wilderness. 153 Cong. Rec. S14062 (daily ed. Nov. 7). The bill was referred to the Committee on Environment and Public Works.
  • S. 2323 (Kerry, D-Mass.)(carbon capture) would provide for the conduct of carbon capture and storage technology research, development, and demonstration projects. 153 Cong. Rec. S14062 (daily ed. Nov. 7). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2329 (Menendez, D-N.J.)(Thomas Edison National Historical Park) would establish the Thomas Edison National Historical Park in New Jersey as the successor to the Edison National Historic Site. 153 Cong. Rec. S14191 (daily ed. Nov. 8, 2007). The bill was referred to the Committee on Energy and Natural Resources.
  • H.R. 4074 (Costa, D-Cal.)(San Joaquin River Restoration Settlement) would authorize the implementation of the San Joaquin River Restoration Settlement. 153 Cong. Rec. S13768 (daily ed. Nov. 5, 2007). The bill was referred to the Committee on Natural Resources.
  • H.R. 4079 (Thompson, D-Miss.)(Robert T. Stafford Disaster Relief and Emergency Assistance Act) would amend the Robert T. Stafford Disaster Relief and Emergency Assistance Act to require that temporary housing units provided to assist disaster victims comply with certain formaldehyde emissions requirements. 153 Cong. Rec. H12739 (daily ed. Nov. 5, 2007). The bill was referred to the Committee on Transportation and Infrastructure.
  • H.R. 4087 (Jones, R-N.C.)(Magnuson-Stevens Fishery Conservation and Management Act) would amend the Magnuson-Stevens Fishery Conservation and Management Act to extend the authorized time period for rebuilding of certain overfished fisheries. 153 Cong. Rec. H13203 (daily ed. Nov. 6, 2007). The bill was referred to the Committee on Natural Resources.
  • H.R. 4092 (Deal, R-Ga.)(Mountaintown National Scenic Area) would establish the Mountaintown National Scenic Area in the Chattahoochee National Forest, Georgia. 153 Cong. Rec. H13203 (daily ed. Nov. 6, 2007). The bill was referred to the Committee on Natural Resources and the Committee on Agriculture.
  • H.R. 4093 (Defazio, D-Or.)(Migratory Bird Treaty Act) would amend the Migratory Bird Treaty Act to provide for penalties and enforcement for intentionally taking protected avian species. 153 Cong. Rec. H13203 (daily ed. Nov. 6, 2007). The bill was referred to the Committee on Natural Resources.
  • H.R. 4096 (Hunter, R-Cal.)(land management) would facilitate the ability of private property owners and local communities that manage public land to clear brush or make other modifications to their property for the purpose of creating fire breaks in order to protect human lives and property. 153 Cong. Rec. H13203 (daily ed. Nov. 6, 2007). The bill was referred to the Committee on Natural Resources and to the Committee on Agriculture.
  • H.R. 4103 (Cannon, R-Utah)(Gale V. Bennett Wild Horse and Burro Building) would designate the federal facility administered by the Bureau of Land Management located at 600 N 350 W in Delta, Utah, as the "Gale V. Bennett Wild Horse and Burro Building.'' 153 Cong. Rec. H13296 (daily ed. Nov. 7, 2007). The bill was referred to the Committee on Natural Resources.
  • H.R. 4113 (Reichert, R-Wash.)(Alpine Lakes Wilderness) would expand the Alpine Lakes Wilderness in the state of Washington to protect the complete watershed of the free-flowing Pratt River as a Wild River. 153 Cong. Rec. H13411 (daily ed. Nov. 8, 2007). The bill was referred to the Committee on Natural Resources.
  • H.R. 4115 (Dingell, D-Mich.)(land claims) would provide for and approve the settlement of certain land claims of the Sault Ste. Marie Tribe of Chippewa Indians. 153 Cong. Rec. H13411 (daily ed. Nov. 8, 2007). The bill was referred to the Committee on Natural Resources.
  • H. Con. Res. 248 (Christensen, D-V.I.)(coastal national wildlife refuges) would express the sense of the Congress that the United States Fish and Wildlife Service should incorporate consideration of global warming and sea-level rise into the comprehensive conservation plans for coastal national wildlife refuges, and for other purposes. 153 Cong. Rec. H13296 (daily ed. Nov. 7, 2007). The bill was referred to the Committee on Natural Resources.
  • H. Con. Res. 251 (Perlmutter, D-Colo.)(National Renewable Energy Laboratory) would commend the National Renewable Energy Laboratory for its work of promoting energy efficiency for 30 years. 153 Cong. Rec. H13412 (daily ed. Nov. 8, 2007). The bill was referred to the Committee on Science and Technology.
  • H. Res. 807 (Ros-Lehtinen, R-Fla.)(Marjory Stoneman Douglas) would honor the life of Marjory Stoneman Douglas, champion of the Florida Everglades and founder of Florida's environmental movement. 153 Cong. Rec. H13296 (daily ed. Nov. 7, 2007). The bill was referred to the Committee on Natural Resources.

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

IN THE STATES

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

The states below have updates this week:

Alabama District of Columbia Iowa Nebraska North Dakota Tennessee California Idaho Maine Nevada Ohio Virginia Colorado Indiana Michigan New Hampshire Oklahoma Washington Delaware Idaho Montana New Jersey South Carolina  

ALABAMA

Fisheries:

Land Use:

CALIFORNIA

Land Use:

  • The San Francisco Bay Conservation and Development Commission will conduct a public hearing on a proposed rulemaking regarding dredging and dredged disposal projects that can be authorized administratively (14 Cal. Code of Regulations Sections 10602 and 10800). The hearing will be held December 20, 2007. Comments are due December 20, 2007. See http://www.oal.ca.gov/pdfs/notice/44z-2007.pdf (pp. 1846-1848)

COLORADO

Air:

  • The Air Quality Control Commission will hold a rulemaking hearing to consider revisions to Regulation Number 19, Part A - Lead-Based Paint Abatement, including proposed increases to the fees for certification of individuals, certification of firms and fees for lead abatement permits to address existing and anticipated revenue shortfalls to the program. The hearing will be held December 20 and 21, 2007. Comments are due December 6, 2007. See http://www.cdphe.state.co.us/op/aqcc/aqccdown/Reg19decNotice.pdf
  • The Air Quality Control Commission will hold a rulemaking hearing to consider revisions to Regulation Number 15 -
    Control of Emissions of Ozone-Depleting Compounds, including proposed increases to the fees for facility notification and proposed changes to the annual billing date for air conditioning and refrigeration service facilities. The proposed increase will address existing and anticipated revenue shortfalls to the program. The hearing will be held December 20 and 21, 2007. Comments are due December 6, 2007. See http://www.cdphe.state.co.us/op/aqcc/aqccdown/Reg15decNotice.pdf

DELAWARE

Air:

Fisheries:

DISTRICT OF COLUMBIA

Air:

IDAHO

Water:

  • The Department of Environmental Quality will conduct a public hearing to consider the modification of current rules dealing with application of standards based on flow conditions (low flow or high flow). Both low and high flows can result in unusual water quality, and the permanence of flow (intermittent and ephemeral flow regimes) has great bearing on the beneficial use potential of water bodies. The hearing will be held January 9, 2007. See http://www.deq.idaho.gov/rules/water/58_0102_0601_proposed.cfm

ILLINOIS

Air:

  • The Pollution Control Board is soliciting public comment on proposed amendments to 35 Ill. Adm. Code 211 - Definitions and General Provisions. This proceeding relates to the listings of compounds exempted from the State
    definition of "volatile organic material" or "volatile organic compound" (VOC) in 35 Ill. Adm. Code 211.7150. These amendments would update the definition to correspond with the federal regulations at 40 CFR 51.100(s). Comments are due December 17, 2007. See http://www.cyberdriveillinois.com/departments/index/register/register_volume31_issue44.pdf (pp. 14679-14699)

INDIANA

Water:

  • The Natural Resources Commission will hold a public hearing on proposed rule 312 IAC 11-3-4 to help implement IC 14-26-2- 23(e)(2)(A) governing standards for the common use of structures on a public freshwater lake if needed to
    accommodate the interests of landowners who have property rights abutting the lake or rights to access the lake. The hearing will be held December 7, 2007. See http://www.in.gov/legislative/iac/20071107-IR-312070467PHA.xml.pdf

IOWA

Toxic Substances:

  • The Environmental Protection Commission will conduct a public hearing to receive comments on proposed amendments to Iowa Administrative Code Chapter 213, Packaging—Heavy Metal Content. The proposed amendments include the removal of an out–of–date schedule for reducing concentration levels of heavy metals in packaging. The proposed amendments incorporate changes enacted as a result of 2007 Iowa Acts, Senate File 344.  The amendments propose to restrict the liability of distributors for the distribution of toxic packages without knowledge and substitute civil enforcement proceedings for the former criminal enforcement provisions. Hearings will be held November 14, 2007. See http://www.legis.state.ia.us/Rules/Current/Bulletin/IAB071024.htm

MAINE

Fisheries:

  • The Department of Inland Fisheries and Wildlife is soliciting public comment on proposed amendments to Ch. 1, Open Water and Ice Fishing Regulations. In accordance with Public Law 2007 Ch. 21, the Department of Inland Fisheries and Wildlife is proposing to adopt a list of “state heritage fish waters” composed of lakes and ponds that contain Arctic charr and which have never been stocked. The Department is prohibited from stocking fish, or issuing stocking permits, on such waters and must prohibit the use or possession of live fish as bait by anglers. Comments are due December 7, 2007. See http://www.maine.gov/sos/cec/rules/notices/2007/110707.htm

MICHIGAN

Air:

Water:

MONTANA

Air:

Toxic Substances:

  • The Department of Environmental Quality will conduct a public hearing on proposed amendments to ARM 17.56.502, 17.56.507, 17.56.604, 17.56.607, and 17.56.608, and the adoption of New Rule I pertaining to reporting and numbering petroleum releases. The hearing will be held November 28, 2007. Comments are due December 6, 2007. See http://sos.mt.gov/arm/Register/archives/MAR2007/MAR07-21.pdf (pp. 1743-1750)

Water:

NEBRAKSA

Hazardous & Solid Wastes:

  • The Department of Environmental Quality will conduct a public hearing to consider the adoption of amendments to Title 132 - Integrated Solid Waste Management Regulations. Adoption of these proposed amendments will reflect statutory requirements LB263 (Legislative Bill) allowing minor modifications to solid waste management permits without requiring public notice or a hearing. The hearing will be held December 7, 2007. See http://www.deq.state.ne.us/Proposed.nsf/Pages/Proposed

Water:

  • The Department of Environmental Quality will conduct a public hearing to consider the adoption of amendments to Title 123, Rules and Regulations for the Design, Operation and Maintenance of Wastewater Works. The purpose of this rulemaking is to clarify the process for issuing operating permits to major sources comprised of different persons, as defined in Chapter 1. The hearing will be held December 7, 2007. See http://www.deq.state.ne.us/Proposed.nsf/Pages/Proposed

NEVADA

Air:

  • The State Environmental Commission is proposing amendments to regulations relating to air pollution; revising provisions of the Nevada Clean Air Mercury Rule Program which adopt by reference certain federal regulations; providing that a mercury allowance does not constitute a property right; requiring a mercury allowance allocation request to be based on permitted limits for emissions; and setting forth the requirements for public participation in determining the amount of certain mercury credits that are available for auction or sale. See http://www.leg.state.nv.us/register/2007Register/R143-07RP1.pdf
  • The State Environmental Commission is proposing amendments to regulations relating to pollution; requiring the reporting of all greenhouse gases emitted by each affected unit in this State to a registry of greenhouse gas emissions; requiring the State Department of Conservation and Natural Resources to issue a statewide inventory of greenhouse gases emitted in this State; revising the amount of certain fines for minor violations; providing that an emergency generator that is owned or operated by a stationary source does not qualify as an insignificant activity under certain circumstances; requiring a notice for a Class I operating permit to construct to include a statement concerning potential emissions of lead under certain circumstances; and requiring the Director of the Department to provide written notice to an affected local air pollution control agency under certain circumstances. See http://www.leg.state.nv.us/register/2007Register/R142-07P.pdf

Toxic Substances:

  • The State Environmental Commission is proposing amendments to regulations relating to hazardous substances and to the notification of the Director of the State Department of Conservation and Natural Resources of certain releases of hazardous substances. See http://www.leg.state.nv.us/register/2007Register/R125-07P.pdf

Water:

NEW HAMPSHIRE

Air:

  • The Department of Environmental Services conducted a public hearing on the adoption of amendments to Env-A 3300 concerning municipal waste combustion (MWC). Specifically, the proposed amendments reduce the emission limits for particulate matter, cadmium, lead and dioxins/furans so as to be consistent with new federal requirements. The hearing was held October 23, 2007. See http://www.des.state.nh.us/RuleMaking/notice2007/Env-A3300RMN.pdf

Toxic Substances:

NEW JERSEY

Air:

  • The Department of Environmental Protection will conduct a public hearing on proposed amendments to N.J.A.C. 7:27-24, (Prevention of Air Pollution from Consumer Products), and new rules at N.J.A.C. 7:27-26 (Prevention of Air Pollution from Adhesives and Sealants) and N.J.A.C. 7:27-34 (Tertiary Butyl Acetate Emissions Reporting). The hearing will be held December 10, 2007. Comments are due January 4, 2008. See http://www.nj.gov/dep/rules/notices/110507b.html

Hazardous & Solid Wastes:

  • The Department of Environmental Protection will conduct a public hearing on the readoption of the solid waste utility regulations codified at N.J.A.C. 7:26H-1 et seq. The proposal amends the definition of “peak rate” and proposes to codify the statutory provisions of the Commercial Landfill Regulatory Reform Act, which became effective January 1, 2004. This proposed new rule and corresponding amendments deregulates privately-owned sanitary landfill facilities. The hearing will be held November 26, 2007. Comments are due January 4, 2008. See http://www.nj.gov/dep/rules/notices/110507a.html

Land Use:

  • The Department of Environmental Protection has adopted amendments to Flood Hazard Area Control Act rules, N.J.A.C. 7:13, including related changes to Coastal Permit Program rules, N.J.A.C. 7:7, Coastal Zone Management rules, N.J.A.C. 7:7E, and Ninety-Day Construction Permits rules, N.J.A.C. 7:1C. See http://www.nj.gov/dep/rules/adoptions/adopt_071105a.pdf

NORTH DAKOTA

Water:

  • The North Dakota Department of Health Division of Water Quality held a public hearing to address proposed amendments to the N.D. Admin. Code chapter 33-18-01, Water Well Construction and Water Well Pump Installation. The proposed amendments to the N.D. Admin. Code § 33-18-01-01 add geothermal system drillers to those who are responsible to comply with the chapter; they require that a certified geothermal system driller be in charge of drilling geothermal systems; and, they require that the certified geothermal system driller in charge provide inspection and supervision of drilling geothermal systems. The hearing was held November 7, 2007. Comments are due November 19, 2007. See http://www.health.state.nd.us/PublicComment/WaterWellConstruction20071119.pdf

OHIO

Water:

  • The Ohio Environmental Protection Agency is soliciting public comment on proposed amendments to surface water quality rules. The amendments would change beneficial use designations (aquatic life, water supply and recreational categories) for specified water bodies in the Hocking River, Scioto River, Grand River, Rocky River, Great Miami River, Chagrin River, Portage River, Muskingum River, Mahoning River and Vermilion River drainage basins. Comments are due December 14, 2007. See http://www.registerofohio.state.oh.us/pdfs/phn/3745_NO_39896_20071106_0808.pdf

OKLAHOMA

Water:

SOUTH CAROLINA

Air:

TENNESSEE

Air:

  • The Tennessee Air Pollution Control Board will conduct a public hearing to consider the promulgation of amendments to the Tennessee Air Pollution Control Regulations and the SIP pursuant to Tennessee Code Annotated, Section 68-201-105. Tennessee proposes to make an affirmative declaration that major sources in Tennessee will be subject to PSD and Nonattainment New Source Review (NNSR) permitting programs implemented in accordance with EPA's interim guidance calling for use of PM10 as a surrogate for PM2.5 in the PSD and NNSR programs, until such time that EPA finalizes new regulatory requirements for these programs. The hearing will be held November 27, 2007. Comments are due November 27, 2007. See http://www.state.tn.us/environment/apc/ppo/phnov272007.pdf

Water:

  • The Division of Water Pollution Control will hold a public hearing concerning the draft General NPDES Permit for Discharges of Treated Groundwater Associated with Underground Storage Tank Remediation. The hearing will be held December 10, 2007. See http://www.state.tn.us/environment/wpc/ppo/mdi/PH07_035.pdf
  • The Solid Waste Disposal Control Board will conduct a public hearing to receive public comments regarding the
    promulgation of amendments to Rule Chapter 1200-01-13, Hazardous Substance Remedial Action. The hearing will be held December 19, 2007. Comments are due December 26, 2007. See http://www.state.tn.us/environment/dor/ppo/1200.20071030.10-21-07.notice.pdf
  • The Tennessee Department of Environment and Conservation, Division of Water Supply will conduct a public hearing to receive comments concerning amendments to Rule Chapter 1200-5-1 Public Water Systems. The proposed amendments were drafted for the addition of the Ground Water Rule based on the new federal rule requirements contained in 40 CFR 141.400 as well as other Ground Water Rule associated changes within Rule Chapter 1200-5-1, the increasing of fees for public water systems and updating laboratory analytical methods and fees and consolidating them under Rule 1200-5-1-.14. The hearing will be held January 3, 2008. Comments are due January 10, 2008. See http://www.state.tn.us/environment/dws/ppo/ph_jan0308pws.pdf

VIRGINIA

Water:

  • The Department of Environmental Quality will conduct a public hearing on proposed amendments and reissuance of the general Virginia Pollutant Discharge Elimination System permit for concrete product facilities. The hearing will be held January 7, 2007. The public comment period on the proposal begins on November 26, 2007 and ends on January 25, 2007. See http://townhall.virginia.gov/L/ViewMeeting.cfm?MeetingID=10176

WASHINGTON

Land Use:

  • The Forest Practices Board will conduct public hearings to consider amendments to forestry rules. This rule proposal would amend WAC 222-30-021 to change timber harvest and leave tree requirements in riparian management zones adjacent to Type S and F waters as defined in WAC 222-16-030. The hearings will be held March 18 and 20, 2007. See http://apps.leg.wa.gov/documents/laws/wsr/2007/21/07-21-081.htm

Toxic Substances:

  • The Department of Ecology has adopted amendments to permanent rules concerning risk policies applicable to certain mixtures, toxic equivalency factors used to characterize mixtures, methods for calculating soil cleanup levels, and evaluating cross-media impacts. See http://apps.leg.wa.gov/documents/laws/wsr/2007/21/07-21-065.htm

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

INTERNATIONAL

UNITED KINGDOM EXPANDS PROHIBITED SPECIES LIST

  • Britain’s Department for Environment, Food and Rural Affairs (DEFRA) has announced its intention to add 70 new non-native species to the list of plants and animals prohibited under the Wildlife and Countryside Act of 1981. Minister for Climate Change and Biodiversity Joan Ruddock noted that the threat that invasive species pose to ecosystems and humans “is greater than ever with climate change. It is vital that we do all we can to prevent these species from establishing in the wild.” Government officials estimate that invasive species cost the UK £2 billion in commercial and property damages. See http://www.telegraph.co.uk/earth/main.jhtml?xml=/earth/2007/11/08/eanative108.xml

 

DELHI AGAIN SUFFERS FROM DETERIORATING AIR QUALITY

  • A recent study by the Center for Science and Environment found that air quality is rapidly declining in Delhi, due to the addition of nearly 1,000 new cars to Delhi every day. The Indian metropolis, previously “one of the most polluted cities on earth,” transitioned all public transportation vehicles in 2002 from diesel to compressed natural gas, which causes fewer harmful emissions. However, over the past few years, the dramatic increase in the number of vehicles on Delhi streets has nearly erased the rapid improvements seen after the switch. See http://www.iht.com/articles/2007/11/06/asia/delhi.php

UNITED NATIONS TO ASSESS IMPACT OF OIL IN NIGERIA

  • As part of the effort to develop sustainable peace in Nigeria, the United Nations Environment Program will conduct an assessment of oil contamination in the region of Ogoniland. The protests of the Ogoni people against the allocation of oil revenue have resulted in many bloody clashes in the past decade. The UNEP evaluation, which will begin immediately, will include environmental, economic, social and health impacts. UNEP officials will collaborate with local experts and communities to carry out the assessment, which was requested by the Nigerian government. See http://allafrica.com/stories/200711070617.html

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

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