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Weekly Update Volume 37, Issue 34

12/03/2007

LITIGATION


CERCLA, CONTRIBUTION, COST RECOVERY:

On remand from the U.S. Supreme Court, the Third Circuit held that plaintiff could state a cause of action for cost recovery under CERCLA §107(a) where it undertook voluntary cleanup action at a site. Under the Atlantic Research decision, Third Circuit precedent construing CERCLA §107 as denying parties that contributed to site contamination the right to seek cost recovery for voluntary cleanup costs no longer retains the force of law. E.I. DuPont de Nemours and Co. v. United States, No. 04-2096, 37 ELR 20286 (3rd Cir. Nov. 20, 2007) (17 pp.).

PREEMPTION, HUMPBACK WHALES, ATTORNEYS FEES:

The Ninth Circuit held that a company's federal license allowing it to transport up to 12 passengers in "coastwise trade" off the coast of Maui as part of its parasailing business does not preempt Hawaii law prohibiting parasailing during limited portions of the year to protect mating humpback whales. Although a district court initially entered an injunction barring the state's enforcement of the parasailing provision, the injunction was vacated due to an intervening change in the law--the Fiscal Year 2005 Omnibus Appropriations Bill. Hawaii’s regulation does not completely exclude federal licenses. Because the ban is seasonal, not year-round, it is not wholly economically infeasible for the company to operate its business. Nor does the regulation conflict with federal law. The FY 2005 Omnibus Bill permits the state of Hawaii to regulate the operation of commercial vessels for the purpose of protecting humpback whales. Although the bill did not address the preemptive effect of federal Coast Guard licenses, it suggests that Congress meant the Hawaii legislation protecting humpback whales to continue in force, despite a known impact on parasailing and similar commercial boating activity. In addition, the parasailing ban is a reasonable regulation of federal licenses because it furthers the legitimate governmental purpose of protecting humpback whales. And the parasailing ban is nondiscriminatory and does not impose an unreasonable burden on interstate commerce. The court also held that the company was not entitled to attorneys fees. Because the injunction never went into effect, the company never received a direct benefit from the temporary relief granted by the court. It therefore does not qualify as a “prevailing party.” UFO Chuting of Hawaii, Inc. v. Smith , No. 05-16545, 37 ELR 20294 (9th Cir. Nov. 28, 2007) (17 pp.).


CERCLA, TAX LAW:

The Third Circuit affirmed a lower court’s grant of the government’s motion for summary judgment denying appellant’s claim that its environmental cleanup costs qualify for beneficial tax treatment under §1341 of the Internal Revenue Code. A taxpayer’s cleanup expenses do not qualify as restored moneys under §1341 where such expenses do not equate to the restoration of particular moneys to the rightful owner and did not arise from the same circumstances, terms and conditions as the taxpayer’s original acquisition of income in that particular tax year. Alcoa v. United States, No. 06-1635, 37 ELR 20289 (3rd Cir. Nov. 28, 2007) (24 pp.).


CERCLA, ARRANGER LIABILITY, USEFUL PRODUCT DOCTRINE:

The Ninth Circuit reversed and remanded a district court's grant of summary judgment in favor of defendants, alleged "arrangers" who sold lead-containing materials to the facility's operators, because under the useful product doctrine a reasonable finder of fact could infer from the evidence that some of the transactions at issue involved arrangements for disposal or treatment of a hazardous waste. Business entities may be defined as arrangers under CERCLA where the sale of a useful product or by-product (1) necessarily and immediately results in leakage of hazardous substances, (2) involves a price for the product that is not linked to applicable market values; (3) is intended to result in the processing or disposal of a hazardous component, and/or (4) does not involve a primary product of the seller. California Department of Toxic Substances Control v. Alco Pacific, Inc., No. 05-55962, 37 ELR 20290 (9th Cir. Nov. 28, 2007) (19 pp.).


NEPA, EIS ADEQUACY, TRANSPORTATION CONFORMITY:

A district court granted summary judgment for federal defendants upholding the adequacy of an EIS for the Intercounty Connector, a major proposed highway in suburban Washington, D.C. Even though the purpose and need statement referred to a highway only, the EIS clearly considers non-highway alternatives and is not unduly narrow. The federal agencies did not act arbitrarily and capriciously in selecting the needs for the project and considered many non-highway alternatives, including alternatives suggested by the plaintiffs. The federal agencies’ consideration of the environmental impacts of the various alternatives was not arbitrary and capricious. Plaintiffs failed to demonstrate that the agencies acted arbitrarily and capriciously under §4(f) of the Department of Transportation Act in ensuring that impacts to parkland and other protected resources were avoided or minimized. Plaintiffs’ challenges to the sufficiency of a CWA §404 permit are rejected for largely the same reasons that the EIS is upheld. Plaintiffs cannot bring a CAA citizen suit over the CAA transportation conformity requirements because the court’s review of the conformity determination is limited to jurisdiction under the APA. Moreover, plaintiffs’ challenges to the agencies’ particulate matter hot-spot analysis under the transportation conformity determination are not sufficient to overcome the court’s deference to agencies’ interpretation of their own regulations. Similarly, the agencies’ determination that the project is in the best overall public interest pursuant to §109(h) of the Federal-Aid Highways Act is adequately supported and not arbitrary and capricious. Approval of contracts involved with the final two segments of the project do not amount to “major federal action” requiring supplementation under NEPA as the overall project has already been approved, and there is no need to supplement the EIS as changes to EPA’s particulate matter air quality standard have been taken into account. Concerns submitted by local politicians as amici were duly taken into consideration by the federal agencies. Audubon Naturalist Society of the Central Atlantic States v. United States Department of Transportation, No. AW-06-3386, 37 ELR 20295 (S.D. Md. Nov. 8, 2007) (Williams, J.) (106 pp.).


CLEAN AIR ACT, PSD:

A district court granted partial summary judgment in support of an environmental group's claim that a university’s coal fired power plant was subject to the PSD requirements of the CAA and was therefore required to obtain a preconstruction permit under 42 U.S.C. § 7475(a) for three of its upgrade projects. State officials, including the president of the university system, may be defined as operators under the CAA if they demonstrate significant and substantial control over the stationary source. Such operators are responsible for obtaining preconstruction permits and employing best available control technology for facility upgrades that do not fall within the routine maintenance, repair and replacement exemption where such modifications are made infrequently (e.g. every 24 years or longer), are not covered by the annual operations and maintenance budget, and where applying the "actual to potential" test determines that such plant modifications would produce a significant increase in net emissions. Sierra Club v. Morgan, No. 07-C-251-S, 37 ELR 20291 (W.D. Wis. Nov. 7, 2007) (Shabaz, J.) (17 pp.).


ENDANGERED SPECIES, SALMON, CALIFORNIA:

A California appellate court denied a challenge by a group of trade associations to a trial court’s ruling that upheld the listing of two coho salmon populations as endangered and threatened under the California Endangered Species Act ("CESA") (Fish & Game Code § 2050 et seq.). Under CESA, species are "evolutionarily significant units" and may be subject to separate evaluations where the populations exist in areas characterized as "genetic discontinuity/transitions." Additionally, in determining whether a species is in serious danger of extinction, the California Fish & Game Commission ("Commission") may limit its evaluation of the species range to populations within the state where such species are native and wild and where protecting their habitat is of value to Californians. The Commission's interpretation of the terms "species," "subspecies" and "range" is accorded deference based on their long-standing application of CESA and their scientific expertise. California Forestry Association v. California Fish & Game Commission, No. C053866, 37 ELR 20287 (Cal. Ct. App. Nov. 20, 2007) (29 pp.).


ENVIRONMENTAL IMPACT ANALYSIS, CEQA, WATER LAW:

A California appeals court affirmed a lower court’s denial of environmental group’s petition for writ of mandate challenging defendant county’s revision and recertification of an environmental impact report (“EIR”) under the California Environmental Quality Act (“CEQA”). The water services analysis contained in an EIR is considered sufficient where it satisfies all four principles provided in Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, which inter alia, requires (1) consideration of sufficient information to evaluate the pros and cons of supplying water; (2) consideration of future project phase water supply requirements; (3) that future water supplies possess a likelihood of actually becoming available and are not simply speculative, and (4) that where anticipated future water sources are not “confidently” available, the EIR must analyze alternative water sources and the consequences of those contingencies. Additionally, where cleanup of perchlorate in a small fraction of the contributing water supply wells was acknowledged in the EIR as a high priority, its remediation is considered feasible and discussion of mitigation funding sources was not a requirement of CEQA or under existing precedent. Santa Clarita Organization for Planning the Environment v. County of Los Angeles, No. B189116, 37 ELR 20288 (Cal. Ct. App. Nov. 26, 2007) (17 pp.).


LAND USE, OPEN SPACE RESTRICTIONS:

On certification from the U.S. Court of Appeals for the Second Circuit, the New York Court of Appeals held that an open space restriction imposed by a subdivision plat under New York Town Law §276 and filed in the Office of the County Clerk pursuant to Real Property Law §334 is enforceable against subsequent purchasers. In 1963, the subject property was subdivided with two parcels being reserved as open space. This restriction was noted on the plat, which was filed with the County Clerk. Forty years later, plaintiffs purchased the property without notice of the restrictions from the seller, received building permits from the town, and constructed at least one home. When the town discovered the open space restrictions, a stop work order was issued. Plaintiffs’ contention that the town’s imposition of an open space restriction gave the town an interest in the property pursuant to General Law §247 that should have been recorded is without merit. The town did not acquire the property within the meaning of General Law §247, nor was the property conveyed to the town under Real Property Law §290(3). Thus, there is no requirement to record the plat. Further, towns have broad authority over land use in New York, and that authority would be meaningless without the ability to enforce those provisions, including against subsequent purchasers. Donald J. O’Mara III v. Town of Wappinger, No. USCOA 2 141, 37 ELR 20296 (N.Y. Nov. 15, 2007) (10 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 announced that the 2008 renewable fuel standard for refiners, importers, and certain blenders of gasoline would be 4.66%. 72 FR 66171 (11/27/07).    

GENERAL:

  • The Secretary of the Interior and the National Park Service announced the reestablishment of the National Park System Advisory Board. 72 FR 65766 (11/23/07).
  • The FTC requested public comment on its Guides for the Use of Environmental Marketing Claims. 72 FR 66091 (11/27/07).
  • The FTC announced a public workshop will be held on January 8, 2008, to examine the emerging market for carbon offsets (i.e., greenhouse gas emission reduction products) and renewable energy certificates, and related advertising claims. 72 FR 66094 (11/27/07).

HAZARDOUS & SOLID WASTE:

  • EPA entered into a proposed administrative settlement under CERCLA concerning the Vermiculite Intermountain Superfund site in Salt Lake City, Utah, that requires the settling respondents to perform approximately $3.5 million in cleanup work at the site, pay a total of $541,000 in past and future costs, and record EPA-approved environmental covenants to ensure the continued protection of remedial features at the site. 72 FR 66173 (11/27/07).  

TOXIC SUBSTANCES:

  • EPA, under TSCA §5(h)(1), announced its approval of test marketing exemptions for certain new chemicals. 72 FR 65959 (11/26/07).

WATER:

  • EPA announced the availability and request for comment on the draft 2008 Plan of Action for Reducing, Mitigating, and Controlling Hypoxia in the Northern Gulf of Mexico and Improving Water Quality in the Mississippi River Basin.72 FR 65733 (11/23/07).

WILDLIFE:

  • NOAA-Fisheries announced the initiation of a status review for shortnose sturgeon and solicited information on the status of, and factors and threats affecting, the species. 72 FR 67712 (11/30/07).
  • FWS revised its August 15, 2006, proposal (71 FR 46994) to designate critical habitat for 12 species of Hawaiian picture-wing flies to approximately 9,238 acres in Hawaii. 72 FR 67427 (11/28/07).           
  • NOAA-Fisheries, as a requirement by the Marine Mammal Protection Act, announced the publication of its final List of Fisheries for 2008. 72 FR 66048 (11/27/07).    
  • FWS announced the availability of the draft economic analysis for the proposed critical habitat designation for the San Diego thornmint and amended required determinations for the proposal. 72 FR 66122 (11/27/07).

DOJ NOTICES OF SETTLEMENT:

  • United States v. Aspen Petroleum Products, Inc., No. 07-cv-02382-WYD-BNB (D. Colo. Nov. 14, 2007). Settling CAA defendants must pay a civil penalty of $25,000 and must perform specific injunctive relief if they engage in further activities under the Act. 72 FR 67319 (11/28/07).
  • United States v. Edward Shaw, No. 04-2503-RDR-JPO (D. Kan. Nov. 4, 2007). Due to their inability to pay, CERCLA defendants involved with asbestos contamination at a site near Shallow Water, Kansas, will not be held financially responsible for the reimbursement of response costs incurred at the site. 72 FR 67319 (11/28/07).
  • United States v. Wilhelm Enterprises Corp., No. 07-CV-765 (W.D.N.Y. Nov. 13, 2007). Settling CERCLA defendants must pay a total of $511,000 (plus interest) in reimbursement of response costs incurred at the Peter Cooper Superfund site located in Cattaraugus County, New York, and must finance and perform the remedy selected by EPA for the site at an estimated cost of $1.3 million. 72 FR 67319 (11/28/07).
  • United States v. American Standard Inc., No. 1:07 CV 05334 (RBK)(D.N.J. Nov. 8, 2007). Settling performing CERCLA defendants must pay the United States $156,680 for past costs, must pay the state plaintiffs $1,300,000 for past costs, must pay $175,898 for state natural resource damages, and must perform Phase 1 of the remedial action for the Martin Aaron Superfund site located in Camden, New Jersey, that primarily consists of soils remediation work; in addition, settling non-performing CERCLA defendants must pay approximately $5,504,000 to offset the costs of the work. 72 FR 65766 (11/23/07).    
  • In re Asarco LLC, No. 05-21207 (Bankr. S.D. Tex. Oct. 31, 2007). In a proposed Settlement Agreement under CERCLA, the United States shall have an allowed general unsecured claim of $4,050,000 with respect to the Golinsky Mine Superfund site. 72 FR 65767 (11/23/07).
  • In re Asarco LLC, No. 05-21207 (Bankr. S.D. Tex. Oct. 31, 2007). In a proposed Settlement Agreement under CERCLA, the United States shall have an allowed general unsecured claim of $5,000,000 with respect to the Azurite Mine Superfund site located in Whatcom County, Washington. 72 FR 65767 (11/23/07).
  • United States v. Groveland Resources Corp., No. 07-12120 (PBS) (D. Mass. Nov. 9, 2007). Settling CERCLA defendants must pay 100% of the net sale or net lease proceeds in the event their property on the Groveland Wells Nos. 1 & 2 Superfund site located in the Town of Groveland, Massachusetts, is sold or leased and must impose certain institutional controls or dead restrictions on the site. 72 FR 65768 (11/23/07).
  • United States v. Powerine Oil Co., No. 2:04-cv-6435 (C.D. Cal. Nov. 6, 2007). Settling CERCLA defendants involved with the release and/or threatened release of hazardous substances at and from the Waste Disposal Incorporated Superfund site in Santa Fe Springs, California, the Operating Industries Superfund site in Monterey Park, California, and the Casmalia Resources Superfund Site in Casmalia, California, must pay a total of $1,450,000 for reimbursement of the costs incurred at the sites. 72 FR 65768 (11/23/07).
  • United States v. County of San Bernardino, California, No. 5:07-cv-01454-SGL-op (C.D. Cal. Nov. 2, 2007). A settling CERCLA defendant must pay $11 million for past and future response costs incurred and to be incurred at the Newmark Groundwater Contamination Superfund site located in San Bernardino County, California. 72 FR 65769 (11/23/07).    

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

THE CONGRESS

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

Chamber Action

  • H.R. 50 (Multinational Species Conservation Funds Reauthorization Act), which would reauthorize the African Elephant Conservation Act and the Rhinoceros and Tiger Conservation Act of 1994, was passed by the Senate, clearing the measure for the President. 153 Cong. Rec. S14655-56 (daily ed. Nov. 16, 2007).
  • H.R. 465 (Asian Elephant Conservation Reauthorization Act), which would reauthorize the Asian Elephant Conservation Act of 1997, was passed by the Senate, clearing the measure for the President. 153 Cong. Rec. S14656 (daily ed. Nov. 16, 2007).

Committee Action

  • S. 2378 (Roberts, R-Kan)(Cherokee County National Priorities List Site) would authorize the voluntary purchase of certain properties in Treece, Kansas, endangered by the Cherokee County National Priorities List Site. 153 Cong. Rec. S14618 (daily ed. Nov. 16, 2007). The bill was referred to the Committee on Environment and Public Works.
  • S. 2379 (Smith, R-Or.)(grazing leases) would authorize the Secretary of Interior to cancel certain grazing leases on land in Cascade-Siskiyou National Monument that are voluntarily waived by the lessees; provide for the exchange of certain Monument land in exchange for private land; and designate certain Monument land as wilderness. 153 Cong. Rec. S14618 (daily ed. Nov. 16, 2007). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2384 (Salazar, D-Colo.)(multipurpose water project) would authorize the Chief of Engineers to conduct a feasibility study relating to the construction of a multipurpose project in the Fountain Creek watershed located in the State of Colorado. 153 Cong. Rec. S14618 (daily ed. Nov. 16, 2007). The bill was referred to the Committee on Environment and Public Works.

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 Florida Iowa Minnesota Ohio Texas Alaska Georgia Louisiana Montana Oklahoma Virginia Arizona Hawaii Maine New Jersey Rhode Island Washington District of Columbia Illinois Maryland New Hampshire Tennessee Wisconsin

ALABAMA

Toxic Substances:

  • The Department of Environmental Management will conduct a public hearing to consider the adoption of amendments to numerous rules in the Division 335-6 Code concerning USTs. Revisions are being proposed to provide updated regulations to meet the requirements of the Secondary Containment Provisions of the Federal Energy Policy Act of 2005 and other necessary updates. The hearing will be held January 4, 2008. See http://www.adem.state.al.us//PublicNotice/Nov/11Div6.htm

ALASKA

Air:

  • The Department of Environmental Conservation will conduct a public hearing on the proposal to adopt air quality regulation changes in Title 18, Chapter 50 of the Alaska Administrative Code to update federal rules cited in state regulations which have been superseded; to adopt clarifications to existing regulations to fix typos, incorrect references, and internal regulation conflicts; and to make additional changes necessary to clarify the regulations. The hearing will be held January 7, 2008. Comments are due January 7, 2008. See http://notes4.state.ak.us/pn/pubnotic.nsf/1604e1912875140689256785006767f6/c4cee2c1d59bee5f8925739f006ce2eb?OpenDocument

ARIZONA

Water:

  • The Department of Water Resources gives notice that it intends to develop amendments to the language of several existing rules in accordance with Laws 2007, Ch. 240, § 10(B), which requires the director of water resources to amend the rules adopted to implement A.R.S. § 45-108 to include: (1) criteria for making determinations pursuant to section 45-108.03; and (2) criteria for demonstrating a physically available 100-year supply of groundwater or stored water to be recovered outside the area of impact in specific aquifer systems and groundwater basins and subbasins outside of active management areas. See http://www.azsos.gov/public_services/Register/2007/47/docket.pdf (pp. 4146-4147)

DISTRICT OF COLUMBIA

Air:

FLORIDA

Air:

  • The Environmental Regulation Commission will conduct a public hearing to consider the adoption of Rule 62-296.341, Florida Administrative Code, “Regional Haze- Reasonable Progress Control Technology.” This proposed rule addresses air permitting and control technology requirements in support of the “reasonable progress” requirements of the U.S. Environmental Protection Agency’s regional haze regulations. The hearing will be held December 4, 2007. See http://www.dep.state.fl.us/legal/ERC/files/December%204,%202007.pdf

GEORGIA

Water:

  • The Environmental Protection Division of the Georgia Department of Natural Resources proposes an amendment to Georgia’s Rules and Regulations for Water Quality Control, Chapter 391-3-6. Specifically, Rule 391-3-6-.23, “Land Disposal of Septage,” is being amended so Chapter 391-3-6-.23 is consistent with the changes required by HB 463 passed in the 2007 legislative session. The hearing will be held December 17, 2007. Comments are due December 28, 2007. See http://www.gaepd.org/environet/6/notice_20071119.pdf

General:

  • The Board of Natural Resources will conduct a public hearing to consider the adoption of the following additional language to the Board's Vision and Mission: “The Board of Natural Resources will be widely recognized as a public agency that holds as one of its core values a respect for private property rights and strikes a reasonable balance between private property rights and environmental impacts when adopting regulations.” The hearing will be held December 5, 2007. See http://www.gadnr.org/pdf/proposed_mission_vision_amendment.pdf

HAWAII

Fisheries:

  • The Department of Land and Natural Resources will hold public information meetings to discuss proposed changes to administrative rules on bottomfish management (chapter 13-94) and licenses and permits (chapter 13-74). The hearings will be held November 27 - December 13, 2007. See http://www.hawaii.gov/dlnr/chair/pio/HtmlNR/07-N116.htm

ILLINOIS

Fisheries:

  • The Department of Natural Resources is soliciting public comment on proposed amendments to 17 Ill. Adm. Code 810 - Sport Fishing Regulations for the Waters of Illinois. These amendments define snagging and identify which fish can be taken by this method, define individual site-specific fishing regulations referred to by numbers listed in parenthesis in Section 810.45, update the list of site-specific regulations by water area, and update Free Fishing Days for 2008. Comments are due December 31, 2007. See http://www.cyberdriveillinois.com/departments/index/register/register_volume31_issue46.pdf (pp. 15142-15239)

Water:

  • The Illinois Pollution Control Board will conduct public hearings to consider proposed amendments to 35 Ill. Adm. Code 301, 302, 303, and 304, in the matter of Water Quality Standards and Effluent Limitations for the Chicago Area Waterway System and Lower Des Plaines River. The hearings will be held January 28 and March 10, 2008. See http://www.ipcb.state.il.us/documents/dsweb/Get/Document-59430/

IOWA

Climate:

  • The Office of Energy Independence will conduct a public hearing to consider to adoption of rules that would establish the organizational structure and procedures for the Office of Energy Independence, the Iowa Power Fund Board, and the Due Diligence Committee and establish the eligibility requirements, evaluation criteria, and application procedures for financial assistance from the Iowa power fund. The hearing will be held December 18, 2007. Comments are due December 18, 2007. See http://www.legis.state.ia.us/Rules/Current/Bulletin/IAB071121.pdf (pp. 953-963)

Toxic Substances:

LOUISIANA

Air:

  • The Department of Environmental Quality will conduct a public hearing on the proposed revision to the SIP for the Regional Haze Program as required under the CAA, Part C, Section 169, and 40 CFR Part 51.308. The hearing will be held January 24, 2008. Comments are due January 31, 2008. See http://www.doa.la.gov/osr/reg/0711/0711.doc (p. 2522)

Toxic Substances:

  • The Department of Environmental Quality is soliciting comments for the draft proposed rule for secondary containment for UST systems. This draft rule will require owners and/or operators of UST systems to install secondary containment on new installations or replacements of tanks and piping. The rule will require secondary containment for repairs to tanks or piping as defined. Comments are due January 31, 2008. See http://www.doa.la.gov/osr/reg/0711/0711.doc (pp. 2518-2522)

MAINE

Air:

  • The Board of Environmental Protection adopted a new rule, Chapter 150, Control of Emissions from Outdoor Wood Boilers, that establishes requirements for the sale and installation of new outdoor wood boilers, including particulate emission standards, requirements for setback from neighboring properties, a minimum stack height and provisions for the sell-through of existing inventory. This rule became effective November 9, 2007. See http://www.maine.gov/sos/cec/rules/notices/2007/112107.htm
  • The Board of Environmental Protection adopted a new rule, Chapter 121, Emission Limitations and Emission Testing of Resource Recovery Facilities & Maine's 111(d) MWC State Plan for Large and Small Facilities. This rule incorporates federal Clean Air Act requirements for maximum available control technology to limit toxic air emissions from municipal waste combustion. It incorporates a stringent emission limit for mercury emission in Maine beyond that set by the federal standards. This rule became effective November 14, 2007. See http://www.maine.gov/sos/cec/rules/notices/2007/112107.htm

Fisheries:

  • The Department of Marine Resources is soliciting comment on several rule proposals, including the repeal of Ch. 32.20, Elver Fishing License Lottery and the adoption of Ch. 45.05(1)(A)(2), Shrimp Season, 2007– 2008 and Ch. 50.02, Spiny Dogfish, Harvest, Possession and Landing Restrictions – clarification. Comments are due December 28, 2007. See http://www.maine.gov/sos/cec/rules/notices/2007/112807.htm
  • The Department of Marine Resources adopted emergency regulations Ch. 45.05(1)(A)(2), Shrimp Season, 2007 – 2008. These emergency regulations begin the process of establishing the 2007 – 2008 Northern Shrimp season in compliance with the Atlantic States Marine Fisheries Commission Northern Shrimp Fishery Management Plan set November 14, 2007. See http://www.maine.gov/sos/cec/rules/notices/2007/112807.htm

MARYLAND

Fisheries:

MINNESOTA

Water:

  • The Minnesota Pollution Control Agency intends to adopt rules relating to Pretreatment of Wastewater from Industrial Users to be codified in Minnesota Rules Chapter 7049, and revisions to Minnesota Rules Chapter 7001 relating to water quality permitting. MPCA will adopt the rules without a public hearing unless 25 or more persons submit a written request for a hearing on the rules by December 28, 2007, in which case the hearing will be held January 29, 2008. Comments are due December 28, 2007. See http://www.comm.media.state.mn.us/bookstore/stateregister/32_22.pdf (pp. 926-960)

MONTANA

Toxic Substances:

NEW JERSEY

Fisheries:

  • The Department of Environment is soliciting public comment on the proposal to amend N.J.A.C. 7:25-18.16, which would continue the moratorium on the horseshoe crab commercial bait fishery. Comments are due February 1, 2008. See http://www.nj.gov/dep/rules/notices/120307b.html

NEW HAMPSHIRE

Land Use:

  • The Department of Environmental Services will hold a public hearing to consider the adoption of amendments and new rules concerning Fetch, Dock Design, and Aquatic Exotic Plant Control. The proposed amendment to Env-Wt 303.05(e) exempts hand removal of exotic aquatic weeds from having to obtain a permit so long as the specified conditions are met. The proposed amendment to Env-Wt 401.01 clarifies the purpose of Chapter Env-Wt 400 and adds an explicit acknowledgement that wetlands projects must also comply with RSA 483-B, the Comprehensive Shoreland Protection Act. The proposed new rule, Env-Wt 402.02, clarifies that boat slips may be sized to accommodate navigation space. The proposed amendments to Env-Wt 402.05(a) and (m) clarify the criteria for approval of a permanent dock. The hearing will be held December 18, 2007. Comments are due January 3, 2008. See http://www.des.state.nh.us/RuleMaking/notice2007/Env-Wt303.05RMN.pdf

OHIO

Air:

  • The Ohio Environmental Protection Agency will conduct a public hearing on the proposed amendment of Ohio Administrative Code rules 3745- 24-01 and 3745-78-01; Definitions; 3745-24-03, Deadlines for submission of the emission statements; and 3745-78-02, Fee emission reports. The amendments are being proposed to extend the filing deadline for fee emission reports and emissions statements during the calendar year 2008. The hearing will be held January 7, 2008. Comments are due January 7, 2008. See http://www.registerofohio.state.oh.us/pdfs/phn/3745_NO_40196_20071128_0811.pdf

Water:

  • The Ohio Environmental Protection Agency is soliciting public comment on proposed adoption of 3745-42-02 - Applicability, Exemptions and Procedures and proposed repeal of 3745-42-02 - Applicability and Procedures. This rule addresses water pollution control regulations for applicability, exemptions and procedures associated with a wastewater permit to install. Comments are due December 18, 2007. See http://www.registerofohio.state.oh.us/pdfs/phn/3745_NO_39966_20071114_0805.pdf

OKLAHOMA

Water:

  • The Oklahoma Water Resources Board will conduct a public hearing to consider the amendment of 785:1-3-2 - Purpose of the Board in Subchapter 3 - Organization, Meetings and Comprehensive Water Plan and 785:1-11-1 - Complaint evaluation and resolution procedures in Subchapter 11 - Complaints and Complaint Resolution. In addition, the Board will consider the adoption of new rule 785:4-5-1.1 - Mediation in Subchapter 5 - Pre-Hearing Actions and Proceedings. The hearing will be held January 8, 2008. Comments are due January 7, 2008. See http://www.oar.state.ok.us/register/Volume-25_Issue-05.htm#a35588
  • The Oklahoma Water Resources Board will conduct a public hearing to consider the amendment of 785:5-1-6 - Stream water permit application and administration fees and 785: 5-1-10 - Groundwater application and administration fees. The hearing will be held January 8, 2008. Comments are due January 7, 2008. See http://www.oar.state.ok.us/register/Volume-25_Issue-05.htm#a36878
  • The Oklahoma Water Resources Board will conduct a public hearing to consider the amendment of numerous rules in Chapter 20 - Appropriation and Use of Stream Water. The hearing will be held January 8, 2008. Comments are due January 7, 2008. See http://www.oar.state.ok.us/register/Volume-25_Issue-05.htm#a37634
  • The Oklahoma Water Resources Board will conduct a public hearing to consider the amendment of numerous rules and adoption of a new rule in Chapter 30 - Taking and Use of Groundwater. The hearing will be held January 8, 2008. Comments are due January 7, 2008. See http://www.oar.state.ok.us/register/Volume-25_Issue-05.htm#a38944
  • The Oklahoma Water Resources Board will conduct a public hearing to consider the amendment of various provisions in Chapter 45 - Oklahoma's Water Quality Standards. The hearing will be held January 8, 2008. Comments are due January 7, 2008. See http://www.oar.state.ok.us/register/Volume-25_Issue-05.htm#a41502
  • The Oklahoma Water Resources Board will conduct a public hearing to consider the amendment of 785:50-8-5. Rural Economic Action Plan (REAP) Grant Priority Point System in the REAP Grant Program Requirements and Procedures as well as 785:50-9-9 - Definitions and 785:50-9-27 - Types of Assistance in the Clean Water State Revolving Fund Regulations. The hearing will be held January 8, 2008. Comments are due January 7, 2008. See http://www.oar.state.ok.us/register/Volume-25_Issue-05.htm#a42264

RHODE ISLAND

Fisheries

  • The Department of Environmental Management held a public hearing on proposed amendments to the Rhode Island Marine Fisheries Regulations concerning summer flounder quota management proposals and black sea bass quota management proposals. The hearing was held November 27, 2007. See http://www.dem.ri.gov/programs/bnatres/fishwild/pn112707.htm

TENNESSEE

Hazardous & Solid Wastes:

  • The Tennessee Department of Environment and Conservation, Division of Solid Waste Management will conduct a public hearing to consider the adoption of amendments to Chapter 1200-01-07 - Solid Waste Processing and Disposal. The hearing will be held January 23, 2008. Comments are due January 31, 2008. See http://www.tn.gov/sos/rules_hearingnotices/2007/1200/1200.20071030.10-22-07.notice.pdf
  • Tennessee Department of Environment and Conservation, Division of Remediation will conduct a public hearing to receive public comments regarding the promulgation of amendments to Rule Chapter 1200-01-13, Hazardous Substance Remedial Action, pursuant to Tennessee Code Annotated 68-212-201 et. seq., the “Hazardous Waste Management Act of 1983”. The hearing will be held December 19, 2007. Comments are due December 26, 2007. See http://www.tn.gov/sos/rules_hearingnotices/2007/1200/1200.20071030.10-21-07.notice.pdf

Water:

TEXAS

Water:

VIRGINIA

Air:

Water:

  • The State Water Control Board will hold a public hearing to consider the adoption of amendments to 9VAC25-193. General Virginia Pollutant Discharge Elimination System Permit for Concrete Products Facilities. The hearing will be held January 7, 2008. Comments are due January 25, 2008. See http://legis.state.va.us/codecomm/register/vol24/iss06/v24i06.pdf (pp. 684-700)
  • The State Water Control Board has adopted amendments to numerous rules in 9VAC25-20 - Fees for Permits and
    Certificates, 9VAC25-31. Virginia Pollutant Discharge Elimination System Permit Regulation, 9VAC25-32 - Virginia Pollution Abatement Permit Regulation, and 9VAC25-790. Sewage Collection and Treatment Regulations. See http://legis.state.va.us/codecomm/register/vol24/iss06/v24i06.pdf (pp. 700-806)

WASHINGTON

Air:

  • The Department of Ecology is holding a public hearing to receive comment on recommendations the state of Washington is considering submitting to the U.S. EPA. These recommendations are on designations and a nonattainment area for the federal twenty-four-hour standard for fine particulate matter. The hearing will be held December 5, 2007. Comments are due December 10, 2007. See http://apps.leg.wa.gov/documents/laws/wsr/2007/22/07-22-049.htm

Toxic Substances:

  • The Department of Ecology has repealed chapters 173-180A, 173-180B, 173-180C, 173-180D, 317-10, and 173-181 WAC. These rules have been replaced with new chapters 173-180 WAC, Facility Oil Handling Standards and 173-182 WAC, Oil Spill Contingency Planning, and therefore are no longer necessary. See http://apps.leg.wa.gov/documents/laws/wsr/2007/22/07-22-118.htm
  • The Department of Ecology has amended WAC 173-183-320 to change the natural resource damage assessment penalty from $50 to $100 per gallon of oil spilled. The same law also provided a change in definition of oil to include "oils of any kind." This includes biological fuels, such as biodiesel. See http://apps.leg.wa.gov/documents/laws/wsr/2007/22/07-22-119.htm

Water:

WISCONSIN

Air:

  • The Department of Natural Resources will hold public hearings on revisions to chs. NR 405, 407, 408 and 484, Wis. Adm. Code, relating to major source definition and affecting small business. The hearings will be held December 18 and 19, 2007. Comments are due December 21, 2007. See http://www.legis.state.wi.us/rsb/code/register/reg623b.pdf (pp. 18-19)
  • The Department of Natural Resources will hold a public hearing on revisions to chs. NR 460 and 469, Wis. Adm. Code, relating to the NESHAP for halogenated solvent cleaners and the NESHAP general provisions. The hearing will be held January 8, 2008. Comments are due January 11, 2008. See http://www.legis.state.wi.us/rsb/code/register/reg623b.pdf (pp. 19-20)

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

INTERNATIONAL

MALAYSIA CARBON EMISSIONS GROWTH GREATEST IN THE WORLD

  • According to a United Nations report released last week, Malaysia’s carbon emissions increased 221 percent from 1990 to 2004, making the southeast Asian nation the fastest growing emitter in the world. Rapid industrial and automotive development accounts for much of the rise, according to a UN analyst. Malaysia ranks twenty-sixth on the list of global emitters. The number one slot belongs to the United States, which experienced a 25 percent increase in carbon emissions over the same time period. See http://afp.google.com/article/ALeqM5jwUZnnUQmNmUGUJy0XTH01sbwylA

NEW NATURE RESERVE ESTABLISHED IN DEMOCRATIC REPUBLIC OF CONGO

  • The Democratic Republic of Congo (DRC) and conservation groups have collaborated to establish an 11,804 square mile conservation reserve to protect bonobo habitat in the Congo Basin. The endangered bonobo lives only in the DRC, which has suffered from severe humanitarian and environmental consequences of recent civil war. The president of the Bonobo Conservation Initiative described the establishment of the Sankuru Nature Reserve as “a monumental step towards saving a significant portion of the world’s second largest rainforest, of critical importance to the survival not only of humankind’s closest great ape relative, the bonobo, but to all life on Earth given the increasing threat of climate change.” See http://www.worldwatch.org/node/5504

EUROPEAN FISHERMEN MAY FACE STEEP CUT IN COD QUOTA

  • The European Commission’s fisheries conservation committee has recommended a 25 percent decrease in cod fishing allowances next year. After years of heavy fishing, the cod stock is in severe decline in nearly all European waters, and some scientists say that the problem is so critical that the population risks extinction in the region. The only waters in which the cod population has stabilized is the North Sea, where the quota may increase slightly next year. Representatives from European nations will meet this month to negotiate the distribution of the cod allowance by country. See http://www.enn.com/wildlife/article/26062

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

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