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Weekly Update Volume 37, Issue 5

02/12/2007

LITIGATIONWETLANDS, WATERS OF THE UNITED STATES:A district court, in light of Rapanos v. United States, 126 S. Ct. 2208, 36 ELR 20116 (2006), dismissed a CWA citizen suit against a gun range for discharging lead shot into wetlands and a vernal pond bordering the navigable Farmington River in Connecticut. Applying Justice Scalia's plurality opinion in Rapanos, the court concluded that the wetlands lacked a continuous surface hydrological connection to the river. Although the evidence demonstrated that a surface water connection does at times exist, the citizens offered no evidence showing a continuous connection between the wetlands and the river such that there exists no clear demarcation between waters and wetlands as required by the plurality in Rapanos. And while the parties did not structure their arguments under Justice Kennedy's "substantial nexus" text, the court went on to conclude that there was insufficient evidence showing that "the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity" of the river. Simsbury-Avon Preservation Society, LLC v. Metacon Gun Club, Inc., No. 3:04cv803, 37 ELR 20038 (D. Conn. Jan. 31, 2007) (Arterton, J.) (24 pp.).MISSISSIPPI RIVER-GULF OUTLET, FLOOD CONTROL ACT, FEDERAL TORT CLAIMS ACT:

A district court denied the United States' motion to dismiss residents' consolidated claims for damages stemming from the devastating flooding that occurred in New Orleans after Hurricane Katrina. The residents argued that the damage was the foreseeable consequence of at least two defective conditions known by the U.S. Army Corps of Engineers for decades: (1) the destruction of marshlands surrounding the Mississippi River-Gulf Outlet (MRGO); and (2) MRGO's faulty design. The United States argued that it was immune under the Flood Control Act because the water that caused the damage was "flood waters." The government also asserted immunity under the Act because the damages were caused by flood waters that federal works failed to control. But the residents are not seeking damages for the failure of the levees or flood projects. In fact, they contend that MRGO has absolutely nothing to do with a flood control project. Rather, they are suing for damages caused by MRGO--the decimation of wetlands over a long period of time that created the hazard that resulted in flooding that could not have been controlled by any flood control project. The court also rejected the government's claim that the "due care" and "discretionary function" exceptions to the Federal Tort Claims Act warrant dismissal at this early stage of the litigation. In re Katrina Canal Breaches Consolidated Litigation, No. 05-4182, 37 ELR 20035 (E.D. La. Feb. 2, 2007) (Duval, J.) (34 pp.).

ESA, DISTINCT POPULATION SEGMENTS:

The Ninth Circuit upheld FWS' decision not to classify the western gray squirrel in Washington state as an endangered distinct population segment (DPS) under the ESA. Because the ESA does not expressly define "distinct population segment," FWS and NOAA-Fisheries jointly adopted a policy statement to guide their evaluation of whether a population group should be treated as a DPS. In essence, the policy states that a population qualifies as a DPS if it is both discrete and significant. This policy is not an informal policy statement. Rather, it has been treated as legally binding. Hence, it is entitled to Chevron deference. In addition, the DPS policy is a reasonable construction of the ESA. The policy's requirement that a population be significant to its taxon is not unlawfully restrictive. Lastly, FWS' decision not to classify the species as an endangered DPS was not arbitrary or capricious. Northwest Ecosystem Alliance v. United States Fish & Wildlife Service, No. 04-35860, 37 ELR 20034 (9th Cir. Feb. 2, 2007) (26 pp.).

CWA, CITIZEN SUITS, DILIGENT PROSECUTION:

The Tenth Circuit upheld the dismissal of property owners' CWA citizen suit against several companies for pollution allegedly stemming from the wrongful and illegal construction, reconstruction, operation, and maintenance of numerous oil and gas operations in southeastern Oklahoma. Individuals may bring a citizen suit action under the CWA only where they have given proper notice of the alleged violation to the defendants, the EPA Administrator, and the state in which the alleged CWA violations have occurred; and where the EPA is not already "diligently prosecuting" the same violations. Here, EPA entered into a consent decree with one of the companies concerning essentially the same violations alleged in the property owners' complaint, and its prosecution was "diligent" within the meaning of the Act. In addition, the property owners' notice letters to the remaining defendant companies failed to specify the activities that constituted the alleged violations and the laws that they were allegedly violating. Karr v. Hefner, No. 05-7105, 37 ELR 20036 (10th Cir. Feb. 2, 2007) (31 pp.).

NEPA, ALASKA NATIONAL INTEREST LANDS CONSERVATION ACT:

The Ninth Circuit held that it was appropriate for the NPS to conduct a NEPA analysis prior to granting property owners' request for an access permit under the Alaska National Interest Lands Conservation Act (ANILCA). After the owners' home burned down, the owner sought an access permit so that bulldozers could enter their land to bring in supplies for a new home before "freeze up." The NPS concluded that an EA would be required before it could grant a permit. The owners then filed suit. The district court dismissed the case for lack of subject matter jurisdiction since there was no final agency action. Yet here, the owners challenge an administrative decision that satisfies the "conclusiveness," "separability," and "unreviewability" prongs of the collateral order doctrine. Hence, the court has jurisdiction. As for the merits, the NPS acted reasonably in requiring an EA. There is no per se conflict between NEPA's information-gathering and analysis requirements and ANILCA's requirement of "adequate and feasible access." While a requirement that a NEPA analysis be prepared in connection with a routine permit application might conflict with ANILCA in certain situations, that is not the case here. Pre-freeze up bulldozer use would likely cause significantly more environmental damage than would be caused by the more usual post-freeze up runs. Moreover, the NPS did everything it could to accommodate the owners and to facilitate reasonable access to their property. The owners, on the other hand, refused to cooperate in the process and failed to provide the NPS with the information it needed to grant an appropriate permit. The court, therefore, affirmed the lower court's dismissal of the case, albeit on different grounds. Hale v. Norton, No. 03-36032, 37 ELR 20037 (9th Cir. Feb. 5, 2007) (13 pp.).

INJUNCTIONS, MINNESOTA ENVIRONMENTAL RIGHTS ACT:

The Eighth Circuit remanded for modification an injunction imposed against a corporation for soil and groundwater contamination in Minneapolis, Minnesota. The injunction required the corporation to prevent the release of further contaminants into soil and groundwater; to test for migration and to remedy any migration revealed by those tests; to remedy any remaining contamination exposed during future excavation on the property; and to post a performance bond to secure performance of these obligations. Contrary to the corporation's arguments, the evidence supported the need for relief under the Minnesota Environmental Rights Act, and the district court had the authority to require the corporation to post a performance bond. However, the injunction did not sufficiently specify which acts were required of the corporation. The court therefore remanded the injunction for modification to make the injunction's commands more specific. Kennedy Building Associates v. CBS Corp., No. 06-2371, 37 ELR 20033 (8th Cir. Feb. 2, 2007) (8 pp.).

ESA, ALABAMA STURGEON:

The Eleventh Circuit upheld an FWS rule listing the Alabama sturgeon as endangered. The court rejected claims that the FWS failed to rely on the best scientific data available in its listing decision. Nor did the FWS violate the ESA by listing the species and designating critical habitat in two separate rules. The ESA does not provide a procedural right to have the critical habitat proposal issued at the same time as the listing proposal, or to have the habitat proposed before time runs out for commenting about the listing. Further, to throw out a congressionally mandated listing decision because of the FWS' failure to comply with time limits for making a habitat decision would defeat, not further, congressional intent. Lastly, Congress did not exceed the power granted to it under the Commerce Clause by authorizing protection of the Alabama sturgeon, an intrastate, noncommercial species. Alabama-Tombigbee Rivers Coalition v. Kempthorne, No. 05-17164, 37 ELR 20040 (11th Cir. Feb. 8, 2007) (62 pp.).

CALIFORNIA ENVIRONMENTAL QUALITY ACT, ENVIRONMENTAL IMPACT REPORT:

California's highest court reversed a lower court decision dismissing individuals' claims that a county violated the California Environmental Quality Act (CEQA) in approving community and site-specific plans for a large, mixed-use development project. While the environmental impact report (EIR) prepared for the plans adequately informed decisionmakers and the public of the county's plan for near-term provision of water to the development, it failed to disclose the impacts of providing the necessary supplies in the long term. The EIR identifies the intended water sources in general terms, but it does not clearly and coherently explain, using material properly stated or incorporated in the EIR, how the long-term demand is likely to be met with those sources, the environmental impacts of exploiting those sources, and how those impacts are to be mitigated. In addition, potential impacts on migratory salmon in a certain river, which were disclosed in the Final EIR, should have been incorporated in a revised draft EIR and recirculated for public comment. Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova, No. S132972, 37 ELR 20031 (Cal. Feb. 1, 2007) (59 pp.).

CALIFORNIA ENVIRONMENTAL QUALITY ACT, HISTORIC PRESERVATION:

A California appellate court upheld a lower court order directing a town to set aside its issuance of a permit to Steve Jobs--co-founder and CEO of Apple--to demolish a historic mansion so he could construct a smaller, single family residence. The town council found that the proposed alternatives to the demolition identified in an environmental impact report (EIR) were not feasible and that specific overriding economic, legal, social, technological, and other benefits of the project outweighed the project's significant impacts on the environment. Yet the town's feasibility findings were not supported by substantial evidence. And because the record does not support the council's finding that all of the alternatives included in the EIR are infeasible, the council's statement of overriding circumstances is necessarily invalid. Uphold Our Heritage v. Town of Woodside, No. A113376, 37 ELR 20039 (Cal. App. 1st Dist. Jan. 10, 2007) (19 pp.).

CALIFORNIA ENVIRONMENTAL QUALITY ACT, CONDITIONAL USE PERMIT:

A California appellate court upheld a lower court decision denying a petition for writ of mandate challenging a city's approval of a school playground. School volunteers, unaware that local law required "all school related activities be conducted within the buildings or at neighborhood playgrounds," constructed the outdoor playground on school property. The school then applied for and received a conditional use permit for the playground. Several residents objected and filed the instant petition. Contrary to their allegations, the city did not improperly grant post hoc approval of illegally constructed improvements. Nor did it fail to properly apply and enforce its own land use ordinances. Lastly, the city's environmental review of the project under the California Environmental Quality Act was sufficient. Eureka Citizens for Responsible Government v. City of Eureka, No. A113289, 37 ELR 20032 (Cal. App. 1st Dist. Jan. 8, 2007) (31 pp.).

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

THE FEDERAL AGENCIES

Note: Citations below are to the Federal Register (FR).

AIR:

  • EPA proposed to amend the new source performance standards for electric utility steam generating units and industrial-commercial-institutional steam generating units. 72 FR 6319 (2/9/07).
  • EPA proposed new source performance standards and emission guidelines for hospital/medical/infectious waste incinerators (HMIWI); the proposal responds to the D.C. Circuit's remand of the Agency's 1997 HMIWI rule. 72 FR 5509 (2/6/07).
  • SIP Approvals: Florida (emissions guidelines for small municipal waste combustion units) 72 FR 5940 (2/8/07). West Virginia (minor new source review program amendments) 72 FR 5932 (2/8/07).
  • SIP Proposals: Alaska (air quality regulations) 72 FR 5232 (2/5/07). Florida (emissions guidelines for small municipal waste combustion units; see above for direct final rule) 72 FR 5946 (2/8/07). West Virginia (minor new source review program amendments; see above for direct final rule) 72 FR 5946 (2/8/07).

HAZARDOUS & SOLID WASTE:

  • EPA entered into a proposed administrative settlement under CERCLA concerning the Plantation Heat Treatment Superfund site in North Providence, Rhode Island, that requires the settling party to pay $175,000 to the Hazardous Substance Superfund. 72 FR 6241 (2/9/07).

MINING:

  • OSM approved an amendment to the Texas abandoned mine land reclamation plan under SMCRA; the amendment updates the plan to reflect current practices. 72 FR 5330 (2/6/07).
  • OSM proposed to approve an amendment to Indiana's regulatory program under SMCRA; the revisions concern underground mining reclamation plans, performance bond release, surface mining permanent and temporary impoundments, surface mining primary roads, inspections of sites, and provide a definition for "government-financed construction." 72 FR 5374 (2/6/07).
  • OSM proposed to approve an amendment to Montana's regulatory program under SMCRA concerning civil penalties. 72 FR 5377 (2/6/07).
  • OSM proposed to approve an amendment to Pennsylvania's regulatory program under SMCRA that excludes coal extraction on government-financed construction projects from regulation under the surface coal mining regulations. 72 FR 5380 (2/6/07).

WILDLIFE:

  • FWS established the Western Great Lakes (WGL) distinct population segment (DPS) of the gray wolf, which includes all of Michigan, Minnesota, and Wisconsin; the eastern half of North Dakota and South Dakota; the northern half of Iowa; the northern portions of Illinois and Indiana; and the northwestern portion of Ohio. In addition, the agency removed the WGL DPS from the list of endangered and threatened wildlife due to the increase or stabilization of the species' population. 72 FR 6051 (2/8/07).
  • FWS proposed to establish a DPS of the gray wolf in the Northern Rocky Mountains (NRM) of the United States, which encompasses the eastern one-third of Oregon and Washington, a small part of north-central Utah, and all of Idaho, Montana, and Wyoming; in addition the agency proposed to remove the species in the NRM DPS from the list of endangered and threatened wildlife. 72 FR 6105 (2/8/07).
  • FWS proposed to designate critical habitat in certain areas of Florida, Georgia, and South Carolina for the flatwoods salamander. 72 FR 5855 (2/7/07).
  • FWS proposed to designate critical habitat in Riverside County, California, for the Nevin's barberry. 72 FR 5551 (2/6/07).
  • NOAA-Fisheries announced temporary restrictions for lobster trap/pot and anchored gillnet fishermen in an area east of Portsmouth, New Hampshire, in order to protect an aggregation of northern right whales. 72 FR 5214 (2/5/07).

DOJ NOTICES OF SETTLEMENT:

  • United States v. Duro Textiles, LLC, No. 1:07- cv-10130-GAO (D. Mass. Jan. 25, 2007). A settling CAA and CWA defendant must pay a $480,000 civil penalty, must comply with recordkeeping requirements, and must maintain compliance with the Acts in the future at its Fall River plants in Massachusetts. 72 FR 5997 (2/8/07).
  • United States v. Joyner, No. 3:05-CV-257-M-A (N.D. Miss. Jan. 25, 2007). Settling CERCLA defendants must collectively pay $350,000 in response costs incurred at the Allied Electroplating Superfund site in Eupora, Mississippi. 72 FR 5997 (2/8/07).
  • In re Westwood Chemical Corp., Nos. 05-B-35298, 06-09061 (Bankr. Ct. S.D.N.Y. Jan. 28, 2007). A CERCLA defendant involved in bankruptcy proceedings must disburse the $3 million in proceeds from its sale of the Debtor Westwood Chemical Corporation site in Middletown, New York, as follows: $1.25 million to EPA; $40,000 to the state of New York; $750,000 to a bank; $275,000, collectively, to the town of Wallkill and County of Orange; $62,500 to an individual; $41,750 to a law firm; and the remainder for administrative and court costs. 72 FR 5997 (2/8/07).

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

THE CONGRESS

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

CHAMBER ACTION:

  • H.R. 386 (Yakima-Tieton Irrigation District Conveyance Act of 2007), which would authorize the Secretary of the Interior to convey certain buildings and lands in the Yakima Project, Washington, to the Yakima-Tieton Irrigation District, was passed by the House. 153 Cong. Rec. H1226-27, H1229 (daily ed. Feb. 6, 2007).
  • H.R. 482 (American River Pump Station Project Transfer Act of 2007), which would direct the Secretary of the Interior to transfer ownership of the American River Pump Station Project, was passed by the House. 153 Cong. Rec. H1303 (daily ed. Feb. 7, 2007).
  • H.R. 547 (Advanced Fuels Infrastructure Research and Development Act), which would facilitate the development of markets for alternative fuels and ultra low sulfur diesel fuel through research, development, and demonstrations and data collection, was passed by the House. 153 Cong. Rec. H1350, H1392-93 (daily ed. Feb. 8, 2007).

COMMITTEE ACTION:

  • H.R. 547 (alternative fuel) was reported by the Committee on Science and Technology. H. Rep. No. 110-7, 153 Cong. Rec. H1208 (daily ed. Feb. 5, 2007). The bill would facilitate the development of markets for alternative fuels and ultra low sulfur diesel fuel through research, development, and demonstration and data collection.
  • H. Res. 133 (alternative fuel) was reported by the Committee on Rules. H. Rep. No. 110-9, 153 Cong. Rec. H1342 (daily ed. Feb. 7, 2007). The resolution would facilitate the development of markets for alternative fuels and ultra low sulfur diesel fuel through research, development, and demonstration and data collection.

BILLS INTRODUCED:

  • S. 471 (Hagel, R-Neb.) (land conveyance) would authorize the Secretary of Interior to convey to The Missouri River Basin Lewis and Clark Interpretive Trail and Visitor Center Foundation, Inc. certain federal land associated with the Lewis and Clark National Historic Trail in Nebraska to be used as an historical interpretive site along the trail. 153 Cong. Rec. S1521 (daily ed. Feb. 1, 2007). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 477 (Crapo, R-Idaho) (land conveyance) would authorize the Secretary of the Interior to convey certain land and improvements of the Gooding Division of the Minidoka Project, Idaho. 153 Cong. Rec. S1521 (daily ed. Feb. 1, 2007). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 485 (Kerry, D-Mass.) (CAA) would amend the CAA to establish an economy-wide global warming pollution emission cap-and-trade program to assist the economy in transitioning to new clean energy technologies, to protect employees and affected communities, and to protect companies and consumers from significant increases in energy costs. 153 Cong. Rec. S1521-22 (daily ed. Feb. 1, 2007). The bill was referred to the Committee on Finance.
  • S. 489 (Warner, R-Va.) (green building) would improve efficiency in the federal government through the use of green buildings. 153 Cong. Rec. S1576 (daily ed. Feb. 5, 2007). The bill was referred to the Committee on Environment and Public Works.
  • S. 493 (Boxer, D-Cal.) (land designation) would designate certain public land as wilderness and certain rivers as wild and scenic rivers in the state of California, designate Salmon Restoration Areas, and establish the Sacramento River National Recreation Area and Ancient Bristlecone Pine Forest. 153 Cong. Rec. S1626 (daily ed. Feb. 6, 2007). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 506 (Lautenberg, D-N.J.) (green building) would improve efficiency in the federal government through the use of high-performance green buildings. 153 Cong. Rec. S1627 (daily ed. Feb. 6, 2007). The bill was referred to the Committee on Environment and Public Works.
  • S. 512 (Hatch, R-Utah) (water) would authorize the Secretary of the Interior to study the feasibility of enlarging the Arthur V. Watkins Dam Weber Basin Project, Utah, to provide additional water for the Weber Basin Project to fulfill the purposes for which that project was authorized. 153 Cong. Rec. S1709 (daily ed. Feb. 7, 2007). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 517 (Landrieu, D-La.) (hurricanes) would amend the Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Hurricane Recovery, 2006 to authorize FEMA to provide additional assistance to state and local governments for utility costs resulting from the provision of temporary housing units to evacuees from Hurricane Katrina and other hurricanes. 153 Cong. Rec. S1709 (daily ed. Feb. 7, 2007). The bill was referred to the Committee on Homeland Security and Governmental Affairs.
  • S. 520 (Murray, D-Wash.) (wilderness) would enhance ecosystem protection and the range of outdoor opportunities protected by statute in the Skykomish River valley of the state of Washington by designating certain lower-elevation federal lands as wilderness. 153 Cong. Rec. S1710 (daily ed. Feb. 7, 2007). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 523 (Vitter, R-La.) (hurricanes) would amend the Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Hurricane Recovery, 2006 to authorize FEMA to provide additional assistance to state and local governments for utility costs resulting from the provision of temporary housing units to evacuees from Hurricane Katrina and other hurricanes. 153 Cong. Rec. S1710 (daily ed. Feb. 7, 2007). The bill was referred to the Committee on Homeland Security and Governmental Affairs.
  • S. 524 (Boxer, D-Cal.) (agriculture) would provide emergency agricultural disaster assistance for agricultural producers, manufacturers, and workers in the state of California. 153 Cong. Rec. S1710 (daily ed. Feb. 7, 2007). The bill was referred to the Committee on Agriculture, Nutrition, and Forestry.
  • S. 532 (Hatch, R-Utah) (land conveyance) would require the Secretary of the Interior to convey certain BLM land to Park City, Utah. 153 Cong. Rec. S1781 (daily ed. Feb. 8, 2007). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 533 (Murkowski, R-Alaska) (aquaculture) would amend the National Aquaculture Act of 1980 to prohibit the issuance of permits for marine aquaculture facilities until requirements for the permits are enacted into law. 153 Cong. Rec. S1781 (daily ed. Feb. 8, 2007). The bill was referred to the Committee on Agriculture, Nutrition, and Forestry.
  • S. 536 (Kohl, D-Wis.) (organic food) would amend the Organic Foods Production Act of 1990 to prohibit the labeling of cloned livestock and products derived from cloned livestock as organic. 153 Cong. Rec. S1781 (daily ed. Feb. 8, 2007). The bill was referred to the Committee on Agriculture, Nutrition, and Forestry.
  • S. 541 (Feingold, D-Wis.) (agriculture) would amend the Farm Security and Rural Investment Act of 2002 to promote local and regional support for sustainable bioenergy and biobased products, to support the future of farming, forestry, and land management, and to develop and support local bioenergy, biobased products, and food systems. 153 Cong. Rec. S1781 (daily ed. Feb. 8, 2007). The bill was referred to the Committee on Agriculture, Nutrition, and Forestry.
  • S. 542 (Craig, R-Idaho) (water) would authorize the Secretary of the Interior to conduct feasibility studies to address certain water shortages within the Snake, Boise, and Payette River systems in the state of Idaho. 153 Cong. Rec. S1781 (daily ed. Feb. 8, 2007). The bill was referred to the Committee on Energy and Natural Resources.
  • H.R. 801 (Kirk, R-Ill.) (shipping) would amend the Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990 to require application to all vessels equipped with ballast water tanks, including vessels that are not carrying ballast water, the requirement to carry out exchange of ballast water or alternative ballast water management methods prior to entry into any port within the Great Lakes. 153 Cong. Rec. H1209 (daily ed. Feb. 5, 2007). The bill was referred to the Committee on Transportation and Infrastructure.
  • H.R. 802 (Oberstar, D-Minn.) (pollution) would amend the Act to Prevent Pollution from ships to implement MARPOL Annex VI. 153 Cong. Rec. H1209 (daily ed. Feb. 5, 2007). The bill was referred to the Committee on Transportation and Infrastructure.
  • H.R. 805 (Doyle, D-Pa.) (alternative fuel) would provide incentives for the use of hydrogen fuel. 153 Cong. Rec. H1209 (daily ed. Feb. 5, 2007). The bill was referred to the Committees on Ways and Means, on Transportation and Infrastructure, and on Energy and Commerce.
  • H.R. 807 (Gohmert, R-Tex.) (national parks) would direct the Secretary of the Interior to conduct a special resource study to determine the feasibility and suitability of establishing a memorial to the Space Shuttle Columbia in the state of Texas and for its inclusion as a unit of the National Park System. 153 Cong. Rec. H1209 (daily ed. Feb. 5, 2007). The bill was referred to the Committee on Natural Resources.
  • H.R 809 (Hinchey, D-N.Y.) (eminent domain) would repeal §216 of the Federal Power Act (as added by the Energy Policy Act of 2005) providing for the use of eminent domain authority for the construction of certain electric power lines. 153 Cong. Rec. H1209 (daily ed. Feb. 5, 2007). The bill was referred to the Committee on Energy and Commerce.
  • H.R. 810 (Hinchey, D-N.Y.) (eminent domain) would amend certain provisions of the Federal Power Act added by the Energy Policy Act of 2005 relating to the use of eminent domain authority for the construction of electric power lines. 153 Cong. Rec. H1209 (daily ed. Feb. 5, 2007). The bill was referred to the Committee on Energy and Commerce.
  • H.R. 813 (Gary G. Miller, R-Cal.) (water) would amend the Reclamation Wastewater and Groundwater Study and Facilities Act to authorize the Secretary of the Interior to participate in the Prado Basin Natural Treatment System Project, authorize the Secretary to carry out a program to assist agencies in projects to construct regional brine lines in California, and authorize the Secretary to participate in the Lower Chino Dairy Area desalination demonstration and reclamation project. 153 Cong. Rec. H1210 (daily ed. Feb. 5, 2007). The bill was referred to the Committee on Natural Resources.
  • H.R. 815 (Porter, R-Nev.) (land conveyance) would provide for the conveyance of certain land in Clark County, Nevada, for use by the Nevada National Guard. 153 Cong. Rec. H1210 (daily ed. Feb. 5, 2007). The bill was referred to the Committee on Natural Resources.
  • H.R. 816 (Porter, R-Nev.) (land use) would provide for the release of certain land from the Sunrise Mountain Instant Study Area in the state of Nevada and grant a right-of-way across the released land for the construction and maintenance of a flood control project. 153 Cong. Rec. H1210 (daily ed. Feb. 5, 2007). The bill was referred to the Committee on Natural Resources.
  • H.R. 817 (Price, R-Ga.) (alternative fuel) would provide for the establishment of a working group to identify and advance the development and use of alternative sources for motor vehicle fuels. 153 Cong. Rec. H1210 (daily ed. Feb. 5, 2007). The bill was referred to the Committee on Energy and Commerce.
  • H.R. 823 (Welch, D-Vt.) (greenhouse gases) would authorize federal agencies and legislative branch offices to purchase greenhouse gas offsets and renewable energy credits. 153 Cong. Rec. H1210 (daily ed. Feb. 5, 2007). The bill was referred to the Committee on Oversight and Government Reform and Committees on House Administration and Energy and Commerce.
  • H.R. 824 (Weller, R-Ill.) (alternative fuel) would amend the Internal Revenue Code of 1986 to classify ethanol and biodiesel refining property as seven-year property for purposes of the accelerated cost recovery system. 153 Cong. Rec. H1210 (daily ed. Feb. 5, 2007). The bill was referred to the Committee on Ways and Means.
  • H.R. 825 (Weller, R-Ill.) (renewable fuel) would amend the Internal Revenue Code of 1986 to extend and expand tax incentives for renewable fuels. 153 Cong. Rec. H1210 (daily ed. Feb. 5, 2007). The bill was referred to the Committee on Ways and Means.
  • H.R. 829 (Wolf, R-Va.) (energy) would amend the Federal Power Act to make certain changes in provisions relating to National Interest Transmission Corridors. 153 Cong. Rec. H1210 (daily ed. Feb. 5, 2007). The bill was referred to the Committee on Energy and Commerce.
  • H.R. 830 (Young, R-Alaska) (national parks) would authorize the exchange of certain lands in Denali National Park in the state of Alaska. 153 Cong. Rec. H1210 (daily ed. Feb. 5, 2007). The bill was referred to the Committee on Natural Resources.
  • H.R. 831 (Young, R-Alaska) (land conveyance) would provide for the conveyance of certain Forest Service land to the city of Coffman Cove, Alaska. 153 Cong. Rec. H1210 (daily ed. Feb. 5, 2007). The bill was referred to the Committee on Natural Resources.
  • H.R. 838 (Bishop, R-Utah) (land conveyance) would provide for the conveyance of BLM parcels known as the White Acre and Gambel Oak properties and related real property to Park City, Utah. 153 Cong. Rec. H1270 (daily ed. Feb. 6, 2007). The bill was referred to the Committee on Natural Resources.
  • H.R. 839 (Bishop, R-Utah) (water) would authorize the Secretary of the Interior to study the feasibility of enlarging the Arthur V. Watkins Dam Weber Basin Project, Utah, to provide additional water for the Weber Basin Project to fulfill the purposes for which that project was authorized. 153 Cong. Rec. H1270 (daily ed. Feb. 6, 2007). The bill was referred to the Committee on Natural Resources.
  • H.R. 858 (Melancon, D-La.) (hurricanes) would amend the Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Hurricane Recovery, 2006 to authorize FEMA to provide additional assistance to state and local governments for utility costs resulting from the provision of temporary housing units to evacuees from Hurricane Katrina and other hurricanes. 153 Cong. Rec. H1271 (daily ed. Feb. 6, 2007). The bill was referred to the Committee on Transportation and Infrastructure.
  • H.R. 859 (Salazar, D-Colo.) (national heritage area) would establish the Sangre de Cristo National Heritage Area in the state of Colorado. 153 Cong. Rec. H1271 (daily ed. Feb. 6, 2007). The bill was referred to the Committee on Natural Resources.
  • H.R. 860 (Solis, D-Cal.) (land designation) would designate certain public land as wilderness and certain rivers as wild and scenic rivers in the state of California, designate Salmon Restoration Areas, and establish the Sacramento River National Recreation Area and Ancient Bristlecone Pine Forest. 153 Cong. Rec. H1271 (daily ed. Feb. 6, 2007). The bill was referred to the Committee on Natural Resources.
  • H.R. 865 (Young, R-Alaska) (utilities) would grant rights-of-way for electric transmission lines over certain native allotments in the state of Alaska. 153 Cong. Rec. H1271 (daily ed. Feb. 6, 2007). The bill was referred to the Committee on Natural Resources.
  • H.R. 872 (Braley, D-Iowa) (renewable energy) would authorize the Secretary of Agriculture to make competitive grants to community colleges and advanced technology education centers partnering with community colleges to support the education and training of technicians in the fields of bioenergy and other agriculture-based, renewable energy resources. 153 Cong. Rec. H1342 (daily ed. Feb. 7, 2007). The bill was referred to the Committee on Education and Labor.
  • H.R. 877 (Delahunt, D-Mass.) (national parks) would amend the Adams National Historical Park Act of 1998 to include the Quincy Homestead within the boundary of the Adams National Historical Park. 153 Cong. Rec. H1342 (daily ed. Feb. 7, 2007). The bill was referred to the Committee on Natural Resources.
  • H.R. 885 (Lantos, D-Cal.) (nuclear energy) would support the establishment of an international regime for the assured supply of nuclear fuel for peaceful means and to authorize voluntary contributions to the International Atomic Energy Agency to support the establishment of an international nuclear fuel bank. 153 Cong. Rec. H1343 (daily ed. Feb. 7, 2007). The bill was referred to the Committee on Foreign Affairs.
  • H.R. 886 (Larsen, D-Wash.) (wilderness) would enhance ecosystem protection and the range of outdoor opportunities protected by statute in the Skykomish River valley of the state of Washington by designating certain lower-elevation federal lands as wilderness. 153 Cong. Rec. H1343 (daily ed. Feb. 7, 2007). The bill was referred to the Committee on Natural Resources.
  • H.R. 889 (Miller, R-Mich.) (shipping) would amend the Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990 to establish vessel ballast water management requirements. 153 Cong. Rec. H1343 (daily ed. Feb. 7, 2007). The bill was referred to the Committee on Transportation and Infrastructure and Committee on Natural Resources.
  • H.R. 902 (Udall, D-Colo.) (energy) would facilitate the use for irrigation and other purposes of water produced in connection with development of energy resources. 153 Cong. Rec. H1343-44 (daily ed. Feb. 7, 2007). The bill was referred to the Committee on Natural Resources.
  • H.R. 903 (Udall, D-Colo.) (land use) would provide for a study of options for protecting the open space characteristics of certain lands in and adjacent to the Arapaho and Roosevelt National Forests in Colorado. 153 Cong. Rec. H1344 (daily ed. Feb. 7, 2007). The bill was referred to the Committee on Natural Resources.    
  • H.R. 906 (Udall, D-Colo.) (global change) would promote and coordinate global change research. 153 Cong. Rec. H1344 (daily ed. Feb. 7, 2007). The bill was referred to the Committee on Science and Technology and Committee on Foreign Affairs.
  • H.R. 909 (Bilbray, R-Cal.) (CWA) would amend the CWA and the Beaches Environmental Assessment and Coastal Health Act of 2000 to authorize appropriations for activities to improve the quality of coastal recreation waters. 153 Cong. Rec. H1412 (daily ed. Feb. 8, 2007). The bill was referred to the Committee on Transportation and Infrastructure.
  • H.R. 920 (Taylor, D-Miss.) (flood insurance) would amend the National Flood Insurance Act of 1968 to provide for the national flood insurance program to make available multiperil coverage for damage resulting from windstorms or floods. 153 Cong. Rec. H1413 (daily ed. Feb. 8, 2007). The bill was referred to the Committee on Financial Services.
  • H.R. 921 (Matsui, D-Cal.) (flood insurance) would authorize the Director of FEMA to make grants to communities to be used for outreach efforts to encourage participation in the national flood insurance program. 153 Cong. Rec. H1413 (daily ed. Feb. 8, 2007). The bill was referred to the Committee on Financial Services.
  • H.R. 925 (Nunes, R-Cal.) (agriculture) would provide emergency agricultural disaster assistance for agricultural producers, manufacturers, and workers in the state of California, and appropriate funds for Pacific salmon emergency disaster assistance. 153 Cong. Rec. H1413 (daily ed. Feb. 8, 2007). The bill was referred to the Committee on Agriculture and Committees on the Budget, Natural Resources, and Transportation and Infrastructure.
  • H.R. 926 (Herseth, D-S.D.) (eminent domain) would prohibit the provision of federal economic development assistance for any state or locality that uses the power of eminent domain power to obtain property for private commercial development or that fails to pay relocation costs to persons displaced by use of the power of eminent domain for economic development purposes. 153 Cong. Rec. H1413 (daily ed. Feb. 8, 2007). The bill was referred to the Committees on Agriculture, on Transportation and Infrastructure, on Financial Services, on Natural Resources, and on Education and Labor.
  • H.R. 927 (Burgess, R-Tex.) (alternative fuel) would amend the Internal Revenue Code of 1986 to increase the credit for biodiesel used as a fuel. 153 Cong. Rec. H1413 (daily ed. Feb. 8, 2007). The bill was referred to the Committee on Ways and Means.
  • H.R. 929 (Costello, D-Ill.) (national heritage area) would establish the Land Between the Rivers National Heritage Area in the state of Illinois. 153 Cong. Rec. H1413 (daily ed. Feb. 8, 2007). The bill was referred to the Committee on Natural Resources.
  • H.R. 931 (Costello, D-Ill.) (energy) would provide for the research, development, and demonstration of coal gasification technology as an energy source in ethanol production. 153 Cong. Rec. H1413 (daily ed. Feb. 8, 2007). The bill was referred to the Committee on Science and Technology.
  • H.R. 942 (Eddie Bernice Johnson, D-Tex.) (CAA) would amend the CAA to clarify certain provisions in the NESHAPs to ensure that no major stationary sources of such air pollutants are exempted by EPA rules from compliance with the maximum achievable control technology standard. 153 Cong. Rec. H1414 (daily ed. Feb. 8, 2007). The bill was referred to the Committee on Energy and Commerce.
  • H.R. 944 (LoBiondo, R-N.J.) (oil and gas leasing) would prohibit the Secretary of the Interior from issuing oil and gas leases on portions of the outer continental shelf located off the coast of New Jersey. 153 Cong. Rec. H1414 (daily ed. Feb. 8, 2007). The bill was referred to the Committee on Natural Resources.
  • H.R. 950 (Platts, R-Pa.) (national parks) would authorize the Secretary of the Interior to study the suitability and feasibility of designating Camp Security, located in Springettsbury, Pennsylvania, as a unit of the National Park System. 153 Cong. Rec. H1414 (daily ed. Feb. 8, 2007). The bill was referred to the Committee on Natural Resources.
  • H.R. 969 (Udall, D-N.M.) (renewable energy) would amend title VI of the Public Utility Regulatory Policies Act of 1978 to establish a federal renewable energy portfolio standard for certain retail electric utilities. 153 Cong. Rec. H1415 (daily ed. Feb. 8, 2007). The bill was referred to the Committee on Energy and Commerce.
  • H. Res. 133 (Welch, D-Vt.) (alternative fuel) would provide for consideration of the bill (H.R. 547) to facilitate the development of markets for alternative fuels and ultra low sulfur diesel fuel through research, development, and demonstration and data collection. 153 Cong. Rec. H1344 (daily ed. Feb. 7, 2007).
  • H. Res. 138 (Ross, D-Ariz.) (national parks) would recognize the importance of Hot Springs National Park on its 175th anniversary. 153 Cong. Rec. H1344 (daily ed. Feb. 7, 2007). The resolution was referred to the Committee on Natural Resources.

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

IN THE STATES

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

The states below have updates this week:

Alabama Iowa Nebraska Rhode Island Alaska Louisiana New Hampshire Texas California Maine New Mexico Utah Colorado Maryland New York Virginia Delaware Minnesota North Carolina Washington Georgia Missouri Oregon   Idaho Montana Pennsylvania  

ALABAMA

Hazardous & Solid Wastes:

  • On February 2, the Department of Environmental Management held a public hearing for the purpose of amending Chapters 335-4-1, 335-4-2, 335-4-3, 335-4-4, 335-4-5, 335-4-7, 335-4-8, and 335-4-9 to reflect statutory changes made during the 2006 session of the Alabama Legislature to the Alabama Scrap Tire Environmental Quality Act, Code of Alabama 1975, §22-40A-1 et seq.   The Department is also proposing to correct any typographical errors in the existing regulations and to clarify regulations, as necessary.  Additionally, the Department, in conjunction with the Scrap Tire Commission, is proposing to amend the regulatory requirements governing the use of the Scrap Tire Fund to remediate sites with 25,000 or less accumulated scrap tires. See http://www.adem.state.al.us//PubHearings/12Div4.htm

ALASKA

Land Use:

  • The Alaska Department of Natural Resources, Division of Forestry, gives formal notice under AS 38.05.945 that the Division has made a preliminary decision under AS 38.05.035(e) regarding the following commercial timber sale: Whipple Creek Timber Sale SSE-1283-K. Before this sale may be held, the Director of the Division of Forestry will make a written final decision that the sale is in the best interest of the state. The final decision is expected to be available to the public after March 8, 2007. Comments are due March 7, 2007. See http://notes4.state.ak.us/pn/pubnotic.nsf/1604e1912875140689256785006767f6/00afb795ab5ec12589257276007e6296?OpenDocument

CALIFORNIA

Air:

  • The California Air Resources Board (CARB) will conduct a public hearing to consider adoption of amendments to the Statewide Portable Equipment Registration Program (Statewide PERP) Regulation and the Airborne Toxic Control Measure for diesel–fueled portable engines (Portable Engine ATCM). These proposed amendments would make permanent the emergency regulatory changes to the Statewide PERP Regulation and the Portable Engine ATCM adopted by the Board on December 7, 2006. CARB staff is also proposing some minor revisions that are intended to provide additional clarity and expediency to the implementation of the Statewide PERP Regulation. The hearing will be held March 22, 2007. Comments are due March 21, 2007. See http://www.oal.ca.gov/notice/5z-2007.pdf (p. 18)

COLORADO

Air:

Toxic Substances:

Water:

Wildlife:

DELAWARE

Air:

  • The Department of Natural Resources and Environmental Control proposed to adopt the Delaware Regulation No. 1142, Section 2, Control of Nitrogen Oxide (NOx) Emissions from Industrial Boilers and Process Heaters at Petroleum Refineries. The proposed regulation and the associated NOx emission reductions will be included in Delaware SIP revisions to demonstrate Delaware's capability to make reasonable progress towards attainment, to attain the ozone standard in 2010, and to maintain the ozone standard thereafter. A public hearing will be held March 6, 2007. See http://legis.state.de.us/LIS/Register.nsf/vwRegisters/108/$file/February2007.pdf?openelement

GEORGIA

Air:

  • The Environmental Protection Division proposed amendments to Georgia’s Rules for Air Quality Control, Chapter 391-3-1. The proposed amendments include revisions to: Rule 391-3-1-.01, Definitions, Procedures for Testing and Monitoring Sources of Air Pollutants, to include the most recent revision of the testing and monitoring procedures; Rule 391-3-1-.02(14), Clean Air Mercury Annual Trading Program, to adopt and implement U.S. EPA’s Clean Air Mercury Rule to address interstate transport of mercury emissions from coal-fired electric generating units; Rule 391-3-1-.02(15), Georgia Mercury Trading Rule, to implement an intra-state trading program for mercury emissions from coal-fired electric generating units; Rule 391-3-1-.02(2)(sss), Multipollutant Control for Electric Utility Steam Generating Units, to specify the implementation of specific air pollution control equipment for mercury, sulfur dioxide, and nitrogen oxides emissions from coal-fired electric generating units; and Rule 391-3-1-.02(2)(ttt), Mercury Emissions from New Electric Generating Units, to require the case-by-case review of mercury control technology for new coal-fired electric generating units. Comments are due February 16, 2007. See http://www.gaepd.org/environet/1/camr_notice_20061221.pdf

IDAHO

Air:

  • The Department of Environmental Quality has adopted Rules for the Control of Air Pollution in Idaho (58.01.01). This rulemaking revises the annual assessment and payment of Title V fees. Collection of the fees is authorized by Sections 39-115(3), 39-118D, and 39-119, Idaho Code. The rule will become final and effective upon the adjournment of the First Regular Session of the 59th Idaho Legislature if the rule is approved by concurrent resolution in accordance with Sections 67-5224 and 67-5291, Idaho Code. See http://adm.idaho.gov/adminrules/bulletin/bul/07jan.pdf (p. 293)

Water:

  • The Department of Environmental Quality announced the final decision on the Lindsay Creek Subbasin TMDL. See http://adm.idaho.gov/adminrules/bulletin/bul/07feb.pdf (p. 51)
  • The Department of Environmental Quality adopted 58.01.08, Idaho Rules for Public Drinking Water Systems. The pending rule will become final and effective immediately upon the adjournment of the First Regular Session of the 59th Idaho Legislature unless prior to that date the rule is rejected, amended, or modified by concurrent resolution in accordance with Sections 67-5224 and 67-5291, Idaho Code. See http://adm.idaho.gov/adminrules/bulletin/bul/07jan.pdf (p. 297)
  • The Department of Environmental Quality adopted 58.01.16, Wastewater Rules. The pending rule will become final and effective immediately upon the adjournment of the First Regular Session of the 59th Idaho Legislature unless prior to that date the rule is rejected, amended, or modified by concurrent resolution in accordance with Sections 67-5224 and 67-5291, Idaho Code. See http://adm.idaho.gov/adminrules/bulletin/bul/07jan.pdf (p.313)
  • The Department of Environmental Quality adopted 58.01.17, Rules for the Reclamation and Reuse of Municipal and Industrial Wastewater. The pending rule will become final and effective immediately upon the adjournment of the First Regular Session of the 59th Idaho Legislature unless prior to that date the rule is rejected, amended, or modified by concurrent resolution in accordance with Sections 67-5224 and 67-5291, Idaho Code. See http://adm.idaho.gov/adminrules/bulletin/bul/07jan.pdf (p.320)

IOWA

Air:

  • The Environmental Protection Commission announced its intent to amend Chapter 22, Controlling Pollution, Iowa Administrative Code. The purpose of this rulemaking is to list additional equipment for which no construction permit is required because of low emissions of regulated air pollutants. A public hearing will be held March 9, 2007. Comments are due March 9, 2007. See http://www.legis.state.ia.us/Rules/Current/Bulletin/IAB070131.htm
  • The Environmental Protection Commission announced its intent to amend Chapter 22, Controlling Pollution, Iowa Administrative Code. This rulemaking establishes the process by which the Department will notify the owner or operator of a stationary source of air pollution whether the source is eligible for best available retrofit technology (BART) and whether the source needs to perform a BART analysis.  This rulemaking defines the criteria that establish a BART source’s contribution to regional haze.  The Department will use these criteria as a basis for requiring a BART-eligible source to perform a BART analysis.  A public hearing will be held March 2, 2007. Comments are due March 5, 2007. See http://www.legis.state.ia.us/Rules/Current/Bulletin/IAB070131.htm
  • The Environmental Protection Commission announced its intent to amend Chapter 28, Ambient Air Quality Standards, Iowa Administrative Code. The proposed amendment changes rule 567-28.1(455B) incorporates revisions made by U.S. EPA to the national primary and secondary ambient air quality standards. The Department is proposing this amendment at this time to allow the Department’s air construction permitting and air dispersion modeling staff to modify their review procedures for coarse particulate matter. A public hearing will be held March 5, 2007. Comments are due March 9, 2007. See http://www.legis.state.ia.us/Rules/Current/Bulletin/IAB070131.htm

LOUISIANA

Hazardous & Solid Wastes:

General:

  • The Department of Environmental Quality has amended the Office of the Secretary regulations, LAC 33:I.2001 and 2305 (Log #OS074), Public Record Requests for Legal Documents. This rule clarifies that regulations in LAC 33:I. Chapter 23 for public record requests apply to copies made as a direct result of suit for judicial review of a Department decision (typically a permit decision). See http://www.doa.louisiana.gov/osr/reg/0701/0701RUL.pdf (p. 88)

MAINE

Air:

  • The Department of Environmental Protection is proposing to amend the Ch. 141, Conformity of General Federal Actions, to incorporate recent changes to the federal general conformity regulations that became effective on July 17, 2006. The changes to the federal general conformity rule established fine particulate matter de minimis emission levels for federal actions covered by the general conformity program that are consistent with the 100 tons per year major source threshold for volatile organic compound and nitrogen oxide emissions in subpart 1 areas under the eight-hour ozone implementation strategy. A public hearing will be held March 1, 2007. Comments are due March 12, 2007. See http://www.maine.gov/sos/cec/rules/notices/2007/020707.htm

Toxic Substances:

  • The Department of Agriculture, Food & Rural Resources, Board of Pesticides Control is proposing to amend Ch. 40 to transfer trichlorfon from the limited use list to the restricted use list, and to amend Section 2 of Ch. 41 to delete the historical use restrictions relative to trichlorfon and replace them with new use restrictions pertinent to the present day use of trichlorfon on turf. In addition, the Board is proposing to amend Section 4 of Ch. 41 to exempt purchasers of certain pond dyes from the applicator licensing requirements. Comments are due March 9, 2006. See http://www.maine.gov/sos/cec/rules/notices/2007/020707.htm

MARYLAND

Land Use:

  • On January 8, 2007, the Secretary of the Environment adopted amendments to Regulations .01 through .03, and adopted new Regulations .01-1 and .04 through .07 under COMAR 26.20.10, Areas Where Mining is Prohibited or Limited. This action, which was proposed for adoption in 33:22 Md. R. 1748-1752 (October 27, 2006), has been adopted with the nonsubstantive changes. The amendments go into effect on February 12, 2007. See http://www.dsd.state.md.us/mdregister/3403/main_register.htm

MINNESOTA

Hazardous & Solid Wastes :

MISSOURI

Air:

  • The Department of Natural Resources proposes amendments to 10 CSR 10-5.220, Control of Petroleum Liquid Storage, Loading, and Transfer. This rule restricts volatile organic compound emissions from the handling of petroleum liquids in five specific areas: petroleum storage tanks with a capacity greater than 40,000 gallons; the loading of gasoline into delivery vessels; the transfer of gasoline from delivery vessels into storage containers; gasoline delivery vessels; and the fueling of motor vehicles from storage containers. This amendment exempts initial fueling of motor vehicles at automobile assembly plants from the Missouri Performance Evaluation Test Procedures (MO/PETP) approval test requirements. However, all other requirements of the MO/PETP under this rule will be maintained to ensure that there is no increase of emissions from these facilities. This amendment also clarifies the MO/PETP requirements in the Gasoline Transfer section and incorporates other minor rule text clarifications (e.g. added definitions, language/typographical errors, etc.). A public hearing will be held March 29, 2007. Comments are due April 5, 2007. See http://www.sos.mo.gov/adrules/moreg/current/2007/v32n3/v32n3a.pdf (p. 215)

Hazardous & Solid Wastes:

  • The Department of Natural Resources proposes amendments to 10 CSR 80-8.020, [Waste] Scrap Tire Collection Centers. The Department is amending portions of the rule to reflect revised statutory language in Senate Bill 225 to replace references to “waste tire” with the term “scrap tire.” This amendment will also correct typographical errors, grammatical errors, clarify regulatory exemptions, and update materials referenced in the rule. A public hearing will be held March 6, 2007. Comments are due April 6, 2007. See http://www.sos.mo.gov/adrules/moreg/current/2007/v32n3/v32n3a.pdf (p. 224)

MONTANA

Land Use:

  • The Department of Natural Resources and Conservation has proposed amendment of ARM 36.22.1308, plugging and restoration bonds for wells, and ARM 36.22.1408, financial responsibility. A public hearing will be held February 15, 2007. See http://sos.mt.gov/arm/Register/archives/MAR2007/MAR07-02.pdf (p. 82)

NEBRASKA

Hazardous & Solid Wastes:

  • The Department of Environmental Quality proposes amendments to its Hazardous Waste Regulations, Title 128, Chapters: 001-003, 005-006, 008-014, 020-021, and 026-027. The changes would keep Nebraska current with most federal regulations pertaining to hazardous waste management promulgated through July 2005 and would assist in allowing Nebraska to operate as the record of authority in lieu of U.S. EPA regarding certain hazardous waste issues. A public hearing will be held March 7, 2007. See http://www.sos.state.ne.us/business/regtrack/details.cgi?proposal_id=0000000000000323

NEW HAMPSHIRE

Air:

  • The Department of Environmental Services Division of Air Resources proposed to amend Env-A 502.01, 503.01, and 505.01. The proposed amendments incorporate by reference certain federal new source performance standards (NSPS), NESHAPs, and NESHAPs for specific source categories (Maximum Achievable Control Technology (MACT)). By agreement with the U.S. EPA, New Hampshire’s rule is updated annually to incorporate new federal NSPS, NESHAP, and MACTs that have been promulgated since the last annual update. A public hearing will be held March 6, 2007. Comments are due March 16, 2007. See http://www.des.state.nh.us/RuleMaking/notice2006/Env-A500RMN.pdf
  • The Department of Environmental Services Division of Air Resources proposed to amend Env-A 900, Recordkeeping and Reporting Obligations. The rule will expire on April 23, 2007, unless readopted. The proposed amendments clarify who must keep records and what process and fuel records must be kept. The requirements for fuel-users to keep fuel-sulfur content records are proposed to be amended to lessen the impact on small end-users, providing for the use of an alternative compliance statement instead of requiring that specific information be kept for each fuel delivery. In addition, the proposed amendments add the general reporting requirements for Title V sources that previously have been stated in each permit. A public hearing will be held March 16, 2007. Comments are due March 16, 2007. See http://www.des.state.nh.us/RuleMaking/notice2006/Env-A900RMN.pdf

NEW MEXICO

Air:

  • The New Mexico Environmental Improvement Board is considering adopting a new regulation, 20.2.85 NMAC, Mercury Emission Standards and Compliance Schedules for Electric Generating Units, and making related revisions to 20.2.71 NMAC, Operating Permit Emission Fees; 20.2.77 NMAC, New Source Performance Standards; and 20.2.84 NMAC, Acid Rain Permits. The New Mexico Environment Department proposes to adopt 20.2.85 NMAC to create mercury emission limitations and compliance schedules for electric generating units.In doing so, it proposes to satisfy obligations pursuant to U.S. EPA's Clean Air Mercury Rule.The Department proposes to revise 20.2.71 NMAC to incorporate fees for mercury emission limitations.And it proposes to revise 20.2.77 NMAC to incorporate by reference federal New Source Performance Standards and to revise 20.2.84 NMAC to incorporate definitions added to federal regulations as part of the Clean Air Mercury Rule. A public hearing will be held April 3, 2007. See http://www.nmcpr.state.nm.us/nmregister/xviii/xviii02/EIBnotice.htm
  • The New Mexico Environmental Improvement Board will consider proposed revisions to Air Quality Control Regulations 20.2.78 NMAC, Emission Standards for Hazardous Air Pollutants, and 20.2.82 NMAC, Maximum Achievable Control Technology Standards for Source Categories of Hazardous Air Pollutants. A public hearing will be held April 3, 2007. See http://www.nmcpr.state.nm.us/nmregister/xviii/xviii02/EIBnotice2.htm

Hazardous & Solid Wastes

  • The New Mexico Environment Department proposes to repeal and replace the Solid Waste Management Plan regulations, 20.9.4 NMAC.The Solid Waste Management Plan is intended to provide guidance concerning solid waste disposal issues and to assist waste management decisionmakers, practitioners, and communities.The replacement plan will affectwaste characterization, waste diversion, siting and capacity of solid waste facilities, education, funding for disposal and diversion, and environmental justice. A public hearing will be held April 3, 2007. See http://www.nmcpr.state.nm.us/nmregister/xviii/xviii02/EIBnotice3.htm

NEW YORK

Air:

  • The Department of Environmental Conservation has initiated an emergency rulemaking to amend Part 205 of Title 6 NYCRR, Architectural and Industrial Maintenance Coatings. The intent of the amendment is to achieve the reductions of emissions of volatile organic compounds necessary to demonstrate attainment with the ozone NAAQS. The purpose of the amendment is to end the small manufacturer exemption on December 31, 2006, and to establish a sell-through end date of May 15, 2007, to eliminate the unlimited sell-through of non-complying coatings manufactured before January 1, 2005. See http://www.dos.state.ny.us/info/register/2007/feb7/pdfs/rules.pdf (p. 6)
  • The Department of Environmental Conservation has adopted the Revision to Part 621, Uniform Procedures Concerning Air Pollution. The rule will be effective 30 days after its filling on January 23, 2007. The rule was revised to delete the reference to the federal prevention of significant deterioration regulations. See http://www.dos.state.ny.us/info/register/2007/feb7/pdfs/rules.pdf (p. 10)

NORTH CAROLINA

Air:

  • The Department of Environment and Natural Resources approved numerous amendments to Title 15A of the North Carolina Administrative Code pertaining to air quality, including, but not limited to, 15A NCAC 02D .0524, New source performance standards; 15A NCAC 02D .0605, General recordkeeping and reporting requirements; 15A NCAC 02D .1006, Sale and service of analyzers; 15A NCAC 02D .1111, Maximum achievable control technology; 15A NCAC 02D .2501, Purpose and applicability; 15A NCAC 02D .2503, Mercury emissions; 15A NCAC 02D .2504, Permitting; 15A NCAC 02D .2505, Monitoring, Reporting, and Recordkeeping; 15A NCAC 02D .2508, New source of growth; 15A NCAC 02D .2509, Periodic review and reallocations; 15A NCAC 02D .2510, Trading program and banking; 15A NCAC 02Q .0306, Permits requiring public participation; 15a NCAC 02q .0508, Permit content; and 15A NCAC 02Q .0514, Administrative permit amendments. All the amendments went into effect on January 1, 2007. See http://www.ncoah.com/rules/register/Volume21Issue15February12007-web.doc.
  • The Department of Environment and Natural Resources approved amendments to 15A NCAC 02D .0927, Bulk gasoline terminals, effective January 1, 2007. See http://www.ncoah.com/rules/register/Volume21Issue15February12007-web.doc (p. 1391)
  • The Department of Environment and Natural Resources approved amendments to 15A NCAC 02D .0932, Gasoline truck tanks and vapor collection systems, effective January 1, 2007. See http://www.ncoah.com/rules/register/Volume21Issue15February12007-web.doc (p. 1393)

Hazardous & Solid Wastes:

Land Use:

Water:

OREGON

Water:

  • The Department of Environmental Quality proposes to revise Chapter 340 of the Oregon Administrative Rules (340-045-0075 and 340-071-0130). The proposal has two parts. Part A increases water quality permit fees by 3% and affects all water quality permit holders except for suction dredgers covered by General Permit 700-PM and small onsite septic system permit holders. Part B provides criteria for small onsite septic system permit holders to terminate their permits and operate under permits issued at the county level. Public hearings will be held February 15, 20, 21, 22, and 26, 2007. See http://arcweb.sos.state.or.us/rules/0207_Bulletin/0207_rulemaking_bulletin.html

Wildlife:

  • The Department of Fish and Wildlife proposes to amend Chapter 635, related to the Oregon Coast Coho Conservation Plan. The rules relating to implementation of the Oregon Coast Coho Conservation Plan may be adopted, amended, or repealed as determined necessary by the Oregon Fish and Wildlife Commission. Housekeeping and technical corrections to the regulations relating to hatcheries and harvest opportunities; predators; regulatory programs; water quality; and adaptive management may occur as determined necessary to ensure rule consistency. The Department proposed to adopt rules in 635-007 and 635-500; proposed to amend rules in 635-007 and 635-500; and proposed to repeals rules in 635-007 and 635-500. A public hearing will be held March 16, 2007. See http://arcweb.sos.state.or.us/rules/0207_Bulletin/0207_rulemaking_bulletin.html

PENNSYLVANIA

Air:

  • The Department of Environmental Protection plans to submit a request to U.S. EPA to redesignate the Johnstown Eight-Hour Ozone Nonattainment Area to attainment of the eight-hour ozone NAAQS. The Department is seeking public comment on the eight-hour ozone redesignation request, the 2002 base year inventory, and a SIP revision setting forth a maintenance plan demonstrating that the area can maintain the health-based ozone standard for the next 10 years as required under CAA §175A(a) (42 U.S.C. §7505a). The maintenance plan, once approved by U.S. EPA, will also establish new motor vehicle emission budgets for purposes of transportation conformity. A public hearing will be held March 6, 2007. Comments are due March 9, 2007. See http://www.pabulletin.com/secure/data/vol37/37-5/162.html

RHODE ISLAND

Air:

  • The Department of Environmental Management proposes amendments to Air Pollution Control Regulation No. 34 "Rhode Island Motor Vehicle Inspection/Maintenance Program", the Division of Motor Vehicles regulation "Rhode Island Motor Vehicle Safety and Emissions Control Regulation No. 1", and the SIP. The proposed regulations will align the testing standards for the Rhode Island vehicle inspection program with U.S. EPA standards for on-board diagnostics (OBD) inspections for model year 2001 and newer vehicles. Additionally, the modified regulations would require that the vehicle's malfunction indicator light functionality be checked visually as well as electronically through the OBD computer, as required in U.S. EPA standards. A public hearing will be held March 9, 2007. See http://www.dem.ri.gov/programs/benviron/air/drft341.htm

Water:

  • The Department of Environmental Management (DEM) proposes amendments to the Rules and Regulations Governing the Administration and Enforcement of the Freshwater Wetlands Act and revisions to the Freshwater Wetland Jurisdictional Boundary Maps. The proposed wetland regulations improve the clarity and organization of the current regulations, include provisions and procedures aimed at streamlining applications and processing, and introduce a new simplified application procedure to help homeowners determine whether a permit is required for a new activity or project proposed on their property. In addition, two revisions to the DEM-Coastal Resources Management Council freshwater wetland jurisdictional boundary are proposed in Providence and in Cranston. The informal meeting will be held February 13, 2007. The public hearing will be held March 2, 2007. See http://www.dem.ri.gov/programs/benviron/water/permits/fresh/draftpn.htm

TEXAS

Air:

  • The Texas Commission on Environmental Quality will conduct a public hearing to receive testimony regarding proposed revisions to 30 Texas Administrative Code (TAC) Chapter 114, Control of Air Pollution from Motor Vehicles, Subchapter G, Transportation Planning, §114.260, Transportation Conformity, and to the SIP. The proposed rulemaking would incorporate recent federal transportation conformity revisions into the state’s SIP and rule, including those from the six-year surface transportation reauthorization act of 2005, the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU). In addition to addressing the SAFETEA-LU revisions, the rulemaking would also incorporate previous federal transportation conformity revisions and guidance that include: requesting states to incorporate into SIPs when a regionally significant, nonfederal project is considered adopted or approved by a nonfederal entity; adding transportation-related fine particulate matter precursors to the transportation conformity regulations; and deleting a previous quantitative particulate matter hot-spot analysis. A public hearing will be held March 6, 2007. Comments are due March 12, 2007. See http://www.tceq.state.tx.us/assets/public/legal/rules/hearings/06046114_phn.pdf
  • The Texas Commission on Environmental Quality will conduct public hearings to receive testimony concerning revisions to §115.247 of 30 TAC Chapter 115, Control of Air Pollution from Volatile Organic Compounds. The proposed amendment to §115.247 would exempt facilities used exclusively for the initial fueling and/or re-fueling of vehicles equipped with onboard refueling vapor recover equipment from Stage II requirements in Chapter 115. Public hearings will be held February 27 and 28, 2007. Comments are due March 15, 2007. See http://www.tceq.state.tx.us/assets/public/legal/rules/hearings/06049115_phn.pdf

UTAH

Air:

  • The Department of Environmental Quality has made changes to proposed rule No. 29000: R307-101-2, Definitions. The purpose of this change is to clarify, based on public comments, the definition of "maintenance area" in Section R307-101-2. This change in proposed rule is part of revisions to rules related to the ozone maintenance plan. See http://www.rules.utah.gov/publicat/bulletin/2007/20070201/29000.htm.
  • The Department of Environmental Quality has made changes to proposed rule No. 29001: R307-110-13, Section IX, Control Measures for Area and Point Sources, Part D, Ozone. The purpose of this change is to clarify, based on public comments, certain provisions in the ozone eight-hour maintenance plan of the SIP, which is incorporated by reference in Section R307-110-13. See http://www.rules.utah.gov/publicat/bulletin/2007/20070201/29001.htm
  • The Department of Environmental Quality has made changes to proposed rule No. 29002: R307-320, Ozone Maintenance Areas and Ogden City: Employer-Based Trip Reduction Program. The purpose of this change is to replace, based on public comments, the reference of Salt Lake and Davis Counties in Section R307-320-4 by the term "ozone maintenance area." This change in proposed rule is part of revisions to rules related to the ozone maintenance plan. See http://www.rules.utah.gov/publicat/bulletin/2007/20070201/29002.htm
  • The Department of Environmental Quality has made changes to proposed rule No. 29003: R307-325, Ozone Nonattainment and Maintenance Areas:  General Requirements. The purpose of this change is to clarify language in Rule R307-325 in response to public comments. This change in proposed rule is part of revisions to rules related to the ozone maintenance plan. See http://www.rules.utah.gov/publicat/bulletin/2007/20070201/29003.htm
  • The Department of Environmental Quality has made changes to proposed rule No. 29006: R307-326, Ozone Nonattainment and Maintenance Areas: Control of Hydrocarbon Emissions in Refineries. The purpose of this amendment is to add, based on public comments, the word "petroleum" before the word "refinery" everywhere it occurs in Sections R307-326-1 and R307-326-2. In addition, the Board replaced the term "volatile organic compound" with "VOC" throughout Rule R307-326. See http://www.rules.utah.gov/publicat/bulletin/2007/20070201/29006.htm
  • The Department of Environmental Quality has made changes to proposed rule No. 29004: R307-327, Ozone Nonattainment and Maintenance Areas: Petroleum Liquid Storage. The purpose of this change is to add, based on public comments, the word "petroleum" before the word "refinery" everywhere it occurs in Sections R307-327-1 and R307-327-2. This change in proposed rule is part of revisions to rules related to the ozone maintenance plan. See http://www.rules.utah.gov/publicat/bulletin/2007/20070201/29004.htm
  • The Department of Environmental Quality has made changes to proposed rule No. 29009: R307-340, Ozone Nonattainment and Maintenance Areas:  Surface Coating Processes. The purpose of this change is to replace, based on public comments the term "volatile organic compound" with "VOC" throughout Rule R307-340. In addition, the Board made other minor grammatical correction throughout Rule R307-340. This change in proposed rule is part of revisions to rules related to the ozone maintenance plan. See http://www.rules.utah.gov/publicat/bulletin/2007/20070201/29009.htm
  • The Department of Environmental Quality has made changes to proposed rule No. 29012: R307-343, Ozone Nonattainment and Maintenance Areas:  Emissions Standards for Wood Furniture Manufacturing Operations. The purpose of this change is to make changes throughout Rule R307-343 in response to public comments. This change in proposed rule is part of revisions to rules related to the ozone maintenance plan. See http://www.rules.utah.gov/publicat/bulletin/2007/20070201/29012.htm

VIRGINIA

Water:

  • The Department of Environmental Quality will hold the first public meeting on the development of TMDLS within the Rivanna River Basin in Albemarle, Greene, and Orange Counties on March 15, 2007. The public notice appears in the Virginia Register of Regulations on February 19, 2007. The public comment period begins on March 15, 2006, and ends on April 19, 2007. See http://www.townhall.state.va.us/meeting/ViewMeeting.cfm?Meeting_ID=8814
  • The Department of Environmental Quality will hold a public meeting on the development of TMDLs for the Great Creek Watershed in Mecklenburg County to address bacteria contamination in stream segments in the Watershed on March 8, 2007. The public notice appears in the Virginia Register of Regulations on February 19, 2007. The public comment period begins on March 9, 2007, and ends on April 9, 2007. See http://www.townhall.state.va.us/meeting/ViewMeeting.cfm?Meeting_ID=8825
  • The Department of Environmental Quality will hold the second and final public meeting on the development of fecal coliform TMDLs for shellfish propagation waters in Gloucester County on March 6, 2007. The public notice appears in the Virginia Register of Regulations on February 19, 2007. The public comment period begins on March 7, 2007, and ends on April 5, 2007.  See http://www.townhall.state.va.us/meeting/ViewMeeting.cfm?Meeting_ID=8811
  • The Department of Environmental Quality will hold a public meeting on the development of TMDLs to address bacteria contamination in stream segments in the Flat Rock Creek Watershed located in Lunenburg County on March 6, 2007. The public notice appears in the Virginia Register of Regulations on February 19, 2007. The public comment period begins on March 7, 2007, and ends on April 6, 2007. See http://www.townhall.state.va.us/meeting/ViewMeeting.cfm?Meeting_ID=8826
  • The Department of Environmental Quality will hold the first public meeting on the development of fecal coliform TMDLs for shellfish propagation waters located in Lancaster County on February 27, 2007. The public notice appears in the Virginia Register of Regulations on February 19, 2007. The public comment period begins on February 28, 2007, and ends on March 29, 2007. See http://www.townhall.state.va.us/meeting/ViewMeeting.cfm?Meeting_ID=8824
  • The Department of Environmental Quality will hold a public meeting on the development of TMDLs to address water quality impairments in Indian Creek in Tazewell County on February 22, 2007. The public notice appears in the Virginia Register of Regulations on February 19, 2007. The public comment period begins on February 22, 2007, and ends on March 24, 2007. See http://www.townhall.state.va.us/meeting/ViewMeeting.cfm?Meeting_ID=8839

WASHINGTON

Air:

  • The Department of Ecology is holding a public hearing on including a second ten-year carbon monoxide maintenance plan for Vancouver, Washington, in the state implementation plan. The hearing will be held March 1, 2007. See http://www.leg.wa.gov/documents/wsr/2007/03/07-03-182.htm
  • The Department of Ecology is proposing amendments to the general regulation for air pollution sources, WAC 173-400-030, 173-400-075, 173-400-105, 173-400-110, 173-400-115, 173-400-171, 173-400-710, and 173-400-720, under an expedited rulemaking process. Expedited rulemaking will update the rules to correct some clerical errors in the last rulemaking and remove from the rule provisions of the federal prevention of significant deterioration (PSD) program that have been vacated by a federal court of appeals. This rulemaking also will update the dates of incorporation by reference of several federal rules that are incorporated into the general regulation for air pollution sources. The effect will be to make the regulation more in line with the federal PSD program. See http://www.leg.wa.gov/documents/wsr/2007/03/07-03-184.htm
  • The Department of Ecology is proposing amendments to the ambient air quality standards and emission limits for radionuclides, chapter 173-480 WAC, under an expedited rulemaking process. These changes are made to be consistent with applicable federal regulations. See http://www.leg.wa.gov/documents/wsr/2007/03/07-03-183.htm

Land Use:

  • The Department of Ecology has adopted amendments to the Shoreline Management Act rules to ensure conformity with existing statutes, hearing board cases, court decisions, and federal guidance and to clarify the process for updating shorelines of the state. The Department has initiated the process of updating local shoreline master programs, which will include maps and text that update shorelines of the state (i.e., the area regulated by the act within each city and county). The rule amendment resolves any potential conflict between updated shoreline master programs and the existing rule through specifying that approved updated shoreline master programs will be utilized to delineate shorelines of the state. Effective 31 days after filing on January 2, 2007. See http://www.leg.wa.gov/documents/wsr/2007/02/07-02-086.htm

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

INTERNATIONAL

PROFESSOR DEVELOPS INEXPENSIVE ARSENIC FILTER

A U.S. professor has developed an inexpensive, easy-to-make system for filtering arsenic from drinking water. Dr. Abul Hussam created a system of sand, charcoal, bits of brick, and shards of cast iron in which porous iron forms a chemical bond with arsenic. The invention earned the professor the 2007 Grainger Challenge Prize for Sustainability from the National Academy of Engineering, which established a contest to promote the development of an affordable, reliable, and environmentally friendly solution to the arsenic problem. The prize is accompanied by $1 million, most of which Hussam will use to build and distribute filters in needy communities abroad, where exposure to arsenic causes skin ailments and fatal cancer. See http://www.washingtonpost.com/wp-dyn/content/article/2007/02/03/AR2007020300445.html

CHINA CALLS ON DEVELOPED NATIONS TO LEAD GLOBAL WARMING EFFORTS

China has placed the responsibility to curb greenhouse gas emissions on wealthier countries and has not said whether it will agree to mandatory emissions limits. This is China's first response to last week's release of the landmark U.N. report that declared that immediate action must be taken to prevent the consequences of global warming. Chinese officials note that developed nations have been polluting for a longer time and release higher per capita emissions. The country is currently the world's second largest emitter of greenhouse gases, behind the United States, and is expected to surpass U.S. emissions of carbon dioxide by 2009. See http://www.nytimes.com/2007/02/07/world/asia/07china.html?ref=science

CHAVEZ PROMOTING ENERGY CONSERVATION

Venezuelan President Hugo Chavez, whose social programs are funded by the nation's significant oil wealth, is calling on all nations to cut back on oil consumption to combat global warming. Chavez announced plans to use oil revenue to fund manufacturing of solar panels and to make Venezuela an example of a country in which people drive less, use public transportation, and produce alternative forms of energy. Critics of Chavez's initiatives note that government subsidies make the cost of gasoline in the country 12 cents a gallon and that car sales are booming. See http://www.enn.com/today.html?id=12160

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

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