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Weekly Update Volume 37, Issue 7

03/05/2007

LITIGATION

ESA, LAND AND RESOURCE MANAGEMENT PLANS, "AGENCY ACTION":

The Tenth Circuit dismissed environmental groups' suit to compel the U.S. Forest Service to consult with the FWS as to whether the national forest land and resource management plans (LRMPs) for the Carson and Santa Fe National Forests may jeopardize the continued existence of a distinct population segment of Canada lynx. The group alleged that "[i]mplementation of the Carson and Santa Fe National Forest LRMPs are 'agency actions'" within the meaning of ESA §7(a)(2). But the standards, guidelines, policies, criteria, land designations, and the like appearing within a LRMP do not constitute "action" requiring consultation under §7(a)(2) of the ESA. Because the group has not alleged any activity, project, or program authorized, funded, or carried out by the Forest Service that might constitute "action" within § 7(a)(2) of the ESA, the Forest Service has no duty to consult with the FWS. Forest Guardians v. Forsgren, No. 05-2181, 37 ELR 20053 (10th Cir. Feb. 23, 2007) (21 pp.).

CWA, NPDES, SOVEREIGN IMMUNITY:

A district court dismissed an environmental group's lawsuit challenging EPA's handling of the NPDES permitting process for a pulp and paper mill in Florida. Although the state possesses the primary authority to issue NPDES permits, EPA retains oversight of the permitting process. The group filed the instant action under the CWA citizen suit provision seeking to force EPA to assume jurisdiction over the permitting process instead of leaving it to the state. The CWA citizen suit provision, however, provides a limited waiver of sovereign immunity for claims "where there is alleged a failure of the [EPA] Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator." Because the CWA, EPA's regulations, and Florida's regulations do no create any tangible duty or proscribe any act that EPA must perform in this situation, the group's claim is barred by sovereign immunity. Sierra Club v. United States Environmental Protection Agency, No. 05-209, 37 ELR 20055 (D.D.C. Feb. 26, 2007) (Sullivan, J.).

ZONING, UNCONSTITUTIONAL RETALIATION:

The Eighth Circuit upheld the dismissal of residents' §1983 suit against county officials for selectively enforcing provisions of the county zoning ordinance against them in retaliation of the residents' public criticism of the county's lax enforcement of environmental and zoning regulations against a housing development. The officials charged that the residents violated the zoning ordinance in making certain shoreline improvements on their property. A plaintiff who seeks relief from valid adverse regulatory action on the ground it was unconstitutional retaliation for First Amendment-protected speech must make the same showing that is required to establish a claim of selective prosecution. That is, he must show that he has been singled out for prosecution while others similarly situated have not been prosecuted for conduct similar to that for which he was prosecuted, and that the government's discriminatory selection of him for prosecution was based upon his exercise of his First Amendment right to free speech. Here, the residents failed to present probative evidence that the county officials have not enforced the zoning ordinance in the same manner against other similarly situated landowners. The lower court, therefore, properly granted summary judgment in favor of the officials. Osborne v. Grussing, No. 06-2021, 37 ELR 20054 (8th Cir. Feb. 26, 2007) (9 pp.).

CALIFORNIA ENVIRONMENTAL QUALITY ACT, MITIGATED NEGATIVE DECLARATION:

A California appellate court upheld a lower court decision denying an environmental group's petition challenging a local board's approval of a development project in Monterey County. The group argued that by approving the project with a mitigated negative declaration (MND) in lieu of an environmental impact report, the board violated the California Environmental Quality Act (CEQA) because the project may contribute to a severe groundwater overdraft in the area. Yet the group failed to cite substantial evidence to support a fair argument of a significant adverse impact. Moreover, the MND is supported by overwhelming, uncontradicted evidence that the project has an ample water supply, and, with mitigation, its potentially adverse impacts to the groundwater supply will be rendered insignificant. Accordingly, the board did not violate CEQA in approving the project with an MND. Landwatch Monterey County v. County of Monterey, No. H028659, 37 ELR 20052 (Cal. App. 6th Dist. Feb. 21, 2007) (39 pp.).

CALIFORNIA ENVIRONMENTAL QUALITY ACT, ENVIROMENTAL IMPACT REPORT:

A California appellate court reversed in part a lower court decision denying a neighborhood association's petition to set aside agreements between a city and developers to build a housing project in West Hollywood. Although HUD approved the developers' application for the project, the lower court concluded that no environmental impact report (EIR) was required under the California Environmental Quality Act (CEQA) because the agreements were not yet legally binding, because they were expressly conditioned on compliance with CEQA, and because the city had not given its final approval of the project. But an EIR is not to be delayed until a "final" decision has been made. Second, the finding that the agreement was "expressly conditioned on compliance with CEQA" indicates a misunderstanding of the EIR review process. That process is intended to be part of the decisionmaking process itself, and not an examination, after the decision has been made, of the possible environmental consequences of the decision. The court, therefore, directed the city to void the agreements and to engage in the EIR process based on the project as described in the HUD application. Save Tara v. City of West Hollywood, No. B185656, 37 ELR 20051 (Cal. App. 2d Dist. Feb. 21, 2007) (25 pp.).

RCRA, INABILITY TO PAY:

An EPA administrative law judge (ALJ) held that it was premature to grant a company's motion for partial accelerated decision on its inability to pay prior to a finding of liability on the merits. EPA sought a proposed penalty of $330,462 against the company for alleged RCRA violations involving tank systems used to store hazardous waste. The company said that "because of its poor financial condition" it "has no ability to pay any civil penalty." The company further asserted that deciding the issue of inability to pay at this stage of the proceedings is consistent with the appropriate legal standards and procedure, and that the submitted evidence shows, as a matter of law, it is unable to pay any penalty. The company, however, misinterpreted the appropriate legal standard. Issues of inability to pay cannot be discussed prior to a determination of liability on the merits. As a result, the ALJ denied the company's motion for partial accelerated decision. In re Crest Industries, Ltd., RCRA No. 05-2005-0024, 37 ELR 47880 (EPA ALJ Jan. 10, 2007) (20 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 adopted controls on gasoline, passenger vehicles, and portable fuel containers (primarily gas cans) that will significantly reduce emissions of benzene and other hazardous air pollutants from mobile sources. 72 FR 8427 (2/26/07).
  • EPA withdrew the direct final rule for NESHAPs for shipbuilding and ship repair surface coating operations published on December 29, 2006 (71 FR 78369). 72 FR 8630 (2/27/07).
  • SIP Approvals: North Dakota (materials incorporated by reference) 72 FR 9263 (3/1/07). Virginia (amendments to volatile organic compound (VOC) and nitrogen oxide (NOx) emissions control areas and VOC and NOx regulations) 72 FR 9441 (3/2/07). West Virginia (update to materials incorporated by reference) 72 FR 8903 (2/27/07).
  • SIP Proposal: Iowa (federal new source review regulations and PSD program) 72 FR 8329 (2/26/07).

HAZARDOUS WASTE:

  • EPA granted final authorization to Idaho's revisions to its hazardous waste program under RCRA. 72 FR 8283 (2/26/07).

MINING:

  • OSM finalized changes to the Tennessee federal regulatory program under SMCRA regarding performance bonds and revegetation success standards. 72 FR 9615 (3/2/07).

WATER:

  • EPA announced the receipt of a petition from Connecticut requesting a determination that adequate facilities for the safe and sanitary removal and treatment of sewage from all vessels are reasonably available for certain state waters. 72 FR 8156 (2/23/07).

WILDLIFE:

  • NOAA-Fisheries announced temporary restrictions that apply to lobster trap/pot and anchored gillnet fishermen in an area east of Portsmouth, New Hampshire; the purpose of this action is to provide protection to an aggregation of northern right whales. 72 FR 9446 (3/2/07).
  • NOAA-Fisheries announced temporary restrictions that apply to lobster trap/pot and anchored gillnet fishermen in an area southeast of Portland, Maine; the purpose of this action is to provide protection to an aggregation of northern right whales. 72 FR 9448 (3/2/07).
  • NOAA-Fisheries proposed to establish an inspection program for modified pound net leaders in the Virginia waters of the mainstem Chesapeake Bay; the action is intended to facilitate compliance with an existing regulation designed to protect threatened and endangered sea turtles. 72 FR 9297 (3/1/07).

DOJ NOTICES OF SETTLEMENT:

  • United States v. Ain, No. 04-2912 (E.D.N.Y. Feb. 12, 2007). A settling RCRA and SDWA defendant must pay a civil penalty of $80,000 for unlawfully injecting fluids into wells on a property located in Town of Hempstead, New York, failing to determine if contaminated soils and sludges were hazardous wastes, and failing to respond adequately to EPA information requests. 72 FR 9359 (3/1/07).
  • United States v. FMC Corp., No. 05- 5663 (E.D. Pa. Feb. 20, 2007). A settling CERCLA defendant must pay $600,000 in past response costs incurred at the East Tenth Street Superfund site in Marcus Hook, Pennsylvania; the United States must pay the defendant $283,779 from the judgment fund, on behalf of the Department of Commerce, the General Services Administration, and any other successors to the War Production Board to resolve potential claims against the United States concerning the site. 72 FR 9359 (3/1/07).

GUIDANCE DOCUMENTS:

  • EPA announced the availability of a draft document titled, "Evaluating Ecological Risk to Invertebrate Receptors From PAHs in Sediments at Hazardous Waste Sites.'' 72 FR 9522 (3/2/07).
  • EPA announced the availability of the draft "Inventory of U.S. Greenhouse Gas Emissions and Sinks: 1990-2005"; the draft is the latest in a series of annual U.S. submissions to the Secretariat of the United Nations Framework Convention on Climate Change. 72 FR 8731 (2/27/07).

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. 644 (Brownfields Redevelopment Enhancement Act), which would facilitate the provision of assistance by HUD for the cleanup and economic redevelopment of brownfields, was passed by the House. 153 Cong. Rec. H1906 (daily ed. Feb. 27, 2007).

BILLS INTRODUCED:

  • S. 684 (Dorgan, D-N.D.) (national parks) would clarify the authority of the Secretary of the Interior with respect to the management of the elk population located in the Theodore Roosevelt National Park. 153 Cong. Rec. S2229 (daily ed. Feb. 26, 2007). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 686 (Lieberman, I-Conn.) (land designation) would amend the National Trails System Act to designate the Washington-Rochambeau Revolutionary Route National Historical Trail. 153 Cong. Rec. S2229 (daily ed. Feb. 26, 2007). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 696 (Baucus, D-Mont.) (energy) would establish an Advanced Research Projects Administration to initiate high risk, innovative energy research to improve the energy security of the United States. 153 Cong. Rec. S2273 (daily ed. Feb. 27, 2007). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 700 (Crapo, R-Ind.) (endangered species) would amend the Internal Revenue Code to provide a tax credit to individuals who enter into agreements to protect the habitats of endangered and threatened species. 153 Cong. Rec. S2355 (daily ed. Feb. 28, 2007). The bill was referred to the Committee on Finance.
  • S. 701 (Clinton, D-N.Y.) (energy) would amend the Internal Revenue Code of 1986 to impose a temporary oil profit fee and to use the proceeds of the fee collected to provide a Strategic Energy Fund and expand certain energy tax incentives. 153 Cong. Rec. S2355 (daily ed. Feb. 28, 2007). The bill was referred to the Committee on Finance.
  • S. 722 (McCain, R-Ariz.) (land use) would direct the Secretary of the Interior and the Secretary of Agriculture to jointly conduct a study of certain land adjacent to the Walnut Canyon National Monument in the state of Arizona. 153 Cong. Rec. S2487 (daily ed. Mar. 1, 2007). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 725 (Levin, D-Mich.) (nuisances) would amend the Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990 to reauthorize and improve that Act. 153 Cong. Rec. S2488 (daily ed. Mar. 1, 2007). The bill was referred to the Committee on Environment and Public Works.
  • S. 728 (Domenici, R-N.M.) (restoration) would authorize the Secretary of the Army to carry out restoration projects along the Middle Rio Grande. 153 Cong. Rec. S2488 (daily ed. Mar. 1, 2007). The bill was referred to the Committee on Environment and Public Works.
  • S. 731 (Salazar, D-Colo.) (carbon dioxide) would develop a methodology for and complete a national assessment of geological storage capacity for carbon dioxide. 153 Cong. Rec. S2488 (daily ed. Mar. 1, 2007). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 741 (Collins, R-Me.) (fisheries) would amend the Magnuson-Stevens Fishery Conservation and Management Act to establish a grant program to ensure waterfront access for commercial fishermen. 153 Cong. Rec. S2488 (daily ed. Mar. 1, 2007). The bill was referred to the Committee on Finance.
  • S. 742 (Murray, D-Wash.) (TSCA) would amend TSCA to reduce the health risks posed by asbestos-containing products. 153 Cong. Rec. S2488 (daily ed. Mar. 1, 2007). The bill was referred to the Committee on Environment and Public Works.
  • H.R. 1191 (Renzi, R-Ariz.) (national parks) would authorize the National Park Service to pay for services rendered by subcontractors under a General Services Administration Indefinite Deliver/Indefinite Quantity Contract issued for work to be completed at the Grand Canyon National Park. 153 Cong. Rec. H1967 (daily ed. Feb. 27, 2007). The bill was referred to the Committee on Natural Resources.
  • H.R. 1205 (Faleomavaega, D-Am. Sam.) (conservation) would reauthorize the Coral Reef Conservation Act of 2000. 153 Cong. Rec. H1967 (daily ed. Feb. 27, 2007). The bill was referred to the Committee on Natural Resources and Committee on Science and Technology
  • H.R. 1210 (Matheson, D-Utah) (land exchange) would authorize the exchange of certain land in Grand, San Juan, and Uintah Counties, Utah. 153 Cong. Rec. H1967 (daily ed. Feb. 27, 2007). The bill was referred to the Committee on Natural Resources.
  • H.R. 1215 (Rogers, R-Mich.) (fuel efficiency) would authorize the Secretary of Energy to make certain loan guarantees for advanced conservation and fuel efficiency motor vehicle technology projects. 153 Cong. Rec. H1968 (daily ed. Feb. 27, 2007). The bill was referred to the Committee on Energy and Commerce and the Committee on Science and Technology.
  • H.R. 1241 (Herger, R-Cal.) (public lands) would establish the Sacramento River National Recreation Area consisting of certain public lands administered by BLM in Tehama and Shasta Counties, California. 153 Cong. Rec. H2038 (daily ed. Feb. 28, 2007). The bill was referred to the Committee on Natural Resources.
  • H.R. 1251 (Simpson, 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. H2038 (daily ed. Feb. 28, 2007). The bill was referred to the Committee on Natural Resources.
  • H.R. 1259 (Smith, D-Wash.) (sustainable design) would increase the use and research of sustainable building design technology. 153 Cong. Rec. H2118 (daily ed. Mar. 1, 2007). The bill was referred to the Committee on Financial Services and Committee on Science and Technology.
  • H.R. 1267 (Gordon, D-Tenn.) (carbon dioxide) would develop a methodology for and complete a national assessment of geological storage capacity for carbon dioxide. 153 Cong. Rec. H2118 (daily ed. Mar. 1, 2007). The bill was referred to the Committee on Natural Resources.
  • H.R. 1270 (Bartlett, R-Md.) (national heritage area) would establish the Journey Through Hallowed Ground National Heritage Area Education and Tourism Act. 153 Cong. Rec. H2118 (daily ed. Mar. 1, 2007). The bill was referred to the Committee on Natural Resources.
  • H.R. 1285 (Hastings, R-Wash.) (land conveyance) would provide for the conveyance of a parcel of National Forest System land in Kittitas County, Washington, to facilitate the construction of a new fire and rescue station. 153 Cong. Rec. H2119 (daily ed. Mar. 1, 2007). The bill was referred to the Committee on Natural Resources.
  • H.R. 1286 (Hinchey, D-N.Y.) (national trails) would amend the National Trails System Act to designate the Washington-Rochambeau Revolutionary Route National Historic Trail. 153 Cong. Rec. H2119 (daily ed. Mar. 1, 2007). The bill was referred to the Committee on Natural Resources.
  • H.R. 1297 (Olver, D-Mass.) (national heritage area) would establish the Freedom's Way National Heritage Area in the states of Massachusetts and New Hampshire. 153 Cong. Rec. H2120 (daily ed. Mar. 1, 2007). The bill was referred to the Committee on Natural Resources.
  • H.R. 1300 (Hoyer, D-Md.) (energy) would reduce the nation's reliance on foreign oil, improve vehicle technology and efficiency, increase the distribution of alternative fuels, bolster rail infrastructure, and expand access to public transit. 153 Cong. Rec. H2120 (daily ed. Mar. 1, 2007). The bill was referred to the Committees on Energy and Commerce, Armed Services, Oversight and Government Reform, Rules, Science and Technology, Ways and Means, House Administration, and Transportation and Infrastructure.
  • H.R. 1304 (Udall, D-Colo.) (energy) would amend the Energy Policy Act of 2005 to authorize discounted sales of royalty oil and gas taken in kind from a federal oil or gas lease to provide additional resources to federal low-income energy assistance programs. 153 Cong. Rec. H2120 (daily ed. Mar. 1, 2007). The bill was referred to the Committee on Natural Resources.
  • H. Res. 196 (Blumenauker, D-Or.) (water) would support the goals and ideals of World Water Day. 153 Cong. Rec. H1968 (daily ed. Feb. 27, 2007). The resolution was referred to the Committee on Foreign Affairs.
  • H. Res. 197 (Engel, D-N.Y.) (climate change) would commend Vice President Al Gore on his recognition for the Academy Award-winning documentary, "An Inconvenient Truth". 153 Cong. Rec. H1968 (daily ed. Feb. 27, 2007). The resolution was referred to the Committee on Oversight and Government Reform.
  • H. Res. 207 (Dingell, D-Mich.) (energy) would provide amounts for the expenses of the Committee on Energy and Commerce in the One Hundred Tenth Congress. 153 Cong. Rec. H2121 (daily ed. Mar. 1, 2007). The resolution was referred to the Committee on House Administration.

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:

Alaska Hawaii New Jersey Utah California Indiana New Mexico Virginia Colorado Iowa Ohio Washington Delaware Maine South Carolina   Florida Massachusetts Tennessee   Georgia New Hampshire Texas  

ALASKA

Water:

  • The Department of Environmental Conservation has amended the Alaska Clean Water and the Alaska Drinking Water Intended Use Plans for State Fiscal Year 2007. The Intended Use Plans set out the Department's strategy to loan funds made available under the CWA and the SDWA for the purpose of planning, designing, and constructing sanitation and drinking water facilities. This strategy includes Priority Lists, Criteria Systems, and provisions for bypassing projects not prepared to accept funding in a timely manner. See http://notes4.state.ak.us/pn/pubnotic.nsf/1604e1912875140689256785006767f6/eb97feb7cc0e2e608925728900087633?OpenDocument

General:

CALIFORNIA

Hazardous and Solid Waste:

  • The Department of Conservation, Division of Recycling, is soliciting public comment on the proposal to adopt amendments to the California Code of Regulations Subchapter 4, Chapter 5, Division 2, Title 14 - Distributor Administrative Fee. Comments are due April 23, 2007. See http://www.oal.ca.gov/notice/8z-2007.pdf (p. 343)

Wildlife:

  • The Department of Fish and Game will hold a public hearing on the proposal to amend Sections 1.74, 29.15, 116, Subsections 300(a)(1)(D)5, 551(j), and Section 704, and to add Section 700.5, Title 14, California Code of Regulations, relating to Establishment of the Automated License Data System. This package seeks to change existing regulations that are too specific and limit the Department to the current manual system. The hearing will be held April 13, 2007. Comments are due April 6, 2007. See http://www.oal.ca.gov/notice/8z-2007.pdf (p. 348)

COLORADO

Air:

  • The Air Quality Control Commission will hold a public rulemaking hearing to consider program changes provided for by the General Assembly in 2006 House Bill 1177. The Air Pollution Control Division will present a proposal to require exams for Air Monitoring Specialists; to allow the Division to administratively establish certification renewal periods and re-test requirements; and to apply the regulation consistently over all types of buildings. The hearing will be held June 21, 2007. Comments are due June 7, 2007. See http://www.cdphe.state.co.us/op/aqcc/aqccdown/junereg8notice.pdf
  • The Air Quality Control Commission will hold a public rulemaking hearing to consider a proposal to modify the criteria for clean screening motor vehicles under the Inspection/Monitoring Program. The hearing will be held June 21, 2007. Comments are due June 7, 2007. See http://www.cdphe.state.co.us/op/aqcc/aqccdown/junereg11notice.pdf

DELAWARE

Fisheries:

FLORIDA

Water:

  • The Suwannee River Water Management District has proposed amendments to update sections 4.1020, 4.1090, and 4.3030 of Chapter 40B-4, Florida Administrative Code, to adopt the most current version of the items incorporated by reference. The effect of the proposed rule amendments will update the language and incorporate the new flood insurance studies for the Suwannee River and its tributaries. See http://faw.dos.state.fl.us/newfaw/FAWVOLUMEFOLDERS2007/3308/3308.html (p. 828)
  • The St. Johns River Water Management District has proposed an amendment to 40C-1.106, Interagency Agreements; 40C-4.091, Publications Incorporated by Reference; and 40C-4.302, Additional Conditions for Issuance of Permits. The purpose and effect of this proposed rule amendment is to incorporate by reference an amended operating agreement between the St. Johns River Water Management District and the Department of Environmental Protection regarding regulatory responsibilities under Part IV, Chapter 373, F.S. The operating agreement addresses the division of responsibilities between the two agencies for permitting, compliance, enforcement, and for wetland determinations. See http://faw.dos.state.fl.us/newfaw/FAWVOLUMEFOLDERS2007/3308/3308.html (p. 829)

GEORGIA

Air:

  • The Georgia Department of Natural Resources will hold a public hearing on proposed amendments to Georgia's SIP. The proposed SIP revision incorporates the requirements of CAA Section 110(a)(2)(D)(i) for eight-hour ozone and PM2.5 NAAQS. This revision includes Georgia Air Quality Control Rules 391-3-1- .02(12) and 391-3-1-.02(13) (proposed separately), which implement the requirements of the federal Clean Air Interstate Rule. The hearing will be held March 20, 2007. Comments are due March 23, 2007. See http://www.gaepd.org/environet/1/20070216_Public_Notice.pdf

HAWAII

Fisheries:

  • The Department of Land and Natural Resources Office of Conservation and Coastal Lands will host two coastal land use policy workshops for landowners, planners, regulators, developers, and the general public.  Topics will cover sea-level rise, erosion, shoreline certifications, landscaping, dune restoration, beach nourishment, emergency erosion control, hazard mitigation, setbacks, jurisdictions, and more. The workshops will be held March 2 and 9, 2007. See http://www.hawaii.gov/dlnr/occl/.  
  • The Western Pacific Fishery Management Council and the National Marine Fisheries Service are soliciting public comment on proposed amendments to the Bottomfish and Seamount Groundfish Fishery Management Plan that would prohibit recreational and commercial fisherman from targeting, possessing, landing, or selling any of the "deep 7 bottomfish species" (onaga, opakapaka, ehu, lehi, gindai, kalekale, and hapuupuu) from federal waters around Penguin Bank and Middle Bank. Comments are due March 9, 2007. See http://www.state.hi.us/health/oeqc/notice/current_issue.pdf (p. 15)

INDIANA

Water:

  • The Indiana Department of Environmental Management is soliciting public comment on the development of a new rule to modify the procedures for obtaining a variance from water quality-based effluent limits (WQBELs) so that Indiana rules are consistent with federal regulations and Senate Enrolled Act (SEA) 620 (P.L. 54-2005). The agency also seeks comment on the development of a new rule to streamline the process for obtaining a variance from the WQBELs for chloride from permitted NPDES dischargers. Comments are due March 30, 2007. See http://www.in.gov/legislative/register/20070228-IR-327070142FNA.xml.html

IOWA

Air:

  • The Environmental Protection Commission have amended Chapter 21, Compliance; Chapter 22, Controlling Pollution; Chapter 23, Emission Standards for Contaminants; Chapter 25, Measurement of Emissions; Chapter 33, Special Regulations and Construction Permit Requirements for Major Stationary Sources--Prevention of Significant Deterioration (PSD) of Air Quality; and Chapter 34, Provisions for Air Quality Emissions Trading Programs, Iowa Administrative Code. The purpose of the amendments is to adopt into the state air quality rules several federal regulations that U.S. EPA recently finalized. The amendments also include clarifications and corrections to state air quality rules for variances and for the operating permit program requirements. See http://www.legis.state.ia.us/Rules/Current/Bulletin/IAB070228.pdf (p. 1157)

Water:

  • The Environmental Protection Commission announced its intent to amend Chapter 64, Wastewater Construction and Operation Permits, Iowa Administrative Code. The proposed amendments to Chapter 64 would reissue General Permit Nos. 1, 2, and 3, which authorize the discharge of storm water. The proposed amendments to Chapter 64 also add a provision to subrule 64.6(6), which requires compliance responsibility transfers to be sent to the Department. See http://www.legis.state.ia.us/Rules/Current/Bulletin/IAB070228.pdf (p. 1120)
  • The Natural Resource Commission has rescinded Chapter 16, Public, Commercial, Private Docks and Dock Management Areas, and adopts new Chapter 16, Docks and Other Structures on Public Waters, Iowa Administrative Code. This new chapter updates and revises the regulation of docks and boat hoists. See http://www.legis.state.ia.us/Rules/Current/Bulletin/IAB070228.pdf (p. 1162)

Wildlife:

  • The Natural Resource Commission has amended Chapter 51, Game Management Areas, Iowa Administrative Code. These amendments are intended to clarify the use of horses on game management areas, prohibit the use of paintball guns on all game management areas, and clarify that handicapped persons may be permitted to use all-terrain vehicles and snowmobiles on game management areas. See http://www.legis.state.ia.us/Rules/Current/Bulletin/IAB070228.pdf (p. 1170)

MAINE

Water:

  • The Department of Environmental Protection has adopted rule number 2007-57, Chapter 378, Variance Criteria for the Excavation of Rock, Borrow, Topsoil, Clay or Silt and the Performance Standards for the Storage of Petroleum Products. Changes to Chapter 378 are intended to: (1) allow the use of doubled walled fuel tanks for secondary containment; (2) update the performance standards for the storage of petroleum products for excavations; and (3) to ensure consistency between regulatory programs by repealing the external drainage standards and submissions required under the Variance rule and replacing them with the standards and submissions contained in the Stormwater Rules, Chapter 500. The new rule became effective February 27, 2007. See http://www.maine.gov/sos/cec/rules/notices/2007/022807.htm

MASSACHUSETTS

Air:

  • The Department of Environmental Protection will hold a public hearing on proposed amendments to 310 CMR 7.00.  These amendments will be proposed as a revision to the Massachusetts SIP. The amendments update the list of Massachusetts cities and towns to reflect changes in regional boundaries; clarify the particulate emissions limits to which engines and turbines are subject; add a new organic material emissions cap (<10 tons per year) to several sections of 310 CMR 7.03 to streamline the process for owners/operators of "small" facilities to limit potential emissions below the Source Registration and annual compliance fee thresholds; and modify the Boiler-Environmental Results Program requirements at 310 CMR 7.26(30)-(37). The hearing will be held March 20-21, 2007. Comments are due March 23, 2007. See http://www.mass.gov/dep/public/blrphn.htm

Hazardous and Solid Waste:

  • The Department of Environmental Protection will hold public hearings on Proposed RCRA Corrective Action Revisions to Massachusetts Hazardous Waste Regulations, 310 CMR 30.000. The hearings will be held March 5, 6, 7, 8, and 9, 2007. Comments are due March 23, 2007. See http://www.mass.gov/dep/public/rcracorr.htm
  • The Department of Environmental Protection will hold public hearings on Proposed Revisions to the Massachusetts Contingency Plan, 310 CMR 40.0000. The proposed amendments are intended to update numerical cleanup standards and strengthen and clarify the performance standards and requirements for the assessment and cleanup of disposal sites. The public hearings will be held March 1, 6, and 13, 2007. Comments are due April 16, 2007. See http://www.mass.gov/dep/public/publiche.htm#aimcp

Toxic Substances:

  • The Massachusetts Department of Environmental Protection is soliciting public comment on Proposed Toxics Use Reduction Amendments, 310 CMR 50.00. The proposed regulatory amendments are intended to implement the statutory changes that affect calendar year 2006 toxics use reports that are due to be filed with the Department by July 1, 2007.  Comments are due March 5, 2007. See http://www.mass.gov/dep/public/turaphn.htm

NEW HAMPSHIRE

Air:

  • The Department of Environmental Services will hold a public hearing on proposed amendments to Rule Env-A 806.05, Recordkeeping Requirements. The proposed amendment would allow any source purchasing a lighter fuel to obtain a written statement from the fuel supplier that the sulfur content of the fuel as delivered does not exceed state or federal standards, in lieu of a record specifying the exact weight percentage of sulfur in the fuel. The hearing will be held March 20, 2007. Comments are due March 30, 2007. See http://www.gencourt.state.nh.us/rules/february-23-07.pdf pp.1, 3

NEW JERSEY

Wildlife:

  • The Department of Environmental Protection will hold a public hearing on the proposal to readopt, with amendments, N.J.A.C. 7:25, Division of Fish and Wildlife Rules.  Proposed amendments are made to subchapter 5 regarding the hunting of deer.  A copy of the proposal is available from the Department's website at http://www.nj.gov/dep/rules/proposals/022007a.pdf. The hearing will be held March 13, 2007. Comments are due April 21, 2007. See http://www.nj.gov/dep/rules/notices/022007a.htm

NEW MEXICO

Air:

  • The New Mexico Environmental Improvement Board will hold a public hearing to consider the matter of EIB 06-17 (R), Proposed Revisions to Air Quality Control Regulations 20.2.99, New Mexico Administrative Code, Conformity to the State Implementation Plan of Transportation Plans, Programs, and Projects. The hearing will be held May 7, 2007. See http://www.nmcpr.state.nm.us/nmregister/xviii/xviii04/EIBnotice.htm

OHIO

Water:

  • The Division of Watercraft will hold a public hearing on proposed amendments to the following rules: 1501:47-1-01, Notice of public hearing to adopt, amend, or rescind rules; 1501:47-1-07, Watercraft Identification; 1501:47-1-08.1, Waiver of watercraft registration certificate fee: eligibility; 1501:47-1-09, Boating accidents; 1501:47-2-03, Definitions for rules; 1501:47-2-01 to 1501:47-2-36 of the Administrative Code; 1501:47-2-31, Seaplanes; 1501:47-2-33, Equipment for sound signals; 1501:47-3-07, Incorporation of state watercraft navigation laws; 1501:47-3-16, No powercraft permitted; 1501:47-3-17, Lakes permitting electric motors only; 1501:47-3-20, Lakes permitting more than 10 horsepower; 1501:47-3-24, Special water ski zones; 1501:47-3-25, Public use docks; and 1501:47-3-29, Boat docking restrictions. Administrative Rules 1501:47-1-01, 1501:47-1-07, 1501:47-1-08.1, and 1501:47-1-09 are being amended to make technical changes in the Ohio Administrative Code; Administrative Rules 1501:47-2-03 and 1501:47-2-31 are being amended to incorporate the federal definition and restrictions for "Wing-in-Ground craft"; Administrative Rule 1501:47-2-33 is being amended to align state sound signal regulations with federal regulations; Administrative Rule 1501:47-3-07 is being rescinded to remove an unnecessary redundancy in state law; and Administrative Rules 1501:47-3-16, 1501:47-3-17, 1501:47-3-20, 1501:47-3-24, 1501:47-3-25, and 1501:47-3-29 are being amended for consistency between state park regulations and state watercraft regulations. The hearing was held March 1, 2007. See http://www.registerofohio.state.oh.us/pdfs/phn/1501$47_NO_35283_20070126_1332.pdf
  • The Director of Environmental Protection will hold a public hearing on the proposal to original file the following rule of the Ohio Administrative Code: Rule No. 3745-520-50, Groundwater monitoring fee. This rule addresses groundwater monitoring fees at construction and demolition debris facilities. The purpose of this rulemaking is to levy a five cent per cubic yard or ten cent per ton fee on the disposal of construction and demolition debris at a construction and demolition debris facility to be used to fund and conduct groundwater monitoring of these facilities by the licensing authority. The hearing will be held March 19, 2007. Comments are due March 19, 2007. See http://www.registerofohio.state.oh.us/pdfs/phn/3745_NO_35521_20070212_1539.pdf

Wildlife:

  • The Ohio Department of Natural Resources, Division of Wildlife, will conduct a public administrative hearing to consider the adoption, amendment, and rescission of a number of Administrative Code rules concerning the taking, possession, management, and protection of wild and captive held animals that are the responsibility of the Division of Wildlife. The proposed rules include but are not limited to the establishment of open and closed seasons; sportfishing; methods of taking; bag and possession limits; management of endangered species; administration of division owned, administered, and leased lands; special permits; sport fishing regulations; reptile and amphibian licensing; and permit regulations. Wild animals include mollusks, crustaceans, aquatic insects, fish, reptiles, and amphibians, wild birds, wild quadrupeds, and all other wild mammals. An electronic copy of the proposed rule is available at the Ohio Legislative Services Commission's internet website at: http://www.registerofohio.state.oh.us/. The hearing will be held March 8, 2007. See http://www.registerofohio.state.oh.us/pdfs/phn/1501$31_NO_35390_20070202_1554.pdf

SOUTH CAROLINA

Fisheries:

  • The Department of Health and Environmental Control has adopted amendment of R. 61-47, Shellfish. The Shellfish Regulation was amended to update the definition of marina to provide consistency with other regulations. This amendment became effective February 23, 2007. See http://www.scdhec.gov/administration/regs/docs/regupdate.doc
  • The Department of Health and Environmental Control will hold a public hearing on proposed amendments to the Department's Coastal Division Regulations 30-1 through 30-18 related to permitting in the critical areas of the coastal zone. These proposed changes would amend definitions, specify the Department's policies regarding construction of docks and piers, and correct technical errors in language and codification for the overall improvement of the regulations. The appeals procedure will also be revised to concur with Act 387 (2006). The proposed changes will provide more clarification to the regulation, enabling Department staff to administer more effectively the regulatory program of the Coastal Division. Legislative review of the proposed amendment will be required. The hearing will be held April 12, 2007. See http://www.scdhec.gov/administration/regs/docs/regupdate.doc

Hazardous and Solid Waste:

  • The Department of Health and Environmental Control amended R.61-79, Hazardous Waste Management Regulations. The Department has adopted these regulations to maintain conformity with federal requirements and standards that affect certain wastewater dyes and the new Hazardous Waste Management Manifest Rule. See http://www.scdhec.gov/administration/regs/docs/regupdate.doc
  • The Department of Health and Environmental Control is amending R.61-79 in order to adopt a federal rule that facilitates the recycling of mercury by including mercury-containing equipment as part of the Universal Waste Rule at R.61-79.273. This rule was published in the Federal Register at 70 FR 45507 on August 5, 2005. See http://www.scdhec.gov/administration/regs/docs/regupdate.doc
  • The Department of Health and Environmental Control is proposing to amend Regulation 61-107, Solid Waste Management, by simultaneously repealing sections 61-107.11, Construction, Demolition, and Land-clearing Debris Landfills; 61-107.13, Municipal Solid Waste Incinerator Ash Landfills; 61-107.16, Industrial Solid Waste Landfills; and 61-107.258, Municipal Solid Waste Landfills, and replacing them with a new Chapter 61-107 section that addresses applicable portions of the repealed sections, as well as other solid waste disposal options. See http://www.scdhec.gov/administration/regs/docs/regupdate.doc

Toxic Substances:

  • The Nuclear Regulatory Commission is soliciting public comment on the proposal to adopt into regulation amendments to R. 61-63 that revise requirements for general licensees, portable gauge licensees, manufacturers, and distributors, and amends the regulations regarding the medical use of radioactive materials (Parts II, III and IV). Comments are due March 26, 2007. See http://www.scdhec.gov/administration/regs/docs/regupdate.doc
  • The Department of Health and Environmental Control will hold a public hearing on the proposal to amend R.61-30 by increasing fees for specific radioactive material licenses, reciprocity licenses, and radioactive waste transportation permits. The increased fees reflect the increase in costs to process licenses and permits. The hearing will be held April 12, 2007. See http://www.scdhec.gov/administration/regs/docs/regupdate.doc
  • The Department of Health and Environmental Control has amended R.61-63 to maintain conformity with federal requirements for Financial Assurance for Material Licensees as found in 10 CFR 30, 40, and 70, and the Transportation Safety Standards as found in 10 CFR 71. These amendments will ensure compliance with federal standards as required by Section 274 of the Atomic Energy Act of 1954. The transportation regulations will be incorporated by reference into R.61-63. See http://www.scdhec.gov/administration/regs/docs/regupdate.doc
  • The Department of Health and Environmental Control has amended R.61-83 to maintain conformity with the federal requirements for Transportation Safety Standards as found in 10 CFR 71. These amendments will ensure compliance with federal standards as required by Section 274 of the Atomic Energy Act of 1954. See http://www.scdhec.gov/administration/regs/docs/regupdate.doc

Water:

  • The Department of Health and Environmental Control has adopted amendments to the State Primary Drinking Water Regulations to include requirements promulgated under the National Primary Drinking Water Regulations: Stage 2 Disinfectants and Disinfection Byproducts Rule. This regulation revision amends the State Primary Drinking Water Regulations to comply with requirements of 40 CFR Parts 141 and 142. See http://www.scdhec.gov/administration/regs/docs/regupdate.doc

TENNESSEE

Hazardous and Solid Waste:

TEXAS

Air:

  • The Texas Commission on Environmental Quality proposes amendments to §§101.1, 101.23, 101.302, 101.306, 101.350, 101.351, 101.353, 101.354, 101.360, 101.372, 101.376, 101.383, and 101.385 and the repeal of §101.22. The amended sections and repeal will be submitted to U.S. EPA as revisions to the Texas SIP relating to Houston-Galveston-Brazoria and Dallas-Fort Worth nonattainment areas and certain SIP definitions. See http://www.sos.state.tx.us/texreg/sos/PROPOSED/30.ENVIRONMENTAL%20QUALITY.html#98

General:

  • The Commission on Environmental Quality is soliciting public comment on a proposed amendment to section 30 TAC 80.108, which will provide the commission with the express authority to direct the executive director to participate as a party in contested case hearings regarding certain permit applications. Comments are due March 26, 2007. See http://www.sos.state.tx.us/texreg/sos/PROPOSED/30.ENVIRONMENTAL%20QUALITY.html#93
  • The Commission on Environmental Quality adopts new §§19.1, 19.3, 19.10, 19.12, and 19.14. The purpose of the rules is to implement U.S. EPA's new Cross Media Electronic Reporting Rule as published in the October 13, 2005, issue of the Federal Register (70 FR 59848), which became effective January 11, 2006. See http://www.sos.state.tx.us/texreg/sos/adopted/30.ENVIRONMENTAL%20QUALITY.html#361

UTAH

Air:

  • The Department of Environmental Quality has proposed a new rule R307-110-20, Section XII, Involvement. The purpose of this amendment is to update Section XII of the Utah SIP to meet the federal transportation conformity consultation requirements found under 42 U.S.C. §7506 and 40 CFR Part 51.390. This amendment documents Utah's current transportation conformity consultation process so it meets the federal requirements. This amendment replaces the current Section R307-110-20 that incorporates by reference a new Section XII, Transportation Conformity Consultation, of the SIP. See http://www.rules.utah.gov/publicat/bulletin/2007/20070301/29514.htm

VIRGINIA

Water:

  • The Department of Environmental Quality will hold the second public meeting on the development of fecal coliform TMDLs for shellfish propagation waters in Westmoreland County. The meeting will be held March 20, 2007. The public comment period begins on March 20, 2007, and ends on April 20, 2007. See http://www.townhall.state.va.us/meeting/ViewMeeting.cfm?Meeting_ID=8883
  • The Department of Environmental Quality will hold a public meeting to discuss the development of a bacteria TMDL for the Banister River watershed in Halifax and Pittsylvania Counties. The meeting will be held March 20, 2007. The public comment period begins on March 20, 2007, and ends on April 20, 2007. See http://www.townhall.state.va.us/meeting/ViewMeeting.cfm?Meeting_ID=8909
  • The Department of Environmental Quality will hold the second series of public meetings on the development of bacteria TMDLs for streams in the Upper Rappahannock River Basin. The hearing will be held March 19, 2007. The public comment period begins on March 19, 2007, and ends on April 18, 2007. See http://www.townhall.state.va.us/meeting/ViewMeeting.cfm?Meeting_ID=8884
  • The Department of Environmental Quality will hold the final public meeting on the development of TMDLs to address impairments in Garden Creek in Buchanan County. The meeting will be held March 22, 2007. The public comment period begins on March 22, 2007, and ends on April 23, 2007.See http://www.townhall.state.va.us/meeting/ViewMeeting.cfm?Meeting_ID=8960
  • The Department of Environmental Quality will hold the first public meeting on the development of dissolved oxygen and fecal coliform bacteria in three shellfish propagation waters located in York County. The meeting will be held March 26, 2007. The public comment period begins on March 26, 2007, and ends on April 25, 2007. See http://www.townhall.state.va.us/meeting/ViewMeeting.cfm?Meeting_ID=8983
  • The Department of Environmental Quality will hold the first public meeting on the development of fecal coliform TMDLs for three shellfish propagation waters in Accomack County; the second series of public meetings on the development of bacteria TMDLs for streams in the Upper Rappahannock River Basin; and a public meeting to receive comments on the notice of intended regulatory action to amend the Water Quality Standards regulation (9 VAC 25-260) to designate portions of the Hazel River as exceptional state resource waters (Tier III). The meeting will be held March 27, 2007. The public comment period begins on March 27, 2007, and ends on April 26, 2007. See http://www.townhall.state.va.us/meeting/ViewMeeting.cfm?Meeting_ID=8984

WASHINGTON

Hazardous and Solid Waste:

  • The Department of Ecology is beginning rulemaking to amend and propose new language in Chapter 173- 900 WAC, Electronic Product Recycling Program, to implement chapter 70.95N RCW, passed by the 2006 legislature. This is Phase 2 of the rulemaking and will focus on writing rules to implement the portions of the law that were not addressed in phase 1. See http://www.ecy.wa.gov/laws-rules/activity/wac173900.html

Water:

  • The Department of Ecology will hold public hearings to receive comments on the proposed amendments to the Walla Walla River Basin rule, Chapter 173-532 WAC. The hearings will be held March 14 and 15, 2007. The comment period closes on March 23, 2007. See http://www.ecy.wa.gov/biblio/0711011.html
  • The Department of Ecology is seeking public comments on the State Environmental Policy Act (SEPA) categorical exemption rules (WAC 197-11-800). Ecology is considering an amendment to the rules because the revised (2005) Construction Stormwater General Permit triggers SEPA review for otherwise exempt "minor new construction" projects. State and local agencies, private developers, and the general public are invited to submit comments on this preproposal for SEPA rulemaking. Comments are due March 16, 2007. See http://www.ecy.wa.gov/pubs/0706011.pdf

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

INTERNATIONAL

SOUTH AFRICA PROPOSES PLAN TO CURB ELEPHANT POPULATION

On February 28, South Africa's Environment Minister, Marthinus van Schalkwyk, proposed a package of measures designed to slow the country's "rampant" elephant population growth. The approximately 20,000 elephants in South Africa have taken a heavy toll on vegetation and other species. This new plan includes contraception and some culling, but no "mass slaughter." Interested parties will have until May 4 to comment on South Africa's proposal, which also includes the creation of special enclosures for elephants and the expansion of parks. See http://www.enn.com/today.html?id=12306

EUROPEAN UNION TO INCREASE PROTECTION FOR BLUEFIN TUNA

The EU's 27 member states are expected to approve cuts in catch quotas for the overfished bluefin tuna within the next few weeks. Recreational fishers will be allowed only one Bluefin per trip, and the use of helicopters to spot the fish by commercial fishermen will be banned. Controllers from one nation will also be allowed to check the catch of another country. This increase follows a meeting in Japan last month where regulators adopted a plan to slow Bluefin decline and reign in illegal fishing. See http://www.iht.com/articles/ap/2007/02/27/europe/EU-GEN-EU-Bluefin-Tuna.php

RUSSIA LAUNCHES FIRST ENERGY AWARENESS CAMPAIGN SINCE 1991

Russia has launched its first energy awareness campaign since the collapse of the Soviet Union. Billboards lining Moscow's street urge citizens to switch to energy saving lightbulbs in order to contribute to Moscow's new energy saving program by cutting power usage. Although the recent ban on incandescent lightbulbs in Australia was prompted by the threat of global warming, Russia's new campaign is "all about conserving energy supplies and nothing to do with the environment," according to the head of the Center for Energy Efficiency. This program comes after a surge in power usage and subsequent shortage after an unusually cold winter last year. See http://www.reuters.com/article/environmentNews/idUSL1313296220070228

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

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