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Weekly Update Volume 37, Issue 18
THE FEDERAL AGENCIES
IN THE STATES
Leslie Carothers, Publisher
CERCLA, PRPS, COST RECOVERY:
The U.S. Supreme Court held that CERCLA §107(a) provides PRPs with a cause of action to recover costs from other PRPs. This interpretation will not create friction between CERCLA §§107(a) and 113(f). Rather, their two clearly distinct remedies complement each other. CERCLA §113(f)(1) authorizes a contribution action to PRPs with common liability stemming from an action instituted under §106 or §107(a), while §107(a) permits cost recovery (as distinct from contribution) by a private party that has itself incurred cleanup costs. In other words, a party can sue another PRP for contribution under §113(f), but the party can only sue under §107(a) for reimbursement of its own cleanup costs. Thus, at least in the case of reimbursement, a PRP cannot choose §107(a)'s longer statute of limitations for recovery actions over §113(f)'s shorter one for contribution claims. Similarly, a PRP could not avoid §113(f)'s equitable distribution of reimbursement costs among PRPs by instead choosing to impose joint and several liability under §107(a). Consequently, a company that voluntarily cleaned up a site it leased and contaminated while doing government work may sue the government to recover some of its costs under §107(a). Thomas, J., delivered the opinion for a unanimous Court. United States v. Atlantic Research Corp., No. 06-562, 37 ELR 20139 (U.S. June 11, 2007) (13 pp.).
CAA, NESHAPS, SOLID WASTE INCINERATION:
The D.C. Circuit vacated EPA's NESHAPs for industrial, commercial, and institutional boilers and process heaters as well as its definitions rule for commercial and industrial solid waste incineration (CISWI) units. EPA's narrow definition of commercial or industrial waste, as incorporated in the CISWI definitions rule, violates the plain language of CAA §129 and impermissibly constricts the class of solid waste incineration units that are subject to the emission standards of the CISWI rule. The definitions rule, therefore, must be vacated. And given the likelihood (if not certainty) that the NESHAPs for boilers and process heaters will change substantially as a result of the court's vacatur of the challenged CISWI definition, the NESHAPs should also be vacated in their entirety and remanded for EPA to repromulgate after revising the CISWI definitions rule. Natural Resources Defense Council v. Environmental Protection Agency, Nos. 04-1385 et al., 37 ELR 20135 (D.C. Cir. June 8, 2007) (31 pp.).
CAA, NESHAPS, PLYWOOD:
The D.C. Circuit vacated portions of two EPA rules that regulate hazardous air pollution from processing plywood and composite wood products (PCWP). The 2004 rule set emission standards for PCWPs and created a PCWP “low risk” subcategory, pursuant to CAA §112(c)(9)(B), that includes sources that met the statutory criteria and additional requirements, such as annual emissions testing and reporting. The 2006 rule reset the 2004 rule's maximum achievable control technology standard compliance date from October 1, 2007, to October 1, 2008. An environmental group filed suit, challenging EPA’s failure to set emission standards for listed hazardous air pollutants that PCWP plants emit in the 2004 rule. EPA declined to do so on the rationale that these pollutants are not controlled with technology. However, the fact that one form of control does not control emissions does not excuse EPA from finding other means to achieve that result. EPA's interpretation of CAA §112(c)(9) as allowing it to exempt the risk-based subcategory is contrary to the plain language of the statute. In addition, EPA lacked authority to extend the compliance deadline in the 2006 rule because only the 2004 rule created emission standards. Hence, CAA §112(i)(3)(A) requires the compliance date to be set no more than three years after the standard was created. In addition, the environmental group had standing because their members' enjoyment of the outdoors was impeded by emissions from the plywood facilities. Natural Resources Defense Council v. Environmental Protection Agency, No. 04-1323, 37 ELR 20146 (D.C. Cir. June 19, 2007) (Rogers, J.) (19 pp.).
CAA, OZONE NAAQS:
The D.C. Circuit denied petitions for rehearing regarding its previous vacatur and remand of a final 2004 rule implementing the eight-hour ozone NAAQS under the CAA in South Coast Air Quality Management District v. EPA, 472 F.3d 882, 37 ELR 20003 (D.C. Cir. 2006). The petitions challenge the court's interpretation of the statutory gap that arises from EPA's decision to change from a one-hour to an eight-hour measurement system for ozone. The petitions also challenge the court’s construction of the CAA’s anti-backsliding provision. Because none of the challenges have merit, the court denied the petitions. However, the court granted the joint request by EPA and environmental groups to make explicit that the court’s reference to conformity determinations in South Coast speaks only to the use of one-hour motor vehicle emissions budgets as part of eight-hour conformity determinations until eight-hour motor vehicle emissions budgets are available. The court also granted their request that the 2004 rule be vacated only to the extent that the court has sustained challenges to it. Complete vacatur of a partially valid rule would only serve to stall progress where it is most needed. South Coast Air Quality Management District v. Environmental Protection Agency, No. 04-1200, 37 ELR 20136 (D.C. Cir. June 8, 2007) (8 pp.).
CAA, PREVENTION OF SIGNIFICANT DETERIORATION:
The D.C. Circuit denied an environmental group's petition for review of an EPA rule that implemented the prevention of significant deterioration (PSD) program for nitrogen oxides under the CAA. The court remanded an earlier version of the rule in Environmental Defense Fund v. EPA, 898 F.2d 183, 20 ELR 20577 (D.C.Cir.1990), and on remand, EPA scrupulously followed the court's instructions. The rule was a reasonable interpretation of applicable provisions of the CAA, and EPA could reasonably find that the rule fulfilled the statutory goal of preserving, protecting, and enhancing air quality in parks and other natural areas. Further, EPA reasonably justified its decision not to address either fine particulate matter or ozone in the promulgated rule and it offered reasonable scientific justification for adopting increments only for nitrogen dioxide. It expressly adopted the court's contingent safe harbor approach (in lieu of EPA's earlier absolute safe harbor), explaining in detail how the NAAQS-based increments, along with other measures, fulfill the PSD's statutory goals. EPA also explained why it did not promulgate standards, incremental or otherwise, for nitrogen oxide compounds other than nitrogen dioxide. Environmental Defense v. Environmental Protection Agency, No. 05-1446, 37 ELR 20151 (D.C. Cir. June 19, 2007) (10 pp.).
OIL SPILLS, PREEMPTION:
The First Circuit vacated a lower court decision in favor of the U.S. government in their suit seeking to enjoin enforcement of a Massachusetts law designed to reduce the risk of maritime oil spills and to ensure that adequate resources are available to remedy such spills. The U.S. government filed suit against Massachusetts on the ground that the Massachusetts Oil Spill Prevention Act was preempted by the Ports and Waterways Safety Act, as amended by the Port and Tanker Safety Act of 1978 (collectively, PWSA). The commonwealth argued that Congress had given the states leeway to regulate particularly sensitive local waterways, at least in the absence of an actual conflict with a federal statute or regulation, and that there was no conflict here. The lower court concluded, as a matter of judgment on the pleadings, that the PWSA left no room for the state government to enact these state statutory provisions and permanently enjoined the challenged provisions. In so doing, the court did not adhere to the analytical structure the U.S. Supreme Court has required to resolve federal-state conflicts in this area. Rather, it acted prematurely. Thus, the lower court erred in entering permanent injunctions, as well as in entering judgment for the United States, at this early stage of the proceedings. United States v. Massachusetts, Nos. 06-2361, -2362, 37 ELR 20149 (1st Cir. June 21, 2007) (54 pp.).
The Ninth Circuit upheld a lower court decision invalidating U.S. Forest Service regulations governing the review of decisions implementing forest plans, but remanded the court's judgment with respect to the remaining challenged regulations on ripeness grounds. Only two of the regulations, 36 C.F.R. §215.12(f) and 215.4(a), have actually been applied to a proposed project and, therefore, are ripe for review. Because these regulations conflict with the Forest Service Decisionmaking and Appeals Reform Act, which pertains to procedures relating to public comment and administrative appeal of proposed forest management actions, the lower court properly enjoined their enforcement. But the lower court's judgment and injunction with respect to the remaining regulations must be vacated on remand because they are not ripe for review. Earth Island Institute v. Ruthenbeck, No. 05-16975, 37 ELR 20133 (9th Cir. June 8, 2007) (21 pp.).
NEGLIGENCE, DISCLOSURE, CONTAMINATION:
The Seventh Circuit upheld the dismissal of a property owner's negligent misrepresentation claim against an environmental assessment company that failed to reveal the full extent of contamination of the owner's land. The owner purchased the property in 1990 after receiving the company's assessment report. Later, when it decided to refinance the property in 1996, the owner conducted another environmental assessment of the land. The new assessor discovered contamination that was present in 1990 that was not detected previously. The lower court properly dismissed the case because the owner failed to put forth evidence of its recoverable damages. The owner needed to proffer evidence of the cost of remediating the contamination listed in the 1990 report and the total cost of remediating the contamination that existed on the property at the time of the 1990 report, but if failed to demonstrate either with any degree of probability. Kemper/Prime Industrial Partners v. Montgomery Watson Americas, Inc., No. 05-1144, 37 ELR 20140 (7th Cir. June 12, 2007) (12 pp.).
CWA, WATER QUALITY:
The Eleventh Circuit reversed in part and affirmed in part a lower court's grant of summary judgment in favor of EPA on claims that it violated its oversight responsibility under CWA §303(d) in approving Florida's list of impaired waters. The court reversed the lower court's grant of summary judgment in favor of EPA on an environmental group's claim challenging EPA's approval of Florida's decision not to list water bodies when the data showing that those water bodies were impaired consisted solely of fish consumption advisories for mercury or data that was older than 7.5 years. On remand, however, the lower court may still defer to EPA's positions that Florida was only required to consider fish consumption advisories based on waterbody-specific data and that EPA may add water bodies under fish consumption advisories to a state's impaired waters list. The lower court also erred in granting summary judgment in favor of EPA on the group's second claim that EPA's approval of Florida's priority ranking of water quality limited segments (WQLSs) for TMDL development was arbitrary and capricious. In so doing, the court misconstrued the group's argument. While the group's argument does implicate the ultimate priority-ranking designation that Florida gave to some WQLSs, the group's true challenge is to the factors that Florida considered in assigning the designations. The court, therefore, vacated the entry of summary judgment on this claim and remanded it for further proceedings. Last, the court agreed with the lower court that EPA did not act arbitrarily or capriciously in approving Florida's delisting of seven water bodies not meeting water quality standards due to natural conditions. Sierra Club, Inc. v. Leavitt, No. 05-13959, 37 ELR 20138 (11th Cir. June 8, 2007) (35 pp.).
FALSE CLAIMS ACT, QUI TAM ACTIONS:
The Tenth Circuit, on remand from the U.S. Supreme Court, affirmed a lower court judgment in favor of the U.S. government but vacated judgment in favor of an individual who filed a qui tam action against a nuclear weapons plant for pollution, environmental law violations, and breach of contract claims. The circuit court previously affirmed the lower court decision. See 282 F.3d 787, 32 ELR 20534. But the Supreme Court reversed a portion of that decision in Rockwell International Corp. v. United States, No. 05-1272, 37 ELR 20071 (U.S. Mar. 27, 2007), holding that the individual did not qualify as an original source. Consequently, his claims cannot stand under the False Claims Act. United States v. Rockwell International Corp., Nos. 99-1351 et al., 37 ELR 20144 (10th Cir. June 18) (1 p.).
ESA, HATCHERY-RAISED FISH:
A district court held that NOAA-Fisheries' Hatchery Listing Policy (HLP) for Pacific Salmon and Steelhead Trout violates the ESA. The HLP provides guidance on how hatchery-raised fish are to be treated when making decisions about whether salmon and steelhead populations should be listed as endangered or threatened under the ESA. The HLP directs that so long as they are sufficiently genetically similar, hatchery fish and wild or naturally spawning fish will be considered the same "species" and will both be analyzed in deciding whether the species is threatened or endangered. Applying this policy, NOAA-Fisheries changed the listing of a steelhead population that inhabits the Upper Columbia River from endangered to threatened. The central purpose of the ESA, and the organizing principle upon which ESA listing determinations must be made, is the protection and promotion of endangered and threatened species to the point of being naturally self-sustaining. The HLP, while not free from ambiguity, mandates that status determinations be based on the entire ESU, including both natural and hatchery fish. This assessment method departs from the ESA's central purpose. Consequently, both the HLP and the Upper Columbia River steelhead listing must be set aside. Trout Unlimited v. Lohn, No. CV06-0483-JCC, 37 ELR 20145 (W.D. Wash. June 13, 2007) (Coughenour, J.) (24 pp.).
A district court held that a PRP may seek contribution from a city under CERCLA for cleanup costs incurred at the South Eighth Street Landfill in West Memphis. The city argued that the PRP is barred from bringing this contribution action because of the judicially approved settlement between the city and other private-party PRPs. The PRP, however, was not a party to the litigation underlying that settlement and had no opportunity to participate in or object to that settlement. Applying the contribution bar, therefore, would be inconsistent with the plain language of §113(f)(2) as well as basic principles of fairness. Gurley v. City of West Memphis, No. 3:04CV00148JLH, 37 ELR 20152 (E.D. Ark. June 13, 2007) (Holmes, J.) (4 pp.).
NEPA, HATCHERY-RAISED FISH:
A district court held that NOAA-Fisheries did not violate NEPA when it chose not to prepare an EIS or EA for its Hatchery Listing Policy (HLP) for Pacific Salmon and Steelhead Trout. Though general statements of policy will usually be subject to the procedural requirements of NEPA, the court concluded that a clear and unavoidable conflict in statutory authority exempts the HLP under the ESA. The factors that must be considered in determining whether a species is to be listed as threatened or endangered are statutorily enumerated in the ESA. The HLP, as a guidance document designed to assist the Secretary in making listing determinations, is an inseparable component of those listing decisions. Accordingly, it makes little sense to require the Secretary to comply with the EIS requirement when ultimately, the determination as to whether to list the species would be controlled by the factors enumerated in the ESA. Moreover, the procedural guarantees of NEPA have been displaced by the procedures found in the ESA. Here, the ESA adequately ensures that the HLP will be applied in a way that is consistent with the ESA's fundamentally environmentalist purpose. Hence, the conservationist purpose of NEPA is not extinguished; it merely finds expression elsewhere. In addition, the court held that the groups' ESA claims were not ripe because they were already being remedied in a related case (see above). Trout Unlimited v. Lohn, No. CV05-1128-JCC,37 ELR 20143 (W.D. Wash. June 13, 2007) (Coughenour, J.) (15 pp.).
NEPA, ESA, GRAZING:
A district court held that BLM violated NEPA, FLPMA, and the ESA when it revised its nationwide grazing regulations. In issuing the regulations, which generally loosen restrictions on grazing, BLM violated NEPA by failing to take the requisite "hard look" at the environmental effects of the regulations. BLM failed to take a hard look as to why its public participation and "consult, cooperate, and coordinate" duties should be more limited than those in the previous regulations. The revisions also changed the "Fundamentals of Rangeland Health" and the criteria for ownership of range improvements and water rights. Again, BLM should explain itself so decisionmakers and the public can determine whether these changes are acceptable. For many of these same reasons, the regulations also violate FLPMA. Last, BLM should have consulted with the FWS--as required by the ESA--before issuing the new regulations. The court, therefore, enjoined the revised regulations from taking effect until BLM proceeds with consultation under the ESA and takes the requisite hard look at the environmental impacts under NEPA. Western Watersheds Project v. Kraayenbrink, Nos. CV-05-297-E-BLW, -06-275-E-BLW, 37 ELR 20147 (D. Idaho June 8, 2007) (Winmill, J.) (16 pp.).
A district court denied a sheep herder's motion to temporarily restrain or preliminarily enjoin a U.S. Forest Service order prohibiting the herder from allowing its sheep to graze on portions of the Hells Canyon National Recreation Area. The Forest Service based its decision on the ground that domestic sheep transmit fatal disease to bighorns. The herder argued this was arbitrary because it had agreed to 13 restrictions on grazing that would have prevented any contacts between bighorns and the sheep, but the Forest Service cited to evidence that those restrictions have not worked in the past. The herder also argued that it was entitled to more notice. The regulations, however, allow an exception to the notice requirements for emergencies and management needs. Here, there is substantial evidence of a real emergency, as the bighorn die-offs are dramatic, and domestic sheep stand accused by the overwhelming majority of experts examining the die-offs. Consequently, the herder is not likely to prevail on its claims, and its motions were denied. Western Watersheds Project v. U.S. Forest Service, Nos. CV-07-151-E-BLW, -07-241-E-BLW, 37 ELR 20148 (D. Idaho June 13, 2007) (Winmill, J.) (3 pp.).
FORESTS, ATTORNEYS FEES:
A district court awarded an environmental group attorneys fees and costs under the Equal Access to Justice Act (EAJA) for their underlying NEPA and National Forest Management Act claim against the Forest Service. In the case below, the group challenged the Forest Service's approval of a fire salvage project in the Malheur National Forest. The Forest Service ultimately withdrew its approval of the project, and the court dismissed the case as moot. The group is a prevailing party because it succeeded in securing preliminary injunctive relief in the case below. In addition, the Forest Service's position in the underlying litigation was not substantially justified. Hence, an award of EAJA fees to the group is appropriate. Ultimately, the court awarded the group $79,256 in attorneys fees--$1,455 less than what it requested--and $9,671 in costs. League of Wilderness Defenders-Blue Mountains Biodiversity Project v. Smith, Nos. 04-1595-PK, -1628-PK, 37 ELR 20142 (D. Or. May 17, 2007) (Papak, J.) (5 pp.).
The Supreme Court of New Jersey held that the New Jersey Constitution authorizes government redevelopment of "blighted areas" only. The case arose after a town classified a 63-acre parcel of largely vacant wetlands as "not fully productive." This classification rendered it "in need of redevelopment" and, thus, subject to eminent domain. The court ruled that the town's interpretation of the Local Redevelopment and Housing Law, N.J.S.A. 40A:12A-5, which equates "blighted areas" to areas that are not operated in an optimal manner, cannot be reconciled with the New Jersey Constitution. Although the meaning of “blight” has evolved, the term retains its essential characteristic: deterioration or stagnation that negatively affects surrounding properties. Under the town's approach, any property that is operated in a less than optimal manner is arguably “blighted.” If such an all-encompassing definition of “blight” were adopted, most property in the state would be eligible for redevelopment. Moreover, the overall structure of N.J.S.A. 40A:12A-5 suggests that the state legislature did not intend subsection (e), which pertains to defects in title and diversity of ownership, to be as broadly applied as the town contends. Rather, the legislature intended N.J.S.A. 40A:12A-5(e) to apply only to property that has become stagnant because of issues of title, diversity of ownership, or other similar conditions in accordance with the state constitution. Gallenthin Realty Development, Inc. v. Borough of Paulsboro, No. A-51, 37 ELR 20141 (N.J. June 13, 2007) (42 pp.).
The Supreme Court of Texas dismissed a brake mechanic's negligence claim against his former employer for asbestos-related injuries. A plaintiff must prove that the defendant's product was a substantial factor in causing the alleged harm. Here, the mechanic's expert testified that brake mechanics could be exposed to "some" respirable fibers when grinding pads or blowing out housings, and the mechanic testified that the grinding generated dust. Without more, the court does not know the contents of that dust, including the approximate quantum of fibers to which the mechanic was exposed. The evidence of causation in this case, therefore, was legally insufficient. Borg-Warner Corp. v. Flores, No. 05-0189, 37 ELR 20137 (Tex. June 8, 2007) (15 pp.).
CALIFORNIA ENVIRONMENTAL QUALITY ACT, EXEMPTIONS:
The Supreme Court of California held that an airport land use commission's adoption of a land use compatibility plan was exempt from environmental review under the California Environmental Quality Act (CEQA). CEQA exempts from further environmental review projects that have no potential to cause a significant effect on the environment. Here, the plan simply incorporates existing general plan and zoning law restrictions on residential housing development for a large area near the Travis Air Force Base. Therefore, any potential displacement the plan might otherwise have effected already has been caused by the existing land use policies and zoning regulations to which the plan is keyed. Muzzy Ranch Co. v. Solane County Airport Land Use Commission, No. S131484, 37 ELR 20150 (Cal. June 21, 2007) (21 pp.).
PROPERTY LAW, UTILITIES:
New York's highest court held that the lower court erred in granting a petition to annul a city's determination denying a church a full exemption from water and sewer charges. The lower court granted the petition without first affording the city an opportunity to answer. Accordingly, the case was remanded for further proceedings. Bethelite Community Church v. Department of Environmental Protection, No. 126 SSM 12, 37 ELR 20134 (N.Y. June 7, 2007) (2 pp.).
Copyright© 2007, Environmental Law Institute, Washington, D.C. All rights reserved.
THE FEDERAL AGENCIES
Note: Citations below are to the Federal Register (FR).
- EPA amended the new source performance standards for electric utility steam generating units and industrial-commercial-institutional steam generating units. 72 FR 32709 (6/13/07).
- EPA vacated the pollution control project and clean unit provisions promulgated on December 31, 2002, under the PSD and nonattainment new source review programs pursuant to a court order. 72 FR 32526 (6/13/07).
- EPA, due to adverse comment, withdrew the direct final rule it published on April 27, 2007, (72 FR 20948) titled "Change in Deadline for Rulemaking to Address the Control of Emissions From New Marine Compression-Ignition Engines at or Above 30 Liters per Cylinder." 72 FR 33694 (6/19/07).
- EPA allocated essential use allowances for the import and production of Class I stratospheric ozone-depleting substances (ODS) for calendar year 2007. 72 FR 32212 (6/12/07).
- EPA rescinded the federal implementation plan proposed on August 28, 2006, (71 FR 50875) for a copper smelter in Nevada that is no longer in existence. 72 FR 32529 (6/13/07).
- EPA proposed to allocate essential use allowances for the import and production of Class I ODS for calendar year 2008. 72 FR 32269 (6/12/07).
- EPA proposed to update the delegations tables in the Code of Federal Regulations to provide an accurate listing of the delegated new source performance standards and NESHAPs for Arizona and Nevada and to clarify those authorities that are retained by EPA. 72 FR 34209 (6/21/07).
- EPA determined that Connecticut has met its commitment to perform mid-course reviews assessing whether two ozone nonattainment areas are making sufficient progress toward attaining the one-hour ozone standard under the CAA. 72 FR 33400 (6/18/07).
- SIP Approvals: Indiana (exemption from volatile organic compound requirements for boat manufacturing or reinforced plastics composites manufacturing) 72 FR 32531 (6/13/07); (new source review reform regulations) 72 FR 33395 (6/18/07). Nevada (opacity, carbon monoxide (CO) emissions and particulate matter (PM) from wood stoves and fireplaces, and air emergency episode plans) 72 FR 33397 (6/18/07). North Carolina (CO second 10-year maintenance plan) 72 FR 33692 (6/19/07). Ohio (eight-hour ozone NAAQS attainment, ozone maintenance plan, and motor vehicle emissions budgets (MVEBs) for the Youngstown area) 72 FR 32190 (6/12/07).
- SIP Proposals: Delaware (open burning regulation) 72 FR 34207 (6/21/07). Nevada (opacity, CO emissions and PM from wood stoves and fireplaces, and air emergency episode plans; see above for final rule) 72 FR 33425 (6/18/07). New Mexico (PSD and nonattainment new source review regulations) 72 FR 33933 (6/20/07). Ohio (eight-hour ozone NAAQS attainment and MVEBs for the Columbus area) 72 FR 32257 (6/12/07); (eight-hour ozone NAAQS attainment and MVEBs for the Toledo area) 72 FR 32246 (6/12/07); (eight-hour ozone NAAQS redesignation request and motor vehicle emission budgets) 72 FR 33937 (6/20/07).
HAZARDOUS & SOLID WASTE:
- EPA proposed to expand the comparable fuel exclusion under the rules implementing RCRA subtitle C for fuels that are produced from hazardous waste but which generate emissions that are comparable to emissions from burning fuel oil when such fuels are burned in an industrial boiler. 72 FR 33283 (6/15/07).
- EPA entered into a proposed administrative settlement under CERCLA concerning the PCB Treatment Inc. Superfund site in Kansas City, Missouri, that requires one settling party to pay the net sale proceeds it receives through the sale of the property ($912,000) less the closing costs, taxes owed to the county, and attorneys fees to the Hazardous Substance Superfund, and requires a second settling party to pay $500 to the Superfund. 72 FR 34204 (6/21/07).
- EPA entered into a settlement under CERCLA for reimbursement of past response costs incurred at the Holmes Scrap Yard Superfund site in East Spencer, North Carolina. 72 FR 33503 (6/18/07).
- EPA proposed to approve a modification to California's municipal solid waste landfill (MSWLF) permit program; the modification would allow the state to issue research, development, and demonstration permits for new and existing MSWLF units and lateral expansions. 72 FR 33757 (6/19/07).
- OSM approved an amendment to the Maryland regulatory program under SMCRA; the amendment concerns increasing the amounts available in the Bond Supplement Reserve within the Bituminous Coal Open-Pit Mining Reclamation Fund. 72 FR 33153 (6/15/07).
- OSM proposed to approve an amendment to the Kentucky Abandoned Mine Land Reclamation Plan (AMLR) under SMCRA; the amendment concerns several revisions that are intended to update and improve the effectiveness of the AMLR plan. 72 FR 33177 (6/15/07).
- OSM proposed to approve revisions to a previously proposed amendment to the Texas regulatory program and the Texas abandoned mine land plan under SMCRA; the revisions concern penalty determinations. 72 FR 32049 (6/11/07).
- The U.S. Coast Guard proposed to establish standards and practices concerning the "all appropriate inquiries'' element of a defense to liability under the Oil Pollution Act. 72 FR 32232 (6/12/07).
- EPA announced that it is in the process of developing NPDES permits under the CWA for the discharge of pollutants incidental to the normal operation of vessels. 72 FR 34241 (6/21/07).
- EPA issued final NPDES general permits for stormwater discharges from small municipal separate storm sewer systems in New Mexico, Indian Country Lands in New Mexico, and Indian Country Lands in Oklahoma. 72 FR 32654 (6/13/07).
- EPA announced that Michigan is revising its approved Public Water System Supervision Program. 72 FR 34249 (6/21/07).
- EPA determined that adequate facilities for the safe and sanitary removal and treatment of sewage from all vessels are reasonably available for certain state waters in Connecticut. 72 FR 33222 (6/15/07).
- FWS proposed to revise currently designated critical habitat for the San Bernardino kangaroo rat from 33,295 acres to 9,079 acres; of those 9,079 acres, the agency proposed to exclude 2,544 acres of land covered by certain management and conservation plans from the final designation. 72 FR 33807 (6/19/07).
- FWS proposed to reduce the critical habitat designation for the northern spotted owl from 6,887,000 acres to 5,337,839 acres of federal land in California, Oregon, and Washington. 72 FR 32449 (6/12/07).
- FWS revised its proposed critical habitat designation for the Guajon, a frog species endemic to the southeastern part of Puerto Rico. 72 FR 33715 (6/19/07).
- FWS announced its 12-month finding on a petition to list the Colorado River cutthroat trout as a threatened species throughout its range in the United States; the agency found that listing the species is not warranted at this time. 72 FR 32589 (6/13/07).
- FWS announced the availability of a draft comprehensive conservation plan and associated EIS for the Trempealeau National Wildlife Refuge in Buffalo and Trempealeau counties, Wisconsin. 72 FR 32306 (6/12/07).
- FWS announced the availability of a comprehensive conservation plan and FONSI for the Turnbull National Wildlife Refuge in Washington. 72 FR 34475 (6/22/07).
- The Department of Health and Human Services announced the establishment of the National Biodefense Science Board; the Board will provide expert advice and guidance to the Secretary regarding activities to prevent, prepare for, and respond to adverse health effects of public health emergencies resulting from current and future chemical, biological, nuclear, and radiological agents. 72 FR 34015 (6/20/07).
DOJ NOTICES OF SETTLEMENT:
- United States v. Allegheny County Sanitary Authority, No. 07-737 (W.D. Pa. May 31, 2007). A settling CWA defendant who discharged pollutants into waters of the United States without a permit and in a manner not contemplated by its NPDES permit must pay a civil penalty of $1.2 million, must undertake at least $3 million in supplemental environmental projects, and must develop and submit a long-term plan, in coordination with the 83 municipalities that contribute flows to its system, to control the wet weather discharges from its system and to ensure compliance with its NPDES permit and the CWA. 72 FR 32864 (6/14/07).
- United States v. Town of Billerica, No. 07-11015 (D. Mass. May 31, 2007). A settling CWA defendant that discharged process wastewater without a permit, violated EPA stormwater permitting requirements, and violated effluent limits and monitoring and reporting requirements of its individual permits must pay a $250,000 civil penalty, must comply with the CWA, must spend at least $50,000 on two supplemental environmental projects, and must undertake compliance audits with respect to its water treatment and waste water treatment facilities. 72 FR 32864 (6/14/07).
- United States v. MidAmerican Energy Co., No. 07-4045 (N.D. Iowa June 1, 2007). Settling CERCLA defendants must collectively pay $4.6 million in response costs and must assist response actions by performing work and providing institutional controls at the LeMars Coal Gas Superfund site in LeMars, Iowa. 72 FR 32865 (6/14/07).
- United States v. Campbell Co. LLC, No. 07-00308 (D. Haw. June 8, 2007). A settling CERCLA defendant who disposed of hazardous waste at the Del Monte Fresh Produce Inc. Superfund site in Oahu, Hawaii, must implement institutional controls to prevent exposure to the contaminated soil and the perched and basal aquifer groundwater impacted by site contaminants; must prevent activities that might interfere with the effectiveness of the remedy; must restrict use in a manner that causes a threat to public health; and must make these restrictions binding on future owners of the property. 72 FR 34277 (6/21/07).
- United States v. Soulliere, No. 8:07-cv-00203 (E.D. Mo. May 24, 2007). Settling CERCLA defendants must pay $100,000 in reimbursement of response costs incurred at the 10th Street Superfund site in Columbus, Nebraska. 72 FR 34277 (6/21/07).
Copyright© 2007, Environmental Law Institute, Washington, D.C. All rights reserved.
THE CONGRESSNote: Citations below are to the Congressional Record (Cong. Rec.).
- S. Res. 243(National Clean Beaches Week), which would support the goals and ideals of National Clean Beaches Week and the considerable value of beaches and their role in American culture, was passed by the Senate. 153 Cong. Rec. S8153-54 (daily ed. June 20, 2007).
- H.R. 6 (Clean Energy Act), which would reduce our Nation's dependency on foreign oil by investing in clean, renewable, and alternative energy resources, promoting new emerging energy technologies, developing greater efficiency, and creating a Strategic Energy Efficiency and Renewables Reserve to invest in alternative energy, and after taking action on the following amendments proposed thereto, was passed by the Senate. 153 Cong. Rec. S8166-S8221 (daily ed. June 21, 2007).
- S. 1586 (Leahy, D-Vt.) (Connecticut River watershed) would authorize the Secretary of the Interior to provide assistance in implementing cultural heritage, conservation, and recreational activities in the Connecticut River watershed of the states of New Hampshire and Vermont. 153 Cong. Rec. S7451 (daily ed. June 11, 2007). The bill was referred to the Committee on Energy and Natural Resources.
- S. 1587 (Snowe, R-Me.) (recycling) would amend the Internal Revenue Code to allow a special depreciation allowance for reuse and recycling property and to provide for tax-exempt financing of recycling equipment. 153 Cong. Rec. S7451 (daily ed. June 11, 2007). The bill was referred to the Committee on Finance.
- S. 1599 (Hagel, R-Neb.) (Energy Conservation policy Act ) would amend the National Energy Conservation Policy Act to provide for energy-related regulatory reform. 153 Cong. Rec. S7545 (daily ed. June 12, 2007). The bill was referred to the Committee on Energy and Natural Resources.
- S. 1600 (Hagel, R-Neb.) (energy technology) would establish an energy technologies innovation network. 153 Cong. Rec. S7545 (daily ed. June 12, 2007). The bill was referred to the Committee on Energy and Natural Resources.
- S. 1602 (Hagel, R-Neb.) (diverse energy supplies and energy efficiency) would improve the energy security of the United States by promoting diverse energy supplies and energy efficiency. 153 Cong. Rec. S7545 (daily ed. June 12, 2007). The bill was referred to the Committee on Energy and Natural Resources.
- S. 1616 (Durbin, D-Ill.) (CAA) would amend the CAA to promote and assure the quality of biodiesel fuel. 153 Cong. Rec. S7638 (daily ed. June 13, 2007). The bill was referred to the Committee on Environment and Public Works.
- S. 1617 (Stabenow, R-Mich.) (electric drive motor vehicles) would amend the Internal Revenue Code of 1986 to provide incentives for plug-in electric drive motor vehicles. 153 Cong. Rec. S7730 (daily ed. June 14, 2007). The bill was referred to the Committee on Finance.
- S. 1618 (Salazar, D-Colo.) (cellulosic biofuel) would amend the Internal Revenue Code of 1986 to provide a credit for the production of a cellulosic biofuel. 153 Cong. Rec. S7730 (daily ed. June 14, 2007). The bill was referred to the Committee on Finance.
- S. 1619 (Wyden, D-Or.) (fuel-efficient motor vehicles) would amend the Internal Revenue Code of 1986 to provide a credit for fuel-efficient motor vehicles. 153 Cong. Rec. S7730 (daily ed. June 14, 2007). The bill was referred to the Committee on Finance.
- S. 1620 (Cantwell, D-Wash.) (Oil Pollution Act) would provide the Coast Guard and NOAA with additional authorities under the Oil Pollution Act of 1990 to strengthen that Act. 153 Cong. Rec. S7730 (daily ed. June 14, 2007). The bill was referred to the Committee on Commerce, Science, and Transportation.
- S. 1641 (Coleman, R-Minn.) (migratory waterfowl and waterfowl habitat) would amend Public Law 87-383 to reauthorize appropriations to promote the conservation of migratory waterfowl and to offset or prevent the serious loss of important wetland and other waterfowl habitat essential to the preservation of migratory waterfowl. 153 Cong. Rec. S7810 (daily ed. June 18, 2007). The bill was referred to the Committee on Environment and Public Works.
- S. 1646 (Reid, D-Nev.) (conservation) would amend the Food Security Act of 1985 to require the Secretary of Agriculture to make cost-share and incentive payments for innovative fuels management conservation practices, including prescribed grazing management on private grazing land and practices that complement commensurate public land, to prevent the occurrence and spread of, and damages caused by, wildfires fueled by invasive species. 153 Cong. Rec. S7810 (daily ed. June 18, 2007). The bill was referred to the Committee on Agriculture, Nutrition, and Forestry.
- S. 1656 (Snowe, R-Me.) (renewable energy) would authorize loans for renewable energy systems and energy efficiency projects under the Express Loan Program of the Small Business Administration. 153 Cong. Rec. S7887 (daily ed. June 19, 2007). The bill was referred to the Committee on Small Business and Entrepreneurship.
- S. 1657 (Kerry, D-Mass.) (business energy efficiency program) would establish a small business energy efficiency program. 153 Cong. Rec. S7887 (daily ed. June 19, 2007). The bill was referred to the Committee on Small Business and Entrepreneurship.
- S. 1680 (Murkowski, R-Alaska) (National Wildlife Refuge) would provide for the inclusion of certain non-federal land in the Izembek National Wildlife Refuge and the Alaska Peninsula National Wildlife Refuge in the state of Alaska. 153 Cong. Rec. S8231 (daily ed. June 21, 2007). The bill was referred to the Committee on Energy and Natural Resources.
- H.R. 2650 (Boyd, D-Fla.) (water resources) would modify certain water resources projects for the Apalachicola, Chattahoochee, and Flint Rivers in Alabama, Florida, and Georgia. 153 Cong. Rec. H6234 (daily ed. June 11, 2007). The bill was referred to the Committee on Transportation and Infrastructure.
- H.R. 2651 (Engel, D-N.Y.) (greenhouse gases) would require large publicly traded companies and significant emitters of greenhouse gases to report their emissions to EPA. 153 Cong. Rec. H6234 (daily ed. June 11, 2007). The bill was referred to the Committee on Energy and Commerce, and in addition to the Committee on Financial Services.
- H.R. 2652 (English, R-Pa.) (renewable energy) would amend the Internal Revenue Code of 1986 to generate renewable energy and encourage novel technologies related to the production of energy. 153 Cong. Rec. H6234 (daily ed. June 11, 2007). The bill was referred to the Committee on Ways and Means.
- H.R. 2656 (Mahoney, D-Fla.) (conservation activities) would seek to enhance the ongoing profitability and viability of America's farms, forests, and ranches by making conservation activities more cost-effective and efficient by creating new revenue opportunities through biofuels. 153 Cong. Rec. H6234 (daily ed. June 11, 2007). The bill was referred to the Committees on Agriculture, on Energy and Commerce, and on Science and Technology.
- H.R. 2665 (Welch, D-Vt.) (Connecticut River watershed) would authorize the Secretary of the Interior to provide assistance in implementing cultural heritage, conservation, and recreational activities in the Connecticut River watershed of the states of New Hampshire and Vermont. 153 Cong. Rec. H6235 (daily ed. June 11, 2007). The bill was referred to the Committee on Natural Resources.
- H.R. 2701 (Oberstar, D-Minn.) (climate change) would promote energy efficient transportation and public buildings, creating incentives for the use of alternative fuel vehicles and renewable energy, and ensuring sound water resource and natural disaster preparedness planning, and for other purposes. 153 Cong. Rec. H6403 (daily ed. June 13, 2007). The bill was referred to the Committee on Transportation and Infrastructure.
- H.R. 2733 (Thompson, D-Cal.) (Trinity River Restoration Fund) would establish the Trinity River Restoration Fund. 153 Cong. Rec. H6438 (daily ed. June 14, 2007). The bill was referred to the Committee on Natural Resources.
- H.R. 2735 (Young, D-Alaska) (wildlife refuges) would provide additional funding for operation of national wildlife refuges. 153 Cong. Rec. H6438 (daily ed. June 14, 2007). The bill was referred to the Committees on Natural Resources, on Oversight and Government Reform, and on Ways and Means.
- H.R. 2742 (Arcuri, D-N.Y.) (biomass facilities) would amend the Internal Revenue Code of 1986 to provide rate parity for open-loop and closed-loop biomass facilities under the renewable fuels tax credit. 153 Cong. Rec. H6576 (daily ed. June 15, 2007). The bill was referred to the Committee on Ways and Means.
- H.R. 2751 (Harman, D-Cal.) (light bulbs) would prohibit the sale of certain inefficient light bulbs and require the development of a plan for increasing the use of more efficient light bulbs by consumers and businesses. 153 Cong. Rec. H6576 (daily ed. June 15, 2007). The bill was referred to the Committee on Energy and Commerce.
- H.R. 2757 (Thompson, D-Cal.) (wetlands) would amend the Duck Stamp Act and the Wetland Loan Act to reauthorize appropriations to promote the conservation of migratory waterfowl and to offset or prevent the serious loss of important wetlands and other waterfowl habitat essential to the preservation of such waterfowl. 153 Cong. Rec. H6576 (daily ed. June 15, 2007). The bill was referred to the Committee on Natural Resources.
- H.R. 2758 (Thompson, D-Cal.) (oil and gas leasing) would permanently prohibit oil and gas leasing off the coast of Mendocino, Humboldt, and Del Norte Counties in the state of California, and for other purposes. 153 Cong. Rec. H6577 (daily ed. June 15, 2007). The bill was referred to the Committee on Natural Resources.
- H.R. 2763 (Lampson, D-Tex.) (biofuels) would enhance research, development, demonstration, and commercial application of biofuels related technologies. 153 Cong. Rec. H6660 (daily ed. June 18, 2007). The bill was referred to the Committee on Science and Technology and the Committee on Energy and Commerce.
- H.R. 2773 (Lampson, D-Tex.) (biofuels) would enhance research, development, demonstration, and commercial application of biofuels related technologies. 153 Cong. Rec. H6734 (daily ed. June 19, 2007). The bill was referred to the Committee on Science and Technology.
- H.R. 2774 (Giffords, D-Ariz.) (solar energy technologies) would support the research, development, and commercial application of solar energy technologies. 153 Cong. Rec. H6734 (daily ed. June 19, 2007). The bill was referred to the Committee on Science and Technology.
- H.R. 2784 (Peterson, R-Pa.) (natural gas) would terminate long-standing federal prohibitions on the domestic production of abundant offshore supplies of natural gas, dedicate fixed percentages of the resultant royalties for environmental restoration projects, renewable energy and carbon sequestration research, and weatherization and energy assistance for those in need, and share a portion of such royalties with producing states. 153 Cong. Rec. H6827 (daily ed. June 20, 2007). The bill was referred to the Committee on Natural Resources, and in addition to the Committees on Rules, and the Budget.
- H.R. 2801 (Young, R-Alaska) (Alaska Wildlife Refuge) would provide for the inclusion of certain non-federal land in the Izembek and Alaska Peninsula Wildlife Refuges and Wilderness in the State of Alaska and for the granting of a right-of-way for safe and reliable access for the Native Village of King Cove, Alaska. 153 Cong. Rec. H6827 (daily ed. June 20, 2007). The bill was referred to the Committee on Natural Resources.
Copyright© 2007, Environmental Law Institute, Washington, D.C. All rights reserved.
IN THE STATES
Note: The entries below cover state developments since the last issue of Update. The entries are arranged by state, and within each section, entries are further subdivided by subject matter area. For a cumulative listing of materials reported in 2007, visit our list of Cumulative State Developments Arranged by State, or our list of Cumulative State Developments Arranged by Subject Matter. For state material reported prior to 2007, visit the ELR Archives.
The states below have updates this week:
|Arizona||District of Columbia||Kentucky||Maryland||Montana||Rhode Island||Washington|
|California||Florida||Louisiana||Michigan||Nevada||South Carolina||West Virginia|
- The Arizona Department of Environmental Quality (ADEQ) seeks comment on the 2007 groundwater protection list. According to A.R.S. §49-305, the ADEQ is required to establish a groundwater protection list of those agricultural use pesticides that have the potential to pollute groundwater. Comments are due July 15, 2007. See http://www.azsos.gov/public_services/Register/2007/24/pubinfo.pdf (pp. 1027-1029)
- The Air Resources Board will conduct public workshops on developing a control measure to reduce diesel particulate matter and oxides of nitrogen emissions from trucks in port and intermodal rail service. This measure is limited to trucks with a gross vehicle weight rating of 33,000 pounds or greater. The workshops will be held July 9, 10, 11, and 13, 2007. See http://www.arb.ca.gov/lispub/rss/displaypost.php?pno=438
- The Air Resources Board extended the public comment period on the adoptions of a proposed regulation for in-use, off-road diesel vehicles. To ensure that all potential witnesses can be accommodated and to give the Board sufficient time to weigh and consider all oral and written testimony it receives on this matter, the record will remain open and the Board's final deliberations will be carried over to its regularly scheduled meeting on July 26, 2007. See http://www.arb.ca.gov/regact/2007/ordiesl07/ordiesl07.htm
Hazardous and Solid Waste:
- The Department of Toxic Substances Control will conduct a public hearing on proposed amendments to California Code of Regulations, title 22, section 67450.11, Permit by Rule (PBR) for Treatment of Aqueous Wastes Containing Cyanides. The objective of this rulemaking action is to establish simple and protective authorization for treatment of certain cyanide containing wastes using specified technologies at the facility that generated the wastes. The authorization would be provided by extending the existing PBR authorization to avoid creating a new regulatory program. The hearing will be held July 31, 2007. Comments are due July 31, 2007. See http://www.oal.ca.gov/pdfs/notice/24z-2007.pdf (pp. 1043-1048)
- The Department of Forestry and Fire Protection rescheduled the hearing date for Colusa County to consider 2007 Fire Hazard Severity Zones to July 20, 2007. See http://www.oal.ca.gov/pdfs/notice/24z-2007.pdf (pp. 1049-1050)
- The Department of Food and Agriculture amended subsection 3700(c) of the regulations in Title 3 of the California Code of Regulations pertaining to Oak Mortality Disease Control as an emergency action on March 6, 2007. The Department proposes to continue the regulation as amended and submit a Certificate of Compliance for this action to the Office of Administrative Law no later than September 2, 2007. Comments are due July 30, 2007. See http://www.oal.ca.gov/pdfs/notice/24z-2007.pdf
- The Office of Environmental Health Hazard Assessment seeks comment on draft technical support documents for proposed public health goals for 2,4-dichlorophenoxyacetic acid (2,4-D) and chlorite in drinking water. A workshop will be held July 16, 2007. Comments are due August 6, 2007. See http://oehha.org/water/phg/phg062207.html
- The State Water Resources Control Board will hold a public scoping meeting to seek input on proposed amendments to the California Ocean Plan. The proposed ocean discharge monitoring amendments and information on other amendments are posted in a scoping document on the Board's website at http://www.waterboards.ca.gov/plnspols/oplans.html. The meeting will be held July 26, 2007. Comments are due July 27, 2007. See http://www.waterboards.ca.gov/plnspols/docs/oplans/scopemtg_june2007/pn_scopemtg062607.pdf
- The State Water Resources Control Board will hold a public hearing to receive comments on a proposed exception to the California Ocean Plan prohibition against waste discharge into the Bodega Area of Special Biological Significance. The public hearing will be held on July 30, 2007. Comments are due July 31, 2007. See http://www.waterboards.ca.gov/plnspols/docs/asbs/bodega/bodega_asbs_notice.pdf
- The State Water Resources Control Board will hold a public hearing to seek statements or arguments orally or in writing relevant to the proposed regulatory action to amend Chapter 16, Title 23 of the California Code of Regulations, relating to USTs. The hearing will be held July 16, 2007. Comments are due July 16, 2007. See http://www.waterboards.ca.gov/ust/regulatory/rulemaking/2007/hearingnotice.pdf
- The State Water Resources Control Board seeks comment on an amendment to the Water Quality Control Plan for the San Francisco Region that would establish a TMDL and implementation plan for pathogens in the Napa River Watershed. Both the San Francisco Bay Regional Water Quality Control Board's amendment and the State Water Board item language and draft resolution are available at http://www.waterboards.ca.gov/tmdl/tmdl.html. Comments are due June 29, 2007. See http://www.waterboards.ca.gov/tmdl/docs/napariver/pn_naparivertmdl.pdf
Hazardous and Solid Waste:
- The Department of Public Health and Environment's Hazardous Materials and Waste Management Division has adopted changes to the following regulations: 6 CCR 1007-2, Solid Waste Disposal Sites and Facilities, Siting of Hazardous Waste Disposal Sites, Inspection of Commercial Hazardous Waste Disposal Sites; and 6 CCR 1007-3, Hazardous Waste. See http://www.sos.state.co.us/CCR/RegisterContents.do?Volume=30&Month=6&Year=2007#
DISTRICT OF COLUMBIA
Hazardous and Solid Waste:
- The Department of Environment has adopted amendments to the Hazardous Waste Regulations in Chapter 42, Standards for the Management of Hazardous Waste and Used Oil, and Chapter 43, Hazardous Waste Management Regulations Administration and Enforcement of Title 20 of the District of Columbia Municipal Regulations. Changes became effective June 8, 2007. See http://www.amlegal.com/nxt/gateway.dll?f=templates$fn=default.htm$vid=dcr:free
- The Department of Environmental Protection Office of Coastal and Aquatic Managed Areas will hold a public hearing to solicit public input for legislative revisions to the Coastal Zone Management Act. The hearing will be held June 22, 2007. See http://faw.dos.state.fl.us/newfaw/FAWVOLUMEFOLDERS2007/3323/SECTVI.pdf (p. 2665)
- The Pollution Control Board is soliciting public comment on proposed amendments to 35 Ill. Adm. Code Part 211.1920, and proposed new section 211.1740. These amendments are substantively identical to the proposed Part 211 definitions for Section 211.1740, Diesel Engine, and the amendments to 211.1920, Emergency or Standby Unit, that were published in the Illinois Register on May 4, 2007, at 31 Ill. Reg. 6597. Comments are due July 22, 2007. See http://www.cyberdriveillinois.com/departments/index/register/register_volume31_issue23.pdf (pp. 7683-7701)
- The Pollution Control Board is soliciting public comment on several proposed new sections in 35 Ill. Adm. Code Part 217, concerning nitrogen oxides emissions. Comments are due July 22, 2007. See http://www.cyberdriveillinois.com/departments/index/register/register_volume31_issue23.pdf (pp. 7702-7728)
- The Pollution Control Board is soliciting public comment on several proposed amendments and new sections in 35 Ill. Adm. Code 611 concerning Primary Drinking Water Standards. Comments are due July 22, 2007. See http://www.cyberdriveillinois.com/departments/index/register/register_volume31_issue23.pdf (pp. 7729-8065)
- The Kentucky Environmental and Public Protection Cabinet will conduct a public hearing to receive comments on the following amendments: 401 KAR 57:002, 40 C.F.R. Part 61 NESHAPs; 401 KAR 58:025, 40 C.F.R. Part 61 national emission standard for asbestos; 401 KAR 60:005, 40 C.F.R. Part 60 standards of performance for new stationary sources; 401 KAR 60:670, 40 C.F.R. Part 60 standards of performance for nonmetallic mineral processing plants; and 401 KAR 63:002, 40 C.F.R. Part 63 NESHAPs. The hearing will be held June 25, 2007. See http://www.air.ky.gov/homepage_repository/Public+Hearings.htm
- The Kentucky Environmental and Public Protection Cabinet will conduct a public hearing to receive comments on the following proposed regulations: 401 KAR 64:023, Repeal of 401 KAR 63:020 and 63:021; 401 KAR 64:001, Definitions for 401 KAR Chapter 64; 401 KAR 64:005, Toxic air pollutants, air toxics of concern and levels-of-concern concentrations; 401 KAR 64:010, General provisions for air toxics sources; 401 KAR 64:020, Risk assessment; 401 KAR 64:030, Air toxics safety net program; and 401 KAR 64:050, Public review for sources not covered under 401 KAR 52:100. The hearing will be held June 29, 2007. See http://www.air.ky.gov/homepage_repository/Public+Hearings.htm
- The Department of Environmental Quality will conduct a public hearing on proposed amendments to the air regulations at LAC 33:III.507, 2160, 3003, 5116, 5122, 5311, and 5901. The proposed rule would incorporate by reference federal regulations that are already applicable in Louisiana. The hearing will be held July 25, 2007. Comments are due July 25, 2007. See http://www.deq.louisiana.gov/portal/portals/0/planning/regs/pdf/AQ284ftpro.pdf
- The Department of Environmental Quality has adopted changes to LAC 33:III.1502, 1503, 1507, 1511, and 1513, pertaining to the control of sulfur dioxide emissions. See http://www.deq.louisiana.gov/portal/portals/0/planning/regs/pdf/AQ271fin_w_TA.pdf
Hazardous and Solid Waste:
- The Department of Environmental Quality will conduct a public hearing on proposed amendments to the environmental quality regulations at LAC 33:VII.301 and IX.107, 2301, 2313, 7301, 7303, 7305, 7307, 7309, 7311, 7313, 7395, 7397, and 7399. This rule removes the provision that restricted the usage of the sewage sludge regulations until such time that the department received delegation for the Sewage Sludge Management Program from U.S. EPA. The hearing will be held July 25, 2007. Comments are due August 1, 2007. See http://www.deq.louisiana.gov/portal/portals/0/planning/regs/pdf/OS066pro.pdf
- The Department of Environmental Quality will conduct a public hearing on proposed amendments to the UST regulations at LAC 33:XI.401 and 403. The proposed rule establishes standards for the red tag/delivery prohibition of regulated substances for USTs. It sets forth the requirements the owner/operator of the UST must meet in order to continue to receive delivery of fuel, and for when the department may prohibit the delivery of fuel. The hearing will be held July 25, 2007. Comments are due August 1, 2007. See http://www.deq.louisiana.gov/portal/portals/0/planning/regs/pdf/UT015pro.pdf
- The Department of Environmental Quality has adopted numerous amendments to solid and hazardous waste regulations, including the Expedited Permit Processing Program (LAC 33:I.1801, 1803, 1805, 1807, and 1809); National Source Tracking System (LAC 33:XV.102, 361, and 399); Murphy Exploration and Production Delisting (LAC 33:V.4999.Appendix E); and Solid Waste Regulations Reorganization (LAC 33:VII.Subpart 1). See http://www.deq.louisiana.gov/portal/tabid/2644/Default.aspx
Hazardous and Solid Waste:
- The Bureau of Remediation and Waste Management seeks comment on a proposed amendment to Chapter 415, Reasonable Costs for Handling and Recycling of Electronic Wastes. Chapter 415 currently calls for the Department of Environment to annually approve up to 10 consolidators (persons in the business of collecting and consolidating discarded household TVs and computer monitors for recycling) who submit the lowest cost schedules. The amendments would authorize the Department to add consolidators to the approval list before the annual review process, which currently takes place during the last quarter of each year. Comments are due July 27, 2007. See http://www.maine.gov/dep/rwm/rules/noticeforchap415.htm
- The Department of Agriculture, Food, and Rural Resources will conduct a public hearing on proposed amendment to Chapter 266, Hemlock Woolly Adelgid Quarantine. This proposed rule modifies the existing Hemlock Woolly Adelgid quarantine by adding six towns in Maine and additional counties in other states that have been found to be infested with this pest to the area under quarantine. It also simplifies some of the reporting requirements imposed on State Plant Regulatory Officials in states that are free of this pest. The hearing will be held July 9, 2007. Comments are due July 23, 2007. See http://www.maine.gov/sos/cec/rules/notices/2007/062007.htm
- The Department of the Environment has adopted amendments and new regulations in 26.11.32, Control of Emissions of Volatile Organic Compounds from Consumer Products. The rules became effective June 18, 2007. See http://www.dsd.state.md.us/mdregister/3412/main_register.htm
- The Department of Environmental Quality, Air Quality Division, will conduct a second public hearing to consider the amendment of R 336.1401, R 336.1402, and R 336.1404 of the Michigan Administrative Code, and the adoption of R 336.1401a, R 336.1405, R 336.1406, R 336.1407, and R 336.1420, in Part 4, Emissions Limitations and Prohibitions Sulfur Bearing Compounds. The hearing will address the revisions to the definitions of "replacement unit" and "net emissions increase." This rulemaking would also add Part 19, New Source Review for Major Sources Impacting Nonattainment Areas. The proposed rules are necessary to implement a complete, modern new source review program that meets federal requirements for permitting major sources in nonattainment areas. The hearing will be held July 19, 2007. Comments are due July 19, 2007. See http://www.michigan.gov/documents/cis/MR10_061507_199411_7.pdf (pp. 42-49)
- The Department of Environmental Quality, Air Quality Division, will conduct a public hearing on proposed amendments to R 336.1401, R 336.1401a, R 336.1402, and R 336.1404 to R 336.1407. Amendments to rules 1401 to 1407 concern sulfur dioxide (SO2) emitted in Wayne County. In addition, the Department is proposing to add R 336.1420 to reduce transported emissions of SO2 from electric generating units as part of the Clean Air Interstate Rule federal requirements. The hearing will be held July 19, 2007. Comments are due July 19, 2007. See http://www.michigan.gov/documents/cis/MR10_061507_199411_7.pdf (pp. 50-74)
- The Department of Environmental Quality, Air Quality Division, will conduct a public hearing on proposed amendments to R 336.2201 to R 336.2218. The Department is proposing to rescind Part 12, Emission Averaging and Emission Reduction Credit Trading, due to the lack of participation by the regulated community and lack of sufficient resources to maintain the voluntary trading program. The hearing will be held July 19, 2007. Comments are due July 19, 2007. See http://www.michigan.gov/documents/cis/MR10_061507_199411_7.pdf (pp. 75-78)
- The Department of Environmental Quality, Air Quality Division, will conduct a public hearing on proposed amendments to R 336.1660 and R 336.1661. The Department is proposing to amend the Consumer Product Rules to reduce volatile organic compound content from additional consumer and commercial products manufactured, sold, or used in the state of Michigan. The hearing will be held July 19, 2007. Comments are due July 19, 2007. See http://www.michigan.gov/documents/cis/MR10_061507_199411_7.pdf (p. 79)
- The Department of Natural Resources, Air Conservation Commission, will conduct a public hearing on proposed amendments to 10 CSR 10-6.110, Submission of Emission Data, Emission Fees, and Process Information. The hearing will be held July 26, 2007. Comments are due August 2, 2007. See http://www.sos.mo.gov/adrules/moreg/current/2007/v32n12/v32n12.pdf (pp. 976-987)
- The Board of Environmental Review will conduct a public hearing on proposed amendment of ARM 17.8.501, 17.8.505, and 17.8.514 pertaining to definitions, air quality operation fees, and open burning fees. The hearing will be held August 1, 2007. Comments are due August 8, 2007. See http://sos.mt.gov/arm/Register/archives/MAR2007/MAR07-12.pdf (pp. 795-799)
- The Board of Environmental Review will conduct a public hearing on proposed amendments that incorporate by reference current federal regulations and other materials into the state's air quality rules. The hearing will be held August 2, 2007. Comments are due August 9, 2007. See http://sos.mt.gov/arm/Register/archives/MAR2007/MAR07-12.pdf (pp. 800-812)
- The Environmental Commission has proposed revisions to provisions governing the storage of mercury in relation to the Chemical Accident Prevention Program. Draft rules are available at http://www.leg.state.nv.us/register/2007Register/R019-07I.pdf. See http://www.leg.state.nv.us/register/indexes/2007_NAC_REGISTER_KEYWORD.htm
- The Department of Environmental Protection will conduct a public hearing to consider the amendment of N.J.A.C. 7:9C-1.4 and the repeal and replacement of N.J.A.C. 7:9C-1.8 of the Ground Water Quality Standards at N.J.A.C. 7:9C. The proposed new rule would delete the antidegradation limits established at existing N.J.A.C. 7:9C-1.8(b) through (e) and replace them with new implementation procedures at proposed N.J.A.C. 7:9C-1.8(b)1 through 5, which would establish the water quality conditions to be maintained that correspond with the different groundwater classifications and their designated uses. The hearing will be held August 8, 2007. Comments are due August 31, 2007. See http://www.nj.gov/dep/rules/notices/070207a.htm
Hazardous and Solid Waste:
- The Department of Environmental Management, Office of Water Resources, will conduct public hearings to consider significant changes to the state's septic system regulations, including technical issues regarding the siting and design of septic systems as well as administrative and procedural issues. In addition, the rules have been reformatted in an effort to follow the sequence of actions taken in permitting a septic system in Rhode Island. Under the proposed rules, a septic system will be referred to as an onsite wastewater treatment system rather than an individual sewage disposal system. The hearings will be held June 20, 27, 28, and July 11, 2007. See http://www.dem.ri.gov/programs/benviron/water/permits/isds/draftreg.htm
- The Department of Health and Environmental Control has rescheduled the public hearing to consider revisions to the Department's Coastal Division Regulations 30-1 through 30-18 related to permitting in the critical areas of the coastal zone. The hearing will now be held August 9, 2007. See http://www.scdhec.gov/administration/regs/docs/3111_OCRM%20PH-reschedule.doc
- The Department of Agriculture and Food, Regulatory Services, seeks comment on the adoption of R70-550, Utah Inland Shellfish Safety Program. This rule establishes a voluntary program to enable Utah companies to distribute shellfish to other states. This program will promote shellfish safety within the state of Utah and provide for industry participation in the National Shellfish Safety Program via the Interstate Shellfish Shippers Conference. The program provides for all phases of shellfish safety. Comments are due July 31, 2007. See http://www.rules.utah.gov/publicat/bulletin/2007/20070615/29970.htm
Hazardous and Solid Waste:
- The Department of Ecology adopted WSR 07-12-010, which establishes requirements for all treatment works treating domestic sewage, including sewage treatment plants and other facilities that generate, treat, or use biosolids pursuant to chapters 70.95J and 70.95 RCW. The rule prescribes permitting processes, addresses septage management requirements, changes the program implementation fee, clarifies previous rule interpretations and program policy, and corrects some inconsistencies between the biosolids rule and the biosolids general permit. This rule becomes effective June 25, 2007. See http://www.leg.wa.gov/documents/wsr/2007/12/07-12-010.htm
- The Department of Environmental Protection will conduct a public hearing on a number of air quality rules, including 45CSR6, Control of Air Pollution from Combustion of Refuse; 45CSR8, Ambient Air Quality Standards; 45CSR16, Standards of Performance for New Stationary Sources; 45CSR18, Control of Air Pollution from Combustion of Solid Waste; 45CSR25, Control of Air Pollution from Hazardous Waste Treatment, Storage, and Disposal Facilities; 45CSR34, Emission Standards for Hazardous Waste Pollutants; 45CSR39, Control of Annual Nitrogen Oxides Emissions; 45CSR40, Control of Ozone Season Nitrogen Oxides Emissions; 45CSR41, Control of Annual Sulfur Dioxide Emissions; and 45CSR42, Greenhouse Gas Emissions Inventory Program. The hearing will be held July 9, 2007. See http://www.wvdep.org/
- The Division of Water Resources will hold a public hearing on adopted emergency rule Requirements Governing Water Quality Standards. The hearing will be held July 16, 2007. See http://www.wvsos.com/adlaw/register/current/061507.pdf (pp. 992 and 1037)
- The Department of Natural Resources will hold a public hearing on Natural Resources Board Emergency Order No. FH-28-07(E), which revises chapter NR 19 and 20, Wis. Adm. Code, pertaining to the control of fish diseases and invasive species. This rule will aid the Department in controlling the spread of viral hemorrhagic septicemia virus. The emergency order extends the restrictions on the movement and use of fish, fish parts, and water taken from the Great Lakes and Mississippi River drainages to the Lake Winnebago system and the Fox River from Lake Winnebago to Green Bay and allows extensions to other waters in the event that the VHS virus is discovered in those waters. The hearing will be held July 11, 2007. Comments are due July 13, 2007. See http://www.dnr.state.wi.us/org/caer/ce/news/hearmeet.html
- The Department of Natural Resources will hold a public hearing on Natural Resources Board Emergency Order No. WT-26-07(E) pertaining to general permits for dredging in Great Lakes navigable waterways. The emergency rule revises chapter NR 345, Wis. Adm. Code, to establish a new general permit with appropriate conditions. The rule establishes standards for projects to be eligible for a general permit for dredging, including operation of a motor vehicle, on the beds of the Great Lakes to remove algae, mussels, dead fish, and similar large plant and animal nuisance deposits. The emergency rule establishes a general permit for an activity that would otherwise require an individual permit. The hearing will be held July 10, 2007. Comments are due July 20, 2007. See http://www.dnr.state.wi.us/org/caer/ce/news/hearmeet.html
Copyright© 2007, Environmental Law Institute, Washington, D.C. All rights reserved.
INDONESIA TO REDUCE FOREST FIRES BY HALF
Indonesian officials, at an environmental conference of southeast Asian nations, announced their intent to cut forest fires in the nation by 50 percent this year. Forest fires significantly contributed to haze and compromised air quality across the region last year, and leaders from multiple nations have joined forces to help Indonesia develop a plan and educational resources to reduce forest fires. Indonesia will spend $78 million on the effort, which will include educating farmers not to use slash-and-burn techniques. See http://www.enn.com/today.html?id=12987
ETHIOPIAN LEADERS SUPPORT PARTICIPATORY FORESTRY MANAGEMENT
Ethiopia's parliamentary Natural Resource Conservation Commission will strongly advocate for the inclusion of participatory forest management in the nation's new forest management plan. These government leaders visited the Chilmo-Gaji forest area, where the British nongovernmental organization Farm Africa has implemented participatory forest management in which communities and the government partner to manage the forest resources. The rate of deforestation in Chilmo has plummeted since the inception of the program in 1991; this proof of efficacy convinced parliamentary leaders to promise to incorporate the management approach into new legislation. See http://allafrica.com/stories/200706200815.html
CANADA TO BURY NUCLEAR WASTE
Canada announced earlier this month its approval of a plan to bury nuclear waste at a facility far below the ground's surface. Waste from Canada's nuclear power plants, which provide 15 percent of the nation's energy, is currently stored above ground. Opponents say the plan does not guarantee the containment of the waste, which will remain radioactive for several centuries. Natural Resources Minister Gary Lunn supports increased nuclear energy production to lessen the country's reliance on coal-fired plants. See http://www.enn.com/today.html?id=12963
Copyright© 2007, Environmental Law Institute, Washington, D.C. All rights reserved.
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