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Weekly Update Volume 36, Issue 4



Note: The cases listed are available from the ELR Document Service.


The Seventh Circuit dismissed a petition for review of an EPA general permit for stormwater discharges from construction activities. The petition was brought by organizations representing individuals in the oil and gas industries. Because the Energy Policy Act of 2005 expressly exempts construction activities in the oil and gas industries from the permit requirements of the CWA, the general permit does not apply to individuals. The petitioners, therefore, lack standing. Texas Independent Producers & Royalty Owners Ass'n v. Environmental Protection Agency, No. 03-3277, 36 ELR 20027 (7th Cir. Jan. 27, 2006) (16 pp.).


The Sixth Circuit affirmed a lower court's grant of summary judgment in favor of a trade association declaring that a county's proposed ordinance involving waste disposal is unconstitutional and enjoining the county from its enforcement. By forcing the trade association's members to use the county's disposal and transfer facilities, the ordinance would prohibit these members from using other in-state and out-of-state facilities. The ordinance, therefore, is facially discriminatory against out-of-state interests. The fact that the county acts as both a business and a government, as opposed to just a government, does not cloak its facially protectionist activity from the appropriate scrutiny under the Commerce Clause. National Solid Wastes Management Ass'n v. Daviess County, No. 04-6498, 36 ELR 20028 (6th Cir. Jan., 24, 2006) (13 pp.).


The California Supreme Court held that the Z'berg-Nejedly Forest Practice Act and its implementing regulations do not provide the exclusive mechanism through which regional and state water control boards may address water quality concerns implicated by logging operations associated with a timber harvest plan. After the California Department of Forestry approved a lumber company's timber harvest plan, the water boards issued orders directing a lumber company to adopt a water quality monitoring program. The lumber company argued that the orders were invalid under the Z'berg-Nejedly Forest Practice Act because the Act implicitly allocates to the Department of Forestry exclusive responsibility for protecting state waters affected by timber harvesting. The Act's savings clause, however, expressly disclaims any interference with the responsibilities of other agencies, and the Porter-Cologne Water Quality Control Act specifically authorizes the water quality monitoring ordered by the water boards in this case. Pacific Lumber Co. v. State Water Resources Control Board, No. S124464, 36 ELR 20029 (Cal. Jan. 30, 2006) (33 pp.).


A California appellate court held that a lower court erred in denying a citizen group's petition challenging the California Department of Food and Agriculture's (DFA's) certification of a program for controlling a crop disease with pesticides. The DFA abused its discretion by failing to fulfill its obligation under CEQA to analyze the environmental effects of statewide pesticide use under the rapid response and containment elements of the program. Instead of analyzing environmental consequences of pesticide use, it repeatedly deferred to the California Department of Pesticide Regulation regulatory scheme. A lead agency, such as the DFA, cannot forego environmental analysis by relying on the certified regulatory and registration program operated by another agency. Californians for Alternatives to Toxics v. Department of Food & Agriculture, No. A107088, 36 ELR 20030 (Cal. App. 1st Dist. Dec. 29, 2005) (31 pp.).


A California appellate court held that a city did not unlawfully surrender its police power or improperly amend its general plan by entering into a settlement agreement to resolve environmental litigation brought against it. The case arose after the city council, in light of the settlement agreement, voted to approve an amendment to its general plan that would remove the plaintiff's property from the city's sphere of influence. Although a municipality may not contract away its legislative and governmental functions, nothing in the settlement agreement suggests that the city has given up its authority to alter or amend its general plan as future circumstances may dictate. The agreement does no more than set forth the manner in which the city will interpret certain provisions of its general plan. 108 Holdings, Ltd. v. City of Rohnert Park, No. A108629, 36 ELR 20031 (Cal. App. 1st Dist. Jan. 31, 2006) (28 pp.).

Copyright© 2006, Environmental Law Institute, Washington, D.C. All rights reserved.


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


  • EPA made an interim final determination to stay sanctions based on a proposed approval of revisions to the Yolo-Solano air quality management district portion of the California SIP. 71 FR 5174 (2/1/06).
  • SIP Approvals: California (volatile organic compound emissions) 71 FR 5172 (2/1/06). Maine (nitrogen oxides exemption) 71 FR 5791 (2/3/06). Maryland (control of incinerators) 71 FR 5033 (1/31/06); (update to materials) 71 FR 5607 (2/2/06). Virginia (volatile organic compound emissions control area) 71 FR 5035 (1/31/06).
  • SIP Proposals: California (volatile organic compound emissions; see above for direct final rule) 71 FR 5211 (2/1/06). Minnesota (alternative public participation process) 71 FR 5205 (2/1/06).
  • SIP Disapproval: Montana (aluminum plants exemption) 71 FR 4822 (1/30/06).


  • EPA entered into a proposed administrative settlement under CERCLA §122(h)(1) concerning the Patclin Chemical Superfund site located in Westchester County, New York. 71 FR 5059 (1/31/06).
  • EPA entered into a proposed administrative settlement under CERCLA §122(h) concerning the CPS/Madison Superfund site located in Middlesex County, New Jersey. 71 FR 4916 (1/30/06).


  • OSM announced its decision under SMCRA to terminate direct federal enforcement for those parts of the Missouri permanent regulatory program for which the agency substituted federal enforcement. 71 FR 5547 (2/1/06).
  • OSM approved an amendment to the Iowa regulatory program under SMCRA concerning its small operator assistance program. 71 FR 5005 (1/31/06).


  • EPA announced the availability of its risk assessments and related documents for inorganic chlorates. 71 FR 5318 (2/1/06).


  • The National Park Service completed a wilderness suitability assessment for the Cape Cod National Seashore in Massachusetts and concluded that the natural zones within the seashore warrant further study for possible inclusion as wilderness. 71 FR 5361 (2/1/06).
  • The National Park Service completed a wilderness suitability assessment for the Redwood National Park in California and concluded that the lands within the park do not warrant further study for wilderness evaluation at this time. 71 FR 5362 (2/1/06).


  • FWS announced that the final comprehensive conservation plan for Driftless Area National Wildlife Refuge in Illinois, Iowa, and Wisconsin is available. 71 FR 5874 (2/3/06).
  • NMFS applied the protective regulations for threatened West Coast salmon and steelhead to Upper Columbia River steelhead after determining that the existing protective regulations for threatened West Coast salmonids are necessary and advisable for the conservation of Upper Columbia River steelhead. 71 FR 5178 (2/1/06).
  • NOAA announced temporary restrictions consistent with the requirements of the Atlantic Large Whale Take Reduction Plan's implementing regulations in order to provide protection to an aggregation of northern right whales. 71 FR 5180 (2/1/06).
  • FWS proposed to revise critical habitat for the endangered Alabama beach mouse located in Baldwin County, Alabama. 71 FR 5515 (2/1/06).
  • FWS announced the availability of the technical/agency draft of the third revision of the Florida Panther Recovery Plan that includes specific recovery objectives and criteria to be met in order to reclassify and eventually delist the Florida panther under the ESA. 71 FR 5066 (1/31/06).
  • FWS proposed to implement the Captive Wildlife Safety Act, which amends the Lacey Act by making it illegal to import, export, buy, sell, transport, receive, or acquire, in interstate or foreign commerce, live lions, tigers, leopards, snow leopards, clouded leopards, cheetahs, jaguars, or cougars, or any hybrid combination of any of these species, unless certain exceptions are met. 71 FR 5041 (1/31/06).
  • NMFS issued permits to Natural Resource Scientists, Inc., the Turlock Irrigation District, the Interagency Ecological Program, and KDH Environmental Services for the take of anadromous fish after determining that the take levels authorized in the permits will not jeopardize the continued existence of the ESA-listed salmon and steelhead nor result in the destruction or adverse modification of their critical habitat. 71 FR 4897 (1/30/06).


  • EPA updated its position statement on environmental management systems (EMSs) and encourages organizations to implement EMSs that result in improved environmental performance and compliance, cost-savings, pollution prevention through source reduction, and continual improvement. 71 FR 5664 (2/2/06).

Copyright© 2006, Environmental Law Institute, Washington, D.C. All rights reserved.



  • S. 1219 (Montana Indian Water Rights), which would authorize certain tribes in the state of Montana to enter into a lease or other temporary conveyance of water rights to meet the water needs of the Dry Prairie Rural Water Association, Inc., was passed by the Senate. 152 Cong. Rec. S460 (daily ed. Feb. 2, 2006).


  • H.R. 3897 (Madera Water Supply and Groundwater Enhancement Project) was reported by the Committee on Resources. H. Rep. No. 109-368, 152 Cong. Rec. H23 (daily ed. Jan. 31, 2006). The bill would authorize the Secretary of the Interior, acting through the Bureau of Reclamation, to enter into a cooperative agreement with the Madera Irrigation District for purposes of supporting the Madera Water Supply and Groundwater Enhancement Project.


  • S. 2204 (Ensign, R-Nev.) (land conveyance) would validate certain conveyances made by the Union Pacific Railroad Company of lands located in Reno, Nevada, that were originally conveyed by the United States to facilitate construction of transcontinental railroads. 152 Cong. Rec. S211 (daily ed. Jan. 26, 2006). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2205 (Thune, R-S.D.) (land conveyance) would direct the Secretary of the Interior to convey certain parcels of land acquired for the Blunt Reservoir and Pierre Canal features of the initial stage of the Oahe Unit, James Division, South Dakota, to the Commission of Schools and Public Lands and the Department of Game, Fish, and Parks of the state of South Dakota for the purpose of mitigating lost wildlife habitat, on the condition that the current preferential leaseholders shall have an option to purchase the parcels from the Commission. 152 Cong. Rec. S211 (daily ed. Jan. 26, 2006). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2239 (Martinez, R-Fla.) (offshore drilling) would prohibit offshore drilling on the outer continental shelf off the state of Florida. 152 Cong. Rec. S446 (daily ed. Feb. 2, 2006). The bill was referred to the Committee on Energy and Natural Resources.
  • H.R. 4686 (Gilchrest, R-Md.) (fisheries) would reauthorize various fisheries management laws. 152 Cong. Rec. H153 (daily ed. Feb. 2, 2006). The bill was referred to the Committee on Resources.

Copyright© 2006, 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 2006, 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 2006, visit the ELR Archives.

The states below have updates this week:

Arkansas Missouri Oklahoma Utah
California New York Rhode Island Virginia
Florida North Carolina Texas  



  • The Arkansas Pollution Control and Ecology Commission will hold a public hearing on March 30, 2006, to receive comments on proposed changes to Commission Regulation No. 3, Licensing of Wastewater Treatment Plant Operators in Arkansas. Proposed changes include the establishment of a definite procedure for suspension or revocation of a wastewater treatment plant operator’s license, new requirements for an Apprentice Industrial Wastewater Operator license, removal of the Industrial Wastewater Conversion procedure and outdated language, and clarification of requirements for correspondence courses and of the license examination process. Comments are due April 13, 2006. See http://www.adeq.state.ar.us/ftproot/pub/pa/Regulation_Notices/2006-02-01_Notice_of_Proposed_Changes_to_Regulation_3.mht
  • The Arkansas Pollution Control and Ecology Commission will hold a public hearing on March 27, 2006, to receive comments on proposed changes to Commission Regulation No. 6, the NPDES program in Arkansas. Proposed changes include a new definition of the term “operator,” clarification that the recommended standards for sewage works be considered for basic design criteria for wastewater treatment plants in addition to the recommended standards for wastewater facilities, and clarification that only concentrated animal feeding operations with actual wastewater discharges, as opposed to potential discharges, are required to apply for an NPDES permit. Written comments are due April 10, 2006. See http://www.adeq.state.ar.us/ftproot/pub/pa/Regulation_Notices/2006-02-01_Notice_of_Proposed_Changes_to_Regulation_6.mht
  • The Arkansas Pollution Control and Ecology Commission will hold public hearings on March 6, 2006, to receive comments on proposed revisions to Commission Regulation No. 19, SIP for air pollution control, and for adoption of a proposed new Regulation No. 31, nonattainment new source review. Chapter 12, which deals with areas designated as not meeting federal air quality standards, would be repealed from Regulation 19 and incorporated into the new Regulation 31. Proposed changes to Regulation 19 also include a date change concerning delegated federal air quality programs. Proposed new Regulation 31 would establish permitting requirements for major air emissions sources in areas not meeting federal air quality standards as well as an Economic Development Zone for Crittenden County, which currently is not meeting the federal air quality standard for ozone. Comments are due March 20, 2006. See http://www.adeq.state.ar.us/ftproot/pub/pa/Regulation_Notices/2006-02-01_Notice_of_Proposed_Changes_to_Regulation_19;_New_Regulation_31.doc



  • The California Air Resources Board will hold a public consultation meeting on February 24, 2006, to discuss and provide input on proposed amendments to the Statewide Portable Equipment Registration Regulation. See http://www.arb.ca.gov/portable/perpact/mtgs/meeting3.pdf
  • The California Air Resources Board will conduct a public meeting on February 23, 2006, to consider the approval of proposed revisions to the Lower-Emission School Bus Program Guidelines. The revised guidelines are protocols that will be used by the California Energy Commission and local air pollution control and air quality management districts in implementing the program with 2005-2006 fiscal year state budget funds. The revised guidelines also provide the protocols applicable to other funds for lower-emission school bus projects, such as Assembly Bill 923 funds or other local air district funds. See http://www.arb.ca.gov/msprog/schoolbus/2006/meetnote.pdf

Toxic Substances:

  • The deadline to comment on (2,4-dichlorphenoxy) acetic acid; 2,4-D n-butyl ester; 2,4-D isopropyl ester; 2,4-D isooctyl ester; propylene gylcol butyl ether ester (of 2,4-D); 2,4-D butoxyethanol ester; and 2,4-D dimethylamine salt has been extended to March 20, 2006. See http://oehha.org/prop65/CRNR_notices/admin_listing/intent_to_list/2ndEXTNOIL5B.html
  • The Office of Environmental Health Hazard Assessment announced the availability for review and comment the draft report entitled, “Development of Health Criteria for School Site Risk Assessment Pursuant to Health and Safety Code §901(g): Proposed Child-Specific Reference Dose (chRD) for School Site Risk Assessment, Atrazine and Deltamethrin.” A public workshop will be held February 17, 2006. Comments are due March 13, 2006. See http://oehha.org/public_info/public/kids/schools12606.html



  • The Department of Environmental Protection issued a notice of proposed rulemaking for Rule 62-600.550, F.A.C., which will govern domestic wastewater management in the Wekiva Study Area in Central Florida. The rule would require increased controls on nitrogen in reclaimed water being land applied within the Wekiva Study Area, which includes portions of Lake, Orange, and Seminole Counties. Additional controls on land application of residuals and discharges to surface waters also are proposed. See http://tlhora6.dep.state.fl.us/onw/publications/1-NPR62600-1-27-06-INT.pdf


Land Use:

  • The Land Reclamation Commission amended §§(1)-(7) of 10 CSR 40-7.011, Bond Requirements, to change the bond requirements for surface coal mining operations from a bond "pool" to "full cost" bonding. The rule also clarifies what types of bonds are acceptable and establishes the specific requirements for each. The emergency amendment became effective January 1, 2006, and expires June 29, 2006. See http://www.sos.mo.gov/adrules/moreg/current/2006/v31n3/v31n3a.pdf
  • The Land Reclamation Commission amended §§(1) and (2) of 10 CSR 40-7.021, Duration and Release of Reclamation Liability, to set forth requirements for the duration and release of reclamation liability and bonding under the "full cost" bonding provisions and to remove the references to the existing bond "pool" system for release of bonding to occur at surface coal mining operations. The emergency regulation became effective January 1, 2006, and expires June 29, 2006. See http://www.sos.mo.gov/adrules/moreg/current/2006/v31n3/v31n3a.pdf
  • The Land Reclamation Commission amended §§(2), (3), and (4) of 10 CSR 40-7.031, Permit Revocation, Bond Forfeiture, and Authorization to Expend Reclamation Fund Monies. The rule clarifies, revises, and sets forth requirements, criteria, and procedures for permit revocation, bond forfeiture, and authorization to expend reclamation fund monies pursuant to §§444.810, 444.830, 444.885, 444.960, and 444.970, RSMo. The emergency regulation became effective January 1, 2006, and expires June 29, 2006. See http://www.sos.mo.gov/adrules/moreg/current/2006/v31n3/v31n3a.pdf
  • The Land Reclamation Commission deleted §§(1), (2), and (3) and amended §§(4) and (5) of 10 CSR 40-7.041, Form and Administration of the Coal Mine Land Reclamation Fund. The rule sets forth requirements for administration of the Coal Mine Land Reclamation Fund pursuant to §§444.960, 444.965, and 444.970, RSMo. The emergency regulation became effective January 1, 2006, and expires June 29, 2006. See http://www.sos.mo.gov/adrules/moreg/current/2006/v31n3/v31n3a.pdf



Hazardous & Solid Wastes:

  • The Department of Environmental Conservation issued a draft of revised 6 NYCRR Part 375, the regulation that implemented the Inactive Hazardous Waste Disposal Site Remedial Program and the Environmental Restoration Program. Revised Part 375 also will now include the regulation to implement the Brownfield Cleanup Program. Public hearings will be held March 6, 9, and 15, 2006. Comments are due March 27, 2006. See http://www.dec.state.ny.us/website/der/superfund/fact375.html#publichearing



  • The Marine Fisheries Commission announced its intention to adopt 15A NCAC 03R .0114 and amend 15A NCAC 03J .0202; 03L .0103; 03M .0101, .0502; 03O .0302- .0303; and 03R .0106. 15A NCAC 03J .0202 includes two options that will help alleviate user conflicts in the Atlantic Ocean striped mullet beach seine fishery that have existed along Bogue Banks since the mid-1980s. 15A NCAC 03L .0103(c) establishes a 90-foot headrope restriction in all internal waters except Pamlico Sound and the lower portions of Pamlico and Neuse rivers.15A NCAC 03L .0103(d) establishes no shrimp trawl areas in the Pungo, Pamlico, and Neuse rivers. 15A NCAC 03M .0101 would allow fishermen to use cut up mullet for bait by exempting them from the mutilated finfish restriction. 15A NCAC 03M .0502 would help alleviate prevent the excessive harvest of striped mullet by out-of-state persons for use as bait by restricting the recreational harvest of striped mullet to 200 per person per day. 15A NCAC 03O .0302(a)(7) adds skimmer trawls to the gear allowed under a Recreational Commercial Gear License. 15A NCAC 03O .0303(e) establishes a limit of 48 quarts, heads-on, 30 quarts, heads-off, for shrimp catches. 15A NCAC 03R .0106 establishes additional trawl net prohibited areas to protect grass beds and soft bottom habitat, to decrease bycatch of small finfish and shrimp, and to address user conflicts. And 15A NCAC 03R .0114 defines waterbodies where only shrimp trawling is prohibited. Other types of trawling, such as for crabs will still be allowed. A hearing will be held April 4, 2006. Comments are due April 26, 2006. See http://www.ncoah.com/rules/register/Volume20Issue15.pdf (p. 1225)


Hazardous & Solid Wastes:

  • The Department of Environmental Quality proposed to amend Title 252, Chapter 410, to incorporate by reference the NRC's regulations in title 10 of the Code of Federal Regulations (10 CFR) as they existed on January 1, 2005, with the addition of two later-promulgated NRC regulations covering the recognition of specialty boards for the medical use of byproduct material and increased security requirements for portable gauges; to clarify that when a provision of CFR is incorporated by reference, all referenced citations are also incorporated by reference; to make conforming changes resulting from the updated incorporations by reference; to correct scrivener's errors; and to make minor formatting changes to simplify reading. Comments are due March 3, 2006. A public hearing will be held March 8, 2006. See http://www.oar.state.ok.us/register/Volume-23_Issue-10.htm


  • The Department of Wildlife Conservation issued an emergency rulemaking amending 800:25-13-6, Facility requirements, and 800:25-13-9, Tagging requirements. Private lands are being restricted unnecessarily from becoming licensed as commercial hunt areas, and this change would allow them to become licensed prior to the upcoming deer season. Effective November 16, 2005, through July 14, 2006. See http://www.oar.state.ok.us/register/Volume-23_Issue-10.htm



  • The Department of Environmental Management, the city of Warwick, and the T.F. Green Airport Advisory Group will hold a public meeting on February 9, 2006, to present a mid-term report on the air monitoring study around T.F. Green Airport. See http://www.dem.ri.gov/events/index.htm



Hazardous & Solid Wastes:



  • Section R657-19-6 is being amended to allow landowners to take Utah prairie dogs on specified private lands as part of an approved conservation agreement enacted between the FWS and the owner of the private land. The landowner must obtain a valid incidental take permit from the FWS before any action is taken. Additions in Section R657-19-7 simply refer to the new language in Section R657-19-6. Comments are due March 3, 2006. See http://www.rules.utah.gov/publicat/bulletin/2006/20060201/28454.htm
  • Section R657-24-2 is being amended to align the definition of livestock with the definition for livestock listed in Section 23-24-1. Subsection R657-24-3(1) is being amended to refer to fair market value as stated in Section 23-24-2. Comments are due March 3, 2006. See http://www.rules.utah.gov/publicat/bulletin/2006/20060201/28455.htm
  • The Division of Wildlife Resources is amending portions of R657-33, Taking Bear. Section R657-33-2 is being amended to define "limited entry permit." Section R657-33-14 is being amended to allow hunters with a limited entry bear archery permit to now use two bait stations instead of one. Section R657-33-25 is being amended to require all hunters who draw a permit to hunt black bear to complete a mandatory orientation course before their permit is distributed. Section R657-33 is being amended to provide the division additional time to process refunds. Other administrative changes are made for consistency and clarity. Comments are due March 3, 2006. See http://www.rules.utah.gov/publicat/bulletin/2006/20060201/28457.htm
  • The Division of Wildlife Resources conducted a five-year notice of review and statement of continuation for R657-39, which provides the standards and procedures for the operation of regional advisory councils. The division recommended that the rule should be continued. See http://www.rules.utah.gov/publicat/bulletin/2006/20060201/28453.htm
  • The Division of Wildlife Resources conducted a five-year notice of review and statement of continuation for R657-40,  Wildlife Rehabilitation. The division concluded that continuation of this rule is necessary for the continued success of this program. See http://www.rules.utah.gov/publicat/bulletin/2006/20060201/28456.htm



Copyright© 2006, Environmental Law Institute, Washington, D.C. All rights reserved.



  • Withdrawing international aid to the Palestinian Authority (PA) will threaten environmental projects important to both the PA and Israel, said Palestinian, Israeli, and international officials at a meeting sponsored by Friends of the Earth Middle East. International funds have enabled several waste disposal projects in the West Bank recently, which were facilitated by both Israeli and Palestinian municipalities. The head of the solid waste division of Israel's Environment Ministry warned that a funding cut will harm the entire region because "pollution knows no boundaries." See http://www.jpost.com/servlet/Satellite?cid=1138622516733&pagename=JPost%2FJPArticle%2FShowFull



  • Mexico's departments of the environment and finance have signed an agreement to halve sulfur emissions by 2020 in order to improve air quality. Limits on sulfur emissions and small particulates will take effect in July and will be gradually strengthened annually until 2009. The restrictions are expected to be among the strongest in the world, according to Mexico's environment secretary. See http://www.team4news.com/Global/story.asp?S=4434844&nav=0w0v

Copyright© 2006, Environmental Law Institute, Washington, D.C. All rights reserved.

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