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Weekly Update Volume 36, Issue 9



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


The D.C. Circuit vacated EPA's equipment replacement provision (ERP) rule, which expanded the routine maintenance, repair, and replacement exclusion from NSR requirements by allowing sources to avoid NSR when replacing equipment that does not exceed 20% of the total unit's value notwithstanding a resulting increase in emissions. CAA §111(a)(4) defines "modification" as "any physical change" that results in increases of emissions. Congress' use of the word "any" in defining a "modification" means that all types of "physical changes" are covered. Although the phrase "physical change" is susceptible to multiple meanings, the word "any" makes clear that activities within each of the common meanings of the phrase are subject to NSR when the activity results in an emission increase. As Congress limited the broad meaning of "any physical change," directing that only changes that increase emissions will trigger NSR, no other limitation can be implied. The definition of "modification," therefore, does not include only physical changes that are costly or major. Second, Congress defined "modification" in terms of emission increases, but the ERP would allow equipment replacements resulting in non-de minimis emission increases to avoid NSR. The ERP rule is therefore contrary to the plain language of CAA §111(a)(4). New York v. Environmental Protection Agency, No. 03-1380, 36 ELR 20056 (D.C. Cir. Mar. 17, 2006) (20 pp.).


A district court granted in part and denied in part Massachusetts government officials' motions to dismiss CAA claims filed against them by an environmental group concerning the Central Artery/Third Harbor Tunnel project in Boston, also known as the "Big Dig." The group's claims stem from alleged delays in or non-completion of 20 public transit projects designed to offset the negative environmental impact of the Big Dig. In failing to complete these projects, the group argues, the officials violated the Massachusetts SIP and failed to fulfill their part of the Big Dig bargain. In order to bring a CAA citizen suit, a plaintiff must allege a violation of a specific "emission standard or limitation" that is "in effect under" the CAA or a state's SIP. Because there are no performance deadlines for the construction of a rail line to T.F. Green Airport in Rhode Island or the implementation of signalization technology to give priority to mass transit vehicles in greater Boston, the group's claims that the officials failed to complete these projects were dismissed since they are not federally enforceable. The group's remaining claims, however, adequately provide for the court's jurisdiction under the CAA citizen suit requirements. Conservation Law Foundation, Inc. v. Romney, No. C.A.05-10487 NG, 36 ELR 20057 (D. Mass. Mar. 20, 2006) (Gertner, J.) (11 pp.).


The Eighth Circuit reversed the dismissal of a developer's suit against the U.S. Army Corps of Engineers in which it sought to compel the Corps to take action on its application to construct a span bridge under Nationwide Permit 14. The district court dismissed the claim, holding that its prior orders in a related case barred the instant action under the doctrines of res judicata and collateral estoppel. The doctrine of res judicata, however, does not apply. The developer's span bridge application did not yet exist at the time of the earlier decision. Nor do the two cases involve the same causes of action. The first case concerned environmental group's challenge against the Corps for approving the developer's improvements to an existing bridge. Here, the developer is seeking to compel the Corps to act on its application for a new bridge. Similarly, the doctrine of collateral estoppel does not apply. Although the developer intervened in the earlier case, the issue sought to be precluded is not identical to the issue previously decided, the prior action did not result in a final adjudication on the merits of the instant case, and the developer was not given a full and fair opportunity to be heard on the issue of its span bridge application. Ripplin Shoals Land Co. v. United States Army Corps of Engineers, No. 05-1289, 36 ELR 20055 (8th Cir. Mar. 17, 2006) (21 pp.).


New York's highest court removed the New York Superfund disposal tax--Environmental Conservation Law §27-0923(2)--from its statutory financing scheme for the cleanup of inactive hazardous waste disposal sites. The courts below have already held, and the state does not contest, that the disposal tax unlawfully discriminates against interstate commerce and violates the U.S. Commerce Clause. Removing the disposal tax in its entirety does the least damage to the overall statutory design. This approach preserves the generator tax as a revenue stream, and it does not significantly curtail revenues for funding hazardous waste cleanups because waste-end taxes, as a whole, are a small part of the overall financing scheme. CWM Chemical Services, LLC v. Roth, No. 3, 36 ELR 20060 (N.Y. Mar. 23, 2006) (7 pp.).


A North Carolina appellate court affirmed a civil penalty assessed against a land developer for violating of the North Carolina Sedimentation Pollution Control Act. The lower court properly rejected the developer's claim that its activities fell under the Act's forestry exemption. The exemption applies to activities specifically undertaken "for the production and harvesting of timber and timber products," not to drainage activities for other purposes. In addition, the lower court properly placed the burden of proving the exemption on the developer. Last, the state agency was not required to follow its written memoranda on forestry operations. These memoranda are unenforceable because they were never promulgated as rules. And even if they were enforceable, the agency substantially complied with them. Holly Ridge Associates, LLC, v. North Carolina Department of Environment and Natural Resources, No. COA03-1686, 36 ELR 20059 (N.C. Ct. App. Mar. 21, 2006) (10 pp.).


A district court dismissed property owners' claims that the District of Columbia, through the use of eminent domain, instituted an unconstitutional taking of their property. An ongoing condemnation proceeding before the Washington, D.C., Superior Court provides an adequate opportunity for one of the property owners to raise his federal claims. And the remaining property owners' claims were dismissed as unripe because the city has not yet executed a taking of their property. Franco v. District of Columbia, No. 05-1058, 36 ELR 20058 (D.D.C. Mar. 22, 2006) (Urbina, J.) (7 pp.).

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


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


  • EPA issued an administrative stay delaying the effective date of the NESHAPs for particulate matter (PM) for new cement kilns that burn hazardous waste so that it can reconsider the provision; it appears that the promulgated standard is overly stringent in that it does not fully reflect the variability of the best performing source over time. 71 FR 14655 (3/23/06).
  • EPA granted a petition to reconsider the NESHAPs for PM for new cement kilns that burn hazardous waste (see above for the administrative stay). 71 FR 14665 (3/23/06).
  • EPA proposed to update a portion of the outer continental shelf (OCS) air regulations pertaining to the requirements for OCS sources by the Ventura County air pollution control district in California. 71 FR 14662 (3/23/06).
  • SIP Approvals: California (volatile organic compound (VOC) emissions) 71 FR 14652 (3/23/06). Colorado (revisions to regulation no. 1) 71 FR 14650 (3/23/06). Indiana (PM emissions) 71 FR 14383 (3/22/06). Maine (one- and eight-hour ozone nonattainment areas) 71 FR 14815 (3/24/06). Nevada (PM emissions) 71 FR 14386 (3/22/06). North Carolina (carbon monoxide NAAQS maintenance plan) 71 FR 14817 (3/24/06). Oregon (La Grande redesignation request) 71 FR 14393 (3/22/06); (Lakeview redesignation request) 71 FR 14399 (3/22/06). Vermont (incorporation by reference) 71 FR 14388 (3/22/06).
  • SIP Proposals: California (VOC emissions; see above for direct final rule) 71 FR 14657 (3/23/06). Colorado (revisions to regulation no. 1; see above for direct final rule) 71 FR 14657 (3/23/06). Indiana (PM emissions; see above for direct final rule) 71 FR 14436 (3/22/06). Mississippi (PSD and new source review) 71 FR 14658 (3/23/06). Missouri (operating permits program) 71 FR 14439 (3/22/06). Nevada (PM emissions; see above for direct final rule) 71 FR 14437 (3/22/06). North Carolina (carbon monoxide NAAQS maintenance plan; see above for direct final rule) 71 FR 14831 (3/24/06). Oregon (La Grande redesignation request; see above for direct final rule) 71 FR 14438 (3/22/06); (Lakeview redesignation request; see above for direct final rule) 71 FR 14438 (3/22/06).


  • EPA announced that Indiana's UST program satisfies all of the requirements necessary to qualify for approval. 71 FR 14442 (3/22/06).
  • EPA approved a modification to Wisconsin's municipal solid waste landfill (MSWLF) permit program that allows the state to issue research, development, and demonstration permits to owners and operators of MSWLF units. 71 FR 14217 (3/21/06).
  • EPA entered into a proposed administrative settlement under CERCLA §122(h)(1) concerning the Patrick Bayou Superfund site located in Deer Park, Texas. 71 FR 13971 (3/20/06).


  • OSM approved an amendment to Wyoming's abandoned mine land reclamation plan under SMCRA that removes phrases concerning liens for reclamation on private lands and removes and adds words concerning contract eligibility. 71 FR 14643 (3/23/06).


  • EPA announced the availability of its revised risk assessments for the pesticide carbofuran. 71 FR 14513 (3/22/06).
  • EPA announced the availability of its reregistration eligibility decision for the pesticide xylene and opened a public comment period on this document, related risk assessments, and other support documents. 71 FR 14511 (3/22/06).
  • EPA granted experimental use permits to Agricultural Research Initiatives, Inc., located in Fayetteville, Arkansas, for the purposes of experiment and research. 71 FR 14525 (3/22/06).


  • EPA announced that it concurs with the determinations of the U.S. Army Corps of Engineers, Kentucky, and Tennessee that adequate and reasonably available pumpout facilities exist on Dale Hollow Lake in the two states. 71 FR 14692 (3/23/06).
  • EPA gave notice that Virginia has revised both its approved public water system supervision program and its regulations for issuing variances and exemptions. 71 FR 14218 (3/21/06).


  • FWS proposed regulations that would authorize the nonlethal, incidental, unintentional take of small numbers of polar bears and Pacific walrus during year-round oil and gas industry exploration, development, and production operations in the Beaufort Sea and adjacent northern coast of Alaska. 71 FR 14446 (3/22/06).
  • FWS announced the initiation of a five-year review of 56 species under ESA §4(c)(2)(B) to ensure that the classification of a species as threatened or endangered is accurate and based on the best scientific and commercial data. 71 FR 14538 (3/22/06).
  • FWS announced that it has expanded its ongoing five-year review of the Florida subspecies of the West Indian manatee to include the entire West Indian manatee species. 71 FR 14940 (3/24/06).
  • FWS announced the availability of a final comprehensive conservation plan and FONSI for the Theodore Roosevelt National Wildlife Refuge, which is located in the Mississippi Delta. 71 FR 14246 (3/21/06).
  • FWS announced the availability of a draft comprehensive conservation plan and EA for the Kirwin National Wildlife Refuge in Kirwin, Kansas. 71 FR 14939 (3/24/06).
  • NMFS provided notice that it increased the number of fisheries for which Marine Mammal Authorization Program registration is integrated with existing state and federal fishery licensing and permitting programs in selected Atlantic Ocean, Gulf of Mexico, and Caribbean fisheries. 71 FR 13966 (3/20/06).
  • NMFS announced that it intends to review the status of the Cook Inlet beluga whale under the ESA to determine if this group of whales should be listed as an endangered or threatened species as it did in years 1998 and 2000. 71 FR 14836 (3/24/06).
  • NMFS denied a petition to redefine the southern boundary of the Central California Coast coho salmon evolutionarily significant unit to exclude coho salmon populations in the counties south of San Francisco Bay, California, because the petitioners failed to present substantial scientific or commercial information. 71 FR 14683 (3/23/06).
  • NMFS issued an incidental harassment authorization to the Scripps Institution of Oceanography to take marine mammals by Level B harassment incidental to conducting a marine seismic survey in the eastern tropical Pacific Ocean. 71 FR 14839 (3/24/06).
  • NMFS gave notice that a one-year letter of authorization has been issued to the 30th Space Wing, U.S. Air Force, to harass seals and sea lions incidental to rocket and missile launches on Vandenberg Air Force Base, California. 71 FR 14853 (3/24/06).
  • NMFS announced that it issued permits to Dr. Alejandro Acevedo-Gutierrez of Western Washington University to conduct scientific research on marine mammals. 71 FR 14503 (3/22/06).


  • EPA's Office of Civil Rights issued the Title VI Public Involvement Guidance for EPA Assistance Recipients Administering Environmental Permitting Programs. 71 FR 14207 (3/21/06).


  • United States v. Pflueger, No. 06-00140 SPK BMK (D. Haw. Mar. 9, 2006). Settling CWA defendants that illegally discharged stormwater in connection with their construction activities in Kauai, Hawaii, must pay a $2 million civil penalty, must perform a supplemental environmental project designed to reduce the inflow of pollution to receiving waters (at an estimated cost of $200,000), must complete measures necessary to abate further discharges of pollution, and must repair the damage done to waterways on their property. 71 FR 14546 (3/22/06).

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



  • S. 2430 (DeWine, R-Ohio) (Great Lakes Fish and Wildlife Restoration Act of 1990) would amend the Great Lakes Fish and Wildlife Restoration Act of 1990 to implement recommendations of the FWS contained in the Great Lakes Fishery Resources Restoration Study. 152 Cong. Rec. S2312 (daily ed. Mar. 16, 2005). The bill was referred to the Committee on Environment and Public Works.
  • S. 2432 (Boxer, D-Cal.) (public lands and rivers) would designate certain public land as wilderness and certain rivers as wild and scenic rivers in the state of California, designate Salmon Restoration Areas, and establish the Sacramento River National Recreation Area and Ancient Bristlecone Pine Forest. 152 Cong. Rec. S2312 (daily ed. Mar. 16, 2005). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2440 (Cantwell, D-Wash.) (Oil Pollution Act (OPA)) would provide the Coast Guard and NOAA with additional authorities under OPA to strengthen the Act. 152 Cong. Rec. S2313 (daily ed. Mar. 16, 2005). The bill was referred to the Committee on Commerce, Science, and Transportation.
  • H.R. 4990 (Israel, D-N.Y.) (Clean Energy Bond Acts) would provide for the establishment by the Secretary of Energy of a program of federal support for local governments that establish Clean Energy Bond Acts. 152 Cong. Rec. H1128 (daily ed. Mar. 16, 2005). The bill was referred to the Committee on Energy and Commerce.
  • H.R. 5006 (Solis, D-Cal.) (public lands and rivers) would designate certain public land as wilderness and certain rivers as wild and scenic rivers in the state of California, designate Salmon Restoration Areas, and establish the Sacramento River National Recreation Area and Ancient Bristlecone Pine Forest. 152 Cong. Rec. H1129 (daily ed. Mar. 16, 2005). The bill was referred to the Committee on Resources.

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


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:

California Illinois North Carolina Virginia
Delaware Maine Ohio Wisconsin
Florida Maryland Tennessee



Toxic Substances:

  • The Office of Environmental Health Hazard Assessment announced a public comment period and public workshop on the child-specific toxicity criteria for endosulfan and lead for use in assessing health risks at existing and proposed school sites. The workshop will be held April 12, 2006. Comments are due May 1, 2006. See http://oehha.org/public_info/public/kids/chrd031706.html



  • The Department of Natural Resources and Environmental Control, Division of Air and Waste Management, Air Quality Management Section, will conduct a public hearing on a proposed revision to the SIP for the attainment and maintenance of the NAAQS. The revision amends Regulation No. 2, Permits, of the "Regulations Governing the Control of Air Pollution." The proposed amendments make minor revisions to ensure that the regulatory language is clear that all Regulation No. 2 permits are federally enforceable, regardless of whether they are intended to limit potential to emit, and renumber the regulation to make it consistent with the style manual of the Code of Delaware Regulations. The hearing will be held April 26, 2006. See http://www.dnrec.state.de.us/DNREC2000/Admin/Press/PublicNotices/PNDetail.asp?NOVID=1862




Land Use :

  • The Department of Environmental Protection announced changes to the notice of proposed rulemaking previously published on July 8, 2005, to amend Chapter 62C-16, F.A.C. (Docket No. 04-39R) (OGC No. 05-1655). The text of proposed amendments to Mandatory Phosphate Mine Reclamation has been altered. See http://tlhora6.dep.state.fl.us/onw/publications/11-NOC62C16-3-17-06-INT.pdf




Land Use:

  • The Board of Environmental Protection adopted amendments to Chapter 1000, State of Maine Guidelines for Municipal Shoreland Zoning Ordinances. This rule amends the minimum requirements for municipal shoreland zoning ordinances, pursuant to the Mandatory Shoreland Zoning Act (38 MRSA §438-A(1)). Amendments include, among other changes, the addition of statewide timber harvesting standards, a new General Development II district, modification of the standards for vegetative buffers, and increased structure setback requirements for structures adjacent to unstable and highly unstable coastal bluffs. The amendments also update the criteria for designating areas adjacent to certain wetlands as Resource Protection. Areas within 250 feet of moderate and high value waterfowl and wading bird habitat as of May 1, 2006, are to be zoned for Resource Protection. Effective May 1, 2006. See http://www.maine.gov/sos/cec/rules/notices/2006/032206.htm



  • The Maryland Department of the Environment will hold a public hearing on three documents related to the Kent and Queen Anne’s Counties eight-hour ozone nonattainment area: (1) Redesignation Request for Kent and Queen Anne’s Counties Eight-hour Nonattainment Area; (2) Maintenance Plan and 2002 Base Year Emission Inventory for the Kent and Queen Anne’s Counties Eight-hour Ozone Nonattainment Area; and (3) Revisions to Kent and Queen Anne’s Counties One-hour Ozone Maintenance Plan. The hearing will be held April 18, 2006. Written comments are due April 18, 2006. See http://www.mde.state.md.us/assets/document/KQA-PubHearingNotice.pdf



  • The Coastal Resource Commission rescheduled its March 25, 2006, hearing on proposed amendments to rules 15A NCAC 07H .1102-.1103, .1203, .1302-.1303, .1403, .1503, .1603, .1703, .1803, .1903, .2003, .2102-.2103, .2203, .2303,.2430, .2503, .2603, .2703; and 07K .0208 for June 22, 2006. The comment period has been extended to June 22, 2006. See http://www.ncoah.com/rules/register/Volume20Issue18.pdf (p. 1552)







  • The Department of Environmental Quality will hold a public hearing on a proposed revision to the Virginia SIP. The proposed revision would amend existing regulations that contain the state list of nonattainment areas in order to include the U.S. EPA designation of a very fine particulate (PM2.5) nonattainment area. The Northern Virginia PM2.5 Nonattainment Area consists of Arlington County, Fairfax County, Loudoun County, Prince William County, Alexandria City, Fairfax City, Falls Church City, Manassas City, and Manassas Park City. The department is seeking comment on the issue of whether the regulation amendments should be submitted to U.S. EPA as a revision to the SIP. The hearing will be held April 18, 2006. See http://www.townhall.state.va.us/meeting/ViewMeeting.cfm?Meeting_ID=7221



Hazardous & Solid Wastes:

  • The Department of Natural Resources will hold public hearings on the creation of §NR 47.93, Wis. Adm. Code, relating to the forestry research and development grant program. Wisconsin Act 25 (2005) created §26.385, Stats., which authorizes the department to promulgate rules for the forestry research and development grant program. The proposed § NR 47.93 will establish the purpose, applicability, definitions, grant solicitation and public notice, contractor selection criteria, and grant agreement provisions of the program. The intent of the program is to provide grants to organizations experienced in the commercialization of energy technologies related to forestry biomass as energy and biochemical sources. The program will further the development of alternative renewable energy sources to benefit public health and the environment. The forestry research and development grant program will only provide state match grants required for federal grant programs for forestry biomass research and development. Public hearings will be held April 24 and 26, 2006. See http://www.dnr.state.wi.us/org/caer/ce/news/hearmeet.html
  • The Department of Natural Resources will hold public hearings on the amendment of §NR 520.04(1)(d)5., Wis. Adm. Code, relating to balances in the Waste Management Program Revenue Account. The intent of the proposed rule is to make the rule more manageable from a budgeting perspective. The current rule requires the department to modify the landfill license surcharge fee if the account balance is greater than 8% of the expenditure level for the previous fiscal year. The proposed rule will revise the language to require the department to modify the surcharge fee to more closely align revenues with expenditures if the account balance exceeds 20% of the expenditure level of the program revenue account for three consecutive fiscal years. Public hearings will be held April 18 and 19, 2006. See http://www.dnr.state.wi.us/org/caer/ce/news/hearmeet.html

Land Use:

  • The Department of Natural Resources will hold public hearings on revisions to chs. NR 135 and 340, Wis. Adm. Code, relating to the reclamation of nonmetallic mining sites. Public hearings will be held April 13 and 14, 2006. See http://www.dnr.state.wi.us/org/caer/ce/news/hearmeet.html


  • The Department of Natural Resources will hold a public hearing on the repeal of chs. NR 127, 128, and 160 and the repeal and recreation of ch. NR 166, Wis. Adm. Code, relating to the Safe Drinking Water Loan Program. Chapters NR 127, 128, and 160 were the rules for grant programs that have been obsolete for more than 10 years due to changes in federal regulations and state statutes. Chapter NR 166 is being repealed and recreated to clarify the eligibility, procurement, amendment, and scoring sections of the rule. The updated rule includes new subsections in the eligibility and amendments section of ch. NR 166 to add existing program policies into the rule. In addition, language is added to limit the refinancing of local governmental units’ existing debt on projects that are already constructed. The hearings will be held April 11 and 12, 2006. See http://www.dnr.state.wi.us/org/caer/ce/news/hearmeet.html

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



  • Indonesia will take the U.S. mining company Freeport-McMoRan to court if it does not improve its environmental performance at its gold and copper mine in the Papua province. The government alleges that the company has violated Indonesia's environmental standards with its waste management practices and sulfur dioxide emissions from a power plant. See http://www.forbes.com/finance/feeds/afx/2006/03/23/afx2615970.html


  • China will introduce a range of consumption taxes to help achieve the national goals of decreasing energy consumption and environmental degradation. One of the most significant changes will be a 20% increase in taxes on the most polluting vehicles and a discount on environmentally friendly vehicles. The new taxes, which go into effect April 1, also include levies on oil products and wood products. See http://www.indystar.com/apps/pbcs.dll/article?AID=/20060317/NEWS06/603170502/1012


  • The United Kingdom will increase the tax for gas-guzzling cars to 210 pounds, introduce a zero rate for the most environmentally friendly cars, and set the tax on low emission cars at 40 pounds. The taxes, combined with other climate change measures, are expected to cut emissions by over 6 million tons each year. See http://news.bbc.co.uk/1/hi/business/4832880.stm

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

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