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Weekly Update Volume 38, Issue 14

05/12/2008

LITIGATION

CERCLA, PREENFORCEMENT REVIEW:

The Eleventh Circuit upheld a lower court's grant of summary judgment, albeit for different reasons, in favor of the U.S. government on a property owner's citizen suit concerning the U.S. Air Force's use of property as a landfill during the 1960s, 70s, and 80s. The lower court granted summary judgment on the merits, but it should have granted summary judgment on the ground that it lacked jurisdiction to hear the case. Because there is an ongoing CERCLA remedial action taking place on the property, CERCLA bars the owner's suit. CERCLA §113(h) bars preenforcement review to all removal or remedial actions selected under §104. Although the jurisdictional bar does not apply to cleanups on federal property conducted under CERCLA §120, §120 only deals with federal property listed under the NPL. Because the property at issue here is not on the NPL, the cleanup is "selected under" §104, thereby triggering §113(h)'s jurisdictional bar to ongoing cleanups.OSI, Inc. v. United States, No. 07-10941, 38 ELR 20107 (11th Cir. May 5, 2008).

CWA, STATE CERTIFICATION:

The D.C. Circuit dismissed an energy company's petitions for review seeking declarations that Massachusetts and Rhode Island waived their rights to deny certification of a proposed dredge-and-fill operation under the CWA. The company applied for certification from the states' environmental agencies that its liquefied natural gas project would comply with the CWA's dredge-and-fill requirements. Because the agencies have yet to make final determinations, the company filed suit, arguing that by failing to act upon its application within one year of its submission, the state agencies waived their rights to deny the requested certification. The company, however, lacks standing because the company does not claim to have been injured by the state agencies' inaction. On the contrary, the company's theory of the case is that it benefited from the agencies' inaction; that is, the agencies, by failing to issue timely rulings on the company's applications, waived their rights to deny the certifications the company seeks.Weaver's Cove Energy, LLC v. Rhode Island Department of Environmental Management, No. 07-1235, 38 ELR 20105 (D.C. Cir. May 2, 2008).

CWA, STATE CERTIFICATION:

The Second Circuit upheld the Connecticut Department of Environmental Protection's denial of an energy company's request for a state water quality permit necessary to build a natural gas pipeline across the Long Island Sound. Record evidence supports the agency's finding that various techniques to be used by the company in installing the proposed pipeline would violate state water quality standards by eliminating a significant area of nearshore waters from their existing and designated use of shellfishing. Based on this record, the agency's decision to deny the company a certificate of compliance was not "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."Islander East Pipeline Co. v. McCarthy, No. 06-5764, 38 ELR 20106 (2d Cir. May 2, 2008).

RCRA, CONNECTICUT HAZARDOUS WASTE LAW, JURY INSTRUCTIONS:

The Supreme Court of Connecticut held that an individual convicted for storing and disposing of hazardous waste without a permit in violation of state law is entitled to a new trial due to improper jury instructions. The trial court improperly charged the jury as to the elements of "disposal" and "storage" by using the definitions of those terms provided in RCRA rather than those provided under the state's hazardous waste statute. The court also rejected arguments that the instruction resulted in harmless error, as the state definitions proscribe a narrower scope of conduct.State v. Cote, No. SC 18014, 38 ELR 20109 (Conn. Apr. 22, 2008).

CALIFORNIA ENVIRONMENTAL QUALITY ACT, NEW PROJECT, SIGNIFICANT IMPACTS:

A California appellate court held that a subdivision project that a county initially approved but for which subsequent delays caused the tentative map to expire is not a new project for purposes of environmental review under the California Environmental Quality Act (CEQA). Nothing significant about the activity to be undertaken on the land has changed in any way; all that has changed is that the county's previous approval of a map expired. Expiration of the tentative map was an abstract occurrence that had no effect on the project's environmental impacts. Nevertheless, supplemental environmental review is required based on new information about certain potentially significant impacts. The court, therefore, affirmed in part and reversed in part a lower court judgment denying a landowner's petition for writ of mandate and requiring the preparation of a new environmental impact.Moss v. County of Humboldt, No. A114205, 38 ELR 20108 (Cal. Ct. App. 1st Dist. May 7, 2008).

INSURANCE, INTERVENTION:

A California appellate court held that a property owner may not intervene in an insurance coverage dispute between an insurance company and the former property owner from which the current owner seeks contribution. The current owner argued that it has a legitimate interest in making coverage arguments that may affect its possibilities of recovering damages and environmental cleanup costs under its pending contribution action. It contended that without intervention, rulings could be made in its absence that would affect its rights to pursue the insurance company as a "potential" judgment creditor of the former owner. The current owner's interest, however, is purely speculative at this point.Royal Indemnity Co. v. United Enterprises, Inc., No. D051011, 38 ELR 20110 (Cal. Ct. App. 4th Dist. Apr. 23, 2008).

LAND USE, TAKINGS:

A California appellate court affirmed a lower court decision holding unripe a construction company's takings claim against the California Coastal Commission for denying its application of a coastal development permit. The court rejected the company's argument that there is no economically productive use that can be made of its property as a result of the permit denial. The company has only presented one plan to the Commission and the Commission has made only one formal decision. That formal decision does not settle the question of what development will be allowed; nor does it indicate it would be futile for the company to submit other development plans. In addition, the Commission's reasons for denying the permit were well supported by the record.Charles A. Pratt Construction Co. v. California Coastal Commission, No. B190122, 38 ELR 20111 (Cal. Ct. App. 2d Dist. May 8, 2008).

Copyright© 2008, Environmental Law Institute, Washington, D.C. All rights reserved.

THE FEDERAL AGENCIES

Note: Citations below are to theFederal Register(FR).

AIR:

  • EPA adopted comprehensive near-term and long-term emission standards for locomotives and marine diesel engines to reduce particulate matter (PM) and nitrogen oxide (NOx).73 FR 25098(5/6/08).
  • EPA withdrew final authorization of revisions to requirements for the control of hazardous air pollutants from mobile sources and for early benzene credits due to adverse comments.73 FR 26325(5/9/08).
  • SIP Approvals:Connecticut (interstate transport of air pollutants)73 FR 25516(5/7/08). Georgia (enhanced inspection and maintenance (I/M) plan for one-hour ozone nonattainment area)73 FR 24500(5/5/08). New Jersey (PM motor vehicle emissions budgets for Mercer County)73 FR 24868(5/6/08). South Dakota and Wyoming (interstate transport of pollution)73 FR 26019(5/8/08).
  • SIP Proposals:California (NOx emissions from stationary internal combustion engines in Ventura County)73 FR 26355(5/9/08). Georgia (enhanced I/M plan for one-hour ozone nonattainment area; see above for direct final rule)73 FR 24515(5/5/08). South Dakota and Wyoming (interstate transport of pollution; see above for direct final rule)73 FR 26059(5/8/08).

HAZARDOUS & SOLID WASTE:

  • EPA entered into a proposed administrative settlement under CERCLA for recovery of past and projected future response costs that requires settling parties to reimburse $56,250 to both the United States and the state of New Hampshire concerning the Elite Laundry Superfund site in Jaffrey, New Hampshire.73 FR 26111(5/8/08).

RULEMAKING:

  • The federal agencies issued their semiannual regulatory agendas providing specific information on the status of regulations under development and revision. Rulemaking actions are grouped according to prerulemaking, proposed rules, final rules, long-term actions, and rulemaking actions completed since the December 2007 agenda. (5/5/08).

WATER:

  • The U.S. Army Corps of Engineers initiated revisions to theEconomic and Environmental Principles and Guidelines for Water and Related Land Resources Implementation Studiesand requested suggested changes.73 FR 26086(5/8/08).

WILDLIFE:

  • FWS initiated a 12-month status review of the white-tailed prairie dog to determine whether listing under the ESA is warranted.73 FR 24910(5/6/08).
  • FWS announced a 90-day finding on a petition to list the Lake Sammamish kokanee as a threatened or endangered species under the ESA; the Agency found that listing may be warranted and initiated a 12-month status review.73 FR 24915(5/6/08).
  • FWS proposed designating 1,330,000 acres in Avoyelles, East Carroll, Catahoula, Concordia, Franklin, Iberia, Iberville, Madison, Pointe Coupee, Richland, St. Martin, St. Mary, Tensas, West Carroll, and West Feliciana parishes, Louisiana, as critical habitat for the Louisiana black bear.73 FR 25354(5/6/08).
  • FWS announced a 90-day finding on a petition to list the San Francisco Bay-Delta population of the longfin smelt as endangered under the ESA; the Agency found that listing may be warranted and initiated a 12-month status review.73 FR 24911(5/6/08).

DOJ NOTICES OF SETTLEMENT:

  • United States v. Sun State Builders, Inc., No. 2:08-CV-00816-HRH (D. Ariz. Apr. 29, 2008). A settling CAA defendant that violated dust control regulations in Maricopa County, Arizona, must pay a $106,000 civil penalty and must implement measures designed to abate fugitive dust emissions.73 FR 26146(5/8/08).
  • United States v. Teledyne Technologies Inc., No. 3:08-cv-1085 (N.D. Ohio Apr. 29, 2008). Settling CERCLA defendants must pay $525,000 for past response costs incurred by the U.S. Navy and must perform further response actions necessary to achieve regulatory closure for releases of hazardous substances at the Naval Weapons Industrial Reserve Plant in Toledo, Ohio.73 FR 25031(5/6/08).
  • United States v. ASARCO LLC, No. 6:08-CV-00030 DWM (D. Mont. Apr. 25, 2008). Settling CERCLA defendants must pay $16 million to the state of Montana for response action and natural resource restoration, must pay $1 million to the Forest Service for expected response costs, and must allow a general unsecured claim of $19,771,554 for additional response action and restoration work by the state and $228,446 for past response costs by the Forest Service concerning the Mike Horse site in Lewis and Clark County, Montana.73 FR 24612(5/5/08).

Copyright© 2008, Environmental Law Institute, Washington, D.C. All rights reserved.

THE CONGRESS

Note: Citations below are to theFederal Register(FR).

Public Laws

  • S. 2457 (land lease extensions), which provides for extensions of leases of certain land by Mashantucket Pequot (Western) Tribe, was signed into law by President Bush on May 8, 2008. Pub. L. No. 110-228, 154 Cong. Rec. D569 (daily ed. May 8, 2008).
  • S. 2739 (Northern Mariana Islands), which authorizes certain programs and activities in the DOI, the Forest Service, and the DOE; implements further the Act approving the Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America; and amends the Compact of Free Association Amendments Act of 2003, was signed into law by President Bush on May 8, 2008. Pub. L. No. 110-229. D569 (daily ed. May 8, 2008).

Committee Action

  • H. Res. 1175 (energy)was reported by the Committee on Rules. H. Rep. No. 110-622, 154 Cong. Rec. H3108 (daily ed. May 6, 2008). The resolution would provide for consideration of the Senate amendments to the bill (H.R. 3221) moving the United States toward greater energy independence and security, developing innovative new technologies, reducing carbon emissions, creating green jobs, protecting consumers, increasing clean renewable energy production, modernizing our energy infrastructure, and providing tax incentives for the production of renewable energy and energy conservation.

Bills Introduced

  • S. 2970 (Reid, D-Nev.) (drinking water utilities)would enhance the ability of drinking water utilities in the United States to develop and implement climate change adaptation programs and policies. 154 Cong. Rec. S3742 (daily ed. May 2, 2008). The bill was referred to the Committee on Environment and Public Works.
  • S. 2973 (Domenici, R-N.M.) (energy security)would promote the energy security of the United States. 154 Cong. Rec. S3742 (daily ed. May 2, 2008). The bill was read the first time.
  • S. 2974 (Allard, R-Colo.) (Arkansas Valley Conduit)would provide for the construction of the Arkansas Valley Conduit in the state of Colorado. 154 Cong. Rec. S3742 (daily ed. May 2, 2008). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2991 (Reid, D-Nev.) (energy prices)would provide energy price relief and hold oil companies and other entities accountable for their actions with regard to high energy prices. 154 Cong. Rec. S3891 (daily ed. May 7, 2008). The bill was read the first time.
  • S. 2994 (Levion, D-Mich.) (Federal Water Pollution Control Act) would amend the Federal Water Pollution Control Act to provide for the remediation of sediment contamination in areas of concern. 154 Cong. Rec. S3975 (daily ed. May 8, 2008). The bill was referred to the Committee on Environment and Public Works.
  • H.R. 5964 (Gonzalez, D-Tex.) (CAA)would amend the CAA to extend the compliance period for persons subject to the renewable fuel mandate in the years 2008, 2009, and 2010. 154 Cong. Rec. H3050 (daily ed. May 5, 2008). The bill was referred to the Committee on Energy and Commerce.
  • H.R. 5999 (Hirono, D-Haw.) (National Tropical Botanical Garden)would authorize appropriations for the National Tropical Botanical Garden. 154 Cong. Rec. H3402 (daily ed. May 8, 2008). The bill was referred to the Committee on the Judiciary.
  • H.R. 6000 (Kucinich, D-Ohio) (energy taxes)would amend the Internal Revenue Code of 1986 to impose a windfall profit tax on oil and natural gas (and products thereof); allow an income tax credit for purchases of fuel-efficient passenger vehicles; and allow grants for mass transit. 154 Cong. Rec. H3402 (daily ed. May 8, 2008). The bill was referred to the Committee on Ways and Means and the Committee on Transportation and Infrastructure.
  • H.R. 6001 (Buyer, R-Ind.) (energy portfolio)would seek to rebalance the United States energy portfolio, increase and utilize the Nation's domestic energy resources and supply, and strengthen energy security and independence. 154 Cong. Rec. H3402 (daily ed. May 8, 2008). The bill was referred to the Committees on Natural Resources, Energy and Commerce, Ways and Means, Armed Services, and Science and Technology.
  • H.R. 6006 (Bordallo, D-Guam) (mitigation programs)would amend title 10, U.S. Code, to authorize the Secretary of a military department, and the Secretary of Defense with respect to the Defense Agencies, to participate in conservation banking programs and in-lieu-fee mitigation programs. 154 Cong. Rec. H3402 (daily ed. May 8, 2008). The bill was referred to the Committee on Armed Services.
  • H.R. 6009 (English, R-Pa.) (domestic energy)would seek to leverage market forces to bring greater efficiency and capacity to domestic refineries and bring new sources of domestic energy to market. 154 Cong. Rec. H3402 (daily ed. May 8, 2008). The bill was referred to the Committees on Natural Resources, Energy and Commerce, the Judiciary, Ways and Means, and Foreign Affairs.
  • H.R. 6017 (Stupak, D-Mich.) (algal blooms)would ameliorate the effects of harmful algal blooms in the Great Lakes by reducing phosphorus inputs. 154 Cong. Rec. H3402 (daily ed. May 8, 2008). The bill was referred to the Committees on Transportation and Infrastructure, Energy and Commerce, and Natural Resources. 

Copyright© 2008, 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 2008, visit our list ofCumulative State Developments Arranged by State, or our list ofCumulative State Developments Arranged by Subject Matter. For state material reported prior to 2008, visit theELR Archives.

The states below have updates this week:

Alabama Illinois Montana North Dakota South Dakota
Arizona Indiana New Jersey Oregon Texas
Idaho Iowa New York Rhode Island Wisconsin

ALABAMA

Hazardous & Solid Wastes:

Water:

Wildlife:

ARIZONA

Water:

  • The Department of Water Resources issued a rulemaking docket concerning the proposal to adopt new rules to implement A.R.S. Title 45, Chapter 2, Article 8.1, Withdrawals of Groundwater for Transportation to Active Management Area. These statutory provisions authorize the transportation of groundwater from certain lands in the McMullen Valley groundwater basin, the Butler Valley groundwater basin, the Harquahala Irrigation Non-expansion Area (INA), and the Big Chino sub-basin of the Verde River groundwater basin into an active management area. At this time, it is expected that the rules will address only transportation from the McMullen Valley groundwater basin pursuant to A.R.S. §45-552, the Harquahala INA pursuant to A.R.S. §45-554, and the Big Chino sub-basin pursuant to A.R.S. §45-555(A) through (D). Seehttp://www.azsos.gov/public_services/Register/2008/18/docket.pdf(p. 1621)

IDAHO

Air:

  • The Department of Environmental Quality will conduct a public hearing to consider the adoption of amendments to ensure that the purpose and applicability of Sections 725 through 729 of the Rules for the Control of Air Pollution in Idaho is clear as they relate to sulfur content of fuels. The revisions to Sections 725 through 729 have been proposed for clarification purposes and are not substantive in nature. The hearing will be held June 10, 2008. Seehttp://adm.idaho.gov/adminrules/bulletin/bul/08may.pdf(pp. 60-62)

Water:

  • The Department of Environmental Quality will conduct public hearings to consider the amendment of section 58.01.03, Individual/Subsurface Sewage Disposal Rules. The purpose of this rulemaking is to provide for a revised method to estimate wastewater flow from single family dwellings that is more consistent with domestic water usage statewide. The proposed revisions would provide for a more refined soil classification system that will allow more precise sizing of drainfields. The rule would also provide a definition of "module" to assist understanding and applicability of the rule within the regulated community. The hearings will be held May 22 and June 5, 2008. Seehttp://adm.idaho.gov/adminrules/bulletin/bul/08may.pdf(pp. 63-64)

ILLINOIS

Air:

  • The Pollution Control Board withdrew the first-notice publication of the rulemaking proposal docketed as In the Matter of Section 27, Proposed Rules for Nitrogen Oxide (NOx) Emissions From Stationary Reciprocating Internal Combustion Engines and Turbines: Amendments to 35 Ill. Adm. Code Parts 211 and 217 (R07-19) and replaced it with an amended proposal. Because the Board is holding hearings in this docket on language that is substantively different from the language it proposed for first notice in June 2007, the Board is withdrawing the amendments currently at first notice and will proceed with its consideration of the amended proposal. Seehttp://www.cyberdriveillinois.com/departments/index/register/register_volume32_issue18.pdf(pp. 7230-7231)

INDIANA

Water:

  • The Water Pollution Control Board will hold a public hearing concerning a rulemaking authorized under IC 13-14-9-14 to establish the city of Indianapolis' combined sewer overflow wet weather limited use subcategory of the recreational use designated use category. The hearing will be held June 11, 2008. Seehttp://www.in.gov/legislative/iac/20080507-IR-327080324PHA.xml.html
  • The Indiana Department of Environmental Management is soliciting public comment on a proposed rule underIC 13-14-9-14(c) to amend327 IAC 2-1-3.1and add327 IAC 2-1-11.5concerning the establishment of a combined sewer overflow wet weather limited use subcategory for the area defined by the city of Indianapolis' use attainability analysis. Comments are due June 6, 2008. Seehttp://www.in.gov/legislative/iac/20080507-IR-327080324PRA.xml.html

IOWA

Air:

  • The Environmental Protection Commission has adopted amendments to Chapter 20, “Scope of Title—Definitions—Forms—Rules of Practice,” Chapter 21, “Compliance,” Chapter 22, “Controlling Pollution,” Chapter 23, “Emission Standards for Contaminants,” Chapter 25, “Measurement of Emissions,” and Chapter 33, “Special Regulations and Construction Permit Requirements for Major Stationary Sources—Prevention of Significant Deterioration of Air Quality,” Iowa Administrative Code. The purpose of the amendments is to update state air quality rules for new state and federal requirements enacted within the last year. The amendments also include corrections, clarifications, and improvements to existing air quality rules, including the rules for construction permits, prevention of fugitive dust, and the opacity limit for incinerators. Seehttp://www.legis.state.ia.us/Rules/Current/Bulletin/IAB080507.pdf(p. 1659)

Water:

MONTANA

Land Use:

  • The Department of Natural Resources and Conservation will conduct a public hearing to consider the adoption of amendments to ARM 36.25.301, 36.25.303, 36.25.304, 36.25.310, 36.25.315, and 36.25.321 regarding coal leasing rules. The hearing will be held May 28, 2008. Seehttp://sos.mt.gov/arm/Register/archives/MAR2008/MAR09-08.pdf(pp. 900-904)

Water:

NEW JERSEY

Hazardous & Solid Wastes:

Toxic Substances:

  • The Department of Environmental Protection will hold a public hearing to consider the readoption, with amendments, of Subchapter 16 of the UST rules, N.J.A.C 7:14B, which provides the requirements for unregulated heating oil USTs. The amendments include a new section concerning the professional business practices that a party must meet to be certified to provide such services. The hearing will be held June 13, 2008. Comments are due July 7, 2008. Seehttp://www.nj.gov/dep/rules/notices/050508a.html
  • The Department of Environmental Protection adopted amendments to the Toxic Catastrophe Prevention Act Program rules at N.J.A.C. 7:31-1.5, -3.3, -3.4, -4.2, -4.9, -4.11, and -11.4 and new rules at N.J.A.C. 7:31-3.6 and -4.12. The adopted amendments and new rules expand the requirements for the performance of inherently safer technology (IST) reviews and the submittal of IST review reports to the department. Seehttp://www.nj.gov/dep/rules/adoptions/adopt_080505a.pdf

NEW YORK

Air:

  • The Department of Environmental Conservation will hold a public hearing on the proposed addition of Part 215, and amendment of Parts 191 and 621 of Title 6 NYCRR to extend a ban of open burning to all household waste and most agricultural wastes and to eliminate permit requirements for the types of open burning that will be allowed. Hearings will be held June 23 to July 2, 2008. Seehttp://www.dos.state.ny.us/info/register/2008/may7/pdfs/rules.pdf(pp. 15-20)

Climate:

  • The Department of Environmental Conservation will hold a public hearing to consider revised proposed rules concerning the New York State Carbon Dioxide Budget Trading Program. These regulations apply statewide to fossil fuel-fired electric generating units. Hearings will be held June 9, 2008. Seehttp://www.dos.state.ny.us/info/register/2008/may7/pdfs/rules.pdf(pp. 20-30)

NORTH DAKOTA

Toxic Substances:

  • The North Dakota Department of Health will hold a public hearing to address proposed amendments to North Dakota Administrative Code Chapter 33-24-08, Technical Standards and Corrective Action Requirements for Owners and Operators of Underground Storage Tanks. The hearing will be held May 29, 2008. Seehttp://www.health.state.nd.us/PublicComment/USTRulesTank20080609.pdf

OREGON

Air:

  • The Department of Environmental Quality will hold a public hearing on proposed amendments to authorize the Environmental Quality Commission to implement the CAA requirements for agriculture in Oregon. This rulemaking will also amend Oregon's SIP. The hearing will be held May 19, 2008. Comments are due May 23, 2008. Seehttp://arcweb.sos.state.or.us/rules/0508_Bulletin/0508_rulemaking_bulletin.html
  • The Department of Environmental Quality (DEQ) will hold a public hearing on proposed rule changes to amend the applicability rule for Plant Site Emission Limits (PSELs). The PSEL Rule sets limits on emissions of specified criteria air pollutants. The primary purpose of establishing a PSEL is to assure compliance with ambient air quality standards. A cross-reference error in the rule added two lists of chemical substances, some of which are not air pollutants, to the substances regulated by the PSEL rule. The proposed rule revisions will clarify the PSEL rule by exempting substances regulated by the Accidental Release Prevention Rule and Early Reduction High Risk Pollutant rules. The rule change would be consistent with DEQ's historical interpretation and implementation of the PSEL program. The hearing will be held May 22, 2008. Comments are due May 29, 2008. Seehttp://arcweb.sos.state.or.us/rules/0508_Bulletin/0508_rulemaking_bulletin.html

RHODE ISLAND

Climate:

  • The Rhode Island Department of Environmental Management will hold a public hearing to consider the proposal to adopt Air Pollution Control Regulation No. 46, CO2 Budget Trading Program, and Air Pollution Control Regulation No. 47, CO2 Budget Trading Program Allowance Distribution. The hearing will be held on June 5, 2008. Seehttp://www.dem.ri.gov/programs/benviron/air/drft4647.htm

SOUTH DAKOTA

Hazardous & Solid Wastes:

  • The Department of Environment and Natural Resources, Board of Minerals and Environment, will hold a public hearing on the proposal to eliminate the minimum 100-feet surface casing requirement for oil and gas wells to allow the Secretary of the department to determine how much surface casing is required for all new oil and gas wells on a case-by-case basis. The hearing will be held May 15, 2008. Seehttp://legis.state.sd.us/rules/register/05052008.pdf(p. 288)
  • The Department of Environment and Natural Resources, Board of Minerals and Environment, will hold a public hearing to amend rules in Chapter 74:11:08 to update the requirements for plugging mineral exploration test holes to make the rules consistent with the well construction standards found in Chapter 74:02:04; to allow the use of alternative test hole plugging methods; and to allow the commonly used method of plugging test holes with bentonite chips in special circumstances. The public hearing also concerns proposals to amend rules in Chapter 74:29:11 governing in situ leach mining to update an existing rule that lists other permits and approvals an applicant must obtain to operate an in situ leach mine; to require an operator applying for an in situ leach mine permit to obtain an Underground Injection Control Class III Well permit under Chapter 74:55:01 before the Board of Minerals and Environment may issue a mine permit; and to make the in situ leach mining rules consistent with recently approved changes to Chapter 74:55:01, Underground Injection Control - Class III Wells. The hearing will be held May 15, 2008. Seehttp://legis.state.sd.us/rules/register/05052008.pdf(p. 288)

TEXAS

Water:

  • The Commission on Environmental Quality will hold a public hearing to consider the adoption of rules for structures that are connected to a public water supply system and have a rainwater harvesting system for indoor use. The structure must have appropriate cross-connection safeguards, and the rainwater harvesting system may be used only for nonpotable indoor purposes. The commission's standards and rules adopted under THSC, Chapter 341, do not apply to a person who harvests rainwater for domestic use and whose property is not connected to a public drinking water supply system. However, these amendments do not change the commission's existing rules in §290.44(h) and §290.47(i) regarding backflow prevention. The hearing will be held May 29, 2008. Comments are due June 2, 2008. Seehttp://www.sos.state.tx.us/texreg/sos/PROPOSED/30.ENVIRONMENTAL%20QUALITY.html#177
  • The Commission on Environmental Quality will hold a public hearing to consider incorporating into agency rules changes to statute that became effective September 1, 2007, based on language in House Bill 3554 and HB 1956, 80th Legislature, 2007; to incorporate certain UST provisions of the federal Energy Policy Act of 2005; and to update certain technical requirements pertaining to USTs. Changes include such items as the requirement of proof of financial assurance to be included with annual tank self-certifications, the cessation of annual facility fees, secondary containment for UST systems in accordance with EPA and Federal Energy Act requirements; and extension of the PST Reimbursement Program for four years. The hearing will be held May 27, 2008. Comments are due June 2, 2008. Seehttp://www.sos.state.tx.us/texreg/sos/PROPOSED/30.ENVIRONMENTAL%20QUALITY.html#181

WISCONSIN

Fisheries:

  • The Department of Natural Resources will hold a public hearing on Natural Resources Board Emergency Order No. FH−40−07A(E), which took effect on April 4, 2008. The order revises chapters NR 19 and 20, Wis. Adm. Code, pertaining to control of fish diseases and invasive species, as affected by Natural Resources Board Emergency Order No. FH−40−07(E), which took effect on November 2, 2007. Emergency Order FH−40−07A(E) deals with the viral hemorrhagic septicemia virus, which is present in Wisconsin waters. The hearing will be held April 12, 2008. Comments are due April 16, 2008. Seehttp://www.legis.state.wi.us/rsb/code/register/reg628b.pdf(p. 33)

Copyright© 2008, Environmental Law Institute, Washington, D.C. All rights reserved.

INTERNATIONAL

OIL SANDS PROJECT IN CANADA HALTED BY PERMIT FIGHT

Imperial Oil, Ltd. entered federal court inCalgaryin its fight against the federal government to win back a water permit necessary for continuing work on the $8 billion Kearl oil sands mine in remote northernAlberta. The permit is necessary to drain a boggy muskeg at the site as part of preparations for construction. Imperial lost its permit in March after a federal court decision found Imperial’s regulatory approval incomplete for failing to fully explain the issue of greenhouse gas emissions. The case is seen by the energy industry as a reminder of the risks entailed in highly expensive oil sands development projects. Seehttp://www.theglobeandmail.com/servlet/story/LAC.20080507.ROILSANDS07/TPStory/Business

NEW ZEALAND EMISSIONS TRADING LEGISLATION IN JEOPARDY

InNew Zealand, the Labour government is trying to hold together a coalition with smaller parties to win support for an emissions trading scheme. Following two recent concessions by the Government on fuel and industry emissions that would delay the implementation of some provisions by years, Green and Maori party leaders have threatened to pull support for the scheme in light of the “backdowns.” If small-party support continues to crumble, the scheme could become subject to broad changes in post-election coalition talks and modifications by future governments. Seehttp://www.nzherald.co.nz/section/1/story.cfm?c_id=1&objectid=10508741&pnum=0

EUROPEAN UNION SUES ITALY TO FORCE ACTION ON WASTE CRISIS

The European Commission has decided to pursue legal action againstItalyfor failure to remove and dispose of uncollected rubbish inNaplesand theCampaniaregion. The Commission filed suit before the European Court of Justice to pressItalyto take more serious action against the waste crisis. Italian Prime Minister-elect Silvio Berlusconi campaigned on a promise to resolve the crisis, but a reported 1,400 tons of rubbish continued to lay uncollected over recent weeks aroundNaples.Italyis charged with failure to comply with the EU’s Waste Framework Directive, which requires member states to ensure that waste is recovered and disposed of without endangering human health. Seehttp://www.iht.com/articles/2008/05/07/europe/07italy.php

Copyright© 2008, Environmental Law Institute, Washington, D.C. All rights reserved.

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Linda L. Johnson, Managing Editor
Rachel Jean-Baptiste, Senior Editor
Erin Webreck, Associate Editor
Carolyn Fischer, Books Editor
William J. Straub, Desktop Publisher
Amanda Martin, Contributing Editor
Jesse Oppenheimer, Contributing Editor
Sandra Nichols, Contributing Editor