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Weekly Update Volume 38, Issue 16

06/02/2008

LITIGATION

CWA, NPDES PERMIT, STORMWATER:

The Ninth Circuit vacated and remanded an EPA stormwater discharge rule that exempts from the CWA's permitting requirements discharges of sediment from oil and gas construction activities that contribute to violations of water quality standards. The rule is arbitrary and capricious and constitutes an impermissible construction of CWA §402(l)(2). EPA had previously recognized that oil and gas exploration, production, processing, treatment, and transmission operations were required to apply for an NPDES permit for stormwater runoff contaminated only with sediment. EPA now argues that its previous NPDES permit requirement for such discharges was merely a "rule of administrative convenience" because it assumed that runoff contaminated solely with sediment was likely contaminated with overburden, raw material, intermediate products, finished product, byproduct, or waste products. EPA also claims that it never previously considered, until the 2005 amendment to the Energy Policy Act, how sediment alone should be treated under existing regulations. Given that EPA has long recognized that oil and gas construction sites were prime candidates for NPDES permitting in light of what EPA referred to as "serious water quality impacts" caused by construction stormwater discharges polluted with sediment, it can hardly be said that the Agency's previous stance was merely a "rule of administrative convenience" or that it never considered how sediment alone should be treated prior to the Energy Policy Act of 2005.Natural Resources Defense Council v. United States Environmental Protection Agency, No. 06-73217, 38 ELR 20126 (9th Cir. May 23, 2008).

CWA, EFFLUENT GUIDELINES:

The Ninth Circuit affirmed a lower court decision dismissing a CWA citizen suit brought by environmental advocates alleging that EPA failed to fulfill its mandate to review effluent guidelines and limitations in a timely manner and in accord with technology-based standards. Decisions on whether to revise the effluent guidelines and whether to incorporate technology-based criteria in the Agency's periodic review of the guidelines fall within EPA's discretion. Nothing in the CWA specifically obligates EPA to review the effluent guidelines and limitations using a technology-based approach. Because the statute falls short of imposing a mandatory duty, the review criteria are not properly before the court under the CWA's citizen suit provision, §505(a)(2). The court also rejected the environmental advocates' other CWA claims regarding timing of EPA's plan publication for annual review, revision of its CWA guidelines, and identification of new categories of toxic and nonconventional pollutants. This decision replaces the court's prior decision in35 ELR 20269.Our Children's Earth Foundation v. United States Environmental Protection Agency, No. 05-16214, 38 ELR 20125 (9th Cir. May 23, 2008).

CWA, MOOTNESS:

The Fifth Circuit dismissed as moot an environmental group's CWA citizen suit against a city for violating its separate storm sewer system permit. The lower court dismissed the case on grounds that it was barred by res judicata. But because a consent decree in a prior EPA enforcement action against the city addressed all of the CWA violations alleged in the group's citizen suit, extracted reasonable civil penalties, and mandated that the city undertake significant corrective measures, the citizen suit was moot. The lower court's grant of summary judgment in favor of the city was therefore vacated and remanded.Environmental Conservation Organization v. Dallas, No. 07-10583, 38 ELR 20129 (5th Cir. May 27, 2008).

NATURAL GAS ACT, CZMA, PREEMPTION:

The Fourth Circuit held that the Natural Gas Act (NGA) preempts a county bill prohibiting the siting of any liquefied natural gas (LNG) terminal within 1,000 feet from the Chesapeake Bay and its tributaries. The bill is an amendment to the state's critical management plan (CMP) because it imposes a categorical ban on LNG terminals that the plan did not previously contain. Although the NGA's savings clause provides that "nothing in the [NGA] affects the rights of states under" the CZMA, Maryland never presented the bill to NOAA for approval pursuant to the CZMA's procedures for amending state CMPs. Thus, until NOAA approves the bill or fails to take action after being presented with it, it is not part of Maryland's CMP and cannot be saved from preemption by the NGA's savings clause.AES Sparrows Point LNG, LLC v. Smith, No. 07-1615, 38 ELR 20117 (4th Cir. May 19, 2008).

ATOMIC ENERGY ACT, PREEMPTION:

The Ninth Circuit held that federal law preempts Washington state's Cleanup Priority Act, a statute enacted through the passage of a voter initiative. The Act was intended to "prevent the addition of new radioactive and hazardous waste" at the Hanford Nuclear Reservation site until cleanup of existing contamination is complete. The Atomic Energy Act preempts the Washington statute. A key purpose of the Cleanup Priority Act is to regulate the radioactive component of mixed waste, as well as the nonradioactive component, for health and safety reasons. In addition, the Act directly and substantially impacts the DOE's decisions on the nationwide management of nuclear waste.United States v. Manning, Nos. 06-35613 et al., 38 ELR 20119 (9th Cir. May 21, 2008).

CRIMINAL LAW, PRETRIAL DISCLOSURES:

The Ninth Circuit held that a district court had the authority to order and enforce the pretrial disclosures of government witnesses and evidentiary documents in a pending criminal case concerning a mining operation in Libby, Montana. A district court, consistent with Rules 2 and 16 of the Federal Rules of Criminal Procedure as well as the court's inherent authority to manage its docket, may in appropriate circumstances require the government to disclose a final list of its proposed trial witnesses and has the authority to enforce such an order. Here, the district court did not abuse its discretion in doing so.United States v. W.R. Grace, No. 06-30192, 38 ELR 20123 (9th Cir. May 15, 2008).

GUIDANCE DOCUMENTS, NEPA:

The Third Circuit dismissed New Jersey's petition for review of an NRC guidance document that proposes a long-term control license for facilities that decommission under restricted release regulations but cannot find adequate institutional controls. The guidance document is not a final order because it is non-binding, lacks legal consequences, and does not determine any rights or obligations. Nor was the NRC required to prepare an EIS under NEPA due to the document's non-binding and legally inoperative nature.New Jersey v. United States Nuclear Regulatory Commission, Nos. 06-5140 et al., 38 ELR 20122 (3d Cir. May 21, 2008).

QUIET TITLE ACT, INTERVENTION:

The Ninth Circuit vacated in part, reversed in part, and remanded a lower court decision denying environmental groups' request to intervene in a Quiet Title Act action concerning a county's use of a road on U.S. Forest Service land in Nevada. The groups are entitled to intervene because they have the requisite interest in seeing that the wilderness area is preserved for the use and enjoyment of their members. Because the groups were not permitted to participate in the settlement review proceedings between the county and the United States, the approval of the settlement must be vacated. In addition, the groups' claims that the Attorney General circumvented federal law by entering into the settlement agreement with the county is reviewable under the APA. The district court’s dismissal of those claims, therefore, was reversed and remanded.United States v. Carpenter, No. 06-15596, 38 ELR 20118 (9th Cir. May 20, 2008).

QUIET TITLE ACT, STOCK-RAISING HOMESTEAD ACT:

The Tenth Circuit affirmed a lower court decision dismissing property owners' action to quiet title in its favor to all of the sand, gravel, and rock that is located on their real property. It is undisputed that sand, gravel, and rock can be taken from the soil and used for commercial purposes. Consequently, they are minerals in which the government has an express reservation on land patents issued under the Stock-Raising Homestead Act.Sunrise Valley, LLC v. Kempthorne, No. 06-4188, 38 ELR 20120 (10th Cir. May 20, 2008).

NEPA, NATIONAL FORESTS, AQUATIC CONSERVATION STRATEGY:

A district court held that the Forest Service's EA for a logging project in the Olympic National Forest violated NEPA. In 1994, BLM and the Forest Service issued a record of decision for the Northwest Forest Plan setting forth an aquatic conservation strategy (ACS) for logging projects on national forests and BLM lands. The agencies amended the ACS in 2004, deleting many of the requirements. In March 2007, a district court vacated those amendments, thereby reinstating the ACS requirements that were in place prior to 2004. The logging project at issue in this case was prepared after the 2004 amendments but prior to the 2007 opinion vacating those amendments. A Forest Service supervisor issued a letter stating that the project complied with the 1994 ACS requirements and that a correction, revision, or supplement to the EA for the project was not necessary. The Forest Service, however, should have gone back and analyzed the project under the 1994 ACS requirements. The letter was insufficient to cure the deficiency in the EA.Olympic Forest Coalition v. United States Forest Service, No. C07-5344, 38 ELR 20127 (W.D. Wash. May 9, 2008) (Leighton, J.) (Plaintiff's counsel included R. Scott Jerger of Field Jerger LLP in Portland OR).

CAA, PERMITS, SUBJECT MATTER JURISDICTION:

A district court dismissed environmental groups' CAA citizen suit challenging the construction of a coal-fired power plant in Nemacolin, Pennsylvania. The court lacks subject matter jurisdiction over the groups' claims. The groups argued that the defendant company does not have a valid PSD or new source review (NSR) permit to construct the plant because it did not commence construction within 18 months of receiving plan approval. These claims are nothing more than a collateral attack on the state environmental agency's conclusion that construction was timely commenced. The company produced a letter from the agency confirming that construction was commenced within the timeframe required by the plan approval. Moreover, the agency has modified the permit as recently as February 2008, which indicates that the agency regards the permit as valid. The court also dismissed claims that the company violated a condition of its plan approval as well as the PSD and NSR provisions of the Pennsylvania SIP by failing to meet certain construction schedule deadlines.Sierra Club v. Wellington Development-WVDT LLC, No. 08-293, 38 ELR 20124 (W.D. Pa. May 13, 2008) (Cohill, J.).

WORKPLACE SAFETY STANDARDS, DECEPTIVE TRADE PRACTICES, APA:

A district court dismissed claims that the workplace-safety exposure levels--or threshold limit values--for silica, copper, n-propyl bromide, and diesel particulate matter are adopted by the American Conference of Governmental Industrial Hygienists (ACGIH) and enforced by the Department of Labor (DOL) in violation of federal and state law. The court dismissed trade associations' claims that the ACGIH was engaging in deceptive trade practices in violation of Georgia’s Uniform Deceptive Trade Practices Act (UDTPA). The ACGIH, a nonprofit association comprised of a group of scientists that adopts workplace safety exposure levels, is more like an entity designed to promote ideas than one that engages in deceptive advertising in an effort to derive a financial benefit. The court, therefore, rejected the idea that the UDTPA should be used "to stifle ACGIH’s dissemination of its opinions as to what exposure levels of certain substances are in fact safe." The court also dismissed the associations' claims that the DOL's reliance on and enforcement of ACGIH's threshold limit values violate the APA. The associations failed to show that the ACGIH is an "advisory committee" under the Federal Advisory Committee Act.International Brominated Solvents Ass'n v. American Conference of Governmental Industrial Hygienists, Inc., No. 5:04-cv-394, 38 ELR 20130 (M.D. Ga. May 2, 2008) (Lawson, J.).

LOGGING, CALIFORNIA FOREST PRACTICE ACT:

The Supreme Court of California reversed a lower court decision in favor of conservation groups challenging the state forestry department's approval of three timber harvest plans that allow logging on private land in the Sierra Nevada mountains. The department's selection of geographic areas for assessing the cumulative impacts of logging on the California spotted owl and the Pacific fisher complied with the California Forest Practice Act. The department also complied with state law in analyzing the possible use of herbicides after logging. Contrary to the arguments of the conservation groups, the department did not erroneously rely on the Department of Pesticide Regulation's regulatory program or fail to conduct its own environmental impacts assessment.Ebbetts Pass Forest Watch v. California Department of Forestry & Fire Protection, No. S143689, 38 ELR 20121 (Cal. May 22, 2008).

LAND USE, TAKINGS, MITIGATION:

A California appellate court upheld the dismissal of a homeowners association's claim against the California Coastal Commission for requiring it to pay an in-lieu mitigation fee as a condition of a permit to build a seawall. The seawall would cause passive erosion that would eventually eliminate an acre of beach in front of the complex. Because beach erosion was inevitable and unavoidable, the Commission imposed an in-lieu mitigation fee so that beach property could be purchased and protected elsewhere. The fee is not an unconstitutional taking. There is a clear nexus between the purpose of the mitigation fee and the projected impact of the seawall. In addition, the mitigation fee is roughly proportional to the extent of the loss of an acre of beach and recreational use. In addition, the fee is supported by substantial evidence, and the Commission was authorized to impose a fee as a condition to the permit.Ocean Harbor House Homeowners Ass'n v. California Coastal Commission, No. H031129, 38 ELR 20128 (Cal. Ct. App. 6th Dist. May 23, 2008).

AIR QUALITY, PERMIT AMENDMENTS:

A Minnesota appellate court upheld a state environmental agency decision denying a mining company's request to eliminate the "control city" standard from its air quality permit. The standard required the company to keep the asbestos fiber count in the air at its Silver Bay facility to the level ordinarily found in the ambient air in St. Paul. The company argued that the control-city standard was obsolete and that the permit could be amended under the state's administrative permit amendment rule. But the plain language of the rule does not provide for amendments to clarify the meaning of the entire permit, but rather provides for amendments that clarify the meaning of a “permit term.” Here, the company does not want to clarify a permit term. Rather, it seeks to eliminate a substantive monitoring requirement from the permit. The company also failed to demonstrate that the control-city standard is obsolete since there "is no current health-based ambient air standard or an equivalent precautionary and preventative substitute for the control-city standard." The company, therefore, should proceed under the more strict major permit amendment rules to alter its permit.Northshore Mining Co. v. Minnesota Pollution Control Agency, No. A07-634, 38 ELR 20131 (Minn. Ct. App. May 20, 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 received a request for a waiver of 50% of the renewable fuel standard mandate for the production of ethanol derived from grain from the state of Texas.73 FR 29753(5/22/08).
  • EPA proposed revisions to the primary and secondary NAAQS for lead, to data handling procedures, and to ambient air monitoring and reporting requirements.73 FR 29184(5/20/08).
  • EPA announced availability of a final report titledEPA's 2008 Report on the Environment.73 FR 29134(5/20/08).
  • EPA designated a new reference method for measuring concentrations of nitrogen dioxide in the ambient air.73 FR 28819(5/19/08).
  • EPA added Method 207 as the recommended test method for measuring volatile organic compound (VOC) mass emissions from corn wet-milling facilities.73 FR 30775(5/29/08).
  • EPA proposed Method 207 as the recommended test method for measuring VOC mass emissions from corn wet-milling facilities; see above for direct final rule.73 FR 30870(5/29/08).
  • EPA determined that Kewaunee County, Wisconsin, has attained the eight-hour ozone NAAQS.73 FR 29436(5/21/08).
  • EPA reclassified the Ventura County ozone nonattainment area from moderate to serious at the request of the California Air Resources Board.73 FR 29073(5/20/08).
  • SIP Approvals: Delaware (reasonably available control technology (RACT) under the eight-hour ozone NAAQS)73 FR 31043(5/30/08). North Dakota (air pollution control rule revisions; new source performance standards delegation of authority)73 FR 30308(5/27/08).
  • SIP Proposals: New Jersey (variance determination for particulate matter)73 FR 30873(5/29/08). North Dakota (air pollution control rule revisions; new source performance standards delegation of authority; see above for direct final rule)63 FR 30355(5/27/08). Pennsylvania (ozone maintenance plan and base year inventory for Lawrence County)73 FR 30342; (ozone maintenance plan and base year inventory for Northumberland County)30345; (ozone maintenance plan and base year inventory for Snyder County)30347; (ozone maintenance plan and base year inventory for Pike County)30350; (ozone maintenance plan and base year inventory for Juniata County)30352(5/27/08). South Carolina (revisions to interstate transport of pollution requirements)73 FR 29731(5/22/08). Virginia (RACT for Norfolk Southern Corporation)73 FR 30340(5/27/08).

HAZARDOUS & SOLID WASTE:

  • The U.S. Coast Guard proposed amendments to regulations that allow the discharge of non-toxic and non-hazardous bulk dry cargo residues like limestone, iron ore, and coal in limited areas of the Great Lakes.73 FR 30014(5/23/08).
  • EPA proposed the use of specific software in the identification and listing of hazardous waste and proposed delisting certain solid wastes at several facilities in Texas.73 FR 28768(5/19/08).
  • EPA gave final authorization to revisions of Utah's hazardous waste management program.73 FR 29987(5/23/08).
  • EPA entered into a proposed administrative agreement under CERCLA concerning the Lockformer hazardous waste site in Lisle, Illinois, that requires the settling party to pay $775,000 in EPA response costs.73 FR 28822(5/19/08).

WATER:

  • NOAA and the U.S. Coast Guard proposed to define "marine debris" for purposes of the Marine Debris Research, Prevention, and Reduction Act.73 FR 30322(5/27/08).
  • EPA received a petition from the commonwealth of Massachusetts seeking a determination that adequate facilities for the safe and sanitary removal and treatment of sewage from all vessels are reasonably available for the waters of Cape Cod Bay in the towns of Barnstable, Brewster, Dennis, Eastham, Orleans, Provincetown, Sandwich, Truro, Wellfleet, and Yarmouth.73 FR 30100(5/23/08).
  • EPA determined that adequate facilities for the safe and sanitary removal and treatment of sewage from all vessels are reasonably available for the state waters of Scituate, Marshfield, Cohasset, and the tidal portions of the North and South Rivers in Massachusetts.73 FR 29752(5/22/08).

WILDLIFE:

  • FWS finalized regulations that provide the mechanisms to authorize the taking of bald and golden eagles under the Bald and Golden Eagle Protection Act.73 FR 29075(5/20/08).
  • FWS initiated a status review of the bald eagle in the Sonoran Desert area of central Arizona and northwestern Mexico.73 FR 29096(5/20/08).
  • FWS initiated a status review for the northern Mexican gartersnake.73 FR 30596(5/28/08).
  • FWS proposed redesignating 138,881 acres in Aransas, Brazoria, Calhoun, Cameron, Kenedy, Kleberg, Matagorda, Nueces, and Willacy counties, Texas, as critical habitat for the wintering population of the piping plover.73 FR 29294(5/20/08).
  • FWS proposed to designate critical habitat for the Alabama sturgeon along portions of the Alabama and Cahaba Rivers, Alabama.73 FR 30361(5/27/08).
  • FWS and NOAA-Fisheries announced availability for public review of the draft recovery plan for the northwest Atlantic population of the loggerhead sea turtle.73 FR 31066(5/30/08).
  • NOAA announced its intention to replace the CZMA program change regulations and associated guidance and requested comments.73 FR 29093(5/20/08).

DOJ NOTICES OF SETTLEMENT:

  • United States v. Michigan Sugar Co., No. 08-12125 (E.D. Mich. May 15, 2008). A settling CAA defendant must operate and maintain a steam dryer or alternative technology for processing sugar beet pulp at its Bay City, Michigan, facility; must permanently shut down and decommission its three natural gas-fired pulp dryers on a schedule that will end in May 2014; must submit applications for a Title V permit modification and/or other appropriate permits for its Bay City facility and cooperate fully with Michigan Department of Environmental Quality (MDEQ) officials processing the applications; must comply with terms and conditions of the MDEQ-approved permits; and must pay a $210,000 civil penalty.73 FR 31146(5/30/08).
  • United States v. Gerke Excavating, Inc., No. 03-C 0074-C (W.D. Wis. May 15, 2008). A settling CWA defendant must agree to a previous injunction, must agree to restore the impacted areas, and must pay a civil penalty for the discharge of pollutants into waters of the United States without a permit.73 FR 31146(5/30/08).
  • United States v. Abex Aerospace Div., No. 00-cv-012471 TJH(JWJx) (C.D. Cal. May 20, 2008). An amended 2001 CERCLA settlement agreement concerning property adjacent to the Omega Chemical Corporation Superfund site adds certain response activities necessary to address indoor air contamination, adds additional settling work defendants and settling cash defendants, and incorporates additional volume and related payments of certain original settling cash defendants.73 FR 30630(5/28/08).
  • United States v. Riverton Properties, Inc., No. CV 08-03196 ABC (MANx) (C.D. Cal. May 16, 2008). Settling CERCLA defendants must jointly pay $1,868,000 in EPA response costs incurred in connection with the Preservation Aviation, Inc. site in North Hollywood, California; the U.S. Defense Logistics Agency must pay $2 million to resolve a potential counterclaim.73 FR 30165(5/23/08).
  • United States v. City of Dover, No. 1:92-cv-406-M (D.N.H. May 15, 2008). Under an amended CERCLA agreement, nine settling defendants must finance and perform the selected source control and groundwater remedies at the site, estimated to cost $19.4 million; must reimburse all past and future U.S. response costs, with some exceptions; and must reimburse the state of New Hampshire for all future response costs; the remaining settling defendants are not required to make further payment.73 FR 30166(5/23/08).
  • United States v. Carmeuse Lime & Stone, Inc., No. 2:08-CV-00081-WOB (E.D. Ky. May 6, 2008). A settling CAA defendant that violated its PSD permit by failing to implement the best available control technology for two lime kilns at its plant in Black River, Kentucky, must pay a $100,000 civil penalty.73 FR 29535(5/21/08).
  • United States v. District of Columbia, No. 1:08-cv-00825-RBW (D.D.C. May 13, 2008). A settling CERCLA defendant must pay $600,000 in reimbursement of past EPA response costs incurred responding to the release of mercury at two high schools in the District of Columbia, and it must verify that it is properly storing, removing, and disposing of mercury and other hazardous substances in D.C. public schools.73 FR 29536(5/21/08).
  • United States v. Waste Management of Illinois, Inc., No. 06cv6880 (N.D. Ill. May 14, 2008). Settling CERCLA defendants must pay $900,000 in U.S. response costs and prejudgment interest incurred at the H.O.D. Landfill Superfund site in Lake County, Illinois.73 FR 29152(5/20/08).
  • United States v. Rohm & Haas Texas Inc., No. 4:06-cv-01622 (S.D. Tex. May 13, 2008). A 2006 CWA, CAA, and RCRA consent decree concerning violations at a chemical manufacturing complex in Deer Park, Texas, was modified to give the settling party additional time to complete a supplemental environmental project, to allow the settling party to transfer the conservation property to a government agency or to a nonprofit, and to alter the termination provisions of the original consent decree.73 FR 28844(5/19/08).

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

THE CONGRESS

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

Public Laws

  • H.R. 6022 (petroleum), which suspends the acquisition of petroleum for the Strategic Petroleum Reserve, was signed into law by President Bush on May 19, 2008. Pub. L. No. 110-232, 154 Cong. Rec. D625 (daily ed. May 20, 2008).
  • H.R. 6051 (Farm Security and Rural Investment Act), which amends Public Law No. 110-196 to provide for a temporary extension of programs authorized by the Farm Security and Rural Investment Act of 2002 beyond May 16, 2008, was signed into law by President Bush on May 18, 2008. Pub. L. No. 110-231, 154 Cong. Rec. D604 (daily ed. May 19, 2008).

Chamber Action

  • H.R. 1464 (Great Cats and Rare Canids Act of 2008), which would assist in the conservation of rare felids and rare canids by supporting and providing financial resources for the conservation programs of nations within the range of rare felid and rare canid populations and projects of persons with demonstrated expertise in the conservation of rare felid and rare canid populations, was passed by the House. 154 Cong. Rec. H4280-81 (daily ed. May 20, 2008).
  • H.R. 1771 (Crane Conservation Act of 2008), which would assist in the conservation of cranes by supporting and providing, through projects of persons and organizations with expertise in crane conservation, financial resources for the conservation programs of countries the activities of which directly or indirectly affect cranes and the ecosystems of cranes, was passed by the House. 154 Cong. Rec. H4401 (daily ed. May 21, 2008).
  • H.R. 2649 (Lake Hodges Surface Water Improvement and Reclamation Act of 2008), which would make amendments to the Reclamation Projects Authorization and Adjustment Act of 1992, was passed by the House. 154 Cong. Rec. H4281-82 (daily ed. May 20, 2008).
  • H.R. 4841 (Soboba Band of Luiseno Indians Settlement Act), which would approve, ratify, and confirm the settlement agreement entered into to resolve claims by the Soboba Band of Luiseno Indians relating to alleged interferences with the water resources of the tribe, and would authorize and direct the Secretary of the Interior to execute and perform the settlement agreement and related waivers, was passed by the House. 154 Cong. Rec. H4401 (daily ed. May 21, 2008).
  • H.R. 6049 (Energy and Tax Extenders Act of 2008), which would amend the Internal Revenue Code of 1986 to provide incentives for energy production and conservation, extend certain expiring provisions, and provide individual income tax relief, was passed by the House. 154 Cong. Rec. H4349-H4401 (daily ed. May 21, 2008).

Committee Action

  • S. 1581 (ocean acidification)was reported by the Committee on Commerce, Science, and Transportation. H. Rep. No. 110-339, 154 Cong. Rec. S4791 (daily ed. May 22, 2008). The bill would establish an interagency committee to develop an ocean acidification research and monitoring plan and would establish an ocean acidification program within NOAA.
  • S. 2307 (Global Change Research Act)was reported by the Committee on Commerce, Science, and Transportation. H. Rep. No. 110-341, 154 Cong. Rec. S4791 (daily ed. May 22, 2008). The bill would amend the Global Change Research Act of 1990.
  • H.R. 554 (paleontological resources)was reported by the Committee on Natural Resources. H. Rep. No. 110-670, Pt. 1, 154 Cong. Rec. H4828 (daily ed. May 22, 2008). The bill would provide for the protection of paleontological resources on federal lands.
  • H.R. 3667 (Wild and Scenic Rivers Act)was reported by the Committee on Natural Resources. H. Rep. No. 110-668, 154 Cong. Rec. H4828 (daily ed. May 22, 2008). The bill would amend the Wild and Scenic Rivers Act to designate a segment of the Missisquoi and Trout Rivers in the state of Vermont for study for potential addition to the National Wild and Scenic Rivers System.
  • H.R. 5540 (Chesapeake Bay Initiative Act)was reported by the Committee on Natural Resources. H. Rep. No. 110-667, 154 Cong. Rec. H4828 (daily ed. May 22, 2008). The bill would amend the Chesapeake Bay Initiative Act of 1998 to provide for the continuing authorization of the Chesapeake Bay Gateways and Watertrails Network.

Bills Introduced

  • S. 3031 (Hutchison, R-Tex.) (CAA)would amend the CAA to limit the use of ethanol to meet the renewable fuel standard. 154 Cong. Rec. S4375 (daily ed. May 19, 2008). The bill was referred to the Committee on Environment and Public Works.
  • S. 3045 (Murkowski, R-Alaska) (Kenai Mountains-Turnagain Arm National Forest Heritage Area)would establish the Kenai Mountains-Turnagain Arm National Forest Heritage Area in the state of Alaska. 154 Cong. Rec. S4621 (daily ed. May 21, 2008). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 3051 (Graham, R-S.C.) (Battle of Camden site)would authorize the Secretary of the Interior to study the suitability and feasibility of designating the site of the Battle of Camden in South Carolina as a unit of the National Park System. 154 Cong. Rec. S4792 (daily ed. May 22, 2008). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 3056 (Bayh, D-Ind.) (foreign oil)would reduce the dependence of the United States on foreign oil. 154 Cong. Rec. S4792 (daily ed. May 22, 2008). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 3062 (Allard, R-Colo.) (Energy Policy Act)would amend the Energy Policy Act of 2005 to modify certain provisions relating to oil shale leasing. 154 Cong. Rec. S4793 (daily ed. May 22, 2008). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 3065 (Salazar, D-Colo.) (conservation and wilderness area)would establish the Dominguez-Escalante National Conservation Area and the Dominguez Canyon Wilderness Area. 154 Cong. Rec. S4793 (daily ed. May 22, 2008). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 3066 (Salazar, D-Colo.) (wilderness designation)would designate certain National Forest System land in the Pike and San Isabel National Forests and certain land in the Royal Gorge Resource Area of the BLM in the state of Colorado as wilderness. 154 Cong. Rec. S4793 (daily ed. May 22, 2008). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 3069 (Salazar, D-Colo.) (wilderness designation)would designate certain land as wilderness in the state of California. 154 Cong. Rec. S4793 (daily ed. May 22, 2008). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 3071 (Barrasso, R-Wyo.) (ESA)would amend the ESA of 1973 to temporarily prohibit the Secretary of the Interior from considering global climate change as a natural or manmade factor in determining whether a species is a threatened or endangered species. 154 Cong. Rec. S4793 (daily ed. May 22, 2008). The bill was referred to the Committee on Environment and Public Works.
  • S.J. Res. 34 (Leahy, D-Vt.) (Smithsonian Environmental Research Center)would provide a replacement laboratory and support space at the Smithsonian Environmental Research Center Mathias Laboratory. 154 Cong. Rec. S4793 (daily ed. May 22, 2008). The resolution was referred to the Committee on Rules and Administration.
  • S.J. Res. 36 (Leahy, D-Vt.) (Smithsonian Tropical Research Institute)would provide replacement laboratory space for terrestrial research at the Smithsonian Tropical Research Institute. 154 Cong. Rec. S4793 (daily ed. May 22, 2008). The resolution was referred to the Committee on Rules and Administration.
  • H.R. 6107 (Young, R-Alaska) (oil and gas leasing program)would direct the Secretary of the Interior to establish and implement a competitive oil and gas leasing program that will result in an environmentally sound program for the exploration, development, and production of the oil and gas resources of the coastal plain of Alaska. 154 Cong. Rec. H4452. The bill was referred to the Committees on Natural Resources, Energy and Commerce, and Science and Technology.
  • H.R. 6108 (Myrick, R-N.C.) (mineral resources)would provide for exploration, development, and production activities for mineral resources on the outer Continental Shelf. 154 Cong. Rec. H4453 (daily ed. May 21, 2008). The bill was referred to the Committees on Natural Resources, Science and Technology, and the Judiciary.
  • H.R. 6131 (Sullivan, R-Okla.) (unconventional aviation fuels)would provide incentives for the production and use of unconventional aviation fuels. 154 Cong. Rec. H4829 (daily ed. May 22, 2008). The bill was referred to the Committees on Ways and Means and on Armed Services.
  • H.R. 6132 (Barton, R-Tex.) (Nuclear Waste Fund)would authorize the use of amounts in the Nuclear Waste Fund to promote the recycling of spent nuclear fuel. 154 Cong. Rec. H4829 (daily ed. May 22, 2008). The bill was referred to the Committee on Energy and Commerce and to the Committee on the Budget.
  • H.R. 6133 (Terry, R-Neb.) (renewable energy tax credits)would amend the Internal Revenue Code of 1986 to extend and modify the renewable energy production tax credit and the solar energy and fuel cell investment tax credit. 154 Cong. Rec. H4829 (daily ed. May 22, 2008). The bill was referred to the Committee on Ways and Means.
  • H.R. 6134 (Barton, R-Tex.) (Energy Policy Act)would restore certain fuels provisions enacted by §1501 of the Energy Policy Act of 2005. 154 Cong. Rec. H4829 (daily ed. May 22, 2008). The bill was referred to the Committee on Energy and Commerce and to the Committee on Ways and Means.
  • H.R. 6136 (Burgess, R-Tex.) (CAA)would amend the CAA to authorize the president to waive any requirement for an applicable volume of renewable fuels if he finds that the applicable volume is not technologically feasible or that the fuel concerned is not commercially available in the required volume. 154 Cong. Rec. H4829 (daily ed. May 22, 2008). The bill was referred to the Committee on Energy and Commerce.
  • H.R. 6138 (Kuhl, R-N.Y.) (oil shale resources)would repeal the prohibition on using certain funds to issue regulations on oil shale resources. 154 Cong. Rec. H4830 (daily ed. May 22, 2008). The bill was referred to the Committee on Natural Resources.
  • H.R. 6139 (Wilson, R-N.M.) (refinery permits)would set schedules for the consideration of permits for refineries. 154 Cong. Rec. H4830 (daily ed. May 22, 2008). The bill was referred to the Committee on Energy and Commerce and to the Committee on Armed Services.
  • H.R. 6149 (Delahunt, D-Mass.) (renewable energy)would facilitate the installation of wind turbines and other renewable energy generating technology on the Massachusetts Military Reservation. 154 Cong. Rec. H4830 (daily ed. May 22, 2008). The bill was referred to the Committee on Armed Services.
  • H.R. 6155 (Markey, D-Mass.) (Clean Energy Fund)would establish and fund a Clean Energy Fund. 154 Cong. Rec. H4830 (daily ed. May 22, 2008). The bill was referred to the Committees on Ways and Means, Energy and Commerce, Science and Technology, and Education and Labor.
  • H.R. 6156 (McKeon, R-Cal.) (wilderness designation)would designate certain land as wilderness in the state of California. 154 Cong. Rec. H4830 (daily ed. May 22, 2008). The bill was referred to the Committee on Natural Resources.
  • H.R. 6159 (Miller, D-Cal.) (land exchange)would provide for a land exchange involving certain National Forest System lands in the Mendocino National Forest in the state of California. 154 Cong. Rec. H4830 (daily ed. May 22, 2008). The bill was referred to the Committee on Natural Resources.
  • H.R. 6161 (Rogers, R-Mich.) (energy independence) would provide for American energy independence by July 4, 2015. 154 Cong. Rec. H4830 (daily ed. May 22, 2008). The bill was referred to the Committees on Energy and Commerce, Ways and Means, Natural Resources, Transportation and Infrastructure, Rules, and Science and Technology.
  • H.R. 6162 (Salazar, D-Colo.) (conservation and wilderness area)would establish the Dominguez-Escalante National Conservation Area and the Dominguez Canyon Wilderness Area. 154 Cong. Rec. H4830 (daily ed. May 22, 2008). The bill was referred to the Committee on Natural Resources.
  • H.R. 6166 (Wittman, R-Va.) (municipal solid waste)would impose certain limitations on the receipt of out-of-state municipal solid waste. 154 Cong. Rec. H4831 (daily ed. May 22, 2008). The bill was referred to the Committee on Energy and Commerce.

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:

Arizona Florida Maine New Hampshire Pennsylvania Virginia
Arkansas Indiana Maryland New York Tennessee West Virginia
California Louisiana Michigan Ohio Texas  

ARIZONA

Air:

  • The Arizona Department of Environmental Quality issued proposed revisions to Section R18-2-602, Unlawful Open Burning, consistent with U.S. EPA's new requirements in 40 CFR 60, Subpart EEEE, federally effective June 16, 2006, for certain other solid waste incineration (OSWI) units and new air curtain incinerators. The department is considering adding a cross-reference to Article 9, New Source Performance Standards, to be consistent with the requirements referenced in 40 CFR 60.2888, which subjects OSWI units and air curtain incinerators to certain provisions of 40 CFR 60, Subpart FFFF at §§60.2970 through 60.2974 and to the requirement to obtain a CAA Title V operating permit. The department is also considering adding a cross-reference to Article 5, General Permits, and revising the definition of "air curtain destructor" in Section R18-2-101. Seehttp://www.azsos.gov/public_services/Register/2008/20/docket.pdf(p. 1844)
  • The Arizona Department of Environmental Quality issued proposed revisions to Emissions from Existing and New Nonpoint Sources and Emissions from Mobile Sources (New and Existing). The department is considering clarifying the "reasonable precautions" requirement to address U.S. EPA concerns regarding the enforceability of the rules as written. Seehttp://www.azsos.gov/public_services/Register/2008/20/docket.pdf(pp. 1844-1845)

ARKANSAS

Water:

CALIFORNIA

Toxic Substances:

  • The California Environmental Protection Agency, Office of Environmental Health Hazard Assessment, is soliciting public comment on proposed rulemaking to establish a specific regulatory level having no observable effect for one chemical, di-n-hexyl phthalate, and amend Title 22, California Code of Regulations, Section 128051. Comments are due June 30, 2008. Seehttp://www.oal.ca.gov/pdfs/notice/20z-2008.pdf(pp. 735-738)

FLORIDA

Air:

  • The Department of Environmental Protection will conduct a public hearing to consider the adoption of proposed new rule section under 62-285.420, Heavy-Duty Vehicle Idling Reduction, to reduce emissions from unnecessary, long-duration diesel engine idling. The hearing will be held June 19, 2008. Seehttps://www.flrules.org/Faw/FAWDocuments/FAWVOLUMEFOLDERS2008/3421/SECTII.pdf(pp. 2783-2784)

INDIANA

Hazardous and Solid Wastes:

Water:

  • The Water Pollution Control Board gives notice that the date has changed for the public hearing on a list of rules under Title 327 of the Indiana Administrative Code required to be noticed every seven years even though they are not subject to expiration. The hearing will now be held July 9, 2008. Seehttp://www.in.gov/legislative/iac/20080528-IR-327080206CHA.xml.html
  • The Water Pollution Control Board gives notice that the date has changed for the public hearing on a rulemaking authorized under IC 13-14-9-14 to establish the city of Indianapolis's Combined Sewer Overflow Wet Weather Limited Use Subcategory of the recreational use designated use category. The hearing will now be held July 9, 2008. Seehttp://www.in.gov/legislative/iac/20080528-IR-327080324CHA.xml.html

LOUSIANA

Hazardous and Solid Wastes:

  • The Department of Environmental Quality amended the UST regulations at LAC 33:XI.1121. This rule provides for the use of a lien in substitute for the owner's financial responsibility required by law for a UST owner who has established inability to pay and ceased operations. Seehttp://www.doa.la.gov/osr/reg/0805/0805.doc(pp. 864-865)
  • The Department of Environmental Quality amended the Environmental Quality regulations at LAC 33:I.3931; V.3099; IX.2301, 4901, and 4903; and XV.1517. This rule is identical to federal regulations found in 10 CFR Part 71, Appendix A; 40 CFR 117.3, Part 136, Part 266, Appendices I-IX and XI-XIII, 302.4, 302.6(e), 355.40(a)(2)(vii), Part 401, Parts 405-415, and Parts 417-471; and 72 FR 40245-40250, which are applicable in Louisiana. Seehttp://www.doa.la.gov/osr/reg/0805/0805.doc(pp. 865-867)

MAINE

Fisheries:

  • The Maine Department of Marine Resources will hold a public hearing to consider gear restrictions for consistency and for compliance with the federal requirements in the NOAA-Fisheries Service Atlantic Large Whale Take Reduction Plan Final Rule in accordance with the Marine Mammal Protection Act. The various gear restrictions would apply to trap and pot fisheries (including but not limited to all crab species, hagfish, finfish, whelk, and shrimp), plus gillnet fisheries inside the Maine Sliver Area and federal waters. The hearing will be held June 16, 2008. Comments are due June 26, 2008. Seehttp://www.maine.gov/sos/cec/rules/notices/2008/052808.htm
  • The Maine Department of Marine Resources has adopted numerous final rules concerning aquaculture fisheries. Seehttp://www.maine.gov/sos/cec/rules/notices/2008/052808.htm

Land Use:

  • The Land Use Regulation Commission is seeking public comment on proposed changes of the lake management classification and associated zoning for Debsconeag Deadwater. The proposal would change Debsconeag Deadwater from a Management Class 1 to a Management Class 2 lake, and would consequently replace the adjacent quarter-mile Recreation Protection Subdistrict with a 500-foot wide Accessible Lake Protection Subdistrict. Comments are due June 27, 2008. Seehttp://www.maine.gov/sos/cec/rules/notices/2008/052808.htm

MARYLAND

Water:

MICHIGAN

Air:

  • The Department of Environmental Quality adopted numerous rules concerning air pollution control and PSD of air quality. Seehttp://www.michigan.gov/documents/dleg/MR8_0515208_234901_7.pdf(pp. 102-116)
  • The Department of Environmental Quality, Air Quality Division, will conduct a public hearing on proposed administrative rules promulgated pursuant to Part 55, Air Pollution Control, of the Natural Resources and Environmental Protection Act, 1994 PA 451, as amended (Act 451); Part 18, Prevention of Significant Deterioration of Air Quality, R 336.1801, R 336.1816, and R 336.1818. These amendments are being proposed to meet U.S. EPA's requirements for the PSD SIP. The public hearing will be held on June 19, 2008. Seehttp://www.michigan.gov/documents/dleg/MR8_0515208_234901_7.pdf(pp. 117-145)
  • The Department of Environmental Quality, Air Quality Division, will conduct a public hearing on proposed administrative rules promulgated pursuant to Part 55, Air Pollution Control, of the Natural Resources and Environmental Protection Act, 1994 PA 451, as amended (Act 451); Part 8, Emission Limitations and Prohibitions—Oxides of Nitrogen, R 336.1801, R 336.1802a, R 336.1803, R 336.1821 to R 336.1823, and R 336.1830 to R 336.1833. These amendments are being proposed to meet the requirements of U.S. EPA's Clean Air Interstate Rule. The revisions address deficiencies noted by U.S. EPA in their December 2007 conditional approval of the department's original Michigan SIP submitted to the Agency in July of 2007. These rules will become part of the SIP upon final promulgation. The public hearing will be held on June 19, 2008. Seehttp://www.michigan.gov/documents/dleg/MR8_0515208_234901_7.pdf(p. 146)

Hazardous & Solid Wastes:

NEW HAMPSHIRE

Air:

  • The Department of Environmental Services will hold a public hearing to consider the readoption, with amendments, of Env-A 1001, Open Burning, which sets forth general open burning requirements, definitions, and a list of materials that are allowed to be burned in the state, and lists absolute prohibitions against the burning of certain types of materials. The department is proposing to amend Env-A 1001 to make it consistent with RSA 125-C:10-c, Combustion Ban, which became effective January 1, 2008. The hearing will be held June 30, 2008. Comments are due July 10, 2008. Seehttp://www.des.state.nh.us/RuleMaking/proposed/env1001_rmn.pdf

Water:

  • The Department of Environmental Services will hold a public hearing to consider the adoption and readoption, with amendments, of the requirements and procedures for obtaining permits under RSA 485-A:17 for activities that alter terrain and/or existing runoff conditions. The hearing will be held May 30, 2008. Comments are due July 11, 2008. Seehttp://www.des.state.nh.us/RuleMaking/notice/env-wq1500rmn.pdf

NEW YORK

Fisheries:

Land Use:

OHIO

Water:

PENNSYLVANIA

Air:

TENNESSEE

Air:

Water:

  • The Tennessee Department of Environment and Conservation adopted amendments to Chapter 1200-05-07, Rules and Regulations Applied to the Safe Dams Act of 1973. This rule becomes effective July 2, 2008. Seehttp://www.tn.gov/sos/rules_filings/04-11-08.pdf

TEXAS

Air:

Fisheries:

Hazardous & Solid Wastes:

  • The Texas Commission on Environmental Quality adopted amendments to §§305.43, 305.62, and 305.70 with changes to the proposed text as published in the November 30, 2007, issue of theTexas Register. This rulemaking provides applicants a method of requesting a substantive change to a permitted municipal solid waste facility through submittal of only those portions of a permit affected by the proposed change. Seehttp://www.sos.state.tx.us/texreg/sos/adopted/30.ENVIRONMENTAL%20QUALITY.html#222
  • The Texas Commission on Environmental Quality adopted amendments to §§330.57 and 330.59. This rulemaking adds signage requirements for new municipal solid waste (MSW) permits and major amendments, and increases the distance that mailed notice is provided for certain actions relating to MSW permits and registrations. Seehttp://www.sos.state.tx.us/texreg/sos/adopted/30.ENVIRONMENTAL%20QUALITY.html#230

VIRGINIA

Water:

WEST VIRGINIA

Air:

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

INTERNATIONAL

EUROPEAN COMMISSION TO CHALLENGE U.S. BIOFUEL SUBSIDY

Last week it was revealed that the European Commission will pursue a formal challenge against the United States over its biofuel subsidies. The European Biodiesel Board alleges that U.S. subsidies have encouraged American exports to flood the European market. Europeans are particularly concerned about a loophole that allows traders to "splash and dash," or export biodiesel to the United States and add a small amount of petroleum, thereby qualifying for a subsidy, before exporting to another country. Seehttp://www.guardian.co.uk/environment/2008/may/26/biofuels.energy

INDIAN FIRM TO MINE MASSIVE BOLIVIAN IRON ORE DEPOSIT

Bolivia has formed an agreement with an Indian multinational to develop the 40 billion ton reserve of iron ore at El Mutun, a mountain in South America's Pantanal that holds the world's largest reserve of iron ore. The 40-year concession to Jindal Steel & Power is expected to bring jobs and revenue to Bolivia, which has seen other firms attempt to develop the site over the decades. Iron ore is in high demand by emerging economies such as that of India because of its key role in steel production. Seehttp://www.latimes.com/business/printedition/la-fi-iron28-2008may28,0,7733454.story

FRANCE PASSES NEW LEGISLATION ON GENETICALLY MODIFIED CROPS

The government of France passed a bill last week to regulate the growth of genetically modified (GM) crops. The new law requires farmers to disclose if they are growing GM crops, although some environmentalists have complained that the law does not go far enough to protect other organisms from contamination by neighboring GM crops. Currently, no GM strains are under cultivation at all in France, after the government banned a particular strain of GM corn last February. Seehttp://afp.google.com/article/ALeqM5hn9rArU5U3x9EKl_0c3F3pwQr0SQ

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

Note: To request additional information, please call (800) 433-5120 or (202) 939-3844. Documents may also be available free or at a nominal charge from the applicable court or agency. Copyright© 2008, Environmental Law Institute, Washington, D.C. All rights reserved.

ELR STAFF

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Sandra Nichols, Contributing Editor

06/05/2006

LITIGATION

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

CERCLA, LIABILITY:

The Fifth Circuit vacated and remanded a lower court's imposition of joint and several liability against two companies for their share of the cleanup costs at a manufacturing plant, but affirmed the court's allocation of liability to a third party for future cleanup costs. Liability in contribution actions brought under CERCLA §113(f) is several only. The lower court, therefore, erred in imposing joint and several liability against the two companies. On remand, it must determined the proper division of liability between them. The court, however, did not err in allocating the majority of future cleanup costs against a third company, as there is a great deal of evidence on the record directly implicating that company for the majority of the contamination. Elementis Chromium L.P. v. Coastal States Petroleum Co., No. 04-20519, 36 ELR 20097 (5th Cir. May 26, 2006) (12 pp.).

CENTRAL VALLEY IMPROVEMENT ACT, WATER QUALITY:

The Ninth Circuit upheld the dismissal of local water agencies' claims that the Bureau of Reclamation was operating the Central Valley Project (CVP) in a manner that would at some point in the future violate the Vernalis salinity standard, a state standard with which the Bureau must comply in its operation of the CVP. Not only has there been no violation of the salinity standard in the past decade, the agencies failed to raise a genuine issue of material fact as to whether the Bureau would fail to comply with the standard in the foreseeable future. Although models predict that the Bureau's operating plan will likely result in future violations of the salinity standard, the Bureau concedes that it is required to violate the plan if necessary to provide flows sufficient to lower the salinity of the water to the levels required by the Vernalis salinity standard. It has done so in the past, and nothing in the record suggests that it will not continue to do so in the future. The court, therefore, affirmed a lower court's grant of summary judgment in favor of the Bureau. Central Delta Water Agency v. Bureau of Reclamation, No. 04-16632, 36 ELR 20094 (9th Cir. May 22, 2006) (11 pp.).

STATUTE OF LIMITATIONS, DISCOVERY:

The Third Circuit vacated the dismissal of dairy farmers' claims that their cows and farmland were poisoned by defendant's factory emissions over several decades. Because there existed a material issue of fact as to whether the farmers exercised reasonable diligence in determining the cause of their cows' symptoms, the lower court should not have dismissed the farmers' claims as time-barred. Mest v. Cabot Corp., No. 04-4457, 36 ELR 20098 (3d Cir. May 31, 2006) (23 pp.).

INTERSTATE COMMERCE ACT, "JUST AND REASONABLE" RATES:

The D.C. Circuit granted in part and denied in part petitions for review of FERC orders requiring certain crude oil carriers to pay shippers reparations for excessive rates. Section 1(5) of the Interstate Commerce Act requires all rates to be "just and reasonable." The court granted the carriers' petition for review that FERC went too far in holding that a joint rate exceeds the just and reasonable rate based only on the costs of providing service on one of four segments without giving the carrier the opportunity to show that the overall rate did not exceed costs. On remand, FERC must consider whether prior case law interpreting §1(5) of the Interstate Commerce Act precludes its condemnation of the joint rate at issue here without considering the reasonableness of the rate as an aggregate. The court, however, rejected the shippers' petition in which they claimed that FERC erred in awarding reparations only for complaining shippers in privity with the carrier. Frontier Pipeline Co. v. Federal Energy Regulatory Commission, No. 04-1343, 36 ELR 20095 (D.C. Cir. May 26, 2006) (36 pp.).

GROUNDWATER, WELLS, PERMITS:

A California appellate court held that the state water control board did not err in ordering a water company to obtain a permit to pump groundwater from two wells near the North Fork Gualala River. The board has permitting jurisdiction over "subterranean streams flowing through known and definite channels." The board made all the findings necessary to determine that it had jurisdiction over the groundwater at issue, and its findings were supported by substantial evidence. Nor did the board err in placing pumping limitations on the permit. North Gualala Water Co. v. State Water Resources Control Board, No. A109438, 36 ELR 20099 (Cal. App. 1st Dist. May 31, 2006) (36 pp.).

INSURANCE, POLLUTION EXCLUSIONS, "DAMAGES":

A California appellate court affirmed a lower court decision that under California law, an insurance company need not provide coverage for the costs property owners incurred responding to suspected soil and groundwater pollution. A state agency ordered the property owners to test their property after they were suspected of being the source of the contamination. The agency ultimately determined that the property owners were not the source, and it closed its investigation. The owners then sought reimbursement from its insurer. The owners' comprehensive commercial general liability policy, however, contains an absolute pollution exclusion that is non-specific and all-encompassing. And the property owners' excess/umbrella insurance policy only provides coverage for damages, which, under state law, means a court-ordered loss, not costs incurred pursuant to an administrative order. CDM Investors v. Travelers Casualty & Surety Co., No. H024142, 36 ELR 20096 (Cal. App. 6th Dist. May 26, 2006) (21 pp.).

RCRA, EXPERT WITNESSES:

An EPA administrative law judge (ALJ) granted EPA's motion to supplement its prehearing exchange in its case against the owner and operator of a hazardous waste facility for RCRA violations. In count 2 of its complaint, EPA alleged that the facility illegally received, stored, and treated spent stripping acid. EPA sought to supplement its list of expert witnesses with regard to this count. Because the experts' proposed testimony may include information that is relevant to one or more penalty factors in the RCRA Penalty Policy, and because it is unclear at this time as to whether their testimonies will be clearly inadmissible, the ALJ granted EPA's motion. In re Zaclon, Inc., RCRA No. 05-2004-0019, 36 ELR 47872 (EPA ALJ Apr. 24, 2006) (6 pp.).

RCRA, "WASTE":

An EPA administrative law judge (ALJ) granted in part and denied in part cross motions for accelerated decision in a case EPA brought against the owner and operator of a hazardous waste facility for RCRA violations. EPA alleged that the facility received, stored, and treated spent stripping acid without a permit. The facility argued that it received a letter from the state environmental agency stating that the stripping acid it accepts to produce zinc chloride is not considered a waste. The facility also argued that EPA and the state agency had provided no basis for a change of interpretation. The ALJ, however, held that the facility had notice that the stripping acid may be regulated as a waste and that it was "ascertainable" that the stripping acid was in fact a waste. The ALJ, therefore, denied the the facility's motion for accelerated decision on this count. And because EPA presented persuasive evidence that the stripping acid at issue is a "spent material," the ALJ partially granted EPA's motion for accelerated decision. The ALJ, however, refused to hold that the facility was liable for the violations at issue in that count. In re Zaclon, Inc., RCRA No. 05-2004-0019, 36 ELR 47873 (EPA ALJ May 18, 2006) (18 pp.).

RCRA, ABILITY TO PAY:

An EPA administrative law judge granted EPA's motion of accelerated decision on the issue of a hazardous waste facility owner's ability to pay a penalty for RCRA violations. Although the facility raised the issue of inability to pay in its prehearing exchange, it failed to provide substantial and probative evidence from which a reasonable factfinder could find by a preponderance of the evidence that it is unable to pay the proposed penalty. The facility, therefore, failed to sustain its burden in opposing the motion. In re Zaclon, Inc., RCRA No. 05-2004-0019, 36 ELR 47874 (EPA ALJ May 23, 2006) (9 pp.).

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

THE FEDERAL AGENCIES

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

AIR:

  • EPA amended NESHAPs for the printing and publishing industry. 71 FR 29792 (5/24/06).
  • EPA amended the reformulated gasoline (RFG) regulations to allow refiners and importers of RFG blendstock for oxygenate blending the option to use an alternative method of fulfilling a regulatory requirement to conduct quality assurance sampling and testing at downstream oxygenate blending facilities; the amendments also concern pipeline interface requirements for gasoline content standards, recordkeeping, sampling, and testing. 71 FR 31947 (6/2/06).
  • EPA proposed to amend NESHAPs for the printing and publishing industry; see above for final rule. 71 FR 29878 (5/24/06).
  • EPA proposed to amend the RFG regulations to allow refiners and importers of RFG blendstock for oxygenate blending the option to use an alternative method of fulfilling a regulatory requirement to conduct quality assurance sampling and testing at downstream oxygenate blending facilities and also proposed to amend pipeline interface requirements; see above for final rule. 71 FR 32015 (6/2/06).
  • EPA announced the availability of new information related to its November 5, 2005, proposal to list two hydrochlorofluorocarbons (HCFCs)--HCFC-22 and HCFC-142b--as unacceptable ozone-depleting substitutes in foam blowing applications, but to grandfather existing users until January 1, 2010. 71 FR 30353 (5/26/06).
  • EPA, pursuant to CAA §209(e), authorized California to enforce its regulations setting emission standards and other requirements for large off-road spark-ignition engines. 71 FR 29621 (5/23/06).
  • SIP Approvals: Indiana (particulate matter with a diameter of 10 microns or less (PM10)) 71 FR 29588 (5/23/06). Kentucky (redesignation of sulfur dioxide (SO2) nonattainment area) 71 FR 19786 (5/24/06). Michigan (state rule revisions) 71 FR 31093 (6/1/06). Ohio (carbon monoxide (CO) maintenance plan) 71 FR 31097 (6/1/06). New Mexico (local ambient air quality standards and NAAQS) 71 FR 30805 (5/31/06).
  • SIP Proposals: Indiana (PM10 emissions; see above for final rule) 71 FR 29605 (5/23/06). Kentucky (redesignation of SO2 nonattainment area; see above for final rule) 71 FR 29878 (5/24/06). New Mexico (local ambient air quality standards and NAAQS; see above for final rule) 71 FR 30844 (5/31/06). Ohio (rescinding of nitrogen oxides rule) 71 FR 31129 (6/1/06); (CO maintenance plan; see above for final rule) 71 FR 31129 (6/1/06).

HAZARDOUS WASTE:

  • EPA entered into two proposed settlements under CERCLA concerning the the P&W Superfund site in Yorkville, Tennessee, that requires the settling party to reimburse the Agency for past response costs incurred at the site. 71 FR 30404 (5/26/06).
  • EPA entered into a proposed administrative settlement under CERCLA concerning the Many Diversified Interest Superfund site in Houston, Texas, that requires the settling parties to perform cleanup work and to implement institutional controls on a portion of the site they are purchasing. 71 FR 31182 (6/1/06).
  • EPA entered into a proposed administrative settlement under CERCLA concerning the Shenandoah Road Groundwater Contamination Superfund site in East Fishkill, New York, that requires the settling party to pay $750,000, plus interest, in past response costs. 71 FR 31183 (6/1/06).

MINING:

  • OSM proposed to approve an amendment to Mississippi's regulatory program under SMCRA that concerns valid existing rights as they pertain to the designation of land as unsuitable for surface coal mining operations. 71 FR 29867 (5/24/06).
  • OSM proposed to approve an amendment to Pennsylvania's regulatory program under SMCRA that would remove four OSM-issued required amendments; the state program is as effective as the corresponding federal regulations. 71 FR 29597 (5/23/06).
  • OSM proposed to approve amendments to West Virginia's regulatory program under SMCRA that concern water rights and replacement and bio-oil cropland postmining land use. 71 FR 31996 (6/2/06).
  • OSM withdrew its proposed approval of an amendment to Texas' regulatory program under SMCRA concerning revisions to and additions of regulations regarding coal combustion products and byproducts. 71 FR 29285 (5/22/06).

PESTICIDES:

  • EPA announced that Monsanto Company has requested an experimental use permit to use a variety of plant-incorporated protectants in producing certain types of corn. 71 FR 30403 (5/26/06).

TOXIC SUBSTANCES:

  • EPA proposed to waive Kentucky from the requirements of the federal asbestos-in-schools program. 71 FR 31183 (6/1/06).
  • EPA received a petition from the Sierra Club expressing its concern about the risks of toy jewelry containing lead and requesting that EPA take action under TSCA. 71 FR 30921 (5/31/06).

WATER:

  • EPA announced the final reissuance of a general NPDES permit for offshore oil and gas exploration facilities on the outer continental shelf areas designated as the Beaufort Sea, Chukchi Sea, Hope Basin Planning Area, and Norton Sound Planning Areas, including contiguous state waters. 71 FR 30405 (5/26/06).
  • EPA proposed to approve Alabama's drinking water regulations for the interim enhanced surface water treatment, disinfectants and disinfection byproducts, and filter backwash recycling rules. 71 FR 32088 (6/2/06).
  • EPA received a petition from the state of Massachusetts requesting a determination that adequate facilities for the safe and sanitary removal and treatment of sewage from all vessels are reasonably available for the waters of Plymouth Bay, Plymouth Harbor, Kingston Bay, Duxbury Bay, and their respective coastlines and coastal tidal rivers. 71 FR 31186 (6/1/06).

WILDLIFE:

  • FWS announced its 90-day finding on a petition to remove the California brown pelican from the list of endangered and threatened wildlife; it elected to initiate a five-year status review of the California pelican to determine if delisting is warranted. 71 FR 29908 (5/24/06).
  • FWS announced a 12-month finding on a petition to list the California spotted owl under the ESA; the agency determined that listing the species is not warranted at this time. 71 FR 29886 (5/24/06).
  • FWS announced that it will begin a five-year review of the northern distinct population segment of the copperbelly water snake under ESA §4(c)(2)(A). 71 FR 32124 (6/2/06).
  • FWS announced that the final comprehensive conservation plan for the Hagerman National Wildlife Refuge in Sherman, Texas, is available for public review. 71 FR 29971 (5/24/06).
  • FWS announced that a draft comprehensive conservation plan and EA for the Alligator River National Wildlife Refuge in Dare and Hyde counties, North Carolina, are available for public review. 71 FR 30687 (5/30/06).
  • FWS announced that it intends to prepare an EA or EIS for the proposed issuance of a permit allowing Idaho to conduct non-lethal and lethal take activities on endangered gray wolves as part of its wolf management program. 71 FR 31196 (6/1/06).
  • FWS announced that it intends to gather information necessary to prepare a comprehensive conservation plan and EA for the Delta National Wildlife Refuge in Plaquemines Parish, Louisiana, and Breton National Wildlife Refuge in St. Bernard and Plaquemines Parishes, Louisiana. 71 FR 30688 (5/30/06).
  • NMFS announced that the draft revised recovery plan for the eastern and western distinct population segments of the Steller sea lion is available for public review. 71 FR 29919 (5/24/06).

MISCELLANEOUS:

  • EPA announced that it is establishing the Coastal Elevations and Sea Level Rise Advisory Committee to provide advice on a study concerning sea level rise under the U.S. Climate Change Science Program. 71 FR 29333 (5/22/06).
  • EPA announced the release of the third edition of its Peer Review Handbook. 71 FR 32088 (6/2/06).

DOJ NOTICES OF SETTLEMENTS:

  • United States v. Browning-Ferris, Inc., No. 06-1134 (D. Md. May 4, 2006). Settling CERCLA defendants must perform the EPA-selected cleanup, costing approximately $7,345,000, for the second operable unit at the Kane and Lombard Superfund site in Baltimore, Maryland. 71 FR 30162 (5/25/06).
  • United States v. First Michigan Bank, No. 1:88-cv-00097 (W.D. Mich. May 11, 2006). A settling RCRA defendant must pay a civil penalty of $10,000; must place a minimum of $113,000 and a maximum of $350,000 in an environmental escrow account to fund its remaining obligations incurred at the Kent-Holland Die Casting & Plating, Inc., facility in Holland, Michigan; must continue to comply with ongoing post-closure plans; and must continue to provide EPA with access to the facility during the post-closure work. 71 FR 30162 (5/25/06).
  • United States v. Mirant Potomac River, LLC, No. 1:04CV1136 (E.D. Va. May 8, 2006). A settling CAA defendant must pay a $500,000 civil penalty, to be divided equally between Virginia and the United States; must undertake nine projects designed to reduce particulate matter and fugitive dust emissions from its Potomac River plant in Alexandria, Virginia; must install and operate nitrogen oxide (NOx) pollution control equipment at one of its four plants located in the mid- Atlantic region; must implement a declining schedule of system-wide limits on the NOx emissions from its four plants; must meet annual NOx tonnage limitations for the Potomac River plant in addition to the tonnage limitations that apply only during the ozone season; and if it ceases operation or ownership of two of the plants, the future owners must comply with the decree or install an alternate suite of pollution control technologies. 71 FR 30163 (5/25/06).
  • United States v. Rohm & Haas Texas, Inc., No. 4:06-cv-01622 (S.D. Tex. May 11, 2006). A settling CWA, CAA, and RCRA defendant that discharged pollutants in excess of its permit, violated NESHAPS requirements, and failed to comply with the federally approved Texas hazardous waste management program at its chemical manufacturing complex in Deer Park, Texas, must pay a civil penalty of $485,000 and must implement a supplemental environmental project that will cost at least $670,000. 71 FR 30163 (5/25/06).
  • Washington v. United States, No. 06- 05225-RJB (W.D. Wash. May 8, 2006). A settling CERCLA and Model Toxics Control Act defendant must pay $13,536,760.33 in natural resource damages and assessment costs resulting from releases of hazardous substances in Commencement Bay, Washington. 71 FR 30164 (5/25/06).
  • United States v. Weyerhaeuser Co., No. 4:06-cv-61 (W.D. Ky. May 5, 2006). A settling CAA defendant that violated particulate matter limitations at its pulp and paper mill in Kentucky as well as recycling and emissions reduction regulations at its pulp and paper mills in Kentucky, South Carolina, and Tennessee must pay a civil penalty of $142,000 and may not use any fuel other than natural gas in Hog Fuel Boiler No. 2 at its Kentucky mill. 71 FR 30164 (5/25/06).
  • Midcontinent Commodity Exchange, Inc. v. American Cyanamid, Nos. 1:02-CV-109-1 and 1:03-CV-122-3 (M.D. Ga. May 22, 2006). A settling CERCLA defendant must pay $50,000 to the Hazardous Substances Superfund in U.S. response costs incurred at the Stoller Chemical Company/Pelham Phosphate Company Superfund site in Pelham, Georgia. 71 FR 31212 (6/1/06).
  • United States v. American Cyanamid, Nos. 1:02-CV-109-1 and 1:03-CV-122-3 (M.D. GA. May 22, 2006). Settling CERCLA defendants must jointly pay $1,750,000 to the Hazardous Substances Superfund in U.S. response costs incurred at the Stoller Chemical Company/Pelham Phosphate Company Superfund site in Pelham, Georgia. 71 FR 31212 (6/1/06).
  • United States v. Cardinal Fencing, Inc., No. 5:06cv1268 (N.D. Ohio May 22, 2006). Settling CWA defendants must pay a civil penalty and perform mitigation to resolve allegations of discharging pollutants without a permit into waters of the United States. 71 FR 31213 (6/1/06).
  • United States v. Newly Weds Foods, Inc., No. 06 C 2706 (N.D. Ill. May 16, 2006). A settling CAA defendant must retrofit or retire all of its industrial process refrigeration equipment systems that are designed to hold more than 50 pounds of ozone-depleting refrigerants at full charge with systems that use only non-ozone depleting refrigerants by July 1, 2008, and must pay a $125,000 civil penalty to the United States for violating industrial refrigerant repair, recordkeeping, and reporting regulations. 71 FR 31213 (6/1/06).
  • United States v. Portland Terminal R.R. Co., No. 03-1763 (D. Or. May 3, 2006). A settling CERCLA defendant must pay $550,000 in past U.S. response costs and 87.5% of future U.S. response costs incurred and to be incurred at the U.S. Postal Service Processing and Distribution Center in Portland, Oregon, provided that the selected remedy for the site is based on a particular land use. 71 FR 31213 (6/1/06).
  • In re W.R. Grace & Co., No. 01- 01139 (JFK) (Bankr. D. Del. May 18, 2006). A settling CERCLA defendant must pay $1.25 million to a group of PRPs to perform cleanup work at the Wauconda Sand and Gravel Superfund site in Wauconda, Illinois. 71 FR 31214 (6/1/06).

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

THE CONGRESS

PUBLIC LAWS:

  • S. 1165 (wildlife refuge), which provides for the expansion of the James Campbell National Wildlife Refuge in Honolulu County, Hawaii, was signed into law by President Bush on May 25, 2006. Pub. L. No. 109-225, 152 Cong. Rec. D569 (daily ed. May 26, 2006).
  • S. 1382 (land conveyance), which requires the Secretary of the Interior to accept the conveyance of certain land, to be held in trust for the benefit of the Puyallup Indian tribe, was signed into law by President Bush on May 18, 2006. Pub. L. No. 109-224, 152 Cong. Rec. D486 (daily ed. May 18, 2006).
  • S. 1869 (Coastal Barriers Resources Act), which reauthorizes the Coastal Barrier Resources Act, was signed into law by President Bush on May 25, 2006. Pub. L. 109-226, 152 Cong. Rec. D569 (daily ed. May 26, 2006).

CHAMBER ACTION:

  • S. 2803 (Mine Improvement and New Emergency Response Act), which would amend the Federal Mine Safety and Health Act of 1977 to improve the safety of mines and mining, was passed by the Senate. 152 Cong. Rec S5045 (daily ed. May 24, 2006).
  • H.R. 5384 (Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act, 2007), which would make appropriations for Agriculture, Rural Development, Food and Drug Administration, and Related Agencies for the fiscal year ending September 30, 2007, was passed by the House. 152 Cong. Rec. H3039 (daily ed. May 23, 2006).
  • H.R. 5386 (Department of the Interior, Environment, and Related Agencies Appropriations Act, 2007), which would make appropriations for the DOI and for environment and related agencies for the fiscal year ending September 2007, was passed by the House. 152 Cong. Rec. H2765 (daily ed. May 18, 2006).
  • H.R. 5427 (Energy and Water Development Appropriations Act, 2007), which would make appropriations for energy and water development for the fiscal year ending September 30, 2007, was passed by the House. 152 Cong. Rec. H3156 (daily ed. May 24, 2006).
  • H.R. 5429 (American-Made Energy and Good Jobs Act), which would direct the Secretary of the Interior to establish and implement a competitive oil and gas leasing program that will result in an environmentally sound program for the exploration, development, and production of the oil and gas resources of the Coastal Plain of Alaska, was passed by the House. 152 Cong. Rec. H3245 (daily ed. May 25, 2006).

COMMITTEE ACTION:

  • S. 1950 (energy) was reported by the Committee on Foreign Relations. 152 Cong. Rec. S5226 (daily ed. May 25, 2006). The bill would promote global energy security through increased cooperation between the United States and India in diversifying sources of energy, stimulating development of alternative fuels, developing and deploying technologies that promote the clean and efficient use of coal, and improving energy efficiency.
  • S. 2127 (Mason Neck National Wildlife Refuge) was reported by the Committee on Environment and Public Works. S. Rep. No. 109-258, 152 Cong. Rec. S5226 (daily ed. May 25, 2006). The bill would redesignate the Mason Neck National Wildlife Refuge in the state of Virginia as the "Elizabeth Hartwell Mason Neck National Wildlife Refuge."
  • S. Res. 301 (National Audubon Society) was reported by the Committee on Environment and Public Works. 152 Cong. Rec. S5116 (daily ed. May 24, 2006). The resolution would commemorate the 100th anniversary of the National Audubon Society.
  • S. Res. 456 (energy) was reported by the Committee on Foreign Relations. 152 Cong. Rec. S4963 (daily ed. May 23, 2006). The resolution would express the sense of the Senate on the discussion by the North Atlantic Council of secure, sustainable, and reliable sources of energy.
  • H.R. 5359 (fuel economy) was reported by the Committee on Energy and Commerce. H. Rep. N. 109-475, 152 Cong. Rec. H3015 (daily ed. May 22, 2006). The bill would amend the automobile fuel economy provisions of title 49, United States Code, to authorize the Secretary of Transportation to set fuel economy standards for passenger automobiles based on one or more vehicle attributes.
  • H.R. 5427 (energy and water development) was reported by the Committee on Appropriations. H. Rep. No. 109-474, 152 Cong. Rec. H2961 (daily ed. May 19, 2006). The bill would make appropriations for energy and water development for the fiscal year ending September 30, 2007.
  • H. Res. 830 (appropriations) was reported by the Committee on Rules. H. Rep. No. 109-477, 152 Cong. Rec. H3015 (daily ed. May 22, 2006). The resolution would provide for consideration of the bill (H.R. 5384) making appropriations for Agriculture, Rural Development, Food and Drug Administration, and Related Agencies for the fiscal year ending September 30, 2007.
  • H. Res. 832 (energy and water development) was reported by the Committee on Rules. H. Rep. No. 106-479, 152 Cong. Rec. H3137 (daily ed. May 23, 2006). The resolution would provide for consideration of the bill (H.R. 5427) making appropriations for energy and water development for the fiscal year ending September 30, 2007.
  • H. Res. 835 (oil and gas leasing) was reported by the Committee on Rules. H. Rep. No. 109-480, 152 Cong. Rec. H3225 (daily ed. May 24, 2006). The resolution would provide for consideration of the bill (H.R. 5429) to direct the Secretary of the Interior to establish and implement a competitive oil and gas leasing program that will result in an environmentally sound program for the exploration, development, and production of the oil and gas resources of the Coastal Plain of Alaska.
  • H. Res. 842 (refineries) was reported by the Committee on Rules. H. Rep. No. 109-482, 152 Cong. Rec. H3306 (daily ed. May 25, 2006). The resolution would provide for consideration of the bill (H.R. 5254) to set schedules for the consideration of permits for refineries.

BILLS INTRODUCED:

  • S. 2832 (Voinovich, R-Ohio) (Appalachian Regional Development Act) would reauthorize and improve the program authorized by the Appalachian Regional Development Act of 1965. 152 Cong. Rec. S4796 (daily ed. May 18, 2006). The bill was referred to the Committee on Environment and Public Works.
  • S. 2855 (Biden, D-Del.) (SDWA) would amend the SDWA to eliminate security risks by replacing the use of extremely hazardous gaseous chemicals with inherently safer technologies. 152 Cong. Rec. S4796 (daily ed. May 18, 2006). The bill was referred to the Committee on Environment and Public Works.
  • S. 2920 (Reid, D-Nev.) (SDWA) would amend the SDWA to eliminate security risks by replacing the use of extremely hazardous gaseous chemicals with inherently safer technologies. 152 Cong. Rec S4891 (daily ed. May 22, 2006). The bill was referred to the Committee on Environment and Public Works.
  • S. 2984 (Obama, D-Ill.) (fuel pumps) would require certain profitable oil companies to expend 1% of recent quarterly profits to install E-85 fuel pumps in the United States. 152 Cong. Rec S4966 (daily ed. May 23, 2006). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2985 (Durbin, D-Ill.) (national heritage area) would establish the Land Between the Rivers National Heritage Area in the state of Illinois. 152 Cong. Rec S4966 (daily ed. May 23, 2006). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 2993 (Clinton, D-N.Y.) (energy) would amend the Internal Revenue Code of 1986 to impose a temporary oil profit fee and to use the proceeds of the fee collected to provide a Strategic Energy Fund and expand certain energy tax incentives. 152 Cong. Rec. S4967 (daily ed. May 23, 2006). The bill was referred to the Committee on Finance.
  • S. 3000 (Stevens, R-Ark.) (electricity) would grant rights-of-way for electric transmission lines over certain Native allotments in the state of Alaska. 152 Cong. Rec. S5117 (daily ed. May 24, 2006). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 3035 (Smith, R-Or.) (national heritage area) would direct the Secretary of the Interior to conduct a study to determine the feasibility of establishing the Columbia-Pacific National Heritage Area in the states of Washington and Oregon. 152 Cong. Rec. S5226 (daily ed. May 25, 2006). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 3188 (Feinstein, D-Cal.) (national forest system) would amend the Forest Service use and occupancy permit program to restore the authority of the Secretary of Agriculture to utilize the special use permit fees collected by the Secretary in connection with the establishment and operation of marinas in units of the National Forest System derived from the public domain. 152 Cong. Rec. S5229 (daily ed. May 25, 2006). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 3189 (Feinstein, D-Cal.) (Redwood Valley Country Water District) would allow for the renegotiating of the payment schedule of contracts between the Secretary of the Interior and the Redwood Valley Country Water District. 152 Cong. Rec. S5229 (daily ed. May 25, 2006). The bill was referred to the Committee on Energy and Natural Resources.
  • H.R. 5404 (Duncan, R-Tenn.) (EPA) would authorize the Administrator of EPA to advance cooperative conservation efforts, to reduce barriers to the formation and use of partnerships to enable federal environmental stewardship agencies to meet the conservation goals and obligations of the agencies, and to promote remediation of inactive and abandoned mines. 152 Cong. Rec. H2705 (daily ed. May 17, 2006). The bill was referred to the Committees on Transportation and Infrastructure, on Energy and Commerce, and on Resources.
  • H.R. 5423 (Serrano, D-N.Y.) (national parks) would authorize the Secretary of the Interior to study the suitability and feasibility of designating Oak Point and North Brother Island in the Bronx, New York, as a unit of the National Park System. 152 Cong. Rec H2832 (daily ed. May 18, 2006). The bill was referred to the Committee on Resources.
  • H.R. 5427 (Hobson, R-Ohio) (energy and water development) would make appropriations for energy and water development for the fiscal year ending September 30, 2007. 152 Cong. Rec. H2961 (daily ed. May 19, 2006). The bill was referred to the Committee on Appropriations.
  • H.R. 5429 (Pombo, R-Cal.) (oil and gas leasing) would direct the Secretary of the Interior to establish and implement a competitive oil and gas leasing program that will result in an environmentally sound program for the exploration, development, and production of the oil and gas resources of the Coastal Plain of Alaska. 152 Cong. Rec. H2961 (daily ed. May 19, 2006). The bill was referred to the Committee on Resources.
  • H.R. 5446 (Jindal, R-La.) (NOAA) would direct the Administrator of NOAA to report to the Congress on the effects of Hurricanes Katrina, Rita, and Wilma on the fisheries and fish habitat of the United States. 152 Cong. Rec. H3016 (daily ed May 22, 2006). The bill was referred to to the Committee on Resources.
  • H.R. 5447 (Jindal, R-La.) (fisheries) would amend the Magnuson-Stevens Fishery Conservation and Management Act to authorize the Secretary of Commerce to establish a regional economic transition program to provide immediate disaster relief assistance to the fishermen, charter fishing operators, United States fish processors, and owners of related fishery infrastructure affected by a catastrophic regional fishery disaster. 152 Cong. Rec. H3016 (daily ed. May 22, 2006). The bill was referred to the Committee on Resources.
  • H.R. 5448 (Jindal, R-La.) (hurricane protection) would establish the Louisiana Hurricane and Flood Protection Council for the improvement of hurricane and flood protection in Louisiana. 152 Cong. Rec. H3016 (daily ed. May 22, 2006). The bill was referred to the Committee on Transportation and Infrastructure.
  • H.R. 5450 (Ehlers, R-Mich.) (NOAA) would provide for NOAA. 152 Cong. Rec. H3016 (daily ed. May 22, 2006). The bill was referred to the Committee on Science and the Committee on Resources.
  • H.R. 5452 (Reynolds, R-N.Y.) (national parks) would make the National Parks and Federal Recreational Lands Pass available at a discount to certain veterans. 152 Cong. Rec. H3137 (daily ed. May 23, 2006). The bill was referred to the Committee on Resources and the Committee on Agriculture.
  • H.R. 5453 (Shimkus, R-Ill.) (fuel) would amend the Internal Revenue Code of 1986 to extend the excise tax credits for certain liquid fuel derived from coal. 152 Cong. Rec. H3137 (daily ed. May 23, 2006). The bill was referred to the Committee on Ways and Means.
  • H.R. 5460 (Kolbe, R-Ariz.) (Sierra Vista Subwatershed) would authorize the Secretary of the Interior, acting through the Bureau of Reclamation, to conduct a feasibility study of the Sierra Vista Subwatershed in the state of Arizona. 152 Cong. Rec. H3137 (daily ed. May 23, 2006). The bill was referred to the Committee on Resources.
  • H.R. 5461 (Melancon, D-La.) (water resources) would authorize the Secretary of the Army to carry out water resources projects and activities for the coastal area of Louisiana. 152 Cong. Rec. H3137 (daily ed. May 23, 2006). The bill was referred to the Committee on Transportation and Infrastructure.
  • H.R. 5462 (Musgrave, R-Colo.) (oil and gas leasing) would suspend the federal highway fuels taxes and authorize the leasing, development, production, and transportation of oil and gas in and from the Coastal Plain of Alaska. 152 Cong. Rec. H3137 (daily ed. May 23, 2006). The bill was referred to the Committee on Ways and Means and the Committee on Resources.
  • H.R. 5466 (Davis, R-Va.) (National Trails System Act) would amend the National Trails System Act to designate the Captain John Smith Chesapeake National Historic Trail. 152 Cong. Rec. H3225 (daily ed. May 24, 2006), The bill was referred to the Committee on Resources.
  • H.R. 5471 (McKeon, R-Cal.) (mining) would provide to BLM a mechanism to cancel certain mining leases for lands in the leases CA-20139 and CA-22901 and provide new leasing opportunities in the Soledad Canyon adjacent to the city of Santa Clarita, California, that reflect the historical mining levels. 152 Cong. Rec. H3226 (daily ed. May 24, 2006). The bill was referred to the Committee on Resources.
  • H.R. 5478 (Hall, R-Tex.) (energy) would clarify congressional intent on federal preemption under the Energy Policy and Conservation Act with respect to energy conservation for consumer products. 152 Cong. Rec. H3306 (daily ed. May 25, 2006). The bill was referred to the Committee on Energy and Commerce.
  • H.R. 5485 (Baird, D-Wash.) (national heritage area) would direct the Secretary of the Interior to conduct a study to determine the feasibility of establishing the Columbia-Pacific National Heritage Area in the states of Oregon and Washington. 152 Cong. Rec. H3306 (daily ed. May 25, 2006). The bill was referred to the Committee on Resources.
  • H. Res. 824 (Harris, R-Fla.) (algal blooms) would recognize the effects of harmful algal blooms, including Red Tide, on the environment. 152 Cong. Rec. H2961 (daily ed. May 19, 2006). The resolution was referred to the Committee on Science and the Committee on Resources.
  • H. Res. 843 (Drake, R-Va.) (energy) would express the sense of the House of Representatives that the United States should seek to achieve complete energy independence by 2015. 152 Cong. Rec. H3308 (daily ed. May 25, 2006). The resolution was referred to the Committee on Energy and Commerce.

 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:

Alabama Indiana North Carolina
Arkansas Louisiana Ohio
Arizona Maine Oklahoma
California Maryland South Carolina
Florida Massachusetts Texas
Idaho Michigan Washington

ALABAMA

Land Use:

  • The Alabama Department of Environmental Management (ADEM) proposes to amend Division 335-15 of the ADEM Administrative Code to change the maximum amount of funds that may be loaned from the Alabama Land Recycling Revolving Loan Fund, to add language to the regulations regarding the liabilities of the department and others in managing the fund, and to require comprehensive testing to identify potentially contaminated groundwater plumes at sites being assessed or cleaned up under the voluntary cleanup program.  Other editorial changes are also proposed to clarify wording or to remove redundant or unnecessary language. Written comments are due July 7, 2006. A public hearing will be held July 6, 2006. See http://www.adem.state.al.us//PubHearings/Div15/Div15PN.htm

ALASKA

Air:

  • The Department of Environmental Conservation (DEC) proposes to adopt regulation changes in Title 18, Chapter 50, of the Alaska Administrative Code dealing with Air Emissions User Fees. DEC is proposing to amend Article 4, User Fees, to change the emission fee rate for air emissions from the present $12.52 per ton to $33.12 per ton for stationary sources subject to AS 46.14.130(b) and to $7.28 per ton for stationary sources subject to other parts of AS 46.14.130. The $33.12 per ton fee from sources subject to AS 46.14.130(b) will be allocated at the rate of $25.84 to the Clean Air Protection Fund and $7.28 to the Emission Control Permit Receipts Account. Emission fees from sources not subject to AS 46.14.130(b) will be fully allocated to the Emission Control Permit Receipts Account. Emission fee rates for portable oil and gas drilling operations are also being adjusted as a result of the changed emission fee rates. Written comments are due July 3, 2006. A public workshop will be held June 27, 2006. See http://notes4.state.ak.us/pn/pubnotic.nsf/1604e1912875140689256785006767f6/7f9b0b71b0ce2b9b8925717f000535a0?OpenDocument

Land Use:

Water:

  • The Department of Environmental Conservation adopted regulations dealing with Water Quality Standards at 18 AAC 70 on May 13, 2006, with an effective date of June 13, 2006. The regulations will appear in Register 178, July 2006, of the Alaska Administrative Code. The amendments change the criterion for dissolved oxygen in marine waters for seafood processing use. The amendments also update the analytical methods citations and documents adopted by reference to be consistent with U.S. EPA's current approved analytical methods for CWA purposes. See http://notes4.state.ak.us/pn/pubnotic.nsf/1604e1912875140689256785006767f6/d8cdfee827e2e7cc892571780000c19f?OpenDocument

ARIZONA

Air:

  • The Arizona Department of Weights and Measures proposes revisions to the cleaner burning gasoline regulation, Title 20, Chapter 2, §§701-760. The final rule will be incorporated into a revision of the cleaner burning gasoline SIP. Written comments are due June 12, 2006. A public hearing will be held June 12, 2006. See http://www.azdeq.gov/download/0612sip.pdf

Hazardous and Solid Waste:

  • The Waste Programs Division has proposed changes to the state's hazardous waste rules to incorporate changes in the federal regulations implementing RCRA Subtitle C. The amendments would adopt changes to the federal regulations that became effective between July 1, 2004, and September 6, 2005. In addition, the rule proposes to allow members of Arizona Department of Environmental Quality's newly established Performance Track Program to submit manifests to the department at less frequent intervals than other generators. Written comments are due June 9, 2006. A public hearing will be held June 5, 2006. See http://www.azsos.gov/aar/2006/18/proposed.pdf

Toxic Substances:

  • The Tanks Division Program amended the UST assurance account rules so that they reflect the current governing statutes and processes. A notice of proposed rulemaking was published in the Arizona Administrative Register on August 12, 2005. The rule was finalized May 19, 2006, and became effective June 4, 2006. See http://www.azsos.gov/aar/2006/20/final.pdf

CALIFORNIA

Air:

  • The The South Coast Air Quality Management District (AQMD) Board is considering approval of the staff report entitled "SCAQMD 8-Hour Ozone Reasonably Available Control Technology (RACT), State Implementation Plan (SIP)", which sets forth the AQMD's compliance with the requirements in the U.S. EPA 8-hour ozone NAAQS rule (70 FR 71612, Nov. 29, 2005), which states that areas classified as moderate or higher for 8-hour ozone NAAQS must submit a demonstration that their current air pollution rules fulfill the 8-hour ozone RACT.  Written comments are due July 7, 2006. A public hearing will be held July 7, 2006. See http://www.aqmd.gov/pub_edu/nph_RACT_SIP_July_7_06.html

FLORIDA

Air:

Hazardous & Solid Wastes:

  • The Department of Environmental Protection is proposing to incorporate the provisions of HB 937 (2005) regarding initial notice of contamination beyond property boundaries into Rule 62-785.220 and update form 62-785.900(3) (Brownfields Cleanup Criteria). A public workshop will be held if requested in writing. See http://tlhora6.dep.state.fl.us/onw/publications/17-PRD62785-5-26-06-INT.pdf
  • The Department of Environmental Protection is proposing to incorporate the provisions of HB 937 (2005) regarding initial notice of contamination beyond property boundaries into Rule 62-782.220 and update form 62-782.900(1) (Drycleaning Solvent Cleanup Criteria). A public workshop will be held if requested in writing. See http://tlhora6.dep.state.fl.us/onw/publications/18-PRD62782-5-26-06-INT.pdf
  • The Department of Environmental Protection is proposing to incorporate the provisions of HB 937 (2005) regarding initial notice of contamination beyond property boundaries into Rule 62-780.220 and update form 62-780.900(1) (Contaminated Site Cleanup Criteria). A public workshop will be held if requested in writing. See http://tlhora6.dep.state.fl.us/onw/publications/19-PRD62780-5-26-06-INT.pdf
  • The Department of Environmental Protection is proposing to incorporate the provisions of HB 937 (2005) regarding initial notice of contamination beyond property boundaries into Rule 62-770.220 and form 62-770.900(3) (Petroleum Contamination Site Cleanup Criteria). A public workshop will be held if requested in writing. See http://tlhora6.dep.state.fl.us/onw/publications/20-PRD62770-5-26-06-INT.pdf

Land Use:

  • The Department of Environmental Protection will hold a workshop on June 15, 2006, concerning proposed rule development for Rule Chapter 62B-49, F.A.C., Joint Coastal Permits and Concurrent Processing of Proprietary Authorizations. See http://tlhora6.dep.state.fl.us/onw/publications/16-PUBLICWORKSHOP-5-26-06-INT.pdf
  • The Department of Environmental Protection gives notice of change to the proposed rulemaking to amend Chapter 62-672, F.A.C., as published on March 31, 2006. The rule concerns minimum requirements for earthen dams used in phosphate mining and beneficiation operations and for dikes used in phosphogypsum stack system impoundments. These changes are in response to written comments from the public and the Joint Administrative Procedures Committee and were discussed before the Environmental Regulation Commission on April 27, 2006. See http://tlhora6.dep.state.fl.us/onw/publications/12-NOC62672-5-19-06-INT.pdf

Water:

IDAHO

Air:

  • The Independent Dairy Environmental Action League and the Idaho Conservation League have asked the Department of Environmental Quality (DEQ) to initiate a negotiated rulemaking to consider air quality permit rules to control ammonia from dairy farms. In February 2006, the Board adopted a temporary rule that requires dairy farms above the specified threshold numbers of cows or animal units to implement industry best management practices to control ammonia emissions through a permit by rule. In April 2006, the Board amended the temporary rule with the addition of Subsection 763.04, which exempts dairy farms from paying the permit by rule registration fee. The temporary rule, along with the amendment, will become effective on July 1, 2006. This proposed rule has the same text as the temporary rule adopted in February and amended in April. DEQ is also seeking public comment on two documents: "Fact Sheet Docket 58-0101-0502: Rules for the Control of Ammonia from Dairy Farms" and "Scientific Basis for the Control of Ammonia from Dairy Farms Best Management Practices - 4/14/06." Comments are due July 7, 2006. See http://www.deq.idaho.gov/rules/air/58_0101_0502_temporary_proposed.cfm

Water:

  • The Department of Environmental Quality (DEQ) proposes codify the existing policy on use of frequency of exceedance of numeric criteria in evaluating certain water quality parameters. DEQ proposes to add language to Section 053, Beneficial Use Support Status, that codifies support for an existing policy which allows consideration of frequency of exceedance of numeric criteria for certain water quality parameters in assessing achievement of water quality objectives and support of beneficial uses. DEQ also proposes to revise several definitions to improve clarity and utility and to make other miscellaneous corrections. The proposed revisions at Subsections 100.01.b., 250.02.f., and 250.04 have been included for consistency with existing rule text and to clarify DEQ's determination of spawning periods. Comments are due July 7, 2006. See http://www.deq.idaho.gov/rules/water/58_0102_0505_proposed.cfm

INDIANA

Air:

  • The Air Pollution Control Board gives notice that the date of the public hearing for consideration of preliminary adoption of LSA Document #05-118(ACPB), concerning sulfur dioxide emission limitations at a gas and coke utility in Indianapolis, Indiana, printed at 28 IR 3672, has been changed to June 7, 2006. See http://www.in.gov/legislative/register/Vol29/09Jun/07CH326050118.PDF
  • The Air Pollution Control Board gives notice that the date of the public hearing for consideration of preliminary adoption of LSA Document #05-165, concerning volatile organic compounds in organic solvent degreasers in central Indiana, printed at 29 IR 1013, has been changed to June 7, 2006. See http://www.in.gov/legislative/register/Vol29/09Jun/07CH326050165.PDF

Toxic Substances:

  • The Department of Environmental Management proposed to add new rule 318 IAC concerning the inspection and cleanup of properties contaminated by chemicals used in the illegal manufacture of a controlled substance in accordance with IC 13-14-1-15. This rule becomes effective 30 days after filing with the Secretary of State. A public hearing will be held June 27, 2006. See http://www.in.gov/legislative/register/Vol29/09Jun/08P318060125.PDF

Water:

  • The Water Pollution Control Board amended 327 IAC 8-1, 327 IAC 8-3, 327 IAC 8-3.1, 327 IAC 8-3.2, 327 IAC 8-3.3, 327 IAC 8-3.4, 327 IAC 8-3.5, 327 IAC 8-4, and 327 IAC 8-6 and adopted 327 IAC 8-3-2.1, 327 IAC 8-3.4-9.1, and 327 IAC 8-4-2 to simplify the construction permitting requirements for small systems. The rule will become effective 30 days after filing with the Secretary of State. See http://www.in.gov/legislative/register/Vol29/09Jun/02F327040106.PDF
  • The Water Pollution Control Board gives notice that the date of the public hearing for consideration of preliminary adoption of LSA Document #05-218(WPCB), printed at 29 IR 2688, has been rescheduled. The hearing, concerning the establishment of a combined sewer overflow wet weather limited use subcategory and the use of permit compliance schedules for combined sewer overflow communities, will be held at the regularly scheduled meeting of the Water Pollution Control Board on August 9, 2006. See http://www.in.gov/legislative/register/Vol29/09Jun/07CH327050218.PDF

LOUISIANA

Air:

  • The Department of Environmental Quality determined that emergency action was necessary to implement rules concerning the use of new or revised emissions estimation methods for annual compliance certifications under LAC 33:III.507.H. This is a renewal of Emergency Rule AQ240E4, which was effective on December 23, 2005, and published in the Louisiana Register on January 20, 2006. The department has proposed a rule to promulgate these regulation changes. This emergency rule went into effect April 22, 2006. See http://www.deq.louisiana.gov/portal/portals/0/planning/regs/pdf/AQ240E5.pdf
  • The Department of Environmental Quality has extended the comment period for 2002 Base Year Emissions Inventory for the Baton Rouge 8-Hour Ozone Nonattainment Area (Air Quality Assessment Division). Comments are due June 30, 2006. See http://www.deq.louisiana.gov/portal/portals/0/planning/regs/pdf/0605Pot1.pdf
  • The Department of Environmental Quality has extended the comment period for the Beauregard Parish Ozone Maintenance Plan (Plan Development Section). Comments are due June 30, 2006. See http://www.deq.louisiana.gov/portal/portals/0/planning/regs/pdf/0605Pot1.pdf
  • The Department of Environmental Quality proposed a rule entitled Major Stationary Source/Major Modification Emission Thresholds for Baton Rouge Ozone Nonattainment Area (LAC 33:III.111, 504, 509, 607, 709, and 711). A public hearing will be held June 28, 2006. Written comments are due July 5, 2006. See http://www.deq.louisiana.gov/portal/portals/0/planning/regs/pdf/AQ253pro.pdf
  • The Department of Environmental Quality proposed to incorporate by reference the federal Clean Air Mercury Rule and to provide for participation in the EPA-administered cap-and-trade program for annual mercury emissions. The federal rule seeks to reduce mercury emissions from coal-fired electrical generating units (EGUs). States have until November 2006 to submit to EPA their corresponding EGU emissions control plan under CAA §111. Written comments are due June 28, 2006. A public hearing will be held June 28, 2006. See http://www.deq.louisiana.gov/portal/portals/0/planning/regs/pdf/AQ257ftpro.pdf
  • The Department of Environmental Quality finalized its rule on 2005 Incorporation by Reference for Air Quality (LAC 33:III.111, 507, 1432, 2160, 3003, 5116, 5122, 5311, and 5901) on May 20, 2006. See http://www.deq.louisiana.gov/portal/portals/0/planning/regs/pdf/AQ258ftfin.pdf

Hazardous & Solid Wastes:

  • The Department of Environmental Quality determined that emergency action was necessary to prevent the unauthorized disposal of sewage sludge in treatment works treating domestic sewage and other areas unprepared to receive the waste stream. This is a renewal of Emergency Rule OS066E1, which was effective on December 30, 2005, and published in the Louisiana Register on January 20, 2006. This rule became effective April 28, 2006. See http://www.deq.louisiana.gov/portal/portals/0/planning/regs/pdf/OS066E2.pdf
  • The Department of Environmental Quality finalized its rule on RCRA XV Package (LAC 33:V.105, 109, 901, 905, 907, 909, 911, 921, 923, 1101, 1107, 1108, 1109, 1113, 1119, 1123, 1301, 1307, 1309, 1516, 1529, 2205, 2208, 2299.Tables 2 and 7, 3105, 4145, 4351, 4353, 4355, 4356, and 4901), on May 20, 2006. See http://www.deq.louisiana.gov/portal/portals/0/planning/regs/pdf/HW090ftfin.pdf

Water:

General:

MAINE

Wildlife:

  • In accordance with Title 12, Section 12803, the Department of Inland Fisheries and Wildlife is proposing to recommend additions and deletions to the list of endangered and threatened species to the Maine State Legislature, for their consideration and approval. Comments are due July 3, 2006. Public hearings will be held June 20 and 21, 2006. See http://www.maine.gov/sos/cec/rules/notices/2006/053106.htm
  • The Department of Marine Resources proposes a 10-day season for divers, trappers, rakers, and draggers in 2006-2007, which was the same length of season in 2005-2006. Comments are due June 23, 2006. Public hearings will be held June 12 and 13, 2006. See http://www.maine.gov/sos/cec/rules/notices/2006/052406.htm
  • The Department of Inland Fisheries and Wildlife has adopted rules that define several significant wildlife habitats, as described under 38 MRSA Section 480-B (10). This rule contains definitions for high and moderate value tidal waterfowl and wading bird habitats, shorebird nesting, feeding, and staging areas, and vernal pools. This rule will require that permit applicants survey their project areas and avoid, minimize, and/or mitigate impacts to these resources. The rule becomes effective June 17, 2006. See http://www.maine.gov/sos/cec/rules/notices/2006/052406.htm

MARYLAND

Hazardous & Solid Wastes:

MASSACHUSETTS

Water:

MICHIGAN

Air:

  • The Air Quality Division proposed to add R 336.1660 and R 336.1661 (SOAHR No. 2005‑035EQ). The proposed amendment will reduce volatile organic compound emissions from a variety of consumer products sold in the state of Michigan. Comments are due July 10, 2006. A public hearing will be held July 10, 2006. See http://www.michigan.gov/deq/0,1607,7-135-3308-143867--,00.html#Rules

NORTH CAROLINA

Water:

OHIO

Water:

  • The Director of Environmental Protection proposes to amend rules 3745-2-05, 3745-33-01, 3745-33-03, 3745-33-04, and 3745-33-08 of the Ohio Administrative Code (OAC) and to adopt new rule 3745-33-06. OAC Chapter 3745-2 covers the technical process for converting Ohio water quality standards to wasteload allocations that can be used as permit limits. The NPDES permit rules (OAC Chapter 3745-33) contain the administrative and technical requirements for writing and obtaining NPDES permits from the Ohio Environmental Protection Agency. The amendments are intended to convert broadly applicable policies into rule; to correct an error made in a 2002 rulemaking; to settle an appeal of the Ohio River water quality standards; to update administrative rules; and to add protections for public water supplies and public notification of NPDES outfall locations. Comments are due July 7, 2006. A public hearing will be held June 29, 2006. See http://www.registerofohio.state.oh.us/pdfs/phn/3745_NO_31223_20060523_0823.pdf
  • The Director of Environmental Protection proposed to adopt new rule 3745-42-05 to the Ohio Administrative Code. This new rule concerns wastewater permit-to-install regulations and creates minimum standards for estimating design flows for wastewater treatment works sized for 100,000 gallons per day or less. Comments are due July 3, 2006. A public hearing will be held June 28, 2006. See http://www.registerofohio.state.oh.us/pdfs/phn/3745_NO_31222_20060523_0821.pdf

General:

  • The Ohio Environmental Protection Agency, Division of Emergency and Remedial Response, proposes to modify Ohio Administrative Code 3745-300-04, Certified Laboratories. This rule addresses the Voluntary Action Program (VAP) regulations. The rule is updating the VAP-certified laboratory requirements as a part of the latest five-year rule review. Comments are due June 22, 2006. A public hearing will be held June 19, 2006. See http://www.registerofohio.state.oh.us/pdfs/phn/3745_NO_31187_20060519_1347.pdf

OKLAHOMA

Water:

  • The Water Resources Board has adopted several amendments to the water quality standards found at Title 785, Chapter 45, including revisions to general definitions, to regulations concerning beneficial uses and criteria to protect uses, and to special provisions and appendices. These changes become effective July 1, 2006. See http://www.oar.state.ok.us/register/Volume-23_Issue-17.htm#a644872

Wildlife:

SOUTH CAROLINA

Hazardous & Solid Wastes:

  • The Department of Health and Environmental Control amended hazardous waste management regulation 61-79 to maintain conformity with federal requirements, ensure compliance with federal standards, and incorporate the South Carolina Environmental Excellence Program. See http://www.scdhec.gov/administration/regs/docs/regupdate.doc#air
  • The Department of Health and Environmental Control proposed to amend regulation 61-79 to adopt federal amendments concerning certain wastewater dyes and the new Hazardous Waste Management Manifest Rule, as well as a correction to each of these initial federal rules. In addition, minor corrections will be made to achieve conformity with prior federal amendments. These amendments will maintain conformity with federal requirements and ensure compliance with federal standards. Legislative review of this amendment will not be required. See http://www.scdhec.gov/administration/regs/docs/regupdate.doc#air
  • The Department of Health and Environmental Control is proposing to amend regulation 61-79 in order to adopt two federal rules. One facilitates the recycling of mercury by including mercury-containing products as part of the Universal Waste Rule at R.61-79.273. The other concerns the federal Methods Rule and will provide for the use of a broader selection of professionally peer-reviewed methods for testing. Each of these rules relaxes current regulation. Legislative review of these proposed provisions will be required. Comments are due June 26, 2006. See http://www.scdhec.gov/administration/regs/docs/regupdate.doc#air

TEXAS:

Air:

Toxic Substances:

WASHINGTON

Water:

  • The Department of Ecology adopted amendments to the Instream Resources Protection Program--Lower and Upper Skagit Water Resources Inventory Areas (WRIAs 3 and 4), under Chapter 173-503 WAC. This amendment reserves a limited amount of water for future domestic, municipal, commercial/industrial, agricultural irrigation, and stockwatering. The amendment establishes closures for certain tributary basins when the reservations are fully allocated, and sets forth future water right permitting conditions. The stream flows and maximum water allocation limits established for the Skagit River basin in Chapter 173-503 WAC are not altered by this amendment. The amendments were adopted May 15, 2006, and become effective June 15, 2006. See http://www.ecy.wa.gov/pubs/0611008.pdf

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

INTERNATIONAL

CHINA BEGINS NATIONAL ENVIRONMENTAL INSPECTIONS:

China has begun nationwide environmental inspections to identify and shut down companies that are illegally discharging wastes. Chinese Premier Wen Jiabao has called for strict enforcement of environmental laws during the process, and the country's top environmental official Zhou Shengxian has pledged that offending operations will be punished under the law. See http://news.xinhuanet.com/english/2006-06/01/content_4634073.htm

U.K. ENVIRONMENT AGENCY HOLDS DROUGHT SUMMIT:

U.K. Environment Secretary David Milliband held talks on June 1 with the water industry, consumer groups, and the national water regulator to discuss the drought in the South East region of the country. With the Environment Agency warning that parts of the region may face the worst drought in a century and millions of residents facing water usage restrictions, Mr. Milliband declared that planning for long-term investment, leakage reductions, and water needs of new housing developments is critical. See http://www.24dash.com/content/news/viewNews.php?navID=58&newsID=6372

THE NETHERLANDS PREPARES FOR SEA-LEVEL RISE:

The Netherlands is planning for wetter winters and a sea-level rise of up to 14 inches by 2050 as a result of climate change. Sixty percent of the country lies below sea level, and the nation already spends over $1.2 billion annually to maintain a system of dikes, dunes, pumps, sluices, and windmills that protect the country from floods. The Royal Dutch Meteorological Institute recently released research on climate change scenario predictions that it expects the government to use when planning for the effects of climate change. Melanie Schultz van Haegen, the Secretary of Transport and Water, said flood defenses will have to take into account climate change but that they can be done within existing spending plans. See http://www.enn.com/today.html?id=10572

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

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