Publications
State Environment Highlights
August 2007
Stateside Associates' Regulatory Counsel prepare State Environmental Highlights
on a monthly basis. Stateside's Regulatory Counsel are attorneys with experience
in regulatory issues and provide customized Regulatory Services including Regulatory
ForecastingSM, Monitoring and Compliance Services.
For more information, click here http://www.stateside.com/intelligence/regulatory.shtml
States Take Leadership Role in Species Protection
The removal of the bald eagle from the list of threatened and endangered species
in July was a wildlife success story. The number of nesting pairs rebounded
to an estimated 10,000 from just 417 in 1962. The eagle was one of the original
species protected by the federal Endangered Species Act (ESA) when it was enacted
in 1973. The United States Fish and Wildlife Service (FWS) reports that there
are 1,351 animals and plants on the ESA list of threatened and endangered species
in the United States. These species are protected by the ESA. The ESA provides
for the conservation of species that are threatened or endangered throughout
all or a significant portion of their range, and provides for the conservation
of their habitat. Once placed on the federal list, a species is afforded the
protections of the ESA. This includes prohibitions on "taking" (killing,
selling, or otherwise harming), designating critical habitat, and/or establishing
a recovery plan detailing the specific actions needed for a species' recovery.
The recovery of the bald eagle comes on the heels of recent reports that the
FWS is re-writing the ESA. While a draft has not been made public, it was reported
that proposed changes would limit the number of species that can be protected
and restrict the acres of wildlife habitat to be preserved by limiting the protection
to current habitat, rather than throughout the species' historic range. It was
also reported that the internal draft would shift authority of ESA enforcement
from the federal government to the states. This proposed change would give state
governors the authority and funding for virtually every aspect of the ESA.
While the FWS considers the change in authority under a revised ESA, most states
already have an existing endangered species act or list. State acts are important
because they can protect a species within each state's borders that don't yet
meet the protections afforded by the ESA. Some states provide different categories
for species according to the extent to which they require protection. Under
the ESA a species is either endangered, "one that is in danger of extinction
throughout all or a significant portion of its range," or threatened, "one
that is likely to become endangered in the foreseeable future." Massachusetts
established a category of "special concern species," that includes
native species documented by biological research to have suffered a decline
that could threaten the species if allowed to continue unchecked, as well as
threatened and endangered species. Washington has five categories of species
(species of concern, state endangered species, state threatened species, state
sensitive species, and state candidate species).
Some state laws, such as in Virginia and New Jersey, complement the ESA by
incorporating the federal list into their state laws, while at the same time,
providing protection for species within each state's boundaries that are not
yet listed under the ESA. Perhaps one of the strongest state endangered species
acts, the California Endangered Species Act (CESA) parallels the main provisions
of the federal ESA. Like the ESA, the CESA established a petitioning process
for the listing of threatened or endangered species. The California Fish and
Game Commission is required to adopt regulations for this process and establish
criteria for determining whether a species is endangered or threatened. The
CESA prohibits the "taking" of listed species, but unlike its federal
counterpart, the CESA applies the take prohibitions to species petitioned for
listing.
Florida also has a formal listing process that allows individuals to file a
petition requesting the Florida Fish and Wildlife Commission (FWC) to evaluate
the status of a species. After it receives a petition, the FWC initiates a biological
status review of the species (Phase I). Phase II of its listing process involves
the drafting of management plans which address biological status as determined
in Phase I, conservation objectives, recommended management actions, recommended
regulations and incentives, and anticipated economic, ecological, and social
impacts of implementing or not implementing the recommended conservation actions.
Florida is currently working on four management plans: delisting the bald eagle,
a petition to re-evaluate the status of the Florida manatee from endangered
to threatened, a petition to reclassify the Panama City crayfish from species
of special concern to threatened, and a petition to reclassify the gopher tortoise
from species of special concern to threatened.
While FWS officials continue to debate the revisions of the ESA, state endangered
species laws can help mitigate the loss of species in the United States by attempting
to ensure the survival of plants and animals unique to each state by filling
gaps in the ESA and providing protections to species not federally listed.
State Regulatory Highlights
Arizona
The Maricopa County Air Quality Department has proposed revisions to its air
permit fees that would change the fees the County charges to owners and operators
of sources of air pollution. The fees that may be affected are annual administrative
fees for Title V and Non-Title V sources, general permit fees, dust control
permit fees, asbestos notification and plan review filing fees, and other miscellaneous
administrative fees. Written comments are due September 28. Bonnie Kaufman at
brk@stateside.com
California
The Office of Environmental Health Hazard Assessment has proposed the development
of a cancer risk assessment and unit risk factor for Ethylbenzene. Ethylbenzene
was identified as an air toxic containment in 1993 and has been recently discovered
as possible cancer risk. The Scientific Review Panel will hold a public hearing
September 26 to discuss Ethylbenzene as a cancer risk and determine if a risk
assessment is necessary. Comments on the draft document are being accepted until
the September 26. Melissa P. Farmer at mpf@stateside.com
The Air Resources Board has proposed regulations addressing emissions from
main engines on ocean-going vessels (OGVs). The regulatory proposal is a part
of the Board's Diesel Risk Reduction and Goods Movement Plan efforts, and is
meant to limit diesel particulate matter, oxides of nitrogen, and oxides of
sulfur emissions from ocean-going ship main engines. The regulations also address
the use of low sulfur distillate fuel in OGVs. The Board will hold a third public
workshop September 24 to discuss the regulatory proposal. Melissa P. Farmer
at mpf@stateside.com
The Air Resources Board has proposed regulations that establish the use of
Shore Power while ocean going vessels (OGVs) are docked at port. The goal of
these regulations is to reduce OGVs emissions released in California ports.
The Board has released draft regulatory language and will hold workshops September
24, 25 and 27 to discuss the rule. Melissa P. Farmer at mpf@stateside.com
Georgia
The Georgia Department of Natural Resources, Environmental Protection Division
has proposed amendments to allow the state to grant variances to a water quality
standard and remove a designated use through a use attainability analysis. Comments
are due September 24. Becky Lukaesko at bml@stateside.com
Louisiana
The Department has proposed amendments to its Toxic Air Pollutant (TAP) Ambient
Air Standards. The Department proposes to: (1) retain methyl ethyl ketone (MEK)
as a state TAP on the supplemental list; (2) revamp its AAS for 24 TAP's; (3)
reclassify 7 TAPs; and (4) list a short term (8-hour) average for the first
time, in addition to a long term (annual) average, for many Class 1 TAPs. A
public hearing will be held September 26. Comments are due October 3. James
Harpold at jrh@stateside.com
Missouri
The Department has proposed amendments to its air regulations regarding the
control of emissions from solvent metal cleaning. The regulations currently
specify the equipment, operating procedures and training requirements for the
reduction of hydrocarbon emissions from solvent metal cleaning operations in
the Kansas City metropolitan area. Comments are due October 4. James Harpold
at jrh@stateside.com
New Jersey
The New Jersey Department of Environmental Protection has proposed rules relating
to notification and remediation of contaminated sites and outreach. The rules
provide: (1) Mandatory notification requirements for the person conducting remediation
at a site; (2) Identification of sensitive populations near the site; (3) Public
outreach when a demonstrated substantial public interest or when contamination
migrates beyond the site boundary; and (4) Additional public notice when the
party completing remediation proposes to bring contaminated material on the
site in excess of the amount needed to complete remediation. Comments are due
October 5. Laura Damm at lwd@stateside.com
North Carolina
The North Carolina Environmental Management Commission will hold hearings September
25 and October 2 regarding proposed amendments that would extend stormwater
control requirements for certain development activities to all coastal counties.
Comments are due October 15. Becky Lukaesko at bml@stateside.com
Pennsylvania
The Department of Environmental Protection is accepting comments until October
1 regarding proposed amendments to its Safe Drinking Water Act. The proposed
rulemaking includes major amendments to the regulation of inorganic chemicals,
synthetic organic chemicals and volatile synthetic organic chemicals). Minor
amendments to retain primary enforcement authority and to clarify existing requirements
to the federal Filter Backwash Recycling Rule, Lead and Copper Rule and Radionuclide
Rule requirements, and other minor amendments to retain primary enforcement
authority and to clarify existing requirements are also proposed. Bonnie Kaufman
at brk@stateside.com
Texas
The Commission is proposing to renew Texas Pollutant Discharge Elimination
System (TPDES) General Permit No. TXR150000, which authorizes discharges from
construction sites into surface water in the state. The general permit specifies
that where storm water will reach the waters of the United States, a storm water
pollution prevention plan (SWP3) must be developed and implemented unless certain
conditions are met. Additionally, the general permit provides authorization
for discharges from small construction sites. A public hearing will be held
October 3. James Harpold at jrh@stateside.com
Virginia
The Department of Environmental Quality will hold a public hearing September
24 regarding a proposed regulation for wastewater reclamation and reuse. The
regulation contains two sets of treatment standards and monitoring requirements
for the reclamation of municipal wastewater. The regulation also contains provisions
to develop treatment standards for the reclamation of industrial wastewater
on a case-by-case basis. Written comments are due October 9. Bonnie Kaufman
at brk@stateside.com
For more information about Stateside Associates contact Mark Anderson at mda@stateside.com
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