Friday, September 19, 2014

Legislation Update: Governor Signs Groundwater Bills

On September 16, Gov. Jerry Brown signed into law the package of bills regulating groundwater that we recently wrote about here.  The Governor’s press release announcing the signing outlines the following deadlines triggered by passage of the law:
  • By 2017, local groundwater management agencies must be identified.
  • By 2020, overdrafted groundwater basins must have sustainability plans.
  • By 2022, other high- and medium-priority basins not currently in overdraft must have sustainability plans.
  • By 2040, all high- and medium-priority groundwater basins must achieve sustainability.
 As we wrote previously, the Department of Water Resources must categorize each groundwater basin in the state as high-, medium-, low- or very low-priority by January 1, 2015.  Also, by June 1, 2016, the Department of Water Resources must adopt regulations for identifying the components of groundwater sustainability plans and for evaluating those plans and their implementation.  The law will take effect in January 2015.
 
- Samir Abdelnour
 
For more information, contact Estie Kus at emk@bcltlaw.com or (415) 228-5463; Samir Abdelnour at sja@bcltlaw.com or (415) 228-5443; or Dave Metres at dmm@bcltlaw.com or (415) 228-5488.

Thursday, September 18, 2014

Draft DTSC Work Plan Signals Expansion of California Green Chemistry Initiative

As part of its Safer Consumer Products Regulation (SCPR) under California’s Green Chemistry Initiative, the Department of Toxic Substances Control (DTSC) on September 13, 2014 issued its Draft Priority Product Three-Year Work Plan. Companies that manufacture or sell products within the seven categories identified in the draft Work Plan will need to pay close attention to the pre- and then final rulemaking process.

Under the SCPR, DTSC is required to:
  • identify products that contain one or more of the nearly 1200 “candidate chemicals” that have been identified by DTSC based on the risk that they may present to the environment or human health,
  • prioritize those products for review under an “alternatives analysis” to assess whether there are safer alternatives to the chemicals presently in use, and then
  • consider a number of possible “regulatory responses” based on the results of the alternatives analysis, which at its most extreme includes the possibility of banning the sale of the product in California. 
DTSC’s initial list of proposed “priority products,” which is still in the rule-making process, includes:
  • Spray Polyurethane Foam (SPF) Systems containing unreacted diisocyanates,
  • Children’s Foam Padded Sleeping Products containing Tris(1,3-dichloro-2-propyl) phosphate (TDCPP), and
  • Paint and Varnish Strippers with methylene chloride.
The seven broader categories of products that DTSC will review as part of the three-year Work Plan are:
  • Beauty, Personal Care and Hygiene Products (body wash and soaps, cosmetics, nail and hair care products, lotions, etc.),
  • Building Products—limited to paints, adhesives, sealants, flooring,
  • Household, Office Furniture and Furnishings—limited to those treated with flame retardants and/or stain resistant chemicals,
  • Cleaning Products,
  • Clothing,
  • Fishing and Angling Equipment, and
  • Office Machinery—e.g., printer inks, specialty paper, toner cartridges.
The Work Plan can be downloaded here. DTSC is holding preliminary Work Shops on September 25 in Sacramento, and September 29 in Cypress. Comments on the draft Work Plan are due by October 13, 2014, although DTSC acknowledges that implementation of the SCPR, and in particular selection of priority products, will be a long process, and that significant input from all stakeholders will be critical. 

-- Josh Bloom and Chris Jensen

For more information, please contact Josh Bloom at (415) 228-5406 or jab@bcltlaw.com; Chris Jensen at (415) 228-5411 or cdj@bcltlaw.com; or Samir Abdelnour at (415) 228-5443 or sja@bcltlaw.com.

Friday, September 5, 2014

Historic Bills Designed To Sustainably Manage California’s Groundwater Head To Governor

Last Friday, the California Legislature passed three bills that provide for the regulation of groundwater for the first time in the state’s history. Once signed by Gov. Jerry Brown, the bills—currently known as AB 1739 (Dickinson), SB 1168 (Pavley), and SB 1319 (Pavley)—will collectively constitute the Sustainable Groundwater Management Act (the “Act”). The Act will establish as state policy that California’s groundwater resources are to be “managed sustainably for long-term reliability and multiple economic, social and environmental benefits for current and future beneficial uses.” To effectuate this policy, the Act creates a framework for sustainable groundwater management that will be implemented at the local or regional level, but provides the state authority to act as a backstop.

Under the Act, the Department of Water Resources (the “Department”) must categorize each groundwater basin as high-, medium-, low- or very low-priority by January 1, 2015. According to the Department’s website, there are currently 431 groundwater basins delineated within California. By June 1, 2016, the Department must adopt regulations for identifying the components of groundwater sustainability plans and for evaluating those plans and their implementation.

Local and regional agencies with authority over “high-priority” or “medium-priority” basins will be required to develop and implement groundwater sustainability plans, or, in the alternative, demonstrate existing sustainable management pursuant to an adjudicated action. High- or medium-priority basins that are “subject to critical conditions of overdraft” must be managed under groundwater sustainability plans by January 1, 2020, with all remaining high- or medium-priority basins subject to sustainability plans by January 1, 2022. If a local or regional agency fails to adopt an adequate groundwater sustainability plan for a specified basin, the California State Water Resources Control Board will have the authority to develop an interim plan until the local or regional agency is prepared to assume management of the basin.

Among other provisions, the Act will also authorize groundwater sustainability agencies to impose fees to fund costs of their sustainability programs; require registration of groundwater extraction facilities and regulate extractions therefrom; and obtain inspection warrants and conduct inspections of facilities to determine compliance with a management plan.

The implications of this groundbreaking legislation, which Gov. Brown is expected to sign into law, will be far-reaching for California’s groundwater users.

- Estie Kus, Samir Abdelnour, Dave Metres

For more information, contact Estie Kus at emk@bcltlaw.com or (415) 228-5463; Samir Abdelnour at sja@bcltlaw.com or (415) 228-5443; or Dave Metres at dmm@bcltlaw.com or (415) 228-5488.

Thursday, August 21, 2014

Ninth Circuit Rejects Environmental Groups’ RCRA Claims Against Railyard Operators

The Ninth Circuit has affirmed the dismissal of claims by environmental groups attempting to characterize air emissions from California railyards as “disposal” of waste under the Resource Conservation and Recovery Act (RCRA). 

In 2011, a coalition of environmental groups led by the NRDC filed a complaint in federal district court in Los Angeles alleging that particulate emissions associated with diesel locomotives at railyards in San Bernardino and Riverside Counties violated RCRA because those emissions constitute “disposal” of waste, and are therefore subject to the statute, which governs the disposal of solid and hazardous waste. The district court dismissed the plaintiffs’ complaint, concluding that the Clean Air Act, and not RCRA, applies to the emissions from the railyards.

The Ninth Circuit affirmed the district court’s dismissal in an opinion dated August 20, 2014. The court’s opinion cited the plain meaning of the RCRA statute—which excludes “emitting” from its definition of “disposal”—as well as the statute’s legislative history, which the court characterized as demonstrating an intent “to reduce the volume of waste that ends up in our nation's landfills.”

In reaching this conclusion, the court rejected the plaintiffs’ invitation to fill a “gap” in the statutory scheme for regulating air emissions from railyards, concluding that the particular emissions alleged to originate from the railyards are “indirect sources” of air pollutants that “fall entirely outside the ambit of federal regulation.”  The court did, however, note that diesel locomotives are regulated under EPA regulations implementing the 1990 amendments to the Clean Air Act, and that states may regulate indirect sources such as railyards through provisions of State Implementation Plans (SIPs) adopted under the Clean Air Act. 

The Ninth Circuit’s decision, Center for Community Action and Environmental Justice et al. v. BNSF Railway Co. et al., Case No. 12-56086, is available here.

-- Chris Jensen

For more information, contact Chris Jensen at (415) 228-5411 or cdj@bcltlaw.com.

Wednesday, August 13, 2014

CEQA Alert: The End of Level of Service (“LOS”) Analysis? OPR Proposes New Guidelines for Evaluating Transportation Impacts

On August 6, 2014, the Governor’s Office of Planning and Research (OPR) released its preliminary recommendations for changing how transportation impacts are analyzed under CEQA: Updating Transportation Impacts Analysis in the CEQA Guidelines, Preliminary Discussion Draft of Updates to the CEQA Guidelines Implementing Senate Bill 743 (Steinberg, 2013).

Currently, the most common metric used in evaluating a project’s transportation impacts is “level of service” (LOS), which measures the delay that vehicles experience at intersections and on roadway segments. According to OPR, focusing on a project’s impact on LOS provides an incomplete assessment of potential impacts and often results in unintended consequences, including the imposition of mitigation measures – such as increased roadway capacity – that may actually exacerbate poor traffic conditions over the long term. The LOS metric can also create additional hurdles for infill development projects, because adding vehicles to an already congested urban environment increases the likelihood of a finding that the project’s impacts are potentially significant, thereby triggering the need for an environmental impact report (EIR). 

SB 743, signed into law on September 27, 2013 and codified at Public Resources Code Section 21099, created a process for revising the CEQA Guidelines for transportation impact analysis. SB 743 requires OPR to establish new criteria for determining the significance of transportation impacts of projects located within “transit priority areas,” which are areas located within one-half mile of an existing or proposed major transit stop. The criteria must “promote the reduction of greenhouse gas emissions, the development of multimodal transportation networks, and a diversity of land uses.” Following adoption of the new criteria, automobile delay, as described solely by LOS or similar measures of vehicular capacity or traffic congestion, will not be considered a significant impact under CEQA for such projects, except in locations specifically identified in the Guidelines. Although this mandate focuses on projects in “transit priority areas,” SB 743 provides that OPR may adopt guidelines establishing alternative metrics for evaluating transportation impacts outside of transit priority areas as well. As discussed below, OPR has proposed to do just that. 

OPR’s Preliminary Discussion Draft responds to SB 743 by proposing a new Guidelines section, Section 15064.3, focused on evaluating the significance of transportation impacts and developing alternatives and mitigation measures related to those impacts. The proposed Section 15064.3 identifies “vehicle miles traveled” – the distance of automobile travel associated with a project – as the principal metric for evaluating a project’s transportation impacts, and it explicitly states that a project’s effect on automobile delay will no longer constitute a significant environmental impact under CEQA. It also provides additional guidance with respect to evaluating transportation impacts associated with various types of land use and transportation projects. Finally, it identifies several factors that a lead agency may consider in evaluating transportation-related impacts on local safety, including those relating to bicyclists and pedestrians, queuing on freeway off-ramps, speed differentials between adjacent travel lanes, and increased motor vehicle speeds.

OPR proposes a phased approach to the implementation of the new Guidelines. Once filed with the Secretary of State, the proposed changes would immediately apply (prospectively) to the analysis of projects located within one-half mile of major transit stops or high-quality transit corridors.  For other areas, a lead agency may choose to be governed by the new provisions if it updates its CEQA procedures to conform to the provisions of the new Section 15064.3. After January 1, 2016, the new section would apply statewide.

Comments and suggestions on the draft are due to OPR before October 10, 2014 at 5:00 p.m. OPR expects that the preliminary discussion draft will “undergo significant revisions in response to public input.” The preliminary discussion draft and instructions for submitting comments and suggestions are available here.

--Don Sobelman and Nicole Martin

For more information, contact Don Sobelman at des@bcltlaw.com, (415) 228-5456, or Nicole Martin at nmm@bcltlaw.com, (415) 228-5435.

Sunday, August 10, 2014

CEQA Alert: California Supreme Court Holds No CEQA Review is Required for Adoption of Voter-Sponsored Initiatives

On August 7, the California Supreme Court filled the last gap in the interpretation of CEQA in the context of land use initiatives. Previously, the courts had determined that (1) CEQA compliance is required for land use initiatives proposed by a city council, prior to placing the initiative on the ballot, but (2) CEQA compliance is not required for land use initiatives proposed by voters and adopted at an election.

In Tuolumne Jobs & Small Business Alliance v. Superior Court of Tuolumne County, et al., the Court addressed a final permutation: must a city council comply with CEQA before adopting a voter-sponsored land use initiative? The answer is “no.”

At the heart of the dispute was the proposed expansion of a Wal-Mart store in the City of Sonora into a “Supercenter.” The City initially prepared and circulated for public review a draft environmental impact report (EIR) for the proposed expansion project pursuant to CEQA. Prior to the City Council’s vote on the EIR, it was served with a notice of intent to circulate a petition called the “Wal-Mart Initiative,” proposing an ordinance adopting a specific plan for the expansion, aimed at streamlining project approvals. Over 20% of the City’s registered voters signed the petition. The City Council then postponed the vote on the EIR and ordered preparation of a report, pursuant to California Elections Code § 9212, to evaluate the initiative’s consistency with previous planning commission approvals for the proposed expansion. After considering the report, the City Council adopted the ordinance.

The Tuolumne Jobs & Small Business Alliance challenged the City’s adoption of the ordinance for failure to conduct environmental review pursuant to CEQA. On demurrer by the City, Wal-Mart, and the initiative’s proponent, the trial court dismissed petitioner’s claims without leave to amend. However, the court of appeal ruled that CEQA review must be completed whenever a city council chooses to adopt a land use ordinance proposed by voter initiative, rather than submit it to a special election. The Supreme Court disagreed and reversed.

The Court based its decision on an interpretation of the Election Code that took into account the need for judicial deference to the constitutional power of initiative that is reserved to the people of California. When a local legislative body receives a municipal ordinance initiative that has been signed by at least 15% of the city’s registered voters, such as the Wal-Mart Initiative, it must do one of the following: (a) adopt the ordinance, without alteration, within 10 days after the certification of the petition is presented to the legislative body; (b) immediately order a special election where the ordinance, without alteration, will be presented to the voters of the city; or (c) order a report pursuant to Section 9212, which may consider the proposed ordinance’s effects on land use, infrastructure, and “[a]ny other matters the legislative body requests.” Within 10 days of receiving the report, which must be produced within 30 days of certification of the petition, the legislative body must either adopt the ordinance or order a special election pursuant to subsection (b). Cal. Elec. Code §§ 9212, 9214.

The Court considered it “well established” that CEQA compliance is not required when a local initiative is submitted to voters pursuant to Section 9214(b). Tuolumne Jobs extends the rule to voter initiatives directly adopted by the local legislative body under Section 9214(a). The Court recognized that, as a matter of statutory interpretation, requiring CEQA review prior to direct adoption would be inconsistent with, and would effectively nullify, the mandatory deadlines provided by the applicable Election Code provisions, and there was no evidence that the Legislature intended CEQA to supersede these provisions.

Moreover, even if CEQA review could theoretically be completed within these deadlines, the legislative body would be powerless to reject, or require alterations to, a proposed project, given the constraints of Section 9214. According to the Court, requiring CEQA review prior to the direct adoption of voter initiatives would run counter to legislative intent. Finally, the Court held that public policy did not dictate a different outcome.

A link to the decision can be found here.

By Don Sobelman and Nicole Martin

For more information, contact Don Sobelman at (415) 228-5456 or des@bcltlaw.com, or Nicole Martin at (415) 228-5435 or nmm@bcltlaw.com.

Thursday, August 7, 2014

Fracking Contractor Sentenced to 28 Months in Prison for Clean Water Act Violation

A federal court in Ohio has handed down a 28-month prison sentence and imposed a $25,000 fine for dumping fracking waste in violation of the Clean Water Act.
 
The defendant, Benjamin Lupo, is the former owner of Hardrock Excavating, a Youngstown, Ohio oil and gas services contractor. Lupo had previously pled guilty  to one count of making an unpermitted discharge of fracking waste. In pleading guilty, Lupo admitted to ordering an employee to discharge wastewater to a tributary of the Mahoning River more than 30 times over a three-month period from a Hardrock Excavating facility. The discharge caused waste liquid that included a mixture of brine and oil-based drilling mud to enter the tributary and the Mahoning River.
 
The releases were discovered after the Ohio Department of Natural Resources received an anonymous tip in January 2013 reporting illegal after-hours discharges coming from the Hardrock Excavating facility. State inspectors went to the facility and discovered a hose releasing liquid into the storm drain. A sample of the discharge subsequently collected by the state contained benzene, toluene, and other pollutants, officials said.
 
The employee, Michael Guesman, pled guilty in August 2013, admitting to running a hose from a 20,000 gallon storage tank filled with fracking wastewater to a nearby storm drain and draining the contents of the tank into the drain in August 2013. Guesman received three years of probation at his sentencing in March 2014.
 
The aggressive prosecution of Lupo highlights the need for robust environmental compliance programs in the oil and gas industry. A comprehensive and consistently implemented compliance program is the best insurance against the fines, negative publicity, and in some instances, time in custody that well operators and consultants face following a conviction of an environmental crime. This is particularly true for fracking operations, given the intense public scrutiny—and the possibility of significant prison terms—that fracking operators currently face.
 
 
For more information, contact Davina Pujari at (415) 228-5459 or dxp@bcltlaw.com, or Chris Jensen at (415) 228-5411 or cdj@bcltlaw.com.