On Thursday, August 22, 2013, the California Department of Public Health (CDPH) published notice of a draft Maximum Contaminant Level (MCL) of 10 ppb (µg/L) for hexavalent chromium. The MCL proposal is higher than the 0.02 ppb public health goal adopted by OEHHA in 2011, but is significantly below the existing California MCL, in existence since the 1970s, of 50 ppb for total chromium and the current federal MCL for total chromium of 100 ppb. CDPH will seek public comment on the draft hexavalent chromium MCL between August 23 and October 11, 2013. CDPH will also hold public hearings in Sacramento and in Los Angeles on October 11, 2013, to receive comments on the proposed regulations.
The publication of the draft hexavalent chromium MCL follows an order commanding issuance of a hexavalent chromium proposed MCL by the Alameda Superior Court in the NRDC litigation discussed in Rick Coffin’s August 30, 2012 post. See Natural Res. Def. Council v. Cal. Dep’t of Public Health, No. RG12-643520 (Alameda Sup. Ct. July 26, 2013). The court’s order also requires a further hearing in October 2013 to determine if the court will set a deadline for issuance of the final hexavalent chromium MCL. Id.
Barg Coffin will continue to monitor California’s efforts to develop a drinking water standard for hexavalent chromium as well as the status of the NRDC lawsuit.
--David Metres
For more information, please contact Rick Coffin at (415) 228-5420, rcc@bcltlaw.com, Tom Boer at (415) 228-5413, jtb@bcltlaw.com, or David Metres at (415) 228-5488, dmm@bcltlaw.com.
Friday, August 23, 2013
Thursday, August 22, 2013
Court of Appeal Finds City’s “Meaningless” Discussion of Greenhouse Gas Emissions Does Not Comply with CEQA
In Friends of Oroville v. City of Oroville (No. C079448) (Aug. 19, 2013), the Third District Court of Appeal reaffirmed the importance of conducting a meaningful review of greenhouse gas emissions as part of the CEQA process.
The case arose from the City of Oroville’s approval of the relocation and expansion of a Wal-Mart “Supercenter.” A community group challenged the City’s decision to approve the project, arguing that the City failed to conduct an adequate review of the project’s impact on greenhouse gas emissions (as well as challenging the project on other grounds not addressed in the published part of the court’s opinion). The court agreed, concluding that the City used the wrong threshold for determining whether the project’s greenhouse gas emissions were a significant environmental impact under CEQA and also finding the City’s analysis of mitigation measures for greenhouse gas measures to be inadequate.
With respect to the significance threshold, the court found that the City erred in comparing the project’s estimated greenhouse gas emissions to total greenhouse gas emissions statewide. While the EIR noted that the project’s emissions would be equal to only 0.03 percent of California’s total greenhouse gas emissions in 2004, the court called this comparison “meaningless,” observing that “[o]f course, one store’s GHG emissions will pale in comparison to those of the world’s eighth largest economy.” (Slip Op. at 18.) Instead of this meaningless comparison, the court found that the relevant question was “whether the Project’s GHG emissions should be considered significant in light of the threshold-of-significance standard of Assembly Bill 32 [AB 32], which seeks to cut about 30 percent from business-as-usual emission levels projected for 2020, or about 10 percent from 2010 levels.” (Id. at 18-19.)
The court also took issue with the City’s failure to properly analyze the effects of the project’s greenhouse gas mitigation measures to determine if they would meet AB 32’s emissions reduction target. In the absence of any attempt to calculate or even “qualitatively ascertain” the effect of the project’s mitigation measures on greenhouse gas emissions, the court found the EIR’s conclusions regarding the effectiveness of mitigation measures “speculative and contradictory” and insufficient to support the City’s finding that the project would have a less than significant impact on greenhouse gas emissions after mitigation. (Id. at 19-21.)
The court’s ruling follows Citizens for Responsible Equitable Environmental Development v. City of Chula Vista (2011) 197 Cal.App.4th 237, which approved of the use of a CEQA significance threshold based on a comparison of AB 32’s greenhouse gas reduction targets to “business-as-usual” emissions levels. The court’s ruling also provides further evidence that California courts will require cities and counties to perform a reasonably robust analysis of greenhouse gas emissions as part of the CEQA process.
--Chris Jensen and Morgan Gilhuly
For more information, please contact Chris Jensen, cdj@bcltlaw.com, (415) 228-5411, or Morgan Gilhuly, rmg@bcltlaw.com, (415) 228-5460.
The case arose from the City of Oroville’s approval of the relocation and expansion of a Wal-Mart “Supercenter.” A community group challenged the City’s decision to approve the project, arguing that the City failed to conduct an adequate review of the project’s impact on greenhouse gas emissions (as well as challenging the project on other grounds not addressed in the published part of the court’s opinion). The court agreed, concluding that the City used the wrong threshold for determining whether the project’s greenhouse gas emissions were a significant environmental impact under CEQA and also finding the City’s analysis of mitigation measures for greenhouse gas measures to be inadequate.
With respect to the significance threshold, the court found that the City erred in comparing the project’s estimated greenhouse gas emissions to total greenhouse gas emissions statewide. While the EIR noted that the project’s emissions would be equal to only 0.03 percent of California’s total greenhouse gas emissions in 2004, the court called this comparison “meaningless,” observing that “[o]f course, one store’s GHG emissions will pale in comparison to those of the world’s eighth largest economy.” (Slip Op. at 18.) Instead of this meaningless comparison, the court found that the relevant question was “whether the Project’s GHG emissions should be considered significant in light of the threshold-of-significance standard of Assembly Bill 32 [AB 32], which seeks to cut about 30 percent from business-as-usual emission levels projected for 2020, or about 10 percent from 2010 levels.” (Id. at 18-19.)
The court also took issue with the City’s failure to properly analyze the effects of the project’s greenhouse gas mitigation measures to determine if they would meet AB 32’s emissions reduction target. In the absence of any attempt to calculate or even “qualitatively ascertain” the effect of the project’s mitigation measures on greenhouse gas emissions, the court found the EIR’s conclusions regarding the effectiveness of mitigation measures “speculative and contradictory” and insufficient to support the City’s finding that the project would have a less than significant impact on greenhouse gas emissions after mitigation. (Id. at 19-21.)
The court’s ruling follows Citizens for Responsible Equitable Environmental Development v. City of Chula Vista (2011) 197 Cal.App.4th 237, which approved of the use of a CEQA significance threshold based on a comparison of AB 32’s greenhouse gas reduction targets to “business-as-usual” emissions levels. The court’s ruling also provides further evidence that California courts will require cities and counties to perform a reasonably robust analysis of greenhouse gas emissions as part of the CEQA process.
--Chris Jensen and Morgan Gilhuly
For more information, please contact Chris Jensen, cdj@bcltlaw.com, (415) 228-5411, or Morgan Gilhuly, rmg@bcltlaw.com, (415) 228-5460.
Tuesday, August 13, 2013
New Draft Storm Water Permitting Requirements Issued
California water regulators recently published a new draft of permitting requirements applicable to many businesses – including many businesses never before subject to water quality regulation. After 16 years of settled practice, businesses will face a significant change to storm water regulation in California if the draft requirements become the law.
On July 19, 2013, the California State Water Resources Control Board (“State Board”) issued a draft general NPDES permit that regulates storm water discharges associated with industrial activity. This “Industrial General Permit” would require industrial facilities to comply with a set of new requirements.
The new Industrial General Permit would impose mandatory best management practices (“BMPs”), require increased sampling and monitoring, and mandate technical reports and action plans if monitoring shows that storm water discharges exceed certain pollutant concentrations. In addition, “light industry” facilities, previously exempt upon a simple self-certification, would now have to file an annual, public report and could be subjected to inspections by water regulators.
As under the current Industrial General Permit, facilities that fail to comply with Permit requirements would be subject to civil penalties of up to $37,500 per day per violation under the federal Clean Water Act. Accordingly, all businesses and industrial facilities would be well advised to develop a sophisticated understanding of these new requirements.
The State Board is accepting written comments and evidence on the proposed Industrial General Permit until noon on August 29, 2013. To learn more, the public can attend a web conference workshop on the new permit on August 14, or attend the public hearing on August 21 in Sacramento. Following the comment period, final adoption of the Industrial General Permit is scheduled for early 2014.
Additional information is available on the State Board website at http://www.swrcb.ca.gov/water_issues/programs/stormwater/industrial.shtml
--David Metres
UPDATE, August 19, 2013: The State Water Resources Control Board has extended the public comment period from August 29, 2013 to 12:00 noon September 12, 2013.
UPDATE September 12, 2013: The State Board has once again extended the public comment period from September 12 to September 19, 2013.
Attorneys from Barg Coffin Lewis & Trapp, LLP, a nationally-recognized environmental law and litigation firm in San Francisco, will continue to monitor these developments. For more information, please contact Donald Sobelman, des@bcltlaw.com, (415) 228-5456, or David Metres, dmm@bcltlaw.com, (415) 228-5488.
On July 19, 2013, the California State Water Resources Control Board (“State Board”) issued a draft general NPDES permit that regulates storm water discharges associated with industrial activity. This “Industrial General Permit” would require industrial facilities to comply with a set of new requirements.
The new Industrial General Permit would impose mandatory best management practices (“BMPs”), require increased sampling and monitoring, and mandate technical reports and action plans if monitoring shows that storm water discharges exceed certain pollutant concentrations. In addition, “light industry” facilities, previously exempt upon a simple self-certification, would now have to file an annual, public report and could be subjected to inspections by water regulators.
As under the current Industrial General Permit, facilities that fail to comply with Permit requirements would be subject to civil penalties of up to $37,500 per day per violation under the federal Clean Water Act. Accordingly, all businesses and industrial facilities would be well advised to develop a sophisticated understanding of these new requirements.
The State Board is accepting written comments and evidence on the proposed Industrial General Permit until noon on August 29, 2013. To learn more, the public can attend a web conference workshop on the new permit on August 14, or attend the public hearing on August 21 in Sacramento. Following the comment period, final adoption of the Industrial General Permit is scheduled for early 2014.
Additional information is available on the State Board website at http://www.swrcb.ca.gov/water_issues/programs/stormwater/industrial.shtml
--David Metres
UPDATE, August 19, 2013: The State Water Resources Control Board has extended the public comment period from August 29, 2013 to 12:00 noon September 12, 2013.
UPDATE September 12, 2013: The State Board has once again extended the public comment period from September 12 to September 19, 2013.
Attorneys from Barg Coffin Lewis & Trapp, LLP, a nationally-recognized environmental law and litigation firm in San Francisco, will continue to monitor these developments. For more information, please contact Donald Sobelman, des@bcltlaw.com, (415) 228-5456, or David Metres, dmm@bcltlaw.com, (415) 228-5488.
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