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California Supreme Court: Granting License to Ignore CEQA?

August 14, 2014 | Posted by Maureen Gorsen | Topic(s): Land Use, Environmental Review (CEQA/NEPA), Litigation

The California Supreme Court recently issued a ruling in the case of Tuolumne Jobs & Small Business Alliance v. Superior Court (Wal-Mart), which raised the question does the California Environmental Quality Act (CEQA) apply to local voter initiatives if the government adopts the initiative without placing it on the ballot for a special election. Tuolumne Jobs & Small Business Alliance (TJSBA) filed the suit arguing that the City of Sonora, California violated CEQA went it came to approval of a Wal-Mart expansion project without conducting a CEQA review. The Supreme Court unanimously rejected TJSBA’s argument for multiple reasons, primarily pointing to the fact that if the California Legislature had originally intended for CEQA review’s to be held before adoption of initiatives, it would have stated such when it was adopted in 1970, but it did not. Justice Corrigan said in his opinion, “Because CEQA review is contrary to the statutory language and legislative history pertaining to voter initiatives, and because policy considerations do not compel a different result, such review is not required before adoption of a voter initiative.”

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Last Chance to Vote

August 8, 2014 | Posted by Greissing, Patrick | Topic(s): Land Use, Litigation, GHG/Climate Change, Legislative & Public Policy (State, Local, Federal, Int'l)

Today is your lest chance to vote for our blog for the ABA 100 best legal blogs.  If you have a moment, please nominate us. Thank you! http://www.abajournal.com/blawgs/blawg100_submit/

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One Week Left to Vote For Us For Best Legal Blog

August 1, 2014 | Posted by Greissing, Patrick | Topic(s): Land Use, Green Chemistry, Litigation, Legislative & Public Policy (State, Local, Federal, Int'l)

The American Bar Association (ABA) is accepting entries for their 100 best legal blogs. If you enjoy the content we produce, we ask that you please take the time to submit our blog for consideration. You can do so by visiting their site: http://www.abajournal.com/blawgs/blawg100_submit/ . You have until August 8 to vote.  Thank you!

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EPA to Conduct Reviews at Superfund Sites Across Mid-Atlantic Region

The U.S. Environmental Protection Agency (EPA) announced that they will be reviewing Superfund sites across the Mid-Atlantic region this year, specifically mentioning sites in Virginia, Delaware and Pennsylvania. The reviews are conducted every five years to determine if the actions being taken are still protecting human health and the environment. The scope of the reviews includes inspecting cleanup technologies; examining monitoring and operating data; reviewing maintenance records; and determining if new regulatory requirements have been put in place since EPA’s original cleanup decision. EPA will examine a site in Suffolk City, VA; four sites in Delaware; and sixteen sites in Pennsylvania. Once the technical reviews are completed, EPA will provide the public an opportunity to evaluate the findings.

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Securities Law Alert: SEC Issues Statement on D.C. Court Of Appeals Decision on Conflict Minerals Rule: First Reports Due by June 2, 2014, as Scheduled

On April 29, 2014 the U.S. Securities and Exchange Commission’s(SECs) Division of Corporation Finance (the “Division”) issued a statement providing guidance on the decision in the case National Association of Manufacturers, et al. v. SEC, et al., No. 13-5252 (D.C. Cir. April 14, 2014.) The case challenged SEC’s “Conflict Mineral Rules” (Section 13(p)(1) of the Exchange Act and Rule 13p-1 thereunder). The case left some questions about the first reporting period; however the Division’s statement clarified that all reports for the first reporting period must be submitted to the SEC by June 2, 2014. Also included in the statement, the Division instructed companies that they will not be required to describe their products as “DRC conflict free,” having “not been found to be DRC conflict free,” or “DRC conflict undeterminable.”

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King County Announces Fee Schedule for Drug Take Back Program

The King County Board of Health released its proposed fee schedule as part of its Secure Medicine Return Regulations. As part of the regulations, producers will be required to cover King County’s costs of administering and enforcing the regulations. The fees are based on the number of drug producers expected to participate in the program. One hundred sixty-one (161) drug producers have submitted their notice to participate in the stewardship plan. Although King County has delayed implementation of its drug take back program until a decision is issued by the Ninth Circuit regarding a similar program in Alameda County, producers who have yet to submit a notice of intent should still do so in case the program moves forward.  Oral arguments will be heard in the Ninth Circuit on July 11.

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Updates on the Pharmaceutical Waste Legislative and Regulatory Efforts

California State Sen. Hannah-Beth Jackson’s (D-Santa Barbara) bill, SB 1014, which would implement a statewide pharmaceutical drug take-back program, failed to pass the Senate Business, Professions and Economic Development Committee. Jackson’s legislation was modeled after an Alameda County ordinance, which is currently pending review in the Ninth Circuit. The bill would have required drug manufacturers to develop and finance a statewide system for collecting and disposing of unwanted pharmaceuticals. Despite approval by 100 local government and environmental groups, the pharmaceutical industry and many state senators opposed the bill. Jackson plans to reintroduce the bill next year, and, in the meantime, plans to issue guidance to help local governments implement their own drug take-back programs.

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California State Water Board Approves New Industrial Stormwater Permit

On April 1, 2014,after more than a decade of analysis and debate, the California State Water Resources Control Board approved a new statewide industrial stormwater permit increasing and changing the requirements of industrial facilities to control storm water discharges from their sites. The Industrial General Permit (IGP), which is a statewide general National Pollutant Discharge Elimination System (NPDES) permit, regulates the discharge of storm water associated with industrial activity under requirements of the U.S. EPA. The IGP will regulate stormwater at sites such as manufacturing facilities, disposal sites, recycling sites, mining operations, and transportation facilities. The new requirements are many and will require far more record-keeping, sampling, reporting, and training to comply with best management practices (BMPs) and numeric action levels (NALs) to reduce pollutants in the stormwater discharge. The permit is to be considered for renewal every five years, and will go into effect July 15, 2015.

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Board Seeks New Approach to Hydraulic Fracturing Fluid Disclosures

March 25, 2014 | Posted by Greissing, Patrick | Topic(s): Land Use, Legislative & Public Policy (State, Local, Federal, Int'l), Hydraulic Fracturing

The Department of Energy (DOE) released a draft report of the findings and recommendations of the Secretary of Energy Advisory Board (SEAB) Task Force on FracFocus 2.0. The 24-page report recommends “full disclosure of all known constituents” in fluids that are used in hydraulic fracturing. The report advocates for a “systems approach,” which would require “reporting by disaggregated chemicals.” This method would see chemicals reported separately from the additive names and products that contain them. SEAB’s believes that this approach should adequately protect trade secrets. The report encourages state and federal regulators to utilize the State Review of Oil and Natural Gas Environmental Regulations (STRONGER) process to develop and adopt standards for companies that make trade secret claims, as well as develop a process for validating compliance with reporting requirements. The task force is expected to present the findings of the draft report at SEAB’s meeting on March 27-28 in Washington, DC.

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Senators Introduce Flaring Reduction Bill

March 25, 2014 | Posted by Greissing, Patrick | Topic(s): Land Use, Legislative & Public Policy (State, Local, Federal, Int'l), Hydraulic Fracturing

Sens. Mike Enzi (R-WY), John Barrasso (R-WY) and John Howevn (R-ND) introduced the Natural Gas Gathering Enhancement Act. The bill would expedite permitting of natural gas gathering lines on Federal and Indian land. Natural gas gathering lines will allow unprocessed natural gas to be transported from wells to natural gas processing plants that can separate the gasses (e.g. methane, ethane, propane) from each other. This will enable companies to capture and transmit more natural gas, and is hoped to reduce flaring. Sen. Hoeven stated that North Dakota wants to reduce flaring by over 60 percent in six years and that this legislation should help his state achieve that goal.

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Regulations Forthcoming Regarding Disposal of Controlled Substances

The Department of Justice (DOJ), Drug Enforcement Administration (DEA) has set a final action date of March, 2014 to implement the Secure and Responsible Drug Disposal Act of 2010. The legislation, which amends section 302 of the Controlled Substances Act (21 U.S.C. 822), became public law in October 2010. The Act gives the Attorney General authority to develop new regulations, under the Controlled Substances Act, to govern the disposal of controlled substances by DEA registrants and ultimate users. The rule will restructure existing regulations concerning disposal (including those applicable to reverse distributors) and establish a comprehensive regulatory framework for the safe, secure collection and disposal of controlled substances. Ultimate users, without being registered, will be able to give a controlled substance to a DEA-authorized collector for disposal, and long-term care facilities will be able to dispose of controlled substances on behalf of residents.

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EPA Issues Final NPDES General Permit for Hydraulic Fracturing Off of Southern California

February 4, 2014 | Posted by Greissing, Patrick | Topic(s): Land Use, GHG/Climate Change, Hydraulic Fracturing

EPA published its notice of availability of its final general National Pollutant Discharge Elimination System (NPDES) permit for discharges from offshore oil and gas exploration, development and production facilities in Federal waters off the Southern California coast. The permit applies to 23 existing development and production platforms and any new exploratory operations located in the Pacific Outer Continental Shelf. It requires operators to maintain an inventory of the quantities and concentration of the specific chemicals used “to formulate well treatment, completion and workover fluids.” It also requires oil and gas companies that are using hydraulic fracturing off the Southern California coast to include in their Discharge Monitoring Report (DMR)nany chemicals discharged into the ocean during the process. The final permit goes into effect on March 1, 2014.

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Chemical Safety and Drinking Water Protection Act Introduced

Senators Joe Manchin (D-WV), Barbara Boxer (D-CA) and Jay Rockefeller (D-WV) introduced the Chemical Safety and Drinking Water Protection Act. The legislation implements tools that help provide oversight of chemical facilities. It strengthens state’s ability to prevent chemical spills that contaminate water supplies by establishing programs under the Safe Drinking Water Act. The legislation is based on four key principles:

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EPA Issues Final Rule Regarding Liability Defenses Under CERCLA

On December 30, 2013, the Environmental Protection Agency (EPA) published a final rule amending the standards for conducting all appropriate inquiries under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) to include ASTM International’s standard practice. The final rule specifically amends the “All Appropriate Inquiries Rule” at 40 CFR Part 312 to include ASTM International’s E1527-13, or their “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process.”

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Governor Brown Releases Draft Safeguarding California Plan

December 13, 2013 | Posted by Greissing, Patrick | Topic(s): Land Use, GHG/Climate Change, Legislative & Public Policy (State, Local, Federal, Int'l)

California Governor Brown has released a draft Safeguarding California Plan which outlines actions the state needs to take to be ready for the impacts of climate change. The draft plan examines nine different areas that are impacted by climate change: agriculture; biodiversity and habitat; emergency management; energy; forestry; ocean and coastal ecosystems and resources; public health; transportation; and water. In developing the plan, seven strategies were identified to be put into action that cross into the nine areas identified above. The seven strategies are:

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House Passes Bill Limiting BLM's Authority

December 3, 2013 | Posted by Greissing, Patrick | Topic(s): Land Use, Legislative & Public Policy (State, Local, Federal, Int'l), Hydraulic Fracturing

The House voted on HR 2728 and approved the legislation by a vote of 235 to 187. The legislation would prevent the Bureau of Land Management (BLM) from enforcing any federal rules or guidance relating to hydraulic fracturing in states that already have regulations or guidance related to hydraulic fracturing. BLM is currently reviewing more than 1 million public comments it received on its proposed rule, and is not expected to release a final rule until September 2014. The White House announced that it will veto the bill as it hinders the government’s ability to safely manage hydraulic fracturing activities on more than 700 million acres of federal land.

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Judge Imposes Lower Penalty Based on Supreme Court Opinion in Southern Union Hazardous Waste Case

November 12, 2013 | Posted by Bruce Pasfield | Topic(s): CERCLA/RCRA, Land Use, Litigation

On November 5, a Rhode Island Federal District Court judge issued a new and lower criminal penalty of $500,000 against Southern Union Company (Southern Union) after the Supreme Court struck down the original $18 penalty. The case presented a significant Sixth Amendment issue regarding the right of a defendant to have a jury, not a judge, determine any fine penalty above a statutes maximum. The case dates back to 2002 when a subsidiary of Southern Union was alleged to have stored spent mercury waste over a 762 day period at an inactive facility in Pawtucket, Rhode Island. The illegal storage was brought to light after children broke into the facility and spread the mercury around the facility and a neighboring apartment complex.

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Alameda County Amends Safe Drug Disposal Regulations Amid Ongoing Litigation

Alameda County amended its Safe Drug Disposal Ordinance on October 16, 2013. The amendments are significant because they 1) extend the deadline for submitting disposal plans from November 1, 2013 to May 1, 2014; and 2) narrow the definition of “Producer” (the entity required to comply with the Ordinance). Now, “Producers” are only entities that either cause a prescription drug, which is sold in Alameda County, to be manufactured, or that own a brand under which a prescription drug is sold in Alameda County. This amendment removes wholesaler distributors from the Ordinance’s realm of regulation. Private label distributors, which own the brand, must still comply.

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Tahoe Regional Planning Agency Approves Plan That Eases Ability to Expand

October 11, 2013 | Posted by Greissing, Patrick | Topic(s): Land Use, Legislative & Public Policy (State, Local, Federal, Int'l)

The Tahoe Regional Planning Agency (TRPA) adopted the Douglas County South Shore Area Plan, the first local government Area Plan enacted under the 202 Lake Tahoe Regional Plan. The South Shore Area Plan will allow for Douglas County to improve the environmental protection of Lake Tahoe, while easing the possibility for expansion of ski resorts, and the development of new residential and commercial properties. The plan not only implements environmental policies, it “delegates more permitting authority for small and mid-sized projects to the County while maintaining TRPA’s permitting authority for larger projects,” according to the TRPA press release. The framework was adopted by TRPA in December, 2012 as part of the Lake Tahoe Regional Plan Update. Four other local governments are currently pushing for Area Plans and if approved will all become part of the Regional Plan.

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Koontz U.S. Supreme Court Decision Holds Nollan and Dolan Nexus Requirement Applies to Possible Takings from Permit Denial and Monetary Exactions

June 28, 2013 | Posted by Dean, Jake | Topic(s): Land Use, Endangered Species/Wetlands, Litigation

This week the U.S. Supreme Court reversed a Florida Supreme Court decision, holding the nexus and rough proportionality requirements of the Nollan and Dolan takings cases apply to a government’s denial of a permit and demand for money exactions. The doctrine of Nollan and Dolan provides that the government cannot condition approval of a land-use permit on an owner’s relinquishment of a portion of his property without a nexus and rough proportionality between the government’s demand and the effects of the proposed land use.

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