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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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CalEnviroScreen Version 1 Released

The California Environmental Protection Agency (Cal/EPA) along with the Office of Environmental Health Hazard Assessment (OEHHA) have released the California Communities Environmental Health Screening Tool, Version 1 (CalEnviroScreen 1.0). The agencies had previously released two drafts for CalEnviroScreen last summer and most recently at the beginning of this year. Some of the comments received on the first two drafts were used to improve the tool. The tool provides the state the ability to comprehensively screen the state and determine which communities are most burdened by multiple sources of pollution. It also presents statewide results of the analysis using the screening tool. To visually illustrate the results, there is an online map that shows the zip codes burdened with the highest pollution impact to lowest impact, certain to cause concern by residents in those high impact zip codes.

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Draft California Communities Environmental Health Screening Tool: Counterproductive to CEQA Reform?

Release of a new draft of California’s “CalEnviroScreen” is expected before the end of 2012. Being developed by the Office of Environmental Health and Hazard Assessment (OEHHA) with the California Environmental Protection Agency (Cal/EPA) , CalEnviroScreen is a tool to create “scores” for communities based on environmental, health and socioeconomic data, such as asthma rates, low birth weight infants, traffic density, and educational attainment levels. The tool will allow for assessment of disproportionate environmental impacts in disadvantaged communities. The uses of the tool appear to be open-ended at this point, from helping Cal/EPA prioritize its own internal resources for distribution of grants and prioritizing clean up sites, to being a tool that project proponents and local governments may use in land use decisions and in CEQA documents, particularly in a cumulative impacts assessment.

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The FTC’s Green Marketing Guides – Final Revisions

As consumers have become more environmentally conscious, manufacturers have increasingly used environmental benefit marketing claims to promote sales of their products. The Federal Trade Commission (FTC) has created guidelines, known as the Green Guides, to aid marketers in properly utilizing environmental benefit claims, out of concern that consumers’ perceived environmental benefit may exceed the actual environmental benefit provided by the manufacturer. On October 1, 2012, the FTC released its final revisions to its Green Guides after a multiyear investigatory process, which included reviewing comments submitted by companies, trade organizations, government entities and individuals. This advisory outlines the major changes contained within the final revisions to the Green Guides.

The advisory is provided in PDF on the Alston & Bird website:
http://www.alston.com/advisories/products-liability-ftc-green-marketing-guides  

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California Issues Notice For Proposed Regulations That Would Amend CEQA

The California Natural Resources Agency issued a notice for proposed regulations that would amend the California Environmental Quality Act(CEQA) to streamline environmental review for qualifying infill projects. The objective of the regulations is to “streamline the environmental review process for eligible infill projects by limiting the topics subject to review at the project level where the effects of infill development have been addressed in a planning level decision or by uniformly applicable development policies.”

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BLM and DOE Release Final PEIS For Solar Energy Zones And Environmental Guidance Designed To Encourage Development Of Solar Energy Facilities

On Tuesday, the Bureau of Land Management (BLM) and the Department of Energy (DOE) jointly released a Final Solar Energy Development Programmatic Environmental Impact Statement (Solar PEIS) for a new program to facilitate development of utility-scale solar energy production on lands owned by the Federal government.  The Solar PEIS identifies 17 Solar Energy Zones (SEZs) totaling about 285,000 acres in six western States (California, Nevada, Arizona, Utah, New Mexico and Colorado) as priority areas for utility-scale solar development because they have excellent solar resources, are close to transmission lines and would not create substantial conflicts with natural resources.  The Solar PEIS also identifies other “variance” areas where such projects might be considered areas excluded due to environmental concerns.  It also establishes a series of best management practices and mitigation measures likely to be imposed by BLM and DOE on all solar projects approved or financed in part by those agencies.

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Karuk Tribe of California v. U.S. Forest Service: Consultation with Wildlife Agencies Required for Mining Activities to Proceed Pursuant to a Notice of Intent

June 4, 2012 | Posted by Harrington, Rebecca | Topic(s): Land Use, Environmental Review (CEQA/NEPA), Endangered Species/Wetlands

On June 1, 2012, the Ninth Circuit Court of Appeal ruled that the U.S. Endangered Species Act (ESA) requires the U.S. Forest Service to consult with federal wildlife agencies prior to allowing mining activities to proceed under a Notice of Intent (NOI) in critical habitat of a listed species.  Specifically, in Karuk Tribe of California v. U.S. Forest Service, the Court held that approval of an NOI constitutes an “agency action” under section 7 of the ESA because it involves an affirmative, discretionary decision about whether, and under what conditions, to allow mining to proceed under a NOI (the full opinion available at http://www.ca9.uscourts.gov/datastore/opinions/2012/06/01/05-16801.pdf).  Furthermore, when mining activities that may cause a disturbance to surface resources are conducted in critical habitat of a listed species, such activities “may affect” a listed species or its critical habitat as that term is used in the ESA.  However, the Court recognized that informal consultation, rather than formal consultation, would likely be required for a NOI.  The lawsuit arose from the approval of four NOIs that allowed motorized sluicing and mechanical suction dredging along the Klamath River. 

EPA Releases Draft Permitting Guidance for Using Diesel Fuel in Hydraulic Fracturing

May 7, 2012 | Posted by Trudy.Caraballo@alston.com | Topic(s): Land Use, Litigation, Hydraulic Fracturing

Last week, the United States Environmental Protection Agency released its draft Underground Injection Control (UIC) Program Guidance for Class II wells that utilize diesel fuel as a fracturing fluid or as a component of a fracturing fluid in hydraulic fracturing operations. The draft guidance provides recommendations for UIC permit writers related to permit duration and well closure, permit application and review, area of review, and well construction, including mechanical integrity testing, financial responsibility, and public notification. The draft guidance identifies the following six substances by their chemical abstract service (CAS) numbers, which would trigger Safe Drinking Water Act (SDWA) requirements if injected as a component of hydraulic fracturing fluid: 68334-30-5, 68476-34-6, 68476-30-2, 68476-31-3, 8008-20-6, and 68410-00-4. According to the fact sheet for the draft guidance, it is “intended to provide information for EPA permit writers issuing permits under the Safe Drinking Water Act (SDWA) to ensure protection of underground sources of drinking water (USDWs).” The draft guidance is open for 60 days for public comment. In the interim, while this guidance undergoes public notice and comment, EPA expects that permitting decisions concerning hydraulic fracturing operations that use diesel fuels will be made on a case-by-case basis. EPA further expects that the draft guidance will not be cited as a basis for such permitting decisions.

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