How Due Process Will Wither and Die under California’s New Air Contaminant Law: AB 1132 Authorizes Air Districts to Shut Down Facilities Without a Hearing

Governor Jerry Brown signed Assembly Bill 1132 (“AB 1132”) into law on August 7, 2017.  The bill, authored by Democratic Assemblymember Cristina Garcia, adds Section 42451.5 to the Health and Safety Code which authorizes air districts to issue interim orders for abatement pending an abatement hearing for non-vehicular sources of air pollution.  The South Coast Air Quality Management District sponsored the bill.

Existing law permits the governing boards and the hearing boards of California air districts to issue orders for abatement, after notice and an abatement hearing, whenever the air districts find a violation of any order, rule, or regulation prohibiting or limiting the discharge of air contaminants into the air.  Health & Safety Code § 42451.  AB 1132 goes one step further.  Effective on and after January 1, 2018, AB 1132 permits an air pollution control officer to issue an interim abatement order, without a hearing, if the officer finds there is an “imminent and substantial endangerment to the public health or welfare, or the environment.”  Id. § 42451.5(a) (emphasis added).  It is not hard to imagine that most air pollution control officers will exercise this new power with zeal and impunity.

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Legislative Update: Oil & Gas Related Bills Introduced in the 2017-2018 Legislative Session

Stoel Rives’ Oil & Gas Team has been monitoring bills introduced by California legislators since the beginning of the 2017-2018 Legislative Session.  Below are the latest updates on a list of bills, summarized pursuant to the Legislative Counsel’s Digest, that our team has been following and will continue to monitor as the 2017-2018 Legislative Session proceeds.

Please also see our Renewable + Law post summarizing bills related to other energy topics here.

AB 476 (Gipson, D): Vehicular air pollution.

Status: Two-year bill; last amended April 17, 2017.

Existing law imposes various limitations on emissions of air contaminants for the control of air pollution from vehicular and non-vehicular sources and generally designates CARB as the state agency with the primary responsibility for the control of vehicular air pollution. Existing law further defines a heavy-duty vehicle as having a manufacturer’s maximum gross vehicle weight rating of 6,001 or more pounds, a light-duty vehicle as having a manufacturer’s gross vehicle weight rating of under 6,001 pounds, and a medium-duty vehicle as a heavy-duty vehicle having a manufacturer’s gross vehicle weight rating under a limit established by the state board. AB 476 instead would define a heavy-duty vehicle as having a manufacturer’s maximum gross vehicle weight rating of 26,001 or more pounds.

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Bill Proposes an Appointed Board to Fix the Department of Toxics Substances Control; Will It Just Make Matters Worse?

Senate Bill 774 (“SB 774”) proposes to eliminate the Department of Toxic Substances Control (“DTSC”) and form a five-member board, the California Toxic Substances Board (“CTS Board”).  On June 1, the Senate approved the bill, and it is now awaiting is first policy committee hearing in the Assembly.  According to the bill’s text, “This bill would create in the California Environmental Protection Agency the California Toxic Substances Board, which would succeed to and be vested with all of the powers, duties, purposes, responsibilities, and jurisdiction of the department and the Director of Toxic Substances Control.”

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Update: Oil & Gas Related Bills Introduced in the 2017-2018 Legislative Session

Stoel Rives’ Oil & Gas Team has been monitoring bills introduced by California legislators since the beginning of the 2017-2018 Legislative Session.  June 2, 2017 was the deadline by which the Legislature was required to pass bills out of the house of origin. Failing to meet that deadline does not automatically prevent a bill from proceeding through the legislative process; however, such failure will prevent the bill from being considered by the full legislature or the Governor during the first half of the Legislative Session.  Below is a list of bills, summarized pursuant to the Legislative Counsel’s Digest, that our team has been following and will continue to monitor as the legislative session proceeds.  This is an update to our February 23 post.

Please also see our Renewable + Law post summarizing bills related to other energy topics here.

AB 476 (Gipson, D): Vehicular air pollution.

Status: Two-year bill; last amended April 17, 2017.

Existing law imposes various limitations on emissions of air contaminants for the control of air pollution from vehicular and non-vehicular sources and generally designates CARB as the state agency with the primary responsibility for the control of vehicular air pollution. Existing law further defines a heavy-duty vehicle as having a manufacturer’s maximum gross vehicle weight rating of 6,001 or more pounds, a light-duty vehicle as having a manufacturer’s gross vehicle weight rating of under 6,001 pounds, and a medium-duty vehicle as a heavy-duty vehicle having a manufacturer’s gross vehicle weight rating under a limit established by the state board. AB 476 instead would define a heavy-duty vehicle as having a manufacturer’s maximum gross vehicle weight rating of 26,001 or more pounds.

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New California Groundwater Fees – Another Step Forward for SGMA

California’s newer groundwater regulatory structure, the Sustainable Groundwater Management Act of 2014 (“SGMA”), was signed by Governor Edmund G. Brown Jr. on September 16, 2014. The State Water Resources Control Board (“SWRCB”) is the enforcement agency for SGMA. SGMA requires the SWRCB to establish a schedule of fees sufficient to recover the costs incurred by the SWCRB to administer groundwater extraction reporting requirements and the activities required to temporarily protect groundwater resources. SGMA also authorizes the SWCRB to adopt an emergency regulation requiring that groundwater extraction reports be filed electronically. (Wat. Code, §§ 1530 & 348.)

The SWRCB recently adopted a resolution to approve the “Emergency Regulation” for implementation of SGMA. Important to note is that while there is an exception carved out for de minimis extractors (defined as person who extracts, for domestic purposes, two acre-feet or less per year), the fiscal impacts of the regulation overlay with these fees becomes quite expensive for many other groundwater users.

Specifically, reports for Water Year 2017 (WY-17) are due by December 15, 2017. The annual fee for reports for WY-17 is $300 per well. For extractions that are within the management of a Groundwater Sustainability Agency (GSA) before the end of WY-17 (by September 30, 2017), the annual fee is waived. The late fee for WY-17 reports is $100 for each 30-day period the report is late.

For example, the SWRCB provides the following estimates:

  • The total cost of the regulation on local governments is about $22,000 for Water Year 2017 (WY-17) and $122,000 for Water Year 2018 (WY-18). This breaks down to $537 for WY-17 and $1,506 for WY-18 per local government.
  • The total cost of the regulation on state agencies is about $22,800 for WY-17 and $122,000 for WY-18. This breaks down to $530 for WY-17 and $1,505 for WY-18 per state agency.

SWCRB’s Adopted Emergency Regulation, effective July 1, 2017, can be found here.

We will continue to track SGMA developments as implementation moves forward with development of GSAs and the plans for managing groundwater that impacts all users, public and private.

Senate Bill Proposes Major Market-Based Remodel of Cap-and-Trade Program

California’s cap-and-trade program withstood a battle in court, and now the Legislature is proposing changes to the controversial program.  Senator Bob Wieckowski (Democrat – District 10), Chair of the Environmental Quality Committee, has authored Senate Bill 775 (“SB 775”) which would extend the cap-and-trade program to 2030 with modifications.  The existing cap-and-trade program, established under Assembly Bill 32 (2006) or the California Global Warming Solutions Act (“Act”), expires in 2020.  The Act requires the State Air Resources Board (“ARB”) to approve a statewide greenhouse gas emissions limit equivalent to 1990 greenhouse gas emissions level to be achieved by 2020, and to ensure that statewide greenhouse gas emissions are reduced to at least 40% below the 1990 level by 2030, as outlined in Senate Bill 32 (2016).

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Sacramento Superior Court Finds Chromium 6 Water Standard Not Economically Feasible

On May 5, 2017, the Sacramento Superior Court issued a decision that the state’s water regulation, when it comes to the hexavalent chromium, also known as Chromium 6 (or Chrom-6) water standard, is not economically feasible and must be withdrawn. A copy of the Court’s Order can be read here.

In 2014, the California Department of Public Health (CDPH) set a new state drinking water standard, or maximum contaminant level (MCL), for Chromium 6 at 10 parts per billion (ppb). Pursuant to the Safe Drinking Water Act (SDWA), CDPH is specifically directed to establish a MCL for Chromium 6. “[T]o the extent technologically and economically feasible,” the standard shall “avoid any significant risk to public health.” (Health & Saf. Code 116365(b)(3)). In terms of economic feasibility, CDPH is directed to “consider the costs of compliance to public water systems, customers, and other affected parties…” (Id.)

Petitioners California Manufacturers and Technology Association and Solano County Taxpayers Association – as do many other private and public entities – believe the MCL is too stringent and that compliance would be prohibitively expensive. Petitioners filed a lawsuit and asked the court to order CDPH to withdraw the standard due to economic infeasibility and to adopt a new standard at a level that would be economically feasible for Chromium 6. Petitioners primary claim is that CDPH violated the SDWA by failing to adopt an MCL that is economically feasible, and by failing to properly consider the cost of compliance to public water systems, customers, and other affected parties.

The Court found that while several of the points CDPH makes in opposition to Petitioners’ claims are well taken, CDPH ultimately failed to convince that it adequately considered whether the MCL it set was economically feasible. It is unclear whether CDPH will file an appeal.

In order to sufficiently eliminate Chromium 6 to comply with CDPH’s proposed regulation, small, medium and large water systems would have spent considerable costs. Those costs would have been passed on to California consumers.

At this time, the State Water Board is reviewing the order and will update its website when it can provide details as to the range of impacts resulting from this decision. While the MCL is withdrawn, the existing standard for total chromium will continue to limit Chromium 6 to 50 parts per billion.

Another Retailer Shells Out for Hazardous Waste Violations: Big Lots Ordered to Pay $3.5 Million

Following closely on the heels of Dollar General’s hazardous waste settlement (about which we reported in our April, 19, 2017 blog post), another discount retailer has been held to account in a big way for its failure to properly manage its waste streams.  On April 21, 2017, a San Bernardino County Superior Court Judge ordered Big Lots Stores, Inc. (“Big Lots”) to pay $3.5 million in civil penalties and costs for environmental violations.  The order is the result of an investigation into the disposal of hazardous waste by Big Lots at its distribution center and its 206 California stores over the past several years.  The lawsuit was brought by 35 District Attorney’s Offices and two City Attorney’s Offices in California.

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SOUTHERN CALIFORNIA ENVIRONMENTAL UPDATE #3 – APRIL 24, 2017

This is the third update on environmental regulatory and legal developments in Los Angeles and adjacent counties, as well as the Southern San Joaquin Valley.  We welcome your comments and updates.

South Coast Air Quality Management District

*Governing Board Shift:  New Governing Board Member Sheila Kuehl replaced Mike Antonovich, returning the Board to a Democratic Majority.  Ms. Kuehl calls upon the South Coast Air Quality Management District (District) to use its full regulatory power, and she has strong ties with the California Legislature.  New emphases now include further regulations of stationary facilities, such as warehouses and shopping malls that are considered “indirect sources” of air emissions because they attract emissions from cars and trucks, as well as a termination of the RECLAIM Program.  Questions on the latter include when (2025, 2023, 2031?), treatment of credits from shutdowns, and how companies that invested in long-term credits will be dealt with.  In addition, the District wants to achieve the NOx shave under RECLAIM and at the same time sunset the Program.  Collaterally, the District is pushing the California Air Resources Board (CARB) and US EPA to do their “fair share” to regulate mobile sources so that further efforts to improve air quality will not be piled on the backs of stationary businesses.

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First Quarter CEQA Update in Under 60 Seconds

Okay, maybe slightly longer than 60 seconds.  The point being, though, that CEQA case updates really should not read like law school case briefs.  Long discussion of the lower court’s findings?  No thank you.  Point/counterpoint for each and every argument made by petitioners?  No one has time for that.  Get in, get out and move on with some useful knowledge — that’s the goal for this update on CEQA cases in the first quarter of 2017.

If we had to pick a theme for first quarter CEQA cases, it would be simple: don’t stick your head in the sand, do explain yourself, and all will be fine.  Why this theme?  Continue reading and find out in these case summaries. Continue Reading

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