Governor Brown Signs Two More Bills to Streamline Renewable Energy Development in California: SB 267 and SB 618

Posted by Kristen Castaños on October 10, 2011

California has two more laws in place to help facilitate development of renewable energy projects after Governor Brown signed Senate Bill 267 and Senate Bill 618 over the weekend. 

SB 267 modifies the existing requirements to prepare a water supply assessment for projects that meet certain size thresholds.  Under the new law, a photovoltaic or wind energy generation facility that demands no more than 75 acre-feet of water per year is exempt from the water supply assessment requirements.  By eliminating this aspect of project analysis, this law is expected to help reduce the time and cost associated with permitting new photovoltaic and wind projects, which typically do not have high water demand.

SB 618 includes two separate sets of amendments to the current law that are intended to facilitate renewable energy projects.  First, the bill amends California Fish and Game Code provisions that relate to fully protected species.  Prior to SB 618, the California Endangered Species Act prohibited harming or disturbing (also known as “taking”) species that have been listed as fully protected.  The new law allows for incidental take of fully protected species where a conservation plan has been approved and is being implemented to ensure protection of those species.  This bill is particularly important to wind development in California, which has been struggling to address potential project impacts to the Golden Eagle and California Condor, two species that are listed as fully protected.  The bill also creates a mechanism for Williamson Act contracts, which are essentially agricultural preserve easements, to be converted to solar use easements under circumstances where the Department of Conservation determines that the property lacks agricultural value due to soil conditions and other considerations.

These new laws are the most recent in a series of reforms the Governor has signed to facilitate renewable energy development in California.  SB 16 and ABX1 13, companion bills which were signed by the Governor on September 22, 2011 and August 29, 2011, respectively, are intended to streamline California Department of Fish and Game’s permitting process.  In addition, we previously reported on AB 900, which streamlines the appeal process for certain large “leadership projects” in California.  AB 900 was signed by the Governor on September 27, 2011.  While AB 900  is not specific to energy projects, there are likely to be energy projects that meet the threshold for and qualify as a leadership project, thus benefitting from the streamlined appellate process set forth in that new law.

Attorney Mike Mills to Speak on Property Tax Issues at CalCIMA Education Conference

Posted by Mike Mills on September 09, 2011

Together with Peter Finie of Vulcan Materials Company, I will be making a very informative presentation on California property taxes at the upcoming California Construction and Industrial Materials Association’s (CalCIMA) 2011 Education Conference in Monterey.  Our presentation, “Are Your Taxes Too High?,” will examine a number of property tax issues from an operator’s perspective, as well as an attorney’s perspective.

Property tax revenues have been steadily declining the past three years.  In the face of declining revenues, Assessors are becoming more aggressive than ever in computing assessed property values for property tax purposes. This presentation will highlight what is assessed, who is assessed, how values are derived, who your worst enemy is and why, and what you can do to make sure your tax bill is fairly computed. 

 

To List Or Delist Is The Question - California Mines

Posted by Tom Henry on September 09, 2011

The Office of Mine Reclamation has the authority under Public Resources Code Section 2717 (the AB 3098 list) to list or delist a mine from its list of “good mines.” This authority can have an enormous impact on a mine’s ability to sell to public agencies, which is a critical status in an economic environment where private party purchases are at a historically low level.

Michael Mills and I will be presenting, “Off or On?  Examining OMR’s AB 3098 Listing Procedures” at the CalCIMA 2011 Conference in Monterey, California.  The presentation reviews the requirements for listing a mine on the AB 3098 List, including possible alternative interpretations as to the “compliance” requirements, and reviews the actual prohibitions on providing mined material to state at local agencies as contained in Public Contract Code Sections 10295.5 and 20676.  Presenters review the delisting criteria used by OMR as presented by OMR to the State Mining and Geology Board in February 2010, and the potential due process problems with OMR’s delisting procedures.  The presentation also reviews the status of the Board’s current efforts to develop due process regulations for delisting decisions.

Also, I will be speaking on California Regulatory Trends Affecting the Mining Industry on September 13, 2011 at the Industrial Minerals Assocation conference in Sonoma, California.

Sulfur Dioxide Added to Prop 65 Could Have Broad Range of Impacts

Posted by Lee N. Smith on August 26, 2011

Effective July 29, 2011 the California Office of Environmental Health Hazard Assessment (OEHHA) added sulfur dioxide (CAS. No. 7446-090-05) to the Proposition 65 list of chemicals known to the state to cause reproductive toxicity. Sulfur dioxide is found in numerous products including food and beverages.

Proposition 65 is the statute that requires notification by manufacturers of consumer goods and employers of potential exposure to chemicals which are on a list of chemicals “known” to the State of California to cause cancer or reproductive effects on such products or workplaces must be properly labeled or have proper signage.

Sulfur dioxide (SO2) is a colorless, nonflammable gas with a pungent odor.  As a component of ambient air pollution, SO2 is found in combination with sulfuric acid, sulfur trioxide, ozone, nitrogen dioxide, and particulates, and its presence in ambient air occurs primarily as a result of fossil fuel consumption at power generation and other industrial facilities. 

Considered through the Developmental and Reproductive Toxicant Identification Committee (DARTIC) in its official capacity as the “state’s qualified experts” at a public meeting held on July 12 and 13, 2011, the DARTIC determined that sulfur dioxide was clearly shown, through scientifically valid testing to cause developmental toxicity, an endpoint of reproductive toxicity.  The DARTIC did not find that sulfur dioxide has been clearly shown to cause female or male reproductive toxicity.  Comments were submitted by Cambridge Environmental analyzing the lact of data to support the decsion.

SO2 uses are myriad.  SO2 has pesticidal uses and was ranked 82nd out of the top 100 pesticides used statewide in California in 2007.  In 2008, 187,535 pounds of SO2 were reported as having been used in California.  Specific uses include sanitizing equipment for wine production and storage, and post-harvest commodity fumigation of fruit including grapes. Because of its use in preservatives and pesticides it is frequently found in fruit and related products.

While inhalation is repeatedly the most significant route of exposure, dermal and oral exposures are also possible.  Endogenous or added sulfites, which release SO2, can be consumed in food or drink.  Sulfites are also found in some cosmetic and personal care products, raising the potential for dermal as well as aerosol exposures from the use of these products.

Sulfites can also be produced as a result of fermentation in some foods and beverages, such as beer and wine.  The U.S. Food and Drug Administration (FDA) has estimated average per capita SO2 consumption at about 0.2 mg/kg-day, with estimates of up to 2 mg/kg-day for individuals consuming foods and beverages relatively high in SO2 content.  Note, however that The Prop 65 MADL does not apply to sulfites, bisulfites or metanisulfites. These chemicals are not currently listed under Proposition 65 and exposure to them, at any level, is not subject to the warning requirements of Proposition 65.

With certain restrictions, sulfiting agents are approved for use as sanitizing agents, inhibitors of undesirable microbial growth, and to prevent oxidative browning of foods.  Residual sulfites in treated foods usually do not exceed several hundred parts per million (ppm), but may approach 1,000 ppm (i.e., 0.1%) in some products.

Exposure to SO2 in California also results from the combustion of sulfur-containing fuel by mobile sources, and from several industrial processes, such as petroleum refining, the smelting of sulfide ores, the manufacture of hydrosulfites.  More specifically, in the bleaching of wood pulp and paper and food bleaching and processing.  Pesticidal and sterilant applications, waste and water treatment, the use of SO2 in manufacturing, as well as volcanic emissions and other natural sources can also result in SO2. Because SO2 is found in numerous consumer products it may open yet another avenue for challenges; these may be complicated by the fact that the defense the SO2 was naturally ocurring  would be difficult.

We will have to see what the eventual fallout of this listing is as SO2 is found in numerous consumer products and it may open yet another avenue for multiple product suits. Further unlike some other food contaminants challenges; the defense that SO2 is naturally occurring will be difficult.  Additionally another section of Propostion 65 prohibits the discharge of Prop 65 into water bodies, this may create issues for anyone using it to treat waste water that then discharges into a water body.