On November 6, 2018, the State Water Resources Control Board adopted an amendment to the National Pollutant Discharge Elimination System General Permit for Storm Water Discharges Associated with Industrial Activities (General Permit). The General Permit Amendment addresses the implementation of previously-adopted Total Maximum Daily Loads (TMDLs), the new federal Sufficiently Sensitive Methods Rule, and statewide Compliance Options. These changes take effect on July 1, 2020. Continue Reading
On September 24, 2018, in two separate decisions, the Sixth Circuit Court of Appeals found that coal ash wastewater that enters groundwater and eventually travels to navigable waters through the groundwater is not regulated under the Clean Water Act (“CWA,” or the “Act”). In these decisions, the Sixth Circuit expressly disagrees with recent holdings from the Fourth and Ninth Circuits, paving the way for potential Supreme Court review.
The CWA requires a permit for discharge of pollutants into navigable waters. 33 U.S.C. §§ 1251 et seq. At issue in both Sixth Circuit cases is whether the CWA extends to regulate indirect discharge into a navigable water, through groundwater. Rejecting the “hydrological connection” theory, the Sixth Circuit found that groundwater is not subject to regulation under the CWA because it is not a point source. Therefore, the discharge of pollutants into groundwater, and subsequent travel to a navigable water, also does not fall within the scope of the CWA.
Environmental groups have obtained a favorable Clean Water Act (“CWA”) ruling from the U.S. District Court for the Central District of California, which can be viewed as an expansion of jurisdiction for stormwater permitting for industrial sources. In the Order, issued on August 9, 2018, Judge Stephen V. Wilson held that if the U.S. Environmental Protection Agency (“EPA”) determines that stormwater discharges “cause or contribute to violations of water quality standards,” then regulators must limit such stormwater discharges under the mandates of the CWA. EPA is required to regulate stormwater discharges through the National Pollution Discharge Elimination System (“NPDES”) permitting scheme, and does not have discretion to address the pollution through other methods.
On July 27, 2018 the California Division of Oil, Gas, and Geothermal Resources (“DOGGR”) issued two notices of proposed rulemaking action applicable to oil and gas operations in the state. DOGGR released updated underground injection control (“UIC”) regulations, as well as proposed regulations for idle well testing and management.
DOGGR supervises the drilling, operation, maintenance, and plugging and abandonment of onshore and offshore oil, gas, and geothermal wells. Wells that inject fluid for the purposes of enhancing oil or gas recovery, re-pressuring oil or gas reservoirs, or disposing of wastewater and other byproducts associated with oil and gas production – referred to as injection wells or UIC wells – fall within DOGGR’s regulatory scope.
Stoel Rives Summer Associate Carly Moran co-authored this post.
Ground Zero: The Silicon Valley
In an attempt to cleanup airborne toxins contaminating a large area of Mountain View, California’s North Bayshore neighborhood, the U.S. Environmental Protection Agency (“EPA”) has presented plans to update their existing cleanup strategy. Specifically, the EPA plans to revamp their cleanup strategy for the Teledyne/Spectra Physics Superfund site, which extends into the western side of North Bayshore. Continue Reading
On May 22, 2018, the California Department of Fish and Wildlife, Office of Spill Prevention and Response (“OSPR”), issued a 15-Day Notice of Modifications to Text of Proposed Regulations and Addition of Documents Relied Upon (“Notice”). The Notice extends the comment period for the following proposed rulemakings, in response to comments received during the initial 45-day comment period:
- General Definitions & Abbreviations (Cal. Code Regs. tit. 14, § 790);
- Certificates of Financial Responsibility (§§ 791 – 798)
- Oil Spill Contingency Plans for Inland Facilities (§ 817.04)
- Ratings for Oil Spill Response Organizations (§§819 – 819.07)
- Drills and Exercises for Inland Facilities (§ 820.02)
The California Court of Appeal recently handed a victory to winemakers, ruling that a specific Proposition 65 (“Prop. 65”) warning is not required regarding the presence of inorganic arsenic. The lawsuit, Charles et al. v. Sutter Home Winery et al., was originally filed in 2015 and alleged that wines made by over 15 named defendants exposed consumers to inorganic arsenic without the correct Prop. 65 warning.
The entire post can be found here.
Our latest post provides updates on environmental and legal developments in Los Angeles and adjacent counties, as well as the Southern San Joaquin Valley. We welcome your comments and contributions.
Legislation and Ordinances
Implementation of AB 617, CARB’s Community Air Protection Program. AB 617 requires the California Air Resources Board (CARB) by October 1, 2018 to identify the highest priority communities affected by a high cumulative air emissions exposure burden (“impacted communities”); to establish the criteria for air monitoring and local emissions reduction programs; and to develop a statewide strategy for reducing emissions, to be updated every 5 years. Additional timeline for required actions:
Reviving a federal Clean Water Act (“CWA”) lawsuit, the U.S. Court of Appeals for the Fourth Circuit held that an indirect discharge – such as a discharge to ground water – may fall within the scope of the CWA, if the indirect discharge is sufficiently connected to navigable waters to be covered under the CWA. The decision was issued on April 12, 2018, in the case, Upstate Forever et al. v. Kinder Morgan Energy Partners LP, et al. The facts were unusual for a citizen suit, in that the citizen group plaintiffs were targeting discharges to ground water. Plaintiffs alleged that defendants were in violation of the CWA because defendant (or “Kinder Morgan”) discharged pollutants into navigable waters without obtaining a National Pollutant Discharge Elimination System (“NPDES”) permit. The source of the alleged discharge is a gasoline spill: in 2014, “over 369,000 gallons of gasoline spilled from Kinder Morgan’s underground pipeline, which extends over 1100 miles through parts of the eastern United States.” Slip Op. at 8. According to plaintiffs, the “gasoline pollutants from the pipeline are seeping into navigable waters as defined by the CWA.” Id. Kinder Morgan subsequently repaired the pipeline, and has recovered at least a portion of the spilled gasoline.
On March 7, 2018, the California Division of Oil, Gas and Geothermal Resources (“DOGGR,” or “Division”) published a notice to operators (“NTO”) regarding updated guidelines for oilfield water quality data. The NTO outlines procedures for submission of oilfield water quality data by operators, including required notices, injectate samples, formation water samples, documentation and final report and certification processes.