State Water Board Receiving Limited Comments on Its Proposed Reissuance of the Statewide NPDES Construction Stormwater General Permit; Will Consider Adoption At July 19, 2022 Meeting

The State Water Resources Control Board (“Water Board”) is now receiving public comments on certain components of its revised proposed statewide National Pollutant Discharge Elimination System (“NPDES”) Construction Stormwater General Permit (“Construction Stormwater General Permit”).

The first draft Construction Stormwater General Permit was released by the Water Board on May 28, 2021, following Staff’s preliminary draft released in November 2020 and consideration of public comments raised in public workshops held in December 2020.  A revised proposed draft Construction Stormwater General Permit was released on March 30, 2022.  Water Board Staff is now accepting comments on the following items in the revised draft Permit:

  • Anti-degradation findings set forth in Order, Findings 9-18;
  • Regulatory transition requirements set forth in Order, Section III.C;
  • Sediment-based numeric effluent limitations for 14 pollutants as set forth in total maximum daily load (“TMDL”) implementation requirements in Attachment H section I.G.5, and the Fact Sheet sections I.G.5.g and I.W.6.g; and
  • Nitrogen-based nutrient numeric action levels for the Los Angeles Area Lakes TMDL, the Los Angeles River Nutrients TMDL, the Santa Clara River Nitrogen Compounds TMDL, and the Ventura River Algae TMDL in Table H-2 of Attachment H, and in Fact Sheet sections I.G.5.d and I.W.6.d.

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9th Circuit Ruling Halts Prop 65 Acrylamide Lawsuits, Again

The food and beverage industry received good news this month thanks to a ruling from the U.S. Court of Appeals for the Ninth Circuit that weakens recent carcinogen claims. The court reinstated an injunction against the filing or prosecution of new California Proposition 65-based lawsuits related to acrylamide in food and beverage products.

The ruling confirms that the science supporting acrylamide’s listing as a possible human carcinogen under Proposition 65 is shaky at best. The ruling further gives continued hope that a permanent injunction will eventually be issued in the underlying case, Cal. Chamber of Com. v. Becerra, 529 F. Supp. 3d 1099, 1123 (E.D. Cal. 2021). Such an injunction would help to address an area of easy abuse for Proposition 65 plaintiff lawyers at the moment.

California’s Proposition 65 & Acrylamide

As relevant here, Proposition 65 requires that businesses provide warnings to consumers before selling them a product that contains any one of over 900 chemicals identified by the state as capable, at certain levels, of causing cancer or reproductive harm. The California agency charged with coming up with the Proposition 65 list of chemicals is the Office of Environmental Health Hazard Assessment (OEHHA).

In 1990, OEHHA listed acrylamide under Proposition 65 as potentially causing cancer. However, acrylamide is not intentionally added to food products; it is formed naturally in many types of food when the food is cooked at high temperatures or otherwise processed with heat. Acrylamide is thus formed when food is cooked at home, in restaurants, and in food processing and manufacturing facilities. It has always been present in the foods that humans cook to eat. Such foods include breakfast cereals, crackers, bread crusts, coffee, grilled or roasted asparagus, french fries, potato chips and other fried and baked snack foods, olives, prune juice and roasted nuts, just to name a few. Acrylamide is also often found in foods such as whole grains and coffee that have been shown in human studies to actually reduce the risk of diseases including cancer.

With the Ninth Circuit’s recent decision, two courts have now agreed that there’s a likelihood that acrylamide should not have been listed under Proposition 65, because the scientific evidence fails to demonstrate that it causes cancer.

The Underlying Lawsuit Filed by the California Chamber of Commerce

In 2019, plaintiff California Chamber of Commerce (CalChamber) filed a lawsuit arguing that Proposition 65 warnings for acrylamide in food products violated its members’ First Amendment right to not be compelled to place false and misleading statements about their products. CalChamber sought to enjoin enforcers from filing or prosecuting new lawsuits to enforce the Proposition 65 warning requirements for cancer as applied to acrylamide in food and beverage products. Council for Education and Research on Toxics (CERT), a Proposition 65 plaintiff’s group, sought to intervene as a defendant.

In a lengthy ruling, the district court concluded that CalChamber provided enough evidence to establish a likelihood of success in its lawsuit. Notably, the court wrote that California’s acrylamide warning language “states without qualification that the acrylamide in the particular food identified is ‘known to cause cancer.’” Yet, noting that “dozens of epidemiological studies have failed to tie human cancer to a diet of food containing acrylamide,” the court opined that the truth of that statement is the subject of controversy. The court issued a preliminary injunction effectively stopping the filing of any new Proposition 65 lawsuits based on acrylamide in foods.

CERT appealed the preliminary injunction order, but the Attorney General did not. A divided motions panel of the Ninth Circuit granted in part CERT’s motion for an emergency stay of the preliminary injunction pending appeal.

The Appeals Court Upholds the Preliminary Injunction

In a similarly lengthy opinion, the Ninth Circuit confirmed that the lower court was proper in concluding that CalChamber has a likelihood of prevailing in its lawsuit. Though initially suspending the stay, the Ninth Circuit ultimately reinstated it.

Among other things, citing to “robust disagreement by reputable scientific sources,” the Ninth Circuit held the court did not abuse its discretion in concluding that a Proposition 65 warning for acrylamide in food and beverage products is controversial and misleading. Notably, the Ninth Circuit iterated statements by the American Cancer Society, the National Cancer Institute, the Food and Drug Administration, and the State of California itself that evidenced that acrylamide is not known to cause cancer in humans.

The Ninth Circuit’s unanimous decision and the reinstallation of the injunction are eagerly awaited successes not only for would-be Proposition 65 defendants whose products contain acrylamide, but across the board, as it signals courts’ unwillingness to accept unsubstantiated or disputed scientific conclusions regarding the harmful effects of a particular chemical. (CERT has filed a motion for rehearing before the Ninth Circuit. Though no one can predict whether CERT’s request will be granted, such requests are seldom granted by the Ninth Circuit.  Historically, only about 1% of such requests are granted.)

Next Steps

Though it is premature to conclude that warnings for acrylamide in food will be a thing of the past under Proposition 65, the Ninth Circuit’s ruling gives companies facing the threat of litigation or currently in litigation a very helpful tool.
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Reprinted with permission from the March 31, 2022, edition of the The Recorder© 2022 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or reprints@alm.com.

White Paper Finds No Evidence of Elevated Threat to Human or Crop Safety from Use of Oil Field Produced Water to Irrigate Crops

Last month, the California Regional Water Quality Control Board, Central Valley Region (“Central Valley Water Board”) published a Food Safety Project White Paper (“White Paper”) on the use of oil field produced water for food crop irrigation. The White Paper did not find any evidence that using produced water for irrigation creates an elevated threat to human or crop safety. Continue Reading

Revised Public Workshop Date and Comment Deadline for State Water Board’s Proposed Reissuance of the Statewide Construction Stormwater General NPDES Permit

On June 10, 2021, the State Water Resources Control Board (“Water Board”) issued a Revised Public Notice that changed certain dates noted in our June 2, 2021 blog post.  The Water Board’s public hearing to receive public comments on the draft Construction Stormwater General Permit reissuance is now scheduled to occur at 9:00 a.m. on August 4, 2021.  The State Board also extended the written comment deadline to August 13, 2021.

For more information on how, where, and when to submit comments, please refer to the Water Board’s Revised Public Notice.  Further information on the draft Construction Stormwater General Permit is also available at the Water Board’s Construction Stormwater General Permit reissuance webpage.

Stoel Rives’ California Water Quality practitioners continue to monitor developments with respect to the adoption of the draft Construction Stormwater General Permit.  If you have questions regarding water resources or the potential effect of State Water Board actions on your facility, or other environmental, compliance, reporting, or permitting requirements, please contact our California water quality attorneys.

State Water Board Now Receiving Public Comments on Its Proposed Reissuance of the Statewide NPDES Construction Stormwater General Permit

The State Water Resources Control Board (“Water Board”) is now receiving public comments on its proposed reissuance of the statewide National Pollutant Discharge Elimination System (“NPDES”) Construction Stormwater General Permit (“Construction Stormwater General Permit”).

I.     Background

The Construction Stormwater General Permit regulates discharges to waters of the United States from stormwater and authorized non-stormwater associated with construction activities that disturb one or more acres of land, or are part of a common plan of development or sale that disturbs one or more acre of land surface.  California’s previous Construction Stormwater General Permit expired in September 2014 but has been administratively extended until a reissued permit is adopted. Continue Reading

State Water Board to Hold Additional Winery General Order Fees Stakeholder Meeting on April 28, 2021

As a follow-up to our March 11, 2021 blog post, as part of implementation of its Final Adopted Winery General Order, the State Water Resources Control Board (“SWRCB” or “Board”) announced that it will be holding a second Winery General Order Fees Stakeholder Meeting on April 28 from 1:00-3:00 PM via Webcast. The notice for the Fees Stakeholder Meeting can be found here.  For future reference, information regarding SWRCB-related fees stakeholder announcements and meetings is accessible here.

As a reminder, in addition to the next Fees Stakeholder Meeting, the SWRCB is also planning a series of Winery General Order Public Training Workshop Webinars for the public to learn about enrollment eligibility, the implementation schedule, and basic requirements under the Winery General Order. The first Workshop Webinar is scheduled for April 8, 2021 and the second Workshop Webinar is scheduled to take place on April 21, 2021. The third and final Workshop Webinar will take place on April 23, 2021.

Additional information about the upcoming Workshop Webinars and the SWRCB’s Winery General Order can be found at the Board’s Winery Order webpage.

State Water Board to Hold Upcoming Winery General Order Fees Stakeholder Meeting and Public Training Workshop Webinars in March and April 2021

As part of implementation of its Final Adopted Winery General Order, the State Water Resources Control Board (“SWRCB” or “Board”) will be holding a Winery General Order Fees Stakeholder Meeting on March 15 from 1:00-3:00 PM via Webcast. The updated notice for the Fees Stakeholder Meeting can be found here.

In addition to the Fees Stakeholder Meeting, the SWRCB is planning a series of Winery General Order Public Training Workshop Webinars for the public to learn about enrollment eligibility, schedule, and requirements under the Winery General Order. The first Workshop Webinar is scheduled for April 8, 2021 from 5:30-7:00 PM and can be joined by following the zoom link here. The second Workshop Webinar is scheduled to take place on April 21, 2021 from 12:00-1:30 PM and can be joined by following the zoom link here. The third and final Workshop Webinar will take place on April 23, 2021 from 12:00-1:30 PM at the zoom link here. No registration is required for any of the three Workshop Webinars; however, only 300 spots are available per webinar.

Additional information about the upcoming Workshop Webinars and the SWRCB’s Winery General Order can be found at the Board’s Winery Order webpage.

Update: State Water Board Adopts Final Winery General Order

At its January 20, 2021 Board meeting, the State Water Resources Control Board (“SWRCB” or “Board”) adopted its final General Waste Discharge Requirements (“WDRs”) for Winery Process Water (“Winery Order”) and associated Resolution for the California Environmental Quality Act (“CEQA”) Mitigated Negative Declaration.

As a brief background, on July 3, 2020 the SWRCB released a draft Winery Order to the public for comment (see: July 15, 2020 blogpost on proposed General Order and July 20, 2020 blogpost on noticed stakeholder meetings).  The July 3, 2020 draft incorporated feedback from stakeholders regarding administrative draft documents circulated in 2019.  On November 12, 2020 we posted an Update to our prior blog article regarding the SWRCB’s issuance of a revised notice rescheduling the date of its November 17, 2020 Board meeting to December 15, 2020.  Since that time, on December 2, 2020, Board staff publicly transmitted a revised draft Winery Order and draft CEQA Initial Study and Mitigated Negative Declaration. Notable revisions in the December 2, 2020 iteration of the draft Winery Order were made in response to comments received and include changes to design flow ranges used to determine tier designations for coverage under the Winery Order and technical requirements related thereto, among other changes. Continue Reading

SOUTHERN CALIFORNIA ENVIRONMENTAL UPDATE – NEW AIR QUALITY AND OIL & GAS REGULATORY DEVELOPMENTS

This is a continuing series of posts on the latest environmental and legal developments affecting oil and gas operations and development and other industries in Los Angeles and adjacent counties, as well as the southern San Joaquin Valley. In this post, we provide an update on regulatory developments at the California Air Resources Board, the California Geologic Energy Management Division, the U.S. Environmental Protection Agency and the South Coast Air Quality Management District.

STATE AGENCIES  

California Air Resources Board (CARB)

CARB’s ongoing regulatory actions affect industry generally and are focused more heavily on the oil and gas industry.  Actions potentially affecting all industries include the AB 617 program, termed by CARB as the Community Air Protection Program, CRT, an evolving regulation requiring substantially increased reporting of both criteria and toxic air emissions and the Low Carbon Fuel Standard, calculating carbon intensity based on Stanford’s OPGEE model.

AB 617, CARB’s Community Air Protection Program (CAPP): CARB’s CAPP action under AB 617, implements Assembly Member Cristina Garcia’s 2017 bill, requiring CARB to identify annually communities that they find impacted by disproportionate air emissions.  These communities then assemble Community Steering Committees, and the local air districts must work with these Committees to develop Community Emission Reduction Plans (CERPs).  For more background on AB 617 implementation by CARB and the local air district, see Stoel’s California Environmental blogs for October 4, 2019 and May 11, 2018. Continue Reading

State Water Board Staff Releases Staff Preliminary Draft Statewide Construction Stormwater General Permit and Announces Virtual Workshops

On November 30, 2020, State Water Resources Control Board (State Water Board) staff released a preliminary staff draft of the Statewide Construction Stormwater General Permit (Preliminary Draft General Permit).  In conjunction with its release of the Preliminary Draft General Permit, State Water Board staff also announced that they will hold two public workshops regarding the preliminary staff draft.  According to the Public Notice, the workshops are intended to: (1) provide stakeholders and interested parties information regarding the preliminary draft General Permit, and (2) allow stakeholders and interested parties to provide feedback to staff.

The Preliminary Draft General Permit includes:

  • New requirements to implement existing Total Maximum Daily Loads;
  • New regulation of passive treatment technology uses and discharges from dewatering activities;
  • Updated criteria for Notices of Non-Applicability;
  • Efficiency to the existing Notice of Termination process;
  • Requirements to implement the California Ocean Plan, the Inland Surface Waters Plan, and statewide Trash provisions;
  • Updated requirements for demolition activities;
  • Updated water quality sampling requirements per the federal Sufficiently Sensitive Test Methods Rule; and
  • Updated monitoring and reporting requirements.

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