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.

Continue Reading

Update: State Water Board Issues Revised Notice for Board Meeting Regarding Winery General Order

In July, we blogged about the State Water Resources Control Board’s (“State Water Board’) release of proposed General Waste Discharge Requirements for Winery Process Water Treatment Systems (see: July 15, 2020 blog post on proposed General Order and July 20, 2020 blog post on noticed stakeholder meetings).  The State Water Board recently issued a revised notice that changes the dates of its Board meeting and when responses to public comments will be available.

Pursuant to the State Water Board’s revised notice, the Board adoption hearing for the proposed General Order and draft California Environmental Quality Act Initial Study, Mitigated Negative Declaration (“MND”) has been rescheduled from November 17, 2020 to December 15, 2020.  The meeting will begin at 9:00am Pacific Standard Time.  Revisions in response to public comments made on the proposed General Order and MND will be available on the Winery Order website on or before December 1, 2020.

Due to COVID-19, the State Water Board presently intends to hold its Board meeting solely through remote presence.  Further information regarding the meeting will be posted on the State Water Board Calendar page as the meeting date gets closer.

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.

Force Majeure Probably Doesn’t Permit Smoke Taint Rejection

A force majeure clause in a contract permits the suspension, or in some cases, the termination, of performance by a party to the contract upon the occurrence of a force majeure event. Traditionally, a force majeure event is a matter outside of the control of the obligated party that makes it impossible or impracticable for that party to perform one or more of its obligations under the contract. For example, depending on the specific language of the force majeure provision, a labor strike might excuse a party from performing its obligation to manufacture and deliver goods purchased by a buyer.

A typical force majeure provision from a grape purchase agreement is set forth below:

Force Majeure.    Neither Seller nor Buyer shall be liable to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in performing any term of this Agreement, when and to the extent such failure or delay results from acts beyond the affected party’s reasonable control, including, without limitation: (a) acts of God; (b) flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) epidemic or pandemic; (e) actions, embargoes or blockades; (f) action by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages, or slowdowns or other industrial disturbances; and (i) shortage of adequate power or transportation facilities.

Here, upon a force majeure event, if either Seller or Buyer is unable to perform its obligations under the grape purchase agreement because of an event beyond its reasonable control, that party can claim force majeure and will be excused from performance during the continuance of the force majeure event. So, for instance, if the Seller’s crop is affected by floods that it could not have reasonably foreseen and it can only deliver 50% of its promised crop to its Buyer, it would have a reasonable defense against its obligation to deliver the entirety of the crop.

Okay, the Buyer says, I see “fire” listed above, so does the force majeure provision permit me to avoid purchasing grapes that may be tainted by smoke? Probably not. To understand why, it’s important to understand the Buyer’s obligations under a grape purchase agreement.  Those obligations are actually fairly limited.  First, and most obviously, the Buyer is obligated to pay for the grapes, and second, the Buyer is obligated to physically accept delivery of the grapes.  A buyer may have other obligations as well, depending on the specific language in the agreement, such as directing the timing of harvest, providing bins, and providing wine samples.

Which of the Buyer’s obligations listed above is the Buyer unable to perform because of fire?  If active fires exist in the Buyer’s immediate vicinity so that it is temporarily impossible or impracticable to operate, the Buyer may be able to invoke force majeure to delay accepting grapes until it is safe to reopen.  But what about a winery in an area generally affected by smoke that is able to remain open, and that has a concern about the quality of the grapes it is receiving?  That Buyer is still able to perform:  it can pay for the grapes as long as banks remain able to process transactions, and it can accept the grapes as long as it is safe to remain open.  Of course, a Buyer may not want to accept potentially smoke tainted grapes, but that does not mean that it is impossible or impracticable for it to do so.  Typical force majeure clauses address when a party can’t perform its obligations, not when it might not want to perform its obligations.

Often, grape purchase contracts also include specific quality warranties, including MOG, mold, rot, brix, and perhaps smoke-related metrics, which a Seller is obligated to meet, and which can serve as a basis for rejection by the Buyer if not satisfied.  Whether or not those kinds of quality-related warranties can be used as the basis for the Buyer to reject potentially smoke tainted grapes depends on the specifics of the provision and the facts at hand.  But we believe, based on the language commonly used in grape purchase agreements, that Buyers wondering whether they have the right to reject potentially smoke tainted fruit would be better served looking to their quality warranties rather than to their force majeure provision.

CDFW Proposes New Regulations for Oil Spill Management Team Certification with a September 14 Comment Deadline

Last week, the California Department of Fish and Wildlife (“CDFW”) Office of Spill Prevention and Response (“OSPR”) issued notice that it proposes to add ten new regulations (sections 830.1 through 830.11 to Title 14 of the California Code of Regulations) to implement statutory changes resulting from Assembly Bill (“AB”) 1197.  AB 1197 establishes criteria and a process for the certification of oil spill management teams. Continue Reading

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