On February 12, 2018, the California Department of Conservation (“DOC”) issued a public notice announcing revisions to the text of the proposed regulations in the rulemaking for California Underground Gas Storage Projects. This rulemaking follows a saga of rulemakings for underground gas storage projects in the state – both emergency and general rulemakings – which all began in early 2016. The rulemakings were spurred by the underground gas storage leak at the Aliso Canyon facility in southern California, which was discovered on October 23, 2015 and continued leaking until February 2016.
On February 1, 2018, the U.S. Court of Appeals for the Ninth Circuit upheld the district court’s decision, finding that the County of Maui violated the Clean Water Act (“CWA”) when it discharged treated effluent into underground injection wells, which then allowed the effluent to seep into the Pacific Ocean. The Ninth Circuit panel held that the wells were required to obtain National Pollutant Discharge Elimination System (“NPDES”) permit coverage because the discharge from the wells was “fairly traceable” from the discharge point (point source) to a navigable water.
California’s process to challenge thermal power plants will likely be put to the judicial test in the coming years. The California Court of Appeal has granted publication of its recent opinion in Communities for a Better Environment v. State Energy Resources Conservation and Development Commission, (Dec. 22, 2017, No. A141299) __Cal.App.5th __, which reverses the trial court’s dismissal of a complaint by environmental groups Communities for a Better Environment and Center for Biological Diversity (collectively “Communities”), challenging the constitutionality of the limited judicial review available for thermal power plant licenses issued in California. You can find our previous post detailing Communities’ complaint here.
In January 2014, the Alameda County Superior Court dismissed Communities’ claims that statutory provisions of California’s power plant siting law, the Warren-Alquist Act, violated article VI, section 10 of the California Constitution. Under this unique facet of the Warren-Alquist Act, any challenge to a decision by the California Energy Commission on a thermal power plant license must be appealed directly to the California Supreme Court. (Cal. Pub. Resources Code, § 25531(a).) The trial court sided with the Energy Commission and the California State Controller, who argued that the case was not grounded in any actual existing controversy among Communities and the Commission, sought an advisory opinion only, and was not ripe for review. The trial court concluded that Communities had failed to meet its burden to show how its complaint could be amended to state a justiciable cause of action, and, thus, it dismissed the matter with prejudice and entered judgment in favor of the Energy Commission and the Controller.
In early January 2018, the U.S. Environmental Protection Agency (“EPA”) decided to halt previous proposals to stay methane rules for new and existing landfills. The Obama Administration’s EPA issued the final New Source Performance Standards (“NSPS”) and Emissions Guidelines (“EG”) for municipal solid waste landfills on August 29, 2016 (jointly “Methane Rules”). These updates to the NSPS were promulgated to reduce emissions of methane-rich landfill gas from new, modified and reconstructed municipal solid waste (“MSW”) landfills. EPA’s current announcement to desert plans for an administrative stay comes after the EPA announced a 90-day administrative stay for the Methane Rules, which went into effect on May 31, 2017.
In March 2017, the California Air Resources Board (“ARB”) adopted regulations for Greenhouse Gas Emission Standards for Crude Oil and Natural Gas Facilities (“Methane Regulations”), which impose emission controls for oil and gas facilities across the state. Following the state rulemaking process, ARB and the San Joaquin Valley Air Pollution Control District (“Air District”) – and the Air District’s regulated stakeholders – jointly determined that local administration of the program would provide for more effective and expeditious implementation at a lower cost to businesses in the Air District. Thus, in December 2017, the Air District adopted a registration program (Air District Rule 2260) to implement ARB’s regulations.
California’s State Mining and Geology Board had a busy 2017 with ongoing rulemakings to implement SMARA reform enacted in 2016. The Board’s 2018 will be busy and one to closely watch too, in particular, because the Board plans to address the unintended environmental consequences created by the adoption fifteen years ago of what is known as the “Backfill Regulation.”
For those who fled California in the wake of the Backfill Regulation, here’s a quick refresher on why you packed your bags and haven’t returned. The Backfill Regulation has two key requirements for open pit metallic mineral mines. First, the regulation requires all open pit excavations to be backfilled to the original surface elevation. Second, any excess material must be graded with the resulting topography not to exceed the pre-mining surface elevation by more than 25 feet.
Overall, the Backfill Regulation has been bad news for the California mining industry and the environment as explained in this February 2016 Update on the Regulatory Environment for Metallic Mines in California. In a nutshell, the Backfill Regulation requires moving material twice (increasing GHG emissions), fails to address the proper storage and handling of waste materials (jeopardizing water quality), and can cause greater ground disturbances (impacting habitat for sensitive species).
The California Office of Spill Prevention and Response (“OSPR”), within the Department of Fish and Wildlife, has been tasked with new responsibilities related to oil spill response. Assembly Bill 1197 (“AB 1197”), which was signed into law in October 2017 and goes into effect on January 1, 2018, authorizes spill management teams (“SMTs”) to apply to the OSPR Administrator (“Administrator”) for a certification of that SMT’s response capabilities. AB 1197 also authorizes the Administrator to charge a reasonable administrative fee to process an application for, or renewal of, a certification. In addition, OSPR must promulgate regulations outlining the certification process for SMTs.
On October 10, 2017, the California State Water Resources Control Board (“Water Board”) issued the second version of an order to modify agricultural waste discharge requirements (“Proposed Order”), under the Irrigated Lands Regulatory Program (“ILRP”). Through the ILRP, the Water Board regulates discharges from irrigated agricultural lands across the state, especially within California’s Central Valley. Regulation of agricultural water discharges is important because such discharges can affect water quality by transporting pollutants, including pesticides, sediment, nutrients, salts, pathogens, and heavy metals, from cultivated fields into surface waters.
On September 14, 2017, Senate Bill 774 (“SB 774”) was ordered inactive on request of Assembly Member Calderon. The bill, which proposed creation of the new California Toxic Substances Board (“CTS Board”), will not become law this session, and we will continue to monitor this legislation if it becomes active again during the next legislative session.
Previously the bill was amended in July 2017 to delete a section of the bill that would have allowed the new CTS Board to adopt or amend relevant regulations. Under the revised version of SB 774, the CTS Board is not permitted to adopt regulations and is no longer authorized to draft, review, or update hazardous waste management plans. Gov. Code § 24179 (proposed). These amendments to the bill are seen as a weakening of the measure because they narrow the proposed CTS Board’s jurisdiction and authority. Industry groups continue to oppose the bill, though, stating that the CTS Board will continue to have too much authority, even with the new amendments. We will continue to monitor this legislation as it makes its way through the Legislature. Here’s our original post:
On September 22, 2017, the California Division of Oil, Gas and Geothermal Resources (“DOGGR”) issued a Notice of Proposed Rulemaking for its Pipeline Testing Regulations. The Notice announces that DOGGR proposes to adopt regulations for pipeline testing and safety, as required under Assembly Bill 1420.
Assembly Bill 1420 (“AB 1420”) went into effect on January 1, 2016, and requires DOGGR to review, evaluate, and update, where appropriate, its existing regulations regarding all active gas pipelines that are 4 inches or less in diameter, are located in sensitive areas, and are 10 years or older. As a result of AB 1420, DOGGR conducted intensive review of the existing pipeline regulations and studied the economic impact and the impact on small businesses, among other potential effects of the proposed regulations. As part of these studies, DOGGR “made an initial determination that the adoption of these regulations may have a significant, statewide adverse economic impact directly affecting business, including the ability of California businesses to compete with businesses in other states.” Pipeline Testing Regulations: Notice of Proposed Rulemaking Action, at 7.