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.
Senate Bill 774 (“SB 774”) was amended in July 2017 to delete a section of the bill that would have allowed the new California Toxic Substances Board (“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:
Governor Jerry Brown signed Assembly Bill 1132 (“AB 1132”) into law on August 7, 2017. The bill, authored by Democratic Assemblymember Cristina Garcia, adds Section 42451.5 to the Health and Safety Code which authorizes air districts to issue interim orders for abatement pending an abatement hearing for non-vehicular sources of air pollution. The South Coast Air Quality Management District sponsored the bill.
Existing law permits the governing boards and the hearing boards of California air districts to issue orders for abatement, after notice and an abatement hearing, whenever the air districts find a violation of any order, rule, or regulation prohibiting or limiting the discharge of air contaminants into the air. Health & Safety Code § 42451. AB 1132 goes one step further. Effective on and after January 1, 2018, AB 1132 permits an air pollution control officer to issue an interim abatement order, without a hearing, if the officer finds there is an “imminent and substantial endangerment to the public health or welfare, or the environment.” Id. § 42451.5(a) (emphasis added). It is not hard to imagine that most air pollution control officers will exercise this new power with zeal and impunity.
Stoel Rives’ Oil & Gas Team has been monitoring bills introduced by California legislators since the beginning of the 2017-2018 Legislative Session. Below are the latest updates on a list of bills, summarized pursuant to the Legislative Counsel’s Digest, that our team has been following and will continue to monitor as the 2017-2018 Legislative Session proceeds.
Please also see our Renewable + Law post summarizing bills related to other energy topics here.
AB 476 (Gipson, D): Vehicular air pollution.
Status: Two-year bill; last amended April 17, 2017.
Existing law imposes various limitations on emissions of air contaminants for the control of air pollution from vehicular and non-vehicular sources and generally designates CARB as the state agency with the primary responsibility for the control of vehicular air pollution. Existing law further defines a heavy-duty vehicle as having a manufacturer’s maximum gross vehicle weight rating of 6,001 or more pounds, a light-duty vehicle as having a manufacturer’s gross vehicle weight rating of under 6,001 pounds, and a medium-duty vehicle as a heavy-duty vehicle having a manufacturer’s gross vehicle weight rating under a limit established by the state board. AB 476 instead would define a heavy-duty vehicle as having a manufacturer’s maximum gross vehicle weight rating of 26,001 or more pounds.