With its proposed revisions to California’s hazardous waste management regulations, the California Department of Toxic Substances Control (DTSC) continues to make California’s hazardous waste management program more onerous and complex than the federal Resource Conservation and Recovery Act (RCRA). DTSC proposes substantial changes to hazardous waste personnel training requirements, financial assurance obligations, and hazardous waste permitting decisions.[1] Almost every facility that manages hazardous waste in California will be impacted if DTSC’s proposal is finalized. Public comment on DTSC’s proposed revisions remains open through November 6, 2017.     Continue Reading Proposed Changes to California’s Hazardous Waste Regulations Could Significantly Impact Your Operations

The regulated community in California may soon have additional reasons to implement supplemental environmental projects (SEPs) when settling an administrative environmental enforcement action. Under a 2009 State Water Resources Control Board (Water Board) policy, settling parties may voluntarily undertake an environmentally beneficial project in return for an offset of a portion of any civil penalty, provided that the project meets certain criteria. The Water Board has now released sweeping proposed amendments to its Policy on Supplemental Environmental Projects (draft SEP Policy) that will incentivize more projects. Most notably, the draft SEP Policy:

Will consider projects that address climate change, such as greenhouse gas emissions reductions or those that build resilience to climate change impacts on ecosystems or infrastructure.

Will allow—subject to approval—greater than 50% of any monetary assessment in administrative enforcement cases to be allocated towards SEPs that are located in or benefit disadvantaged or environmental justice communities, or communities suffering from a financial hardship, or that further the Water Board’s priority of ensuring a human right to water. Under the original policy adopted in 2009, the maximum civil penalty reduction available via performance of a SEP is capped at 50%.

Will allow up to 10% of oversight costs to be included as part of the total SEP amount for the same reasons above. Otherwise, oversight costs are paid in addition to the total SEP amount.

Establishes a new category of SEPs called “Other Projects” to allow educational outreach and other “non-traditional” water quality or drinking water-related projects to be considered for approval.

Expands the applicability of SEPs to enforcement actions prosecuted by the Division of Drinking Water and its Districts and the Division of Water Rights.

Continue Reading California’s State Water Board Unleashes New Supplemental Environmental Project Policy for Public Comment

It is no secret that California has had appliance efficiency standards in place for some time now. And it is no secret that the California Energy Commission (“CEC”) has been responsible for crafting those standards. According to the CEC and the California State Legislature, however, compliance with those standards has been hit-or-miss. In 2011, the Legislature found that “significant quantities of appliances are sold and offered for sale in California that do not meet the state’s energy efficiency standards,” and the CEC itself has stated that nearly half of all regulated appliances are non-compliant, and that certain product categories are entirely non-compliant. The broad range of products covered by the CEC’s efficiency standards may be partly to blame for the lack of compliance, as manufacturers may not even realize their product must comply. For example, the efficiency standards encompass nearly every device with a rechargeable battery and that rechargeable battery system, meaning everything from cell phones to laptops to tablets to golf carts must be tested, certified and listed in the CEC’s database before being offered for sale in California.

Continue Reading California’s Appliance Efficiency Standards and Cost of Non-Compliance

Ladies and Gentleman.

Start Your Engines.

Wait! According to California, you can only use engines that are certified to meet air-emission standards, have a current “Executive Order,” and have not been tampered with, OR engines that are used solely for competition (but not every competition) and are not used on public highways (is a dirt road a public highway?).

Sound complicated? The Clean Air Act provides racing vehicles a broad exemption from federal air emission standards and also provides for broad preemption of state motor vehicle standards, with specific exceptions for California. In addition, California has its own broad racing vehicle exemption which can be found in the California Health and Safety Code. The exemption for racing vehicles seemed straightforward enough—they are not subject to federal or state emissions standards. This exemption makes sense, of course, because when you are racing, you need enhanced engine capabilities to win and because racing engines are a small percentage of the engines we see on the road for everyday use, such as commuting to school/work, running errands, etc.

Continue Reading Yellow Flag: California’s Racing Vehicle Exemption Slated for Change

Since President Trump’s election, his Administration has emphasized cooperative federalism and has opened the door for more state responsibility.  California is walking through that door, and has positioned itself, according to its elected officials, at the vanguard of the so-called “resistance” to the Administration and its policies, real and perceived.  This is particularly clear on environmental, energy, and natural resource matters.  Last week illustrates the growing divide between California and the federal government in these areas.

Continue Reading California Turns Up The Heat

Just before President Trump announced his decision to withdraw from the Paris Agreement on Climate Change, California is moving ahead with new greenhouse gas (GHG) regulations, making good on its commitment to continue its path regardless of what goes on in Washington, DC. This week, the Board of the Bay Area Air Quality Management District (BAAQMD) held a special meeting to consider a controversial new regulation targeting oil refineries. If adopted, as planned at the June 21, 2017, Board public hearing, Regulation 12, Rule 16:  Petroleum Refining Facility-Wide Emissions Limits (Rule 12-16) would establish first-of-its-kind, refinery-specific, facility-wide caps on emissions of greenhouse gases (GHG). The proposed caps limit refinery emissions to seven percent above recent operating levels.

Continue Reading Bay Area Air Regulators Set to Adopt First-of-its-Kind GHG Emissions Cap on Refineries

This article was originally published in the May 1, 2017, online edition of The Recorder.

“I’m mad as hell and I’m not going to take it anymore!”  Movie aficionados will recognize this classic line from the 1976 movie, “Network.”  For many Californians, the line captures the feeling in the state just before Proposition 13 (Prop 13) was passed by about 65 percent of voters in 1978 to amend the state constitution.  For a state that is used to sizable earthquakes, Prop 13 was a truly seismic event in California, restructuring the state property tax system.  It was enacted in response to frustration over California’s decades-old method of paying for government, which allowed property taxes to increase dramatically year to year, often resulting in senior citizens on fixed incomes being unable to afford to stay in their homes.  On top of cutting and restricting increases in property taxes, Prop 13 contained language requiring a two-thirds majority in both legislative houses for future increases of any state tax rates or amounts of revenue collected, including income tax rates and sales tax rates.

Continue Reading California’s Cap-and-Trade System: Allowable Fee or Impermissible Tax?

In the latest of a series of moves reflecting the state’s intention to double down on its climate change agenda in the wake of President Trump’s inauguration, the California Air Resources Board (CARB) recently approved a new regulation aimed at curbing methane emissions from oil and gas operations. This measure, characterized by CARB as “the most comprehensive of its kind in the country,” comes on the heels of several actions recently announced by the United States Environmental Protection Agency (US EPA) to reassess the climate change programs of the previous administration, specifically those targeted at oil and gas sector emissions.

Continue Reading California Ramps Up Methane Regulation

You’ve likely heard that just hours after the inauguration, White House Chief of Staff Reince Priebus issued a Memorandum for the Heads of Executive Departments and Agencies captioned “Regulatory Freeze Pending Review.” The so-called Regulatory Freeze Memo sought to freeze midnight actions by the Obama administration. In response to President Trump’s freeze actions and expected regulatory reforms, California lawmakers are seeking to issue their own “freeze” to ensure regulations in place just before the transition remain effective in California. On top of that, California legislators have been introducing a series of bills designed to “insulate the state from dangerous rollbacks in federal environmental regulations and public health protections,” including:

  • SB 49, entitled The California Environmental, Public Health, and Workers Defense Act of 2017, related to retaining all pre-Trump environmental regulations.
  • AB 1646, related to website posting of petroleum refinery risk management plans (RMP) on public agency websites and establishment of emergency notification equipment.
  • AB 1647, related to air monitoring for petroleum refineries.
  • AB 1648, related to increasing CalOSHA’s refinery inspection resources.
  • AB 1649, related to codification of Governor Brown’s Refinery Task Force.
  • SB 584, related to speeding up the RPS 50 percent renewable goal by five years and setting a new 100 percent renewable goal at 2045.

Continue Reading California Lawmakers Poised to Enact Their Own “Regulatory Freeze”

The Safe Drinking Water and Toxic Enforcement Act of 1986, a.k.a Proposition 65, requires warning California consumers prior to exposing them to even minute amounts of any of the 900+ chemicals listed as causing cancer or reproductive harm. The law has been on the books for 30 years. 2016 saw noteworthy amendments to the “safe harbor” warning provisions.

Continue Reading Challenges in Complying with New Proposition 65 Regulations