California Environmental Law & Policy Update - October 2015 #2

Allen Matkins

Environmental and Policy Focus

Nationwide stay of EPA/Army Corps "Waters of the U.S." rule issued by Sixth Circuit Court of Appeals

Allen Matkins - Oct 9

The Sixth Circuit Court of Appeals today issued a nationwide temporary stay of the Clean Water Rule, which was jointly adopted earlier this year by the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers (the "Agencies") to re-define the key term "waters of the United States" under the federal Clean Water Act. The new Rule has been challenged in multiple forums by numerous States and affected parties, including four actions consolidated before the Sixth Circuit. The eighteen States involved in the actions before the Sixth Circuit successfully sought a nationwide stay of the Clean Water Rule pending completion of the court's review of both the challenges to its jurisdiction to decide the issues and the substantive issues presented. The Sixth Circuit granted a temporary stay, finding that the States had demonstrated a substantial possibility of success on the merits of their claims that the Clean Water Rule too broadly and unconstitutionally expands federal jurisdiction over the sorts of "waters" described in the Rule.

Major setback for desert water project

KCET - Oct 5

A proposal to pump water from the Mojave desert for use in Southern California suburbs suffered a setback last Friday, as a Bureau of Land Management (BLM) official recommended against granting permission to use an existing rail corridor to pipe water to the Metropolitan Water District's aqueduct. The company, Cadiz, Inc., wants to pump up to 50,000 acre-feet a year, more than 16 billion gallons, from an aquifer in the Mojave Desert to sell to a consortium of Southern California water providers, led by Orange County's Santa Margarita Water District. Opponents claim the project could cause irreversible damage to the Mojave Desert's ecosystem, drying up springs by lowering the level of the aquifer. Cadiz counters that the project would actually salvage water that would otherwise be lost to evaporation, and that it would only take 30 years for the aquifer to refill after pumping ceases. BLM's determination that use of the railroad right of way for Cadiz's pipeline doesn't further a railroad purpose means that Cadiz will likely have to undergo a full federal environmental review to proceed.

State approves burying San Onofre nuclear waste at beach

San Diego Union-Tribune - Oct 6

State regulators have approved a controversial plan to bury nuclear waste in concrete bunkers within 125 feet of a seawall and the beach at the shuttered San Onofre nuclear power plant. The site permit approved Tuesday by the California Coastal Commission is only for 20 years, but opponents of the storage plan worry that steel casks packed with nuclear waste might linger at the site for generations and deteriorate to the point where they cannot be removed. In January, plant operator Southern California Edison plans to start building 75 concrete bunkers to hold spent nuclear fuel that accumulated over the 45-year life of the San Onofre Nuclear Generating Station. By 2022, Edison must report back to the commission how it will monitor the casks contained in those bunkers. The permit is expected to be challenged in court.

California Air Resources Board targets 'short-lived' pollutants

Courthouse News Service - Oct 5

The California Air Resources Board (CARB) introduced a plan to drastically cut short-lived climate pollutants, including methane and black carbon, by 2030. Regulators say the plan targets air pollutants responsible for approximately 40 percent of current global warming, and curbing short-lived climate pollutants emissions is the "only way to immediately slow global warming." The 77-page draft released by CARB calls on the state to target dairies and landfills, which produce very large quantities of methane emissions, and develop ways to recycle their waste products. Pollutants such as methane, black carbon and fluorinated gases remain in the atmosphere for much shorter time periods than carbon dioxide emissions caused by the combustion of fossil fuels. Board scientists say that cutting such short-lived pollutants is necessary to reduce potentially catastrophic sea level rise.

EPA marks first federal enforcement of California truck and bus emissions rule

NGT News - Oct 9

The EPA has announced the first federal enforcement of California's Truck and Bus Regulation. The agency says Virginia-based Estes Express Lines will pay a $100,000 penalty for violations of the regulation for failing to install particulate filters on 73 of its heavy-duty diesel trucks (15 percent of the company’s California fleet). The California Truck and Bus Regulation was adopted into the state’s federally enforceable Clean Air Act implementation plan in 2012 and applies to privately-owned diesel trucks and buses.

California Department of Toxic Substances Control enforcement powers strengthened

Los Angeles Times - Oct 2

In the wake of controversy over the delayed cleanup of the Exide battery recycling plant in Vernon, California, Governor Jerry Brown signed several bills Friday aimed at boosting the authority of the Department of Toxic Substances Control (DTSC), a state agency charged with regulation of hazardous materials. The measures signed by Brown will “strengthen penalties for repeat violations of hazardous waste laws and … assist [DTSC] with the recovery of cleanup costs,” the governor’s office said in a statement. The bills include a measure that would require DTSC to seek recovery of oversight and cleanup costs within three years after completion of corrective action by a site operator, rather than within three years of the start of cleanup. A state audit last year found that DTSC had millions of dollars in unbilled and uncollected cleanup costs from 76 sites dating to 1987.

California becomes latest state to ban plastic microbeads

New York Times - Oct 5

Governor Jerry Brown signed legislation on Thursday that bans plastic microbeads, giving the state one of the country’s strongest laws against the tiny abrasives used in exfoliators and other products. The consumer products industry had objected to certain aspects of the bill, arguing that it was overly restrictive and did not allow companies to come up with environmentally friendly alternatives. The California rules include a prohibition against biodegradable microbeads, which other states with similar legislation allow. At least six other states have passed laws restricting microbeads, including Colorado, Illinois, Indiana, Maine, Maryland and New Jersey.

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