California has enacted two new laws on corporate disclosure of direct and indirect greenhouse gas (GHG) emissions and climate-related financial risks. Senate Bill (SB) 253, the Climate Corporate Data Accountability Act, expands state GHG emissions reporting requirements to large U.S. companies doing business in California. SB 261 requires biennial disclosure of climate-related financial risks.Continue Reading California’s New Climate-Related Disclosure Laws
New EPA Rule on PFAS: Urgent Action Required for Manufacturers & Importers
The U.S. Environmental Protection Agency (EPA) has announced a new rule concerning per- and polyfluoroalkyl substances (“PFAS”). Companies that have made or brought products containing these chemicals into the U.S. since 2011 need to report certain information to the EPA. This rule mainly affects those who make or import items that have PFAS in them.
Phase 2 NEPA Revisions: Significant Changes Proposed by CEQ in the Proposed Bipartisan Permitting Reform Rule
Introduction
On July 31, 2023, the Council on Environmental Quality (“CEQ”) proposed the Bipartisan Permitting Reform Implementation Rule (“Proposed Rule”), 88 Fed. Reg. 49,924 (July 31, 2023), which is better known as Phase 2 of the Biden Administration’s revisions to the regulations that implement the National Environmental Policy Act (“NEPA”).
NEPA imposes a procedural requirement that does not mandate outcomes, only informed decision making. Despite its procedural nature, NEPA is one of the primary mechanisms for project opponents to challenge projects and is the most litigated federal statute. CEQ describes the changes in the Proposed Rule as promoting efficient and effective environmental review while increasing regulatory certainty. Given the history of NEPA litigation, and the significant changes in the Proposed Rule, it is likely that these changes will open new pathways for litigation and require courts to interpret the changes before providing regulatory certainty.
Background Leading to the Proposed Rule
Prior to 2020, the regulations implementing NEPA, 40 C.F.R. §§ 1500-1508, had not been meaningfully updated since 1978. In 2020, CEQ finalized significant changes to the regulations, which were designed to speed up project review and limit agency discretion in considering impacts beyond the immediately proposed project. In 2021 CEQ started a phased process to revise the NEPA regulations. In April 2022, CEQ issued its Phase I Rule, 87 Fed. Reg. 23,453 (April 20, 2022), which restored the 1978 regulations’ provisions on the purpose and need statement, defined “effects of the action,” and restored agency discretion to adopt procedures beyond those contained in the CEQ regulations.Continue Reading Phase 2 NEPA Revisions: Significant Changes Proposed by CEQ in the Proposed Bipartisan Permitting Reform Rule
Minnesota Enacts Sweeping PFAS Restrictions
On May 24, 2023, Minnesota became the latest state to impose significant restrictions on perfluoroalkyl and polyfluoroalkyl substances (PFAS) when Governor Tim Walz signed HF 2310. In this blog post, we examine some of the critical questions surrounding the new law.
What does the new law do?
Headlining the new law is a ban on the sale, offer for sale, or distribution for sale of certain products that contain intentionally added PFAS. This ban will be rolled out in two stages. Initially, beginning on January 1, 2025, a person may not sell, offer for sale, or distribute for sale any of the following products if the product contains intentionally added PFAS:
- carpets or rugs;
- cleaning products;
- cookware;
- cosmetics;
- dental floss;
- fabric treatments;
- juvenile products;
- menstruation products;
- textile furnishings;
- ski wax; and
- upholstered furniture.
The commissioner of the Minnesota Pollution Control Agency (MPCA) may by rule identify additional products by category or use.
The second phase of the ban beginning on January 1, 2032 is a total prohibition on the sale, offer for sale, or distribution for sale of any product that contains intentionally added PFAS. A product or category of product can be excepted from this ban if the commissioner determines that the use of PFAS is a currently unavoidable use, although the commissioner may not make such a determination for a product that is included in the initial ban discussed above.Continue Reading Minnesota Enacts Sweeping PFAS Restrictions
State Water Board to Consider Adoption of proposed Statewide Construction Stormwater General Permit at September 8, 2022 Meeting
The State Water Resources Control Board (“State Water Board”) is in the final stages of developing a revised Statewide Construction Stormwater General Permit (“Construction Stormwater General Permit” or “Permit”). The State Water Board is currently accepting public comments on a limited set of revisions to the draft Construction Stormwater General Permit, has noticed one last public workshop to discuss the contents of the proposed Permit, and has scheduled a hearing to consider adoption of the proposed Permit. Important dates are as follows:Continue Reading State Water Board to Consider Adoption of proposed Statewide Construction Stormwater General Permit at September 8, 2022 Meeting
State Water Board Receiving Limited Comments on Its Proposed Reissuance of the Statewide NPDES Construction Stormwater General Permit; Will Consider Adoption At July 19, 2022 Meeting
The State Water Resources Control Board (“Water Board”) is now receiving public comments on certain components of its revised proposed statewide National Pollutant Discharge Elimination System (“NPDES”) Construction Stormwater General Permit (“Construction Stormwater General Permit”).
The first draft Construction Stormwater General Permit was released by the Water Board on May 28, 2021, following Staff’s preliminary draft released in November 2020 and consideration of public comments raised in public workshops held in December 2020. A revised proposed draft Construction Stormwater General Permit was released on March 30, 2022. Water Board Staff is now accepting comments on the following items in the revised draft Permit:
- Anti-degradation findings set forth in Order, Findings 9-18;
- Regulatory transition requirements set forth in Order, Section III.C;
- Sediment-based numeric effluent limitations for 14 pollutants as set forth in total maximum daily load (“TMDL”) implementation requirements in Attachment H section I.G.5, and the Fact Sheet sections I.G.5.g and I.W.6.g; and
- Nitrogen-based nutrient numeric action levels for the Los Angeles Area Lakes TMDL, the Los Angeles River Nutrients TMDL, the Santa Clara River Nitrogen Compounds TMDL, and the Ventura River Algae TMDL in Table H-2 of Attachment H, and in Fact Sheet sections I.G.5.d and I.W.6.d.
9th Circuit Ruling Halts Prop 65 Acrylamide Lawsuits, Again
The food and beverage industry received good news this month thanks to a ruling from the U.S. Court of Appeals for the Ninth Circuit that weakens recent carcinogen claims. The court reinstated an injunction against the filing or prosecution of new California Proposition 65-based lawsuits related to acrylamide in food and beverage products.
The ruling
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
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 Now Receiving Public Comments on Its Proposed Reissuance of the Statewide NPDES Construction Stormwater General Permit
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 Update: State Water Board Adopts Final Winery General Order