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ANNUAL LEGISLATIVE UPDATE

ANNUAL LEGISLATIVE UPDATE. Presented to SAN DIEGO ENVIRONMENTAL PROFESSIONALS February 9 , 2016 STEPHEN L. MARSH, ESQ. DENTONS US LLP stephen.marsh@dentons.com (619) 699-2418. NEW DEVELOPMENTS IN ENVIRONMENTAL LAW: Proposition 65 Reform Contaminated Properties Hazardous Materials

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ANNUAL LEGISLATIVE UPDATE

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  1. ANNUAL LEGISLATIVE UPDATE Presented to SAN DIEGO ENVIRONMENTAL PROFESSIONALS February 9, 2016 STEPHEN L. MARSH, ESQ. DENTONS US LLP stephen.marsh@dentons.com (619) 699-2418

  2. NEW DEVELOPMENTS IN ENVIRONMENTAL LAW: Proposition 65 Reform Contaminated Properties Hazardous Materials Solid Waste Water Quality Stormwater Pipelines/Oil Spills Miscellaneous ANNUAL LEGISLATIVE UPDATE

  3. WARNING RULEMAKING - OEHHA 1/16/2015 Proposal withdrawn New Proposal Issued 11/27/2015 No Longer Identifies 12 Chemicals to be named in Warnings Allows/Requires Seller to Identify Chemical for Which Warning is Required Grandfathering of Court Approved Warnings Sell through permitted PROPOSITION 65

  4. RETAINS NEW WARNING SYMBOL PROPOSITION 65

  5. CONTAMINATED PROPERTIES • DTSCCost Recovery (H & S Code 25187.2, 25360, 25360.1) AB 273 (Committee on Environmental Safety and Toxic Materials) • Outstanding Invoices for: • Oversight Costs • Direct Costs • Interest Rate Increase • 7% / yr. until June 20, 2021 • 10% / yr. after June 30, 2021 • 45 day Grace Period • Interest waived

  6. CONTAMINATED PROPERTIES • Small Invoice Write-offs (H & S Code 25269.9) AB 274 (CESTM) • DTSC may write off backlog of overdue bills • < $5,000 each • Total approx. $1 million of $194 million • Reason = cost exceeds recovery

  7. CONTAMINATED PROPERTIES • DTSC Cost Recovery (H & S Code 25360.4, 23563, 25366.5) AB 275 (CESTM) • O & M Costs • 3 Years to Initiate Action for Cost Recovery • Commences from date costs certified • Not from date remedial action completed • State no longer responsible for orphan share of corrective action costs.

  8. CONTAMINATED PROPERTIES • Mold (Civil Code 1941.7; H & S Code 17920, 17920.3) SB 655 (Mitchell) • Substandard Dwellings • Owner Required to Repair certain conditions • Visible Mold added to list and defined • Landlord duty triggered by Notice of Mold • Landlord Authorized to Enter Building to Repair Mold Condition

  9. Financial Information ( H & S Code 25185.6, 25190, 25358.1 & .2, 25367)AB 276 (CESTM) Applies to Parties Managing hazardous substance/waste Requesting Permit DTSC may Request Information Ability to Pay for Cleanup If DTSC has reasonable basis to believe Release or threatened release Limited Trade Secret Protection DTSC may share information with other agencies. HAZARDOUS MATERIALS

  10. Permit Issuance Criteria (H & S Code 25200.21, 25200.23)SB 673 (Lara) Hazardous Waste Facility Permits DTSC must establish or update criteria for issuance of new of modified permits July 1, 2018 deadline Programmatic Reforms to improve Timeliness Protectiveness Legal defensibility Enforceability of Permit Program HAZARDOUS MATERIALS

  11. HAZARDOUS MATERIALS • Hazardous Waste Facility (H & S Code 25186, 25186.2, 25186.05 & 25189.4) AB 1075 (Alejo) • Repeating or recurring pattern of non-compliance • Compelling reason for denying, suspending or revoking permit • ROR Pattern is defined as: • 3 or more serious violations • Within 5 year period • Creating significant threat of immediate and acute exposure to hazardous waste or constituents • DTSC may temporarily suspend facility’s permit prior to hearing if: • Imminent and substantial endangerment to public health, safety or environment • Additional penalty $5,000 - $50,000/day for serious hazardous waste violation if > 3 violations in 5 years.

  12. HAZARDOUS MATERIALS • Plastic Microbeads (PRC 42360 et seq.)SB 888 (Bloom) • Personal Care Products • Containing plastic microbeads • Used to exfoliate or cleanse • Sale or offering for Sale Banned January 1, 2020 • Exception: beads < 1ppm • Penalty: $2500/day/violation

  13. SOLID WASTE • Organic Waste Estimates (PRC 41821.4)AB 876 (McCarty) • Beginning August 1, 2017 • All County/Regional Agency implementing IWM program must report to CalRecycle • Est. of Amount (cu. yds) of Organic Waste to be generated over 15 years • Est. of Recycling capacity necessary • Locations for new/expanded recycling facilities to meet that need

  14. SOLID WASTE • Organic Waste Policies (PRC 42649.87, 43032) AB 1045 (Irwin) • Requires CalEPA, CalRecycle, SWRCB, ARB, Dept. of Food & Agriculture to: • Develop and implement policies • To divert organic waste from landfills • By promoting use of agriculture, forestry and urban organic waste as a feedstock for compost • Promoting use of compost statewide. • January 1, 2017 – Recommendations due • Annual updates through January 1, 2021 • Coordinated permitting and regulation of composting facilities.

  15. SOLID WASTE • Disposal Reporting(PRC 41821.5, .6, .7 & .8) AB 901 (Gordon) • Numerous changes to reporting requirements for landfills and diversion • Reports must be electronic to CalRecycle • Goal – Recycle 75% of solid waste

  16. WATER QUALITY • Drinking Water (H & S Code 116380 & 116552)AB 434 (Garcia) • Small public water systems • SWRCB to adopt emergency regulations to govern: • Point-of-Entry treatment or • Point-of-Use treatment • In lieu of centralized treatment: • If not immediately economically feasible • Regulations only effective until January 1, 2018

  17. WATER QUALITY • Hexavalent Chromium (H & S Code 116431)AB 385 (Hueso) • Public Water Systems • Extra time to comply with new Cr6MCL • Public System Must submit compliance plan • Extension may not go beyond January 1, 2020

  18. WATER QUALITY • Suction Dredge Mining (F & G Code 5653, Water Code 13172.5)AB 637 (Allen) • SWRCB may adopt WDRs/Waivers to address impacts • Requires DFW to issue dredge permit if it determines • No significant impact on fish and wildlife • If SWRCB on RWQCB certifies no adverse impact on water quality • Overcomes existing moratorium on issuance of permits since 2009

  19. WATER QUALITY • San Diego River Conservancy (PRC 32656.1; repeals 32661)AB 392 (Atkins) • Deletes January 1, 2020 expiration date • i.e., extends its life indefinitely • Requires regular reports to • Governor • Legislature • Seeks recommendations for further legislation to accomplish mission

  20. STORMWATER • New Industrial General PermitWQO-2014-0057-DWQ • July 1, 2015 Effective Date • NOI – Due 7/1/2016 • Compliance enforcement • Only small % of permittees have renewed • NOVs and 60 day notices coming • Get Help!

  21. PIPELINES • Small Diameter Pipelines (H & S Code 101042; PRC 3270.5 & .6)SB 1420 (Salas) • DOGGR to update Regulations by January 1, 2018 • To address pipelines < 4 in. diameter • Located in sensitive areas • >10 years old • Requires local health officer (LHO) to direct RP to notify local residents of gas pipeline leaks • Requires owner to notify DOGGR and LHO (Response to March 2014 gas leak in Arvin, CA)

  22. PIPELINES • Pipeline Safety Inspections (Gov. Code 51015.1) SB 295 (Jackson) • State Fire Marshal must: • Inspect all infrastructure pipelines and operators • Annually beginning January 1, 2017 • Adopt Regulations by January 1, 2017 • May adopt fees to cover costs • Interstate pipelines not included • Unless federal government transfers enforcement authority to marshal

  23. PIPELINES • Oil Spills (Gov. Code 51013.1) AB 864 (Williams) • New or replacement pipelines • Near environmentally or ecologically sensitive areas • In coastal zone • Must use BAT to reduce amount of oil released in an oil spill • Effective January 1, 2018 • Requires operators to submit plan to retrofit pipeline by January 1, 2020 • State fire marshal must adopt regulations by July 1, 2017

  24. MISCELLANEOUS • AB 1234 (Chiu) Electric Vehicle Charging Stations Expedited Permitting • AB 1008 (Quick) Hydrogen Motor Fuel Facilities Are Not Public Utilities • AB 1096 (Chiu) Electric Bicycles Defined and Regulated • AB 1496 (Thurmond) Methane Emissions Data Collection by ARB • SB 185 (DeLeon) PERS to Divest Coal Stocks • AB 1 (Brown) Failure to Water Lawns in Drought not a Crime – No fines. Many drought and groundwater management laws.

  25. Questions? Thank you! STEPHEN L. MARSH, ESQ.DENTONS US LLPstephen.marsh@dentons.com(619) 699-2418 ANNUAL LEGISLATIVE UPDATE

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