As an update to a previous write-up on the deadline for compliance with the new California Industrial General Permit for Stormwater (General Permit), the State Water Resources Control Board (State Water Board) has continued the deadline for registration and compliance from July 1, 2015 to August 14, 2015.

In a notice circulated on the original deadline for compliance, July 1, 2015, the State Water Board acknowledged that its web-based database for stormwater compliance (SMARTS) was experiencing technical issues which were limiting registration access.

As a result, the State Water Board extended the deadline for registration from July 1, 2015 to August 14, 2015.  This extended deadline should enable those industrial facilities that were either unaware of the July 1, 2015 deadline or those struggling to meet that deadline to timely register.

On July 1, 2015, the new California Industrial General Permit for Stormwater (General Permit) will take effect and along with it come a host of new compliance obligations. Chief among those obligations is the completion and submission of a notice of intent (NOI) to be bound by the new General Permit. The last time industrial facilities were obliged to submit an NOI was when the soon-to-be-expired General Permit was updated back in 1997.  Much has changed in the world of industrial stormwater compliance since then.

For those less familiar with the General Permit, it applies in California to the tens of thousands of industrial facilities throughout the state and serves to regulate stormwater emanating from those facilities. The application of the General Permit to any given facility is based on that facility’s Standard Industry Classification (SIC) code. The SIC code for a given facility is determined based on the primary industrial activity at the facility.

The first step in complying with the new General Permit is to determine if an industrial facility is subject to it.  For those industrial facilities that already have their own individualized permit for stormwater, the General Permit’s compliance obligations are inapplicable. And for those industrial facilities that are already operating under the soon-to-be-expired General Permit, the new General Permit’s compliance obligations may be inapplicable.  Oftentimes, industrial facilities will just re-notice their intent to be bound by a new permit without evaluating whether their facility should be subject to a permit. This common practice should be avoided, if possible, to ensure that a facility is not expending time and money to comply with a permit that is inapplicable. Finally, for those industrial facilities that are not already operating under the General Permit, it’s time to evaluate whether the General Permit applies.

LandfillForm over substance continues to obscure the substantive issue presented in the case of the City of Los Angeles (City) vs. Kern County (County). At its core, the dispute involves the land application of biosolids. Biosolids are organic material produced during the processing and treatment of wastewater. Historically, waste by-products like biosolids were disposed of in a landfill or were incinerated. With environmental concerns on the rise, more sustainable practices have been identified to dispose of biosolids, one of which includes land application.

The dispute between the City and County over the land application of biosolids began in the early 1990s when the City began working with County farmers to utilize biosolids in land application as fertilizer for crops. After several years of successful land application, residents of the County passed a measure banning the practice. The practice was successfully portrayed as the City disposing of its waste in the County rather than keeping the waste in the City. Residents of the County overwhelmingly passed the measure and the City sued to block implementation of the measure. Years of protracted litigation between the City and County culminated in the most recent decision by the California Supreme Court (Court).

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The U. S. Court of Appeals for the Ninth Circuit has joined the Fourth, Sixth, Seventh and Tenth Circuits in holding that the Clean Water Act precludes pre-enforcement review of compliance orders alleging violations of the Act. Court RulingIn an opinion issued September 17, 2010 (Sackett v. EPA), the court ruled that landowners who had allegedly violated the Clean Water Act by filling in their property without first obtaining a permit could not challenge the compliance order until EPA started an enforcement action in federal court.

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Hydraulic FracturingAs part of a broad investigation into the practice of pressurized injection of water, sand, and chemicals to extract natural gas from shale, known as hydraulic fracturing or fracking, the Environmental Protection Agency (EPA) held several public hearings this week in Binghamton, New York. Hydraulic fracturing operates by the pressure of the injected materials exceeding the rock strength and the fluid then opening or enlarging fractures in the rock. As the formation is fractured, a “propping agent,” such as sand or ceramic beads, is pumped into the fractures to keep them from closing as the pumping pressure is released.

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On August 25, 2010, the Environmental Protection Agency (EPA) proposed the nation’s largest coastal “No Discharge Zone,” covering California’s entire 1,624 miles of coastline. Pursuant to the federal Clean Water Act, states may request EPA to establish vessel no-discharge zones to protect and restore water quality. Non-sewage discharge from vessels is regulated under state law. Acting pursuant to California’s Clean Coast Act of 2005, the State Water Resources Control Board requested EPA to adopt the protective zone.
San Francisco Cruise Ship

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Senator John KerryWith the collapse of the Senate’s intention to consider even a scaled-down cap and trade bill before its August recess, Senator John Kerry (D-MA) has re-entered the fray. Kerry, along with Senator Joe Lieberman (I-CT), earlier introduced the American Power Act, a major component of which was a multi-sector cap and trade requirement. When it became clear that the American Power Act could not garner the 60 votes necessary for passage, an electric utility-only cap and trade bill was discussed as a substitute. That concept also received insufficient traction and was subsequently replaced by a bill responding to the Gulf oil spill and also containing funding for energy efficiency programs and natural gas vehicle incentives. However, that bill, too, was postponed until at least after the Senate’s August recess.
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Senate Majority Leader Harry Reid (D-NV) announced that the scaled-down energy bill he intends to introduce before the August recess will not include either a cap and trade provision or a renewable energy portfolio requirement. Acknowledging that he could not command 60 votes for Harry Reideven a utility-only cap and trade program, Reid will push for more limited energy legislation covering a response to the Gulf oil spill, energy-efficiency retrofit programs, incentives for the production and purchase of natural gas vehicles, and additional appropriations for the Land and Water Conversation Fund.

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ElectricityAlthough Senate Majority Leader Harry Reid (D-NV) plans to introduce energy legislation by the end of July, it is uncertain if, and to what extent, the bill will include a cap and trade provision. Reid continues to state that he will bring a four-part energy and climate package to the Senate floor in the next two weeks, but prospects for any cap and trade component have seemingly dimmed among the most vocal supporters. Reid has expressed his preference for a bill containing four key elements: a response to the Gulf of Mexico oil spill, promotion of energy efficiency, stimulus for clean energy production, and a cap on carbon emissions from power plants. However, Reid has warned he will not include any provisions that are not certain to gain 60 votes.

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Acting pursuant to the Congressional Review Act, Senator Lisa Murkowski (R-AK) introduced a “resolution of disapproval” seeking to veto EPA’s endangerment finding regarding greenhouse gas (GHG) emissions. Senator Lisa MurkowskiThe endangerment finding is the foundation for EPA’s vehicle emission standards and the newly adopted regulations covering GHG emissions from stationary sources. While failing by 47 – 53 on a procedural vote to allow the resolution to proceed, saving the Senators from a rare roll call vote on climate policy, the Resolution may provide some insight into the views of undecided lawmakers.

Republican Senators unanimously supported Murkowski and six Democrats (Jay Rockefeller (WV), Ben Nelson (NE), Mary Landrieu (LA) Evan Bayh (IN), and Mark Pryor and Blanche Lincoln (AR)) also voted to allow the Resolution to proceed. Rather than focus on the climate change implications of the Resolution, Democratic Senators opposing the Resolution couched their comments in terms of energy policy and protection of “Big Oil.” Republicans took a similar tack emphasizing the energy and economic ills of EPA action with Mitch McConnell (R-KY) calling EPA’s regulations a “back-door national energy tax.”
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