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By Michael S. Feeley, John C. Heintz, Julia E. Stein and Bobbi-Jo Dobush

On August 23, 2013, the California Department of Public Health (CDPH) released a draft Maximum Contaminant Level (MCL) of 10 parts per billion (ppb) for hexavalent chromium (Cr-6).[1]  The Clean Water Act is a federal law, which regulates water pollution.[2] It authorizes the states to develop water quality standards, such as MCLs, that police water contamination.[3]  These state standards must be at least as strict as those adopted by the EPA, but states can elect to maintain stricter regulations.[4]  Where the EPA has not adopted a standard for a particular contaminant, a state may adopt its own based on appropriate scientific evidence.[5]

By Ann Claassen and Eli Hopson

Last week EPA finalized the Renewable Fuel Standard (“RFS”) levels for 2013.[1]  Although EPA missed the statutory deadline of November 30, 2012, for setting levels for the 2013 RFS, EPA notes that the statute does not provide any penalty for missing the deadline, nor does it remove the general requirements of the RFS if the deadline is missed.[2]  In light of the significant delay, EPA has extended the deadline for obtaining sufficient credits for gallons of ethanol equivalent fuels (known by the term Renewable Identification Number, or RIN) from February 28 to June 30, 2014.  EPA also intends to meet the statutory deadline of November 30, 2013 for the 2014 standards, and therefore will have released the 2014 standards well in advance of the 2013 compliance deadline.  This will allow obligated parties to make informed decisions about their 2013 compliance strategies, such as whether to use banked RINs, or save certain RIN categories for 2014 compliance.[3]

By Jim Arnone, DJ Moore, Winston Stromberg and Michele Leonelli

On August 5, the California Supreme Court issued an important new California Environmental Quality Act (CEQA) decision in Neighbors for Smart Rail v. Exposition Metro Line Construction Authority, et al. (Neighbors).[1]  In Neighbors, the Supreme Court established that, under limited circumstances, a lead agency can compare a project’s potential environmental impact against a baseline consisting of projected physical environmental conditions at some future point.

Over the past three years, conflicting opinions by different districts of the Courts of Appeal[2] created uncertainty over whether such an approach was permissible under CEQA.  Overturning (in part) two of those decisions, the Supreme Court held that under CEQA a public agency has discretion to study a project’s environmental impacts compared to future conditions instead of to physical conditions that exist when the analysis is prepared — even if the future conditions analyzed are many years away. However, the Court severely constrained that discretion, holding that an agency may only avoid using the existing conditions as a baseline where (1) that is justified by “unusual aspects of the project or surrounding conditions” and (2) “an analysis based on existing conditions would be uninformative or because it would be misleading to decision makers and the public.” Absent an agency supporting these specific determinations with substantial evidence in the record, analyzing a project’s impacts against existing conditions at the time a CEQA analysis is prepared remains the “norm” in California.

By Bobbi-Jo Dobush and John C. Heintz

On July 18, 2013, Judge Evelio Grillo of the Alameda County Superior Court in NRDC v. California Department of Public Health, Cal. Super. Ct., No. RG12643520, directed the California Department of Public Health (CDPH) to issue a draft Maximum Contaminant Level (MCL) in drinking water for Chromium-6 (Cr-6) before September 1, 2013[1].  In 2001, the California State Legislature directed CDPH to issue a Cr-6 MCL by January 1, 2004, but it has not been issued to date.[2]  CDPH had previously indicated it expected to issue the draft MCL for public comment in July 2013,[3]  but the Alameda County Superior Court’s recent decision makes the likelihood of release significantly more certain.[4] 

By Claudia M. O’Brien and Marc T. Campopiano

The Environmental Protection Agency recently finalized two guidance documents for Class VI wells used for long-term carbon capture and sequestration (CCS): the Underground Injection Control (UIC) Program Class VI Well Area of Review Evaluation and Corrective Action Guidance and the Underground Injection Control (UIC) Program Class VI Well Site Characterization Guidance. EPA also released a draft guidance entitled Draft Underground Injection Control (UIC) Program Guidance on Class VI Well Plugging, Post-Injection Site Care, and Site Closure.

By Paul Singarella, Shivaun Cooney, Andrea Hogan, and Adam Thomas

On July 16, 2013, the San Francisco Board of Supervisors unanimously passed on first reading an ordinance that would amend the  California Environmental Quality Act (CEQA) procedures set forth in Chapter 31 of the City’s Administrative Code.  A vote on final passage of the ordinance is on the Board’s July 23, 2013 agenda.  The ordinance follows a number of previous attempts over the past decade to revise the City’s procedures related to CEQA, and reflects several amendments to address key differences between competing proposals. 

Latham & Watkins is pleased to present a complimentary 60-minute webcast on Wednesday, July 24 at 9:00 am pacific/12:00 pm eastern. The webcast is presented by the Air Quality and Climate Change Practice and will address the following current air quality and climate change regulatory and policy updates:

  • The recent decision in the California Low Carbon Fuel Standard case and its implications for the implementation of the LCFS 
  • Greenhouse gas emissions trading for airlines
  • How climate change issues are being handled by

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By Janice Schneider, Andrea Hogan, and Adam Thomas

We analyzed the President Obama’s recent Memorandum aimed at modernizing and expanding the nation’s electric transmission grid on federal lands.[1] The memorandum, which also garnered a mention in the President’s newly announced Climate Action Plan, is another tool being used by President Obama to move the country towards the President’s goal of doubling domestic renewable electricity by 2020. 

On June 25, President Obama issued the Climate Action Plan to expand the federal government’s efforts to reduce greenhouse gas (GHG) emissions and combat climate change.  In addition to focusing on regulating GHG emissions from new and existing power plants, the President’s plan reinforces support for fossil-fuel generation combined with  carbon capture and sequestration (CCS) technologies.  CCS is the process of capturing CO2 from large industrial facilities, such as power plants, and storing it permanently underground, usually via…

The U.S. Supreme Court’s decision last week in Koontz v. St. Johns River Water Management District expands the holdings of Nollan v. California Coastal Comm’n, 483 U.S. 825 (1987) and Dolan v. City of Tigard, 512 U.S. 374 (1994) to provide more extensive protections to property owners faced with government-imposed land use conditions.  Nollan and Dolan hold that government exactions must have a sufficient nexus and be roughly proportional to the effects of the property owner’s proposed use…