New Legal Developments in Construction & Infrastructure Industry
On February 19, 2009, California legislators ended a three-month-long stalemate and passed a budget designed to meet the $41 billion budget shortfall through 2010. A major provision in the bill package adopted as part of the proposed budget would delay the retrofitting of heavy diesel equipment, which would save the construction industry millions of dollars but hurt efforts to reduce harmful emissions.
Continue Reading California Budget Plan Will Delay Off-Road Diesel Emissions Regulations
On August 4, 2008, San Francisco Mayor Gavin Newsom signed a new Green Building Ordinance (“Ordinance”) into law, amending the existing Building Code by inserting Chapter 13C. The goal of the Ordinance is to reduce the city’s carbon emissions to 20% below 1990 levels by 2012. The Ordinance aims to achieve that goal by phasing in more stringent building requirements over the next four years. The Ordinance provides that it will take effect 90 days from its adoption by the City (November 2, 2008), if the California Energy Commission (“CEC”) approves it by that time.[1] Continue Reading What You Need To Know About SF’s Green Building Ordinance
Responding to an order from the Orange County Superior Court, the State Water Resources Control Board (the “State Board”) has lifted a two-week-old moratorium on new construction in the Los Angeles region. The State Board announced on Friday that it would resume processing new enrollments under the statewide NPDES Construction General Storm Water Permit (the “Construction General Permit”) and other statewide NPDES permits. The State Board had suspended such enrollments just two weeks earlier, in response to a writ of mandate issued by the court in the Arcadia II litigation. However, the court clarified on Friday that the writ does allow the State Board to implement the terms of NPDES permits, so long as those terms are not used to enforce numeric water quality standards.
Continue Reading State Water Board Lifts Moratorium On New Construction in LA Region
The State Water Resources Control Board (the “State Board”) has effectively imposed a moratorium on new construction within the Los Angeles region, in response to the Orange County Superior Court’s recent ruling in the Arcadia II litigation. The State Board last week published two memoranda interpreting a writ of mandate issued on July 2 in the Arcadia II case, which involves a challenge to the storm water quality standards set forth in the Basin Plan for the Los Angeles Region. According to the memoranda, the writ requires the State Board to stop processing enrollments under the statewide Construction General Storm Water Permit. This interpretation will halt virtually all new construction projects that have not already obtained storm water permit coverage. The State Board also has interpreted the writ as prohibiting any approvals or other actions to implement new TMDLs for receiving waters in the Los Angeles Region.
Continue Reading State Water Board Imposes Moratorium On New Construction In Los Angeles Region
In an effort to reduce airborne diesel pollution, the California Air Resources Board has adopted a "no idling" rule for in-use off-road diesel-fueled vehicles, limiting idling for such vehicles to no more than 5 minutes. The new rule will go into effect June 16, 2008. This rule adds to a host of other off-road diesel-fueled vehicle regulations to reduce diesel particulate matter and criteria pollutant emissions.Continue Reading No Idling: California Air Resources Board Adopts New Off-Road Diesel Rule
The California Air Resources Board (ARB) has proposed a new regulation aimed at reducing emissions of diesel particulate matter (PM), oxides of nitrogen and greenhouse gases from in-use, on-road diesel-fueled vehicles.Continue Reading Summary of Proposed Draft Regulation to Reduce Emissions of Diesel Particulate Matter, and Other Pollutants From In-Use On-Road Heavy-Duty Diesel-Fueled Engines
On July 27, the California Air Resources Board (ARB) passed new regulations intended to reduce emissions of particulate matter (PM) and nitrous oxide (NOx) from off-road diesel engines. The regulations require businesses to retrofit or "turn over" their fleets over time. A summary of these regulations was posted on June 15. The final version of the regulations contains a few noteworthy revisions, summarized below:Continue Reading Update to June 15, 2007 Blog: The California Air Resources Board Passes New Regulations Limiting Off-Road Diesel Engine Emissions (13 CCR SEC. 2449)
Recognizing that many industrial businesses in California operate using older, and thus more polluting, off-road diesel vehicle fleets, the California Air Resources Board (CARB) has proposed new regulations intended to reduce emissions of particulate matter (PM) and nitrous oxide (NOx) from such vehicles and require businesses to retrofit or "turn over" their fleets over time.Continue Reading CARB Proposes New Diesel Emission Regulations (13 CCR SEC. 2449)
On March 12, 2007, the U.S. Army Corps of Engineers released new and modified Nationwide Permits (NWP), which authorize dredge and fill activities that will cause minimal individual and cumulative adverse effects. The revised NWPs include modified versions of several of the existing 43 NWPs, along with 6 new NWPs. The NWPs include new and revised definitions and will be subject to 28 revised General Conditions. (Final notice submitted to the Federal Register on March 12, 2007) The new permits take effect on March 19, 2007 and will expire on March 18, 2012. Under a grandfathering provision, projects that have commenced or are under contract to commence under prior NWPs will have until March 18, 2008 to complete the activity under the terms and conditions of those NWPs. In addition, the Los Angeles, Sacramento, and San Francisco Army Corps Districts have published notices of proposed regional conditions that could significantly change the requirements of obtaining NWP coverage in those areas. (See proposed regional conditions for Sacramento and Los Angeles.) These regional conditions are still under consideration and no final regional conditions have been issued. Also, the State Water Resources Control Board and Regional Water Quality Control Boards will consider whether any or all of the NWPs should be certified under Section 401 or whether individual certification for each project authorized under a NWP will be required.
Continue Reading Army Corps Issues New and Modified Nationwide Permits
District courts for the Northern District of California and the District of Connecticut recently applied the Supreme Court’s 2006 Rapanos decision to decide whether certain intermittent and ephemeral streams and adjacent wetlands were subject to Clean Water Act regulatory jurisdiction. (Please click for further discussion of Rapanos). In both instances, the courts found that plaintiffs had not presented sufficient evidence that the streams or wetlands in question had a significant effect on downstream navigable waters.
Divers’ Environmental Conservation Organization v. State Water Resources Control Board (Nov. 29, 2006, D046112) __ Cal.App.4th __ http://www.courtinfo.ca.gov/opinions
The Court of Appeals held that a permitting agency under the Clean Water Act is not required to conduct a numeric analysis of individual pollutants in industrial stormwater discharges in order to comply with federal regulations. In addition, even if a discharge will cause the receiving body of water to violate State water quality standards, the agency is not required to impose numeric “water-quality based effluent limitations” (WQBELs) in a National Pollutant Discharge Elimination System (NPDES) permit. Rather, to comply with the regulations, the agency may conduct more general, non-numeric tests of stormwater discharges and, if necessary, impose Best Management Practices (BMPs) on the discharger. This decision is significant because the environmental community has recently pressured permitting agencies to impose numeric limitations on industrial discharges, which include construction discharges. These numeric limitations, if required, would have presented a huge challenge and risk to permittees, who could violate their permits despite the fact that stormwater pollutants are highly variable and may be beyond their control. Thus, this decision helps protect permittees by clarifying that permitting agencies are not required to use numeric limitations to regulate industrial stormwater discharges.Continue Reading Clean Water Act Regulations Do Not Require Numeric Testing Of Individual Pollutants Or Numeric Effluent Limitations For Industrial Stormwater Discharges
