2017 Legislative Update
Churchwell White LLP is pleased to offer our fourth Legislative Update, an annual guide to legislation passed and signed into law at the conclusion of the prior year Legislative Session. The Legislative Update is a streamlined view of newly enacted laws and changes to existing laws that may affect public entities, particularly cities and special districts. The Legislative Update provides a brief summary of the newly enacted laws or the modifications to existing provisions.
The Bar Has Been Raised
Just when we thought that things couldn’t get any better, our attorneys go and prove us wrong again.
Congratulations to partners Steve Churchwell and Doug White for being selected as Best of the Bar 2017 by the Sacramento Business Journal. Your hard work and commitment to excellent service continue to set the highest standard, both in and out of the office. To learn more about these talented attorneys, visit our People page.
Cheers to the First, but Not the Last!
While it is not rare for a Churchwell White attorney to be honored for their excellent work, 2017 has already been an exceptional year! In addition to the largest number of attorneys selected for Super Lawyers, this year also marks the first time that one of our attorneys has been recognized by Best Lawyers®.
Best Lawyers is a guide to reviewed and recommended attorneys located in nearly 75 countries around the world, and is considered to be one of the oldest and most respected peer review publications in the legal industry. Their purely peer review methodology guarantees that attorneys are selected for this honor based upon confidential surveys conducted by their peers.
So it is with much pride that we announce that Churchwell White Partner Barbara A. Brenner, has been selected to The Best Lawyers in America© 2018 Edition in the areas of Environmental Law and Natural Resources Law. To see one of the many reasons why Barbara was selected for this honor, please refer to one of our client case studies.
Tom Hallinan Elected Chair of the California Law Revision Commission
We are excited to share that Churchwell White partner, Tom Hallinan, has been elected Chairperson of the California Law Revision Commission.
The California Law Revision Commission is made up of 10 members, including a member of the Senate and a member of the Assembly. Tom was originally appointed to the Commission by Governor Brown in 2015.
For more information, please refer to the following press release.
DAVIS, August 23, 2017 —
Attorney Thomas Hallinan, of Ceres, has been elected Chairperson of the California Law Revision Commission and attorney Jane McAllister, of Hilmar, has been elected Vice-Chairperson. The term of office is one year, ending on August 31, 2018.
The Law Revision Commission is a state agency responsible for studying problem areas in California law and recommending needed reforms to the Governor and Legislature. The Commission’s current workload includes studies of the application of mediation confidentiality in certain types of cases, the application of family protections and creditor claims to nonprobate transfers, and the reorganization and clean up of the Fish and Game Code and California Public Records Act.
Thomas Hallinan, the new Chairperson, was appointed to the Commission in 2015. He received his Juris Doctorate degree from the Lincoln Law School in Sacramento. Mr. Hallinan has been a partner at Churchwell, White LLP since 2012, where he serves as City/Special District Attorney for a number of local agencies in Central California.
Vice-Chairperson Jane McAllister was appointed to the Commission in 2015. She received her Juris Doctorate degree from the Humphreys College School of Law. Ms. McAllister has been a partner at McAllister and McAllister Inc. since 1996. She was an associate at Damrell, Nelson, Schrimp, Pallios, Pacher and Silva from 1988 to 1996.
Our 2017 Super Lawyers and Rising Stars
They call them Super Lawyers. We think they’re pretty super too.
Churchwell White LLP is pleased to announce our 2017 Super Lawyers and Rising Stars. This year marks the greatest number of our attorneys selected for the honor in the history of the firm. As we continue to grow, we look forward to continuing this expectation for excellence and hard work, as well as sharing many other honors with our clients and friends in the future.
To learn more about these talented attorneys, visit churchwellwhite.com/people.
Steven G. Churchwell, selected to the 2017 Northern California Super Lawyers list in the areas of Government Relations, Administrative Law, and Government Contracts
Douglas L. White, selected to the 2017 Northern California Super Lawyers list in the areas of State, Local & Municipal, Land Use/Zoning, and Real Estate: Business
Elisabeth White, selected to the 2017 Northern California Rising Stars list in the areas of Government Relations, State, Local & Municipal, and Health Care
Kurt D. Hendrickson, selected to the 2017 Northern California Rising Stars list in the area of Business Litigation
Nubia Goldstein, selected to the 2017 Northern California Rising Stars list in the areas of State, Local & Municipal, General Litigation, and Lobbying
Robin Baral, selected to the 2017 Northern California Rising Stars list in the areas of Land Use/Zoning, Environmental, and Real Estate: Business
Karl Schweikert, selected to the 2017 Northern California Rising Stars list in the areas of Aviation and Aerospace, and Administrative Law
Kerry Fuller, selected to the 2017 Northern California Rising Stars list in the areas of Environmental Law
Helane Seikaly, selected to the 2017 Northern California Rising Stars list in the areas of Employment & Labor: Employer and State, Local & Municipal
Client Alert: Court Orders Withdrawal of Drinking Water Regulations for Hexavalent Chromium
On May 5, 2017, the superior court issued its order in California Manufacturers and Technology Association v. State Water Resources Control Board regarding a regulation setting a maximum contaminant level (“MCL”) for hexavalent chromium (“Chrome 6”) in drinking water. The California Department of Public Health (“DPH”) promulgated the MCL pursuant to the Safe Drinking Water Act (sometimes referred to as the “Act”) and set the MCL at 10 parts per billion (“ppb”). When viewed against the Act’s mandates, the court found that DPH failed to adequately consider if compliance with the MCL was economically feasible. The court ordered DPH to withdraw the current MCL and establish a new MCL after properly considering the economic feasibility of compliance. The court did not address the pending deadlines that water purveyors are currently under in order to comply with the now stricken MCL or any other ramifications of its order.
Background on Hexavalent Chromium Regulation
There are two main types of chromium—trivalent and hexavalent chromium. Both forms raise environmental and human health concerns, but Chrome 6 is the more toxic form of chromium. While naturally occurring in limited amounts, Chrome 6 is generally produced by industrial processes. The United States Environmental Protection Agency has adopted an MCL for total chromium (i.e., both trivalent and hexavalent chromium) at 100 ppb. California has also set an MCL for total chromium at 50 ppb. The Office of Environmental Health Hazard Assessment has set a public health goal for drinking water Chrome 6 of 0.02 ppb. DPH was tasked with establishing an MCL that is as close as feasible to achieving the 0.02 ppb goal. After more than 10 years of regulatory proceedings, in July 2014, DPH adopted a drinking water Chrome 6 MCL of 10 ppb. After the MCL was adopted, the responsibility for the State drinking water program was transferred from DPH to the State Water Resources Control Board (“State Water Board”).
California Manufacturers and Technology Association and Solano County Taxpayers Association challenged the 10 ppb MCL for being too low and argued that compliance would be massively expensive. In particular, they argued that DPH failed to comply with substantive and procedural requirements imposed by the Safe Drinking Water Act when it set the MCL. In August 2016, the court issued a tentative ruling indicating that DPH did not properly evaluate the economic impact of the Chrome 6 MCL. In November 2016, the court requested additional briefing from the parties. On May 5, 2017, the court issued its final order to withdraw the current MCL.
Summary of Court’s Order
The court focused its review on whether the MCL complied with the Safe Drinking Water Act’s mandate that MCL standards be economically feasible. The court found that DPH failed to consider if compliance with the MCL would be economic feasibility. While DPH made various arguments to claim that it did consider economic feasibility, the court dismissed these arguments as post hoc rationalizations. The court reasoned that DPH could not substitute other analyses (such as a cost-benefit analysis, cost estimates, and statewide per household averages) in place of an economic feasibility analysis after the fact. For failing to meet its legislative mandate, the court ordered the 10 ppb MCL to be withdrawn. However, the court also noted that the State Water Board may once again set the MCL at 10 ppb, after properly considering the economic feasibility of such an MCL.
The State Water Board is still required to set an MCL that is as close as feasible to achieving the public health goal of 0.02 ppb, the court reiterated that mandate in its order. In light of the court’s decision, the State Water Board will have to conduct a thorough analysis of any new MCL to support its decision. The court’s final order may be appealed by the State Water Board as well. While the MCL of 10 ppb remains uncertain, one thing is sure—a drinking water MCL for Chrome 6 will be established in the future. The State Water Board may try and justify the 10 ppb once again but in the meantime, water purveyors should request direction from the State Water Board staff and focus the State’s attention on the court’s decision.
If you have any questions regarding regulations surrounding Chrome 6 or the potential effect of this litigation, please contact Barbara A. Brenner at email@example.com, Kerry Fuller at firstname.lastname@example.org, or Churchwell White LLP at (916) 468-0950.
Client Alert: New Litigation Alleges Chrome-6 in Water Supplies Is Illegal Hazardous Waste
On March 13, 2017, California River Watch (“River Watch”) filed a complaint against the City of Vacaville (“City”) alleging a violation of the federal Resource Conservation and Recovery Act (“RCRA”). The alleged violation arises from hexavalent chromium (“Chrome-6”) found in the City’s water supply. By carrying water with Chrome-6 in its water supply, River Watch alleges that the City is “transporting” a hazardous waste in violation of RCRA.
RCRA and Chrome-6 Background
Enacted in 1976, RCRA establishes standards and regulations for the creation, transportation, treatment, storage, and disposal of hazardous wastes. Under RCRA, a hazardous waste is a material that may cause or significantly contribute to an increase in mortality or serious illness, or may pose a substantial hazard to human health or the environment, when improperly treated, stored, transported, or disposed of, or otherwise managed. RCRA requires the United States Environmental Protection Agency (“EPA”) to establish criteria for identifying hazardous wastes and to establish lists of materials that constitute hazardous wastes. Chromium is one such substance that constitutes a hazardous waste under RCRA.
There are two main types of chromium—trivalent and hexavalent chromium, also known as Chrome-6. Both forms raise environmental and human health concerns, but Chrome-6 is the more toxic form of chromium. While naturally occurring in limited amounts, Chrome-6 is generally produced by industrial processes. Airborne chromium and chromium compounds are categorized as carcinogenic by EPA standards, but other organizations, such as the National Toxicity Institute, consider all compounds containing chromium to have carcinogenic potential.
In addition to federal standards, California has established its own standards and regulations for hazardous substances. California’s regulations under RCRA are administered and enforced by the Department of Toxic Substances Control. The federal maximum contaminant level (“MCL”) for chromium in drinking water is 100 parts per billion (“ppb”). The California MCL for total chromium in drinking water is 50 ppb. In 2014, California established a drinking water Chrome-6 MCL of 10 ppb.
Related Chrome-6 Litigation
River Watch’s RCRA claim relies upon the 10 ppb Chrome-6 MCL. However, a currently pending case, California Manufacturers and Technology Association v. State Water Resources Control Board (“CMTA”) complicates River Watch’s RCRA. CMTA challenges the administrative rulemaking process associated with the adoption of the California Chrome-6 MCL, questioning the sufficiency of the economic impact analysis of the MCL on small water systems. The case has been ongoing since the MCL was adopted in July of 2014. Following a tentative ruling on the case in August 2016, the court asked the parties to submit additional briefing on a number of issues related to the required rulemaking process if the MCL was overturned. The court also sought additional briefing on the impact of overturning the MCL on public water systems that have attempted to or have already complied with the MCL.
On March 24, 2017, the State Water Resources Control Board (“State Water Board”), the State agency tasked with adopting the MCL for Chrome-6 in drinking water, filed a motion seeking an order from the court that would allow the 10 ppb MCL to remain in effect while the State Water Board redoes the economic feasibility analysis for the MCL. As of April 20, 2017, the court has not ruled on that motion. Therefore, the validity of the Chrome-6 10 ppb MCL remains uncertain.
Legal Issues in River Watch’s Chrome-6 Case
As part of the City’s requirements as a public drinking water supplier under the Safe Drinking Water Act, the City tests and reports the chemical composition of the water it supplies to the public. These tests revealed that Chrome-6 is present in the City’s drinking water in concentrations that exceed the 10 ppb MCL. The same 10 ppb MCL being challenged in the CMTA case. As Chrome-6 is regulated as a hazardous substance under RCRA, the complaint alleges that the City illegally transported a hazardous substance by allowing Chrome-6 to be carried through its water supply. Thus, due to the health concerns associated with Chrome-6, the complaint contends that the City is creating an imminent and substantial danger to human health and the environment in violation of RCRA. The complaint requests that the court order the City to correct the violation by reducing the amount of Chrome-6 in its drinking water and to impose significant civil penalties.
This case raises questions under RCRA and the interplay between RCRA and other statutory requirements, such as the Safe Drinking Water Act. The court will have to determine whether carrying Chrome-6 in a municipal water supply equates to the transport of hazardous material under RCRA and whether a public water system’s activities undertaken in compliance with the Safe Drinking Water Act can operate as a bar to a case brought under RCRA.
If you have any questions regarding regulations surrounding Chrome-6 or the potential effect of this litigation, please contact Barbara A. Brenner at email@example.com, Kerry Fuller at firstname.lastname@example.org, or Churchwell White LLP at (916) 468-0950.
Client Alert: Governor Brown Declares End of the Emergency Drought
On April 7, 2017, Governor Brown ended the drought State of Emergency he established on January 17, 2014, by issuing Executive Order B-40-17 (“Executive Order”). The State Water Resources Control Board (“Water Board”) will rescind, and no longer enforce, the water supply reliability certification and mandatory conservation standard for urban water suppliers. However, urban water suppliers are still required to report their monthly water use, and certain wasteful water use practices are still prohibited.
Drought State of Emergency Background
California experienced historic levels of drought from 2012 through 2016. During this time, the state went through its driest four years of statewide precipitation on record (2012-2015) and the smallest Sierra-Cascades snowpack on record (2015, with 5 percent of average). In response to the drought, on January 17, 2014, Governor Brown declared a State of Emergency and directed state officials to take all necessary actions to prepare for drought conditions. Since 2014, Governor Brown has issued seven executive orders to address California’s drought. Several important regulations were established to achieve water conservation goals, including prohibitions against wasteful water use practices, mandatory water conservation standards, and water supply reliability certification and reporting. With the help of these water conservation measures, California reduced its urban water use by nearly 25 percent compared to 2013 water use.
During the 2016-2017 winter season, California received plentiful rain and snow. California’s mountain snowpack and most of the state’s major reservoirs are at above-normal levels. The Executive Order issued on April 7, 2017, lifts the drought State of Emergency for most California counties; except Fresno, Kings, Tulare, and Tuolumne, where emergency drinking water projects will continue to help address diminished groundwater supplies. With the State of Emergency lifted, urban water suppliers will no longer be required to submit water supply reliability certifications or achieve minimum water conservation standards, but many of the previous requirements for water conservation remain in place.
Some Regulations Remain in Effect
The Executive Order makes clear that water conservation continues to be a way of life in California. To further water conservation efforts, while acknowledging the end of the drought emergency, the Executive Order no longer mandates minimum water conservation standards, but urban water suppliers are still required to submit monthly water use reports. Additionally, prohibitions against designated wasteful water use practices remain in effect, including restrictions on: (1) watering down a sidewalk, driveway, or other hardscapes with a hose, instead of using a broom or a brush; (2) washing automobiles with hoses not equipped with a shut-off nozzle; (3) using non-recirculated water in a fountain or other decorative water feature; (4) watering lawns in a manner that causes runoff, or within 48 hours after a rain event; and (5) irrigating ornamental turf on public street medians. The Water Board will continue to develop regulations to implement the Executive Order’s mandate for maintaining water conservation efforts throughout California.
We will continue to keep you updated on the Water Board’s actions regarding water conservation. If you have any questions regarding the extended regulations, please contact Barbara A. Brenner at email@example.com, Kerry Fuller at firstname.lastname@example.org, or Churchwell White LLP at (916) 468-0950.
Client Alert: President Trump's Executive Order Takes Aim at NEPA Review of Greenhouse Gases
On March 28, 2017, President Trump signed Executive Order – Promoting Energy Independence and Economic Growth, which repealed several components of President Obama’s environmental agenda. One such component involved the guidelines issued by the Council on Environmental Quality (“CEQ”), which specified how federal agencies should analyze greenhouse gas (“GHG”) emissions in environmental reviews under the National Environmental Policy Act (“NEPA”).
NEPA and Greenhouse Gas Analysis
In 1970, NEPA was enacted to require federal agencies to consider the environmental effects of proposed federal projects. Under NEPA, a federal agency is required to conduct an environmental review of all proposed projects that could significantly affect the quality of the human environment. This review informs the agency and the public of the potentially significant environmental effects of a proposed project. NEPA review encompasses aesthetic, biological, cultural, historical, economic, and social impacts, whether direct, indirect, or cumulative.
The CEQ oversees the implementation of NEPA requirements by all federal agencies. On August 1, 2016, the CEQ released “Guidance on Greenhouse Gases and Climate Change.” These guidelines established standards for federal agencies to consider GHG emissions in two areas: (1) the potential effects of a proposed project on climate change; and (2) the effects of climate change on a proposed project and its environmental impacts. The guidelines were intended to provide a detailed methodology for quantifying direct and indirect GHG emissions, analyzing impacts to global climate change, and implementing feasible mitigation and alternatives.
Effect of Executive Order Rescinding CEQ Guidelines
President Trump’s Executive Order revokes the CEQ guidelines for factoring GHG emissions into NEPA reviews. Although federal agencies are no longer required to follow the guidelines, analysis of GHG emissions may still be required. GHG analyses are frequently litigated, and courts have held that NEPA reviews must analyze GHG emissions for certain projects, such as leases of public lands for coal mining (WildEarth Guardians v. Jewell (D.C. Cir. 2013) 738 F.3d 298). Courts have even required NEPA review of GHG impacts from wind projects and other renewable energy activities that will significantly offset GHG emissions in the energy sector (Protect Our Communities Foundation v. Jewell (9th Cir. 2016) 825 F.3d 571). The obligations imposed by these cases will remain in effect, despite the repeal of the CEQ guidelines. President Trump’s Executive Order may therefore increase litigation risk for controversial projects, by repealing the guidelines and removing the CEQ’s recommended methodologies for quantifying and analyzing GHG emissions.
Governor Jerry Brown denounced President Trump’s Executive Order and committed Californians to the challenge of reducing GHG emissions. In anticipation of President Trump’s actions, state agencies have taken steps to ensure that environmental laws are fully implemented and enforced. On March 7, 2017, the State Water Board adopted a resolution requiring a proactive approach to combat climate change in all of its actions, including drinking water regulation, water quality protection, and financial assistance. On March 26, 2017, the California Air Resources Board voted unanimously to maintain the vehicle admissions standards that it adopted in 2012, which are stricter than the vehicle emissions standards set by the federal government.
President Trump’s Executive Order rescinds a number of environmental regulations established during President Obama’s term. The Executive Order also requests all federal agencies to draft reports identifying obstacles to domestic energy production. These reports and findings will continue to develop as federal agencies revise their policies to comply with the Executive Order and states, like California, implement their own policies for reducing GHG emissions.
If you have any questions regarding the effect of the Executive Order or California’s response, please contact Barbara A. Brenner at email@example.com, Robin Baral at firstname.lastname@example.org, or Churchwell White LLP at (916) 468-0950.
The Brown Act Pocket Guide
In 1953, the California Legislature passed the Ralph M. Brown Act in order to govern open meetings for local government bodies. Since then, the Brown Act has become synonymous with government transparency, public accessibility and civic engagement. As a complimentary resource for our public agency clients, Churchwell White LLP compiled a brief overview of the act, which breaks down the following:
- What is the Brown Act?
- Who is covered by the Brown Act?
- What is a Meeting?
- What are not Meetings?
- Rules for Public Meetings
- Agenda Requirements
- Notice Requirements
- Closed Session
While we hope the guide will be an informative resource for all, please understand that it is not meant to serve as a comprehensive explanation or legal advice. If you or your agency have any specific questions regarding the Brown Act, please contact your City Attorney or General Counsel. You may also reach out to one of our attorneys, Douglas White at doug@churchwellwhite or Nubia Goldstein at email@example.com.