Welcome to the Coleman & Horowitt, LLP Agricultural and Environmental Law Blog. In this blog, we will focus on developments in California Agricultural and Environmental Law.

Nothing in this blog should be construed as legal advice. ch-law.com is a public website, so communications are not privileged. Copyright Coleman & Horowitt, LLP Attorneys at Law (CH Law © 2017. All rights reserved.)

Tuesday, September 4, 2018

Third Appellate District’s “narrow” opinion could have far reaching impacts on SGMA, groundwater rights, and groundwater extractions.

In Environmental Law Foundation et al., v. State Water Resources Control Board (“Environmental Law Foundation”) the Third Appellate District of the State of California (the “Court”) held (1) the Public Trust Doctrine applies to the extraction of groundwater that adversely impacts a navigable waterway; and (2) the State Legislature did not intend to occupy the field of groundwater management by enacting the Sustainable Groundwater Management Act (“SGMA”) in 2014.

In determining that the Public Trust Doctrine applies to the extraction of navigable waterways the Court relied heavily on National Audubon Society v. Superior Court (1983) 33 Cal.3d 419 (“Audubon”). Finding Audubon to be precedent, the Court found the extraction of groundwater was akin to the appropriation of water from tributaries of navigable waterways, as was at issue in Audubon in that:

·         the diversion of the water caused the level of the lake to drop, thereby imperiling its scenic beauty and ecological value, such as groundwater extraction can cause the level of the Scott River to drop and cause the same harm;

·         the values underlying the Legislative mandate regarding the water rights system at issue in Audubon (appropriative water rights) collided with the Public Trust Doctrine, but both systems of legal thought could be implemented together, just as SGMA can be implemented together with the Public Trust Doctrine;

·         whether or not groundwater is navigable is not the issue; tributaries in Audubon were not navigable water ways, the issue is whether the conduct at issue, diversion or extraction, will adversely impact a public trust resource such as a navigable waterway.

In determining that SGMA does not occupy the filed of groundwater management such that the County and Board do not have fiduciary duties under the Public Trust Doctrine with respect to the extraction of groundwater, the Court, again relying heavily on Audubon, found:

·         just as there was no incongruity between the appropriative water rights system and the Public Trust Doctrine in Audubon, there is no incongruity between SGMA and the Public Trust Doctrine;

·         SGMA, like the appropriative water rights system, can be harmonized with the Public Trust Doctrine.

Moreover, the Court found no evidence of legislative intent that SGMA was to replace the Public Trust Doctrine. Instead the Court found that the provisions of SGMA:

·         reflect a legislative desire not to interfere with existing law (such as the common law Public Trust Doctrine);

·         SGMA is not as comprehensive as the appropriative water rights system in place, which Audubon found did not eradicate Public Trust Doctrine considerations;

·         do not subject all groundwater basins to its regulation, such as adjudicated basins;

·         many requirements of SGMA do not take effect for several years.

Although the Court considers its decision narrow because it addresses a navigable stream system which includes interconnected groundwater basins, the decision lays the foundation for additional litigation. A person who feels that a Groundwater Sustainability Agency ("GSA") is not adequately taking the environment into account in its Groundwater Sustainability Plans ("GSP") can rely on this case to initiate costly litigation and argue the groundwater extractions to be managed impact a public trust resource: a bird sanctuary, wildlife preserve, or the surface levels of a navigable waterway; and attempt to have a Court order more stringent restrictions on groundwater extraction than would have otherwise been set forth in the GSP.

Tuesday, July 31, 2018

Comments on AB 617 Blueprint

Coleman & Horwitt LLP assisted the Manufacturer's Council of the Central Valley as well as the Central Valley BizFed in drafting comments to the California Air Resources Board's AB 617 Blueprint. The comments are set out below.

Friday, June 22, 2018

AB 617: San Joaquin Valley APCD Identifies Fresno and Bakersfield Under Community Monitoring

The San Joaquin Valley Air Pollution Control District ("SJVAPCD") has tentatively identified sections of Fresno and Bakersfield for Community Monitoring under AB 617.  The Staff Report that was presented at at the June 21, 2018 meeting is available online.    http://www.valleyair.org/Board_meetings/GB/agenda_minutes/Agenda/2018/June/final/07.pdf  These areas, once monitoring results are reviewed, may be subject to enhanced emission controls,  monitoring, enforcement and land use controls that would be designed to reduce emissions in the area.
AB 617 was approved by the legislature in conjunction with AB 398 which amended the Cap & Trade law. It is a far reaching bill that is intended to identify populations/communities in California that are being cumulatively impacted by local air quality. In particular it calls for the development of a plan for monitoring communities that are cumulatively impacted, and a plan for mitigating emissions.  The CARB Draft Community Air Protection Blueprint https://ww2.arb.ca.gov/our-work/programs/community-air-protection-program-ab-617 that outlines the Program including proposed actions and community selection criteria  is currently out for review with comments due by July 23, 2018.  

As part of AB 617 the local air districts are to identify preliminary and final lists of recommended communities to CARB. The initial list of communities was identified in April, and a more refined list  will be provided in July. The California Air Resources Board (CARB) will publish lists in August and finalize them in September. 

 The SJVAPCD  in the preliminary round of identifying communities provided a laundry list of disadvantaged communities that  are effected by the large transportation corridors located in the Valley. http://www.valleyair.org/community/documents/Initial-2018-Community-Recommendations.pdf In this next round the District has specifically identified South Central Fresno, and North Central Bakersfield.

AB 617 requires CARB to develop a monitoring plan for the state, and then select, based on the plan, the highest priority locations to deploy community air monitoring systems. Once the communities and relevant emissions are identified, various options for control measures are to be proposed.

By July 1, 2019, air districts would be required to deploy monitoring systems in the selected locations, with data to be published on the CARB website. Air districts would also be authorized to require any stationary sources that emit air pollution that materially affect the selected location, to deploy a fence-line monitoring system. Once the communities are identified an advisory committee working with the local district can identify control measures, enhanced enforcement, land use controls and other methods to reduce emissions affecting the community. 

Additional locations would be selected to deploy community air monitoring systems on an ongoing basis by January 1, 2020, and every year thereafter as appropriate based on the monitoring plan.

Friday, June 15, 2018

Proposed Proposition 65 Regulation Concerning Chemicals in Coffee

OEHHA has initiated a proposed regulation to attempt to clarify that exposures to Proposition 65 listed chemicals in coffee are created by the roasting of coffee beans and brewing of coffee and the State asserts that it does not pose a significant cancer risk.  

The proposed language is as follows:

              ARTICLE 7. NO SIGNIFICANT RISK LEVELS § 25704. 

        Exposures to Listed  Chemicals in Coffee Posing No                                              Significant Risk

       Exposures to listed chemicals in coffee created                               by and inherent in the processes of roasting                                     coffee  beans or brewing coffee do not pose a significant               risk of cancer. 

NOTE: Authority cited: Section 25249.12, Health and Safety Code. Reference: Sections 25249.6 and 25249.10, Health and Safety Code

 A public hearing on the proposed rule making is scheduled for August 16, 2018 at 10 am in the CalEPA Headquarters Building, 1001 I Street, Sacramento.  A public-comment period on the proposed rule making will close on August 30, 2018.

Monday, June 11, 2018

Actions for TCP Contamination May be Affected by A Recent Jury Verdict Concerning Sodium Nitrate.

By Craig A. Tristao and Lee N. Smith

Lawsuits brought by municipalities against the manufacturers of chemicals, including 1,2,3, Trichloropropane, whom the municipalities contend contaminate drinking water could be for naught as a federal jury awards no damages after finding liability for sodium nitrate contamination of groundwater.

A recent federal jury decision in an action brought by the City of Pomona against a North American subsidiary of SQM, a worldwide chemical manufacturer based out of Chile, may affect whether cities can recover the costs of remediating chemicals used in past agricultural operations from groundwater, due to changing regulatory requirements.

The City of Pomona brought its suit to help offset the cost of treating drinking water supplies contaminated with sodium nitrate, a chemical used as an agricultural fertilizer in citrus orchards in the 1930’s and 1940’s, to meet the State’s drinking water Maximum Contaminant Level (MCL) of 10 milligrams per liter (mg/L). The City of Pomona sought $30 million dollars in damages to offset the cost of remediating sodium nitrate in its drinking water sources. The matter went to the jury, and although the jury found SQM liable for sodium nitrate levels in drinking water in excess of the State MCL, the Jury did not award the City of Pomona any damages. Likely because, as SQM’s defense counsel argued in closing: “at the time SQM was manufacturing its product in the 1930s and 1940s, they could not have been aware of future regulations in California.”

The same outcome could hold true for municipalities who are considering suing chemical manufacturers to obtain funds to aid in the remediation of contaminated groundwater.

For example, 1,2,3,-Trichloropropane (1,2,3 -TCP), a manmade chlorinated hydrocarbon with high chemical stability, has been used as a cleaning and degreasing solvent and in the Central Valley was used as a fumigant and a pesticide additive. State regulation of 1,2,3 -TCP began in 1992 when it was added to the list of chemicals known to the state to cause cancer, pursuant to California's Safe Drinking Water and Toxic Enforcement Act (Proposition 65). Subsequently, in 1999 the State Water Resources Control Board (SWRCB) established a .005-micrograms per liter (μg/L), or five parts per million (PPM),drinking water notification level based on cancer risks derived from laboratory animals studies conducted by the United States Environmental Protection Agency (US EPA) in 1997. Thereafter, in 2001, following concerns 1,2,3-TCP may be contaminating California drinking water sources, the SWRCB included 1,2,3-TCP as an unregulated contaminant for which for which monitoring is required (UCMR). Eight years later, in 2009, the California Office of Environmental Health Assessment (OEHHA) within the California Environmental Protection (CALEPA) set a public health goal (PHG) for 1,2,3-TCP in drinking water of  .0007-micrograms per liter (μg/L)or seven parts per billion (PPB).In 2017the SWRCB adopted a maximum contaminant level (MCL) of 0.000005 mg/L (ppm) which is equal to .005 parts per billion or 5 parts per trillion) as the MCL for 1,2,3-TCP. 

In addition, the proposed  regulations will set the detection limit for purposes of reporting (DLR) at 0.000005 mg/L, and in July 2017, apprisedpublic water systems they would have to monitor for 1,2,3-TCP beginning in January 2018, and if the water suppliers are out of compliance with the new standard after an average of four sampling quarters, they will have to notify their consumers and take measures to come into compliance.

To date 110 drinking water sources in Kern County, 64 drinking water sources in Fresno County, and 51 drinking sources in Los Angeles County are not in compliance and will have to come into compliance. This has led to several municipalities suing manufacturers of products which contained 1,2,3-TCP, and which were used decades ago before any environmental standards were set. Their goal, like the City of Pomona, is to obtain funds from the manufacturers to offset the high cost associated with the treatment of water to hopefully bring concentrations of 1,2,3-TCP into compliance with the State’s MCL. The jury outcome the City of Pomona faced could hold true for municipal suits against the manufacturers of agricultural products which contain chemicals such as 1,2,3-TCP. Just as was the case with SQM and sodium nitrate, at the time companies manufactured and sold their products with 1,2,3-TCP, California did not regulate 1,2,3-TCP. Therefore, municipalities which sue to obtain money to aid in the remediation of 1,2,3-TCP could likewise win with respect to liability, but not be awarded any damages.

The City of Pomona is likely to appeal the Jury’s verdict (there have been previous appeals in this case), as it considers the matter of damages to be subject to strict liability, and therefore the Jury’s failure to award damages to be in error. However, in the interim, this case shows that public water supplies  seeking reimbursement for the remediation of chemicals such as 1,2,3-TCP from fertilizer manufacturers may face juries sympathetic to companies who were acting in accordance with the law in the past, and therefore should not bear the cost of regulatory changes.

The attorneys at Coleman & Horowitt, LLP have experience representing clients in all aspects of environmental regulation, from working with Regional Water Quality Control Boards on Waste Discharge Requirements (“WDRs”) and Underground Storage Tank Sites, to working with the Environmental Protection Agency regarding Superfund Sites and chemical releases, and representing clients in Civil Litigation brought by Regulatory Agencies and Private Citizens.

ATSDR, 2011. Addendum to the Toxicity Profile for 1,2,3-Trichloropane (PDF), Agency for Toxic Substances and Disease Registry, Centers for Disease Control, August 2011. Other information on 1,2,3-TCP from ATSDR is here.

IARC, 1995. 1,2,3-Trichloropropane (PDF), IARC Monographs on the Evaluation of Carcinogenic Risks to Humans, Volume 63, Dry Cleaning, Some Chlorinated Solvents, and Other Industrial Chemicals, International Agency for Research on Cancer.

NTP, 2014. 1,2,3-Trichloropropane (PDF), in Report on Carcinogens, 13th Edition; U.S. Department of Health and Human Services, Public Health Service, National Toxicology Program, October.

OEHHA, 2009. Public Health Goal for 1,2,3-Trichloropropane in Drinking Water (PDF), August 2009.

US EPA, 1997. Health Effects Advisory Summary Tables (HEAST), FY 1997 Update, US Environmental Protection Agency, Solid Waste and Emergency Response, 9200.6-303 (97-1), EPA-540-R-97-036, July 1997.

US EPA, 2009. Toxicological Review of 1,2,3-Trichloropropane (PDF) in Support of Summary Information on the Integrated Risk Information System (IRIS), US EPA. September 2009. IRIS summary is here.

US EPA, 2014. Technical Fact Sheet – 1,2,3-Trichloropropane (TCP), Office of Solid Waste and Emergency Response, EPA-505-F-14-007. January 2014.
SWRCB, 2017, Groundwater Information Sheet (PDF), https://www.waterboards.ca.gov/gama/docs/coc_salinity.pdf

Courthouse News Service, 2017, City Wins Pollution Case, Jury Awards No Damages, https://www.courthousenews.com/city-wins-pollution-case-jury-awards-no-damages/
SBDDW-17-001 1,2,3-Trichloropropane MCL
Information and Documentation Pertaining to This Regulatory Proposal

Wednesday, May 23, 2018

Status of Prop 65 and Glyphosate State vs. Federal

Although there is a recent State Appeals court case  that upholds the State’s ability to list Glyphosate as a Prop 65 chemical and would require labeling as such starting July 2018 ((5th Dist.) there is also a federal ruling on preliminary injunction that prohibits the enforcement of Prop 65 labeling for glyphosate.(CAED)

The State case (decided in April) involved whether the listing of the chemical on Prop 65 was proper. Monsanto, the manufacturer of glyphosate, sued the Office of Environmental Health Hazard Assessment (OEHHA) after it announced it planned to list glyphosate as a carcinogen under Prop. 65. The listing was made through Prop. 65's labor code listing mechanism, which requires OEHHA to list chemicals that the World Health Organization's International Agency for Research on Cancer (IARC) finds to be carcinogenic. In 2015, IARC concluded that glyphosate was a probable human carcinogen. Before the listing was finalized, Monsanto sued to block it. After a lower court granted OEHHA a motion to dismiss the case, the company appealed. While the appeal was pending, OEHHA listed glyphosate. The 5th District Court of Appeal (Fresno) rejected all of Monsanto's arguments, which center on the allegation which Prop. 65’s labor code listing mechanism violates the California and U.S. Constitutions because it improperly relies on the conclusions of a foreign body, in this case IARC, to make some listing decisions.

In the Federal case (Feb.2018)  the Court granted an preliminary injunction that prohibits the enforcement of Prop 65 on that July date until the Court resolves the issue in federal court. Judge Shubb  (Sacramento, Eastern District of Ca.) found merit in the plaintiffs' second ground for injunction; i.e., that forcing the plaintiffs to place a misleading label on their products violates the first amendment. The basis of the federal action is that the listing of glyphosate is not unequivocal and the argument is that:

It is a violation of the first amendment to require that a business to put a label on that is not 100% accurate.
On the evidence before the court, the required warning for glyphosate does not appear to be factually accurate and uncontroversial because it conveys the message that glyphosate’s carcinogenicity is an undisputed fact, when almost all other regulators have concluded that there is insufficient evidence that glyphosate causes cancer.
It is inherently misleading for a warning to state that a chemical is known to the state of California to cause cancer based on the finding of one organization (which as noted above, only found that substance is probably carcinogenic), when apparently all other regulatory and governmental bodies have found the opposite, including the EPA, which is one of the bodies California law expressly relies on in determining whether a chemical causes cancer. The court expresses no opinion as to whether a statement that a chemical is known to cause cancer is factually accurate and uncontroversial where there is stronger evidence in support of the chemical’s carcinogenicity. However, here, given the heavy weight of evidence in the record that glyphosate is not in fact known to cause cancer, the required warning is factually inaccurate and controversial.
Pending final resolution of this action, defendants, their agents and employees, all persons or entities in privity with them, and anyone acting in concert with them are hereby ENJOINED from enforcing as against plaintiffs, plaintiffs’ members, and all persons represented by plaintiffs, California Health & Safety Code § 25249.6’s requirement that any person in the course of doing business provide a clear and reasonable warning before exposing any individual to glyphosate.

OEHHA has requested the court amend its order granting a preliminary injunction and a hearing is set for Monday, July 2, 2018.

OEHHA is also in the process of reviewing a change to the specific language for the pesticide warning labels to make them consistent with federal pesticide  labelling requirements. See attached.

The agency would add new subsection (d) to section 25603 of its Article 6 Clear and Reasonable Warnings Regulation that would allow product manufacturers to use the word "attention" or "notice" instead of "warning" on their Prop. 65 labels."OEHHA believes that in these limited circumstances, the use of the alternative signal words … will bring attention to the warning without interfering with the U.S. EPA or DPR labeling requirements," according to the agency.(OEEHA pestlabel)