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.)

Wednesday, May 2, 2018

Suit Filed by Citizens' Group to Challenge CARB 2017 Scoping Plan


A Citizens' group this week filed a Verified Petition challenging CARB's 2017 Greenhouse Gas Scoping Plan, alleging that several provisions of the Scoping Plan were improperly promulgated and result in racial and financial discrimination.The Two Hundred v. California Air Resources Control Board  (Case # 18CECG01494, 4/27/2018  Fresno County Superior Court).

The Verified Petition contains Eleven Causes of Action under various statutes ranging from the Fair Employment Housing Act, CEQA, the California Clean Air Act, the California Global Warning Solutions Act (GWSA), to violations of the Administrative Procedures Act and due process and equal protection claims under the California Constitution. 

The Petitioners, "The 200" are described in the Petition as: "a California-base unincorporated association of community leaders, opinion makers and advocates working in California (including in Fresno County) and elsewhere on behalf of low income minorities who are, and have been, affected by California’s housing crisis and  increasing wealth gap. "

Defendant/Respondent CARB is the state agency directed by the Legislature to implement SB 32, which requires the State to set a target to reduce its GHG emissions to forty percent below 1990 levels by 2030 (“2030 Target”).  CARB adopts a “Scoping Plan” every five years, as described in the GWSA. The most recent Scoping Plan sets out the GHG reduction measures that CARB believes will be required to achieve the 2030 Target (“2017 Scoping Plan”). The 2017 Scoping Plan was approved in December 2017.

The Petition asserts that:

 "The most staggering, unlawful, and racist components of the 2017 Scoping Plan target new housing. The Plan includes four measures, challenged in this action,  that increase the cost and litigation risks of building housing, intentionally worsen congestion (including commute times and vehicular emissions) for workers who already spend more than two hours on the road instead of with their families, and further increase the cost of  transportation fuels and electricity."  

The Petition targets four new measures:: (A) The new Vehicle Miles Traveled mandate; (B) The new “net zero” CEQA threshold for GHG emissions (C) The new CO2 per capita targets for local climate action plans for 2030 and 2050; and (D) The “Vibrant Communities”policies in Appendix C to the 2017 Scoping Plan, to the extent they incorporate the VMT, net Zero and new CO2 per capita targets.

The Petition seeks to have these four measures withdrawn until additional CEQA and other additional public review is undertaken.


Friday, April 20, 2018

Prop 65 Use of IARC Findings for Listing by State is not an Improper Delegation of Authority

The Fifth Appellate District affirmed a judgment from a trial court holding  that Prop 65's definition of hazardous chemicals as including substances identified as such by IARC, an agency of the United Nations does not constitute an improper delegation of authority.

On method for listing  chemicals on the Prop 65 list is whether it is listed as human or animal carcinogens by the International Agency for Research on Cancer (IARC), which is part of the World Health Organization and headquartered in France. 

Monsanto Company and others filed a petition for writ of mandate challenging §6382(b)(1), arguing it is improper for a foreign entity, unaccountable to the citizens of California, to determine what chemicals are known to the state to cause cancer.

The court of appeal held that the procedures by which such listing determinations are made are simply the working details of how to implement the Prop 65's broader policy of notification and warning with respect to carcinogenic compounds. The listing mechanisms themselves are not the fundamental policy decisions underlying the legislation.

Tuesday, April 10, 2018

Proposition 65 - Adoption of No Significant Risk Level for Roundup/glyphosate

This just in from OEHHA on Roundup:

Proposition 65 - Adoption of No Significant Risk Level for Glyphosate

"The Office of Environmental Health Hazard Assessment has adopted a No Significant Risk Level of 1100 micrograms per day for glyphosate. This means that exposures to glyphosate below 1100 micrograms per day are not considered a significant risk of cancer for purposes of Proposition 65 and would not require a warning. Safe-harbor levels help businesses determine when a warning is required for exposures to listed chemicals. Once the warning requirement takes effect on July 7, 2018, businesses with 10 or more employees who cause exposures above the safe harbor level may need to provide warnings. Enforcement of the warning requirement is currently the subject of pending federal litigation that may affect the duty to warn for glyphosate exposures.  See National Association of Wheat Growers et al., v Lauren Zeise, et al. (Eastern District of California, Case # 2:17-cv-02401-WBS-EFB).  A preliminary injunction has been issued in that case prohibiting enforcement of the warning requirement by the California Attorney General and OEHHA.  The case is still pending in the Federal District Court."

Sunday, April 8, 2018

Tentative Ruling Prop 65 Coffee Products/Chocolate Settlement


A Superior Court Judge in the latest in a series of Prop 65 cases involving coffee industry has tentatively ruled that the Prop 65 warnings are required. CERT  v. Starbucks.( LA Ct. NO. BC435759). The chemical at issue, Acrylamide, is formed in coffee beans during the roasting process and is  then introduced  into coffee itself when the coffee is brewed. These cases are derived from several cases that were filed against 91 defendant coffee sellers. Several of the defendants have settled both before and during the trial.

The trial was divided into three phases. During earlier phases the Judge ruled that there was no first amendment right related to the warning, that there was no federal preemption, and that the levels in coffee , were not below the “no significant risk” safe harbor level established by regulation.


The tentative ruling addresses in part the question of whether the beneficial effects of coffee outweigh the need to warn for potential cancer impacts. Defendants argued that they can take advantage of an “alternative” safe harbor exposure risk level ( [Title 27 section 25703(b) of the California Code of Regulations), which lays out the required procedure for conducting a “quantitative risk assessment” to establish a safe harbor for a Prop. 65 listed carcinogen.


The trial court has tentatively held that the defendants could not meet the requirements of this section  as  the risk assessment according to the court  looked at acrylamide exposure generally and not at exposure to acrylamide in coffee products. 


The defendants have until April 10 to respond to the tentative ruling. If the ruling is not reversed or modified the next phase in the trial would be the calculation of penalties. Some distributors have already begun including the warning to cut off potential liability.


Chocolate Products Settlement.

In additional Prop 65  news a San Francisco Superior Court  approved a settlement of a lawsuit alleging that manufacturers of certain chocolate products were required  to provide Proposition 65 warnings as the products allegedly contained levels of cadmium and lead above the safe harbor levels for those elements.

The settlement  requires manufacturers to provide warnings based on the levels of the two substances in their products. The settlement also requires the  parties to establish a panel that will study the origin of the contamination and will make recommendations that could require warnings at lower or higher levels of the two substances. As You Sow v. Trader Joe’s, Consent judgment, 548791.

 The total settlement was $925,875, which includes; Civil Penalty: $22,000.00 Attorney(s) Fees and Costs: $900,000.00 and Payment in Lieu of Penalty: $3,875.00.  The settlement includes  language that allows other manufacturers or sellers of chocolate products to join in the settlement by accepting its terms.

Each of the defendants must provide a Prop. 65 warning on their products one year after the effective date of the settlement- if the products exceed initial levels specified for each product category. After seven years those levels will be reduced to  levels specified in the settlement. Those levels are to be modified to be consistent with any of the trigger levels recommended by the expert panel. The  language for the warnings is specified in the settlement.

Tuesday, March 20, 2018

AB 617 COMMUNITY AIR PROTECTION PROGRAM


AB 617 COMMUNITY AIR PROTECTION PROGRAM
By Lee N. Smith

This memorandum addresses AB 617 Garcia (the Community Air Protection Program), Chapter 136, Statutes of 2017.  There is also a short discussion of the recently released (2/7/2018) California Air Resources Board (“CARB”) “Concept Paper” and the accompanying “Draft Process and Criteria for 2018 Community Selections.”

I.              Summary

AB 617 was approved by the California legislature in conjunction with AB 398, which was an extension of the Cap & Trade program, in an effort to garner support from the diverse interested parties in the air quality arena.  It is a far-reaching bill that is intended to identify populations/communities in California that are being cumulatively impacted by local air quality, and requires that additional monitoring or mitigation be taken.  In particular, it calls for the development of a plan for monitoring communities that are cumulatively impacted.  The Concept Paper and the Draft Process and Criteria for Community Selection, which are discussed at the end of this memorandum, contain proposed policies that will directly impact local air districts.

            One of the major concerns with AB 617 is the apparent interest by some groups to use inexpensive monitoring devices that cannot produce results that are likely to be sufficient to meet the technical and evidentiary requirements under the state and federal clean air acts.

II.            Cap & Trade AB 398

AB 398 authorizes CARB to continue the GHG Cap & Trade program until 2030 and resolves certain questions over the future of cap-and-trade while working to meet the state’s target to cut GHG emissions to 40 percent below 1990 levels by 2030.  Support by industry for the additional cap-and-trade regulation was an apparent desire to avoid command and control of greenhouse gas emissions as opposed to the economic incentives and compliance alternatives under the existing Cap & Trade program.

III.         AB 617

A.            Summary

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.

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.

The program also includes annual hearings to support continual improvements in implementing the network of community air monitoring systems.

Within one year, air districts that encompass identified communities would need to adopt a community emissions reduction program consistent with the state strategy and including emissions reduction targets, specific cost-effective reduction measures, an implementation schedule and enforcement plan.  These programs could include measures for reducing emissions from the contributing sources or categories of sources, including, but not limited to, stationary and mobile sources.

Ensuring continuous progress towards fulfilling the statewide strategy, every year CARB is required to select additional locations with high cumulative exposures for participation in the program.  The legislation further requires CARB to update the state-wide strategy at least once every five years.

B.           Community Participation

CARB is required to consult with environmental justice organizations, affected industry and other stakeholders in preparing the state-wide strategy, including holding at least three public workshops in different parts of the state.[1]

Air districts must similarly consult with CARB, individuals, community-based organizations, affected sources, and local government in developing the community emissions reduction program.  It is our understanding that initial community identification will occur in April of 2018.

C.                    BARCT

AB 617 also requires air districts that are in nonattainment to adopt an expedited schedule to implement Best Available Retrofit Control Technology (“BARCT”) for existing sources of air pollution that were covered by Cap & Trade - a market based control program - as of January 1, 2017, and where such standards have not been updated within the last decade.  The law offers compliance flexibility in how the standards are met.

AB 617 was intended to enhance consistency of regulatory standards by requiring the state board to establish and maintain a statewide clearinghouse for the technologies used across the state to define the best available control technology (for new sources that emit criteria air pollutants), BARCT, and for related technologies for the control of toxic air contaminants.


D.                      Increased Enforcement

AB 617 also increases the maximum criminal and civil penalties enforceable by the districts and CARB and requires affected air districts to prepare annual reports describing actions taken and the results of those actions.

IV.         Concept Paper

On February 7, 2018, CARB’s Office of Community Air Protection released a draft Concept Paper[2] which is the initial proposal for the framework of the Program that was discussed at three full-day public workshops held throughout California in late February.    Comments received on the Concept Paper will be used in the development of a draft version to be released in May 2018.  The following is a synopsis of the 45-page report that addresses the more relevant sections.

A.            CARB Identifies Responsibilities Under the Air Protection Program to Include:

  Identifying communities with the highest cumulative exposure burdens and annually selecting priority communities for deployment of community air monitoring campaigns and/or community emissions reduction programs.
   Developing a statewide strategy, including measures to reduce emissions and exposure, methods for identifying contributing sources, and criteria to serve as the benchmark that air districts must meet when developing and implementing community emissions reduction programs.
   Preparing a statewide air monitoring plan to provide criteria and guidance for developing community air monitoring campaigns.
  Establishing and maintaining an emissions control technology clearinghouse.
  Establishing a statewide uniform system of annual emissions reporting for certain categories of sources.
  Assessment and identification of the most heavily burdened communities will be based on a compilation of data sources and factors characterizing cumulative exposure to criteria air pollutants and toxic air contaminants within disadvantaged communities. These sources include:
  Information about concentrations of criteria air pollutants and toxic air contaminants from measurements, air quality modeling, or other information quantifying exposure burden.
       Identifying sensitive receptors (e.g., schools, day care centers, hospitals), exposed population, and proximity to mobile, area-wide, and stationary emissions sources of concern, including freeways.
  Density of contributing emissions sources and magnitude of emissions within the community.
       Public health indicators that are representative of the incidence and/or exacerbations of disease.
  Cancer risk estimates based on air quality modeling.
  Socio-economic factors such as poverty levels, unemployment rates, and linguistic isolation.

B.           Air District Responsibilities

CARB is proposing that air districts provide recommendations as to specific communities for deployment of community air monitoring campaigns and/or development of community emissions reduction programs.

According to CARB, the air districts are tasked with establishing the air monitoring campaigns, as well as developing and implementing the community emissions reduction programs because of their apparent expertise and experience.

CARB’s plans include actions that are specific to air districts:

       Adopt air district rules that reflect the most stringent emissions limits, applicability, and best practices and associated cost-effectiveness.
  Assume that air district Best Available Control Technology (“BACT”) and T-BACT determinations for new sources reflect the most stringent limits.
   New air district rules and emissions limits to meet AB 617 requirements for the expedited installation of BARCT.

Some of the duties of the District are discussed in detail in the Process and Criteria Draft which is discussed herein.

C.             Additional Proposed Measures

In addition to District actions, CARB is suggesting:

  CARB-mandated mobile source technology and fuel measures that will advance zero and near-zero emissions technologies.
  Review and potential revision of CARB airborne toxic control measures (ATCMs) and suggested control measures for mobile, area-wide, and stationary sources.
  CARB and air district incentive funding for mobile, area-wide, and stationary sources to accelerate deployment of the cleanest technologies and associated infrastructure, with a focus on zero-emissions technologies wherever feasible.
  Facility-based approaches for reducing emissions.
  CARB and air district mechanisms for targeted enforcement activities.
  Enforceable agreements.
  Transportation-related strategies to reduce community-level emissions impacts such as alternative truck routes, preferential access for the cleanest technologies, and geo-fencing.
  Strategies to create more sustainable communities, including reducing vehicle miles travelled, encouraging active transportation, and urban greening.
  Resources to support education and community advocacy on land use planning and California Environmental Quality Act (CEQA) review.
  Mitigation strategies such as air filtration, buffers, and vegetation barriers.

In addition to the Concept Paper, the technical criteria, requirements for public process, and timelines for the air district and community, self-recommendations are available in the Process and Criteria for 2018 Community Selections.

V.      The Community Air Protection Program Process and Criteria

The Community Air Protection Program DRAFT Process and Criteria for 2018 Community Selections[3] were drafted to help identify the criteria for identifying the communities that will be addressed under their plan:

1)    Community Self-Identification - There is a process for communities to essentially nominate themselves for consideration.  Such nominations are submitted to the local Air Districts for review.

2)    There is also a section to assist air districts in providing initial, and then final, recommendations for identifying local target communities.  The Process and Criteria sets out numerous data resources that a District should use in its review. Sources the districts are to review include:

a.    Information about concentrations of criteria air pollutants and toxic air contaminants from measurements, air quality modeling, or other information quantifying exposure burden.

b.    Sensitive receptors (e.g., schools, day care centers, hospitals), exposed population, and proximity to mobile and stationary emissions sources of concern, including freeways.

c.     Density of contributing emissions sources and magnitude of emissions within the community, including mobile, area-wide, and stationary sources.

d.    Public health indicators that are representative of incidence or exacerbation of disease related to air quality.

e.    Cancer risk estimates based on air quality modeling.

f.      Socio-economic factors such as poverty levels, unemployment rates, and linguistic isolation.

3)    Air District initial submittals and later final assessment are first due in April 2018, then the final in July of 2018.  The Process and Criteria documents contain a list of the information required to be in an air district’s submittals.  Additionally, there are specific requirements for the public review process despite the short timeline for review and implementation of the CARB plan.
 
VI.           Timeline

One of the concerns with the Concept Plan and the Process and Criteria is the short timeframe proposed per statutory requirements.  The timeline under the process identified in this document is as follows:

February 2018:            Draft Process and Criteria for 2018 Community Selections released.

April 30, 2018:             Initial community list from air districts submitted to CARB.

July 31, 2018:              Final air district 2018 Community Selections recommendations submitted to CARB.

August 2018:               CARB posts recommended communities with Community Air Protection Program
                                                            Framework and planning documents for public comment.

September 2018
:        Board meeting to consider selection of 2018 communities.




Lee N. Smith is a partner in the litigation department of the firm's Fresno and Sacramento offices, and is heading the firm's Environmental and Agricultural Law Department, where he provides representation to clients in the areas of Environmental Law Compliance and Litigation, the California Environmental Quality Act (CEQA), Land Use, Proposition 65, Water Law and Litigation in the Central Valley.  His experience includes air quality and hazardous materials compliance, food safety, and water quality at both the federal and state levels.  He has handled cases involving the EPA, Cal-EPA, the Central Valley Regional Water Quality Control Board, CalRecycle, the San Joaquin Valley Air Pollution Control District and other environmental agencies.  He has also been involved in federal litigation involving the Clean Water Act (CWA), the Clean Air Act (CAA), the Comprehensive Environmental Response Compensation and Liability Act (CERCLA), and the Resource Conservation and Recovery Act (RCRA) as well as state court litigation concerning pesticide contamination, CEQA and Proposition 65.

Coleman & Horowitt, LLP provides legal counsel to the business community in the areas of business, commercial, and real estate litigation and transactions, construction litigation, appeals, professional liability defense, casualty insurance defense, insurance coverage, tax, probate, and estate planning.  This newsletter is intended to provide the reader with general information regarding current legal issues.  It is not to be construed as specific legal advice or as a substitute for the need to seek competent legal advice on specific legal matters.  This publication is not meant to serve as a solicitation of business.  To the extent that this may be considered as advertising, then it is herewith identified as such.

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Monday, February 26, 2018

Prop 65 New Safe Harbor Warnings Proposed for Residential Housing



Under California Proposition 65, which requires that the public be provided warnings with regard to the exposure to certain identified chemicals, the  Office of Environmental Health Hazard Assessment (OEHHA) proposes to amend Article 6 of Title 27 of the California Code of Regulations. The amendment to the August 2016 regulations will adopt Sections 25607.34 and 25607.35 to include tailored warnings for  safe harbor exposure warnings for exposures to listed chemicals that can occur at residential rental properties. Safe harbor warnings are developed by the State to allow the relevant entities to provide warnings presumed to be clear and reasonable under Prop 65. The complete text of the warnings can be found at:  
  https://oehha.ca.gov/media/downloads/crnr/030218amendmentregtext.pdf



These proposed safe harbor warning are for residential rental properties.

 A warning for exposures to listed chemicals at a residential rental property meets the requirements of the safe harbor if it complies with the content requirements in Section 25607.35,(see below) and:

(1) Is provided to each known adult occupant at the time of renting, leasing, letting, or hiring out the property, and

(2) Is provided annually directly to the known adult occupants of the property in hard copy or electronic form or in each lease or rental agreement, renewal or amendment for the property.(25607.34)

          If the lease documents are provides in any other language then English, then the warning must be provided in that language as well.  

          In addition to the warning specified in this section, residential rental properties may also have to provide warnings for enclosed parking facilities pursuant to Sections 25607.20, and 25607.21,and designated smoking areas pursuant to Sections 25607.28 and 25607.29, where exposures to listed chemicals from any enclosed parking facilities and designated smoking areas can occur on the property.

A warning for exposures to listed chemicals at a residential rental property meets the requirements of the safer harbor  if it is provided using the methods required in Section 25607.34 and includes all the following elements:

(1) Yellow warning symbol


(2) The word “WARNING:” in all capital letters and bold print.


For exposures to listed carcinogens:

“[Name of one or more exposure source(s)] on this property can expose you to chemicals including [name of one or more chemicals] which is [are] known to the State of California to cause cancer. Talk to your landlord or the building owner about how and when you could be exposed to these chemicals in your building. For additional information go to  www.P65Warnings.ca.gov/apartments.”

For exposures to a single carcinogen:

“[Name of one or more exposure source(s)] on this property can expose you to [name of chemical] which is  known to the State of California to cause cancer. Talk to your landlord or the building owner about how and when you could be exposed to this chemical in your building. For additional information go to www.P65Warnings.ca.gov/apartments.”

 For exposures to listed reproductive toxicants:

           “[Name of one or more exposure source(s)] on this property can expose you to chemicals including [name of one or more chemicals] which is [are] known to the State of California to cause birth defects or other reproductive harm. Talk to your landlord or the building owner about how and when you could be exposed to these chemicals in your building. For additional information go to www.P65Warnings.ca.gov/apartments.”

 For exposures to a single reproductive toxicant, the following words may be used:

“[Name of one or more exposure source(s)] on this property can expose you to [name of chemical] which is known to the State of California to cause birth defects or other reproductive harm. Talk to your landlord or the building owner about how and when you could be exposed to this chemical in your building. For additional information go to www.P65Warnings.ca.gov/apartments.”

 For exposures to both listed carcinogens and reproductive toxicants:

            “[Name of one or more exposure source(s)] on this property can expose you to chemicals including[name of one or more chemicals] which is [are] known to the State of California to cause cancer and [name of one or more chemicals] which is [are] known to the State of California to cause birth defects or other reproductive harm. Talk to your landlord or the building owner about how and when you could be exposed to these chemicals in your building. For additional information go to www.P65Warnings.ca.gov/apartments.”

 For exposures to a chemical that is listed as both a carcinogen and a reproductive toxicant

 “[Name of one or more exposure sources(s)] on this property can expose you to [name of one or more chemicals] which is [are] known to the State of California to cause cancer and birth defects or other reproductive harm. Talk to your landlord or the building owner about how and when you could be exposed to this chemical in your building. For additional information go to www.P65Warnings.ca.gov/ apartments.”

Any written comments concerning this proposed regulatory action, regardless of the form or method of transmission, must be received by OEHHA by 
5:00 p.m. on April 16, 2018, the designated close of the written comment period.  All comments will be posted on the OEHHA website at the close of the public comment period.