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.

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Friday, October 19, 2018

Prop 65 Proposed Changes to Calculating Exposure to Reproductive Chemicals in Food

(OEHHA) has proposed changes to the regulations that govern how Prop 65 reproductive toxicants in foods should be calculated. The proposed changes to the Prop 65 regulations amend 27 CCR §25821(a) and 27 CCR §25821(c) (2) purportedly to prevent incorrect or inconsistent determinations as to the applicability of Prop 65.  https://oehha.ca.gov/proposition-65/crnr/proposed-amendment-sections-25821a-and-c-level-exposure-chemicals-causing.

§ 25821. Level of Exposure to Chemicals Causing Reproductive Toxicity

(a) For purposes of the Act, “level in question” means the chemical concentration of a listed chemical for the exposure in question.  The exposure in question includes the exposure for which the person in the course of doing business is responsible, and does not include exposure to a listed chemical from any other source or product.  For purposes of this section, where a business presents evidence fo r the “level in qu e stio n   of a listed chemical in a food product based on the average of multiple samples of that food, the level in question may not be calculated by averaging the concentration of the chemical in food products from different manufacturers or producers, or that were manufactured in different manufacturing facilities from the product at issue.

This proposed rule bars a producer from calculating an average exposure level from multiple samples based on food from different manufacturers or producers or from different manufacturing facilities. OEHHA stated that they believe  that it is inconsistent with the purposes of [Prop. 65] to average concentrations of chemicals in products manufactured over extended periods, and “based on concentrations measured in samples of foods from different manufacturers or producers, or from different manufacturing facilities, because these are not necessarily representative of the levels of the chemical in products an individual would typically be exposed to when consuming a particular product in California.” Initial Statement of Reasons https://oehha.ca.gov/media/downloads/crnr/isor25821100518.pdf at p.9.

OEHHA also made proposed changes to the way the rate of intake or exposure is calculated:

§ 25821.(c)(2) For exposures to consumer products, the level of exposure shall be calculated using the reasonably anticipated rate of intake or exposure for average users of the consumer product, and not on a per capita basis for the general population.  This rate of intake or exposure is calculated as the arithmetic mean of the rate of intake or exposure for users of the product. The rate of intake or exposure shall be based on data for use of a general category or categories of consumer products, such as the United States Department of Agriculture Home Economic Research Report, Foods Commonly Eaten by Individuals: Amount Per Day and Per Eating Occasion, where such data are available.

In this section 27 CCR § 25821(c)(2), OEHHA  attempts to define  the method of calculating  the reasonably anticipated rate of intake  by using the arithmetic mean of differing exposure rates. According to OEHHA the arithmetic mean best captures that variability because it, unlike a geometric mean or median methodology it “accounts for consumption levels at both the low and the high end of the range, weighing the intake of each consumer equally.” Initial Statement of Reasons at p.8.

These amendments would arguably abrogate the state appellate court decision in Environmental Law Foundation v. Beech-Nut Nutrition. et al., (2015) 235 Cal.App.4th 307, (“Beech-Nut”) in which the Court allowed exposure calculations based on the average lead levels across different manufacturers and facilities. It also permitted the use of the geometric mean to calculate rates of rather than the arithmetic as these proposed rules require.

OEHHA in the Initial Statement or Reasons makes it clear that they believe that the Court in Beech-Nut was wrong:

Neither [of the Court] finding[s]  is consistent with the intent of OEHHA’s regulations or Proposition 65, which is focused on an individual exposure from a specific product. Therefore, OEHHA believes that the regulations should be clarified so that businesses and courts can apply the correct analysis in the future. It should be noted that it is also inconsistent with the purposes of the Act to average concentrations of chemicals in products manufactured over extended periods. OEHHA considered including a time element in this regulation. Initial Statement of Reasons at p.11

The consequence of these new rules would be to make it more difficult for food producers to support a decision to forego labeling certain food products, as  the proposed  rule makes the Prop 65 threshold more difficult to calculate because of  the inherent variability of constituents in foods with respect to the levels in the foods and the variability of  the rate of exposure to consumers.

 The Public comment cutoff was extended until November 26, 2018 and with a public hearing that will be held on November 19, 2018.Public comments cutoff was extended until November 26, 2018 and with a public hearing that will be held on November 19, 2018.

Thursday, October 18, 2018

Issues in Air Quality

This memorandum was prepared for the 
Manufacturers Council of the Central Valley

Coleman & Horowitt, LLP
Attorneys at Law
  M E M O R A N D U M
The following are the items that were identified that may be of interest to the MCCV Working Groups with respect to Air Quality Issues.

1.      AB 617

AB 617 is the statute that was passed last year along with the revisions to the Cap & Trade and emphasizes enhanced source monitoring in certain identified communities. With respect to the Valley, South Fresno and Shafter have been identified.

2.      Community Steering Committee Applications

The SJVAPCD is considering hiring third party Service Providers to assist in developing the steering committees for the communities identified in the initial round. This is an exerpt of the related staff report:

To ensure that this new and extensive community engagement process is successful and meets your Board’s expectations, the use of services to assist the District may be necessary. Given the short timeframe under state law, District staff is seeking your Board’s approval to contract with experienced service providers to assist in the facilitation of these steering committees and with community outreach and participation.

3.      CARB October Board Meeting- October 25-26, 2018

In particular the cap and trade program is being considered, this is from a letter that was circulated to the business community urging participation at the CARB meeting and sign on to a group letter.

Last year, the California Legislature passed legislation (known as AB 398) to renew the state’s cap-and-trade program. The goal is to reduce carbon emissions, while also containing costs for California families. The California Air Resources Board (CARB) will be implementing the policy. To be sure that CARB follows the legislation passed, they are to “avoid adverse impacts on resident households, businesses, and the state’s economy.” There is an indication that CARB is ignoring this direction and proposing to increase the costs that will impact the economy. There is an effort by industry to get people to this meeting and sign on to the following:

California Air Resources Board
10001 I Street
Sacramento, CA 95814

Dear Board Members,

As a group of concerned businesses and consumers in California, we are united in strongly opposing specific provisions of the proposed amendments to the regulation for administering Cap-and-Trade for the period of 2020 to 2030. Specifically, we believe the proposed Price Ceiling would fail entirely at its statutory purpose of controlling costs that are placed on households, businesses, and the overall economy.

Assembly Bill 398 (Garcia, 2017) directs the California Air Resources Board (CARB) to include a Price Ceiling in the proposed regulation to control the prices of allowances. When setting the Price Ceiling, the legislation specifically directs CARB to “avoid adverse impacts on resident households, businesses, and the state’s economy.” This important and straightforward direction reflects a widespread and bipartisan recognition that the costs of climate regulations must be managed in order for the regulations to be successful and avoid driving California consumers, workers, and businesses into insolvency.

Unfortunately, CARB is proposing to set a Price Ceiling that is nearly twice as high as experts recommend. This proposal threatens to impose unaffordable, runaway costs on all Californians, and violates the legislative directions to “avoid adverse impacts.” This includes adding up to $1.08 to the cost of a gallon of gasoline, as well as potential cost increases on energy, food, and other necessities.
These cost increases will dramatically impact California consumers, workers, and businesses, who already contend with some of the highest costs of living in our nation.

For these reasons, we are in strong opposition to the lack of proper price-containment provisions in the proposed amendments. We ask CARB to consider an approach to cost-containment that is more aligned with the Legislature’s direction in AB 398.

Thank you for your consideration.

4.      SJVAPCD October Board Meeting- October 18, 2018

5.      CAC Meeting

A.     PM 2.5 Plan

i.                     District’s Summary

Update on District PM2.5 Planning Efforts – Sheraz Gill, Deputy APCO, provided an update on the status of the District’s PM2.5 planning efforts. For the past three years, the District and the California Air Resources Board (CARB) have led an extensive public process to develop an attainment strategy to address multiple federal PM2.5 standards. This public process has included multiple workshops and public meetings, Public Advisory Workgroup meetings, and regular discussions at Citizens’ Advisory Committee and Environmental Justice Advisory Group meetings. Through the public engagement process, the District and CARB have identified a comprehensive list of potential new regulatory and incentive-based measures to achieve significant emissions reductions from both stationary and mobile sources. Modeling conducted by CARB as part of the SJVUAPCD Governing Board planning process demonstrates that the Valley will attain all three PM2.5 standards by their respective deadlines. The District posted the draft plan for public review on August 31, 2018. The District and CARB are working to finalize the remaining elements of the plan prior to posting the final draft of the plan for public comment ahead of the November 2018 Governing Board meeting where the plan is scheduled to be considered for adoption.

ii.                   Recommendations to the Board from Subcommittee

Due to the breadth and complexity of the plan, CAC members felt additional time to review and analyze the plan was necessary prior to making any recommendations to the Governing Board. To allow for this time, the CAC voted to convene a meeting of the full committee on November 6, 2018, to consider adopting recommendations for the Governing Board on the District’s 2018 PM2.5 Plan. To facilitate an enhanced review of the plan, CAC members voted to create an ad hoc subcommittee which will meet in October 2018 to review the plan further and report back to the CAC at the November 2018.

6              Additional Issues of Interest

A.     Dairy Sustainability Summit

Showcase California’s world-leading achievements in sustainable dairy farm practices and the role dairy plays in the global food system Explore new ways for dairy farmers to continue improving environmental sustainability, develop new business opportunities, and reduce on-farm costs Highlight information, technology, and services that can support dairy farmers’ efforts to meet continuing challenges, further improve efficiency, and ensure economic and environmental sustainability. https://www.cadairysummit.com/.

B.     SNAPS
Excerpts from an Industry Email, this may be a foreshadowing of the AB 617 program.

The California Air Resources Board (CARB) is developing a project to better characterize air quality in communities near oil and gas operations. The Study of Neighborhood Air near Petroleum Sources (SNAPS) includes limited-term, intensive air quality monitoring with a particular focus on production facilities. This project can also provide valuable information to support the Community Air Protection Program (CAPP), formed pursuant to AB 617.
Under SNAPS, candidate communities for monitoring are identified based on their proximity to oil and gas wells, and from public suggestions. CARB staff will locate stationary trailers equipped with state-of-the art monitoring technologies in communities for up to four months to determine air quality. The trailers are capable of measuring toxic air contaminants (TACs), volatile organic compounds (VOCs), particulate matter (PM), metals, and criteria pollutants. An analysis of available air pollution measurements, local characteristics, public input, and potential partnerships in each candidate community will help to prioritize trailer deployment. Staff will analyze the air quality measurements obtained through trailer monitoring to characterize exposures to measured pollutants. Where appropriate, the Office of Environmental Health Hazard Assessment (OEHHA) will perform a more in-depth health analysis, potentially including risk assessment. Some air monitoring data will be posted in real-time and CARB will publish a complete analysis of results in separate reports for each site.

Thursday, October 4, 2018

Current Agricultural Environmental Issues

 This article which ran in the Central Valley Ag Supplement of the Fresno Business Journal provides a summary of the areas of water quality and water supply issues that are the most compelling.

I.                    Basin Plans

The state Porter-Cologne Water Quality Control Act requires the adoption of water quality control plans (Basin Plans) that provide the outline for managing water pollution in California. The plans incorporate the beneficial uses of water in that basin and then provide objectives that maintain and protect these uses. Many of the State’s current policy changes are implemented through amendments of the existing Basin Plans, including the Irrigated Lands Program, the Salt and Nitrate Management Plan that was developed under the CV-Salts program, and the proposed changes to the Bay-Delta Plan.

A.     Irrigated Lands Programs (“IRLP”)


The state IRLP regulates commercial irrigated lands, including nurseries and managed wetlands. Options for regulatory coverage include joining a Third-Party (coalition) group or obtaining individual coverage. The coalition groups work directly with members to assist in complying with requirements that include conducting water quality monitoring and preparing and filing regional plans and reports to address water quality problems. Growers who choose to obtain individual coverage must conduct their own monitoring and reporting and work directly with the Central Valley Water Board to address water quality problems. The coalitions are generally subject to adopted orders for the relevant Basins.


B.     CV Salts

A coalition of agriculture, cities, industry, and regulatory agencies worked for a number of years developing a plan for managing salts and nutrients. The Central Valley Salinity Alternatives for Long-Term Sustainability initiative (CV-SALTS) was initiated in 2006 to develop a management plan. This plan requires amendments to the Basin Plans for the Sacramento River and San Joaquin River Basins and the Tulare Lake Basin. The focal point for the amendments is the Central Valley-wide Salt and Nitrate Management Plan (SNMP). The SNMP provides a framework for managing salt and nitrates in the Central Valley and identified 11 proposed strategies, policies, policy changes or clarifications to the Basin Plans to facilitate the implementation of the proposed strategies and policies contained in the SNMP.  These amendments establish a three phase program that interfaces with the IRLP and includes permitting, further studies and provides specific recommendations for the control and permitting of salt discharges to surface and groundwater and of nitrate discharges to groundwater.

C.     Bay-Delta Plan

The State Water Board is considering the adoption of proposed amendments to the Water Quality Control Plan for the San Francisco Bay/Sacramento-San Joaquin Delta Estuary (the “Bay-Delta Plan”). The proposed amendments include new and revised flow objectives for the Lower San Joaquin River and its tributaries, the Stanislaus, Tuolumne, and Merced rivers, for the “reasonable protection” of fish and wildlife and beneficial uses and revised salinity water quality objectives for the southern Delta agricultural beneficial uses, as well as a program of implementation for these objectives. The current plan calls for 40 percent of the flow to be allowed to flow downstream unimpaired. It has been estimated that in a normal year, this would take 290,000 acre-feet of water from farms and cities, which is about 14 percent of the total amount they currently receive. The impact would be greater in a drought year in such conditions farms and cities could lose an estimated 673,000 acre-feet. Similar amendments will be proposed for the Sacramento River system as well.  It is believed that in addition to losses in water use from surface sources, the reduction could impact groundwater supplies as well as the recharge that could affect sustainable plans under the Sustainable Groundwater Management Act discussed below.

2. Sustainable Groundwater Management Act (SGMA)

On Sept. 16, 2014, Governor Jerry Brown signed into law a three-bill legislative package, composed of AB 1739 (Dickinson), SB 1168 (Pavley), and SB 1319 (Pavley), collectively known as the Sustainable Groundwater Management Act (SGMA). Under this statute, groundwater users in basins starting with those that are prioritized based on their level of overdraw, must organize into groups that will in turn develop a plan to balance the groundwater resources in that basin; the plans are due in January 2020.  This statute will affect the amount of water available to specific users creating effects on the operations and transactions involving all aspects of agriculture in the Valley. It is predicted that a considerable amount of land could be required to be fallowed under this statute to meet the requirements for a balanced groundwater system.

3.   1,2,3,-Trichloropropane (1,2,3 - TCP)

On Dec. 14, 2017, the California Water Resources Control Board -Division of Drinking Water adopted a regulation promulgating an maximum concentration limit (MCL) for 1,2,3 – TCP at the low level of 0.000005 milligrams per liter (5 parts per trillion). 1,2,3-TCP data has been compiled which shows statewide that 388 drinking water sources exceeded the 1,2,3-TCP MCL during the first quarter of 2018.  It is estimated that more than 2 million pounds of pesticides containing 1,2,3-dichloropropene were used in California alone in 1978. The new level of 5 parts per trillion has resulted, and will continue to result, in millions of dollars in new treatment units as well as triggering enforcement actions and lawsuits against the manufacturers and more recently claims against chemical distributors           

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.