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.)

Saturday, December 23, 2017

CEQA Guidelines Revisions

The  Office of Planning and Research (OPR) has issued a final version of its proposed revisions to the CEQA guidelines. The Natural Resources Agency will soon begin the formal administrative rule making process under the Administrative Procedure Act. This rule making process will entail additional public review, and may lead to further revisions. After completing the  process, the Secretary for the Natural Resources Agency may adopt the changes. Changes would only go into effect after the Office of Administrative Law reviews and approves them.

The agency has divided the amendments into three categories—Efficiency Improvements,Substantive Improvements and Technical Improvements. The following was taken from the Executive Summary for the Proposed Update in November 2017.

 Efficiency Improvements

First, the amendments promote  use of existing regulatory standards in the CEQA process. Using standards as “thresholds of significance” creates a predictable starting point for the analysis, and allows agencies to rely on the expertise of other regulatory bodies, without foreclosing consideration of possible project specific effects.

 Second, the amendments propose to update the environmental checklist that most agencies use to conduct their environmental review. Redundant questions in the existing checklist would be eliminated and some questions would be updated to address contemporary topics. The checklist has also been updated with new questions related to transportation and wildfire.

Third, the amendments include several changes to make existing programmatic environmental review easier to use for later projects. Specifically, it clarifies the rules on tiering, and provides additional guidance on when a later project may be considered within the scope of a program EIR thereby obviating the need for additional environmental review.

Fourth, the amendments revise several exemptions expanding an existing exemption for projects implementing a specific plan to include not just residential, but also commercial and mixed-use projects near transit. It also clarifies the rules on the exemption for changes to existing facilities so that vacant buildings can more easily be redeveloped. Changes to that same exemption would also promote pedestrian, bicycle, and streetscape improvements within an existing right of way.

Finally, the amendments include a new section to assist agencies in complying with CEQA in response to a court’s remand, and to help the public and project proponents understand the effect of the remand on project implementation.

Substantive Improvements

First, the Substantive Improvement amendments would provide guidance regarding an energy impacts analysis. Specifically, it would require an EIR to include an analysis of a project’s energy impacts that addresses not just building design, but also transportation, equipment use, location, and other relevant factors.

Second, the Substantive Improvement amendments propose guidance on the analysis of water supply impacts.  It requires analysis of a proposed project’s possible sources of water supply over the life of the project and the environmental impacts of supplying that water to the project. The analysis must consider any uncertainties in supply, as well as potential alternatives.

Third, the Substantive Improvement amendments includes propose  updates related to analyzing transportation impacts pursuant to Senate Bill 743. These updates will specify that vehicle miles travelled is the appropriate measure of transportation impacts for most projects.

 Finally, the amendments include proposed updates related to analyzing the impacts from greenhouse gas emissions. 

 It adds that the focus of the GHG analysis should be “on the project’s effect on climate change” and should not focus on “the quantity of emissions, and in particular how that quantity of emissions compares to statewide or global emissions.” Agencies  should “consider the reasonably foreseeable incremental contribution of the project’s emissions to the effects of climate change,” but avoid speculation, according to OPR

The changes also direct agencies to consider appropriate time frames for the GHG analysis of their project, noting that in some cases, it would be appropriate for agencies to consider a project’s long-term greenhouse gas impacts, such as for projects with long time horizons for implementation. The changes clarify that agencies can rely on existing GHG reduction plans, such as Climate Action Plans, when conducting
the GHG analysis.

Technical Improvements

The Technical Improvement amendments also include  technical changes to conform to recent cases and statutory changes. For example, it includes changes related to evaluation of hazards mandated by the California Supreme Court in CBIA v. BAAQMD (2015) 62 Cal.4th 369.

Another change clarifies when it may be appropriate to use projected future conditions as the environmental baseline. Another change addresses when agencies may defer specific details of mitigation measures until after project approval.

The Technical Improvement amendments also propose a set of changes related to the duty of lead agencies to provide detailed responses to comments on a project. The changes would clarify that a general response may be appropriate when a comment submits voluminous data and information without explaining its relevance to the project. Other changes address a range of topics such as selecting the lead agency, posting notices with county clerks, clarifying the definition of “discretionary,” and others.

 Finally, the amendments include technical changes to Appendices D and E to reflect recent statutory requirements and previously adopted amendments to the CEQA Guidelines, and to correct typographical errors.

 Additional Technical Improvements include those related to: pre-approval agreements; lead agency by agreement; common sense exemption; preparing the initial study; consultation with transit agencies; citations in environmental documents; posting notices with the county clerk; time limits for negative  declarations; project benefits; joint NEPA/CEQA documents; using the emergency exemption; discretionary projects; conservation easements as mitigation; and Appendices C and M to the CEQA Guidelines.

Friday, December 15, 2017

Appellate Court Upholds Nuisance Claim against Paint Companies for Lead/Lead Renovation, Repair and Painting Rule

A state appellate court has upheld a trial court decision that found paint companies created a public nuisance by promoting lead paint use in residential homes, although it reduced the $1.15 billion award, and limited the relevant time period to pre-1951. See People v. ConAgra Grocery Products Company, Opinion, H040880 (6th Cal. App filed Nov. 14, 2017).
The Counties of Alameda, Los Angeles, Monterey, San Francisco, San Mateo, Santa Clara, Solano and Ventura Counties,  and the cities of Oakland and San Diego sued ConAgra Grocery Products Company, NL Industries, Inc. and the Sherwin-Williams Company seeking  cleanup of lead-contaminated from paint in homes. 
In 2013, a Santa Clara County Superior Court ruled that the paint companies created a public nuisance by promoting lead paint use despite being  aware of serious health threats. The court ordered the companies to pay $1.15 billion into a lead paint abatement fund to rehabilitate homes built prior to 1980. Paint manufacturers have successfully fought off similar suits filed in other states by local governments seeking to hold them accountable for lead paint contamination. The appellate court however, based on a lack of evidence, was limited abatement to pre-1951 paint applications as there was no evidence promotion continued after that time.
We would note that there is also a federal law, that is being enforced in California that regulates in a manner similar to asbestos, the way that the construction and remodeling projects have to manage lead paint covered surfaces in houses.. 
EPA's Lead Renovation, Repair and Painting Rule (RRP Rule) requires that firms performing renovation, repair, and painting projects that disturb lead-based paint in homes, child care facilities and pre-schools built before 1978 have their firm certified by EPA (or an EPA authorized state), use certified renovators who are trained by EPA-approved training providers and follow lead-safe work practices.
See https://www.epa.gov/lead/renovation-repair-and-painting-program  

Thursday, December 14, 2017

Prop 65- Revision to Warning Requirements

In December 2017 OEHHA finalized minor amendments to the new Labeling requirements. Most of the changes are not substantive and were meant to clarify the existing regulations.

Subsequent to the adoption of the August 2016 amendments to the Article 6 Clear and
Reasonable Warnings regulations, the Office of Environmental Health Hazard
Assessment (OEHHA) received numerous inquiries related to the interpretation and
application of several provisions of the amended regulations. OEHHA therefore
determined that clarification of certain provisions of the new regulations would be
beneficial to the regulated community. The proposed amendments are intended to
further clarify the guidance OEHHA provides to businesses to better understand how to
comply with the warning requirements.

 Final Statement of Reasons p.3


Thursday, December 7, 2017

Chlorpyrifos listed under Prop 65

Pursuant to Prop 65 the Developmental and Reproductive Toxicity Identification Committee (DARTIC) under OEHHA made the decision to list chlorpyrifos under Proposition 65 as a developmental toxicant. Chlorpyrifos is one of the most widely-used active ingredients in agricultural insect control products in the world. It was first registered in the U.S. in 1965 and has been on the market for more than forty-five years. Products containing chlorpyrifos will have to be appropriately labeled by late 2018.

Chlorpyrifos was previously considered by the DARTIC in 2008, but was not added to the Proposition 65 list at that time.  Substantial new data on developmental toxicity has become available since the chemical was previously considered for listing. Many groups have pushed to get chlorpyrifos off the market entirely. The Obama administration proposed an all-out ban in 2015. President Donald Trump's appointed Environmental Protection Agency administrator Scott Pruitt ruled in spring 2017 that he would not ban the chemical.  

Chlorpyrifos is an organophosphate insecticide. Pure chlorpyrifos is made up of white or colorless crystals. It has a slight odor.  Chlorpyrifos is used to control many different kinds of pests, including termites, mosquitoes, and roundworms. Chlorpyrifos was first registered as an insecticide in 1965 and the United States Environmental Protection Agency (US EPA) re-registered it in 2006. The only legal indoor use for chlorpyrifos is in containers with treated baits.
The crops with the most use are cotton, corn, almonds and fruit trees including oranges, bananas and apples.  

Alfalfa weevil, armyworms, aphids, potato leafhoppers.
Brassica Vegetables (Cole Crops)
(Broccoli, Cauliflower, Cabbage, Kale, Rutabaga, Turnips, etc.)
Cabbage maggot, aphids
Scale insects, mealybug, Asian citrus psyllid, rust mite, citrus leaf miner, katydids.
Corn, Field
Corn rootworm, cutworm, white grub, European corn borer
Corn, Sweet
corn earworm, armyworms, corn rootworm (larvae and adult), cutworms, seed corn maggot, wireworms
Cotton aphid, Lygus bug, armyworms, pnk bollworm
Mealybugs, cutworms, ants
mint root borer
Onion maggot
Lesser cornstalk borer, corn rootworms, white mold
Pome Fruits
(Apples, Pears)
San Jose scale, rosy apple aphid, pandemis leafroller, oblique-banded leafroller, climbing cutworms, American plum borer
Soybean aphid, bean leaf beetle, grasshoppers, spider mites
Stone Fruits
(Peaches, Nectarines, Cherries, Plums)
San Jose scale, peach twig borer, peaach twig borer, peach tree borer, lesser peach tree borer, American plum borer
Sugar Beets
cutworm, wireworm, sugarbeet root maggot, armyworms, grasshoppers
Sweet Potatoes
Wireworms, southern corn rootworm, flea beetles
Tree nuts
(Almonds, Pecans, Walnuts, etc.)
San Jose scale, peach twig borer, navel orangeworm, codling moth, walnut husk fly, walnut aphid, pecan nut casebearer, black pecan aphid
Aphids, grasshoppers, orange wheatblossom midge

The Office of Environmental Health Hazard Assessment (OEHHA) also has listed perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS) as reproductive toxicants under Proposition 65.

PFOA and PFOS are surfactants that have been used in a variety of consumer products, including carpets, textiles, leather, non-stick cookware, and paper coatings used in food packaging, to confer stain, grease and water resistance.

 Manufacturing of PFOS was ended in 2002 and PFOA production ceased in 2015.

Wednesday, December 6, 2017

Air Quality Presentation to the Manufacturers Council of the Central Valley 12/06/2017

Lee N. Smith along with David Duke of Foster Farms presented these  Power Points concerning the major Air Quality Issues facing the San Joaquin Valley, to the Board of the Manufacturers Council of the Central Valley at their Annual Board Meeting on December 6, 2017.  Please contact Mr. Smith if you like a copy of the presentation.