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)


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


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.

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