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.)

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 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