This blog is re-posted from the Milk Producers Council Newsletter. If you have any questions please contact Kevin Abernathy at the Milk Producers Council or Lee N. Smith or Craig Tristao of our office..
The Central Valley Regional Water Quality Control Board
(Regional Board) officials confirmed Thursday that they are in the process of
contacting about 70 dairies to investigate whether their manure retention
ponds are in direct contact with groundwater.
Some dairies have already reported receiving the letters,
which order them to submit technical reports to help determine whether their
ponds intersect the water table. Regional Board officials said the effort is
focused in an area of the northern San Joaquin Valley known for historically
shallow water tables, near communities like Hilmar, Turlock and Merced.
The
targeted area appears to include parts of Stanislaus, Merced and San Joaquin
Counties. Initial reports indicate that the Regional Board is giving dairies
until July 31 to respond to their request for information determining whether
the dairy’s pond intersects.
The letters require affected dairies to have a licensed
civil engineer or land surveyor prepare a “Groundwater Separation Study,”
which would include the elevation of the land surface near the lagoon, the
lowest part of the top embankment, depth of groundwater below ground surface,
“highest anticipated groundwater,” and a comparison of the elevation of the
bottom of the lagoon to highest anticipated groundwater. If the ponds
intersect groundwater or highest anticipated groundwater, the Regional Board
is asking dairies to respond by October 31 with a “remedial workplan”
including a time schedule for “elimination of the threats to groundwater
associated with this condition.” The October 31 deadline appears to be for
submitting the plan, and the letters to not state a specific deadline for
when affected dairies would have to fully implement the remedial workplan. However, they would have to propose a time schedule for
doing so. Milk Producers Council has requested additional information and is closely monitoring
the situation; and will provide updates as developments warrant.
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Showing posts with label Coleman & Horowitt. Show all posts
Showing posts with label Coleman & Horowitt. Show all posts
Monday, April 8, 2019
Central Valley Regional Water Board investigating Manure Pond Depth to Groundwater for Certain Dairies
Tuesday, November 27, 2018
OEHHA has Proposed Amendments to Warning Regulations to Clarify the Definitions of Registered Agent and Actual Knowledge
The changes relate to two mains topics:
The first
is to clarify the definition of a Registered Agent for the purposes of providing notice of the Prop 65 requirements. These changes were required as manufacturers and distributors needed clarification as to the definition of a Registered Agent for the purposes of allowing the transmittal of notice requirements to downstream transferees that is now permitted to transfer responsibility for warnings under the 2016 regulations.
The changes add language to the relevant provisions of the regulations that an authorized agent is the authorized agent for the business to which they are selling or transferring the product.
This clarifies that the upstream entities need only to give the notice to their immediate downstream customers, which has been a question for entities attempting to comply with the 2016 regulations:
(b)
The manufacturer, producer, packager,
importer, supplier, or distributor of a product
may comply with this article either by providing
a warning on the product
label or labeling that satisfies
Section 25249.6 of the Act, or
by providing a written
notice directly to the
authorized agent for the business to which they are
selling or transferring the product or to
the authorized agent for a retail seller
who is subject to Section 25249.6 of the Act, which:
(1) States that the product
may
result in an exposure
to one or more listed
chemicals;
(2) Includes the exact name
or description
of
the product or specific identifying information for the product
such as a Universal Product Code or other
identifying designation;
(3) Includes all necessary
warning materials such as
labels, labeling, shelf signs or
tags, and warning language for products sold
on the internet, that satisfies Section
25249.6 of the Act; and
(4) Has been sent to the
authorized agent for the business to which they are selling or transferring the product who
is subject to Section 25249.6
of the Act or to the authorized
agent for the retail seller, and the manufacturer, producer, packager, importer, supplier,
or distributor has
obtained confirmation electronically or in
writing of receipt
of the
notice.
(c) If the manufacturer, producer, packager, importer,
supplier, or distributor
of a product is complying
with this section by providing a written notice directly to the authorized agent for the
business to which they are selling or transferring the product who
is subject to Section 25249.6
of the Act or to the authorized
agent for the retail seller:
(1) Confirmation of receipt of the notice must be received electronically or in writing,
and must be renewed, and receipt of the
renewed notice confirmed electronically or in writing
by the authorized agent for
the
business to which
they are selling or transferring
the product who is subject to Section 25249.6
of the Act or the authorized
agent for the retail
seller's authorized
agent no later than February 28, 2019, then
annually thereafter during the period
in which
the
product is sold in California
by the retail seller.
(2)Where a business has not designated an authorized agent, the manufacturer, producer, packager, importer, supplier,
or distributor may serve the notice on the legal agent for
service of process
for the business.
(b) The manufacturer, producer,
packager, importer, supplier, or distributor
of a product
may comply with this article either by providing
a warning on the product
label or labeling that satisfies
Section 25249.6 of the Act, or
by providing a written
notice directly to the
authorized agent for the business to which they are
selling or transferring the product or to
the authorized agent for a retail seller
who is subject to Section 25249.6 of the Act....
(f) For purposes
of subsection
(e)(5), “actual knowledge” means specific
knowledge of the consumer
product exposure with
sufficient specificity for the retail
seller to readily identify the product that
requires a warning, and that is
received by the
authorized agent
or a person whose knowledge
can be imputed to the
retail seller from any reliable source.
If the source of this knowledge
is a notice served pursuant to
Section 25249.7(d)(1) of the Act, the
retail seller shall not be deemed
to have
actual knowledge of any consumer
product exposure that is alleged
in the notice until five business days after the retail
seller receives a notice that provides
a description of
the product
with sufficient specificity for the retail seller to readily identify
the product in accordance with
Article 9, section
25903(b)(2)(D).
The actual knowledge provision is in turn significant because it relates to the instances when a retailer becomes responsible for the warning.
(e) The
retail seller is responsible for providing the warning required by Section
25249.6 of the Act for a consumer product exposure only when one or more of the
following circumstances exist:
(5) The
retail seller has actual knowledge of the potential consumer product exposure
requiring the warning, and there is no manufacturer, producer, packager,
importer, supplier, or distributor of the product who: (A) Is a “person in the
course of doing business” under Section 25249.11(b) of the Act, and (B) Has
designated an agent for service of process in California, or has a place of
business in California.
OEHHA will receive comments by 5:00 p.m. on December 31,
2018. All comments will be posted on the OEHHA website at the close of the
public comment period.
Friday, October 19, 2018
Prop 65 Proposed Changes to Calculating Exposure to Reproductive Chemicals in Food
§ 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.
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
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.
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