Central Valley Regional Water Board investigating Manure Pond Depth to Groundwater for Certain Dairies

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.

AB 617 Article in the Winter Issue of the Association of Environmental Professionals Environmental Monitor.

Coleman & Horowitt LLP article on AB 617 was published in the Winter Issue of the Association of Environmental Professionals Environmental Monitor.

EPA Issues Findings of Failure to Timely Submit Valley PM 2.5 Plan

The U.S. Environmental Protection Agency issued a Notice of Findings in the Federal Register (62720 Federal Register / Vol. 83, No. 234 / Thursday, December 6, 2018)  on Thursday that the PM 2.5 Attainment Plan for the Central Valley is overdue and that if it not completed and incorporated into the State Implementation Plan within 18 months-sanctions will be imposed that could impact Federal Highway Funds, Offsets and eventually could require a Federal Implementation Program (“FIP”).

This Notice was issued despite the fact that the San Joaquin Valley Air Pollution Control District working alongside the California Air Resources Control Board has approved its PM 2.5 Plan, and it is pending before CARB for approval.

CARB is scheduled to vote on the plan in January. Until then, the EPA said, "the state shall be treated as not having made the submission… "We note, however, that CARB's submission represents a significant step in the state's and district's multiyear effort to address the act's attainment planning requirements," the EPA said.

The section in the Federal Register regarding sanctions and a portion of the relevant Clean Air Act Section is set out below:

II. Consequences of Findings of Failure

To Submit Complete SIPs

Under section 110(k)(1)(C) of the Act, here the EPA determines that a SIP submission (or part thereof) does not meet the EPA’s minimum  completeness criteria established in 40 CFR part 51, appendix V, the state shall be treated as not

having made the submission (or part  thereof). Sections 179(a) and 110(c) of

the CAA establish specific consequences for failure to submit complete SIP submissions or SIP

elements required under part D of title I of the Act, including the eventual imposition of

mandatory sanctions in the affected area.

In accordance with the EPA’s sanctions sequencing rule in 40 CFR 52.31, the offset sanction identified in CAA section 179(b)(2) would apply in the San Joaquin Valley area 18 months after the effective date of these findings, if the EPA has not affirmatively determined by that date that the State has submitted a complete SIP addressing the deficiency that is the basis for these findings. If, within 6 months after the offset sanction applies, the EPA still has not affirmatively determined that the State has submitted a complete SIP addressing the deficiency that is the basis for the findings, the highway funding sanction identified in CAA section 179(b)(1) would also apply in the San Joaquin Valley. Under 40 CFR 52.31(d)(5), neither sanction would apply if the EPA determines within 18 months after the effective date of these findings that the State has submitted a complete SIP submission addressing the deficiency that is the basis for these findings.

Additionally, a finding of failure to submit a complete SIP submission triggers an obligation under CAA  section 110(c) for the EPA to promulgate a FIP no later than 2 years after the finding, unless the state has submitted, and the EPA has approved, the required SIP submittal. Thus, the EPA would be required to promulgate a PM2.5 FIP for the San Joaquin Valley, in relevant part, if California does not submit and the EPA does not approve all of the necessary SIP submissions within 2 years after the effective date of these findings.

Clean Air Act 179(b)(2)

(b) Sanctions

The sanctions available to the Administrator as provided in subsection (a) of this section are as follows:

(1) Highway sanctions

(A) The Administrator may impose a prohibition, applicable to a nonattainment area, on the approval by the Secretary of Transportation of any projects or the awarding by the Secretary of any grants, under title 23 other than projects or grants for safety where the Secretary determines, based on accident or other appropriate data submitted by the State, that the principal purpose of the project is an improvement in safety to resolve a demonstrated safety problem and likely will result in a significant reduction in, or avoidance of, accidents. Such prohibition shall become effective upon the selection by the Administrator of this sanction.

(B) In addition to safety, projects or grants that may be approved by the Secretary, notwithstanding the prohibition in subparagraph (A), are the following—

(i) capital programs for public transit;

(ii) construction or restriction of certain roads or lanes solely for the use of passenger buses or high occupancy vehicles;

(iii) planning for requirements for employers to reduce employee work-trip-related vehicle emissions;

(iv) highway ramp metering, traffic signalization, and related programs that improve traffic flow and achieve a net emission reduction;

(v) fringe and transportation corridor parking facilities serving multiple occupancy vehicle programs or transit operations;

(vi) programs to limit or restrict vehicle use in downtown areas or other areas of emission concentration particularly during periods of peak use, through road use charges, tolls, parking surcharges, or other pricing mechanisms, vehicle restricted zones or periods, or vehicle registration programs;

(vii) programs for breakdown and accident scene management, nonrecurring congestion, and vehicle information systems, to reduce congestion and emissions; and

(viii) such other transportation-related programs as the Administrator, in consultation with the Secretary of Transportation, finds would improve air quality and would not encourage single occupancy vehicle capacity.

In considering such measures, the State should seek to ensure adequate access to downtown, other commercial, and residential areas, and avoid increasing or relocating emissions and congestion rather than reducing them.

(2) Offsets

In applying the emissions offset requirements of section 7503 of this title to new or modified sources or emissions units for which a permit is required under this part, the ratio of emission reductions to increased emissions shall be at least 2 to 1.

OEHHA has Proposed Amendments to Warning Regulations to Clarify the Definitions of Registered Agent and Actual Knowledge

The Office of Environmental Health Hazard Assessment (OEHHA) adopted amendments to the Clear and Reasonable Prop 65 regulations on November 20, 2017 to clarify certain provisions.

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....

 The second change relates to what "actual knowledge" means with respect to duties of the retailers under the Prop 65,  2016 Amendments to the Clear and Reasonable Warnings. 

(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.

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.

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.

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