Friday, October 10, 2014

Proposition 65 Warning Requirement for DINP Set to Take Effect in December

Beginning December 20, 2014, companies with ten or more employees that manufacture, distribute or sell products in California containing Diisononyl phthalate (DINP) will be required to provide “clear and reasonable” warnings under the State’s Safe Drinking Water and Toxic Enforcement Act of 1986, commonly referred to as “Proposition 65.”

California’s Office of Environmental Health Hazard Assessment (OEHHA) added DINP to the Proposition 65 list of chemicals on December 20, 2013 as a chemical “known to the State to cause cancer.” Once a chemical is listed as a carcinogen under Proposition 65, companies have 12 months to stop selling products containing that chemical in California without a warning, unless they can prove exposure to the chemical is at a level that presents “no significant risk.” 

Proposition 65’s citizen suit provision authorizes any California citizen or private organization to issue a notice of violation to an entity that manufactures, distributes or sells a product containing the listed chemical in California, beginning 12 months after the listing date. The notice of violation triggers a 60-day period, during which the State Attorney General or any district attorney may bring an enforcement action. If no public prosecution is commenced during the 60-day window, the private enforcer that issued the notice of violation may file a complaint in state court to enforce the law.

A related chemical, Di(2-ethylhexyl)phthalate (DEHP), has been listed under Proposition 65 for many years and has generated hundreds of 60-day notices and lawsuits brought by citizen enforcers. As such, it can be expected that DINP’s listing will encourage a new wave of citizen enforcement actions against companies doing business in California.

DINP is used as a general purpose plasticizer and can be found in a wide range of products. Its use in California in toys and children’s articles has been restricted since 2009.

-- Samir Abdelnour

Barg Coffin has an extensive Proposition 65 practice. If you would like more information about Proposition 65, please contact Josh Bloom (jab@bcltlaw.com) or Samir Abdelnour (sja@bcltlaw.com), at (415) 228-5400.

Tuesday, October 7, 2014

EPA Announces Final Rule Eliminating ASTM Phase I ESA Standard E1527-05 from CERCLA “All Appropriate Inquiries Rule”

On October 6, 2014, the EPA announced a final rule amending the “All Appropriate Inquiries Rule” [40 CFR Part 312] (“AAI Rule”) for conducting environmental site investigations of potentially contaminated property.

The final rule removes reference to the ASTM International 2005 standard – ASTM E1527-05 – as an acceptable standard for undertaking “all appropriate inquiries” necessary to qualify for certain liability protections under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), including the bona fide prospective purchaser defense and innocent landowner defense. In June of this year, EPA had announced its intention to eliminate the reference to the 2005 standard, which was replaced in 2013 by an updated standard, ASTM 1527-13, that contains new requirements.

The purpose of the final rule is to “reduce any confusion associated with the regulatory reference to a historical standard that is no longer recognized by its originating organization [ASTM International] as meeting its standards for good customary business practice.”

EPA also believes that its final rule will promote the use of the updated 2013 ASTM standard. As EPA notes, most environmental professionals are likely already using the updated standard, described as “a currently recognized industry consensus-based standard to conduct all appropriate inquiries as provided under CERCLA.”

The effective date for the new rule is October 6, 2015, “to provide parties with an adequate opportunity to complete AAI investigations that may be ongoing [under the 2005 standard] and to become familiar with the updated industry standard (ASTM E1527-13).”

For more information on the AAI Rule and the updated ASTM 1527-13 standard, see our prior blog post.

-- Don Sobelman and Nicole Martin

For more information, contact Don Sobelman at des@bcltlaw.com or (415) 228-5456, or Nicole Martin at nmm@bcltlaw.com or (415) 228-5435.

Monday, October 6, 2014

CEQA Alert: CEQA Does Not Apply to Approval of Proposed Railroad Operations – Express Preemption by ICCTA

California’s First Appellate District has held that federal law preempts CEQA’s application to the approval of proposed railroad operations. Although this was an issue of first impression for a California appellate court, the decision adopts the reasoning of a uniform line of decisions by federal courts and the Surface Transportation Board (STB) holding that the Interstate Commerce Commission Termination Act (ICCTA) broadly preempts state statutes requiring environmental review as a condition of railroad operations.
 
The decision in Friends of Eel River v. North Coast Railroad Authority et al. (September 29, 2014; 1st DCA Case No. A139222) arose from two separate actions challenging the reopening of rail service from Willits, in Mendocino County, to Lombard, in Napa County. The government agency charged with maintaining rail service on that line, the North Coast Railroad Authority (NCRA), initially prepared and certified an EIR, but later – following a legal challenge – passed a resolution rescinding certification of the EIR. NCRA explained that it had “mistakenly, but in good faith, believe[d] that it needed to complete” an EIR for resumed rail operations, but had since determined that the ICCTA expressly preempted application of CEQA to the project.
 
The Court of Appeal focused on the “expansive language” of ICCTA’s “broadly worded express preemption provision,” which gives the STB exclusive jurisdiction over transportation by rail carriers and the construction, acquisition, and operation of railroad tracks and facilities, even if located entirely in one state. The court found “persuasive and fully applicable to the case before us” a uniform line of federal court and STB cases concluding that state statutes requiring environmental review as a condition to railroad operations are preempted by the ICCTA.   
 
Although petitioners pursued several lines of attack to defeat the preemption argument, the court rejected all of them. Most importantly, the court ruled that the market participation doctrine – which precludes preemption where the state acts in a “proprietary” role as a market participant, rather than as a regulator – did not apply. According to the court, “[t]he aspect of CEQA that allows a citizen’s group to challenge the adequacy of an EIR when CEQA compliance is required is clearly regulatory in nature, as a lawsuit against a governmental entity cannot be viewed as part of its proprietary action, even if the lawsuit challenges that proprietary action.” The court acknowledged that the Third Appellate District reached a contrary conclusion concerning the market participation doctrine in another recent CEQA decision, but disagreed with that court’s analysis of the issue.
 
The court also rejected petitioners’ other arguments, holding that: 
  1. An agreement between NCRA and Caltrans that governed the process for obtaining state funding and included an environmental review provision did not obligate NCRA to complete an EIR.  Moreover, as non-parties to that agreement, petitioners had no standing to assert such a claim. 
  2. NCRA’s agreement to comply with CEQA with respect to certain work – which was contained in a consent decree reached in separate litigation – did not confer a contractual obligation on NCRA to prepare an EIR for the reopening of the rail line. And even if it did, petitioners, as nonparties to that consent decree, lacked standing to sue.
  3. Petitioners’ Tenth Amendment, judicial estoppel, and collateral estoppel arguments were without merit.
The decision is available here.

--Don Sobelman and Nicole Martin

For more information, contact Don Sobelman at des@bcltlaw.com, (415) 228-5456, or Nicole Martin at nmm@bcltlaw.com, (415) 228-5435.

Friday, September 19, 2014

Legislation Update: Governor Signs Groundwater Bills

On September 16, Gov. Jerry Brown signed into law the package of bills regulating groundwater that we recently wrote about here. The Governor’s press release announcing the signing outlines the following deadlines triggered by passage of the law:
  • By 2017, local groundwater management agencies must be identified.
  • By 2020, overdrafted groundwater basins must have sustainability plans.
  • By 2022, other high- and medium-priority basins not currently in overdraft must have sustainability plans.
  • By 2040, all high- and medium-priority groundwater basins must achieve sustainability.
 As we wrote previously, the Department of Water Resources must categorize each groundwater basin in the state as high-, medium-, low- or very low-priority by January 1, 2015.  Also, by June 1, 2016, the Department of Water Resources must adopt regulations for identifying the components of groundwater sustainability plans and for evaluating those plans and their implementation.  The law will take effect in January 2015.
 
- Samir Abdelnour
 
For more information, contact Estie Kus at emk@bcltlaw.com or (415) 228-5463; Samir Abdelnour at sja@bcltlaw.com or (415) 228-5443; or Dave Metres at dmm@bcltlaw.com or (415) 228-5488.

Thursday, September 18, 2014

Draft DTSC Work Plan Signals Expansion of California Green Chemistry Initiative

As part of its Safer Consumer Products Regulation (SCPR) under California’s Green Chemistry Initiative, the Department of Toxic Substances Control (DTSC) on September 13, 2014 issued its Draft Priority Product Three-Year Work Plan. Companies that manufacture or sell products within the seven categories identified in the draft Work Plan will need to pay close attention to the pre- and then final rulemaking process.

Under the SCPR, DTSC is required to:
  • identify products that contain one or more of the nearly 1200 “candidate chemicals” that have been identified by DTSC based on the risk that they may present to the environment or human health,
  • prioritize those products for review under an “alternatives analysis” to assess whether there are safer alternatives to the chemicals presently in use, and then
  • consider a number of possible “regulatory responses” based on the results of the alternatives analysis, which at its most extreme includes the possibility of banning the sale of the product in California. 
DTSC’s initial list of proposed “priority products,” which is still in the rule-making process, includes:
  • Spray Polyurethane Foam (SPF) Systems containing unreacted diisocyanates,
  • Children’s Foam Padded Sleeping Products containing Tris(1,3-dichloro-2-propyl) phosphate (TDCPP), and
  • Paint and Varnish Strippers with methylene chloride.
The seven broader categories of products that DTSC will review as part of the three-year Work Plan are:
  • Beauty, Personal Care and Hygiene Products (body wash and soaps, cosmetics, nail and hair care products, lotions, etc.),
  • Building Products—limited to paints, adhesives, sealants, flooring,
  • Household, Office Furniture and Furnishings—limited to those treated with flame retardants and/or stain resistant chemicals,
  • Cleaning Products,
  • Clothing,
  • Fishing and Angling Equipment, and
  • Office Machinery—e.g., printer inks, specialty paper, toner cartridges.
The Work Plan can be downloaded here. DTSC is holding preliminary Work Shops on September 25 in Sacramento, and September 29 in Cypress. Comments on the draft Work Plan are due by October 13, 2014, although DTSC acknowledges that implementation of the SCPR, and in particular selection of priority products, will be a long process, and that significant input from all stakeholders will be critical. 

-- Josh Bloom and Chris Jensen

For more information, please contact Josh Bloom at (415) 228-5406 or jab@bcltlaw.com; Chris Jensen at (415) 228-5411 or cdj@bcltlaw.com; or Samir Abdelnour at (415) 228-5443 or sja@bcltlaw.com.

Friday, September 5, 2014

Historic Bills Designed To Sustainably Manage California’s Groundwater Head To Governor

Last Friday, the California Legislature passed three bills that provide for the regulation of groundwater for the first time in the state’s history. Once signed by Gov. Jerry Brown, the bills—currently known as AB 1739 (Dickinson), SB 1168 (Pavley), and SB 1319 (Pavley)—will collectively constitute the Sustainable Groundwater Management Act (the “Act”). The Act will establish as state policy that California’s groundwater resources are to be “managed sustainably for long-term reliability and multiple economic, social and environmental benefits for current and future beneficial uses.” To effectuate this policy, the Act creates a framework for sustainable groundwater management that will be implemented at the local or regional level, but provides the state authority to act as a backstop.

Under the Act, the Department of Water Resources (the “Department”) must categorize each groundwater basin as high-, medium-, low- or very low-priority by January 1, 2015. According to the Department’s website, there are currently 431 groundwater basins delineated within California. By June 1, 2016, the Department must adopt regulations for identifying the components of groundwater sustainability plans and for evaluating those plans and their implementation.

Local and regional agencies with authority over “high-priority” or “medium-priority” basins will be required to develop and implement groundwater sustainability plans, or, in the alternative, demonstrate existing sustainable management pursuant to an adjudicated action. High- or medium-priority basins that are “subject to critical conditions of overdraft” must be managed under groundwater sustainability plans by January 1, 2020, with all remaining high- or medium-priority basins subject to sustainability plans by January 1, 2022. If a local or regional agency fails to adopt an adequate groundwater sustainability plan for a specified basin, the California State Water Resources Control Board will have the authority to develop an interim plan until the local or regional agency is prepared to assume management of the basin.

Among other provisions, the Act will also authorize groundwater sustainability agencies to impose fees to fund costs of their sustainability programs; require registration of groundwater extraction facilities and regulate extractions therefrom; and obtain inspection warrants and conduct inspections of facilities to determine compliance with a management plan.

The implications of this groundbreaking legislation, which Gov. Brown is expected to sign into law, will be far-reaching for California’s groundwater users.

- Estie Kus, Samir Abdelnour, Dave Metres

For more information, contact Estie Kus at emk@bcltlaw.com or (415) 228-5463; Samir Abdelnour at sja@bcltlaw.com or (415) 228-5443; or Dave Metres at dmm@bcltlaw.com or (415) 228-5488.

Thursday, August 21, 2014

Ninth Circuit Rejects Environmental Groups’ RCRA Claims Against Railyard Operators

The Ninth Circuit has affirmed the dismissal of claims by environmental groups attempting to characterize air emissions from California railyards as “disposal” of waste under the Resource Conservation and Recovery Act (RCRA). 

In 2011, a coalition of environmental groups led by the NRDC filed a complaint in federal district court in Los Angeles alleging that particulate emissions associated with diesel locomotives at railyards in San Bernardino and Riverside Counties violated RCRA because those emissions constitute “disposal” of waste, and are therefore subject to the statute, which governs the disposal of solid and hazardous waste. The district court dismissed the plaintiffs’ complaint, concluding that the Clean Air Act, and not RCRA, applies to the emissions from the railyards.

The Ninth Circuit affirmed the district court’s dismissal in an opinion dated August 20, 2014. The court’s opinion cited the plain meaning of the RCRA statute—which excludes “emitting” from its definition of “disposal”—as well as the statute’s legislative history, which the court characterized as demonstrating an intent “to reduce the volume of waste that ends up in our nation's landfills.”

In reaching this conclusion, the court rejected the plaintiffs’ invitation to fill a “gap” in the statutory scheme for regulating air emissions from railyards, concluding that the particular emissions alleged to originate from the railyards are “indirect sources” of air pollutants that “fall entirely outside the ambit of federal regulation.”  The court did, however, note that diesel locomotives are regulated under EPA regulations implementing the 1990 amendments to the Clean Air Act, and that states may regulate indirect sources such as railyards through provisions of State Implementation Plans (SIPs) adopted under the Clean Air Act. 

The Ninth Circuit’s decision, Center for Community Action and Environmental Justice et al. v. BNSF Railway Co. et al., Case No. 12-56086, is available here.

-- Chris Jensen

For more information, contact Chris Jensen at (415) 228-5411 or cdj@bcltlaw.com.