Tuesday, December 9, 2014

US EPA Appears to Put TSCA Fracking Rule On Ice

A November 2014 report on anticipated regulatory actions by the US Environmental Protection Agency (“EPA”) indicates that development of a potential rule requiring manufacturers and processors of fracking chemicals to report chemical data, including health and safety studies, is a low priority and is unlikely to be pursued by EPA in the short-term.

In 2011, a coalition of environmental groups petitioned EPA to promulgate a rule specific to fracking chemicals and mixtures used in oil and gas exploration and production. The petition asked the agency to regulate fracking chemicals pursuant to its authority under the Toxic Substances Control Act (“TSCA”).

More specifically, the petition asked EPA to adopt a rule:
  • Requiring, pursuant to Section 4 of TSCA, that manufacturers and distributors of fracking chemicals conduct toxicity testing and make those testing results available to the public; and
  • Imposing, pursuant to Section 8 of TSCA, recordkeeping and reporting requirements for fracking chemicals used in oil and gas exploration and production.
Shortly after receiving the petition, EPA concluded that the petitioners failed to “set forth sufficient facts” to support the request for a rule pursuant to Section 4 of TSCA. EPA further explained the basis for rejecting the request for a Section 4 rulemaking in a July 11, 2013, Federal Register notice (78 FR 41,768). In the same notice, EPA announced its intent to proceed with the publication of an Advance Notice of Proposed Rulemaking (“ANPR”) as a first step in evaluating the petitioners’ request that EPA adopt recordkeeping and reporting requirements for fracking chemicals pursuant to EPA’s authority provided by Section 8 of TSCA.

EPA published its ANPR addressing the potential regulation of fracking chemicals in May 2014 (79 FR 28,664). According to EPA, the purpose of the ANPR was to “initiat[e] a public participation process to seek comment on the information that should be reported or disclosed for hydraulic fracturing chemical substances and mixtures and the mechanism for obtaining this information.” The public comment period for the ANPR was extended by EPA and closed in September of this year. Nearly 2,500 public comments on the ANPR were received by EPA and have been placed into the administrative record.

If EPA chooses to proceed with a rulemaking, the Agency’s next steps would entail: (i) reviewing the ANPR public comments; (ii) developing a specific proposed rule to address fracking chemicals pursuant to EPA’s authority under Section 8 of TSCA; and (iii) publishing the proposed rule in the Federal Register for public comment.

On November 21, 2014, EPA published its semi-annual Regulatory Plan, which highlights priority areas for regulatory development. The TSCA rulemaking for fracking chemicals was not included as a priority in the Regulatory Plan. EPA’s summary of the status of a potential rulemaking, instead, provides the following information:
  • EPA placed the potential rulemaking into its “long-term action” category. In submitting regulatory plans, agencies generally categorize actions into one of five stages: pre-rule, proposed rule, final rule, completed action, or long-term action. It is generally accepted that EPA lists rules in the long-term action category when it does not expect to take any significant steps to advance a potential rule over the next twelve months, and thus considers the rule to be a lower priority in the short-term.
  • EPA indicates that the “Next Action [is] Undetermined” for the potential rulemaking, states that no legal deadlines apply to a potential rulemaking, and provides no specific date for future agency action on a potential rule.
  • EPA classifies a potential rulemaking as “Other Significant,” which applies to those regulations that are considered by EPA to have a “substantial impact on the public interest,” but are not “Economically Significant,” i.e., do not have an annual effect of at least $100 million.
It appears unlikely, therefore, that EPA will publish a proposed rule to impose recordkeeping and reporting requirements for fracking on the oil and gas industry anytime in 2015. In the meantime, a number of states -- including, recently, California and Colorado -- have adopted recordkeeping, reporting, and/or public disclosures requirements related to fracking operations. For the time being, therefore, it appears that States, and not EPA, will take the lead in regulating chemical usage related to fracking operations.

Although EPA has put the brakes on proposing a TSCA rule applicable to fracking chemicals, EPA will continue to evaluate fracking. The Agency, for example, is proceeding with a comprehensive study originally announced in March 2010 that is intended to “better understand any potential impacts of hydraulic fracturing for oil and gas on drinking water resources.”  According to EPA, “work is underway” to prepare a draft report for public comment and peer review. Further information on the status of that study, which was requested by Congress via a fiscal year 2010 Appropriations Committee Conference Report, is available by clicking here.
--Tom Boer

For more information, contact Tom Boer at jtb@bcltlaw.com, or (415) 228-5413.

Thursday, December 4, 2014

DTSC’s Lien Procedure Found to Violate Due Process

In Van Horn v. Department of Toxic Substances Control (“DTSC”), a California Court of Appeal found that DTSC’s procedure for imposing liens on property under the California “Superfund” law violates due process of law. Specifically, the court noted that DTSC’s procedure fails to allow an affected landowner to dispute the amount of a lien, the extent of property burdened by the lien, and the characterization of the landowner as a responsible party.

Applying a seminal decision on due process hearing requirements, Mathews v. Eldridge, 424 U.S. 319 (1976), the court ruled that plaintiff Marilyn Van Horn (“Plaintiff’) could state a cause of action for violation of due process, and reversed in part the lower court’s decision to sustain DTSC’s demurrer without leave to amend.

Section 25365.6 of the Carpenter-Presley-Tanner Hazardous Substance Account Act (“HSAA”) permits DTSC to impose liens on real property owned by responsible parties for costs incurred by DTSC in connection with environmental removal and remedial actions. The HSAA, however, requires that DTSC follow adequate due process when imposing such liens. To effectuate section 25365.6 of the HSAA, DTSC established a “Lien Placement Policy and Procedure” (“Lien Policy”) which authorizes lien placement if a hearing officer determines that the lien is consistent with five statutory elements. These five statutory elements examine whether:
  • the property owner was sent notice of liability by mail;
  • the property is owned by a person who is liable to DTSC for costs related to the property;
  • the property was subject to or affected by a removal or remedial action;
  • DTSC has incurred costs with respect to an action under the HSAA or CERCLA; and
  • the record contains any other information which is sufficient to show that the lien notice should not be filed.
Plaintiff owned a multi-parcel 64-acre property, which included an 11-acre portion containing arsenopyrite mine tailings. In 1998, DTSC constructed a fence around the property and posted a lien for $245,306.64. In 2007, DTSC made an “imminent or substantial endangerment assessment” concerning the property. After twice inspecting the property, DTSC advised Plaintiff in 2011 that it intended to increase its lien from $245,306.64 to $833,368.19 and notified Plaintiff of her right to a hearing.
Plaintiff requested a hearing on the following issues: (1) the propriety of the lien increase; (2) the amount of the lien increase; (3) the properties to be covered by the proposed lien; and (4) the information obtained by DTSC justifying the work it performed. In response, the hearing officer found that the lien increase was consistent with the five elements set forth in the Lien Policy, but indicated that the hearing was not intended to, and did not, take into account issues raised by Plaintiff outside of the five elements.
In holding that the implementation of the Lien Policy violated due process, the court applied the threefold due process inquiry set forth in Mathews v. Eldridge. That inquiry requires a court to balance: (1) the private interest affected by an official action; (2) the risk of an erroneous deprivation and the probable value of additional safeguards; and (3) the government’s interest.
In applying Mathews, the court found private property interests were significantly affected by DTSC’s Lien Policy, noting potential clouding of title, impaired alienability of property, tainted credit ratings, and financing problems. The court also found a high risk of erroneous deprivation, and significant value of additional safeguards. In analyzing the government’s interest, the court found that providing the impacted landowner a meaningful opportunity to dispute the lien was not unduly burdensome in either fiscal or administrative terms.
Based on the Mathews inquiry, the court concluded that DTSC’s procedure violated due process by failing to allow the affected landowner to dispute: (1) the amount of the lien or the lien increase; (2) the extent of the property burdened by the lien or the lien increase; and (3) the characterization of the landowner as a responsible party rather than an innocent landowner. As a result, the court reversed the judgment of dismissal and directed the trial court to issue a writ of mandate requiring DTSC to remove the lien increase, and/or hold a hearing at which Plaintiff would be allowed to challenge the amount of the lien increase and the properties subjected to the lien.
Interestingly, the court noted that a similar lien provision in CERCLA was found unconstitutional in Reardon v. United States, 947 F.2d 1509, 1518 (1st Cir. 1991). Thus, this case, like Reardon, reflects the willingness of courts to reject  hearing procedures established by environmental regulatory agencies that do not adequately protect the private property rights of owners.
For more information, contact Stephen C. Lewis at (415) 228-5480 or scl@bcltlaw.com, or Sherry E. Jackman at (415) 228-5412, or sej@bcltlaw.com.

Monday, December 1, 2014

CEQA Alert: Court of Appeal Rules Against San Diego Agencies in Two Separate CEQA Challenges Involving Greenhouse Gas Emissions Reduction Planning Documents

Two recent decisions by California’s Fourth Appellate District highlight the CEQA compliance challenges facing local governments charged with implementing state and local greenhouse gas (GHG) emissions reduction mandates.

Cleveland National Forest Foundation et al. v. San Diego Association of Governments et al.  (November 24, 2014, 4th DCA Case No. D063288) involved a challenge to the program Environmental Impact Report (EIR) prepared by the San Diego Association of Governments (SANDAG) for its 2050 Regional Transportation Plan/Sustainable Communities Strategy (RTP/SCS). The Sustainable Communities and Climate Protection Act of 2008 (SB 375) requires Metropolitan Planning Organizations such as SANDAG to prepare “sustainable communities strategies” as part of their transportation plans, outlining how the region will meet GHG emissions reduction targets established by the California Air Resources Board. SANDAG’s RTP/SCS was the first sustainable communities strategy adopted in the state pursuant to SB 375.

Two of the three justices on the appellate panel concluded that the EIR for the RTP/SCS was deficient in every way alleged by the petitioners challenging the document – including with respect to a number of issues that the trial court did not even address. Most importantly, the justices held that the EIR’s failure to analyze the inconsistency between the RTP/SCS and Executive Order S-3-05 – the precursor to the California Global Warming Solutions Act of 2006 (AB 32) and SB 375 – rendered the EIR inadequate as an informational document under CEQA. Specifically, although Executive Order S-3-05 called for a continuing decrease in the state’s greenhouse gas emissions after 2020, the RTP/SCS acknowledges that implementation of the plan would result in increased regional emissions after 2020.

SANDAG argued that the EIR’s greenhouse gas emissions analysis complied with CEQA because the agency utilized the significance thresholds specified in CEQA Guidelines section 15064.4(b) to evaluate those impacts. Section 15064.4(b) provides: “A lead agency should consider the following factors, among others, when assessing the significance of impacts from greenhouse gas emissions on the environment: (1) The extent to which the project may increase or reduce greenhouse gas emissions as compared to the existing environmental setting; (2) Whether the project emissions exceed a threshold of significance that the lead agency determines applies to the project [; and] (3) The extent to which the project complies with regulations or requirements adopted to implement a statewide, regional, or local plan for the reduction or mitigation of greenhouse gas emissions. Such requirements must be adopted by the relevant public agency through a public review process and must reduce or mitigate the project’s incremental contribution of greenhouse gas emissions. If there is substantial evidence that the possible effects of a particular project are still cumulatively considerable notwithstanding compliance with the adopted regulations or requirements, an EIR must be prepared for the project.”

According to the Court, although a lead agency generally has discretion to select which significance thresholds it will utilize to evaluate impacts under CEQA, its reliance on the significance thresholds specifically identified in Section 15064.4(b) for GHG emissions impact analysis may not be enough. In this case, the Court determined that SANDAG was obligated to consider the consistency of the RTP/SCS with Executive Order S-3-05 as part of its impact analysis, despite the absence of any such requirement in the Guidelines. “Consequently, the use of the Guideline’s thresholds does not necessarily equate to compliance with CEQA, particularly where, as here, the failure to consider the transportation plan’s consistency with the state climate policy of ongoing emissions reductions reflected in the Executive Order frustrates the state climate policy and renders the EIR fundamentally misleading.”

The Court also held that the EIR was deficient because it omitted discussion of feasible mitigation measures that could substantially lessen the RTP/SCS’s significant GHG impacts, and because it did not include any alternative that could significantly reduce total vehicle miles traveled.

Justice Benke penned a strong dissent, which asserts that the decision reflects an improper intrusion into the discretion of lead agencies trying to implement the requirements of SB 375: “This insinuation of judicial power into the environmental planning process and usurping of legislative prerogative is breathtaking.” 

If this decision stands, lead agencies across the state will face significant uncertainty as to the proper analysis of GHG emissions under CEQA – which is exactly the uncertainty that Guidelines section 15064.4 was intended to resolve.

A second case, Sierra Club v. County of San Diego (Filed October 29, 2014; Certified for Publication November 25, 2014; 4th DCA Case No. D064243), arose from the County’s attempt to implement a mitigation measure adopted as part of its 2011 general plan update. The program EIR adopted for that update included “Climate Change Mitigation Measure CC-1.2,” which required the County to prepare a “climate action plan” (CAP) that would include detailed GHG emissions reduction targets and deadlines and “comprehensive and enforceable GHG emissions reductions measures that [would] achieve” specified GHG reductions by 2020. In 2012, the County adopted a CAP along with guidelines for determining the significance of GHG emissions (“CAP and Thresholds” project). The County prepared an addendum to the program EIR regarding the CAP and Thresholds project and then adopted the project with no further environmental review. The Sierra Club filed suit, alleging that the CAP did not meet the requirements of Mitigation Measure CC-1.2 and that an EIR should have been prepared for the CAP and Thresholds project.

The Court of Appeal held that the County violated CEQA when it approved the CAP and Thresholds project because: (i) the CAP failed to comply with the requirements of Mitigation Measure CC-1-2, as it did not include enforceable GHG emissions reductions requirements and contained no detailed deadlines for reducing GHG emissions; (ii) the County failed to make requisite findings regarding the environmental  impacts of the CAP and Thresholds project and made the erroneous assumption that the project was the same as the project analyzed in the 2011 program EIR; (iii) the County failed to incorporate mitigation measures in the CAP, which is a plan-level document under CEQA that requires such measures; and (iv) substantial evidence supported a fair argument that the County should have prepared an EIR for the CAP and Thresholds project.

These two appellate decisions illustrate how attempts by local government to address GHG emissions in the CEQA context face significant hurdles, as the legal framework continues to evolve.

--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, November 24, 2014

Fracking Preemption Fight to Play Out in San Benito County

It appears that San Benito County will be the venue for the much-anticipated legal battle over whether local jurisdictions in California can ban hydraulic fracturing. In early November, San Benito County passed a voter-sponsored initiative banning fracking and related practices on a county-wide basis. Mendocino County also passed a ban, while a similar ordinance in Santa Barbara was soundly defeated.
On November 24, Citadel Exploration filed an administrative claim against the County seeking $1.2 billion in alleged damages caused by the ban, apparently based on the estimated 20-40 million barrels of oil Citadel says it could have extracted in the area over the next several decades. The claim is a prerequisite to a lawsuit against the County. County Supervisors have scheduled a press conference for Tuesday morning, November 25 at 9:30 a.m. to address the claim.

Whether local jurisdictions can ban fracking outright is not a simple question. It’s clear that the State Department of Oil, Gas, and Geothermal Resources (DOGGR) has exclusive authority to regulate subsurface activities relating to oil and gas extraction, and DOGGR takes the position that this authority extends to ancillary extraction activities on the surface.

Consistent with DOGGR’s position, the oil industry is expected to argue that: (1) a County-wide ban is not a proper exercise of police power, and (2) local fracking bans are preempted by the state’s passage of Senate Bill 4 and its comprehensive state regulatory scheme governing all aspects of hydraulic fracturing.

--Kathryn Oehlschlager

For more information, contact Kathryn Oehlschlager at (415) 228-5458 or klo@bcltlaw.com.

Tuesday, November 11, 2014

Utah Federal Judge: ESA Rule Is Unconstitutional

In a ruling that, if upheld and followed, would significantly limit the reach of federal environmental regulation, a Utah federal judge determined that regulation of a purely intrastate species listed as threatened under the Endangered Species Act is unconstitutional because it is beyond the scope of the Commerce Clause and the Necessary and Proper Clause. People for the Ethical Treatment of Property Owners v. U.S. Fish & Wildlife Serv., No. 2:13-cv-00278-DB (D. Utah Nov. 4, 2014) (“PETPO”).

Under section 4(d) of the Endangered Species Act (“ESA”), the government may add certain protections for threatened species, essentially providing the same protections afforded to endangered species under the Act. At issue in the PETPO case was whether the U.S. Fish & Wildlife Service may implement section 4(d) protections for the Utah prairie dog, which is listed as threatened under the ESA but is found solely within Utah’s borders.

No Substantial Effect on Interstate Commerce

The government conceded that the Utah prairie dog is a purely intrastate species, residing only in Utah, but nonetheless pointed to a long line of circuit court decisions that upheld regulation of intrastate species on Commerce Clause grounds. In those cases, the courts looked to the effect of the species in question on interstate commerce.

The court in PETPO broke rank, holding that it is the regulated activity—in this case the take of the species—that must be the touchstone for the interstate commerce effects. On that basis, the court ruled that the “substantial effects” test should not focus on the section 4(d) special rule’s effect on interstate commerce, but on the effect on interstate commerce caused by take of the Utah prairie dog. PETPO, at *16.

In reaching his conclusion, Judge Dee Benson determined that the species’ biological value was “inconsequential” to this determination. Id. at *11. Although conceding that the Utah prairie dog may have an effect on the ecosystem, Judge Benson, quoting Judge David Sentelle of the Court of Appeals for the District of Columbia Circuit, noted that the Commerce Clause “empowers Congress ‘to regulate commerce’ not ecosystems.” Id. at *12 (quoting National Ass’n of Home Builders v. Babbitt, 327 U.S. App. D.C. 248, 272 (D.C. Cir. 1997) (Sentelle, J., dissenting)).

The Court went on, stating that any purported commercial value of the Utah prairie dog is “too attenuated to support the premise that take of the prairie dog would have a substantial effect on interstate commerce.” Id. Similarly, the court concluded that related scientific research was also too attenuated to establish a “substantial relation between the take of the Utah prairie dog and interstate commerce.” Id.

Not Necessary and Proper to Achieve Congress’ Goal

The court also rejected the government’s argument that the Necessary and Proper Clause authorizes rule 4(d) because the rule is essential to the economic scheme created by the ESA. The court acknowledged that the ESA regulates economic activity, but held that rule 4(d) “is not necessary to the statute’s economic scheme.” PETPO, at *15. The court reasoned that “takes of Utah prairie dogs on non-federal land—even to the point of extinction—would not substantially affect the national market for any commodity regulated by the ESA.” PETPO, at *14. The court dismissed out of hand any substantial effects on national markets based on the fact that other interstate species, such as bobcats, golden eagles, and hawks, prey on the prairie dog.

Further, the court rejected the government’s argument that the take of all intrastate non-commercial species could be aggregated to satisfy the Necessary and Proper Clause, finding that aggregate take of different species did not apply to its consideration of the constitutionality of a special rule affecting only one species. On these bases, the court ruled that striking down the special rule would not undercut the ESA’s comprehensive regulatory system and was therefore not justified by the Necessary and Proper Clause.

Ruling Poised for Appeal

Given the litany of federal appeals court cases holding that regulation of purely intrastate species is within Congress’ constitutional authority, and in view of some of the reasoning put forth by the court and the potentially far-reaching implications of the decision, it would appear likely that the government will choose to appeal. See San Luis & Delta-Mendota Water Authority v. Salazar, 638 F.3d 1163 (9th Cir. 2011) (applying ESA to Delta smelt living only in California); Alabama-Tombigbee Rivers Coalition v. Kempthorne, 477 F.3d 1250 (11th Cir. 2007) (Alabama sturgeon living only in Alabama); Rancho Viejo, LLC v. Norton, 323 F.3d 1062, 1069 (D.C. Cir. 2003) (arroyo toad living only in California); GDF Realty Investments, Ltd. v. Norton, 326 F.3d 622 (5th Cir. 2003) (six species of subterranean, cave-dwelling invertebrate spiders and beetles living only in Texas); Gibbs v. Babbitt, 214 F.3d 483 (4th Cir. 2000) (red wolf living only in North Carolina); Nat’l Ass’n of Home Builders v. Babbitt, 130 F.3d 1041 (D.C. Cir. 1997) (Delhi Sands flower-loving fly living only in California).  

However, and notwithstanding the array of appellate rulings to the contrary, it is noteworthy that the district court’s reasoning in PETPO is not dissimilar to the view that then-Judge John Roberts, when serving on the D.C. Circuit, articulated in his dissent of a denial of rehearing en banc in Rancho Viejo, LLC v. Norton, 323 F.3d 1062, 1071-73 (D.C. Cir.2003). In that dissent, then-Judge Roberts stated that “[t]he panel’s opinion in effect asks whether the challenged regulation substantially affects interstate commerce, rather than whether the regulated activity does so. Thus, the panel sustains the application of the [Endangered Species] Act in this case because Rancho Viejo’s commercial development constitutes interstate commerce and the regulation impinges on that development, not because the incidental taking of arroyo toads can be said to be interstate commerce.” Id. (emphasis in original).

Whether Judge Benson’s reasoning may have some traction with the Tenth Circuit or the U.S. Supreme Court remains to be seen.

-- Josh Bloom and Dave Metres

For more information, contact Josh Bloom at (415) 228-5406, jab@bcltlaw.com, or Dave Metres at (415) 228-5488, dmm@bcltlaw.com.

Tuesday, October 21, 2014

Environmental Groups Seek to Derail Bakersfield Crude-by-Rail Project

A coalition of environmental groups has filed a lawsuit challenging Kern County’s approval of the first substantial oil-by-rail expansion project at a California refinery, alleging that the comprehensive Environmental Impact Report (EIR) prepared for the project is inadequate under the California Environmental Quality Act (CEQA). This appears to be the next front in the ongoing battle over crude-by-rail, as refineries across California seek to expand rail transportation in order to improve access to new crude oil sources in the United States and Canada.

In addition to allowing rail delivery of oil at Alon USA Energy’s Bakersfield refinery, the project will expand capacity and allow upgrades to several units at the refinery to enable processing of light crude, including output from Texas and North Dakota's Bakken shale, as well as equipment to offload undiluted Canadian bitumen. The facility has been shuttered since 2008.

The Kern County Board of Supervisors approved the project at a September 9 hearing over the objections of environmental groups and some members of the community, who—despite the County’s preparation of thousands of pages of environmental documentation—claimed the CEQA analysis for the project was inadequate. While project opponents raised concerns about the safety of transporting oil by rail and potential air impacts of the project, other residents, unions, and economic development leaders support the project and expressed their satisfaction with planned safety measures.

In their suit challenging the project, a coalition of environmental groups, including the Sierra Club, the Center for Biological Diversity, and the Association of Irritated Residents, claim that the EIR for the project failed to adequately analyze and mitigate the project’s adverse environmental impacts. Specifically, they allege that the EIR employed an improper baseline, failed to sufficiently describe the proposed project, and failed to fully analyze and mitigate a wide variety of impacts associated with oil storage and processing.

The challenge to the Alon project follows an April 2014 lawsuit, also relying on CEQA, where environmental groups sought to block the shipment of oil by rail to a Kinder Morgan facility in Richmond, California. That lawsuit was later dismissed as untimely.

The challenge to the Alon project, Association of Irritated Residents et al. v. Kern County Board of Supervisors, is pending in Kern County Superior Court (Case No. S-1500-CV-283166).

--Kathryn Oehlschlager and Chris Jensen

For more information, contact Kathryn Oehlschlager at (415) 228-5458 or klo@bcltlaw.com, or Chris Jensen at (415) 228-5411 or cdj@bcltlaw.com

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.