ELG wins a Writ of Administrative Mandate for client in Marin County

Posted by in Administrative Law, CEQA, Environmental Legislation and Regulation on October 7, 2016

On September 19, 2016, Marin Superior Court Judge Paul M. Haakenson granted judgment in favor of ELG’s client, the Point San Pedro Road Coalition (“Coalition”), on its Petition for a Writ of Administrative Mandate (“Petition”).  (See decision here.)  ELG filed the Petition on behalf of the Coalition in 2015 to vacate the Marin County (“County”) Board of Supervisor’s September 15, 2015 decision, by a unanimous 5-0 vote, to approve the permit amendment sought by the San Rafael Rock Quarry (“Quarry”) to allow it to import used asphalt for recycling. That exact activity previously had been found to be outside the Quarry’s vested rights by Marin County Superior Court Judge John Sutro Jr. in 2004, after a 2003 trial conducted by ELG on behalf of Coalition. The Quarry is a non-conforming use on its own property, the result of a re-zoning obtained by a prior owner of the Quarry in 1982 in anticipation of the closing of the Quarry, an event the current owner has delayed.

ELG argued, both in a previous Petition filed in 2013, and again in its 2015 Petition (when the permit amendment was re-approved by the County), that the County’s approval of the quarrying permit amendment was: 1) a violation of Judge Sutro’s prior injunction against that precise activity, 2) contrary to the Quarry’s own acknowledgement at the 2003 trial that it had no vested right to conduct that activity, and 3) an approval of the expansion of a non-conforming use in violation of the County’s zoning regulations. Relying on all three legal grounds asserted by ELG for the Coalition, the Court agreed that the County’s approval of the permit amendment was contrary to law. Judge Haakenson’s decision states that the Court will issue a writ of administrative mandate ordering the County to immediately vacate its approval of the Quarry’s Permit amendment request.

ELG also represented the Coalition in the 2003 trial to determine the Quarry’s vested rights on its legal, non-conforming use property, and throughout the CEQA environmental review process concerning the amended quarrying permit imposed on the Quarry, which took place over six years following the conclusion of the trial.


DTSC Lists First Three Draft Priority Products Pursuant to Safer Consumer Products Regulations

Posted by in Green Chemistry on September 4, 2014

By Mary E. Wilke

In August 2013, after five years of joint effort among manufacturers, consumers, environmentalists, and the Department of Toxic Substances Control (DTSC), the Safer Consumer Products regulations (Regulations), previously known as the Green Chemistry Initiative regulations, were approved by the California Office of Administrative Law and went into effect on October 1, 2013.  The regulations require manufacturers or other responsible entities to seek safer alternatives to certain chemical ingredients in widely used products. The DTSC describes the Regulations as “a preventive approach to keeping dangerous chemicals out of everyday products and giving consumers greater confidence that the products they buy ultimately will be safe.…For industry, these regulations will provide a more predictable process for ensuring product safety, and offer a competitive advantage for innovators who see an opportunity in the growing market for toxic-free or toxic-reduced products.”

The Regulations call for the DTSC to develop a list of chemicals that are candidates for elimination based on a variety of hazardous traits as determined by authoritative scientific organizations, and their history of exposure potential. The most recent candidate chemicals list can be found here. The DTSC must then develop a group of product types, known as “priority products,” containing at least one of those chemicals. When a candidate chemical is a basis for a product being listed as a “priority product” it becomes designated as a “chemical of concern.” Once the priority products are identified, manufacturers of the products will have to conduct an “alternatives analysis” for the product and the chemicals of concern in the product to determine how best to limit exposures to, or the level of adverse public health and environmental impacts posed by, the chemicals of concern in the product. The alternatives analysis requires manufacturers to answer two questions: (1) is this chemical necessary; and (2) is there a safer alternative. If no other safer, nontoxic ingredient is feasible, the DTSC has the ability to apply one of several regulatory responses, ranging from product labeling to sales prohibition, which would reduce risk or phase out the chemical. The findings of each manufacturer’s alternatives analysis report will ultimately determine what regulatory response, if any, DTSC may impose.

In March 2014, the DTSC announced the first draft list of priority products to be evaluated under the Regulations. Three classes of product-chemical combinations were identified: (1) spray polyurethane foam systems containing unreacted diisocyanates; (2) children’s foam padding sleeping products containing the flame retardants Tris (1,3-dichloro-2-propyl) phosphate or TDCPP; and (3) paint and varnish strippers, and industrial-strength surface cleaners containing methylene chloride. Despite identification of the first priority products, manufacturers of these products are not yet required to conduct alternatives analyses. It is not until the draft list of priority products is finalized by DTSC and adopted into regulation that manufacturers have to notify DTSC and begin the alternatives analysis process. The adoption into regulation is done in conformance with California’s rulemaking law – the Administrative Procedure Act (APA). The APA process includes a 45-day public notice and comment period and allows DTSC up to one year from the public notice date to finalize the regulations. The March 2014 announcement is not the start of the formal rulemaking for the three listed priority products. DTSC indicates that it expects to initiate rulemaking to codify the initial priority products list into regulations in late 2014 and that this could take up to a year. DTSC updates the status of the rulemaking for these three initial priority products and any future identified priority products here.

Supreme Court Finds Federal Law Preempts Agreements Between Trucking Companies and the Port of Los Angeles

Posted by in Environmental Litigation on October 8, 2013

On June 13, 2013, in American Trucking Ass’n, Inc. v. City of Los Angeles, the United States Supreme Court held that the Federal Aviation Administration Authorization Act of 1994 (FAAAA) expressly preempts certain provisions of a  concession agreement (Agreement) that the Port of Los Angeles (Port) requires short-haul (drayage) trucking companies to enter.  The preempted provisions require truck companies to affix placards bearing a phone number for reporting concerns to each truck and to submit a plan for off-street truck parking when the trucks are not in service.  The Agreement also provides for penalties for any signatory trucking company that violates the Agreement.

The Port, a division of the City of Los Angeles, is the largest port in the country.  In late 1990, the City of Los Angeles, Board of Harbor Commissioners, proposed a port expansion.  Neighborhood and environmental groups opposed the expansion and filed suit to stop it, citing air pollution among their concerns.  In response, the Port created the Clean Truck Program.  Under the Clean Truck Program, the Port developed the Agreement and amended its tariff, a form of municipal ordinance, to prohibit terminal operators from permitting access into any Port terminals unless the trucking company has registered under the Agreement.  Terminal operators who violate the tariff are guilty of a misdemeanor and are subject to criminal penalties.

American Trucking Associations, Inc., (ATA) whose members include trucking companies servicing the Port, sued the Port and the City of Los Angeles seeking an injunction against the Agreement’s requirements.  The ATA contended that the Agreement requirements are expressly preempted by the FAAAA.

The Supreme Court found that the FAAAA expressly preempts the Agreement’s placards and parking requirements because section 14501(c)(1) of the FAAAA preempts a state “law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier . . . with respect to the transportation of property. “  The parties agreed that the Agreement’s requirements related to a motor carrier’s route and service and therefore the only disputed question at issue was whether the Agreement’s requirements had the “force and effect of law.”

The Supreme Court reasoned that the FAAAA’s “force and effect of law” language excludes from its scope contractual arrangements made by a State when it acts as a market participant, not as a regulator.  However, here, the Port had exercised regulatory authority in imposing the placard and parking requirements therefore these requirements were preempted by the FAAAA.  Although the Port argued that the concession agreements are the same as private agreements, regulatory authority was imposed since terminal operators, and trucking companies through them, were forced to alter their conduct due to a criminal prohibition as set forth in the Port’s tariff.  The Supreme Court indicated this was clearly an action having the “force and effect of law.”  Further, the Agreements clearly functioned as “part and parcel of a governmental program wielding coercive power over private parties, backed by the threat of criminal punishment.”  Private parties entering into similar agreements could not impose such criminal penalties.

ATA also argued that the Supreme Court’s holding in Castle v. Hayes Freight Lines, Inc., limits the way the Port can enforce the two other provisions of the Agreement that are in effect, financial-capacity and truck maintenance requirements, by not allowing the Port to rely on the Agreement’s penalty provisions to suspend or revoke trucking companies rights to operate on the premises.  “Castle puts limits on how a State or locality can punish an interstate motor carrier for prior violations of trucking regulations.”  However, the Supreme Court did not decide the ATA’s Castle-based challenge.  Because ATA’s claim was attacking the Port’s enforcement scheme and given the pre-enforcement posture of American Trucking Ass’n, the Supreme Court could not tell what the Port’s enforcement scheme entailed.  Therefore, the Supreme Court reasoned that it would not take a guess now about what the Port will do later.

The American Trucking Ass’n decision may have important consequences for port agencies and other municipal bodies that fall within the FAAAA’s purview and are struggling to address environmental concerns.  While agreements with other parties may be useful tools in reducing environmental impacts, they must not rise to the level of having the force and effect of law.

Deferred EIR Mitigation Measure Satisfies CEQA

Posted by in CEQA, Environmental Litigation on June 26, 2013

The California Court of Appeals held that an environmental impact report (“EIR”) which identified landscaping as a mitigation measure to the project’s visual impact satisfied the California Environmental Quality Act (“CEQA”).  The Court found that the EIR did not need to set forth the specific landscaping plan that would mitigate the impact.  Instead, the details of the mitigation could be deferred pending completion of a future study.

In North Coast Rivers Alliance v. Marin Municipal Water District Board of Directors (May 21, 2013), the Marin Municipal Water District planned to build a seawater desalination plant in Marin County (“Project”).  The District certified an EIR for the project and North Coast Rivers Alliance challenged the EIR for failure to adequately analyze adverse environmental consequences of the Project.

The trial court, citing Endangered Habitats League, Inc. v. County of Orange (2005) 131 Cal.App.4th 777, 794, held that the EIR was deficient because the EIR failed to commit to specific measures to mitigate the visual impacts of proposed water storage tanks.  Although the EIR indicated that the landscape plan would identify the location and types of trees and shrubs that would best mitigate the visual impact, the trial court found that the mitigation measure was indefinite and did not satisfy CEQA because it simply required a report to be prepared and followed.  The trial court also indicated that the mitigation measure was deficient because it established no guidelines or criteria to evaluate the adequacy of the landscaping plan and the plan’s goal to soften the visual impact was a vague metric that was difficult to quantify.

However, in cases challenging an agency’s compliance with CEQA, a Court reviews the agency’s action for a prejudicial abuse of discretion, not the trial court’s decision.  Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova, 40 Cal.4th 412, 426–427 (2007).  “Abuse of discretion is established if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence.”  Id.  Here, in the CEQA context, substantial evidence means “enough relevant information and reasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions might also be reached.” Cal. Code Regs., tit. 14, § 15384, subd. (a) (CEQA Guidelines).

As part of the Project, three water tanks to store desalinated water needed to be constructed.  The EIR indicated that two of the tanks would have a significant visual impact on the proposed location.  The EIR then identified, and the District adopted, a mitigation measure that requires the District to develop and implement a landscaping plan to shield the tanks from view.  The EIR mitigation measure indicated that the district would work with a landscape architect and the cities of San Rafael and Larkspur to develop a landscaping plan that would identify the location and types of planting that would soften the visual intrusion of the tanks and identify success metrics such as survival and growth rate for the plantings.

The Appellate Court found that the mitigation measure requiring a landscaping plan complied with CEQA.  The Court looked to CNPS v. Rancho Cordova and Sacramento Old City Assn. V. City Council which concluded “when a public agency has evaluated the potentially significant impacts of a project and has identified measures that will mitigate those impacts, the agency does not have to commit to any particular mitigation measure in the EIR, as long as it commits to mitigation of the significant impacts of the project.”  California Native Plant Society v. City of Rancho Cordova (2009) 172 Cal.App.4th 603, 621 (2009) citing Sacramento Old City Assn. v. City Council 229 Cal.App.3d 1011 (1991).  “The details of exactly how the mitigation will be achieved under the identified measure can be deferred pending completion of a further study.”  Id.   The Appellate Court stated, “although the specific details of how mitigation will be achieved under the landscaping plan is deferred until the construction phase, the EIR gives adequate assurance that visual impacts will be mitigated by the selection and location of appropriate plantings.”

Since the EIR evaluated the potentially significant visual impacts of the tanks, identified a landscaping plan with the goal of creating a visual screen to minimize the contrast between the tanks and the ridge top, and the District committed itself to implement, monitor, and maintain the landscaping, the Appellate Court concluded that the mitigation measure satisfied CEQA and was not improperly deferred.

EPA Releases Draft Vapor Intrusion Guidance

Posted by in Due Diligence, Environmental Legislation and Regulation on May 15, 2013

On April 11, 2013, the EPA released draft final vapor intrusion guidance (“Guidance”) for assessing and mitigating vapor intrusion pathways from subsurface sources to indoor air.  The Guidance presents EPA’s current recommendations for identifying and considering key factors when assessing vapor intrusion, making risk management decisions, and implementing mitigation measures pertaining to this potential human exposure pathway.  The Guidance addresses both residential and nonresidential buildings that may be impacted by vapor intrusion from subsurface contamination.  The Guidance applies to any site being evaluated by EPA pursuant to CERCLA or RCRA, EPA’s brownfield grantees, or state agencies with delegated authority to implement CERCLA or RCRA where vapor intrusion may be of potential concern.  For State lead sites, stakeholders still should consider the application of State guidance on vapor intrusion issues, such as the California Dept. of Toxic Substances’ “Guidance for the Evaluation and Mitigation of Subsurface Vapor Intrusion to Indoor Air” (Oct. 2011).

EPA defines vapor intrusion as follows: “certain hazardous chemicals that are released into the subsurface as liquids or solids may form hazardous gases (i.e., vapors) that migrate through the vadose zone and eventually enter buildings as a gas by migrating through cracks and gaps in basement floors and walls or foundations, including perforations due to utility conduits and any other openings (e.g., sump pits).”  “Vapor intrusion is the general term given to migration of hazardous vapors from any subsurface contaminant source, such as contaminated soil or groundwater, through the vadose zone and into indoor air.”  “Vapor intrusion can occur in a broad range of land use settings, including residential, commercial, and industrial, and affect buildings with virtually any foundation type (e.g., basement, crawl space(s), or slab on grade).”

Topics addressed in the Guidance include: (1) a conceptual modeling of vapor intrusion; (2) considerations for nonresidential buildings; (3) preliminary analysis of vapor intrusion; (4) detailed investigation of vapor intrusion; (5) setting a risk management framework; (6) building mitigation and subsurface remediation; (7) preemptive mitigation/early action; and (8) planning for community involvement.  Appendices to the Guidance include: a list of chemicals of potential concern for vapor intrusion; a list of generic attenuation factors used to develop screening levels; data quality assurance considerations; and a formula for calculating vapor source concentrations from groundwater data.

EPA recommends consideration of these Guidelines when making “current human exposures under control” environmental indicator determinations at RCRA corrective action facilities and National Priorities List sites under CERCLA;

when undertaking removal actions, remedial actions, pre-remedial investigations, remedial investigations, and five-year reviews under CERCLA; and when undertaking RCRA facility investigations and corrective actions and site investigations and cleanups at federal facilities and brownfield sites.

Along with its Guidance, EPA released additional guidance providing information and direction about how vapor intrusion should be assessed for petroleum hydrocarbons (“OUST Guidance”).  The OUST Guidance may be useful in informing decisions about vapor intrusion and petroleum hydrocarbons at brownfield sites.

EPA also issued a Vapor Intrusion Screening Level (“VISL”) Calculator which is a recommended spreadsheet that: identifies chemicals considered to be typically vapor-forming and known to pose a potential cancer risk or noncancer hazard through the inhalation pathway; provides generally recommended screening-level concentrations for groundwater, near-source soil gas (exterior to buildings), sub-slab soil gas, and indoor air based upon default residential or nonresidential exposure scenarios, a target cancer risk level of one per million, and a target hazard quotient of one for potential non-cancer effects; and facilitates calculation of site-specific screening levels based on user-defined target risk levels, exposure scenarios, and semi-site-specific attenuation factors.

EPA is accepting comments on the draft final Guidance until May 24th, 2013.  You can find the Guidance and OUST Guidance here.

New EPA Policy Re: Bona Fide Prospective Purchaser Benefits for Tenants

Posted by in CERCLA, Due Diligence, Environmental Legislation and Regulation on May 14, 2013

In December 2012, the Environmental Protection Agency (“EPA”) adopted a new policy setting forth the conditions on which the agency will consider providing CERCLA bona fide prospective purchaser (BFPP) protection to tenants who lease formerly or currently contaminated property.  Previously, such protections were only available to purchasers of such property.  Although the EPA will continue to use its enforcement discretion on a site-specific basis to the extent appropriate based on the facts regarding each property, this new policy provides tenants with guidance on how to qualify for these potential new protections.

Section 107(r)(1) of CERCLA provides statutory liability protection for certain owners or operators of property, called bona fide prospective purchasers or “BFPPs.” CERCLA § 107(r)(1) states: “Notwithstanding subsection (a)(1) of this section, a bona fide prospective purchaser whose potential liability for a release or threatened release is based solely on the purchaser’s being considered to be an owner or operator of a facility shall not be liable as long as the bona fide prospective purchaser does not impede the performance of a response action or natural resource restoration.”  CERCLA § 101(40) defines a BFPP as “a person (or a tenant of a person) that acquires ownership of a facility after [January 11, 2002]” and that establishes each of the following by a preponderance of the evidence: (A) “all disposal of hazardous substances at the facility occurred prior to acquisition; (B) the person made all appropriate inquiries (‘AAI’) into the previous ownership and uses of the facility; (C) the person provides all legally required notices with respect to the discovery or release of any hazardous substances at the facility; (D) the person takes reasonable steps with respect to hazardous substances found at the facility by taking reasonable steps to stop any continuing release, prevent any future threatened release; and prevent or limit human, environmental or natural resource exposure to any previously released hazardous substances;  (E) the person provides cooperation, assistance, and access to persons authorized to conduct response actions or natural resource restoration;  (F) the person complies with land use restrictions and institutional controls; (G) the person complies with information requests and administrative subpoenas; and (H) the person is not potentially liable, or affiliated with any other person that is potentially liable, for response costs at the facility through any direct or indirect familial relationship or any contractual, corporate or financial relationship or the result of a reorganization of a business entity that was potentially liable.

The new EPA policy document indicates that since CERCLA § 101(40) applies to a person, or a tenant of a person, that acquires ownership of a parcel after January 11, 2002, that a tenant may derive BFPP status from an owner who satisfies the BFPP criteria.  The tenant would therefore remain a BFPP as long as the owner maintained its BFPP status.  However, when a tenant derives BFPP status through an owner and the owner fails to maintain its BFPP status, the tenant would also lose its BFPP status.  If this occurs, EPA now indicates that it may exercise its enforcement discretion to continue to treat the tenant as a BFPP under CERCLA § 107(r)(1).  This would likely happen if the tenant continues to meet the BFPP requirements set forth in CERCLA § 101(40) and § 107(r)(1), despite the owner failing to do so.

Additionally, the new EPA policy provides that to qualify for BFPP status, a tenant is not required to conduct an AAI if an appropriate AAI already was conducted by the owner.  The tenant also would not be considered to be “affiliated” with the owner by EPA, despite the lease between them.

Where a tenant leases property from an owner who was never a BFPP, the EPA will again exercise its enforcement discretion on a site-specific basis to treat the tenant as a BFPP if the tenant can independently meet CERCLA’s BFPP requirements.   Since CERCLA § 101(40) indicates that a person must have acquired ownership of a facility after January 11, 2002 to qualify for BFPP liability protection, tenants whose lease agreements are executed after January 11, 2002 will be eligible for BFPP under the EPA’s discretion.

EPA explains that it may not exercise its enforcement discretion under certain circumstances such as where “the lease is designed to allow the landlord or tenant to avoid its CERCLA liability or the tenant is potentially liable for reasons other than its status as a tenant and if the owner is not in compliance with state or federal regulatory requirements or administrative or judicial cleanup order or decrees relating to the leased property.“  Lastly, EPA will usually not engage in a determination of a tenant’s BFPP status until an enforcement situation exists, so it appears that EPA will not issue “comfort letters” to prospective tenants or tenants who would like confirmation that they are entitled to BFPP status.

The Impacts of Sequestration Cuts on EPA Programs

Posted by in Administrative Law, Emerging Issues, NEPA on April 9, 2013

Sequestration budget cuts (“budget cuts”) went into effect on March 1, 2013.  These budget cuts required EPA to cut approximately $425 million from its $8.3 billion annual budget, or about 5%.  In a February 6, 2013 letter, Lisa Jackson, then-Administrator of the U.S. Environmental Protection Agency (“EPA”), identifies to Senator Barbara Mikulski (D-MD) the specific EPA programs to be affected by the budget cuts.  The programs where spending must be cut cover a range of environmental issues including air, enforcement and compliance, tribal, research and development, water, and state cleanup and waste programs.

The air programs identified by Ms. Jackson where spending will be cut are the Energy Star program, the vehicle certification program and the state air monitoring program.  Ms. Jackson indicates that the budget cuts “would reduce the funding EPA provides states to monitor air quality, likely forcing the shutdown of some critical air monitoring sites.”

The enforcement and compliance programs affected are civil and criminal enforcement of violations of environmental laws, National Environmental Policy Act environmental reviews and Superfund enforcement.  Ms. Jackson states “sequestration would cut work to press responsible parties to clean up contaminated sites in communities and restore clean up funds for use at other sites – putting the costs back on the American public.”

Budget cuts to EPA tribal programs will impact tribes by hindering tribal governments’ ability to ensure clean air and water for its members.

EPA research and development programs that will receive reduced funding are air, climate and energy programs, chemical safety for sustainability programs, sustainable and healthy communities, safe and sustainable water resources, human health risk assessment and homeland security research.  Ms. Jackson indicates “under sequestration the reduction in funding would impede EPA’s ability to assess and understand the effect of nanomaterials on human health and dispose of rare earth materials used in electronics, thereby limiting Innovation and manufacturing opportunities with these materials in the US. The reduction in funding for endocrine disrupting chemicals research would limit our nation’s ability to determine where and how susceptible people are exposed to endocrine disrupting chemicals, and to understand how these toxic exposures impact their health and welfare.”

The EPA water programs affected by the budget cuts are the state revolving fund program, water program state implementation grants, water program implementation and Superstorm Sandy appropriations.  Ms. Jackson states, “reductions under sequestration would limit assistance provided to states and tribes to ensure safe and clean water, including protecting children from exposure to lead in drinking water; protecting rivers and streams from industrial and municipal pollution discharges, identifying and developing cleanup plans for polluted waterways, and developing science to support human health and aquatic life.

Lastly, Ms. Jackson lists the EPA state cleanup and waste program cuts which include reduced site assessments and inspections and cuts in leaking underground storage tank grants resulting in fewer contaminated site cleanups.

DTSC Issues Ninth Draft of Proposed Green Chemistry Initiative Regulations

Posted by in Environmental Legislation and Regulation, Green Chemistry on March 12, 2013

By Clare Bienvenu and Mary E. Wilke

The California Department of Toxic Substances Control (“DTSC”) recently issued its ninth draft of the Green Chemistry Initiative regulations (“Regulations”) with the final rules expected later this year.  The following are six key changes set forth in the ninth draft: (1) companies are only required to make changes to ingredients included on DTSC’s list of chemicals of concern (“COC”); (2) companies are no longer required to hire a certified assessor to perform an Alternative Analysis (“AA”) but may conduct the AA themselves, while also undergoing a public notice and comment period; (3) companies from the same industry are allowed to form a nonprofit group to fund disposal of certain products as part of the end-of-life management program; (4) companies are allowed to assert “trade secret” protection over information required to be submitted; (5) the regulations will distinguish between companies that make products and those that assemble products, rather than define them all as manufacturers; and (6) an exemption is provided for products regulated by other laws that provide public health and environmental protections that are equivalent to the Green Chemistry Initiative or stricter.

With respect to the second key change, under the Regulations, Priority Products must undergo an AA, or an evaluation and comparison of the product to product alternatives.  Alternatives may include removing the COC from the product, replacing the COC with a substitute chemical, reformulating/redesigning the product to reduce or eliminate the COC, or using another material to restrict exposure to the COC.  Earlier versions of the Regulations allowed DTSC to make changes to any ingredients in their products instead of limiting DTSC’s authority to addressing ingredients on DTSC’s list of COCs.  The prior version of the Regulations also required that AAs be performed by certified assessors.  Under the latest revised version, while affected entities will be able to conduct their own AAs, those AAs must undergo a public notice and comment period of 45 days, with public comments to be sent directly to the company as well as DTSC.  In the Final AA Report, the company must summarize and address the public comments received.

With respect to the third key change, manufacturers of a Priority Product or a selected alternative that must be managed as a hazardous waste in California at the end of its useful life are required to establish “end-of-life” management programs for such products.  The new revisions allow manufacturers to join together to form and fund a non-profit third-party stewardship organization to fulfill the end-of-life management program requirements.  Under previous versions, each manufacturer was required to individually fund the program within one year of issuance of a notice of compliance for the Final AA Report.

With respect to the fourth key change, the newly revised Regulations allow companies to assert “trade secret” protection over information required to be submitted.  In doing so, the company must submit a complete copy of the documentation, including the information for which trade secret protection is claimed, and a redacted copy of that same documentation.  The revised Regulations, however, provides an exception to the submission of the complete copy where federal law or a nondisclosure agreement expressly prohibits the release of the information.  Additionally, while the regulations generally prohibit trade secret protection for hazard trait submissions, the new draft allows for companies to at least temporarily mask the precise identity of a chemical in the hazard trait submission if the chemical is an alternative considered in the AA and a patent application for the chemical or its use is pending.

With respect to the fifth key change, the Regulations now define manufacturer as “any person who manufactures a product that is subject to the requirements of this chapter, or any person that controls the manufacturing process for, or has the capacity to specify the use of chemicals in, such a product.”  The definition of manufacture has also been revised and now states that “manufacture does not include acts that meet the definition of ‘assemble.’”  Assemble is defined as to “fit, join, put, or otherwise bring together components to create a consumer product.”  If the manufacturer of a Priority Product component does not comply with applicable requirements, assemblers who use that component have the same option as retailers.  The assembler can comply with the requirement themselves or cease ordering the Priority Product component.

With respect to the sixth key change, an upfront exemption has been created for products regulated by other laws that provide public health and environmental protections that are equivalent to the Green Chemistry Initiative or stricter.

While it appears that the ninth draft of the regulations provides some relief to the regulatory burden imposed on companies who use targeted materials, with public comments recently closed, it will shortly be seen how the business and environmental communities receive these changes.  The answer may come in the form of final rules, as this draft of the regulations is believed to be DTSC’s last version prior to its issuance of the final rules.  DTSC has indicated that it will identify the first five Priority Product categories to which to apply these regulations, this year, with the likely categories being articles for personal care and for children/infants.

Denied CEQA Challenge Remanded for Failure to Attach Corrective Action Plan to Negative Declaration

Posted by in CEQA, Environmental Litigation on August 11, 2011

The California Fourth District Court of Appeal, in Citizens for a Responsible Equitable Environmental Development v. City of Chula Vista (June 10, 2011), remanded a lawsuit challenging the City of Chula Vista’s (“City”) decision to approve the construction of a Target store based on a mitigated negative declaration because the lead agency failed to attach the Corrective Action Plan (“CAP”) for the site to the negative declaration.  The Appellate Court held that the failure to attach the CAP makes it uncertain whether the construction of the store would cause further migration of the hazardous materials addressed by the CAP into groundwater.


Court of Appeal Requires Strict Compliance with CEQA 30-Day Public Notice Requirements

Posted by in CEQA, Emerging Issues, Environmental Legislation and Regulation on July 27, 2011

The California Court of Appeal, in Latinos Unidos De Napa v. City of Napa, 196 Cal. App. 4th 1154 (June 27, 2011), held that the City of Napa (“City”), which filed a CEQA Notice of Determination (“NOD”) with the County Clerk’s office, did not satisfy the 30-day posting and filing requirement when the notice was removed from the County Clerk’s office mid-day on the 30th day.  As a consequence, the plaintiff, an affordable housing advocate group, was allowed 180 days from the City’s approval of the project to challenge the CEQA NOD under Public Resources Code section 21167(a).

Public Resources Code section 21152(c) requires a County clerk to post the NOD “for a period of 30 days.”  The Court looked to Code of Civil Procedure section 12 for clarification on the timing requirement and determined that the “30-day” period excludes the first day of posting and includes the last day.  The Court clarified that “the NOD must be posted for the entire last (30th) day to satisfy the 30-day posting requirement.”  196 Cal. App. 4th at 1157-1158.  Since the City only posted the NOD for part of the 30th day, and not until the County Clerk’s office closed, the 30-day notice requirement was not met.  The City argued that because it filed the NOD with the County Clerk that action alone satisfied the 30-day posting and filing requirement of Public Resources Code section 21152, relying on CEQA Guidelines section 15094(g).  However, the Court of Appeals determined that CEQA Guidelines section 15094(g), like Public Resources Code section 21152, provides that a NOD must be both filed and posted, and thus rejected the City’s argument.