California Environmental Law & Policy Update - April 2019 #4

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New Proposition 65 regulation intended to assist residential rental property owners offers a mixed bag

■Allen Matkins - April 24

The California Office of Health Hazard Assessment (OEHHA), the agency charged with carrying out the Safe Drinking Water and Toxics Enforcement Act of 1986 (aka Proposition 65), recently finalized regulations which take effect on July 1, 2019, intended to help owners of residential rental properties (RRP) comply with any warning obligations to their tenants for any exposures to Proposition 65 listed chemicals. While the new regulations are intended to provide RRP owners with certainty and a "safe harbor" as to what they need to do, owners would be prudent to proceed with caution before availing themselves of these provisions.

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News

EPA proposes interim guidelines for remediation of PFOA and PFOS contamination in groundwater, eliminates recommendations for short-term response

■New York Times - April 25

On Thursday, the U.S. Environmental Protection Agency (EPA) released for public comment a revised interim guidance document addressing groundwater contaminated at federal cleanup sites with two per- and polyfluoroalkyl compounds known as PFOA and PFOS, which are found in numerous consumer products as well as fire-fighting foams heavily used in the past by the Defense Department. The guidance proposes a screening level of 40 parts per trillion (ppt) and a "preliminary remediation goal" of 70 ppt for groundwater unless there is a more stringent applicable or relevant and appropriate state or tribal standard. The remediation goal is equivalent to a health advisory level that EPA adopted in 2016. Missing from the guidance is a section, included in an earlier draft version, that would have established a numeric threshold of 400 ppt combined PFOA and PFOS for conducting removal actions – short-term actions that respond to immediate threats posed by hazardous waste sites. The new recommendations are limited to longer-term remedial actions — which can take years — to address contaminated drinking water supplies.

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State Department of Water Resources defies federal Bureau of Reclamation in battle over Central Valley Water Project

■Sacramento Bee - April 22

Governor Gavin Newsom's administration last Friday took unprecedented steps to combat federal efforts to ship more water to irrigation districts in the San Joaquin Valley, in a dispute with the Trump administration over how the State Water Project and the federal Central Valley Project pump water south from the Sacramento-San Joaquin Delta. The State Department of Water Resources announced it would draw up new rules for export by the State Water Project of water from the Delta, in response to the federal Bureau of Reclamation's February 5 announcement that it would began reinterpreting the biological assessments relied on by the state to set pumping restrictions that protect endangered fish species in the Delta. Because state and federal Central Valley Project pumps work in tandem, a legal showdown could ensue if the state's new rules conflict with the Bureau's.

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Interior Department delays plan to open U.S. coastline to drilling

■New York Times - April 25

The Trump administration on Thursday confirmed that it will likely delay implementation of an executive order signed by President Trump in April 2017 that would have opened most of the nation's coastline for offshore oil drilling. The delay was a response to a March 30 decision by a federal district court in Alaska holding that a ban adopted during the Obama administration on drilling in about 120 million acres of the Arctic Ocean and about 3.8 million acres in the Atlantic "will remain in full force and effect unless and until revoked by Congress." Under these circumstances, the court held, the ban could not be revoked solely on the authority of an executive order.

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Interior Department unveils plan to open up 1 million California acres to oil drilling

■San Francisco Chronicle - April 25

A 174-page environmental report released Thursday by the U.S. Interior Department will expedite federal plans for new oil extraction on roughly 1 million acres in Central and Southern California, primarily in the historical oil fields around Bakersfield and the deep petroleum deposits near Santa Barbara. The move ends what had essentially been a five-year moratorium in California on leasing federal lands for petroleum production. The Interior Department's program for developing new oil sites had been halted by a federal judge who ruled the agency wasn't considering the potential dangers of hydraulic fracturing. The new environmental report fulfills the federal judge's demand for a new analysis of hydraulic fracturing and paves the way for restarting all new oil development. The release of the report kicks off a 45-day comment period, after which the Interior Department will make a final decision.

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Oil company barred from hydraulic fracturing operations off Ventura coast

■Ventura County Star - April 25

Ventura-based DCOR, LLC's request to conduct hydraulic fracturing operations off the coast of Ventura was denied by a federal judge this week. The ruling upholds a ruling by the court, issued last November, barring the federal government from approving the use of well-stimulation treatments, including hydraulic fracturing, off the California coast until the conclusion of research assessing the environmental impact of those activities. In the latest ruling, the court held that the harm to threatened and endangered species from hydraulic fracturing outweighs any monetary harm to the company, which had sought relief from the earlier order.

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Court orders EPA to make final decision on banning controversial pesticide

■The Hill - April 19

The U.S. Court of Appeals for the Ninth Circuit last Friday ordered the U.S. EPA to make a final decision on whether it will ban the use of chlorpyrifos, a widely used pesticide, across the country. The agency has until mid-July to make its determination. Numerous scientific studies have shown that the insecticide is linked to alterations in brain structure and cognition, and that children are especially susceptible. The same court had already ordered the EPA in August 2018 to remove chlorpyrifos from use within 60 days. But, after EPA appealed that ruling, the court agreed to rehear the case and issued last week's ruling instead.

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Court dismisses key aspects of tribe’s claim against local water districts

■Desert Sun - April 22

A federal judge has dismissed portions of a years-long lawsuit brought by the Agua Caliente Band of Cahuilla Indians against the Coachella Valley's local water districts, ruling against the tribe's attempt to quantify its rights to groundwater. U.S. District Court Judge Jesus Bernal ruled that because the tribe has always had enough water that met all applicable water-quality standards, the tribe did not have a claim of harm, even if the aquifer has been overdrafted at times and even though saltier Colorado River water has been used to recharge the aquifer. Remaining to be adjudicated in the case is the question whether the tribe, whose rights to groundwater beneath its reservation have already been confirmed, also legally controls the groundwater storage capacity under its land.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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