CA Updates

November 8, 2019

Compliance Deadline Approaching for California Cleaning Product Disclosures while New York Program Stalls

By January 1, 2020, the California Cleaning Product Right to Know Act (California RTK Act) will require manufacturers of certain covered cleaning products to make extensive ingredient disclosures on their company websites. By January 1, 2021, the California RTK Act will require ingredient disclosures on product labels.

Meanwhile, the New York Department of Environmental Conservation (DEC) cleaning product disclosure program has stalled. On August 27, 2019, the New York State Supreme Court invalidated DEC’s Household Cleansing Product Information Disclosure Program on grounds that the agency did not follow proper rulemaking procedures. DEC has announced its intent to formally propose regulations on cleaning product ingredient disclosures in “the near future.”

For the full news alert, see here. – Authors: Lauren HopkinsKate TippleRyan CarraMark Duvall

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October 24, 2019

Trump DOJ Sues California, Seeks to End State’s Cap-and-Trade Agreement with Québec

A recent lawsuit filed by the Trump Administration’s Department of Justice seeks to block a six-year-old agreement between California and Québec that “links” their respective cap-and-trade programs.

For the full news alert, see here. – Authors: Felicia Barnes, Brook Detterman, Jacob Duginski, Dave Weber

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October 2, 2019

California Water Board Could Leave Non-Compliant Emerald Triangle Cannabis Farmers High & Dry

On September 20, 2019, the California Water Board Division of Water Rights’ Cannabis Enforcement Section mailed 270 certified letters to various farmers in Trinity, Humboldt, and Mendocino Counties notifying them that they lack the appropriate permits for water use in commercial cannabis cultivation. Although the Water Board made clear that they are not, at this time, issuing notices of violation, the letters serve as a shot across the bow to an industry that is beginning to appreciate the importance of compliance with environmental regulations and portends more significant enforcement efforts in the near future.

For the full news alert, see here. – Authors: Chris StrunkLucy Infeld, Kate Tipple

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September 26, 2019

California’s Ambitious Plastics Bill Stalls; Minimum Recyclable Content Requirements for Plastic Bottles Passes State Legislature

The California State Legislature’s 2019 legislative session concluded this month without a final vote on the session’s highest-profile recycling legislation: the Circular Economy and Pollution Reduction Act (AB 1080/SB 54). The legislation, if passed, would have required a dramatic reduction in the waste generated from single-use packaging and certain priority single-use products. However, California lawmakers were able to pass several other targeted pieces of legislation aimed at addressing single-use plastics and the recycling market in California, including AB 792 and AB 1583. AB 792 and AB 1583 were sent to California Governor Gavin Newsom and are currently awaiting his signature.

For the full news alert, see here. – Authors: Ryan Carra, Aminah Famili, Lauren Hopkins, Dacie Meng

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September 13, 2019

California Law Eliminates Email Reporting for Serious Workplace Accidents

At the end of August, California Governor Newsom signed AB 1804, a law that alters the method by which employers are to report serious occupational injuries, illnesses, and deaths to the California Division of Occupational Safety and Health (Cal/OSHA). While employers were previously permitted to make such reports via telephone or email, this law eliminates the option for email reporting once a new online portal is operational. Employers can continue to report via telephone.

For a complete discussion, see the full news alert here. – Authors: Jayni LanhamKaitlyn Shannon

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August 28, 2019

California Supreme Court Clarifies When Zoning Ordinance Amendments Trigger CEQA Review

On August 19, 2019, the California Supreme Court ruled on a fundamental California Environmental Quality Act (CEQA) issue: when is a zoning ordinance amendment considered a “project” subject to CEQA? The ordinance at issue was San Diego’s attempt to regulate the construction and operation of cannabis dispensaries within the City. The City concluded that the ordinance was not a “project” because it did not have the potential to cause a physical change in the environment.

The California Supreme Court ultimately disagreed with the City. In Union of Medical Marijuana Patients, Inc. v. City of San Diego (UMMP) the Court held that CEQA does not automatically apply to all zoning ordinance amendments (overruling a previous Court of Appeal’s decision holding to the contrary). However, the zoning ordinance amendments at issue in San Diego were certainly a “project” and thus do not evade CEQA review on the basis San Diego provided.

The Court’s ruling has direct implications for those businesses depending on such zoning amendments, providing an opportunity for a municipality or stakeholder to argue that any desired amendment does not necessarily trigger CEQA review. It is also of great importance to the cannabis industry, who can now be near certain that zoning ordinance amendments specifically for dispensary construction and operation may qualify as “projects” subject to CEQA. 

For a complete discussion of both of these impacts, see the full news alert here. – Authors: Gary SmithDavid McCray, Chris StrunkJake Duginski, Kate Tipple

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August 8, 2019

Cal/OSHA Wildfire Smoke Emergency Regulation Now in Effect

In late July, the California Occupational Safety and Health Standards Board adopted an emergency regulation to protect workers from health hazards arising from wildfire smoke. The regulation became effective July 30, 2019, and will remain in effect through January 28, 2020. 

For a complete overview of these developments, see the full news alert here. – Authors: Jayni LanhamKaitlyn Shannon

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August 7, 2019

Major Automakers Negotiate Emissions Agreement-in-Principle with California

In advance of the Trump Administration’s plans to move forward with less-restrictive standards for light-duty vehicles, four major automakers have negotiated an agreement-in-principle with the California Air Resources Board (CARB) to provide an alternative approach to reducing greenhouse gas emissions and improving fleet fuel economy. The terms of the private deal with California may provide a template for avoiding a major potential split in standards applicable to the U.S. market – California versus the federal – and the uncertainty of extended litigation over the issue of the extent of California’s authority to promulgate auto emissions standards without Environmental Protection Agency (EPA) approval.

Under the agreement, Ford, Honda, BMW of North America, and Volkswagen Group of America have committed to reducing their vehicles’ average emissions by 3.7% year over year through Model Year 2026 (inclusive of several major new accounting flexibilities outlined below), ultimately reaching the adjusted equivalent of roughly 51 mpg fuel efficiency. By comparison, the EPA’s proposed Safer Affordable Fuel-Efficient Vehicles (SAFE) Rule – slated for finalization later this year – would freeze the standard at 36.9 mpg for Model Years 2020 through 2026.

For a complete overview, see the full news alert here. – Authors: Tony Michaels, Tom Richichi, Dan Schulson, Josh Van Eaton, Jessalee Landfried

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July 1, 2019

California Proposes Amendments to Air Cleaner Regulation

On June 3, 2019, the California Air Resources Board (CARB) held a public workshop in preparation for its plans to initiate rulemaking later this year to amend its regulation on indoor air cleaning devices. In advance of official rulemaking, CARB has released a draft of the proposed amendments designed to strengthen the effectiveness of the regulation, streamline the certification process, and provide additional clarifications on key requirements. Notably, the proposed amendments would eliminate the exemption for in-duct air cleaning devices that has been in place since the regulations were initially adopted in 2007. CARB is continuing to accept public input on this draft (see workshop announcement).

For a complete overview of these developments, see the full news alert here. – Authors: Lauren Hopkins, Aminah Famili, Kate Tipple

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California Haulers and Solid Waste Facilities – Have You Registered on CalRecycle’s New Electronic Reporting System?

AB 901 (Chapter 746, Statutes of 2015, codified at Cal. Public Resources Code section 41821.5) established a new reporting scheme for the solid waste industry in California. The law requires most solid waste haulers and disposal facilities, including recycling and compositing facilities, to submit quarterly reports to CalRecycle with detailed information regarding the types, quantities, and destinations of materials that are disposed of, sold, or transferred inside or outside of the state. CalRecycle’s implementing regulations for this new reporting scheme became effective on March 5, 2019.

CalRecycle has rolled out a new electronic reporting system to collect the data required by AB 901 called the Recycling and Disposal Reporting System (RDRS). Businesses that are subject to CalRecycle’s new reporting scheme that were in existence as of April 1, 2019, were required to register on RDRS by no later than April 30, 2019. Reporting deadlines for submitting third and fourth quarter reports on RDRS vary by entity type and are posted on CalRecycle’s website here.

CalRecycle will be hosting a reporting requirements workshop for regulated entities on July 8, 2019. More information about the July 8 workshop is available here. – Author: Aminah Famili

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June 18, 2019

SCAQMD Adopts Dramatic Increase in Fees, Offsetting Costs of AB 617 and Toxics Regulation

The South Coast Air Quality Management District adopted an amendment to its Rule 301 on June 7, aimed at collecting nearly ten times the amount of fees it has historically garnished under its toxics emissions fee program. The amendment will include a new Base Toxics Fee, a new Flat Rate Device Fee, and a new Cancer Potency-Weighted Fee, imposed on entities that emit toxics above certain thresholds. Implementation of amended Rule 301 starts with facilities reporting toxics emissions for 2019, with the increased fees due in 2020.

For a complete overview of these developments, see the full news alert here. – Authors: Dave Weber, Jake Duginski

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May 31, 2019

California Court Finds Tribe Lacks Standing to Quantify Reserved Water Right

The Central District of California in the second phase of Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water District et. al. issued a decision with massive implications for water rights in the West. In the first part of this case, the District Court decided, and the Ninth Circuit affirmed, that when the United States government granted tribes reservation land, this land came with an accompanying right to groundwater under the reservation.

The initial decision was viewed as a huge win for tribes in asserting claims over increasingly scarce water resources in the Western United States. However, in the second phase of the case, the District Court determined that the Water District has not harmed the Tribe with its groundwater pumping, and therefore the Tribe cannot require the Water Districts stop pumping to leave a certain quantity of water accessible to the Tribe in the aquifer.

While federally reserved water rights, particularly tribal rights, are maintained despite non-use, this case further defines the standing requirements a tribe must meet to sue and enforce these rights

For a complete overview of these developments, see the full news alert here. – Author: Lucy Infeld

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May 20, 2019

California Department of Toxic Substances Control Proposes Regulation Classifying Discarded Solar Panels as Universal Waste

The California Department of Toxic Substances Control (DTSC) has proposed regulations that would allow discarded photovoltaic (PV) modules (commonly referred to as solar panels) to be managed as universal waste. The proposal would put discarded solar panels in the same category as discarded electronic devices, batteries and light bulbs: ubiquitous, relatively low-risk hazardous wastes that are allowed to be managed under the more relaxed universal waste standards. DTSC states in the rulemaking proposal that regulating hazardous waste PV modules under the state’s universal waste standards will divert PV modules from the state’s municipal solid waste landfills and will encourage the proper end-of-life management of this emergent waste stream.

For a complete overview of these developments, see the full news alert here. – Authors: Kenneth FinneyLauren Hopkins, Dave Weber, Aminah Famili

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May 17, 2019

Seeing Smoke Ahead: Cal/OSHA Proposes Emergency Regulation to Protect Workers from Wildfire Smoke Exposure 

California wildfires have become more frequent and more intense. These wildfires and the smoke they generate pose risks to worker safety. In response to the poor air quality California experienced during last year’s fires and in recognition of the fact that intense fires will likely continue, the California Division of Occupational Safety and Health (Cal/OSHA) issued a proposed emergency regulation addressing smoke exposure. A public meeting to discuss the proposed regulation was held on May 8, 2019.

For a complete overview of these developments, see the full news alert here. – Authors: Jayni LanhamKaitlyn Shannon

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April 9, 2019

Cannabis Business CEQA Exemption Expires on July 1: Will You Have a Permit or License to Conduct Business?

The legalization of cannabis in California has brought about a flurry of regulatory and statutory requirements to conduct business. In order to facilitate the business demand, the State postponed certain requirements, such as the need to comply with the California Environmental Quality Act (CEQA). As stated in California Business and Professions Code section 26055(h) (below), CEQA did not apply to an ordinance, rule, or regulation issued by a local jurisdiction related to the approval of permits and licenses for the commercial cannabis business.

For a complete overview of these developments, see the full news alert here. – Authors: David McCray, Chris Strunk, Gina Ecolino

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March 29, 2019

DTSC Seeks to Adopt Regulations to Designate Used/Spent Solar Panels as Universal Waste 

The California Department of Toxic Substances Control (DTSC) held a workshop on March 25, 2019 and presented information on California’s Universal Waste Program and the proposed regulations to include waste photovoltaic modules (PV modules), commonly known as solar panels, on the list of hazardous wastes eligible to be managed as universal waste.

More information on this rulemaking, including the workshop presentation materials, are available here. Until the new regulations are adopted, solar panels that exhibit characteristics of hazardous waste must be managed as hazardous wastes and not as universal wastes. B&D will continue to monitor and report on this rulemaking. – Author: Dave Weber

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March 4, 2019

Cleaning Product Manufacturers Gear Up for Compliance with State Ingredient Disclosure Laws

Over the next year, California and New York will begin phasing in requirements for manufacturers of cleaning products – including household cleaners, as well as and clothes and dish detergents – to make extensive ingredient disclosures. This will eventually require disclosures on both product labels and manufacturer websites. Both laws involve complex questions regarding which ingredients must be disclosed, whether certain chemical identities may be withheld to protect confidential business information (CBI), and what else must be publicly disclosed (e.g., certain manufacturer studies). Manufacturers of in-scope products should gear up for compliance now.

For a complete overview, see the full news alert here. – Authors: Ryan Carra, Mark Duvall, Lauren Hopkins

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Proposition 65 2.0: Where It Is and Where It’s Going

Proposition 65 is a California warning requirement of concern for companies throughout the U.S. It has recently undergone remarkable changes, taking on new life and creating new challenges for suppliers everywhere. 

The new Article 6, Clear and Reasonable Warning (safe-harbor) regulation took effect on August 30, 2018. This is clearly the most important recent development in Proposition 65 compliance. In 2016, the Office of Environmental Health Hazard Assessment (OEHHA) completely overhauled the decades-old warning rules. Those rules finally took effect on August 30, 2018. Now, compliance with the old Article 6 regulation will no longer afford companies clear protection from Proposition 65 enforcement actions. While companies may continue to craft their self-customized Proposition 65 warnings (at their own risks), complying with the warning methods and language requirements in the new Article 6 rules should provide them with protection from enforcement actions.

For a complete overview, see the full news alert here. – Authors: Mark Duvall, Lauren Hopkins

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February 14, 2019

CEQA Guidelines Receive Update, Climate Change Drives Major Amendments

At the end of 2018, the Office of Planning and Research’s (OPR’s) years-long effort (since 2011) to update the Guidelines (CEQA Guidelines) implementing the California Environmental Quality Act became a reality. This comprehensive update to nearly 30 sections of the CEQA Guidelines (along with some additions) incorporates new statutes and court decisions. The final text of the amendments can be found here. California’s battle to ward off the effects of climate change has ushered some of the biggest changes to the Guidelines, including criteria for assessing Vehicle Miles Traveled (VMT) for determining a project’s traffic impacts (as well as inclusion in the Appendix G checklist) and a clear mandate to address climate change impacts during environmental review.

For a complete overview of these developments, see the full news alert here. – Authors: David McCray, Jake Duginski

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February 6, 2019

NASDAQ Introduces California Water Index

In response to the increasing uncertainty of water prices and diminishing supply of water in the western U.S., NASDAQ has developed the first water pricing index for the state of California. The index benchmarks the price of water by setting a weekly rate in California. By creating a price index, water rights may become a tradable financial instrument. This differs from traditional water indexes, which track companies who extract and deliver water in western states. 

Along with Veles Water and WestWater Research, NASDAQ hopes this system will help to make water a more accessible commodity and diminish the confusion over fair pricing for water. Climate change effects have increasingly been felt in the drier western U.S., especially when it comes to acquiring necessary water rights for building, business development, or expansion. Without a set pricing index, many buyers are at the whim of the market and their own knowledge in determining if the cost of a water right is fair. – Author: Lucy Infeld 

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January 22, 2019

California Supreme Court Finds Fresno County EIR Deficient

A recent California Supreme Court decision reminds project proponents and lead agencies of the need for substantive analysis in an Environmental Impact Report (EIR). On Christmas Eve 2018, the California Supreme Court published its opinion in Sierra Club et al. v. County of Fresno et al. The Sierra Club challenged the adequacy of Fresno County’s EIR for failing to comply with the California Environmental Quality Act. The EIR analyzed the Friant Ranch project, a 942-acre master-planned community in north-central Fresno County. The Project includes a specific plan covering five phases constructed over 10 years containing up to 2,500 single and multi-family active adult 55+ homes, 250,000 sq. ft. of commercial property and 460 acres of open space.

For a complete overview of these developments, see the full news alert here. – Authors: David McCray, Jake Duginski

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October 11, 2018

California Enacts Broad Prohibitions on Flame Retardant Use

California Governor Jerry Brown has signed into law Assembly Bill (A.B.) 2998, restricting the sale of flame retardant-containing children products and furniture. Effective January 1, 2020, A.B. 2998 prohibits any person from selling or distributing new juvenile products (i.e., products used by infants and children under the age of 12), mattresses, and upholstered furniture that contain a designated flame retardant chemical at levels above 1,000 parts per million. The law also prohibits, beginning on January 1, 2020, a custom upholsterer from repairing or reupholstering upholstered furniture using replacement components that contain more than 1,000 ppm of a designated flame retardant chemical.

For a complete overview of these developments, see the full news alert here. – Authors: Lauren Hopkins, Mark Duvall, Kate Tipple, Aminah Famili

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October 3, 2018

California Adopts Statewide Producer-Funded Pharmaceutical Household Drug and Sharps Take-Back Program

On September 30, 2018, Governor Brown signed SB 212, an act amending the California Integrated Waste Management Act to create a statewide takeback program for pharmaceuticals and sharps (the “Act”) from households. California joins Washington and New York in implementing statewide pharmaceutical takeback programs. By enacting SB 212, California also adds to existing producer-funded stewardship programs operating in the State for products ranging from paint to mattresses.

The Act requires manufacturers of “covered products” to create and operate a stewardship program that provides for the takeback of covered drugs and home-generated sharps waste from households. The Act also imposes various requirements on a covered entity or stewardship organization that operates a stewardship program, including submitting a proposed stewardship plan, an initial stewardship program budget, an annual budget, annual report, and other specified information to the California Department of Resources Recycling and Recovery (CalRecycle). CalRecycle is required to adopt implementing regulations no later than January 1, 2021. Cal. Pub. Resc. Code § 42031.2(a). “Program operators” must submit their proposed programs within six months of CalRecycle adopting relevant implementing regulations.

For a complete overview of these developments, see the full news alert here. – Authors: Don Patterson, Kaitlyn Shannon

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