Los Angeles Superior Court Issues Important Defense Verdict In Unique Proposition 65 Trial Against Brass-Polish Manufacturer

In a recent trial in Los Angeles Superior Court in the matter AFS Enterprises, LLC, v. Reckitt Benckiser, PLC, Los Angeles Superior Court Case No. BC539678, the plaintiff brought a single claim under Proposition 65 (Safe Drinking Water and Toxic Enforcement Act of 1986, California Health and Safety Code sections 25249.1 et seq.) against the makers of Brasso, a brass polish, arguing that the manufacturer was obligated to provide a Proposition 65 warning for the product.  Proposition 65 requires manufacturers and retailers to provide warnings for products sold to California consumers if the products expose consumers to certain chemicals including lead.  Here, the plaintiff’s argument was unique.  Although Brasso itself does not contain lead, the plaintiff argued that a warning was nevertheless required because the polish, when used on certain brass surfaces, releases lead. The manufacturer argued that it should be exempt from the warning requirement because the amount of lead customers are exposed to when using the polish does not exceed the “Maximum Allowable Dose Level.”  The court, after weighing testimony of the various experts at trial, issued a Statement of Decision on May 12, 2016 wherein the court ultimately agreed that the manufacturer is not required to provide a Proposition 65 warning.

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President Obama Signs Major Overhaul of TSCA Changing the Way The EPA Regulates Toxic Substances In Commerce

President Obama just signed a bill amending the Toxic Substances Control Act (“TSCA”), changing the way the EPA regulates chemicals. For the last 25 years, the EPA has regarded TSCA’s principal control provision as unworkable and refused to rely on it after an adverse ruling in response to the EPA’s effort to regulate asbestos. The amended TSCA makes it easier for the EPA to test, evaluate, and regulate chemicals. Furthermore, the EPA will now be required to review the safety of every chemical in commerce. In a nutshell, the new law makes the following changes:

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California Proposes Adopting New Permitting Program for Wetlands and Waters of the State

On June 17, 2017, the State Water Resources Control Board (State Board) published proposed amendments to the Ocean Plan and the water quality control plan for Inland Surface Waters and Enclosed Bays and Estuaries and Ocean Waters of California to adopt procedures for discharges of dredged or fill material to waters of the state that are not protected by the federal Clean Water Act (CWA).  In addition to the proposed amendments, the State Board also published a detailed staff report and a separate comparison of the new “State Supplemental Dredged or Fill Guidelines” to the CWA’s Section 404(b)(1) Guidelines, which requires sequencing of impacts to avoid, minimize, and mitigate impacts to waters.  Two workshops and a public hearing are scheduled in June and July, with the public comment period ending on August 4, 2016.  The proposal is tentatively scheduled to be considered by the State Board in the fall of 2016.

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USFWS Proposes (Again) To Issue 30-Year Eagle Act Permits

On May 6, 2016, the U.S. Fish and Wildlife Service (“Service”) published a proposed rule  that would amend various aspects of its permitting program under the Bald and Golden Eagle Protection Act (“Eagle Act”).  As widely anticipated, the proposed rule seeks to extend the maximum permit term from five to thirty years, but it also creates more stringent conservation standards and more flexible mitigation requirements for permits.  The comment period for the proposed rule ends on July 5, 2016.

Along with the proposed rule, the Service also released a status report, which showed increases in bald eagle populations but possible declines in golden eagle populations; and a Draft Programmatic Environmental Impact Statement (DPEIS), which analyzed potential impacts of the proposed rule under NEPA and which the Service intends to use as the basis for tiered, subsequent project-level review.

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Corps Proposes Renewal of Nationwide Permits

The U.S. Army Corps of Engineers (“Corps”) has proposed new and revised Nationwide Permits (“NWPs”) for certain activities that require authorization under Section 404 of the Clean Water Act or Section 10 of the Rivers and Harbors Act.  Nationwide Permits provide streamlined authorization for dredge and fill activities that the Corps has determined will have minimal adverse effects on the aquatic environment, individually and cumulatively.  The Corps is soliciting comments until August 1, 2016.

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Jurisdictional Determinations Are Reviewable By The Courts

United States Army Corps of Engineers v. Hawkes Co., Inc. (5/31/16, No. 15-290)

In a widely anticipated decision in the wake of the Sackette v. EPA (132 S.Ct. 1367 (2012) decision, the U.S. Supreme Court decided that federal courts can review Army Corps of Engineers’ (“Corps”) determinations that a waterbody is subject to Clean Water Act regulation, resolving a split between the circuits in a victory for land owners.

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New LA Ordinances “Clean Up, Green Up” Industry in Residential “Toxic Hotspot” Neighborhoods

On June 4, 2016, two new Los Angeles ordinances will go into effect under the Clean Up, Green Up (CUGU) initiative.  The initiative aims to improve air quality and residential quality of life in areas with high concentrations of industrial uses.  The new laws will impose additional citywide code requirements, and create new development standards in three CUGU Supplemental Use Districts: Boyle Heights, Wilmington, and Pacoima/Sun Valley.

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UPDATE – City of Los Angeles Releases List of 13,500 Soft First Story Buildings Targeted for Earthquake Retrofitting

The City of Los Angeles Department of Building and Safety (DBS) has released its list of wood frame soft-story buildings that may be required to undergo mandatory retrofitting.  The list can be obtained by request to DBS, and the LA Times has provided a searchable version of the list here.  The publication of the list follows on the heels of the Los Angeles City Council’s enactment of an ordinance requiring mandatory earthquake retrofitting for non-ductile concrete buildings and wood frame soft-first-story buildings in October of 2015.

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Challenge to Ordinance Prohibiting Mobile Medical Marijuana Dispensaries Goes Up in Smoke

Union of Medical Marijuana Patients, Inc. v. City of Upland (3/25/16, D069293)

In 2007, the City of Upland banned both fixed and mobile medical marijuana dispensaries from any zone within the City’s limits. Presumably this ban applied to mobile dispensaries delivering marijuana into the City from locations outside the City.  However, in 2013, the City adopted an additional ordinance expressly prohibiting deliveries by mobile dispensaries headquartered outside the City.  The Union of Medical Marijuana Patients, Inc., challenged the 2013 ordinance, arguing the City was required to undertake a preliminary review of environmental impacts under the California Environmental Quality Act prior to its adoption.  The Union asserted that the ordinance had foreseeable environmental effects, including travel by residents seeking medical marijuana outside the City and increased electrical use, water consumption and waste due to higher levels of indoor marijuana cultivation.  The Court of Appeal found that, because the 2013 ordinance merely restated the 2007 ordinance, it did not constitute a “project” under CEQA and was therefore exempt from review.  Additionally, the environmental impacts cited by the Union were too speculative for the 2013 ordinance to be considered a project. Continue Reading

A Proposition 65 Violation May Be Lurking in Your Cash Register Receipt

Many consumer-facing businesses have learned to identify high-risk Prop 65 targets:  soft, flexible plastics; faux and colored leathers; and any kind of brass or metal that may contain lead or other heavy metals.  But businesses need to take action to avoid Prop 65 liability based on a new culprit: bisphenol-A (BPA) that may be lurking in your cash register receipts and other thermal papers.  Continue Reading

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