Photo of Whitney Jones Roy

The Office of Environmental Health Hazard Assessment (“OEHHA”) recently proposed a regulation that would provide more certainty to businesses regarding the Proposition 65 (“Prop 65”) warning requirements for cooked foods.  The proposed regulation is intended to incentivize businesses to lower the concentration levels in foods, encourage consistency and predictability, and ensure that warnings will be given for the foods causing the highest levels of exposure.
Continue Reading New Proposed Regulation Provides More Guidance and Some Relief on Prop 65 Warning Requirements for Heat Processed Foods and Acrylamide

Many of us think of coffee as a morning essential, however, there has been a long running debate between California regulators, courts, business, and consumer advocates regarding whether coffee must have a Proposition 65 (“Prop 65”) warning for cancer.  The debate stems from the fact that roasted coffee beans, and coffee brewed from those beans, contain acrylamide – a chemical of concern under Prop 65 because of potential cancer risks.  This article discusses the opinions of various research groups regarding the noncarcinogenic nature of acrylamide, as well as a recent lawsuit initiated by the California Chamber of Commerce against the California Attorney General to end the need to warn for acrylamide.
Continue Reading Prop 65 Warnings and Acrylamide in Food – Can I Still Have My Coffee and Drink it Too?

The California Office of Environmental Health Hazard Assessment (OEHHA) recently adopted amendments to California Code of Regulations, section 25600.2 – the section titled “Responsibility to Provide Consumer Product Exposure Warnings.”  These amendments provide more specific guidance for manufacturers, retailers and other businesses in the chain of commerce on how to satisfy their responsibilities to provide consumer product exposure warnings for chemicals listed under Proposition 65. The amendments become effective on April 1, 2020.
Continue Reading Proposition 65: California Clarifies Responsibilities To Warn Amongst Manufacturers, Distributors and Retailers

Makah Indian Tribe, et al. v. Quileute Indian Tribe et al., 813 F.3d 1157 (9th Cir. 2017).

Defying the universal notion that whales and seals are, in fact, mammals, the Ninth Circuit recently affirmed in part, and reversed in part, the Western District Court of Washington’s judgment determining that such species qualify as fish in limited circumstances relating to tribal fishing rights in western Washington. Id. at 1159. While the direct determination that the use of the word “fish” may occasionally include some marine mammals may not be universally enlightening, this case painstakingly details the rules to be utilized when interpreting sovereign treaties—a tool helpful to almost any jurisdiction. (The opinion also quotes from the television show “Seinfeld,” validating George Costanza’s proclamation that whales are fish.)
Continue Reading Ninth Circuit Determines That George Costanza Was Right!—In Limited Circumstances, Whales And Seals Are Fish (Not Mammals)

TDY Holdings v. United States, et al., 872 F.3d 1004 (9th Cir. 2017).

TDY brought suit for contribution under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) against the U.S. government relating to environmental contamination at TDY’s manufacturing plant. The district court granted judgment in favor of the government after a 12-day bench trial and allocated 100 percent of past and future CERCLA costs to TDY. On appeal, the Ninth Circuit held that the district court sharply deviated from the two most “on point” decisions regarding allocation of cleanup costs between military contractors and the U.S. government when it determined the cases were not comparable, clarified the applicability of those cases, and remanded the case to reconsider the appropriate allocation of cleanup costs between TDY and the U.S. government.
Continue Reading Ninth Circuit Finds District Court Sharply Deviated from Existing Authority on CERCLA Cleanup Costs Between Military Contractor and U.S. Government When it Allocated 100 Percent of Liability to Military Contractor

Sturgeon v. Frost, et al., 872 F.3d 927 (9th Cir. 2017).

In September 2011, moose hunter John Sturgeon brought an action against the National Park Service (“Park Service”), alleging it inappropriately banned him from using a hovercraft to hunt moose on the Nation River in the Yukon-Charley Rivers National Preserve (“National Preserve”). Id. at 929. On remand from the Supreme Court, the decision analyzes which entity is permitted to decide this matter after the Supreme Court rejected an earlier circuit decision supporting the ban. The court’s ruling affirms congressional intent to permit Park Services authority to manage navigable waters in Alaska’s national parks, especially those parks meant to preserve wild rivers, and describes the balance between state and federal jurisdiction.
Continue Reading Ninth Circuit Holds National Park Service Has the Authority to Regulate Navigable Waters in Alaska’s National Parks and Prohibit the Use of Hovercraft (Again)

If your products are sold online or you operate a website with sales to consumers in California, these changes will impact whether you can obtain “safe harbor” protection under Prop 65.

Over a year after adopting new regulations—which were crafted through an exhaustive 3 year rulemaking process of public workshops, public comments, and revisions to address stakeholders’ concerns—California’s OEHHA (Office of Environmental Health Hazard Assessment) issued a guidance document purporting to change the answer to the question of whether a website warning is sufficient to qualify for “safe harbor” protection or whether a separate type of warning must be provided to the consumer in addition to the website warning. OEHHA, the state entity charged with managing Prop 65, quietly changed its position on the subject and offered so-called “guidance” that imposes much more onerous obligations. If you have already assessed whether you company is in compliance and ready for the new regulations, you should consider reviewing them again.
Continue Reading Under the Radar Changes to Proposition 65 – OEHHA Issues New “Guidance” For Web Purchases (Is it an Illegal “Underground Regulation”?)

WildEarth Guardians v. United States Bureau of Land Management, et al., 870 F.3d 1222 (10th Cir. 2017). WildEarth Guardians and the Sierra Club (collectively, “Plaintiffs”) brought a claim under the Administrative Procedure Act (the “Act”) against the Bureau of Land Management’s (BLM), challenging the BLM’s decision to grant four coal leases in Wyoming’s Powder River Basin. The basin accounts for almost 40 percent of the United States’ total coal production, and the subject leases would extend the life of two mines that provide almost 20 percent of the United States’ annual domestic coal production. Id. at 1227. Plaintiffs alleged the BLM’s determination that the leases would not have a significant effect on national carbon dioxide emissions, as compared to the “No Action” alternative, was arbitrary and capricious because (1) it was not supported by the administrative record and (2) the BLM failed to acquire information “essential to a reasoned choice among alternatives.” Id. at 1233–34. The Tenth Circuit agreed the decision was not supported by the record and remanded to the district court with instructions to enter an order requiring the BLM to revise its Environmental Impact Statement (EIS) and Records of Decision, but refused to vacate the leases themselves. Id. at 1240.
Continue Reading Tenth Circuit Holds Bureau of Land Management Improperly Relied On Unsupported and Irrational Assumption in Analyzing Environmental Impacts of Coal Mining Leases

United States of America v. Osage Wind, LLC et al., 871 F.3d 1078 2017 WL 4109940 (10th Cir. Sept. 18, 2017). Causing heartburn for project applicants developing on tribal land, the Tenth Circuit reversed the District Court for the Northern District of Oklahoma’s grant of summary judgment and determined that the defendants’ large-scale excavation project, involving site modification and the use of excavated rock and soil in the installation of wind turbines, constituted “mining” under federal regulations addressing mineral development on Native American land. Id. at *1. This decision creates new obligations for developers, which could result in delay and additional costs.
Continue Reading Tenth Circuit Takes Expansive View of the Definition of the Term “Mining,” Holding Wind Farm Project Needs Permit Prior to Commencement of Excavation in Tribal Mineral Estate

Asarco, LLC v. Atlantic Richfield Company, 866 F.3d 1108 (9th Cir. 2017). In a Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) contribution case, the Ninth Circuit addressed three issues of first impression for the circuit related to the ability to pursue contribution after settlement and the application of the statute of limitation. Specifically, the court looked at (1) whether a settlement agreement entered into under an authority other than CERCLA may give rise to a CERCLA contribution claim; (2) whether a “corrective” measure under the Resource Conservation and Recovery Act (RCRA), qualifies as a “response” action under CERCLA; and (3) what it means for a party to “resolve its liability” in a settlement agreement. Id. at 1113. The Ninth Circuit concluded that a settlement under RCRA may give rise to a CERCLA contribution claim and that corrective measures under a RCRA decree may constitute response costs under CERCLA. Id. at 1113–14. The court found that the CERCLA contribution claim at issue was not barred by the statute of limitation because plaintiff Asarco, LLC (Asarco) did not “resolve its liability” under a 1998 RCRA consent decree, and, therefore, could not have brought its contribution action until a subsequent CERCLA consent decree was issued. Id.
Continue Reading Ninth Circuit Weighs In On Circuit Split Regarding CERCLA Contribution Claims After Settlement and The Statute of Limitation

What is Prop 65?

Prop 65 is a California law that requires California consumers receive warnings regarding the presence of chemicals that cause cancer or reproductive toxicity. The law is highly technical, constantly evolving and actively enforced by the government and private enforcers.
Continue Reading WARNING: Prop 65 Has Changed – If Your Product Is Sold In California Or You Do Business In California, Pay Attention