ENVIRONMENTAL LEGAL BLOGS

DTSC PECHLORATE WORKSHOP SCHEDULED FOR SEPTEMBER 23, 2005

     DTSC is about to hold another "Perchlorate Best Management Practices" workshop (for background, see my previous Post of August 15, 2005 under Perchlorate" in "Categories" on the right-hand side of this Blog).  Here is a portion of the DTSC's announcement:

This is to announce a workshop for Development of Perchlorate Best Management Practices (BMP) regulations.  The workshop will be held at the Cal/EPA Building beginning at 9:00 am on September 23, 2005 in Sacramento, California.  The notice of the workshop as well as regulatory strawman text is available on the DTSC website at http://www.dtsc.ca.gov .  The perchlorate link in under "Hot Topics" at the DTSC website.

CALIFORNIA LEGISLATURE APPROVES AB 342 (FUTURE FEES ON PRODUCTS CONTAINING PERCHLORATE)

    On February 11 and April 14, 2005, I called your attention to AB 342 (see "PERCHLORATE" under "CATEGORIES" on the right-hand side of this page).  The legislation is a first step to providing the California Department of Toxics Substances Control with the authority to impose fees on products containing perchlorate and to use the resulting revenues to clean up drinking water wells contaminated with the substance.

     The State Legislature has now (yesterday, September 7) passed AB 342.

AB 492 GOES "INACTIVE"

     I have Posted numerous items regarding AB 492 (go to "PERCHLORATE" under "CATEGORIES" on the right-hand side of this page), the legislation designed to require annual reporting of perchlorate handling.  The bill, which passed the Assembly and was on the verge of passage in the Senate, has suddenly been placed on "inactive" status on the motion of Sen. Nell Soto (D-Ontario).

     This development is probably a good things since, as previous Posts re AB 492 have pointed out, the bill was inartfully drafted.  Initially primarily intended to require dry cleaners annually to report their handling of perchlorate, the bill missed the mark since, as it turns out, dry cleaners don't use perchlorate.  Maybe someone woke up to this fact?

     In any event, I have contacted Sen. Soto's office to attempt to find out why she moved to put the bill in the legislative trash can, so to speak.  I'll let you know what I hear.

CAL EPA DECIDES NOT TO LIST PERCHLORATE AS PROPOSITION 65 REPRODUCTIVE TOXICANT

  In a Post of June 20, 2005, I mentioned that Cal EPA was considering such listing.  But, in the same Contra Costa Times' article quoted in the Post below concerning Olin's victory in the San Jose perchlorate civil trial, we learn that such listing will not occur.  To quote from the article:

On Thursday, the California Environmental Protection Agency announced it will not include perchlorate on the state's Proposition 65 list of toxic chemicals known to cause cancer and birth defects. The EPA said it has not been clearly shown to cause reproductive harm.

OLIN WINS SAN JOSE PERCHLORATE TRIAL

  On July 16 and 26, 2005, I Posted about the trial by Santa Clara County residents against Olin Corporation regarding Olin's admitted contamination of area groundwater with perchlorate.  As the Posts said, the Plaintiffs did not claim health problems from the contamination but did claim damages to property values and to lifestyle.

     Now comes word that, last Friday, the jury hearing the case rendered a defense verdict.  The story can be found in The Contra Costa Times (free subscription site).

   

DTSC TO HOLD PUBLIC PERCHLORATE "BEST MANAGEMENT PRACTICES" WORKSHOP ON AUGUST 19, 2005

     In 2003, the California Legislature enacted AB 826, or the "Perchlorate Contamination Prevention Act" (statute-wise, the legislation amended Health and Safety Code Section 25404; added Section 25504.1; and added Articles 10.01 (commencing with Section 25210.5) and 12.5 (commencing with Section 25249.1).  The Act, among other things, requires (in the words of the Legislative Counsel's Digest):

the [Department of Toxics Substances Control] to adopt regulations, by December 31, 2005, specifying best management practices for managing perchlorate materials.  The bill would prohibit a person from managing perchlorate materials after the effective date of those regulations, except in compliance with the best management practices
specified in those regulations.

     Moving to get its act together in light of the upcoming year-end deadline, DTSC has scheduled a "Perchlorate Best Management Practices" workshop for this Friday, August 19, 2005.  The workshop will be held in Sacramento; but, in this Internet age, you don't even have to be in Sacramento to participate.

     The audio of the workshop will be broadcast over the Internet; and Internet listeners can submit comments and questions during the workshop at an e-mail address provided by DTSC.  For complete information about physical attendance or Internet participation in the workshop, go to the workshop announcement from DTSC.  The announcement also enables you to sign up for e-mail notification of related developments and advises where to go to find the "best management practices" draft regulations, when available.

LA COUNTY SUPERVISORS APPROVE NEWHALL LAND PROJECT AND EIR

     The Los Angeles Daily News reports that the Los Angeles County Board of Supervisors, on a 3-1 vote, yesterday certified the Newhall land West Creek housing development project in Valencia and approved the project going forward.  This certification and approval occurs only after the Los Angeles Regional Planning Commission, based on the discovery of perchlorate contamination above the State's Public Health Goal of 6 ppb in area groundwater, delayed the project to request that the developer further study the contamination problem.  See my Post of July 9, 2005.

     Environmental groups have vigorously opposed the West Creek project, contending that the development should not go forward until remediation of the perchlorate contamination is at least started by Newhall land.  It is not clear to me whether these groups' litigation options to halt or delay the project have been exhausted such that the County certification and approval is the final word; however, I'll Post what I learn about this.

FAVORABLE PRESS COVERAGE FOR OLIN CORPORATION IN SAN JOSE PERCHLORATE TRIAL

     On July 16, 2005, I Posted that trial against Olin Corporation opened in San Jose.  The suit, by plaintiff homeowners, claims that their property values and lifestyles have been damaged by Olin's conceded contamination of area groundwater with perchlorate.

     The plaintiffs are getting no sympathy from the Gilroy Dispatch, however.  In an editorial of July 22, 2005, the paper opines about one of the plaintiffs' cases:

It is difficult to understand how plaintiff Teresa Pereira can claim to have suffered a damaged home value when her home has increased in value from $410,000 in 1998 to $990,000 earlier this year.

     After noting that Olin Corporation "has not been faultless through this whole sorry saga" (among other things, the company does not contest that it is the source of the contamination at issue), the paper goes on to say that "neither has the company been a villain."  The editorial goes on to recount the series of measures the company has done to clean up the contamination and concludes with the advice that:

The jury has a right, nay, a duty to infuse a little justice and a little common sense into this suit.... We hope that they will do so.

    Usually, it's pretty hard for the polluter to get such favorable press coverage; and the Executive Committee at Olin must therefore be smiling. For the complete Gilroy Dispatch editorial, go here.

RIALTO, COLTON AND FONTANA RECEIVE EPA GRANT TO CLEAN UP PERCHLORATE

     Last week, Senator Feinstein's office issued a press release announcing that the federal Environmental Protection Agency has issued a $482,000 grant to assist the California cities of Rialto, Colton and Fontana to help clean up perchlorate contamination in groundwater.  There will be an additional $288,700 distributed sometime later this year, per the press release.

The full text of the press release can be found here.  For a discussion of pending civil litigation related to this perchlorate situation, see my Post on this Blog of July 9, 2005.

PERCHLORATE PROPERTY-DAMAGE TRIAL OPENS IN SAN JOSE FEDERAL COURT

     Today's news brings word that 105 residents of San Martin, California have the case of two of their "pilot" plaintiffs at trial against Olin.  Olin made highway flares for many years at a local factory; and the process uses perchlorate.  Per the  San Jose Mercury News (free subscription site):

The first trial on the presence of perchlorate -- a chemical used in road flares -- in the drinking water of hundreds of residents from Morgan Hill to Gilroy began Tuesday, 2 1/2 years after the pollution was discovered.

In the case, 105 residents of the San Martin area sued Olin, a Norwalk, Conn.-based company in federal District Court in San Jose.

The residents are not alleging any health problems from the pollution, but rather a loss of property value totaling $36 million and emotional distress.

     Since property values have during the real estate boom apparently continued to rise in the San Martin area, it will be interesting to watch whether or not the jury hearing the case is at all sympathetic to plaintiffs' claims of damage to their property values.