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Another Nail in the Coffin?

You will see a mixture of alphabet soup like you've never seen before. And it's all there to make your life more miserable.

Feb 05, 2013

Do you know the difference between legislation and regulation? Legislation is passed as laws by a legislative arm of a government. After legislation is passed, there will be regulators, usually government bodies, who will examine the laws passed and work out the details that need to be enforced so that they are followed. This is why we don't laugh when Nancy Pelosi says "we have to pass the bill so you can find out what's in it." When a legislature passes a law, it goes to whatever bureaucracy deals with it to see how it will be regulated. For instance, when the Delta Smelt is placed on the endangered species list, it doesn't say anything about shutting down the pumps to protect it. That's where the regulators come in.

If you want to see a good example of regulation run amok, we dare you to read the interpretation we have in the article below regarding policies being put into place by the California Environmental Protection Agency (Cal/EPA). You will see a mixture of alphabet soup like you've never seen before. And it's all there to make your life more miserable. You'll find out what all these initials mean: OEHHA(Office of Environmental Health Hazard Assessments), CalEnviroScreen (Draft California Communities Environmental Health Screening Tool), CIPA (Cumulative Impacts and Precautionary Approaches), WPHA (Western Plant Health Association), CRLAF (California Rural Legal Assistance Foundation). CRLAF (check initials above) commented that it was critical that the CalEnviroScreen tool be finalized soon and put into use in order to reduce cumulative impacts in communities “facing high levels of vulnerabilities and exposure to toxics.” This is all leading to monitoring dairy waste and pesticides.

They say the 'tool' may not be used, at least at this time, in decision making, but the reality is that it will be used to determine regulatory policy in the future. This is going to be of particular interest to ag communities because "the draft tool measures indicators which the report suggests have higher incidence in agricultural areas, including pesticide use, elevated ozone, and small particle pollution." Reassuring. If you can get through the article and send us your interpretation, we'd appreciate it.


OEHHA’s Cumulative Impacts Efforts Likely to Affect Agricultural Communities

Recent interest in environmental justice issues has resulted in a push by the California Environmental Protection Agency (“Cal/EPA”) to address the cumulative impacts of multiple sources of pollution in specific communities in California. On October 16, 2012, the Office of Environmental Health Hazard Assessment’s (“OEHHA”) closed the public comment period on its Draft California Communities Environmental Health Screening Tool (“CalEnviroScreen”). The screening tool uses existing environmental, health, and socioeconomic data to create cumulative impacts scores for communities across California. Cal/EPA will ultimately use the screening tool in environmental decision-making and the current scoring methodology applied in the draft tool could have a negative impact on agricultural areas throughout the state.

Background

Between 1999 and 2001, California adopted laws requiring Cal/EPA to address environmental justice, which is broadly defined as “the fair treatment of people of all races, cultures, and incomes with respect to the development, adoption, implementation, and enforcement of environmental laws, regulations, and policies.” Under those laws, Cal/EPA must conduct its programs, policies, and activities, and promote enforcement of all health and environmental statutes, so as to ensure the fair treatment of people of all races, cultures and income levels.

In response, Cal/EPA drafted an Environmental Action Plan directing Cal/EPA Boards and Departments to develop guidance on assessing, preventing, and reducing disparities in cumulative impacts. Cal/EPA designated OEHHA to lead the development of guidance on those impacts.

OEHHA’s Efforts at Addressing Cumulative Impacts

According to Cal/EPA’s working definition, “cumulative impacts” means “exposures,public health or environmental effects from the combined emissions and discharges, in a geographic area, including environmental pollution from all sources, whether single or multi-media, routinely, accidentally, or otherwise released. Impacts will take into account sensitive populations and socioeconomic factors, where applicable and to the extent data are available.”In an effort to develop guidance on cumulative impacts, OEHHA has collaborated with the Cumulative Impacts and Precautionary Approaches (CIPA) Workgroup, an external stakeholder group formed by Cal/EPA. Members of the group include agricultural related parties, such as the Director of Environmental and Regulatory Affairs at the Western Plant Health Association (WPHA) focusing on the implications of crop protection products and an industrial hygienist with California Rural Legal Assistance Foundation in Sacramento focusing on environmental health issues affecting farm workers. In December 2010, OEHHA prepared a report entitled “Cumulative Impacts: Building a Scientific Foundation,” which established a preliminary screening methodology for assessing cumulative impacts on communities. Building upon this general methodology, OEHHA developed the Draft California Communities Environmental Health Screening Tool, releasing it for public review on July 30, 2012. Comments were received from a variety of groups, including California Rural Legal Assistance Foundation (CRLAF) and the California Farm Bureau Federation.

CRLAF commented that it was critical that the tool be finalized soon and put into use in order to reduce cumulative impacts in communities “facing high levels of vulnerabilities and exposure to toxics.” More specifically, the comments urged OEHHA to develop a drinking water quality indicator that recognizes rural Californians who rely on private wells and incorporates measurement of a community’s proximity to dairies and other Confined Animal Feeding Facilities (CAFOs). Additionally, the comments included a request that OEHHA maintain pesticide use as an indicator, characterizing such an indicator as “vital” to an accurate assessment of exposures in rural areas. Further, CRLAF commented that it would like to see incorporation of an indicator on job categories that it considers likely to give rise to occupational exposures, such as agriculture.

The California Farm Bureau’s comments, on the other hand, evidenced a desire for a more limited use of the screening tool, seeking clarification that it only be used to enhance communities and not to impede economic growth and environmental improvement. The comments included a request that OEHHA clarify that the screening tool only be used to “advance the use of incentive programs for job creation and economic investment” and not be used “for any type of regulatory permitting, mitigation, evaluation or siting decisions.” The Bureau also commented that the application of pesticide use reporting (PUR) in assigning cumulative impact scores is misleading because it implies that all uses of pesticides leads to exposure. Finally, the Bureau commented that the public review process must be improved to allow more time for public comment on the screening tool.

Conclusions and Implications

Cal/EPA’s goal is to incorporate cumulative impact considerations into environmental decision-making. Thus, while the current Draft California Communities Environmental Health Screening Tool may not be used in decision-making, at least formally, the reality is that cumulative impact assessments will play a role in the development, implementation, and enforcement of environmental laws, regulations, and policies in the future.

In its 2010 report, OEHHA discusses the potential uses of cumulative impact assessments in environmental decision-making. OEHHA expects that the assessments could be used to identify opportunities for sustainable economic development. For example, the cumulative impacts scores could be used to prioritize highly impacted communities when providing financial assistance through Cal/EPA loan and grant programs. However, not all potential uses would necessarily have beneficial impacts on economic development. For instance, Cal/EPA could use the screening methodology to target enforcement efforts based on the relative ranking of pollution within a particular community, or use the tool to identify priority areas for environmental monitoring.

Agricultural communities in particular could be affected by the use of cumulative impact scores in environmental decision-making. Areas where agriculture is predominant are likely to be assigned higher cumulative impact scores based on the methodology proposed in the draft screening tool. For example, in calculating the exposure component, the draft tool measures indicators which the report suggests have higher incidence in agricultural areas, including pesticide use, elevated ozone, and small particle pollution. Composting facilities are specifically identified by the tool as potentially having negative community impacts. Additionally, the draft tool’s socioeconomic factor component, which considers such indicators as educational attainment, income, and race/ethnicity, may disproportionately affect the cumulative impacts scores assigned to agricultural communities.

A second working draft of the CalEnviroScreen tool, which incorporates slight changes to the methodology used, was distributed in early January 2013. The public comment period closes January 25, 2013, but CalEPA has indicated they may extend the deadline to February 1, 2013. The first version of the tool is expected to be released on March 1, 2013. We will keep you informed of any updates as they develop.

Ashley Porter is an Associate in the Environmental Law, and Food & AgriculturePractices at Downey Brand, LLP in Sacramento, California. Ashley focuses in the areas of environmental compliance and litigation. Katharine Wagner is a Partner in the firm's Environmental Law Practice. Katharine's practice focuses on environmental compliance, remediation and enforcement defense, and transactional environmental issues. Dale Stern is a Partner and Co-chair of the firm's Food & Agriculture Practice. Dale has represented California agricultural interests for 25 years. Downey Brand has served agricultural clients throughout California since the 1920’s. © 2013 Downey Brand, LLP.

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