September 12, 2012 Regional Board Meeting

1. Dart Container Corporation September 12, 2012 Regional Board Meeting

2. The Regional Board Must Take Action on the Baseline Report, Credit Report, and Trash-Reduction Plans • The baseline report, credit report, and trash-reduction plans define the standard that will govern the permittees’ trash-reduction efforts • I.e., they are a critical component of the MRP and an extension of the NPDES proceedings • If permittees are allowed to take an 8% credit for banning foam without justification, they will not undertake proven trash-reduction measures • The Clean Water Act requires the Regional Board to review and approve or reject these plans to make sure they meet the “maximum extent practicable standard”

3. A Status Report Is Not Sufficient—Formal Board Action Is Required • “[S]tormwater management programs that are designed by regulated parties must, in every instance, be subject to meaningful review by an appropriate regulating entity to ensure that each such program reduces the discharge of pollutants to the maximum extent practicable.” • Environmental Defense Center v. Environmental Protection Agency, 344 F.3d 832, 856(9th Cir. 2003) • The Water Code requires a public hearing for permit proceedings (Water Code § 13384) • Decisions to issue, modify, or revoke a permit are non-delegable (Water Code § 13223(a))

4. Prompt Regional Board Action Is Needed • Permittees would view Regional Board silence on the foam credit as tantamount to approval • The Regional Board’s Executive Officer wrote to BASMAA that “[t]he proposed load reduction credits are in a reasonable range …” for foam bans (June 7, 2012 letter) • Delay would prejudice the public, the Regional Board, and Dart • Permittees may rely on illusory bans instead of proven trash-reduction methods if the Regional Board does not act promptly

5. Prompt Regional Board Action Is Needed (cont.) • In its July 6, 2012 letter, Dart asked the Regional Board to hold a workshop and hearing to take action on the baseline report, credit report, and trash-reduction plans • The Regional Board’s action or failure to act may be petitioned to the State Board under Water Code § 13320 • Deadline for petition for review: October 4, 2012 • Without prompt Regional Board action, Dart will be forced to petition

6. Dart’s Request • Today: Schedule a workshop and hearing for the next available date on the baseline report, credit report, and trash-reduction plans • Hold the workshop and hearing • At the workshop and hearing, the Regional Board should take action to approve or reject the baseline report, credit report, and trash-reduction plans

7. Dart Is Eager to Participate Constructively in a Workshop • Dart Container Corporation is a California manufacturer of polystyrene foam food containers with plants in Lodi and Corona • Dart’s deep experience in and commitment to foam recycling has led it to receive CalRecycle’s Waste Reduction Award Program (WRAP) award the last two years

8. Dart Is Eager to Participate Constructively in a Workshop (cont.) • Michael Westerfield, Corporate Director of Recycling Programs • Industry expert in polystyrene foam recycling • Prepared to discuss foam recycling in California, including Dart’s new Municipal Foam Drop-Off Recycling Program • Dr. Mark Grey • California stormwater and waste expert • Prepared to discuss effectiveness of structural BMPs, evidence demonstrating ineffectiveness of bans, substitution effect • Others depending on Regional Board interest • E.g., economic and environmental benefits of foam