GREENberg bLAWg Posts
Visit the Full BlogWhere the Law and the Environment Connect. Tox of the Town is a blog written by attorneys in Greenberg Glusker’s Environmental Law Group. With years of legal, technical, and business know-how experience, we look forward to providing our readers with timely updates on environmental issues. Subscribe to our blog today to receive updates on changing environmental laws, regulatory and compliance issues, ongoing litigation, and more.
ASTM Adopts a New Phase I Environmental Site Assessment Standard
Environmental Partner, Sedina Banks, published "ASTM Adopts a New Phase I Environmental Site Assessment Standard" in the Fall 2022 issue of NAIOP's Development Magazine. In her article, she discusses the revisions made to ASTM's Phase I environmental site assessment standard and how it will affect commercial real estate transactions. Sedina...
Recent Developments in the Regulation of PFAS
In response to the growing concern regarding per – and polyfluoralkyl substances (“PFAS”), the federal government and California have taken recent actions to regulate PFAS. By way of background, PFAS are man-made chemicals used for decades and found in many different commercial, industry, and consumer products such as non-stick...
Here at Last! DTSC’s 2022 Vapor Intrusion Advisory
Last month, the California Department of Toxic Substances Control (“DTSC”) issued its long-awaited “Vapor Intrusion Update” (“Advisory”) which is intended to guide the selection of attenuation factors (“AFs”) at contaminated sites overseen by DTSC. For folks frantically Googling the term “attenuation factors,” I’ll save you some time: attenuation factors are...
California’s Supreme Court Opens Gates to Prop. 65 Lawsuits Against Amazon.com
Last month, the California Supreme Court created some e-commerce waves when it declined to review a Court of Appeals decision allowing California Proposition 65 (“Prop. 65”) lawsuits against retail giant Amazon.com. The decision arguably allows customers to sue Amazon.com and similar e-commerce companies for failing to warn buyers that products...
Who is Subject to California's Proposition 65 Warning Requirements?
Environmental Law Partner, Sedina Banks, presented a webinar "California’s Proposition 65: Background, Compliance, and Strategy" to members of the Association of Corporate Counsel - Southern California and the International Society of Primerus Law Firms. In this video clip, she discusses who is subject to California’s Proposition 65 warning requirements.
Overview of Key 2021 Environmental Cases
Environmental Partner, Brian Moskal, recently presented at Greenberg Glusker's CLE Last Dash series discussing key 2021 environmental law cases. View the video below to learn about four key environmental cases under CERCLA, the Clean Air Act, and the Clean Water Act that impact various industries.
Environmental Insurance: Paper Worth Millions
Your client calls frantic because he has just been served with a lawsuit from an adjacent property owner who claims that the historic dry-cleaning operations on your client’s property have contaminated the groundwater. The complaint seeks millions of dollars for cleanup costs. Another client calls. She wants to purchase...
Lofty Goals & Long Horizons: CARB’s 2022 Scoping Plan Targets Carbon Neutrality by 2045
This past summer, we have seen the risks of climate change manifest worldwide in the form of rising sea levels, severe droughts, massive wildfires, devastating floods, extreme heat, and other ecological disasters. Fifteen years ago, under the California Global Warming Solutions Act of 2006 (AB 32), California began efforts...
Back to School for Administrators: New K-6 Ban List and Laws Regulating Art Supplies
As schools reopen and in-person learning resumes, school teachers and administrators should be aware of laws regulating the purchasing of art supplies in schools. A preview of some of these laws is as follows: The California Education Code (Cal. Education Code § 32064, et seq. ) prohibits the purchase...
The Ever-Shifting Landscape of Prop 65 Acrylamide Regulation
It has thus far been a noteworthy year for acrylamide, a Proposition 65-listed substance that naturally forms in the cooking and heating of many plant-based foods. Both the courts and the California Office of Environmental Health Hazard Assessment (“OEHHA,” the agency tasked with enforcing Proposition 65’s warning requirements) appear to be...
Offshore Drilling Project Dealt Setback by Ninth Circuit
Earlier this month, the Ninth Circuit dealt a setback to oil and gas interests, vacating the U.S. Department of the Interior’s Bureau of Ocean Energy Management (BOEM)’s approval of the “Liberty Project” – a offshore drilling and production facility located off the coast of Alaska in the Beaufort Sea...
Trump Methane Rollbacks May Spark Litigation, Hinder Greenhouse Gas Regulation
Originally published on Bloomberg Law The Trump administration’s new final rules governing methane emissions in the oil and gas industry culminate a multi-year process to roll back limitations promulgated toward the end of the Obama administration. Though the rules address new sources, the changes may directly affect EPA regulation...
California issues draft guidance for vapor intrusion to indoor air
California environmental agencies recently issued a draft vapor intrusion guidance document that will significantly impact the investigation and remediation of environmentally impacted properties by owners, operators and potential buyers. The guidance document will also impact real estate deals and development involving those properties. The California State Water Resources Control...
Atlantic Richfield Co. v. Christian – Perpetuating the Cycle of Supreme Court Environmental Law Decisions that Spark Litigation and Confusion
The U.S. Supreme Court has a history of rendering muddled decisions when interpreting key environmental statutes, and with its decision in Atlantic Richfield Co. v. Christian et al., history repeats itself. Case Overview The underlying case has a long procedural and factual background, having ping-ponged up to the Montana...
SF Regional Board attempts to clarify vapor intrusion approach
The San Francisco Regional Water Quality Control Board recently issued a fact sheet summarizing changes to its approach to remediating environmental impacts and mitigating vapor intrusion (VI) at properties impacted with volatile organic compounds (VOCs). This follows a January 2019 update to the Board’s vapor intrusion environmental screening levels—which...
Superfund Case in the U.S. Supreme Court - Unintended Consequences?
In a recent interview with Ellen Gilmer at E&E News, I provided insights about a new case on the Supreme Court docket involving the Anaconda Smelter Stack and surrounding Superfund area in Montana. Overall, the article discussed the potential for unintended consequences if landowners in the long-running dispute over the Superfund...
Even Your Parking Structure Violates Prop 65
The Prop 65 “Clear and Reasonable Warnings” updates that became effective in August 2018 contain lots of traps for the unwary, including one that you might not have noticed: tailored Prop 65 warnings are required at each of the public entrances to your enclosed parking facilities. To avail your regulated...
Superior Court Invalidates Hexavalent Chromium Drinking Water Standard
Earlier this month, Judge Christopher E. Krueger of the Sacramento Superior Court issued an order invalidating the Maximum Contaminant Level (MCL) for hexavalent chromium . The California Department of Public Health (“DPH”) established an MCL of 10 μg/L, or parts per billion (ppb), pursuant to a rulemaking effort that concluded in 2014...
RCRA Update: New Hazardous Waste Generator Rule Goes Into Effect in May 2017
EPA’s final Hazardous Waste Generator Improvements Rule (“Rule”), which goes into effect on May 30, 2017, contains approximately 60 revisions to the hazardous waste generator regulatory program. The revisions focus on improving efficiency, and compliance for hazardous waste generators—which is quite appropriate given EPA’s estimated hazardous waste non-compliance rate...
Shell Pays Big for Double Dipping with the UST Fund
Last week, the California State Water Resources Control Board (State Water Board) announced that it permanently banned 100 of Shell Oil Company’s underground storage tank (UST) claims from the California UST Cleanup Fund (Fund) for allegedly claiming reimbursement through false or misleading statements on its claim forms. The State...
U.S. EPA’s Proposed Rule Would Modernize NPDES Regulations
Earlier this month, the United States EPA proposed a rule (“Proposed Rule”) that would update and revise National Pollutant Discharge Elimination System (“NPDES”) regulations. Rather than reopening the existing NPDES regulations for comprehensive revision, the Proposed Rule would make “specific targeted changes to the existing regulations” that align the...
California Supreme Court Finds that a Public Agency Cannot Inadvertently Waive Attorney-Client and Work Product Privileges
Last year, I wrote about the Second Appellate District case of Ardon v. City of Los Angeles . In Ardon , the appellate court found that a public agency can waive statutory privileges that it otherwise would have if it produces privileged documents in response to a California Public Records Act...
In the Heart of the Rainy Season: The New (Stayed) Clean Water Rule Covers Vernal Pools in California
After years of drought, the El Niño storms have been bringing much-needed rain and snow to California–albeit in quantities significantly less than we hoped for thus far. In addition to the anticipated snowpacks, flowing rivers, and replenished reservoirs, the California landscape has been marked by the return of ephemeral...
Proposed Rule Adding Vapor Intrusion Component to Hazard Ranking System Published in the Federal Register Today
Today the U.S. Environmental Protection Agency published a proposed rule in the Federal Register which would add a vapor intrusion component to the Hazard Ranking System, the system EPA uses to evaluate sites for placement on the National Priorities List (“NPL”). We forecasted and discussed the publication of this...
Proposed Rule Adding Vapor Intrusion Component to Hazard Ranking System Will Likely Appear in Federal Register This Month
A proposed rule that would add a vapor intrusion component to the Hazard Ranking System (“HRS”), the primary screening tool for the CERCLA National Priorities List (“NPL”), is scheduled for publication in the Federal Register this month. NPL listing is a prerequisite for designation as a federal Superfund site...
Required Action on the Horizon for California Consumer Products Companies
Yesterday, the Department of Toxic Substances Control (“DTSC”) released its draft Stage 1 Alternatives Analysis Guide (“Guide”) under the California Safer Consumer Products program. Public comments are being accepted on the Guide through October 24, 2015, and DTSC is specifically asking commenters to “provide the names of tools, methods, approaches, and data sources not already...
Can a Public Agency Inadvertently Waive Attorney-Client & Work Product Privileges? First and Second Appellate District Split on the Issue
In January, I wrote about the Second Appellate District case of Ardon v. City of Los Angeles . In Ardon , the court found that a public entity can waive statutory privileges that it otherwise would have if it produces privileged documents in response to a California Public Records Act (PRA...
State Water Board Approves Composting General Order
Earlier this month, the California State Water Quality Control Board (“State Water Board”) approved a General Order for Waste Discharge Requirements (“WDRs”) for composting operations, which will streamline and standardize permitting processes and regulate water quality at new and existing composting facilities. While the General Order was approved with...
Insurance Protection for Losses May Be Freely Assigned in Connection with a Corporate Sale or Reorganization
On August 20, 2015, the California Supreme Court handed down its much-anticipated decision in Fluor Corporation v. Superior Court (Hartford Accident & Indemnity Company) . The court held that Insurance Code §520, a seldom cited provision of the Insurance Code dating back to 1935, bars an insurer from refusing...
EPA Must Consider Costs in Deciding Whether to Regulate HAPs From Power Plants
Last week, in Michigan v. EPA , the U.S. Supreme Court held that it was unreasonable for the U.S. Environmental Protection Agency (“EPA”) to refuse to consider costs in connection with its finding that it was “appropriate and necessary” to regulate hazardous air pollutant (“HAP”) emissions from power plants...
