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...
State Water Board Continues Deadline for Compliance with New California Industrial General Permit for Stormwater until August 14, 2015
As an update to a previous write-up on the deadline for compliance with the new California Industrial General Permit for Stormwater (General Permit), the State Water Resources Control Board (State Water Board) has continued the deadline for registration and compliance from July 1, 2015 to August 14, 2015 . In a...
Deadline For Compliance With New California Industrial General Permit For Stormwater Is A Week Away (July 1, 2015)
On July 1, 2015, the new California Industrial General Permit for Stormwater (General Permit) will take effect and along with it come a host of new compliance obligations. Chief among those obligations is the completion and submission of a notice of intent (NOI) to be bound by the new...
Public Entities Can Inadvertently Waive Privilege in Response to a Public Records Act Request
California’s Public Records Act (PRA) law requires public entities to make their public records open for inspection and copying. Environmental practitioners often use PRA requests as a tool to obtain information regarding a contaminated or a potentially contaminated site. In a recent case, Ardon v. City of Los Angeles...
CEQA Lead Agencies Do Not Waive Defense that CEQA Did Not Apply Despite Proceeding under CEQA
Recently, the court in Rominger v. County of Colusa found that a lead agency which approved a mitigated negative declaration for a project, can take the seemingly inconsistent position that the proposed project was not a California Environmental Quality Act (CEQA) project or was exempt from CEQA when its...
The Sunset Will Last a Little Longer - UST Fund Extended
On September 25, 2014, Governor Brown signed SB 445 (Hill) Underground storage tanks; hazardous substances: petroleum: groundwater and surface water contamination into law (UST Law). The UST Law was an urgency measure that took effect immediately. The UST Law makes changes to the Underground Storage Cleanup Fund (UST Fund...
Substantive Dispute over Land Application of Biosolids Remains Unresolved
Form over substance continues to obscure the substantive issue presented in the case of the City of Los Angeles (City) vs.Kern County (County) . At its core, the dispute involves the land application of biosolids. Biosolids are organic material produced during the processing and treatment of wastewater. Historically, waste...
City’s Decision to Not Prepare an EIR Upheld Under Substantial Evidence Standard
Earlier this month, in Latinos Unidos De Napa v. City of Napa, the California Court of Appeals upheld the city of Napa’s determination that it did not have to prepare an environmental impact report (EIR) under the California Environmental Quality Act (CEQA) when enacting minor changes to its general plan and...
ASTM Issues New Standard For Phase I Environmental Site Assessments
On November 6, 2013, ASTM revised its standard for conducting Phase I environmental site assessments, known as Standard E1527-13 (entitled “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process”). ASTM E1527-13 is the first revision to the ASTM Phase I standard since its 2005 revision of the standard (known as...
EPA Issues New Superfund Guidance
Settlement plays a fundamental role in the Environmental Protection Agency’s (“EPA”) Superfund enforcement program. Potentially Responsible Parties (“PRPs”) seeking to resolve their liability through the settlement process should take note that EPA recently issued two new guidance memoranda on its settlement procedures. One memorandum sets forth revised procedures for...
Is Your Vehicle a CERCLA Facility?
While we tend to think of a CERCLA “facility” as the real property where environmental contaminants have come to be located, it is important to remember that CERCLA’s definition of “facility” is actually much broader than that and can serve to open the door to “Potentially Responsible Parties” not considered in...
CEQA EXCEPTION FOR BIKE LANES NEARING THE FINISH LINE
While most attempts to push-through last-minute CEQA reform were parked until next year, one bill, AB 2245, glided through the legislature and now heads to the finish line on Governor Brown’s desk for signature. The bill, which provides streamlined environmental review for certain bike lane projects, was unanimously passed by...
California State Water Board’s Low-Threat UST Case Closure Policy Is Now Effective
On May 1, 2012, the California State Water Resources Control Board (SWRCB) adopted via Resolution No. 2012-0016 the Water Quality Control Policy for Low-Threat Underground Storage Tank Case Closure (Low-Threat Closure Policy). The Low-Threat Closure Policy finally became effective on August 17th. This should be good news for the thousands of UST sites in California...
LITIGATION UPDATE: Writ of Certiorari filed in Solutia, Inc. v. McWane, Inc.
Recently, Solutia Inc. and Pharmacia Corporation filed a petition for writ of certiorari with the U.S. Supreme Court seeking to overturn the Eleventh Circuit’s ruling that a Potentially Responsible Party (“PRP”) conducting a cleanup pursuant to a consent decree is foreclosed from bringing a cost recovery action against other PRPs under...
LITIGATION UPDATE: CALIFORNIA SUPREME COURT GRANTS REVIEW OF L.A. LIGHT RAIL CASE
On August 8th, the California Supreme Court granted review of the Second District Court of Appeal’s decision in Neighbors for Smart Rail v. Exposition Metro Line Construction Authority. As previously blogged in April, the Second District found that a lead agency’s use of projected future conditions to measure the environmental impacts that a...
CALIFORNIA SUPREME COURT EXPANDS AVAILABLE POLICY LIMITS TO COVER ENVIRONMENTAL CLAIMS
On August 9, 2012, the California Supreme Court handed down its much anticipated decision in State of California v. Continental Ins. Co. The California Supreme Court held that the “all sums” method of allocation applies in California and that an insured can horizontally stack all successively triggered policies in...
Green Building Coming to a Home Near You
Yesterday, the California Energy Commission unanimously approved energy efficiency standards for new homes and commercial buildings. The new 2013 Building and Energy Efficiency Standards (Standards), which take effect on January 1, 2014, are projected to be 25 percent more efficient than previous standards for residential construction and 30 percent more efficient for nonresidential construction. For...
City Adopts Progressive General Plan Addressing Link Between the Built Environment and Public Health
Recently, the City of Richmond, a bay area industrial and commercial hub, approved an innovative General Plan that includes a comprehensive element dedicated to community health and wellness. The city’s General Plan, which will guide development in the city through the year 2030, is one of the first in the nation to recognize that...
CERTIFYING THE CERTIFIERS: GSA ONE STEP CLOSER TO CHOOSING A FEDERAL GREEN BUILDING PROGRAM
Last week, the U.S. General Services Administration (GSA) came one step closer to identifying a federally recognized green building certification system. The review, conducted by the Department of Energy (DOE) and commissioned by the GSA, narrowed down the list of candidates to three: the U.S. Green Building Council’s Leadership in Energy and Environmental Design (LEED), Green Building Initiative’s Green...
SMOG CHECK: EPA IMPLEMENTS THE 2008 OZONE STANDARDS
This week, the Environmental Protection Agency (EPA) took two next steps toward the implementation of the 2008 air quality standards for ground-level ozone, which is commonly referred to as smog: it finalized designations for every area of the country, with the exception of the Chicago-Naperville and Illinois-Indiana-Wisconsin area and issued a final rule relating to...
CVS Settles Hazardous Waste Suit
In a settlement reached in mid-April, CVS Pharmacy Inc. (CVS) agreed to pay almost $14 million to settle claims that it improperly stored and disposed of hazardous waste at its drugstores in California. In a suit brought in Ventura County Superior Court, prosecutors representing 45 cities and counties across...
Going Verde: Mexico Passes Climate Change Law
Last week, Mexico’s Senate passed a rather ambitious climate change law. And it did so with a 78 to 0 vote – something not seen too often in our country! This makes our neighbors to the south only the second nation in the world (the United Kingdom is the other) and...