EPA ISSUES NEW SUPERFUND GUIDANCE

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Contaminated Property

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 managing the duration of remedial design/remedial action negotiations and notably encourages the use of orders known as Unilateral Administrative Orders (“UAOs”) in the face of unsuccessful negotiations.

The recent memorandum, entitled Revised Policy on Managing the Duration of Remedial Design/Remedial Action Negotiations, and dated September 21, 2012, is aimed at strengthening EPA’s negotiation practice, shortening the duration of negotiations, and achieving timely settlements.  Of note to PRPs is that EPA’s new guidance strongly endorses use of UAOs, stating: “We encourage use of EPA’s UAO authority in appropriate cases as a key component to expediting the RD/RA negotiation process.”  The Guidance further cautions that “Potentially Responsible Parties (PRPs) should know during negotiations that EPA is willing and ready to issue a UAO if they unreasonably delay settlement.”  The memorandum is available here for further review.

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Natalie Reed | | | Leave a comment

Posted in Contaminated Property

Is Your Vehicle a CERCLA Facility?

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Contaminated Property

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 your initial cost recovery analysis.

Pursuant to CERCLA, the owner of a facility from which hazardous substances have been released is liable for the costs of responding to the release.  Two recent CERCLA cases  involving motor vehicles illustrate how CERCLA’s broad definition of “facility” expands CERCLA “owner” liability beyond ownership of contaminated real property to ownership of equipment and vehicles from which contaminates have been released.  These cases also provide us with an answer to the question:  Is your vehicle a CERCLA facility?  And the answer is:  It depends.

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Natalie Reed | | | Leave a comment

Posted in Contaminated Property

CEQA EXCEPTION FOR BIKE LANES NEARING THE FINISH LINE

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Green Building

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 the State Assembly on August 24th after receiving only one dissenting vote in the Senate.

AB 2245 exempts from the California Environmental Quality Act (CEQA) bike lane projects in urbanized areas that require repainting of streets and highways, as opposed to widening, when the restriping is consistent with a prepared bicycle transportation plan.  CEQA is the state’s landmark environmental law that requires a public agency to identify significant environmental impacts of projects it proposes to carry out or approve.  CEQA’s procedural and substantive requirements aim to prevent damage to the environment and encourage informed-decision-making.  Recently, the law has come under increasing fire for its potential to be misused for non-environmental purposes.  The law frequently results in extended project delays, and when the project being delayed is considered “green” or one that will reduce emissions of greenhouse gases, the law can seem counterproductive.

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Natalie Reed | | | Leave a comment

Posted in Green Building

California State Water Board’s Low-Threat UST Case Closure Policy Is Now Effective

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Contaminated Property

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 because the Low-Threat Closure Policy will hopefully make it easier to obtain closure.  At a minimum it defines more clearer criteria for obtaining closure.

The Low-Threat Closure Policy recognizes that many petroleum release cases pose a low-threat to human health and the environment. The policy’s purpose is to establish consistent California statewide case closure criteria for low-threat petroleum UST sites. To potentially qualify for closure, the site must satisfy eight general criteria (applicable to all sites), as well as media-specific criteria as it pertains to groundwater, vapor intrusion to indoor air and direct contact, and outdoor air exposure.  Below is a brief description of each of these criteria.

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Sedina L. Banks | | | Leave a comment

Posted in Contaminated Property, Uncategorized

LITIGATION UPDATE: Writ of Certiorari filed in Solutia, Inc. v. McWane, Inc.

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Environmental Litigation

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 CERCLA Section 107, and may only seek contribution from other parties under CERCLA section 113.  This ruling is significant because 1) unlike CERCLA section 107, section113 does not provide for joint and several liability against other PRPs, 2) under CERCLA section 113, PRPs that settle with the government are given contribution protection, and 3) the statute of limitations under section 107 and section 113 differs.

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Natalie Reed | | | Leave a comment

Posted in Environmental Litigation

LITIGATION UPDATE: CALIFORNIA SUPREME COURT GRANTS REVIEW OF L.A. LIGHT RAIL CASE

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Environmental Litigation

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 long-term infrastructure project would have on traffic and air quality did not violate the California Environmental Quality Act (CEQA).  The Second District’s decision put it at odds with holdings of the Fifth and Sixth District Court of Appeals, making the issue of whether CEQA prohibits the use of projected future baselines ripe for review.

Public agencies have long argued that using current-conditions to measure the impacts of major infrastructure projects that will not be completed for many years to come is not helpful in determining the true traffic and air quality impacts the project will have once operational.  The California Supreme Court will now decide whether CEQA allows public agencies to have the discretion to select a future baseline for long-term projects.  Our blog will keep you updated on the court’s decision.

Natalie Reed | | | Leave a comment

Posted in Environmental Litigation

CALIFORNIA SUPREME COURT EXPANDS AVAILABLE POLICY LIMITS TO COVER ENVIRONMENTAL CLAIMS

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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 an environmental property damage case involving a single occurrence causing continuous and progressive contamination throughout multiple policy years.

Therefore, a liability insurer is obligated to pay all sums the insured become obligated to pay for property damage attributable to a contaminated site up to policy limits as long as some of the continuous property damage occurred while that particular insurer’s policy was on the loss.  An insurer cannot limit its liability to just the amount of loss that occurred during its particular policy period.  The Supreme Court also concluded that absent specific “anti-stacking” policy language, an insured is entitled to “stack” the consecutive policy limits of each successively triggered policy to recover the limits of all policies on the risk for the loss.

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Jonathan B. Sokol | | | Leave a comment

Posted in Uncategorized

Green Building Coming to a Home Near You

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Green Building

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 new residential construction, the Standards include:

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Sedina L. Banks | | | Leave a comment

Posted in Green Building

City Adopts Progressive General Plan Addressing Link Between the Built Environment and Public Health

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Green Building

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 where people live, work and play has a fundamental effect on their health.  Development of this unique General Plan element was made possible by a $225,000 grant from The California Endowment and took place over an 18-month planning process, which coincided with the City’s overall general plan update process.

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Natalie Reed | | | Leave a comment

Posted in Green Building

CERTIFYING THE CERTIFIERS: GSA ONE STEP CLOSER TO CHOOSING A FEDERAL GREEN BUILDING PROGRAM

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Green Building

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 Globes and the International Living Building Institute’s Living Building Challenge.

By way of background, LEED has been the federal standard since 2006 and is certainly the most well-known of the programs, with 10,000 buildings having been awarded certification and over 150,000 professionals involved in the program. However, the Energy Independence and Security Act of 2007 (EISA) requires the GSA to make an evaluation every five years and identify a system that it “deems to be most likely to encourage a comprehensive and environmentally sound approach to certification of green buildings.” The EISA requires that sustainable design principles be applied to federal design and construction projects for new buildings and major renovations.

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Jenna Guggenheim | | | Leave a comment

Posted in Green Building

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Greenberg Blawg contains information of a general nature that is not intended to be legal advice and should not be considered or relied on as legal advice. Any reader of Greenberg Blawg who has legal matters involving information addressed on this website should consult with an experienced environmental law attorney. Greenberg Blawg does not create an attorney-client relationship with any reader of this website. The opinions expressed in the posts are the individual opinions of the authors and do not represent the opinions of Greenberg Glusker, its employees, agents, or clients.