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 snow packs, flowing rivers, and replenished reservoirs, the California landscape has been marked by the return of ephemeral vernal pools, which may appear as seemingly insignificant ponds or puddles.

However, under the Clean Water Rule (“CW Rule”) which was promulgated mid-last year, and which defines which waters are “jurisdictional”—meaning, protected as “waters of the United States” under the Clean Water Act (“CWA”)—the reach of federal jurisdiction may include those seemingly insignificant ponds or puddles.

If such a pond or puddle is deemed a “vernal pool” that is covered by the CWA, then the pond or puddle is subject to a myriad of CWA regulatory requirements, including the federal prohibition on discharges of pollutants except in compliance with the CWA (§ 301), the requirement to obtain a permit prior to discharge (§§ 402, 404), water quality standards (§ 303), oil spill liability and oil spill prevention and control measures (§ 311), certification of compliance with State water quality standards (§ 401), and enforcement (§ 309).

David E. Cranston, chair of the Environmental Law Group, was published in Smart Business Magazine regarding how clients can avoid being stuck with cleanup costs in environmental contamination cases.

A client of ours faced significant costs in cleaning up property contaminated by the operations of its tenants many years earlier. The client’s former counsel who opined the pursuing claims against the tenants, who were mostly out of business, was not worth the time or money. Our investigation indicated otherwise. We learned that a tenant with a small scrap operation in the 1950s had changed names, and its business, through a series of transactions, was acquired by a large publicly traded company. Another tenant who was no longer doing business had significant insurance assets. After prosecuting the claims that our client was about to abandon, we recovered several million dollars to pay for the cleanup.

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Recently, the Polluting StacksCalifornia Air Resources Board or ARB adopted its long-anticipated regulations for controlling greenhouse gas emissions (GHGs) through a market-based cap and trade system. California’s regulations represent a significant development in the regulation GHGs. California could well set the model for similar controls in other states and will certainly stoke the nationwide debate over GHG regulations.

The ARB will set caps based on 2012 emissions for the state’s largest GHG emitters, including power plants, refineries, and other large industrial facilities. The cap will decline each year. Other sources will be phased in over time. The cap to be set, and the distribution of allowances, will be subject to considerable debate. The allowances will be distributed without cost early in the process, but will transition to an auction based system administered by the ARB.
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In another recent decision on the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. §9601 et seq., the Ninth Circuit clarified that the “current” owner is the owner at the time that cleanup costs are incurred for purposes of imposing liability under the act. Enacted thirty years ago, CERCLA is a federal law that creates a scheme for imposing strict liability for the investigation and remediation of contaminated property.

WetlandsCERCLA imposes cleanup liability on “current” owners of the contaminated property regardless of when the contamination actually occurred. For example, if a person owns a property that is contaminated with a hazardous substance, under CERCLA they are responsible to cleanup the property even if they did not cause the contamination. Past owners are only responsible if the contamination of the property occurred during their ownership.
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