ELG wins a Writ of Administrative Mandate for client in Marin County

Posted by in Administrative Law, CEQA, Environmental Legislation and Regulation on October 7, 2016

On September 19, 2016, Marin Superior Court Judge Paul M. Haakenson granted judgment in favor of ELG’s client, the Point San Pedro Road Coalition (“Coalition”), on its Petition for a Writ of Administrative Mandate (“Petition”).  (See decision here.)  ELG filed the Petition on behalf of the Coalition in 2015 to vacate the Marin County (“County”) Board of Supervisor’s September 15, 2015 decision, by a unanimous 5-0 vote, to approve the permit amendment sought by the San Rafael Rock Quarry (“Quarry”) to allow it to import used asphalt for recycling. That exact activity previously had been found to be outside the Quarry’s vested rights by Marin County Superior Court Judge John Sutro Jr. in 2004, after a 2003 trial conducted by ELG on behalf of Coalition. The Quarry is a non-conforming use on its own property, the result of a re-zoning obtained by a prior owner of the Quarry in 1982 in anticipation of the closing of the Quarry, an event the current owner has delayed.

ELG argued, both in a previous Petition filed in 2013, and again in its 2015 Petition (when the permit amendment was re-approved by the County), that the County’s approval of the quarrying permit amendment was: 1) a violation of Judge Sutro’s prior injunction against that precise activity, 2) contrary to the Quarry’s own acknowledgement at the 2003 trial that it had no vested right to conduct that activity, and 3) an approval of the expansion of a non-conforming use in violation of the County’s zoning regulations. Relying on all three legal grounds asserted by ELG for the Coalition, the Court agreed that the County’s approval of the permit amendment was contrary to law. Judge Haakenson’s decision states that the Court will issue a writ of administrative mandate ordering the County to immediately vacate its approval of the Quarry’s Permit amendment request.

ELG also represented the Coalition in the 2003 trial to determine the Quarry’s vested rights on its legal, non-conforming use property, and throughout the CEQA environmental review process concerning the amended quarrying permit imposed on the Quarry, which took place over six years following the conclusion of the trial.


EPA Releases Draft Vapor Intrusion Guidance

Posted by in Due Diligence, Environmental Legislation and Regulation on May 15, 2013

On April 11, 2013, the EPA released draft final vapor intrusion guidance (“Guidance”) for assessing and mitigating vapor intrusion pathways from subsurface sources to indoor air.  The Guidance presents EPA’s current recommendations for identifying and considering key factors when assessing vapor intrusion, making risk management decisions, and implementing mitigation measures pertaining to this potential human exposure pathway.  The Guidance addresses both residential and nonresidential buildings that may be impacted by vapor intrusion from subsurface contamination.  The Guidance applies to any site being evaluated by EPA pursuant to CERCLA or RCRA, EPA’s brownfield grantees, or state agencies with delegated authority to implement CERCLA or RCRA where vapor intrusion may be of potential concern.  For State lead sites, stakeholders still should consider the application of State guidance on vapor intrusion issues, such as the California Dept. of Toxic Substances’ “Guidance for the Evaluation and Mitigation of Subsurface Vapor Intrusion to Indoor Air” (Oct. 2011).

EPA defines vapor intrusion as follows: “certain hazardous chemicals that are released into the subsurface as liquids or solids may form hazardous gases (i.e., vapors) that migrate through the vadose zone and eventually enter buildings as a gas by migrating through cracks and gaps in basement floors and walls or foundations, including perforations due to utility conduits and any other openings (e.g., sump pits).”  “Vapor intrusion is the general term given to migration of hazardous vapors from any subsurface contaminant source, such as contaminated soil or groundwater, through the vadose zone and into indoor air.”  “Vapor intrusion can occur in a broad range of land use settings, including residential, commercial, and industrial, and affect buildings with virtually any foundation type (e.g., basement, crawl space(s), or slab on grade).”

Topics addressed in the Guidance include: (1) a conceptual modeling of vapor intrusion; (2) considerations for nonresidential buildings; (3) preliminary analysis of vapor intrusion; (4) detailed investigation of vapor intrusion; (5) setting a risk management framework; (6) building mitigation and subsurface remediation; (7) preemptive mitigation/early action; and (8) planning for community involvement.  Appendices to the Guidance include: a list of chemicals of potential concern for vapor intrusion; a list of generic attenuation factors used to develop screening levels; data quality assurance considerations; and a formula for calculating vapor source concentrations from groundwater data.

EPA recommends consideration of these Guidelines when making “current human exposures under control” environmental indicator determinations at RCRA corrective action facilities and National Priorities List sites under CERCLA;

when undertaking removal actions, remedial actions, pre-remedial investigations, remedial investigations, and five-year reviews under CERCLA; and when undertaking RCRA facility investigations and corrective actions and site investigations and cleanups at federal facilities and brownfield sites.

Along with its Guidance, EPA released additional guidance providing information and direction about how vapor intrusion should be assessed for petroleum hydrocarbons (“OUST Guidance”).  The OUST Guidance may be useful in informing decisions about vapor intrusion and petroleum hydrocarbons at brownfield sites.

EPA also issued a Vapor Intrusion Screening Level (“VISL”) Calculator which is a recommended spreadsheet that: identifies chemicals considered to be typically vapor-forming and known to pose a potential cancer risk or noncancer hazard through the inhalation pathway; provides generally recommended screening-level concentrations for groundwater, near-source soil gas (exterior to buildings), sub-slab soil gas, and indoor air based upon default residential or nonresidential exposure scenarios, a target cancer risk level of one per million, and a target hazard quotient of one for potential non-cancer effects; and facilitates calculation of site-specific screening levels based on user-defined target risk levels, exposure scenarios, and semi-site-specific attenuation factors.

EPA is accepting comments on the draft final Guidance until May 24th, 2013.  You can find the Guidance and OUST Guidance here.

New EPA Policy Re: Bona Fide Prospective Purchaser Benefits for Tenants

Posted by in CERCLA, Due Diligence, Environmental Legislation and Regulation on May 14, 2013

In December 2012, the Environmental Protection Agency (“EPA”) adopted a new policy setting forth the conditions on which the agency will consider providing CERCLA bona fide prospective purchaser (BFPP) protection to tenants who lease formerly or currently contaminated property.  Previously, such protections were only available to purchasers of such property.  Although the EPA will continue to use its enforcement discretion on a site-specific basis to the extent appropriate based on the facts regarding each property, this new policy provides tenants with guidance on how to qualify for these potential new protections.

Section 107(r)(1) of CERCLA provides statutory liability protection for certain owners or operators of property, called bona fide prospective purchasers or “BFPPs.” CERCLA § 107(r)(1) states: “Notwithstanding subsection (a)(1) of this section, a bona fide prospective purchaser whose potential liability for a release or threatened release is based solely on the purchaser’s being considered to be an owner or operator of a facility shall not be liable as long as the bona fide prospective purchaser does not impede the performance of a response action or natural resource restoration.”  CERCLA § 101(40) defines a BFPP as “a person (or a tenant of a person) that acquires ownership of a facility after [January 11, 2002]” and that establishes each of the following by a preponderance of the evidence: (A) “all disposal of hazardous substances at the facility occurred prior to acquisition; (B) the person made all appropriate inquiries (‘AAI’) into the previous ownership and uses of the facility; (C) the person provides all legally required notices with respect to the discovery or release of any hazardous substances at the facility; (D) the person takes reasonable steps with respect to hazardous substances found at the facility by taking reasonable steps to stop any continuing release, prevent any future threatened release; and prevent or limit human, environmental or natural resource exposure to any previously released hazardous substances;  (E) the person provides cooperation, assistance, and access to persons authorized to conduct response actions or natural resource restoration;  (F) the person complies with land use restrictions and institutional controls; (G) the person complies with information requests and administrative subpoenas; and (H) the person is not potentially liable, or affiliated with any other person that is potentially liable, for response costs at the facility through any direct or indirect familial relationship or any contractual, corporate or financial relationship or the result of a reorganization of a business entity that was potentially liable.

The new EPA policy document indicates that since CERCLA § 101(40) applies to a person, or a tenant of a person, that acquires ownership of a parcel after January 11, 2002, that a tenant may derive BFPP status from an owner who satisfies the BFPP criteria.  The tenant would therefore remain a BFPP as long as the owner maintained its BFPP status.  However, when a tenant derives BFPP status through an owner and the owner fails to maintain its BFPP status, the tenant would also lose its BFPP status.  If this occurs, EPA now indicates that it may exercise its enforcement discretion to continue to treat the tenant as a BFPP under CERCLA § 107(r)(1).  This would likely happen if the tenant continues to meet the BFPP requirements set forth in CERCLA § 101(40) and § 107(r)(1), despite the owner failing to do so.

Additionally, the new EPA policy provides that to qualify for BFPP status, a tenant is not required to conduct an AAI if an appropriate AAI already was conducted by the owner.  The tenant also would not be considered to be “affiliated” with the owner by EPA, despite the lease between them.

Where a tenant leases property from an owner who was never a BFPP, the EPA will again exercise its enforcement discretion on a site-specific basis to treat the tenant as a BFPP if the tenant can independently meet CERCLA’s BFPP requirements.   Since CERCLA § 101(40) indicates that a person must have acquired ownership of a facility after January 11, 2002 to qualify for BFPP liability protection, tenants whose lease agreements are executed after January 11, 2002 will be eligible for BFPP under the EPA’s discretion.

EPA explains that it may not exercise its enforcement discretion under certain circumstances such as where “the lease is designed to allow the landlord or tenant to avoid its CERCLA liability or the tenant is potentially liable for reasons other than its status as a tenant and if the owner is not in compliance with state or federal regulatory requirements or administrative or judicial cleanup order or decrees relating to the leased property.“  Lastly, EPA will usually not engage in a determination of a tenant’s BFPP status until an enforcement situation exists, so it appears that EPA will not issue “comfort letters” to prospective tenants or tenants who would like confirmation that they are entitled to BFPP status.

California Passes AB 1442, which Defines “Pharmaceutical Waste” and Authorizes its Transportation by Generators or Common Carriers under Certain Conditions

Posted by in Emerging Issues, Environmental Legislation and Regulation on April 1, 2013

A pharmaceutical waste hauling bill, AB 1442 (Wieckowski), was chaptered into law on September 29, 2012 and went into effect on January 1, 2013.  AB 1442 amends California’s Medical Waste Management Act (MWMA),[1] to define “pharmaceutical waste” and permit its transportation by generators or common carriers, provided that certain requirements are met.

Prior to AB 1442, the MWMA required that all medical waste be hauled by a registered hazardous waste handler, unless the hauler obtained an approved limited-quantity exemption.  Pharmaceutical drugs could be hauled by common carrier, but pharmaceuticals designated as waste (such as expired drugs) were classified as medical waste and required to be shipped as hazardous waste.  AB 1442 changes existing law to allow, if specific requirements are met, the transport of pharmaceutical waste through self-transport or common carrier in certain situations where: (1) unwanted pharmaceuticals are sent into reverse distribution, or (2) generators of pharmaceutical waste transport it for consolidation prior to treatment and disposal.

AB 1442 defines “pharmaceutical waste” as any “pharmaceutical” that is “waste,” as those terms are defined in pre-existing provisions of the MWMA.[2]  The pre-existing definition of “pharmaceutical” includes prescription and over-the-counter drugs, but exempts all drugs that fall within the definition of hazardous waste by the Resource Conservation and Recovery Act (RCRA) or the California Radiation Control Law (RCL) (these statutes have their own transportation requirements for qualifying pharmaceuticals). Whether or not particular pharmaceutical waste is classified as a RCRA or RCL hazardous waste depends on a number of factors, such as ignitability, corrosivity, reactivity, and toxicity.  AB 1442 does not modify the transportation requirements for pharmaceuticals that are regulated by RCRA or the RCL.

AB 1442 exempts unwanted pharmaceuticals from the definition of “pharmaceutical waste” if they are being sent to a properly-licensed reverse distributor.[3]  Accordingly, unwanted pharmaceuticals now may be sent into reverse distribution by self-transport or common carrier.  One caveat is that if the unwanted pharmaceuticals are sent to a reverse distributor located within California, the reverse distributor must be a permitted medical waste transfer station.  Reverse distribution is the practice of pharmaceutical dispensers returning pharmaceuticals to their manufacturer, or an agent of their manufacturer.  Under California law, a reverse distributor is defined as every person who acts as an agent for pharmacies, drug wholesalers, manufacturers, and other entities by receiving, inventorying, and managing the disposition of outdated or unsalable drugs.[4]  The drugs may be unwanted and returned for various reasons, such as oversupply, expiration, recall, shipping error, or damage.

AB 1442 also allows pharmaceutical waste that is being transported for consolidation before treatment and disposal to be self-transported or transported by common carrier where specific requirements are met.  Where the requirements are met, the generator of pharmaceutical waste may self-transport it to “a parent organization or another health care facility for the purpose of consolidation before treatment and disposal.”  Or, if the requirements are met, the generator may contract with a common carrier “to transport the pharmaceutical waste to a permitted medical waste treatment facility or transfer station.”[5]  The requirements for the “consolidation” classification include, but are not limited to, providing notices and confirmations among the transporting entities and reporting discrepancies to enforcement agencies.  Generators are also required to be properly registered and/or have prepared medical waste management plans pursuant to various statutes depending on the status of the generator.

Advocates of the bill, including the City of San Jose and the County of Alameda, recommended passage of AB 1442, claiming the bill will make it more likely that pharmaceutical waste will be disposed of properly because use of self-transport or common carriers in reverse distribution will reduce the cost to recover the pharmaceutical waste.

[1] Cal. Health & Safety (“H&S”) Code §§ 117600 – 118360.

[2] H&S Code § 117748(a), referencing H&S Code §§ 25124 and 117747.

[3] H&S Code § 117748(b), referencing Cal. Bus. & Prof. Code §§ 4040.5, 4160 and 4161.

[4] H&S Code § 4040.5

[5] H&S Code § 118032.

ELG wins Summary Judgment for CNA in Asarco’s $33M CERCLA Contribution Claim Suit

Posted by in CERCLA, Environmental Legislation and Regulation, Environmental Litigation on June 29, 2012

On June 6, 2012, U.S. District Judge William Alsup granted summary judgment to ELG client CNA Holdings, LLC (“CNA”) in a CERCLA § 113(f) contribution suit brought against it by Asarco LLC.  COURT ORDER   Asarco filed the suit in 2011 against CNA, and several other defendants, to recoup a substantial portion of $33 million in anticipated cleanup costs it paid to DTSC in settlement of a bankruptcy claim filed by DTSC regarding a Superfund site in northern California known as the Selby Slag Site.  The Selby Slag Site was formerly the location of a smelter operated by ASARCO on the shore of San Francisco Bay for over 50 years.  In 1989, ASARCO had entered into a prior settlement regarding the allocation of past and future Selby Slag Site response costs with the State Lands Commission and Wickland Oil Company.


Court of Appeal Requires Strict Compliance with CEQA 30-Day Public Notice Requirements

Posted by in CEQA, Emerging Issues, Environmental Legislation and Regulation on July 27, 2011

The California Court of Appeal, in Latinos Unidos De Napa v. City of Napa, 196 Cal. App. 4th 1154 (June 27, 2011), held that the City of Napa (“City”), which filed a CEQA Notice of Determination (“NOD”) with the County Clerk’s office, did not satisfy the 30-day posting and filing requirement when the notice was removed from the County Clerk’s office mid-day on the 30th day.  As a consequence, the plaintiff, an affordable housing advocate group, was allowed 180 days from the City’s approval of the project to challenge the CEQA NOD under Public Resources Code section 21167(a).

Public Resources Code section 21152(c) requires a County clerk to post the NOD “for a period of 30 days.”  The Court looked to Code of Civil Procedure section 12 for clarification on the timing requirement and determined that the “30-day” period excludes the first day of posting and includes the last day.  The Court clarified that “the NOD must be posted for the entire last (30th) day to satisfy the 30-day posting requirement.”  196 Cal. App. 4th at 1157-1158.  Since the City only posted the NOD for part of the 30th day, and not until the County Clerk’s office closed, the 30-day notice requirement was not met.  The City argued that because it filed the NOD with the County Clerk that action alone satisfied the 30-day posting and filing requirement of Public Resources Code section 21152, relying on CEQA Guidelines section 15094(g).  However, the Court of Appeals determined that CEQA Guidelines section 15094(g), like Public Resources Code section 21152, provides that a NOD must be both filed and posted, and thus rejected the City’s argument.

EPA and DOT Propose To Regulate Greenhouse Gas Emissions For Heavy Trucks

Posted by in Clean Air, Emerging Issues, Environmental Legislation and Regulation on November 1, 2010

Responding to a Presidential directive to take coordinated steps to produce a new generation of clean vehicles, the U.S. Environmental Protection Agency (EPA) and the U.S. Department of Transportation (DOT) announced last week the first ever national standards to reduce greenhouse gas emissions and improve fuel efficiency of heavy-duty highway vehicles.  This broad sector of vehicles – ranging from large pickups to sleeper-cab tractors – represents the second largest contributor to oil consumption and greenhouse gas emissions, after light-duty passenger cars and trucks.  The program is projected to reduce greenhouse gas emissions by an estimated 250 million metric tons and save 500 million barrels of oil over the lives of the vehicles produced during the program’s first five years.


California Proposes To Regulate Nanomaterials as Chemical Substances

Posted by in Emerging Issues, Environmental Legislation and Regulation, Green Chemistry on October 12, 2010

Nanotechnology, the study of the controlling of matter on an atomic and molecular scale, promises a number of benefits to society.  If current trends in manufacturing are any indication, this emerging technology is here to stay.  The August 21, 2008 Project on Emerging Nanotechnologies estimated that over 800 manufacturer-identified nanotechnology products are publicly available, with 3 to 4 new products arriving in the market place per week.

Early research has established that while some types of nanomaterials are seemingly inert, others may be highly toxic.  Thus, the field of nanotechnology is ripe for regulatory intervention.  Policy makers in several jurisdictions are already establishing legal frameworks for the management of nanotechnology.  For example, the federal Toxic Substances Control Act (“TSCA”) already includes nanoscale materials within its definition of “chemical substances.”  And if recent legislative proposals to overhaul TSCA become law, the level of federal regulatory scrutiny of nanotechnology will expand, subjecting manufacturers and processors to additional notification, reporting and review procedures.


California Releases Proposed Green Chemistry Regulation

Posted by in Emerging Issues, Environmental Legislation and Regulation, Green Chemistry on September 16, 2010


On September 14, 2010, California’s Department of Toxic Substances Control (“DTSC”) released the Green Chemistry Proposed Regulation for Safer Consumer Products, also known at the “Green Chemistry” regulations.  DTSC’s adoption of the regulation, required by AB 1879 (Feuer, 2008), was signed into law by Governor Schwarzenegger and establishes a process for the identification and prioritization of chemicals of concern and the performance of alternatives assessments. 

According to Linda Adams, Secretary of the California Environmental Protection Agency, “[t]his regulation propels California to the forefront of the nation and the world with the most comprehensive Green Chemistry program and will lead to safer products for consumers.”


Ninth Circuit Defines “Current Ownership” for Purposes of CERCLA Liability

Posted by in CERCLA, Environmental Legislation and Regulation on August 5, 2010


In Dept. of Toxic Substances Control v. Hearthside Residential Corp., No. 09-55389 (9th Cir. July 22, 2010), the Ninth Circuit has clarified the issue of whether “owner and operator” status under CERCLA is defined at the time cleanup costs are incurred or instead at the time that a recovery lawsuit seeking reimbursement is filed, a question of first impression.  The Ninth Circuit held that current ownership is measured at the time of cleanup, and therefore “the owner of the property at the time cleanup costs are incurred is the current owner for purposes of determining CERCLA liability.”   (more…)