A force majeure clause in a contract permits the suspension, or in some cases, the termination, of performance by a party to the contract upon the occurrence of a force majeure event. Traditionally, a force majeure event is a matter outside of the control of the obligated party that makes it impossible or impracticable for
CDFW Proposes New Regulations for Oil Spill Management Team Certification with a September 14 Comment Deadline
Last week, the California Department of Fish and Wildlife (“CDFW”) Office of Spill Prevention and Response (“OSPR”) issued notice that it proposes to add ten new regulations (sections 830.1 through 830.11 to Title 14 of the California Code of Regulations) to implement statutory changes resulting from Assembly Bill (“AB”) 1197. AB 1197 establishes criteria and a process for the certification of oil spill management teams. …
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Supreme Court Holds Clean Water Act Permit Required for Some Discharges to Groundwater
Last Thursday, the U.S. Supreme Court held that the Clean Water Act (“CWA”) requires a permit to discharge pollutants that reach “navigable waters” through groundwater, but only if the discharge is the “functional equivalent of a direct discharge” to the navigable water.1 In reaching this decision, the Court took the middle ground. It rejected both the Ninth Circuit’s interpretation that the CWA requires a source to obtain a permit whenever pollutants found in a navigable water are “fairly traceable” to that source, and arguments by Environmental Protection Agency (“EPA”) and others that a permit is never required for discharges of pollutants that reach a navigable water through groundwater.
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U.S. Supreme Court Holds that CERCLA Does Not Block State Law Claims Seeking Restoration, Subject to EPA Approval
In a split decision in which Chief Justice John Roberts authored the majority opinion, the United States Supreme Court held yesterday in Atlantic Richfield Co. v. Christian that the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”) does not bar a plaintiff’s ability to bring state law claims in state court for property damage, such as nuisance and trespass claims, that do not arise under CERCLA. The Supreme Court further held that plaintiffs can bring restoration claims against potentially responsible parties (“PRPs”) for remediation beyond what the Environmental Protection Agency (“EPA”) requires under CERCLA, but any additional remedial action must be approved by the agency. …
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DTSC and SWRCB Release Draft Supplemental Vapor Intrusion Guidance
On February 14, 2020, the State Water Resources Control Board (SWRCB) and the California Department of Toxic Substances Control (DTSC) issued a public notice regarding the release of Draft Supplemental Guidance: Screening and Evaluating Vapor Intrusion (Draft Guidance) that supplements existing vapor intrusion guidance issued in 2011. The Draft Guidance is now available for public review and comment. Comments are due by 12:00pm on April 30, 2020.
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California Court of Appeal Rejects “Substantial Factor” Test for Regional Board to Issue a Cleanup and Abatement Order to a Responsible Person
After years of investigation, the San Diego Regional Water Quality Control Board (“Regional Board”) issued a cleanup and abatement order (“CAO”) to San Diego Gas & Electric Company (“SDG&E”) after finding that SDG&E caused or permitted waste to be discharged into the San Diego Bay, and thereby created, or threatened to create, pollution and nuisance…
The EPA Takes On Trichloroethylene Vapor Intrusion
Stoel Rives Summer Associate Carly Moran co-authored this post.
Ground Zero: The Silicon Valley
In an attempt to cleanup airborne toxins contaminating a large area of Mountain View, California’s North Bayshore neighborhood, the U.S. Environmental Protection Agency (“EPA”) has presented plans to update their existing cleanup strategy. Specifically, the EPA plans to revamp their cleanup strategy for the Teledyne/Spectra Physics Superfund site, which extends into the western side of North Bayshore.
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Another Hazardous Waste Enforcement Action Costs a Major Retailer Millions
On March 8, 2018, California regulators reached a settlement agreement with Home Depot wherein the retail giant agreed to pay $27.84 million for various hazardous waste violations. The State hit Home Depot with penalties for alleged violations identified during inspections occurring between 2013 and 2015, due to improper disposal of certain types of waste, including batteries, aerosol cans, paints, and electronic devices. Attorney General Xavier Becerra reported that the settlement amount equated to about $16 million in civil penalties, $9 million toward environmental protection and compliance, and nearly $2 million to cover costs. The State alleged that Home Depot violated California’s Hazardous Waste Control Law, and California’s Unfair Competition Law because “such conduct gives Home Depot a competitive advantage over other regulated entities that are complying with the law.”
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At the Intersection of Pollution and Poverty, California Attorney General Establishes Bureau of Environmental Justice, and Industry Should Get Prepared
On February 22, 2018, California Attorney General Xavier Becerra announced that the Department of Justice is opening an environmental justice office within the Environment Section: the Bureau of Environmental Justice (“Bureau”). “The Bureau’s mission will be to protect people and communities that endure a disproportionate share of environmental pollution and public health hazards.” Using existing federal and state statutes, the Bureau will accomplish its mission through targeted oversight, investigation, and enforcement actions.
According to the press release, the Bureau’s oversight and enforcement work will focus on:
- Ensuring compliance with the California Environmental Quality Act (“CEQA”) and land use planning laws;
- Remediating contaminated drinking water;
- Eliminating or reducing exposure to lead and other toxins in the environment and consumer products;
- Challenging the federal government’s actions that repeal or reduce public health and environmental protections; and
- Penalizing and preventing illegal discharges to air and water from facilities located in communities already burdened disproportionately with pollution.
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Another Retailer Shells Out for Hazardous Waste Violations: Big Lots Ordered to Pay $3.5 Million
Following closely on the heels of Dollar General’s hazardous waste settlement (about which we reported in our April, 19, 2017 blog post), another discount retailer has been held to account in a big way for its failure to properly manage its waste streams. On April 21, 2017, a San Bernardino County Superior Court Judge ordered Big Lots Stores, Inc. (“Big Lots”) to pay $3.5 million in civil penalties and costs for environmental violations. The order is the result of an investigation into the disposal of hazardous waste by Big Lots at its distribution center and its 206 California stores over the past several years. The lawsuit was brought by 35 District Attorney’s Offices and two City Attorney’s Offices in California.
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Retailers Beware! Dollar General Just Hit with $1.125 Million Judgment for Improper Hazardous Waste Handling and Disposal
Here’s another major reminder to retailers to know their waste streams and to make sure they are being managed and handled properly. On Monday, Kern County Superior Court Judge Sidney P. Chapin ordered Dollar General (Dolgen California) and its subsidiary corporations to pay $1.125 million as part of a settlement of a civil/environmental prosecution. The April 17, 2017 judgment was announced by the Yolo County District Attorney, along with 31 other California District Attorneys as part of a significant civil settlement. A harbinger of the increasingly aggressive stance local prosecutors are taking with respect to household hazardous waste disposal claims, the civil enforcement lawsuit was filed just one week prior, on April 11, 2017, in Kern County by a group of 38 of California’s 58 counties. Dollar General operates about 13,320 stores in 43 states, including a significant number in California.
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