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Entries in brownfields (3)

Tuesday
Aug082017

Property Needs Environmental Cleanup? Don't Scrap It, SCAP It!

Environmental Litigation AttorneyEnvironmental Litigation Defense Attorney

Stephen T. Holzer

818.907.3299

 

Environmental Soil SampleProperty owners in California may have access to state funds for environmental cleanup of smaller brownfields projects. The money comes from two pieces of environmental legislation passed in 2014.

The Proposition 1 Groundwater Sustainability Program authorized $7.545 billion in bonds for a variety of water projects, including storage, restoration and protection efforts. The State Water Resources Control Board (“Board”) was directed to distribute the funds amongst five separate programs; one of which includes the Groundwater Sustainability fund – it would receive $800 million.  

California Senate Bill 445 was an emergency measure also approved in 2014. The bill, essentially an amendment to the long-established Underground Storage Tank Cleanup Fund (“UST Fund”), provides for “. . . investigating and cleaning up contaminated sites without regard to the source of the contamination, particularly where there are no viable responsible parties . . .”   

Thus, unlike the UST Fund, the source of the contamination need not be an underground storage tank; and, unlike the case with the UST Fund, the contamination need not be petroleum-hydrocarbon based.

This part of SB 445 falls under SCAP, or the Site Cleanup Subaccount Program, funded with approximately $20 million in state money, plus local matching funds. That may not sound like a lot of money for environmental cleanup, but for some property owners, SCAP may provide the perfect solution.

Navigating Clean Water Resources

California Funding for Groundwater Cleanup

Cleanup projects eligible for SCAP funds include those properties that: 

  • May cause harm or potential harm from surface or groundwater contaminants

  • Have been polluted by human-made contaminants, e.g. nitrates (common in fertilizers), perchloroethylene (used in dry cleaning industry), pesticides, hexavalent chromium (commonly found in welding projects, paints, chrome plating), etc.

  • Received a directive from a regulatory agency

  • Are owned by responsible parties with limited resources

  • May include site characterization, source identification or implementation of cleanup. 

Certain applicants for SCAP funding will be given priority, including those that are significantly threatening to human or environmental health. Other priority projects include those in disadvantaged communities or those that cannot receive other cleanup funds.

The Board will also balance costs of cleanup vs. benefits.

Before applying for SCAP funds, property owners should first pre-apply for the Groundwater Quality Funding Program, through the Financial Assistance Application Submittal Tool (FAAAST). SCAP applicants will need to complete a grant agreement form, as well as forms describing the cleanup work to be done and the budget for such work.

Stephen T. Holzer is a Business Litigation Attorney and the Chair of our Environmental Practice Group.

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Tuesday
Sep132011

Perchloroethylene Cleanup Hangs Drycleaners Out to Dry

Litigation Los AngelesEnvironmental Litigation  

Stephen T. Holzer
818.907.3299

Drycleaners have been using perchloroethylene, a colorless liquid chemical also known as “PERC” or “PCE,” for decades. The chemical is also used in solvents, inks, shoe polish and other products, but it’s the dry-cleaning industry that accounts for 85 percent of its use.

PERC is a hazardous waste made with chlorine and other chemicals, and until modern-era environmental legislation regulating the disposal of PCE, the liquid leaked or spilled into the ground and seeped into water tables without much notice.

But federal and state-mandated clean ups are now hanging drycleaners out to dry financially, and insurance companies are also paying the price. In an attempt to find someone to pay for cleanup, some drycleaners are suing their machine manufacturers citing faulty designs and distributing use instructions that failed to warn drycleaners of potential perchloroethylene leaks and how to prevent them.

The drycleaner plaintiffs allege the machine manufacturers violated the federal Resource Conservation and Recovery Act, or RCRA, which governs all handling of hazardous waste from generation to disposal. RCRA provides for liability on the part of:

“Any person . . . including any past or present generator, past or present transporter, or past or present owner or operator of a treatment, storage, or disposal facility, who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment . . . .”

The Plaintiffs in Hinds Investments v. Patricia McLaughlin relied on this language in RCRA. But last August, the Ninth Circuit Court of Appeals rejected plaintiffs’ claims, stating:

“From the language Congress chose, it seems plain that Congress was concerned with those who handle, store, treat, transport, or dispose of the waste, not with manufacturers who design machinery that might generate a waste byproduct that could be disposed of improperly at hazard to the public.”

Despite the Appellate Court’s ruling, perchloroethylene cleanup remains controversial, because plaintiffs may still try to hold dry-cleaning machine manufactures liable under other, State-law theories.

But manufacturer defendants in the dry-cleaning industry can now argue that holding such defendants liable for what their customers is too far of a judicial reach even at the State level, when it comes to perchloroethylene leaks.

Stephen T. Holzer is the Chair of our Environmental Law Practice Group.  You can reach him via e-mail: sholzer@lewitthackman.com, or by calling 818.990.2120.

 

 
Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

 

 

Wednesday
Sep072011

California Environmental Law – How Much Cleanup is Too Much?

Litigation Los AngelesEnvironmental Litigation  

 

Stephen T. Holzer
818.907.3299

 

Nearly 3,000 acres of land in Ventura County is destined for open space use. . .if it’s ever cleaned up.

That vision may be put on hold, if the current mood of all parties involved give any indication. U.S. District Judge John F. Walter overturned Senate Bill 990 at the end of April, which practically guarantees the Boeing Company and the California Department of Toxic Substances (DTSC) will be legally wrangling for quite a while.

Here’s some background:  

Santa Susana’s Historic Roots

The land in question is known as the Santa Susana Lab, home to North American Aviation’s rocket and nuclear research and development projects established in 1947. Due to a series of company splits and sales occurring over the decades, the land is currently owned by Boeing, NASA and the Department of Energy.

There was a partial nuclear meltdown in 1959. And aside from the radioactive materials, a lot of other toxic chemicals (such as dioxins, trichloroethylene, PCBs and perchlorate) infuse the soil and groundwater from years of rocket testing.

The Environmental Law Twist

We don’t even need to go into decades of federal and state environmental law history to illustrate the problems with Santa Susana.

Let’s just go back to 2007 when the now retired Senator Sheila Kuehl pushed SB 990 to reassure Ventura County residents that Santa Susana and the immediate vicinity would be scrubbed as clean as possible. The bill even outweighed federal standards on its goals for cleanliness and safety, and the DTSC was named chief overseer of the work.

So who got on board with the bill? The Department of Energy and NASA. But in 2009 Boeing filed suit, protesting DTSC’s supervisory role. Boeing claimed, among other things, that Kuehl’s S.B. 990 is preempted by the federal Atomic Energy Act, 42 U.S.C. §2011 et seq.

Judge Walters agreed, saying that a federal installation (or, as here, a private one under contract with the feds) is “shielded by the U.S. Constitution’s supremacy clause from direct state regulation unless Congress provides clear and unambiguous authorization for such regulation.”

The DTSC and the California Environmental Protection Agency are disappointed with this ruling, to put it mildly. And when Judge Walter delivered the ruling, he mentioned probable scrutiny by appellate courts, according to an April 27th article in the Los Angeles Daily News.

Which only means that Simi Valley residents may have to hold their breaths a long time before the Santa Susana Lab gets the cleanup it needs, whether it’s by federal or state standards.

Stephen T. Holzer is a Environmental Attorney, Shareholder and Chair of our Environmental Law Practice Group. 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

 

 

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