In Van Horn v. Department of Toxic Substances Control (“DTSC”), a California Court of Appeal found that DTSC’s procedure for imposing liens on property under the California “Superfund” law violates due process of law. Specifically, the court noted that DTSC’s procedure fails to allow an affected landowner to dispute the amount of a lien, the extent of property burdened by the lien, and the characterization of the landowner as a responsible party. Applying a seminal...

In a ruling that, if upheld and followed, would significantly limit the reach of federal environmental regulation, a Utah federal judge determined that regulation of a purely intrastate species listed as threatened under the Endangered Species Act is unconstitutional because it is beyond the scope of the Commerce Clause and the Necessary and Proper Clause. People for the Ethical Treatment of Property Owners v. U.S. Fish & Wildlife Serv., No. 2:13-cv-00278-DB (D. Utah Nov. 4, 2014)...

Last Friday, the California Legislature passed three bills that provide for the regulation of groundwater for the first time in the state’s history. Once signed by Gov. Jerry Brown, the bills—currently known as AB 1739 (Dickinson), SB 1168 (Pavley), and SB 1319 (Pavley)—will collectively constitute the Sustainable Groundwater Management Act (the “Act”). The Act will establish as state policy that California’s groundwater resources are to be “managed sustainably for...

On May 12, 2014, Federal wildlife agencies proposed two new rules concerning critical habitat under the Endangered Species Act and a draft policy regarding exclusions from critical habitat designations. The proposals, issued by the U.S. Fish and Wildlife Service (USFWS) and the National Marine Fisheries Service (NMFS), have been published in Federal Register, and comments will be accepted through July 11. The proposed rules would create a new definition of “destruction or adverse...

The Supreme Court has upheld EPA regulations requiring reductions in SO2, NOx, and fine particle emissions in 28 states stretching from Texas to New York. The regulations, known as the “Cross-State Air Pollution Rule” or “Transport Rule,” are intended to reduce interstate transport of air pollutants, and were enacted under the “Good Neighbor Provision” of the Clean Air Act, which requires states implementing federal Clean Air Act requirements to enact measures to avoid...

On April 15, 2014, the California Department of Public Health (CDPH) submitted the Final Statement of Reasons for the Hexavalent Chromium Maximum Contaminant Level (MCL) to the Office of Administrative Law. No significant changes were made to the draft MCL of 10 ppb (µg/L) released by CDPH in August 2013, despite the receipt of approximately 18,000 comments on the proposal. The MCL will become effective on July 1, 2014, once it is approved by the Office of Administrative...

For the first time in 17 years, industrial facilities in California must contend with a new set of legal requirements controlling storm water. On April 1, 2014, the California State Water Resources Control Board (State Board) formally adopted the final draft of the general NPDES permit that regulates storm water discharges associated with industrial activity, known as the “Industrial General Permit.” The new Industrial General Permit imposes additional permitting...

The California State Water Resources Control Board (State Board) recently notified the public that it will consider for adoption the final draft of the general NPDES permit that regulates storm water discharges associated with industrial activity. The State Board will hold a public hearing on adoption of the permit at its meeting on April 1, 2014 at 9:00 a.m. at the Cal/EPA headquarters in Sacramento. The State Board is soliciting comments by the public regarding revisions that have...

In October 2013, the U.S. Environmental Protection Agency issued its draft “Groundwater Remedy Completion Strategy – Moving Forward with Completion in Mind,” which would establish a recommended strategy for an adaptive management-style approach to managing contaminated groundwater sites. The strategy calls for rigorous data assessment of the performance of groundwater cleanup actions to achieve remedial action objectives (RAOs), and clarifies that RAOs and cleanup goals should be...