In 1997, Southern California commemorated the fiftieth anniversary of organized efforts to reduce air pollution. It was in 1947 that then-Governor Earl Warren established the Los Angeles Air Pollution Control District. At the time, there were serious proposals to install giant "pollution fans" to blow smog out to the desert. This and similar ideas were soon dismissed. Air pollution was complex and not subject to "easy" solutions. Some thirty years later, the agency merged with air pollution control agencies for Orange, Riverside and San Bernardino counties to become the South Coast Air Quality Management District (SCAQMD), described by some as the most powerful air pollution control agency in the world.

The fifty years of effort have yielded significant progress. Although the Los Angeles area is still marked by the nation s most extreme air pollution, first stage air pollution alerts which numbered as high as 148 in 1970, have been reduced to merely seven in 1996. Fewer are expected this year. Between 1955 and 1996, maximum annual concentrations of ozone, the main air pollutant of concern in the Los Angeles area, have dropped nearly 65 percent, from .68 parts per million (ppm) to .24 ppm. Vehicular air pollution control programs mandated by the EPA and the California Air Resources Board (CARB) have resulted in a nearly 10-fold reduction in air emissions from automobiles, including a fifty percent reduction in benzene emissions since 1990. Further, all of this progress took place while the area s population tripled and the number of automobiles quadrupled.

During the early 1990s, California s lagging economy dulled the shine of these air pollution control advances. Many attributed the decrease in air pollution episodes to a limping economy which had lost hundreds of thousands of jobs, particularly in the aerospace industry. However, the economy has turned around and progress continues to be made in attaining air quality standards.

In order to meet the challenge of reducing air pollution while fostering economic growth, the SCAQMD pioneered the development of market incentive programs that are designed to provide greater flexibility for the regulated community when compared to traditional "command and control" regulatory schemes. The Regional Clean Air Incentives Market or RECLAIM, adopted in 1993, is the centerpiece of SCAQMD market incentive programs. Facilities subject to RECLAIM are assigned annually declining allocations of oxides of nitrogen (NOx) and oxides of sulfur (SOx) emission credits known as RECLAIM Trading Credits (RTCs). These allocations act as a declining emission cap. The facilities may meet this declining emission cap by controlling NOx and SOx, curtailing production, changing raw materials, or acquiring RTCs from other sources. Based on a recent audit, RECLAIM appears to have achieved emissions reductions 8 to 10 times greater than would have been expected under the command and control regulations it replaced.

The SCAQMD continued to expand its long-range intercredit trading approach by adopting companion emission trading credit programs to RECLAIM. Some allow companies to convert mobile sources to alternative fuels and obtain credits for the curtailed emissions. These credits are tradeable and can be used to meet RECLAIM requirements or other source specific command and control rules. Another program, the "Old Vehicle Scrapping Program," allows companies to obtain credits by scrapping pre-1978 "grossly-polluting" vehicles. These vehicles pollute at a rate ten-times greater than new vehicles. Thus, scrapping currently operating old vehicles yields significant emissions reductions, a portion of which are granted to the scrapper. The SCAQMD, along with other air districts in the state and the CARB, have begun to develop market incentive programs that are designed to eventually result in a statewide inter-area, inter-season, and inter-pollutant trading program with a common trading unit. Ultimately, the goal of these programs is to harness market forces to develop creative solutions to air pollution problems while reducing the overall economic burden that air pollution control typically entails.

Over the last half century, Southern California has made remarkable progress in reducing air pollution. Its economy and population have continued to grow despite some of the most stringent air quality regulations in the world. At the same time, the SCAQMD has pioneered the use of market incentives to achieve air quality goals. These very same stringent regulations and market incentive programs have spurred innovative technologies, such as new combustion controls, zero and low emitting vehicles, fuel cells, and alternative and reformulated fuels. Both the regulations and the innovative solutions have become models for other areas of the country. It would appear then that it should be the best of times for air pollution control in Southern California.

But beneath the surface of unparalleled success, a different story was emerging. It may yet prove to be the worst of times. In less than three months, the SCAQMD lost its leadership, was severely criticized by EPA, and became the focus of attacks by environmental justice advocates. The SCAQMD, particularly its Executive Officer of ten years, had made a number of political enemies. Although he was respected by both the regulated and environmental communities, the Executive Officer was vulnerable to attack. In 1997, the SCAQMD Governing Board declined to renew the Executive Officer s contract. Shortly after, the Governing Board replaced its chairman. At the same time, in a highly publicized audit, EPA criticized the SCAQMD s enforcement efforts. Finally, the SCAQMD came under strong attack from environmental justice advocates. They alleged that several oil companies were using credits generated from emission trading programs to avoid controlling volatile organic compound emissions from their Port of Los Angeles petroleum terminals. In a NIMBY ("not in my back yard") suit filed in Federal court, the Communities for a Better Environment (CBE) alleged that the oil companies use of trading credits was creating air pollution "hot spots," thereby depriving poor minorities who live near the Port of their civil rights. At the same time, CBE filed a complaint that petitions EPA to deny the SCAQMD and the CARB approval to operate the Old Vehicle Scrapping Program. In response, CARB has put approval of all emission trading programs on hold.

Using the opportunity to set a new direction for the SCAQMD, the new Chairman of the Governing Board announced a ten-point policy initiative with environmental justice as its theme. The environmental justice initiatives include:

• Town Hall Meetings
• Ambient Monitoring of Air Toxics
• Community Response Teams
• Increased CEQA Commenting
• An Environmental Justice Task Force
• Participation in the City of Los Angeles Environmental Justice Forum
• Clean-up Incentives for Diesel Fuel
• Field Inspection Advanced Technology
• Amended Portable Equipment Permitting
• Reopening SCAQMD Air Toxics Rules for Comment

These initiatives, combined with the current environmental justice lawsuits have the potential for slowing down the emission trading programs, which many believe have the greatest promise for further reducing air emissions. In addition, they will likely produce greater uncertainty for the regulated community. Under the circumstances, companies will have to carefully evaluate using emission trading as an alternative to installing pollution controls, when expanding existing facilities and siting new ones. The next 50 years has begun. It remains to be seen whether the emission trading programs fulfill their promises or become known as the "pollution fans" of this decade.

In most cases, the California Clean Air Act (CCAA) imposes more stringent air quality standards than does the federal program. The California Air Resources Board (CARB) is California s statewide air pollution regulatory agency. CARB oversees the implementation of the state program, including preparation of the federally-mandated state implementation plan. California s air quality program is implemented by local air pollution control districts (APCDs), which are authorized to promulgate their own regulations to meet state and federal requirements. Of particular importance to the regulated community are the requirements set by the local APCDs that include, among other things, obtaining permits prior to commencing construction and for modification or ongoing operation of stationary equipment. CARB is also responsible for regulating air emissions from mobile sources.

Toxic air contaminants (TACs) are defined as air pollutants that can cause or contribute to an increase in mortality, serious illness, or pose a present or potential hazard to human health. CARB designates TACs; however, substances identified as "hazardous air pollutants" under federal law are automatically classified as TACs under California law. Once TACs are identified, CARB establishes control measures to prevent the release of TACs. Local APCDs are charged with adopting regulations to ensure compliance with, and enforcement of, TAC control measures.

The Air Toxic "Hot Spots" Act affects those facilities with the potential to create localized airborne concentrations, or "hot spots," of hazardous substances. A vast array of substances are regulated under the Act, including all TACs, as well as chemicals listed on California s Proposition 65 list and the Cal/OSHA Hazardous Substances List. A facility is subject to the Act if it: (i) is on any toxics use or toxics air emissions survey, inventory, or report compiled by an APCD; or (ii) manufactures, uses, or releases any substance on the Act s list and releases or has the potential to release more than 10 tons per year total organic gases, particulates, NOx, or SOx.

If covered under the Act, a facility is required to: (i) submit to the APCD a proposed comprehensive emissions inventory plan that characterizes the full range of hazardous materials that are or may be released from the facility; and (ii) complete a detailed inventory of its emissions and update the inventory every two years.

If, based on the inventory, the APCD designates a facility as a high priority under the Act, that facility must conduct a risk assessment to evaluate and predict the area affected by the hazardous substances, including the potential exposure of human populations, and to assess and quantify individual and population-wide health risks associated with estimated levels of exposure. If it is determined that there is a significant health risk associated with the facility s air emissions, the facility must notify exposed individuals of that risk.

SOUTH COAST AIR QUALITY MANAGEMENT DISTRICT S (SCAQMD) REGIONAL CLEAN AIR INCENTIVES MARKET (RECLAIM) SCAQMD Regulation 20

The CCAA requires SCAQMD to develop an Air Quality Management Plan (AQMP) to ensure progress towards achieving state ambient air quality standards in the South Coast basin. The District has developed and is implementing RECLAIM, an emissions reduction program for NOx and SOx, to meet the CCAA requirements. RECLAIM is based on the goal of establishing facility mass emission limits and allowing sources to meet prescribed emission reduction targets through a variety of methods, including control, equipment or process improvement, and emissions trading. A fundamental concept of the market-based program is to achieve emission reductions at lower costs than the source-specific regulatory approach.

Morgan Lewis CCAA Activities

The Los Angeles office s air practice includes the following types of representation:

• Counseling on compliance with clean air requirements.
• Resolving air quality issues with the SCAQMD and other air pollution control districts.
• Assistance in obtaining permits for new and modified facilities.
• Defense of enforcement actions brought by state and local governmental agencies.
• Representation in air emissions and toxics rulemaking proceedings.
• Representation in state implementation plan litigation.
• Assistance in obtaining variances from air quality management district rules.
• Representation at evidentiary hearings on emissions limitations.
• Tracking, analysis, and client counseling regarding legislation and regulatory developments at the state and local level, including Southern California s RECLAIM program.

Morgan Lewis attorneys in the Los Angeles office with particular expertise in air quality regulation include Randy Visser and Steve Oppenheimer.

California has received authorization to implement its hazardous waste program in lieu of the federal RCRA program. Although California s program follows the same framework as federal law (i.e., generators, transporters, and treatment, storage, and disposal facilities are regulated), California s program is more stringent than the federal counterpart in many areas. For example: (i) California regulates wastes as hazardous that are not considered hazardous under the federal program (these wastes are referred to as "non-RCRA" or "California-only" hazardous wastes); (ii) California regulates almost all forms of hazardous waste treatment (e.g., on-site wastewater treatment units) under its five tiered permitting system; (iii) California regulates storage activities not regulated under RCRA; (iv) California has no small quantity generator exemption (as a general rule, any amount of hazardous waste must be managed in accordance with all applicable hazardous waste requirements); and (v) wastes can exhibit the hazardous waste toxicity characteristic under California law if they fail a variety of tests in addition to the federal toxicity characteristic leaching procedure.

Underground injection wells are regulated by three different California agencies: (i) the DTSC regulates discharges of hazardous waste into underground injection wells (as a general rule, injection of hazardous waste is prohibited if the well is located within one-half mile of a drinking water source); (ii) under authority delegated by EPA pursuant to the federal Safe Drinking Water Act Underground Injection Control (UIC) Program, the California Division of Oil and Gas regulates injection wells associated with oil and gas production and issues Class II injection well permits; and (iii) Regional Water Quality Control Boards regulate other discharges of wastes into injection wells when the discharge could affect the waters of the State.

California s analogue to Superfund is administered by the DTSC, although other state and local agencies may be approved to conduct investigations and cleanups. California s Superfund law authorizes the state to expend money to clean up sites, imposes liability on potentially responsible parties (PRPs) for contaminated sites, and provides funds for the state s share of federal Superfund costs.

The California Superfund law follows federal Superfund law in many important aspects (e.g., it defines PRPs similarly to federal law). Although the universe of hazardous substances covered is broader than under federal law, the California Superfund law does contain a petroleum exclusion. Perhaps the most important difference between the California and federal Superfund laws is the liability imposed on PRPs. Unlike federal Superfund, the state Superfund law provides an apportionment procedure through which PRPs can limit, in specified circumstances, their liability to the amount of cleanup and investigation costs attributable to their activities.

This law, which is California s answer to the EPA "Brownfields Initiative," is designed to expedite the cleanup of contaminated properties. A multi-agency site designation committee can select up to 30 sites to be placed on a fast-track cleanup schedule. Once a site has been selected, all identified responsible parties (RPs) are given 90 days to enter into a cleanup agreement with the DTSC under which participating RPs must agree to remediate the site and pay for any DTSC oversight costs. The law provides RPs with several incentives including: settlement with de minimis contributors; modification of site boundaries to facilitate early development of relatively clean areas; and approval of remedial action plans that rely on land use controls as a remedial measure and that may permit contamination to be left in place provided it does not pose a significant risk to human health or the environment.

Under the federal Underground Storage Tank (UST) laws, the State Water Resources Control Board (State Water Board) is delegated authority to develop regulations under the state UST laws. Local agencies (e.g., counties and, in some cases, cities) are charged with implementing the state s UST regulations and are authorized to adopt more stringent standards than those required by the State Water Board.

The state UST laws specify permit, construction, operating, monitoring, release reporting, and closure requirements. They require permits for the underground storage of specified "hazardous substances." Petroleum is specifically included as a hazardous substance. California has developed a petroleum UST Cleanup Fund to aid qualified owners or operators in performing corrective actions. Owners or operators storing petroleum in USTs must pay an annual storage fee to the State Board of Equalization that goes to the state Fund.

New USTs (i.e., USTs installed after January 1, 1984) must be equipped with secondary containment and equipment that prevent spills and overflows, unless the UST contains motor vehicle fuels and meets special requirements regarding construction, leak detection, and monitoring. They must also be equipped with a monitoring system that detects releases of the stored substance to the secondary containment unit. Before the tank is placed in service, the system must be subjected to a tank integrity test to determine if it is in operating condition. All existing tanks (i.e., USTs installed prior to January 1, 1984) must be upgraded to prevent releases caused by overfill, spills, or corrosion, or they must be replaced on or before December 22, 1998. All underground pressurized piping was required to be retrofitted with automatic line leak detection by December 22, 1990, and must be retrofitted with secondary containment by December 22, 1998. Owners or operators of USTs must maintain evidence of financial responsibility for corrective actions (cleanup) and damages to third parties as required under federal law. Most unauthorized releases from USTs must be reported to local and state agencies and must be investigated and cleaned up to standards developed on a case-by-case basis.

In 1996, the State Water Board issued guidance aimed at expediting early closure of sites where petroleum products had been released from USTs. However, the recent discovery of methyl tertiary-butyl ether (MTBE), a petroleum fuel additive, in drinking water supplies has resulted in legislation and regulations aimed at investigating, evaluating and remediating the presence of this compound in groundwater.

The Aboveground Petroleum Storage Act requires Regional Water Quality Control Boards to inspect aboveground tanks used for petroleum storage. A tank facility is subject to the provisions of the Act if its combined petroleum storage capacity is 10,000 gallons or more, although some exceptions are provided.

A monitoring system is required for aboveground tanks unless the tank s exterior surface, including connecting piping and the floor beneath the tank, can be monitored by direct viewing. If the tank has the potential to affect surface waters or sensitive ecosystems, the owner or operator must install and maintain a release detection system. If the tank has the potential to affect the beneficial uses of the ground water, the owner or operator must install a groundwater monitoring/leak detection system and employ monitoring systems that will provide early detection of releases, including, if appropriate, a tank foundation design that detects releases.

The owner or operator of an existing aboveground tank was required to prepare a spill prevention and countermeasure plan by January 1, 1991. Owners and operators are also required to inspect the tanks periodically and to submit a biannual storage statement to the Regional Water Quality Control Board.

• Compliance counseling on regulations applicable to hazardous waste generators; treatment, storage, and disposal facilities; recycling operations; and USTs.
• Compliance reviews and audits.
• Representation in obtaining permits for treatment, storage, and disposal facilities, and appealing agency permit decisions.
• Representation in obtaining and maintaining permits for USTs.
• Defense of administrative, civil, and criminal enforcement actions alleging failure to comply with statutory and regulatory requirements.
• Advice and assistance regarding leak and spill reporting and response.
• Representation concerning closure and post-closure care of treatment, storage, and disposal facilities.
• Representation in federal, state, and local environmental cleanups and litigation.
• Advice regarding federal and state Superfund cleanup issues such as contribution among parties, de minimis settlements, releases, investigation, remediation, cost allocation, and contractor liability.
• Defense against claims for natural resource damages.
• Coordination with technical consultants conducting environmental site assessments, RI/FS activities, and remedial work.
• Environmental due diligence and contract negotiations in connection with financings, property transfers, mergers, acquisitions, and divestitures.

The Los Angeles office provides Morgan Lewis clients with a wide variety of services in the hazardous waste area. In particular, the Los Angeles office s Government Regulation Section counsels clients on all facets of California hazardous waste law, including the Hazardous Waste Control Act and its effects on industry operations and potential liability under the many state hazardous waste laws. Morgan Lewis Los Angeles attorneys have substantial experience working with environmental consultants and possess a wide array of experience in analyzing problems of ground water and soil contamination and evaluating remedial alternatives. Steve Oppenheimer represents clients in corporate planning, compliance, and permitting activities as well as administrative proceedings dealing with various hazardous waste issues. Andrea Ordin and Mike Vacchio represent clients in agency enforcement actions. Mike Vacchio specializes in the defense of alleged environmental crimes. Randy Visser and Steve Oppenheimer have negotiated consent decrees and orders for federal and state Superfund sites. Ken Wright, Randy Visser, Mike Vacchio, and Steve Oppenheimer represent clients in federal and/or state Superfund actions, such as the San Fernando Valley and San Gabriel Valley Groundwater Superfund sites and in private party cost recovery actions.

Porter-Cologne is California s primary water quality statute. The act delegates responsibility to the California State Water Resources Control Board (State Water Board) to protect "waters of the state" (broadly defined to include both surface and ground water) and to preserve all present and anticipated beneficial uses of these waters. Porter-Cologne gives both the State Water Board and the nine Regional Water Quality Control Boards (Regional Water Boards) broad authority to regulate discharges to waters of the state, including the authority to adopt statewide water quality policy and water quality control plans that the Regional Water Boards must follow. EPA has delegated authority to issue NPDES permits to the State Water Board. This responsibility is implemented through the Regional Water Boards, which issue Waste Discharge Requirements (California s NPDES permits) for point sources of water pollution. The Regional Water Boards must, at a minimum, implement requirements as strict as those of the State Water Board; however, they have autonomy to develop more stringent requirements within their regions.

In 1990, EPA expanded the NPDES regulations to cover storm water discharges associated with industrial activities. Facilities subject to the regulations are required to obtain permits from the implementing agency. In California, the State Water Board is the implementing agency for storm water permits; however, because the State Water Board has independent state authority under Porter-Cologne to develop and enforce waste discharge requirements, its approach differs somewhat from EPA s in several respects:

(1) California does not accept EPA s group application approach. California facilities taking part in EPA group applications must seek coverage under the California General Industrial Permit or an individual permit;

(2) California permit requirements extend to all facilities described in federal regulations, whether the activity is primary or auxiliary to the owner or operator of the facility. EPA considers only the primary activity of the owner or operator; and

(3) There are some monitoring and exemption differences, i.e., California allows group monitoring but EPA does not.

California requires that each facility covered under the General Permit prepare a Storm Water Pollution Prevention Plan (SWPPP). The SWPPP must provide information regarding significant sources of pollution at the facility, past significant spills or leaks of hazardous or toxic materials, and likely pollutants in the facility s storm water discharge. In addition, the facility must submit a summary of existing sampling data, a description of its storm water management controls, and a certification that non-storm water discharges have been eliminated.

As part of its general permitting requirements, California requires that covered facilities implement monitoring programs by July 9, 1993, and submit to annual site inspections. Facilities are required to retain all records for at least five years, file an annual report with the Regional Water Quality Control Board each July 1, and report noncompliance, anticipated noncompliance, and planned changes.

SAFE DRINKING WATER ACT (SDWA) Cal. Health & Safety Code Sections 116275-116751 Cal. Code Regs., tit. 22, Sections 64400-64470

The California SDWA strengthens the minimum requirements found in the federal SDWA and establishes primary drinking water standards that are at least as stringent as, and sometimes more stringent than, those established under the federal act. Key elements of the California SDWA include: (i) creation of a comprehensive Safe Drinking Water Plan; (ii) recommended public health levels for contaminants found in drinking water; (iii) primary drinking water standards for contaminants; (iv) permit requirements for public drinking water systems; and (v) public notification requirements for noncompliance.

• Assistance with NPDES and pretreatment permits, including negotiation and challenges in adjudicatory hearings.
• Counseling on state water quality regulations as they affect operations and remediation activities, including waste discharge requirements.
• Representation before state and regional agencies in corrective action negotiations, including cleanup, abatement, and cease and desist orders.
• Working with environmental consultants in analyzing problems of groundwater and soil contamination and evaluating remedial alternatives.
• Tracking state storm water permitting requirements and assistance with filing general permit applications.

Given the broad scope of the California water quality laws, California environmental attorneys must understand the complex interrelation between the state s various environmental programs and its water quality program. The Los Angeles office has extensive experience in providing legal advice concerning various water quality issues that often arise within the context of hazardous waste facility cleanups and responses to releases. Steve Oppenheimer represents clients in various agency actions, including enforcement actions. He also advises clients regarding the impact of California s water quality laws on operations and cleanups.

California s Hazardous Materials Release Response Plans and Inventory Law (which is similar to federal EPCRA) is designed to avoid accidental releases of hazardous materials and to ensure coordinated emergency response in the event of such a release. Its provisions require: (i) preparation of area plans by local agencies and of business plans by local businesses for responding to releases or threatened releases; (ii) submission of registration forms for some businesses handling "acutely hazardous materials" and, in some cases, development of risk management and prevention programs (RMPPs) designed to prevent accidents associated with such materials; and (iii) immediate reporting to state and local emergency response agencies of releases or threatened releases of hazardous materials.

Unlike the federal EPCRA, however, California s hazardous materials law applies to businesses regardless of SIC code or number of employees. Businesses are required to submit business plans if they use or store greater than or equal to 500 pounds, 55 gallons, or 200 cubic feet of a hazardous material at any one time. Hazardous materials include petroleum products. Business plans must include an inventory of hazardous materials handled, an emergency response plan for actual and potential releases of such materials, and an employee training program. The inventories must be updated annually, or a certification statement that no change has occurred must be submitted. The entire plan must be reviewed every three years or when substantial changes in operations warrant review. Business plans, hazardous materials inventories, and RMPPs are submitted to the local emergency response agency, typically the local fire department.

For covered facilities, California s hazardous materials disclosure laws (inventories) are in addition to those required under the federal EPCRA. In general, however, a facility that files an inventory in compliance with state law will be deemed to have complied with federal law.

Under California s Occupational Safety and Health Act (Cal/OSHA), employers face essentially the same requirements as found in the federal Occupational Safety and Health Act. For example, manufacturers and sellers of mixtures containing a significant amount of a hazardous substance must provide purchasers with material safety data sheets (MSDSs). Employers using such substances must obtain the MSDSs and make them available to their employees as part of an employee training program.

Cal/OSHA standards are often applied in state environmental laws. For example, the California Hazardous Materials Release Response Plans and Inventory Law relies on the Cal/OSHA Hazardous Substances List in defining the term "hazardous substance." Similarly, the Toxic Air Contaminants law references Cal/OSHA standards in evaluating health risks associated with emissions.

OTHER REPORTING REQUIREMENTS UNDER STATE LAW Miscellaneous Sections of the Health and Safety, Water, and Vehicle Acts

In addition to the disclosure requirements discussed throughout the preceding sections, several other disclosure/reporting requirements are found in various California statutes. The California Vehicle Code requires any person who spills or releases a hazardous substance upon any highway to report the release to the appropriate California Highway Patrol Division Office or the agency having traffic jurisdiction for the highway involved "as soon as the person has knowledge of the dump, spill, or release and notification is possible." Cal. Vehicle Code Section 23112.5; Cal. Code Regs., tit. 13, Section 1166.

Under the California Hazardous Substance Account Act (HSAA), a person who releases or allows or causes a release of a reportable quantity of a hazardous substance must notify the Department of Toxic Substances Control. Cal. Health & Safety Code Section 25359.4. The HSAA also requires that an owner of nonresidential property who knows, or has reasonable cause to believe, that a hazardous substance release has occurred on the property must provide written notice to prospective buyers and lessees. Tenants who know that a hazardous substance release has occurred requiring a report to a state or local agency must provide written notice to the owner or lessor. Cal. Health & Safety Code Section 25359.7.

Under California s regulation of underground storage tanks (USTs), owners and/or operators of USTs must report unauthorized releases of hazardous substances within 24 hours after the release is detected "or should have been detected." Notification must be provided to the local agency that regulates USTs and to the Office of Emergency Services or the appropriate Regional Water Quality Control Board. Cal. Health & Safety Code Sections 25286, 25295(a); Cal. Code Regs., tit. 23, Section 2652(b). Additionally, owners and/or operators who store petroleum in aboveground tanks are required, in some instances, to report releases of one barrel (42 gallons) or more of crude oil or its fractions to the Office of Emergency Services and the local administering agency. Cal. Health & Safety Code Sections 25270.3, 25270.8.

Division 7 of the California Water Code, and the regulations promulgated thereunder, require any person who causes or permits the release of reportable quantities of hazardous substances, sewage, or oil or petroleum products to report the release immediately to the State Water Resources Control Board or the Regional Water Quality Control Board and the Office of Emergency Services whenever the released substance enters or probably will enter state waters. Cal. Water Code Section 13271.

• Advice on spill reporting and disclosure requirements under state and federal law.
• Assistance in preparation of business plans and risk management and prevention programs.
• Counseling on the conduct of OSHA inspections and compliance with Cal/OSHA standards.
• Preparation of disclosures for property and business transfers.
• Assistance with reporting annual releases of toxic emissions.
• Representation in administrative and judicial proceedings involving air contaminant standards.
• Advice with respect to preserving the confidentiality of corporate safety documents and trade secrets.

The Morgan Lewis Los Angeles office provides the Firm s clients with a wide selection of services regarding right-to-know issues. Randy Visser, Andy Peterson, and Steve Oppenheimer generally advise clients with respect to various disclosure and reporting requirements and assist clients with preparing required reports to state agencies.

This state law, enacted by the voters of California and commonly referred to as "Proposition 65," has no federal analogue. Proposition 65 seeks to control public exposure to chemicals that the state has determined cause cancer or reproductive harm. Presently, nearly 600 chemicals have been identified and included in the state s list of such chemicals. Proposition 65 has two principal parts: (i) a prohibition on the knowing discharge of listed chemicals when they are likely to pass into any source of drinking water; and (ii) a requirement that a business exposing any person (including employees, consumers, and the general public) to any listed chemical above specified amounts provide clear and reasonable warnings prior to such exposures. The warning requirements can be met in several ways, including by posting appropriate signs at businesses. Periodic notice in newspapers may be necessary if exposure will occur to persons residing nearby a facility covered by Proposition 65. An employer may meet its obligation to warn employees of exposure through its Cal/OSHA or federal OSHA Hazard Communication Program.

• Advice on ramifications of new and proposed Proposition 65 regulations.
• Counseling on the applicability of Proposition 65 exemptions to particular substances or uses.
• Representation in litigation on applicability of Proposition 65 to chemical products and enforcement defense. Randy Visser and Andrea Ordin counsel clients on Proposition 65 issues.

California enacted its own law requiring review of the environmental impacts of virtually all projects undertaken by state and local agencies as well as private activities that are regulated or approved by, or otherwise involve, state and local agencies. The state act was modeled after and is similar in some respects to NEPA; however, CEQA s impacts are much broader, and the law allows greater opportunities for challenges to development projects by interested parties. The environmental review document required under CEQA is called an Environmental Impact Report (EIR) rather than an environmental impact statement (EIS). If a project involves both federal and state and/or local agencies, the project must comply with both CEQA and NEPA, although there are provisions for the EIS and EIR to be prepared jointly.

• Counseling and assistance regarding land use and permitting of new industrial projects and expansions of existing facilities.
• Assistance in preparation of EIRs.
• Critiques of EIRs.
• Litigation involving the adequacy of EIRs.

Randy Visser and Mike Vacchio counsel clients in various aspects of CEQA.

Similar to the federal Freedom of Information Act, California s Public Records Act requires all governmental agencies to make non-confidential information in their files available to the public. This is a particularly important tool in dealing with governmental agencies because it provides the client and counsel with documents and information from agencies at all levels of state and local government, including internal guidance and policy documents. Public Records Act requests are also a critical step in conducting environmental site assessments for due diligence purposes.

Morgan Lewis attorneys routinely prepare, file, and follow up on federal Freedom of Information Act and state Public Records Act requests to obtain material important to the effective representation of the Firm s clients. Morgan Lewis attorneys also counsel clients on how to reduce the possibility that confidential data they submit to federal, state, and local agencies will be released to competitors.

California modeled its Endangered Species Act (CESA) after the federal act and has entered into a cooperative agreement with the federal government under which the California Department of Fish and Game is authorized to manage species listed under both the federal and state acts. The underlying policy of CESA is the protection and conservation of endangered species and their habitats. Under CESA, state agencies are prohibited from approving projects that would "jeopardize the continued existence" of any endangered or threatened species or adversely impact an endangered species habitat.

CESA incorporates consultation requirements provided under the California Environmental Quality Act (CEQA). The project applicant must be allowed to participate in the consultation. It is generally recommended that applicants become involved in the CESA/CEQA process early to preclude the possibility that a project requiring substantial investment of time and money is not derailed at the last moment by a surprise determination that the project jeopardizes an endangered species. Amendments passed in 1997 encourage the development of programs to protect and conserve wildlife in the agricultural context. Takes of species associated with routine agricultural operations and those that occur through ordinary negligence incidental to such operations are now exempted from CESA.

California s program to address coastal development has received federal approval, entitling the state to receive federal funds and to extend the program s protections to areas protected under the federal Coastal Zone Management Act. Generally, any person who proposes development of areas in California s "coastal zone," which encompasses the entire coast of California from Oregon to Mexico, must obtain a permit, although there are several categorical exclusions. "Development" is defined very broadly to include "the placement or erection of any solid material or structure on land or in or under water." Given the Act s expansive reach, most development located in the Coastal Zone generally requires coastal permits.

To obtain a permit, the planned development must comply with either the local coastal program or, if no local coastal program has been implemented, with the requirements set forth in the state Coastal Act. These requirements take into account the development s location, protection of scenic and visual qualities of the area, maintenance of public access to the coast, and safety, geologic, and environmental concerns.

California has not yet developed a comprehensive statewide wetlands regulatory scheme. Federal requirements make up the most prominent program in California; however, state and local agencies have programs affecting California s wetlands. These agencies include the Department of Fish and Game, the State Lands Commission, the California Coastal Commission, the State Water Resources Control Board, and the nine Regional Water Quality Control Boards.

• Counseling regarding application of restrictions prohibiting new projects adversely impacting endangered species or coastal zones.
• Assistance in obtaining permits for development in protected areas.

Randy Visser advises clients as to the impacts of state and federal law protecting endangered species and the coastal zone on industrial and commercial developments and the expansion or modification of existing facilities.

This Act provides a process whereby a project applicant can apply for a single permit covering several permitting regimes, so-called "one-stop permitting." The agencies covered by the program include the Department of Toxic Substances Control, the Department of Pesticide Regulation, the State Air Resources Board, the State Water Resources Control Board, the Office of Environmental Health Hazard Assessment, regional water boards, local air districts, solid waste Local Enforcement Agencies, and other local agencies. Project proponents requiring permits from two or more of the covered agencies can apply to Cal/EPA for designation of a "consolidated permit agency" (CPA). Once the CPA is designated, it meets with the project applicant and determines which environmental permits apply to the project, and the time lines that will be used by the CPA and each participating agency in making decisions, and provides specified additional assistance.

This Act is designed to eliminate the overlap between state and local agencies asserting jurisdiction over a hazardous materials site investigation and cleanup. Under this Act, a "responsible party" can apply to an Inter-Agency Committee for designation of a lead oversight agency which is granted exclusive authority to administer the laws, standards, and permitting requirements applicable to the investigation and cleanup. The lead agency is also authorized to issue a binding certificate of completion after the remedial action has been implemented.

Under this Act, a Certified Unified Program Agency (CUPA) implements programs consolidating several hazardous waste and hazardous materials regulatory regimes, including hazardous waste generator requirements; on-site hazardous waste treatment requirements being conducted under conditional exemption, conditional authorization, or permit-by-rule; underground storage tanks requirements; aboveground storage tank requirements pertaining to spill prevention control and countermeasures programs; hazardous materials response plans and inventory requirements; acutely hazardous materials programs; and Uniform Fire Code hazardous material management plans and inventories. CUPAs have the authority to issue a single unified permit for all covered programs, and are responsible for coordinating and ensuring consistent and uniform inspections and enforcement within their jurisdictions.