EPA Releases Final Health Assessment for TCE

On September 28, the Environmental Protection Agency announced the release of its Final Health Assessment for trichloroethylene.  The final assessment characterizes the chemical as carcinogenic to humans and as a human noncancer health hazard.

TCE is one of the most common man-made chemicals found in the environment.  A chlorinated hydrocarbon, it was widely used as an industrial solvent and is now prevalent at Superfund and other sites across the country.  EPA already has set a maximum contaminant level for TCE at 5 parts per billion, with a maximum contaminant level goal of 0 ppb.  It has also established standards for cleaning up TCE at Superfund sites throughout the country.  Additional information regarding TCE may be found at the U.S. Department of Health and Human Services' website.

Paul Anastas, assistant administrator for the EPA's Office of Research and Development, reported:

This assessment is an important first step, providing valuable information to the state, local and federal agencies responsible for protecting the health of the American people.  It underscores the importance of EPA's science and, in particular, the critical value of the IRIS database for ensuring that government officials and the American people have the information they need to protect their health and the health of their children.

TCE toxicity values as reported in the assessment will be considered in:

• Establishing cleanup methods at the 761 Superfund sites where TCE has been identified as a contaminant;
• Understanding the risk from vapor intrusion as TCE vapors move from contaminated groundwater and soil into the indoor air of overlying buildings;
• Revising EPA’s Maximum Contaminant Level for TCE as part of the carcinogenic volatile organic compounds group in drinking water, as described in the agency’s drinking water strategy; and
• Developing appropriate regulatory standards limiting the atmospheric emissions of TCE – a hazardous air pollutant under the Clean Air Act.

For more information regarding this matter, please contact Eric Adair or the KMTG attorney with whom you normally consult.

EPA Orders $60 Million Cleanup of Aerojet Superfund Site in Sacramento County

The Environmental Protection Agency announced today that it is ordering a $60 million clean-up of rocket fuel-polluted groundwater at the Aerojet Superfund Site in Sacramento County.

In its press release, the EPA stated that a 27-square mile swath of groundwater underneath and around the former aerospace facility is polluted with several compounds, including very high levels of perchlorate – a main component of rocket fuel – and a known developmental toxin.  Aerojet, under the direction of the EPA, will contain the underground plume to prevent it from spreading into nearby rivers and streams.  Future plans will also treat groundwater within the site’s boundaries.

Speaking of the order, EPA Region 9 Administrator Jared Blumental said:

This cleanup tackles the worst areas first to prevent toxic chemicals from fouling any additional water sources.  Not only is EPA holding Aerojet accountable for its pollution, but we want to assure local residents that they will have safe drinking water for years to come as the company works to restore the underground aquifer.

The Aerojet site, according to the EPA, covers 8,500 acres near Rancho Cordova, 15 miles east of Sacramento, and is about 1/2 mile from the American River.  Since 1953, Aerojet and its subsidiaries have manufactured liquid and solid propellant rocket engines for military and commercial applications and have formulated a number of chemicals, including rocket propellant agents, agricultural, pharmaceutical, and other industrial chemicals.  In addition, the Cordova Chemical Company operated chemical manufacturing facilities on the Aerojet complex from 1974 to 1979.

Additional information regarding the Aerojet Superfund site may be found at the EPA’s site overview page.

For more information regarding this matter, please contact Eric Adair or the KMTG attorney with whom you normally consult.

Judge Oliver Wanger Gives Radio Interview Before Leaving Federal Bench

Judge Oliver Wanger, who is scheduled to leave the federal bench at the end of this week, gave a radio interview to KQED's The California Report. The interview may be heard at this link.

Related stories:  

• Court Finds 2009 Salmonid Biological Opinion Arbitrary and Capricious and Remands to National Marine Fisheries Services
• Court Denies "Fall X2" Motions and Finds Agency Bad Faith
• Federal District Court Enjoins Water Supply Restrictions Under Delta Smelt Biological Opinion
• District Court Rejects Claims to Area of Origin Priority by Tehama-Colusa Canal Authority

KMTG Legal Alert: Water District’s New Rate Structure Failed To Comply With Requirements Of Proposition 218

In City of Palmdale v. Palmdale Water District (--- Cal.Rptr.3d ----, Cal.App. 2 Dist., August 9, 2011), a court of appeal considered whether the new water rate structure of a water district met the constitutional requirements of Proposition 218. The court held the rate structure did not meet Proposition 218’s proportionality requirement because the district’s tier structure establishes that certain customers are charged disproportionate rates without any showing by the district that there is a disparity in the cost of providing water to the customers at different tiers within the structure.

For a detailed discussion of the facts of this case, and the rationale behind the court's ruling, please see the full KMTG Legal Alert here.

A copy of the court's opinion may be found here.

If you have any questions concerning this topic, please contact Jeffrey L. Massey or Jon Goetz from our office, or the KMTG attorney with whom you normally consult.

State Water Resources Control Board Adopts Russian River Frost Protection Regulation

On Tuesday, September 20, 2011, the State Water Resources Control Board adopted a new regulation governing the diversion of water for frost protection in the Russian River stream system.  Under the regulation, any diversion of water, or pumping of hydraulically connected groundwater, within the Russian River system for frost protection purposes from March 15 through May 15 must be done in accordance with a Board-approved water demand management program (WDMP).  Diversions upstream of Coyote Dam or Warm Springs Dam are exempt from this requirement.  The regulation is codified as Section 862 of Division 3 of Title 23 of the California Code of Regulations.  A copy is available here.

The first WDMPs must be submitted to the State Water Board by February 1, 2012.  Any amendments are due by February 1 prior to each frost season.

The regulation states that the purpose of the WDMP is to "assess the extent to which diversions for frost protection affect stream stage and manage diversions to prevent cumulative diversions for frost protection from causing a reduction in stream stage that causes stranding mortality" of fish.  Each WDMP must include, at a minimum "(1) an inventory of frost diversion system in the area covered by the plan, (2) a stream stage monitoring program, (3) an assessment of the potential risk of stranding mortality due to frost diversions, (4) the identification and timelines for implementation of any corrective actions necessary to prevent stranding mortality caused by frost diversions, and (5) annual reporting of program data, activities, and results."

While individual diverters are not required to join a larger WDMP, the regulation appears to contemplate that multiple diverters will join together and adopt plans administered by a governing body.  However, each diverter must have a plan, whether individually or as part of a group.  Failure to adopt and submit a WDMP, or failure to implement the WDMP, particularly any corrective actions, could subject the diverter to State Water Board enforcement action.

If you have any questions concerning this regulation, please contact Andrew Tauriainen, or the KMTG attorney with whom you normally consult.

Court Finds 2009 Salmonid Biological Opinion Arbitrary and Capricious and Remands to National Marine Fisheries Services

On September 20, 2011, the United States District Court for the Eastern District of California issued a memorandum decision that finds the 2009 Salmonid Biological Opinion ("BiOp") and Reasonable and Prudent Alternative ("RPA") arbitrary, capricious, and unlawful.

In a 279-page decision by Honorable Judge Oliver Wanger, the court found several scientific and legal errors in the BiOp and RPA that warranted remand.  On multiple occasions, the court found "clear error" or a failure to use the "best available science."  The court concluded:

Some of NMFS's analyses rely upon equivocal or bad science to impose RPA Actions without clearly explaining or otherwise demonstrating why specific measures imposed are essential to avoid jeopardy and/or adverse modification.  Given the potential serious impacts of these measures, the agency must do more to comply with the law.

The district court's opinion in the case, San Luis & Delta-Mendota Water Authority et al. v. Locke et al., Case No. 1:09-CV-1053, may be found here.  A KMTG Legal Alert with a detailed analysis of the court's ruling will be posted in the near future.

If you have any questions concerning this decision, please contact Rebecca R. Akroyd, K. Eric Adair, Daniel J. O'Hanlon, or Hanspeter Walter, or the KMTG attorney with whom you normally consult.

Court Denies "Fall X2" Motions and Finds Agency Bad Faith

Judge Oliver Wanger conducted a hearing today on the motions filed by the United States Fish and Wildlife Service and the Natural Resources Defense Council (collectively, "Defendants") to stay his August 31 order.  In that order, Judge Wanger enjoined the federal government from implementing the “Fall X2” measure under the Delta smelt biological opinion.  Absent the injunction, the Fall X2 measure would have restricted California’s water supply by many hundreds of thousands of acre feet.

At today’s hearing, the court denied Defendants' motions to stay the August order.  In announcing its decision, the court incorporated its prior findings of fact and conclusions of law regarding the request for injunctive relief.

Significantly, the court made an express finding of agency bad faith, describing the testimony of witnesses for the federal government, Mr. Frederick V. Feyrer and Dr. Jennifer M. Norris, as "riddled with inconsistency."  The court found both witnesses to be incredible, discounting their testimony that the injunctive relief previously granted would jeopardize the continued existence of the Delta smelt.

The court modified the injunction so that it will become effective October 16, 2011, based on evidence that natural conditions and other operating parameters will keep the location of X2 at approximately 74 kilometers until that date.

For more information regarding this matter, please contact Rebecca Akroyd, Hanspeter Walter, Daniel O’Hanlon, Eric Adair, or the KMTG attorney with whom you normally consult.

Update: Additional analysis of today's hearing may be found at the PLF Liberty Blog and on the ACWA website.

Related stories:

• Federal District Court Enjoins Water Supply Restrictions Under Delta Smelt Biological Opinion
• NRDC Seeks to Stay Injunction of Fall X2 Action Under Delta Smelt Biological Opinion
• Hearing on Motion to Stay Fall X2 Injunction Set for September 16

Related documents:

• Findings of Fact and Conclusions of Law re Plaintiffs' Request for Injunctive Relief Against Implementation of RPA Component 3 (Action 4)
• NRDC Motion for Stay of Fall X2 Injunction Pending Appeal
• Federal Defendants' Motion for Stay Pending Appeal of the Court's Order Enjoining Action 4
• Plaintiffs' Opposition to Defendants-Intervenors' Motion for Stay of Fall X2 Injunction Pending Appeal
• Plaintiffs' Opposition to Federal Defendants' Motion for Stay Pending Appeal of the Court's Order Enjoining Action 4

Court Invalidates EIR For Failing To Disclose Legal Uncertainty Affecting Availability Of Water To Serve Development Project

Where the United States questions whether a federal water supply contract may be used to serve a proposed urban development project, that project’s environmental impact report (“EIR”) must disclose the government’s position and address the resulting uncertainty in the project’s water supply. 

The Fifth District Court of Appeal reached that holding in a September 13, 2011, opinion in Madera Oversight Coalition v. County of Madera (App.Case No. F059153).  The opinion affirms a Superior Court judgment setting aside the EIR for a 5,200-unit mixed-use development project located in unincorporated Madera County.

The Court of Appeal addressed several recurring CEQA issues, including: (1) preparation of CEQA administrative records and challenges to trial court rulings on record augmentation motions; (2) compliance with CEQA’s requirements for analyzing and mitigating effects to cultural, historical, and archaeological resources; (3) use of the existing environmental conditions versus projected future conditions as the baseline for assessing the significance of project impacts; (4) cumulative impact analysis; and (5) analysis of water supply availability.

Of particular interest is the appellate holding that the water supply adequacy determination in Madera County’s EIR violated CEQA’s mandate for full disclosure and informed decisionmaking by failing to disclose key factors affecting the availability of a federal “holding contract” water supply that the project’s SB 610 Water Supply Assessment (“WSA”) and EIR identified to serve the proposed project.  Although the WSA and EIR determinations were based on a legal opinion concluding that the holding contract water may be used to serve the proposed project, neither that opinion, the WSA nor the EIR disclosed and addressed evidence indicating that the holding contract supply might not be available to serve the project absent a contract amendment.

The EIR process failed to disclose and address a letter by the U.S. Bureau of Reclamation questioning whether the water available under the holding contract could be used to serve commercial, industrial and other urban uses approved as part of the new development project.  The EIR process also failed to disclose and address a recent superior court ruling, arising from separate litigation, that questioned the availability of water supplies to serve a different development project under a different, but similar, federal holding contract.

The Court of Appeal rejected arguments that the WSA and EIR determination of water supply adequacy should be upheld as supported by substantial evidence.  Focusing on the failure to disclose and address the Bureau of Reclamation letter and separate court ruling, the Court of Appeal held that the question of full EIR disclosure presents “a question of law.”  The appellate court explained:

Ultimately, this case comes down to whether the discussion in the EIR regarding the project’s water supply is adequate despite the nondisclosure of information concerning uncertainties surrounding the proposed use of Holding Contract No. 7 as the project’s source of water.

From there, the appellate court reasoned that those omissions:

[R]esulted in the public and decisionmakers being deprived of a full disclosure of the uncertainties related to the project’s water supply.  The basis for this conclusion is relatively simple.  Would two objectively reasonable persons – one presented with only the water supply assessment and the other presented with both the water supply assessment and the [Bureau of Reclamation’s] letter – come to the same conclusion as to the level of uncertainty of the project’s water supply?  We conclude they would not and, thus, the water supply assessment did not provide a full disclosure of relevant information.

The case serves as a reminder that a comprehensive and detailed water supply availability analysis is critical to preparing legally defensible CEQA documents for proposed development projects.

KMTG will publish a Legal Alert with a more detailed analysis of the opinion's broad CEQA holdings.  In the meantime, a copy of the court's opinion may be found here.

For more information regarding this matter, please contact Hanspeter Walter, Andrew Tauriainen, Eric Robinson, or the KMTG attorney with whom you normally consult.

Hearing on Motion to Stay Fall X2 Injunction Set for September 16

As we recently reported, the Natural Resources Defense Council has moved to stay Judge Oliver Wanger’s August 31 order enjoining the federal government from implementing the “Fall X2” measure under the Delta smelt biological opinion.  The United States Fish and Wildlife Service subsequently filed a similar motion.  Following a brief hearing on September 9, the Court directed the plaintiffs to file an opposition to the motion no later than September 14 and scheduled a full hearing at noon on September 16.  We will report on the outcome of that hearing.

For more information regarding this matter, please contact Eric Adair, Rebecca Akroyd, Hanspeter Walter, Daniel O'Hanlon, or the KMTG attorney with whom you normally consult.

Related stories:

• Federal District Court Enjoins Water Supply Restrictions Under Delta Smelt Biological Opinion
• NRDC Seeks to Stay Injunction of Fall X2 Action Under Delta Smelt Biological Opinion

Related documents:

• Findings of Fact and Conclusions of Law re Plaintiffs' Request for Injunctive Relief Against Implementation of RPA Component 3 (Action 4)
• NRDC Motion for Stay of Fall X2 Injunction Pending Appeal
• Federal Defendants' Motion for Stay Pending Appeal of the Court's Order Enjoining Action 4
• Plaintiffs' Opposition to Defendants-Intervenors' Motion for Stay of Fall X2 Injunction Pending Appeal
• Plaintiffs' Opposition to Federal Defendants' Motion for Stay Pending Appeal of the Court's Order Enjoining Action 4

EPA Orders $20 Million Cleanup of San Gabriel Valley Superfund Site

The United States Environmental Protection Agency announced yesterday that it has ordered Northrup Grumman Systems Corporation to spend $20 million to build a groundwater cleanup system to address groundwater contamination emanating from the former Benchmark Technology facility in the City of Industry.

According to the EPA, the site is one of the largest sources of volatile organic compound groundwater contamination in the Puente Valley area of the San Gabriel Valley Superfund site.  The system to be installed will include a series of monitoring wells and a treatment plant to contain and treat groundwater contaminated by VOCs and 1,4-dioxane.  The treated water will then be discharged as surface water or injected back into the underground acquifer.

Speaking of the order, EPA Region 9 Adminstrator Jared Blumenfeld said:

Today’s order will protect the essential drinking water supplies in the San Gabriel Valley. The treatment system is designed to intercept the most highly contaminated groundwater plume and prevent it from migrating further. Once again, EPA is taking action requiring the company responsible for the pollution to pay for its cleanup in Puente Valley.

In other California-related EPA news, the EPA announced today that it has added two California sites to the National Priorities List -- the Blue Ledge Mine (abandoned mine) within the Rogue River - Siskiyou National Forest and the New Idria Mercury Mine (abandoned mercury mine) in Idria.  Two other sites have been proposed for the NPL -- Jervis B. Webb Co. (former manufacturer) and Seam Master Industries (adhesive manufacturer), both in South Gate.

For more information regarding this matter, please contact Eric Adair or the KMTG attorney with whom you normally consult.

Tehama-Colusa Canal Authority Appeals Area of Origin Decision

As we previously reported (here and here), the United States District Court for the Eastern District of California ruled in early August that water users in the Sacramento Valley have no preferential right to delivery of Central Valley Project water under California's so-called “area of origin” laws.  In a notice filed this morning, the Tehama-Colusa Canal Authority, plaintiff in Tehama-Colusa Canal Authority v. U.S. Dept. of the Interior, et al., Case No. 1:10-cv-0712 OWW DLB, appealed that ruling to the Ninth Circuit Court of Appeals.  We will continue to monitor further developments in the case and provide updates as warranted.

The underlying opinion from which the plaintiff has appealed may be found here.

If you have any questions concerning this topic, please contact Daniel J. O'Hanlon, Hanspeter Walter, or Rebecca R. Akroyd from our office, or the KMTG attorney with whom you normally consult.

Related stories:

• KMTG Legal Alert: Sacramento Valley Farmers Have No Prior Right To Central Valley Project Water Under Area Of Origin Laws
• District Court Rejects Claims to Area of Origin Priority by Tehama-Colusa Canal Authority

KMTG Legal Alert: County Not Liable For Damage From Flooding And Debris

In Gutierrez v. County of San Bernardino (--- Cal.Rptr.3d ----, Cal.App. 4 Dist., August 24, 2011), a court of appeal considered whether property owners stated a claim for inverse condemnation for damage to their properties caused by a second flood after the county installed K-rails to protect residences because a previous flow of water, sediment, and debris had caused substantial damage. The court of appeal held that the property owners did not state a claim for inverse condemnation because the county acted reasonably when it attempted to protect the private property owners from a risk created by nature and the improvement did not expose the “properties to a risk of flooding that did not otherwise exist.”

For a detailed discussion of the facts of this case, and the rationale behind the court's ruling, please see the full KMTG Legal Alert here.

A copy of the court's opinion may be found here.

If you have any questions concerning this topic, please contact Jeffrey L. Massey, William Chisum, or Hanspeter Walter from our office, or the KMTG attorney with whom you normally consult.

Related story: Appellate Court Rejects Homeowners’ Claims For Inverse Condemnation

NRDC Seeks to Stay Injunction of Fall X2 Action Under Delta Smelt Biological Opinion

On September 6, the Natural Resources Defense Council filed a notice of appeal and moved to stay Judge Oliver Wanger’s August 31 order enjoining the federal government from implementing the “Fall X2” measure under the Delta smelt biological opinion.  We previously reported on Judge Wanger’s ruling here.

In papers filed late yesterday, the NRDC appealed the injunction and separately filed a motion to stay its enforcement.  The NRDC’s motion argues that the Court’s August 31 ruling alters the status quo of its final judgment in the case.  The final judgment ruled that the biological opinion was arbitrary and capricious in several important respects and ordered the federal government to prepare a new opinion.  (The judgment has been appealed to the Ninth Circuit.)  The NRDC’s motion also challenges the Court’s findings regarding water supply impacts and argues that the injunction will imperil Delta smelt and its habitat.  The NRDC’s motion may be found here.

The NRDC also filed an application to expedite the hearing on its motion to stay the injunction.  It has requested a hearing at 1:30 p.m. on September 8.  The Court has not ruled on that application or notified the parties when a decision on that application might be rendered.  The NRDC’s application may be found here.

We will provide further updates as warranted.

If you have any questions regarding this matter, please contact Eric Adair, Rebecca Akroyd, Hanspeter Walter, Daniel O’Hanlon, or the KMTG attorney with whom you normally consult.

Related story: 

• Federal District Court Enjoins Water Supply Restrictions Under Delta Smelt Biological Opinion

Related documents: 

• Motion for Stay of Fall X2 Injunction Pending Appeal
• Application for Order Shortening Time to Hear Motion for Stay of All X2 Injunction Pending Appeal

Appellate Court Rejects Homeowners’ Claims For Inverse Condemnation

A recent decision of California's Fourth District Court of Appeal resolved claims for inverse condemnation brought against San Bernardino County by property owners whose homes were destroyed by water, dirt, and debris flowing from nearby mountains. 

The case, Michael T. Gutierrez et al. v. County of San Bernardino, addressed flooding damages caused by intense rains that occurred after a large fire had denuded the upslope area.  After the first significant rains in December 2003 caused debris to flow into the downslope neighborhood, the County placed protective “K-rails” to guide debris away from homes.  Unfortunately, in October 2004, more heavy rainfall occurred and caused more water and debris to flow downward, some of which escaped the confines of the K-rails and damaged homes.  Property owners sued, alleging the County’s installation of the K-rails was responsible for the damage.  The appellate court rejected the claims, finding that the K-rails were not a substantial cause of the damage and that the County would not be held to a strict liability standard, but one of reasonableness, which it had met.  The court found the K-rails were installed under “exigent circumstances” and that “[a]s a matter of public policy and common sense, some protective action should not be discouraged.”  The court also concluded:

Here, installing the K-rails, the County was attempting to protect private property owners from a risk created by nature.  The evidence is clear that the County’s conduct did not create a situation or risk that would not otherwise have been present had it not installed the K-rails.

Given the variable nature of California’s climate and fire cycles, such events are sure to occur again and again.  The case is a good read for agency and private lawyers alike because it addresses and distinguishes several legal standards in inverse condemnation cases, and may help shape future government and private responses to existing risks and future calamities.

A copy of the court's opinion may be found here.

If you have any questions regarding this decision, please contact Hanspeter Walter or the KMTG attorney with whom you normally consult.