USA – CALIFORNIA Law and Practice Contributed by: Kim Bick, Alan Bick, Corrie Plant and Tyler Alexander, Bick Law LLP
• Department of Pesticide Regulation – reviews and approves pesticide products and regulates pesti- cide use. • Department of Resources, Recycling, and Recov- ery (CalRecycle) – implements recycling and waste management programmes and regulates waste disposal. • Department of Toxic Substances Control (DTSC) – regulates storage, treatment, or disposal of hazard- ous waste, oversees cleanups on contaminated properties, and brings enforcement actions against polluters. • Office of Environmental Health Hazard Assessment – evaluates and lists substances that cause cancer or reproductive harm under Prop 65 and deter- mines safe exposure levels for contaminants. • State Water Resources Control Board – permits and regulates diversionary and appropriative water uses and protects water quality. The California Natural Resources Agency has primary jurisdiction over public lands, natural resources, and wildlife, overseeing the following departments. • Department of Forestry and Fire Protection (Cal- Fire) – manages state forests and provides disaster response. • Department of Conservation – regulates oil, gas, and geothermal energy production, as well as min- ing and reclamation. • Department of Parks and Recreation – administers state parks. • Department of Fish and Wildlife – protects animal and plant resources and administers state hunting and fishing programmes. • Department of Water Resources – manages the State Water Project and regulates dams. Other important California regulatory and enforcement agencies include the Coastal Commission – the body that regulates land and water use in the coastal zone – and local regional water quality boards and air quality management districts. 2.2 Co-Operation Regulated entities can co-operate with state regula- tors through various processes. For example, the Cali- fornia Administrative Procedure Act, Cal. Govt. Code
§ 11340 et seq., provides opportunities for participa- tion and comment during the rulemaking process. Before initiating enforcement proceedings, Califor- nia agencies will often seek to cure non-compliance through informal mechanisms like Notices of Violation and Notices to Verify Compliance. By co-operating at this early stage, companies may avoid unnecessary enforcement and litigation expenses. For contaminated land or water resources, regu- lated entities may pursue voluntary cleanup agree- ments with either DTSC or a regional water board. These agreements usually involve agency review and approval of investigation and remediation plans, as well as reimbursing the costs of continued agency oversight. The upside is that the regulated entity can usually obtain more flexible cleanup milestones and avoid civil penalties for failing to meet deadlines. In some cases, the regulated entity may even receive a “closure” or “no further action” determination from the agency, which makes a formerly contaminated prop- erty viable to sell. 3. Environmental Protections 3.1 Protection of Environmental Assets The United States’ system of dual sovereigns results in overlapping responsibility for environmental protec- tion. Under the doctrine of co-operative federalism, federal and state authorities work together to protect California’s natural resources and environmental qual- ity. For example, under the Clean Air Act, 42 U.S.C. § 7401 et seq., the federal Environmental Protection Agency establishes nationwide standards for air qual- ity. California, in turn, creates State Implementation Plans (approved by EPA) to reach those goals. Like- wise, the Clean Water Act, 33 U.S.C. § 1251 et seq., provides the EPA and US Army Corps of Engineers with jurisdiction over discharges and filling of waters of the United States while authorising California to adopt water quality standards. Through the federal Coastal Zone Management Act, 16 U.S.C. § 1451 et seq., the federal government allows California to regulate development in the coastal zone under the California Coastal Act, Cal. Pub. Res. Code § 30000
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