USA – CALIFORNIA Law and Practice Contributed by: Kim Bick, Alan Bick, Corrie Plant and Tyler Alexander, Bick Law LLP
fornia’s Enhanced Enforcement Activities Program under the Clean Air Act. • City & County of San Francisco v EPA , 604 US (2025) – held the Clean Water Act does not author- ise EPA to impose “end-result” or “receiving water” limitations in NPDES permits. 11. Contractual Agreements 11.1 Transferring or Apportioning Liability Indemnity clauses are generally enforceable in Cali- fornia. However environmental cleanup statutes like CERCLA, RCRA, and the California Hazardous Sub- stance Account Act follow the “polluter pays” principle, which favours holding responsible parties financially accountable for the costs associated with pollution remediation and avoiding passing those costs on to the taxpayer. Under these statutes, indemnity clauses in contracts are generally enforceable among poten- tially responsible parties to allocate costs associated with cleanup among themselves. But all potentially responsible parties remain jointly and severely liable to the government in a cost recovery action. Indemnity clauses may also factor into a court’s analysis dur- ing the equitable allocation phase of a cost recovery proceeding. 12. Contaminated Land 12.1 Key Laws Governing Contaminated Land Several statutes govern the cleanup of contaminated sites in California, including: • Comprehensive Environmental Response, Com- pensation, and Liability Act (CERCLA or Super- fund), 42 U.S.C. § 9601 et seq. – federal law pro- viding for cleanup of polluted sites and passing the costs of cleanup to potentially responsible parties; • Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § 6901 et seq. – federal law regulating hazardous materials, solid and municipal waste, and underground storage tanks; • California Hazardous Waste Control Law (HWCL), Cal Health & Safety Code § 25000 et seq. – Califor- nia law regulating generation, transportation, use,
and disposal of ignitable, corrosive, reactive, or toxic wastes; and • California Hazardous Substances Account Act (HSAA), Cal Health & Safety Code § 78000 et seq. – California law authorising the California Depart- ment of Toxic Substances and Control to respond to hazardous substances releases and to hold responsible parties liable. Regulatory authorities usually become involved when a property owner reports a release or threat of release of hazardous substances on their property, often fol- lowing due diligence at time of sale. At that time, the authorities usually require delineation of the contami- nation in the subsurface, a conceptual plan for reme- diation of the contamination and mitigation of threat of exposure, and an agreement to conduct the reme- diation to protect human health and the environment. California considers all groundwater to be potential drinking water; therefore, any groundwater with con- taminants exceeding regulatory standards must be remediated to meet those standards, regardless of the use of the groundwater. California agencies require an agreement to pay for the government’s oversight, in addition to the costs for investigation and remediation. 12.2 Clearing Contaminated Land Both federal and California law follow the “polluter pays” principle in assigning the costs of site cleanup. Under both federal and California law, “potentially responsible parties” may be sued for cost recovery by public or private entities who remediate contaminated land. Potentially responsible parties are: • the current owners and operators of a contaminat- ed site (even if they were not the actual polluters); • the prior owners and operators of the contaminat- ed site at the time of the contamination; • entities which arranged for the contaminating sub- stances to be disposed of at the site; and • transporters which brought the contaminating sub- stances to the site. 12.3 Determining Liability Liability under CERCLA, RCRA, and California law is strict, joint, and several. The government or private party that performed the cleanup may seek cost recov- ery against any or all potentially responsible parties.
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