USA – CALIFORNIA Law and Practice Contributed by: Kim Bick, Alan Bick, Corrie Plant and Tyler Alexander, Bick Law LLP
is generally the legal obligation of the waste generator to segregate and send the waste to the correct facility. The waste operator has the right to rely on the gen- erator to correctly identify and segregate the waste; however, if a waste operator is notified that it was sent the wrong waste, it is legally obligated to report to the agency and attempt to mitigate any impacts. Operators may seek compensation from generators for mitigation costs. If a waste operator does not com- ply with the regulations governing the waste facility, the governing agency may issue a notice of violation, require mitigation, and seek penalties. Egregious or repeat offenses may result in increased penalties and risk revocation of a permit to operate. 16. Environmental Disclosure and Information 16.1 Disclosure and Reporting Requirements In addition to the emissions reporting requirements discussed above, businesses must submit informa- tion on hazardous materials or other environmental compliance matters to CalEPA through the California Environmental Reporting System (CERS) or to a local Certified Unified Program Agency (CUPA). Under the California Hazardous Substances Account Act, regu- lated entities must also report significant or emergen- cy releases of hazardous substances to the California Governor’s Office of Emergency Services or face civil penalties of up to USD25,000 per day and potentially increased liability for cleanup costs. 16.2 Public Environmental Information Public information regarding ongoing property inves- tigations and remediations is available at the DTSC’s website and the State Water Resources Control Board’s website. Settlements of enforcement actions can also be found at the California Air Resources Board (CARB) website. Self-reporting of stormwater sampling and compliance with the Industrial General Permit and the Construction General Permit is avail- able at Stormwater Multiple Application and Report Tracking System (SMARTS) website. In addition, members of the public may obtain infor- mation from public authorities through requesting
public records under the California Public Records Act. Under the Act, any natural person, corporation, partnership, limited liability company, firm, asso- ciation, or state or local agency may request public records. Requests may be in person, via mail, phone, or by email. Under the Act, the agency must respond within ten days as to whether it has the requested record and can produce it, extendable by a further 14 days in some circumstances. 16.3 Corporate Disclosure Requirement See 6.5 ESG Requirements , discussing ESG report- ing requirements. 16.4 Green Finance The California Alternative Energy and Advanced Trans- portation Financing Authority offers green finance programs aimed at incentivising energy efficient and sustainable construction and other projects. Califor- nia’s GoGreen Home Financing Program provides lower cost financing for residential energy upgrades to support California’s transition toward carbon neutral- ity. Likewise, California’s GoGreen Business Energy Financing Program incentivises lenders to help small businesses and non-profits build clean energy gen- eration and storage upgrades, charging units for elec- tric vehicles, and energy efficient retrofits in existing construction. In the M&A setting, due diligence typically evaluates all properties owned and leased, and all operations, for compliance risk, potential contamination risk, and hazardous waste generator risk (including an assess- ment of the disposal facilities used by the company being acquired) to determine if any of these risks are material. Responsible due diligence for transactions involving potentially contaminated land follows the standards published by the American Society for Test- ing and Materials. 17. Transactions 17.1 Environmental Due Diligence That begins with a Phase I Environmental Site Assess- ment (ESA) conducted by a qualified environmental professional. A Phase I ESA assesses the historical uses of a property to determine the potential risk of
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