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Here’s a brief report on recent Resource Conservation and Recovery Act (RCRA) developments:

1.   On February 26, the Environmental Protection Agency published a Federal Register notice informing the public that it will submit to the Office of Management and Budget (OMB) an information collection request regarding the operation of four final 2015 revisions to the definition of solid waste regarding in particular the “generator-controlled exclusion”; the “verified recycler exclusion”; the manufacturing exclusion; and the revised speculative accumulation requirement.

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Over the last few decades, there have been more than a few proposals seeking to limit or remove the protections Proposition 13 affords to some types of real estate. In their recent client alert, colleagues Craig A. Becker and Breann E. Robowski examine Initiative 17-0055, which would make two significant changes to California’s property tax system, including the elimination of Prop 13 protection for commercial and industrial real estate.

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Recently, the Trump Administration released a 53-page Legislative Outline for Rebuilding Infrastructure in America of legislative proposals to rebuild American infrastructure, which it defines as surface transportation, airports, passenger rail, ports and waterways, flood control, water supply, hydropower, water resources drinking water and waste water facilities, storm water facilities, and surprisingly, Brownfield and Superfund sites. Infrastructure projects can be located in both urban and rural areas.

The proposal lists specific laws that will require amendments, and would make available billions of dollars in federal funds to trigger the process. This is a brief review of its many provisions.

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On February 14, the U.S. Court of Appeals for the Fifth Circuit filed an unpublished opinion in the case of U.S. v. CITGO Petroleum Corporation, upholding the ruling of the U.S. District Court for the Western District of Louisiana that CITGO should be assessed a penalty of $81M for the massive spillage of wastewater into navigable waters at CITGO’s Lake Charles Refinery.

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On February 12, the Appellate Division of the Superior Court of New Jersey issued its ruling in the case of the New Jersey Department of Environmental Protection v. Exxon Mobil Corporation. The appeals court affirmed the August 2015 ruling of the trial court which approved a broad settlement the parties reached on the very eve of trial, to resolve, for the time being, New Jersey Department of Environmental Protection’s (NJDEP) natural resource damages (NRD) claims against Exxon regarding its operations at the Bayway Refinery and the Bayonne facility, as well as one thousand Exxon retail gas stations in New Jersey.

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Section 1122 of the Water Resources Development Act of 2016 directs the Secretary of the Army, no later than 90 days after the enactment of this law (which took place on December 16, 2016), to establish a pilot program to recommend ten projects for the beneficial use of the tons of dredged material generated by the operations of the U.S. Army Corps of Engineers (Corps).

On February 9, the Corps published a Federal Register notice which solicits the submission of ten projects that will address the beneficial use of dredged materials. Proposals must be submitted to Headquarters U.S. Army Corps of Engineers on or before March 12, 2018. The Corps generates many tons of dredged material, so it makes sense to see if there are truly beneficial uses for this material.

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When it comes to real estate, every large U.S. city is in some ways its own unique ecosystem. Still, a local measure can set a standard that other municipalities take note of and potentially emulate. In their recent client alert on dueling proposals for commercial rent tax measures, colleagues Richard E. Nielsen, Craig A. Becker and Robert C. Herr examine just such a local ballot measure, as the San Francisco electorate will decide between a 1.7% or 3.5% tax on commercial rentals in June.

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On February 1, the Congressional Research Service published a report entitled Evolving Assessments of Human and Natural Contributions to Climate Change. The report traces evolution of scientific understanding and confidence regarding drivers of recent global climate change. Some very useful historical references are provided.

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cracked-wall-picture-id524885417-300x200On January 18, 2018, in McMillin Albany LLC v. Superior Court, the California Supreme Court published a closely followed decision resolving a lower court split interpreting California’s Right to Repair Act (S.B. 800, Civ. Code § 895 et seq.). The Court determined that the legislature intended to alter the common law when it came to economic loss and property damage, making the Act the exclusive remedy for construction defects.

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On February 5, the U.S. Court of Appeals for the Ninth Circuit decided an interesting Outer Continental Shelf Lands Act (OCSLA) case, Newton v. Parker Drilling Management Services, Ltd. The Ninth Circuit reversed the Central District Court’s dismissal of a California wage and hour complaint brought by a worker employed on an offshore oil and gas drilling platform fixed and located in federal waters and otherwise subject to the OCSLA and federal law.

The Ninth Circuit held:

[T]he absence of federal law is not, as the district court concluded, a prerequisite to adopting state law as surrogate federal law under the [OCSLA].

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