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The SWCRB letter echoes'�eite LLNL Report's A current 1,4e in private enforcement actions is ^ recommendation that there are few situations where the minimum content required in a 60-day notice.Some PUMP and treat technology should be used to clean up 60-day notices have alleged the violation in very broad groundwater.In the place of current cleanup standards, terms, making it difficult for the government which are pegged at the "MCL" (maximum prosecutors and allejed violators to evaluate the matter contaminant level) for drinking water in most before the 60 days runs. instances, the report suggests a risk-based corrective The proposed regulation requires that certain action framework. The RBCA method (or "rebecca") specific information be included in the 60-day notice of involves balancing resource values with technical and violation. Some of the requirements apply to any 60- economic feasibility. Most sites evaluated in that day notice; other requirements apply only to specific fashion will lead to streamlined cleanups:source or soil kinds of alleged violations. removal,passive bioremediation and monitoring. The proposed regulation requires all 60-day notices The SWRCB pronouncement is a definite "sea to include a specified summary of the Proposition 65 change"for California,and UST owners and operators statute. The proposed regulation also requires that all should follow developments in this area closely. For 60-day notices include certain basic information,such example,the San Francisco Bay Regional Water Quality as the identity of the person or entity issuing the notice, Control Board has already issued interim guidance on the identity of the alleged violator, the time period petroleum hydrocarbon cleanups and reportedly has during which the alleged violation occurred, and the modified several previously issued orders. Other Proposition 65 chemicals at issue. All 60-day notices Regional Boards are opposed to the SWRCB's policy alleging unlawful exposures due to inadequate and may resist requests to modify cleanup plans. warnings must specify how the exposure occurs and In the near term,any party negotiating with a local must also specify any warnings provided and explain agency regarding a "low-risk" fuel hydrocarbon their deficiencies. cleanup should request that the site be treated in accord The proposed regulation sets out separate with the SWRCB's recommendations. Parties requirements for four categories of alleged violations: undertaking a more aggressive cleanup, for whatever consumer product exposures without adequate reasons, run the risk of becoming ineligible for warnings, occupational exposures without adequate reimbursement of the associated costs from the warnings,environmental exposures without adequate Underground Storage Tank Cleanup Fund.The process warnings, and unlawful discharges to sources of of revising Resolution 92-49 may ultimately provide a drinking water. Generally, for each category, the 60- new and clearer framework for such sites that will be day notice is required to set forth specific facts less cumbersome and less expensive than the describing the violation. comprehensive remedial actions required in many cases.Please contact Bruce Klafter or Tim Walker if you For consumer product exposures without adequate have questions about USTs. warning,the notice must specify the consumer product or service that caused the violation with sufficient specificity to inform the recipients of the nature of the items and must correlate the chemicals at issue with the RM � ® 0 products at issue. �11,90 ' ' For occupational exposures,the notice must specify where the exposure is alleged to occur and must OEHHA PROPOSES PROP 65 60-DAY describe the occupation of the exposed persons. NOTICE REQUIREMENTS For environmental exposures, the notice must The Office of Environmental Health Hazard specify the location of the source of the unlawful Assessment (OEHHA) and the Attorney General's exposure and whether the exposure occurs beyond the office have jointly proposed new requirements for 60- property owned by the violator. day notices of violation of Proposition 65. Proposition For unlawful discharges to sources of drinking 65 requires as a prerequisite to private enforcement water,the notice must provide a general identification actions that the alleged violator be provided with a of the source of the discharge and of the geographic or notice of the alleged violation at least 60 days before other source of drinking water affected. suit is filed.The 60-day notice of violation must also be provided to the attorney general,district attorneys and some city attorneys. If any government enforcement agency chooses to sue within the 60-day period, the private enforcer is barred from bringing a separate suit. ORRICK,HERRINGTON&SUTCLIFFE VENVIRONMENTAL LAW UPDATE