BKHN, INC. v. Department of Health Services

Plaintiff BKHN, Inc., filed this action for declaratory relief to challenge demands made against it by respondent Department of Health Services (DHS) for payment of environmental cleanup costs related to mercury contamination in Almadén Quicksilver County Park. The trial court entered a judgment of dismissal after sustaining the demurrer of DHS without leave to amend against BKHN’s first amended complaint. The court concluded that “a ‘declaration or determination is not necessary or proper at the time under all the circumstances.’ CCP Section 1061.” Plaintiff appeals. We will affirm for the reasons explained below.

Factual and Procedural Background

The procedural question of whether the demurrer was properly sustained in this case must be assessed in light of the underlying substantive law. Both the national and state governments have enacted legislation providing for remedial action when hazardous substances are discovered in the environment. The federal law, Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, 42 U.S.C. §§ 9601-9675 ) provides that a party is liable for remedial costs incurred if it owns the contaminated property or owned the…