Soco West, Inc. v. California Environmental Protection Agency

I concur with the majority’s decision to affirm the judgment, as modified, based on the legislative history of Health and Safety Code section 25187, subdivision (b)(1). 1 That history shows the Legislature intended to give a responsible party, rather than defendant California Environmental Protection Agency, Department of Toxic Substances Control (DTSC), the option of choosing the cleanup program for a hazardous waste site under Health and Safety Code, division 20, chapter 6.8 (Chapter 6.8), rather than the proceedings under division 20, chapter 6.5 (Chapter 6.5). Accordingly, I agree DTSC lacked authority to deny plaintiff Soco West, Inc.’s (Soco) request to clean up its site under Chapter 6.8 rather than Chapter 6.5.

I, however, cannot agree with the majority’s assertion the plain language of section 25187, subdivision (b)(1)(A), is unambiguous. Subdivision (b)(1) states DTSC shall pursue the remedies available under Chapter 6.5 before using the legal remedies available under Chapter 6.8 unless one of the exceptions set forth in subparts (A) through (F) applies. Subpart (A) sets forth the exception at issue and states DTSC is not required to pursue Chapter 6.5 remedies before…

This case involves the interpretation of Health and Safety Code section 25187, subdivision (b)(1)(A) (all further undesignated statutory references are to this code). The issue is whether that statute required defendants California Environmental Protection Agency’s Department of Toxic Substances Control and the director of that department (collectively, DTSC) to transfer the cleanup of a hazardous waste site from chapter 6.5 (Chapter 6.5) to chapter 6.8 (Chapter 6.8) of division 20 of the code upon written request from plaintiff Soco West, Inc. (Soco), or merely gave DTSC discretion to decide whether to do so. The trial court concluded the statute mandated the transfer and granted Soco’s motion for judgment on the pleadings. DTSC disagrees and appeals.

We hold the plain language of section 25187, subdivision (b)(1)(A) unambiguously required DTSC to invoke the legal remedies available pursuant to Chapter 6.8 after Soco voluntarily requested in writing that DTSC issue an order for Soco to take corrective action pursuant to that chapter. Even if an ambiguity existed in the statutory language, the legislative history surrounding the adoption of section 25187, subdivision…