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 Denied CEQA Challenge Remanded for Failure to Attach Corrective Action Plan to Negative Declaration
 Ninth Circuit Holds That Dry Cleaning Equipment Manufacturer Is Not Liable as an Arranger under CERCLA or on State Law Nuisance and Trespass Claims
 Court of Appeal Requires Strict Compliance with CEQA 30-Day Public Notice Requirements

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Denied CEQA Challenge Remanded for Failure to Attach Corrective Action Plan to Negative Declaration

Posted by Mary Wilke, Esq.

The California Fourth District Court of Appeal, in Citizens for a Responsible Equitable Environmental Development v. City of Chula Vista (June 10, 2011), remanded a lawsuit challenging the City of Chula Vista’s (“City”) decision to approve the construction of a Target store based on a mitigated negative declaration because the lead agency failed to attach the Corrective Action Plan (“CAP”) for the site to the negative declaration.  The Appellate Court held that the failure to attach the CAP makes it uncertain whether the construction of the store would cause further migration of the hazardous materials addressed by the CAP into groundwater.

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Ninth Circuit Holds That Dry Cleaning Equipment Manufacturer Is Not Liable as an Arranger under CERCLA or on State Law Nuisance and Trespass Claims

Posted by Michael Einhorn, Esq.

In Team Enterprises, LLC v. Western Investment Real Estate Trust, No. 10-16916, 2011 U.S. App. LEXIS 15383 (9th Cir., Cal. July 26, 2011), the Ninth Circuit held that the manufacturer of a machine used in the dry cleaning process may not be held liable for contribution to environmental cleanup costs under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) or on State law nuisance and trespass claims.

The plaintiff-appellant Team Enterprises, LLC (“Team”) operated a dry cleaning store and used PCE as part of the dry cleaning process, which generated wastewater containing PCE.  Team used the Puritan Rescue 800 filter-and-still combination equipment (“Rescue 800”), designed and manufactured by defendant-appellee R.R. Street & Co. (“Street”), to separate the PCE from the wastewater, and then filter and reuse it.  The Rescue 800 returned the distilled PCE to Team’s machines and deposited the wastewater into a bucket.  In the bucket, the wastewater would sit and more PCE would separate from the water, allowing Team to reuse that separated PCE as well.  However, the remaining wastewater in the bucket still contained some dissolved PCE, and Team disposed of this wastewater by pouring it down the sewer drain, allowing the PCE to leak out of the drain pipes and into the soil.  The California Regional Water Quality Control Board found that the soil needed cleanup, which Team performed at its expense.

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Court of Appeal Requires Strict Compliance with CEQA 30-Day Public Notice Requirements

Posted by Mary Wilke, Esq.

The California Court of Appeal, in Latinos Unidos De Napa v. City of Napa, 196 Cal. App. 4th 1154 (June 27, 2011), held that the City of Napa (“City”), which filed a CEQA Notice of Determination (“NOD”) with the County Clerk’s office, did not satisfy the 30-day posting and filing requirement when the notice was removed from the County Clerk’s office mid-day on the 30th day.  As a consequence, the plaintiff, an affordable housing advocate group, was allowed 180 days from the City’s approval of the project to challenge the CEQA NOD under Public Resources Code section 21167(a).

Public Resources Code section 21152(c) requires a County clerk to post the NOD “for a period of 30 days.”  The Court looked to Code of Civil Procedure section 12 for clarification on the timing requirement and determined that the “30-day” period excludes the first day of posting and includes the last day.  The Court clarified that “the NOD must be posted for the entire last (30th) day to satisfy the 30-day posting requirement.”  196 Cal. App. 4th at 1157-1158.  Since the City only posted the NOD for part of the 30th day, and not until the County Clerk’s office closed, the 30-day notice requirement was not met.  The City argued that because it filed the NOD with the County Clerk that action alone satisfied the 30-day posting and filing requirement of Public Resources Code section 21152, relying on CEQA Guidelines section 15094(g).  However, the Court of Appeals determined that CEQA Guidelines section 15094(g), like Public Resources Code section 21152, provides that a NOD must be both filed and posted, and thus rejected the City’s argument.

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