2017-00221348-CU-TT

People of the State of Ca. vs. Gen Envir Mgmt of RC, LLC

Nature of Proceeding: Hearing on Demurrer

Filed By: Brunton, Daniel P.

*** If oral argument is requested, the parties must at the time oral argument is requested notify the clerk and opposing counsel of the causes of action that will be addressed at the hearing. The parties are also reminded that pursuant to local court rules, only limited oral argument is permitted on law and motion matters. ***

Defendants General Environmental Management of Rancho Cordova LLC; Stericycle Environmental Solutions, Inc.; and Stericycle, Inc. (“Defendants”) demurrer to Plaintiff Department of Toxic Substances Control’s (“DTSC”) complaint is ruled upon as follows.

Defendants’ and DTSC’s requests for judicial notice are granted. In taking judicial notice of these documents, the court accepts the fact of their existence, not the truth of their contents. (See Professional Engineers v. Dep’t of Transp. (1997) 15 Cal.4th 543, 590 [judicial notice of findings of fact does not mean that those findings of fact are true]; Steed v. Department of Consumer Affairs (2012) 204 Cal.App.4th 112, 120-121.)

This is an action for civil penalties and injunctive relief for various violations of the Health and Safety Code.

Defendants demur to the 8th, 16th, 17th, and 21st causes of action on the grounds that DTSC fails to allege sufficient facts to state a claim for the various violations of H&S Code and Cal. Code of Regulations.

Eight Cause of Action – Failure to Notify the Department of a New Release Within 24 Hours in Violation of Health & Saf. Code, § 25202, subd. (a) and Cal. Code Regs., tit. 22, § 66270.30, subd. (a)

DTSC alleges that Defendant failed to report within 24 hours new releases from two fires at the facility. One fire occurred on August 2, 2011, the other on August 7, 2017.

With respect to the August 2011 fire, DTSC alleges that Defendants “consolidated oxidizing pool chemicals, including trichloroisocyanuric acid and hypochlorites, into

a 55-gallon drum, and then closed the drum’s lid. Shortly thereafter, the drum began to emit a yellowish green gas. The drum pressurized sufficiently to blow the lid off the drum and the drum caught fire. The fire spread to consume a total of four plastic drums of hazardous waste. The local fire department subsequently arrived and extinguished the fire, but their response efforts resulted in two firefighters being sent to the local hospital for observation.” (Complaint, ¶ 36.)

With respect to the August 2017 fire, DTSC alleges that “the fire occurred when two employees deliberately poured liquid naphthalene onto paper and lit the paper on fire with a lighter.” (Complaint, ¶ 39.)

22 CCR 66260.10 defines “Release” as: “(a) Any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment.” “Release” does not include “(1) Any release which results in exposure to persons solely within a workplace, with respect to a claim such exposed persons may assert against their employer.”

Defendants demur on the ground that DTSC fails to allege that any release was “into

the environment.” Defendants cite to Rivas v. Safety-Kleen Corp., (2002) 98 Cal.App.4th 217 to support their argument that the “common sense” meaning of “into the environment” is “outside of the structure or facility.” To show that there was no release into the environment, Defendants cite to paragraph 36 of the Complaint which states that the fire department extinguished the fire. They also cite to DTSC’s “Summary of Violation” on the August 2017 fire which states that the “fire was controlled.” (Declaration of Daniel Brunton and RJN, Ex. B.)

Rivas v. Safety-Kleen Corp. does not assist Defendants as the case concerned the statute of limitations for an employee’s workplace injuries against manufacturers and distributors of asbestos. There, plaintiffs maintained that the California statute of limitations was preempted by the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA”). Thus, according to the plaintiffs, the statute of limitations did not accrue until the claimant became aware of or identified not just the injury-causing product, but the specific hazardous substance or chemical compound within the product which led to the injury. The defendants argued that CERCLA did not apply to toxic exposure in the workplace.

The court quoting Covalt v. Carey Canada Inc. (7th Cir. 1988) 860 F.2d 1434 stated:

It is lexically possible to treat the ‘environment’ as everything pertaining to the planet Earth, so that the instant a container of asbestos is opened it is released ‘into [the local portion of] the environment’. Such a global treatment erases ‘released into the environment’ as a limitation, however, by ensuring that it is always satisfied. No substance, except perhaps an injected drug, harms anyone unless it was at least for an instant in an ‘environment’. A reading of this sort trivializes statutory language. The text makes more sense if read to refer to more widespread releases that affect strangers: asbestos wafting out of Proko’s plant and contaminating a nearby meadow, or shaken loose from insulation Proko installed in a school; asbestos left behind as a contaminant when Proko closes its plant; fluids leaching into the water supply from a plant, and so on.

(Rivas at 238.) The court, concluded that CERCLA did not include employee workplace injuries against manufacturers and distributors of asbestos because manufacturers or distributors of products were not on the list of “liable parties” under
CERCLA.

Here, DTSC’s action does not involve employee workplace injuries against manufacturers and distributors of asbestos. Additionally, emission of hazardous substances from a fire is vastly different from an emission from opening a container of asbestos.

In opposition, DTSC insists that assuming the truth of the facts alleged in the complaint and the reasonable inferences that may be drawn therefrom, that the Court must accept the inference that the burning of hazardous waste will necessarily emit

hazardous waste into the air, which is a release.

The Court agrees with DTSC that it can reasonably be inferred that the burning of the hazardous waste was a release into the environment. The demurrer is OVERRULED.

Sixteenth Cause of Action – Failure to Properly and Accurately Complete the Facility Closure Plan in Violation of Cal. Code Regs., tit. 22, § 66264.112 subd. (b)

(3)

DTSC alleges that “on and prior to May 6, 2015, and May 12, 2015 Defendants failed to provide in the Closure Plan an accurate estimate of the total inventory of hazardous waste ever onsite over the active life of the Facility and failed to fully and accurately detail the methods to be used during partial and final closure of the Facility, in violation of California Code of Regulations, title 22, section 66264.112, subdivision (b)

(3).” (Complaint, ¶ 183.)

Defendants, relying on 22 CCR §66264.112(a)(2), contend that because the DTSC approved the facility’s permit, it “ensured” that the closure plan met regulatory requirements. Thus, according to Defendants, there was no violation.

22 CCR §66264.112(a)(2) provides: “the Department’s approval of the plan shall ensure that the approved closure plan is consistent with sections 66264.111 through 66264.115 and the applicable requirements of article 6 of this chapter and sections

66264.178, 66264.197, 66264.228, 66264.258, 66264.280, 66264.310, 66264.351,

66264.601 and 66264.1102.”

DTSC argues in opposition that the permit does not excuse Defendants’ non-compliance from the law. DTSC points to the permit which states “[t]he Permittee shall comply with the provisions of the Health and Safety Code, and division 4.5 of California Code of Regulations, title 22. The issuance of this Permit by DTSC does not release the Permittee from any liability or duty imposed by federal or state statutes or regulations or local ordinances, except the obligation to obtain this Permit.” (Declaratio n of Daniel Brunton and RJN, Ex. A [emphasis added].) DTSC also points to 22 CCR §66270.4(b) which states “the owner or operator of a facility which has been issued a hazardous waste facility permit shall comply with conditions of the permit as well as regulations adopted by the Department.”

The demurrer is OVERRULED. The Court is not convinced by Defendants’ argument that DTSC’s approval of the permit per se means that the closure plan met regulatory requirements.

Seventeenth Cause of Action – Failure to Properly Manage Containers in Violation of California Code of Regulations, tit, 22, §§ 66264.171 and 66264.173 subd. (b)

DTSC alleges that on and prior to May 11, 2016, DTSC discovered that Defendants stored hazardous waste in three significantly dented or deformed 5-gallon plastic containers in Area B and the Loading and Unloading Area. (Complaint, ¶ 188.)

22 CCR §66264.171 states “[i]f a container holding hazardous waste is not in good condition (e.g., severe rusting, apparent structural defects) or if it begins to leak, the owner or operator shall transfer the hazardous waste from this container to a container that is in good condition or manage the waste in some other way that complies with the requirements of this chapter.”

Defendants demur on the ground that there are no allegations that the containers at issue were observed to have “severe rusting, structural defects, or any actual ruptures or leaks.” (Motion, 9:17-18.)

The demurrer is OVERRULED. 22 CCR §66264.171 is not limited to only those containers with “severe rusting, structural defects, or any actual ruptures or leaks.” Whether the containers were not in a “good condition” is a question of fact outside the scope of a demurrer.

Twenty-First Cause of Action – Failure to Use Protective Equipment in Violation of Health & Saf. Code § 25202, subd. (a) and Cal. Code Regs., tit. 22, § 66270.30 subd. (a)

DTSC alleges that “Section VIII(B)(1) of the Permit Part B provides that employees handling hazardous waste must wear personal protective equipment. On and prior to June 27, 2017, Defendants’ employees failed to wear personal protective equipment (hard hats).” (Complaint, ¶¶ 211- 212.)

Defendants claim that the Permit does not require hard hats.

Section VIII(B)(1) of the Permit states “GEM LLC will ensure that each member of the operation staff is provided and uses the proper protective equipment during waste receiving, inspecting, sampling, analyzing, processing, and shipping procedures. Such equipment includes, but is not limited to, face, boots, or other protective equipment as directed by the GEM LLC facility management.”

The demurrer is OVERRULED. The Permit requires employees to wear protective equipment. The fact that “hard hats” is not explicitly referenced is of no import.

Defendants shall file and serve an answer by no later than June 14, 2018.