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Foster-Gardner Inc. v. National Union Fire Insurance Co.8/3/1998
amp; Selmi, Cal. Environmental Law & Land Use Practice, supra, §§ 56.10 -56.10 , pp. 56-31-56-39.)
As noted, the Order here required Foster-Gardner to prepare a Remedial Investigation and Feasibility Study. " `Remedial investigation' means those actions deemed necessary by the [DTSC] to determine the full extent of a hazardous substance release at a site, identify the public health and environment threat posed by the release, collect data on possible remedies, and otherwise evaluate the site for purposes of developing a remedial action plan." (§ 25322.2.) " `Feasibility study' means the identification and evaluation of technically feasible and effective remedial action alternatives to protect public health and the environment, at a hazardous substance release site, or other activities deemed necessary by the [DTSC] for the development of a remedial action plan." (§ 25314.)
The final RAP issued by the DTSC establishes the cleanup option selected for the site. (3 Manaster & Selmi, Cal. Environmental Law & Land Use Practice, supra, § 55.26 , p. 55-76.) It also includes "a non-binding preliminary allocation of responsibility among all identifiable potentially responsible parties at a particular site." (§ 25356.1, subd. (e).) "The PRPs identified in the final RAP have three options: (1) assume cleanup responsibility based on the RAP, (2) litigate, or (3) agree to binding arbitration. If a PRP does not choose any of these options, the DTSC . . . will begin the cleanup and collect the costs through a subsequent action." (3 Manaster & Selmi, Cal. Environmental Law & Land Use Practice, supra, § 55.26 , p. 55-76.)
A PRP named in a final RAP may seek judicial review of the plan by filing a petition for writ of mandate pursuant to Code of Civil Procedure section 1085. (§ 25356.1, subd. (g)(1); 3 Manaster & Selmi, Cal. Environmental Law & Land Use Practice, supra, § 55.26 , p. 55-76.) The court must uphold the RAP if it is based on substantial evidence available to the DTSC. (§ 25356.1, subd. (g)(2).) Currently, but not in August 1992, the HSAA specifies that judicial review of any issues concerning the adequacy of any response action taken or ordered by the DTSC is limited to the administrative record. (§ 25357.5, subd. (a).) "Otherwise applicable principles of administrative law shall govern whether any supplemental materials may be considered by the court." (Ibid.)
If DTSC has incurred costs and seeks to compel recovery of them, it must file a lawsuit in court. (§ 25360, subds. (a), (c); see id., former subd. (d), as amended by Stats. 1989, ch. 269, § 40, p. 1338; AIU Ins. Co. v. Superior Court (1990) 51 Cal.3d 807, 815-816 (AIU).) If DTSC decides to file a cost recovery action, " othing in this section deprives a party of any defense he or she may have." (§ 25360, subd. (c); see id., former subd. (d) as amended by Stats. 1989, ch. 269, § 40, p. 1338.) There is strict liability for any recoverable costs or expenses. (§ 25363, subd. (d).) However generally, "any party found liable for any [recoverable] costs or expenditures . . . who establishes by a preponderance of the evidence that only a portion of those costs or expenditures are attributable to that party's actions, shall be required to pay only for that portion." (§ 25363, subd. (a).)
Currently, but not in August 1992, a PRP that fails to comply with an Order without sufficient cause is subject to a civil penalty of up to $25,000 for each day of noncompliance. (§ 25359.2.) This liability may be imposed either in a civil action or administratively. (Ibid.) In addition, in August 1992, generally a party who failed to comply with an Order was liable for "punitive damages up to three tim
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