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Selma Pressure Treating Co. v. Osmose Wood Preserving Co.6/25/1990
chemicals.
Next, in 1978, which would be after the transfer of all the stock in SPTC to Schuessler, the Board issued another order relating to waste discharge requirements for SPTC. The Board determined the earlier requirements were no longer adequate. After identifying two particular chemicals used by the wood treating facility, the order noted the "potential exists at the site for a discharge of chemical products to permeable land surfaces. This potential includes drippings and spillage of chemicals to unpaved areas, runoff of rainwater from paved areas contaminated with the chemicals and leakage or rupture of pipelines, fittings, treatment facilities and storage tanks." The order then recited proposals by SPTC to modify its facilities in order to reduce the possibilities for discharge. The Board ordered that neither the treatment nor discharge shall cause a nuisance or pollution; the Board forbade any discharge to cause degradation of any water supply. Specifically, the company was prohibited from discharging, either directly or through runoff, into any surface water course. Discharge of wastes to areas which have hydraulic continuity with groundwater was also prohibited.
Finally, in 1981, after SPTC filed for bankruptcy , the Board issued a cleanup and abatement order. The order identified several chemicals used by SPTC and stated they were classified as hazardous. The order noted the facility had a history of disposal of wastes "to areas with hydraulic continuity with ground water." A study indicated a potential for groundwater degradation.
The 1981 order reiterated the requirements from the 1978 order, disallowing the treatment or discharge to cause a nuisance or pollution and the prohibition against causing degradation of water supplies. The order then stated: "The Dischargers have caused or permitted wood treating wastes to be discharged to permeable soils with hydraulic continuity with ground water which threatens to or has created a condition of pollution in the underlying ground water." Next, the order cited Water Code section 13304, subdivision (a), which empowers the Board to issue a cleanup and abatement order when a person violates a waste discharge order of the Board. The 1981 order then sets out several tasks to be undertaken by SPTC by specified dates. The tasks ranged from testing the premises to the identification and implementation of remedial measures to correct and prevent groundwater degradation. Many of the State's causes of action related to
SPTC's alleged failure to comply with the 1981 cleanup and abatement order.
Discussion
I
Whether the Trial Court Improperly Sustained the Demurrers of Cross-complainants for Equitable Indemnity Against Osmose and the Chemical Suppliers.
SPTC and Schuessler seek to hold Osmose at least partially liable on a theory of equitable indemnity; Petery and SLC also seek equitable indemnity from the chemical suppliers. The trial court held as to the various claims for equitable indemnity that the cross-complainants had failed to state a cause of action.
A demurrer tests the sufficiency of the complaint. Here, the trial court sustained the demurrers finding the cross-complainants failed to state facts sufficient to constitute a cause of action. (Code Civ. Proc., ยง 430.10.) In reviewing the propriety of such an order we independently determine whether the cross-complaint shows some relief can properly be given. (Rader Co. v. Stone (1986) 178 Cal. App. 3d 10, 20 [223 Cal. Rptr. 806].) We do not concern ourselves with the cross-complainants' difficulty or inability
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