City of Lodi v. Randtron (May 5, 2004, C037445 & C038921) ___ Cal.App.4th ___

In a published decision, the Court of Appeal reversed an injunction against Horvitz & Levy’s client, Randtron, enforcing an administrative order that required remediation of the City's contaminated groundwater. The underlying administrative order had been issued by the City of Lodi pursuant to a local ordinance (MERLO). The Court of Appeal held that MERLO was entirely preempted by the Hazardous Substance Account Act (HSAA), a state law statutory scheme governing the cleanup of hazardous waste sites such as Lodi that are listed by the Department of Toxic Substances Control (DTSC).

The City of Lodi enacted MERLO in an attempt to insulate itself from any share of liability for groundwater contamination resulting from defects in its sewer system. Under the HSAA and its federal counterpart, CERCLA, the City would be a “potentially responsible party” required to pay its share of the cleanup costs. MERLO permitted the City to impose joint and several liability on other responsible parties while precluding those parties from obtaining any contribution from the City for the cost of the cleanup.

In its decision, the Court of Appeal held that the HSAA “preempts local regulation of response actions on [DTSC-listed] sites . . . because it vests the state with sole jurisdiction over removal and remedial actions of all listed sites.” In addition to vacating the injunction requiring Randtron to comply with the City’s administrative order, the court reversed an attorney fees award against Randtron exceeding $700,000. (Click to see a copy of the Court of Appeal’s published decision.)

The Randtron decision was reported in both the Lodi News-Sentinel (Bohm, Lodi Pollution Ordinance Violates State Rules, Appeals Court Says, Lodi News-Sentinel (May 6, 2004)) and the Los Angeles Daily Journal, which quoted Horvitz & Levy attorney John Taylor as
“call[ing] the ruling the ‘nail in the coffin’ for Lodi’s controversial Municipal Environmental Response and Liability Ordinance, known as MERLO” (Pfaff, Appeal Court Strikes Down Lodi’s Toxic Cleanup Law, Los Angeles Daily Journal (May 7, 2004), p. 3). The Los Angeles Daily Journal also published a legal commentary on the Randtron decision. (Wick, Panel Says Cities Cannot Authorize Cleanup Orders, Los Angeles Daily Journal (May 18, 2004), p. 7.)

Home | Firm Directory | About H & L | Practice Areas | H & L News
Seminars | Publications | Recruiting | Directions | Links | Site Map