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Environmental Cleanup: Otay Land v U.E. Ltd.


THE EDITOR’S TAKE: Most practitioners whose practice does not concentrate on environmental cleanup liability issues can probably avoid having to read this overlong and detailed opinion; however, I do suggest they pay some attention to it if they have any matters containing some or all of the following issues:


1. May an owner of a contaminated site recover contribution from prior polluters for all or some of its remediation costs, even though there was no prior governmental activity before it incurred those expenses? (Yes.)


[140] 2. Is a facility exempt under our cleanup statutes as a “consumer product in consumer use” if it is a “commercial” shooting range? (No.)


3. Is spent ammunition cluttering up the range exempt as a “permitted release” on the basis of governmental licenses that permitted a shooting range but did not refer to hazardous releases at it? (No.)


4. When does the 3-year limitations period of CCP §318 for injury to property commence? (When response costs are first incurred.)


5. Is an allocation of zero costs to defendants (in favor of a plaintiff who spent some $5 million to clean up) equitable if that completely ignores the fact that defendants did contribute to the contamination? (No, that is an abuse of discretion.)


Numerous (countless?) other issues are covered in this 25,000-word opinion as the court of appeal micromanaged the trial court’s handling of this case, but those other features probably can be ignored by all except the parties involved.—Roger Bernhardt


40 Real Property Law Reporter 139 (Cal CEB Nov. 2017), © The Regents of the University of California, reprinted with permission of CEB.