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“A Lower Bar for Calif. Agencies in Hazardous Waste Cases,” Law360

February 5, 2018
John F. Parker

Manufacturers, take heed: a recent California Court of Appeal decision lowers a plaintiff’s burden of proof on causation in environmental pollution cases, as Goldberg Segalla environmental attorneys John F. Parker and Ria Rana note in their Expert Analysis for the national Law360.

The January 8 decision in City of Modesto v. The Dow Chemical Company, John and Ria write, “expands the sphere of liability under the Polanco Redevelopment Act and its 2014 policy successor, the Gatto Act, to chemical manufacturers.

“These statutes seek to impose liability on those who discharge hazardous waste. In the past, the Polanco Act (California Health & Safety Code §§ 33459-33459.8) had been used to only hold owners and operators of hazardous waste sites liable.” In this case, however, “the city opted additionally to sue the manufacturers and distributors of dry cleaning equipment and dry cleaning solvent that had been used at the dry cleaner shops.”

The court largely sided with the city, setting forth a circumstantial evidence standard of causation that favors plaintiffs, enabling them to more easily impute defendants for allegedly causing or permitting hazardous waste disposal.

“Should the court’s latest decision continue to stand,” John and Ria write, “it has broad implications for chemical and equipment manufacturers and distributors who may see themselves being more frequently subjected to liability under the Polanco and Gatto Acts. As such, it will be important for manufacturers to insulate themselves from liability by avoiding actions that would be deemed as affirmatively creating or permitting hazardous waste discharge.”

  • “A Lower Bar for Calif. Agencies in Hazardous Waste Cases,” Law360 (subscription required), February 5, 2018