Proposition 65 Advisory

Proposition 65 Advisory 01-I Ruling on CBE v. TOSCO Motions

January 22, 2001

Proposition 65 Advisory 01-I

Interim Victory for Defendants in "Gas Station" Cases

Trial Court Rules That Proposition 65 "Discharge Prohibition" Does Not Penalize "Continued Presence" Or "Passive Migration" Of Chemicals After A Discharge Or Release Of Chemicals To Soil Or Groundwater Occurs

The Superior Court for San Francisco issued a memorandum opinion ruling on a number of potentially dispositive motions in one of the Proposition 65 "Gas Station" Cases, captioned here as Communities for a Better Environment and Nicole McAdam v. Tosco Corporation et al., Case No. 300595 ("CBE v. Tosco") on January 12, 2001. The decision may extinguish most of the plaintiffs' claims.

Plaintiffs initiated this suit on January 19, 1999 against thirteen petroleum refiners and distributors, claiming that spills and leaks of petroleum byproducts containing benzene and toluene at thousands of service stations and refineries in California give rise to violations of the Proposition 65 "discharge prohibition" and, derivatively, California's Unfair Competition Law. Similar claims brought by other plaintiffs are pending in Superior Courts in Los Angeles, Solano and Orange Counties. Plaintiffs claim that a Proposition 65 violation continues each day after Proposition 65-listed chemicals are "discharged" or "released" into soil or groundwater beneath a gas station until they are removed, and that each day such chemicals migrate from the site constitutes a new violation. Plaintiffs seek injunctive relief for cleanups outside of the State-supervised Underground Storage Tank program, billions of dollars in civil penalties and "restitution," and attorneys fees.

The decision follows motions for summary adjudication regarding representative sites selected by the parties. The Court ruled that "a 'discharge or release' [under Proposition 65] refers only to the initial movement of the chemicals out of a confined space, such as a storage tank, a pipe or a sludge pond, into the environment. The subsequent passive migration of chemicals through soil or groundwater after they have left a party's storage or other facilities does not constitute a new discharge or release….[O]nce chemicals have percolated the ground, they are not continuously re-'discharged' or re-'released' because of subsurface migration or the failure to remediate."

McKenna & Cuneo represents Atlantic Richfield Company (ARCO) in this multi-defendant litigation. You may obtain further information or a copy of the Court's opinion from the attorneys below.

McKenna & Cuneo, L.L.P., distributes its Advisories to clients and friends of the firm free of charge. If you would like to request additions (or deletions) to our distribution list, please e-mail Nina MacLeay at nina_macleay@mckennacuneo.com or call 213-243-6063.

For more information, please contact: