Jan 4th, 2023

Court Rules Against DTSC in Exide Litigation Affecting Property Owners

Predictability is not always the name of the game when it comes t...

Vernon, California

November 21, 2022

Predictability is not always the name of the game when it comes to how courts will rule. Juries are one thing, but ruling from the bench is another, and just when you think things point one way, the ruling goes another. Case in point, a recent court opinion wrestled with the question of the geographic scope of how lead pollution traveled from the former Exide battery plant in the city of Vernon to nearby residences, schools, and businesses. More precisely, the question was how far beyond the former Exide facility was lead pollution the responsibility of Exide, and what costs could the state recover from their lead cleanup. The Court ruled against the California Department of Toxic Substances Control. Typically, state agencies have broad discretion in carrying out their responsibilities. Here, their approach to the cleanup was challenged, and was ultimately found by the court not to be supported by sufficient evidence.

In a 63-page opinion, the court provided its rationale, which ultimately decided how large the compensable cleanup area around the former Exide plant can and should be, based on evidence provided by numerous experts. Opinions were offered on how far lead travels, the history of leaded gasoline and use of lead in paint. The testimony was both scientific expert opinion on how lead travels through air and a history lesson in terms of lead use. The court found that the evidence from the state’s experts did not support the state’s decision for the cleanup area to extend over a mile and half beyond the former Exide plant. In examining the credibility and evidence, the court ruled that the cleanup area was closer to a half mile radius. The case will proceed, but now with a much smaller area that the defendants are responsible for the cleanup.

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