April 2, 2008

BUILDING IN AN AGE OF GLOBAL WARMING AND WATER SHORTAGES, by John Reaves

Evidence of global warming is both real and alarming. By AB 32 (Global WarmingSolutions Act of 2006) and other laws, California has taken the lead on an ambitious path tomore efficient and cleaner energy use. Through AB 32, greenhouse gas (GHG) must be reducedabout 25% to the 1990 levels by 2020, and 80% below 1990 levels by 2050.While our Air Resources Board and Public Utilities Commission work feverishly todecide how to cut bigger producers of GHG and implement interim measures, most localgovernments are dragging feet and allowing development that will exacerbate the problem. Newstructures will last 30, 50, 70, maybe 100 years, and add new long-term fossil fuel demands.Attaining AB 32’s goal is further compounded by our swelling population, roughly 37 millionresidents today, with 60 million predicted by 2050. State law should plug a senseless leak andrequire all new construction to be part of the solution, not work against us, both in terms of GHGand water.This year, the UN Intergovernmental Panel on Climate Change (IPCC) consisting of acouple thousand scientists from 140 countries, issued increasingly alarming and urgent calls foraction due to mounting evidence that warming is occurring faster than expected. IPCCChairman, Dr. Rachandra Pachauri, has said what we do in the next 2-3 years will determine ourfuture. Further, a climate scientist at NASA , Jay Zwally, has said at current rates the ArcticOcean may be nearly ice-free by 2012, while Mark Serreze, a senior scientist at the federal snowand ice center (CIRES) says “The Arctic is screaming.”Despite optimism for what change can bring, I am dismayed at the local response. The oldmind set is in denial, and inertia is real. My home town, San Diego, undoubtedly is typical ofother cities. One political aide asked me what global warming has to do with local government,while another said Washington should address global warming. San Diego only encouragesdevelopers to build sustainably.The urgency demands we do more, faster. Buildings represent the greatest source ofGHG in the United States, at 43% in 2002. Why shouldn’t new development provide its ownnew energy needs? If there is insufficient space to cover the site power needs, a marvelousopportunity for environmental justice presents itself – verifiable, reinvestment in our own needycommunities with conservation measures or photo-voltaics (PV). We should encourage partieswith extra resources to install more PV than needed by pricing excess power sales higher thanwholesale. We need legislation to remove current disincentives. We can go far beyond getting2 of 2 Reaves’ Editorial20% of our energy from renewable sources by 2020 by unleashing the power of so manyindividuals who would like to do more. We could go even further by requiring retrofits alongthese same lines at the time of property transfers.Development as usual also exacerbates water shortages. Because roughly 40% of ourstate’s electricity moves water around the state, development which relies on imported wateradds to GHG. When combined with the dire forecast for future water availability, localgovernment must rethink how new development can be handled without adding to the problems.Although the California Environmental Quality Act requires a 20 year water availability analysis,local governments’ reference to anticipated conservation seems to be enough for most to justifydevelopment as usual.Local governments’ insatiable desire for a larger tax base at any cost, and an acutereluctance to impose new conditions on development, are drivers for more of the same. OneSouthern California water district chief recently said he did not want the water district to be theone that puts restraints on growth Why would the more abstract concern of global warming beany more of an impediment to local decision makers?My county, San Diego, predicts a 25% increase in water needs to accommodate anothermillion people by 2030 despite aggressive water conservation. That seems incongruous with thereality we face. Besides, why should some cut back voluntarily if water hogs do not and ifconservation simply allows for more thirsty development to be approved?State law is needed that requires plans and funding to be in place to cultivate new watersupplies (such as sewage reuse, desalination) wherever shortages are projected which offsetprojected shortages before accommodating new growth, with sufficient margin of error. We canstart today in requiring new development to recapture rain water and stop allowing wastefulwater support of tropical plants and grass in arid areas, for starters, where needed.The price of admission has changed. Now is a golden opportunity to set new standards toaddress GHG and water shortages, standards that will have, well, lifetime benefits. I urge thestate legislature immediately require all new construction in the state be carbon neutral andwater-wise and for retrofits when property is transferred.

John H. Reaves, Esq.

READING BETWEEN THE LINES: WHAT TO LOOK FOR IN ENVIRONMENTAL DATA PROVIDED BY A SELLER OF CONTAMINATED PROPERTY.

By John Reaves
The phrase, “caveat emptor,” or buyer beware, has never applied with greater force thanto the purchase of contaminated property. Blind trust in the conclusion of a seller’s consultant,for instance, that contamination was not found or was minor, can lead to bankruptcy. A buyer ofcontaminated property should work with a technically knowledgeable environmental lawyer andconsultant to methodically evaluate the nature and extent of contamination and attempt toquantify the value of the risk of the property.Why shouldn’t the buyer save costs and rely on environmental data provided by a seller?Sellers who test their property rarely go beyond bare necessities: limited testing around areasmost likely to generate concern or known to have contamination, such as where tanks, clarifiersor other underground containers of hazardous materials were located. Consultants rarely expressopinions or discuss risks which they perceive to be against the interest of their client. Theseller’s environmental data should always be presumed inadequate.Testing is not only expensive, but the results usually suggest more hazards and the needfor new tests. Knowledge of a problem may also trigger reporting requirements to agovernmental agency, which may result in an order to further assess and remediate the site. Theseller must then sell a known liability. A buyer must then ponder whether the knowncontamination is manageable or represents the tip of the proverbial iceberg.There is no way to ever assess the risk of a site to 100% certainty. But one needs to haveenough data to make an “educated” guess. What is “enough” will vary from site to site but willalways include, at a minimum, sufficient tests to reasonably characterize and define the extent ofall contaminants known, found or suspected to have been used around the site.The following checklist offers a systematic approach to reviewing environmental dataand valuing risk so that the buyer can better decide whether to place him or herself, or acompany, and the investment in this site, at risk.* Verify whether all environmental reports and data have been provided. Reportstypically include site assessments prepared by an environmental consultant after undergroundtanks are removed, contamination is discovered and/or in anticipation of a sale of property.Avoid relying solely on maps showing contaminant concentrations prepared by the consultant:important lab data in the appendix may not be on the map.Typically, county health departments and regional water boards have the most relevantCopyright (C) John H. Reaves, Esq.records concerning recent chemical use, underground tank information and contaminationproblems; in addition, the state and federal Environmental Protection Agency (EPA) may haveinvestigated a company’s operations, overseen significant contaminated sites and receivedreports by companies concerning hazardous materials use. While all agencies’ records are notessential in all cases, the buyer may need to examine more than one source of information to geta more complete picture.* Get as much site (and possibly adjacent site) history so that all relevantchemicals are tested. One needs a good overall understanding of the historical uses of a site todecide what tests to use for the chemicals in question. A gas station, for instance, stores and usesdifferent chemicals than a dry cleaner or plating operation. The environmental report whichglosses over or omits a complete site history (with sources of information identified) maydeliberately be withholding crucial telltale information. Interviews with the owner and operator,aerial photos, older telephone and business directors, and old fire department maps can all helpdraw a more complete picture of a site and its activities.* Determine where chemicals were stored, used and spilled to know where testsshould be performed. Were the tests taken at locations best calculated to find the worst potentialcontamination? When underground tanks are removed, for instance, the state now requirestesting immediately underneath the former tank at time of removal. A consultant’s conclusionthere is no known contamination may not rule out the possibility of a spill where tests were notperformed.* Determine if the reports reasonably define the nature and extent of allcontamination. Have all potential hot spots been adequately tested and is the contamination fullydefined? The contamination must be defined from surface to depth at which it is no longerdetected as well as horizontally at all depths found. To have any reasonable comfort level, oneneeds to be able to circumscribe contamination by drawing a circle connecting a reasonablenumber of test locations where insignificant or no chemical was found. If other factors suggestthe possibility contamination might have spilled in, or migrated to, an area where testing doesnot exclude that possibility, then more testing is needed.* Pay particular attention to the groundwater and property borders. Mostremediation is very costly when groundwater is impacted. Moreover, chemicals generallydissolve in or float on the groundwater and contaminate clean soils above and below thefluctuating groundwater level. They can spread out and beyond the property lines. If impactedgroundwater is in a zone designated as “beneficial” by a regional water board, then morestringent cleanup requirements apply, particularly if there is a drinking water aquifer nearby.While groundwater generally follows broad topographical (surface) trends, it moves quitecomplexly up close. For instance, water travels more readily and faster through sand than clay,which can create different zones of pressure. As a result, groundwater may travel in directionscontrary to prevailing gradient and gravity. If it seems counterintuitive that groundwater cantravel uphill, just think of a spring or geyser forcing water to the surface.Copyright (C) John H. Reaves, Esq.* Are any other sites impacting this site? Until proved otherwise, assume closeand upgradient gas stations, dry cleaners, platers or long-term industrial sites have contaminatedgroundwater, which could have affected the site. Has seller’s consultant addressed theseconcerns adequately?* Examine location of underground pipes and structures. Groundwater, and thuspollutants, commonly follow underground pipes, such as sewer and water, and structures, such astanks, which intersect the groundwater. Determine their most likely location and depth.Migration of pollutants will likely have been altered from prevailing directions in those areas.Pollutants may have pooled unexpectedly in those locations, too.* Take a sobering look at the potential liability of cross-border migration. Oncecontamination has moved offsite, the potential liability of the site expands greatly. Where thereare other likely contributors to the offsite problem, potential liability increases exponentially dueto the specter of protracted litigation. Similarly, if an offsite source has contaminated theproperty in question, buyer will probably be purchasing a lawsuit to get the property partly clean.* Don’t rely on a government agency’s letter saying it will take no further actionat the site. Take a close look at the so-called “no further action” letter: it requires no furtheraction “at this time”! Once you change the use of the property, you may then have to takefurther action! Granted, placing a parking lot over a former gas station will not likely triggerfurther action. But if you dig on site, you may encounter previously undetected contamination,and off you go again. Health departments may require additional remediation if chemical gasesare a threat to occupants.* Remember, as knowledge of chemicals’ toxicity evolves, cleanup requirementschange. Likewise, the “no further action” letter is only as good as the agency’s knowledge of thechemicals’ extent and toxicity when it wrote the letter. Take, for example, MTBE, a fairly recentadditive to gasoline to reduce air pollution. . . . Until a few short years ago, no one tested forMTBE. Even after limited testing for MTBE began, no remediation was driven by MTBE. Bynow, however, MTBE drives many site cleanups and has a very stringent cleanup target. What isnext?* Is “clean” ever clean enough? The seller’s consultant says the property hasbeen remediated and is “clean.” What is clean enough for the seller or governmental agencywill, with virtual certainty, never be clean enough for the buyer. But is it clean enough to avoidfuture problems? Generally not. Remember, buyer will face the same question when selling theproperty. Once contaminated, most properties remain less marketable as long as risk due tocontamination is conveyed too.* Don’t forget the buildings themselves! Lead may remain in older paints, andasbestos remain in building materials such as vinyl tiles, wallboard and sprayed acousticalceilings. Residues of chemical operations may have encased or eaten into building materials.The building may need its air tested to assess if there is a buildup of contaminants. Mold andmildew can also cause “indoor air pollution”; look for flooding history. An industrial hygienistCopyright (C) John H. Reaves, Esq.should survey a building for hidden hazards where occupants may be at risk.Quantifying risk is problematic even when one has a fairly good understanding of thecontamination on a property. But a systematic approach to ranking risks and placing a range ofvalues on each risk using a best and worst case scenario is essential.* Worst case valuation. First, one needs to review each of the known andunknown risks on and off a site and rank and value each from worst to least based upon a worstcase scenario for each item. Consider known onsite risks; all other possible onsite risks unlessscientifically ruled out; known offsite risks; all other possible offsite risks unless scientificallyruled out.Within these broad categories, list and value all relevant possible risks and damages using thefollowing guidelines (and accompanying chart):* Site assessment;* Site remediation;* Other costs of “closing” site with governmental agencies;* Development costs including delays due to contamination, extra costs resulting fromdiscovery of additional contamination and higher interest rates;* Liability to third parties, e.g., governmental agency suit or claim; prior owners and operatorsof the property; tenants; downgradient property owner(s); water utility; gas utility; otherpotentially responsible parties regarding a commingled plume; parties who have been exposed tothe contaminants. Include legal fees and costs; expert costs; settlement/judgment costs;* Suits you bring against third parties (to the extent not included as a cross-complaint above;* Long-term devaluation after remediation, if any (stigma);* VALUE OF BUYER’S TIME.Include items even if they cannot yet be fully evaluated. For instance, if the possibilitycontamination has migrated to the adjoining down gradient property cannot be ruled out, thenassess costs of remediation and lawsuit for severe contamination (relative to contamination foundon site).Be sure to consider as many things as possible which can go wrong — they usually do.For example, even if the full nature and extent of contamination have been assessed, remediationcosts are prone to cost overruns. How long could development be delayed while contaminationis remediated? What if contamination remains where development will break ground? What if atenant’s business is interrupted substantially by remediation?Copyright (C) John H. Reaves, Esq.Second, now go through each of the foregoing items and place a value based on a bestcase scenario. The result usually produces a big gap between best and worst case scenarios. Thevalues will differ greatly if you do not have enough information to evaluate highly ranked issuesthoroughly. The greater the information, the closer these values will be, and the greaterconfidence buyer can have in them.After valuing each of the above risks from worst to least, one should then consider thecollective prior experience with other contaminated sites. Are the significant, but speculative,risks at this site really unmanageable in the real world? Are the odds of occurrence or damageclaim very good? Are there ways to manage the risk? Sometimes, for instance, a governmentaltrust fund may be tapped for petroleum spills, or the parties might limit the costs of remediationby purchasing pollution insurance.Get an estimate of the property’s value without any contamination problem. Subtract theworst case value for the cynic’s valuation. Subtract the best case value for the optimist’svaluation. In all likelihood, the truth lies between, but closer to the cynic’s valuation.Resulting negotiations focus on shifting risks. The buyer asks for protections in the formof price reductions and/or indemnities or their equivalents. In many cases the seller isuncompromising, claiming there is no evidence of major contamination (and hoping to find aless discriminating buyer!)If the seller refuses to retain those risks, the buyer must carefully evaluate whether toproceed. Is acquisition of this particular site necessary to achieve a broader business plan? Howdoes the risk compare to the overall cost and projected return for the site?A systematic review of the risks and range of values as described in this article can helpthe buyer focus soberly on the possible consequences of a purchase, which are oftenunderappreciated by those outside of the environmental field. The buyer who tempersexcitement over buying contaminated property by a business-like apprehension of risk willinvariably be the long-term winner.Copyright (C) John H. Reaves, Esq.

DEVELOPING BROWNFIELDS:TOOLS FOR TRANSACTIONAL LAWYERS AND DEVELOPERS TOBETTER ASSESS RISK

PRESENTED TO THE SDCBA REAL PROPERTYAND ENVIRONMENTAL LAW/LAND USE SECTIONS

DECEMBER 7, 2005

I . A ssessing site history.Typical first avenues:Phase 1.Learn as much as possible about site and neighboring site history.Are there underground storage tanks (USTs) that have been or are present?Are they properly permitted or have they all been removed?ALL USTS must be permitted – either to operate or to close. NOabandonments are allowed.Is there a history of receiving Notice of Violations (NOVs) or failing USTtank integrity tests?Governmental environmental files review: DEH, RWQCB, DTSC, EPA..Site “closure,”Has site been closed? When is it projected to get closure?“No further action” (“NFA”) letter = “closure.”NFA letters can and do reopen when site conditions change,such as when construction activities encounter contamination.Property Ownership since start of contamination.Operations History.People knowledgeable about relevant events.People knowledgeable about relevant relationships.Present and former owners, neighbors, employees.Detailed site history can include:For inquiries further back in time than last 15-20 years, consider:Fire Department records such as Sanborn maps.Aerial photographs.Ex: Identification of bounds of junk yard in the 1920/1920s.Historical Society photos.Newspapers.Satellite, Historical Photos.City, county archives if governmental permit or approval ever required.Ex: Identification of address property, owner/operator and years ofoperation as a junk yard in the 1920/1930s.I I. A ssessing extent of contamination.Technical review of environmental data.Is the site “fully delineated?”If not, what areas remain to be assessed?ONE OF THE BIGGEST RISKS COMES FROM GLOSSING OVERTHE UNKNOWNS!Quantify the unknown risk and adjust price.How toxic and persistent is the contaminant?What are the pathways to exposure?Will contaminants be encountered during construction?Will the intended constructive house sensitive individuals?Will a barrier need to be constructed to block, for instance, benzenefumes from passing through a concrete slab and collecting in anenclosed space?Are there concerns about further migration of contaminants to aneighboring property?Are utility corridors affected which can create a host of other concerns, includingpotential for explosion when utility workers enter confined spaces?Utility corridors can pose a problem when they intersect or are in the levelof the fluctuating groundwater.Water passes RAPIDLY through the pea gravel on which manypipes are laid, compared to the typical surrounding dense clayeysand mix, so pollution can travel farther, faster.I II. K ey areas of risk.Groundwater contamination.Are drinking water aquifers, streams, bay, etc. actually or potentiallyaffected?How bad is the problem?What is the pollutant of concern?Rate of groundwater migration?Are neighboring properties affected?Could they be affected if remediation goes too slowly?How conducive is the soil and groundwater to remediation?I V. L oan limitation when site is not completely assessed.With risk not completely defined, it may be difficult or impossible to getconventional loan.Until the site is fully assessed, most lenders have policy of not lending orrefinancing.If major oil company accepts responsibility, it may be willing to provideindemnify a loan (e.g., SBA loan).If you are a buyer, keep in mind the practical problem of finding a newbuyer or obtaining refinancing.V . T he tug-of-war over contractual terms.Buyer always seeks full indemnification from seller, but the indemnification maynot be worth anything when and if the need arises (seller not financially able tohonor it).Seller always seeks to sell “as is,” but is still required to make all materialdisclosures to questions to avoid fraud.Another key concern here is that federal law cannot be swept away or avoided byindemnification, sale “as is,” etc. (CERCLA 42 USC § 9607(e))Contractual provisions do not insulate a party from the government or otherparties.V I. W hen is the state UST Cleanup Fund available? (H & S Code Ch. 6.75)Owners and operators may have access up to $1,500,000 for corrective action (siteassessment and remediation) of leaking USTs for petroleum products.Must be permits and compliance, which, on occasion, can occur after thefact.New property buyer may gain access to the fund if no affiliation with aparty which has caused ineligibility with the fund.V II. T he overlay with federal and state law.An overview of key federal and state laws that typically pertain to contaminatedproperties follows:A . F ederal law:1. CERCLA. Comprehensive Environmental Response, Compensation and LiabilityAct. 42 USC § 9601, et seq. (Liability; cost-recovery action). Briefly stated: Any owneror operator of a “facility” (any place where hazardous substances have come to belocated) at the time of disposal of hazardous substances, or any current owner or operatorof that facility, or anyone who contracted, agreed or arranged for such disposal, oranyone who accepts such hazardous substances, is liable for costs of removal or remedialaction by the government and other necessary costs of response by others. Liability isstrict.Petroleum products are excluded from the definition of hazardous substance. 42USC § 9601(14). However, petroleum products, such as waste oil, that are contaminatedwith other hazardous substances do not fall into this exception (Tosco Corporation v.Koch Industries, Inc., 216 F.3d 886 (10th Cir 2000)), and the defendant has the burden ofestablishing that the petroleum exclusion is applicable. Johnson v. Langley OperatingCompany 226 F.3d 957 at n.4 (8th Cir. 2000)Section 107 of CERCLA (42 USC § 9607) governs cost recovery actions by theUnited States and States. Numerous cases hold that these government plaintiffs areentitled to have private parties held jointly and severally liable under Section 107 ofCERCLA, even if certain federal agencies are themselves PRPs. See, e.g., State ofCalifornia Dep’t of Toxic Substances Control v. Alco Pacific, Inc., 217 F. Supp. 2d 1028,1036 (C.D. Cal. 2002); United States v. Gurley, 317 F. Supp. 2d 870, 882-883 (E.D. Ark.,2004). While defendants can argue for apportioned liability, they have the burden ofshowing either distinct harms or a reasonable basis for apportioning a single harm topublic health and the environment. See e.g. United States v. Hercules, 247 F.3d 706,716-18 (8th Cir. 2001); Control Data Corp. v. S.C.S.C. Corp., 53 F.3d 930, 939 n.4 (8thCir. 1995).Section 113 of CERCLA (42 USC § 9613) governs cost recovery actions byprivate parties. Under the Ninth Circuit decision in Pinal Creek Group v. NewmontMining Corp. 118 F.3d. 1298. (9th Cir. 1997), contribution plaintiffs, are generallylimited to seeking apportioned liability from contribution defendants.The statute of limitations for CERCLA cases are quite long. Section 107 actionsby the government must be brought six years after initiation of on-site construction of aremedial action or three years after completion of a removal action. (42 U.S.C. §113(g)(2). However, since “removal” actions include the planning and oversight of thecleanup, the statute of limitations will usually not begin to run until the government hascertified that the cleanup has been completed. Illinois v.Grigoleit Company 104 F. Supp.2d 967, 975 (C.D. Ill. 2000), California Department of Toxic Substances Control v. AlcoPacific, Inc. 308 F. Supp. 2d 1124 (C.D. Cal. 2004). The limitations period for section113 contribution actions is three years, and it begins to run when a judgment oradministrative order is entered against the contribution plaintiff.What are the defenses??? 42 USC § 9607(b)1) Act of God.2) Act of war.3) Act or omission of a third party, other than an employee or agent of thedefendant, and other than an act or omission in connection with a contractual relationshipwith the defendant, where defendant exercised due care and took precautions againstforeseeable acts or omissions of such third party.“Contractual relationship” is defined at 42 USC § 9601(35)(A) to include,land contracts, deeds, easements, leases and other instruments transferring title orpossession unless defendant acquired the property after the disposal of hazardoussubstances occurred and one of the following three circumstances applies:1) At time of acquisition, defendant did not know and had no reasonto know of the disposal. (So-called “due diligence” or “innocentlandowner” defense);2) defendant is a governmental entity;or 3) defendant acquired property by inheritance or bequest.2002 Brownfields Amendments clarified the basis for “innocentlandowner” protection, with the addition of the “All Appropriate Inquiry”(“AAI”) standard.The EPA was directed to develop standards for AAI, which it did inNovember 2005. 70 Fed. Reg. 66070 (40 CFR Part 312). Thesestandards become effective on November 1, 2006. (See attachedEPA AAI Fact Sheet for details)Key new points: e nvironmental professional must do ac omprehensive investigation, including interviews with past andp resent owners, operators and occupants, so the price will increases ignificantly.2. RCRA. The Resource, Conservation and Recovery Act provides a “citizen suit”action for injunctive relief only at 42 USC § 6972. To prevail, you must show the partyyou are suing has disposed of a “hazardous waste” which has caused or may cause animminent and substantial endangerment to the environment. The court may awardattorneys’ fees to the prevailing party. Liability is strict.One early case involving multiple gas station operators shifted the burden of proofso that the landlord does not have to prove who contaminated what and how much duringany particular tenant’s term. Instead, the tenants have the burden of proving the releasedid not occur during their respective term. Zands v. Nelson (S.D. Cal. 1991) 779 F.Supp. 1254 . In Zands, the District Court for Southern California (retired Judge GordonThompson) held the release of petroleum into the environment at a gas station constitutesan abandonment of a hazardous material, thus falling within a definition of a “hazardouswaste” within the purview of RCRA.B . S tate law:1. Nuisance.Nuisance can be a tricky area because of the distinction between continuing andpermanent nuisance, the resulting statute of limitations and different standards of proof.The basic definition of nuisance is anything that interferes with the comfortableenjoyment of life or property by being injurious to health, indecent or offensive to thesenses, or an obstruction to the free use of property. Civ. Code § 3479; Koll-IrvineCenter Property Owners Assn. v. County of Orange (1994) 24 Cal.App.4th 1036. Thetortious conduct that leads to a nuisance is not material and can be based on negligent,reckless, intentional, or ultrahazardous behavior. Barnhouse v. City of Pinole (1982) 133Cal.App.3d 171; and see, Mangini v. Aerojet-General Corp. (1991) 230 Cal.App.3d1125. Both the party who maintains the nuisance as well as the party who creates thenuisance are responsible for the ensuing damage, regardless of who currently possessesthe property. KFC Western, Inc. v. Meghrig (1994) 23 Cal.App.4th 1167; WilshireWestwood Associates v. Atlantic Richfield Co. (1993) 20 Cal.App.4th 732.Soil and groundwater contamination constitute grounds for a nuisance action.Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th1160.Permanent nuisances are those causing a permanent injury. Damages are assessedonce and for all. Shamsian v. Atlantic Richfield Company (2003) 132 Cal.Rptr.2d. 635.A nuisance is permanent if it appears improbable as a practical matter that the nuisancecan or will be abated. Considerations include the feasible means of, and alternatives to,abatement, the time and expense involved, legitimate competing interests, and thebenefits and detriments to be gained by abatement or suffered if abatement is denied.Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th1160.By contrast, a nuisance that can be discontinued or abated at a “reasonable costby reasonable means” is a continuing nuisance. (Mangini v. Aerojet-General Corp.(1996) 12 Cal.4th 1087, 1103. A key factor in determining whether contamination maybe abated at a reasonable cost is whether the cost of remediation would greatly exceed thevalue of the land after remediation. Beck Development Co. v. Southern PacificTransportation Co. (1996) 44 Cal.App.4th 1160, 1222.Courts often look to see if a continuing nuisance or trespass claim could beasserted when a permanent nuisance would be barred. E.g., Mangini v. Aerojet-GeneralCorp. (1991) 230 Cal.App.3d 1125 (Mangini I); Capogeannis v. Sup. Ct. (1993) 12Cal.App.4th 668. A nuisance must be considered permanent if plaintiff fails to prove anuisance is abatable. Beck, 44 Cal.App.4th 1160, 1221.2. Trespass.The same analysis is used for trespass as for nuisance. Continuing and permanenttrespass analysis applies. Also like nuisance, trespass is governed by a three-year statuteof limitations under Code of Civil Procedure section 338(b).Trespass is an unlawful interference with possession of property, whereas anuisance is an interference with the interest in private use and enjoyment of the land anddoes not interfere with possession. Mangini v. Aerojet-General Corp. (1991) 230Cal.App.3d 1125. Trespass exists when chemical contamination migrates from oneproperty to another. An essential element of trespass is an actual physical entry orintrusion onto real property by a person or a tangible thing. San Diego Gas & ElectricCo. v. Superior Court (1996) 13 Cal.4th 893. Like nuisance, trespass can be based on anact that is negligent, reckless, intentional, or as a result of an ultrahazardous activity.Resolution Trust Corp. v. Rossmoor Corp. (1995) 34 Cal.App.4th 93.3. Negligence.A negligence action is available where a property owner allows contamination ofsoil and groundwater. Newhall Land & Farming Co. v. Superior Court (1993) 19Cal.App.4th 334 (negligence action against property owner who contaminated soil andgroundwater while operating a gas plant).4. Negligence Per Se – Evidence Code 669.Contamination of groundwater allows a cause of action for Negligence Per Seunder Evidence Code section 669(a). Newhall Land & Farming Co. v. Superior Court(1993) 19 Cal.App.4th 334. The discharge of gasoline into groundwater constitutes aviolation of California Fish & Game Code section 5650.5. Leases/Contract.Leases are frequently an issue. Consider continuing obligations to lessee in leaseassignments. An assignment does not absolve the tenant of the obligations of the lease,and, as such, the tenant acts as a surety for the assignee for the duration of the lease, evenwhen the landlord consents to the assignment. Vallely Investments, L.P. v.BancAmerica Commercial Corp., 88 Cal.App. 4th at 822; Kendall v. Ernest Pestana, Inc.(1985) 40 Cal.3d 488,500, 502. Also, in Meredith v Dardarian (1978) 83 Cal.App.3d248, 255, the court held if a lease contains an option to renew or extend, which is bindingon the lessor, and the assignee exercises the option, the lessee remains liable.