1

Filed 10/21/22 (unmodified opn. attached) 

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

ATHLETICS INVESTMENT GROUP

LLC,

 Plaintiff and Respondent,

v.

DEPARTMENT OF TOXIC

SUBSTANCES CONTROL et al.,

Defendants;

SCHNITZER STEEL INDUSTRIES, 

INC., 

Real Party in Interest and 

Appellant.

 A162524

 (Alameda County 

 Super. Ct. No. RG200069917)

ORDER MODIFYING 

OPINION; AND DENYING 

PETITION FOR REHEARING 

AND REQUEST FOR 

JUDICIAL NOTICE

 [NO CHANGE IN

 JUDGMENT]

THE COURT*:

It is ordered that the opinion filed herein on September 30, 2022, be 

modified in the following particulars:

1. On page 2, line 20, in the sentence beginning “But the same 

legislatively mandated study,” the word “draft” is inserted after the word 

“mandated” and before the word “study.”

2. On page 2, lines 22-23, and page 3, line 1, the sentence beginning 

“There is no threat” is deleted and replaced with the following sentence: 

“There is no threat to human health or the environment inherent in 

* Tucher, P.J., Fujisaki, J., and Rodríguez, J. participated in the decision. 
2

managing treated metal-shredder waste as nonhazardous, the Department 

found.”

3. On page 3, line 27, and page 4, lines 1-2, the following sentence is 

deleted: “This disposal of treated metal-shredder waste has caused no known 

environmental problems, as we discuss further below.” The deleted text is 

replaced with the following sentence: “This disposal of treated metalshredder waste generally does not cause environmental problems, as we 

discuss further below.”

4. On page 21, lines 18-21, the second to last sentence of the 

paragraph, which begins “Although the Athletics,” and the last sentence of 

the paragraph, which begins “Science supports,” are deleted. The deleted 

text is replaced with the following sentence: “Although the Athletics choose 

to ignore this finding, it supports the Department’s decision not to 

immediately rescind the (f) letters.” 

5. On page 23, in the sentence on lines 7-11 that begins “Our 

construction of the statute requires the Department to abandon what,” the 

words “it has acknowledged” are inserted after the word “what.” 

These modifications do not effect a change in the judgment.

On October 17, 2022, appellant filed a petition for rehearing, and the 

court received but did not file appellant’s accompanying request for judicial 

notice. The clerk of the court is ordered to file the request for judicial notice, 

and both the petition for rehearing and the request for judicial notice are 

denied.

Dated:__October 21, 2022___ ____TUCHER, P.J. _________ P.J.

The Athletics Investment Group, LLC v. California Department of Toxic Substances Control et al (A162524)
3

Trial Court: Alameda County Superior Court

Trial Judge: Hon. Paul D. Herbert

Counsel: Pillsbury Winthrop Shaw Pittman, Ronald E. Van Buskirk, 

Margaret Rosegay, Stacey C. Wright, Mark E. Elliott, 

and Kevin Murray Fong for Real Party in Interest and 

Appellant

Glynn, Finley, Morti, Hanlon & Friedenberg, Andrew T. 

Morti, James M. Hanlon, Jr. for SA Recycling, LLC, as 

Amicus Curiae on behalf of Real Party in Interest and 

Appellant

Keker, Van Nest & Peters, R. James Slaughter, and Eric H. 

MacMichael; Venable, William M. Sloan, and Tyler G. 

Welti for Petitioner and Respondent 

Lauren P. Phillips, and Jaclyn H. Prange for Communities 

for a Better Environment, the Center on Race, Poverty 

& the Environment, San Francisco Baykeeper, the 

Sierra Club and the Natural Resources Defense 

Council, as Amicus Curiae on behalf of Petitioner and 

Respondent

Rob Bonta, Attorney General of California, Dennis L. Beck, 

Jr., Supervising Deputy Attorney General, Elizabeth B. 

Rumsey, Deputy Attorney General for Defendant 
1

Filed 9/30/22 (unmodified version)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

ATHLETICS INVESTMENT GROUP

LLC,

 Plaintiff and Respondent,

v.

DEPARTMENT OF TOXIC

SUBSTANCES CONTROL et al.,

Defendants;

SCHNITZER STEEL INDUSTRIES, 

INC., 

Real Party in Interest and 

Appellant.

 A162524

 (Alameda County 

 Super. Ct. No. RG20069917)

For almost 60 years, Schnitzer Steel Industries, Inc. (Schnitzer) has 

operated a scrap-metal shredding and recycling facility near the Port of

Oakland, where it converts junked automobiles, appliances, and other scrap 

metal into streams of recyclable materials and nonrecyclable waste. When 

the Department of Toxic Substances Control (Department) first acquired

regulatory authority over metal-shredding facilities in the 1980s, it regulated 

with a light touch in part by issuing Schnitzer a certification pursuant to 

subdivision (f) of California Code of Regulations, title 22, section 66260.200
2

(an (f) letter).

2 An (f) letter is a conditional nonhazardous waste 

classification, allowing Schnitzer to handle and dispose of its treated metalshredder waste as nonhazardous although the material otherwise meets the 

state’s definition of hazardous waste. (See Regs., § 66260.200, subd. (f).) 

In 2014, the Legislature added to the Hazardous Waste Control Law 

(Health & Saf. Code, § 25100 et seq. (HWCL)) a new section 25150.82, 

specifically addressing metal-shredding facilities. The question now before 

the court is whether section 25150.82 imposes a mandatory duty on the

Department to rescind the (f) letters, such that Schnitzer must handle and 

dispose of its treated metal-shredder waste as hazardous. The trial court 

answered this question in the affirmative and granted the petition for writ of 

mandate sought by the Athletics Investment Group, LLC (Athletics). We 

reach the opposite conclusion and reverse.

In adopting section 25150.82, the Legislature effectively prodded the 

Department to study and address environmental problems associated with 

metal shredding. As a result of the legislatively-mandated study, the 

Department initiated regulatory actions aimed at metal-shredding facilities 

and their untreated waste. Those efforts are not at issue here, and nothing 

we say should be read as detracting from them. Metal shredders must 

comply with the HWCL in full. But the same legislatively-mandated study 

also confirmed that once metal-shredding waste has been appropriately 

treated, it can be safely handled and disposed of as nonhazardous. There is 

no threat to human health or the environment from managing treated metal2 References to the Department include its predecessor agency. 

Undesignated statutory references are to the Health and Safety Code, and 

undesignated references to regulations are to title 22 of the California Code of 

Regulations (e.g., Regs., § 66260.200). The Department issued Schnitzer two 

(f) letters, to which we refer using the singular and plural. 
3

shredder waste as nonhazardous. Schnitzer’s (f) letter authorizing this 

practice was issued pursuant to an HWCL regulation, and the record reveals 

no basis for concluding it does not still comply with the HWCL. Thus, on this 

record section 25150.82 does not impose a mandatory duty on the 

Department to rescind Schnitzer’s (f) letter.

BACKGROUND

A. Metal-Shredder Waste 

Schnitzer has shredded and recycled tens of millions of tons of scrap 

metal over the years. Its shredding and recycling process extracts and 

separates, from the arriving stream of junked cars and other waste, ferrous 

and nonferrous metals and other recyclable materials. What remains after 

recyclables are removed is a mix of metal, plastic, rubber, glass, foam, fabric, 

carpet, wood, residual automobile fluid, dirt, and other debris. This residue 

contains lead, cadmium, copper, zinc and polychlorinated biphenyls (PCBs) at 

levels exceeding California’s hazardous waste thresholds. Schnitzer treats 

the residue by mixing it with silicates, water, and cement and then curing it. 

This treated waste still exceeds hazardous thresholds for zinc, lead, and 

copper, but the process of chemical stabilization reduces the mobility of the 

heavy metals in the treated waste, leading the Department to classify the 

material as nonhazardous and issue an (f) letter. 

The chemically-treated metal-shredder residue, also called treated 

metal-shredder waste, is then transported to landfills for disposal. Schnitzer 

trucks its treated metal-shredder waste to ordinary municipal landfills, 

where the material is used as alternative daily cover, meaning it is applied to 

the active face of the landfill to control fires, odors, blowing litter, and so on. 

Treated metal-shredder waste from Schnitzer and other metal shredders has 

provided some half a million tons of alternative daily cover annually. This 
4

disposal of treated metal-shredder waste has caused no known environmental 

problems, as we discuss further below. 

B. The Evolving Regulatory Framework

The Department “is the state agency responsible for ensuring that 

California’s public health and environment are protected from the effects of 

hazardous substances.” (City of Lodi v. Randtron (2004) 118 Cal.App.4th 

337, 346, fn. 7.) Consistent with this mandate, the Department is charged 

with enforcing California’s HWCL and its implementing regulations. (IT 

Corp. v. Solano County Bd. of Supervisors (1991) 1 Cal.4th 81, 91.)

The HWCL governs facilities that generate, process, treat, or store 

hazardous waste, which the statute defines as waste posing a “substantial 

present or potential hazard to human health or the environment, due to 

factors including, but not limited to, carcinogenicity, acute toxicity, chronic 

toxicity, bioaccumulative properties, or persistence in the environment, when 

improperly treated, stored, transported, or disposed of, or otherwise 

managed.” (§§ 25141, subd. (b)(2), 25124, 25117; Regs., § 66261.2, subd. (a)

[defining waste].) The HWCL defines hazardous waste more strictly than 

does the federal Resource Conservation and Recovery Act (RCRA). 

The Department’s regulations implement the HWCL, first by defining

hazardous waste (Regs., § 66261.3), then by requiring all persons who 

manage such waste to comply with hazardous waste management

regulations, “except as provided for in section 66260.200(f).” (Regs.,

§ 66260.200, subd. (b).) Regulations section 66260.200, subdivision (f) states: 

“If a person wishes to classify and manage as nonhazardous a waste which 

would otherwise be a non-RCRA hazardous waste because it has mitigating 

physical or chemical characteristics which render it insignificant as a hazard 

to human health and safety, livestock and wildlife, that person shall apply to 
5

the Department for its approval to classify and manage the waste as 

nonhazardous. . . .” The regulation spells out the information required in an 

application, which includes a description of the waste and of the sampling, 

laboratory testing, and results of prescribed studies of the waste. (Regs.,

§ 66260.200, subd. (m).) 

None of these statutory provisions or regulations specifically addresses 

the metal-shredding industry, but they do set standards that encompass the 

activities of metal shredders. In 1984, the Department informed metal 

shredders that their waste management practices must comply with the 

HWCL. The Department then began working with a shredder in Los Angeles 

to determine whether the now-accepted process of treating the waste with 

silicate and cement would qualify it as nonhazardous. Concluding that,

indeed, the “ ‘mitigating physical or chemical characteristics’ ” of treated 

metal-shredder waste “render it insignificant as a hazard to human health 

and safety” or to animals, the Department issued (f) letters to several metal 

shredders, including Schnitzer. Schnitzer’s (f) letter reviews the results of 

laboratory analyses Schnitzer submitted to the Department and concludes its

treated waste is properly “classified as a nonhazardous waste.” The letter 

directs that if Schnitzer’s “waste changes to the extent that the Department’s 

determination can no longer be supported by the information submitted,” 

Schnitzer must begin managing its treated waste as hazardous.

The (f) letters only classify metal-shredder waste as nonhazardous once

it has undergone chemical treatment, but a separate regulatory decision the 

Department made in the 1980s substantially broadened the effect of the

(f) letters. In 1988, the Department issued Official Policy and Procedure 

Number 88-6 (OPP 88-6) governing activities at metal-shredder facilities. 

This document concluded that if the chemical stabilization process was 
6

performed as part of the process of separating out recyclable metals, the 

process would be considered “in-line” and the flow of materials within the 

metal-shredding facility would be considered not yet a “waste,” and therefore 

not a hazardous waste. This policy meant that even though metal-shredder 

facilities were treating, storing, and handling an intermediate stream of 

waste that was hazardous because not yet chemically treated, they were not 

required to obtain hazardous waste permits as long as the waste was 

nonhazardous by the time it left the facility, chemically treated. For years, 

Schnitzer left untreated metal-shredder waste in piles on its property, 

outside and uncovered, where it could leach into the soil and groundwater, 

blow offsite, or catch fire. But because the (f) letter classified Schnitzer’s 

treated metal waste as nonhazardous, OPP 88-6 allowed Schnitzer to handle 

its untreated metal waste as nonhazardous, although it was not. 

By 2001, the Department had concluded its policy on metal-shredder 

waste was “outdated and legally incorrect.” A new analysis by its Office of 

Legal Counsel determined that a crushed automobile becomes a hazardous 

waste as soon as it has been shredded, so any activity after that point—both 

resource recovery and treatment to render resulting waste streams 

nonhazardous—requires a permit or other authorization from the 

Department. The Department’s legal analysis expressly repudiated OPP 88-

6’s “not yet a waste” rationale, and observed that OPP 88-6 also relied on a 

since-repealed statute. 

In 2008, the Department advised Schnitzer it intended to rescind OPP 

88-6 and the (f) letters to “ensure the safety of public health and the 

environment from harmful exposures [to] toxins.” In 2007, there had been an 

explosion at a metal-shredder facility on Terminal Island, resulting in the 

release of hazardous waste. But after industry representatives responded 
7

with technical information in support of their processes and legal arguments 

challenging the Department’s proposal, the rescission was never finalized. 

Problems continued at metal-shredding facilities. For example, in 2012

the Department identified releases of light fibrous material (a form of 

shredder waste not yet chemically stabilized) from a metal shredder in 

Redwood City. In 2013, a series of fires at the same facility resulted in 

shelter-in-place orders for the nearby community. Then in 2014, the state 

Senator who represented this community, Senator Jerry Hill, introduced 

Senate Bill No. 1249. (Stats. 2014, ch. 756.)

C. The Metal-Shredding Facilities Law (Section 25150.82)

When the Legislature passed Senate Bill No. 1249, it added section 

25150.82 to the HWCL to address metal-shredding facilities. (Stats. 2014, 

ch. 756, § 3; Sen. Bill No. 1249.) 

Section 25150.82 authorizes the Department to adopt “alternative 

management standards” specific to the metal-shredding industry. 

(§ 25150.82, subd. (c).) The statute sets forth a process for adopting such 

standards, requiring the Department to prepare a preliminary analysis and, 

following public comment, a final analysis of the activities to which the 

alternative management standards would apply. (§ 25150.82, subds. (c) & 

(d).) The statute sets a high bar that any alternative management standards 

must meet; generally, they must be as protective “of human health and safety 

and the environment” as the HWCL standards they would replace, and 

neither duplicate nor conflict with other law. (§ 25150.82, subds. (e), (f) & 

(g).) Consistent with this directive, alternative management standards may 

“allow for treated metal shredder waste to be classified and managed as 

nonhazardous waste” only if the analysis prescribed by the statute
8

demonstrates that classifying and managing the material as hazardous is 

unnecessary to protect humans or the environment. (§ 25150.82, subd. (i).) 

Section 25150.82 sets forth a timeline for action. “The department 

shall complete the analysis described in . . . subdivision (c) and subsequent 

regulatory action before January 1, 2018.” (§ 25150.82, subd. (k).) On that 

date, the entire regulatory regime governing metal-shredder waste could be

transformed. “All hazardous waste classifications and policies . . . issued by 

the department before January 1, 2014” relating to “metal shredder waste 

shall be inoperative and have no further effect on January 1, 2018, if the 

department completes its analysis pursuant to subdivision (c) and takes one 

of the following actions: [¶] (1) Rescinds the [(f) letters]. [¶] (2) Adopts 

alternative management standards pursuant to this section.” (Ibid., italics 

added.) However, if the Department does not adopt alternative management 

standards by January 1, 2018, the authorization in the statute to do so 

expires. (§ 25150.82, subd. (l).) 

Section 25150.82 authorizes the Department to adopt alternative 

management standards, but it does not require them. If the department does 

not adopt alternative management standards, it must regulate metalshredder waste according to the HWCL, rather than, say, relying on a policy 

it knows to be contrary to law. “The disposal of treated metal shredder waste 

shall be regulated pursuant to this chapter [i.e., the HWCL] and the 

regulations adopted pursuant to this chapter, unless alternative management 

standards are adopted . . . ,” commands subdivision (j)(1) of section 25150.82. 

Finally, the statute provides a safe harbor for the ongoing use of treated 

metal-shredder waste as alternative daily cover, allowing this use at an 

appropriate disposal site unless and until the department “[r]escinds, in 
9

accordance with applicable law, the [(f) letters]” or “[c]ompletes the adoption 

of alternative management standards.” (§ 25150.82, subd. (j)(3).) 

The Department did not promulgate alternative management 

standards by the statutory deadline. Instead, it issued a draft report in 

January 2018 that concluded, “the risks and hazards posed by the hazardous 

waste management activities conducted at metal shredding facilities require 

the protections that can only be provided by the existing hazardous waste 

management requirements.” To protect the communities where these 

shredder facilities were located, the Department resolved to require 

hazardous waste permits; it chose not to adopt alternative management 

standards. 

The same draft report also examined the disposal of treated metalshredder waste in landfills. Evaluating “the potential for migration of the 

waste through air dispersion, surface water runoff, and leaching into 

groundwater,” the Department found no evidence of such migration in the 

landfills that had been accepting treated metal-shredder waste for decades. 

The Department also considered the transportation of treated metal-shredder 

waste from shredder facilities to landfills. It concluded trucks carrying 

treated metal-shredder waste must be covered during transport, but noted 

that Vehicle Code section 23114 already requires drivers to prevent the 

contents of their trucks from dropping, blowing, or otherwise escaping. The 

Department therefore concluded that classifying treated metal-shredder 

waste “as a hazardous waste is not necessary to prevent or mitigate potential 

hazards to human health or safety or to the environment.” Consistent with 

this conclusion, the draft report announced the Department’s intention “to 
10

promulgate regulations that exclude [treated metal-shredder waste] from 

classification as a hazardous waste under separate statutory authority.”3

A few months after completing its draft report, the Department began 

implementing this new regulatory process. It issued, in June 2018, a “ ‘Public 

Workshop Notice’ ” eliciting the public’s views as the Department set about 

replacing the (f) letters with “a new regulation that places additional 

specified requirements as conditions” on the management of treated metalshredder waste as nonhazardous. But the Department’s regulatory process 

was slow and, in the meantime, the Department left Schnitzer’s (f) letter in 

place. This litigation ensued.

D. This Litigation

The Athletics—owner of the Oakland Athletics baseball team—

maintains its business operations near Schnitzer’s metal-shredding facility in 

West Oakland “and is in the process of seeking approvals to build a ballpark 

for Major League Baseball games and other events in close proximity to” 

Schnitzer’s facility. In August 2020, the Athletics petitioned for a writ of 

mandate, pursuant to Code of Civil Procedure section 1085, to compel the 

Department “(i) to rescind Schnitzer’s ‘f letter’ and (ii) to require Schnitzer to 

operate [its facility] in compliance with the HWCL.” 

In its verified petition, the Athletics detail environmental harm 

resulting from Schnitzer’s activities in West Oakland. The petition alleges

that Schnitzer has contaminated soil and groundwater at its metal-shredding 

3 “[U]nder separate statutory authority” acknowledges that, although 

subdivision (i) of section 25150.82 permitted alternative management 

standards to classify and manage treated metal shredder waste as 

nonhazardous, the Department had decided not to adopt such standards. 

Other statutory authority authorizes the Department more generally to adopt 

regulations implementing the HWCL. (See, e.g., §§ 25141, 25150.)
11

facility; that contaminated groundwater there has polluted the San Francisco 

Bay; and that Schnitzer’s “shredding, stockpiling, processing, and treatment 

of” intermediate waste streams has caused hazardous material to be blown 

offsite, so that large amounts of “fugitive dust” and “ ‘light fibrous material’ ”

contaminated with “high concentrations of lead, copper, and zinc” have been 

“deposited directly into the Oakland Inner Harbor” and “across a broad swath 

of West Oakland.” The petition also alleges numerous fires have occurred in 

the stockpiles at Schnitzer’s facility, emitting toxic smoke and raising public 

health concerns. The neighborhood is “a largely African-American, lowincome community with a long history of suffering environmental pollution,” 

the petition explains; 23,000 residents live within a mile of Schnitzer’s 

facility. 

The petition also recounts a history of the Department’s action—and 

inaction—in regulating the activities of metal shredders. It mentions the 

Department’s decision, explained in the January 2018 report, not to adopt 

alternative management standards pursuant to Senate Bill No. 1249. And 

the petition argues that the Department has failed to comply with section 

25150.82, in that it has also not rescinded Schnitzer’s (f) letter and “begun 

regulating metal shredders under the HWCL.” The Athletics read section 

25150.82 as imposing a nondiscretionary duty on the Department, if it has 

not adopted alternative management standards by January 1, 2018, to 

“regulate metal shredders pursuant to the HWCL and rescind the ‘f letters.’ ” 

Schnitzer and the Department each demurred to the petition, arguing 

section 25150.82 imposes no mandatory duty on the Department to rescind 

Schnitzer’s (f) letter in the absence of alternative management standards.

Addressing the less specific relief sought—that the Department be compelled 

to require “ ‘compliance with the HWCL’ ” at Schnitzer’s facility—the 
12

Department points out that the Athletics allege no mandatory duty other 

than to rescind the (f) letters, and that mandamus will not lie to direct the 

Department’s exercise of regulatory discretion. (Citing California Teachers 

Assn. v. Ingwerson (1996) 46 Cal.App.4th 860, 865.) The Athletics, in turn, 

moved for judgment on the petition. The trial court overruled the demurrers 

and granted the petition for writ of mandate. 

The trial court agreed with the Athletics’ reading of section 25150.82. 

In light of the undisputed fact that the Department had not adopted 

alternative management standards by January 1, 2018, the trial court 

concluded that the statute imposed a mandatory duty on the Department to

rescind Schnitzer’s (f) letter and regulate its treated metal-shredder waste

under the HCWL. The court grounded this conclusion in what it called the 

“plain language” of subdivision (j)(1) of section 25150.82, that “ ‘[t]he disposal 

of treated metal shredder waste shall be regulated pursuant to’ ” the HWCL 

and its regulations “ ‘unless alternative management standards are adopted

by the department pursuant to this section.’ ” The court reasoned that 

without alternative management standards, subdivision (j)(1) required the 

Department “to regulate Schnitzer by applying the HWCL, not . . . by leaving 

in place the ‘f letter’ that exempts Schnitzer’s metal shredder waste from 

regulation under the HWCL.” 

The trial court found additional support for its statutory interpretation

in two places. First, it cited the mandatory language of the first sentence of 

section 25150.82, subdivision (k), requiring the department to complete its 

analysis “ ‘and subsequent regulatory action before January 1, 2018.’ ” 

Second, it cited extrinsic aids, including a declaration of legislative intent

memorialized in an uncodified portion of the statute, “ ‘that the conditional 

nonhazardous waste classifications, as documented through the historical “f 
13

letters,” be revoked and that metal shredding facilities be thoroughly 

evaluated and regulated to ensure adequate protection of the human health 

and the environment.’ ” (Stats. 2014, ch. 756, § 1(f).) 

On April 16, 2021, the trial court issued a judgment and writ of 

mandate commanding the Department to rescind Schnitzer’s (f) letter and 

regulate the metal-shredder waste under the HWCL. The writ ordered 

compliance within 30 days and directed the Department to file a return

evincing such compliance. Schnitzer appealed; the Department did not. The 

trial court granted the Athletics’ motion to lift the automatic stay pending 

appeal. (See Code Civ. Proc., § 1110b). Schnitzer petitioned for a writ of 

supersedeas, which we denied. 

With the stay lifted, the Department complied with the writ by

rescinding Schnitzer’s (f) letter on November 29, 2021.

4 The Department did 

not rescind the other (f) letters under which five metal shredders in the state 

were operating. However, a few weeks before the stay was lifted, the 

Department did rescind OPP 88-6, having finalized its 2018 draft report and 

concluded OPP 88-6 was contrary to law. The Department also sent “ ‘Call-In 

Letters’ ” to Schnitzer and eight other metal-shredding facilities notifying 

them of the need to apply for hazardous waste facility permits. The 

Department also adopted an emergency regulation of the sort recommended 

4 The order lifting the stay is the subject of a separate appeal (The 

Athletics Investment Group, LLC v. California Department of Toxic 

Substances Control et al. (A163291, app. pending)). Except as noted in 

footnote 4, the facts in this paragraph are drawn from the Department’s 

Return to the Verified Petition for Writ of Mandate, filed in the trial court on 

December 14, 2021. We grant Schnitzer’s unopposed request for judicial 

notice of the return (Evid. Code, §§ 452, subd. (c), 459, subd. (a)), but do not 

rely on these facts in resolving the legal issue before us, as they were not 

before the trial court when it issued the writ.
14

in its January 2018 draft report, excluding the transportation and disposal of 

treated metal-shredder waste from regulation as hazardous waste if certain 

conditions were met. (See Regs., § 66261.4, former subd. (b)(6).) The 

Athletics challenged the emergency regulation as a violation of the writ of 

mandate issued in this case, which persuades us the current appeal is not 

moot even though Schnitzer’s (f) letter has been rescinded.

5 

We must now determine whether section 25150.82 imposes a 

mandatory duty on the Department to rescind Schnitzer’s (f) letter and 

regulate its treated metal-shredder waste as hazardous under the HCWL. 

DISCUSSION

A writ of mandate may be issued to compel a public entity to perform a 

legal, and typically ministerial, duty when “the petitioner has no plain, 

speedy and adequate alternative remedy” and “the petitioner has a clear, 

present and beneficial—or in this case statutory—right to performance.” 

(Hagopian v. State of California (2014) 223 Cal.App.4th 349, 373.) The writ 

is “the appropriate means by which to challenge a government official’s 

refusal to implement a duly enacted legislative measure.” (Morris v. Harper

(2001) 94 Cal.App.4th 52, 58.) Whether a statute imposes a mandatory duty

is a question of statutory interpretation. (Pacific Merchant Shipping Assn. v. 

Newsom (2021) 67 Cal.App.5th 711, 724–725.) Our review is de novo. (Ibid.)

The issue before us—whether section 25150.82 imposes a mandatory duty on 

the Department to rescind Schnitzer’s (f) letter and regulate its metal5 On our own motion, we take judicial notice of a post-judgment 

enforcement order the trial court entered on April 18, 2022, which was 

brought to our attention at oral argument. In this order, the trial court 

concluded that applying the emergency regulation to Schnitzer’s facility 

“violates the Writ and the underlying duties imposed on [the Department] 

under Section 25150.82.” (Evid. Code, §§ 452, subd. (c), 459, subd. (a).) 
15

shredder residue pursuant to the HWCL—requires us to interpret the 

statute. Familiar principles guide our interpretation. Our “ ‘task is to 

ascertain the Legislature’s intent and effectuate the law’s purpose, giving the 

statutory language its plain and commonsense meaning. [Citation.] We 

examine that language in the context of the entire statutory framework to 

discern its scope and purpose and to harmonize the various parts of the 

enactment. [Citation.] “If the language is clear, [we] must generally follow 

its plain meaning unless a literal interpretation would result in absurd 

consequences the Legislature did not intend. If the statutory language 

permits more than one reasonable interpretation, [we] may consider other 

aids, such as the statute’s purpose, legislative history, and public policy.”

[Citation.] The wider historical circumstances of a law’s enactment may also 

assist in ascertaining legislative intent, supplying context for otherwise 

ambiguous language.’ ” (Cahill Construction Co., Inc. v. Superior Court

(2021) 66 Cal.App.5th 777, 785 (Cahill Construction).)

I. The Language of the Statute

We start, then, with the language of section 25150.82 and with the 

salient fact that this statutory provision nowhere expressly directs the 

Department to rescind the (f) letters. The statute refers to the (f) letters just 

twice. Both times, it refers to the possibility the Department will rescind the 

(f) letters but does not mandate that the Department take such action, even if

it chooses not to adopt alternative management standards. (§ 25150.82, 

subds. (j)(3)(A) & (k)(1).) 

The first mention of (f) letters is in subdivision (j)(3), the safe-harbor 

provision. Subdivision (j)(3) states that section 25150.82 “does not limit the 

disposal or use of treated metal shredder waste as alternative daily cover” (at 

an appropriate facility and pursuant to a pre-existing authorization) “before 
16

the department does either of the following: [¶] (A) Rescinds, in accordance 

with applicable law, the conditional nonhazardous waste classifications

issued pursuant to subdivision (f) of Section 66260.200 of Title 22 of the 

California Code of Regulations with regard to treated metal shredder waste. 

[¶] (B) Completes the adoption of alternative management standards 

pursuant to this section.” In protecting regulatory conduct occurring “before 

the department” takes action or adopts alternative management standards

under this provision, subdivision (j)(3) presumes that rescinding the (f) letters 

is an action the Department may take. (§ 25150.82, subd. (j)(3)(A).) It does 

not require the Department to rescind the (f) letters or to adopt alternative 

management standards. 

The second mention of (f) letters in section 25150.82 is in subdivision 

(k), the timeline provision. This subdivision begins with language that 

sounds mandatory, but that makes no reference to (f) letters: “The 

department shall complete the analysis described in paragraph (1) of 

subdivision (c) [i.e., the preliminary and final reports required before the 

Department may adopt alternative management standards] and subsequent 

regulatory action before January 1, 2018.” (§ 25150.82, subd. (k).) The 

subdivision then continues with language describing a regulatory state of 

affairs the Athletics apparently hope to achieve through this litigation: “All 

hazardous waste classifications and policies, procedures, or guidance issued 

by the department before January 1, 2014, governing or related to the 

generation, treatment, and management of metal shredder waste or treated 

metal shredder waste shall be inoperative and have no further effect on 

January 1, 2018 . . . .” (§ 25150.82, subd. (k), italics added.) But this 

sentence continues, specifying that this state of affairs occurs “. . . if the 

department completes its analysis pursuant to subdivision (c) and takes one 
17

of the following actions: [¶] (1) Rescinds the conditional nonhazardous waste 

classifications issued pursuant to subdivision (f) of Section 66260.200 of Title 

22 of the California Code of Regulations with regard to that waste. [¶] (2) 

Adopts alternative management standards pursuant to this section.” 

(§ 25150.82, subd. (k), italics added.) The language of this long sentence is 

conditional. It provides that classifications and policies from the 1980s—

including the (f) letters and OPP 88-6—will “be inoperative . . . if” the 

Department rescinds the (f) letters or adopts alternative management 

standards. It does not require the Department to choose one of these 

regulatory options.

The Athletics’ primary response to this argument is to look elsewhere 

for an “unambiguous command” that the Department rescind the (f) letters. 

The Athletics locate this mandatory duty, as did the trial court, in 

subdivision (j)(1) of section 25150.82. Subdivision (j)(1) states, in full: “The 

disposal of treated metal shredder waste shall be regulated pursuant to this 

chapter and the regulations adopted pursuant to this chapter, unless 

alternative management standards are adopted by the department pursuant 

to this section.” Since all parties agree that the Department did not adopt 

alternative management standards pursuant to section 25150.82 and that 

“this chapter” is the HWCL, the crucial interpretive question becomes, what 

does it mean for treated metal-shredder waste to “be regulated pursuant to 

[the HWCL] and the regulations adopted pursuant to” the HWCL? The 

Athletics blow past this all-important question. Instead, they assume that in 

order to apply the HWCL to treated metal-shredder waste, the Department 

must rescind the (f) letters because the (f) letters are “an exemption from the 

HWCL.” 
18

We disagree. The (f) letters are a tool specifically provided for in the 

HWCL and its regulations. As the language of section 25150.82 expressly 

acknowledges both times it refers to the (f) letters, these are “conditional 

nonhazardous waste classifications issued pursuant to subdivision (f) of 

section 66260.200 of Title 22 of the California Code of Regulations.”

(§ 25150.82, subds. (j)(3)(A) & (k)(1), italics added.) Regulations section 

66260.200 was itself adopted pursuant to the HWCL. (See Regs., § 66260.200 

[citing Health & Saf. Code, §§ 25141 & 25150 as authority].) 

Far from being “an exemption from the HWCL,” the (f) letters are a 

creation of the HWCL. They document the Department’s decision that it is 

appropriate, under the HWCL, “to classify and manage as nonhazardous a 

waste which would otherwise be a non-RCRA hazardous waste” but which 

has “mitigating physical or chemical characteristics” shown to “render it 

insignificant as a hazard to human health and safety, livestock and wildlife.” 

(Regs., § 66260.200, subd. (f).) The Department decided this classification 

was appropriate when it issued Schnitzer’s (f) letters in the 1980s, and it 

reaffirmed that decision in the January 2018 draft report, where it concluded 

that classifying treated metal shredder waste “as a hazardous waste is not 

necessary to prevent or mitigate potential hazards to human health or safety 

or to the environment.” 

Properly understood, subdivision (j)(1) of section 25150.82 sets forth the 

unremarkable requirement that if the Department does not timely adopt 

alternative management standards, it must enforce the HWCL and its 

regulations. The Athletics do not contend that subsection (f) of regulations

section 66260.200 is no longer in effect. And they do not contend that the 

particular (f) letters issued to Schnitzer are invalid as inconsistent with the

requirements of regulations section 66260.200. Thus, they give us no reason 
19

to conclude that for the Department to “regulate[] pursuant to this chapter 

and the regulations adopted pursuant to this chapter”—as subdivision (j)(1) 

of section 25150.82 commands—means the Department must rescind

Schnitzer’s (f) letters, issued pursuant to those very regulations. 

That section 25150.82, subdivision (j)(1) is unremarkable does not 

mean it is surplusage. The Department’s January 2018 draft report set forth 

in considerable detail how practices at metal-shredding facilities were falling 

short of the requirements of the HWCL, and the petition recounts harms 

specific to Schnitzer’s activities in West Oakland. The Department long 

acknowledged that OPP 88-6, governing the on-site activities of metal 

shredders, was contrary to law. The legislative directive in subdivision (j)(1) 

to enforce the HWCL and its regulations with regard to the disposal of 

treated metal-shredder waste may similarly require the Department to 

engage in regulatory action of some sort to ensure strict compliance with the 

HWCL. But neither the January 2018 draft report nor the allegations in the 

petition support that the (f) letters themselves are inconsistent with the 

HWCL or its regulations. We therefore conclude that the requirement of 

subdivision (j)(1) that the Department regulate treated metal-shredder waste 

pursuant to the HWCL and its regulations does not support the trial court’s 

finding of a mandatory duty to rescind the (f) letters.

The Athletics offer two subsidiary arguments based on the language of 

the statute, neither of which need detain us long. They point to section 

25150.82, subdivision (k)’s requirement that the Department complete its 

report and “subsequent regulatory action before January 1, 2018,” arguing 

that if this language is to mean anything it must require that the 

Department “implement[] one of the two regulatory options the Legislature 

provided for in subdivision (j)(1)—either applying the HWCL to metal
20

shredder waste or promulgating acceptable alternative management 

standards”— by the statutory deadline. In making this argument, the 

Athletics once again conflate “applying the HWCL to metal shredder waste,” 

which the statute requires, with rescinding the (f) letters, which the statute 

does not require. Schnitzer, for its part, contends that the only “subsequent 

regulatory action” subdivision (k) requires before January 1, 2018, is the 

adoption of alternative management standards if the Department elects to 

pursue them. Schnitzer’s view may be too narrow. The Legislature may 

have intended that if the Department opts not to adopt alternative 

management standards, it must complete all regulatory action necessary to 

bring the metal shredders into compliance with the HWCL and its 

regulations by January 1, 2018. 

We need not here decide on the precise meaning of “subsequent 

regulatory action” because the only regulatory action at issue in this 

proceeding is the proposed rescission of the (f) letters. The Athletics’ petition 

seeks to compel the Department “to require Schnitzer to operate [its facility]

in compliance with the HWCL,” and the writ includes similarly broad 

language, but the Athletics have not urged any specific regulatory action 

other than rescinding the (f) letters. We have already rejected the Athletics’ 

contention that for the Department to enforce the HWCL and its regulations 

means it must rescind the (f) letters. We now accordingly reject the 

contention that section 25150.82, subdivision (k)’s deadline for “regulatory 

action” is a deadline for rescinding the (f) letters, in the absence of alternative 

mandatory standards.

The Athletics also attempt to rely on language in the statute that they 

contend sets the HWCL as the minimum standard for regulating metalshredder waste. Specifically, they point to language in section 25150.82, 
21

subdivision (c) allowing the Department to adopt alternative management 

standards only if these are at least as protective of human health and the 

environment as is the HWCL, and to language in subdivision (i) allowing 

alternative management standards to classify treated metal-shredder waste 

as nonhazardous only if the Department determines that classifying the 

waste as hazardous is unnecessary to protect human health and the 

environment. Again, the Athletics’ argument lands without force. As to 

subdivision (c), the statutory requirement setting the HWCL as the minimum 

standard, below which alternative management standards may not fall, does 

not mean the (f) letters promulgated under the HWCL are flawed. It simply 

means that if the Department had adopted alternative management 

standards, these would have had to regulate metal-shredder waste at least as 

stringently as did the HWCL and its regulations, including Regulations 

section 66260.200, subdivision (f). As to section 25150.82, subdivision (i), the 

draft report of January 2018 expressly concludes, classifying treated metal 

shredder waste “as a hazardous waste is not necessary to prevent or mitigate 

potential hazards to human health or safety or to the environment.” 

Although the Athletics choose to ignore it, this fact explains why compliance 

with the HWCL did not require the Department to rescind the (f) letters. 

Science supported the Department’s decision to continue classifying treated 

metal-shredder waste as nonhazardous.

In sum, we conclude that the language of section 25150.82 requires the 

Department to enforce the HWCL against the metal shredders but does not 

require the Department to rescind (f) letters that were issued pursuant to 

HWCL regulations. Because we consider the statutory language 

unambiguous on this point, our task is almost finished. We look further only 

to ascertain whether our literal interpretation of section 25150.82 
22

“ ‘ “result[s] in absurd consequences the Legislature did not intend.” ’ ” 

(Cahill Construction, supra, 66 Cal.App.5th at p. 785.)

II. Other Considerations

The Athletics contend such construction of the statute is unreasonable

because it allows the Department once again to avoid taking action, 

rendering the statute’s January 1, 2018 deadline meaningless. We disagree 

and conclude there is nothing absurd about the consequences of our statutory 

construction.

At the outset, we agree with the Athletics that the Legislature intended 

section 25150.82 to prompt action from the Department, after it had delayed 

for years in dealing with environmental problems at the metal-shredding 

facilities. In explaining the need for Senate Bill No. 1249, the author stated 

that the Department had acknowledged its “ ‘hazardous waste exemptions . . . 

dating back to the 1980s . . . were “outdated and legally incorrect.” But [the 

Department hadn’t] followed through with the proper action.’ ” (Assem. Floor 

Analysis, 3d reading of Sen. Bill No. 1249 (2013–2014 Reg. Sess.) as amended

Aug. 22, 2014.) The author concluded, “ ‘this bill requires them to take 

action.’ ” (Ibid.) 

Senate Bill No. 1249 and the new section it adds to the HWCL do 

indeed require the Department to take action. Specifically, the new section

requires the Department to complete a detailed analysis of metal-shredding 

facilities’ hazardous waste management activities and take any “subsequent 

regulatory action before January 1, 2018.” (§ 25150.82, subd. (k).) The new 

section also requires the Department to regulate the disposal of treated 

metal-shredder waste under the HWCL and associated regulations, unless it 

adopts alternative management standards. (§ 25150.82, subd. (j)(1).) 
23

There is nothing absurd about a construction of the statute that 

requires these, but only these, actions; the required acts compel the 

Department to address the problems that gave rise to Senate Bill No. 1249. 

The Department must promptly study the hazardous waste problems 

associated with metal shredding, so that adequate information informs its 

regulatory actions, and then must bring the activities of the metal shredders 

into full compliance with the HWCL. Our construction of the statute requires 

the Department to abandon what was “ ‘ “outdated and legally incorrect” ’ ” 

about its exemptions from the 1980s—namely that OPP 88-6 allowed metalshredding facilities to treat untreated hazardous waste as nonhazardous 

simply by acquiring an (f) letter. Our construction does not require the 

Department to rescind the HWCL-compliant (f) letters themselves. Given the 

science, this result is hardly absurd. The Department’s technical analysis

concluded that classifying and managing treated metal-shredder waste as 

hazardous “is not necessary to prevent or mitigate potential hazards to 

human health or safety or to the environment.” 

We turn, finally, to the legislative history of section 25150.82, but only

to make three points. First, although the Athletics and the trial court rely on 

legislative history to support their construction of the statute, there turns out 

to be no role for legislative history in answering the question before us. 

Because the language of the statute, read as a whole, clearly does not impose 

a mandatory duty on the Department to rescind all (f) letters, and because 

the consequences of construing the statute in this manner are far from 

absurd, we need not consult extrinsic aids. (Cahill Construction, supra, 66 

Cal.App.5th at p. 785.) As is often the case, the plain language of the statute 

is our surest guide to legislative intent. (See Jackpot Harvesting Co., Inc. v. 
24

Superior Court (2018) 26 Cal.App.5th 125, 140–141; Goldstein v. Ralphs 

Grocery Co. (2004) 122 Cal.App.4th 229, 233.)

Second, although there is one important indicator of legislative intent 

that at first glance favors the Athletics’ statutory construction, even that 

statement can be reconciled with our reading of the statute’s operative 

language. As the trial court noted, an uncodified provision of Senate Bill 

No. 1249 states: “It is the intent of the Legislature that the conditional 

nonhazardous waste classifications, as documented through the historical 

‘f letters,’ be revoked and that metal shredding facilities be thoroughly 

evaluated and regulated to ensure adequate protection of the human health 

and the environment.” (Stats. 2014, ch. 756, § 1(f).) The operative provisions 

of Senate Bill No. 1249, as we construe them, clearly require the thorough 

evaluation and regulation of metal-shredding facilities that the Legislature 

intended. The new statutory provision requires the Department to conduct a 

rigorous analysis and then adopt alternative management standards or

enforce the HWCL against the metal shredders. (§ 25150.82, subds. (j)(1) & 

(k).) 

The statute is less categorical or direct in causing the revocation of 

“conditional nonhazardous waste classifications, as documented through the 

historical ‘f letters.’ ” The statute requires that in those instances where an 

(f) letter is inconsistent with HWCL regulations—for example because it was 

based on technical analyses that no longer support classifying the waste as

nonhazardous—the Department must revoke the (f) letter. (§ 25150.82, 

subd. (j)(1).) The statute also requires the Department to undertake the 

study that, once performed, led the Department to conclude it should replace 

the (f) letters with a regulation that would apply to all metal shredders. 

(§ 25150.82, subd. (k).) The operative provisions of the statute do, as a result, 
25

accomplish the Legislature’s stated intent in full, if we read the portion that 

mentions (f) letters as aspirational rather than prescriptive. As this 

language is an uncodified statement of intent rather than an operative 

provision of the statute, we see no reason not to read it in this manner. (See, 

e.g., Carter v. California Dept. of Veterans Affairs (2006) 38 Cal.4th 914, 925 

[“ ‘statements in an uncodified section do not confer power, determine rights, 

or enlarge the scope of a measure,’ ” though they may serve “ ‘as an aid in 

construing a statute’ ”].)

The third point worth mentioning about the legislative history is that 

aspects of it counsel against construing the statute to require automatic 

rescission of the (f) letters. In particular, as Senate Bill No. 1249 progressed 

through the legislative process the Legislature amended the bill to remove

language that would have nullified the historic (f) letters after the deadline 

passed for adopting alternative management standards. The provision the 

Legislature deleted declared that all relevant “hazardous waste 

determinations and policies, procedures, or guidance issued by the 

department before January 1, 2014 . . . are inoperative and have no further 

effect,” as of the deadline for adopting alternative management standards. 

(See Sen. Bill No. 1249 (2013–2014 Reg. Sess.) as amended Apr. 22, 2014, § 1, 

proposed § 25150.9, subds. (c), (j) & (k).) 

Instead, the Legislature opted for a less categorical approach. In place

of the omitted provision it added one that swept away the old rules only 

under certain conditions, namely “. . . if the department completes its 

analysis” and either rescinds the (f) letters or adopts alternative management 

standards. (§ 25150.82, subd. (k).) As a result, what would have occurred

automatically under the discarded provision now occurs, in the version that 

became law, only if the Department takes a regulatory action that it later 
26

declined to take. The fact that the Legislature made this change to the 

language of the bill during the political process has implications for a proper 

construction of the statute. When the Legislature rejects a provision in draft 

legislation, that “ ‘is most persuasive to the conclusion that the act should not 

be construed to include the omitted provision.’ ” (State Building & 

Construction Trades Council of California v. Duncan (2008) 162 Cal.App.4th 

289, 319; see also People v. Superior Court (Alexander C.) (2019) 34 

Cal.App.5th 994, 1004.) Since the Legislature chose not to render the (f)

letters “inoperative” and of “no further effect” after the deadline for adopting 

alternative management standards, we decline to construe the statute as 

accomplishing that very result. (Sen. Bill No. 1249, supra, § 1, proposed 

§ 25150.9, subds. (c), (j) & (k).) 

These additional observations serve to confirm the conclusion we reach 

based on a careful reading of the language of section 25150.82. Although the 

statute requires the Department to take steps to address hazardous waste 

problems at the metal-shredding facilities, the statute does not impose a 

mandatory duty on the Department to rescind all historical (f) letters. 

Consistent with section 25150.82, the Department could continue to regulate 

treated metal-shredder waste through HWCL-compliant (f) letters, since its 

analysis confirmed this waste need not be classified as hazardous to protect 

human health and the environment. 

DISPOSITION

The judgment is reversed. Schnitzer is entitled to costs on appeal. 

(Cal. Rules of Court, rule 8.278(a)(2).) 
27

TUCHER, P.J.

WE CONCUR:

FUJISAKI, J.

RODRÍGUEZ, J.

The Athletics Investment Group, LLC v. California Department of Toxic Substances Control et al (A162524)
28

Trial Court: Alameda County Superior Court

Trial Judge: Hon. Paul D. Herbert

Counsel: Pillsbury Winthrop Shaw Pittman, Ronald E. Van Buskirk, 

Margaret Rosegay, Stacey C. Wright, Mark E. Elliott 

and Kevin Murray Fong for Real Party in Interest and 

Appellant

Glynn, Finley, Morti, Hanlon & Friedenberg, Andrew T. 

Morti and James M. Hanlon, Jr., for SA Recycling, LLC, 

as Amicus Curiae on behalf of Real Party in Interest and 

Appellant

Keker, Van Nest & Peters, R. James Slaughter, Eric H. 

MacMichael; Venable, William M. Sloan and Tyler G. 

Welti for Plaintiff and Respondent 

Lauren P. Phillips and Jaclyn H. Prange for Communities 

for a Better Environment, the Center on Race, Poverty 

& the Environment, San Francisco Baykeeper, the 

Sierra Club and the Natural Resources Defense Council

as Amici Curiae on behalf of Plaintiff and Respondent

Rob Bonta, Attorney General, Dennis L. Beck, Jr., and 

Elizabeth B. Rumsey, Deputy Attorneys General, for 

Defendants