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, P laintiff and Respondent ,
v. DEPARTMENT OF TOXIC SUBSTANCES CONTROL et al., Defendants ; SCHNITZER STEEL INDUSTRIES, INC., Real Party in Interest and Appellant. A16 2524
( Alameda County Super. Ct. No. RG200069917 )

ORDER MODIFYING OPINION; AND DENYING PETITION FOR REHEARING AND RE QUEST 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 2 0 , 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:

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

* Tucher, P.J., Fu j isaki, 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 delete d: “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 metal

shredder 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 th e 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 1 7, 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 (A16 2524 )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 Resourc es 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 Defenda nt1

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, P laintiff and Respondent ,
v. DEPARTMENT OF TOXIC SUBSTANCES CONTROL et al., Defendants ; SCHNITZER STEEL INDUSTRIES, INC., Real Party in Interest and Appellant. A16 2524

( 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 Substance s Control (Department) first acquir ed 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 66260.2002

(an (f) letter)

. 2 An ( f

) letter is a conditional nonhazardous waste classification , allowing Schnitzer to handle and dispose of its treated metal

shredder waste as nonhazardous although the material otherwise meet s 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 impose s a mandatory duty on the Department to rescind the ( f ) letter s , such that Schnitzer must handle and dispose of its treated metal

- shredder waste a s hazardous

. T he 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 ad opt ing section 25150.82, the Legislature effectively prodded the Department to study and address environmental problems a ssociated with metal shredding. As a result of t he legislatively

- mandated study , the Department initiated regulatory action s aimed at met al

- shredding facilities and their untreated waste

. Those efforts are not at issue here, and nothing we say should be read as detract ing from th em

. Metal shredders must comply with the HWCL in full. But t he same legislatively

- mandated study also confirme d 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 manag ing treated metal

2 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 C alifornia 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 th e Department to rescind Schnitzer’s (f) letter. BACKGROUND A. Metal

- Shredd er Waste Schnitzer has shredded and recycled tens of millions of tons of scrap
metal over the years

. Its shredding and recycling process extract s and separates , from the arriving stream of junked cars and other waste , ferrous and nonferrous metals and o ther 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
th e residue by mixing it with silicates , water, and cement and then c uring it

. Th is treated waste still exceeds hazardous th resholds 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 classif y the material as nonhazardous and issu e an (f) letter

. The c hemically

- treated metal

- shredder residue , also called treated metal

- shredder waste, is then transported to landfill s for disposal. Schnitzer truck s its treated metal

- shredder waste to ordinary municipal lan dfills, where the material i s used as alternative daily cover , meaning it i s 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 provide d some half a million tons of alternative daily cover annually

. This4

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

w ith enforcing California’s HWCL and its implementing regulation s

. ( IT Corp. v. Solano County Bd. of Supervisors (1991) 1 Cal.4th 81, 91 .)
T he HWCL governs facilities that generate, process, treat , or store hazardous waste , which the statute define s 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 persist ence 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 regulation s implement the HWCL , f irst by defin ing hazardous waste ( Regs

. , § 66261.3 ), then by requiring all persons who

ma nage such waste to comply with hazardous waste management regulations , “ except as provided for in section 66260.2 00 (f) .” (Reg s

. , § 66260. 200 , subd. (b).) Regulation s s ection 66260.2 00, subd ivision (f) s tat es: “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 shal l apply to5

the Department for its approval to classify and manage the waste as nonhazardous. . . .” The regulation spell s out the information required in an application, which includ es a description of the waste and of the sampling, laboratory testing, an d results of prescribed studies of the waste . (Reg s

. , § 66260.2 00, 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 shredd ers. In 198 4 , the Department informed metal
shredders that their waste management practices mu st 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. C onclud ing that , indeed, the “ ‘ mitigating physical or chemical characteristics ’ ” of treated
metal

- shredder waste “render it insignificant as a hazard to human health and safet y” 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 “class ified 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 manag ing 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.
T his document concluded that if the chemical stabilization process was6

performed as part of the process of separating ou t recyclable metals , the

process would be considered “in

- line” and the flow of material s 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 faci lities 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 permit s 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

. B ut b ecause t he ( f ) letter classified Schnitzer’s
treated metal waste as nonhazardous , OPP 88

- 6 allowed Schnitzer to handle its untreated metal waste as non hazardous , 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 i ts Office of Legal Counsel determined that a crushed automobile becomes a hazardous
waste as soon as it has been shredded , so any acti vity after that point

— both

resource recovery and treatment to render resulting waste streams nonhazardous

— require s a permit or other authorization from the Department. Th e Department’s legal analysis expressly repudiated OPP 88

- 6’s “not yet a waste” ratio nale, and observed th at 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 represen tatives responded7

with technical information in support of their processes and legal arguments challenging t he Department ’s proposal, the rescission was never finalized

. P roblems continued at metal

- shredding facilities

. For example, i n 2012 the Departme nt identified release s 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 t his community, Senator Jerry Hill, introduced Senate Bill N o. 1249. (Stats. 2014, ch. 756.) C. The Metal

- Shredding Facilities Law (Section 25150.82) When t he 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

. ) S ection 25150.82 authorize s 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 , requi ring 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 statute8

demonstrates that classifying and managing the material as hazardous is

un necessary to protect humans or the environment . (§ 25150.82, subd. (i).) S ection 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 t h at date, the entire regulatory regim e governing metal

- shredder waste could be transformed. “ A ll 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, i f the Department d oes not adopt alternative management standards by January 1, 2018 , the authorization in the statute to do so expires

. (§ 25150.82, subd. (l).) S ection 25150.82 authorize s the Department to adopt alternative

managemen t standards, but it does not require them. I f the department does not adopt alternative management standards , it must regulate metal

shredder 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 provide s 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, in9

accordance with applicable law, the [ ( f ) letters]” or “[c]ompletes the adoption of alternat iv e management standards

. ” (§ 25150.82, subd. (j)(3).)
T he Department did not promulgate alter native management standards by the statutory deadline. I nstead, it issued a draft report in January 2018 that concluded, “the risks and hazards posed by the hazardous waste management activities conducted at meta l shredding facilities require the protections that can only be provided by the existing hazardous waste

manage ment requirements

. ” To protect the communities where these shredder facilities were located, the Department resolved to require hazardous waste permit s; it chose not to adopt alternative management standards

. The same draft report also examined the dispo sal of treated metal

shredder 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 h ad been accepting treated metal

- shredder waste for decades. The Department also considered the transportation of treated metal

- shredder waste from shredder facilities to landfills

. I t conclude d trucks carrying treated metal

- shredder waste must be covered during transport , b ut noted that Vehicle Code section 23114 already requires drivers to prevent the contents of the ir truck s from dropping, blowing, or otherwise escaping . The Department therefore concluded that classifying treated metal

- shred der waste “as a hazardous waste is not necessary to prevent or mitigat e potential hazards to human health or safety or to the environment.” Consistent with this conclusion, t he draft report announced the Department’s inten tion “ to10

promulgate regulations t hat exclude [treated metal

- shredder waste] from classification as a hazardous waste under separate statutory authority.” 3 A few months after complet ing its draft report, the Department began implementing this new regulatory process. I t issued, i n 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 metal

shredder waste as nonhazardous

. But t he Department’s regulatory process was slow and, i n the meantime, the Department left Schnitzer’s ( f ) l etter in place. This litigation ensued. D. This Litigation
T he 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 f

acility. In August 2020, the Athletics petitioned for a writ of mandate , pursuant to Code of Civil Procedure section 1085 , to compel the Dep artment “(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 result ing from Schnitzer’s activities in West Oakland. The petition allege s that Schnitzer has contaminated soil and groundwater at its metal

- shredding

3 “ [U]nder s eparate statutory authority” acknowledg es 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. O ther statutory authority authorizes the Department more generally to adopt regulations implement ing 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 dir ectly 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 i s “a largely African

- American, low

income 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 ac tion

— 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 t he Department has failed to comply with section 25150.82, in that i t has also not rescinded Schnitzer’s ( f ) letter and “begun regulat ing metal shredders under the HWCL.” T he Athletics read section
25150.82 as imposing a nondiscretionary duty on the Department , if it ha s not adopt ed 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 requ ire “ ‘ compl iance with the HWCL ’ ” at Schnitzer’s facility

— the12

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

. T he trial court overruled the demurrers and granted the peti tion for writ of mandate

. The trial court agreed with the Athletics’ reading of section 25 150 .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 impose d a mandatory duty on the Department to rescind Schnitzer ’ s ( f

) letter and regulate its treated metal

- shredder waste under the HCWL

. The court gr ound ed this conclusion in what it called the “plain language” of subdivision (j)(1) of secti on 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) require d the Department “ to regulate Schnitzer by applying the HWCL , not .

. . by leaving in place the ‘f letter’ that exe mpts 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 s tatute , “ ‘ that the conditional nonhazardous waste classifications, as documented through the historical “ f13

letters, ” be re voked 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, t he trial c ourt 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

. T he writ ordered compliance within 30 days and directed the Department to file a return evincing such compliance. Schnitzer appealed ; t he Department did not. T he trial court granted the Athletics’ motion to lift the automatic stay pending appeal

. ( See Code Civ. Proc., § 1110b)

. Schni t zer petitioned for a writ of supersedeas, which we denied. With the stay lifted, the Department complied with the writ by rescind ing 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 finaliz ed its 2018 draft report and conclud ed 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 permit s

. T he 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, t he facts in this paragraph are drawn from the Department’s Return to the Verified Petition for Writ of Mandate , filed in the trial c ourt 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 c ourt when it issued the writ

.14

in its January 2 018 draft report , excluding the transportation and disposal of treated metal

- shredder waste from regulation as hazardous waste if certain conditions we re met. (See Regs

. , § 66261.4, former sub d . (b)(6).) The Athletics challenged the emergency regulation as a violat ion 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 impose s 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 wh en “ 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, 7 24

– 72 5 .) Our review i s de novo. ( Ibid. )
T he issue before us

— whether section 25150.82 imposes a mandatory duty on the Department to rescind Schnitzer’s ( f ) letter and regulate its metal

5 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 . I n 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 l iteral 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 publ ic 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 th is statut ory provision nowhere expressly direct s the Department to rescind the ( f ) letters

. T he 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 ) “before16

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 prote cting 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 s ection 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 report s 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 describ ing a regulato ry 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, treat ment, 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 th is
sentence continues, specifying that this state of af fairs occurs “

. . . if the department completes its analysis pursuant to subdivision (c) and takes one17

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 condition al . It provid es 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 requ ire the Department to choo se one of these regulatory option s

. 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, i n subd ivision (j)(1) of s ection 25150.82. S ubdivision (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 standard s are adopted by the department pursuant to this section.” Since a ll parties agree that the D epartment 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 app ly 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 th e 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

. ) R egulation s section
66260.200 wa s itself adopted pursuant to the HWCL. ( S ee Regs., § 66260.200 [ citing Health & Saf

. Code , §§ 251 4 1 & 25150 as authority ] .) Far from being “ an exemption from the HWCL , ” t he ( 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 ha zardous 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 deci ded 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 mit igate potential hazards to human health or safety or to the environment.” Properly understood, s ubdivision (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 regulation s section 66260.200 is no longer in effect

. And t hey do not contend that the particular ( f

) letters is sued to Schnitzer are invalid as inconsistent with the requirement s of regulation s section 66260.200

. Th us, th ey give us no reason19

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

) letter s , iss ued 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 wer e falling short of the requirements of the HWCL , and t he petition recounts harms specific to Schnitzer’s activities in West Oakland. T he Department long acknowledged that OPP 88

- 6 , govern ing the on

- site activities of metal shredders, was contrary to law. T h e 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

en gage 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 su ppor t 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

. T hey point to section
25150.82 , subdivision (k)’s requirement that the Department complete its report and “subsequent regula tory 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 metal20

s hredder 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) require s before January 1, 2018 , i s the adoption of alternative management standards if the Department elects t o pursue them. Schnitzer’s view may be too narrow. The Legislature may have intended that if the Department opt s not to adopt alternative management standards , it must complete all regulatory action necessary to bring the metal shredder s 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” b ecause the only regulatory acti on at issue in this proceeding is the proposed rescission of the ( f ) letters. T he 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 langua ge, but the Athletics have not urged any specific regulatory action other than rescinding the ( f ) letters. W e have already rejected th e Athletics’ contention that for the Department to enforce the HWCL and its regulations

mean s it must rescind the ( f ) let ters

. W e now accordingly reject the contention that section 25150.82 , subdivision (k)’s deadline for “regulatory action” i s a deadline for rescinding the ( f ) letters , i n 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 metal

shredder 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 no nhazardous only if the Department determines that classifying the
waste as hazardous is un necessary to protect human health and the environment. Again, th e Athletics’ argument lands without force . A s to subdivision (c), the statutory requirement setting the HWCL a s the minimum standard , below which alternative management standards may not fall , does not mean th e ( f

) letters promulgated under the HWCL are flawed. It simply means that if the Department had adopted alternat ive management standards, these w ould have had to regulate metal

- shredder waste at least as stringently as did the HWCL and its regulations, including Regulations section 66260.2 00 , subdivision (f)

. A s to section 25150.82 , subdivision (i) , the draft repor t of January 2018 expressly conclude s , 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 continu e classify ing 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 m etal 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 25150.8222

“ ‘ “ 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 constru ction of the statute is unreasonable because it allow s the Department once again to avoid taking ac tion , render ing the statute’s January 1, 20 18 deadline meaningless. We disagree and conclude there is nothing absurd about the consequences of our statutory construction. At the outset, w e 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 me tal

- shredding facilities. I n explaining the need for Senate B ill No. 1249 , the author stated that the Department had acknowledge d its “ ‘hazardous waste exemptions . . . dating back to the 1980s . . . were “outdated and legally incorrect

. ” B ut [the Department hadn’t ] followed through with the proper action .’ ” ( Assem. Floor Analysis , 3d reading of S en. B ill No. 1249 (2013

– 2014 Reg . Sess.) as amended Aug. 22, 2014.) T he author conclude d , “ ‘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 . S pecifically , 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 require s 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 statut e that requir es th ese , but only th ese , action s ; t h e requir ed act s compel the Department to address the problems that gave rise to Senate Bill No. 1249. T he Department must promptly study the hazardous waste problem s associated with metal shredding , so that adequate information inform s 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 allow ed metal

shredding facilities to treat untreated hazardous waste as nonhazardous simply by acquir ing an ( f ) letter. Our construction does not require the Department to rescind the HWCL

- compliant ( f ) letters themselves. Given the science, t his 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 Athleti cs and the trial court rel y 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, clear ly does not impose a mandatory duty on the Department to rescind all ( f ) letters, and because the consequences of constru ing 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, t he 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 favor s the Athletics’ statutory construction, even that
statement can be reconciled with our reading of the statute’s operative languag e. A s the trial court noted, a n 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 th o rough evaluation and regulation of metal

- shredding facilities that the Legislature intend ed

. The new statutory provision requires t he Department to conduct a rigorous analysis and then adopt alternative management st andards or enforce the HWCL against the metal shredders. (§ 25150.82, subds. (j)(1) & (k).)
T he statute is less categorical or direct in causing the revocation of “conditional nonhazardous waste classifications, as documented through the historical ‘f l etters

. ’ ” The statute require s that in those instances w here an ( f ) letter is inconsistent with HWCL regulations

— for example because it was based on technical analys e s that no longer support classifying the waste as nonhazardous

— the Department must revoke the ( f ) letter

. (§ 25150.82, subd

. (j)(1).) T he statute also requires the Department to undertake the study that , once performed, led the Department to conclude it sh ould replace the ( f ) letters with a regulation that would appl y t o all metal shredders. (§ 25150.82, subd. (k).) The operative provisions of the statute do, as a result ,25

accomplish th e Legislature’s stated intent in full , if we read th e portion that mentions ( f

) letters as aspirational rather than prescriptive. As this language is a n 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. Cal ifornia 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 ’ ”].)
Th e th ird point worth mentioning about the legislative history is that

aspe cts 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 guida nce issued by the department before January 1, 2014 . . . are inoperative and have no further effect , ” as of the deadline for adopt ing 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, t he Legislature opted for a less categorical approach. In place of th e omitted provision it added one that swept away the old rules only under certain conditions , namely “

. . . if the department compl etes its analysis” and either rescinds the ( f ) letters or adopts alternative management standards. (§ 25150.82, subd. (k). ) As a result, w hat would have occur red automatically under the discarded provision now occur s , in the version that became law, only if the Department t a k es a regulatory action that it later26

declined to take. T he fact t h at the Legislature made th is 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 Counc il 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 t he Legislature chose not to render the ( f ) letters “ inoperative ” and of “ no further effect ” after the de adline for adopting alternative management standards , we decline to construe the statute as accomplish ing that very result. (Sen. Bill No. 1249, supra , § 1, proposed § 25150.9, subds. (c), (j) & (k).)
T hese additional observations serve to confirm the conclusion we reach based on a careful reading of the language of section 25150.82. Although th e 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, t he 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. RODR Í GUEZ , J.

The Athletics Investment Group , LLC v. California Department of Toxic Substances Control et al (A16 2524 )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 Am ic i Curiae on behalf of Plaintiff and Respondent
Rob Bonta, Attorney General, Dennis L. Beck, Jr. , and Elizabeth B. Rumsey, Deputy Attorney s General , for Defenda nt s