Judge: Mitchell L. Beckloff, Case: 20STCP02934, Date: 2023-05-24 Tentative Ruling

Case Number: 20STCP02934    Hearing Date: October 13, 2023    Dept: 86

REV 973, LLC v. LOS ANGELES REGIONAL WATER QUALITY CONTROL BOARD

Case Number: 20STCP02934

Hearing Date: October 13, 2023

[Tentative]       ORDER DENYING PETITION FOR WRIT OF MANDATE

In this proceeding, Petitioner, REV 973, LLC, seeks a writ of mandate “to remove Petitioner’s named status as a discharger under a Cleanup and Abatement Order No. R4-2014-0117 . . . , issued on September 19, 2014” (Final CAO) by Respondent, California Regional Water Quality Control Board, Los Angeles Region (Board or Respondent). (See First Amended Verified Petition for Writ of Mandate (FAP) ¶ 1.) 

Petitioner’s request for judicial notice (RJN) of Exhibits 1 through 4, filed March 1, 2022 is DENIED.  Respondent’s objections are sustained. Petitioner has not demonstrated the relevance of the exhibits or that judicially noticing the entirety of the documents is proper. Additionally, Petitioner’s RJN effectively seeks to augment the administrative record. Petitioner has not shown that the requirements of Code of Civil Procedure section 1094.5, subdivision (e), including relevance, are satisfied such that administrative record is properly augmented with Exhibits 1 through 4. A RJN cannot be used to circumvent the rules constraining the admission of extra-record evidence. (Ballona Wetlands Land Trust v. City of Los Angeles (2011) 201 Cal.App.4th 455, 475, fn. 10.)[1]

Petitioner’s RJN of Exhibit 5 and Respondent’s RJN of Exhibit A are GRANTED. Petitioner’s objection to Exhibit A is overruled. Both parties request judicial notice of court records related to Rev 973, LLC v. John Mouren-Laurens, et al., Case No. CV98- 10690 DSF (EX).  The court judicially notices the existence of these court records but not the truth of any factual or hearsay statements contained therein. 

BACKGROUND

Statutory Framework

Respondent issued the Final CAO pursuant to the Porter-Cologne Water Quality Control Act (Wat. Code, § 13000 et seq.) (the Porter-Cologne Act). “The Porter-Cologne Act recognizes that the protection of water quality can best be accomplished by statewide regulation with regional administration. Thus, under the Porter-Cologne Act, the State Water Resources Control Board (State Board) and nine regional boards are the principal state agencies for enforcing state water pollution law.” (Tesoro Refining & Marketing Co. LLC v. Los Angeles Regional Water Quality Control Bd. (2019) 42 Cal.App.5th 453, 458; see also San Diego Gas & Electric Co. v. San Diego Regional Water Quality Control Bd. (2019) 36 Cal.App.5th 427, 434-435.)

“Waters of the state,” as defined in the Porter-Cologne Act, include “any surface water or groundwater . . . within the boundaries of the state.” (Wat. Code, § 13050, subd. (e).) Water Code section 13304, subdivision (a) establishes the authority of the nine regional board's to issue a clean up and abatement order to any person “who has caused or permitted, causes or permits, or threatens to cause or permit any waste to be discharged or deposited where it is, or probably will be, discharged into the waters of the state and creates, or threatens to create, a condition of pollution or nuisance.” Upon order of a regional board, the discharger shall “clean up the waste or abate the effects of the waste, or, in the case of threatened pollution or nuisance, take other necessary remedial action.” (Wat. Code, § 13304, subd. (a).)

Under Water Code section 13304, “cleanup or abatement orders may be issued to past, present, and future dischargers of waste; the boards need not prove a person's intent in discharging waste (the words ‘intentionally or negligently’ were deleted by the 1980 amendment); and the Legislature empowered regional boards to issue orders to prevent and/or correct threatened harm, that is, when waste has not yet even reached the state's waters.”  (San Diego Gas & Electric Co. v. San Diego Regional Water Quality Control Bd., supra, 36 Cal.App.5th at 434-435.)

The Site and Environmental Investigations

The Final CAO concerns real property located at 641, 705, 717, and 719 East Compton Boulevard in the City of Compton (collectively, the Site). (AR 8730-8755.) As recited in the Final CAO, “the Site is approximately 170,000 square feet in area and consists of four buildings and formerly included aboveground storage tanks (ASTs), associated piping, a loading dock and parking space.” (AR 8736.) 

Joseph and Emma Mouren-Laurens purchased the Site in 1965. (AR 8736.) John and Mireille Mouren-Laurens later acquired the Site in or around 1979. (AR 8736) The Mouren-Laurens Oil Company (MLOC) operated at the Site until about 1998, when Petitioner acquired the Site after it “exercised its rights under the deed of trust with a public trustee sale.” (AR 8736 and Amended Opening Brief 7:13-21 [citing AR 2473, 8185-89, 8845]; see also AR 8734 [“Rev 973 purchased a package of loans from FDIC, which included [the] MLOC loan. After MLOC defaulted on the loan, Rev 973, automatically became the property owner through

the process of foreclosure. . . .”])    

The Final CAO describes the “Groundwater Basin” and “Chemical Usage” of the Site:

Groundwater Basin: . . . . The Site is underlain by alluvial material consisting of clay, silt, sand and gravel. The Bellflower Aquiclude overlies the Gardena/Gage Aquifer of Lakewood Formation beneath the Site. Exposition-Artesia Aquifer is absent beneath the Site. The maximum depth of investigation at the Site is 95 feet below ground surface (bgs). There are two groundwater zones identified at approximately 60 feet bgs and 80 feet bgs located within the Bellflower Aquiclude beneath the Site. There are several groundwater monitoring wells screened within the two groundwater zones. The groundwater flow is towards south-south east.

. . . .

Chemical Usage: MLOC was engaged in blending and packaging of both new and

recycled/refined/reclaimed motor oils, transmission oils, and antifreeze for retail. Tanker trucks from oil refineries delivered both new and recycled/refined/reclaimed motor oil to the above ground storage tanks. From these ASTs oil was piped into a plant where it was blended and packaged for retail. In addition, one underground pipeline transferred recycled/refined/reclaimed oil from the adjacent Leach Oil Company (LOC) site to the ASTs located in the northern portion of the Site. The site operations also included various phases of receiving, processing, and packaging of chemicals. For over 50 years, the Site was used for oil storage, blending and repackaging of recycled/refined/reclaimed oil, petroleum products, cleaning agents, and commercially available chemicals. Based on the available information, the usage, storage, and transfer of chemicals and/or hazardous materials at the Site, at a minimum, include: crude oil, processed oil (motor oil, transmission oil), solvents, antifreeze, resins, urethane and household cleaning agents. (AR 8737.)

Several environmental investigations have been conducted on the Site by environmental consultants, including Clayton, AEI Consultants, Waterstone Environmental, and MK Environmental Consulting, Inc. (AR 8386-8387; see e.g. AR 2465-2704 [AEI Site Characterization Investigation dated Jan. 19, 2001]; AR 3018-4577 [Waterstone Phase II Site Characterization Plan dated Dec. 1, 2006].)  

As recited in the Final CAO:

data collected from environmental investigations conducted at the Site indicate that wastes discharged at the Site due to the industrial operations consist of solvents, petroleum hydrocarbons, volatile organic compounds (VOCs), semi-volatile organic compounds (semiVOCs), polychlorinated biphenyls (RGBs), metals, pesticides and emergent chemicals such as 1,4-Dioxane. (AR 8737.) 

According to the Final CAO, the investigations undertaken have detected elevated concentrations of trichloroethylene (TCE), tetrachloroethylene (PCE), 1,2,4-trimethylbenzene (TMB), benzene1,4-dioxane, toluene, arsenic, and other wastes in soil, soil vapor, and/or groundwater in and around the Site and the adjacent property. The levels of the observed chemicals exceed regulatory limits and are in concentrations that pose a risk to public health and safety. (AR 8738-8739.)[2]

The Final CAO

The Board released the draft cleanup and abatement order (Draft CAO) on January 6, 2011. (AR 6020-6032.) The Draft CAO gave the named parties, including Petitioner, until February 10, 2011 to provide written comments to it. (AR 6020-6032.) The Board extended the comment deadline several times to July 11, 2011 at the request of Petitioner and other entities named in the Draft CAO. (AR 8125-8126; AR 8133-8135; AR 8137-8138; AR 8169; AR 8180-8181.) Petitioner provided comments to the Board on the Draft CAO on July 11, 2011. (AR 8183-8186; AR 8187-8190; AR 8768-8770.)

On September 19, 2014, the Board issued the Final CAO, naming Petitioner and five other entities as “dischargers” and “responsible parties.” (AR 8730-8755.) On October 22, 2014, Petitioner petitioned the State Board to review the Final CAO. (AR 8794-8827.) Petitioner thereafter requested that the State Board hold the petition in abeyance. (AR 8804.) The State Board did so until January 2020. On January 17, 2020, the State Board activated the petition (AR 8832; AR 8838) but declined review; the petition was deemed dismissed by operation of law on or about April 17, 2020. (Cal. Code Regs., tit. 23, § 2050.5, subd. (e).)

Writ Proceedings

On September 11, 2020, Petitioner filed its verified petition for writ of mandate challenging the Final CAO. On October 9, 2020, Petitioner filed its FAP.

On March 1, 2022, Petitioner filed its opening brief, a request for judicial notice, and a motion to augment the administrative record.

On May 24, 2023, the court denied without prejudice Petitioner’s motion to augment the administrative record. The court scheduled a hearing on a renewed motion to augment the record for August 4, 2023.

On August 4, 2023, after a hearing and having considered Petitioner’s renewed motion, the court granted Petitioner’s motion to augment the administrative record as to Exhibit 23 only—a request for stay and hearing on the Final CAO filed by Petitioner’s former counsel on October 20, 2014.  The court denied the motion to augment in all other respects and as to Exhibits 1 through 22, Exhibit 24 and Exhibit 25.

On August 15, 2023, Petitioner filed and served its Amended Opening Brief and Amended Reply Brief.

STANDARD OF REVIEW

Petitioner is before the court pursuant to Water Code section 13330, which provides in relevant part:

Section 1094.5 of the Code of Civil Procedure shall govern proceedings for which petitions are filed pursuant to this section. For the purposes of subdivision (c) of Section 1094.5 of the Code of Civil Procedure, the court shall exercise its independent judgment on the evidence in any case involving the judicial review of . . . a decision or order of a regional board for which the state board denies review under Section 13320 . . . . (Wat. Code, § 13330, subdivision (e).)

Under Code of Civil Procedure section 1094.5, subdivision (b), judicial review entails consideration of whether the respondent has proceeded without jurisdiction, whether there was a fair trial, and whether there was a prejudicial abuse of discretion. An abuse of discretion is established if the agency has not proceeded in the manner required by law, the decision is not supported by the findings, or the findings are not supported by the evidence.  (Code Civ. Proc., § 1094.5, subd. (b).)

Under the court’s independent judgment, “the trial court not only examines the administrative record for errors of law, but also exercises its independent judgment upon the evidence disclosed in a limited trial de novo.” (Bixby v. Pierno (1971) 4 Cal. 3d 130, 143.) The court may draw its own reasonable inferences from the evidence and make its determinations as to the credibility of witnesses. (Morrison v. Housing Authority of the City of Los Angeles Board of Commissioners (2003) 107 Cal. App. 4th 860, 868.) “In exercising its independent judgment, a trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.” (Fukuda v. City of Angels (1999) 20 Cal. 4th 805, 817; see also Evid. Code, § 664 [presumption of regularity].)

“ ‘On questions of law arising in mandate proceedings, [the court] exercise[s] independent judgment.’ ” (Christensen v. Lightbourne (2017) 15 Cal.App.5th 1239, 1251.) The interpretation of statute or regulation is a question of law.  (See State Farm Mutual Automobile Ins. Co. v. Quackenbush (1999) 77 Cal.App.4th 65, 77.) “A challenge to the procedural fairness of the administrative hearing is reviewed de novo on appeal because the ultimate determination of procedural fairness amounts to a question of law.” (Nasha v. City of Los Angeles (2004) 125 Cal.App.4th 470, 482.) 

Significantly, Petitioner bears the burden of proof and persuasion in this proceeding. (Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 32; Steele v. Los Angeles County Civil Service Commission (1958) 166 Cal. App. 2d 129, 137.) When there is a challenge to “the sufficiency of the evidence, all material evidence on the point must be set forth and not merely [the challengers] own evidence.” (Toigo v. Town of Ross (1998) 70 Cal.App.4th 309, 317.)  “And in doing so, the challenger cannot simply ignore the evidence in the record that was relied upon by the board . . . . Rather, the challenger must explain why that evidence is insufficient to support that finding.” (Shenouda v. Veterinary Medical Bd. (2018) 27 Cal.App.5th 500, 513.)  A reviewing court “will not act as counsel for either party to an appeal and will not assume the task of initiating and prosecuting a search of the record for any purpose of discovering errors not pointed out in the briefs.” (Fox v. Erickson (1950) 99 Cal.App.2d 740, 742; see also Inyo Citizens for Better Planning v. Inyo County Board of Supervisors (2009) 180 Cal.App.4th 1, 14. [“We are not required to search the record to ascertain whether it contains support for [the parties’] contentions.”]) 

ANALYSIS 

Fair Procedure and Due Process

Petitioner contends the Board violated its due process rights by: (1) not providing Petitioner “the required notice” of the Final CAO; (2) not holding a hearing on the Final CAO with a resulting failure to hear from the current landowner; and (3) “not accepting or considering or evaluating” evidence other “deep pocket” entities were primarily responsible for the waste discharges. (See Amended Opening Brief 18:17, 18:12-19:24)

“[D]ue process is a flexible concept that requires protections appropriate to the particular situation.” (Rondon v. Alcoholic Beverage Control Appeals Bd. (2007) 151 Cal.App.4th 1274, 1284.) “[A]t a minimum [due process] require[s] that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case.” (Goss v. Lopez (1975) 419 U.S. 565, 579.) A litigant asserting a deprivation of due process generally must show “(1) a deprivation of a constitutionally protected liberty or property interest, and (2) a denial of adequate procedural protections.” (Franceschi v. Yee (9th Cir. 2018) 887 F.3d 927, 935.) Similarly, under California administrative law, “a fair procedure requires ‘notice reasonably calculated to apprise interested parties of the pendency of the action . . . and an opportunity to present their objections.’ ” (Doe v. University of Southern California (2016) 246 Cal.App.4th 221, 240.) 

              Notice

Petitioner contends the Board “did not provide Petitioner, the current owner of the [Site] next door to the Leach TSDF, the required notice” of the Final CAO. (Amended Opening Brief 18:16-17 [citing AR 8730-31].) 

Petitioner’s citation to the administrative record does not support Petitioner’s position on its failure to provide notice claim. In fact, the citation supports a contrary position. (AR 8731.)

The Board sent the Final CAO by certified mail to “Rev 973, LLC and Jerald A. Fine c/o Franklin R. Fraley, Jr. [at] Fraley & Associates” on or about September 19, 2014 by certified mail with a return receipt. (AR 8730.) Petitioner provides no evidence it did not receive the Final CAO. 

More importantly, the Board’s transmittal letter reports: “A draft of this CAO was provided to you on January 6, 2011, inviting comments. Comments were received from the Cronin Law Group on May 11, 2011 and from Michel & Associates and Fraley & Associates on July 11, 2011. The attached document, titled ‘Response to Comments – Draft Cleanup and Abatement Order No. R4-2011-0005,’ summarizes the comments received and the responses to those comments.” (AR 8731.) 

In its Amended Opening Brief, Petitioner does not dispute the accuracy of the Board’s statement in its September 19, 2014 transmittal letter. That Petitioner commented on the Draft CAO demonstrates Petitioner received adequate notice of the Draft CAO. The Board provided Petitioner and other interested parties more than six months to submit written comments concerning the Draft CAO.[3] Petitioner provides no authority a six-month comment period for the Draft CAO violated due process and fair procedure principles.

For the first time in reply, Petitioner asserts the Board “hid the ball” from Petitioner, and “the notice [the Board] refers to was a letter sent years earlier in January 2011, concerning a different 2011 draft CAO – which was abandoned with no action taken.” (Amended Reply 9:15-20.) Petitioner’s position is unpersuasive. The transmittal letter for the Final CAO recites it is based on a draft clean up and abatement order No. R4-2011-0005 issued in 2011. The record includes proof of service of the Draft CAO (No. R4-2011-0005 issued in 2011) pertaining to the same Site and waste dischargers and waste discharges discussed in the Final CAO. (Compare AR 6020-6033 with AR 8735-8747.) Petitioner fails to show that Respondent “hid the ball” and did not give notice of the Draft CAO or comment period pertaining to the Site. 

Petitioner relies on Water Code section 13307.1, subdivision (a) to support its claim. The statute provides:

The state board and the regional boards shall not consider cleanup or site closure proposals from the primary or active responsible discharger, issue a closure letter, or make a determination that no further action is required with respect to a site subject to a cleanup or abatement order pursuant to Section 13304, unless all current record owners of fee title to the site of the proposed action have been notified of the proposed action by the state board or regional board. 

Petitioner does not make any deficiency in the Board’s notice clear. It is undisputed the Board provided, Petitioner, the current record owner of the Site, notice of the Draft CAO—with alleged discharges and evidence of contamination—along with an opportunity to comment and, as here, to obtain a response to those comments by the Board. The Board also provided Petitioner with notice of the Final CAO allowing Petitioner to seek review by the State Board.  To the extent Water Code section 13307.1, subdivision (a) applies to the Board’s issuance of the Final CAO, the record demonstrates Petitioner received the benefits of the requirements of Water Code section 13307.1, subdivision (a).[4]

Based on the foregoing, Petitioner has not demonstrated the Board violated its due process rights when it issued the Final CAO after receiving comments to the Draft CAO in 2011. The court finds the Board provided Petitioner with adequate notice of the Draft CAO and the Final CAO.

              Opportunity to Respond and Right to a Hearing

Two authorities support the Board’s position that “[d]ue process did not require the Los Angeles Water Board to conduct a hearing in addition to the written comment period prior to issuing the CAO.” (Opposition 15:6-7.) In Machado v. State Water Resources Control Bd. (2001) 90 Cal.App.4th 720, a regional water board issued a clean up and abatement order pursuant to Water Code section 13304 against a dairy that was “discharging manure and wastewater into a ditch that flowed into a drainage system and then into the Sacramento-San Joaquin Delta.” (Id. at 723.)  The dairy argued “its due process rights were violated because it was not afforded a hearing before the issuance of the cleanup and abatement order.” (Id. at 725.) 

After analyzing factors set forth in Mathews v. Eldridge (1976) 424 U.S. 319, 334-335, the Court of Appeal held due process did not require such a hearing.[5]  The Court reasoned, in part, the clean up and abatement order “does not impose criminal or civil penalties, nor does it shut down the Dairy or otherwise prevent its operation.” (Id. at 726.) While the clean up and abatement order required inspections and changes to the dairy’s wastewater distribution system, the order “d[id] not affect the fundamental nature of its business.” (Ibid.) The Court also reasoned the procedural safeguards of the Porter-Cologne Act “minimize the risk of an erroneous deprivation of the Dairy's interests.” (Ibid.) The Court noted the dairy “had an informal opportunity to dispute the [regional board’s] determination before the order issued”; it could seek review of the order before the State Board; and it could petition the trial court for writ review. (Ibid.) Finally, the Court considered the important governmental interests involved. “The need for immediate action to clean up or abate waste discharge is obvious: Unlawful discharges threaten public health and safety, and pose significant risk to the environment. The state need not wait until injury actually occurs; it may act to prevent or minimize the harm.”  (Id. at 727.)

Similarly, in Barclay Hollander Corp. v. California Regional Water Quality Control Bd. (2019) 38 Cal.App.5th 479, the Court of Appeal held that due process does not entitle a developer of a site once owned by an oil company to a formal evidentiary hearing when the regional board is considering whether to hold the developer jointly and severally responsible with the oil company for the cleanup and abatement of petroleum compounds and other contaminants on the site. The Barclay Court also analyzed the Mathews v. Eldridge factors and reached the same result as Machado v. State Water Resources Control Bd. 

Petitioner does not address the Mathews v. Eldridge factors, Machado v. State Water Resources Control Bd. or Barclay Hollander Corp. v. California Regional Water Quality Control Bd. when asserting it was entitled to an evidentiary hearing to challenge the Final CAO. Contrary to Petitioner’s assertion in reply (Reply 9:2-14), the clean up and abatement orders in Machado v. State Water Resources Control Bd. and Barclay v. California Regional Water Quality Control Bd. were issued pursuant to the Port-Cologne Act and Water Code section 13304. (See Machado v. State Water Resources Control Bd., supra, 90 Cal.App.4th at 727; Barclay v. California Regional Water Quality Control Bd., supra, 38 Cal.App.5th at 489-490 and fn. 8.) Accordingly, the decisions are relevant to whether due process required that Petitioner be afforded an evidentiary hearing for the Final CAO.  Having failed to explain why the Mathews v. Eldridge factors should be analyzed differently here, Petitioner has not demonstrated the Board deprived it of due process. 

Further, even when the court considers the Mathews v. Eldridge factors independently, the court reaches the same result as Machado v. State Water Resources Control Bd. and Barclay Hollander Corp. v. California Regional Water Quality Bd.  The Final CAO does not impose criminal or civil penalties, and it does not shut down Petitioner’s operations. The risk of an erroneous deprivation of Petitioner’s interests is minimized by the procedural safeguards of the Porter-Cologne Act—Petitioner had the opportunity to comment on the Draft CAO; petition for reconsideration by the Board; request review by the State Board; and file this writ proceeding.  Finally, the governmental interest in taking action to clean up or abate waste is strong.  (Machado v. State Water Resources Control Bd., supra, 90 Cal.App.4th at 727.) Consistent with binding appellate decisions, the court finds due process did not require the Board to hold an evidentiary hearing prior to issuing its Final CAO.

Petitioner also contends Water Code section 13307.1, subdivision (b) required the Board to conduct an evidentiary hearing to consider input and recommendations from it. The statue provides:

“The state board and regional boards shall take all reasonable steps necessary to accommodate responsible landowner participation in the cleanup or site closure process and shall consider all input and recommendations from any responsible landowner wishing to participate.” (Wat. Code, § 13307.1, subd. (b).)

Nothing in Water Code section 13307.1, subdivision (b) requires an evidentiary hearing by the Board. The statute requires consideration of input and recommendations. The Board did just that during the comment period provided in 2011. The Board also expressly responded to comments made. (AR 8732-8734.)

The court finds Petitioner had a reasonable opportunity to respond to the Draft CAO during the comment period. The court further finds due process did not require the Board to conduct an evidentiary hearing before issuing the Final CAO.[6]

Did the Board Consider Petitioner’s Input and Recommendations Regarding PRP[7] Liability?

Petitioner contends the Board violated its due process rights by “not accepting or considering or evaluating in its Findings the PRP liability evidence offered by Petitioner, or considered in meetings between Respondent and the PRPs started in 2011, or in the transferring agency’s files (DTSC’s files).” (Amended Opening Brief 18:24-27.) Petitioner again relies on Water Code section 13307.1, subdivision (b) for support.

As noted earlier, however, Water Code section 13307.1, subdivision (b) merely requires the Board to “consider” Petitioner’s “input and recommendations.” The administrative record demonstrates the Board complied with the law and considered Petitioner’s comments before issuing the Final CAO. (See AR 8734 [responses to Petitioner’s comments].)[8]

To the extent Petitioner contends the Board’s obligation under Water Code section 13307.1, subdivision (b) was a broad obligation to “accept and consider” evidence of others’ liability as suggested by Petitioner at meetings or in agency files, Petitioner cites no controlling authority as support for the position. Moreover, nothing suggests the Board did not fully consider Petitioner’s position related to the liability of others. (See Evid. Code, § 664.)

Based on the foregoing, the court concludes the Board did not deprive Petitioner of due process or a fair procedure. The court also finds the Board complied with the requirements of Water Code section 13307.1.[9]

The Board Made Sufficient Findings and the Findings Support the Board’s Decision

Petitioner contends the Board’s findings “of why Petitioner is a ‘Discharger’ ” (Amended Opening Brief 12:5) fails to comply with Topanga because “[n]owhere in the Findings does [the Board] attribute to Petitioner, or for that matter Petitioner’s warehousing licensees, creation of discharges to groundwater or operations threatening discharges to groundwater that would necessitate a cleanup.” (Amended Opening Brief 11:21-23.)

In Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal. 3d 506, 515, our Supreme Court held “implicit in [Code of Civil Procedure] section 1094.5 is a requirement that the agency which renders the challenged decision must set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or order.” “Administrative agency findings are generally permitted considerable latitude with regard to their precision, formality, and matters reasonably implied therein.” (Southern Pacific Transportation Co. v. State Bd. of Equalization (1987) 191 Cal.App.3d 938, 954.) The agency's findings may “be determined to be sufficient if a court has no trouble under the circumstances discerning the analytic route the administrative agency traveled from evidence to action.” (West Chandler Boulevard Neighborhood Assn. v. City of Los Angeles (2011) 198 Cal.App.4th 1506, 1521-22.)  However, “mere conclusory findings without reference to the record are inadequate.” (Id. at 1521.) “The nature of the statute, ordinance, or rule being applied by that agency is also relevant to the analysis of the adequacy of an administrative agency's findings.” (Young v. City of Coronado (2017) 10 Cal.App.5th 408, 421.)  

Petitioner contends the Final CAO states “one, and only one, basis for making Petitioner liable as a ‘discharger’ in the [Final] CAO: Petitioner’s mere status as ‘the current owner of the property.’ ” (Amended Opening Brief 11:16-18.) The court disagrees. 

Here, the Final CAO describes the groundwater basin above which the Site is located; the former operations of MLOC; and the evidence of waste discharges from the Site in connection with MLOC’s operations. Significantly, the Final CAO also cites environmental investigations that were performed after Petitioner acquired the Site in 1998 and which found elevated concentrations of waste, including volatile organic compounds, in the soil vapor, soil matrix, and groundwater beneath the Site. (AR 8735-8739.) As discussed further below, a “discharger” under Water Code section 13304 may include a person or entity that has acquired a contaminated site and allowed the waste discharges at and from the site to continue unabated. 

The Board also issued the Final CAO after considering Petitioner’s comments it “cannot be named as a responsible party according to the law.” (AR 8734.) More specifically, Petitioner commented it could not be held responsible under Water Code section 13304 “as a foreclosing lender.” The Board rejected Petitioner’s position reporting: “Rev 973 is a responsible party due to its ownership of the site since 1998. In a series of orders, the State Water Resources Control Board has held that landowners are responsible for cleanup of their property. . . . Rev 973 has knowledge of, and the ability to control the discharges.” (AR 8733-34.)

The Final CAO includes sufficient findings to support Petitioner’s responsibility under Water Code section 13304 for waste discharges from a contaminated site and to issue the Final CAO against Petitioner. The Final CAO also sufficiently complies with Topanga Assn. for a Scenic Community v. County of Los Angeles, supra, 11 Cal. 3d at 515.)

The Findings Are Supported by the Weight of the Evidence

Petitioner contends “[t]he plain language of Water Code section 13304 precludes naming a current owner or operator after the property was already contaminated, who did not create or permit [or] threaten [] creation of discharges to groundwater of their own.” (Amended Opening Brief 13:18-20.) Primarily on that basis, Petitioner contends the Board’s findings are not supported by the weight of evidence constituting a prejudicial abuse of discretion. 

As noted, the court exercises its independent judgment to determine whether the weight of the evidence supports the Board’s findings and Final CAO. (Wat. Code, § 13330, subd. (e); Code Civ. Proc., § 1094.5, subd. (e).) The court “must weigh all the evidence for itself and make its own decision about which party’s position is supported by a preponderance. [Citation.] The question is not whether any rational fact finder could make the finding below, but whether the reviewing court believed the finding actually was correct.” (Sweeney v. California Regional Water Quality Control Bd. (2021) 61 Cal.App.5th 1093, 1112.) “In exercising its independent judgment, a trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.”  (Fukuda v. City of Angels, supra, 20 Cal. 4th at 817.) To the extent “purely legal issues involve the interpretation of a statute an administrative agency is responsible for enforcing, [the court] exercise[s] [its] independent judgment, ‘taking into account and respecting the agency's interpretation of its meaning.’ ” (Housing Partners I, Inc. v. Duncan (2012) 206 Cal.App.4th 1335, 1343.)

              Statutory Construction of Water Code Section 13304

Petitioner’s principal argument is one of statutory construction and requires the court to consider the following question: Under what circumstances may a person or entity that acquired contaminated property after the initial discharges of waste already occurred be considered a “discharger” under Water Code section 13304? 

Water Code section 13304, subdivision (a) establishes a regional board's authority to issue a clean up and abatement order to any person “who has caused or permitted, causes or permits, or threatens to cause or permit any waste to be discharged or deposited where it is, or probably will be, discharged into the waters of the state and creates, or threatens to create, a condition of pollution or nuisance.”

Petitioner argues liability under Water Code section 13304 is not “strict.” (Amended Opening Brief 11:1.) Petitioner cites San Diego Gas & Electric Co. v. San Diego Regional Water Quality Control Bd. (2019) 36 Cal.App.5th 427, involving a powerplant with waste discharge into the San Diego Bay, to support its argument. In the case, the Court of Appeal rejected the powerplant’s argument its actions must be a “substantial factor” in creating, or threatening to create, a condition of pollution or nuisance.

As relevant to Petitioner’s argument concerning “strict liability,” the Court of Appeal reasoned, in part, as follows:

Nowhere in the Porter-Cologne Act, including in any of the enacted versions of section 13304, are the words ‘substantial factor causation’ used or referenced; certainly, the Legislature did not explicitly require a finding of substantial factor causation prior to a regional board's issuing a cleanup or abatement order. Moreover, changes made to the statute's language over time evince a legislative intent to expand the regional boards' ability to name responsible persons. For example, cleanup or abatement orders may be issued to past, present, and future dischargers of waste; the boards need not prove a person's intent in discharging waste (the words ‘intentionally or negligently’ were deleted by the 1980 amendment); and the Legislature empowered regional boards to issue orders to prevent and/or correct threatened harm, that is, when waste has not yet even reached the state's waters. (Id. at 435-436 [emphasis added].)   

Petitioner does not persuasively address the Court of Appeal’s guidance. Regional boards need not prove a person’s intent in discharging waste to establish liability under Water Code section 13304. As summarized by the Court of Appeal, the Board is only “required to establish two elements prior to issuing the CAO . . . : (1) that [Petitioner] ‘caused or permitted . . . waste to be discharged or deposited’ into state waters (discharge element), and (2) that the discharged waste ‘creates, or threatens to create,’ pollution or nuisance conditions (nuisance creation element).” (Id. at 431.)

Petitioner also argues, citing San Diego Gas & Electric Co. v. San Diego Regional Water Quality Control Bd., there must be a “causal link” between the named responsible person and an actual or threatened discharge of waste. (Amended Opening Brief 11:2.)  While San Diego Gas & Electric Co. v. San Diego Regional Water Quality Control Bd. states the general rule that “a regional board must establish a causal link or connection between a named responsible person and an actual or threatened discharge of waste,” the Court of Appeal also included a footnote stating: “We express no opinion on what test, if any, applies to this discharge element since [the powerplant] does not dispute on appeal that it ‘caused or permitted’ waste to be discharged into the Shipyard Sediment Site.” (Id. at 440, fn. 8.) Of course, “ ‘[i]t is axiomatic that language in a judicial opinion is to be understood in accordance with the facts and issues before the court. An opinion is not authority for propositions not considered.’ ” (People v. Knoller (2007) 41 Cal.4th 139, 154-55.)

Although San Diego Gas & Electric Co. v. San Diego Regional Water Quality Control Bd. does not fully answer the question presented by Petitioner, a different appellate decision does.  In Tesoro Refining & Marketing Co. LLC v. Los Angeles Regional Water Quality Control Bd., supra, 42 Cal.App.5th at 453, a gasoline company (Tesoro) challenged a clean up and abatement order issued by a regional board based on an alleged discharge of contaminants from pipelines. Tesoro “criticized the Regional Board's failure to make an express finding that the discharge occurred after 1970 as required to avoid an impermissible retroactive application of the Act.”  (Id. at 465.) Tesoro also “argued that a factual finding of a pre-1970 discharge was necessary because ‘discharge’ could not be properly defined to encompass pollution that ‘continues to occur and expand,’ as it passes from its original location, through the soil and into the groundwater.” (Ibid.) 

The Court of Appeal rejected Tesoro’s construction of the term “discharge.”  The Court noted “[t]he State Board has defined the term ‘discharge’ in this statutory provision consistently for the past 40 years to refer to the entire time during which the discharged waste remains in the soil or groundwater and continues to impact or to threaten the groundwater.” (Tesoro Refining & Marketing Co. LLC v. Los Angeles Regional Water Quality Control Bd., supra, 42 Cal.App.5th at 458.) The Court of Appeal approved of State Board’s definition of discharge:

As stated in those [State Board] decisions, discharge refers to any movement of waste from soils to groundwater and from contaminated to uncontaminated groundwater, and continues to occur if the waste continues to move through the soils and groundwater and poses a threat of further degradation to groundwater. (Atchison, Topeka, supra, 1974 Cal. Env. Lexis 2 at p. *9.) An actionable discharge, therefore, encompasses not simply the initial episode of contamination, but rather includes the time during which the waste uncontrollably flows or migrates from its source, through the soil, and into and within the groundwater. (See Zoecon Corp., supra, 1986 Cal. Env. Lexis 4 at p. *3; Atchison, Topeka, supra, 1974 Cal. Env. Lexis 2 at pp. *9–*10.)

Where agencies interpret statutes within their administrative jurisdiction, such rulings constitute “ ‘a body of experience and informed judgment to which courts . . . may properly resort for guidance.’ ” (Yamaha Corp. of America v. State Bd. of Equalization [citation].) Judicial deference is particularly appropriate in cases, such as the one here, where the agency has “ ‘expertise and technical knowledge’”  and “ ‘has consistently maintained the interpretation in question.’ ” . . . .

Going beyond judicial deference to the agency's longstanding administrative construction of its statutes, we find that the Regional Board's definition of discharge to include ongoing movement of contaminants through the soil and into the groundwater is consistent with the plain language of the statute. . . . In Lake Madrone, [citation], the court determined that “the ordinary import” of the term “discharge” is “ ‘to relieve of a charge, load or burden; . . . to give outlet to; pour forth.’ ” That definition is entirely congruent with the definition used by the State Board in this case. Where, as here, a pipeline leak puts forth or emits gasoline into the soil, and that unremediated gasoline waste continues to pour forth or to emit chemicals forming a toxic plume that actively threatens to pollute otherwise uncontaminated groundwater, the term “discharge” necessarily encompasses this entire period. (Tesoro Refining & Marketing Co. LLC v. Los Angeles Regional Water Quality Control Bd., supra, 42 Cal.App.5th at 473.)

Petitioner did not address the Tesoro Refining & Marketing Co. LLC v. Los Angeles Regional Water Quality Control Bd. decision in its Amended Opening Brief despite the case’s apparent relevance to the parties’ dispute. Petitioner does argue in reply that Tesoro Refining & Marketing Co. LLC v. Los Angeles Regional Water Quality Control Bd. does not apply because “[t]hat case . . . did not concern discharges created by others for which a later owner was held liable.” (Amended Reply 3:22-23.)

The court is not persuaded the distinction noted by Petitioner is material. The Court of Appeal’s decision analyzed the definition of “discharge” at length and approved of the State Board’s definition that includes “the entire time during which the discharged waste remains in the soil or groundwater and continues to impact or to threaten the groundwater.” (Tesoro Refining & Marketing Co. LLC v. Los Angeles Regional Water Quality Control Bd., supra, 42 Cal.App.5th at 472.) The definition approved of by the Court of Appeal reasonably includes a person or entity that purchases or acquires the contaminated property while the discharged waste remains in the soil or groundwater and where that waste continues to impact or threaten state waters.  (See also People v. New Penn Mines, Inc. (1963) 212 Cal.App.2d 667, discussed at San Diego Gas & Electric Co. v. San Diego Regional Water Quality Control Bd., supra, 36 Cal.App.5th at 438 [“an owner of an inactive or abandoned mine may be held responsible for an actual or threatened pollution or nuisance condition when surface water or some other mechanism causes drainage of accumulated mine waste into a body of water”].) 

A different interpretation of Water Code section 13304, to exclude the current owners of contaminated property if they were not involved in the initial discharges, finds no support in the plain language of Water Code section 13304 and also leads to absurd results that are inconsistent with the intent of the Porter-Cologne Act. Specifically, if Petitioner’s interpretation were correct, the original discharger of waste could transfer the property to a person or entity that was not involved in the initial discharges and dissolve (or go bankrupt) effecting leaving circumstances where there is no responsibility for clean up and abatement under Water Code section 13304. In such a situation, the transferee avoids any responsibility despite waste actively migrating from the property and threatening to contaminate groundwater. Petitioner argues, in effect, that there may be no remedy under Water Code section 13304 if contaminated property is transferred to a person or entity that was not involved in the initial discharge. The court finds Petitioner’s interpretation unpersuasive.  (See People v. Jenkins (1995) 10 Cal.4th 234, 246 [when interpreting a statute or regulation, courts seek to “avoid an interpretation that would lead to absurd consequences”]; Takiguchi v. Venetian Condominiums Maintenance Corp. (2023) 90 Cal.App.5th 880, 895. [“A remedial statute should be liberally construed to effectuate its object and purpose, and to suppress the mischief at which it is directed.”]) 

Based on the foregoing, the court applies the definition of “discharge” adopted by Tesoro Refining & Marketing Co. LLC v. Los Angeles Regional Water Quality Control Bd., supra, 42 Cal.App.5th at 473 to the evidence found in the administrative record. The court rejects Petitioner’s contention that a “discharger” under Water Code section 13304 may not include a person or entity that acquired the contaminated property after the initial discharges of waste occurred.[10] 

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The Weight of the Evidence Supports the Findings of Discharges of Waste that Create or Threaten to Create a Condition of Pollution and Nuisance

The Final CAO reports environmental investigations have detected elevated concentrations of trichloroethylene (TCE), tetrachloroethylene (PCE), 1,2,4-trimethylbenzene (TMB), benzene1,4-dioxane, toluene, arsenic, and other wastes in soil, soil vapor, and/or groundwater in and around the Site and the adjacent property at levels that exceed regulatory limits and in concentrations that pose a risk to public health and safety. (AR 8738-8739.) The Final CAO discusses the “groundwater basin” below the Site and reveals “[e]levated concentrations of waste, including VOCs and other wastes, have been detected in soil vapor, soil matrix, and groundwater beneath the Site.” (AR 8738.) The Final CAO states “Discharges of waste at the [] Site have commingled with discharges of waste at the LOC Site. The Regional Board is also overseeing assessment, cleanup, and remediation of the Leach Oil Company site.” (AR 8738.) The Final CAO finds “Rev 973 has knowledge of, and the ability to control the discharges.”  (AR 8733-34.) 

Significantly, the Final CAO explains how the waste concentrations on the Site exceed regulatory limits and present an ongoing threat to the state waters and human health. (AR 8738. [“These concentrations of chemicals in shallow soil pose a potential threat to human health”]; [“The TCE, cis 1,2-DCE, benzene, toluene, arsenic, and thallium concentrations in groundwater exceed their respective Environmental Protection Agency, State Water Resources Control Board, Division of Drinking Water (DDW) maximum contamination levels (MCLs) of 5 pg/L, 6 pg/L, 1 pg/L, 150 pg/L, 10 pg/L and 2 pg/L; posing a threat to drinking water resources.”]) 

In its Amended Opening Brief and Amended Reply, Petitioner has not persuasively challenged or discussed these material findings by the Board. Petitioner does not dispute the findings of ongoing contamination at the Site that exceeds regulatory limits; migration of waste discharges from the Site to the adjacent property; and an ongoing threat of polluting the groundwater basin below the Site. Nor has Petitioner disputed its ownership and control of the Site since 1998.  Accordingly, Petitioner has not met its burden of proof to show a prejudicial abuse of discretion. (Shenouda v. Veterinary Medical Bd., supra, 27 Cal.App.5th at 513 [“the challenger must explain why that evidence is insufficient to support that finding”].)[11]

Although Petitioner has not shown a prejudicial abuse of discretion based on the Board’s findings, the court has nonetheless reviewed the record independently and concluded the Board’s findings are supported by the weight of the evidence. It is undisputed that MLOC engaged in oil-related operations and caused discharges of waste from the Site until about 1998. (AR 8736-8737.) After Petitioner acquired the Site in 1998, environmental investigations detected elevated concentrations of hazardous wastes in “soil vapor, soil matrix, and groundwater beneath the Site” and migration of such wastes to adjacent property. (AR 8738.)  As an example, in a report dated January 19, 2001, Petitioner’s own consultant described extensive groundwater contamination from the Site and how plumes of multiple contaminants, including TCE, have “migrated” or “drifted” off-site. The following excerpt from the report is illustrative:

Generally, the groundwater contamination was highest near the southern, western and central areas of the subject site. Groundwater contamination constituents consist of several chemicals including benzene, cis-1,2-dichlorethene, cis-1,2-dichlorethane, trichloroethylene, 1,2-dichloroethane, 1, 1-dichloroethene, 1, 1-dichloroethane chlorobenzene, and tetrachloroethylene. Based on the type of chemicals found in both the soil and groundwater, the groundwater contamination appears to be connected to the overlying soil contamination.

Figure 17 shows the distribution of TCE concentrations in the perched aquifer. The

highest concentration is found at TP-1, located at the rear of Building Two. A spill may have taken place at or near this location. Lateral spreading from this location could have resulted in a TCE plume in the perched aquifer as indicated.

The concentrations of TCE in groundwater from the basal aquifer are given in Figure 18. Most of this plume remains on-site. The highest concentration is again located at the rear of Building Two. Note that concentrations of TCE in the basal aquifer are lower than those in the perched aquifer by about an order of magnitude; however, all wells have been impacted. There also appears to be significant migration of the plume to the southwest.

              . . . .

Figure 21 shows concentrations of benzene in groundwater from the basal aquifer. Benzene is the most mobile of the BTEX compounds, so it is to be expected that significant spreading of the plume to the south has occurred. The highest concentrations were found in MW-2 near the truck maintenance and storage operation, and to the rear of Building Two in MW-6.

. . . .

Figure 25 shows concentrations of 1,2-DCA ranging from non-detect to 22.4 ug/L were found in groundwater from the basal aquifer. The highest concentration of 22.4 ug/L was found near the underground pipeline from The Leach Oil Company. The plume has migrated off-site to the southeast. . . .

Figure 26 is a plot of concentrations of 1, 1 - DCE in groundwater from the basal aquifer. Available data indicates that this plume has drifted off-site. The highest concentration of 9.9 ug/L was found at MW-3 and the second highest concentration was found at MW-near the underground pipeline from The Leach Oil Company. . . .

. . . .

Data indicates that there were numerous unauthorized releases of hazardous material and petroleum product releases on the subject site. These releases caused both subsurface soil and groundwater contamination. Further work will be conducted under the guidance of the Los Angeles Regional Water Quality Control Board (LARWQCB) who will provide regulatory oversight. AEI anticipates that the LAR WQCB will require further groundwater characterization through the installation of off-site groundwater monitoring wells in up-gradient, down-gradient and cross-gradient locations. Additionally, remediation feasibility studies (pilot studies) will be required to assess the effectiveness of various remediation technologies in remediating soil and groundwater contamination on-site. (AR 2488-2489.)

Although the environmental report was prepared in 2001 after Petitioner owned the Site, Petitioner has not cited any evidence suggesting the waste circumstances have improved at the Site. Petitioner concedes that “remediation has yet to even begin.” (Amended Opening Brief 17:16-18; see also Amended Opening Brief 1:10-12 and 12:11-20 and AR 8131, 8184 [acknowledging ongoing and current contamination of Site].)   

The weight of the evidence supports the Board’s findings Petitioner has “discharged” waste at or from the Site within the meaning of Water Code section 13304 and the discharges create, or threaten to create, pollution or nuisance conditions.

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The Board’s Discretionary Determinations Re: Primary or Secondary Liability and Which Dischargers to Name in the Final CAO

Petitioner argues, in the alternative, even if it is a “discharger” under Water Code section 13304, the Board abused its discretion by failing to designate Petitioner as “secondarily liable.”    Relatedly, Petitioner contends the Board abused its discretion by failing to name any “PRPs” as the “primarily-liable dischargers” in the Final CAO and “ignor[ing] the PRPs and evidence of their liability and their ability to bring needed funds to the cleanup.” (Amended Opening Brief 18:5.) 

              Primary or Secondary Liability

The phrase “secondarily liable” does not appear in Water Code section 13304 and, apparently, anywhere else within the Water Code. Petitioner does not cite any regulation applicable to the State Board or regional boards describing the circumstances requiring a board to name a discharger as “secondarily liable.” Petitioner also does not cite any appellate court decisions addressing the issue. 

Petitioner does cite past decisions of the State Board that have distinguished between primary and secondary liability in some circumstances. (See generally Amended Opening Brief 13:18-14:9.) The Board also cites decisions of the State Board distinguishing between primary and secondary liability. (See generally Opposition 20.) Accordingly, based on those precedential decisions, Respondent appears to have discretion, in some circumstances, to name a discharger under Water Code section 13304 as primarily or secondarily liable. To the extent the Board has such discretion, its decision to name a discharger as primarily or secondarily liable could be reviewed by the court for abuse of discretion under Code of Civil Procedure section 1094.5.

“The [State] Board has cited several factors which are appropriate for the Regional Water Boards to consider in determining whether a party should be held secondarily liable. These include: (1) whether or not the party initiated or contributed to the discharge; and (2) whether those parties who created or contributed to the discharge are proceeding with cleanup.” (In the Matter of Petitions of Aluminum Company of America, et al. (Cal. St. Wat. Res. Bd. 1993) Order No. WQ 93-9, 1993 WL 13672991 at *6, fn. 8.) Relevant factors include whether “(a) the petitioner did not in any way initiate or contribute to the actual discharge of waste, (b) the petitioner does not have the legal right to carry out the cleanup unless its tenant fails to do so, (c) the lease is for a long term, and (d) the site investigation and cleanup are proceeding well.”  (In the Matter of the Petition of Prudential Insurance Company (Cal. St. Wat. Res. Bd. 1987) Order No. WQ 87-6, WL 1411952 at *2.)[12] 

Under the applicable factors, Petitioner has not shown the Board abused its discretion in finding Petitioner to be a primarily liable discharger. The Final CAO identifies the dischargers as Petitioner and “[MLOC], Estate of Joseph Mouren-Laurens, Estate of Emma Mouren-Laurens, John Mouren-Laurens and Mireille Mouren-Laurens.” (AR 8735.) The Final CAO does not distinguish between primary or secondary liability as to any of the dischargers. (AR 8741.)  Accordingly, the Final CAO is reasonably interpreted to name all dischargers as primarily liable. 

When the Board issued the Final CAO in 2014, environmental investigations showed elevated concentrations of hazardous wastes in “soil vapor, soil matrix, and groundwater beneath the Site” and migration of such wastes to adjacent property. (AR 8738.) Petitioner did not show, in the administrative proceedings, the contamination and threat to state waters had been remediated in the many years Petitioner had owned and controlled the Site. Indeed, Petitioner concedes “remediation has yet to even begin.” (Amended Opening Brief 17:16-18.) There is no evidence “investigation and cleanup are proceeding well” or that any other dischargers are proceeding with cleanup. Given Petitioner’s ownership and control of the Site, the serious contamination of the soil and groundwater, and the lack of remediation for many years since Petitioner acquired and controlled the Site, the weight of the evidence supports the Board’s decision to name Petitioner (as well as the other dischargers) as a primarily liable discharger. 

              The Board’s Discretionary Determination of Which Dischargers to Name in the Final CAO

The Board contends it has prosecutorial discretion to determine which dischargers to name in a clean up and abatement order. The court agrees.

“[A]n agency's decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency's absolute discretion. . . . This recognition of the existence of discretion is attributable in no small part to the general unsuitability for judicial review of agency decisions to refuse enforcement.”  (Heckler v. Chaney (1985) 470 U.S. 821, 831.)  

This principle applies in both civil and criminal matters in which an agency or public officer has enforcement discretion. (See People v. Karriker (2007) 149 Cal.App.4th 763, 786; accord People v. Cimarusti (1978) 81 Cal.App.3d 314, 322-323; Dix v. Superior Court (1991) 53 Cal.3d 442, 451; Gananian v. Wagstaffe (2011) 199 Cal.App.4th 1532, 1545-1546; Schwartz v. Poizner (2010) 187 Cal.App.4th 592, 597-598.) 

The Board’s statutory authority to name persons or entities as dischargers in a clean up and abatement order issued pursuant to Water Code section 13304 is a matter of prosecutorial discretion. While the court may review the Board’s findings and decision to name Petitioner as a discharger, the court cannot compel the Board to exercise its enforcement discretion in a particular manner with respect to persons or entities not named in the Final CAO. Petitioner cites no authority to the contrary.  Accordingly, for this reason, the court rejects Petitioner’s argument the Board abused its discretion in failing to name “any PRPs” as responsible parties in the Final CAO. (See Amended Opening Brief 15:6-18:10.)[13] 

Respondent’s Investigatory Authority Under Water Code Section 13267

The Final CAO requires investigation and cleanup of the Site pursuant to Water Code section 13304. (AR 8741.) As noted, Petitioner has not demonstrated any prejudicial abuse of discretion by the Board in the Final CAO on those issues.

The Final CAO also requires submission of technical or monitoring reports pursuant to Water Code section 13267. (AR 8741.) Water Code section 13267 authorizes a regional water board to “investigate the quality of any waters of the state within its region.” (Wat. Code, § 13267, subd. (a).) In conducting such investigations, the regional board “may require that any person who has discharged, discharges, or is suspected of having discharged or discharging . . . waste within its region . . . shall furnish, under penalty of perjury, technical or monitoring program reports which the regional board requires.” (Id., subd. (b)(1).) 

The findings and evidence discussed earlier support the Board’s investigatory order under Water Code section 13267. Petitioner concedes if the “discharger” findings under Water Code section 13304 are supported by the weight of the evidence, then the Board also had the authority to issue an investigatory order pursuant to Water Code section 13267. (Amended Opening Brief 11, fn. 1.) Other than those arguments discussed earlier, Petitioner has not developed any argument suggesting the Board’s findings under Water Code section 13267 were deficient.

For the reasons discussed earlier, the court finds the Board’s findings and decision to issue an investigatory order under Water Code section 13267 are supported by the weight of the evidence and were therefore not a prejudicial abuse of discretion. 

Has Respondent Required Petitioner to Clean Up the Leach TSDF?; and, if so, Has Respondent Abused its Discretion?

Petitioner contends that “in implementing the [Final] CAO, Respondent has gone beyond the jurisdiction allowed under the express language of that order, limiting Respondent’s cleanup obligations to discharged contamination ‘at’ the [Site]. Respondent has insisted Petitioner assess, monitor and remediate, contamination at and from an independently permitted, belching hazardous waste treatment facility (‘Leach TSDF’) next door.” (Amended Opening Brief 1:12-16.) 

For support, Petitioner cites primarily to evidence outside the administrative record. (See Amended Opening Brief 14:13-14 [citing augment motion at Exh. 22, 25].) The exhibits are not before the court and not in the administrative record.

Further, Petitioner is incorrect when it argues the Final “CAO expressly limits the named dischargers’ cleanup and abatement obligations only to discharges that are ‘at the ML Property.’ ” (Amended Opening Brief 14:16-17, [citing AR 8735-36].) The Final CAO states Petitioner “shall investigate, cleanup, and abate the effects of waste discharged or deposited at or from the Site.” (AR 8742 [emphasis added].) The Final CAO also states that “Discharges of waste at the MLOC Site have commingled with discharges of waste at the LOC Site. The Regional Board is also overseeing assessment, cleanup, and remediation of the Leach Oil

Company site.” (AR 8738.) While the “Required Actions” in the Final CAO primarily apply to the Site, there could be circumstances under which the Board, consistent with the Final CAO and Water Code sections 13304 and 13267, permissibly requires Petitioner to investigate or abate discharges of waste that are migrating, or have migrated, from the Site. Petitioner has cited no authority to the contrary.

Petitioner also fails to meet its burden of proof and persuasion in this proceeding with respect to the Leach TSDF. Petitioner represents “Respondent has demanded that Petitioner include the full Leach TSDF site in virtually all assessments and cleanup plans.” (Amended Opening Brief 14:11-12.) Petitioner also states: “To obtain Respondent’s approval, virtually all assessment reports cover both sites. [MTA Ex 25 p. 9]. Respondent rejected Petitioner’s proposed RAP for not including the Leach TSDF site. [MTA Ex 22 p. 3.].” (Amended Opening Brief 14:12-14.) 

Even if it were proper for the court to consider the extra-record evidence proffered, Petitioner has not explained how such exhibits support its position. Exhibit 25 is a complaint for injunctive relief and civil liability filed by the Board in January 2023 in state court. Petitioner does not explain how any statements on page 9 of the complaint (or other pages) support its position the Board has exceeded the scope of the Final CAO or its statutory authority. 

Exhibit 22 is letter from the Board to Petitioner dated April 28, 2020 discussing the Board’s review of a technical report and Remedial Action Plan submitted by Petitioner’s environmental consultant related to the Site. Petitioner does not explain how any statements on page 3 of the letter (or other pages) support its position the Board has exceeded the scope of the Final CAO or its statutory authority. Accordingly, the court is not persuaded by Petitioner’s claims relying on extra-record evidence.

While the argument is not developed, Petitioner may rely on statements in Respondent’s letter (Exhibit 22) that Petitioner is “responsible for remediating groundwater beneath and downgradient of the MLOC site,” and Petitioner is “considered a responsible party in the CAO and required to conduct the onsite and offsite assessment and cleanup of all COCs in soil, soil vapor, and groundwater sourced from the MLOC site.” (Exh. 22 at p. 3.) These statements in the Board’s letter appear consistent with the Final CAO and Water Code section 13304. Petitioner has not argued or shown to the contrary. 

Notably, under Water Code section 13304, subdivision (a), a discharger “shall, upon order of the regional board, clean up the waste or abate the effects of the waste, or, in the case of threatened pollution or nuisance, take other necessary remedial action, including, but not limited to, overseeing cleanup and abatement efforts.” The statute does not limit the Board’s authority to the property from which the waste originated. Rather, the statute necessarily grants the Board authority to require a discharger to investigate, abate, and/or cleanup contamination that has migrated off site. (See e.g. Tesoro Refining & Marketing Co. LLC v. Los Angeles Regional Water Quality Control Bd., supra, 42 Cal.App.5th at 459 [“Regional Board ordered OOI to complete onsite and offsite assessments of dissolved groundwater contamination”].) 

On this record and the parties’ briefing, Petitioner does not show any prejudicial abuse of discretion in the manner the Board has implemented the Final CAO. The court reaches this conclusion regardless of whether Petitioner’s arguments related to “implementation” are reviewed under Code of Civil Procedure section 1094.5 or Code of Civil Procedure section 1085, and regardless of whether Petitioner’s extra-record exhibits are considered. Therefore, the court need not address the Board’s related exhaustion defense.  (Opposition 18:16-27.)

CONCLUSION 

Based on the foregoing, Petitioner’s FAP is denied in its entirety.   

 IT IS SO ORDERED. 

October 13, 2023                                                                                                                                         

________________________________ 

Hon. Mitchell Beckloff  

Judge of the Superior Court