Judge Mitchell L. Beckloff, Case 22STCP00715 2023-04-21 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 22STCP00715, Date: 2023-04-21 Tentative Ruling

BENJAMIN MOORE & COMPANY, INC. v. CALIFORNIA REGIONAL WATER QUALITY CONTROL BOARD

Through this proceeding, Petitioner, Benjamin Moore & Company, challenges an order [Order No. R4-2021-0069] made by Respondent, the California Regional Water Quality Control Board (the Regional Board), on June 1, 2021. The order addresses alleged groundwater contamination near a site formerly owned and operated by Petitioner at 3325 Garfield Avenue in the City of Commerce (the Site).

Petitioner moves to augment the administrative record. Respondent opposes the motion.

On November 23, 2015, the Regional Board issued an order, pursuant to Water Code section 13267, requiring Petitioner to provide detailed information regarding the current and historical storage and use of chemicals (specifically, trichloroethene [TCE] and tetrachlorothene [PCE]) at the Site. (Pet., ¶ 35.) In support of its order, the Regional Board advised it possessed evidence of potential waste discharges at or from the Site, including evidence the groundwater at the Site had been impacted by TCE and PCE, and that paint sludge and unspecified solvent and organic liquid mixtures had previously been stored or handled at the Site. (Kalnins Decl., Ex. 1 [AR 1632-1634].)

On February 11, 2016, Petitioner responded to the Regional Board’s order. (Kalnins Decl., Ex. 1 [AR 1799-1800].) In addition to providing the information requested by the Regional Board, Petitioner submitted “supplemental documents” relating to the previous closure of the underground storage tank at the Site, and the excavation and removal of that tank. (Pet., ¶ 39.)

Two years later, on March 16, 2018, the Regional Board again advised Petitioner it possessed evidence of potential waste discharges from the Site. The Regional Board also informed Petitioner it would seek reimbursement for costs incurred in connection with the investigation and cleanup of discharges affecting the State’s waters. (Pet., ¶ 41; Kalnins Decl., Ex. 1 [AR 2086-2089].)

In response to the Regional Board’s March 16, 2018 letter, Petitioner hired Golder Associates Inc., an environmental consulting firm, to respond to the Regional Board’s position waste discharges at the Site had contributed to groundwater contamination in the area. (Pet., ¶¶ 45-50; Kalnins Decl., Ex. 1 [AR 2192-2215].)

On June 1, 2021, the Regional Board issued Order No. R4-2021-0069. (Kalnins Decl., Ex. 1 [AR 2241-2249].) The order directed Petitioner to provide detailed information regarding waste buried at the Site in 2001 when Petitioner decommissioned the facility. The order also required Petitioner to submit a work plan for a complete site assessment to determine, among other things, the nature and extent of any contamination in the underlying soil and groundwater. (Kalnins Decl., Ex. 1 [AR 2241-2249].)

Petitioner alleges it exhausted all available administrative remedies, and timely filed a petition for review of the June 1, 2021 order with the California State Water Resources Control Board (the State Board) on July 1, 2021, pursuant to California Water Code section 13320, subdivision (a). (Pet., ¶ 6.) Petitioner thereafter requested the State Board stay the order. (Pet., ¶ 6.) The State Board took no action on the petition or the request for a stay. Therefore, on January 31, 2022, the petition was deemed dismissed by operation of law. (Pet., ¶ 6.)

The petition alleges writ relief is warranted because the Regional Board’s order is a prejudicial abuse of the Regional Board’s discretion. (Pet., ¶ 66.) Specifically, Petitioner contends (1) the Regional Board failed to proceed in a manner required by law;[1] (2) the June 21, 2021 order is not supported by the findings; and (3) the findings are not supported by evidence. (Pet., ¶ 5.)

The petition clarifies Petitioner’s claims are largely (if not entirely) based on an alleged lack of evidence to support the Regional Board’s decision. (See, e.g., ¶ 66 [“provides no evidence or data,” no documentation of groundwater contamination, “failed to provide any evidence supporting the order”].) In Petitioner’s first cause of action, Petitioner alleges the Regional Board “fail[ed] to produce any evidence that might reasonable suggest that the Site is or has contributed to the regional groundwater contamination under investigation.” (Pet., ¶ 80.) Petitioner also suggests the data before the Regional Board in 2010 is the same data used by the Regional Board to issue the order. (Pet., ¶ 81.)

Augmentation of the administrative record is strictly controlled by statutory guidelines set forth in Code of Civil Procedure section 1094.5, subdivision (e). (Pomona Valley Hospital Medical Center v. Superior Court (Bressman) (1997) 55 Cal.App.4th 93, 101.) Governing augmentation, Code of Civil Procedure section 1094.5, subdivision (e) provides:

“Where the court finds that there is relevant evidence that, in the exercise of reasonable diligence, could not have been produced or that was improperly excluded at the hearing before respondent, it may enter judgment as provided in subdivision (f) remanding the case to be reconsidered in the light of that evidence; or, in cases in which the court is authorized by law to exercise its independent judgment on the evidence, the court may admit the evidence at the hearing on the writ without remanding the case.”

The burden to make the showings required to augment the administrative record lies with the proponent of the additional evidence. (Armondo v. Department of Motor Vehicles (1993) 15 Cal.App.4th 1174, 1180-1181.)

Relevant evidence is “evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210 [emphasis added].)

Petitioner seeks to augment the administrative record to include the following documents:

1. Exhibit A: California Department of Toxic Substances Control’s Screening Assessment (Screening Assessment), dated April 20, 2020;

2. Exhibit B: Petitioner’s Petition for Review and Request for Hearing; Request to Holding Abeyance Pending Further Notification (Petition for Review), filed with the State Board on or about June 30, 2021;

3. Exhibit C: Terraphase’s Site Assessment Work Plan PowerPoint presentation (Terraphase PPT Presentation), dated September 15, 2021;

4. Exhibit D: The Regional Board’s email to Petitioner rejecting the Site Assessment Work Plan set forth in the Terraphase PPT Presentation, dated October 27, 2021;

5. Exhibit E: Petitioner’s Request to Activate Petition Held in Abeyance and Supplement Petition (Request to Activate and Supplement), filed with the State Board on or about November 1, 2021;

6. Exhibit F: Petitioner’s Request to Amend Petition; Request for Stay (Request to Amend and Stay), filed with the State Board on or about November 15, 2021;

7. Exhibit G: Affidavit of Clare Steedman (Steedman Affidavit), dated November 13, 2021; and

8. Exhibit H: State Board’s letter to Petitioner entitled Acknowledgment of Receipt of Petition, Request to Activate Petition and Request to Present Additional Evidence (Acknowledgment Letter), dated November 16, 2021.

Augmentation of the administrative record is appropriate only if a request for augmentation falls within the limited exceptions set forth in Code of Civil Procedure section 1094.5, subdivision (e). In other words, Petitioner must show the documents it seeks to add to the administrative record are (1) relevant and (2) were before the administrative agency at the time of the agency’s decision; (3) could not have been produced at that time; or (4) were improperly excluded.

Petitioner contends the records should be used to augment the administrative record for three reasons. First, the documents “fall within the statutory definition of the ‘record’ that apply to this administrative mandamus case.” (Motion 5:5-6.) Second, Petitioner put the documents “in the record of the proceeding by submitting them to the Regional and State Boards prior to ‘final agency action’ on the Order.” (Motion 5:7-8.) Finally, “even if Exhibits A-H are not already part of the Record for the preceding reasons, the Record can be augmented with those documents under Section 1094.5(e) because, despite [Petitioner’s] diligence, it was precluded from producing them at an administrative hearing by the Boards’ refusal to hold any such hearing.” (Motion 5:8-11.)

Petitioner’s motion must be considered in the context of its petition allegations. That is, what has Petitioner alleged, and what must Petitioner demonstrate to obtain relief in this proceeding?

Petitioner challenges the Regional Board’s Order No. R4-2021-0069 and requests it be set aside.

(Pet., ¶¶ 5, 76-83, Prayer, ¶ 2.) The petition alleges the June 21, 2021 order is not supported by the findings and the findings are not supported by evidence. (Pet., ¶ 5.) Petitioner’s allegations limit the scope of the relevant administrative record for review.

It is a “fundamental rule of administrative law [] that a court’s review is confined to an examination of the record before the administrative agency at the time it takes the action being challenged.” (Evans v. City of San Jose (2005) 128 Cal.App.4th 1123, 1144.) Exhibits A through H were not before the Regional Board when it rendered its order. Given the allegations in the petition—the lack of evidence to support the Regional Board’s order—Exhibits A through H appear irrelevant to these proceedings. Adding evidence to the administrative record where the underlying allegation is a lack of evidence to support the agency’s findings is unwarranted. The evidence before the Regional Board when it issued its order is the only relevant evidence for judicial review of the order given the petition allegations.

Petitioner’s report the Regional Board did not conduct a hearing before issuing the order does not inform on whether the Regional Board’s order is supported by the evidence. That Petitioner speculates it would have produced the DTSC Screening Assessment, Terraphase PPT Presentation, and Steedman Affidavit at any hearing the Regional Board might have conducted is not relevant to the evidence before the Regional Board when it issued the order and whether that evidence supports the Regional Board’s order. (See Aronson Decl., ¶ 17.)

Allegations related to the State Board do not inform on Petitioner’s request for relief—an order commanding the Regional Board to set aside Order No. R4-2021-0069. Petitioner alleges the Regional Board erred by failing to support its order with evidence. Issues related to the State Board—given the context of the dispute as alleged by Petitioner—appear to address administrative exhaustion. Petitioner has not alleged error by the State Board or sought relief against it.

While administrative exhaustion is relevant to the proceeding, as alleged by Petitioner, the judicial review sought here concerns the Regional Board’s decision. (See Water Code, §§ 13320, 13330, subd. (b) [judicial review of regional board order versus state board denial].) Thus, it is of no consequence in review of the Regional Board’s order whether the State Board received different information when Petitioner appealed to it. In fact, the Regional Board explains the State Board has unfettered discretion to decline to review a decision of a regional water board. (People v. Barry (1987) 194 Cal.App.3d 158, 175-177. [“We conclude the state board retains unreviewable discretion to determine what issues are ‘substantial’ and whether they are ‘appropriate for review.’ ”]) Given the State Board’s discretion and the petition allegations, the relevant administrative record is the evidence before the Regional Board when it issued its June 21, 2021 order.

The court finds Petitioner has not demonstrated Exhibits A through H are relevant in this proceeding.

Petitioner also requests the records be made part of the administrative record pursuant to Government Code section 11523. That statute provides a “complete record” is “the pleadings, all notices and orders issued by the agency, . . . the final decision, . . . the exhibits admitted or rejected, the written evidence and any other papers in the case.”

As noted by the Regional Board, chapter 5 of the Administrative Procedure Act (APA) does not apply to hearings before the State Board or the Regional Board. (See Cal. Code Regs., tit. 23, § 648, subd. (c); see also Barclay Hollander Corp. v. California Regional Water Quality Control Bd. (2019) 38 Cal.App.5th 479, 499-502 [Water Code does not provide basis to apply APA to water board proceedings including Government Code section 11523].)[2]

Finally, Exhibits A through H are not judicially noticeable because they are irrelevant. That is, Exhibits A through H were not before the Regional Board and do not inform on Petitioner’s claim the Regional Board abused its discretion because the evidence does not support the findings or the findings do not support the decision.

[1] The petition references a failure to proceed in the manner required by law four times. The petition does not otherwise specify the Regional Board’s failure.

[2] Petitioner’s claim Exhibits A through H are part of the “record” pursuant to Los Angeles County Court Rules, Rule 3.231, subdivision (g) is also unpersuasive for the same reasons. Records provided to the State Board do not inform on the Regional Board’s alleged error.