Judge: Mitchell L. Beckloff, Case: 22STCP00715, Date: 2023-09-06 Tentative Ruling

Case Number: 22STCP00715    Hearing Date: September 6, 2023    Dept: 86

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

Case Number: 22STCP00715

Hearing Date: September 6, 2023 

[Tentative]       ORDER DENYING PETITION FOR WRIT OF MANDATE 

Petitioner, Benjamin Moore & Company, Inc., seeks a writ of administrative mandate directing Respondent, California Regional Water Quality Control Board, Los Angeles Region, to set aside its Order No. R4-2021-0069 (Order).  The Order directs Petitioner, as former owner/operator, and G.F.C. Garfield Associates (Garfield), as current owner, to provide detailed information regarding waste buried at 3325 Garfield Avenue in the City of Commerce (Site) during the decommissioning of Petitioner’s facility in 2001, and to submit a work plan for a complete Site assessment.  The Order advises Respondent is currently investigating potential sources of discharges of volatile organic compounds (VOCs), including trichloroethene (TCE) and tetrachloroethene (PCE), in the city where the Site is located.  (AR 2243.)

Respondent’s Request for Judicial Notice (RJN) of Exhibits A and B (legislative materials) is granted.

The court also grants Petitioner’s RJN of Exhibit A, Respondent’s June 15, 2023 letter. (Petitioner submitted the RJN in reply.) Respondent’s objection is overruled. Respondent issued the letter in response to a proposed work plan Petitioner submitted to Respondent in an effort to comply with the Order. Respondent’s letter states: “The above requirement for submittal of a technical report constitutes an amendment to the requirements of the Water Code section 13267 Order originally dated June 1, 2021.” (Pet. RJN Ex. A p. 4.) As the letter amends the Order, the court finds the letter relevant to the issue of whether the burdens of the Order bear a reasonable relationship to the need for and benefits of the required reports. (Wat. Code, § 13267, subdivision (b)(1).)[1]

BACKGROUND

Statutory and Regulatory Background

Respondent issued the Order pursuant to the Porter-Cologne Water Quality Control Act, section 13000 et seq. (the Porter-Cologne Act). “Porter-Cologne was enacted in order ‘to attain the highest water quality which is reasonable, considering all demands being made and to be made on those waters and the total values involved, beneficial and detrimental, economic and social, tangible and intangible.’ ” (Sweeney v. California Regional Water Quality Control Bd. (2021) 61 Cal.App.5th 1093, 1113 [citing § 13000] [Sweeney].)

Section 13267 authorizes a regional water board to “investigate the quality of any waters of the state within its region.” (§ 13267, subd. (a).) In conducting such investigations, Respondent “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.” (§ 13267, subd. (b)(1).)  “The burden, including costs, of these reports shall bear a reasonable relationship to the need for the report and the benefits to be obtained from the reports. In requiring those reports, the regional board shall provide the person with a written explanation with regard to the need for the reports, and shall identify the evidence that supports requiring that person to provide the reports.” (Ibid.) 

The administrative record includes the State Water Resources Control Board’s Resolution No. 92-49, Policies and Procedures for Investigation and Cleanup and Abatement of Discharges under section 13304, amended April 21, 1994. (AR 290.) The resolution outlines procedures regional water boards—like Respondent—must apply to determine whether a person shall be required to investigate a discharge of waste under section 13267. (AR 292.) To identify dischargers, regional water boards are directed to “[u]se any relevant evidence, whether direct or circumstantial” including evidence relating to the following:

1. Documentation of historical or current activities, waste characteristics, chemical use, storage or disposal information, as documented by public records, responses to questionnaires, or other sources of information;

2. Site characteristics and location in relation to other potential sources of a discharge;

3. Hydrologic and hydrogeologic information, such as differences in upgradient and downgradient water quality;

4. Industry-wide operational practices that historically have led to discharges, such as leakage of pollutants from wastewater collection and conveyance systems, sumps, storage tanks, landfills and clarifiers;

. . . .

6. Lack of documentation of responsible management of materials or wastes, such as lack of manifests or lack of documentation of proper disposal;

7. Physical evidence, such as analytical data, soil or pavement staining, distressed vegetation, or unusual order or appearance;

8. Reports and complaints; . . . . (AR 292.)

Petitioner’s History at the Site; Facility Decommissioning; and Environmental Assessments

“The Site was undeveloped until 1952. A paint manufacturing facility was built at the Site in 1952. [Petitioner] occupied the Site from 1953 to 2002, and its operations included manufacturing paint, latex, and solvent-based coatings.” (AR 2243 [Order findings]; see also AR 432-433 [history of Site].)

Petitioner “had several batch mixing, letdown, and holding tanks, three aboveground storage tank (AST) containment areas consisting of 22 ASTs for bulk storage of raw materials, one 6000-gallon underground storage tank (UST) for paint resin storage, a drum storage area, a 2500-gallon spill retention/clarifier tank, a wash rack enclosure, and other facilities that were part of its operations.”  (AR 2243 [Order findings]; see also AR 432-433 [history of Site].)

In 2002, Petitioner ceased its operations on the Site, decommissioned the paint manufacturing facility, and sold the Site to Garfield. (Opening Brief 6:11-12.) In 1999, 2002, and 2003, Petitioner obtained environmental assessments of potential areas of concern at the Site. 

              Environ Environmental Assessment (1999)

In 1999, Petitioner retained environmental consultant, Environ Corporation, to conduct an environmental assessment of the Site. (AR 329-414.) The purpose of the assessment “was to identify any noteworthy on-site environmental or occupational safety and health issues.” (AR 331.) Based on its review of environmental documents, a Site visit, an interview with Petitioner’s employee, Harley Fung, as well as other information, Environ identified the following “noteworthy” environmental issue, among others:

·       On-site Soil and Ground Water Contamination

During the 1950s and 1960s, alkyd resins reportedly were manufactured at the facility. According to Mr. Fung, the resins were manufactured in open, subsurface pits, located in the current storage building. A large resin reactor was also located in the building, and used through the early 1980s. An underground storage tank (UST) was located west of the storage building, and appears to have been closed in place. A clarifier, also closed in place, was located south of the storage building. Chemicals used in the manufacture of these resins included vinyl acetate, mineral spirits, xylenes, and trimethylbenzenes. Because these resins were manufactured over a relatively long time period in open pits, raw materials were stored in a UST, and waste water was released to a clarifier, it is possible that liquids used in the manufacture of the resins contacted subsurface soil and/or ground water underlying the Site. (AR 333.)

A Site description in the Environ report states, in part:

The Site is situated at an elevation of approximately 150 feet above mean sea level (MSL). Surface topography in the Site vicinity slopes gently to the southwest toward the Los Angeles River, located approximately 1.5 miles southwest of the Site. Mr. Fung had no knowledge of historic flooding at the Site. ENVIRON's previous experience in the area indicates that ground water is first encountered at approximately 90 to 100 feet below ground surface, and flows to the southwest. ENVIRON is aware that ground water in the Site vicinity is contaminated by volatile organic compounds (VOCs), primarily chlorinated solvents, and that the Los Angeles Regional Water Quality Control Board (LARWQCB) considers the contamination to be a regional issue.  (AR 338.)

In an interview, Fung (Petitioner’s employee) stated:

. . . operations conducted by [Petitioner] have not changed significantly since the company began operations in the 1950s with two exceptions. The amount of solvent-based paint manufactured at the facility has decreased from approximately 20% to 10% of the total paint manufactured at the facility. (AR 342.)

Environ’s review of environmental documents for 1997 through 1999:

indicate[d] that the facility generate[d] the following hazardous wastes: waste mineral spirits, scrap batteries, acetone/toluene, rinsewater containing paint, waste oil, waste oil filters, and waste paint sludge. According to ENVIRON's review, the facility generated approximately 8,800 gallons of hazardous waste through July 1999. (AR 347.) 

Terracon Phase I Environmental Site Assessment, Limited Phase II Assessment, and Additional Soil Sampling (2002)

In 2002, Environmental consultant Terracon conducted a Phase I Environmental Site Assessment, a Limited Asbestos Survey and Limited Phase II Assessment, and additional soil investigation at the Site. (AR 730.) Terracon collected and analyzed soil samples from various locations on the Site. (AR 730.) Terracon analyzed the soil samples for VOCs, polychlorinated biphenyls (PCBs), various metals (cadmium, chromium, lead, and mercury), and total petroleum hydrocarbons (TPH). (AR 731, 732.) Low levels of various VOCs were detected, but the reports do not identify PCE or TCE in the samples. (AR 730-734, 447-451, 764-770, 650-709.) Analysis of a 35-foot sample taken from “the north side of an abandoned in-place UST” indicated levels of TPH (gasoline) above applicable screening levels.[2] (AR 732-733.) Strong paint/solvent odors were noted in several soil samples, including a sample taken from adjacent to the former abandoned in-place UST.  (AR 420, 731, 733.) 

Terracon recommended further investigation be conducted to assess potential contamination by VOCs and semi-volatile organic compounds because subsurface soils exhibited strong odors and discoloration. (AR 420, 451.)

              Environ Report Related to the UST Closure (2003)

After the 2002 Terracon investigations, Petitioner retained Environ to prepare an environmental report to address removal of the former vinyl acetate UST. (AR 772.) After removal of the UST, Environ collected and analyzed five additional soil samples for TPH and VOCs. (AR 773, 776.) Several VOCs were detected at low concentrations, including PCE at below United States Environmental Protection Agency (EPA) Region IX preliminary remediation goals for industrial areas. (AR 774.) TPH (gasoline/diesel/oil) was detected in amounts below Respondent’s guidelines for soil screening levels. (AR 774.) Environ did not detect vinyl acetate in the soil samples. Vinyl acetate is the only known compound stored in Petitioner’s former UST. (AR 773-774.)

The 2003 Environ report does not identify TCE in the soil samples. (AR 776.) The report identified low levels of PCE in certain soil sample at shallow depths of 19 feet below ground, or four feet below the UST invert. (AR 776) The PCE results were below applicable screening levels. (AR 774, 776, 787, 802.)  The report assumes ground water to be at least 110 feet below ground surface based on information from the Los Angeles County Department of Public Works Hydrologic Records. (AR 776.)

Underground Storage Tank Low Risk Case Review Form

The record includes an Underground Storage Tank Low Risk Case Review Form, which was apparently signed by employees of the state’s EPA and/or Respondent on March 1 and 3, 2010.  (AR 1174.001.) The form relates to the closure of the UST at the Site. A table entitled “Maximum Documented Contaminant Concentrations” specifies soil measurements for multiple contaminants, but does not include PCE or TCE. (AR 1174.002.) 

2010 Closure Letter

On April 14, 2010, Respondent advised Petitioner of “the completion of a site investigation and corrective action for the underground storage tank(s) formerly located” at the Site. (AR 1175.) Respondent’s closure letter states:

Based on information in the above-referenced file and with the provision that the information provided to this agency was accurate and representative of site conditions, this agency finds that the site investigation and corrective action carried out at your underground tank(s) site is in compliance with the requirements of subdivision (a) and (b) of section 25296.10 of the Health and Safety Code and with corrective action regulations adopted pursuant to section 25299.3 of the Health and Safety Code and that no further action related to the petroleum release(s) at the site is required.  (AR 1175.)

Respondent attached Environ’s August 2003 UST closure report “summariz[ing] the closure activities for the removal and disposal of a former vinyl acetate underground storage tank” to the 2010 closure letter.  (AR 1177, 1176-1215.)

///

Respondent’s Investigation Under Section 13267

On November 23, 2015, Respondent issued an order pursuant to section 13267 directing Petitioner to respond to a chemical use and storage questionnaire concerning the historical use and storage of chemicals at the Site. (AR 1630-47.) Respondent advised it had evidence that two wells located near the Site had been impacted by PCE and TCE. (AR 1634, 1630-31; see also AR 1910, 1910.001.) 

On February 11, 2016, Petitioner returned a completed questionnaire. (AR 1799-1808.) Petitioner affirmed the site had a UST, aboveground storage tanks, and that Petitioner stored various chemicals at the Site. (AR 1802.) When asked whether there had “ever been a release of chemicals to the ground surface or subsurface,” Petitioner answered in the affirmative with an asterisk and the notation “UST.” (AR 1802.) Petitioner also affirmed it had used and disposed of lubricating oils, fabrics, dyes, rubber, paints, certain fertilizers as well as solvents. (AR 1803.)  Petitioner stated it did not use or store chlorinated solvents at the Site. (AR 1802.) With its response, Petitioner submitted “supplemental documents” that included the 1999 Environ Report, the 2002 Terracon Reports, and Respondent’s 2010 UST closure letter.  (AR 1800.)

On March 16, 2018, Respondent sent a letter to Petitioner (and Garfield) with the subject line “Site Cleanup Program Oversight Cost Reimbursement Account.” Respondent advised it possessed evidence of waste discharges from the Site, including the detection of PCE in onsite soil in the 2003 Environ UST closure report. (AR 2086.) Respondent indicated it would be seeking reimbursement for costs incurred in connection with the investigation and cleanup and asked Petitioner to acknowledge receipt of the letter and payment obligations. (AR 2096.)

Golder Technical Memorandum

In response to Respondent’s investigation, Petitioner retained an environmental consulting firm, Golder Associates Inc., to “conduct additional investigations to delineate VOCs, including PCE and TCE” on the Site. (AR 2192.) Golder “performed a detailed review of documents including hazardous material reporting forms and business plans, and Phase I and Phase II Environmental Site Assessments and site investigations.” (AR 2192.) Golder issued its technical memorandum on March 31, 2020 (Golder Report) and shared it with Respondent. (AR 2192.) 

In describing operation activities at the Site, the Golder Report states:

Benjamin Moore used the Site to manufacture, package, and store latex and non-chlorinated solvent-based coatings from 1953 to January 2002. During the 1950s and 1960s, Benjamin Moore manufactured alkyd resins in open, subsurface pits in the 3,500 square-foot storage shed. The 6,000-gallon UST contained vinyl acetate used for alkyd resin manufacturing. The vinyl acetate from the UST was conveyed via a below grade pipe (approximately 2-feet bgs) south of the tank and then above grade to a resin reactor in the storage shed. A 2,500-gallon spill retention sump or clarifier located west of the storage shed was used to contain wastewater generated during washing of the resin manufacturing equipment. The resin reactor was used through the early 1980s. The UST was abandoned in place and filled with a concrete slurry in 1983. The clarifier was also abandoned in place and filled with concrete (Environ 1999 and 2003). The UST was subsequently removed from the Site in 2003 (Environ 2003).

Paint production was primarily conducted in the northern section of the 50,000 square foot paint manufacturing and office building where there were five mixing tanks of various sizes. Raw materials were either piped into the mixing tanks or poured directly into them. After mixing, the paint was piped to letdown tanks ranging in size from less than 500 gallons to 4,000 gallons. The number of letdown tanks above 500 gallons were four 1,000-gallon tanks, three 2,000-gallon tanks, and one 4,000-gallon tank. A laboratory located at the northeast corner of the building was used for quality assurance and quality control testing. The paints were then transferred to a holding tank and then dispensed into paint containers. The containers were then labeled and stored pending offsite shipment. (AR 2194.)

In summarizing Terracon’s 2002 environmental assessments, the Golder Report advised:

VOCs, PCBs, and metals were detected at concentrations below their respective screening levels. Additionally, no chlorinated solvents such as TCE and PCE were detected in any of the samples collected. A soil sample collected from boring B-10 (located directly north of the former UST location) at a depth of 35 feet below ground surface (ft bgs) had a detected concentration of TPH (gasoline range) of 780 milligrams per kilogram (mg/kg), which was above its screening level of 500 mg/kg (Terracon 2002a, b). With the elevated concentration of TPH (gasoline range) in the sample collected near the UST area, the tank was recommended to be removed. (AR 2198.)

In summarizing the 2003 Environ assessment, the Golder Report informed:

VOC results were compared to industrial PRGs and TPH was compared to the Water Boards guidelines for evaluating fuel contamination in soils. VOCs and TPH were detected, including PCE (B-2-19 of 46 µg/kg and P-1-4 of 16 µg/kg), in the soil samples collected beneath the former UST and associated piping. However, the detected concentrations of TPH and VOCs were below their respective screening levels. . . . The detected PCE concentrations were significantly lower than the industrial PRG of 3,400 µg/kg and was also more stringent Tier 1 Environmental Screening Level of 80 µg/kg established by the San Francisco Regional Water Quality Control Board. (AR 2199.)

Based on its review, Golder opined, in part:

With no detections of PCE above the laboratory reporting limits (from 4 µg/kg to 120 µg/kg) in any of these samples and no other detects of chlorinated solvents at the Site, the extent of PCE at the Site is limited to just within sample locations B-2-19 and P-1-4. Therefore, PCE has been delineated laterally and vertically at the Site. Figure 3 shows the sample locations near the UST area and their respective PCE concentrations.  With no known uses of chlorinated solvents at the Site, the removal and case closure of the UST, no significant impacts identified during the site investigations in areas that were identified to potentially have environmental issues, and the detected PCE concentrations in the two soil samples were well below PRGs and are delineated, further investigations at the Site are not warranted at this time.  (AR 2199-2200.)

The record also includes a PowerPoint presentation prepared by Golder, dated October 14, 2020. (AR 2239.001.) Respondent viewed Golder’s presentation. (Reply 11:20-22 [“Golder Presentation to Regional Board”].)  Among other information, Golder’s presentation includes a Regional Groundwater Flow and Site Map. (AR 2239.003.)

Additional Record Evidence of “Suspected Discharge” from Site

The following record evidence is either cited in the Order or in Respondent’s Opposition in support of Respondent’s findings under section 13267.

2004 LandAmerica Report

In or about 2004, environmental consultant LandAmerica Assessment Corporation conducted a Phase I Environmental Site Assessment of the Site. LandAmerica issued its report to its client, Burnham Capital Markets, on December 14, 2004. (AR 822-1171.) LandAmerica did not perform subsurface exploratory drilling or sampling. (AR 830.) Based on its review of records and other information, including the reports summarized above, LandAmerica concluded there was no evidence of “recognized environmental conditions” on the Site, except in relevant part: “The Property was previously owned by Benjamin Moore & Company and utilized for the manufacturing and storage of paint materials and solvents. Subsequent environmental activities at the Property included the removal of an underground storage tank and associated soil sampling.” (AR 826.) LandAmerica recommended “Final closure documentation of the former UST be obtained from Los Angeles County Department of Public Works.” (AR 827.)

The LandAmerica report also advised: “Based upon topographic map interpretation and review of previous environmental reports, groundwater flow beneath the Property is inferred to be in a south/southwesterly direction.” (AR 826.) 

Department of Toxic Substances Control (DTSC) Waste Manifest

The record also includes “DTSC Waste manifest tracking records” for Petitioner. (Index No. 43; AR 1911.)  Petitioner’s “generator” identification number is listed on the manifest. (See AR 348-349, 1911.)  The manifest states waste containing 0.126 and .504 tons of PCE were generated at the Site in 1999 and 2000, and 0 tons of such waste in each year from 1993-1998 and 2002-2003. (AR 1911; see also AR 1935.)[3]  The DTSC manifest is not cited in the Order but rather in Respondent’s Opposition. (See Opposition 22:11-14.)

2020 New York Post Article

On or about June 9, 2020, the New York Post published an article entitled “Lawsuit accuses paint company Benjamin Moore of ‘burying hazardous’ waste.” (AR 2237.) The article reports in 2001, Paul Sangillo, a former deputy general counsel for Petitioner, “obtained testimony . . . of the alleged dumping.” (AR 2237.) Sangillo filed suit in New Jersey alleging he was fired after he requested outside counsel draft an opinion letter related to a telephone call with a whistleblower employee. (AR 2237.)

Investigation Order No. R4-2021-0069

On June 1, 2021, Respondent issued the Order.  The Order states:

The Los Angeles Water Board has evidence from the Reports and other information in the case file for the Site that indicate there has been a discharge of waste at or from the Site that could affect the quality of waters of the State.  The evidence supporting this include:

a. The Closure Report, dated August 28, 2003, documented the removal of a 6,000-gallon UST used for storing vinyl acetate liquid. The UST was abandoned in-place filled with cement slurry in 1989. Removal activities included collecting two confirmation soil samples from the bottom of the excavation, soil boring SB-1 and B-2 at 17 feet (ft.) below ground surface (bgs). Due to odor and discoloration of the soil in the UST cavity, a deeper soil sample was also collected from boring B-2 at 19 ft. bgs, and a sidewall soil sample was collected at 12 ft. bgs (SW-1-12). Soil sample B-2-19, the deeper soil sample collected at 19 ft. bgs at the B-2 location, contained 46 micrograms per kilogram (µg/kg) of tetrachloroethene (PCE). No deeper soil samples were collected. Soil impacts in the area of the UST has not been delineated.

b. Other VOCs, such as ethylbenzene, toluene, and xylenes were detected in soil at 300 µg/kg, 210 µg/kg, and 930 µg/kg, respectively. Strong paint/solvent odors were noted in a soil boring during the collection of soil samples.           

c. The Environmental Assessment Report, dated November 1999, prepared by Environ, included a Site map showing the following areas of concern (AOCs): a solvent storage warehouse, a storage shed, a bermed drum storage area, a clarifier, three tank farms, a loading dock, a fire suppression above-ground storage tank, and a rail road spur into the Site. All these AOCs have not been fully assessed and are known to be areas where contamination may have occurred.

d. Past site usage/operations noted that paint resins were manufactured in open,

subsurface pits located in the current storage shed during the 1950s through the 1960s.

e. A New York Post article alleged that Benjamin Moore “illegally buried hazardous

waste” at the Site in 2001, as part of the decommissioning of its facility “and then tried to hide evidence of its involvement.” The article indicates that these allegations were made against Benjamin Moore in a lawsuit by its former in-house lawyer, Mr. Paul Sangillo, whom the Los Angeles Water Board was in contact with regarding the Site. (AR 2244-45.)

The Order directs Petitioner and Garfield to provide detailed information regarding waste buried at the Site during the decommissioning of Petitioner’s facility in 2001. The Order also requires Petitioner and Garfield to submit a work plan for a complete Site assessment. (AR 2245.)

The Order also makes findings addressing the burdens and expense of the action required of Petitioner:

The burdens, including costs, of these reports bear a reasonable relationship to the need for the reports and the benefits to be obtained from the reports. The information is necessary to fully assess all areas of concern at the Site, to delineate the full extent of contaminants in the subsurface environment of the Site, and to assure adequate cleanup of the Site, if necessary, and to assure that discharges of waste that could impact water quality and human health will be addressed. These activities all protect human health and the environment. The cost of the technical report required by this Order may range between $50,000 to $800,000. . . .” (AR 2245-46.)

Writ Proceedings

On March 2, 2022, Petitioner filed its verified petition for writ of mandate. Respondent answered the petition.

On December 16, 2022, Petitioner filed its motion to augment the administrative record with multiple exhibits, including DTSC’s Screening Assessment, dated April 20, 2020.  Respondent opposed the motion and included a declaration of Majd Nima, who certified the administrative record. On April 21, 2023, after a hearing, the court denied Petitioner’s motion to augment the record.

On June 2, 2023, Petitioner filed its Opening Brief in support of the petition as well as the Declaration of Raymond N. Pomeroy II.[4] On July 3, 2023, Respondent filed its opposition. On August 3, 2023, Petitioner filed its reply and RJN. On August 23, 2023, Respondent filed an opposition to the Petitioner’s RJN, and on August 30, 2023, Petitioner filed a reply to Respondent’s opposition to Petitioner’s RJN. 

STANDARD OF REVIEW 

Petitioner seeks relief from the court pursuant to section 1330 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. . . .  (§ 13330, subd. (e).)

Under Code of Civil Procedure section 1094.5, subdivision (b), the issues for review of an administrative decision are: 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 respondent 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 independent judgment review, “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.)

ANALYSIS 

Respondent Had Jurisdiction to Issue the Order

Petitioner contends Respondent proceeded without or in excess of jurisdiction “[b]ecause there is no evidence of a discharge at the Site which could impact groundwater quality; because the Order does not allege any suspected discharge (which would lack evidence even if it were alleged); and because the costs to prepare the reports bear no reasonable relationship to the need for the reports, . . . .” (Opening Brief 16:20-23.) That is, Petitioner contends Respondent acted in excess of its jurisdiction because (i) Respondent did not make sufficient findings or (ii) the evidence does not support Respondent’s findings. 

Petitioner does not demonstrate Respondent lacked jurisdiction to issue the Order. Under the Porter-Cologne Act, Respondent has authority to “investigate the quality of any waters of the state within its region.” (§ 13267, subd. (a).) In its water quality investigations, Respondent “may require that any person who has discharged, discharges, or is suspected of having discharged or discharging . . . waste within its region . . . that could affect the quality of waters within its region shall furnish, under penalty of perjury, technical or monitoring program reports which the regional board requires.” (§ 13267, subd. (b).) Section 13267 “makes clear that in order to require a discharger to provide [a regional water quality board] with any technical report, the [b]oard must (1) provide ‘a written explanation with regard to the need for the reports’; and (2) ‘identify the evidence that supports requiring that person to provide the reports.’”   (Sweeney, supra, 61 Cal.App.5th at  1114.)

The Order provides a written explanation of the need for the reports and identifies the evidence Respondent relied upon to require Petitioner to provide the reports. The Order also explains Respondent’s conclusion “[t]he burdens, including costs, of these reports bear a reasonable relationship to the need for the reports and the benefits to be obtained from the reports.” (AR 2243-46.) Accordingly, Respondent acted within its jurisdiction—it made the findings required by section 13267.

Petitioner’s jurisdictional challenge also contends the “2010 determination made by Respondent as incorporated in the Low Risk Closure Form and the Case Closure letter” proves there is no evidence to support the Order’s findings. (Opening Brief 15:26-16:1.) (The court addresses evidentiary issues infra.) To the extent Petitioner suggests the 2010 closure letter (that is, case closure) deprived Respondent of jurisdiction to issue the Order under section 13267, the court disagrees. Respondent issued the 2010 closure letter for the Site pursuant to Health and Safety Code section 25296.10. (AR 1175.)  Nothing in Health and Safety Code section 25296.10 or related statutes or regulations shows a legislative intent to deprive Respondent of its investigative authority in section 13267, part of a different statutory scheme. 

Further, as discussed infra, the regulations for Health and Safety Code section 25296.10, the Low Risk Closure Form, and the 2002-2003 Terracon and Environ Reports suggest Petitioner’s consultants and Respondent may not have needed to assess, and did not fully assess, PCE or TCE contamination for the vinyl acetate UST closure. (See e.g., Cal. Code of Regs. (CCR), tit. 23, § 2672, subd. (d)(2).) Furthermore, Respondent’s 2010 case closure only applied to the UST, not other potential environmental risks on the Site, including waste generated by the ASTs or other operational activities. Finally, the 2010 case closure did not address chemicals or waste buried on Site. 

The court finds Respondent had jurisdiction to issue the Order and rejects Petitioner’s claim to the contrary.

Respondent’s Order Is Supported by the Findings  

Petitioner contends Respondent’s findings do not support the Order because “[t]he only relevant findings contained in the Order, consist of (i) a recitation that [Petitioner] conducted paint manufacturing operations at the Site; (ii) various 20-year old environmental reports used by Respondent to support its conclusions in the Low Risk Case Review Form and the Case Closure letter that the Site was not impacting area groundwater; and (iii) a New York Post Article alleging activities that pre-dated the aforementioned environmental investigations.”  (Opening Brief 17:2-6.) Petitioner also contends the 2010 case closure categorically bars Respondent from making the findings of discharge or “suspected” discharge required by section 13267.  (Opening Brief 16:8-9, 18:6-15.) Petitioner’s arguments are unpersuasive. 

As a preliminary matter, the court rejects Petitioner’s argument (noted above) that Respondent’s findings are deficient because “the Order does not allege any suspected discharge.”  (Opening Brief 16:21.) “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 Order states, at paragraph 3, Respondent “has evidence from the Reports and other information in the case file for the Site that indicate there has been a discharge of waste at or from the Site that could affect the quality of waters of the State.” (AR 2244 [emphasis added].) Respondent’s use of the word “indicate” suggests there is evidence of a discharge. (See https://www.merriam-webster.com/indicate [“sign, symptom”].)

Moreover, Respondent’s general finding must be read in the context of paragraph 1 and paragraphs 3.a. through 3e., summarizing the reasons Respondent suspects Petitioner discharged certain waste from the Site.

Paragraph 1 states Respondent is investigating “potential sources of discharges of waste including, but not limited to, metals, volatile organic compounds (VOCs), including trichloroethene (TCE) and tetrachloroethene (PCE)” in City of Commerce, where the Site is located. (AR 2243 [emphasis added].) Paragraph 1 also explains Petitioner “occupied the Site from 1953 to 2002”; Petitioner’s “operations included manufacturing paint, latex, and solvent-based coatings”; and “several batch mixing, letdown, and holding tanks, three aboveground storage tank (AST) containment areas consisting of 22 ASTs for bulk storage of raw materials, one 6000-gallon underground storage tank (UST) for paint resin storage, a drum storage area, a 2500-gallon spill retention/clarifier tank, a wash rack enclosure, and other facilities . . . were part of [Petitioner’s] operations.” (AR 2243 [emphasis added].) 

In Paragraphs 3.a. through 3.e. of the Order, Respondent summarizes evidence informing that a soil sample taken during removal of the UST contained PCE and also “strong paint/solvent odors were noted in a soil boring during the collection of soil samples.” (AR 2245.) Respondent advises deeper soil samples were not collected when the UST was removed and that the soil impacts in the area of the UST had not been fully delineated.  (AR 2244.) Further, Respondent cites evidence of other areas of concern, which had not been “fully assessed and are known to be areas where contamination may have occurred.” (AR 2245.) In addition, “Past site usage/operations noted that paint resins were manufactured in open, subsurface pits located in the current storage shed during the 1950s through the 1960s.” (AR 2245.) Finally, Respondent advises it “was in contact with” Paul Sangillo, a former in-house lawyer who, according to a newspaper article, alleged Petitioner “ ‘illegally buried hazardous waste’ at the Site in 2001, as part of the decommissioning of its facility ‘and then tried to hide evidence of its involvement.’  ”  (AR 2245 [emphasis added].)

Based on the foregoing, the court concludes Respondent’s findings support the Order.  The Order is reasonably interpreted to require Petitioner to submit a report to Respondent based upon evidence of a “suspected discharge” of waste from the Site. Respondent’s findings support its suspicion Petitioner’s former activities at the Site resulted in discharges of waste, including PCE and TCE. The Order also includes sufficient findings explaining the evidentiary basis upon which Respondent suspects Petitioner of discharging waste that “could affect the quality of waters within its region.” (§ 13267, subd. (b)(1).)

[Whether the weight of such evidence supports the findings is an issue separate from whether the findings support the decision. The court addresses the weight of the evidence infra.]

For the reasons mentioned earlier, and as further analyzed below, the court find the 2010 case closure does not categorically bar Respondent from making the findings of discharge or “suspected” discharge as set forth in section 13267. Petitioner’s arguments to the contrary are unpersuasive.

Respondent’s Findings Are Supported by the Weight of the Evidence

Petitioner challenges the sufficiency of the evidence used to support Respondent’s findings and Order.  Petitioner argues the administrative record contains no evidence of a discharge or suspected discharge of waste from the Site that could have affected the quality of waters in the region.

As noted earlier, the court exercises its independent judgment and determines whether the weight of the evidence supports Respondent’s findings and Order. (§ 13330, subd. (e); Code Civ. Proc., § 1094.5, subd. (c).)  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, supra, supra, 61 Cal.App.5th at 1112.) When a petitioner challenges “the sufficiency of the evidence, all material evidence on the point must be set forth and not merely [its] own evidence.” (Toigo v. Town of Ross (1998) 70 Cal.App.4th 309, 317.) “[T]he challenger must explain why that evidence is insufficient to support that finding.” (Shenouda v. Veterinary Medical Bd. (2018) 27 Cal.App.5th 500, 513.) 

              Statutory Construction of Section 13267

The parties present different interpretations of the phrase “suspected discharge” as used by the Legislature in section 13267. “When the language of a statute is clear, we need go no further. However, when the language is susceptible of more than one reasonable interpretation, we look to a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction, and the statutory scheme of which the statute is a part.” (Nolan v. City of Anaheim (2004) 33 Cal.4th 335, 340.) When interpreting a statute, the court must construe the statute, if possible to achieve harmony among its parts. (People v. Hull (1991) 1 Cal. 4th 266, 272.)   

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.)[5]

Respondent has authority to order reports from “any person who . . . is suspected of having discharged or discharging . . . waste within its region . . . that could affect the quality of waters within its region . . . .” (§ 13267, subd. (b)(1).) “In requiring those reports, the regional board . . . shall identify the evidence that supports requiring that person to provide the reports.” 

(§ 13267, subd. (b)(1).) “Evidence” is defined in section 13267 as “any relevant evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of the evidence over objection in a civil action.” (§ 13267, subd. (e).)

Reading these provisions together, the statute’s plain language demonstrates to order reports under section 13267, Respondent is not required to prove a discharge occurred or a suspected discharge actually affected water quality. Rather, Respondent need only “suspect” a discharge of waste occurred and that such discharge “could affect the quality of waters within its region.” (§ 13267, subd. (b)(1) [emphasis added].) 

While the burdens of Respondent’s demand for reports must “bear a reasonable relationship to the need for the report and the benefits to be obtained from the reports” (see § 13267, subd. (b)(1)), the statute does not place a heavy burden on Respondent to delineate how the “suspected” discharge occurred. Rather, the purpose of the statute is to enable Respondent to determine if the suspected discharge occurred and, if it did, whether it is impacting water quality. 

This interpretation is supported both by reference to the statutory scheme and legislative history.  Whereas section 13267 authorizes Respondent to investigate “suspected” dischargers, sections 13304 and 13305 lack that term and instead authorize Respondent to impose a cleanup and abatement order (CAO) on a person “who has discharged” or who “threatens” to cause discharges of waste. If commencing an investigation under section 13267 required evidence sufficient to impose a CAO under section 13304 and 13305, there would be no need for section 13267. “[I]nterpretations which render any part of a statute superfluous are to be avoided.” (Young v. McCoy (2007) 147 Cal.App.4th 1078, 1083.) 

The legislative history shows the term “suspected” was added to section 13267 in 1992 to “enhance the Regional Water Quality Board’s ability to determine if spills and leaks have occurred as well as the extent of severity.” (Respondent RJN Ex. A at 5, ¶ 1.) Section 13267’s history shows the legislature added the term “suspected” to the statute in 1992 to “broaden[] [the statute] to clearly include” not only “dischargers” but also entities “who may have discharged.” (Ibid.)  As the 1992 bill analysis explains, the amendment was needed because “[w]ithout the ability to require a past or potential discharger to investigate a site where a water quality problem is suspected, Regional Water Quality Boards are often unable to find any responsible person to perform the investigation.”  (Ibid.)   

The court applies this interpretation of section 13267 to the record evidence.

The Weight of the Evidence Supports Respondent’s Suspicion Petitioner Discharged Waste from the Site that “Could Affect” the Quality of Water

Exercising its independent judgment on the administrative record, the court finds the weight of the evidence supports Respondent’s suspicion Petitioner discharged waste from the Site that “could affect” the quality of water in the region. The weight of the evidence also supports Respondent’s decision Petitioner should “furnish, under penalty of perjury, technical or monitoring program reports” to assist Respondent in investigating the suspected discharges. (§ 13267, subd. (b)(1).)

Among other relevant evidence, the following evidence supports Respondent’s conclusions:

In or about 2015, Respondent detected increased levels of PCE and TCE at two wells located near the Site. Concerns about increased levels of PCE and TCE trigged Respondent’s water quality investigation. (See AR 1634, 1630-31; see also AR 1910, 1910.001.) As Petitioner acknowledges, a graph in the well report for State Well 04L, the closest well to the Site, shows “PCE and TCE in well 04L have remained fairly consistently above the EPA’s Maximum Contaminant Level (MCL) since 2008.” (Reply 9:1-5; see AR 1910.)  Based on the court’s independent judgment, the graph also shows a trend upward in PCE and TCE levels at Well 04L from around 2006 until around 2015-2017. (AR 1910.)[6]  Significantly, Well 04L is directly adjacent to the northeastern corner of the Site. (AR 1631; see also 2239.003 [Golder’s Regional Groundwater Flow and Site Map].) Based on the close proximity of the well, as well as Petitioner’s former operation of a paint manufacturing facility, including with the use of solvents, it is reasonable for Respondent to investigate whether recent increases in PCE and TCE levels could be attributed to Petitioner’s former operations at the Site.

The record also contains a DTCS waste manifest record which reflects waste containing 0.126 and .504 tons of PCE was generated at the Site in 1999 and 2000, before Petitioner sold the Site to Garfield. (AR 1911; see also AR 1935.) Petitioner does not dispute the relevance of the evidence or the showing Petitioner generated some waste containing PCE at the Site. (See Pomeroy Decl. Ex. A at pp. 24 of 33.)  Petitioner does note Respondent’s Order does not cite the manifest in the Order. (Opening Brief 21:7-8.) Petitioner cites no authority, however, suggesting Respondent must cite all relevant evidence in its Order. 

Petitioner argues in reply “[t]he four actual waste manifests from 1999 and 2000 show only the legal disposal of third-party (Safety-Kleen) aqueous parts washer solution using a waste classification that would include PCE, but does not confirm PCE.” (Reply 5, fn. 2.)  Petitioner contends “the manifests show that the waste was a Safety-Kleen product, that was in the subject years batch tested (with other Safety-Kleen client solvents), and classed accordingly, meaning that the solvent used at the Site may not have contained any PCE.” (Reply 10:21-23.)  Petitioner asserts “at most, it can be said that [Petitioner] generated a half a ton of aqueous parts washer waste which may have contained a maximum of 10% (or 100 lbs.) of PCE.” (Reply 10:21-23.) 

Petitioner’s arguments are not supported with citations to the administrative record.  Petitioner has not cited any operational records or testimony of an employee explaining how Petitioner’s operations generated PCE in 1999-2000. The court cannot determine from Petitioner’s only citation to the record (AR 1933) that, contrary to the manifest, Petitioner did not generate PCE on the Site in 1999 and 2000. (Reply 10:13-16. See AR 1933.) Regardless of the source of the PCE, it is relevant to Respondent’s investigation that Petitioner generated PCE on Site prior to closure of Petitioner’s paint manufacturing facility. 

The 1999 Environ report, the 2002 Terracon reports, the 2003 Environ report, and the 2004 LandAmerica report all contain information supporting Respondent’s suspicion of a discharge from the Site that could impact water quality in the region. Thus, as found by Respondent, the 2003 Environ report identified PCE in certain soil samples at shallow depths of 19 feet below ground and 4 feet below ground.  (Opening Brief 7:23-8:1. See AR 776, 787, 802.) Although the PCE test results were below applicable screening levels, Environ did not conduct a comprehensive investigation of PCE or TCE at the Site, including sampling from lower soil depths. (See AR 2244 ¶ 3.a and AR 772-821.) The weight of the evidence supports Respondent’s finding that other VOCs, such as ethylbenzene, toluene, and xylenes were detected at low levels in soil samples and “strong paint/solvent odors were noted in a soil boring during the collection of soil samples.” (See AR 420, 731, 447-448, 1174.001, 774.)

As described in the various environmental assessment reports, and as found by Respondent, Petitioner’s operations suggest the possibility of discharges of waste that could impact water quality. For example, there is evidence Petitioner stored drummed hazardous waste on asphalt without secondary containment (AR 333), stored a variety of solvents in 23 above ground storage tanks (AR 844), and failed to keep material safety data sheets outlining the cleaning solvents it used to maintain its equipment. (AR 334.)

The weight of the evidence also supports Respondent’s finding:

The Environmental Assessment Report, dated November 1999, prepared by Environ, included a Site map showing the following areas of concern (AOCs): a solvent storage warehouse, a storage shed, a bermed drum storage area, a clarifier, three tank farms, a loading dock, a fire suppression above-ground storage tank, and a railroad spur into the Site. All these AOCs have not been fully assessed and are known to be areas where contamination may have occurred.  (AR 2244 at ¶ 3.c; see AR 337 [site plan]; see also AR 333-345 [description of Site and operations, including chemical use and storage].) 

Petitioner’s February 2016 response to Respondent’s questionnaire also supports Respondent’s findings. In particular, Petitioner did not provide a complete or direct response to Sections VI and VII of the questionnaire asking that Petitioner identify all chemicals or substances used, stored, or disposed of at the Site including VOCs such as TCE and PCE; and also to identify the generated waste and its composition, with the approximate quantity disposed each month. (AR 1803.)  Rather, Petitioner stated: “We sold the site on January 22, 2002. We ceased operations prior to the sale. See enclosed env. Site assessment reports.” (AR 1803.) Petitioner has not demonstrated the reports Petitioner enclosed provided a complete response to Respondent’s unambiguous questions. Moreover, Respondent’s questionnaire directed Petitioner to provide a response about its waste generation, under penalty of perjury. Petitioner failed to provide such a response.

Notably, in response to Respondent’s questionnaire, Petitioner could have provided information about its waste generation that might explain the manifest showing the Site generated PCE in 1999 and 2000.  A complete, verified response to Sections VI and VII of the questionnaire also could have provided relevant information about the types of solvents used on Site and whether discharges occurred relevant to Respondent’s investigation. 

In reply, Petitioner argues it “did not become aware of the DTSC waste matrices until it obtained and reviewed the DTSC CERCLA Pre-Screening Assessment, which was not publicly available until November 2021.” (Reply 10:5-7, and fn. 10.) It is unclear how or why Petitioner would not know of the waste it generated at the Site in 1999 and 2000 or could not obtain the waste manifests pertaining to its own operations.

Finally, there is the June 2020 newspaper article discussed earlier. (AR 2237.) Section 13267 defines “evidence” as “any relevant evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of the evidence over objection in a civil action.”  (§ 13267, subd. (e).)  While the newspaper article is hearsay (multiple times), it summarizes the allegations of a lawsuit that are directly relevant to Respondent’s investigation.  Although the newspaper article is entitled to little, if any, evidentiary weight given the hearsay and lack of corroboration,[7] the allegations in the article are consistent with Respondent’s findings. 

The 2010 Case Closure Is Not Dispositive

To challenge Respondent’s findings, Petitioner relies heavily on Respondent’s case closure letter of April 2010. Exercising its independent judgment, the court concludes that the 2010 case closure does not undermine Respondent’s findings and Order.     

Respondent issued the 2010 case closure letter pursuant to Health and Safety Code section 25296.10, which provides: “[e]ach owner, operator, or other responsible party shall take corrective action in response to an unauthorized release in compliance with this chapter and the regulations adopted pursuant to Section 25299.3.” (§ 25296.10, subd. (a).) The statute also provides: “[a]ny corrective action conducted pursuant to this chapter shall ensure protection of human health, safety, and the environment.” (§ 25296.10, subd. (b).) If Respondent finds the corrective action complies with these provisions of the Health and Safety Code, Respondent must issue a “uninform closure letter,” which states in relevant part:

Based on information in the above-referenced file and with the provision that the information provided to this agency was accurate and representative of site conditions, this agency finds that the site investigation and corrective action carried out at your underground storage tank(s) site is in compliance with the requirements of subdivisions (a) and (b) of Section 25296.10 of the Health and Safety Code and with corrective action regulations adopted pursuant to Section 25299.3 of the Health and Safety Code and that no further action related to the petroleum release(s) at the site is required. (§ 25296.10, subd. (g); AR 1175.)

The emphasized statutory language demonstrates the case closure letter merely confirms compliance with Health and Safety Code section 25296.10 to the extent the information given to the agency “was accurate and representative of site conditions.”  Thus, a case closure letter does not address information about waste discharges not presented to the agency; information that did not exist at the time of the case closure; or information about operational activities unrelated to the closure of the UST at issue. The statutory language also suggests a case closure letter under Health and Safety Code section 25296.10, subdivision (g) will generally only pertain to release of petroleum products. 

As noted by Respondent, section 2672 of title 23 of the California Code of Regulations, adopted pursuant to Health and Safety Code section 25299.3, also informs on the relevance of a case closure letter. California Code of Regulations at title 23, section 2672 states in relevant part: “The owner or operator of an underground storage tank being closed pursuant to this section shall demonstrate to the satisfaction of the local agency that an unauthorized release has not occurred. . . . Soils shall be analyzed in accordance with section 2649 for all constituents of the previously stored hazardous substances and their breakdown or transformation products.”  (§2672, subd. (d)(3).) 

Here, vinyl acetate was the only known compound stored in the former UST. (AR 773-774.)  Neither party has cited to evidence in the record explaining whether PCE and TCE are constituents of vinyl acetate. In a footnote, Petitioner cites to extra-record evidence and states: “Vinyl acetate is not a petroleum product, and does contain PCE or TCE.”  (Opening Brief 6, fn. 4, citing https://pubchem.ncbi.nlm.nih.gov/compound/Vinyl-acetate.)[8] The extra-record evidence cannot be considered by the court. (Code Civ. Proc., 1094.5, subd. (e).)

In any event, regardless of whether PCE and TCE are constituents of vinyl acetate, Respondent’s form and the 2010 case closure letter do not demonstrate Petitioner conducted a comprehensive environmental assessment for the presence of PCE and TCE on the Site. A table in the form titled “Maximum Documented Contaminant Concentrations” specifies soil measurements for multiple contaminants, including findings of “Non-detect,” but the table does not show any soil analysis for PCE or TCE. The form states: “In June 2003, one 6,000-gallon vinyl acetate underground storage tank (UST) was removed from the site. Soil samples were collected and maximum concentrations of 5 mg/kg TPHg, 700 mg/kg TPHd, and 0.01 mg/kg benzene were detected in the soil samples. All the other fuel constituents were ND (results seen in laboratory report dated July 2003 ).” (AR 1174.002.) 

The form also states Respondent’s staff recommended granting a low-risk closure because, among other reasons, “the source of contamination has been abated as the UST had been removed.” (AR 1174.002.) In context, these statements suggest Respondent did not make a determination from the form whether the Site contained PCE or TCE contamination. Further, the form shows the case closure only pertained to the UST, and Respondent did not consider the risk of contamination at other parts of the Site. The April 14, 2020 case closure letter is simply the statutory form letter quoted above.  (AR 1175.) It provides no evidence of a comprehensive assessment of the presence of PCE or TCE in connection with the UST, specifically, or the Site, generally.[9]

Exercising its independent judgment, the court does not find the form or the 2010 case closure letter to be persuasive evidence of the absence of TCE and PCE on the Site, or the absence of discharges of waste from the Site related to Petitioner’s operations.  Further, the court finds the form and 2010 case closure letter do not bar Respondent from later finding evidence of a “suspected discharge” of waste requiring further investigation under section 13267.

Petitioner Has Not Cited Dispositive Hydrologic or Hydrogeologic Information

Petitioner argues Respondent has improperly required Petitioner to “prepare a site investigative work plan to prove that the Site was not causing or contributing to the upgradient PCE and TCE in groundwater; an impossibility as water does not flow uphill.” (Opening Brief 10:27-11:1 [emphasis in original].)  Petitioner asserts, without record citation, “[i]n hydrology, upgradient means a location that is the source groundwater for another location, similar to upstream” and “upgradient data is not evidence of anything that would originate from or be caused at the Site.” (Opening Brief 5, fn. 2.)  Petitioner has not cited any expert hydrological report or opinion in support of these statements. 

Petitioner correctly notes Respondent’s November 23, 2015 letter stated one of the wells (Well 06-01) “is located approximately 0.25 miles north (upgradient) of the” Site and the other well (Well 04L) “is located adjacent to the northeastern corner” of the Site. (AR 1630-31.)  In reply, Petitioner also cites statements from the 1999 Environ report, the 2004 LandAmerica report, and the Golder PowerPoint presentation that the environmental consultants inferred groundwater flowed in a “south/southwesterly direction.”  (Reply 11:20 [citing 338, 826, and 2239.002].)

Exercising its independent judgment, the court concludes Petitioner has not demonstrated that waste discharges on the Site could not impact groundwater in the area, including at Well 04L directly adjacent to the Site, as a result of groundwater flow. Petitioner has not cited any hydrology study in the record showing the direction of groundwater or providing an expert opinion about whether waste discharges from the Site could impact Well 06-01 or Well 04L. 

The 1999 Environ report, 2004 LandAmerica report, and the Golder PowerPoint presentation do not provide any comprehensive or clear expert opinions about the hydrology at the Site.  Environ simply cites its “previous experience,” without elaboration (AR 338), while LandAmerica “infers” groundwater flow based on “topographical map interpretation and review of previous environmental reports.”  (AR 826.) Based on the court’s review, the Regional Groundwater Flow and Site Map in the Golder presentation suggests groundwater could possibly flow from the Site to Well 04L. (AR 2239.003.) Well 04L is directly adjacent to the Site and the groundwater flow direction “arrows” in the map do not rule out the possibility of discharges from the Site impact Well 04L. Thus, in the absence of an expert hydrology report, Environ, LandAmerica, and Golder do not undermine Respondent’s findings.

The court agrees with Petitioner that Respondent’s November 23, 2015 letter, as well as Golder’s Regional Groundwater Flow and Site Map, raise some question about whether discharges from the Site could impact a well 0.25 miles “upgradient.” However, the letter did not provide, and was not intended to provide, any expert opinion about the hydrology of the Site or the area. Further, Petitioner cites no expert hydrological evidence. Finally, Respondent’s letter did not indicate the adjacent Well 04L was “upgradient” of the Site. Exercising its independent judgment, the court finds insufficient evidence to conclude discharges from the Site could not impact Well 06-01 or Well 04L.

Based on the foregoing, the court finds that the weight of the evidence supports Respondent’s finding it “has evidence from the Reports and other information in the case file for the Site that indicate there has been a discharge of waste at or from the Site that could affect the quality of waters of the State.” (AR 2244.) Petitioner has not met its burden of demonstrating a prejudicial abuse of discretion in Respondent’s findings or Order.  (Code Civ. Proc., § 1094.5, subd. (b).)

Petitioner’s Arguments Regarding Certification of the Record and the DTSC Pre-CERCLA Screening Assessment

Pomeroy’s declaration largely consists of extra-record evidence related to alleged deficiencies with Respondent’s certification of the record. (See Pomeroy Decl. ¶¶ 1-2 and 4-15.)  Petitioner has not moved to augment the record with this extra-record evidence. (See Code Civ. Proc.,

§ 1094.5, subd. (e).) Further, Petitioner did not move for reconsideration of the court’s order denying its motion to augment the record, and it has not brought a renewed motion to augment or correct the record as a result of alleged deficiencies with Respondent’s certification.  For these reasons, the court disregards the remainder of Pomeroy’s declaration and all of Petitioner’s legal arguments based on it and/or related to certification of the record.  (Opening Brief 21:8-23:18; Reply 13:10-15:12.) 

The court also notes Petitioner has not developed a persuasive argument that the DTSC’s Pre-CERCLA Screening Assessment, dated April 20, 2020, materially undermines Respondent’s findings. (See Opening Brief 21-23.) Even if Petitioner had shown the record should be augmented with that document (it did not), the court would reach the same result in weighing the evidence. 

Reasonable Relationship Between the Burden of the Reports and the Need For and Benefits From the Reports

Section 13267 provides: “The burden, including costs, of these reports shall bear a reasonable relationship to the need for the report and the benefits to be obtained from the reports.” As explained by the Court of Appeal, “[S]ection 13267 requires the burden of conducting site investigations and producing reports to be reasonable in light of the benefits to be obtained. But section 13267 contains no requirement that a [Cleanup and Abatement Order] include any type of weighing or cost-benefit analysis.” (Sweeney, supra, 61 Cal.App.5th at 1115.) 

Here, in compliance with section 13267 and Sweeney, Respondent’s Order sets forth the following findings:

The burdens, including costs, of these reports bear a reasonable relationship to the need for the reports and the benefits to be obtained from the reports. The information is necessary to fully assess all areas of concern at the Site, to delineate the full extent of contaminants in the subsurface environment of the Site, and to assure adequate cleanup of the Site, if necessary, and to assure that discharges of waste that could impact water quality and human health will be addressed. These activities all protect human health and the environment. The cost of the technical report required by this Order may range between $50,000 to $800,000. The technical report required by this Order is needed by the Regional Board to determine whether the Site is a source of discharges of waste, and to determine whether the subsurface soil conditions at the Site are causing or threatening to cause discharges of waste to waters of the State within the Central Groundwater Basin. (AR 2245-46.)

Petitioner does not persuasively discuss Respondent’s findings or demonstrate that those findings are unsupported by the evidence. (See Opening Brief 11-13, Sec. II.C [challenged findings].) Thus, Petitioner does not meet its burden of showing a prejudicial abuse of discretion in Respondent’s determination there is a reasonable relationship between the burden, including cost, of the reports and the need for the reports and the benefits to be obtained from the reports. (See Shenouda v. Veterinary Medical Bd., supra, 27 Cal.App.5th at 513 [under section Code of Civil Procedure section 1094.5 “the challenger must explain why that evidence is insufficient to support that finding”].)

Furthermore, exercising its independent judgment, the court concludes Respondent’s “reasonable relationship” finding is supported by the weight of the evidence. The first requirement of the Order is that Petitioner provide: “Detailed information on any waste buried at the Site during the decommissioning of [Petitioner’s] facility in 2001. The information must include the type, composition, and volume of the waste as well as the exact location(s) and depth of the buried waste and other relevant information.” (AR 2246.) Petitioner is the former owner and operator of the Site. Petitioner has cited no evidence to suggest complying with this part of the Order would be burdensome or costly.  Further, given the evidence of a suspected discharge from the Site during decommissioning, Respondent has identified an important need for this report and substantial benefits from it.

The second part of the Order requires Petitioner to prepare a “work plan for complete site assessment.”  The Order states the work plan shall address, but not be limited to, the following:

a.      All AOCs shall be assessed including, but not limited to, the former solvent storage area, the former drum storage area, the former clarifier areas, the former UST and AST areas, the former loading docks, the former and current railroad spurs, the fire suppression above-ground storage tank area, and any other area of potential concern.

b.      Soil and soil gas sampling locations shall be proposed at all AOCs and at stepout locations to fully assess the Site and completely define the extent of contaminants in soil and soil gas vertically and laterally. (AR 2246-47.)

This second part of the Order requires Petitioner to “submit” the work plan.  Petitioner has not cited any evidence that preparing the work plan would necessarily involve significant burden or expense. Indeed, it appears that Petitioner has already taken steps to comply.  (Pet. RJN Exh. A.) 

It is unclear whether the Order requires Petitioner to pay for an environmental/engineering firm to perform the work plan. Counsel may address the issue during argument.  However, even if the Order requires Petitioner to pay for the work plan to be completed, Petitioner has not developed an argument that the burden, including cost, is unreasonable compared to the needs for and benefits from the reports.

In reply, Petitioner briefly discusses the “reasonable relationship” issue in context of the June 15, 2023 letter. (Reply 11:24-12:10.) Although the letter amended the requirements of the Order, Petitioner does not show any of the amendments are dispositive as to whether the burdens of the reports bear a reasonable relationship to the need for and benefits of the reports.

In reply, Petitioner states “a phased or iterative investigative approach would indeed be consistent with State Water Board practice. . . .” (Reply 12:3-4.) The court generally agrees a “phased or iterative investigative approach” may be preferable.  However, on this briefing, Petitioner has not shown Respondent’s investigation and Order are inconsistent with such approach. For instance, Respondent asked Petitioner to respond to the questionnaire before ordering further reports. The Order itself requires Petitioner to provide detailed information and submit a work plan before soil sampling is performed.

Based on the foregoing, the court concludes the weight of the evidence supports Respondent’s finding the “[t]he burdens, including costs, of these reports bear a reasonable relationship to the need for the reports and the benefits to be obtained from the reports.” 

CONCLUSION 

The petition is denied.

IT IS SO ORDERED. 

September 6, 2023                                                                                                                                                     

________________________________ 

Hon. Mitchell Beckloff  

Judge of the Superior Court