Judge: Mitchell L. Beckloff, Case: 22STCP03736, Date: 2024-01-17 Tentative Ruling

Case Number: 22STCP03736    Hearing Date: January 17, 2024    Dept: 86

WESTCHESTER INDUSTRIAL TRACT v. LOS ANGELES REGIONAL WATER QUALITY CONTROL BOARD

Case Number: 22STCP03736

Hearing Date: January 17, 2024

[Tentative]       ORDER DENYING PETITION FOR ADMINISTRATIVE MANDAMUS

Petitioner, Westchester Industrial Tract, seeks an order directing Respondent, Los Angeles Regional Water Quality Control Board (the Board) to remove Petitioner as a named “discharger” in a cleanup and abatement order (CAO) issued by Board on May 16, 2022. The CAO applies to real property located at 6341 Arizona Circle in Los Angeles, CA (the Site). 

The Board opposes the petition.

Petitioner’s request for judicial notice (RJN) of Exhibits A and B (amendments to Water Code section 13304)[1] is GRANTED. 

Petitioner’s RJN of Exhibits C, D, E, F, G (correspondence, articles of organization, and a statement of information) is DENIED. The Board’s objections are sustained. The petition is governed by Code of Civil Procedure section 1094.5. (See § 13330, subd. (e).)

Generally, “a hearing on a writ of administrative mandamus is conducted solely on the record of the proceedings before the administrative agency.” (Toyota of Visalia, Inc. v. New Motor Vehicle Bd. (1987) 188 Cal.App.3d 872, 881.) Extra-record evidence may be admitted if, in the exercise of reasonable diligence, the relevant evidence could not have been produced or was improperly excluded at the hearing. (Code Civ. Proc., § 1094.5, subd. (e).) A request for judicial notice 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.) 

Petitioner acknowledges Exhibits C, D and E and were not before the Board and are not part of the administrative record. (RJN 4, fn. 1.) Petitioner states “Exhibits C, D, and E . . . were included in the record before the State Water Resources Control Board.” (Ibid.) However, the state board failed to act on Petitioner’s request for state board review and did not order Exhibits C, D and E to be made part of the record. (First Amended Petition (FAP) ¶ 4 and § 13320, subd. (b).)

As Petitioner has not demonstrated the requirements of Code of Civil Procedure section 1094.5, subdivision (e), including reasonable diligence and relevance, are met such that the administrative record is properly augmented with Exhibits C, D, E, F and/or G. Indeed, Petitioner makes no attempt to address the requirements of Code of Civil Procedure section 1094.5, subdivision (e) in its RJN.[2] 

The petition is DENIED.

BACKGROUND

Statutory Framework

The Board issued its CAO pursuant to the Porter-Cologne Water Quality Control Act (§ 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 [Tesoro]; 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.” (§ 13050, subd. (e).) Section 13304, subdivision (a) establishes a regional board's authority to issue a CAO 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.” (§ 13304, subd. (a).)

Site History

Petitioner owned the Site from 1958 to 1973. (AR 5, 13160-13161.) In 1962, Petitioner leased the Site to Burton Silver Plating Co. (Burton); Burton operated a metal plating facility at the Site until 1992. (AR 6-7, 12205-12210.) As part of its plating operations, Burton stored and used chemicals, including chlorinated solvents such as tetrachloroethylene (PCE) and trichloroethylene (TCE). (AR 6, 48, 11395-98.) In addition to the chlorinated solvents at use at the Site, wastes generated by Burton’s plating operations included acid solutions, alkaline solutions, clarified sludge, and cyanide solution. (AR 11395.) 

In 1973, Petitioner sold the Site to Real Party in Interest, Kitay Properties, a California partnership. (AR 5, 12188-89.) In or about 2011, Real Party in Interest, Arizona Circle Partners, LLC (ACP) became the owner of the Site. (AR 5.)

Environmental Investigations

The CAO summarizes the environmental investigations and evidence of “waste discharges” at the Site:

Site assessments conducted at the Site since 1986 indicate that waste or wastes were discharged to the soil and groundwater at and from the Site during industrial operations from approximately 1962 to 1992. The site assessments indicate that the soil and groundwater are impacted with [volatile organic compounds] VOCs, such as PCE, TCE, cis-1,2-DCE, and vinyl chloride.

Early limited subsurface assessments included several phases of soil investigation (Keystone Environmental, 1986; Dames & Moore, 1989; and Envirospectrum, Inc., 1993), installation of groundwater monitoring wells and groundwater sampling and monitoring (Versar, Inc. 1990), and a soil gas survey (California Environmental, 1997). Soil and groundwater samples were analyzed for metals, pH, cyanide, and some VOCs during the Dames & Moore investigation. Due to the elevated levels of VOCs in the groundwater beneath the Site, Dames & Moore recommended additional soil and groundwater assessment be performed.

The site investigations performed by JTL Environmental, Inc. (JTL) and California Environmental (CE) in 1997 focused on the addition of groundwater monitoring wells to determine the direction of groundwater flow and soil vapor monitoring for potential vapor intrusion evaluation. Elevated levels of halogenated VOCs (HVOCs) were detected in many of the soil vapor test points, with the highest concentrations being 981 micrograms per liter (µg/L) of TCE and 106 µg/L of PCE. Elevated levels of HVOCs were also detected in the soil samples during the CE assessment with the highest levels detected in individual samples as follows: 1,1-dichloroethylene (1,1- DCE) at 44 micrograms per kilogram (µg/kg), cis-1,2-DCE at 21,938 µg/kg, PCE at 202 µg/kg, TCE at 8,570 µg/kg and Freon 113 at 39,410 µg/kg.

Environmental Support Technologies, Inc. (EST) performed further assessment in 2004, which included a multi-depth gas survey and the installation of groundwater monitoring wells. EST also performed an assessment during April and May 2010, which included the analysis of indoor and outdoor air, soil, soil gas and groundwater samples for VOCs. In soil gas, detected concentrations of TCE and cis-1,2-DCE were reportedly greater than the concentrations detected during the previous sampling events, indicating that additional sampling would be required.

In February 2013, EFI Global, formerly dba Andersen Environmental (EFI), installed two additional monitoring wells for further delineation of the groundwater plume. In 2018, EFI completed a Human Health Risk Assessment (HHRA) for the Site to assess indoor air within the on-site structure and soil vapor conditions along the west property line and the south adjacent property. After the HHRA was reviewed by the Office of Environmental Health Hazard Assessment (OEHHA), it was recommended by OEHHA that an additional sub-slab and indoor air investigation be conducted at the western offsite property.

In March of 2018, five additional groundwater monitoring wells were installed on adjacent properties to provide further lateral delineation of VOC impact to shallow groundwater beneath the Site. A second HHRA was conducted in March 2019 to further assess any vapor intrusion risk to occupants of the Site structure as well as the north, west, and east adjacent properties. EFI reported, based on sub-slab vapor sampling results, that there was no substantive vapor migration concern for the adjacent properties to the north, east, and west of the Site. These results have yet to be reviewed and evaluated by OEHHA.

In a second attempt to delineate the vertical extent of VOC impacted groundwater beneath the Site, EFI advanced three soil borings (MW-13 through MW-15) in the source area and down- and cross-gradient of the source area. Based on data collected by EFI, the contamination in the groundwater plume does not appear to go beyond 105 feet [below ground surface] bgs. Additionally, groundwater monitoring wells (MW-16 through MW-20) were installed in the uppermost water bearing zone at off-site locations south, east, and west of the Site, for additional lateral delineation of VOCs. Subsequent groundwater sampling and monitoring data from the newly installed offsite wells indicate that delineation of the lateral extent of the VOC plume in the groundwater is not yet completed.

From 1986 to 2019, twenty on- and off-site groundwater monitoring wells were installed. Groundwater monitoring activities began at the Site in 1986 and are currently being conducted on a semi-annual basis due to VOCs being consistently detected. (AR 7-8.)

Petitioner has not challenged the Board’s findings concerning the Site investigations and the evidence of waste discharges and contamination. 

The Draft CAO; Comment Period; and Final CAO

The Board issued a draft of the CAO on July 16, 2021. (AR 1.) The Board invited Petitioner and ACP, the named dischargers, to provide comments to the draft CAO by August 13, 2021. (AR 1103, 1.) On August 13, 2021, Petitioner and ACP timely provided comments on the draft CAO.  (AR 731, 830.) The Board did not consider, however, an August 31, 2021 letter from Petitioner’s counsel and a September 30, 2021 response from ACP as the material had not been submitted timely. (AR 1-2; see AR 575, 407.)

The Board issued the CAO on May 16, 2022. The Board also responded to the comments of Petitioner and ACP in two attachments titled “Responsiveness Summary - Draft Cleanup and Abatement Order R4- XXXX-XXXX” and “Appendix A - Evaluation of United Artists Theatre Circuit, Inc. v. California Regional Water Quality Control Bd. (2019) 42 Cal.App.5th 851.” (See AR 1-2.)

The Board did not name Kitay Properties and the other Real Parties in Interest, specifically the Joyce F. Kitay Trust and Arthur Kitay Revocable Trust (the Kitays), as dischargers in the CAO.  (AR 3-4.) 

STANDARD OF REVIEW

Section 13330 provides:

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).)

For judicial review 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.) Exercise of independent judgment “does permit (indeed, [] requires) the trial court to reweigh the evidence by examining the credibility of witnesses.” (Barber v. Long Beach Civil Service Com. (1996) 45 Cal.App.4th 652, 658.) 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 (1999) 20 Cal. 4th 805, 817; see also Evid. Code § 664.)  Under independent judgment, “abuse of discretion is established if the court determines that the findings are not supported by the weight of the evidence.” (Code of Civ. Proc., § 1094.5, subd. (b).)

“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 Mut. Auto. Ins. Co. v. Quackenbush (1999) 77 Cal.App.4th 65, 77.) 

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 challenging “’the sufficiency of the evidence, all material evidence on the point must be set forth and not merely [the challenger’s] 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.) In this proceeding, the court “will not act as counsel for either party . . . 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.)

ANALYSIS 

Did Board Correctly Apply the Standard of Liability in the Current Version of Section 13304(a) to Petitioner? 

Petitioner contends the Board incorrectly applied a legal standard set forth in United Artists Theatre Circuit, Inc. v. Regional Water Quality Control Board (2019) 42 Cal.App.5th 851 [United Artists][3] when it found Petitioner liable under the CAO. Petitioner contends the United Artists standard only applies to those who owned property after 1981, when the Legislature deleted the words “intentionally or negligently” from section 13304. (Opening Brief 9:3-26.)[4]

The Board contends Petitioner failed to exhaust its administrative remedies as to its statutory arguments. (Board Opposition 12:6-8.) The Board also argues it correctly applied United Artists’ interpretation of section 13304 here. Real Parties contend Petitioner “would be responsible under the 1971 statute; however, the Board is also correct in applying the current iteration of Water Code 13304.” (Real Parties’ Opposition 13:9-10.)

              Exhaustion of Administrative Remedies

Exhaustion of administrative remedies is “a jurisdictional prerequisite to judicial review.” (California Water Impact Network v. Newhall County Water Dist. (2008) 161 Cal.App.4th 1464, 1489.) “Before seeking judicial review a party must show that he has made a full presentation to the administrative agency upon all issues of the case and at all prescribed stages of the administrative proceedings.” (Edgren v. Regents of University of California (1984) 158 Cal.App.3d 515, 520.) There are exceptions to the exhaustion requirement, including “when the administrative agency cannot grant an adequate remedy. . . .” (Ibid.)

“A party aggrieved by a decision of an administrative agency must exhaust all available administrative remedies before seeking judicial review of that decision. [Citation.] The doctrine of exhaustion of administrative remedies precludes judicial review of issues, both legal and factual, that could have been raised but were not raised, at the administrative level.”  (Tesoro, supra, 42 Cal.App.5th at 469.) 

“The petitioner bears the burden of demonstrating that the issues raised in the judicial proceeding were first raised at the administrative level.” (Sierra Club v. City of Orange (2008) 163 Cal.App.4th 523, 536.) “ ‘[T]he objections [at the administrative level] must be sufficiently specific so that the agency has the opportunity to evaluate and respond to them.’ ” (Ibid.)

Petitioner disputes any failure to exhaust its administrative remedies. Petitioner argues “the record demonstrates that the parties disagreed and commented on the appropriate legal standard for naming a former owner in a Section 13304(a) cleanup and abatement order.”  (Reply to Board 7:5-6.) However, Petitioner’s citations to a large swath of the administrative record do not show the parties raised Petitioner’s current arguments concerning the post-1981 standard of liability, even generally, in their comments to Board. (See ibid. [citing AR 38-45, 734-737, 2941].) ACP argued published appellate decisions, including Tesoro and United Artists require a causal “nexus between the party who is named in a CAO and the contamination which is the subject of the CAO.” (AR 734-735.) Notably, Petitioner expressly relied on United Artists and advocated for the application of its rule in its comments:

The United Artists decision applies directly here because it explains the circumstances needed to name a prior out-of-possession landowner in a Water Code section 13304 Cleanup and Abatement Order (“CAO”) as a party who “permitted” the discharge of contaminants resulting from a tenant’s operation. Both the trial court and the First Appellate District squarely rejected the notion that a CAO resulting from a tenant’s activities should name a prior landowner solely based on its status as the previous landowner. Instead, the court concluded that more than mere evidence of ownership is required to deem the prior owner a “responsible party.” Specifically, a landowner must be aware of a risk of discharge, and proof must exist that the owner knew or should have known that a lessee’s activity created a reasonable possibility of a discharge.

As previously explained, no evidence exists that, during [Petitioner’s] ownership period, [Petitioner] knew that Burton’s operations created a reasonable possibility of a discharge. To [Petitioner’s] knowledge, the tenant’s operations met industry standards and were permitted properly. Moreover, [Petitioner] received no known documentation or information of polluting activities by its tenant, Burton Plating. Therefore, adding [Petitioner] as a responsible party expressly contravenes the United Artists decision and its reasoning— as well as that of multiple other State Water Resources Control Board cases previously cited and explained. (AR 832-833 [emphasis added].) 

Thus, Petitioner affirmatively argued United Artists standard of liability governed the CAO (“[t]he United Artists decision applies directly here”). Neither Petitioner nor ACP argued, or suggested, the United Artists standard applied only to conduct occurring after 1981. Nor did Petitioner argue section 13304, subdivision (j) limited its liability to “intentional or negligent” conduct, as set forth in the version of the statute in effect prior to 1981. Accordingly, Petitioner did not exhaust its administrative remedies as to its position the Board incorrectly applied the current version of section 13304 to Petitioner.    

Petitioner raises two reasons it should be excused from the exhaustion requirement. (Reply to Board 8:11.) First, Petitioner contends it lacked an adequate administrative remedy because “neither the Water Code nor its implementing regulations required the Board to accept, evaluate, or resolve disputes raised by the parties’ comments” and Board was not required to hold a public hearing. (Reply to Board 9:4-5, 7.) Second, Petitioner contends that “[t]he question at issue, the legal standard applicable to pre-1981 landowners under section 13304(a), remains a purely a legal one” that the court should exercise its discretion to consider. (Reply to Board 9:21-22.)

Petitioner relies on the California Supreme Court’s decision in Hill RHF Housing Partners, L.P. v. City of Los Angeles (2021) 12 Cal.5th 458 to support its argument its administrative remedy was inadequate. Hill RHF Housing Partners, L.P. v. City of Los Angeles explained:

There are important limits to the exhaustion doctrine. Among them, we have declined to impose an exhaustion requirement when a purported administrative remedy did not incorporate “clearly defined machinery for the submission, evaluation and resolution of complaints by aggrieved parties.” (Rosenfield, supra, 65 Cal.2d at p. 566, . . . .) In other words, unless there is clear legislative direction to the contrary, a process proffered as an administrative remedy does not have to be exhausted when its dispute resolution procedures are so meager that it cannot fairly be regarded as a remedy at all. (But cf. Campbell, supra, 35 Cal.4th at pp. 323, 333, . . . [requiring exhaustion notwithstanding the unavailability of money damages through an administrative remedy]; Westlake Community Hosp., supra, 17 Cal.3d at p. 476, . . . .) When the relevant extrajudicial procedures are so clearly wanting, the exhaustion rule does not come into play because it has been determined there is no genuine remedy to exhaust. (Hill RHF Housing Partners, L.P. v. City of Los Angeles, supra, 12 Cal.5th at 479.)

Unlike the protest process at issue Hill RHF Housing Partners, L.P. v. City of Los Angeles, section 13330, subdivision (b) provides:

A party aggrieved by a final decision or order of a regional board subject to review under Section 13320 may obtain review of the decision or order of the regional board in the superior court by filing in the court a petition for writ of mandate not later than 30 days from the date on which the state board denies review. 

The Court of Appeal has held section 13330, subdivision (b) requires parties like Petitioner to exhaust administrative remedies before the state board. (See Schutte & Koerting, Inc. v. Regional Water Quality Control Bd. (2007) 158 Cal.App.4th 1373, 1387.) Significantly, state board regulations expressly provide “if the action or inaction that is the subject of the petition was taken by the regional board after notice and opportunity to comment, the petition to the state board shall be limited to those substantive issues or objections that were raised before the regional board.” (23 CCR § 2050(c) [bold italics added].) 

The Board issued the CAO after notice and an opportunity to be heard within the meaning of 23 California Code of Regulations, section 2050, subdivision (c). Thus, pursuant to the applicable regulation, all “substantive issues or objections” to the CAO must have been made during the notice and comment period before the Board. The process for exhaustion here constituted “clearly defined machinery for the submission, evaluation and resolution of complaints by aggrieved parties.” (Hill RHF Housing Partners, L.P. v. City of Los Angeles, supra, 12 Cal.5th at 469 [quoting Rosenfield v. Malcolm (1967) 65 Cal.2d 559, 566.)

These circumstances here are distinct from those in Hill RHF Housing Partners, L.P v. City of Los Angeles where there was no established administrative procedure for the agency to accept, evaluate, and resolve disputes or complaints. Accordingly, Petitioner had an adequate administrative remedy through the notice and comment period before the Board as well as through a petition for review to the state board.

The court declines to exercise its discretion to decide Petitioner’s contentions regarding the applicability of United Artists and the current version of section 13304 despite Petitioner’s failure to exhaust its administrative remedies. Petitioner relies upon a legal treatise indicating a “court has discretion to consider an issue not raised before the administrative agency where the issue is purely a question of law based on undisputed facts.” (Reply to Board 9:15-20 [citing 2A Cal. Jur. 3d Administrative Law § 717].) The treatise also notes the court’s discretion “is more likely to be exercised in favor of considering the new argument when public policy or the public interest is concerned.” (Ibid.; accord Lindeleaf v. Agricultural Labor Relations Bd. (1986) 41 Cal.3d 861, 871 [exhaustion excused when case raises “important questions of public policy”].)[5] 

[Petitioner has not developed any argument that public policy, the public interest, or any other relevant factors weigh of considering Petitioner’s contentions despite its failure to exhaust its administrative remedies. (Reply to Board 9:22-24. [“Accordingly, the exhaustion doctrine is excused, and this Court may decide the legal issue.”]) (See also Fox v. Erickson, supra, 99 Cal.App.2d at 742 [parties must raise the issue.) The Board and Real Parties have also not had an opportunity to argue about whether issues related to the clean up and the applicable standard for liability for discharges prior to 1981. Given the issues involved, it would seem public policy and the public interest would suggest the exhaustion requirement should be excused here for this purely legal issue.]

Based on the briefing, the court finds Petitioner failed to exhaust its administrative remedies as to its position on the applicability of United Artists and the current version of section 13304.  Petitioner has not demonstrated it is excused from the exhaustion requirement. The court rejects Petitioner’s claim it did not have an adequate administrative remedy to pursue given the Board’s notice and comment period and the process of petitioning for review with the state board. Accordingly, an exhaustion is a prerequisite to judicial review, the court lacks jurisdiction to consider Petitioner’s contention. 

Alternatively, the Board Did Not Err by Applying United Artists and the Current Version of Section 13304

Petitioner raises the following question: Did the Legislature intend the current liability standard in section 13304, subdivision (a) to apply to persons or entities that “caused or permitted” discharges of waste prior to the statutory amendments enacted by the Legislature in 1981? Even assuming Petitioner could overcome the exhaustion issue, the court finds the merits of Petitioner’s position concerning the standard of liability under section 13304, subdivision (a) unpersuasive.

“The rules governing statutory construction are well settled. We begin with the fundamental premise that the objective of statutory interpretation is to ascertain and effectuate legislative intent. [Citations.] To determine legislative intent, we turn first to the words of the statute, giving them their usual and ordinary meaning. [Citations.] 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.)   

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; see also Yamaha Corp. of America v. State Bd. Of Equalization (1998) 19 Cal.4th 1, 11.) 

“In construing statutes, there is a presumption against retroactive application unless the Legislature plainly has directed otherwise by means of ‘express language of retroactivity or . . . other sources [that] provide a clear and unavoidable implication that the Legislature intended retroactive application.” (California Ins. Guarantee Assn. v. Workers’ Comp. Appeals Bd. (2014) 232 Cal.App.4th 543, 561.) 

Prior to 1981, section 13304 stated:

Any person who . . . intentionally or negligently causes or permits 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, shall upon order of the regional board clean up such waste or abate the effects thereof or, in the case of threatened pollution or nuisance, take other necessary remedial action. (RJN Exh. A [emphasis added].)  

AB 2700, effective January 1, 1981, amended section 13304 to nearly its present-day form and, among other changes, removed the words “intentionally or negligently” from it. (See RJN Exh. B.) Section 13304, subdivision (a) now states in relevant part:

A 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, 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. (Emphasis added.)

Thus, as relevant here, the prior version of the statute only used the present tense in describing the actions of dischargers subject to liability (“causes or permits”). AB 2700 substantially modified such language to include past dischargers (“caused or permitted”) or future dischargers (“threatens to cause or permit”). 

In AB 2700, the Legislature also added section 13304(j), which states: “This section does not impose any new liability for acts occurring before January 1, 1981, if the acts were not in violation of existing laws or regulations at the time they occurred.”  (Ibid.) 

Petitioner contends when it enacted AB 2700 and section 13304, subdivision (j), the “Legislature recognized that it would be unfair to apply this new standard retroactively.” (Opening Brief 9:18-19.) Petitioner interprets section 13304, subdivision (j) to “explicitly provid[e] that the new, post-1981 standard would not apply to pre-1981 conduct.” (Ibid.)  However, Petitioner does not analyze section 13304, subdivision (j) in context of other statutory language, including the 1981 amendments that added the words “caused or permitted” and “threatens to cause or permit” discharges of waste. 

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.) “When interpreting statutory language, we may neither insert language which has been omitted nor ignore language which has been inserted.” (See People v. National Auto. and Cas. Ins. Co. (2002) 98 Cal.App.4th 277, 282.) “[I]nterpretations which render any part of a statute superfluous are to be avoided.” (Young v. McCoy (2007) 147 Cal.App.4th 1078, 1083.) Significantly here, “[a] remedial statute should be liberally construed to effectuate its object and purpose, and to suppress the mischief at which it is directed.” (Takiguchi v. Venetian Condominiums Maintenance Corp. (2023) 90 Cal.App.5th 880, 895.)

When these rules of statutory construction are applied, the relevant language from section 13304 and AB 2700 is, on the whole, more consistent with the Board’s position. Not only did the Legislature remove the words “intentionally or negligently,” but it also added language specifying that regional boards could thereafter issue CAOs with respect to persons that “caused or permitted” discharges of waste in the past. Petitioner fails to address such language in the amended statute. 

Petitioner also fails to address legislative history inconsistent with its position before the court.  The following discussion of legislative history in United Artists is particularly relevant:

As to the 1980 changes to the Water Code, the Legislative Counsel's Digest to Assembly Bill 2700 (4 Stats. 1980 (1979–1980 Reg. Sess.) Summary Dig., p. 233) explained, “Existing law . . . authorizes a regional water quality control board to order cleanup of waste which creates or threatens to create a condition of pollution or nuisance, as specified, or to expend available moneys to take remedial action and recover reasonable costs actually incurred in such remedial action. [¶] This bill would, additionally, authorize a regional water quality control board to order cleanup or remedial action for past discharge or deposit of waste, as specified.” (See Van Horn v. Watson (2008) 45 Cal.4th 322, 332, fn. 11, 86 Cal.Rptr.3d 350, 197 P.3d 164 [“Although the Legislative Counsel's summary digests are not binding,  [citation], they are entitled to great weight.”].) That summary focuses on the expansion of authority to include past discharges, but the actual amendment did not only add language to the statute encompassing those discharges. In addition, the Legislature struck out the language limiting those subject to cleanup and abatement orders to those who “intentionally or negligently” cause or permit waste discharges. (Stats. 1980, ch. 808, § 3, p. 2358.) Under the Assembly Bill 2700 changes, all persons who cause or permit, past, present, or threatened discharges may be named in a cleanup order; the statute does not expressly require a showing of intentional or negligent conduct with respect to the discharge. (United Artists, supra, 42 Cal.App.5th at 870-871 [bold italics added].) 

Similarly, in San Diego Gas & Electric Co. v. San Diego Regional Water Quality Control Board, the Court of Appeal characterized the amendments to section 13304 as an “expansion” of the regional boards’ authority:

[C]hanges 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. (San Diego Gas & Electric Co. v. San Diego Regional Water Quality Control Board, supra, 36 Cal.App.5th at 435 [emphasis added].)

This analysis of the legislative history of section 13304 from the Court of Appeal, in two separate decisions, strongly supports the Board’s position that the liability standard in the current version of section 13304, subdivision (a), as interpreted by United Artists, applies to landlords who allegedly “permitted” discharges of waste prior to 1981. Notably, in United Artists, the Court of Appeal applied the current version of section 13304, subdivision (a) to a landlord who permitted dry cleaning operations on its property from 1962 to 1978. (United Artists, supra, 42 Cal.App.5th at 860 [bold italics added].) Thus, the chronology of site ownership in United Artists is similar to the chronology here.[6]

The court acknowledges the landlord in United Artists did not argue section 13304, subdivision (j) precluded its liability under the CAO in issue. (United Artists, supra, 42 Cal.App.5th at 871, fn. 13.)  Nonetheless, the Court of Appeal noted section 13304, subdivision (j) and gave no indication it impacted, or might impact, its analysis or decision that the current version of section 13304, subdivision (a) should be applied to the landlord. Of course, “[c]ases do not stand for propositions that were never considered by the court.” (Upshaw v. Superior Court (2018) 22 Cal.App.5th 489, 503.)

Petitioner argues the Board’s interpretation of section 13304 renders subdivision (j) meaningless. (Reply to Board 10:15.) However, as discussed earlier, Petitioner has not offered a comprehensive interpretation of the statute or its legislative history, including the language that expands regional boards’ authority to include past dischargers. Further, as the Board noted in the CAO, “nuisance has been illegal in California since 1872; water pollution was held to be a public nuisance in 1925; and since 1949, California has expressly prohibited waste discharges resulting in pollution, contamination, or nuisance.” (Board’s Opposition 15:1-3 [citing AR 62].)  Section 13304, subdivision (j) may be interpreted narrowly as reflecting the Legislature’s intent not to expand liability, outside of section 13304, subdivision (a), for pre-1981 acts “not in violation of existing laws or regulations at the time they occurred.” 

To the extent there is ambiguity in the Legislature’s intent in section 13304, subdivision (j), Petitioner has not cited any legislative history to support its position. Nor has Petitioner cited any case law supporting an interpretation of section 13304, subdivision (a) under which persons who permitted or caused discharges prior to 1981 are subject to an “intentional or negligent” standard that was explicitly removed by the Legislature from the statute. 

[Assuming the court addresses the issue over the Board’s exhaustion argument, the court is inclined to find the parties’ briefing on section 13304, subdivision (j) is insufficient for resolution of the issue.]

Based on the foregoing, Petitioner does not show the Board erred by applying United Artists and the current version of section 13304, subdivision (a) to determine Petitioner “permitted” a discharge of waste.

///

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Weight of the Evidence Analysis

Petitioner next argues even if the United Artists standard applies, the weight of the evidence does not support the Board’s finding Petitioner “permitted” the discharges of waste associated with Burton’s plating operations.[7] 

              Legal Standard

Section 13304, subdivision (a) provides the Board may issue a CAO to a person who “permitted” a discharge. United Artists construed “permitted” to mean a prior property owner “knew or should have known that a lessee's activity created a reasonable possibility of discharge into waters of the state of wastes that could create or threaten to create a condition of pollution or nuisance.” (United Artists, supra, 42 Cal.App.5th at 887.) The Court rejected arguments that a prior landlord can be liable for a tenant’s waste discharge only if the landlord had specific knowledge of an actual discharge or specific dangerous conditions in a lessee's operation:

In the section 13304 context, an owner cannot be said to permit a discharge simply by allowing a lessee to operate a certain type of business, absent knowledge or constructive knowledge that, in general, the business creates a reasonable possibility of discharge. But if an owner, who necessarily profits from the activities of its lessees, knows or should know of such a risk and chooses to lease to an operator of that type of business, the owner may properly be held responsible for any discharges that occur.  The public has a strong interest in waste cleanup and relieving owners of liability shifts the costs to others or, if there are no solvent other responsible parties, to the public. To accept the trial court's reasoning and require actual or constructive knowledge of an actual discharge or specific dangerous conditions in a lessee's operation would excuse the owner from any obligation to mitigate the risk of discharge by, for example, supervising the lessee's activities or imposing contractual requirements on the lessee with respect to any discharge. The trial court's standard also encourages owners to remain ignorant about tenants’ specific activities, which decreases their opportunities to prevent discharges. We believe the standard we adopt is the proper construction of “permit” in the context of section 13304. (United Artists, supra, 42 Cal.App.5th at 880-881.)

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              The Board’s Findings

In the CAO, the Board found Petitioner:

knew or should have known of the discharge of waste and had the legal ability to control it because the historical plating operations conducted by Burton involved use and storage of large quantities of various chemicals, operation of a vapor degreaser which used solvents for cleaning parts as part of the plating operation, generation of hazardous wastes which required onsite treatment before disposal, and construction and use of waste disposal structures such as troughs, clarifiers, conveyance piping, storage tanks, etc. (AR 14.) 

The Board also made relevant findings regarding Petitioner’s discharger liability in the Responsiveness Summary - Draft Cleanup and Abatement Order R4- XXXX-XXXX and Appendix A - Evaluation of United Artists Theatre Circuit, Inc. v. California Regional Water Quality Control Bd. (2019) 42 Cal.App.5th 851 which were attached to the CAO. (See AR 43-64.)  Among other findings, the Board stated:

The 1971 lease agreement between [Petitioner] and Burton allowed [Petitioner] the ability to enter and inspect the premises. The lease acknowledges the presence of troughs and the possibility of corrosion due to fumes from the plating process. A Department of Public Works memorandum details numerous violations involving discharges of cyanide to the public sewer.

              . . . .

Appendix A provides evidence that it was well established, as early as the 1940s, that entities using degreasers and/or conducting metal fabrication and/or plating operations, most of which used TCE, were associated with discharges of wastes that caused groundwater contamination. Information concerning the risks of these entities’ operations was widely disseminated in numerous publications, including documentation in newspaper articles, the subject of county and city ordinances, conferences, the subject of public outcry and regulation in the California legislature, local governments, and numerous federal agencies.

. . . .

. . . . The record documents actual knowledge of the use of corrosive and hazardous chemicals, and known discharges of chemicals into the sewer system, which, combined with the evidence in Appendix A, put [Petitioner] on notice of the reasonable possibility of discharge that could cause a condition of pollution or nuisance.  (AR 44-45.)

At a Minimum, Petitioner Should Have Known Burton’s Metal Plating Operations Created a Reasonable Possibility of Discharges of Industrial Wastes Into Waters of the State

Exercising its independent judgment on the administrative record, the court concludes the weight of the evidence supports the Board’s findings Petitioner knew or should have known Burton’s metal plating operations created a reasonable possibility of discharges of industrial wastes into waters of the state. (See AR 14, 45-46, 55-64 [Board findings].) 

In 1961, the City of Los Angeles approved Petitioner’s application to construct a new, approximately 10,000 square-foot building on the site. (AR 12224-12225; see AR 12205.) At the time, the City’s municipal code (section 94.20301) required wastes to be disposed of through an approved plumbing and drainage system. The new building, constructed to dispose of waste through trenches, failed to comply with the ordinance. (AR 12218-12220.)

In 1964, Petitioner successfully requested the City temporarily approve the noncompliant trenches, advising “the defect would be cured” by its tenant, Burton, by replacing the concrete flooring at the end of its lease. (AR 12218-12220.) In a letter to the City in support of the request, Rudolph Wilson, Petitioner’s principal or authorized agent, wrote: “The leasing firm, Burton Silverplating Co., had its plant destroyed by fire early in February 1964. Its rush to replace its facility in time to meet commitments to Prime Contractors working on vital space and defense programs resulted in their inadvertently overlooking this code clause.” (AR 12219.)  In a report approving Petitioner’s request, the City wrote: “The use of troughs in lieu of piping is general practice for this type of occupancy. The surfacing of the floors and troughs with the fiberglass coating will act as a sealer and will preserve the concrete.”  (AR 12220.) 

Petitioner contends that “no direct evidence indicates a discharge occurred because of the trenches, and nothing indicates what [Petitioner] knew or should have known of the reasonable possibility of a discharge associated with their use.” (Reply to Real Parties 9:6-8.) However, the 1964 letter shows Petitioner knew or should have known, as of 1964, Burton operated in the metal plating business; Burton worked on “space and defense” contracts; and Burton discharged liquid wastes into the City’s sewer system through trenches or troughs that did not comply with City’s municipal code. Combined with other evidence, the 1964 letter supports the Board’s findings Petitioner knew or should have known Burton’s metal plating operations created a reasonable possibility of discharges of waste into state waters. 

Specifically, in 1964 and 1971, the City approved Burton’s applications for industrial waste permits associated with an “electroplating” business. (AR 6, 12233, 12211.) The 1964 permit describes the processes for discharging liquid wastes to the sewer system as follows: “Water rinse tanks from plating processes (gold plating, sliver plating, copper plating, nickel plating).”  (AR 12223.) The 1964 permit indicates that Burton would use a 1,250-gallon treatment facility to neutralize the waste. (AR 12223.) The 1971 permit indicates that a 2,500-gallon tank would be used for neutralization.  (AR 12211.)   

A lease agreement, dated in June 1971, specified that Petitioner leased the Site to Burton to conduct “a plating company.”  (AR 12205.) Among other relevant terms, the lease provided that (1) Burton “shall not commit, or suffer to be committed, any waste upon said premises, or any nuisance”; (2) Burton agreed “to install proper vents to preclude any corrosion due to fumes from the plating process”; and (3) Burton agreed to “remove the entire floor area encompassed by troughs which have been cut in the floor by Lessee, including the floor slabs between the troughs.” (AR 12206, 12208-12209.) Burton also agreed to permit Petitioner and its agents to enter the premises for the purposes of inspecting same.  (AR 12206.) 

As part of its plating operations, Burton stored and used chemicals, including chlorinated solvents such as PCE and TCE. (AR 6, 48, 11395-98.) In addition to chlorinated solvents, wastes generated by Burton’s plating operations included acid solutions, alkaline solutions, clarified sludge, and cyanide solution. (AR 11395.) Between 1970 and 1972, the City issued five notices of violations to Burton for excessive cyanide in wastewater. (AR 12190-12191, 11399.)  It is reasonable to infer from the record evidence, including Wilson’s 1964 letter to the City and the 1971 lease, Petitioner knew, or should have known, Burton used and stored “large quantities of various chemicals,” including PCE and TCE, on the Site in connection with its industrial operations. 

As discussed in Appendix A to the CAO, academic work of Professor Craig Colten, among other evidence, shows “the concept that pollutants discharged on the surface could migrate to groundwater was appreciated decades or even centuries before operations at the Site.”  (AR 55-56, citing Professor Colten’s articles and books.) Thus, as an example, in a 1991 article, Professor Colten found “a review of the scientific literature on the motion of subsurface fluids, public health, and sanitary engineering indicates that by 1940 knowledge was sufficient to argue against surface discharges of harmful fluids. . . . [T]here was ample awareness of the physical processes and financial liabilities before 1950 to expect careful disposal of liquid wastes to a land surface.” (AR 11035-11049 [Craig E. Colten, A Historical Perspective on Industrial Wastes and Groundwater Contamination, 81 Geographical Review No. 2 (April 1991).]  Petitioner does not address any of Professor Colten’s articles or books in its briefing. Nor does Petitioner cite any conflicting evidence. This evidence supports a finding Petitioner knew or should have known of a reasonable possibility that discharges of industrial wastes from plating operations, including into a trench or trough system, could result in contamination of groundwater. 

Petitioner contends:

[A] site map attached to a Buyer and Seller Agreement from 1973—prior to Kitay’s acquisition of the site—depicts the outdoor areas as used solely for parking, with no indication of a clarifier or any chemical storage whatsoever. AR 3114-21. Likewise, these maps do not depict any degreasers on the Property. Id. [¶] Instead, the evidence shows that the specific equipment linked to the contamination was installed after [Petitioner’s] ownership. A due diligence memorandum prepared by Burton Plating in 1986 in connection with a potential purchase of the Property included a list of machinery and equipment present on the Property as well as their installation date. AR 3070-3074. . . .  (Opening Brief 12:27-13:6 [citing AR 3114-3121, 3070-3074, 3140-3151, 11399].) 

Petitioner’s arguments and record citations do not detract from the Board’s findings. In context, the site map attached to the 1973 buyer and seller agreement does not depict the equipment on Site and does not suggest Burton did not conduct metal plating operations prior to 1973. (AR 3114-3121; see also AR 4903-4904 [1974 letter from Rudy Wilson of Petitioner to Burton noting Burton’s interest in leasing more parking].) Since the cited asset list identifies the oldest equipment as 1975, Petitioner implies Burton operated without any chemicals or equipment from the 1960s to 1975. (See AR 3070-3074.) However, Petitioner’s own statements and lease show Burton operated a metal plating business on the Site starting around 1962.  (See AR 6-7, 12205-12210, 12219.) Moreover, Petitioner’s cited evidence also shows Burton suffered a “major fire in November, 1974,” and “all the records, including those pertaining to waste dispose, were destroyed.” (AR 3145.) Thus, there are reasonable explanations within Petitioner’s own evidence for why the cited asset list does not show degreasers or similar equipment prior to 1975.  Accordingly, Petitioner’s cited evidence is consistent with, and does not detract from, the Board’s findings Petitioner should be named as a discharger in the CAO. 

Petitioner Knew or Should Have Known Burton’s Metal Plating Operations Created a Reasonable Possibility of Discharges of Industrial Wastes into State Waters That Could Create or Threaten to Create a Condition of Pollution or Nuisance

In Appendix A to the CAO, the Board found “that landowners leasing to entities using degreasers and/or metal fabrication and/or plating operations (many of which used TCE), knew or should have known by the 1940s that there was a reasonable possibility of discharge of wastes that could create or threaten to create a condition of pollution or nuisance.” (AR 55.)  Among other evidence, the Board relied on evidence of the following:

By the mid-1940s, there was substantial knowledge of the toxic nature of chemicals used in metal plating operations and the risk of groundwater contamination from such industrial operations. (AR 58-59.) As an example, a 1946 paper written by a sanitary engineer states: “The highly toxic nature of the chemical compounds used in electroplating causes wholesale and widespread destruction of fish and other forms of aquatic life. Cyanides in minute concentrations kill almost instantly. Compounds of many metals such as copper and zinc cause both rapid killing and also have cumulative effect resulting in delayed death of fishes.” (AR 13269 [L.F. Oeming, Stream Pollution Problems of the Electroplating Industry, 18 Sewage Works Journal 4 (July., 1946) at p. 678].) The article discusses the risks of groundwater pollution from electroplating operations.  (AR 13270.) 

In a 1948 article, consultant engineers identified TCE as part of the plating process and noted that “prior to going to the plating department, the metal parts are treated by degreasers” and TCE was used “to remove any grease adhering to the metal.” The article states that the plating process wastes “would be unsuitable to discharge into the sanitary sewers . . . and would be objectionable to discharge [into surface waters] without prior treatment.” (AR 13238-13240.) 

“In 1949 investigators . . . detect[ed] trichloroethylene in well water at estimated levels of 18 ppm. This discovery alerted public health officials to the solvent’s persistence in groundwater and led them to warn that even at low levels, measured by existing analytical methods, it could be toxic.” (AR 61; see AR 10530 [Craig E. Colton and Peter N. Skinner, The Road to Love Canal at p. 115.)

“In 1961, the U.S. Department of Health, Education and Welfare reported numerous instances of groundwater contamination related to metal plating during the 1950s and early 1960s.” (AR 59; see AR 12226-12448 [Ground Water Contamination: Proceedings of the 1961 Symposium, U.S. Department of Health, Education, and Welfare, 1961]; see e.g. AR 12306 [16 domestic wells contaminated by plating wastes in Suffolk County, New York].) 

“Use of TCE as a degreaser was pervasive in the Los Angeles area. The 1967 edition of the Los Angeles County Air Pollution Control District Air Pollution Engineering Manual noted that TCE accounted for an estimated 90% of all vapor degreasing solvent used in Los Angeles County. . . . During this timeframe, it was already known that TCE was a hazardous chemical.” (AR 60-61; see generally AR 6499-6514 [Steve Swisdak, A Historical Survey of the Use and Regulation of Trichloroethylene, American Bar Association 21st Fall Conference (Oct. 11, 2013).]) 

In responding to Appendix A, Petitioner argues:

These out of context citations at most show a certain scientific or academic understanding of the hazards caused by degreasing agents in the mid-20th century as well as an increasing desire to regulate them. They in no way prove that actual industrial landlords, such as [Petitioner], understood the same risks or hazards, much less that landlords would have been aware of the danger posed by their specific tenants’ potential use of degreasers or other chemicals used in plating operations. (Opening Brief 15:19-23.)

The court acknowledges the Board relied on academic and scientific literature in Appendix A.  However, contrary to Petitioner’s assertion, some contemporaneous articles cited in Appendix A from the 1940s, 1950s, and 1960s were apparently intended for an industrial audience. Thus, as examples, “American Water Works similarly reported health hazards associated with the use of TCE in degreasing in 1950. (Cary and Valaer, Occupational Health Hazards, 42 Journal American Water Works Association 5 (May 1950) pp. 485-489.)” (AR 61; see AR 13190-13192.)  The cited article was written by an industrial hygienist and provided practical advice to industrial users for various water works health hazards, including from the use of TCE in degreasing. (AR 13192.) Other articles were written by sanitation engineers, engineering consultants, and government public health officials. (See e.g. AR 13269, 13238-13240, 12226-12448.) The technical reports from a 1961 symposium on groundwater contamination were made “available without charge to professional users in government, education, and industry.”  (AR 12228.) 

Exercising its independent judgment, the court finds it reasonable to infer that these types of articles reflect a body of knowledge that was reasonably available to landlords and other persons that had business connections to the metal plating industry. Notably, the Board cites evidence from the 1940s and 1950s of the risks of groundwater contamination from metal plating operations, substantially before Petitioner leased the Site to Burton. While the scientific understanding of the health risks of TCE and other wastes was not complete and continued to develop, the weight of the evidence shows that industrial landlords to the metal plating industry had a reasonable basis to know, in the 1960s and 1970s, of the reasonable possibility that discharges of industrial wastes from metal plating could create or threaten to create a condition of pollution or nuisance. 

Further, some of the academic articles and books cited in Appendix A reflect historical work on TCE, groundwater contamination in the United States, and similar matters. (See generally AR 55-64, citing works of Professor Colton and others.) Petitioner has not cited any evidence suggesting this historical work is inaccurate. While it is true that Petitioner would not have read some of these academic articles during the time period in question (some of which postdate Petitioner’s ownership of the Site), this academic literature provides historical support for Board’s findings that an industrial landlord in the 1960s and 1970s, such as Petitioner, knew or should have known of the risks of groundwater contamination from metal plating operations of a tenant. 

The Board was required to prove Petitioner “knew or should have known that a lessee's activity created a reasonable possibility of discharge into waters of the state of wastes that could create or threaten to create a condition of pollution or nuisance.” (United Artists, supra, 42 Cal.App.5th at 887 [emphasis added].) As applied here, the evidence from Appendix A supplements and corroborates other, more direct evidence Petitioner knew or should have known of the risks of nuisance or pollution from Burton’s operations, including, but not limited to, the 1964 letter and 1971 lease discussed above. When the full record is considered, the court concludes the weight of the evidence supports the Board’s findings Petitioner knew or should have known Burton’s metal plating operations created a reasonable possibility of discharges of industrial wastes into state waters that could create or threaten to create a condition of pollution or nuisance. (See AR 14, 45-46, 55-64 [Board findings].) The Board’s findings and decision to issue the CAO naming Petitioner as a discharger under section 13304 do not constitute a prejudicial abuse of discretion. 

The Board’s Investigatory Authority Under Section 13267

The Board also issued the CAO pursuant to section 13267. (AR 20.) 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, 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.” (§ 13267, subd. (b)(1).) The findings and evidence discussed earlier also support an investigatory order under section 13267. For the reasons discussed earlier, the court finds the Board’s findings and decision to issue an investigatory order under section 13267 were supported by the weight of the evidence and do not constitute a prejudicial abuse of discretion. 

The Board Does Not Have a Mandatory Duty to Name Other Responsible Parties in a CAO

Petitioner contends the Board abused its discretion by failing to name the Kitays as dischargers in the CAO because “the weight of the evidence establishes that the discharges at issue occurred during the Kitay’s ownership, and that the Kitays knew about it.” (Opening Brief 16:20-21.) The Board contends it “had no obligation to name a particular party as a discharger, and its exercise of discretion to name one party and not another cannot be the basis for writ relief.” (Board Opposition 18:4-6.) The Board relies, in part, on the authority noting “the prosecuting authorities, exercising executive functions, ordinarily have the sole discretion to determine whom to charge with public offenses and what charges to bring.” (People v. Birks (1998) 19 Cal.4th 108, 134.) The court agrees with the Board.

“[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.) 

The Board’s statutory authority to name persons or entities as dischargers in a CAO issued pursuant to section 13304 is a matter of prosecutorial discretion. While the court can 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 that are not named in the CAO. Petitioner cites no authority to the contrary. 

While not directly on point, Atlantic Richfield Co. v. California Regional Water Quality Control Bd. (2022) 85 Cal.App.5th 338 [Atlantic Richfield] largely supports the Board’s position that it cannot be compelled by mandate to name the Kitays as dischargers. Specifically, Atlantic Richfield provides:

[T]he entity that caused or permitted the discharge may be ordered to clean up the waste or abate its effects. Nowhere in the statutory language does section 13304 say the polluting entity must clean up or abate only its proportionate contribution to that waste. To the extent ARCO cleans up more than its proportionate share of the acid mine drainage at the Walker Mine, it can seek contribution from other parties it believes also contributed to the pollution. . . .

All that is required for this court to affirm the trial court's judgment upholding the Regional Board's cleanup order is for there to be substantial evidence of both elements of section 13304, subdivision (a). [Citations.] That standard is met.

The Regional Board was not required to apportion responsibility for the pollution in the cleanup order. (Atlantic Richfield, supra, 85 Cal.App.5th at 374.) 

Similarly here, as analyzed earlier, the Board’s findings under section 13304, subdivision (a) with respect to Petitioner are supported by the weight of the evidence. Because the statutory requirements for a CAO against Petitioner are met, the CAO against Petitioner must be affirmed. The Board was not required to apportion responsibility for the pollution in the CAO.  Petitioner may seek contribution from other parties it believes also contributed to the pollution. Petitioner has not shown grounds for writ relief with respect to the Board’s discretionary decision to name Petitioner, and not the Kitays, as dischargers in the CAO. In light of this conclusion, the court need not decide whether the evidence supports naming Kitays as dischargers.[8] 

Secondary Liability

Real Parties contend “there is unequivocal precedent making clear that ACP should be designated as secondarily liable to [Petitioner], and the Court should modify the CAO accordingly.” (RP Opposition 17:2-4.)

Neither Petitioner nor the Board has raised any procedural objection to ACP seeking a writ, in this action, directing the Board to modify ACP’s liability as a discharger in the CAO. The court assumes, without deciding, ACP’s answer to the writ petition confers jurisdiction on the court to grant such relief. 

Having exercised its independent judgment on the record, the court finds no prejudicial abuse of discretion in the Board’s findings and decision naming ACP as a primarily liable discharger. In or about 2011, ACP became the owner of the Site. (AR 5.) By that time, multiple Site investigations showed the contamination of the Site from Burton’s metal plating operations.  (AR 7-8.) Groundwater sampling and monitoring “indicate that delineation of the lateral extent of the VOC plume in the groundwater is not yet completed.” (Ibid.) “Groundwater monitoring activities began at the Site in 1986 and are currently being conducted on a semi-annual basis due to VOCs being consistently detected.” (Ibid. [emphasis added].) As the current owner of the Site, from which contamination may continue to migrate into state waters, ACP is properly named as a primarily liable discharger. (See Tesoro, supra, 42 Cal.App.5th at 473 [finding “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”].)[9]  

Further, as discussed earlier, the Board had no duty to apportion liability between Petitioner and ACP in the CAO. (Atlantic Richfield, supra, 85 Cal.App.5th at 374.) To the extent ACP cleans up more than its proportionate share of the waste, it can seek contribution from other responsible entities.

ACP does not demonstrate the Board had any mandatory duty to name ACP as secondary liable or that the Board prejudicially abused its discretion in naming ACP as primarily liable. Exercising its independent judgment, the court also finds that the weight of the evidence supports the Board’s decision to name ACP as a primarily liable discharger. 

CONCLUSION 

The petition for writ of administrative mandamus is DENIED.

ACP’s request that the court amend the CAO to name ACP as secondarily liable is DENIED. (See RP Opposition 18:7-14.) 

 IT IS SO ORDERED. 

January 17, 2024                                                                                                                             

________________________________ 

Hon. Mitchell Beckloff  

Judge of the Superior Court