Judge Stephen I. Goorvitch, Case Number: 23STCP04550, Date: 2024-04-19 Tentative Ruling

Judge: Stephen I. Goorvitch, Case: 23STCP04550, Date: 2024-04-19 Tentative Ruling

The court has no tentative order on this motion. However, the motion appears to be deficient because the proposed intervenors have not filed a proposed pleading in intervention as required by the statute. Specifically, Code of Civil Procedure section 387(c) provides as follows: “A nonparty shall petition the court for leave to intervene by noticed motion or ex parte application. The petition shall include a copy of the proposed complaint in intervention or answer in intervention and set forth the grounds upon which intervention rests.” (bold italics added.) Because the word “shall” is used in the statute, this requirement appears to be mandatory. Further, even if the requirement is directory, failure to submit a proposed pleading is grounds to deny a motion to intervene. (See Sutter Health Uninsured Pricing Cases (2009) 171 Cal.App.4th 495, 513 [intervention properly denied because moving party failed to submit complaint in intervention].) The court intends to discuss the motion with the parties at the hearing.

Petitioner The Boeing Company (“Petitioner” or “Boeing”) filed a petition for writ of mandate under California Water Code section 13330 and California Code of Civil Procedure section 1094.5 challenging waste discharge requirements (the “WDR”) for the Santa Susana Field Laboratory (“SSFL”) set by the Regional Water Quality Control Board, Los Angeles (“Respondent” or the “Regional Board”). Now, Boeing seeks to stay five conditions pursuant to Code of Civil Procedure section 1094.5(g). The motion is granted in part and denied in part. The Court stays Condition Two as it relates to a pond infiltration studies of the Silvernale and R-1 ponds because: (1) Studies of the ponds have already been completed; (2) The study of the Silvernale pond showed “essentially zero” infiltration; (3) The study of the R-1 pond showed “very small” amounts of infiltration, equivalent to “clay soils;” (4) The contaminants of concern at the ponds are “particulates” that do not migrate downward through soil to groundwater; (5) The staff of the Regional Board testified that additional studies of the ponds are not necessary and could interfere with ongoing remediation efforts; and (6) The Regional Board demonstrates no harm to the public interest in delaying the studies until after the trial, which should occur this year, especially given the results of the recent studies. However, the Court denies the stay with respect to the remaining conditions, which relates to monitoring requirements to prevent contamination of the environmental and water supply.

“The Santa Susana Field Laboratory (SSFL) occupies approximately 2,850 acres located at the top of Woolsey Canyon Road in the Simi Hills of Ventura County, California. During wet weather, SSFL has the potential to discharge stormwater runoff impacted by constituents from the facility. As such, stormwater discharges from SSFL are currently regulated by the Los Angeles Regional Water Quality Control Board.” (See Bower Decl. ¶ 9, Exh. B at 4 [Expert Panel report].)

“The SSFL site (the ‘Site’) is jointly owned by the Boeing Company (Boeing) and the federal government. The National Aeronautics and Space Administration (NASA) administers the portion of the property owned by the federal government…. [T]he site is divided into four administrative areas (Areas I, II, III, and IV), with undeveloped land area surrounding the Site to the north and south. Administrative Areas I and III are operated by Boeing, who owns the majority of Area I and all of Area III…. Industrial operations at the Site have ceased, and current activities include environmental monitoring and sampling, demolition, remediation, and ongoing remedial planning.” (Id., Exh. B at 5.)

“The developed portion of the site comprises approximately 1,500 acres. Boeing and its predecessors’ operations at SSFL included research, development, assembly, disassembly, and testing of rocket engines, and chemical lasers. During the 1950s to the mid-1970s, volatile organic compounds were utilized for the cleaning of hardware and rocket engine thrust chambers, and for the cleaning of other equipment. These solvents migrated into the subsurface, contaminating groundwater primarily with trichloroethylene (TCE) and 1,2- dichloroethylene (1,2-DCE).” (Bower Decl. Exh. A at F-5, p. 102 of 561 [WDRs].)

“SSFL has the potential (based on a 24-hour duration, 10-year return storm event) to discharge approximately 187 million gallons per day (MGD) of stormwater runoff that may contain pollutants from the Facility.” (Id. Exh. A at F-6.) The stormwater discharges from the Site through “Discharge Points,” which are also referred to as “Outfalls.” (Id. F-6, F-7, and F-15.) “Approximately 60% of the discharge exits the property via two southerly discharge points (Discharge Points 001 and 002) to Bell Creek, a tributary to the Los Angeles River, a water of the United States…. Upstream outfalls that contribute to the discharge at Discharge Points 001 and 002 include Discharge Points 011 and 018.” (Id. at F-6.) “Stormwater runoff flows naturally to Silvernale Pond for treatment, monitoring and discharge via Discharge Point 018.” (Ibid.) In addition, “stormwater runoff naturally flows to R-1 Pond for treatment, monitoring, and discharge via Discharge Point 011.” (Ibid.)

As required by the Regional Board, Petitioner has funded the services of a Surface Water Expert Panel (the “Expert Panel”) to support and advise the Regional Board, and to make recommendations to Petitioner to improve surface water quality at SSFL. (Bower Decl. ¶ 9.) The Expert Panel’s most recent report, issued in October 2023, “addresses, among other things, aluminum in soil and stormwater at SSFL, and groundwater infiltration analyses by the Expert Panel.” (Id., ¶ 9 & Exh. B.)

Petitioner and the SSFL Site are subject to waste discharge requirements under the federal Clean Water Act and California’s Porter-Cologne Water Quality Control Act. (See generally Mot. 2-3; Oppo 4-5.) “The Clean Water Act is a ‘comprehensive water quality statute designed ‘to restore and maintain the chemical, physical, and biological integrity of the Nation's waters.’” (City of Burbank, supra, 35 Cal.4th at 620; see also Sweeney v. California Regional Water Quality Control Bd. (2021) 61 Cal.App.5th 1093, 1113 [discussing Porter-Cologne Act].)

“Part of the federal Clean Water Act is the National Pollutant Discharge Elimination System (NPDES), ‘[t]he primary means’ for enforcing effluent limitations and standards under the Clean Water Act. [Citation.] The NPDES sets out the conditions under which the federal EPA or a state with an approved water quality control program can issue permits for the discharge of pollutants in wastewater. (33 U.S.C. § 1342(a) & (b).) In California, wastewater discharge requirements established by the regional boards are the equivalent of the NPDES permits required by federal law.” (City of Burbank, supra, 35 Cal.4th at 620-621, citing Water Code § 13374.)

Petitioner has managed stormwater at the SSFL for decades under waste discharge requirements orders issued by the Regional Board. (Verified First Amended Petition (“FAP”) ¶ 16; Corbett Decl. Exh. I at 226.) The previous set of waste discharge requirements was issued on April 1, 2015, and was set to expire on March 31, 2020. (Bower Decl., Exh. A at F-4.) The terms and conditions of the prior order were administratively extended until the new permit was issued. (Ibid.)

“The process leading up to the adoption of the WDRs that are the subject of this writ proceeding began on September 26, 2019, when Boeing submitted an application for renewal of its prior WDRs, which had been adopted in 2015. Following receipt of Boeing’s application, the Regional Board conducted site visits on August 20, 2020, and June 14, 2021, to observe operations and collect additional data to develop permit limitations and requirements for the waste discharges, and drafted tentative WDRs for public review and comment. On December 8, 2021, the Regional Board published the tentative WDRs for the SSFL site, solicited public comment, and scheduled a public hearing for February 10, 2022.” (Newman Decl., ¶ 3 & Exh. A.)

In response to significant public testimony, the Regional Board elected to postpone its consideration of the Tentative WDRs until it could analyze additional stormwater data collected by Petitioner during the 2022-23 rainy season, and to provide additional opportunity for community input. (Newman Decl. ¶ 7, Exh. E, F.) Based on this data, the Regional Board made further revisions to the Tentative WDRs, solicited and responded to dozens of additional comments, and held two additional hearings on September 28 and October 19, 2023, before issuing final WDRs for the SSFL site. (Id. ¶¶ 9-10, Exh. F, H.)

Among other conditions, the WDR imposed five new monitoring and effluent requirements on Petitioner: (1) New monitoring requirements for PCBs using Method 1668c (“Condition One”); (2) New requirements for groundwater infiltration studies at the Silvernale and R-1 Ponds (“Condition Two”); (3) New monitoring requirements for constituents designated “Chemicals of Potential Concern” in the Department of Toxic Substances’ (“DTSC”) “Standardized Risk Assessment Methodology” for the SSFL Site (“Condition Three”); (4) New effluent limits at Discharge Points 001 and 002 (“Condition Four”); and (5) New effluent limits for aluminum (“Condition Five”). (Bower Decl. Exh. A § 4.1 and E-7, E-14, E-29, F-29.)

On November 29, 2023, Petitioner filed a petition for review with the State Water Resources Control Board (the “State Board”), seeking review of these new requirements. (FAP ¶ 10.) Petitioner also filed a request for a stay. (Ibid.) Both were deemed dismissed by operation of law on February 19, 2024. (Ibid.) Accordingly, Petitioner has exhausted its administrative remedies. (Ibid.; see also Oppo. 6.)

Petitioner filed a petition for writ of mandate on December 19, 2023, and filed a first amended petition on March 1, 2024. Petitioner filed a motion for a stay of the five conditions under Code of Civil Procedure section 1094.5(g) on March 8, 2024.

The court “may stay the operation of the administrative order or decision pending the judgment of the court….” (Code Civ. Proc. § 1094.5(g).) “However, no such stay shall be imposed or continued if the court is satisfied that it is against the public interest.” (Ibid.) The administrative stay provision of Section 1094.5(g) “requires the superior court to weigh the public interest in each individual case.” (Sterling v. Santa Monica Rent Control Bd. (1985) 168 Cal.App.3d 176, 187.)

Petitioner argues that the Regional Board abused its discretion, and acted against the weight of the evidence, in imposing certain conditions. A motion under Code of Civil Procedure section 1094.5(g) is not an appropriate way to address the merits of the underlying petition. Pursuant to the plain language of section 1094.5(g), the court is not required to consider Petitioner’s likelihood of success on the merits. (See Canyon Crest Conservancy v. County of Los Angeles (2020) 46 Cal. App. 5th 398, 406-07.) Moreover, in an administrative mandate proceeding, “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.) In general, “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; Code Civ. Proc. § 1094.5(e).) Nor does the court have a sufficient record to evaluate these arguments. In its motion for stay, Petitioner has not provided a comprehensive discussion of the Regional Board’s findings or the record evidence supporting such findings.[1] Given the technical nature of the administrative findings at issue, the presumption of correctness, and the lack of comprehensive legal briefing regarding the findings and record evidence, Petitioner has not persuaded the court that an assessment of its likelihood of success is appropriate, or necessary, for resolution of this motion for a stay.

Condition One imposes new monitoring requirements for PCBs, for “informational purposes,” using Method 1668C. (Bower Decl. Exh. A § 4.1 and E-7, E-14.)[2] PCBs are chemicals commonly used in industrial applications, that persist in the environment, and that accumulate in small organisms that may be consumed by humans and wildlife. (Newman Decl. ¶ 18.) The prior WDR required Petitioner to utilize Method 608.3, which has been approved by the EPA, to monitor PCB in stormwater from the Site. Method 608.3 is “lower resolution” and detects commercial mixtures of PCB congeners, known as “aroclors.” (Newman Decl. ¶ 18; see Bower Decl. Exh. A at E-14.) Using Method 608.3, PCBs have never been detected in stormwater at SSFL, and Regional Board did not set effluent limitations on PCBs in the current WDR. (Corbett Decl. Exh. J at 29; Corbett Decl. Exh. I at 240 and Exh. K at No. 19a.) By comparison, Method 1668c is higher resolution and tests for the presence of PCB compounds known as “congeners.” (Newman Decl. ¶ 18.)

Petitioner contends that staying Condition One would not be against the public interest because PCBs have not previously been detected in stormwater at SFFL and Regional Board has not set effluent limits for SFFL. (Mot. 7.) However, in the same testimony cited by Petitioner, the Regional Board staff member testified that “the reporting limits for methods for Aroclors [i.e., Method 608.3] are higher than the California Toxics Rule Criteria.” (Corbett Decl. Exh. I at 239:20-25.) The Board staff testimony is corroborated by Jenny Newman, Regional Board’s Assistant Executive Officer of the Surface Water Division, who declares that because Method 608.3 “can only detect aroclors of PCBs, it can only detect PCBs occurring at concentrations that are over 1000x higher than the federal water quality criteria for PCBs.” (Newman Decl. ¶ 18.) In light of this evidence that Method 608.3 that can only detect PCBs in concentrations higher than the applicable water quality standards, the court finds that staying Condition One would be against the public interest.

Petitioner contends that Method 1668c has not been approved to measure Petitioner’s compliance under the WDR, is unreliable, and has “extremely high sensitivity,” and can only be used for “informational purposes.” (Mot. 7-9.) Petitioner suggests that Regional Board lacks “authority” to include Method 1668c as a condition in the WDR for “informational purposes” or that Regional Board abused its discretion by including an “unreliable” method for testing for PCB. (Mot. 7:19-24; see also FAP ¶ 25(e).) The court has considered Petitioner’s evidence, including the declaration of Sylvan Long and exhibits. Long opines that a “primary concern” with Method 1668c “is that it is likely to generate ‘false positive’ results due to its high sensitivity and the ubiquity of low-level background PCB contamination, including in analytical labs.” (Long Decl. Exh. 1 at 3.) Method 1668c can detect PCBs in concentrations as low as 0.007 parts per trillion (or ng/L). (Id. at 6.) By comparison, “published measurements of PCBs in rainwater in Galveston Bay, Texas, near Houston, have detected mean concentrations of approximately 1.29 ng/l,” and “published measurements of PCBs in rainwater at rural locations in the Great Lakes have identified even greater issues with atmospheric contamination, with an annual volume-weighted mean concentration of 10 ng/l.” (Ibid.)

The court denies Petitioner’s request to stay Condition One. As discussed, the court does not consider Petitioner’s likelihood of success on the merits for a motion for stay pursuant to section 1094.5(g). (See Canyon Crest Conservancy, supra, 46 Cal. App. 5th at 406-07.) Regardless, the court is not persuaded by Petitioner’s arguments. The Environmental Protection Agency (the “EPA”) has not finalized regulations approving Method 1668c as a method of testing for PCB for compliance purposes. (See Long Decl. Exh. 1 at 3-4.) However, contrary to Petitioner’s assertion, the EPA has not disclaimed or discredited Method 1668c for use in stormwater permits in all circumstances. Rather, the EPA has acknowledged that “this method is being used in some states in their regulatory programs . . . with good success,” and that its decision “does not negate the merits of this method for the determination of PCB congeners in regulatory programs.” (77 Fed. Reg. 29757, 29763 (May 18, 2012).) The EPA has acknowledged that Method 1668c “may be appropriate and useful in certain situations.” (88 Fed. Reg. 59662, 59668 (Aug. 29, 2023).) Moreover, in comments for the WDR at issue in this case, an EPA representative stated that additional PCB monitoring for informational purposes, using Method 1668c, was appropriate. (See Newman Decl. Exh. H at 284-285.) Given the EPA representative’s position before the Regional Board and EPA’s statements that Method 1668c may be appropriate in some situations, the fact EPA has not formally approved Method 1668c for compliance purposes does not support Petitioner’s position that Condition One should be stayed.[3]

Further, even if Method 1668c can only be used for “informational purposes,” the court is not persuaded that Regional Board necessarily lacks authority to include conditions for informational purposes in the WDR. Petitioner’s cited authorities, 40 CFR section 122.44(i) and Water Code section 13376, do not appear to address, at least explicitly, whether conditions for “informational purposes” may be included in a WDR. (See also Oppo. 14, citing Water Code § 13383(b) [Regional Board may require discharger to “provide other information as may be reasonably required”].)

Simply, Petitioner has not demonstrated that Method 1668c is necessarily unreliable or that the Regional Board cannot impose requirements for informational purposes. Accordingly, Petitioner has not satisfied its burden of proving that a stay would be consistent with the public interest. To the contrary, Respondent has demonstrated that a stay would be against the public interest because it would prevent early detection of PCBs and risk introducing PCBs into the environment and water supply.

PCBs are chemicals commonly used in industrial applications, which persist in the environment and accumulate in small organisms that may be consumed by humans or wildlife. (Newman Decl., ¶ 18.) Because of its sensitivity, Method 1668c can detect individual PCB compounds (called “congeners”) at concentrations in line with applicable water quality criteria whereas the prior method cannot. (Id., ¶ 18.) This is especially important because of “the inconsistent and unpredictable nature of rainfall in California from year to year, and the time-lag associated with enacting future monitoring or effluent requirements aimed at protecting human health and the environment based on the data that the current monitoring requirements will yield.” (Id., ¶ 35.) In addition, Petitioner concedes it already “has collected stormwater samples during the 2024 rainy season, and has analyzed, or is in the process of analyzing, them, as required by the Contested Conditions.” (Reply 7:2-3; see also Bower Decl. ¶7 and Exh. A at E-7.) The court agrees with Respondent that these factors weigh against staying Condition One because the stay would deprive Regional Board and the public, for the pendency of this writ action, of recently collected data about possible PCB contamination at the Site.

Petitioner argues that “[i]t does not serve the public interest to generate and spread incomplete or inaccurate information about sources of PCBs in the Los Angeles region.” (Mot. 7-9.) Petitioner’s concerns about the public being misled by test results from Method 1668c are speculative and unsupported by the record. As discussed, Petitioner does not establish that use of Method 1668c would lead to incomplete or inaccurate information. Petitioner assumes, without foundation, that Regional Board will be unable to provide the proper context for interpreting the monitoring data collected by Petitioner. Petitioner also ignores the likely benefit to the public of providing information about the presence or absence of PCBs at the Site, and also the public harm of depriving Regional Board and the public of PCB data, which has already been collected, from the most recent rainy season.

In reply, Petitioner argues, for the first time, that court may condition any stay order to require Petitioner to “preserve all data and samples it already has obtained.” (Reply 7.) “The salutary rule is that points raised in a reply brief for the first time will not be considered unless good cause is shown for the failure to present them before.” (Balboa Ins. Co. v. Aguirre (1983) 149 Cal.App.3d 1002, 1010.) Petitioner does not show good cause to raise this new argument in reply. It also cites no authority that the court may impose such conditions on a stay pursuant to section 1094.5(g). Further, Petitioner’s proposed preservation order would still deprive Regional Board and the public of the benefits of PCB monitoring data for the pendency of this case.

In sum, Petitioner asks this court to ignore the “strong presumption of correctness” and preliminarily overrule the Regional Board’s administrative findings before reviewing the complete administrative record in this case. To that end, Petitioner asks this court to stop the implementation of a method for testing PCBs that is consistent with applicable water criteria in favor of using a method that is less precise and risks introducing PCBs into the environment and water supply, in the face of conflicting evidence that does not clearly support its position. Based upon this record, the court finds that a stay would be against the public interest and therefore denies the motion as it relates to Condition One.

Condition Two imposes new requirements for groundwater infiltration studies at the Silvernale and R-1 Ponds. (Bower Decl., Exh. A at E-29.) Specifically, this condition provides as follows:

The Discharger shall conduct a study, pursuant to Section 13267(b)(1) of CWC, to determine the potential for infiltration of stormwater discharges collected at Silvernale Pond and R-1 Pond to reach groundwater, and to evaluate any necessary design modifications to these ponds to eliminate any potential for infiltration prior to clean up of the soils and groundwater affected by the ponds. The Discharger shall submit a work plan to evaluate infiltration rates and potential impacts within three months from the permit effective date to the Los Angeles Water Board for Executive Officer approval. At a minimum, the workplan shall include the steps and measures to determine the rate of infiltration and an assessment of contaminants of concern in stormwater runoff and its potential for ongoing impacts to groundwater contamination at the Facility. The Discharger may utilize already available information that is currently being collected by the surface or groundwater expert panel or other federal, state, or local agencies to support or augment this study. The study shall be long enough to reflect seasonal effects but not longer than one year.

The Discharger shall also conduct a design feasibility study to assess potential design modifications, such as a liner, that could be implemented at the Silvernale and R-1 ponds to alleviate any infiltration concerns at the ponds. The design feasibility study shall be submitted to the Los Angeles Water Board within six months after the results of the infiltration study are concluded.

Petitioner contends that “[a] stay of the duplicative pond infiltration study requirements is not against the public interest, based on the compelling evidence in the record that no such study is needed, let alone urgently needed, because (i) infiltration is not occurring, (ii) the non-infiltrating constituents in the ponds, if any, are already part of cleanup efforts overseen by DTSC, and (iii) any such study may actively harm DTSC’s ongoing efforts and could potentially exacerbate conditions.” (Mot. 9.)

Petitioner cites testimony of Dr. Michael Stenstrom, a member of the Expert Panel, that “the infiltration rate at Silvernale is essentially zero” and that the contaminants of concern at the ponds are “particulates” that do not migrate downward through soil to groundwater. (Corbett Decl., Exh. J at 27:6-8.) Similarly, Dr. Stenstrom testified that infiltration rate at the other ponds is “0.7 inches per day, which is equivalent to clay soils.” (Id., Exh. J at 27:9-12.) In its October 2023 report, the Expert Panel characterized this infiltration as “very small.” (See Declaration of Michael O. Bower, Exh. B at 39.) The Expert Panel also discussed water level monitoring it obtained for SSFL’s ponds and opined, as follows:

[T]hese modeling analyses and field measurements confirm that stormwater infiltration in the ponds is very low at SSFL. Furthermore, the constituents in stormwater that occasionally exceed the NPDES permit’s water quality standard-based limits and benchmarks (e.g., iron, manganese, lead, and dioxins) are predominately in particulate form, which minimizes their downward migration as they are filtered and sorbed by sediments and decomposing organic materials in the ponds, and soils in the underlying vadose zone. Additionally, no analytes were detected above CA Primary drinking water MCLs in the untreated influent samples collected from Silvernale and R-1 ponds in 2022/23.

A representative of DTSC, the lead agency for groundwater cleanup at SSFL, testified that the ponds will be included as part of the DTSC-supervised Sitewide cleanup, which is still in the planning stages. (Corbett Decl., Exh. J at 36:9-12; 37:6-12.) The Regional Board staff testified that “staff do not recommend a renewed Groundwater Infiltration Study at this time,” based on the Expert Panel’s work and DTSC’s ongoing action at the ponds. (Id., Exh. I at 241:2-3.) The Staff explained, “an investigation of groundwater contamination is ongoing and disturbing sediments will interfere with DTSC’s investigation and could exacerbate conditions further.” (Id. at 240:24-241:2; see also Exh. K, No. 22.)

Based upon the foregoing, Petitioner has established: (1) Studies of the ponds have already been completed; (2) The study of the Silvernale pond showed “essentially zero” infiltration; (3) The study of the R-1 pond showed “very small” amounts of infiltration, equivalent to “clay soils;” (4) The contaminants of concern at the ponds are “particulates” that do not migrate downward through soil to groundwater; and (5) The staff of the Regional Board testified that additional studies of the ponds are not necessary and could interfere with ongoing remediation efforts. Therefore, Petitioner demonstrates that a stay of these studies until after the trial—which should occur this year—would not compromise the public interest. Respondent does not demonstrate any potential harm to the public in delaying these studies.

Based upon the foregoing, the court finds that delaying the studies of the Silvernale and R-1 Ponds until after the trial would not be against the public interest. Therefore, the court grants the motion as it relates to Condition Two.

Condition Three imposes new monitoring requirements for constituents designated “Chemicals of Potential Concern” in the DTSC’s “Standardized Risk Assessment Methodology” (“SRAM”) for the SSFL Site. (Bower Decl. Exh. A at § 4.1 and E-7.) Specifically, Condition Three states in part: “In addition, the Discharger shall conduct influent monitoring for PFAS and the additional remaining constituents of potential concern (COPCs) as identified DTSC for all media in Attachment 1 of Appendix D of the 2014 Standardized Risk Assessment (SRAM), with updates as identified in Table 12-1 of Appendix F of the 2022 SRAM.”

Petitioner contends that a stay of Condition Three “is not against the public interest, because compelling evidence shows that these constituents, if they occur in stormwater at all, would be at very low levels.” (Mot. 11.) As described by Petitioner’s declarant, Project Manager Michael Bower, the SRAM “presents a methodology for future human health and ecological risk assessments for SSFL … [and] contains a list of chemicals that have been detected at some time, in some amount, at SSFL over the course of its long history of environmental investigations.” (Bower Decl. ¶ 11.) Condition Three applies to constituents of potential concern (“CPOCs”) identified by DTSC. (Bower Decl. Exh. A at E-7.) Data from the monitoring required by Condition Three “may be used to inform potential environmental investigation and cleanup at SSFL.” (Id. ¶ 11.)

Petitioner does not cite opinions asserting that the CPOCs at issue do not present a potential health risk to the public if found in stormwater at SSFL, or that monitoring for CPOCs required by Condition Three would not provide useful information to Regional Board. Petitioner also does not assert that the available monitoring tools are unreliable. While Petitioner asserts that Condition Three applies to “naturally occurring metals, including titanium and lithium, that are ubiquitous in SSFL soil but have been detected below the natural background levels for unimpacted soils at SSFL in over 99% of samples,” Petitioner’s declarant does not fully explain the cited sampling evidence, dispute the presence of CPOCs in media at the Site, or provide an expert opinion that testing of stormwater for the CPOCs would be harmful to the public. (Mot. 11, citing Bower Decl. ¶¶ 11-12, Exh. E-F.) Respondent also submits evidence, which Petitioner does not rebut, that “because monitoring requirements for these chemical constituents have not been imposed in prior permits for the SSFL site, the Regional Board is currently unaware whether COPCs are present in stormwater discharges, and, if so, at what concentrations.” (Newman Decl. ¶ 25.) Given that Condition Three applies to CPOCs that have been found on the Site and Petitioner does not show any public harm from the stormwater monitoring for the CPOCs, Petitioner does not satisfy its burden of proving that a stay of Condition Three would be appropriate.

Petitioner also contends that it is unable to analyze 12 of the constituents “because there is no approved method for analyzing them in stormwater, and because Boeing has been unable to find a lab, in a nationwide search, to analyze these constituents in stormwater.” (Mot. 11, citing Miller Decl. ¶¶ 6-7.) The WDRs provide a process by which Petitioner can request Regional Board approval of an alternative testing method. (Bower Decl. Exh. A at E-2 (Nos. 1.4, 1.5), E-5 (No 1.18).) Petitioner has not completed this process. (See Newman Decl. ¶ 28; Reply Corbett Decl. Exh. Q.) Petitioner also does not cite any evidence that it, or the public, would suffer harm if this process of identifying alternative testing methods continued during the pendency of this writ action. Finally, Petitioner does not provide any data or expert opinion concerning the potential health risks of the 12 CPOCs at issue. (See Miller Decl. ¶¶ 6-7.)

Based upon the foregoing, the court finds that Petitioner has not satisfied its burden of demonstrating that a stay would be consistent with the public interest. Therefore, the court denies the motion as it relates to Condition Three.

Condition Four sets new effluent limits at Discharge Points 001 and 002. (Bower Decl., Exh. A § 4.1 and F-27-F-29.) In the Fact Sheet for the WDR, Regional Board provided a rationale for the effluent limits at Discharge Points 001 and 002. (Bower Decl., Exh. A at F-26-F-29.) Regional Board explained that a “reasonable potential analysis (RPA) to determine impacts from the discharge was conducted using data from the second quarter of 2015 to the first quarter of 2023.” (Id., Exh. A at F-26.) Regional Board further explained the addition of effluent limits at Discharge Points 001 and 002, in part, as follows:

This Order converts the benchmarks at Discharge Point 001 and 002 into enforceable effluent limitations. The State Water Board WQ Order 2006-0012 held that “Outfalls 001 and 011 and Outfalls 002 and 018 are duplicative because Outfalls 011 and 018 flow directly to Outfalls 001 and 002, respectively, without any change in flows or discharge in the interim and with only open space between them.” (emphasis added). However, with the implementation of the stormwater treatment systems at Outfalls 011 and 018 beginning in 2010 as well as the initiation of remediation activities, the Los Angeles Water Board has determined that the discharges can no longer be considered unchanged from the interior outfalls (Outfalls 011 and 018) to the perimeter outfalls (Outfalls 001 and 002), respectively.

Petitioner contends that “staying the challenged effluent limits will not deprive the Regional Board or public of any information about stormwater at SSFL, because Boeing is monitoring for these constituents regardless.” (Mot. 11.) Relatedly, Petitioner contends that “[s]eparate from the effluent limits, the WDR includes general prohibitions on discharges of various wastes and materials,” which could be enforced by Regional Board during a stay. (Mot. 12.) Finally, Petitioner argues that the only impact of a stay would be to “eliminate the potential threat to Boeing of mandatory minimum statutory penalties.” (Mot. 11.) These arguments are not persuasive. The new “effluent limits” impose obligations on Petitioner in addition to monitoring. While Petitioner may continue to monitor if Condition Four is stayed, it would not be required to comply with the effluent limits that Regional Board deemed necessary. The purpose of the mandatory minimum statutory penalties is to ensure compliance with the regulations.

Petitioner argues, in effect, that the Regional Board imposed “duplicative effluent limits” at paired outfalls 001 and 011 and paired outfalls 002 and 018. As support, Petitioner cites the State Board’s order from 2006, which “ordered the LA Regional Board not to set limits at all four of the paired outfalls,” and the Internal Waste Stream Rule promulgated in 40 CFR section 122.45(h). (Mot. 12-13, citing Corbett Decl. Exh. L.)[4] In weighing the public interests for and against a stay, the court considers that the Regional Board explained in detail, in the WDR’s fact sheet, how the discharges from the interior outfalls (011 and 018) “are distinct in character and timing” than the perimeter outfalls (001 and 002). (Bower Decl., Exh. A at F-26-F-27.) Further, in the Regional Board proceedings for the current WDR, the EPA representative testified that EPA “support[ed] the inclusion of effluent limits at the Outfalls 01 and 02, and those requirements are consistent with Federal Regulations.” (Newman Decl., Exh. H at 283:9-15.) The EPA representative opined that “the Fact Sheet … appropriately explains how conditions have changed over the ears, including the stormwater treatment is different at each Outfall.” (Ibid.) Petitioner does not show, with discussion of Regional Board’s rationale for the effluent limits or other evidence, that the new limits on Discharge Points 001 and 002 are unnecessary. Nor does Petitioner demonstrate that complying with Condition Four will pose an undue burden.

Based upon the foregoing, Petitioner has not satisfied its burden of demonstrating that a stay is consistent with the public interest. Therefore, the court denies the motion as it relates to Condition Four.

Condition Five sets new effluent limits for aluminum. (Bower Decl. Exh. A § 4.1 and F-29; see also Corbett Decl. Exh. K at No. 3, p. 9.) Petitioner contends that a stay of Condition Five is not against the public interest for the same reasons as Condition Four, “namely, Boeing will continue to monitor aluminum in stormwater, and the LA Regional Board will retain enforcement authority to protect human health and the environment.” (Mot. 13:16-19.) The court again disagrees with Petitioner’s analysis.

Petitioner contends that “[s]etting an effluent limit for aluminum exceeds the LA Regional Board’s jurisdiction under the Clean Water Act, because it may only regulate ‘significant materials’ that remain from former industrial activities, 40 C.F.R. § 122.26(a)(1)(ii) and (b)(14), which would not include” aluminum. (Mot. 13.) As noted, the court is not required to consider Petitioner’s likelihood of success on the merits for a motion for stay pursuant to section 1094.5(g). (See Canyon Crest Conservancy, supra, 46 Cal. App. 5th at 406-07.) Regardless, 40 CFR section 122.26 applies to “[s]torm water discharge associated with industrial activity,” which is defined as “the discharge from any conveyance that is used for collecting and conveying storm water and that is directly related to manufacturing, processing, or raw materials storage areas at an industrial plant.” (40 CFR § 122.26(b)(14).) Respondent cites record evidence that aluminum has some industrial applications related to the former industrial activities at the Site. “For example, aluminum is a component in solid rocket propellants as well as building material for space shuttles and equipment.” (Newman Decl. Exh. G at 8-9 [response to comments]; see also Newman Decl. ¶¶ 31-32.)

Finally, Petitioner contends that a stay is not against the public interest because aluminum is a “naturally occurring metal”; the Expert Panel concluded that aluminum exceedances in stormwater at the Site “are likely from natural background soils”; and Regional Board has not previously set effluent limits for aluminum at the Site. (Mot. 13-14, citing Bower Decl. Exh. B at App. C at 33-35; Id. Exh. C at 41; and Bower Decl. ¶ 7.) As noted, there is evidence that aluminum has some industrial applications related to the former industrial activities at the Site. (Newman Decl. ¶¶ 31-32 and Exh. G at 8-9.) The Expert Panel’s report also indicates that aluminum was detected above the 1 mg/L effluent limit at Outfall 008 in 2022/2023. (Bower Decl. Exh. B at App. C at 33.) Newman also declares that “data collected during the prior permit term shows that aluminum exceeded the applicable water quality objective of 1 mg/l at all outfalls.” (Newman Decl. ¶ 31.) These circumstances show that a stay would be against the public interest. Petitioner has not demonstrated that complying with Condition Five will pose an undue burden.

Petitioner argues that a stay “is needed in this case to preserve this Court’s ability to meaningfully review the Contested Conditions.” (Mot. 14-15.) Petitioner argues that “[w]ithout a stay, this case will provide a blueprint to permitting agencies in California for how to evade judicial review by setting short deadlines for permit compliance before there is an opportunity for review.” (Mot. 2.) In discussing the “timeline” of this case, Petitioner ignores the lengthy public comment process that started in December 2021 and continued through October 2023, when Regional Board adopted the WDRs. (See Newman Decl. ¶¶ 3-10.) That lengthy public process undercuts Petitioner’s implication that Regional Board is seeking to evade review of the permit conditions.

Further, the Legislature has provided permittees with two avenues to seek interim relief if the permit’s conditions apply during the pendency of review. The permittee may seek a stay from State Board (Water Code § 13321) or from the superior court (Code Civ. Proc. § 1094.5 (g).) Here, Petitioner sought a stay from the State Board, a stay from this court on an ex parte basis in December 2023, and a stay from this court based on this noticed motion. Petitioner has received ample “process” and opportunity to prove that permit conditions should be stayed pending final review by this court. Staying the conditions is not necessary to preserve judicial review.

1. The court grants Petitioner’s motion to stay Condition Two, which requires groundwater infiltration studies at the Silvernale and R-1 Ponds, pending trial in this matter.

[1] Petitioner also relies, in part, on expert evidence that may not be part of the administrative record. (See Long Decl. Exh. 1.)

[2] Specifically, the condition states, in relevant part: “Monitoring for PCBs as aroclors and PCBs as congeners are required…. PCBs as congeners shall be individually quantified (or quantified as mixtures of isomers of a single congener in coelutions as appropriate) using U.S. EPA proposed method 1668c or using a high-resolution EPA-approved method. U.S. EPA recommends that until the proposed Method 1668c for PCBs is incorporated into 40 CFR § 136, Dischargers should use for discharge monitoring reports/State monitoring reports … U.S. EPA proposed method 1668c for monitoring data, reported as 44 congener results, that will be used for informational purposes to help assess concentrations in the receiving water.” (Bower Decl. Exh. A at E.14.)

[3] In reply, Petitioner suggests that the EPA representative lacked authority to speak for the EPA on this issue. (Reply 9.) Petitioner does not cite evidence that supports its position.

[4] Section 122.45(h), titled “Internal waste streams”, provides in pertinent part as follows: “(1) When permit effluent limitations or standards imposed at the point of discharge are impractical or infeasible, effluent limitations or standards for discharges of pollutants may be imposed on internal waste streams before mixing with other waste streams or cooling water streams…. (2) Limits on internal waste streams will be imposed only when the fact sheet under § 124.56 sets forth the exceptional circumstances which make such limitations necessary, such as when the final discharge point is inaccessible … , the wastes at the point of discharge are so diluted as to make monitoring impracticable, or the interferences among pollutants at the point of discharge would make detection or analysis impracticable.”