Judge Stephen I. Goorvitch, Case Number: 23STCP04550, Date: 2024-11-20 Tentative Ruling

Judge: Stephen I. Goorvitch, Case: 23STCP04550, Date: 2024-11-20 Tentative Ruling

Regional Water Quality Department: 82 Control Board, Los Angeles Region Judge: Stephen I. Goorvitch

The Boeing Company (“Petitioner” or “Boeing”) filed this 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 “WDRs”) for the Santa Susana Field Laboratory set by the Regional Water Quality Control Board, Los Angeles (“Respondent” or the “Board”). The final WDRs imposed, among other things, six requirements that Petitioner challenges in its writ petition: (1) New effluent limits at Outfalls 001 and 002; (2) New effluent limits for aluminum; (3) A new monitoring requirement for PCB congeners; (4) New monitoring requirements for constituents listed in the Department of Toxic Substances Control’s “Standardized Risk Assessment Methodology” for SSFL; (5) Retained effluent limits from the prior NPDES permit; and (6) New requirements for groundwater infiltration studies at the Silvernale and R-1 Ponds.

The Board has authority to impose the monitoring requirements at issue. However, there is an abuse of discretion if the Board’s decisions are not supported by the findings. (Topanga Ass’n for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 515.) In this case, the Board did not make sufficient findings with respect to two monitoring requirements. First, the Board imposed monitoring requirements with respect to the chemicals listed in Table 12-1. The record is unclear whether these requirements apply to every chemical on the list. If so, Board did not make sufficient findings, especially with respect to chemicals that are “naturally occurring” and “low toxicity,” like acetic acid and titanium. Second, the Board elected to continue monitoring for antimony, nickel, selenium, thallium, and TCDD at Outfall 008, even though the Board expressly acknowledged recent data indicating that there is no reasonable potential for these constituents to cause or contribute to an excursion above any water quality standard. The Board did not make sufficient findings to explain this discrepancy.

Based upon the foregoing, the court issues a writ directing the Board to set aside these requirements and to reconsider them in light of this court’s decision and judgment. This order shall not prevent the Board from re-imposing these requirements, provided the Board makes sufficient findings. The court’s decision to set aside the monitoring of chemicals in Table 12-1 applies only to “[a]dditional remaining COPCs for all media as identified in the SRAM” and does not disturb the monitoring requirements of any chemical specifically identified in Table E-2 or of any chemical subject to monitoring through a different WDR. In other words, this ruling applies only to chemicals list in Table 12-1 that are not identified elsewhere in the WDRs or otherwise subject to monitoring. The petition is otherwise denied.

The Santa Susana Field Laboratory (“SSFL”) is a 2,850-acre, former industrial property in the Simi Hills of Ventura County. (AR 6835.) The SSFL site is located within miles of the West San Fernando Valley and Simi Valley, among other residential communities. (AR 5987.) “More than 700,000 people live within ten miles of SSFL.” (Ibid.)

The SSFL site is jointly owned by Petitioner and the federal government. (AR 6835.) SSFL has a long history of site contamination caused by former industrial activities of Petitioner, its predecessors, and the federal government. As summarized in the Fact Sheet for the WDRs:

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).

NASA operations included rocket engine assembly and testing, propellant and fuel storage and loading. Rocket engine testing began at SSFL in the 1950s. An engine test consisted of a cycle of one to three engine runs lasting one to three minutes each. A test cycle may take one to two weeks to complete. Each engine run resulted in the use of 50,000 to 200,000 gallons of deluge/cooling water that contacted fuels such as liquid oxygen (LOX) or kerosene and associated combustion products. The frequency of testing historically varied depending on production requirements. In July 2004, the frequency of testing was one test cycle every one or two months. In late 2006, the rocket engine and component testing operations at the Facility were terminated. These tests generated fuel related pollutants and heavy metals. Two of the test stand complexes and the associated spillways remain onsite….

[The Department of Energy’s] past operations included research and development of energy related programs, and seismic testing experiments. The activities included developing, testing and operating nuclear reactors and fabricating and disassembling nuclear fuel. DOE began to phase out the program in the 1960s. The last reactor was shut down in 1980, and nuclear research was terminated in 1989. The research and the associated activities resulted in residual soil and groundwater contamination.

Industrial operations at the SSFL site have ceased, and current activities include environmental monitoring and remediation. Petitioner and the federal government have been implementing soil and groundwater investigation and cleanup at SSFL, under orders by the California Department of Toxic Substances Control (“DTSC”). (AR 6836, 33729.)

Each time it rains, pollutants at the site have the potential to mix with stormwater that runs over the soil and, eventually, off the site through discrete “Discharge Points” or “Outfalls”. (AR 6835-6838, 6846.) Most of the stormwater is collected in two ponds, Silvernale and R-1, before being treated and discharged via Discharge Points 011 and 018. (AR 6837.) As relevant to this writ petition, the Fact Sheet summarizes the stormwater discharges from the site as follows:

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. 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, with its confluence located near the intersection of Bassett Street and Owensmouth Avenue in Canoga Park. Upstream outfalls that contribute to the discharge at Discharge Points 001 and 002 include Discharge Points 011 and 018.

The stormwater from the northern boundary of the site is discharged via Discharge Points 003 through 007 and 010 or it is transferred to Silvernale Pond for treatment prior to discharge at Discharge Point 018.

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 because stormwater discharges associated with former industrial activities at the site continue to occur at and from SSFL. “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 v. State Water Resources Control Board (2005) 35 Cal.4th 613, 620, citations omitted.) “To accomplish this goal, the Act established ‘effluent limitations,’ which are restrictions on the ‘quantities, rates, and concentrations of chemical, physical, biological, and other constituents’; these effluent limitations allow the discharge of pollutants only when the water has been satisfactorily treated to conform with federal water quality standards.” (Ibid., citing 33 U.S.C.

Part of the federal Clean Water Act is the National Pollutant Discharge Elimination System (NPDES), the primary means for enforcing effluent limitations and standards under the Clean Water Act. 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. 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 621, citations, alterations, and internal quotations omitted; see also Sweeney v. California Regional Water Quality Control Board (2021) 61 Cal.App.5th 1093, 1113 [discussing Porter-Cologne Act].)

The process of issuing the operative Waste Discharge Requirements (“WDRs”) began in October 2019. (AR 6835.) The Board conducted site visits, published multiple draft “Tentative WDRs” for notice and comment, and held three public hearings in February 2022, September 2023, and October 2023. (See AR 4195-874, 5044-49, 5145-410, 5713-6348, 6499-544, 6742-967.) The final WDRs imposed, among other things, six requirements that Petitioner challenges in its writ petition: (1) new effluent limits at Outfalls 001 and 002; (2) new effluent limits for aluminum; (3) a new monitoring requirement for PCB congeners; (4) new monitoring requirements for constituents listed in the Department of Toxic Substances Control’s (DTSC) “Standardized Risk Assessment Methodology” (SRAM) for SSFL; (5) retained effluent limits from the prior NPDES permit; and (6) new requirements for groundwater infiltration studies at the Silvernale and R-1 Ponds. (AR 6748-51, 6805, 6812, 6827, 6860.)

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. Petitioner also filed a request for a stay. Both were deemed dismissed by operation of law on February 19, 2024, after the State Board declined to issue a decision. (First Amended Petition

The petition is brought pursuant to Water Code section 13330, which states in relevant part as follows:

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. . . .

Under the independent judgment test, “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 “must weigh all the evidence for itself and make its own decision about which party’s position is supported by a preponderance. 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; accord Atlantic Richfield Co. v. Cal. Reg. Wat. Quality Control Bd. (2022) 85 Cal.App.5th 338, 353.)

The court exercises its independent judgment on questions of law arising in mandate proceedings. (Christensen v. Lightbourne (2017) 15 Cal.App.5th 1239, 1251.) The interpretation of statute or regulation is a question of law. (See State Farm Mutual Automobile Insurance Co. v. Quackenbush (1999) 77 Cal.App.4th 65, 77.) “An administrative agency’s construction of the authority vested in the agency to carry out a statutory provision is entitled to great weight and will be followed unless it is clearly erroneous or unauthorized.” (Monterey Coastkeeper v. State Water Resources Control Board (2018) 28 Cal.App.5th 342, 363.) “Greater deference should be given to an agency’s interpretation where the agency has expertise and technical knowledge, especially where the legal text to be interpreted is technical, obscure, complex, open-ended, or entwined with issues of fact, policy, and discretion.” (Ibid.)

Petitioner bears the burden of proof and persuasion in this writ action. (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 an appellant challenges “the sufficiency of the evidence, all material evidence on the point must be set forth and not merely [its] own evidence.” (Toigo v. Town of Ross (1998) 70 Cal.App.4th 309, 317.) “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 Board (2018) 27 Cal.App.5th 500, 513.) A reviewing court “will not act as counsel for either party to an appeal and will not assume the task of initiating and prosecuting a search of the record for any purpose of discovering errors not pointed out in the briefs.” (Fox v. Erickson (1950) 99 Cal.App.2d 740, 742.)

The Board requests judicial notice of (1) the fact that the PCBs listed in 40 C.F.R., section 136.3, table 1C(88) – (94) (PCB-1016, -1221, -1232, - 1242, -1248, -1254, and -1260) are Aroclors, not congeners; and (2) tables published by the United States Environmental Protection Agency (the “EPA”) listing known PCB Aroclors and congeners. Petitioner objects to the first request but not the second. (Reply 12, fn. 6.) The Board’s first request for judicial notice is reasonably subject to dispute. Accordingly, judicial notice of the first request is DENIED. (Evid. Code § 452(b).) The Board’s unopposed request for judicial notice of the EPA tables submitted as Exhibits A and B, which are part of the federal regulations, is GRANTED.

Petitioner requests judicial notice of the publication and contents of a final report by the EPA dated February 25, 1976 and titled “PCBs in the United States Industrial Use and Environmental Distribution, Task I.” The Board filed objections. Petitioner essentially seeks to augment the administrative record with evidentiary material from the EPA report. Petitioner did not comply with Code of Civil Procedure section 1094.5(e) to augment the record. Accordingly, Petitioner’s request for judicial notice is DENIED

Petitioner contends that the Board violated the Internal Waste Stream Rule when setting effluent limits at four paired outfalls, 001 and 011, and 002 and 018. (Opening Brief (“OB”) 7-8.) That rule provides that “[w]hen 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.” (40 C.F.R. § 122.45(h)(1).) The rule further provides that “[l]imits 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. . . .” (40 C.F.R. § 122.45(h)(2).)

Petitioner did not raise this issue—a violation of the Internal Waste Stream Rule—during the administrative proceedings and, therefore, failed to exhaust its administrative remedies. Exhaustion of administrative remedies is “a jurisdictional prerequisite to judicial review.” (Cal. Water Impact Network v. Newhall County Water Dist. (2008) 161 Cal.App.4th 1464, 1489.) “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 Refining & Marketing Co. LLC v. Los Angeles Regional Water Quality Control Board (2019) 42 Cal.App.5th 453, 469.)

On August 21, 2023, Petitioner argued in written comments submitted to the Board that establishing effluent limits at Outfalls 001 and 002 would violate a 2006 opinion of the State Water Resources Control Board “because it places a second compliance point on surface water that is already subject to effluent limitations” at Outfalls 011 and 018. (AR 6972-73.)[1] The Board addressed that issue by identifying the changed circumstances requiring monitoring Outfalls 011/018 and Outfalls 001/002. (See AR 6857-6860.)

Petitioner further stated that if the Board “believes that some surface water from industrial areas … may be discharged to Outfalls 001 and 002 that is not treated at Outfalls 011 and 018, then the appropriate change would be to designate Outfalls 001 and 002 as the compliance points, and change Outfalls 011 and 018 to be benchmark locations.” (Ibid.) In the comment, Petitioner explained the history of the effluent limitations and the 2006 State Board Order:

In 2006, as in the current proposed permit, the Regional Board had proposed to impose effluent limitations on Outfalls 001, 011, 002, and 018. Boeing appealed the permit to the State Board, which reversed, stating that the Board could impose such limitations on Outfalls 001 and 002 or Outfalls 011 and 018, but not both…. In the 2006 Order, the State Board determined that the Regional Board could not set effluent limitations at the paired outfalls of Outfall 001/011 and 002/018 because of the potential double counting of violations.

In its written and oral comments, Petitioner never argued that imposing new effluent limits at Outfalls 001 and 002 would violate the Internal Waste Stream Rule. To the contrary, Petitioner made clear that it would support maintaining the effluent limitations at Outfalls 011 and 018 and the benchmark limits at Outfalls 001 and 002. (AR 5962-5964.) As Petitioner’s representative phrased it at the Board hearing: “[W]e respectfully ask that the perimeter Outfalls at 1 and 2 remain as benchmark limits.” (AR 6403.) Petitioner did not argue that the Board needed to make findings under Internal Waste Stream Rule to maintain the effluent limits at Outfalls 011 and 018, even though they are located at the interior of the site. (AR 5962-5964, 6403, 6602-6603.)

In reply, Petitioner argues that it sufficiently raised the issue below because it cited the Clean Water Act in oral comments before the Board. (Reply 5-6, citing AR 6604, 6602-6603.) Petitioner’s representative stated that “Setting compliance points at paired outfalls would violate … the State Water Board’s 2006 order and the Clean Water Act.” (AR 6602:25-6603:2.) This general reference to the Clean Water Act was inadequate to exhaust administrative remedies. While Petitioner did not need to specifically cite section 122.45(h) of the federal regulations in its comments, see Reply 6:7-15, its objections needed to be “sufficiently specific so that the agency has the opportunity to evaluate and respond to them.’” (Sierra Club v. City of Orange (2008) 163 Cal.App.4th 523, 536.) Petitioner did not satisfy this standard. In fact, Petitioner affirmatively encouraged the Board to maintain the status quo, which consisted of effluent limits at Outfalls 011 and 018 and only “benchmark limits” at Outfalls 001 and 002. (AR 5962-5964, 6403, 6602-6603.)[2]

Contrary to Petitioner’s assertion, the Board cited generally to section 122.45(a) in its responses to comments, not the Internal Waste Stream rule found at section 122.45(h). (See Reply 6:15-18, citing AR 6973.) Nor did the Board discuss the Internal Waste Stream Rule in its findings. (AR 6857-6860.) Thus, Petitioner does not demonstrate that the Board was aware of or considered a contention that it needed to make findings under the Internal Waste Stream Rule to maintain effluent limits at Outfalls 011 and 018. Accordingly, Petitioner did not exhaust its administrative remedies with respect to its new arguments based on the Internal Waste Stream Rule. This argument has been forfeited.[3]

The Clean Water Act governs “navigable waters” but “does not generally regulate waters internal to a waste processing system.” (See Texas Municipal Power Agency v. Administrator of U.S. E.P.A., 836 F.2d 1482, 1486 (5th Cir. 1988).) The Internal Waste Stream Rule provides an exception which allows the permitting authority to impose effluent limits “on internal waste streams before mixing with other waste streams or cooling water streams” when permit effluent limitations at the point of discharge—the location where a pollutant is released into the water—would be “impracticable or infeasible.” (40 C.F.R. § 122.45(h)(1), (2).)

The Board argues that the Internal Waste Stream Rule does not apply because “although Outfalls 011 and 018 are geographically upstream of Outfalls 001 and 002, the evidence establishes that they are not merely points along internal waste streams that terminate at Outfalls 001 and 002.” (Oppo. 8-9.) The Board is correct. (See 40 C.F.R. § 122.45(a) [“permit effluent limitations, standards and prohibitions shall be established for each outfall or discharge point of the permitted facility”]; see also American Iron and Steel Institute v. E.P.A. (D.C. Cir. 1997) 115 F.3d 979, 995-96 (D.C. Cir. 1997) [“The [Board] may regulate the pollutant levels in a waste stream that is discharged directly into the navigable waters of the United States”].) In its briefing, Petitioner does not explain why the tributaries or streams within the SSFL site, which is nearly 3,000 acres, would not be considered navigable waters of the United States. (See e.g. AR 71235, Figure 29; AR 6274 [map showing streams within SSFL site]; AR 6262 [picture of a stream].) Therefore, the court finds that the Internal Waste Stream Rule does not apply.

In the alternative, the Board likely complied with the Internal Waste Stream Rule, assuming it applies. The effluent limits at Outfalls 011 and 018 were included in the prior WDRs, consistent with the State Board’s 2006 Order. The Regional Board’s current findings also explain the circumstances requiring effluent limits to be placed at Outfalls 011 and 018. (AR 6857-6860.) Originally, “Outfalls 001 and 011 and Outfalls 002 and 018 [were] duplicative because Outfalls 011 and 018 flow[ed] directly to Outfalls 001 and 002, respectively, without any change in flows or discharge in the interim and with only open space between them.” (AR 6857.) Due to a variety of factors, which are outlined in the final NPDES permit and response to comment, this changed. (See AR 6857-6860.) Monitoring at the point of discharge was “impracticable or infeasible” for the same reasons that supported the initial monitoring of Outfalls 011 and 018. For example, the Board noted:

Effluent monitoring locations must be representative of the effluent being discharged into the receiving water(s). (40 CFR 122.48(b).). Per U.S. EPA guidance, “[e]ffluent monitoring locations should be established after all industrial uses and treatment processes.” (Permit Writers Handbook, section 8.1.2.3. p. 8-4). The Guidance also states that it is appropriate to require “effluent monitoring …to provide data to assess the possible impact of the discharge on the receiving water.” (Id.)

(AR 6858.) These findings may be sufficient to comply with the Internal Waste Stream Rule, to the extent it applies, especially considering that Petitioner did not adequately raise the issue below. Thus, Petitioner has not shown that the Board prejudicially abused its discretion, or that the weight of the evidence does not support the Board’s findings, for effluent limits at outfalls 001 and 011, and 002 and 018.

Petitioner contends that the Board exceeded its authority in adopting effluent limits on aluminum in the WDRs. (OB 8-10.) Petitioner does not take issue with the effluent limits selected by the Board for aluminum. Rather, Petitioner challenges the Board’s determination that the aluminum present on site and found through sampling is “associated with industrial activity” and has a “reasonable potential” to cause or contribute to an excursion above a State water quality standard.

Under the Clean Water Act and its implementing regulations, dischargers must obtain a NPDES permit for any “stormwater discharge[] . . . associated with industrial activity.” (33 U.S.C. § 1342(p)(2)(B); see also 40 C.F.R. § 122.26(a)(1)(ii) [same].) Federal regulations define “storm water discharge associated with industrial activity” to include discharges from areas “where industrial activity has taken place in the past and significant materials remain and are exposed to storm water.” (40 C.F.R. § 122.26(b)(14); see also 40 C.F.R. § 122.26(b)(12) [defining “significant materials”].) Federal regulations further state that each NPDES permit “shall” include, among other things, limitations that “control all pollutants … which the [Board] determines are or may be discharged at a level which will cause, have the reasonable potential to cause, or contribute to an excursion above any State water quality standard, including State narrative criteria for water quality.” (40 C.F.R. § 122.44(d)(1)(i).) “The EPA has interpreted ‘reasonable potential’ to mean ‘some degree of certainty greater than a mere possibility.’” (City of Taunton, Massachusetts v. EPA, 895 F.3d 120, 133 (1st Cir. 2018.)

The federal regulations do not require the Board do show, for each pollutant contained within a stormwater discharge, that Petitioner’s former industrial activities deposited that pollutant in a soil at a level that would itself result in an exceedance of applicable State water quality standards. Rather, the Board must show that the pollutant contained in a stormwater discharge is “associated with” the former industrial activity at SSFL. (40 C.F.R. § 122.26(a)(1)(ii).) As the U.S. Court of Appeals for the Ninth Circuit has observed, the language “discharges associated with industrial activity” is “very broad.” (Natural Resources Defense Council, Inc. v. U.S. E.P.A. (9th Cir. 1992) 966 F.2d 1292, 1304.) “The operative word is ‘associated.’ It is not necessary that storm water be contaminated or come into direct contact with pollutants; only association with any type of industrial activity is necessary.” (Ibid.)

Here, the former industrial activities at SSFL included “research, development, assembly, and testing of rocket engines.” (AR 6836.) Aluminum is a known component in solid rocket propellants and related equipment. (AR 6979-6980.) Site records indicate that ignition sources, including triethylaluminum, were stored, used, or produced in the “Igniter & Explosive Storage Area” on-site. (AR 71760-61, 71804, 71808, 76911.) Site records also list aluminum as a constituent that may have been deposited in soil because of “combustion and detonation” of chemicals in the burn pit on-site. (AR 74928.) “The soil sampling results showed that relatively consistent, low concentrations of metals were detected throughout the depositional area, with somewhat higher concentrations detected closest to the burn pit locations, which is consistent with the depositional modeling results.” (Ibid.) Records also indicate that aluminum is currently used and stored on site, in a covered area with “secondary containment,” in connection with Petitioner’s stormwater treatment processes. (AR 2040-41, 2050, 2053, 2058, 2063.)

Petitioner argues that the record evidence proves that “aluminum in SSFL soil and stormwater is naturally occurring, not the result of industrial activity.” Petitioner relies primarily on the 2022/2023 Site-Wide Stormwater Annual Report of the Surface Water Expert Panel (“Expert Panel”), as well as testimony of Dr. Michael Stenstrom, a member of the Expert Panel, and Petitioner’s presentation slides from the September 28, 2023, hearing. (OB 8-10, citing AR 71235-37, 6599, 36531, 6274, 6397-98.)[4] Specifically, Appendix C to the Expert Panel’s report states, in pertinent part:

Aluminum concentrations were detected above the 1 mg/L tentative effluent limit at Outfall 008 one time in 2022/23. The limit for aluminum is based on the primary drinking water MCL which assumes a lifetime consumption at that level.

The concentrations of aluminum in onsite soil samples collected from the top 6 inches were mapped over the potential soil cleanup areas identified in DTSC Potential Environmental Impact Report and colored to show ones below the background threshold yellow and those above purple (4 samples) in Figure 29. This figure demonstrates that aluminum concentrations in unimpacted soils across site are no different than aluminum concentrations in soil cleanup areas (orange shaded areas). As reflected in Figure 29, more than 99.9% of soil samples have aluminum concentrations below the background threshold value (BTV), which is further evidence that there are no industrial or impacted soil sources of aluminum at the site, and therefore aluminum exceedances in stormwater are likely from natural background soils.

Three questions have come up in the past part of the hearing and I wish to comment on them. The first is the aluminum source. Soil data shows that 99.9-percent of the samples taken across the site over the years are below the background threshold for aluminum and Santa Susana Field Laboratory stormwater concentrations in aluminum are at or below offsite background stormwater concentrations. And the aluminum to iron ratios further confirm Santa Susana stormwater, that aluminum is from background soils.

(AR 6599.) Petitioner’s slides for the September 28, 2023, Board hearing similarly state that “Aluminum detected in surface soil above DTSC approved background at only 4 out of 6,496 samples.” (AR 6274.) Like the Expert Panel’s report, Petitioner’s presentation slides include a map showing the distribution of aluminum detection at the site. (Ibid.)

As the Board argues, the Dr. Stenstrom’s testimony and the Expert Panel’s findings are not conclusive. (See Oppo. 11.) Figures 29 and 30 in the report show that there was one exceedance of the tentative effluent limit in the 2022/2023 year at Outfall 008, as well as several exceedances at “background locations.” Figures 29 and 30 also show that aluminum was present, albeit below the tentative limit, throughout the SSFL site. Significantly, the report states that “[w]ith only one sample per outfall location this year, there is not sufficient data to inform spatial trends.” In addition, the report acknowledges that “[t]here is less data available for a source evaluation since aluminum has not been included in recent stormwater investigations.” (See AR 71234-71237.)

Petitioner argues that the aluminum effluent limits are not supported by a reasonable potential analysis, or “RPA.” (OB 9.) Even though the tentative WDRs proposed effluent limits on aluminum based on a RPA, Petitioner did not argue in the administrative proceedings that the Board’s RPA with respect to aluminum was deficient. Thus, Petitioner failed to exhaust administrative remedies for this argument. (See AR 5283; Oppo. 12, fn. 6, citing AR 6979, 6397-98, 6603-04; Reply 11, fn. 5.) Regardless, Petitioner does not adequately support its position that the Board did not conduct a legally sufficient “reasonable potential” analysis. Pursuant to the federal regulations, the permit writer must determine if there is a reasonable potential “to cause, or contribute to an excursion above any State water quality standard, including State narrative criteria for water quality.” (See 40 C.F.R. § 122.44(d)(i)-(iii).) If a reasonable potential is found, “the permit must contain effluent limits for that pollutant.” (40 C.F.R. § 122.44(d)(iii).) The Board’s findings state that the aluminum effluent limits are “based on RPA.” (AR 6860.) Specifically, the Board analyzed monitoring data and concluded that a reasonable potential existed for aluminum “to cause or contribute to an excursion above an applicable state or federal water quality standard in the receiving water.” (See AR 6869, 6872-6875.) Petitioner has not argued that these findings are deficient, but rather that they are not supported by evidence. The court disagrees. There is evidence in the record that supports these findings. (See e.g. AR 6872-6875, 6988-6989; see also AR 7258, 9101, 11228, 11979, 22331.)

Petitioner argues that “the Board did not actually complete an RPA for aluminum; at least, there is none in the record.” (OB 9, citing AR 6920-67, 80264, 80313.) Petitioner appears to be correct that certain formal RPAs in the record do not refer to aluminum. The Board has not argued to the contrary in opposition. (Oppo. 12, fn. 6.) Nevertheless, the Board’s findings state that RPA was performed for aluminum and other evidence supports those findings. (AR 6860, 6869, 6872-6875, 6988-6989; see also AR 7258, 9101, 11228, 11979, 22331.) There is a presumption of correctness in the Board’s findings. Petitioner has not cited any authority that the RPA must be documented in some specific way. For instance, Petitioner has not explained why the Board could not consider testimony and other evidence presented at the hearings in deciding to add effluent limits for aluminum. Also, the administrative record is more than 100,000 pages in length and may contain other evidence supporting the Board’s RPA findings for aluminum. At the hearing, Petitioner’s and Board’s counsel should further discuss the evidence in the record showing that RPA was performed for aluminum. If the Board did not conduct RPA for aluminum, that could be grounds to remand for reconsideration. However, based on the briefing, the court is not persuaded that the Board did not conduct RPA for aluminum.

In sum, the court concludes that the Board’s findings for adding effluent limits for aluminum are supported by the weight of the evidence and are not a prejudicial abuse of discretion. Based on the monitoring data, including the exceedances of the tentative limit, as well as the evidence that aluminum was used on site during industrial activities, the Board reasonably concluded that aluminum is “associated with” past industrial activities at the site and that stormwater discharges have a reasonable potential “to cause, or contribute to an excursion above any State water quality standard” with respect to aluminum. (emphasis added.) The Expert Panel’s report and related evidence from the hearing were not conclusive and, in the court’s independent judgment, did not require the Board to conclude that the reasonable potential standard was not met with respect to aluminum.

The WDRs require Petitioner to monitor for the presence of PCB congeners in stormwater discharges from the site using EPA proposed Method 1668C. (AR 6812.) Petitioner argues that this monitoring requirement should be set aside because: (1) Method 1668C is not an “approved” method under 40 C.F.R. Part 136, and (2) the Board allegedly failed to balance the benefits and burdens under Water Code section 13267. (OB 10-14.)

PCBs are man-made, organic chemicals that persist in the environment, exposure to which can cause a variety of serious health conditions. (AR 36264-65.) As summarized by the EPA, “PCBs were previously used in hundreds of industrial and commercial applications including: electrical, heat transfer and hydraulic equipment; plasticizers in paints, plastics and rubber products; pigments, dyes and carbonless copy paper; and other industrial applications. The PCBs used in these products were chemical mixtures made up of a variety of individual chlorinated biphenyl components known as congeners. Most commercial PCB mixtures are known in the United States by their industrial trade names, the most common being Aroclor.” (Ibid.)

Prior permits had only required Petitioner to monitor for Aroclors, the commercial mixtures of individual PCB components. The operative WDRs, for the first time, require Petitioner to monitor for the individual components of PCBs—known as congeners—using Method 1668C “for informational purposes.” (See AR 6812, 6995-96, 36264-65, 77734-35.) “Part 136 methods [in the federal regulations] for chlorinated biphenyls (PCBs) only measure a mixture of congeners in seven Aroclors—PCB–1016, PCB–1221, PCB– 1232, PCB–1242, PCB–1248, PCB–1254, and PCB–1260, while Method 1668C can measure the 209 PCB congeners in these mixtures.” (AR 34150; see 40 C.F.R. § 136.3, Table IC, Nos. 88-94.)

Monitoring for PCBs as aroclors and PCBs as congeners are required. PCBs as aroclors shall mean the sum of chlorinated biphenyls whose analytical characteristics resemble those of Aroclor-1016, Aroclor-1221, Aroclor-1232, Aroclor-1242, Aroclor-1248, Aroclor-1254, and Aroclor-1260, and shall be analyzed using USEPA method 608.3. 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.

Petitioner contends that Method 1668C is not an EPA-approved test method for PCBs; that the Board did not apply to EPA for approval to use Method 1668C; and that the federal regulations do not authorize the use of unapproved testing methods for “informational purposes.” Petitioner relies primarily on 40 C.F.R. section 136.1(a), which states in pertinent part:

The procedures prescribed herein shall, except as noted in §§ 136.4, 136.5, and 136.6, be used to perform the measurements indicated whenever the waste constituent specified is required to be measured for:

(1) An application submitted to the Director and/or reports required to be submitted under NPDES permits or other requests for quantitative or qualitative effluent data under parts 122 through 125 of this chapter.

Petitioner raises a question of regulatory interpretation. “A statute must be construed in the context of the entire statutory system of which it is a part, in order to achieve harmony among the parts.” (People v. Hull (1991) 1 Cal. 4th 266, 272.) This rule applies to the interpretation of a regulation. (See County of Sacramento v. State Water Resources Control Board (2007) 153 Cal.App.4th 1579, 1586.) Here, section 136.1(a) applies only to waste constituents that are “specified” in “the procedures prescribed herein,” which refers to the testing procedures set forth in Part 136 of the regulations. This interpretation is supported by the tables to section 136.3, which are lists of “approved test procedures.” Furthermore, section 122.44(i)(1)(iv)(B) of the federal regulations expressly states that “[i]n the case of pollutants or pollutant parameters for which there are no approved methods under 40 CFR part 136 … , monitoring shall be conducted according to a test procedure specified in the permit for such pollutants or pollutant parameters.” Thus, if a waste constituent is not specified in the testing procedures, Part 136 does not control. Instead, when “pollutants covered by the permit do not have approved test methods, EPA [and the Board] may use ‘a test procedure specified in the permit.’” (Natural Resources Defense Council, Inc. v. U.S. E.P.A., 863 F.2d 1420, 1430 (9th Cir. 1988), citing 40 C.F.R. § 122.44(i)(1)(iv).)

As shown in the record and Table IC of section 136.3, the federal regulations only include testing methods for eight PCBs (PCB-1016, -1221, 1232, -1242, -1248, -1254, and -1260), all of which are PCB Aroclors, not congeners. (See AR 34150 and 40 C.F.R. § 136.3, Table IC, Nos. 88-94.) Petitioner concedes this in reply when it states that “approved Method 608.3 tests for Aroclors, whereas Method 1668C can test for individual congeners.” (Reply 12:12-13.) Petitioner, who has the initial burden under Code of Civil Procedure section 1094.5, does not show there is an approved testing method for congeners in Part 136 of the federal regulations.

Petitioner argues that “Aroclors are mixtures of congeners” and Methods 608.3 and 1668C “are two different methods of monitoring for the same pollutant, PCBs.” (Reply 12-13; see also OB 11-12.) This argument does not show any error in the Board’s decision. Table IC of section 136.3 includes testing methods for eight different PCB Aroclors, which suggests that each Aroclor mixture should be viewed as a “waste constituent” for purposes of Part 136. Since Aroclors are made up of congeners, and since congeners themselves are PCBs, see AR 34150, 36270, 77734-35, individual congeners are reasonably viewed as “waste constituents” for which testing methods could be authorized. Indeed, proposed Method 1668c was created to test for individual congeners.

Petitioner contends that the Board lacks authority to require testing for individual congeners for informational purposes. (Reply 12-14; see also OB 11-12.) The court is not persuaded. The federal regulations on which Petitioner relies, mainly those in Part 136, do not prohibit monitoring requirements for waste constituents, which are not specified in the enumerated testing procedures, for informational purposes. Other sources of law from the Clean Water Act and Porter-Cologne Act authorize the Board to impose monitoring requirements. (See 33 U.S.C. §§ 1318(a)(A), 1342(a)(2); Wat. Code § 13383(a).) Petitioner acknowledges that these statutes “authorize the Board to issue monitoring requirements.” (Reply 14:22-23.) To illustrate, section 1318 states, in pertinent part:

Whenever required to carry out the objective of this chapter, including but not limited to (1) developing or assisting in the development of any effluent limitation, or other limitation, prohibition, or effluent standard, pretreatment standard, or standard of performance under this chapter; (2) determining whether any person is in violation of any such effluent limitation, or other limitation, prohibition or effluent standard, pretreatment standard, or standard of performance; … (A) the Administrator shall require the owner or operator of any point source to (i) establish and maintain such records, (ii) make such reports, (iii) install, use, and maintain such monitoring equipment or methods (including where appropriate, biological monitoring methods), (iv) sample such effluents (in accordance with such methods, at such locations, at such intervals, and in such manner as the Administrator shall prescribe), and (v) provide such other information as he may reasonably require.

This language is broad and is reasonably interpreted to authorize the Board to require monitoring for informational purposes that is reasonable and necessary to carry out the objectives of the Clean Water Act. In interpreting the relevant provisions of the Clean Water Act, the D.C. Circuit has remarked that “[t]he breadth of this statutory grant of authority . . . justif[ies] broad information disclosure requirements relating to the [permitting authority’s] duties, as long as the disclosure demands” are “reasonable.” (Natural Resources Defense Council, Inc. v. U.S. E.P.A., 822 F.2d 104, 119 (D.C. Cir. 1987.) Section 13383(a) similarly states, in relevant part, that “[t]he . . . regional board may establish monitoring … for any person who discharges, or proposes to discharge, to navigable waters. . . .” And section 13383(b) states that “the regional boards may require any person subject to this section to establish and maintain monitoring equipment or methods, including, where appropriate, biological monitoring methods, sample effluent as prescribed, and provide other information as may be reasonably required.” Petitioner also has not advanced any persuasive interpretation of these statutes under which the Board lacks authority to impose monitoring, in a NPDES permit, for informational purposes if the Board finds that such monitoring is reasonable and necessary to achieve the objectives of the Clean Water Act.

Notably, Petitioner has not developed a persuasive argument or cited evidence proving that the Board abused its discretion in determining that PCB monitoring under Method 1668C, for informational purposes, is reasonable and necessary to achieve objectives of the Clean Water Act. PCBs are man-made, organic chemicals that persist in the environment, exposure to which can cause a variety of serious health conditions. (AR 36264-65.) Petitioner has not disputed that testing for PCBs in stormwater from SSFL, which has been included in past permits, is necessary to comply with the Clean Water Act. Method 1668C is a more sensitive test than Method 608.3. Exercising its independent judgment, the court finds that the Board reasonably concluded that adding this additional monitoring requirement to the WDRs for informational purposes furthers the objectives of the Clean Water Act.

In a footnote, Petitioner alludes to alleged concerns with the “reliability” of Method 1668C by citing to three US EPA documents. (OB 12, fn. 2.) Contrary to Petitioner’s suggestion, 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.” (AR 34150; 77 Fed. Reg. 29757, 29763 (May 18, 2012).) The EPA has acknowledged that Method 1668C “may be appropriate and useful in certain situations.” (AR 36269; 88 Fed. Reg. 59662, 59668 (Aug. 29, 2023).) Moreover, in comments for the WDRs at issue in this case, an EPA representative stated that additional PCB monitoring for informational purposes, using Method 1668C, was appropriate. (AR 6431-32.) Given the EPA representative’s position before the 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 the Board prejudicially abused its discretion in requiring Method 1668C for informational purposes.

Based on the foregoing, Petitioner does not show any prejudicial abuse of discretion in the Board’s decision to require Petitioner to monitor for the presence of PCB congeners in stormwater discharges from the site using EPA proposed Method 1668c for informational purposes. Exercising its independent judgment, the court concludes that the weight of the evidence supports the Board’s findings and legal conclusions with respect to this monitoring requirement.

Petitioner argues that the Board needed to conduct balancing under Water Code section 13267 in order to require monitoring with Method 1668C for informational purposes. (OB 13-14.) Pursuant to the Porter-Cologne Act, the Board “may investigate the quality of any waters of the state within its region.” (Water Code § 13267(a).) In its water quality investigations, the Board “may require that any person who has discharged, discharges, or is suspected of having discharged or discharging . . . waste within its region . . . that could affect the quality of waters within its region shall furnish, under penalty of perjury, technical or monitoring program reports which the regional board requires.” (Water Code § 13267(b).) Section 13267 “makes clear that in order to require a discharger to provide the Board with any technical report, the Board must (1) provide ‘a written explanation with regard to the need for the reports’; and (2) ‘identify the evidence that supports requiring that person to provide the reports.’” (Sweeney v. California Regional Water Quality Control Board (2021) 61 Cal.App.5th 1093, 1114, citing Water Code

However, section 13267 does not apply to the Board’s PCB monitoring requirements. As discussed, other sources of law from the Clean Water Act and Porter-Cologne Act authorize the Board to impose monitoring requirements and methods in an NPDES permit. (See 33 U.S.C.

§§ 1318(a)(A), 1342(a)(2); Water Code §§ 13383(a), (b).) Section 13383 is found in Chapter 5.5 of Division 7 of the Water Code, which was enacted “for the purpose of adopting the necessary federal requirements to ensure [California] would obtain EPA approval to issue NPDES permits.” (Building Industry Ass’n of San Diego County v. State Water Resources Control Board (2005) 124 Cal.App.4th 866, 875 [citation omitted].) To the extent of any inconsistency, the provisions in Chapter 5.5 “shall prevail over other provisions in this division,” which includes section 13267. (Water Code § 13372(a).) Sections 13383(a) and (b) permit the Board to establish “monitoring, inspection, entry, reporting, and recording keeping requirements” and related “equipment and methods” without complying with section 13267. (See Water Code

§§ 13383(a), (b).) The Legislature’s intention is clear because the next subsection—section 13383(c)—expressly requires the Board to comply with section 13267 relating to inspections. (See Water Code § 13383(c).)

Petitioner’s reliance on City of Burbank v. State Water Resources Control Board (2005) 35 Cal.4th 613 is misplaced. City of Burbank considered the following question: “When a regional board issues a permit to a wastewater treatment facility, must the board take into account the facility’s costs of complying with the board's restrictions on pollutants in the wastewater to be discharged?” (Ibid.) To answer that question, the Court analyzed Water Code sections 13263 and 13241 and the federal supremacy clause. The Court held that “[w]hen … a regional board is considering whether to make the pollutant restrictions in a wastewater discharge permit more stringent than federal law requires, California law allows the board to take into account economic factors, including the wastewater discharger's cost of compliance.” (Id. at 618.) The Court did not consider or opine on a regional board’s obligations under Water Code section 13267 in imposing monitoring requirements under a NPDES permit. “An opinion is not authority for propositions not considered.’” (People v. Knoller (2007) 41 Cal.4th 139, 154-55.) Accordingly, Petitioner does not show that the Board was required to make findings under section 13267 for the PCB monitoring at issue.

In the WDRs, the Board imposed new monitoring requirements for “constituents of potential concern” in the Department of Toxic Substances Control’s (“DTSC”) “Standardized Risk Assessment Methodology” (“SRAM”) for the SSFL Site. (AR 6805.) Specifically, the WDRs state:

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.

(Ibid.) The WDRs list a series of specific parameters, but the final parameter merely states: “Additional remaining COPCs for all media as identified in the SRAM.” (AR 6807.) Petitioner contends that the Board prejudicially abused its discretion because: (1) the Board did not conduct any balancing of benefits and burdens pursuant to section 13267(b); and (2) the weight of the evidence does not support the Board’s decision to include all constituents listed on Table 12-1 of the SRAM in the monitoring requirements. (OB 14-16.) While the Board is permitted to impose these monitoring requirements, the court finds that the Board did not make the requisite findings to require monitoring of every chemical listed in Table 12-1.

Petitioner does not show that the Board was required to comply with section 13267(b) for these monitoring requirements. As discussed above, the Board possesses broad authority independent of section 13267(b) to require monitoring where, as here, the owner of a former industrial site discharges into waters of the United States. (See 33 U.S.C. §§ 1318(a)(A), 1342(a)(2); Wat. Code, § 13383(b); Natural Resources Defense Council, Inc. v. U.S. E.P.A., 822 F.2d 104, 119 (D.C. Cir. 1987.)

While the Board has authority to impose monitoring requirements for every chemical listed in Table 12-1, the Board failed to justify monitoring for every constituent listed on Table 12-1 of the SRAM. The SRAM, which was prepared for the DTSC by Petitioner’s consultant, “provides updates to the human health and ecological risk assessment (HHERA) approach, methods, assumptions and toxicity criteria” to the prior SRAM (from 2005) for the SSFL site. (AR 76706.) “The purpose of the SRAM is to establish a standardized, regulatory-approved approach to assess the human health and ecological risk of chemicals that are present in the various environmental media (e.g., air, soil, water) at the SSFL.” (AR 76726.) “After the risk assessments are completed, the risk assessments will be used to help identify areas at any investigational unit that are determined to need remediation.” (Ibid.)

Table 12-1 of the SRAM provides ecological risk-based screening levels (“EcoRBSLs”) for chemicals that have been detected in the past at SSFL. (AR 78284.) EcoRBSLs are concentrations of chemicals that, if present at those concentrations, indicate a potential risk to wildlife, thus warranting further evaluation. The fact that SRAM Table 12-1 includes an EcoRBSL for a chemical is not, in itself, evidence that the chemical poses a risk to health or the environment at SSFL. This is because the SRAM and EcoRBSLs are tools to use for future risk evaluations. (See AR 76726, 76759-64, 77732-33.) In its opening brief, Petitioner highlights the following two examples from SRAM:

Acetic Acid. Acetic Acid is a product of biodegradation, and is found or produced naturally in most plants and animals. It is the main acid in vinegars such as white (distilled), cider, balsamic, malt, red wine, white wine, rice and sherry; at concentrations ranging between three and eight percent. The Food and Drug Administration (FDA) classifies acetic acid as “Generally Recognized as Safe (GRAS)” under 21 CFR 184.1005 as a direct food substance and under 21 CFR 582.1005 as a general purpose food additive. Because acetic acid is naturally occurring and has low risk potential, it is not typically evaluated in HHRAs.

Titanium. Titanium is widely distributed in the earth’s crust and is found in almost all living things, rocks, soil, and bodies of water. Titanium is also widely used for biological applications, e.g., hip joint replacements, tooth replacements, and sunscreen. The toxicity of titanium has not yet been quantified, but appears to be low. Because titanium is naturally occurring, used in many biological applications, and appears to have low toxicity, it is not typically evaluated in HHRAs.

Petitioner contends that “Board staff initially recommended against monitoring for acetic acid and other SRAM constituents because they are volatile organic compounds . . . that are unlikely to be found in stormwater due to their chemical structures.” (OB 15:20-22, citing AR 6988 [emphasis added].) That statement is not entirely correct. In the cited response to comments, the Board staff was responding to a comment that many “toxic chemicals detected at SSFL are exempted from enforceable limits.” (AR 6988 [emphasis added].) The Board staff noted that, for those chemicals that do not have effluent limits, “there are comprehensive monitoring and reporting requirements in the revised tentative Order to ensure that there are no impacts to human health or the environment.” The Board’s staff further noted that, in response to comments, the Board revised the WDRs to require monitoring of all “COPCs for all media not already regularly monitored by this permit.” (AR 6988-89.) As the Board points out, the decision to impose these additional monitoring requirements was informed by public concern that pollutants identified by DTSC at the site were unregulated by the NPDES permit. (See, e.g., AR 4470, 4480, 4597, 4808, 6114, 6162.) The Board concluded this monitoring was needed to determine whether the SRAM chemicals are also present in stormwater discharges and, if so, at what concentrations. (See AR 6594:2-14, 6805, 6989.)

Exercising its independent judgment, the court concludes that the Board has broad authority to impose monitoring requirements necessary to achieve the purposes of the Clean Water Act. To that end, the Board has discretion to require monitoring for chemicals and potential pollutants identified in the SRAM and that could be discharged from the site. Indeed, many constituents from the SRAM were already subject to monitoring requirements in the prior WDRs. (See Reply 16:7-15; see also AR 6988-89, 6811, 6815, 7008.)

However, the Board did not include any findings to support its decision to include all constituents listed on Table 12-1 of the SRAM in the monitoring requirements, including chemicals like acetic acid and titanium that are “naturally occurring” and “low toxicity.” (See AR 6805-07 [Board findings]; see also AR 77734, 77757, 78285, 77735.) Indeed, the Board did not clearly identify the chemicals subject to the new requirement. In the WDRs, the Board simply required monitoring for “[a]dditional remaining COPCs for all media as identified in the SRAM,” without specifying whether it was referring to all chemicals on Table 12-1 or only some. (AR 6807.) This lack of clarity is demonstrated in the Board’s opposition to the motion to stay, which stated that “titanium has been removed from the list of chemicals of potential concern.” (Opposition filed March 29, 2024, at 16, fn. 5.) However, in its opposition for the writ hearing, the Board has not argued that acetic acid and titanium were removed from the new monitoring requirements. This lack of clarity also is problematic because it is unclear why some of the COPC require monitoring. For example, the record contains no evidence that acetic acid or titanium—which are “naturally occurring” and “low toxicity”—may be present in large enough quantities at SSFL to pose any risk to health or the environment. The Board has not identified any such evidence in its opposition and appears to concede the point. (See Oppo. 17:7-18; Sehulster Tunnels/Pre-Con v. Traylor Brothers, Inc. (2003) 111 Cal.App.4th 1328, 1345, fn. 16 [failure to address point is “equivalent to a concession”].)

Under Code of Civil Procedure section 1094.5(b), an abuse of discretion is established if the decision is not supported by the findings. (Topanga Assn. for a Scenic Community v. County of Los Angeles, (1974) 11 Cal. 3d 506, 515.) Here, the court concludes that the Board’s findings are deficient in that the Board did not identify the additional “CPOCs” subject to the monitoring or make sufficient findings to include all constituents listed on Table 12-1 of the SRAM. Accordingly, the matter must be remanded for the Board to make adequate findings, i.e., to identify which of the constituents listed on Table 12-1 require monitoring and to make sufficient findings to support the decision. (See West Chandler Blvd. Neighborhood Ass’n v. City of Los Angeles (2011) 198 Cal.App.4th 1506, 1521-23.)

The court’s decision to set aside the monitoring of chemicals in Table 12-1 applies only to “[a]dditional remaining COPCs for all media as identified in the SRAM” and does not disturb the monitoring requirements of any chemical specifically identified in Table E-2 (e.g., cobalt, fluoride, etc.) or of any chemical subject to monitoring through a different WDR (e.g., aluminum, etc.) In other words, this ruling applies only to chemicals list in Table 12-1 that are not identified elsewhere in the WDRs or otherwise subject to monitoring. (See AR 6742-6971.)

Petitioner contends that “[t]he Board abused its discretion by retaining effluent limits for five constituents (antimony, nickel, selenium, thallium, and TCDD) at Outfall 8, despite having found that these five constituents have no reasonable potential to cause or contribute to water quality exceedances.” (OB 16.) Petitioner relies on evidence that the Board staff performed new RPAs for antimony, nickel, selenium, thallium, and TCDD at Outfall 008, and concluded in the tentative WDRs that there was not a reasonable potential for these constituents to cause or contribute to violations of water quality standards. (AR 5283, 5297-98, 5306-07, 5310-11.) The Board acknowledged this evidence in its findings and found it to be true. (AR 6863, 6874-75.)

Nevertheless, the Board decided to retain effluent limits for antimony, nickel, selenium, thallium, and TCDD at Outfall 008. (See AR 6863-6864.) The Board’s findings state:

In addition to WQBELs based on reasonable potential, this permit carries over effluent limitations from the previous permit, notwithstanding recent data indicating that there was no RPA for these constituents. CWA section 301(b)(1)(C) requires NPDES permits to establish effluent limitations as necessary to meet water quality standards. 40 C.F.R. section 122.44(d) sets forth a process for deriving pollutant-specific effluent limits when the permitting authority determines that a particular pollutant has the reasonable potential to cause or contribute to an exceedance of water quality standards. This section establishes minimum requirements for imposing pollutant-specific WQBELs. However, 40 C.F.R. section 122.44(d) “does not set forth an exclusive process for imposing WQBELs.” (City & Cnty. of San Francisco v. U.S. Env’t Prot. Agency (9th Cir. 2023) 75 F.4th 1074, 1092) Section 301 of the CWA, authorizes the permitting authority to include “any more stringent limitation, including those necessary to meet water quality standards, treatment standards, or schedules of compliance, established pursuant to any State law or regulations.” To that end, the Permit Writers Manual includes a number of ways to identify pollutants of concern in effluent, only one of which is the pollutant being specifically identified in monitoring data. Pollutants of concern can also be identified through applicable TBELs, TMDL WLAs, and, because they were previously identified as needing WQBELS in the previous Permit. (See discussion on pp 6-13 to 6-15 of the NPDES Permit Writers’ Manual, EPA-833-K-10-001 (2010).)

(AR 6863-6864.) The Board did not provide a sufficient basis for this decision in its findings. (See ibid.) Petitioner argues persuasively that the authorities cited by the Board in this part of the Fact Sheet do not, in themselves, support the Board’s decision to retain effluent limits “notwithstanding recent data indicating that there was no RPA for these constituents.” (OB 17-18.) The Board does not meaningfully respond in its opposition and concedes the point. (Oppo. 17-18; see Sehulster Tunnels/Pre-Con v. Traylor Brothers, Inc. (2003) 111 Cal.App.4th 1328, 1345, fn. 16 [failure to address point is “equivalent to a concession”].)

Counsel for the Board attempts to rely on individual Board members’ comments during the hearing that: (1) There is a possibility that SSFL stormwater discharges could exceed water quality standards for the five challenged effluent limits because of climate change, i.e., constituents not detected today may nevertheless occur in the future, meaning that the current data does not provide a sufficient “track record;” and (2) Substantial time and resources would be required to re-adopt these effluent limits in exceedances were observed in the future. These could constitute valid reasons to adopt the monitoring requirement, notwithstanding the absence of these constituents, provided that they are supported by sufficient evidence. But the Board’s counsel does not show—with record citations—that the Board, as a body, adopted these rationales as reasons to retain the effluent limits (i.e., neither of these reasons is contained within the Board’s findings; nor is there any adoption of these comments by at least three board members at the hearing). Even if so, there are no findings from which the court can assess the reasonableness of the Board’s decision. The Board’s counsel cites no legal authority suggesting that individual board members’ comments at the hearing may be used to justify the Board’s decision.

The court also is concerned that the Board may have believed it was required to maintain these monitoring requirements under the “anti-backsliding” rule. The Clean Water Act contains a general prohibition against “backsliding,” i.e., when a permit holder applies to the Board for renewal, the Board may not issue a renewed permit that “contain[s] effluent limitations which are less stringent than the comparable effluent limitations in the previous permit.” (33 U.S.C. § 1342(o)(1).) However, there are exceptions to the anti-backsliding rule. The statute provides that the permit “may be renewed, reissued, or modified to contain a less stringent effluent limitation applicable to a pollutant” if one of several listed exceptions are satisfied. (33 U.S.C.

§ 1342(o)(2) [emphasis added].) As relevant there, there is no prohibited backsliding where new information “which was not available at the time of permit issuance … would have justified the application of a less stringent effluent limitation at the time of permit issuance.” (40 C.F.R.

§ 122.44(l)(2)(i)(B).) Second, there is no prohibited backsliding where the receiving water is not impaired for the pollutant at issue, and revising the limit is consistent with the state’s antidegradation policy. (33 U.S.C. § 1313(d)(4).)

Based upon the foregoing, the Board’s findings in this regard are deficient and do not support the decision. (Code Civ. Proc. § 1094.5(b); Topanga Assn. for a Scenic Community v. County of Los Angeles, (1974) 11 Cal. 3d 506, 515.) The court will remand the matter to the Board to reconsider the decision to retain effluent limits for antimony, nickel, selenium, thallium, and TCDD at Outfall 008. (See AR 6863, 6874-75.) This order shall not preclude the Board from retaining the effluent limits at issue, provided that the Board makes appropriate findings that are supported by sufficient evidence.

The WDRs impose new requirements for groundwater infiltration studies at the Silvernale and R-1 Ponds. Section 13267 “makes clear that in order to require a discharger to provide the Board with any technical report, the Board must (1) provide ‘a written explanation with regard to the need for the reports’; and (2) ‘identify the evidence that supports requiring that person to provide the reports.’” (Sweeney v. California Regional Water Quality Control Board (2021) 61 Cal.App.5th 1093, 1114, citing Water Code § 13267(b)(1).) The Board’s findings comply with these requirements. The WDRs include the following findings pursuant to Water Code section 13267 in support of the pond infiltration studies:

The Monitoring and Reporting Program includes a requirement pursuant to Water Code section 13267(b)(1) for the Discharger to evaluate the infiltration rates at Silvernale and R-1 ponds. The purpose of this study is to determine the potential impacts of stormwater runoff constituents of concern on groundwater. This Order also requires the Discharger to conduct a design feasibility study to determine any modifications to the ponds that may be necessary to mitigate impacts of infiltration of constituents of concern in stormwater discharges. Water Code section 13267(b)(1) authorizes the regional board to require “any person who has discharged, discharges, or is suspected of having discharged or discharging, or who proposes to discharge waste . . . that could affect the quality of waters within its region shall furnish, under penalty of perjury, technical or monitoring program reports which the regional board requires.” Silvernale and R-1 Ponds are multifunctional BMPs that collect stormwater prior to treatment at the SWTSs. Treated stormwater from these ponds is discharged from Discharge Points 011 and 018. These ponds are unlined. Available evidence on the underlying soil lithology indicates that stormwater collected in the ponds is likely to infiltrate to groundwater at a low rate. While the rate is possibly minimal, uncertainty remains with respect to the type of pollutants that may be detected in the pond water. There is significant community concern that constituents of potential concern identified as part of the Site cleanup overseen by DTSC in other media (e.g., soil or groundwater) may be present. Therefore, the Los Angeles Water Board has determined that it needs additional information on the suspected discharge to groundwater of these constituents through infiltration and design studies. 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 these studies. Based on the Los Angeles Water Board’s experience overseeing and reviewing these types of studies through oversight of permits and contracts, the estimated cost to prepare these reports could range from $30,000 to $300,000. The burden, including the costs of these reports, bears a reasonable relationship to the need for the reports for myriad reasons, including but not limited to: the scale of historic industrial activity at the Site, ongoing public health concerns in the community, the toxic and hazardous nature of the substances that were historically used and remain in the soils at the Site, and the protracted clean-up of the Site. Further, the Discharger may reduce its costs by submitting any readily available information from existing data sources and groundwater monitoring, where available, to complete these studies.

Petitioner contends that the Board’s findings for imposing the pond infiltration studies are not supported by the weight of the evidence. The court disagrees. The Board heard from concerned members of the public that stormwater containing pollutants (of known and unknown identity) was being diverted into unlined ponds on-site, prior to treatment. (See AR 4713, 4717-18, 4736, 6381:17-20, 6387:4-9, 6416:19-23, 6447:3-12, 6469:6- 17, 6991-92, 7001-02, 7005, 7018.) While some evidence presented to the Board showed that infiltration was “minimal,” this evidence did not establish that infiltration was non-existent. (See AR 6595, 6599, 6602.)

Petitioner has not raised any argument concerning the burdens of conducting the pond infiltration studies. Instead, 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 “majority” of the contaminants of concern at the ponds are “particulates” that do not migrate downward through soil to groundwater. (AR 6599.) In its October 2023 report, the Expert Panel also 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.

(AR 71076-77.) This evidence was not conclusive. Neither Dr. Stenstrom nor the Expert Panel opined that infiltration at the ponds was non-existent. Nor did they show that constituents of concern could not migrate into groundwater from the pond. Dr. Stenstrom opined that “the majority of the stormwater contaminants of concern in these ponds are particulate, so they don't migrate through groundwater.” (AR 6599, emphasis added.) The Expert Panel stated that “the constituents in stormwater that occasionally exceed the NPDES permit’s water quality standard-based limits and benchmarks … are predominately in particulate form.” (AR 71076-77, emphasis added.) They did not opine that all constituents of concern that enter the ponds could not migrate to groundwater.

Petitioner also cites evidence that 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. (AR 6606-09.) Regional Board also 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. (AR 6387-88.) The staff explained, “an investigation of groundwater contamination is ongoing and disturbing sediments will interfere with DTSC’s investigation and could exacerbate conditions further.” (Ibid.) However, the Board’s staff acknowledged that an “Infiltration Study may be warranted” as clean-up efforts progress. (Ibid.)

Exercising its independent judgment, the court concludes that this evidence does not support Petitioner’s position that the Board abused its discretion. On questioning from the Board, the DTSC representative acknowledged that the constituents contaminating in and around the ponds “are the typical ones that we would see throughout the, the Santa Susana site” including “metals, PCBs, VOCs … dioxins.” (AR 6606-07.) She acknowledged that remediation of the ponds will require soil excavation and removal and that this process would start in around three years. (Ibid.) Although the Board’s staff expressed concerns about interference with DTSC’s cleanup activities, Petitioner does not show, by record citation, that the pond infiltration studies could not be designed in a way to avoid interference. Further, the WDRs state that “[t]he 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 these studies.” (AR 6908.) Thus, Petitioner has discretion to design the study in a manner that utilizes, and does not interfere with, work of the Expert Panel and other agencies.

Exercising its independent judgment on the record, the court concludes that the Board’s findings for imposing the pond infiltration studies are supported by the weight of the evidence. Given that the ponds are unlined, the undisputed need for remediation by DTSC, the time it will take for DTSC remediation to begin, and the uncertainty as to whether pollutants associated with prior industrial activity were present in stormwater flowing into the ponds, and, if so, at what concentrations, the Board reasonably concluded that the burdens to Petitioner of conducting a study to assess the rate of infiltration of contaminants of potential concern in stormwater runoff, and their potential to impact groundwater at SSFL, were reasonably related to the benefits. (AR 6807-08, 6635.)

1. The petition for writ of administrative mandate is granted in part and denied in part.

2. The court issues the writ with respect to the “[a]dditional remaining COPCs for all media as identified in the SRAM.” This order shall not disturb the monitoring requirements of any chemical specifically identified in Table E-2 or any chemical subject to monitoring through a different WDR. In other words, this ruling applies only to chemicals list in Table 12-1 that are not identified elsewhere in the WDRs.

3. The court issues the writ with respect to monitoring for antimony, nickel, selenium, thallium, and TCDD at Outfall 008.

4. The court remands the matter to the Board to set aside these requirements and to reconsider them in light of this court’s decision and judgment. (Code Civ. Proc. § 1094.5(f).) The court’s decision and judgment “shall not limit or control in any way the discretion legally vested in [the Board].” (Ibid.) In other words, this order shall not prevent the Board from re-imposing these requirements, provided the Board makes sufficient findings.

[1] The comment initially stated that there were already effluent limitations at “Outfalls 001 and 018,” but then clarified that the prior order imposed effluent limitations at Outfalls 011 and 018. For that reason, Petitioner argued that the new WDRs “should not establish” effluent limitations for Outfalls 001 and 002. (AR 5961-5962.)

[2] Petitioner’s representative did state, in rebuttal, that “moving the compliance monitoring points to Outfalls 001 and 002 would be consistent with the USEPA’s NPDES Permit Writer's Manual, which states that ‘internal monitoring is generally not appropriate … unless final effluent monitoring is impractical.’” (AR 6603.) This comment also was not sufficient to exhaust administrative remedies. Petitioner’s representative referred to the NPDES Permit Writer’s Manual only to support the position that the new permit should impose effluent limits either at Outfalls 011 and 018, or Outfalls 001 and 002, but not both sets. Petitioner’s representative did not argue that the Board needed to make any findings under the Internal Waste Stream Rule.

[3] Petitioner also forfeited its argument, first made in reply, that “the paired outfall effluent limits are an abuse of discretion, because they create an unreasonable risk of duplicate enforcement and are contrary to the State Board’s 2006 Order.” (Reply 7, fn. 1.) Petitioner does not show good cause to raise this argument for the first time in reply. (See Balboa Ins. Co. v. Aguirre (1983) 149 Cal.App.3d 1002, 1010.) Alternatively, exercising its independent judgment, the court concludes that Petitioner has not shown a prejudicial abuse of discretion. The Board adequately explained the reasons that it added effluent limits at Outfalls 001 and 002 and that it will not seek duplicate enforcement. (AR 6857-6860.)

[4] The Expert Panel’s report was apparently issued on October 31, 2023, after the Board’s final hearing on October 19, 2023. (See Court’s Order dated July 31, 2024 at 11; O’Rourke Decl. filed July 3, 2024 ¶ 7.) The court concludes that the Expert Panel’s report, while relevant, is cumulative of other evidence, including the testimony of Dr. Stenstrom and Petitioner’s presentation slides, that were considered by the Board. (See AR 6599, 6274.) Thus, remand for the Board to consider the Expert Panel’s report is not required.