Benjamin Moore & Co. v. Cal. Regional Water Quality etc. CA2/1, B335989

From 1953 to 2002, Benjamin Moore & Company (BMC) operated a paint and solvent manufacturing facility in the City of Commerce, CA, on a site near two water wells later found to have elevated levels of TCE and PCE, which are hazardous contaminants.
Various environmental assessments and soil samplings over the years detected low levels of some VOCs, including PCE (but not TCE), and BMC used, stored, and generated waste containing PCE in the late 1990s and early 2000s.
In 2015, local authorities detected high levels of PCE and TCE in two nearby wells; the Regional Water Quality Control Board suspected possible waste discharge from BMC and ordered BMC to provide information on buried waste and submit a comprehensive site assessment work plan.
BMC contested the order, arguing that there was a lack of substantial evidence supporting suspicion it had contaminated groundwater, and challenged the exclusion of some exculpatory records from the administrative record.
The Superior Court rejected BMC's contentions, found substantial evidence supporting the Board's suspicion (and the burden of the order reasonable), and denied BMC's petition for writ of mandate; BMC then appealed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency of evidence for order under Water Code §13267	Insufficient evidence to support a reasonable suspicion BMC contaminated groundwater; only speculation.	Evidence (contamination nearby, historic waste generation/storage, incomplete site assessment) supports reasonable suspicion and order.	Substantial evidence supported trial court’s finding for Board; affirmed.
Whether the costs and burden of the Board’s order are reasonable	Order imposes unreasonable, overly burdensome costs; no need shown.	Burden to identify buried waste and prepare a work plan is reasonable and related to potential risk/need.	Order found reasonably related and not unduly burdensome.
Motion to augment the administrative record	Court abused discretion by refusing to include DTSC 2020 Screening Assessment recommending no further action.	Only evidence considered by the agency before the order should be included; new evidence would not change outcome.	No abuse of discretion; even if admitted, would not alter result.
Required level of suspicion under §13267 for investigative orders	Board needed more than speculation or a "hunch" to issue the order.	Board’s suspicion was more than a hunch; based on facts and incomplete historic assessments.	Board’s suspicion was based on facts not mere speculation; court need not address further.

Drummey v. State Board of Funeral Directors & Embalmers, 13 Cal.2d 75 (Cal. 1939) (burden on challenging party to show board's decision contrary to weight of evidence)
Fukuda v. City of Angels, 20 Cal.4th 805 (Cal. 1999) (trial court's independent judgment review in administrative mandamus)
Pasadena Unified School Dist. v. Commission on Professional Competence, 20 Cal.3d 309 (Cal. 1977) (substantial evidence standard in reviewing trial court’s factual determinations)
Pomona Valley Hospital Medical Center v. Superior Court, 55 Cal.App.4th 93 (Cal. Ct. App. 1997) (discretion standard for augmenting administrative record)
Sweeney v. California Regional Water Quality Control Bd., 61 Cal.App.5th 1093 (Cal. Ct. App. 2021) (standard of review for court's finding in water board order challenge)