36 Cal. App. 5th 427
Cal. Ct. App. 5th2019Background
- SDG&E operated Silver Gate Power Plant (1943–1990s) and directly discharged pollutants (metals, PCBs, PAHs, petroleum hydrocarbons) into San Diego Bay via cooling tunnels, storm runoff, and wastewater ponds.
- The San Diego Regional Water Quality Control Board (Regional Board) issued a Cleanup and Abatement Order (CAO) finding SDG&E “caused or permitted” discharges that created or threatened pollution/nuisance conditions in the Shipyard Sediment Site.
- The Regional Board’s technical report (multi‑year, >2,000 pages; administrative record >500,000 pages) traced chemical markers tying PCB contamination to SDG&E facilities and documented risks to aquatic life, wildlife, and human health (e.g., seafood contamination and cancer risk estimates).
- SDG&E admitted discharging pollutants but argued its contribution was not a “substantial factor” because shipyard companies discharged greater quantities and its discharges alone were insufficient to cause the nuisance.
- SDG&E sought writ relief in superior court to vacate the CAO; the court denied the petition. On appeal, SDG&E argued the Regional Board must apply the common‑law substantial‑factor causation test when finding the statute’s nuisance‑creation element was met.
- The Court of Appeal affirmed: the Regional Board need only establish (1) the person ‘‘caused or permitted’’ a discharge and (2) the discharge ‘‘creates, or threatens to create’’ pollution or nuisance; the nuisance‑creation element does not require the substantial‑factor test and substantial evidence supported the Board’s findings as to SDG&E.
Issues
| Issue | Plaintiff's Argument (Regional Board / State) | Defendant's Argument (SDG&E) | Held |
|---|---|---|---|
| Whether Water Code §13304(a)’s nuisance‑creation element requires application of the common‑law substantial‑factor causation test | §13304 requires only a causal link between person and discharge and a finding that the discharge creates or threatens pollution; history and precedent support broad enforcement | §13304’s nuisance language must be construed under common‑law nuisance principles, requiring the substantial‑factor causation test before naming a responsible person | The court held §13304(a) does not require the substantial‑factor test for the nuisance‑creation element; a causal connection and evidence of creation/threat of pollution suffice |
| Whether SDG&E’s direct discharges could support naming it a responsible person despite other contributors | The Board properly named direct dischargers even if multiple parties contributed; precedent allows abatement against each contributor | SDG&E argued its contribution was not a substantial factor given larger discharges by shipyards | Court: Direct discharge by SDG&E and chemical tracing provided substantial evidence that its discharges created or threatened pollution; multiple contributors do not bar liability |
| Applicability of Modesto I/II to require substantial‑factor showing | Modesto decisions allow circumstantial proof of causation for remote actors but do not alter standard for direct dischargers | SDG&E relied on Modesto I/II to insist on a substantial‑factor test | Court: Modesto addressed remote/nonphysical actors (manufacturers/distributors); it does not require substantial‑factor proof for direct dischargers like SDG&E |
| Standard of review for Board’s factual findings | Substantial‑evidence review of administrative record; Board’s technical findings stand if supported | SDG&E challenged legal standard, not the sufficiency of factual evidence on nuisance creation | Court applied substantial‑evidence review and found ample record support for Board’s nuisance‑creation finding |
Key Cases Cited
- People v. Gold Run Ditch & Mining Co., 66 Cal. 138 (1884) (state may enjoin abatement of public nuisance even when each contributor alone makes only a small contribution)
- People ex rel. Ricks Water Co. v. Elk River Mill & Lumber Co., 107 Cal. 214 (1895) (discharge/allowing pollutant access to water may warrant abatement without showing substantial‑factor causation)
- People v. Truckee Lumber Co., 116 Cal. 397 (1897) (disposal that pollutes public waters can be enjoined as public nuisance despite lack of private landowner injury)
- New Penn Mines, Inc. v. People, 212 Cal.App.2d 667 (1963) (owner of inactive/abandoned mine may be held responsible for drainage‑caused pollution; inclusion within administrative enforcement)
- TWC Storage, LLC v. State Water Resources Control Bd., 185 Cal.App.4th 291 (2010) (broad interpretation of "caused or permitted" can impose responsibility on landowner for contractor’s discharge)
- City of Modesto Redevelopment Agency v. Superior Court, 119 Cal.App.4th 28 (2004) (Modesto I) (liability can extend to manufacturers/distributors who create systems or give instructions contributing to disposal)
- City of Modesto v. Dow Chemical Co., 19 Cal.App.5th 130 (2018) (Modesto II) (for remote actors, circumstantial evidence can support a finding that defendants’ conduct was a contributing factor and should be assessed as a substantial‑factor question)