42 Cal.App.5th 453
Cal. Ct. App.2019Background
- Residents near the Oil Operators Inc. (OOI) site reported possible vapor intrusion; sampling found benzene and 1,2‑DCA in soil, soil gas, and groundwater exceeding MCLs.
- Contaminant distribution and groundwater flow showed a plume aligned along Golden Avenue, suggesting an offsite source east of the OOI property.
- Regional Board investigation identified only Tesoro pipelines (Lines 32, 34, 252) in gasoline service along Golden Avenue; other nearby pipelines carried crude or were out of service.
- Laboratory results showed gasoline indicators (iso‑octanes, n‑alkanes) and lacked heavier hydrocarbons, pointing to gasoline rather than crude.
- Regional Board issued a final Cleanup and Abatement Order (CAO) under Water Code §13304 directing Tesoro to investigate and remediate; Tesoro denied responsibility and later raised a retroactivity challenge that the initial discharge predated the 1969 Porter‑Cologne Act.
- Trial court (independent judgment) upheld the CAO as supported by substantial evidence and accepted the State Board’s long‑standing definition of “discharge” to include ongoing migration; this judgment was affirmed on appeal.
Issues
| Issue | Tesoro's Argument | Regional Board's Argument | Held |
|---|---|---|---|
| Whether substantial evidence supports finding Tesoro pipelines were the source | Record fails to rule out other sources; evidence is circumstantial and insufficient | Soil/soil‑gas/groundwater chemistry (benzene, 1,2‑DCA, iso‑octanes), plume alignment, pipeline service records point to Tesoro gasoline lines | Substantial evidence supports inference that Tesoro pipelines were the source; trial court’s factual finding upheld |
| Whether Tesoro waived/failed to exhaust retroactivity claim that initial discharge occurred pre‑1970 | No obligation to exhaust; issue is jurisdictional and can be raised in court | Tesoro did not raise retroactivity or admit a pre‑1970 leak before the Board; factual dispute required agency determination | Exhaustion would normally bar the claim, but futility excused exhaustion here because agency had consistently construed “discharge” to include ongoing migration; Tesoro’s failure to raise the point was excused |
| Whether applying Porter‑Cologne to ongoing migration is impermissibly retroactive; meaning of “discharge” in §13304 | "Discharge" ends at the initial release; liability for pre‑1970 initial leaks would be retroactive | "Discharge" includes continued migration/emission from source through soil into groundwater; liability can attach while contamination continues to threaten waters | Court affirmed State Board’s longstanding construction: “discharge” includes ongoing migration/emission that threatens waters; CAO is not a retroactive application |
Key Cases Cited
- Lake Madrone Water Dist. v. State Water Resources Control Bd., 209 Cal.App.3d 163 (1989) (interpreting ordinary meaning of “discharge”)
- Buckley v. California Coastal Com., 68 Cal.App.4th 178 (1998) (exhaustion not required where subject matter lies outside agency jurisdiction)
- Younger v. Superior Court of Alameda County, 16 Cal.3d 30 (1976) (distinguishing deposit timing for penalty statutes)
- Consumer Advocacy Group, Inc. v. Exxon Mobil Corp., 104 Cal.App.4th 438 (2002) (addressing passive migration under Proposition 65 context)
- Carson Harbor Village, Ltd. v. Unocal Corp., 270 F.3d 863 (9th Cir. 2001) (CERCLA passive migration analysis; different statutory language)
- Pakootas v. Teck Cominco Metals, Ltd., 452 F.3d 1066 (9th Cir. 2006) (federal precedent recognizing leaching/migration as a release under CERCLA)
- Yamaha Corp. of America v. State Bd. of Equalization, 19 Cal.4th 1 (1998) (deference to consistent administrative interpretation)