San Diego Gas & Elec. Co. v. San Diego Reg'l Water Quality Control Bd.

After years of investigation, the government agency tasked with monitoring water quality, San Diego Regional Water Quality Control Board (Regional Board), issued a cleanup and abatement order (CAO) to SDG&E and several other entities. The Regional Board found that SDG&E caused

As we explain, the Regional Board was required to establish two elements prior to issuing the CAO to SDG&E: (1) that SDG&E "caused or permitted ... waste to be discharged or deposited" into state waters (discharge element), and (2) that the discharged waste "creates, or threatens to create," pollution or nuisance conditions (nuisance creation element). ( § 13304, subd. (a).) The disputed nuisance creation element of section 13304 -"creates, or threatens to create, a condition of pollution or nuisance"-does not require application of the common law substantial factor test for causation. It is undisputed on appeal that SDG&E directly discharged and thus "caused or permitted" waste to enter the Bay, distinguishing the Modesto cases. Further, the Regional Board adequately demonstrated that the waste discharged by SDG&E created, or threatened to create, a condition of pollution or nuisance. Accordingly, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The Regional Board's factual findings, contained in a technical report and incorporated by reference in the CAO, are not challenged on appeal. We provide a high-level overview of the facts as context for our discussion.

Between approximately 1943 and the 1990s, SDG&E owned and operated the Silver Gate Power Plant, located on the north side of the Bay site that was studied by the Regional Board, the "Shipyard Sediment Site." The plant was closed and demolished in the 2000s. While the power plant operated, SDG&E maintained an easement to the Bay for cooling water discharge lines (cooling tunnels); the cooling tunnels were needed to deliver and remove about 120 to 180 million gallons of seawater per day used to cool SDG&E's eight steam turbine electrical generators. In connection with plant operations, SDG&E generated waste, including metals (chromium, copper, lead, nickel, and zinc); polychlorinated biphenyls (PCBs); polynuclear aromatic hydrocarbons; and total petroleum hydrocarbons (collectively, pollutants).

The Regional Board determined that SDG&E leaked and spilled large quantities of PCBs (identified by specific chemical markers) during SDG&E's routine operations over several decades. The Board traced the chemical markers of PCBs to SDG&E's cooling tunnels, switchyard, and wastewater ponds, which drained or flowed into the Bay. Based on reasonable inferences and assumptions, the Board found that SDG&E caused or permitted a discharge of waste into the Bay that created, or threatened to create, a condition of pollution or nuisance.

During the Regional Board's administrative process, SDG&E contested it was a responsible "person" under section 13304. SDG&E admitted to discharging pollutants into the Bay; however, it claimed that its contribution of pollutants was not a substantial

Section 13304 is part of the Porter-Cologne Water Quality Control Act (Porter-Cologne Act; § 13000 et seq.). (Stats. 1969, ch. 482, § 18, p. 1051.) The Legislature's goal in enacting the Porter-Cologne Act was "to attain the highest water quality which is reasonable, considering all demands being made and to be made on those waters and the total values involved, beneficial and detrimental, economic and social, tangible and intangible." (§ 13000; City of Burbank , supra , 35 Cal.4th at p. 619, 26 Cal.Rptr.3d 304 , 108 P.3d 862 .) The task of accomplishing this goal belongs to state and regional boards, which together comprise "the principal state agencies with primary responsibility for the coordination and control of water quality." (§ 13001; City of Burbank , at p. 619, 26 Cal.Rptr.3d 304 , 108 P.3d 862 .) The Legislature declared that the "state must be prepared to exercise its full power and jurisdiction to protect the quality of waters in the state from degradation...." (§ 13000.)

As initially enacted in 1969, section 13304, subdivision (a) provided as follows in pertinent part: "Any person who ... intentionally or negligently causes or permits any waste to be deposited where it is discharged into the waters of the state and

SDG&E contends that section 13304, subdivision (a) must be construed in light of common law nuisance principles (e.g., Modesto I , supra , 119 Cal.App.4th at p. 38, 13 Cal.Rptr.3d 865 ) and that a showing of causation of harm under the substantial factor test is necessary in public nuisance claims (see CACI No. 2020 ). These are uncontroversial general propositions. "The language of the Restatement [Second of Torts] presumes that the necessary elements for proof of a cause of action for public nuisance include the existence of a duty and causation. [Citation.] 'The conduct necessary to make the actor liable for either a public or a private nuisance may consist of (a) an act; or (b) a failure to act under circumstances in which the actor is under a duty to take positive action to prevent or abate the interference with the public interest or the invasion of the private interest.' [Citation.] ... A connecting element to the prohibited harm must be shown." ( In re Firearm Cases (2005) 126 Cal.App.4th 959 , 988, 24 Cal.Rptr.3d 659 .)

In California tort actions, the substantial factor test is used to determine the element of causation. ( Orange County Water Dist. v. Alcoa Global Fasteners, Inc. (2017) 12 Cal.App.5th 252 , 342, 219 Cal.Rptr.3d 474 .) A defendant's conduct is not a substantial factor in bringing about harm if the harm would have resulted even if the defendant had not acted, unless the defendant is a concurrent independent cause. ( Id. at pp. 342-343, 219 Cal.Rptr.3d 474 .) "The substantial factor standard generally produces the same results as does the 'but for' rule of causation which states that a defendant's conduct is a cause of the injury if the injury would not have occurred 'but for' that conduct. [Citations.] The substantial factor standard ... subsumes the 'but for' test while reaching beyond it to satisfactorily address other situations, such as those involving independent or concurrent causes in fact." ( Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953 , 969, 67 Cal.Rptr.2d 16 , 941 P.2d 1203 ; see also People v. Caldwell (1984) 36 Cal.3d 210 , 220, 203 Cal.Rptr. 433 , 681 P.2d 274 [discussing substantial factor test in determining proximate cause of person's death].)

Nevertheless, we are not convinced the common law of nuisance is as confined as SDG&E suggests, particularly where, as here, a state agency seeks to abate the act and effects of water pollution. Predating the enactment of section 13304, the California Supreme Court was confronted with various nuisance cases involving state efforts to enjoin the actual and threatened pollution of rivers and streams. The court approved the "equitable principle that, in an action to abate a public or private nuisance, all persons engaged in the commission of the wrongful acts which constitute the nuisance may be enjoined, jointly or severally. It is the nuisance itself, which, if destructive of public or private rights of property, may be enjoined." ( People v. Gold Run Ditch & Mining Co. (1884) 66 Cal. 138 , 149, 4 P. 1152 ( Gold Run ).)

We presume the Legislature was aware of Gold Run and like cases at the time section 13304 was enacted and amended. (E.g., People v. Overstreet (1986) 42 Cal.3d 891 , 897, 231 Cal.Rptr. 213 , 726 P.2d 1288 ["Legislature is deemed to be aware of existing laws and judicial decisions in effect at the time legislation is enacted and to have enacted and amended statutes ' "in the light of such decisions as have a direct bearing upon them" ' "]; Burden v. Snowden (1992) 2 Cal.4th 556 , 564, 7 Cal.Rptr.2d 531 , 828 P.2d 672 ["When construing a statute, we may presume that the Legislature acts with knowledge of the opinions of the Attorney General which affect the subject matter of proposed legislation."].) Section 13304 clearly authorizes the attorney general to seek injunctions to compel compliance with cleanup or abatement orders. ( § 13304, subd. (a) ["Upon failure of any person to comply with the cleanup or abatement order, the Attorney General, at the request of the board, shall petition the superior court for that county

The Modesto I opinion analyzed the "causes or permits" language of section 13304 consistent with nuisance law principles, under which liability extends " ' "not only [to] the party who maintains the nuisance ... but also [to] the party or parties who create or assist in its creation ...." ' " ( Modesto I , supra , 119 Cal.App.4th at p. 38, 13 Cal.Rptr.3d 865 .) Applying this principle, the court discussed that defendants in groups 1 and 2 could be held liable by "manufacturing a system designed to dispose of wastes improperly or by instructing users of its products to dispose of wastes improperly." ( Id. at p. 43, 13 Cal.Rptr.3d 865 .) Conversely, defendants could not be held liable to the extent they "merely placed solvents in the stream of commerce without warning adequately of the dangers of improper disposal." ( Ibid. ) The court did not adopt the substantial factor causation test vis-à-vis section 13304 nor did it specifically analyze the nuisance creation element. The trial court was directed to reconsider motions for summary adjudication filed by defendants in groups 1 and 2. ( Id. at p. 45, 13 Cal.Rptr.3d 865 .)

Subsequently, the City appealed a judgment following a bench trial in favor of defendants from groups 1 and 2. ( Modesto II , supra , 19 Cal.App.5th at pp. 135, 143, 227 Cal.Rptr.3d 764 .) The issue before the Modesto II court was the proper measure of proof to support a finding of defendants' "causation" of pollution (i.e., the improper discharge of solvents). ( Id. at p. 153, 227 Cal.Rptr.3d 764 .) The Modesto II court concluded that "direct proof of every link in the chain of causation, on a site-by-site and instruction-by-instruction basis, is not required. Liability can be proven by sufficient circumstantial evidence that would allow a reasonable fact finder to find that all of defendants' conduct-to include affirmative steps toward the discharge of toxic wastes-was a contributing factor to the pollution." ( Id. at p. 156, 227 Cal.Rptr.3d 764 .) The court formulated the causation analysis for defendants in groups 1 and 2 as follows: "[C]onsidering the evidence as

DISPOSITION

The judgment is affirmed.

WE CONCUR:

BENKE, Acting P. J.

IRION, J.

SDG&E filed a petition for writ of mandate in superior court to have the CAO vacated. The petition alleged the Regional Board erred as a matter of law in subjecting SDG&E to the CAO without finding that SDG&E was a " 'substantial factor' " in creating, or threatening to create, a condition of pollution or nuisance. The superior court denied SDG&E's writ petition. This appeal followed.

DISCUSSION

Background of Section 13304

When construing any statute, our task is to determine the Legislature's intent when it enacted the statute " 'so that we may adopt the

Our high court concluded that, even without a finding that any defendant had materially contributed to the nuisance, each mining defendant could be enjoined from continuing its discharging acts:

" 'It is no answer to a complaint of nuisance, that a great many others are committing similar acts of nuisance. Each and every one is liable to a separate action, and to be restrained. * * * The extent to which the appellee has contributed to the nuisance may be slight, and scarcely appreciable. Standing alone, it might well be that it would only very slightly, if at all, prove a source of annoyance. And so it might be, as to each of the other numerous persons contributing to the nuisance. Each standing alone might amount to little or nothing. But it is when all are united together, and contribute to a common result, that they become important, as factors, in producing the mischief complained of. And it may only be after, from year to year, the number of contributors to the injury has greatly increased, that sufficient disturbance of rights has been caused to justify a complaint. * * * In that state of facts * * * each element of contributive injury is a part of one common whole; and to stop the mischief in the whole, each part in detail must be arrested and removed.' "

( Gold Run , supra , 66 Cal. at p. 150, 4 P. 1152 .) The court further declared: "[H]owever long [the public nuisance] continue[s], the State is bound to protect the people; and for that purpose the attorney general, as the law officer of the State, has the power to institute a proceeding in equity in the name of the people, to compel the discontinuance of the acts which constitute the nuisance." ( Id. at p. 152, 4 P. 1152 .)

In another abatement action, People ex rel. Ricks Water Co. v. Elk River Mill & Lumber Co. (1895) 107 Cal. 214 , 40 P. 486 ( Elk River Mill ), it was averred " 'that ... defendant has caused and permitted , and does cause and

In People v. Truckee Lumber Co. (1897) 116 Cal. 397 , 48 P. 374 ( Truckee Lumber ), our Supreme Court again affirmed the issuance of an injunction to abate defendant's acts in a public nuisance case as requested by the attorney general. ( Id. at p. 399, 48 P. 374 .) The court reasoned that defendant's disposal of "sawdust, shavings, slabs, edgings, waste, and other deleterious substances" into a state river, having the general "effect of polluting and poisoning the waters of the river, and thereby killing and destroying the fish therein," was a public nuisance subject to abatement even if there had been no demonstrable injury to any private landowner. ( Id. at pp. 399-400, 48 P. 374 .) The court's decision turned on how defendant's acts, if unabated, would "greatly interfere[ ] with and impair[ ]" the common use of public waters. ( Id. at pp. 400-401, 48 P. 374 .)

In People v. New Penn Mines, Inc. (1963) 212 Cal.App.2d 667 , 28 Cal.Rptr. 337 ( New Penn Mines ), the court of appeal discussed how an owner of an inactive or abandoned mine may be held responsible for an actual or threatened pollution or nuisance condition when surface water or some other mechanism causes drainage of accumulated mine waste into a body of water. ( Id. at p. 673, 28 Cal.Rptr. 337 .) The court noted, "In one sense the owner or person responsible for an inactive or abandoned mine is not actively 'discharging' industrial waste." ( Ibid. ) Nevertheless, the "drainage ... falls within the administrative sphere and within the enforcement powers of the regional and state water pollution control boards." ( Ibid. )

In each of the above cases, the defendant's acts were subject to abatement based on its causal connection to an actual or potential discharge of waste into state waters, where the discharged waste created, assisted in creating, or threatened to create, a nuisance. The decisions allow for the possibility that other actors, drainage mechanisms, or natural and unnatural occurrences, which were outside of the defendant's control, may also contribute to creating the complained of nuisance. The decisions do not require proof that the

Our conclusion is bolstered by the Legislature's use of the words "caused or permitted " in section 13304, that is, persons may be subject to a cleanup or abatement order if they have "caused or permitted " a discharge of waste. ( § 13304, subd. (a), italics added.) Cases have interpreted this language broadly. In TWC Storage, LLC v. State Water Resources Control Bd. (2010) 185 Cal.App.4th 291 , 110 Cal.Rptr.3d 270 , a landowner (TWC) was held responsible for its independent contractor's chemical spill on TWC's property. ( Id. at p. 298, 110 Cal.Rptr.3d 270 .) Although TWC was not found to be a "substantial factor" or "but for" cause of the chemical spill, the court concluded that TWC " 'cause[d] or permit[ted]' " the discharge to occur. ( Id. at pp. 297-298, 110 Cal.Rptr.3d 270 [referencing Water Code section 13350 ]; see also Leslie Salt Co. v. San Francisco Bay Conservation etc. Com. (1984) 153 Cal.App.3d 605 , 622, 200 Cal.Rptr. 575 [landowners may be held responsible when public nuisance develops on their land].)

Based on the foregoing considerations, we conclude that, under section 13304, the Regional Board was not required to apply the substantial factor test to the nuisance creation element. The test is not required by the statute's

In Modesto I , the City of Modesto Redevelopment Agency (City) brought an action against various defendants under the Polanco Redevelopment Act (Polanco Act; Health & Saf. Code, § 33459 et seq. ) for environmental contamination by dry cleaning solvents. ( Modesto I , supra , 119 Cal.App.4th at pp. 32-33, 13 Cal.Rptr.3d 865 .) The defendants fell into three general groups: (1) manufacturers of solvents and equipment, (2) distributors of solvents and equipment, and (3) dry cleaning retailers. ( Id. at p. 33, 13 Cal.Rptr.3d 865 .) The Polanco Act defines a " 'responsible party' " to include a person described by subdivision (a) of section 13304 of the Water Code ; the trial court determined that certain manufacturers (group

The Modesto cases do not support SDG&E's position that the substantial factor causation test must be applied to the nuisance creation element of