Barclay Hollander Corp. v. Cal. Reg'l Water Quality Control Bd.

In our opinion in Dole , we described that earlier litigation, in relevant part, as follows. "Between the 1920's and the early 1960's, Shell owned and operated three crude oil storage reservoirs, known as the Kast Tank Farm, at the site which later was developed as the Carousel tract. It is alleged that at least one of the storage tanks was leaking its contents into the soil, causing the site to become contaminated with toxic substances. [¶] In October 1965, Shell entered into an agreement to sell the land to Richard Barclay and his associates (Barclay), a group of residential developers that intended to convert the property into a residential subdivision. Shell transferred title to the property in October 1966. In preparation for the change in use, the oil storage reservoirs were decommissioned, the reservoir walls were torn down and buried on site, and the land was graded for home construction. The land was rezoned from industrial to residential, and the Carousel homes were constructed and sold by the early 1970's.

"....

"In 2008, after discovering contamination nearby, the Water Board directed Shell to conduct environmental testing at the Carousel tract. These investigations revealed the presence of petroleum hydrocarbons in the areas where Shell's former oil reservoirs had been located. In March 2011, the Water Board issued a cleanup and abatement order to Shell, directing it to submit a proposed remediation plan. This order was based on Shell's 'ownership of the former Kast Property Tank Farm' and its 'former operation of a petroleum hydrocarbon tank farm at the Site.'

"After submitting an initial RAP [^[3] ] that was rejected, Shell submitted a revised RAP in June 2014, with an addendum in October 2014. Under the revised RAP, Shell will, inter alia, excavate five to 10 feet beneath the homes, following excavation will install a vapor extraction and venting mechanism, and will institute comprehensive long-term monitoring. In addition, Shell will provide temporary relocation assistance in connection with implementing the RAP, and will compensate Carousel homeowners to ensure they receive fair market value if they elect to sell their homes. [¶] Shell's corporate representative, William Platt, has estimated it will cost Shell $146 million to implement the RAP." ( Dole, supra , 242 Cal.App.4th at pp. 899-900, 195 Cal.Rptr.3d 461 , fns. omitted.)

We made reference there to the addition of Barclay to the RCAO, writing in footnote 6 of our opinion in Dole , "... the Water Board recently adopted

During Shell's operation of the Kast Tank Farm the reservoirs leaked,^[4] releasing petroleum and petroleum residue into the surrounding soil and groundwater.

By 1959, utilization of the tank farm had decreased; thereafter, the three reservoirs were used for "stand-by storage." As of February 1964, the three reservoirs held a total of 425,448 barrels of a mixture of petroleum product and water.^[5]

Barclay made an offer to purchase the Site on October 14, 1965. In a visit to the Site a week later, on October 21, 1965, the Barclay representative learned the condition of the Site, including the contents of the three reservoirs. Four days later, Shell wrote to Barclay pursuant to the latter's request, to advise it more specifically of the contents of each reservoir, enclosing 10 drawings concerning the Site.^[6] Later that month, Barclay and Shell agreed to the sale of the Site to "Richard Barclay or nominee" conditioned "upon the effective re-zoning of the industrial property to R-1" and approval by the purchaser "of an engineering report to be obtained at [Barclay's] sole cost and expense." Barclay was also aware of the existence of pipes for transfer of petroleum across and beneath the surface of the Site.

In its letter to Shell dated December 1, 1965, Barclay sought permission "to begin immediately to remove the liquid waste and petroleum residues

On October 31, 2013, Water Board Site Cleanup Program Staff (SCP Staff) proposed adding Barclay as an additional responsible party. Also, on that date, the Water Board issued a draft revised CAO (RCAO) adding Barclay as a responsible party, and offered Dole and Shell, and the public, the opportunity to submit comments and evidence with respect to it. Dole requested an extension of the scheduled response date, advising that "we have experts who will be offering written opinions regarding certain issues presented," also asking for time to respond to comments that may be made to the draft RCAO by others. The Water Board granted Dole's request and a subsequent request for an additional extension of time. Dole's response to the draft RCAO, which it filed on January 21, 2014, consisted of an 82-page brief, a 333-page technical response, expert witness declarations and 359 exhibits; in all, it totaled over 11,000 pages.^[12]

On June 3, 2014, the Water Board gave notice it would accept additional public comments on the proposed RCAO.^[13]

Shell filed its comments addressing Dole's January 2014 submission on June 16, 2014, to which Dole responded on June 30, 2014, with a letter, a witness declaration and additional expert witness declarations, totaling 800 pages.

"13. Substantial evidence indicates that the Discharger caused or permitted waste to be discharged into waters of [the] state and is therefore appropriately named as a responsible party in this Order. Shell owned and operated the Site, then sold the property to the developers, leaving in place three reservoirs and residual petroleum hydrocarbons in at least one tank and in soil underneath and surrounding the reservoirs. The residual petroleum hydrocarbons are still present at the Site and continue to cause pollution and nuisance as documented in this Order and the Regional Board files. The Regional Board has investigated additional potentially responsible parties (including, but not limited to, Lomita Development Company, Richard Barclay, Barclay-Hollander-Curci, Dole Foods, Inc., Barclay Hollander Corporation and/or any of its successors) and has determined that Lomita, which merged into and was survived by Barclay-Hollander-Curci, renamed [Barclay], caused or permitted the discharge of waste at the Site. Lomita purchased the Site with explicit knowledge of the presence of the petroleum reservoirs and the presence of residual petroleum hydrocarbons, and conducted various activities, including partially dismantling the concrete in the reservoirs and grading the onsite materials. These activities spread the waste at the Site and contributed to the migration of the waste through soil and groundwater. The residual petroleum hydrocarbons are still present at the Site and continue to cause pollution and nuisance as documented in this Order and the Regional Board files. Including [Barclay] as a responsible party in this Order is consistent with orders of the State Water Resources Control Board construing Water Code section 13304 naming former owners who had knowledge of the activities that resulted in the discharge and the legal ability to control the continuing discharge. Including [Barclay] as a responsible party is consistent with Water Code section 13304(j) because Lomita or [Barclay's] actions that resulted in creating pollution and nuisance were unlawful since at least 1949. If the Regional Board becomes aware of any other responsible parties it will consider naming such persons in this Order."^[17] (Original italics, fns. omitted.)

On May 21, 2015, counsel for Dole and Barclay notified Smith they intended to challenge the RCAO and asked that its implementation be stayed.

CONTENTIONS

Barclay contends: (1) the Water Board failed to hold the type of hearing required by the Administrative Procedure Act ( Gov. Code, §§ 11340 - 11529 ) (APA) and its Administrative Bill of Rights ( Gov. Code, §§ 11425.10 - 11425.60 (Bill of Rights); (2) the payments Shell made to the Water Board constituted a conflict of interest tainting the proceedings and the RCAO; (3) Barclay's actions are protected by the safe harbor of Water Code section 13304, subdivision (j) ; (4) Barclay did not cause or permit a discharge of waste because its actions were not performed with the required knowledge of the hazards created; and (5) the trial court erred in refusing to admit and consider additional evidence proffered by Barclay.^[18]

DISCUSSION

The Porter-Cologne Water Quality Control Act ( Wat. Code, § 13000 et seq. ) (the Porter-Cologne Act), under which the RCAO was issued, revised Water Code provisions addressing both water rights and water quality and expanded the statewide program of water quality control maintained through regional administration within the framework of statewide coordination and policy. For the purposes of the Porter-Cologne Act and of its predecessor, the Dickey Water Pollution Act (former Wat. Code, § 13000 et seq. ) (the Dickey Act), the state is divided into nine regions, each of which is governed by a

" ' "When we interpret a statute, '[o]ur fundamental task ... is to determine the Legislature's intent so as to effectuate the law's purpose. We first examine the statutory language, giving it a plain and commonsense meaning. We do not examine that language in isolation, but in the context of the statutory framework as a whole in order to determine its scope and purpose and to harmonize the various parts of the enactment. If the language is clear, courts must generally follow its plain meaning unless a literal interpretation would result in absurd consequences the Legislature did not intend. If the statutory language permits more than one reasonable interpretation, courts may consider other aids, such as the statute's purpose, legislative history, and public policy.' [Citation.] 'Furthermore, we consider portions of a statute in the context of the entire statute and the statutory scheme of which it is a part, giving significance to every word, phrase, sentence, and part of an act in pursuance of the legislative purpose.' " ' " ( Hassell v. Bird (2018) 5 Cal.5th 522 , 540, 234 Cal.Rptr.3d 867 , 420 P.3d 776 ; accord, City of San Jose v. Superior Court (2017) 2 Cal.5th 608 , 616-617, 214 Cal.Rptr.3d 274 , 389 P.3d 848 .)

The meaning of Government Code section 11410.10 is unambiguous: The reference to "this chapter" is to Chapter 4.5 of Part 1 of Division 3 of Title 2 of the Government Code. Provisions regarding the APA Bill of Rights are set out in Article 7 of this chapter. Thus, for any article in this chapter to be applicable to the Water Board decision at issue, there must be a provision of the Water Code (or some other statute^[23] ) that makes the APA applicable.

Barclay has cited no such statute, nor has our independent research identified one; the Water Code contains no statute meeting the requirement of Government Code section 11410.10 for adoption of the APA in the proceedings reviewed in this case.

Instead, as in this case, when the Water Board acts pursuant to Water Code sections 13267 and 13304, the Legislature provided for review of such actions following issuance of cleanup and abatement orders by the state water board and by the courts, as we shall discuss. ( Wat. Code, §§ 13320 & 13330, respectively.)

This requirement for timely assertion of any objection to the hearing procedure utilized by the Water Board appears in a statute as well. Government Code section 11445.30 includes a requirement that any objection by a party to use of the informal hearing procedure shall be made in the party's pleading. ( Id. , subd. (b).) This mandate for timely raising this procedural point is emphasized in the language of subdivision (c) of Government Code section 11445.30, which states: If an objection is made to use of the informal hearing procedure, it "shall be resolved by the presiding officer before the hearing on the basis of the pleadings and any written submissions."^[32] ( Id. , subd. (c).)

There is no dispute among the parties in the present matter that the proceedings before the Water Board were conducted informally. At the same time, the record makes clear that, beginning with the notice issued on October 31, 2013, the proceedings were conducted by a series of written submissions.

And, these proceedings were extensive; Barclay made multiple written responses to requests to it made by the Water Board, and was given multiple opportunities to respond to submissions made by Shell and to memoranda and to documents prepared in draft by the Water Board. Barclay's submissions included declarations of lay and expert witnesses, all overseen and explained in detail by its counsel. During this period, Barclay asked for, and was granted, lengthy extensions of time in which to prepare and present its own extensive arguments and documentary submissions and to respond to submissions by Shell and by Water Board SCP Staff. Barclay's submissions totaled over 11,000 pages.

It was not until December 24, 2014, that Barclay first asked for a formal hearing. In response, the Water Board explained that the procedure which had

C. Relationship of APA fair hearing procedures and Code of Civil Procedure section 1094.5

Barclay contends the APA and its Bill of Rights necessarily apply in this case because the intent of the drafters of the APA was to incorporate the terms of the APA into adjudication of petitions for writs of mandate regarding regional water board decisions in superior court pursuant to Code of Civil Procedure section 1094.5. While Barclay correctly acknowledges that this statute is the means by which actions of regional water boards are reviewed in superior court, it errs in its claim that the APA is engrafted into the Code of Civil Procedure statute by reference to that provision in Water Code section 13330.^[34]

In support of this contention Barclay cites the Law Revision Commission comment to Government Code section 11410.10, which states, "[t]he coverage of [the APA] is the same as coverage by the existing provision for administrative mandamus under Code of Civil Procedure Section 1094.5(a)." (Cal. Law Revision Com. com., Deering's Ann. Gov. Code, supra , foll. § 1410.10, p. 120.)

What Barclay does not acknowledge, and as we have explained above, is that for Government Code section 11410.10 to apply, another statute- in this

Shell consented to these requests for early entry and commencement of the intended work subject to certain conditions, including that Barclay "pay all costs and expenses arising out of your work thereon and the disposition of wastes and residues removed" from the property, and that "all work done by or for [the purchaser] on said lands or in disposing of wastes and residues removed ... shall be done in a good, lawful and workmanlike manner." Richard Barclay agreed to these terms on behalf of Barclay.

Later that month, on December 28, 1965, Richard Barclay advised Shell that his nominee to take title to the property was Lomita Development Co. (Lomita), doing so by letter on stationery of Barclay.^[7] The closing date for the sale was to be July 1, 1966.

In the early months of 1966, Lomita obtained from Pacific Soils Engineering, Inc. (PSE) several reports on the condition of the soil on the Site and recommendations on how to dispose of the four-foot-thick concrete structures that had been used in the construction of the three reservoirs. In the section of its January 7, 1966 letter to Lomita headed "Present Site Conditions," PSE described the reservoirs and surrounding area as follows: "The existing

In March 1966, PSE reported to Lomita with respect to its testing of the soils at one of the reservoir sites that "the soil[s] beneath the reservoir conform to those found in our original exploration: Generally, the first three feet found directly beneath the [concrete] slab tend to be silty and clayey sands which are highly oil stained. The underlying soils are fine to medium clean sands. All soils are in a dense state and suitable to receive fill. Most of the soils in the borings have a petroleum odor, however the actual amount of oil contained in the soil is unknown." This report was accompanied by an exhibit, denominated "Plate B," dated March 11, 1966, which listed the results of six borings and the condition of the soil in each boring at various depths, reporting that oil and oily smell were present in almost every boring and at almost every depth.

Notwithstanding the December 1, 1965 letter agreement in which Barclay had set out its schedule for cleanup and grading of the Site, an April 1966 internal Shell memorandum indicated that as of that date, Lomita had not completed any phase of its work, explaining that while two of the reservoirs were "empty and clean," oil and water remained in the third. According to this memorandum, the property was not in "a safe condition in [its] present state" with respect to two of the three reservoirs. An August 15, 1966 internal Shell memorandum indicated that by that date all of the "oil" had been removed and the safety hazards had been remediated. This memorandum noted, "This leaves the property so there is almost nothing to burn and no chance of anyone falling in any kind of oil sump or pit."

In September 1966, PSE reported to Lomita on a revision in the method that would be used to bury the concrete slabs,

Thereafter, Lomita sold a few lots in the new subdivision to homeowners before granting the remainder of the Site to "Barclay Hollander Curci, Inc. a California corporation." The remainder of the lots were sold by the successor entity, Barclay Hollander, Inc. (BHI).^[9]

In March 2008, the Water Board learned from the California Department of Toxic Substances Control that the soil and groundwater at the Site may be contaminated from discharges of petroleum hydrocarbons. Stating its "concern[ ] with the potential threat to the health of residents from the exposure to petroleum related contaminants," on May 8, 2008, the Water Board ordered Shell, as a former owner and operator of the Site, "to initiate a complete environmental investigation including evaluation of impacts to groundwater and the potential threat to human health and if immediate action is required."^[10]

On September 15, 2011, following an extension of time granted by the Water Board, Dole's attorneys responded to the April 22, 2011 order in a 25-page letter,

On February 27, 2015, the Water Board resolved Barclay's requests to submit additional evidence, ruling that it would not add to the record evidence that was previously available and which could have been submitted during the prior notice and comment periods; it would, however, accept the transcript of deposition testimony of George Bach (Bach), the engineer who had supervised Lomita's work on the Site.

The Water Board also denied Barclay's request to schedule a formal evidentiary hearing, ruling that multiple opportunities had been offered for anyone interested to submit written testimony and evidence and that Dole and Barclay had "utilized these opportunities and submitted more than 1,000 [ sic , 11,000] pages of documentary evidence. The factual questions raised by the Draft [RCAO] are primarily technical and therefore, fit to be addressed through written expert reports and rebuttal." After stating additional reasons why the recently made request for formal hearing was inappropriate, the Water Board concluded, "In light of the particular factual, legal and policy questions that are raised, the Board has determined that the issues are adequately and thoroughly addressed through the submitted written evidence and testimony, that [Dole and Barclay have] been provided the opportunity for fair consideration of [their] claims, and the burden and cost of an oral hearing is not warranted in this instance." The parties were nevertheless offered the opportunity to comment on the Bach deposition transcript which the Water Board had agreed to admit.^[15]

On April 2, 2015, counsel for Dole and Barclay provided written comments on the Bach deposition, also urging that an earlier unsworn statement Bach had made be disregarded. Also on that date, counsel for Shell submitted a letter in which it argued that the Bach deposition merely confirmed

"The modifications to the Draft Revised CAO include a finding by the Regional Board that [Barclay's] activities at the Site not only violated Health and Safety Code section 5411, but also violated Fish and Game Code section 5650 and Los Angeles County Code section 20.36.010.1.... Barclay's activities in breaking up concrete reservoirs, ripping the reservoir floors, and moving soil at the Site permitted petroleum and related products to pass into, or [be] placed where it could pass into, waters of the State. The activities also discharged and deposited, and allowed the continued existence of a deposit of, petroleum hydrocarbons that created a public nuisance, a menace to the public health and safety, pollution of underground waters, and damage to private property."

The letter gave notice that anyone aggrieved by the Water Board's action could petition the State Water Resources Control Board (State Board) to review the action within 30 days.

Among the findings of the 41-page RCAO were the following:

"11. Pollution of Waters of the State: The Discharger has caused or permitted waste to be discharged or deposited where it is, or probably will be, discharged into the waters of the state and creates, or threatens to create, a condition of pollution or nuisance. As described in this Order and the record of the Regional Board, the Discharger owned and/or operated the site in a manner that resulted in the discharges of waste. The constituents found at the site as described in Finding 8 constitute 'waste' as defined in Water Code section 13050(d). The discharge of waste has resulted in pollution, as defined in Water Code section 13050( l ). The concentration of waste constituents in soil and groundwater exceed water quality objectives contained in the Water Quality Control Plan for the Los Angeles Region (Basin Plan), including state-promulgated maximum contaminant levels. The presence of waste at the Site constitutes a 'nuisance' as defined in Water Code section 13050(m). The waste is present at concentrations and locations that 'is injurious to health, or is indecent, or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property ... and [a]ffects at the same time an entire community or

Pursuant to the Porter-Cologne Act, a regional board may issue orders to enforce its water quality control plans and, as relevant here, may issue orders mandating the cleanup and abatement of waste by any person "who has caused or permitted, causes or permits, or threatens to cause or permit any waste to be discharged or deposited where it is, or probably will be, discharged into the waters of the state." ( Wat. Code, § 13304, subd. (a).)^[20]

A

. The APA's provisions do not automatically apply to state agencies, including the Water Board

The APA ( Gov. Code, §§ 11340 - 11529 ) provides that adjudicative proceedings,^[22] and orders made therein by administrative agencies, must comply with hearing procedures set out in the APA, when the APA is made applicable to those proceedings.

Since 1995, the APA has included a Bill of Rights ( Gov. Code, §§ 11425.10 - 11425.60 ) which "specifies the minimum due process ... requirements that must be satisfied" in adjudicative proceedings conducted by state agencies. (Cal. Law Revision Com. com., Deering's Ann. Gov. Code (2010 ed.) foll. § 11425.10, p. 133.) These due process requirements can be satisfied, depending on certain factors, by compliance with either "formal" or "informal" hearing procedures. ( Gov. Code, § 11500 et seq. [formal proceedings] and § 11445.10 et seq. [informal proceedings], respectively.)

Barclay contends the procedures utilized by the Water Board in determining it was a discharger and in adding it as a responsible party in the RCAO violated the Bill of Rights. It bases its argument on the declarative statement in its opening brief that "Under California's Administrative Procedure Act, every adjudicative proceeding conducted by a state agency-including proceedings considering the issuance of cleanup orders-must follow either formal or informal hearing procedures." As authority for this argument, Barclay relies on our Supreme Court's opinion in Department of Alcoholic Beverage Control v. Alcoholic Control Appeals Bd. (2006) 40 Cal.4th 1 , 50 Cal.Rptr.3d 585 , 145 P.3d 462 ( ABC ).

Barclay misunderstands both the application of the threshold or gateway section of the APA and the manner in which ABC applies to the present case.

B. Water Board regulations applicable but for Barclay's waiver

We now consider a separate provision of Chapter 3 of the APA which also requires analysis in connection with Barclay's overarching contention that the Water Board violated Barclay's procedural rights by failing to apply the Bill of Rights.

Barclay contends specifically that the Bill of Rights is applicable in this case because Government Code section 11410.40 provides that an agency "may adopt this chapter or any of its provisions for the formulation and issuance of a decision, even though the agency or decision is [otherwise] exempt from application of this chapter."^[29]

Barclay points out in this regard that the State Board did adopt a regulation making the Bill of Rights applicable to proceedings before it, California Code of Regulations, title 23, section 648, subdivision (b).^[30] This regulation provides: "(b) Incorporation of Applicable Statutes. Except as otherwise provided, all adjudicative proceedings before the State Board, the Regional Boards, or hearing officers or panels appointed by any of those Boards shall be governed by these regulations, chapter 4.5 of the [APA], sections 801 - 805 of the Evidence Code [addressing expert

Thus, pursuant to section 648.7 of title 23, California Code of Regulations, by waiting over a year to make a request for a formal hearing-during which it had fully participated in the Water Board's inquiry-Barclay waived the opportunity to proceed more formally. In addition, we perceive no denial of fair hearing procedures given the extensive and unfettered multiple opportunities Barclay was given-and accepted-to express and document

Nor does the circumstance that Water Code section 13330, subdivision (e) states that a court proceeding such as the present one may be pursued by a petition under Code of Civil Procedure section 1094.5 support Barclay's argument. If the Legislature had intended that the APA or its Bill of Rights apply in such a proceeding notwithstanding the clear language of Government Code section 11410.10, it would have so stated in the same statute. The Legislature did not do so.^[35]

D. Constitutional due process claims

Barclay contends the APA and its Bill of Rights apply based on the clause in Government Code section 11410.10 that makes due process principles applicable "if, under the federal or state Constitution ... an evidentiary hearing for determination of facts is required for formulation and issuance of the decision."^[36]

There are three difficulties with Barclay's reply counter-arguments. First, the same regulations upon which it relies for other contentions-title 23 of the California Code of Regulations, sections 648 through 648.9-include the provision discussed above requiring that a party seeking to invoke more formal hearing requirements (to the extent the Water Board has adopted them) must make that claim at the outset of the investigation , or it is waived. ( Cal. Code Regs., tit. 23, § 648.7 ["Failure to make a timely objection to the use of informal hearing procedures before those procedures are used will constitute consent to an informal hearing."] ) Thus, the Water Board's regulations gave notice of how and when to make the claims Barclay now seeks to assert; those regulations also indicate that Barclay's request that its claims be resolved by a procedure different than that in which it had participated without objection for more than a year was untimely.

Second, even if Barclay had not waived its argument, it does not provide citations to the record that provide support for its claim.^[37] Third, the cases upon which it relies do not support its defense. Barclay's reliance on Azusa Land Reclamation Co. v. Main San Gabriel Basin Watermaster (1997) 52 Cal.App.4th 1165 , 1211-1212, 61 Cal.Rptr.2d 447 , is inapposite as that case addresses a very different procedural circumstance, whether a party must contest an exemption determination under the California Environmental Quality Act ( Pub. Resources Code, § 21000 et seq. ) prior to seeking review of that determination in court when no administrative remedy is provided. That court observed that the exhaustion requirement applied when there was an opportunity for "public comment" or there is a public hearing; however, a party could not be required to exhaust when the agency had not yet issued the ruling and the statute of limitations might expire if the party did not file suit even though the ruling had not yet been made. (

The third Mathews factor, the governmental interest, is substantial. Among the functions of the Water Board is the protection

In our weighing of the three Mathews factors, we conclude that Barclay was accorded appropriate due process by pursuing its claims before the State Board, in the trial court, and now on appeal. As the United States Supreme Court held in Mathews , the specific form which due process takes is flexible and may vary with the nature of the issue presented; a full evidentiary hearing is not always required prior to an agency issuing an order which is subject to post-issuance review, as in the present case. (See Matthews, supra , 424 U.S. at p. 334, 96 S.Ct. 893 .)

Barclay's reliance on Leslie's, supra , 223 Cal.App.3d 1524 , 273 Cal.Rptr. 373 , a case predating Machado , is unpersuasive. There, the agency seized a product from the plaintiff's retail stores without notice because it was being sold without Leslie's first having obtained the registration required by the Economic Poisons Act ( Food & Agr. Code, § 12751 et seq. ; Leslie's , at pp. 1528-1529, 273 Cal.Rptr. 373 .) The court expressly limited its holding, writing that there was no evidence the product was a threat to the environment or to the health of the public or that the product could not obtain registration when applied for. The Leslie's court also noted the Economic Poisons Act does not provide for a postseizure review. ( Leslie's , at p. 1536, 273 Cal.Rptr. 373 .)

Barclay's circumstances are materially different from those in Leslie's. Here, no property was seized; no registerable merchandise on store shelves ready for sale was confiscated. Unlike the action without notice that characterizes the facts in Leslie's , in this case, the allocation of shared responsibility for the cleanup of a hazardous substance came only after an extended period of time and much discussion and analysis-the Water Board having given multiple notices to Barclay and having allowed it multiple opportunities to be heard