Filed 8/6/19

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

BARCLAY HOLLANDER 

CORPORATION,

Plaintiff and Appellant,

v.

CALIFORNIA REGIONAL WATER 

QUALITY CONTROL BOARD,

LOS ANGELES REGION,

Defendant and Respondent;

SHELL OIL COMPANY,

Real Party in Interest and

Respondent.

B284182

(Los Angeles County

Super. Ct. No. BS158024)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Amy D. Hogue, Judge. Affirmed.

 

* Pursuant to California Rules of Court, rules 8.1105 and 

8.110, this opinion is certified for publication with the exception 

of parts III and V–VII of the Discussion.
2

Gibson, Dunn & Crutcher, Patrick W. Dennis, William E. 

Thomson and Thomas A. Manakides for Plaintiff and Appellant.

Xavier Becerra, Attorney General, Robert W. Byrne, 

Assistant Attorney General, Eric M. Katz, John S. Sasaki and 

Carol Ann Zimmerman Boyd, Deputy Attorneys General, for 

Defendant and Respondent.

Morgan, Lewis & Bockius, Thomas M. Peterson, David L. 

Schrader, Deanne L. Miller, Stephanie Chen and Emily L. 

Calmeyer for Real Party in Interest and Respondent.

_________________________

Appellant Barclay Hollander Corporation (Barclay) seeks 

reversal of a judgment of the Los Angeles Superior Court denying 

its Petition for Writ of Mandate by which it sought to overturn 

the determination of the State of California Regional Water 

Quality Control Board, Los Angeles Region (Water Board) that 

Barclay is jointly and severally responsible with real party in 

interest Shell Oil Company (Shell) for the cleanup and abatement 

of petroleum hydrocarbon compounds and other contaminants 

(the petroleum residue or waste) at the former Shell tank farm in 

Carson, California (the Site). 

We affirm the trial court’s order and judgment upholding 

the Water Board’s determination.

FACTUAL AND PROCEDURAL BACKGROUND

Barclay is a wholly owned subsidiary of Dole Food 

Company, Inc. In Dole Food Co., Inc. v. Superior Court (2015) 

242 Cal.App.4th 894 (Dole), we considered and resolved issues 
3

related to the good faith settlement of a class action brought by 

owners of homes constructed on the Site, the same area that is 

the subject of the Water Board’s revised Cleanup and Abatement 

Order (RCAO) in this case. 

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 
4

its ‘former operation of a petroleum hydrocarbon tank farm at the 

Site.’

“After submitting an initial RAP[1] 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, 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 the staff’s recommendation, thus making 

Barclay Hollander responsible for contributing to the cost of the 

board-ordered remediation.” (Dole, supra, 242 Cal.App.4th at 

p. 900.) That order is the subject of the present appeal.

Shell purchased the 44.3-acre Site in 1923. Three storage 

tanks or reservoirs were situated there; each was constructed 

with interior concrete liners, its walls supported externally by 

compacted earth; each reservoir had a wooden top. The total 

storage capacity of the three reservoirs was 3.5 million barrels of 

oil. Each reservoir was surrounded by an earthen berm 10 to 15 

feet in height. Earthen berms also had been built on the 

 

1 The acronym RAP stands for remedial action plan. (Dole, 

supra, 242 Cal.App.4th at p. 898.)
5

perimeter of the property to retain any overflow of petroleum. 

The reservoirs were used primarily to store “heavy oils.” Beneath 

the site are preexisting groundwater aquifers used for drinking 

water.

During Shell’s operation of the Kast Tank Farm the 

reservoirs leaked,2 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.3

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.4 Later that month, Barclay and 

Shell agreed to the sale of the Site to “Richard Barclay or 

 

2 The first leak in the record is one noted in a 1943 status 

report, which indicates a leak in the lining of Reservoir No. 6, 

which Shell repaired. Other leaks and the cost of their repair are 

documented in later Shell memoranda. 

3 The contents were characterized in contemporaneous Shell 

internal reports as “unrecoverable” and as “non-usable.” 

4 The letter was addressed to Barclay-Hollander-Curci. The 

parties do not dispute that the correct party to these proceedings 

is Barclay, which is the entity surviving after several transfers of 

ownership of the Site. 
6

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 from the property.” Barclay 

“estimate[d] it will take about three months for completion.” In 

the same letter, Barclay wrote that it would be in a position to 

begin grading the property and restoring it to its “natural grade” 

in late February or March of 1966.

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.5 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 

 

5 Barclay does not dispute that it is responsible for the 

actions of Lomita at the Site.
7

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 structures on the subject tract were 

constructed prior to 1930 and consist of three large oil reservoirs 

and their attendant berms. The earthen walls of the reservoir[s] 

are generally about fifteen feet in height and have a slope ratio of 

1-1/2:1. The bottom[s] and sides of the reservoir[s] are lined with 

a four-inch blanket of reinforced concrete. The reservoirs are 

nearly 30 feet deep and are covered by wooden roofs. . . . [¶] 

Earthen berms ranging in height from ten to fifteen feet have 

been constructed between the reservoirs and around the exterior

boundaries of the tract. [¶] Due to the permeability of the surface 

soils, water tends to pond in the topographically low areas of the 

tract. An old sump, reported to be only three feet in depth, has 

been approximately located . . . . In addition, large underground 

pipes and conduits are to be found throughout the tract.”

PSE recommended that the concrete either be “wasted from 

the site or buried deep enough in the fill so as not to interfere 

with further construction.” Confirmation that the concrete slabs 

were buried on the Site appears (a) in the terms and conditions 

for issuance of the subdivision map for the development approved 

by the Regional Planning Commission of the County of Los 

Angeles; those terms included breaking up the concrete and 

burying the slabs at least seven feet beneath the finished grade; 

and (b) in a letter from PSE to Lomita, dated January 27, 1966, 

in which PSE described the method by which it would break up 
8

and place the concrete slabs at the appropriate depths before 

covering them.6

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 

 

6 The January 27, 1966 letter from PSE to Lomita also states 

that “Prior to placing fill on the broken bottom slab[s], hand 

auger holes will be drilled to examine existing underlying soils.” 
9

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, 

advising that once the slabs were broken up, they should be 

“thoroughly mixed with soil, watered and compacted with a 

heavy vibratory roller. Following completion the mixture should 

be watered thoroughly to insure proper filling of all voids.” PSE 

reported it had tested this method and that “Applying this to 

[the] entire reservoir bottom, nearly 5,000,000 cu. ft. of water 

should percolate through the reservoir floor. This indicates that 

drainage should not be a problem in the development of this

parcel.” In April 1967, PSE made a similar recommendation for 

another section of the Site.

The transaction had originally been scheduled to close 

escrow in July 1966; however, various delays resulted in 

extending the closing date to October 1, 1966. The Grant Deed 

from Shell to “Lomita Development Co., a partnership” was 

recorded in the Office of the Los Angeles County Recorder on 

October 14, 1966.

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).7 

 

7 Although Barclay’s opening brief indicates the final sales 

were made in 1971, the citation to the record on this point refers 

to a 1960 tract map and therefore does not substantiate that 

date. The date has relevance to determining the law applicable 

to Barclay’s claim that it is entitled to rely on the safe harbor of 
10

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.”8

 

Water Code section 13304, subdivision (j). We address this issue 

in part VII of this opinion.

8 The Water Board cited Water Code sections 13304 and 

13267 as authority for this order. Water Code section 13304 

provides, in pertinent part: 

“(a) A person who has discharged or discharges waste into

the waters of this state in violation of any waste discharge

requirement or other order or prohibition issued by a regional

board or the state board, or 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 and creates, or threatens

to create, a condition of pollution or nuisance, shall, upon order of

the regional board, clean up the waste or abate the effects of the

waste . . . .

“. . . .

“(j) This section does not impose any new liability for acts

occurring before January 1, 1981, if the acts were not in violation

of existing laws or regulations at the time they occurred.”

Water Code section 13267 provides, in pertinent part: 

“(a) A regional board, in establishing or reviewing any

water quality control plan or waste discharge requirements, or in
11

In response to that order, Shell conducted the requested 

environmental investigation, including collecting analytical data, 

and compiled technical reports based on 2,400 samples taken at 

several locations on the Site. The data revealed petroleum 

hydrocarbon contamination at varying depths at these locations 

and, inferentially, throughout the Site. 

In a June 9, 2010 letter from Shell to the then Interim 

Executive Officer of the Water Board, Sam Unger (Unger), Shell 

 

connection with any action relating to any plan or requirement

authorized by this division, may investigate the quality of any

waters of the state within its region.

(b) (1) In conducting an investigation specified in

subdivision (a), the regional board may require that any person

who has discharged, discharges, or is suspected of having

discharged or discharging, or who proposes to discharge waste

within its region, or any citizen or domiciliary, or political agency

or entity of this state who has discharged, discharges, or is

suspected of having discharged or discharging, or who proposes to

discharge, waste outside of its region that could affect the quality

of waters within its region shall furnish, under penalty of

perjury, technical or monitoring program reports which the

regional board requires. The burden, including costs, of these

reports shall bear a reasonable relationship to the need for the

report and the benefits to be obtained from the reports. In

requiring those reports, the regional board shall provide the

person with a written explanation with regard to the need for the

reports, and shall identify the evidence that supports requiring

that person to provide the reports.

“. . . .

“(e) As used in this section, ‘evidence’ means any relevant

evidence on which responsible persons are accustomed to rely in

the conduct of serious affairs, regardless of the existence of any

common law or statutory rule which might make improper the

admission of the evidence over objection in a civil action.”
12

provided its understanding of the organizational history of 

Barclay and related entities, including that Barclay was now a 

wholly owned subsidiary of Dole. Also in that letter, Shell 

“acknowledge[d] its obligation to address the environmental 

conditions created by its former operations.” Shell “respectfully 

requests that you also include Barclay Hollander and Dole Foods 

on any order issued related to remediation of the [Site].” The 

next month, Shell’s attorneys sent the Water Board a 14-page 

letter accompanied by 35 exhibits in which they documented the 

bases for Shell’s request that Barclay and Dole be added to the 

Cleanup and Abatement Order (CAO).

On March 11, 2011, the Water Board issued a CAO (No. 

R4-2011-0046) to Shell, ordering it to clean up and abate the 

contamination at the Site. The CAO contained the determination 

that Shell was a discharger as described in Water Code section 

13304 and a responsible party for the Site based on its prior 

ownership of the Site and its former operation there of the 

petroleum hydrocarbon tank farm. The Water Board’s findings 

included that Shell’s “activities at the Site have caused or 

permitted the discharge of waste resulting in soil, soil vapor, and 

groundwater pollution, including discharges of waste to the 

waters of the state, and nuisance.” 

The CAO ordered Shell to assess, monitor, clean up and 

abate the effects of the petroleum hydrocarbon compounds and 

other contaminants at the Site.

The next month, on April 22, 2011, the Water Board 

notified Barclay’s parent, Dole, that information in the files of the 

Water Board, including information provided by Shell, “suggests 

that the contamination related to the shallow soil [from 0 to 10 

feet below ground surface . . . and perhaps deeper] was directly 
13

related to the demolition of the petroleum hydrocarbons (crude 

oil) storage reservoirs and the grading of the [Site], which were 

performed by, and were the sole responsibility of, [Lomita] and its 

affiliate(s).” The Water Board ordered Dole to provide all 

information related to its ownership of the Site and activities 

there, specifically requesting information regarding the 

reservoirs and redevelopment of the Site into the Carousel tract 

neighborhood, and to do so by June 15, 2011.9

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, accompanied by 113 

exhibits and a declaration. Dole took the position that there was 

no legal basis upon which to name it as a discharger based on any 

activities of Lomita, and because, “In April 1969, a Dole 

subsidiary, not Dole, acquired the remaining unsold lots. . . . In 

any event, whether or not the Dole subsidiary is a discharger, 

Dole does not become a discharger on the mere basis that it owns 

a corporation that is an alleged discharger.” 

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 

 

9 This order was issued pursuant to Water Code section 

13267. 
14

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.10

On June 3, 2014, the Water Board gave notice it would 

accept additional public comments on the proposed RCAO.11

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.

On December 8, 2014, Unger, now the Executive Officer of 

the Water Board, issued a memorandum advising that the Water 

Board was recommending issuance of the RCAO by adding 

Barclay as a responsible party and discharger. The 

memorandum contained an extensive discussion of the bases for 

this recommended determination; it was accompanied by 15 

attachments, including SCP Staff’s analysis of the issues raised 

in Dole’s letters to the Water Board. 

 

10 In this filing, Dole acknowledged that Barclay carried 

liability insurance and that “in that limited sense,” it has assets. 

Dole continued to contest that Barclay was a discharger and 

responsible party, but conceded that if an RCAO were to issue, 

Barclay was the appropriate party to be named in it. 

11 The parties have not cited, and we did not locate in the 

record, any comments that may have been received from the 

public.
15

Dole responded to this memorandum on December 24, 

2014, for the first time asking the Water Board executive in 

charge of the matter (Chief Deputy Executive Officer Smith, or 

Smith) to conduct a formal hearing and to give consideration to 

what Dole described as “additional critical evidence” that Barclay 

characterized as previously unavailable. 

On January 6, 2015, Dole filed a 19-page letter by which it 

submitted multiple additional expert reports as well as other 

materials it sought to have the Water Board consider before 

issuing a revised order adding Barclay as a discharger and 

responsible party. The next day, counsel for Shell submitted a 

letter in response to Dole’s December 24, 2014 letter in which 

Shell argued there was substantial evidence to add Dole and 

Barclay as responsible parties. Shell also observed that Dole was 

in error in claiming in its December 2014 letter that it had not 

been told earlier that the Water Board was considering naming 

Barclay in the RCAO, and questioned why counsel for Dole and 

Barclay were only then making a request for a formal hearing. 

On January 9, 2015, the Water Board issued a notice to “All 

Parties and Interested Persons” advising that it was considering 

the requests and offering the opportunity to comment on the 

December and January submissions by Dole and Shell, setting 

the deadline for receipt of such comments at January 16, 2015. 

On January 15, 2015, SCP Staff advised that it had no 

opinion on whether a formal, oral hearing should be held; also 

writing that the request for such a hearing “is surprising given 

that Barclay has known since at least October 31, 2013, that SCP 

Staff was considering adding Barclay and other parties to the 

CAO.” SCP Staff stated its objection to the request to submit 

additional evidence because “Barclay has had many opportunities 
16

to do so and was provided extensions of time to allow an adequate 

opportunity to respond.” SCP Staff also stated its disagreement 

with the factual claims in other recent submissions by Dole. 

In its January 16, 2015 filing, Dole argued its additional 

evidence should be admitted, now citing the “California 

Administrative Procedure Act (‘APA’) provisions, and State 

Water Resources Control Board (‘State Board’) regulations” as 

the bases for its request for an oral hearing.12

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 

 

12 This set of documents is the subject of the first of Barclay’s 

two requests for judicial notice filed in this court. We address 

both of Barclay’s requests for judicial notice in section III, below.
17

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.13

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 information 

already stated by him. SCP Staff wrote on the same day that, in 

its view, the Bach deposition did not alter Staff’s conclusion that 

Barclay should be added to the CAO as a responsible party. 

On April 17, 2015, the Water Board issued notice that 

action on the draft RCAO could be expected on or shortly after 

April 24, 2015. Counsel for Dole and Barclay wrote to Smith on 

April 22, acknowledging receipt of the April 17 notice and asking 

that the Water Board defer any ruling until after certain 

depositions had been taken in the Acosta civil action.14 On 

April 30, 2015, the Water Board explained why it considered it 

 

13 These rulings were made by Smith, the Chief Deputy 

Executive Officer who had been designated by the Water Board’s 

Executive Officer to act with respect to the RCAO. 

14 The reference is to Acosta v. Shell Oil Co. (Super. Ct. L.A. 

County, No. NC053643), one of the actions which was addressed 

in our opinion in Dole, supra, 242 Cal.App.4th 894. See above, at 

pages 2 and 3.
18

inappropriate to further defer completing action on the proposed 

addition of a responsible party to the CAO, also advising counsel 

for Dole and Barclay, and counsel for Shell, that the Water Board 

was that day issuing the RCAO adding Barclay as a discharger 

and as a responsible party with respect to the Site. This letter 

stated in part: 

“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 
19

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 neighborhood, or any considerable number of persons, although 

the extent of the annoyance or damage inflicted upon individuals 

may be unequal.’

“. . . .

“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, 
20

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 BarclayHollander-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.”15 (Original 

italics, fns. omitted.) 

 

15 Water Code section 13304, subdivision (j) provides a safe 

harbor from sanction under the Porter-Cologne Water Quality 

Control Act if the conduct otherwise subject to that law occurred 

prior to 1981 and complied with “existing laws or regulations at 

the time [the conduct] occurred.” 
21

On May 21, 2015, counsel for Dole and Barclay notified 

Smith they intended to challenge the RCAO and asked that its 

implementation be stayed. The Water Board denied this request. 

Barclay’s appeal to the State Board was denied by operation of 

law after that body took no action on it. (Wat. Code, § 13320, 

subd. (a); Cal. Code Regs., tit. 23, § 2052, subd. (a)(1); see 

Johnson v. State Water Resources Control Bd. (2004) 123 

Cal.App.4th 1107, 1112-1113; People ex rel. Cal. Regional Wat. 

Control Bd. v. Barry (1987) 194 Cal.App.3d 158, 177.)

Barclay filed its “Verified Petition for Review of 

Administrative Mandamus (Code Civ. Proc., § 1094.5)” on 

September 30, 2015, which was superseded on March 1, 2016, by 

the operative “Verified First Amended Petition for Writ of 

Administrative Mandamus.” Following trial on April 24, 2017, 

the superior court denied the petition. Judgment on the petition 

was entered on June 5, 2017. This timely appeal followed.

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 

 

The Water Board explained in a footnote to paragraph 13 of 

the RCAO that Barclay’s conduct did not qualify for this safe 

harbor based on the Water Board findings that Barclay’s actions 

were contrary to Health and Safety Code section 5411, Fish and 

Game Code section 5650 and Los Angeles County Code section 

20.36.010. 
22

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.16

DISCUSSION

I. Introduction 

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 regional board. (Wat. 

Code, §§ 13200, 13201; compare Dickey Act, former Wat. Code, 

§§ 13040-13044.)

17 Each regional board is charged with 

formulating and adopting water quality control plans for its 

 

16 Barclay does not also argue, based on one or more of these 

claims, that the Water Board failed to proceed in the manner 

required by law and that Code of Civil Procedure section 1094.5, 

under which this case was filed in the trial court, requires that 

the judgment be reversed. Nevertheless, we understand that to 

be the import of the first of Barclay’s contentions. 

17 Future references to the Porter-Cologne Act will be made to 

the relevant Water Code section number; references to provisions 

of the Dickey Act will be made to the relevant “former” Water 

Code section number.
23

region and, through those plans, establishing water quality 

objectives that will “ensure the reasonable protection of beneficial 

uses [of waters of the state] and the prevention of nuisance.” 

(Wat. Code, §§ 13240, 13241.)

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).)18

In this case, the Water Board issued a cleanup and 

abatement order, originally ordering only Shell to clean up and 

abate the petroleum residue and waste at the Site. On this 

appeal, Barclay advances several reasons why, in its view, the 

Water Board erred in adding it as a responsible party to the 

RCAO and why the superior court erred in sustaining that order.

 

18 At the time of Barclay’s actions in the present case 

(principally, through its agent Lomita), the predecessor 

legislation addressing, inter alia, water quality, the Dickey Act, 

was in effect. While the administrative structure of the statewide 

water control program was similar, and the remedies available 

and at issue in this case are those provided for under the PorterCologne Act, many of the statutory provisions relevant to the 

issues in this appeal require consideration of provisions of the 

Dickey Act rather than those of the Porter-Cologne Act, as we 

discuss in the text, below. 
24

II. Standards of Review

“A party aggrieved by a final decision or order of a regional 

board . . . may obtain review of the decision or order of the 

regional board in the superior court by filing in the court a 

petition for writ of mandate.” (Wat. Code, § 13330, subd. (b).) 

The petition for writ of mandate is governed by Code of Civil 

Procedure section 1094.5, subdivision (c), and “the court shall 

exercise its independent judgment on the evidence.” (Wat. Code, 

§ 13330, subd. (e).) “ ‘In exercising its independent judgment, a 

trial court must afford a strong presumption of correctness 

concerning the administrative findings, and the party challenging 

the administrative decision bears the burden of convincing the 

court that the administrative findings are contrary to the weight 

of the evidence.’ ” (Building Industry Assn. of San Diego County 

v. State Water Resources Control Bd. (2004) 124 Cal.App.4th 866, 

879.) An “abuse of discretion is established if the court 

determines that the findings are not supported by substantial 

evidence in the light of the whole record.” (Code Civ. Proc., 

§ 1094.5, subd. (c).)

“The independent judgment standard in which the trial 

court determines whether administrative findings are supported 

by the weight of the evidence differs from the substantial 

evidence standard of review. (Alberda v. Board of Retirement of 

Fresno County Employees’ Retirement Assn. (2013) 214

Cal.App.4th 426, 435 (Alberda).) ‘In substantial evidence review, 

the reviewing court defers to the factual findings made below. It 

does not weigh the evidence presented by both parties to 

determine whose position is favored by a preponderance. 

Instead, it determines whether the evidence the prevailing party 

presented was substantial—or, as it is often put, whether any 
25

rational finder of fact could have made the finding that was made 

below. If so, the decision must stand.’ (Ibid., italics omitted.) In 

contrast, under the independent judgment standard, ‘the trial 

court begins its review with a presumption that the 

administrative findings are correct, it does not defer to the fact 

finder below and accept its findings whenever substantial 

evidence supports them. Instead, it must weigh all the evidence 

for itself and make its own decision about which party’s position 

is supported by a preponderance. [Citation.] The question is not 

whether any rational fact finder could make the finding below, 

but whether the reviewing court believed the finding actually was 

correct.” (Ibid., italics omitted.)” (Coastal Environmental Rights 

Foundation v. California Regional Water Quality Control Bd. 

(2017) 12 Cal.App.5th 178, 187-188; see Marina County Water 

Dist. v. State Water Resources Control Bd. (1984) 163 Cal.App.3d 

132, 138.)

“Where, ‘as here, the trial court is required to review an 

administrative decision under the independent judgment 

standard of review, the standard of review on appeal of the trial 

court’s determination is the substantial evidence test. 

[Citations.]’ (Fukuda [v. City of Angels (1999)] 20 Cal.4th [805,] 

824.) ‘[W]e review its factual determinations under the 

substantial evidence standard and its legal determinations under 

the de novo standard. [Citations.] “[W]e are not bound by the 

legal determinations made by the state or regional agencies or by 

the trial court. [Citation.] But we must give appropriate 

consideration to an administrative agency’s expertise underlying 

its interpretation of an applicable statute.” [Citation.]’ (Coastal 

Environmental Rights Foundation v. California Regional Water 

Quality Control Bd. [, supra,] 12 Cal.App.5th [at p.] 190.)” 
26

(Monterey Coastkeeper v. State Water Resources Control Bd.

(2018) 28 Cal.App.5th 342, 361; accord, Alberda, supra, 214 

Cal.App.4th at p. 434; Rosenblit v. Superior Court (1991) 231 

Cal.App.3d 1434, 1442 [appellate review of questions of law is 

de novo].) 

III. The parties’ requests for judicial notice; Barclay’s 

claim that the trial court wrongly rejected evidentiary 

materials it proffered

We first address requests for judicial notice on appeal of 

documents as requested by the Water Board and by Barclay, next 

considering Barclay’s claim that the trial court wrongly rejected 

its proffer of certain evidence. We do so because whether these 

materials are properly considered has direct impact on our 

consideration of other contentions Barclay raises on appeal.

We earlier granted the Water Board’s request that we take 

judicial notice of the legislative history of Statutes 1969, chapter 

482, section 18; of Statutes 1970, chapter 918, section 5.3; of 

Statutes 1971, chapter 1288, section 11; and of Statutes 1980, 

chapter 808, section 3.19 In addition to there being no opposition 

stated to these requests, we did so because, as the Water Board 

noted in its request, one of the issues presented by Barclay in this 

appeal is the proper interpretation of certain statutes, 

particularly Water Code section 13304, subdivision (j). 

Legislative history materials are commonly the subject of judicial 

notice and are of assistance in resolving such issues. (See Evid. 

Code, § 452, subd. (c) [reports of legislative committees]; Elsner v. 

Uveges (2004) 34 Cal.4th 915, 934, fn. 19; Kaufman & Broad 

 

19 These statutes contain the original text of the PorterCologne Act and of certain amendments to it. 
27

Communities, Inc. v. Performance Plastering, Inc. (2005) 133 

Cal.App.4th 26, 30 [explicating types of legislative materials of 

which judicial notice may be taken].)

The Water Board also requested that we take judicial 

notice of three letters it sent to Shell that concern Shell’s 

participation in the Site Cleanup Oversight Reimbursement 

Account (Cost Recovery Program) dated May 8 and December 2, 

2008 and July 15, 2011. It does so in connection with its response 

to Barclay’s argument in section VI, below, that proceedings 

before the Water Board relating to the determination to add 

Barclay as a responsible party were “tainted” by payments Shell 

made to the Water Board. We grant this request for reasons we 

discuss in our rulings regarding these letters in that section of 

this opinion. 

Barclay made two unopposed requests for judicial notice, 

both of which we granted prior to argument. The second request, 

filed November 9, 2018, by which Barclay seeks judicial notice of 

sections 640 and 648 through 648.8 of title 23 of the California 

Code of Regulations, is clearly authorized by Evidence Code 

sections 452, subdivision (c), and 459 as these regulations are 

relevant to issues raised in this appeal. We modify our prior 

grant of this request for reasons we explain in the accompanying 

footnote.20

 

20 The text of these regulations as Barclay presented it in the 

subject request for judicial notice was not adopted. Inspection of 

the History Table for Chapter 1 of Division 3 of the regulations of 

the State Water Resources Control Board and Regional Water 

Control Boards reveals that this document, Resolution 98-120 of 

the State Water Resources Control Board, containing versions of 

the regulations of which Barclay sought judicial notice, was 
28

Barclay’s first request, filed March 20, 2018, presents more 

nuanced issues, issues requiring detailed discussion to explain 

the reasons for our initial order and the reasons we revisit that 

order now. 

We begin our review of this request by describing by 

category the documents contained in it, further identifying in 

parentheses following each category the numbers which Barclay 

assigned to them in its request: (a) pleadings and memoranda 

filed in other litigation (1-9); (b) memoranda of the Chief Counsel 

of the State Water Resources Control Board (10-11); (c) pleadings 

and declarations filed by Barclay concerning its petition for 

review of the RCAO (12-16); (d) transcripts of depositions of Dr. 

Ayalew (a Water Board employee) and of Unger (17-18); records 

of the State and Regional Water Boards (19-23); (e) invoices 

issued by the Regional Water Board to Shell between 2008 and 

2015 (24); (f) the transcript of the June 12, 2014 meeting of the 

Water Board (25); (g) “hearing procedure” and other documents 

prepared by other regional water boards (26-36); (h) an 

organizational chart of “the Board” (37); and (i) events which 

 

rejected by the Office of Administrative Law (OAL) on 

January 12, 1999. Thereafter, a revised set of those regulations 

was approved by the OAL. We therefore modify our prior grant 

of judicial notice, taking judicial notice of the approved versions 

of title 23 of the California Code of Regulations sections 640 and 

648 through 648.9, pursuant to Evidence Code sections 452, 

subdivisions (b) and (c) and 459. 

We also take judicial notice of the legislative history of the 

statutes discussed at various locations in the course of this 

opinion based on the statutory provisions and case authority we 

have cited. 
29

Barclay describes as “facts and propositions not reasonably 

subject to dispute.” (38-43).

Barclay represents that, in the judgment before us on this 

appeal, the trial court took the following actions on the items 

listed: (a) it declined to take judicial notice of items 1-11, 17-35, 

37, and 39-42; and (b) it took judicial notice of items 12-16, and 

38. Barclay does not indicate in its request for judicial notice any 

action by the trial court with respect to items 36 and 43.21

Because the trial court did take judicial notice of certain of 

the items listed, they are already part of the administrative 

record in this appeal and their inclusion in the subject request 

was unnecessary.

With respect to the items as to which the trial court denied 

Barclay’s request for judicial notice which Barclay now renews, 

we granted Barclay’s request earlier in these proceedings so that 

we would have those items before us for the purpose of 

determining, once we received the parties’ briefs, if there were 

some basis upon which they are appropriate for consideration on 

this appeal. 

The principal argument Barclay makes in support of its 

current request is that the judgment should be reversed based on 

the trial court’s refusal to grant Barclay’s request to admit these 

items. A corollary argument which Barclay advances in this 

 

21 Barclay responded to a question which we posed in our 

June 10, 2019 letter (Gov. Code, § 68081) concerning its request 

that the trial court take judicial notice of these items by advising 

us that the trial court denied that request. We also deny the 

similar request which Barclay makes on appeal on the same basis 

as we state in the text of this opinion regarding Barclay’s request 

as to other documents which were also denied admission into the 

trial court record. 
30

court is that these items aid in establishing “procedural 

[un]fairness” of the proceedings before the agency.

Now that we know its full context, we reconsider Barclay’s 

first request for judicial notice as to the items not already part of 

the record, doing so to determine whether the trial court abused 

its discretion in denying the request that it take judicial notice of 

the items still at issue (all items other than 12-16). We apply this 

standard to our review because it is established that an appellate 

court reviews for abuse of discretion an appellant’s claim that a 

trial court wrongly denied its requests for judicial notice 

(Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 

264, revd. on other grounds in Yvanova v. New Century Mortgage 

Corp. (2016) 62 Cal.4th 919) and because there is no basis upon 

which to take judicial notice on appeal of items not in the 

administrative record (subject to an exception which we address 

below). 

To be considered in quasi-judicial administrative 

mandamus proceedings, such as the present one, Code of Civil 

Procedure section 1094.5, subdivision (e) requires that the 

material must have been unavailable at the time of the hearing 

“in the exercise of reasonable diligence” or otherwise improperly 

excluded from the record. (Eureka Citizens for Responsible 

Government v. City of Eureka (2007) 147 Cal.App.4th 357, 367, 

citing Western States Petroleum Assn. v. Superior Court (1995) 9 

Cal.4th 559, 578.) Further, a trial court’s order granting judicial 

notice is presumed to be correct. (Denham v. Superior Court

(1970) 2 Cal.3d 557, 564; Yu v. University of LaVerne (2011) 196 

Cal.App.4th 779, 787.)

In arguing the trial court wrongly denied its request to take 

judicial notice of the documents it now seeks to have us add to 
31

the record on appeal, Barclay restates the arguments it made 

below and which were denied twice in the trial court. At the time 

Barclay’s request was first denied, the reasons included that 

Barclay did not “convince the court that what it wants to be 

added to the record is relevant and could not, with reasonable 

diligence, have been presented during the period of time the 

[RCAO] was being considered by the Board Officer up to 4/30/15 

[the date the RCAO was issued]. [¶] As to material that did not 

exist at the time of the [RCAO], the evidence shows that 

[Barclay], with the exercise of reasonable diligence, could have 

developed it earlier. . . . [¶] [Barclay] fails to show sufficient 

evidence of reasonable diligence for not presenting much of the 

exhibits . . . . It appears that as to these exhibits that were not 

produced earlier that [Barclay’s] approach was to simply let 

things ride during the 2-1/2 year period [in which the Water 

Board was considering issuing the RCAO] . . . . [¶] In addition, 

the court finds that the ‘cost recovery’ procedures and application 

do not amount to any bias by any standard.”

When Barclay later sought to have the court which 

adjudicated its mandate petition take judicial notice of the 

documents, it presented no more cogent argument: the result 

was that the trial court additionally took judicial notice only of a 

corrected deposition transcript (item 38) and of Barclay’s petition 

to the State Board (item 12), and denied the other requests. In 

doing so, the trial court rejected Barclay’s claims of relevance and 

of diligence in obtaining and presenting the items, determining a 

second time that “Barclay failed to exercise reasonable diligence 

in developing and presenting the exhibits to the Regional Board.” 

Barclay presents no different or more compelling argument 

to this court and makes no cogent argument as to how the trial 
32

court abused its discretion in denying Barclay’s earlier similar 

requests. Before reaching this determination we also reviewed 

the February 27, 2017 document containing the Water Board’s 

denial of Barclay’s requests to augment the record with many of 

the documents which are also in its request to this court. Having 

done so, we find the reasons stated in the superior court’s two 

rejections of Barclay’s requests and those stated by the Water 

Board, at least equally as cogent at this stage of the case.22 We 

determine that there was no error below in the denials; 

accordingly, we deny Barclay’s first request for judicial notice. 

Barclay’s related argument, that the trial court should have 

considered the materials contained in its first request for judicial 

notice filed in this court (which are not already part of the record 

on appeal) because they bear on procedural unfairness—and that 

the judgment should be reversed for this reason, is also fatally 

 

22 In its opposition to this request for judicial notice, the 

Water Board points out that many of the “facts” which Barclay 

seeks to have admitted on appeal had been excluded below as 

being both cumulative and presented untimely, and that Barclay 

had not—and has not—convincingly established that it diligently 

sought to obtain the material it belatedly requested to add to the 

record below (e.g., the public records material); nor has it 

established the relevance of that material. Shell makes similar 

arguments. Both sets of argument have merit.

We also observe that many of the documents (e.g., 

pleadings in other actions and deposition transcripts in those 

actions) would be admissible under any circumstances only for 

the fact of their existence and not for the truth of the matters 

they contain; nor are they relevant to issues presented on this 

appeal. (See Guarantee Forklift, Inc. v. Capacity of Texas, Inc. 

(2017) 11 Cal.App.5th 1066, 1075.)
33

flawed. The additional materials Barclay has proffered do not 

address procedural unfairness in the action we now review. Also, 

the principal case upon which Barclay relies, Clark v. City of 

Hermosa Beach (1996) 48 Cal.App.4th 1152, concerns both the 

impact of “pecuniary interests of board members” and their 

personal embroilment in the dispute before that agency. (Ibid., 

p. 1170, fn. 17 & p. 1173.) There is no such evidence in the 

present case, whether in the record or in Barclay’s request for 

judicial notice.23 

For these reasons, none of the materials in Barclay’s first 

request for judicial notice in this court (other than those already 

in the record on appeal) are admitted for any purpose other than 

to adjudicate Barclay’s request.

IV. Compliance with the Administrative Procedure Act 

and its Bill of Rights

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,24 and orders made therein by 

administrative agencies, must comply with hearing procedures 

 

23 There is one exception to our conclusion in this regard, i.e., 

Barclay’s claim that Shell “paid for” the investigation of Barclay 

resulting in it being added to the order. We resolve that claim, 

adversely to Barclay, in section VI of this opinion.

24 An adjudicative proceeding is “an evidentiary hearing for 

determination of facts pursuant to which an agency formulates 

and issues a decision.” (Gov. Code, § 11405.20.) A “decision” is 

“an agency action of specific application that determines a legal 

right, duty, privilege, immunity, or other legal interest of a 

particular person.” (Gov. Code, § 11405.50.)
34

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 

(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. 

Government Code section 11410.10 states: “This chapter 

applies to a decision by an agency if, under the federal or state 

Constitution or a federal or state statute, an evidentiary hearing 
35

for determination of facts is required for formulation and 

issuance of the decision.”

We begin by determining the meaning of this statute. 

“ ‘ “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.’ ” ’ ” (Hassel v. Bird (2018) 5 

Cal.5th 522, 540; accord, City of San Jose v. Superior Court

(2017) 2 Cal.5th 608, 616-617.)

The meaning of Government Code section 11410.10 is

unambiguous: The refence 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 
36

a provision of the Water Code (or some other statute25) 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.)

Water Code section 13267 authorizes a regional water 

board, or the state board, to investigate potential threats to the 

quality of the waters of the state,26 including on an emergency 

basis. This investigative authority of the regional water boards 

includes (a) the right to ask anyone who has discharged, 

discharges or is discharging, or is suspected of discharging, or 

proposes to discharge waste that could affect the quality of the 

waters of the state to provide the water board with technical and 

monitoring reports under penalty of perjury; (b) the right to 

inspect facilities to determine compliance with waste discharge 

requirements; and (c) the right to issue cleanup and abatement 

 

25 We consider the other qualifying language of this statute, 

that referencing the federal and state Constitutions, and another 

possible, statutory exception, in subsequent sections of this 

opinion.

26 The term “Waters of the state” means “any surface water or 

groundwater, including saline waters, within the boundaries of 

the state.” (Wat. Code, § 13050, subd. (e).) 
37

orders to remediate the discharge. (Wat. Code, §§ 13267 &

13304, respectively.)27 

The Legislature’s selection of a postcleanup order

administrative and judicial review process likely is the result of 

its determination that the potential threat to the public from 

waters which are polluted or otherwise present a threat to their 

health and well-being warrants the later placement and 

availability of the review process.

The Water Code also provides that “all current record 

owners of fee title to the site of the proposed action [be] notified of 

the proposed action by the state board or regional board” 

(§ 13307.1, subd. (a)), also requiring that the state and regional 

water boards “shall take all reasonable steps necessary to 

accommodate responsible landowner participation in the cleanup 

or site closure process and shall consider all input and 

recommendations from any responsible landowner wishing to 

participate.” (§ 13307.1, subd. (b).)

Even though Barclay is not a current owner, the Water 

Board provided it with extensive access to the process in which 

the Water Board engaged prior to issuance of the RCAO; Barclay 

had no further statutory right to participate.

This determination does not end our consideration of 

Barclay’s contention. We will address other potential sources of 

 

27 A separate provision of the Water Code, section 13301, 

authorizes the issuance of cease and desist orders; while that 

statute also requires that such orders “may be issued . . . after 

notice and hearing,” it also does not incorporate any provision of 

the APA. As we shall discuss, Government Code section 11410.40 

provides authority for an agency to adopt portions of the APA, 

which the State Water Board has done. (See section IV B, below.)
38

application of the APA in this case—whether either the federal or 

state Constitutions requires compliance with the APA—after 

addressing Barclay’s argument that the holding in ABC

mandated the Water Board’s compliance with the APA.

Barclay’s reliance on ABC to support its claim that the APA 

and its Bill of Rights are applicable in this case is misplaced. The 

APA applied to the proceeding under review in ABC because the 

Legislature expressly so provided in Business and Professions 

Code section 24300.28 By contrast, in the present case, no statute 

provides for the action of the Water Board at issue here to be 

subject to the APA, and thus applying the plain language of 

section 11410.10, Chapter 4.5 of the Government Code, the APA 

does not apply to the proceedings which led to issuance of the 

RCAO. Thus, there is no statutory basis for application of the 

APA to Barclay’s claims and the trial court’s determination that 

the APA did not apply was correct. (See Basurto v. Imperial 

Irrigation District (2012) 211 Cal.App.4th 866, 881-882 [rejecting 

argument that the APA applies unless a state agency is 

specifically excepted from its coverage]; see also Schutte & 

 

28 Business and Professions Code section 24300, subdivision 

(a) provides, in relevant part: “Except as provided in Section 

24203 and in this section, the proceedings shall be conducted in 

accordance with Chapter 5 (commencing with Section 11500) of 

Part 1 of Division 3 of Title 2 of the Government Code, and in all 

cases the department shall have all the powers granted therein.” 

Thus, there is in the ABC case a specific statutory command that 

the APA is applicable to those proceedings. 
39

Koerting, Inc. v. Regional Water Quality Control Bd. (2007) 158 

Cal.App.4th 1373, 1387 (Schutte).)29

The determination that the APA does not apply to 

proceedings such as those we now review is also supported by the 

statutory history of the Water Code. When the Dickey Act was 

adopted, its section 13061 expressly required that the thenoperative version of the APA apply to proceedings concerning 

whether there had been a discharge contrary to the requirements 

of the Dickey Act.30 This requirement was removed when the 

 

29 The leading authority on the APA makes a similar point in 

his treatise on California Administrative Procedure. There, 

Professor Michael Asimow writes: “The APA administrative 

adjudication provisions do not apply to every state agency 

‘decision’ . . . . Instead, by statute, those provisions apply only ‘to 

a decision by an agency if, under the federal or state Constitution 

or a federal or state statute, an evidentiary hearing for 

determination of facts is required for formulation and issuance of 

the decision.’ [Gov.C. §11410.10]” (Asimow et al., Cal. Practice 

Guide: Administrative Law (The Rutter Group 2018) ¶ 4:110.)

30 That provision is former Water Code section 13061, which 

required that proceedings to address discharges potentially 

contrary to the Dickey Act “shall be conducted, as nearly as 

practicable, in accordance with the provisions of Title 2,

Division 3, Part 1, Chapter 5 of the Government Code.” (Former 

Wat. Code, § 13061 (Stats. 1949, ch. 1549, § 13061, p. 2788.) 

That reference was to the chapter of the Government Code which 

set out the version of the APA then in effect. (Stats. 1945, ch.

867, § 1, p. 1627, as amended by Stats. 1947, ch. 1425, § 1, 

p. 2984.). Former Government Code section 11501, subdivision

(b) provided that “[t]he procedure of any agency shall be 

conducted pursuant to the provision of this chapter only as to 

those functions to which this chapter is made applicable by the 
40

Porter-Cologne Act was adopted. (Compare Stats. 1949, ch. 1549 

with Stats. 1969, ch. 482.) Had the Legislature intended to have 

the APA apply to proceedings such as those now at issue, it had 

the language at hand by which to continue that requirement; it 

did not do so. (See Bertch v. Social Welfare Dept. (1955) 45 Cal.2d 

524 [affirming limitation on application of the former APA as 

stated in former Gov. Code, § 11501]; overruled on other grounds 

in Frink v. Prod (1982) 31 Cal.3d 166, 180.) 

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.”31 

 

statutes relating to the particular agency.” (Stats. 1945, ch. 867, 

§ 1, p. 1627 [former Gov. Code, § 11501, subd. (b)].) 

31 Government Code section 11410.40 provides in full: 

“Notwithstanding any other provision of this article, by 

regulation, ordinance, or other appropriate action, 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 

exempt from application of this chapter.”
41

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).32 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 and opinion testimony], and section 11513 of the 

Government Code.”33 

 

The article containing the Bill of Rights (art. 6) is within 

the referenced chapter (Chapter 4.5 of Part 1 of Division 3 of 

Title 2 of the Government Code). 

32 We take judicial notice of this and the other regulations we 

now discuss. (Evid. Code, §§ 452, subds. (b), (c), 459.)

33 California Code of Regulations, title 23, section 648, 

subdivision (a) defines an “adjudicative proceeding” as “an 

evidentiary hearing for determination of facts pursuant to which 

the State Board or a Regional Board formulates and issues a 

decision.” 

There is an argument that proceedings involving the 

issuance of a cease and desist order are not adjudicative within 

the meaning of this section, but instead constitute administrative 

investigations in which the agency offers both notice and an 

opportunity to participate. In the text, we explain why, assuming 

arguendo, the proceedings are adjudicative, Barclay was accorded 

extensive rights to participate and only after an extended 

opportunity to do so—of which it took full advantage—waived 

any right it may have had to a “formal proceeding.”
42

While the regulation cited by Barclay so provides, there are 

other regulations that must be considered in assessing whether 

Barclay’s contention has merit.

Subdivision (c) of section 648, title 23 of the California Code 

of Regulations, limits application of the provisions Barclay seeks 

to apply. This subdivision provides in part: “Except as provided 

in subdivision (b) of this section, chapter 5 of the [APA] does not 

apply to hearings before the State Board or any of the Regional 

Boards, or hearing officers or panels appointed by those Boards.” 

Reading subdivisions (b) and (c) of section 648 of title 23 of 

the California Code of Regulations together, the resulting rule 

 

Government Code section 11513 sets out rules of 

evidentiary procedure differing in several respects from those 

applicable in court trials, providing, inter alia: (c) “[t]he hearing 

need not be conducted according to technical rules relating to 

evidence and witnesses, except as hereinafter provided. Any 

relevant evidence shall be admitted if it is the sort of evidence on 

which responsible persons are accustomed to rely in the conduct 

of serious affairs, regardless of the existence of any common law 

or statutory rule which might make improper the admission of 

the evidence over objection in civil actions. [¶] (d) Hearsay 

evidence may be used for the purpose of supplementing or 

explaining other evidence but over timely objection shall not be 

sufficient in itself to support a finding unless it would be 

admissible over objection in civil actions. An objection is timely if 

made before submission of the case or on reconsideration.” 

This regulation established the authority of the Water 

Board and of the trial court to take into evidence the declaration 

of Barclay’s engineer, Bach, who supervised development at the 

Site, even though his declaration was not made under penalty of 

perjury. (Cf. Code Civ. Proc., § 2015.5.) Barclay’s contention that 

consideration of this declaration was error is without merit based 

on these authorities. 
43

implementing the potential application of the APA according to 

subdivision (c) is that no provision of the APA applies unless 

subdivision (b) requires it: subdivision (b) explains that the APA 

applies—except when another provision states that it does not 

apply.

We find the rule operative in the present case in 

subdivision (d) of the section 648 and in section 648.7 of title 23 of 

the California Code of Regulations. The former authorizes the 

agency officer presiding over a matter to “waive any 

requirements in these regulations pertaining to the conduct of 

adjudicative proceedings including but not limited to the 

introduction of evidence, the order of proceeding, the examination 

or cross-examination of witnesses, and the presentation of 

argument, so long as those requirements are not mandated by 

state or federal statute or by the state or federal constitutions.” 

The latter provides that a party waives provisions 

otherwise applicable if the request to have them apply is 

untimely. Thus, California Code of Regulations, title 23, section 

648.7 provides: “An objection by a party, either in writing or at 

the hearing, to the decision to hold an informal hearing shall be 

resolved by the presiding officer before going ahead under the 

informal procedure. 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.” (Italics added.) 

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 
44

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.”34 (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.

 

34 Government Code section 11445.40 gives broad latitude to 

the agency officer conducting the administrative proceeding. Its 

subdivision (b) provides: “In an informal hearing the presiding 

officer shall regulate the course of the proceeding. The presiding 

officer shall permit the parties and may permit others to offer 

written or oral comments on the issues. The presiding officer 

may limit the use of witnesses, testimony, evidence, and 

argument, and may limit or eliminate the use of pleadings, 

intervention, discovery, prehearing conferences, and rebuttal.”
45

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 been utilized for over a 

year had allowed for orderly and extensive submissions by all 

parties and for extensive explications of views by the parties—

and denied the request.35

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 its position through counsel and expert and lay 

witnesses.

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 

 

35 Barclay argues other regional water boards follow different 

procedures and makes an argument based on memoranda of the 

Chief Counsel of the Water Board. As the documents upon which 

it bases these arguments are not part of the administrative 

record admitted by the trial court with respect to its adjudication 

of Barclay’s Amended Petition for Writ of Administrative 

Mandamus, and were not promulgated in compliance with 

Government Code section 11340.5, we do not consider them in 

our analysis of Barclay’s contentions on appeal. 
46

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 13330.36

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 case a provision of the Water 

Code—must state that the APA is applicable. The Law Revision 

Commission comment does not address this aspect of 

Government Code section 11410.10, and nothing in the Law 

Revision Commission comment suggests otherwise. Thus, the 

comment does not provide support for Barclay’s claim.

Barclay does not err, however, in noting that there is a fair 

hearing provision within the text of Code of Civil Procedure 

section 1094.5 which must be considered. Code of Civil Procedure 

 

36 Water Code section 13330, subdivision (b) provides: “A 

party aggrieved by a final decision or order of a regional board 

subject to review under Section 13320 may obtain review of the 

decision or order of the regional board in the superior court by 

filing in the court a petition for writ of mandate not later than 30 

days from the date on which the state board denies review.”
47

1094.5, subdivision (b) provides in part: “The inquiry in such a 

case shall extend to the questions whether the respondent has 

proceeded without, or in excess of, jurisdiction; whether there was 

a fair trial; and whether there was any prejudicial abuse of 

discretion.” (Italics added.)

Relying on the italicized clause, Barclay contends, “[t]he 

APA applies to any state agency proceedings reviewable under 

Code of Civil Procedure section 1094.5, subdivision (a).” In 

addition, it argues “the text of the APA itself makes clear that . . . 

[if] section 1094.5 applies to the review of an agency decision, 

then that decision is subject to the APA.” As with the claim just 

discussed, Barclay supports this claim with citations to 

Government Code section 11410.10 and to a California Law 

Revision Commission comment to this Government Code section. 

Barclay’s argument based on the cited Law Revision 

Commission comment lacks persuasive force. The passage upon 

which Barclay relies is an introductory sentence of a paragraph of 

the Law Revision Commission’s comment on this section, which 

reads in full: “The coverage of this chapter 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.) That is not a statement that this Government 

Code provision is engrafted into Code of Civil Procedure section 

1094.5; an express statement of incorporation would be required 

to accomplish this task. And, the remainder of the cited 

paragraph describes when and how Code of Civil Procedure 

section 1094.5 applies to review of actions by administrative 

agencies generally and focuses on how that section had been 
48

applied to review actions of state agencies prior to enactment of 

the APA. 

There is nothing in the language upon which Barclay relies 

indicating that Government Code section 11410.10 is to be read 

to ignore the clause in it that limits application of the APA as set 

out in that section. For Barclay’s argument to have merit, section 

11410.10 must contain language that the APA applies to actions 

reviewed under Code of Civil Procedure section 1094.5. Yet, 

neither the text of either statute nor the Law Revision 

Commission comment supports Barclay’s argument. Thus, 

Barclay’s contention that the Legislature engrafted the APA into 

section 1094.5—without any statutory statement to that effect—

is mistaken. 

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.37

 

37 We recognize the arguably anomalous circumstance that 

review of final actions by regional water boards for which the 

state water board has denied review is by means of a petition for 

writ of mandate under Code of Civil Procedure section 1094.5,

which more typically is the appropriate means of review of final 

administrative actions following proceedings in which “a hearing 

is required to be given, evidence is required to be taken” (Code 

Civ. Proc., § 1094.5, subd. (a)), notwithstanding that the Water 

Code does not call for such a hearing in connection with issuance 

of cleanup and abatement orders. That anomaly is a result of a 
49

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.”38

 

drafting choice made by the Legislature. (See Schutte, supra, 158 

Cal.App.4th at pp. 1383-1387.) 

There is a potential, albeit limited, incorporation of APA 

provisions that can apply under certain circumstances. Title 23 

of the California Code of Regulations section 648.7 vests in the 

hearing officer “the discretion to determine whether a matter will 

be heard pursuant to the informal hearing procedures set forth in 

[the Bill of Rights].” And, title 23 of the California Code of 

Regulations section 648.5, subdivision (b) incorporates the Bill of 

Rights into procedures to be followed by the Water Board, 

modifying when provisions of the Bill of Rights may apply. 

However, as we have explained in the text, section 648.7 requires 

that a party make a timely objection to use of less formal 

procedures; the failure to do so constitutes a waiver of any right 

to demand that the agency conduct its inquiry in a more formal 

manner.

38 Barclay’s argument based on this prong of Government 

Code section 11410.10 cites federal cases (with a single exception) 

and analyzes the issue using the three-factor federal due process 

test, involving inquiries into (a) the importance of the private 

interest at issue, (b) the risk of erroneous deprivation of that 

interest and the probable value of the additional safeguards 

sought by the private party asserting it, and (c) the governmental 

interest involved. (E.g., Mathews v. Eldridge (1976) 424 U.S. 

319, 335.) Our state constitutional due process analysis utilizes a 

four-factor test, adding the “dignitary interest in providing notice 

and hearing” to the individual. There is also a difference in how 
50

The Water Board and Shell raise a threshold issue, arguing 

Barclay waived its due process claim by “fail[ing] to exhaust 

available administrative remedies” below. Barclay responds to 

these arguments in a footnote in its reply brief, arguing it did 

raise its due process objection before the RCAO was issued, citing 

its December 24, 2014 letter, which included its request for a 

formal hearing before the Water Board at which it would 

“directly address the question whether Barclay is a ‘discharger’ 

under the Water Code,” and in two later letters (those of 

January 6 and 16, 2015), in which it also sought a formal 

hearing. 

There are three difficulties with Barclay’s reply counterarguments. 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 

 

the tests are applied. (Saleeby v. State Bar (1985) 39 Cal.3d 547, 

565.) 

Because Barclay’s argument relies on the three-factor 

federal test, we address its claim in that context. And, as Barclay 

advances no argument that the state due process test would 

produce a different result, we do not address whether the 

outcome might be different if the four-factor state due process 

analysis were used. (See Saleeby v. State Bar, supra, 39 Cal.3d 

at p. 565 & Asimow et al., Cal. Practice Guide: Administrative 

Law, supra, ¶¶ 3.181, 3.544.)
51

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.39 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, 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. (Azusa Land, supra, 52 Cal.App.4th at pp. 1209-1211.) In 

this case, there were extensive opportunities for comment of 

which Barclay took full advantage. 

 

39 The only citations to the record which Barclay provides are 

to the December 24, 2014 letter and two January 2015 letters, 

which as we discuss in the text, above, were untimely assertions 

of its claim based on the regulation cited there. 
52

The holding in the second case, Schutte, supra, 158 

Cal.App.4th 1373, of relevance here, is that a party which 

appealed to the State Water Quality Control Board from an 

adverse determination by a regional water quality control board 

and has been denied review by the state board, need not return to 

the regional water board but must file its petition for writ of 

mandate within the time required by Water Code section 13330, 

subdivision (b). It is in the context of compliance with the filing 

deadline of this statute that the court in Schutte addresses the 

issue of exhaustion. Nothing in Schutte addresses the scope of 

issues that must first be presented to a regional water board to 

meet the “jurisdictional prerequisite” of exhaustion of 

administrative remedies. (See Schutte, at p. 1385, quoting Tahoe 

Vista Concerned Citizens v. County of Placer (2000) 81 

Cal.App.4th 577, 589.)

Even if Barclay had not waived this issue, we would find 

Barclay’s contention lacking in merit for the following reasons.

Barclay bases its due process claim on Mathews, supra, 424 

U.S. 319, 335, Leslie’s Pool Mart, Inc. v. Department of Food & 

Agriculture (1990) 223 Cal.App.3d 1524 (Leslie’s), and Lassiter v. 

Department of Social Services (1981) 452 U.S. 18. 

As the Water Board argues, Mathews calls for a more 

nuanced approach than that which Barclay advocates. Thus, in 

the course of its opinion, the Mathews court points out that what 

is needed to comport with federal due process principles is “some 

form of hearing . . . before an individual is finally deprived of a 

property interest.” (Mathews, supra, 424 U.S. at p. 333.) The 

Mathews court then listed a series of cases in which the 

principles of due process were vindicated, some by an evidentiary 

hearing prior to deprivation of a property interest, and others in 
53

which due process was achieved by a hearing after the action was 

taken, e.g., when the sanction of termination of employment had 

been effected. (Id. at pp. 333-334.) 

“These decisions underscore the truism that ‘ “[d]ue 

process,” unlike some legal rules, is not a technical conception 

with a fixed content unrelated to time, place and circumstances.’ 

Cafeteria Workers v. McElroy, 367 U.S. 886, 895 (1961). ‘[D]ue 

process is flexible and calls for such procedural protections as the 

particular situation demands.’ Morrissey v. Brewer, 408 U.S. 471, 

481 (1972). Accordingly, resolution of the issue whether the 

administrative procedures provided here are constitutionally 

sufficient requires analysis of the governmental and private 

interests that are affected. Arnett v. Kennedy, [416 U.S. 134,] 

167-168 [1974] (Powell, J., concurring in part); Goldberg v. Kelly,

[397 U.S. 254,] 263-266 [1970]; Cafeteria Workers v. McElroy, 

supra, at 895. More precisely, our prior decisions indicate that 

identification of the specific dictates of due process generally 

requires consideration of three distinct factors: First, the private 

interest that will be affected by the official action; second, the 

risk of an erroneous deprivation of such interest through the 

procedures used, and the probable value, if any, of additional or 

substitute procedural safeguards; and finally, the Government’s 

interest, including the function involved and the fiscal and 

administrative burdens that the additional or substitute 

procedural requirement would entail. See, e. g., Goldberg v. 

Kelly, supra, at 263-271.” (Mathews, supra, 424 U.S. at pp. 334-

335.)

In addressing the three factors identified in Mathews, 

Barclay argues with respect to the first, its private interest, that 

it has a profound private interest in having a formal hearing 
54

before it is added as a responsible party to the RCAO because 

that action results in it being jointly and severally liable for 

remediation costs at the Site, which are estimated to be $146 

million. Addressing the second factor, the risk of an erroneous 

deprivation of that private interest, Barclay argues there is a 

“dense and disputed factual record spanning tens of thousands of 

pages, concerning conduct that occurred more than fifty years 

ago.” Third, the government’s interest is minor as there is no 

need for an early resolution of the matter because “Shell is 

already cleaning up the site, and the only question is whether 

Barclay will defray Shell’s costs.” Barclay also points out there is 

no harm in any delay based on “the fact that it took four years for 

Barclay to be added to the Order.” 

We are not persuaded by Barclay’s arguments. As the 

Water Board argues, also relying on Mathews, Barclay’s right to 

due process was met through the several opportunities which the 

Water Board provided to Barclay to address the entire range of 

issues presented in the proceeding before it. This is amply 

demonstrated by Barclay providing thousands of pages 

addressing the issues, including multiple lengthy letters from its 

lawyers explaining Barclay’s views on the issues presented, 

together with several expert witness and lay witness 

declarations, and doing so as part of an iterative process in which 

there were extensive analyses of the issues as they developed 

over the multi-year course of the Water Board’s investigation of 

the Site and the preparation and revision of the RCAO. As the 

Water Board argues, these opportunities allowed Barclay to fully 

express its views as to the impact of its being added as a 

responsible party to the RCAO and to fully address Barclay’s 

“private interest.”
55

With respect to Barclay’s claim that there is a “dense and 

disputed factual record,” the scientific evidence in the record 

conclusively establishes there is an extensive and continuing risk 

of harm—magnified in substantial part by Barclay’s activities at 

the Site—to the people who live at the Site, which was graded by 

Barclay’s designee to create the lots sold by Barclay to the 

public.40 In this case, no additional procedural safeguard is 

required: Barclay was given several extended opportunities to 

address the issues and had the right to obtain this appellate 

review of the Water Board’s determination—a postadministrative 

agency action review which meets the constitutional standard 

articulated in Mathews.

The third Mathews factor, the governmental interest, is 

substantial. Among the functions of the Water Board is the 

protection and improvement of the quality of the “ ‘[w]aters of the 

 

40 Barclay’s argument that there is scientific evidence 

contrary to other such evidence, which the Water Board found to 

be determinative, is not sufficient to overcome the Water Board’s 

findings which were affirmed by the trial court in its order and 

judgment. The question on appeal is “whether the evidence 

reveals substantial support, contradicted or uncontradicted,” in 

favor of the trial court’s determination. (Yakov v. Board of 

Medical Examiners (1968) 68 Cal.2d 67, 72.) The answer to that 

question in this case is that the evidence does establish 

substantial support for the factual determinations below.

Equally established is that, with knowledge of the presence 

of petroleum residue and waste in various forms, Barclay 

removed only a small portion of that material from the Site, 

burying most of it beneath the building pads it graded and 

created utilizing a mixture of petroleum residue and waste from 

the berms and beneath the concrete bottoms of the three 

reservoirs together with soil brought to the Site from elsewhere. 
56

state’ ” consistent with the state goal of providing “a decent home 

and suitable living environment for every Californian.” (Wat. 

Code, §§ 13050, subd. (e), 13142, subd. (c).) It is evident in this 

case that the RCAO was issued to further this objective. 

Barclay’s argument that there is no hurry because the process of 

identifying those responsible has taken four years fails to 

acknowledge that the delay was in significant part the result of 

Barclay’s own multiple requests for extensions of time so that it 

could present its views and materials to support them—at a pace 

Barclay found appropriate. 

We do not agree with Barclay that the circumstance that 

Shell is already cleaning the Site should be a consideration in 

whether Barclay should have obtained a formal hearing prior to 

issuance of the RCAO. In addition to Barclay’s failure to raise 

this as an issue below, we agree with the Water Board that this is 

not an issue that should be addressed as part of analysis of which 

parties may bear responsibility for cleanup and abatement. 

The parties dispute the application of Machado v. State 

Water Resources Control Bd. (2001) 90 Cal.App.4th 720 

(Machado), to the present case. There, the Third District Court 

of Appeal addressed whether the due process rights of the 

appellants in that case (a dairy) were violated by the issuance of

a cleanup and abatement order prior to a hearing. Relying in 

large part on the principles articulated in Mathews, the Machado

court held that due process principles were satisfied when the 

hearing is provided following issuance of a cleanup and 

abatement order. (Machado, supra, 90 Cal.App.4th at pp. 725-

726.) In reaching this conclusion, the Machado court analyzed 

the three Mathews factors and concluded the dairy had been 

afforded due process, reasoning that because the cleanup and 
57

abatement order there did not impose criminal or civil penalties 

there was no substantial deprivation of the private interest of the 

dairy. (Machado, supra, 90 Cal.App.4th at p. 726.) 

With respect to the issue of timing of the availability of a 

fair hearing on the Water Board’s action, the Machado court 

specifically found the dairy’s right to due process was met by its 

right to seek review of the cleanup order before the state board 

and in its right to challenge the regional water board’s order 

through a petition for writ of mandate. (Machado, supra, 90 

Cal.App.4th at p. 726.) In support of this determination, the 

court relied on Mathews: “As the United States Supreme Court 

noted, ‘The Due Process Clause simply does not mandate that all 

governmental decisionmaking comply with standards that assure 

perfect, error-free determinations. [Citation.] . . . [Citation.] 

[W]hen prompt postdeprivation review is available for correction 

of administrative error, we have generally required no more than 

that the predeprivation procedures used be designed to provide a 

reasonably reliable basis for concluding that the facts justifying 

the official action are as a responsible governmental official 

warrants them to be.’ (Mackey v. Montrym (1979) 443 U.S. 1, 13 

(Mackey).) Moreover, in assessing what process is due, a 

reviewing court must give substantial deference to the good faith 

judgment of the agency that its procedures afford fair 

consideration of a party’s claims. (Mohilef v. Janovici (1996) 51 

Cal.App.4th 267, 289; Mathews, supra, 424 U.S. at p. 349.)”

(Machado, supra, 90 Cal.App.4th at p. 726.) 

Addressing the third Mathews factor, the Machado court 

explained the need for issuance of the cleanup order with 

reference to the reasons for a governmental water quality control 

program: “That brings us to the third factor in Mathews, the 
58

governmental interest involved. The statewide program for 

water quality control is designed to ensure the health, safety and 

welfare of all Californians. (§ 13000.) Cleanup and abatement 

orders serve an important function in meeting this goal.” 

(Machado, supra, 90 Cal.App.4th at p. 727, citing Wat. Code, 

§ 13304, subd. (a).) 

We appreciate that there is a difference between the facts 

in Machado and those in the present case; there, the dairy “was 

discharging manure and wastewater into a ditch that flowed into 

a drainage system and then into the Sacramento-San Joaquin 

Delta.” (Machado, supra, 90 Cal.App.4th at p. 723.) That the 

hazardous substances in the present case are buried is not a 

significant enough distinction to overcome the health hazards 

which the facts conclusively establish. Indeed, the PorterCologne Act defines the key term “waters of the state” as “any 

surface water or groundwater . . . . (Wat. Code, § 13050, subd. 

(e), italics added.) Thus, the governmental interest in protecting 

both the persons living at the Site and the aquifers beneath it are 

appropriately given great weight whether the water flows on, or 

under, the surface.41 

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 

 

41 The Porter-Cologne Act definition is identical in relevant 

respects to that in the Dickey Act, which defined the term 

“waters of the state” as “any waters, surface or underground.” 

(Former Wat. Code, § 13005.) We perceive no legal difference 

between the terms “groundwater” and “waters . . . underground” 

as these terms are used in the Porter-Cologne Act and in the 

Dickey Act, respectively.
59

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.)

Barclay’s reliance on Leslie’s, supra, 223 Cal.App.3d 1524, 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.) 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.)

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 on the merits before 

the RCAO was issued—with the additional availability of court 

review of the Water Board’s determination. And, rather than the 

containers on the store shelves in Leslie’s, which literally 
60

contained the potentially hazardous substance, in the present 

case, there is substantial evidence that hazardous substances are 

already in, and continue to leach into, the water supply—with the 

potential to endanger human health. 

V. Relationship between Water Board Executive 

Officer and Chief Deputy Executive Officer and 

combination of functions within the Water Board

Interspersed in Barclay’s opening brief are arguments that 

its due process rights were violated because (a) Executive Officer 

Unger was both the “prosecutor” and supervisor of Chief Deputy 

Executive Officer Smith who supervised the inquiry into issues 

resulting in the issuance of the RCAO and (b) there was an 

improper combination of functions within a single agency.42

The improper delegation prong of this argument is based on 

memoranda which the trial court did not admit into evidence in 

connection with Barclay’s petition43 and thus are not properly 

 

42 Barclay articulates its arguments by assigning the labels 

“adjudicator” and “prosecutor” to Water Board personnel, citing 

Government Code section 11425.30 and a Water Board 

memorandum as sources for these labels. The term “prosecutor”

does appear in the cited Government Code section, but the term 

“adjudicator” does not. Use of these terms does not advance 

Barclay’s underlying claims, which we find to be without merit 

for reasons discussed in the body of our opinion. 

43 In response to a letter we sent the parties, Barclay 

confirmed that the memoranda upon which it relies for this 

argument were not admitted into evidence by the trial court in 

connection with its petition for writ of mandate although they 

had been admitted earlier in connection with the Water Board’s 

demurrer and motion to strike. We do not grant the request that 
61

considered as part of the record before us; we may reject this 

contention for want of a proper record. (Citizens Opposing a 

Dangerous Environment v. County of Kern (2014) 228 

Cal.App.4th 360, 366, fn. 8; Lona v. Citibank, N.A (2011) 202 

Cal.App.4th 89, 102; Princess Cruise Lines, Ltd. v. Superior Court

(2009) 179 Cal.App.4th 36, 45.)

Even were those materials in the record, Barclay’s 

argument ignores that Water Code section 7 expressly authorized 

the delegation of authority to conduct proceedings by the 

executive officer to a deputy executive officer. That section 

provides: “Whenever a power is granted to, or a duty is imposed 

upon, a public officer, the power may be exercised or the duty 

may be performed by a deputy of the officer or by a person 

authorized, pursuant to law, by the officer, unless this code 

expressly provides otherwise.” No relevant provision of the 

Water Code restricts this authority. 

Barclay’s argument that there was an improper 

combination of investigative, prosecutorial and adjudicatory 

functions within the Water Board ignores that combinations of 

such functions are characteristic of administrative agencies. Our 

Supreme Court, and the United States Supreme Court, have each 

repeatedly held that such combinations of functions do not violate 

the due process rights of those under scrutiny by such “unitary 

agencies.” For example, in Morongo Band of Mission Indians v. 

State Water Resources Control Bd. (2009) 45 Cal.4th 731, our 

Supreme Court explained: “By itself, the combination of 

investigative, prosecutorial, and adjudicatory functions within a 

 

we take judicial notice of these memoranda for the first time on 

appeal, as we explained in section III, above.
62

single administrative agency does not create an unacceptable risk 

of bias and thus does not violate the due process rights of 

individuals who are subjected to agency prosecutions. (Withrow 

v. Larkin [1975] 421 U.S. 35, 54; see Adams v. Commission on 

Judicial Performance (1995) 10 Cal.4th 866, 880-884; Kloepfer v. 

Commission on Judicial Performance (1989) 49 Cal.3d 826, 833-

835; Pierce, Administrative Law Treatise (4th ed. 2002) § 9.9, pp. 

688-689.) Thus, ‘[p]rocedural fairness does not mandate the 

dissolution of unitary agencies, but it does require some internal 

separation between advocates and decision makers to preserve 

neutrality.’ ([ABC, supra,] 40 Cal.4th [at p.] 10.)” (Id. at p. 737.) 

Also, Barclay’s claims of an improper combination of functions 

within the Water Board lack factual support in the record. 

VI. The conflict of interest argument based on Shell’s 

payment to the State Water Control Fund

Barclay contends the RCAO must be overturned due to “a 

clear conflict of interest” based on the circumstance that Shell 

paid the State Water Board more than $52,000 “for the 

approximately 430 hours spent by the [Water Board] to 

investigate and name Barclay to the Order.” Barclay further 

argues it “is irrelevant that Shell’s payments went into the State 

Board’s coffers rather than the pockets of individual staff 

members.” Citing People v. Eubanks (2017) 14 Cal.4th 580, 

Barclay argues there is a reasonable possibility that Shell’s 

payments influenced the decision to add Barclay to the RCAO. 

And, while acknowledging the existence of Water Code section 

13304, Barclay asserts there is no justification for the payments. 

We do not agree. 

First, the Water Code authorized the creation of, and 

payments to, the State Water Pollution Cleanup Fund and the 
63

State Water Pollution Cleanup and Abatement Account of that 

fund so that the state will be able to recover its reasonable 

expenses incurred in overseeing investigations into, and cleanup 

and abatement of, unpermitted discharges which adversely affect 

the state’s waters. There are statutory restrictions on charges to 

entities determined to be required to clean up and abate 

contaminated sites and on deposit of amounts assessed into these 

accounts, as well as statutory control on the purposes for which 

funds may be withdrawn from the accounts. (See, e.g., Wat. 

Code, § 13440 [creating the State Water Quality Control Fund 

and the State Water Pollution Cleanup and Abatement Account]; 

Wat. Code, § 13304, subd. (c) [authorizing assessment of the 

reasonable costs incurred by a regional water board in connection 

with cleanup and abatement orders]; Wat. Code, § 13365 

[authorizing, inter alia, the method for establishing rates and 

amounts to be billed to parties subject to water board cleanup 

orders and the mechanism for billing]; & Wat. Code, § 13441 

[establishing parameters for payments to and withdrawals from 

the State Water Quality Control Fund and the State Water 

Pollution Cleanup and Abatement Account].)

The cited statutes, and others, carefully limit both the 

charges allowable and the disposition of amounts collected. The 

statutory plan expressly allows billing dischargers for a regional 

water board’s costs incurred in connection with enforcing its 

orders; the charges are carefully limited by the statutes and there 

is no direct relationship between the amounts charged and 

collected and whether another party should be added as a 

responsible party. At the same time, costs which the regional 

water boards are authorized by statute to recover include those 

incurred in conducting and overseeing investigations, analysis, 
64

planning, implementation, remedial work and supervising 

cleanup and abatement activities. (Wat. Code, §§ 13304, 13365, 

13267.)

Second, the charges upon which Barclay relies for its 

“evidence” of improper payments were incurred in part to 

determine if a second party should be added as a responsible 

party. That purpose is entirely appropriate and statutorily 

sanctioned as it carries out a legitimate state function of 

assigning responsibility for cleanup and abatement to all of the 

parties responsible for the contamination.44 

Third, Barclay’s assertion that, “. . . [Shell] has 

underwritten a years-long effort to pin responsibility for its own 

oil discharges on an unsuspecting residential real estate 

developer by paying for [specified] time [of the Water Board 

staff]” lacks factual support. Our review of the invoices upon 

which Barclay bases this argument do not support it. For 

example, the fact that Water Board staffer Tintut-Williams 

recorded on his time sheet that he attended a meeting at which 

the revised CAO was discussed does not support the assertion in 

Barclay’s opening brief that “Prosecution Team [Barclay’s team] 

members [met] at Shell’s request to be lobbied by Shell to reopen 

the comment period on whether to name Barclay.” Nor does the 

fact that the same Water Board staffer “ ‘Finalized and mailed 

 

44 As noted earlier in this opinion, the Water Board has 

requested that we take judicial notice of three documents which 

confirm the duties the Water Board performed in connection with 

its order for cleanup and abatement at this Site. As there was no 

opposition to this request, we grant it. We would reach the 

conclusion stated in the text were these documents not in the 

record.
65

out the Notice of Opportunity for additional Public Comment Re: 

Revised CAO for Dole’ ” indicate any improper contact by Shell. 

Other time entries during the same month (May 2014) 

include this Water Board staff member’s attendance at Carson 

City Council meetings and participation in an interagency 

conference call concerning the Site. These entries do not support 

Barclay’s claim. 

Barclay’s specific assertion that Shell paid more than 

$52,000 for 430 hours spent by Water Board staff “to investigate 

and name Barclay to the Order” is not supported by the record. 

The source of this amount is a declaration (and exhibit attached 

to it) by Barclay’s counsel in which he has “estimated that Shell 

paid $52,501.33 to reimburse the Board” based on information he 

“extracted” from various reports. There is no explanation of the 

criteria he used to make the table he attaches to his declaration, 

or for the total he hypothecates. The invoices contained at the 

location in the Administrative Record which Barclay’s counsel 

cites indicate that payments were deposited in the State Water 

Resources Control Board SCP Program in Sacramento.45 Nor 

 

45 The authorization for assessing charges to Shell and the 

requirement that those amounts be paid into a specific state fund 

controlled by the State Water Board rather than the regional 

water board, to be disbursed only for specific purposes, is derived 

from Water Code sections 13304, 13365, 13440-13443.

Shell was notified of its obligation to make payments to this 

statewide fund by letter. This fact is established by a letter of 

May 8, 2008, of which we take judicial notice pursuant to the 

unopposed request that we do so, filed by the Water Board on 

September 10, 2018. (The document is exhibit 1 to that request.) 

(Evid. Code, § 452, subd. (c) [official act of state agency]). As 

required by law, the Water Board sent letters in subsequent 
66

does Barclay’s citation to the Water Board staff’s analysis of 

Barclay’s extensive comment letter of January 21, 2014, lead to a 

legitimate inference that Shell had any influence on how the staff 

analyzed issues raised in Barclay’s letter. On its face, the staff 

analysis (which extends for 97 pages) discusses both Barclay’s 

and the Water Board staff’s views on literally hundreds of 

issues—comments that appear on their face to be analytical 

rather than partisan. 

Barclay also does not indicate how money deposited in the 

State Water Pollution Cleanup and Abatement Account of the 

State Water Pollution Cleanup Fund is allocated by the State 

Board among the nine regional boards, nor does Barclay provide 

any evidence of any “quid pro quo” connection to link amounts 

billed to and paid by Shell to this state fund to the Water Board’s 

determination that Barclay also has responsibility for cleaning up 

and abating the pollution at the Site. Use of the monies 

deposited into that fund is restricted under additional provisions 

of sections 13442, 13442.5 and 13443 of the Water Code. Thus, 

there is no evidence to support any direct or indirect link between 

the Los Angeles Regional Water Board’s activities in carrying out 

its responsibilities and Shell’s statutorily mandated payments to 

this fund. 

Barclay’s argument would be flawed legally even if there 

were facts to support it.46 The rule against pecuniary bias 

 

years with estimates of amounts the Water Board expected to bill 

Shell. These documents are exhibits 2 and 3 to the same 

unopposed request. We grant the request for judicial notice of 

these records of this public agency on the same basis.

46 Our review of this issue is based on a different legal 

standard. Instead of balancing the interests of the parties, as we 
67

prohibits a decision maker from having a direct, personal and 

substantial pecuniary interest in making a determination 

adverse to a party. Our Supreme Court considered the issue of 

pecuniary bias on the part of an “adjudicator” in Fresh Start, 

supra, 57 Cal.4th 197. There, the claim was that the defendant 

agency had a financial incentive to favor schools under its control 

over those operated by the plaintiff, the operator of charter 

schools, and that this financial interest led the defendant to 

revoke the charter of the plaintiff to operate those charter 

schools.

Observing there were precedents which recognized that due 

process might be violated under circumstances in which 

individual members of an administrative board could benefit 

from the board’s rulings, our Supreme Court noted that the party 

challenging an action by an administrative board must identify 

the personal interest of the agency member that might impair the 

ability of the individual member(s) of that board to act. In 

absence of identification of such a personal interest, the claim of 

bias based on pecuniary interest would fail. (Fresh Start, supra, 

57 Cal.4th at pp. 216-217; accord, Burrell v. City of Los Angeles

(1989) 209 Cal.App.3d 568, 582 [“[A] party seeking to show bias 

or prejudice on the part of an administrative decisionmaker 

 

do when we review claims raising issues of due process (e.g., 

under Matthews, supra, 424 U.S. 319), “[t]he rule against 

financial interests stops short of zero tolerance; the United States 

Supreme Court has recognized that slight pecuniary interests are 

not constitutionally cognizable. (Aetna Life Insurance Co. v. 

Lavoie [1986] 475 U.S. [813,] 825-826, fn. 3.)” (Today’s Fresh 

Start, Inc. v. Los Angeles County Office of Education (2013) 57 

Cal.4th 197, 216, fn. 8 (Fresh Start).) 
68

[must] prove the same with concrete facts: ‘ “Bias and prejudice 

are never implied and must be established by clear 

averments.” ’ ”].)

As our Supreme Court held in Fresh Start, to prevail on its 

due process claim predicated on alleged bias, Barclay must 

establish an “ ‘exceptional case presenting extreme facts.’ ” 

(Fresh Start, supra, 57 Cal.4th at p. 219.) 

The Water Board points out that there is no evidence that 

Chief Deputy Executive Officer Smith, the Water Board official 

who made the final determination to add Barclay as a discharger 

and responsible party to the RCAO, stood to receive any personal 

financial benefit from that decision. Nor is there any evidence 

Shell was charged for the time Smith took to decide to issue the 

RCAO or even that the Water Board had any control over funds 

which Shell paid to the State Board. Nor is there any evidence 

the Water Board’s budget depended in any way on payments 

Shell made to the State Board.

Barclay’s reliance on People v Eubanks (1996) 14 Cal.4th 

580, a case addressing whether a conflict of interest requiring 

disqualification under Penal Code section 142447 was created by 

a contribution to a district attorney’s office from a crime victim to 

help cover investigative costs in the matter which the district 

attorney was investigating, is simply inapposite. For example, 

 

47 Penal Code section 1424 establishes a procedure for making 

and determining motions to disqualify a district attorney from 

“performing an authorized duty.” Granting a motion to disqualify 

under this statute requires the trial court to make a finding that 

“the evidence shows that a conflict of interest exists that would 

render it unlikely that the defendant would receive a fair trial.” 

(Id., subd. (a)(1).)
69

Shell is not a crime victim and the amounts it paid are not 

contributions to the Water Board, but statutorily mandated 

payments to a fund administered by a different (albeit related) 

agency.

“Bias and prejudice are not implied and must be clearly 

established. A party's unilateral perception of bias cannot alone 

serve as a basis for disqualification. Prejudice must be shown 

against a particular party and it must be significant enough to 

impair the adjudicator’s impartiality. The challenge to the 

fairness of the adjudicator must set forth concrete facts 

demonstrating bias or prejudice.” (Gray v. City of Gustine (1990) 

224 Cal.App.3d 621, 632.)

“ ‘[A]dvance knowledge of adjudicative facts that are in 

dispute . . . does not disqualify the members of an adjudicatory 

body from adjudicating a dispute . . . . [T]here must be . . . a 

commitment to a result (albeit, perhaps, even a tentative 

commitment), before the process will be found violative of due 

process.’ (BreakZone Billiards v. City of Torrance [(2000)] 81 

Cal.App.4th [1205,] 1236.)” (State Water Resources Control Bd. 

Cases (2006) 136 Cal.App.4th 674, 841.) 

There is no such evidence in the present case.

VII. Barclay’s safe harbor and substantive claims

Barclay makes two closely related claims concerning the 

substance of the Water Board’s findings and order and the trial 

court’s affirmance of the Water Board’s actions: its actions at the 

Site are protected by the safe harbor of Water Code section 

13304, subdivision (j) (subdivision (j); and it did not engage in 

affirmative acts with knowledge of the hazards involved. 

With respect to the latter, Barclay argues there is 

“undisputed evidence that no one in the environmental, public 
70

health, or legal community considered oil to be a hazardous or 

toxic substance in the 1960s,” citing the declaration of its expert 

witness, Marcia Williams (Williams); Barclay also argues it “took 

no affirmative steps directed toward the discharge,” and asserts 

there was “no evidence that Barclay knowingly moved or 

impacted any waste.”

These claims present both factual and legal issues for 

analysis; issues we review applying the standards of review 

discussed above.

A. The factual claims

We are confronted at the outset of our consideration of 

Barclay’s factual claims with the absence from Barclay’s opening 

brief of a fair statement of the facts in the record. Among the 

omissions are the following: Barclay does not include in its 

opening brief facts, documented in correspondence between it and 

Shell, that Barclay visited the Site on October 21, 1965, at which 

time it necessarily observed what could be seen at the Site. 

During that visit it asked for specific information regarding the 

reservoirs, the approximate contents of each and other details 

about the Site; Shell provided this information to Barclay four 

days later.

These facts establish that Barclay was aware in the fall of 

1965 of the presence of “liquid waste and petroleum residues” at 

the Site, based on its own inspection of the Site and the details 

contained in Shell’s October 25, 1965 letter to it. Barclay 

confirmed its knowledge of the presence of petroleum waste at 

the Site in its December 1, 1965 letter to Shell seeking 

permission to begin work on the Site.

Barclay also does not acknowledge facts in the record that 

are contrary to its presentation in the factual section of its 
71

opening brief of the extent to which the petroleum residue and 

other waste were removed from—and remained and were buried 

at—the Site. And it has omitted from its appellant’s statement of 

facts in its opening brief a fair summary of the communications 

to it from PSE, the engineering firm which Barclay had hired to 

advise it concerning development of the Site, including writings 

informing Barclay of the methods that would be used to both 

remove and bury concrete structures and soil containing 

petroleum residue and waste.48

As an appellant challenging the sufficiency of the evidence 

to support the judgment, it was Barclay’s obligation to cite the 

evidence in the record supporting the judgment and, after doing 

so, explain why in the appellant’s view such evidence is 

insufficient as a matter of law to support the findings made. 

Unless it does so, such a contention is deemed to have been 

waived. (State Water Resources Control Bd. Cases, supra, 136 

Cal.App.4th at p. 749; In re Marriage of Fink (1979) 25 Cal.3d 

877, 887; Bell v. H.F. Cox, Inc. (2012) 209 Cal.App.4th 62, 80.) 

This rule rests on the premise that if an appellant fails to present 

the appellate court with all the relevant evidence, the appellant 

cannot carry its burden of demonstrating the evidence was 

insufficient to support the agency’s decision because support for 

that decision may be present in the evidence which appellant 

omits. (State Water Resources Control Bd. Cases, at p. 750.) 

 

48 Barclay includes in the “Factual Background” section of its 

opening brief the statement: “It is undisputed that Shell did not 

disclose to Barclay, and Barclay did not know, that Shell’s 

reservoirs had leaked.” The statement suggests a lack of 

knowledge by Barclay of the actual conditions at the Site, which 

is not consistent with the documentary record. 
72

The examples mentioned above illustrate Barclay’s failure 

to meet this appellant’s obligation. 

Setting aside this fundamental defect (which is sufficient to 

deny Barclay’s factual contentions), we address Barclay’s 

contention that the trial court erred in rejecting Barclay’s claims 

that it “had no knowledge of any hazards” that might result from 

burying the concrete structures; that it “took no active, 

affirmative steps directed toward the discharge,” and that there 

was “no evidence that Barclay knowingly moved or impacted [sic] 

any waste.”

Barclay relies for support for its factual claims on 

testimony of four “surviving eyewitnesses,” among others.49

 

49 Barclay also relies on testimony of three expert witnesses 

retained by it, Jeffrey Dagdigian, Williams and Donald 

Shepardson. Dagdigian, a nonpercipient expert witness, provided 

a report (over 180 pages in length) in which he opined as to 

Barclay’s “explicit knowledge” and as to what petroleum residue 

was removed from the Site and what remained. Among his 

findings were the following: “Barclay did not observe, grade or 

spread contaminated soil”; there was “no evidence that berm soils 

were impacted with petroleum hydrocarbons when Barclay used 

berm soil to fill the reservoirs”; and the hydrocarbon pollution on 

Site was the result of “upward migration” rather than due to any 

activities of Barclay.

The Water Board considered and rightly rejected these 

opinions and conclusions as there is substantial evidence, as 

indicated in the text earlier in this opinion, that supports both 

the Water Board’s discounting of these opinions and its contrary 

factual findings, as well as the trial court’s determination to rely 

instead, inter alia, on the firsthand account of Bach, who was on 

the Site during grading and Site preparation, instead of a person 

who was not a percipient witness and who failed to acknowledge 

the substantial contrary evidence in the record.
73

However, there is contrary evidence, which is substantial. This 

evidence, presented in greater detail earlier in this opinion, 

includes that the soil in several areas of the Site was oily, that in 

some locations one could smell the petroleum residue, as well as 

testimony from Bach, an engineer Barclay had retained and who 

was closely involved with work at the Site, regarding breaking up 

and burying the concrete floors of the reservoirs (that had 

literally contained petroleum and its residue for more than 40 

years), as well as evidence that only some of the material 

containing petroleum residue and waste had been removed from 

the Site, and that much of the soil at the Site which did contain 

petroleum residue and waste was mixed with soil from outside 

the Site and then graded to make the housing pads in the new 

 

Williams indicates in her declaration that she first worked 

for the United States Environmental Protection Agency in 1970 

as one of its “charter employees.” There is nothing in her 

declaration to indicate she had any firsthand knowledge of 

environmental issues prior to that year; nevertheless, she opines 

on the state of the law in California and on attitudes toward 

petroleum discharges in the 1960s. Many of her opinions are 

legal in nature; such opinions are the province of the trial court, 

which in this case clearly disagreed with the legal opinions which 

Williams offered, as evidenced by the absence of any reference to 

Williams’s opinions in the trial court’s order. 

Shepardson provided his opinion on whether PSE’s grading 

of the Site was “compliant with the Standard of Practice and 

Standard of Care” at the time. While Shepardson may be 

qualified to render such an opinion, his opinion is not relevant to 

the issues presented in this case; no one appears to dispute that 

the civil engineering aspects of developing the Site—e.g., grading 

and soil compaction—were properly done. 
74

Carousel housing development.50 Further, test borings were 

made confirming that petroleum waste was buried at various 

depths at multiple locations on the Site. The Water Board also 

considered, and rejected, the opinion of Barclay’s expert who had 

opined that the petroleum residue and waste were the result of 

upward migration.

The RCAO discusses the factual bases for the Water 

Board’s determination that Barclay discharged waste as defined 

in Water Code section 13050, subdivision (d) and that it is a 

responsible party. The Water Board’s findings in the RCAO 

include that Barclay “purchased the Site with explicit knowledge 

of the presence of 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,” and that these 

 

50 Barclay’s claim that all of the petroleum residue had been 

cleaned from the concrete before it was broken up is contrary to 

other evidence, which the Water Board found to be accurate (and 

the trial court affirmed) that at least with respect to the floor of 

one of the reservoirs, there was petroleum residue remaining 

which was mixed with soil and buried—after thousands of gallons 

of water were used to wash it, with the water percolating into the 

ground beneath. 

Barclay’s objection to the trial court’s reliance on Bach’s 

unsworn statement ignores that the rules of evidence are relaxed 

in administrative proceedings and that the Water Board applies 

California Code of Regulations, title 23, section 648.5.1, which 

expressly makes hearsay evidence admissible in accordance with 

Government Code section 11513. The trial court made an 

express determination of the reliability of the contents of the 

unsworn statement that Bach had given, which we find to be 

persuasive. 
75

activities “spread the waste at the Site, and contributed to the 

migration of the waste through the soil and groundwater.”

In considering Barclay’s challenges to the decision below, 

we have independently reviewed the record and determine that 

Barclay’s factual contentions are without merit as there is 

substantial evidence to support the findings of its affirmative acts 

in spreading and burying the petroleum residue and waste, and 

thus to support the judgment below. (See Yakov, supra, 3 Cal.3d 

at p. 429 [the question on appeal is whether there is substantial 

evidence—contradicted or not—to support the judgment].) 

B. The requirement of knowledge and Barclay’s 

status as a discharger

Barclay claims it had “no connection to the discharge” of 

waste, that its conduct at the Site was only “remote and passive” 

and that it had no knowledge of any hazards involved in its 

activities at the Site. We have established above that it was fully 

aware of the presence of petroleum residue and waste at the Site 

and that it was actively engaged through its agents in breaking 

up and burying the concrete and soil that contained the 

petroleum residue and waste.

We now address its claim that it did not know at the time 

that burying waste could have adverse environmental effects or 

adverse legal consequences. (We further address this issue in our 

discussion below of subdivision (j).)

As authority for its claim, Barclay relies on City of Modesto 

Redevelopment Agency v. Superior Court (2004) 119 Cal.App.4th 

28 (Modesto).

51 The holding of Modesto relevant to the present 

 

51 Barclay also relies on a federal case, Redevelopment Agency 

v. BNSF Ry. (9th Cir. 2011) 643 F.3d 668. There, the court 

determined that the actions of BNSF were passive rather than 
76

case was carefully explained in TWC Storage, LLC v. State Water 

Resources Control Bd. (2010) 185 Cal.App.4th 291 (TWC):

“The issue in Modesto was whether the defendants, none of 

whom were landowners, were ‘responsible parties’ under Water 

Code section 13304, subdivision (a). (Modesto, supra, 119

Cal.App.4th at p. 35.) Water Code section 13304, subdivision (a) 

provides that a person is responsible for cleanup and abatement 

if the person ‘causes or permits’ a discharge that ‘creates, or 

threatens to create, a condition of pollution or nuisance.’ (Wat. 

Code, § 13304, subd. (a); see Modesto, at p. 35.) In Modesto, the 

First District Court of Appeal’s interpretation of this statutory 

language was guided by its prior decision in Leslie Salt Co. v. San 

Francisco Bay Conservation etc. Com. (1984) 153 Cal.App.3d 605 

(Leslie Salt).

“In Leslie Salt, the court construed a statute which allowed 

a cease and desist order to be issued to any person who had 

‘“undertaken” ’ to ‘ “place[] fill” ’ without the requisite permit. 

(Leslie Salt, supra, 153 Cal.App.3d at p. 612.) In Leslie Salt, the 

plaintiff, who was the landowner, focused on the word 

‘ “undertaken” ’ and contended that the statute did not apply to 

anyone ‘other than the one who actually placed the fill.’ (Leslie 

Salt, at p. 612.) The First District held in Leslie Salt that the 

statute applied to ‘landowners regardless whether they actually 

placed the fill or know its origin.’ (Leslie Salt, at p. 617.) 

‘[L]iability and the duty to take affirmative action flow not from 

the landowner’s active responsibility for a condition of his land 

that causes widespread harm to others or his knowledge of or 

 

active, distinguishing that case from the present one. Nor are we 

bound by decisions of federal courts other than those of the 

United States Supreme Court.
77

intent to cause such harm but rather, [but] quite simply, from his 

very possession and control of the land in question.’ (Leslie Salt,

at p. 622.)

“In Modesto, the First District’s analysis focused on 

whether the defendants could be held liable for creation of a 

‘nuisance’ within the meaning of the statutory language. 

(Modesto, supra, 119 Cal.App.4th at p. 37.) The First District 

rejected the defendants’ contention that ‘only those who are 

physically engaged in a discharge or have the ability to control 

waste disposal activities’ can be held liable for the nuisance that 

discharge creates. (Modesto, at p. 41.) The First District held 

that those of the nonlandowner defendants ‘who took affirmative 

steps directed toward the improper discharge . . . may be liable 

under that statute, but those who merely placed solvents in the 

stream of commerce without warning adequately of the dangers 

of improper disposal’ could not be held liable under the statute. 

(Modesto, at p. 43.)

“We can find nothing in Modesto that supports TWC’s claim 

that a landowner cannot be held liable for a discharge unless it 

took an ‘active role’ in the creation of the discharge. Modesto

itself did not involve the issue of a landowner's liability, and 

Leslie Salt, upon which Modesto was based, explicitly held that a 

landowner could be held liable based solely on the landowner’s 

possession and control of the land.

“Here, there was substantial evidence that TWC ‘cause[d] 

or permit[ted]’ the discharge to occur by engaging contractors to 

perform the demolition activity that resulted in the discharge. 

Although TWC contends that it could not be liable because it did 

not ‘actively participate in the demolition activities’ or ‘fail[] to 

take reasonable care,’ Water Code section 13350, subdivision (b) 
78

plainly provides that any person who ‘causes or permits’ a 

discharge is ‘strictly liable’ ‘without regard to intent or 

negligence.’ ” (TWC, supra, 185 Cal.App.4th 29 at pp. 297-298.)52

The facts in the present case are even more compelling 

than those in Modesto and TWC: Here, there is substantial 

evidence that Barclay, through its agents, was aware of the 

presence on the Site of petroleum residue and its odors, and 

waste, and that Barclay took multiple affirmative steps over 

more than eight months to break up and bury the cement floors 

of the three reservoirs located on the Site, followed by grading the 

Site utilizing soil from the several berms surrounding the 

reservoirs as well as the perimeter berms on the property, 

together with soil brought to the Site from elsewhere. Barclay 

did this with knowledge of the more than 40-year history of the 

use of the Site as a petroleum tank farm as well as with data 

Shell had supplied to it and from its own inspection of the Site. 

That Barclay’s conduct constituted “active involvement “in this 

work is conclusively established by the evidence.53 Thus, it was 

 

52 The Water Board also found that Barclay did not qualify for 

the safe harbor of subdivision (j). 

53 In the RCAO the Water Board found that: “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 actives spread the waste at the Site, 

and contributed to the migration of the waste through the soil 

and groundwater. The residual hydrocarbons are still present at 

the Site and continue to cause pollution and nuisance.”

It also found that “The concentration of waste constituents 

in soil and groundwater exceed water quality objectives contained 
79

actively engaged with knowledge of the condition of the property

in the “discharges” of petroleum residue and waste into the soil 

on the Site, resulting in pollution and creation of a nuisance.

Barclay argues, however, that it could not have known at 

the time it buried the soil and concrete containing the petroleum 

residue and waste that its conduct was in violation of any laws 

then in effect. There are two aspects to this claim: (1) that it 

must have known at the time of the environmental consequences 

of its actions and (2) that it must have known then that its 

conduct was unlawful under laws then in force.

Neither is correct. Barclay’s argument assumes it must 

have had a specific intent to cause pollution or nuisance, yet it 

cites no authority to support any such requirement. Since at 

least our Supreme Court’s holding in In re Marley (1946) 29 

Cal.2d 525, “ ‘guilty knowledge and intent’ ” have not been 

elements of proof required to establish liability for violation of 

regulatory offenses. (Id. at p. 529; see People v. Chevron 

Chemical Co. (1983) 143 Cal. App.3d 50, 53.)

Moreover, Barclay’s argument that its conduct was not 

considered at the time to be unlawful fails to take into account 

 

in the Water Quality Control Plan for the Los Angeles Region 

(Basin Plan) including state-promulgated maximum contaminant 

levels.”

The RCAO contains an extensive description of the waste 

uncovered at the Site beginning in 2007, including findings of 

petroleum hydrocarbons, benzene, ethyl benzene, methane, 

toluene, arsenic, lead, and chlorinated solvents in soil and soil 

vapor and in groundwater. The methane was identified in 

concentrations posing a potential safety hazard; other chemicals 

were determined to significantly exceed the lower level explosive 

limit, also posing a potential safety hazard. 
80

that it is Barclay’s burden to establish that its activities at the 

Site in the 1960s meet the requirements for the safe harbor 

exception of subdivision (j). The cases we discuss in the next 

section establish that Barclay’s interrelated claims that it could 

not have known in the 1960s that its actions were likely to result 

in pollution of the groundwater at the Site and were contrary to 

law are not well-founded.

C. The subdivision (j) safe harbor 

1. Introduction. 

Barclay’s legal contention—that its actions in grading and 

developing the Site did not violate laws in existence at the time, 

and thus its conduct is protected by the “safe harbor” of 

subdivision (j)—lacks merit.

The safe harbor set out in subdivision (j) provides: “This 

section does not impose any new liability for acts occurring before 

January 1, 1981, if the acts were not in violation of existing laws 

or regulations at the time they occurred.”

At the same time subdivision (j) was added to Water Code 

section 13304,54 the Legislature amended subdivision (a) of that 

section to hold past producers, transporters, or disposers of 

hazardous waste liable for corrective action under the Water 

Code. (Enrolled Bill Rep. on Assem. Bill No. 2700 (1979-1980 

Reg. Sess.) July 17, 1980.)55 The Enrolled Bill Report for 

 

54 The provision that is now subdivision (j) of section 13304 

was added to section 13304 in 1980 as subdivision (f) of the same 

section. (Stats. 1980, ch. 808, § 3, pp. 2538-2540.) 

55 Enrolled bill reports may properly be considered as 

evidence of legislative intent. (Conservatorship of Whitley v. 

Maldonado (2010) 50 Cal.4th 1206, 1218, fn. 3; Elsner v. Uveges, 

supra, 34 Cal.4th at p. 934, fn. 19.) 
81

Assembly Bill No. 2700 explains that one of the specific purposes 

of this legislation was to “permit the [water boards] to take action 

against persons whose past actions . . . would pollute the state’s 

waters or create a nuisance.” The bill also “clarifies the authority 

of the Board to act when discharges have ceased by the time of 

discovery.” Subdivision (j) was added so that the revised 

subdivision (a) “would not . . . impose a sanction on persons 

whose activities were legal at the time they occurred.” (Assembly 

Ways & Means Com. analysis of Assem. Bill No. 2700 (1979-1980 

Reg. Sess.) as amended Apr. 15, 1980, com. 2.) The addition of 

subdivision (j) clarified that the expansion of the authority of the 

regional and state water boards in other provisions of the 1981 

legislation did not bar a discharger from liability under other 

laws—even if the damage from the discharge occurred years after 

the discharge—so long as the conduct resulting in the pollution or 

nuisance was not legal when it occurred prior to 1981. 

To qualify for the safe harbor of subdivision (j), the burden 

was and is on Barclay to establish that its conduct was legal at 

the time it conducted its activities at the Site; that those 

activities did not violate any law or regulation in force at that 

time.56 

There are two reasons Barclay bears this burden. First, 

the reasoning of the court of appeal in Orange County Water Dist. 

v. Sabic Innovative Plastics US, LLC (2017) 14 Cal.App.5th 343, 

which so held with respect to the virtually identical provision of 

Health and Safety Code section 25366, subdivision (a), compels a 

similar result in this case. (Sabic, at p. 389.) Second, it is a 

“ ‘longstanding’ legal principle” that when a statute carves out an 

 

56 The requirement of subdivision (j) that the conduct occur 

prior to January 1, 1981, is clearly met in this case.
82

exception to its application, the burden of proving application of 

the exception is on the party seeking its protection in the 

particular case. (Simpson Strong-Tie Co., Inc. v. Gore (2010) 49 

Cal.4th 12, 23.) 

The parties all interpret the phrase “existing laws or 

regulations” in subdivision (j) to include laws and regulations 

without limitation to those enacted as part of, or based on 

authority granted by, the Water Code. We agree with this 

reading of subdivision (j); this is its plain meaning, a conclusion 

we confirmed by our review of the legislative history of enactment 

of this statue in which we found no suggestion that subdivision (j) 

was to be narrowly focused, e.g., solely on provisions of the Water 

Code. Additionally, the more narrow construction would render 

the safe harbor virtually without purpose. (See Newhall Land & 

Farming Co. v. Superior Court (1993) 19 Cal.App.4th 334, 351 

[statutes applicable to the allegations of discharge of hazardous 

substances and pollution (there, Health & Saf. Code, § 25363) are 

not the exclusive remedy and do not preclude claims the same 

conduct violated other laws (there, the common law)].) 

We turn to consider Barclay’s arguments that the trial 

court erred in its determinations that its actions were in violation 

of other laws, i.e., of provisions of the Health and Safety Code, a 

Los Angeles County Ordinance, the Civil Code, and the Fish and 

Game Code, each of which was in force at the time of Barclay’s 

activities at the Site.57

 

57 Barclay errs in arguing the subdivision (j) safe harbor

applies to sanitize its conduct because “ ‘[n]uisance’ is already an 

element of discharger liability under section 13304 [subdivision

(a)].” This argument is inconsistent with Barclay’s argument 

that what is relevant is the law in effect at the time it developed 
83

2. Health and Safety Code section 5411. 

In 1949, the Legislature enacted Health and Safety Code 

statutes granting authority to the State Department of Health 

(Health Department) to act when it determined there was or may 

be contamination as that term was defined in that new statutory 

plan. (Stats. 1949, ch. 1550.) This legislation also required the 

Health Department to refer for action to the regional water 

pollution boards (created in the same year by the Dickey Act) 

evidence of actual or potential pollution and evidence of 

nuisance.58 (Stats. 1949, ch. 1549, § 2, p. 2790 [former § 5413].)

As enacted in 1949, Health and Safety Code section 5411 

provided: “No person shall discharge sewage or industrial waste, 

 

the Site: Section 13304, subdivision (a) did not exist at the time 

Barclay engaged in the conduct at issue; the statute was not 

enacted until 1969 as part of the Porter-Cologne Act, and was not 

in effect until January 1, 1970, after Barclay’s activities at the 

Site had concluded. (Stats. 1969, ch. 482, § 18, p. 1066.) Thus, 

subdivision (a) does not meet the subdivision (j) requirement that 

it be in force at the time of Barclay’s conduct.

Even if Water Code section 13304 applied, its subdivision 

(a) proscribes both pollution and nuisance; Barclay’s activities 

constituted both. 

58 That the two statutory plans were closely coordinated is 

confirmed by their overlapping definitions and interrelated 

provisions, as well as by the circumstance that they were enacted 

as chapters 1549 (Dickey Act) and 1550 (Health & Safety Code 

sections) of Statutes 1949. Also, section 2 of Statutes 1949, 

chapter 1550 provided, “This act becomes operative only if 

Assembly Bill No. 2156 introduced in the 1949 Regular Session is 

enacted by the Legislature at its 1949 Regular Session.” The 

referenced bill was what became the Dickey Act. 
84

or the effluent of treated sewage or industrial waste, in any 

manner which will result in contamination, pollution or a 

nuisance.” (Stats. 1949, ch. 1550, § 2, p. 2790.)59

Former Health and Safety Code section 5410, enacted at 

the same time, defined the terms “sewage,” “industrial waste,” 

“waters of the state,” “pollution,” and “nuisance” in language 

identical to that enacted that year in the Dickey Act.60 (Compare 

 

59 The only change made in this statute between its 

enactment in 1949 and the present was to substitute the term 

“other waste” for the term “industrial waste” in 1967. (Stats. 

1967, ch. 1447, § 2, p. 3373.)

60 “Pollution” was defined as: “an impairment of the quality 

of the waters of the State by sewage or industrial waste to a 

degree which does not create an actual hazard to the public 

health but which does adversely and unreasonably affect such 

waters for domestic . . . or other beneficial use.” (Stats. 1949, ch. 

1550, § 2, p. 2790 [former § 5410, subd. (f)].)

“Nuisance” was defined as “damage to any community by 

odors or unsightliness resulting from unreasonable practices in 

the disposal of sewage or industrial wastes.” (Stats. 1949, ch. 

1550, § 2, p. 2790 [former § 5410, subd. (g)].) 

“Industrial waste” was defined as “any and all liquid or 

solid waste substance, not sewage, from any producing, 

manufacturing or processing operation of whatever nature.” 

(Stats. 1949, ch. 1550, § 2, p. 2790 [former § 5410, subd. (b)].)

“Waters of the State” was defined as “any waters, surface 

or underground . . . within the boundaries of the State.” (Stats. 

1949, ch. 1550, § 2, p. 2790 [former § 5410, subd. (d)].) 

“Contamination” was defined as “an impairment of the 

quality of the waters of the State by sewage or industrial waste to 

a degree which creates an actual hazard to the public health 

through poisoning or through the spread of disease. 

‘Contamination’ shall include any equivalent effect resulting from 
85

Stats. 1949, ch. 1549, § 1, pp. 2782-2783 [former Wat. Code, 

§ 13005] with Stats. 1949, ch. 1550, § 2, p. 2790 [former Health & 

Saf. Code, § 5410].)

As noted above, actions to abate contamination were the 

responsibility of the Health Department, while actions to address 

pollution and nuisance were the responsibility of the regional and 

state water boards. Thus, the Health and Safety Code legislation 

required that, “[w]henever the [Health Department] finds that a 

pollution or nuisances does, in fact, exist, such condition shall be 

immediately referred by the department to the proper regional 

board for action . . . .” (Former Health & Saf. Code, § 5413; Stats. 

1949, ch. 1550, § 2, p. 2790 [former §§ 5412, 5413].)

Barclay’s argument that it did not violate Health and 

Safety Code section 5411 as it existed at the time of its activities 

on the Site depends on the answer to one of the following 

questions: (1) Did Barclay create or assist in the pollution of the 

 

the disposal of sewage or industrial waste, whether or not waters 

of the State are affected.” (Stats 1949, ch. 1550, § 2, p. 2790 

[former § 5410, subd. (e)].) 

The Dickey Act contained identical definitions of these 

terms. (Stats. 1949, ch. 1549, § 1, pp. 2782-2783 [former 

§ 13005].)

In 1967, the term “industrial waste” was replaced by the 

term “other waste” each place it appeared in the Health and 

Safety Code statutes, broadening the meaning of those terms. 

(Stats. 1967, ch. 1447, §§ 2 & 3, pp. 3373-3374.)

The similar terms in the Dickey Act were also amended in 

1967 to effect the same changes. (Stats. 1967, ch. 1447, § 6, 

pp. 3375-3376 [former § 13005].) Two years later, the Dickey Act 

was replaced by the Porter-Cologne Act; however, as the new law 

did not become effective until January 1, 1970, we do not address 

its terms in any detail. (See Stats. 1969, ch. 482, § 34, p. 1088.) 
86

Site by “impairment of the quality of the waters of the state by 

. . . other waste to a degree which . . . does adversely and 

unreasonably affect [waters of the state] for domestic . . . or other 

beneficial use”; or (2) Did Barclay create or assist in the creation 

of a nuisance, that is, were the practices Barclay employed in 

burying the petroleum residue and waste on the Site 

“unreasonable . . . in the disposal of . . . other wastes.” (See 

former Health & Saf. Code, § 5410, subds. (f), (g).)

In support of its argument that its actions did not adversely 

and unreasonably affect waters of the state, Barclay relies on two 

cases, Thompson v. Kraft Cheese Co. (1930) 210 Cal. 171 (Kraft 

Cheese) and People v. City of Los Angles (1948) 83 Cal.App.2d 627 

(City of L.A.). Neither case supports Barclay’s claims; instead,

they indicate that Barclay did act unreasonably in burying the 

petroleum residue and in doing so violated Health and Safety 

Code section 5411.

In Kraft Cheese, our Supreme Court upheld a modified 

injunction against the discharge of byproducts of cheese 

manufacturing which Kraft was allowing to seep into the ground 

and into a creek adjacent to its plant. Barclay describes the 

offense supporting issuance of the injunction in Kraft Cheese as 

“enforcing section 5411 against cheese factory for discharge of 

dirty water that came from floor cleaning.”61

 

61 The statute applied in Kraft Cheese, a predecessor of 

Health and Safety Code section 5411, forbad the discharge of 

“any . . . substance, offensive, injurious or dangerous to health, 

into any . . . waters used or intended to be used for human or 

animal consumption or for domestic purposes . . . without a 

permit . . . .” (Stats. 1907, ch. 492, § 2, p. 894; Deering’s General 
87

More was involved than just “dirty water”: The effluent 

from the manufacturing process of cheese itself was held to be a 

discharge sufficient to sustain the injunction in that case. (Kraft 

Cheese, supra, 210 Cal. at pp. 176-177.) 

Barclay’s actions in the present case are of no lesser 

consequence and impact: The discharge in the present case was 

clearly waste within the terms of Health and Safety Code 

sections 5410 and 5411,62 and Barclay’s conduct did clearly 

constitute the “discharge of sewage or other waste, or the effluent 

of treated sewage or other waste, in a[] manner which [resulted] 

in contamination, pollution or nuisance.” Thus, the holding in 

Kraft Cheese actually supports the conclusion that Barclay’s 

actions in the 1960s were contrary to Health and Safety Code 

section 5411, and, thus, not within the subdivision (j) safe harbor. 

To accept Barclay’s argument would require that we determine 

that petroleum residue and waste are less deleterious than the 

leftovers from the manufacture of an edible foodstuff.

City of L.A., supra, 83 Cal.App.2d 627, also does not 

support Barclay’s claim that the discharge of petroleum waste 

was not a potential subject of concern or subject to enforcement 

action in the late 1960s.63 In City of L.A., the Attorney General 

 

Laws (1923 ed.) Act 6238, § 2, quoted in Kraft Cheese, supra, 210 

Cal. at p. 177.)

62 As we have explained in the text above, the legislative 

changes to these statutes in 1967 do not affect our conclusions. 

63 City of L.A. was decided prior to enactment of the Dickey 

Act. Even at the time of its decision—as was the case after the 

effective date of the Dickey Act—conduct such as that at issue in 
88

sued several cities on behalf of the state to restrain those cities 

from, among other things, violating State Board of Health rules 

against creating a public nuisance based on their failure to 

comply with permit requirements for operation of a sewage 

treatment works. Among the court’s holdings was that, even 

though certain of the municipality defendants did not themselves 

maintain the sewage treatment plant, they could be held legally 

responsible for maintaining a public nuisance to the extent they 

contributed to it by allowing their sewage to be discharged into 

the ocean through the plant owned and operated by the City of 

Los Angeles. (Id. at p. 643.) 

That case did not directly consider whether the discharge of 

petroleum residue was a violation of Health and Safety Code 

section 5411. Thus, as the Water Board points out, the case is 

 

the present case was considered actionable as a public nuisance 

which could be abated. 

The City of L.A. court makes the additional point that 

negligence is not an element of an action to abate a public 

nuisance, holding that the conduct at issue in that case 

constituted a per se “violation of the rights of the people of the 

State of California, which amounts in law to a nuisance, 

regardless of whether or not it is due to any negligent act or 

omission.” (City of L.A., supra, 83 Cal.App.2d at p. 643; cf. In re 

Marley, supra, 29 Cal.2d at p. 529.) 

Thus, based on the holding in City of L.A., Barclay’s 

conduct would be a per se nuisance, rendering meritless Barclay’s 

argument that it must have known that its activities would or 

might cause harm. (Cf. People v. Chevron Chemical Co., supra, 

143 Cal. App.3d at pp. 52-53 [in construing Fish & G. Code,

§ 5650 (which is not strictly applicable in the present case as that 

code focuses on waters that do or might support aquatic life) the 

court held that regulatory offenses do not require proof of mens 

rea; instead they are strict liability offenses].) 
89

not directly applicable. (Maguire v. Hibernia S. & L. Soc. (1944) 

23 Cal.2d 719, 730 [an opinion is not authority for a proposition it 

does not consider]; Hart v. Burnett (1860) 15 Cal. 530, 598-600 

[same]; Contra Costa Water Dist. v. Bar-C Properties (1992) 5 

Cal.App.4th 652, 660 [same].) 

City of L.A. did conclude, however, that aiders and abettors 

in the discharge of sewage could be held liable for nuisance. 

Thus, rather than provide support for Barclay’s claim of no 

liability, the case can be read to indicate Barclay could be held 

liable as an aider and abettor in the discharge of petroleum 

residue originally deposited on the surface of the Site by Shell. 

Based on the facts and circumstances discussed above, we 

conclude that Barclay has not carried its burden to establish that 

its conduct was within the subdivision (j) safe harbor and that 

the trial court erred in its determination that Barclay’s conduct 

did not qualify for safe harbor protection. Indeed, there is no 

credible evidentiary dispute: Barclay’s actions constituted the 

discharge of “other waste” which “will result in . . . pollution or a 

nuisance” in violation of former Health & Safety Code section 

5411, and did not qualify under the subdivision (j) safe harbor.

Further, pursuant to City of L.A., Barclay’s claim it did not 

know what it was doing in burying the petroleum residue and 

waste on the Site could cause harm is not relevant to the finding 

of a violation of Health and Safety Code section 5411. (City of 

L.A., supra, 83 Cal.App.2d at p. 644, citing Kafka v. Bozio (1923) 

191 Cal. 746, 748.)64

 

64 Contrary to Barclay’s claims that there was no precedent 

for determining that its conduct might be subject to sanction, we 

also note that as long ago as 1884, our Supreme Court held that 

mining debris, consisting of otherwise benign sand and rock, 
90

3. Other Bases for the Rulings Below.

The Water Board found that Barclay’s activities also 

violated Fish and Game Code section 5650 and Los Angeles 

County Ordinance 20.36.010, determinations which Barclay 

disputes. 

Because we have concluded that the safe harbor cannot 

apply to Barclay’s actions in this case based on our holding that 

Barclay’s actions were contrary to Health and Safety Code 

section 5411, we need not address other reasons for the Water 

Board’s action in adding Barclay as a responsible party in the 

RCAO or for the trial court’s affirmance of that order. We do so 

based on the principle of appellate procedure that a judgment 

will be affirmed upon any one of the bases upon which the trial 

court made its determination. (Sanowicz v. Bacal (2015) 234 

Cal.App.4th 1027, 1040.) 

 

could constitute a public nuisance based on the quantity of its 

discharge if that discharge affected the rights of the community,

in that case to navigation in the rivers into which the debris was 

allowed to flow. (People v. Gold Run Ditch & Mining Co. (1884) 

66 Cal. 138, 147.) And, in 1933, our Supreme Court held that a 

nuisance had been created by the “escape over and about the 

entire neighborhood of fine dust, dust, particles of sand . . . 

creating a condition that makes it impossible for persons in the 

vicinity to properly ventilate their homes and impossible to use 

their yards for play spaces for their children . . . .” (Eaton v. 

Klimm (1933) 217 Cal. 362, 366.) The Water Board’s factual 

findings in this case indicate that the impact of Barclay’s actions 

is far greater that the impact determined to be sufficient in these 

earlier cases. 
91

DISPOSITION

The judgment is affirmed. Respondents shall recover their 

costs on appeal.

CERTIFIED FOR PARTIAL PUBLICATION.

GOODMAN, J.*

We concur:

EDMON, P.J. EGERTON, J. 

 

* Retired Judge of the Los Angeles Superior Court, assigned 

by the Chief Justice pursuant to article VI, section 6 of the 

California Constitution.