Tesoro Refining & Marketing Co., LLC v. L.A. Regional Water Quality Control BoardAnnotate this Case
Tesoro appealed the denial of a writ of mandate seeking to set aside a cleanup and abatement order (CAO) issued by the Regional Board. As a threshold matter, the court held that the factual question of when Tesoro's pipelines leaked pollutants was never answered because Tesoro never argued to the Regional Board that this action involved an impermissible retroactive application of the Porter-Cologne Act. The court held that where, as here, the administrative agency has not determined a factual predicate for a defense such as this one, administrative exhaustion should preclude the argument. Furthermore, the term "discharge" must be read to include not only the initial occurrence, but also the passive migration of the contamination into the soil and, ultimately, into the groundwater.
The court held that substantial evidence supported the trial court's independent judgment that Tesoro's pipelines were the source of the contamination addressed in the CAO; it would have been futile for Tesoro to argue its narrow definition of "discharge" before the Regional Board, thereby excusing its failure to exhaust; and even if substantial evidence in the record supported Tesoro's factual contention that the initial discharge from its pipelines necessarily occurred before 1970, it would still be an actionable discharge under the Porter-Cologne Act.