After years of investigation, the San Diego Regional Water Quality Control Board (“Regional Board”) issued a cleanup and abatement order (“CAO”) to San Diego Gas & Electric Company (“SDG&E”) after finding that SDG&E caused or permitted waste to be discharged into the San Diego Bay, and thereby created, or threatened to create, pollution and nuisance conditions.  SDG&E contested its designation as a “responsible person” under California Water Code section 13304 and petitioned for a writ of mandate to have the CAO vacated, arguing that the nuisance element of section 13304 must be construed in light of common law nuisance principles, and that the Regional Board had not demonstrated by substantial evidence that SDG&E’s actions were a substantial factor in creating, or threatening to create, a condition of pollution or nuisance.  In furtherance of this argument, SDG&E relied on two cases, City of Modesto Redevelopment Agency v. Superior Court (2004) 119 Cal.App.4th 28 (Modesto I) and City of Modesto v. Dow Chemical Co. (2018) 19 Cal.App.5th 130 (Modesto II), stating that the Modesto cases required application of the “substantial factor” causation test to determine whether SDG&E created or threatened to create a condition of pollution or nuisance.  The Superior Court of San Diego County denied the writ, and SDG&E appealed.

In June, the California Court of Appeal, Fourth Appellate District upheld the trial court’s denial and held that SDG&E was properly designated as a “responsible person” under section 13304.  The appellate court distinguished the Modesto cases cited by SDG&E, stating that the fact that discharged solvents constituted a nuisance was never in dispute in the Modesto cases.  Instead, the Modesto cases  focused on “the issue of causation in the context of whether defendants who had no physical control over the discharged waste…could be found a ‘cause’ of the discharge based on the equipment they designed or instructions they gave.”  (SDG&E v. San Diego Regional Water Quality Control Board, D073968, p. 20.)   The court held that the nuisance creation element of section 13304 does not require application of the common law substantial factor test for causation, and that a Regional Board is not required to find that a person was a substantial factor in creating a nuisance prior to issuing a CAO to that person.  Section 13304 requires that a Regional Board establish a causal or connecting link between a person and an actual or threatened discharge of waste into state waters and that the discharge of waste created, or threatened to create, a condition of pollution or nuisance before issuing a CAO.  Because substantial evidence supported the Regional Board’s finding that waste discharged by, and directly attributed to SDG&E, created, or threatened to create, a condition of pollution or nuisance, the Regional Board’s CAO issued to SDG&E was valid.

The appellate court opinion can be found here.