By Cori M. Badgley

Exhaustion of local remedies is a well-known doctrine among those who have attempted to appeal an administrative decision. The doctrine requires that a petitioner appealing a governmental agency’s determination or order must exhaust all of the remedies available through that agency before appealing to the courts. The Court of Appeal, Fourth Appellate District has now made it easier for petitioners appealing a determination of a regional water quality control board (“regional board”) to exhaust their local remedies. In Schutte & Koerting v. Regional Water Quality Control Board, San Diego Region (2007) Cal.App.LEXIS 2146, the appellate court held that anyone appealing the determination or order of a regional board must only request a hearing before the State Water Resources Control Board (“State Board”) in order to exhaust his or her local remedies.

The two petitioners in this case, Ametek and Schutte & Koerting, operated and continue to operate an aerospace facility in El Cajon, California. The manufacturing process used at the facility “generated wastewater and other wastes, including metal cleaning solvents. . . heavy metal waste, paint products, various acids, epoxies, caustic soda. . . and storm water.” This waste leaked into the ground and contaminated the groundwater, leaving an underground plume flowing off the property. Since 1988, the San Diego Regional Board (“SD Regional Board”) has overseen the investigation and clean-up of this site by the petitioners. Over the years, the SD Regional Board has approved various clean-up and abatement orders as well as human health risk assessments (“HHRA”). The dispute in this case arose over the most recent HHRA ordered by the Regional Board. For the purposes of this case, the procedure and not the substance of the appeal was at issue.

In an attempt to overturn the Regional Board’s determination, petitioners requested and received a hearing before the State Board. The State Board agreed with the SD Regional Board, and petitioners appealed to the superior court. Before getting to the merits of the case, the superior court dismissed the claims on the grounds that petitioners had failed to exhaust their local remedies by not requesting a hearing before the Regional Board. Petitioners again appealed.

The appellate court reversed the ruling of the superior court and held that petitioners had exhausted their local remedies. The appellate court’s discussion focused on section 13330, subdivision (b) of the Water Code, which states

Any party aggrieved by a final decision or order of a regional board for which the state board denies review 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.

In interpreting this language, the court found that review by a regional board was never mentioned in the statute. The statute only requires a request for review before the State Board. The court concluded

[b]ecause section 13330(b) requires exhaustion of administrative remedies before the State Board, but is silent with respect to exhaustion before the Regional Board. . . a party who is aggrieved by a final decision or order of a regional board, and who has exhausted its administrative remedies before the State Board and has acted within the time limits specified in that section, may obtain judicial review without seeking or obtaining a hearing before the Regional Board.

Even if the petitioners fail to win their lawsuit against the Regional Board, their success in this case will be important for many cases to come. It relieves petitioners of one additional administrative stop and frees up the regional boards to hear other matters, until litigation ensues.

Cori Badgley is an associate with Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.