status conference at dd 2 oe et endo rs ed · pdf fileverified petition for administrative...

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KRISTEN T. CASTANOS (SB #198672) [email protected] WESLEY A MILIBAND (SB #241283) [email protected] JULIET H. CHO (SB #271437) [email protected] STOEL RIVES LLP

500 Capitol Mall, Suite 1600 Sacramento, CA 95814 Telephone: (916) 447-0700 Facsimile: (916) 447-4781

Attorneys for Petitioner and Plaintiff THE MORNING ST ARP ACKING COMP ANY,

Status Conference

l10· V 1 5 2016 Set For n n ...:;___.::.:..__· At :::1 . DD ?<fVI

COLUSA COUNTY SUPERIOR COURT 11'\ Oe et D\'ll-

ENDO RS ED

F SUPERIOR COURT F I I L JUL I 5 2016 L E E

D COLUSA COUNTY D

L.P. ASSIGNED TO JUDGE JEffREY A. THOMPSON

FOR ALL PURPOSES

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF COLUSA

12 THE MORNING STAR PACKING COMPANY, L.P.,

CASENO. CV 24162 13

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Petitioner and Plaintiff,

v.

VERIFIED PETITION FOR ADMINISTRATIVE WRIT OF MANDATE AND DECLARATORY RELIEF OR OTHER APPROPRIATE RELIEF

CALIFORNIA REGIONAL WATER [Code of Civil Procedure§§ 1102, 1094.5] 16 QUALITY CONTROL BOARD, CENTRAL

VALLEY REGION, STATE WATER 17 RESOURCES CONTROL BOARD and

DOES 1 through 100, inclusive, 18

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Respondents and Defendants.

21 Petitioner and Plaintiff Morning Star Packing Company, L.P. ("Petitioner" or "Morning

22 Star") hereby alleges as follows:

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I. INTRODUCTION

1. Morning Star petitions this Court for an administrative writ of mandate under

Code of Civil Procedure section 1094.5 and Water Code section 13330, and a writ of prohibition

under Code of Civil Procedure section 1102, directing Respondents and Defendants State Water

Resources Control Board ("SWRCB") and Regional Water Quality Control Board, Central Valley

Region (the "Regional Board") to rescind Administrative Civil Liability Order R5-2016-0008 -1-

VERIFIED PETITION FOR WRIT OF MANDATE AND INJUNCTIVE RELIEF OR OTHER APPROPRIATE RELIEF AND COMPLAINT FOR DECLARATORY RELIEF

86904472.5 0047099-00002

1 ("ACL Order" or the "Order") issued against Morning Star on February 18, 2016, and

2 commanding the Regional Board and SWRCB to take any action necessary to implement the

3 Court's order.

4 2. The ACL Order imposes a penalty in the amount of$1.5 million against Morning

5 Star based on alleged violations of waste discharge requirements ("WDRs").

6 3. The ACL Order is based on allegations that Morning Star (1) improperly expanded

7 its Settling Pond and, (2) improperly expanded its Cooling Pond. Neither allegation is supported

8 by the record.

9 4. The record demonstrates that Morning Star did not violate its WDRs and its

10 facility in Williams, California (the "Facility") did not contribute to the degradation of water

11 quality. The evidence does not support the findings in the ACL Order, and the findings in the

12 ACL Order do not support the penalty imposed.

13 5. The Regional Board failed to consider the whole of the evidence at the

14 February 18, 2016 hearing.

15 6. The Regional Board's adoption of the ACL Order is unsupported by the scientific

16 and factual evidence, is arbitrary and capricious, and in violation of law.

17 7. The Regional Board violated due process and procedural requirements when

18 adopting the ACL Order.

19 8. The SWRCB failed to take timely action on Petitioner's Petition for Review by the

20 91st day after the Petition for Review challenging the Regional Board's ACL Order was filed

21 with the SWRCB, and therefore, pursuant to California Code of Regulations, title 23, section

22 2050, subdivision (e), the Petition was deemed automatically dismissed by the SWRCB.

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25 9.

II. JURISDICTION, VENUE, AND EXHAUSTION OF ADMINISTRATIVE REMEDIES

This Court has jurisdiction to issue writs of mandate pursuant to Code of Civil

26 Proce.dure section 1094.5 and Water Code section 13330.

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-2-VERIFIED PETITION FOR WRIT OF MANDATE AND INJUNCTIVE RELIEF OR OTHER APPROPRIATE

RELIEF AND COMPLAINT FOR DECLARATORY RELIEF 86904472.5 0047099-00002

1 10. Venue for this action properly lies in the Superior Court for the State of California

2 in and for the County of Colusa under section 13 361 (b) of the Water Code, in that the discharge

3 alleged in the ACL Order occurred in the County of Colusa.

4 11. Petitioner has exhausted all of the administrative remedies available to it prior to

5 filing this action:

6 a. Petitioner submitted its Legal, Policy and Technical Statement and other

7 evidence in Opposition to the ACL to the Regional Board, and Petitioner participated in the

8 Regional Board's administrative hearing (the "Hearing") on the ACL on February 16, 2016. A

9 true and correct copy of Petitioner's Legal, Policy and Technical Statement in Opposition to ACL

10 is attached hereto as Exhibit A and incorporated herein by reference. True and correct copies of

11 Morning Star's Exhibits J, K, L, M, N and O in Opposition to the ACL are attached hereto as

12 Exhibit B and incorporated herein by reference.

13 b. On March 18, 2016, Petitioner filed a Petition for Review challenging the

14 ACL Order with the SWRCB within the required 30-day time limit of the Regional Board's

15 issuance of the ACL Order. A true and correct copy of the Petition for Review is attached hereto

16 and incorporated herein by reference as Exhibit C.

17 C. · On May 31, 2016, Petitioner submitted a Request to Supplement Record to

18 the SWRCB. A true and correct copy is attached hereto as Exhibit D and incorporateu herein by

19 reference.

20 d. On June 16, 2016, the 90-day time limit for the SWRCB to respond to the

21 Petition for Review passed, and pursuant to California Code of Regulations, title 23, section

22 2050, subdivision (e), the SWRCB was deemed to have automatically dismissed the Petition for

23 Review.

24 e. Petitioner timely files this Petition for Writ of Mandate within the 30-day

25 time limit in Water Code section 13330(a).

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III. THE PARTIES

12. Petitioner, The Morning Star Packing Company, L.P., owns and operates a tomato

processing facility located on the south side in the City of Williams in the County of Colusa. The -3-


86904472.5 0047099-00002

1 Facility began operating in 1995 and was previously governed by Waste Discharge Requirements

2 Order No. 95-160 ("1995 WDRs") issued by the Regional Board. The Facility is currently

3 'governed by Waste Discharge Requirements Order RS-2013-0144 (the "2013 WDRs"). The ACL

4 Order is issued to Petitioner.

5 13. On information and belief, Petitioner alleges that Respondent SWRCB, together

6 with the various regional water quality control boards, is the duly constituted authority for the

7 regulation and control of discharges to waters of the State of California and United States. The

8 SWRCB is responsible for administrative review of the challenge to the ACL Order.

9 14. On information and belief, Petitioner alleges that Respondent Regional Board is a

10 sub-entity of the SWRCB withjurisdiction over some water quality issues in Colusa County. The

11 Regional Board issued the ACL Order.

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IV. STANDARD OF REVIEW

Pursuant to California Code of Civil Procedure section 1094.5 and Water Code

14 section 13330, this Court has jurisdiction to review the Regional Board's Order and determine

15 whether the Regional Board's findings are supported by substantial evidence in light of the whole

16 record to determine ifthere is an abuse of discretion.

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V. STATEMENT OF FACTS

The Facility is a tomato processing facility that operates approximately from

19 June to mid-October. The Facility includes a Settling Pond and a Cooling Pond, each serving a

20 different purpose in the Facility's processes.

21 17. The Settling Pond is part of the Facility's processing operation. Tomato

22 wastewater is discharged and recirculated in the Settling Pond and is shortly thereafter distributed

23 for irrigating farmland referred to as land application areas ("LAA").

24 18. The Cooling Pond is part of the Facility's processing operation. Condensate from

25 the Facility's evaporation process is discharged to the Cooling Pond to be cooled prior to being

26 recycled back into the tomato processing operations, or applied to the LAA for irrigation.

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1 19. The Facility initially operated pursuant to the 1995 WDRs. In 2005, Morning Star

2 submitted a Report of Waste Discharge ("ROWD") to the Regional Board to support issuance of

3 updated WDRs. No action was taken by the Regional Board on the ROWD for several years.

4 20. The 1995 WDRs include Attachment B, which is a scaled figure depicting the size

5 and location of the proposed Settling Pond, and represents a Settling Pond of approximately 3 .2

6 acres in size. The 1995 WDRs include no other references to the size of the Settling Pond.

7 21. In the Spring of2011 and consistent with the 1995 WDRs that were in effect,

8 Morning Star expanded the size of the Settling Pond from five acre-feet in volume and one acre in

9 size, to two acres in size. The expanded Settling Pond was still smaller than the 3 .2 acre size

10 depicted on Attachment B to the 1995 WDRs. The ACL Order improperly concludes that

11 expansion of the Settling Pond violated the 1995 WDRs and the subsequently adopted 2013

12 WDRs.

13 22. In 2012, nearly seven years after Morning Star submitted its ROWD, the Regional

14 Board finally initiated preparation of new WDRs. In August 2012, Regional Board Staff

15 conducted a site visit to the Facility and met with Morning Star to identify changes that should be

16 incorporated into new WDRs. During this site visit, Morning Star informed Regional Board Staff

17 that it intended to expand its processing facility, which would involve enlarging the Cooling Pond

18 and reducing the LAA.

19 23. Following the site visit, Regional Board Staff sent a letter to Morning Star dated

20 September 13, 2012, stating, in relevant part, "Morning Star staff mentioned that there are plans

21 to expand the existing facility to include a bulk diced operation. Expansion would include

22 increasing the Cooling Pond capacity and reducing the available land application areas."

23 24. At the August 2012 site visit, Regional Board Staff observed the actual (expanded)

24 Settling Pond.

25 25. In a report submitted to the Regional Board in November 2012, Morning Star

26 advised Regional Board Staff that the Settling Pond had recently been expanded.

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-5-VERIFIED PETITION FOR WRIT OF MANDA TE AND INJUNCTIVE RELIEF OR OTHER APPROPRIATE


1 26. On October 2, 2013, Morning Star received Regional Board Staffs proposed

2 tentative WDRs, which contained several factual errors that Morning Star subsequently identified

3 to Regional Board Staff.

4 27. On October 30, 2013, Morning Star submitted comments on the tentative WDRs.

5 Among other comments, Morning Star stated, "The facility has plans to expand the processing

6 operations by 65% in the future. The expansion is not anticipated to change wastewater

7 characteristics or cause flow limits to be exceeded."

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28.

29.

On December 5, 2013 the Regional Board adopted the 2013 WDRs.

The 2013 WDRs include the following at Finding 28: "The Discharger plans to

10 increase production by up to 65% in the future ... " The Regional Board unilaterally modified the

11 information Morning Star provided regarding the anticipated expansion, changing Morning Star's

12 comment about expanding "processing operations" to "increase production."

13 30. The 2013 WDRs include Finding 12, inaccurately describing the Settling Pond as

14 five acre-feet in volume.

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32.

The 2013 WDRs expressly rescinded the 1995 WDRs.

As contemplated by the 2013 WDRs, in July 2015, Morning Star expanded its

17 Cooling Pond by sixty-five percent (65%), exactly as described in the 2013 WDRB.

18 33. Regional Board Staff issued ACL Complaint R5-2015-0549 against Morning Star

19 on November 20, 2015, followed by a first amended ACL Complaint on December 24, 2015 and

20 a second amended ACL Complaint on January 20, 2016. All three proposed ACL Complaints

21 recommended a penalty of $1.5 million. The second amended ACL Complaint alleges violations

22 of the 2013 WDRs for increasing the size of both the Cooling Pond and the Settling Pond at the

23 Facility, and for violations of the 1995 WDRs for increasing the size of the Settling Pond at the

24 Facility, citing to the following provisions of the WDRs:

25 a. Prohibition A.3 of the 2013 WDRs: "Discharge of waste at a location or in

26 a manner different from that described in the Findings is prohibited." Finding 28, supra,

27 provides: "The Discharger plans to increase production by up to 65% in the future ... "

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I b. Standard Provision A.4: "Before making a material change in the character,

2 location, or volume of discharge, the discharger shall file a new Report of Waste Discharge with

3 the Regional Board." A "material change" pursuant to Standard Provision A.4 includes, but is

4 not limited to:

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(a)

(b)

(c)

(d)

An increase in area or depth to be used for solid waste disposal beyond that specified in WDRs.

A significant change in disposal method, location or volume, e.g., change from land disposal to land treatment.

The addition of a major industrial, municipal or domestic waste discharge facility.

The addition of a major industrial waste discharge to a discharge of essentially domestic sewage or the addition of a new process or product by an industrial facility resulting in a change in the character of the waste.

34. Morning Star's expansion of the Settling Pond and Cooling Pond does not meet

the definition of a material change.

35. Morning Star submitted substantial evidence, demonstrating that operation of the

Facility from its original construction in 1995 and with the expanded Settling Pond and Cooling

Pond has not resulted in groundwater degradation or any negative impact to water quality.

36. On February 18, 2016, the Regional Board, by a 3-1 vote, adopted the ACL Order

imposing a $1.5 million fine against Morning Star for violations of the 1995 WDRs and the 2013

WDRs, despite substantial evidence to the contrary. The Regional Board did not find any actual

water quality degradation or establish that Morning Star has degraded water quality, but instead

based its decision in large part on the perception that Morning Star intentionally deceived

Regional Board Staff and the Regional Board despite substantial evidence to the contrary.

FIRST CAUSE OF ACTION

Abuse of Discretion: Lack of Substantial Evidence In Support Of ACL Order

(Code of Civil Procedure, § 1094.5)

37. Petitioner re-alleges and incorporates by reference paragraphs 1 through 36

inclusively, as though fully set forth herein.



1 38. California Water Code section 13323 authorizes the Regional Board to issue an

2 ACL Order against "any person on whom administrative civil liability may be imposed pursuant

3 to this article." California Water Code section 13350 limits administrative civil liability to a

4 person who, in violation of a waste discharge requirement, discharges waste, or causes or permits

5 waste to be deposited where it is discharged, into the water of the state.

6 39. Morning Star did not violate its WDRs when it expanded the Cooling Pond

7 because of, but not limited to, the following reasons:

8 a. The evidence in the record demonstrates that since 1995, the 60-acre

9 Cooling Pond has not had a negative impact to groundwater and has not been a source of concern \

10 for the Regional Board regarding water quality, or otherwise. There is no basis or evidence in the

11 record to explain the Regional Board's newly developed concern over operation of the Cooling

12 Pond.

13 b. Prior to issuance of the 2013 WDRs, Morning Star informed Regional

14 Board Staff of its plans to expand its processing operations by sixty-five percent and, specifically,

15 of its plans to expand the Cooling Pond.

16 c. The Regional Board acknowledged that Morning Star intended to expand

17 the Cooling Pond by sixty-five percent.

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d. The Cooling Pond expansion was specifically contemplated by and

accounted for in the 2013 WDRs.

e. The Regional Board's unilateral modification of the language Morning Star

21 provided to describe the intended Cooling Pond expansion was arbitrary. Any misunderstanding

22 resulting from this modification does not support imposition of a $1.5 million penalty against

23 Morning Star.

24 f. Contrary to the Regional Board's :findings, the evidence in the record does

25 not support the conclusion that expansion of the Cooling Pond is a material change in violation of

26 Standard Provision A.4 the WDRs.

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1 g. The evidence in the record demonstrates Morning Star did not violate any

2 specific discharge requirements or prohibitions, including Prohibition A.3, or cause any actual

3 negative impact to water quality as a result of the expansion of the Cooling Pond.

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40. Morning Star did not violate its WDRs when it expanded the Settling Pond

because of, but not limited to, the following reasons:

a. The 1995 WDRs include a figure depicting a larger Settling Pond and no

other provision of the 1995 WDRs address the Settling Pond size. Expansion of the Settling Pond

was in compliance with the 1995 WDRs.

b. Morning Star advised the Regional Board that the Settling Pond had been

expanded prior to issuance of the 2013 WDRs.

c. The findings in the 2013 WDRs incorrectly described the Settling Pond

size. The incorrect description of the size of the Settling Pond in the 2013 WDRs does not

support imposition of a $1.5 million penalty against Morning Star.

d. The 2013 WDRs provide that "WDRs Order 95-160 be rescinded and

replaced with this Order." The rescinded 1995 WDRs cannot be the basis for enforcement.

e. The expansion of the Settling Pond occurred prior to adoption of the 2013

WDRs. The 2013 WDRs cannot be retroactively applied to support enforcement of activity that

occurred prior to adoption of the 2013 WDRs.

f. Contrary to the Regional Board's findings, the evidence in the record does

not support the conclusion that expansion of the Settling Pond is a material change in violation of

Standard Provision A.4 of the WDRs.

g. The evidence in the record demonstrates Morning Star did not violate any

specific discharge requirements or prohibitions, including Prohibition A.3, or cause any actual

negative impact to water quality as a result of the expansion of the Settling Pond.

41. The Regional Board's decision to impose a $1.5 million penalty is not supported

by the Regional Board's findings in the ACL Order.

42. The Regional Board's findings in the ACL Order are based on factual inaccuracies

and not supported by the evidence. -9-

VERIFIED PETITION FOR WRIT OF MANDA TE AND INJUNCTIVE RELIEF OR OTHER APPROPRIATE RELIEF AND COMPLAINT FOR DECLARATORY RELIEF

86904472.5 0047099-00002

1 43. Petitioner has no plain, speedy, or adequate remedy at law other than the relief

2 sought in this petition.

3 44. By violating Water Code section 13350, the Regional Board has committed an

4 abuse of discretion under Code of Civil Procedure section 1094.5.

5 SECOND CAUSE OF ACTION

6 Lack of Authority to Specify the Manner of Compliance

7 (Water Code § 13360)

8 45. Petitioner re-alleges and incorporates by reference paragraphs 1 through 44

9 inclusively, as though fully set forth herein.

10 46. Water Code section 13360(a) provides that "no waste discharge requirement or

11 other order of a regional board ... shall specify the design, location, type of construction, or

12 particular manner in which compliance may be had."

13 47. The Regional Board determined that the expansion of the Cooling Pond at the

14 expense of decreasing the size of the LAA, violated the WDRs.

15 48. The ACL Order includes requirements for Morning Star to use its land in a

16 particular manner, specifying the manner of compliance with the WDRs in violation of Water

17 Code section 13360.

18 49. Petitioner has no plain, speedy, or adequate remedy atlaw other than the relief


20 50. By violating Water Code section 13360, the Regional Board has committed an

21 abuse of discretion under Code of Civil Procedure section 1094.5.

22 THIRD CAUSE OF ACTION

23 Abuse of Discretion: Improper Penalty Calculation

24 (Code of Civil Procedure, § 1094.5)


26 inclusively, as though fully set forth herein.

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52. California Water Code section 13327 specifies the factors the Regional Board and

SWRCB shall take into consideration in determining the amount of civil liability. -10-


86904472.5 0047099-00002

1 53. The SWRCB has adopted a Water Quality Enforcement Policy to provide

2 guidance to the Regional Board in determining the amount of civil liability.

3 54. The ACL Order imposed a total penalty of $1.5 million, using a per gallon

4 discharge calculation. The calculation is based on assumptions regarding the seepage from the

5 expanded Cooling Pond and Settling Pond per day, and the number of days seepage occurred.

6 55. The Regional Board's assumptions regarding the number of days of violation

7 resulting from expansion of the Cooling Pond and Settling Pond are not supported by the

8 evidence in the record.

9 · 56. The Regional Board's calculation of seepage discharge resulting from expansion

10 of the Cooling Pond and Settling Pond is in error, not supported by evidence in the record, and

11 grossly overstates any seepage that could have resulted from the expansions.

12 57. The Regional Board's characterization of the discharge and assignment of factors

13 to calculate the Cooling Pond and Settling Pond penalty under the Water Quality Enforcement

14 Policy is not supported by the evidence in the record. The Regional Board's calculation is

15 unsupported, because of, but not limited to, the following factors:

16 a. Any alleged discharge did not harm or have the potential to harm beneficial

17 uses;

18 b. The physical, chemical, biological or thermal characteristics of any alleged

19 discharge posed a negligible risk to potential receptors;

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C. Morning Star's degree of culpability, cooperation, and history of violations

do not support the Regional Board's penalty calculation.

58. Petitioner has no plain, speedy, or adequate remedy at law other than the relief


24 59. The Regional Board has committed an abuse of discretion under Code of Civil

25 Procedure section 1094.5 by not proceeding in the manner required by law.

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FOURTH CAUSE OF ACTION

Ordinary Writ of Mandate

(Code of Civil Procedure,§ 1102)

Petitioner re-alleges and incorporates by reference paragraphs 1 through 59

5 inclusively as though fully set forth herein.

6 61. Code of Civil Procedure section 1102 provides that "The writ of prohibition arrests

7 the proceedings of any tribunal, corporation, board, or person exercising judicial functions, when

8 such proceedings are without or in excess of the jurisdiction of such tribunal, corporation, board,

9 or person."

10 62. Code of Civil Procedure section 1103, subdivision (a), provides that "A writ of

11 prohibition may be issued by any court to an inferior tribunal ... in all cases where there is not a

12 plain, speedy, and adequate remedy in the ordinary course oflaw. It is issued upon the verified

13 petition of the person beneficially interested."

14 63. Without intervention by, or protection ordered by this Court, the Regional Board

15 will continue to enforce the ACL Order and the $1.5 million fine against Morning Star.

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64. For the reasons set forth, supra, the Regional Board and SWRCB proceeded in

excess of its jurisdiction with the enforcement of the ACL.

FIFTH CAUSE OF ACTION

Petitioner Was Denied Due Process of Law and Statutory Rights (United States Constitution, Amendment IX, section l; California Constitution, article I,

section 7)

65. Petitioner re-alleges and incorporates by reference paragraphs 1 through 64


23 66. Respondents violated the Due Process Clause of the United States and California

24 Constitutions because of, but not limited to, the following reasons:

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a. Respondents ignored the evidence presented by Morning Star that

impeaches Regional Board Staffs statements against Morning Star, including, but not limited to,

evidence that Regional Board Staff was apprised of Morning Star's intention to increase the

capacity of its Cooling Pond and Settling Pond prior to updating the 2013 WDRs. -12-

VERIFIED PETITION FOR WRIT OF MANDA TE AND INJUNCTIVE RELIEF OR OTHER APPROPRJATE RELIEF AND COMPLAINT FOR DECLARATORY RELIEF

86904472.5 0047099-00002

1 b. The Regional Board, without any legal basis, precluded Morning Star.from

2 introducing evidence that comported with the Regional Board's hearing procedures, including,

3 but not limited to, precluding evidence from Morning Star's technical expert that summarized

4 data that was previously submitted to the Regional Board and Regional Board Staff.

5 C. Regional Board Staff made statements at the Hearing and after the Hearing

6 that were not based on factual evidence. Evidence in the record impeaches these erroneous

7 statements, including, but not limited to, a press release issued by the Regional Board.

8 d. The Regional Board made erroneous evidentiary rulings, including, but not

9 limited to, permitting unsworn testimony from the Regional Board's Assistant Executive Officer,

10 who was not disclosed by the Prosecution Team as a potential witness or potential rebuttal

11 witness pursuant to the Hearing Procedures. This violated Morning Star's due process rights.

12 67. The Regional Board shifted its regulatory burden to prepare adequate WDRs to

13 Morning Star. The Executive Officer of the Regional Board alleged that "[i]t would have been

14 nice if during the inspection staff had noticed that [pond expansion] but they just knew it was a

15 pond .. .it's the burden of the discharger to let us know." The evidence in the record demonstrates

16 the Regional Board was told about the pond expansions and failed to accurately reflect the facts

17 in the 2013 WDRs.

18 68. The Regional Board demonstrated bias and prejudice against Morning Star,

19 precluding Morning Star from having a fair hearing.

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69. Petitioner has no plain, speedy, or adequate remedy at law other than the relief

sought in this petition.

70. The Regional Board violated the Due Process Clause of the United States and

23 California Constitution.

24 DECLARATORY RELIEF



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72. An actual controversy has arisen and now exists between Petitioner and

Respondents involving substantial questions pertaining to Petitioner's rights as affected by the -13-


86904472.5 0047099-00002

1 ACL Order. Petitioner contends that the Order should be rescinded because the Regional Board

2 failed to proceed in a manner required by law in violation of state law and the due process clauses

3 of the Federal and California Constitutions, as described above.

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73. Petitioner also contends that the ACL Order is based on a finding that it did not

communicate well enough with the Regional Board regarding the expansions of the Cooling Pond

and Settling Pond.

74. The Regional Board, on the other hand, inaccurately maintains that Morning Star

8 failed to inform the Regional Board about expansions of the Cooling Pond and Settling Pond and

9 that those failures violate the WDRs.

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75. To remedy the Regional Board's violation of the provisions of law as described

above, Petitioner requests a declaration that the Order violates:

a. California Code of Civil Procedure section 1094.5, as the ACL Order is not

supported by tis findings and contains findings that are not supported by substantial evidence;

b. Water Code section 13360, as the ACL Order improperly directs the

manner of compliance with WDRs;

C. The California Constitution, article I section 7, as the Regional Board is

attempting to enforce the Order against Petitioner in violation of the due process clause;

d. United States Constitution, Amendment IX section 1, as the Regional

19 Board is attempting to enforce the Order against Petition in violation of the due process clause.

20 PRAYER FOR RELIEF

21 Petitioner respectfully requests that the Court grant the following relief:

22 1. The Court issue a peremptory writ of mandate and/or writ of prohibition directing

23 Respondents to vacate the ACL Order and publicly correct the record regarding the alleged

24 violations.

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2. The Court command SWRCB to talce any action necessary to implement the

Court's order to the Regional Board.

3. The Court malces the declarations set forth above.


RELIEF AND COMPLAINT FOR DECLARATORY RELIEP 86904472.5 0047099-00002

1 4. The Court enjoin Respondents from taking any further actions that would violate

2 the law and cause Petitioner to suffer great and irreparable harm.

3 5. The Court maintain continuing jurisdiction over Respondents' proceedings related

4 to rescission of the Order.

5 6. The Court order Respondents to pay costs and fees in connection with these

6 proceedings, including attorney's fees under Government Code section 800 and California Code

7 of Civil Procedure 61021. 5.

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7. Any other relief that the Court deems just and proper.

DATED: July 14, 2016

STOEL RIVES LLP

By:YO~ KRISTEN T. CASTANOS WESLEY A. MILIBAND JULIET H. CHO

-15-

Attorneys for Petitioner and Plaintiff THE MORNING STAR PACKING COMPANY, L.P.

VERIFIED PETITION FOR WRIT OF MANDATE AND INJUNCTIVE RELIEF OR OTHER APPROPRIATE RELJEF AND COMPLAINT FOR DECLARATORY RELIEF

86904472.5 0047099-00002

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3 I, Chris J. Rufer, declare:

VERIFICATION

4 I am the founder and President of the Managing Partner of The Morning Star Packing

5 Company, L.P., which is organized and existing under the laws of California, and am authorized

6 to make this verification on its behalf.

7 I have read the foregoing VERIFIED PETITION FOR ADMINISTRATIVE WRIT OF

8 MANDATE AND DECLARATORY RELIEF OR OTHER APPROPRIATE RELIEF and know

9 the contents thereof. The same is true of my own knowledge, except as to those matters which

10 are therein alleged on information and belief, and as to those matters, I believe them to be true.

11 I declare under penalty of perjury under the laws of the State of California that the

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28 STOEL RIVES LLP

ATTORNH'l'sAT LAW

SACRAMENTO

foregoing is true and correct.

Executed at}!%~ , California, this ft day of July 2016.

VERIFICATION

status conference at dd 2 oe et endo rs ed · pdf fileverified petition for administrative...

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