Azusa Land Reclamation Co. v. Main San Gabriel Basin Watermaster

• Decision Date: 18 February 1997
• Docket Number: No. B106181,B106181
• Citation: 61 Cal.Rptr.2d 447,52 Cal.App.4th 1165
• Court: California Court of Appeals Court of Appeals
• Parties: , 97 Cal. Daily Op. Serv. 1128, 97 Daily Journal D.A.R. 1648 AZUSA LAND RECLAMATION COMPANY, INC., Plaintiff and Appellant, v. MAIN SAN GABRIEL BASIN WATERMASTER, et al., Defendants and Respondents.

Page 447

61 Cal.Rptr.2d 447

52 Cal.App.4th 1165, 97 Cal. Daily Op. Serv. 1128,

97 Daily Journal D.A.R. 1648

AZUSA LAND RECLAMATION COMPANY, INC., Plaintiff and Appellant, v. MAIN SAN GABRIEL BASIN WATERMASTER, et al., Defendants and Respondents.

No. B106181.

Court of Appeal, Second District, Division 7, California.

Feb. 18, 1997.

Rehearing Denied March 13, 1997.

Review Denied May 21, 1997.

McClintock, Weston, Benshoof, Rochefort, Rubalcava, Steven W. Weston, Edward J. Casey, Edward P. Manning, Los Angeles, Brobeck, Phleger & Harrison, Michael E. Molland, Thomas M. Peterson and Marilyn Fisher, San Francisco, for Plaintiff and Appellant.

Jeffrey Kightlinger, Morrison & Foerster, Burton J. Gindler, John Sobieski, Mark R. McDonald and Lester I. Yano, Los Angeles, for Defendants and Respondents.

FRED WOODS, Associate Justice.

I INTRODUCTION

In view of the length and complexity of the opinion, we deem it necessary to give an expansive preview of the subject matter in the introduction.

This matter came to this court initially when Azusa Land Reclamation Co. filed a "petition for writ of mandate joined with request for stay or, alternatively, appellant's opening brief joined with petition for writ of supersedeas and application for expedited appeal...." On October 11, 1996, this court issued an order requesting respondents to file a response to the petition of appellant. Following the filing of the response, this court issued an order denying the petition for writ of supersedeas and further ordering the filing of a respondents' brief and permitting the filing of a reply brief by appellant.

The Main San Gabriel Groundwater Basin (the "Basin") is an underground reservoir that supplies the water needs of approximately one million Southern Californians and is a vital link in California's statewide water planning. The Legislature, observing that municipal solid waste landfills located in empty sand and gravel quarries atop the Basin are believed to have contributed to the pollution of the Basin, has prohibited new or expanded landfills in sand and gravel pits--even if the landfill were to have a liner designed to capture pollutants before they hit the Basin.

The Azusa landfill, owned by appellant, Azusa Land Reclamation Company ("ALR"), is an 80-acre unlined municipal solid waste landfill located in an empty sand and gravel pit atop the Basin. In 1991, the State Water Resources Control Board ("the State Board") rescinded the permit allowing the disposal of municipal solid waste at the site and ordered that further discharge at the site would be henceforth limited to inert waste because of the unsuitability of the site for a municipal solid waste dump. Accordingly, the landfill closed.

In 1994, after all of its challenges to the 1991 State Board order had failed, ALR announced that it would reopen the unlined 80-acre area and deposit 3.2 million tons of municipal sold waste over a seven year period. The State Board refused to stand in the way, deciding that the rescission of the earlier permit had only served to reinstate a permit issued in 1960. The State Board did, however, order ALR to submit a report of waste discharge by October 1995 and directed the Regional Water Quality Control Board for the Los Angeles region ("the Regional Board") to decide whether to authorize the additional disposal.

In April 1995, the Regional Board decided to defer a decision until October 1995, after concluding that it could not allow ALR to dump 3.2 million more tons of garbage at the site unless ALR proposed some sort of mitigation measures to overcome the obvious site deficiencies.

The Main San Gabriel Basin Watermaster ("Watermaster"), the Metropolitan Water District of Southern California ("Metropolitan"), several municipal water districts, several elected officials, and numerous members of the public opposed the issuance of a new permit. Metropolitan retained several world renowned experts to review ALR's proposal and, before the October public meeting, its experts submitted reports concluding that ALR's proposed mitigation measures would not work. ALR disagreed. After looking at all the evidence, Regional Board staff concluded that the impact of ALR's dumping--even with ALR's proposed mitigation measures--could be "significant."

On October 30, 1995, the regional water board held a public meeting. After listening to comments from the public, the board closed the public comment period and then voted 5-4 to adopt an order that authorized the continued disposal of municipal waste at the site and that simultaneously declared the project exempt from the California Environmental Quality Act ("CEQA"). The State Board dismissed the petitions for failing to state a "substantial issue."

The trial court reversed the Regional Board's decision, concluding that CEQA applied because there was substantial evidence that the project would have a significant effect on the environment. ALR filed a timely notice of appeal. The State Board did not appeal.

II CONTENTIONS

ALR contends the trial court erred: (1) by granting respondents relief when they failed to exhaust their administrative remedies by raising CEQA issues before the Regional Board; (2) by mistakenly applying the "significant effect" exemption to the existing facility categorical exemption; (3) by not applying the "ongoing project" exemption which should have been applied by the Regional Board; and (4) by failing to agree the landfill permit did not constitute a "project" under CEQA.

Respondents contend they have exhausted their administrative remedies and the trial court properly found that the "significant effect" exception applies. They further contend that the public policy goals of CEQA, environmental review, full disclosure and informed decision making, have been upheld by the trial court's decision. Respondents contend that CEQA was not enacted for the purpose of granting a permit authorizing pollution while the project manager experiments with mitigation measures to reduce the suspected environmental impacts of the continued pollution--all without any environmental review.

III FACTUAL AND PROCEDURAL BACKGROUND

The Parties.

Appellant, ALR, is a company engaged in the business of waste disposal, and owns and operates the landfill.

Respondent, Watermaster, is a nine member board established by the Los Angeles Superior Court to implement its 1973 judgment adjudicating water rights in the Basin.

The State Board was a respondent in the trial court proceedings but elected not to appeal the judgment or file a brief in this appeal.

The following public water supply agencies are respondents in this appeal: Metropolitan; the San Gabriel Valley Municipal Water District ("Four Cities"); the Upper San Gabriel Valley Water District ("Upper District"); and the Three Valleys Municipal Water District ("Three Valleys"). For purposes of brevity, all of these respondents will be collectively referred to as the "Water Agencies."

The Main San Gabriel Water Basin.

The Basin's groundwaters are beneficially used for municipal, industrial, and agricultural water supply. The Basin produces approximately 200,000 acre-feet of water annually, supplying "drinking water for the lion's share of the San Gabriel Valley's more than 1,000,000 residents." (Main San Gabriel Basin Watermaster v. State Water Resources Control Bd. (1993) 12 Cal.App.4th 1371, 1374, 16 Cal.Rptr.2d 288.) Forty-six separate municipal water departments, private water companies, and other water agencies rely upon the Basin as a continuous source of high quality water.

In addition to its value as a source of water, the Basin is an irreplaceable natural water storage facility. The estimated total capacity of the Basin is more than 10 million acre-feet and has an unused storage capacity of at least 400,000 to 500,000 acre-feet. Substantial amounts of water are imported at considerable expense, spread at recharge ¹ The Legislature has characterized the Basin contamination problem as "urgent." (Stats.1989, ch. 736, § 1.) Observing that "[t]he existence of landfills [atop the Basin] are believed to have contributed significantly to this groundwater contamination," (ibid.) the Legislature in 1989 prohibited any new or expanded municipal solid waste landfills in former sand and gravel pits atop the Basin. (Pub. Resources Code, § 40060.)

areas adjacent to the Azusa landfill, and stored in the Basin for use in times of need. Regrettably, the Basin is polluted. "[P]ollution of the Basin already poses a significant threat to public health, and consequently, the Basin is on the United States Environmental Protection Agency's (EPA) national priority list for cleanup under the federal superfund program." (Main San Gabriel Basin Watermaster, supra, 12 Cal.App.4th at pp. 1374-1375, 16 Cal.Rptr.2d 288.)

The ALR Landfill Site.

The unlined 80-acre area lies within an active sand and gravel quarry. The site comprises 302 acres within the cities of Azusa and Irwindale. The property consists of (a) the unlined 80-acre area; (b) a 22-acre lined portion where only inert waste may be deposited; and (c) a 200-acre area consisting primarily of sand and gravel operations. The Legislature, the courts, and the state and regional water quality control boards have declared that the Azusa Landfill site is particularly ill-suited for the disposal of waste.

The landfill sits in a unique "geologic setting ... ideally suited to receive, store, and transmit large volumes of potable water." The landfill is located on rock debris, deposited by the San Gabriel River. "[T]he material is highly permeable and will transmit water readily."

The permeability of the geologic material beneath and near the landfill makes the area ideal for recharging the Basin. It is surrounded by important recharge areas. To the north is the San Gabriel Canyon recharge area; one mile west is the San Gabriel river and the Santa Fe spreading grounds; and to the south is the...