IT Corp. v. Solano County Bd. of Sup'rs

Citation272 Cal.Rptr. 574,230 Cal.App.3d 911
Decision Date23 August 1990
Docket NumberNo. AO44647,AO44647
CourtCalifornia Court of Appeals
PartiesPreviously published at 230 Cal.App.3d 911 230 Cal.App.3d 911 IT CORPORATION, Plaintiff and Appellant, v. SOLANO COUNTY BOARD OF SUPERVISORS, Defendant and Appellant.

Scott. W. Gordon, Gordon, Defraga, Watrous & Pezzaglia, Martinez, and Titchell, Maltzman, Mark, Bass, Ohleyer & Mishel, Scott W. Gordon, San Francisco, for plaintiff and appellant.

Charles O. Lamoree, County Counsel, Thomas H. Gordinier, Asst. County Counsel, Fairfield, for defendant and appellant.

NEWSOM, Associate Justice.

The County of Solano (hereafter County) and its Board of Supervisors appeal a judgment of the Solano County Superior Court setting aside an order of the Board of Supervisors affecting a use permit held by IT Corporation (hereafter IT) which permitted it to operate a hazardous waste facility.

Early in 1986, the County and IT stipulated to submit 60 issues regarding IT's compliance with its conditional use permit to the Planning Commission of Solano County (hereafter Commission). On June 25, 1987, after extensive hearings extending over 15 months, the Commission issued findings and orders respecting each disputed condition of the permit. IT appealed orders relating to four conditions, including condition 3.F., to the Board of Supervisors. The question of compliance with condition 3.F. had been the most vigorously disputed issue before the Commission: it involved potential costs which dwarfed other issues. On March 1, 1988, the Board denied the appeal from the order concerning this condition.

IT filed a petition for writ of mandate to set aside the Commission's order relating to condition 3.F. In a judgment filed November 3, 1988, the court found IT to be in violation of the condition and rejected the equitable defenses it had raised but nevertheless set aside the Commission's order on the ground that the County was "without authority to dictate the remedy for such non-compliance." After the County filed an appeal, IT filed a cross-appeal.

The hazardous waste facility at issue is located in rolling hills--agriculturally zoned--about three miles northeast of Benicia, California. The property to the southwest of the site is owned by the City of Benicia and once formed part of the watershed of a now abandoned dam. IT's predecessor, J & J Disposal, established the site in 1968 under a county conditional use permit designated R-418. In 1973, the County issued a new permit, R-708, containing conditions identical to the original permit. The facility has been largely devoted to ponds containing liquid industrial waste but also contains landfills and drum storage sites. Today the waste storage areas occupy 106 acres, including 36 acres containing some 41 ponds of liquid waste.

IT acquired the site in 1975 and later purchased contiguous property on three sides, leaving only one side of the original site bordering the Benicia watershed land. At the time of IT's acquisition, the facility had many deficiencies which have continued to draw the attention of state and local regulatory agencies. In 1981, the State Department of Health Services issued an Interim Status Document authorizing continued operation of the facility. (See Cal.Code Regs., tit. 26, § 22-66389; Health & Saf.Code, §§ 25159 and 25159.5; 1 42 U.S.C. § 6926.) Concerned over toxic waste leakages into the Benicia property, the Department conducted a series of hearings in 1986 to determine whether the site endangered public health within the meaning of section 25149, but had issued no decision as of the time of trial. The California Regional Water Quality Control Board has issued two abatement orders requiring improved monitoring of waste leakage and upgrading of the facility, and the Bay Area Air Quality Management District has been extensively engaged in regulating toxic atmospheric emissions.

In response to these regulatory pressures, IT has made substantial investments to improve the design and operation of the facility. Reviewing the enforcement activities of his agency, Harold Singer, Chief of the Industrial Division of the California Regional Water Quality Control Board, commented, "In conclusion IT purchased a hazardous waste disposal site that had numerous problems. They have committed significant resources to improving the design and operation of the facility and have made every effort to comply with Regional Board requirements. However, because of the historic disposal activities at this facility, wastes have been detected to have migrated from the disposal units. Additionally, the complex nature of the site has made it difficult for IT to implement an adequate groundwater monitoring program. IT has, in my opinion, been very responsive to addressing the leakages detected and upgrading the monitoring program when it was found to be deficient."

Among the problems IT inherited were a series of encroachments in the buffer area required by the conditional use permit. Condition 3.F. provides: "No liquid, semi-liquid or solid waste will be placed upon or in the ground or otherwise treated or disposed at any place on the site within 200 feet of the property lines." At the time IT purchased the property, five ponds and a portion of two landfill areas extended into the 200-foot buffer. Without changing their size or location, IT continued to use the ponds into the 1980s and established a new drum burial site that also encroached on the buffer zone. The encroachments did not violate state law--the present state requirement of a 2000-foot buffer zone does not apply to facilities existing in 1980--but they have drawn IT into conflict with the County and the City of Benicia. (§ 25117.4.) IT has discontinued use of three ponds near its border with the Benicia property, and has applied to the State Department of Health Services for approval of plans for permanent closure of the entire site.

Throughout the administrative hearings, IT conceded the existence of encroachments on the 200-foot buffer, but argued that the County was estopped to enforce the restriction because it knew of the encroaching sites for over 14 years without interfering with their use. Alternatively, it sought to avoid a burdensome enforcement order. The Commission staff presented the Board of Supervisors with several enforcement alternatives. The most drastic alternative was that actually adopted by the Commission: "clean closure" of all encroachments in the 200-foot buffer: that is, complete removal of all contaminated soil and other material. 2 The other alternatives contemplated that IT would dedicate part of its adjoining property to create a 200-foot buffer on three sides of the facility and would remove contaminated materials only from pond 13A--a large pond near the border with the Benicia property.

Opposing the "clean closure" alternative, IT claimed that it would require removal of 174,000 cubic yards of material--enough to fill a football field to a depth of 78 feet. The transfer of such a quantity of material, IT argued, would involve prohibitive costs and would have a major impact on the ultimate disposal site. The moving of the material to another portion of the same site would cost as much as $15 million and might drastically affect existing storage capacity; removal to the closest alternative site--Kettleman Hills--would cost about $40.5 million.

The appeal presents a significant question of the preemption of local regulation of hazardous waste disposal by general state law. In 1972, the Hazardous Waste Control Law first gave the State Department of Health Services authority to adopt "minimum standards and regulations for the handling, processing, and disposal of hazardous ... wastes...." (Stats.1972, ch. 1236, § 25150, p. 2390.) Since that time, statutory provisions regulating hazardous wastes have proliferated and the State Department of Health Services has elaborated a complex body of regulations. (Health & Saf.Code, div. 20, chs. 6.5 through 6.95; Cal.Code Regs., tit. 26 §§ 22-66001 through 22-67780.) State regulation in this area received a major stimulus with the passage of the Resource Conservation and Recovery Act of 1976 (42 U.S.C. § 6901 et seq.) which authorized the Environmental Protection Agency to approve "State hazardous waste programs" which conform with federal guidelines. (42 U.S.C. § 6926.) The implementing regulations specifically exempt states with such approved programs from a significant portion of federal regulations concerning hazardous wastes, in effect delegating enforcement of federal regulations to the states. (40 C.F.R. §§ 264.1(e) and 265.1(c)(4).) Pursuant to this legislative scheme, the State Department of Health Services has developed and enforced a federally approved program of waste management.

This body of laws and regulations expressly preserves a role for local land use regulation. Legislation enacted in 1986 requires counties to prepare hazardous waste management plans regulating the expansion and location of hazardous waste facilities within their jurisdictions. (Health & Saf.Code, div. 20, ch. 6.5, art. 3.5.) Upon approval by the State Department of Health Services, the plans are to be incorporated "into the county's general plan" or an ordinance requiring that "all applicable zoning, subdivision, conditional use permit, and variance decisions are consistent with [the plans]...." (§ 25135.7, subd. (b).) The legislative declaration associated with the 1986 legislation makes clear that it merely mandates local planning activity that was formerly permissible. (§ 25135, subd. (a)(2).)

An analysis of article 4.5 of Health and Safety Code, division 20, chapter 6.5, leads to the same conclusion. This legislation, which applies to waste facilities existing before 1981, was motivated by a legislative concern that local land use regulation could limit "the number of...

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2 cases
  • Fireman's Fund Ins. Co. v. City of Lodi, Cal.
    • United States
    • U.S. District Court — Eastern District of California
    • 25 Febrero 1999
    ...by land use permits. IT Corp. v. Solano County Bd. of Supervisors, 1 Cal.4th 81, 2 Cal.Rptr.2d 513, 820 P.2d 1023 (1991) rev'g 272 Cal.Rptr. 574 (Cal.Ct. App.1990). However, California courts have not decided whether local governing the remediation of hazardous waste sites duplicate and/or ......
  • IT Corp. v. Solano County Bd. of Sup'rs
    • United States
    • California Supreme Court
    • 15 Noviembre 1990
    ...COUNTY BOARD OF SUPERVISORS, Appellant. No. S017701. Supreme Court of California, In Bank. Nov. 15, 1990. Prior Report: Cal.App., 272 Cal.Rptr. 574. Petition for review LUCAS, C.J., and BROUSSARD, PANELLI, EAGLESON and ARABIAN, JJ., concur. ...

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