Main San Gabriel Basin Watermaster v. State Water Resources Control Bd.

• Decision Date: 28 January 1993
• Docket Number: No. B064495,B064495
• Court: California Court of Appeals Court of Appeals
• Parties: MAIN SAN GABRIEL BASIN WATERMASTER et al., Plaintiffs and Respondents, v. STATE WATER RESOURCES CONTROL BOARD, Defendant and Respondent; AZUSA LAND RECLAMATION COMPANY, INC., Real Party in Interest and Appellant.

Page 288

16 Cal.Rptr.2d 288

12 Cal.App.4th 1371

MAIN SAN GABRIEL BASIN WATERMASTER et al., Plaintiffs and Respondents, v. STATE WATER RESOURCES CONTROL BOARD, Defendant and Respondent;

AZUSA LAND RECLAMATION COMPANY, INC., Real Party in Interest and Appellant.

No. B064495.

Court of Appeal, Second District, Division 2, California.

Jan. 28, 1993.

Review Denied May 13, 1993.

Latham & Watkins, Christopher W. Garrett, Allan J. Abshez, Juli Wilson Marshall, Susan S. Azad and Lisa K. Laursen, San Diego, for real party in interest and appellant.

Daniel E. Lungren, Atty. Gen., Roderick E. Walston, Chief Asst. Atty. Gen., Walter E. Wunderlich, Asst. Atty. Gen. and Douglas B. Noble, Deputy Atty. Gen., for defendant and respondent.

Horvitz & Levy, David M. Axelrad, Mitchell C. Tilner, Encino, Hufstedler, Kaus & Ettinger, Burton J. Gindler, Donna R. Harvey, Fred Vendig, Karen L. Tachiki, Victor E. Gleason, Los Angeles, Moseley & Leech, E. Clarke Moseley, El Monte, Thomas J. Graff and John W. Krautkraemer, Oakland, for plaintiffs and respondents.

Brunick, Alvarez & Battersby, James W. Anderson, Steven M. Kennedy, San Bernardino, Wayne K. Lemieux, Westlake Village, Steven O'Neil, Northridge, McKenna & Fitting, Aaron M. Peck, Terry O. Kelly, Andrew J. Yamamoto, Los Angeles, Lagerlof, Senecal, Drescher & Swift, H. Jess Senecal, Jack T. Swafford, Pasadena, McCormick, Kidman & Behrens, Janet Morningstar Costa Mesa, Joel Reynolds and Mary Nichols, Los Angeles, as amici curiae on behalf of plaintiffs and respondents and defendant and respondent.

FUKUTO, Associate Justice.

Introduction

Appellant and Real Party in Interest, Azusa Land Reclamation Company, Inc. ("ALR"), appeals from a final judgment denying its motion for a supplemental writ of mandate to direct the State Water Resources Control Board ("State Board"): (1) to set aside the State Board's reversal of its own previously granted approval of ALR's application for revised waste discharge requirements ("WDR's") (Wat.Code, § 13263) under the Porter-Cologne Water Quality Control Act; ¹ and (2) to prepare an environmental impact report ("EIR") to evaluate the potential impacts, cumulative impacts, mitigation measures and alternatives to ALR's proposed municipal landfill project, prior to taking any action on the merits of ALR's application. The underlying issue on appeal is whether the California Environmental Quality Act ("CEQA") requires the State Board to prepare and consider an EIR before it may disapprove a project that might endanger state waters. We concur with the ruling of the lower court that CEQA imposes no such requirement, and affirm the judgment.

The History of the Action

For many years, ALR has operated a landfill on 80 acres of a 302-acre site in the central part of the San Gabriel Valley within the cities of Azusa and Irwindale. The ALR landfill is located in a sand and gravel quarry overlying the Main San Gabriel Groundwater Basin ("the Basin"), which supplies drinking water for the lion's share of the San Gabriel Valley's more than one million residents. The landfill is 23 miles from the notorious San Andreas Fault and within several miles of 4 other faults, including the Raymond and Sierra Madre Faults.

The instant saga began in 1960, when the Los Angeles Regional Water Control Board ("Regional Board") first issued WDR's authorizing ALR's predecessor, Azusa Rock and Sand Company, to deposit "ordinary household and commercial refuse" and "nonwater soluble nondecomposable inert solids" at the landfill site. Such waste is nominally classified "nonhazardous" under the current regulatory scheme (see Cal.Code Regs., tit. 23, §§ 2520 (Table 2.1), 2523, 2524), but typically contains known contaminants found in many commonly used household and automobile-related products. Leachates from the decomposition of such nonhazardous solid waste can render groundwater unfit for domestic purposes. ² In fact, pollution of the Basin already poses a significant threat to public health, and consequently, the Basin is on the U.S. Environmental Protection Agency's ("EPA") national priority list for cleanup under the federal superfund program.

ALR never used the entire 302-acre site for disposal of solid nonhazardous wastes. It limited such deposits to an 80-acre portion of the property.

In November 1984, under authority of the Porter-Cologne Act the State Board promulgated new regulations concerning "water quality aspects of waste discharge to land." (Cal.Code Regs., tit. 23, §§ 2510-2601 ("Chapter 15").) The requirements of Chapter 15 were far more stringent than the WDR's under which the landfill had been operating since 1960.

In July 1986, the Regional Board issued Order No. 86-59, which temporarily limited ALR's disposal of nonhazardous solid waste to the 80-acre portion of the landfill site historically used for that purpose, pending submission and approval of WDR's for use of the remainder of the site complying with Chapter 15. Subsequently, ALR sought approval from the Regional Board of WDR's for disposal of nonhazardous solid waste on all 302 acres of the landfill site, proposing a clay liner and leachate collection and removal system to prevent groundwater pollution. At first, the Regional Board rejected ALR's proposal.

ALR submitted revised WDR's proposing additional measures to fortify its waste containment system at the landfill site. The Regional Board then approved the revised WDR's in November 1988 in Order No. 88-133, allowing disposal of Class III waste (nonhazardous solid waste and inert waste) on the whole 302 acres. (Cal.Code Regs., tit. 23, § 2520, Table 2.1.)

Respondent, the Main San Gabriel Basin Watermaster ("Watermaster"), petitioned the State Board for rescission of the order approving ALR's revised WDR's. The petition was supported, among others, by respondents, the Metropolitan Water District of Southern California ("MWD") and the Environmental Defense Fund ("EDF"). In response to concerns expressed by the State Board, ALR proposed additional features to protect against degradation and contamination of groundwater and offered to make sizeable capital contributions to offset the cost of building groundwater treatment plants in the Basin. In October 1989, the State Board denied the Watermaster's petition and approved ALR's project, with amendments to the WDR's. The State Board's order, No. 89-17, included findings: (1) that ALR's proposed containment system, including a ground water barrier and liner, would "adequately protect water quality"; and (2) that ALR's agreement to pay the costs of constructing treatment plants "would serve as an additional mitigation measure to offset whatever risks to water quality remain[ed]."

The Watermaster, MWD, EDF and the Upper San Gabriel Valley Municipal Water District ("Upper District") filed petitions for writ of mandate in the superior court seeking rescission of the State Board's order approving revised WDR's for the expansion of ALR's nonhazardous solid waste landfill from 80 to 302 acres (Super.Ct. No. C743096). The superior court denied relief.

In an unpublished opinion filed January 14, 1991, we reversed. (Upper San Gabriel Valley Municipal Water District v. State Water Resources Control Board (Jan. 14, 1991) B050366.) We held that the near tripling of ALR's solid waste disposal operation was a " 'new project,' " which did not fall within the " 'ongoing project' " or " 'existing facilities' " exemptions of CEQA. Therefore, "[t]he failure to prepare an EIR was a prejudicial abuse of discretion." We directed the superior court to issue a peremptory writ of mandate requiring the State Board to vacate its Order No. 89-17 and "to permit no further expanded dumping by [ALR] until the requirements of CEQA have been fully complied with in a manner consistent with this opinion."

On February 21, 1991, the State Board complied with the writ of mandate issued by the superior court by adopting Order No. 91-01, ordering ALR to refrain from depositing nonhazardous solid wastes in the proposed expansion area pending compliance with the requirements of CEQA. On March 6, 1991, the State Board appended a copy of Order No. 91-01 with its return to the writ of mandate, filed in the superior court. No objections were made to the State Board's showing of compliance with the judgment.

In May 1991, by letter directed to legal counsel for the Watermaster and ALR, the State Board solicited comment, inter alia, on the authority of the State Board to prohibit further discharges at the ALR landfill without going through the CEQA process. The State Board received numerous written responses both for and against prohibiting expanded use of the landfill without full CEQA review. On June 6, 1991, the State Board held a workshop where the subject was discussed at length by the four sitting board members, with input from representatives of ALR, the Watermaster, and other interested organizations and governmental agencies, as well as private citizens.

On June 14, 1991, the State Board notified the parties it would render a decision based on the administrative record developed in connection with the adoption of Order No. 89-17, augmented by the record before the courts during writ of mandate and appellate proceedings challenging that order. The State Board also invited the parties to submit further written comments on the documents filed during judicial proceedings. The parties, including ALR, did so.

On July 12, 1991, the State Board notified the parties that it would hold a public hearing and special board meeting on July 24, 1991, to review ALR's expansion petition. A copy of a draft order disapproving the project was appended to the notice. The draft order prompted additional correspondence among the State Board and representatives of interested parties.

At the July 24, 1991, hearing, the State Board heard arguments and received additional evidence concerning its proposed disapproval of the proposed landfill...