Ogden Environmental Services v. City of San Diego

• Decision Date: 07 June 1988
• Docket Number: Civ. No. 88-0252-K(M).
• Citation: 687 F. Supp. 1436
• Parties: OGDEN ENVIRONMENTAL SERVICES, Plaintiff, v. CITY OF SAN DIEGO; City Council of the City of San Diego; Maureen O'Connor, Abbe Wolfsheimer, Gloria McColl, Ed Struiksma, Bruce Henderson, Ron Roberts, and Bob Filner, as Members of the City Council of the City of San Diego, Defendants.
• Court: U.S. District Court — Southern District of California

687 F. Supp. 1436

OGDEN ENVIRONMENTAL SERVICES, Plaintiff, v. CITY OF SAN DIEGO; City Council of the City of San Diego; Maureen O'Connor, Abbe Wolfsheimer, Gloria McColl, Ed Struiksma, Bruce Henderson, Ron Roberts, and Bob Filner, as Members of the City Council of the City of San Diego, Defendants.

Civ. No. 88-0252-K(M).

United States District Court, S.D. California.

June 7, 1988.

David L. Mulliken, Kristine L. Wilkes, Latham & Watkins, San Diego, Cal., for plaintiff.

C. Alan Sumption, Chief Deputy, City of San Diego, Litigation Div., San Diego, Cal., for defendants.

AMENDED MEMORANDUM DECISION AND ORDER

KEEP, District Judge.

This action arises out of the City of San Diego's ("City") denial of a conditional use permit to plaintiff Ogden Environmental Services ("Ogden"). In this motion, plaintiff moves for summary judgment on most of the causes of action in its complaint. This order addresses plaintiff's first cause of action for federal preemption, its fifth cause of action for violation of the California Environmental Quality Act and its twelfth cause of action for declaratory relief. Because a ruling on plaintiff's remaining causes of action would not provide plaintiff with any additional or different relief, the court declines to address these claims. For the reasons discussed below, the court grants plaintiff's motion for summary judgment on the first and fifth causes of action. The court also grants in part and denies in part plaintiff's motion for summary judgment on the twelfth cause of action for declaratory judgment.

FACTS¹

Plaintiff Ogden is a corporation involved in the development of new technologies for hazardous waste treatment. For the past few years, Ogden has been engaged in an attempt to obtain permission from various relevant public agencies to begin operating an incineration facility that will burn hazardous materials. The incinerator, known as a Circulating Bed Combustor, is located within an existing research facility owned by GA Technologies on the north side of Genesee Avenue between John J. Hopkins Drive and Interstate 5 within the City of San Diego. Since 1964, this area has been designated by the City as a Scientific Research Zone, which is designed to encourage research and development activities and was intended to replace the conditional use permit procedure for this area.

In July, 1985, GA Technologies, from whom plaintiff Ogden subsequently purchased the Circulating Bed Combustor, submitted an application for a research, development, and demonstration permit to the Environmental Protection Agency ("EPA") pursuant to the Resource Conservation and Recovery Act, 42 U.S.C. § 6901, et seq. Through this application, Ogden sought permission from the EPA to conduct hazardous waste incineration testing in an effort to demonstrate the capabilities of this technology for potential commercialscale use in the future. In April, 1986, the EPA issued a technical review of the Circulating Bed Combustor's performance based on two previous test burns which were conducted in May, 1984 and May, 1985. The EPA also undertook a risk assessment of the project and reviewed two other risk assessments done by the San Diego Air Pollution Control District and by Radian Corporation, concluding that "both the cancer and noncancer risks from emissions from the Ogden incinerator are acceptable in terms of EPA policy." (Plaintiff's Exhibit A at 534).

In July, 1986, the EPA sent a copy of a preliminary draft research, development and demonstration permit, which imposed a number of safety requirements, to the California Department of Health Services for its review. In August, the EPA issued a public notice of the draft permit and a Fact Sheet explaining the project. The public comment period ran from August 7, 1986 through October 6, 1986 and the EPA also conducted a public hearing in San Diego on September 8, 1986. On October 9, 1986, Ogden was notified that the Circulating Bed Combustor technology had been accepted into the EPA's Superfund Innovative Technology Evaluation demonstration program² pursuant to 42 U.S.C. § 9660(b). In January, 1987, the EPA issued a Responsiveness Summary which responded to comments received on the draft permit. On February 20, 1987, the EPA issued a final research, development and demonstration permit for the Ogden project which incorporated additional restrictions based on concerns raised during the public comment period. The agency also issued another Fact Sheet on the project which concluded that the permit "ensures that human health and the environment are adequately protected." On July 29, 1987, the EPA Administrator denied petitions for review of the agency decision granting the permit.

Ogden also applied for a research, development and demonstration permit from the California Department of Health Services in July, 1985 and reapplied again in August, 1986. Pursuant to the California Environmental Quality Act, Cal.Pub.Res.Code § 21000 et seq., the Department of Health Services, acting as the lead agency, undertook an initial study of the Ogden project. The City apparently agreed that the Department of Health Services should act as the "lead agency" in reviewing the project under the California Environmental Quality Act, with the City acting as a "responsible agency" as that term is defined by the statute.³ On March 26, 1987, the Department of Health Services held an interagency meeting on the project, which was attended by the City Manager as well as representatives from the City Planning Department, the San Diego County Department of Health Services, the City Fire Department, the San Diego Air Pollution Control District, and the Regional Water Quality Control Board. On May 19, 1987, the Department of Health Services completed its Initial Study which reviewed the test burn results and the three existing risk assessments, as well as the Department's own risk assessment, concluding that "the proposed facility will not have a deleterious effect on the environment." (Plaintiff's Exhibit C at 3087).

On May 22, 1987, the Department of Health Services, acting as the lead agency, issued a proposed Negative Declaration for the Ogden project, which under the California Environmental Quality Act means that the agency has found that the proposed project does not have a significant effect on the environment and an environmental impact report is not required. Cal.Pub. Res.Code § 21080(c).⁴ On the same day, the Department of Health Services also issued a draft research, development and demonstration permit for the project which, like the EPA permit, contained numerous restrictions designed to ensure protection of human health and the environment. The public comment period on the draft permit extended through July 16, 1987 and the Department held a public hearing on the project on June 26, 1987 at the University Towne Centre. On September 24, 1987, the Department of Health Services issued a Response to Comments on the draft permit and the proposed Negative Declaration and at the same time issued the requested research, development and demonstration permit. In addition to the many protective requirements, the permit explicitly states that the operation of the incinerator is for research and data collection only and that before each test series, Ogden must submit the San Diego Air Pollution Control District's risk assessment to the Department of Health Services and obtain written approval from the Department to conduct the test. On September 24, the Department of Health Services also issued a final Negative Declaration under the California Environmental Quality Act, meaning that no environmental impact report had to be prepared. Pursuant to Cal.Pub.Res.Code §§ 21108 and 21152, on September 25, 1987, the Department of Health Services filed a notice with the State Office of Planning and Research stating that the research, development and demonstration permit had been approved and that no environmental impact report was required.

In addition, the San Diego Air Pollution Control District has established a risk assessment model to evaluate the health impacts of various hazardous wastes which Ogden might propose to burn. In January, 1987, the Air Pollution Control District issued a permit to operate the Circulating Bed Combustor to burn coal and carbon refractory materials. This permit was revised and reissued in January, 1988 and formally establishes the procedure by which the Air Pollution Control District will analyze the proposed materials to be burned in each of Ogden's test burns. Test burns of material other than coal or carbon refractory material will be approved by the Air Pollution Control District only if its analysis indicates no adverse air quality impacts. On June 30, 1987, the San Diego County Department of Health Services issued a HAZMAT permit to Ogden to establish and operate a hazardous materials establishment pursuant to San Diego County Code of Regulatory County Ordinances § 68.905. Finally, on September 3, 1987, the City Fire Department issued a CEDMAT permit to Ogden for hazardous materials storage at the facility pursuant to San Diego Uniform Fire Code § 80.102-103.

While Ogden sought and obtained these permits from various agencies, the City was kept abreast of permitting developments and eventually chose to interject itself into the decision-making process. On August 20, 1986, the City Council's Public Services & Safety Committee recommended that the City Council adopt a resolution directing the City Manager to develop a permitting process for hazardous waste treatment facilities. On October 13, 1986, after the EPA's public hearing on the proposed Circulating Bed Combustor project, the City Council adopted a resolution directing the City Manager, the City Attorney and the Planning Department to report on methods for developing a permitting and environmental review process for projects related to the development or implementation of toxic waste management...