People v. Sangani

• Decision Date: 18 February 1994
• Docket Number: No. A059233,A059233
• Citation: 28 Cal.Rptr.2d 158,22 Cal.App.4th 1120
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Bhupat SANGANI et al., Defendants and Appellants.

Page 158

28 Cal.Rptr.2d 158

22 Cal.App.4th 1120

The PEOPLE, Plaintiff and Respondent, v. Bhupat SANGANI et al., Defendants and Appellants.

No. A059233.

Court of Appeal, First District, Division 3, California.

Feb. 18, 1994.

Richard M. Ross, McDonough, Holland & Allen, Sacramento, for defendants and appellants.

Daniel E. Lungren, Atty. Gen., George Williamson, Roderick E. Walston, Chief Asst. Attys. Gen., Ronald A. Bass and Theodora Berger, Sr. Asst. Attys. Gen., Laurence K. Sullivan, Supervising Deputy Atty. Gen., Juliet Haley, Edwin F. Lowry, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

WHITE, Presiding Justice.

Defendant Bhupat Sangani is the owner and operator of Leedy Plating Corporation, ¹ a metal plating plant located on San Leandro Street in Oakland. Both Sangani and Leedy Plating were charged by information with six criminal violations of the California Hazardous Waste Control Act (hereafter the Hazardous Waste Act). (HEALTH & SAF.CODE, § 25100² et seq.; Cal.Code Regs., former tit. 22, § 66001, ³ et seq.) The Hazardous Waste Act regulates the transportation and disposal of hazardous waste in California and imposes criminal liability for violation of certain of its provisions. (§§ 25189.5 to 25191; People v. Martin (1989) 211 Cal.App.3d 699, 703, 259 Cal.Rptr. 770.)

The prosecution case focused on two felony violations of the Hazardous Waste Act. First, the evidence showed that Sangani or his employees surreptitiously dumped hazardous waste from Leedy Plating directly into the East Bay sewer system. This was a violation of section 25189.5, subdivisions (a) and (b), which prohibit the disposal of any hazardous waste at a nonpermitted facility. ⁴ Second, the evidence established that Sangani recklessly stored cyanide-laced liquid waste in an open tank on a public sidewalk. This was a violation of section 25189.6, subdivision (a), which prohibits a person from storing or handling any "hazardous waste in a manner which cause[§ any] unreasonable Following defendants' bench trial, the trial court found defendants guilty of the charges outlined above and placed defendants on five years probation and imposed a total of $400,000 in fines. This timely appeal followed.

                risk of fire, explosion, serious injury, or death."   In addition, defendants were charged with, and found guilty of, three misdemeanor violations of the Hazardous Waste Act. 5
                

FACTS

On Monday morning, July 10, 1989, Pacific Gas & Electric employees reopened a trench they had dug the previous week on San Leandro Street in Oakland. ⁶ The workers had covered the trench the previous Friday with 3000-pound steel plates which they had welded together. At that time the trench was dry. However, when the workers reopened the trench on Monday morning they found approximately 300 gallons of an acidic smelling reddish liquid under a broken clay sewer pipe. The pipe had apparently broken over the weekend when a dirt "plug" the workers had left to support the pipe collapsed. The broken pipe led directly to the Leedy Plating shop. Dye tests showed that the sewer pipe was connected to an upstairs bathroom sink and toilet in Leedy Plating.

Law enforcement and hazardous materials specialists examined the trench and took samples of the liquid. The liquid was highly acidic (with a pH less than 2) and was consequently hazardous under California law. In addition, the liquid contained hazardous levels of chromium, cadmium, copper, nickel and zinc. Based on these findings, both defendants conceded the liquid was "hazardous" under California law.

The liquid found in the trench was consistent with waste rinses created in a plating shop. One would expect such wastes to contain each of the heavy metals found in the trench samples. Moreover, samples taken from one of the waste sumps at Leedy Plating on July 10, 1989, showed low metal levels indicating that the sump had recently been washed out. It would have been possible to have pumped the wastes from the sump into the sewer system through the upstairs bathroom fixtures.

Defendant Sangani had numerous prior contacts with Alameda County waste water officials. Indeed, the waste water officials had identified the sewer lateral leading to the upstairs bathroom as a possible point of surreptitious disposal of waste. Consequently, Sangani's waste water discharge permit specifically required that he seal that sewer lateral. Although Sangani reported that he had sealed this sewer lateral, he had not done so.

When emergency response personnel arrived at the scene on July 10, they also found an open metal tank (sometimes called a "dumpster" in trial testimony) on the public sidewalk adjacent to Leedy Plating. The tank contained about 18 to 24 inches of liquid. Trash--which might have been thrown in by passers by--was floating on the liquid. Test samples established that the liquid contained high concentrations of cyanide. One and one-half tablespoons of the liquid taken internally would kill an "average teenager" in 30 minutes. Moreover, the liquid could cause permanent damage if it were splashed in an eye.

Two Leedy Plating employees told police that the tank belonged to the shop. Mr. Sangani had directed one of the employees to put the tank outside during the previous week. A Pacific Gas and Electric employee who was working on the street remembered that the tank was on the sidewalk during the Inside the plating shop, investigators discovered numerous drums of what appeared to be stored hazardous waste. Many of these drums were either unlabeled or lacked a notation of the beginning accumulation dates. (See tit. 22, § 66508, subds. (a)(2), (a)(3).) In addition, some of the waste storage drums were not protected by a secondary containment system to catch overflow or spillage from the primary containers. (Tit. 22, § 67245.) Finally, there was evidence--discussed in greater detail later in this opinion--that hazardous waste had been stored at Leedy Plating for more than 90 days, in violation of title 22, section 66508.

previous week, and Mr. Sangani's own daughter stated that the tank had been placed on the sidewalk the previous Friday and had therefore been outside over the weekend.

Defense

The defense consisted of three primary prongs. First, defendants argued (through expert testimony) that the materials found in the dumpster/tank and inside the plating shop were not "waste" and consequently were not subject to regulation under the Hazardous Waste Act. Second, defendants presented evidence that the liquid found in the trench was chemically inconsistent with the wastes generated by Leedy Plating and that the liquid more likely came from a nearby (though long closed) steel processing plant. Finally, defendants contended that discharge of their hazardous waste directly into the sewer system was permitted by the "domestic sewage exception" under the federal Resource Conservation and Recovery Act, and, in any event, was not a violation of section 25189.5 because the sewer led to a permitted facility (a publicly-owned sewage treatment plant).

The trial court resolved the legal issues and the conflicts in expert testimony against the defendants. Consequently, the court found defendants guilty of the two felonies (§§ 25189.5, subds. (a) and (b), 25189.6) and three misdemeanors (§ 25190) described above.

DISCUSSION

I

Defendants' primary contention on appeal is aimed at their felony conviction under section 25189.5 for dumping hazardous wastes into the East Bay sewer system. Simply put, defendants contend that the Hazardous Waste Act permits the discharge of hazardous wastes into a sewer system which is serviced by a publicly owned treatment works (POTW). This argument is based on the so-called "domestic sewage exemption" established by the federal analog to the Hazardous Waste Act (the Resource Conservation and Recovery Act (RCRA)), and on defendants' belief that a POTW is a permitted facility for receiving hazardous waste within the meaning of section 25189.5, subdivisions (a) and (b). We conclude that California has not adopted an unrestricted domestic sewage exemption, and that the POTW in this case is not a permitted facility for the purpose of accepting hazardous waste through sewage lines.

A. The Domestic Sewage Exemption.

In order to understand defendants' argument, it is first necessary to briefly outline the law controlling industrial discharges to public sewers. In general, industrial discharges to public sewers are regulated by the federal Clean Water Act. The Clean Water Act establishes a permit system for point source discharges to surface waters, known as the National Pollutant Discharge Elimination System (NPDES). (2 Manaster & Selmi, Cal. Environmental Law and Land Use Practice (1993) § 31.24, p. 31-35.) In California, NPDES permits are administered by the state. (Id., at §§ 31.24 & , pp. 31-35 to 31-37.) All point discharges to navigable waterways are regulated and require permits under the NPDES, including discharges of treated sewage by POTWs. (Elliott, Henderson, Vance & Weinsoff, Hazardous Materials Program Commentary: California (1988) STP Specialty Technical Publishers Inc., p. C4 1 [hereafter Hazardous Materials Commentary].) Industrial users who discharge into sewers leading to POTWs are not required to obtain NPDES permits. However, POTWs are required to impose "pretreatment standards" on industrial users. These pretreatment standards are necessary to protect the operation and integrity of the POTWs, and to ensure compliance with their own NPDES permits and discharge limitations. ⁷ Thus, the POTWs directly regulate the pollutants that an industrial user may discharge into the sewer system by enforcing pretreatment standards and monitoring the user's effluent to ensure compliance. (Hazardous Materials Commentary, supra, at pp. C4 1-2.)

Because the Clean Water Act regulates sewered industrial waste, the federal analog to California's Hazardous Waste Act--the RCRA ⁸...