People v. Todd Shipyards Corp.

• Decision Date: 09 April 1987
• Citation: 192 Cal.App.3d Supp. 20,238 Cal.Rptr. 761
• Court: California Superior Court
• Parties: 192 Cal.App.3d Supp. 20 The PEOPLE, Plaintiff and Appellant, v. TODD SHIPYARDS CORPORATION et al., Pacific Shipyards Corporation; Cliff E. Jones; Len M. Thorell; Ed J. Peterson; Earl J. Walker; Frank B. McElhill; William Flicker; Ed Hickey; M. Duane Wilson; Al Kordell; Cal Simmons and Doug Lawhead, Defendants and Appellants. CR A22538. Appellate Department, Superior Court, Los Angeles County, California

Page 761

238 Cal.Rptr. 761

192 Cal.App.3d Supp. 20

The PEOPLE, Plaintiff and Appellant, v. TODD SHIPYARDS CORPORATION et al., Pacific Shipyards Corporation; Cliff E. Jones; Len M. Thorell; Ed J. Peterson; Earl J. Walker; Frank B. McElhill; William Flicker; Ed Hickey; M. Duane Wilson; Al Kordell; Cal Simmons and Doug Lawhead, Defendants and Appellants.

CR A22538.

Appellate Department, Superior Court, Los Angeles County, California.

April 9, 1987.

James K. Hahn, City Atty., Greg Wolff, and Steven Tekosky, Deputy City Attys., for plaintiff and appellant

Pillsbury, Madison & Sutro, Michele B. Corash, Ronald E. Van Buskirk, Michael J. Steel, Teresa J. Reid Rambo, San Francisco, for defendants and appellants.

OPINION

SOVEN, Judge.

SUMMARY

In this case, we must decide whether federal law prohibits California from regulating the storage of a hazardous substance, polychlorinated biphenyls (PCB's). We conclude that the applicable federal law does not preempt California laws on the subject, and that, as a result, the trial court erred in sustaining defendants' demurrers to the complaint.

Defendants, officers and employees of Todd Shipyards Corporation and the corporation (Todd Shipyards), are charged with multiple counts of violating the California Hazardous Waste Control Act (Health & Saf. Code, § 25100 et seq.) ¹ specifically transporting a hazardous waste without a permit, and storing a hazardous waste without a permit.

The trial court sustained defendants' demurrers to the unlawful storage counts. The trial court also denied defendants' motions to quash a search warrant, to suppress evidence (excepting certain documents), and to dismiss the complaint. Defendants appeal from the orders denying the suppression and dismissal motions; the People appeal from the order sustaining defendants' demurrers.

We reverse the order sustaining the demurrers and affirm the orders denying defendants' suppression and dismissal motions.

FACTS

On October 19, 1983, an inspection and search warrant was issued on the basis of a 27-page affidavit prepared by Daniel Fresquez, a senior environmental health officer in the Hazardous Waste Control Program of the Los Angeles County Department of Health Services. The affidavit stated that: On September 11, 1983, Fresquez was called to a residential street in Van Nuys where fellow health inspectors showed him an oily black stain in the street, approximately one foot by three feet, and a long trail of the same substance approximately two blocks long. The substance was analyzed and found to contain an extremely hazardous level of PCB contamination.

Fresquez went to the residence nearest the spill and spoke to a man who told him that five days earlier, a friend had picked him up in a truck which contained drums of an oily material which was leaking into the street. This truck was traced to a company, Park Metals, in Chatsworth.

Fresquez went to Park Metals that same day and spoke to the owner, William Park. Park stated that he had picked up some transformers at Todd Shipyards in San Pedro and was in the process of draining the transformers, dismantling them, and disposing of the drained transformer oil. Fresquez saw six large transformers at the location. The identification plates which usually indicate whether the transformers contain PCB's had been removed. Park was unable to produce the manifests which are required for the transportation of hazardous wastes by Health and Safety Code section 25160. Park did produce a routine shipping manifest which indicated that the transformers had been picked up at Todd Shipyards on August 31, 1983. Park also stated that a barrel of the oil drained from the transformers had been sent to the Mobile Smelting Company in Mojave for incineration. Samples of a black, oily substance gathered from a large puddle near one of the transformers and from the truck which had been earlier identified revealed extremely hazardous levels of PCB's.

A short time later, Fresquez spoke by telephone to William Huffman, the owner of Mobile Smelting Company. Huffman stated that he had received 16 drums of oil from Park Metals. Huffman stated that William Park had told him that the oil contained PCB's.

On September 13, 1983, Fresquez conducted a warrantless inspection of the Todd Shipyards facilities in San Pedro. There, defendant Douglas Lawhead confirmed that the transformers at Park Metals had come from Todd Shipyards and produced a routine shipping manifest reflecting the transaction. Upon request, employee Rocky Bonura showed Fresquez where these transformers had been stored prior to shipment. Seven transformers were currently in this storage yard, one of which was tipped over and leaking. The transformers were not labeled and were not stored in a posted secure area, as required by California Administrative Code, title 26, section 66535. None of the four Todd Shipyards employees Fresquez asked could state with certainty how many other transformers were stored at the facility. Several samples were taken from leaking transformers one of which revealed hazardous levels of PCB's.

On September 14, 1983, William Park of Park Metals appeared at a Los Angeles County Health Department Hazardous Waste Control Program hearing and stated that Tom Logudice of Tom Logudice Machinery Sales had met him at Todd Shipyards and directed him to the transformers which he then hauled away. Park stated that he had agreed to pay Logudice $1,600 for the copper coils salvaged from within the transformers.

On September 15, 1983, Fresquez returned to Todd Shipyards and, pursuant to California Administrative Code, title 26, section 66328 and Health and Safety Code section 25185, requested the production of documents pertaining to the disposal of the PCB transformers. Employee Bonura produced a bid proposal by the General Electric Company Instrumentation Group, which listed the cost of disposing of six PCB transformers as approximately $43,000. Another document reflected an offer by Tom Logudice Machinery Sales to sell to Todd Shipyards two new transformers, and offering a "trade-in allowance" of approximately $20,000 for nine used transformers in Todd Shipyards' possession. Employee Bonura refused to allow Fresquez to copy these documents. Further, although Todd Shipyards employee Rich Boatman had stated two days earlier that the General Electric Company Instrumentation Group had conducted tests to determine which transformers contained PCB's and that there was a log indicating the results of these tests, Bonura stated that both the log and test data did not exist.

On October 14, 1983, Fresquez contacted the California Department of Health Services and learned that neither Park Metals Company, Todd Shipyards, Tom Logudice Machinery Sales, nor Mobile Smelting Company were licensed to transport hazardous wastes. Fresquez also learned that none of these companies were licensed to treat, store, or dispose of PCB or other hazardous wastes.

Fresquez concluded in the affidavit that he had probable cause to believe and did in fact believe Todd Shipyards was engaged in the storage of hazardous wastes in violation of Health and Safety Code section 25191, subdivision (b)(2), and that he had probable cause to believe that Todd Shipyards had documents in its possession relating to the storage, transportation, and disposal of hazardous wastes which he was authorized to inspect pursuant to Health and Safety Code section 25185.

On October 19, 1983, a magistrate issued the requested inspection and search warrant. The warrant stated that there existed "probable ... cause for believing that there are conditions in and upon the ... described premises of Todd ... which conditions constitute a violation of Health and Safety Code sections 25100 et seq., which relate to public health and safety." Following a description of the premises, the warrant stated: "Said inspection shall include any and all equipment or material, by whatever name known, owned, operated or leased by Todd Pacific Shipyards Corporation, capable of being utilized to violate, or facilitate the violation of the aforementioned Health and Safety Code statutes. Said inspection shall encompass the physical condition, labeling, designations, or any wording on the above-mentioned equipment, storage tanks or materials. Said inspection may allow the on-premises operation of equipment, valves or material, the on-premises securing and removal of samples of possible industrial waste or hazardous waste, the taking of photographs, and the inspection and photocopying of records relating to the violation of law set forth hereinabove, specifically including records, memoranda, notes, logs, brochures, manifests, flow charts or schematics, weighmaster receipts, purchase orders, billings, proposals, contracts, test data, waste analysis, plans, routine inspection reports, self-monitoring reports, manifests, work orders, and account or log books relating to volumes of wastes received, processed, treated, generated, hauled, disposed or stored at the above-mentioned facility. In addition, said inspection is to include any payroll and corporate records relating to the relationship of employees with Todd Pacific Shipyards Corporation. Said inspection shall also encompass the inspection and copying of computer tapes of the operation of any computer for the purpose of producing a printout of records relevant to the purposes set forth herein."

On the next morning, October 20, 1983, Fresquez and seven other officials from interested agencies executed the inspection and search warrant at Todd Shipyards. Two Los Angeles deputy city attorneys, Richard Kravetz and Barry Groveman, were also present in an advisory capacity. The search team broke up into a number of inspecting parties. Fresquez went first to Bonura's office and was met there by defendant Frank McElhill. Fresquez gave defendant McElhill a copy of the warrant.

Documents kept in the offices of several ...