IT CORPORATION v. SOLANO COUNTY BOARD OF SUPERVISORS (1990)

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 hazardous waste disposal facilities” in the face of “increasing demand․”  (§ 25146;  see Casmalia Resources, Ltd. v. County of Santa Barbara (1987) 195 Cal.App.3d 827, 833–836, 240 Cal.Rptr. 903.)  Article 4.5 prohibits local governments from amending a land use permit to impose “additional restrictions on the types of hazardous waste” that an existing facility is authorized to accept (§ 25149.1) or to close a hazardous waste facility absent a finding by the director of the State Department of Health Services that it presents “an imminent and substantial endangerment to health and the environment.”  (§ 25149.)

Two sections of article 4.5 state that, except as otherwise specifically provided, the legislation was not intended to invalidate local land use regulation of hazardous waste facilities.   Section 25147 states:  “Except as expressly provided in Section 25149, it is not the intent of this article to preempt local land use regulation of existing hazardous waste facilities.”   Section 25149, subdivision (a), which requires state approval to close a hazardous waste facility, again makes clear that local governments retain the right to enforce land use regulations affecting hazardous waste sites:  “[N]othing in this section authorizes an operator of that facility to violate any term or condition of a local land use permit or any other provision of law not in conflict with this section.”

 The requirement of a buffer zone in a land use permit for a hazardous waste facility falls within the category of land use restrictions that local governments are expressly authorized to enforce under this statutory authority.   Like the setback restrictions which are commonly included in conditional use permits, the buffer zone serves a reasonable purpose by making the permitted facility more compatible with other surrounding uses.  (See Gov.Code § 65850, subd. (e);  People v. Perez (1963) 214 Cal.App.2d Supp. 881, 885, 29 Cal.Rptr. 781.)   The Commission thus acted within the sphere of authorized land use regulation to the extent that it ordered IT to “immediately cease using” all disposal areas which encroach upon the 200–foot buffer.

 We are also of the opinion that the county properly directed IT to “close” the disposal sites within the buffer zone.   The word “close” as here used is, of course, a term of art denoting compliance with a formal administrative process and performance of specific regulatory requirements designed both to minimize the need for future maintenance and to control future leakage of hazardous waste from a site.  (Cal.Code Regs., tit. 26 § 22–67211.)   If the County could not order the measures required to remedy the effect of past encroachments in the buffer zone, it could not effectively enforce the conditional use permit.   Recognizing the need for compliance with closure requirements, the trial court properly ruled that “[t]he Board may ․ direct Petitioner to submit to the appropriate state agencies, within ninety (90) days, one or more plans by which Petitioner proposes to remedy the non-compliance.”

But the County here has gone beyond ordering the operator to comply with applicable regulatory requirements to effect a proper closure of the encroaching sites;  it attempts to dictate the method of closure.   The Commission order states:  “IT must submit, within 90 days, plans for clean closure, i.e. removal of all wastes and contaminated soils, of all waste disposal areas within the buffer․”  (Emphasis added.)   The portion of the order requiring “clean closure” of encroachments in the buffer zone presents an issue of state preemption which requires close analysis.

 Before discussing the general principles governing state preemption, however, we turn to the County's argument that section 25149, subdivision (a), describes the full extent of state preemption.   The subdivision provides that no local government “may enact ․ any ordinance, regulation, law, license, or permit relating to an existing hazardous waste facility so as to prohibit or unreasonably regulate the disposal, treatment, or recovery of resources from hazardous waste ․ [unless the State Department of Health Services determines that the facility endangers] health and the environment.”  [Emphasis added.]   Seizing upon this language, the County argues that a local government is authorized to adopt any regulation that does not prohibit or unreasonably regulate a hazardous waste facility.

We understand section 25149 differently.   We read it, not as establishing an exclusive statutory standard of state preemption, but rather as adding a specific restriction that may sometimes apply to local activities otherwise beyond the reach of state preemption.   A perusal of the relevant legislative history convinces us that, concerned with the potential impact of local land use regulations on a matter of vital statewide interest, the Legislature acted to limit the power of local government to close or unreasonably restrict the use of hazardous waste disposal facilities.

We find nothing in the holding of Casmalia Resources, Ltd. v. County of Santa Barbara, supra, 195 Cal.App.3d 827, 240 Cal.Rptr. 903, inconsistent with our interpretation.   The county there enacted an ordinance requiring the operator of a hazardous waste facility to conduct a monitoring program to detect off-site leakages of toxic substances.   The operator challenged the ordinance as being preempted by state law.   Considering first whether section 25149 expressly preempted the ordinance, the court concluded “that the Legislature did not intend to preempt reasonable local regulation which does not prohibit the disposal and treatment of toxic waste.”  (Id. at p. 836, 240 Cal.Rptr. 903.)   Despite certain broad language, the court recognized by clear implication that section 25149 coexists and is compatible with constitutional standards of preemption.   After finding no express statutory preemption, the court proceeded to reject an argument that state law so fully occupies the field of toxic waste monitoring as to preempt the local ordinance.  (Id. at p. 837, 240 Cal.Rptr. 903.)

Our analysis differs from Casmalia only in sequence:  we choose to consider first the general constitutional principles governing preemption of local regulation, and then to address the more specific restriction of section 25149.

Article XI, section 7, of the State Constitution provides that “[a] county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws.”   Where no explicit conflict or duplication exists, the validity of local regulations must be evaluated under the principles of implied preemption.  “There are three tests:  ‘(1) the subject matter has been so fully and completely covered by general law as to clearly indicate that it has become exclusively a matter of state concern;  (2) the subject matter has been partially covered by general law couched in such terms as to indicate clearly that a paramount state concern will not tolerate further or additional local action;  or (3) the subject matter has been partially covered by general law, and the subject is of such a nature that the adverse effect of a local ordinance on the transient citizens of the state outweighs the possible benefit to the municipality.’ ”  (People ex rel. Duekmejian v. County of Mendocino (1984) 36 Cal.3d 476, 485, 204 Cal.Rptr. 897, 683 P.2d 1150.)

 In measuring the Commission's “clean closure” order against these standards, we begin by reviewing the Resource Conservation and Recovery Act of 1976.  (42 U.S.C. § 6901 et seq.)   Regulations promulgated by the Environmental Protection Agency pursuant to the Act establish, inter alia, performance standards for the closure of hazardous waste sites and require operators of hazardous waste facilities to submit for that Agency's approval a written closure plan backed by financial guarantees of performance.  (40 C.F.R., part 264, subparts G and H.)   These closure regulations, however, do not apply to states—such as California—whose hazardous waste programs have been approved by the Environmental Protection Agency.  (40 C.F.R. § 264.1(f).)

Sections 25159 and 25159.5 authorize the State Department of Health Services to adopt “necessary regulations which will allow the state to receive and maintain authorization to administer a state hazardous waste program in lieu of the federal program” under the Resource Conservation and Recovery Act of 1976.   Specifically addressing the sensitive question of site closure, section 25246 requires operators of hazardous waste facilities to submit “hazardous waste facility closure and postclosure plans” to the State Department of Health Services;  section 25248 requires the operator to carry out approved plans;  and section 25245 demands that operators provide financial assurances, such as bonds or letters of credit, “to provide for the cost of closure and subsequent maintenance of the facility.”   The regulations of the State Department of Health Services issued pursuant to these statutes generally track parallel provisions in federal regulations, but they also provide detailed and technical regulations of many specific activities.  (Cal.Code Regs., tit. 26, §§ 22–67001 through 22–67035 and §§ 22–67210 through 22–67220.)   Most pertinent to the present case, California Code of Regulations, title 26, section 22–67316, regulates the closure of surface impoundments—such as the ponds encroaching in the buffer zone here—and specifies that the operator must “remove or decontaminate all waste residues” left by the past storage of liquid wastes.

These state regulations regarding site closure appear on their face to be comprehensive.   We have found in them no aspect of the problem left unregulated nor any provision that defers to local regulations.   And we are of course mindful that there are in fact strong policy reasons for regulating site closure in a single comprehensive system.   First, the effective administration of the regulatory system requires that financial assurances of performance be tailored to actual closure and post-closure requirements.   This purpose can best be achieved if the agency expecting such assurances also fixes the regulatory requirements.   Further, site closure directly affects statewide capacity of hazardous waste facilities.   Not only does the closure of a site subtract it from the State's capacity for hazardous waste disposal, but the removal of contaminated material in the process of closure will have an impact on the capacity of other hazardous waste facilities.   In our view, therefore, it is clear that the state could not carry out an effective program, assuring that the capacity of hazardous waste facilities is adequate to handle the supply of hazardous wastes, without controlling both the manner and extent of closure of existing sites.

We conclude that, by specifying the method of closure, the Commission's order enters a field impliedly preempted by state law, for the subject matter has been so fully covered by state law as clearly to have become a matter of exclusive statewide concern.  (Cf. ENSCO, Inc. v. Dumas (8th Cir.1986) 807 F.2d 743;  Ogden Environmental Services v. City of San Diego (S.D.Cal.1988) 687 F.Supp. 1436.)

Perhaps implicitly recognizing the dominance of state regulation in this area, the County has sought to avoid the pitfall of preemption by ordering IT to submit “clean closure” plans to the State Department of Health Services for approval.   The order provides that “IT shall make any modification in those closure plans which may be required by the agencies and shall begin closure immediately upon the granting of all necessary approvals by the agencies and the County․  [¶] In the event that clean closure is not approved for one or more of the waste disposals areas within the 200 foot buffer, the Commission will reopen the hearings to review appropriate remedies at that time.”

While thus avoiding a direct conflict with the State Department of Health Services, the County still attempts to influence its decision by dictating the nature of IT's closure plans.   In so doing, the County exceeds its permitted power, which is limited in this respect to ordering IT to comply with applicable regulations to carry out a proper closure of the encroaching sites.

Having found the subject Commission order preempted by general state law, we need not address the issue of whether the order unreasonably regulates the hazardous waste facility within the meaning of section 25149.

 In its cross-appeal, IT claims that the trial court erred in rejecting its defenses of the statute of limitations, laches, and estoppel.   The defense of the statute of limitations is patently without merit.  “Since the violation charged was a continuing violation, the statute of limitations does not run.”  (City of Fontana v. Atkinson (1963) 212 Cal.App.2d 499, 509, 28 Cal.Rptr. 25.)   The defenses of laches and estoppel—both infrequently upheld against zoning violations (see City and County of San Francisco v. Pacello (1978) 85 Cal.App.3d 637, 149 Cal.Rptr. 705;  Pettitt v. City of Fresno (1973) 34 Cal.App.3d 813, 822, 110 Cal.Rptr. 262)—presuppose among other things that the County knew of the encroachments during the period IT operated the facility.   The record shows that the County learned of a boundary violation of J & J Disposal in 1971 which was later remedied to the County's satisfaction by the purchase of contiguous property.   But there was no documentary evidence clearly establishing that the County knew of the encroachments at issue here.   And while county officials frequently inspected the facility, their knowledge of the encroachments could not readily be inferred from in-field inspection, since the precise location of portions of the property was not always clear.   Properly applying the substantial evidence test in reviewing the County's decision, the trial court found that this rather ambiguous record failed to establish the equitable defense.  (Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 112 Cal.Rptr. 805, 520 P.2d 29;  1 Longtin (2d ed. 1987), California Land Use § 1.91[3], p. 149.)   We discern no error.

The judgment is affirmed.

FOOTNOTES

1.   All further statutory references are to this code unless otherwise specified.

2.   The order made removal of materials from the drum burial site conditional on a determination, following consultation with interested agencies, that materials could be safely removed.

NEWSOM, Associate Justice.

RACANELLI, P.J., and STEIN, J., concur.