Opponents of Hazardous Materials Dump Win Right to State Hearing

Opponents of a proposed expansion of a hazardous waste dump in rural Kern County took the proper steps to earn a hearing before a state-appointed appeals board, the Fifth District Court of Appeal has ruled in one of its rare published opinions. Residents of the unincorporated community of Buttonwillow wanted a state board to decide whether Safety-Kleen could expand its facility on the western edge of the San Joaquin Valley. The decision in this case is somewhat academic because Gov. Davis appointed a seven-member appeals panel last year, and the board has conducted 14 days of public hearings since then. A decision from the board is due this month. Still, the case is important because it is the first of its kind decided by a state appellate court. The unanimous three-judge panel attempted to sort through the apparently conflicting requirements that applicants must meet to get a hearing before a state board. In October 1991, Safety-Kleen (then known as Laidlaw Environmental Services, Inc.) applied to Kern County for a conditional use permit to modify and expand the Buttonwillow facility. Compounding the situation was the later disclosure that Safety-Kleen had accepted radioactive debris for some time. The legality of that activity is unclear. In December 1994, the Kern County Board of Supervisors approved the conditional use permit. The following month, an association of Buttonwillow residents called Padres Hacia una Vida Mejor (Parents for a Better Life) and eight individuals filed an appeal under the Tanner Act (Health and Safety Code § 25135 et seq. and § 25199 et seq.) with the governor's office. The Tanner Act governs the siting and operation of hazardous materials facilities. Project opponents acknowledged their petition was not ready for consideration because Safety-Kleen still needed state permits for toxic substances, air pollution and water quality. The California Environmental Protection Agency said the appeal was filed on time but could not be heard until all necessary state permits were approved. In June 1999, Safety-Kleen completed the regulatory gauntlet and received an "authority to construct" permit from the San Joaquin Valley Unified Air Pollution Control District. In July 1999, Padres informed the governor that the project had all its permits. The opponents requested the governor convene an administrative appeal board, but they received no response. They sent another letter in November 1999 and again heard nothing. So they sued the governor. After Padres filed the lawsuit, Cal EPA rejected the appeal because the opponents did not resubmit the original application. Kern Court Superior Court Judge Roger Randall ruled for the opponents and directed the governor to convene a "Tanner board." The governor would eventually do just that, but Kern County and Safety-Kleen appealed the trial court's decision. They argued that the project opponents did not meet the requirements of the administrative appeal process. The Fifth District called the statutory process a "Catch-22" and upheld the lower court ruling. The opponents met the first mandatory step of the process when they filed an appeal within 30 days of the Board of Supervisors' decision. The second step was satisfied when the governor's office determined within five working days whether all state permits had been obtained, the court ruled. At this point, the story of the process becomes confusing. The county and Safety-Kleen argue that the third step was for Padres to resubmit its application after all state agency permits were granted. The original application was incomplete because, at the time Padres filed the application, the project lacked state permits, the county and Safety-Kleen argued. But the opponents contended that the next step was for the governor to convene the Tanner board. The court sided with Padres. If an application must show that all state permits have been granted, then it could not be filed within the 30-day time limit from the county's decision — a classic Catch-22, the court noted. To get around this paradox, Cal EPA retained the opponents' original application and required them to resubmit their appeal once all state permits were awarded. However, Cal EPA never notified opponents that resubmission was required. Furthermore, the court ruled, the Tanner Act does not mandate this resubmittal, nor was it a valid administrative regulation. "[S]ubdivision (e) of § 25199.9 clearly imposes a mandatory obligation on the Governor or his designee to convene an appeal board if all state agency permits have been obtained by the proponent of the project," Justice James Ardaiz wrote for the court. "We hold that the third step mandated by the Tanner Act under the facts of this case was for the Governor to convene a Tanner Board after the project obtained all required state agency permits." The court rejected arguments from the county and Safety-Kleen that indefinite delays would result if the court did not enforce appeal deadlines. "A delay will only arise if the Governor or his designee do not perform their obligation of convening a Tanner Board once all the permits have been obtained," the court ruled. Finally, the court rejected arguments that the opponents waived their right to challenge the requirement to resubmit the original application. The January 1995 letter from Cal EPA "is ambiguous and does not state that Padres's timely filed appeal will be rejected if it is not ‘resubmitted' within a specified amount of time after the last state agency permit is obtained by the project," Ardaiz wrote. The Case: Padres Hacia una Vida Mejor v. Davis, Nos. F036205, F037576, F037832, F037828, 02 C.D.O.S. 2361. Filed March 12, 2002. The Lawyers: For Padres: Luke Cole, (415) 495-8990. For Kern County: Stephen Schuett, county counsel's office, (661) 868-3837. For Safety-Kleen: J. Martin Robertson, Gray, Cary, Ware & Freidenrich, (415) 836-2537.