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Ogden Envtl. Servs. v. San Diego, City of

Citation: 18 ELR 21442
No. No. 88-0252-K(M), 687 F. Supp. 1436/(S.D. Cal., 06/07/1988) Motion for summary judgment

The court holds that San Diego's standardless refusal to permit use of a hazardous waste incinerator is preempted by the Resource Conservation and Recovery Act (RCRA) and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The incinerator, intended for research and demonstration purposes, had been approved by the Environmental Protection Agency (EPA) and California state authorities. The court notes RCRA's policy in favor of alternatives to land disposal of hazardous waste, and the similar purpose behind CERCLA's program for Superfund Innovative Technology Evaluation, of which this incinerator is a part. While Congress did not expressly preempt state or local regulation, did not impliedly occupy the entire field of hazardous waste regulation, and enacted RCRA § 3009 which envisions more stringent regulatory requirements that may be imposed by local governments, RCRA does impose limits on the authority of local governments. An outright local ban on such incinerators would be impermissible. The court holds that local governments may not deny permits for unspecified general reasons where EPA has already balanced the effects on health, safety, and the environment and found them to be acceptable. Here, San Diego has not articulated any standards to guide its issuance of hazardous waste incinerator permits, but rather denied the permit based on a general finding that the conclusions of EPA and state authorities were not necessarily adequate to meet local standards. In doing so, San Diego has indefinitely delayed start-up of the incinerator and frustrates the congressional objective of accelerated review of alternatives to land disposal. San Diego had ample time to develop its own regulatory program and EPA and state authorities kept San Diego officials notified and involved in their own processing of permits.

Similarly, San Diego cannot insist on an environmental impact report under the California Environmental Quality Act. The lead agency has the authority to determine whether an environmental impact report is necessary. In this case the lead agency was the California Department of Health Services, which found that an environmental impact report was not necessary, San Diego did not exercise any of its authorized options to challenge this determination, and there is no evidence that factual circumstances have changed. The court orders San Diego to reconsider its permit denial under its traditional land use authority.

Counsel for Plaintiff
David L. Mulliken, Kristine L. Wilkes
Latham & Watkins
Ste. 2100, 701 B St., San Diego CA 92101-8197
(619) 236-1234

Counsel for Defendant
C. Alan Sumption
Chief Deputy, Litigation Division
City of San Diego
525 B St., Ste. 2100, San Diego CA 92101
(619) 533-4700