In a blow to the state's defense of its McColl hazardous waste cleanup plan, a Superior Court Judge Friday ruled that the City and County of Santa Barbara have a legal right to challenge the excavation project and that the trucking of hazardous waste from the Fullerton site to a landfill in northern Santa Barbara County is subject to a state environmental law.
However, Judge Patrick L. McMahon has yet to rule whether an environmental impact report must be prepared before the $26-million-plus cleanup can begin, and he did not issue any court order blocking the cleanup.
Further, he is studying whether the McColl excavation is subject to the provisions of a bond act, passed by voters last November, that would require the cleanup plan to be reviewed by cities and counties all along the truck route.
"We crossed the hurdle," said Jed Beebe, deputy Santa Barbara County counsel, after the hearing. If McMahon had ruled differently, the lawsuit would have been effectively kicked out of court, he said.
"We'd have lost, to put it simply," Beebe said.
Susan Durbin, deputy attorney general representing the state Department of Health Services in the lawsuit, said she may appeal the judge's ruling.
The City and County of Santa Barbara filed suit in February, seeking a court order barring trucks laden with McColl's World War II refinery waste from entering the county until an environmental impact report on the entire cleanup project had been prepared.
The state did not comply with the California Environmental Quality Act (CEQA) when it filed a "categorical exemption," stating that an environmental impact report was not necessary, according to the suit.
The cleanup--expected to put 40 truckloads of waste on the road each day for 14 months--will have a significant impact on Santa Barbara County, the suit contends. Yet, all of the state health department's studies have focused on the impact in the Fullerton area, county officials have said.
The major argument of the state Department of Health Services had been that Santa Barbara County conducted an environmental review of the Casmalia Resources landfill nine years ago, when the facility was allowed to expand. The county should have addressed the issue of hazardous waste-laden trucks traveling through the community to the expanded landfill at that time, the state argued.
"If they (county officials) were inaccurate, it is their responsibility to do it again, not the state's," Durbin told the judge.
Further, she said Santa Barbara has "absolutely no jurisdiction, no interest" regarding the plight of the people living next to the Fullerton hazardous waste site and should not be able to argue that an environmental impact report is needed for the entire project.
But Santa Barbara City Atty. Steven A. Amerikaner countered that the McColl cleanup could not "be divided into bite-sized pieces for environmental review." Santa Barbara has a right to be concerned about trucks filled with hazardous waste entering the community, he argued.
Durbin said the state's transportation plan addresses every safety concern.
The waste "is probably safer in the trucks than it will be at Casmalia," she said.
But McMahon said the size of the cleanup, the numbers of waste-laden trucks and the possibility of spills along the way make the transportation plan subject to the requirements of CEQA regardless of the previous environmental review of the Casmalia landfill nine years ago.
At a second hearing, yet to be scheduled, McMahon will decide whether a full environmental report must be prepared or whether the state's "categorical exemption"--allowed when sufficient environmental studies have already been conducted--satisfied CEQA requirements.
Confident of Victory
Durbin said after the court hearing that she is confident that the state's categorical exemption will withstand the court test.
McMahon took under submission Santa Barbara's arguments that the McColl project is also subject to the Hazardous Substances Cleanup Bond Act of 1984, which would require the preparation of a "remedial action plan" summarizing the cleanup procedures, risks and alternatives. The report would have to be circulated among all the jurisdictions affected by the cleanup plan for comment.
Durbin argued that the act was passed 11 months after the McColl project began and should not be retroactive.
If the remedial action plan is ordered, it will cause a delay of several months, and the preparation of an environmental impact report could take longer, she said.
Santa Barbara county and city officials filed the lawsuit at a time when the Casmalia Resources landfill has become the focus of controversy. With the closure to toxic wastes of the BKK landfill in West Covina last year, more hazardous waste has been directed to the Santa Barbara county dump.
While the state is fighting in court to take the McColl waste to the landfill, Casmalia Resources general partner Kenneth Hunter Jr. still has not signed a contract to accept the 200,000 cubic yards of waste.