Judge: Stephen I. Goorvitch, Case: 24STCP00282, Date: 2024-08-02 Tentative Ruling
Case Number: 24STCP00282 Hearing Date: August 2, 2024 Dept: 82
Ecobat Resources California, Inc. Case No. 24STCP00282
Hearing:
August 2, 2024
v. Location:
Stanley Mosk Courthouse
Department:
82
Board of Environmental Safety, Judge:
Stephen I. Goorvitch
California
Department of Toxic
Substances
Control
[Tentative] Order Overruling Demurrers
INTRODUCTION
Petitioner
Ecobat Resources California, Inc. (“Petitioner”) operates a battery recycling
facility and received a “Temporary Authorization” from the California
Department of Toxic Substances Control (the “DTSC”) to use new equipment in its
operations. The real party in interest, the
Clean Air Coalition of North Whittier and Avocado Heights (the “Real Party”),
appealed the decision to the Board of Environmental Safety (“Respondent” or the
“Board”). The Board revoked the
Temporary Authorization, and Petitioner now challenges that decision. Respondent and the Real Party demur to the
petition. The demurrers are
overruled.
PETITIONER’S
ALLEGATIONS
Petitioner operates a battery
recycling facility in the City of Industry, California (the “facility”). (Verified Petition (“Pet.”) ¶ 2.) Due to its recycling operations, the facility
necessary handles waste and therefore is regulated by the DTSC. (Id. ¶ 3.) “In 2022, Ecobat asked DTSC for approval to
operate new equipment at the Facility that would provide human health and
environmental benefits. That request was
for what is formally known as a ‘Temporary Authorization.’” (Id. ¶ 4.) According to the petition, “the new
equipment—Dewatering Equipment—would allow the Facility to handle waste even
more safely by reducing the volume of liquids that would otherwise end up on
the floor during the recycling process.”
(Id. ¶ 4.) The DTSC
granted the Temporary Authorization to Ecobat.
(Id. ¶ 5.) Petitioner
alleges that the DTSC made the following factual findings:
DTSC found, inter
alia, that operation of the Dewatering Equipment was necessary to
facilitate timely implementation of changes to protect human health and the
environment and of corrective action before action was likely to be taken on a
permit modification request. DTSC further found that the Dewatering Equipment
would “minimiz[e] the risk of a release” of hazardous substances, and thus
result in a “significant environmental improvement” and a “clear benefit to
human health and environment.” And DTSC found that the Temporary Authorization
would allow these important human health and
environmental
benefits to be realized “without the delay associated with a permit
modification request, public comment period, and final decision.”
(Id.
¶ 26.)
The
Real Party filed an administrative appeal of the DTSC’s decision to grant the
Temporary Authorization, per Title 22, section 66271.72 of the California Code
of Regulations. (Id. ¶¶ 6, 24-30.) Pursuant to section 66271.72(a), the Board is
authorized to adjudicate and decide appeals of Temporary Authorization
Decisions of the DTSC. Section 66271.72(c)
describes the Board’s hearing procedure, the appellant’s burden of proof, and the
standard of review, as follows:
(c) Decision on the Merits. The Board shall decide
the issues raised in the petition and accepted for review pursuant to subsection
(b) of this section at a public hearing conducted pursuant to article 10 of
chapter 4.5 of division 3 of title 2 of the Government Code. The appellant
shall bear the burden at the hearing to establish that the Department's final
permit decision is based upon one or more of the following:
(1) a
finding of fact or conclusion of law which is clearly erroneous; or
(2) an abuse of discretion concerning an exercise of
discretion or an important policy consideration within the Board's jurisdiction,
which the Board should, in its discretion, review; or
(3) a significant procedural error, including but not
limited to a failure to proceed in a manner that is required by law or
regulation.
(22 Cal. Code Regs. § 66271.72(c).)
According
to the petition, in its appeal the Real Party “did not challenge DTSC’s factual
finding that the Temporary Authorization benefits human health and the
environment in its appeal.” (Id. ¶
27.) “Instead, [the] principal objection
was DTSC improperly concluded issuance of the Temporary Authorization was
necessary to achieve the human health and environmental benefits before action
would likely occur on a separate permit modification request.” (Id. ¶ 27.)
At
its meeting held on November 29, 2023, the Board granted the appeal and
concluded that the DTSC’s approval of the Temporary Authorization was “clearly
erroneous because there was not enough evidence to establish the necessity of
rapid response.” (Id. ¶ 28; see
also Id. ¶¶ 28-29 [additional summary of statements of specific Board
members and separate written order issued on December 19, 2023].) Petitioner contends that Board’s decision was
“flawed” and “legally erroneous” because: (1) The Board did not defer to the DTSC’s
factual and legal determinations as required by law; (2) The Board ignored the
facts, including the human health and environmental benefits of the Dewatering
Equipment; and (3) The Board misinterpreted the law, including by imposing a
purported balancing test that requires weighing public participation against
environmental benefits. (Id. ¶ 33.) Petitioner seeks a judicial declaration that
Board’s action was “contrary to law” and issuance of a writ of mandate
directing Board to reinstate the Temporary Authorization. (See id. ¶ 34; see also Prayer for
Relief.)
LEGAL STANDARD
A demurrer tests the sufficiency of a pleading, and the
grounds for a demurrer must appear on the face of the pleading or from
judicially noticeable matters. (Code Civil Proc. § 430.30, subd. (a); Blank
v. Kirwan (1985) 39 Cal.3d 311, 318.) “We assume the truth of the
allegations in the complaint, but do not assume the truth of contentions,
deductions, or conclusions of law.” (California Logistics, Inc. v.
State (2008) 161 Cal.App.4th 242, 247.) “A
demurrer tests the pleadings alone and not the evidence or other extrinsic
matters.” (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) The
allegations in the petition must be liberally construed in favor of Petitioner
on demurrer. (See Mobil Oil Corp. v
Exxon Corp. (1986) 177 Cal.App.3d 942, 947.)
DISCUSSION
In their
demurrers, the Board and the Real Party argue that Petitioner has not stated a
cause of action for traditional mandate under Code of Civil Procedure section
1085, and appeals of temporary authorization decisions are exclusively subject
to judicial review under section 1094.5.
This is not a proper basis for a demurrer. If a petition alleges entitlement to mandamus
relief under either statute, the court denies a demurrer asserting that the
wrong mandamus statute has been involved.
(See, e.g., County of San Diego v. State of California (1997) 15 Cal.4th
68, 109.) This is consistent with the
Local Rules, which requires Petitioner to clarify this issue in the opening
brief: “The opening and opposition briefs must state the parties’ respective
positions on whether the petitioner is seeking traditional or administrative
mandamus, or both.” (LASC Local Rule
3.231(i)(1).) In Petitioner’s opening
brief, it makes clear it is seeking relief under both section 1085 and section
1094.5. (See Petitioner’s Opening Brief,
dated July 24, 2024, 13 fn. 8.)
Nor is the
petition uncertain, as argued by the moving parties. To the contrary, it is clear what decision
Petitioner challenges and the basis for the challenge. “[U]nder our liberal pleading rules, where
the complaint contains substantive factual allegations sufficiently apprising
defendant of the issues it is being asked to meet, a demurrer for uncertainty
should be overruled.” (Williams v.
Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.)
CONCLUSION AND ORDER
Based
upon the foregoing, the court orders as follows: (1) The demurrers are
overruled; (2) The court deems Respondent and the Real Party to have answered
and enters general denials on their behalf; and (3) Counsel for Respondent
shall provide notice and file proof of service.
IT IS SO ORDERED.
Dated: August 2,
2024
Stephen
I. Goorvitch
Superior
Court Judge