Bloom v. McGurk

In Bloom v. McGurk (1994) 26 Cal. App. 4th 1307, the real party in interest, Integrated Environmental Systems, Inc. (IES), had operated as a transporter of hazardous waste since 1982 in an area of Oakland zoned for heavy industry. In 1987, the California Department of Health Services (DHS) accepted IES's application for continued operation as a hazardous waste facility. In 1990, new legislation required IES to obtain hazardous waste permits from DHS, and provide information necessary for DHS to comply with CEQA. DHS designated IES exempt as an existing facility. (Bloom, supra, 26 Cal. App. 4th at pp. 1309-1310.) The appellate court affirmed the trial court's denial of a petition for writ of mandate to compel DHS to set aside the permits. It held DHS applied the categorical exemption correctly. (Id. at p. 1311.) Bloom adopted the Supreme Court's interpretation that "the term 'existing facility' in the class 1 exemption would mean a facility as it exists at the time of the agency's determination, rather than a facility existing at the time CEQA was enacted. For purposes of the exception to the categorical exemptions, 'significant effect on the environment' would mean a change in the environment existing at the time of the agency's determination, rather than a change in the environment that existed when CEQA was enacted." ( Bloom, supra, at p. 1315.) The court presumed "thousands of permits were renewed each year for the ongoing operation of regulated facilities, and discerned no legislative or regulatory directive to make each such renewal an occasion to examine past CEQA compliance at every facility built in the last 24 years. That result would contravene the applicable statutes of limitation and the ordinary meaning of the words used in the class 1 exemption." (Ibid.) The Bloom court also distinguished Lewis factually on grounds there was no evidence of "unusual circumstances" such as nearby residential development which would preclude application of the categorical exemption. ( Bloom, supra, at p. 1316.)