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92-192 RESOLUTION NO. 92R-192 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ANAHEIM TERMINATING CONDITIONAL USE PERMITS NUMBERS 1703, 2525 AND 3052, AND DECLARING RESOLUTIONS NUMBERS PC77-184, 77R-670, 86R-394, 87R-91, PC84-106, 84R-299, 86R-395, 87R-92 AND PC88-225 NULL AND VOID. WHEREAS, on August 29, 1977, the Planning Commission of the City of Anaheim (hereinafter the "Planning Commission") adopted its Resolution No. PC77-184 approving Conditional Use Permit No. 1703 to permit a resource recovery and recycling operation, with waivers of certain provisions of the Anaheim Municipal Code, on certain real property and subject to certain conditions of approval as expressly described and set forth in said Resolution No. PC77-184; and WHEREAS, thereafter, within the time prescribed by law, an interested party or the City Council of the City of Anaheim (hereinafter the "City Council"), on its own action, caused the review of said decision of the Planning Commission approving Conditional Use Permit No. 1703 at a duly noticed public hearing held by the City Council on October 11, 1977; and WHEREAS, on October 11, 1977, the City Council adopted its Resolution No. 77R-670 approving Conditional Use Permit No. 1703 to permit the aforesaid use of the aforesaid property subject to certain conditions of approval set forth in said Resolution No. 77R-670; and WHEREAS, pursuant to Section 18.03.091 of the Anaheim Municipal Code, the City Council conducted a public hearing on August 19, 1986, which hearing was continued to August 26, 1986, and then again continued to September 2, 1986, to consider whether Conditional Use Permit No. 1703 (together with Conditional Use Permit No. 2525) should be modified or terminated due to activities being carried on in violation of said use permit, in violation of state and local laws and ordinances, and the uses being exercised in a manner detrimental to public health, safety and welfare; and WHEREAS, on September 2, 1986, the City Council adopted its Resolution No. 86R-394 modifying Conditional Use Permit No. 1703 by the addition of new conditions of approval thereto and amending Resolution No. 77R-670 accordingly; and WHEREAS, pursuant to Section 18.03.091 of the Anaheim Municipal Code, the City Council conducted a public hearing on March 17, 1987, to consider whether Conditional Use Permit No. 1703 (together with Conditional Use Permit No. 2525) should again be modified or terminated due to activities being carried on in violation of said, and the uses being exercised in a manner detrimental to public health, safety and welfare use permit, in violation of federal, state and local laws and ordinances, and the uses being exercised in a manner detrimental to public health, safety and welfare; and WHEREAS, on March 17, 1987, the City Council adopted its Resolution No. 87R-91 further modifying Conditional Use Permit No. 1703 by an amendment to the conditions of approval thereof and amending Resolutions No. 77R-670 and 86R-394 accordingly; and WHEREAS, on June 11, 1984, the Planning Commission adopted its Resolution No. PC84-106 approving Conditional Use Permit No. 2525 to permit expansion of the aforesaid resource recovery operation, including an automobile dismantling business with wholesale and retail sales of auto parts, with waivers of certain provisions of the Anaheim Municipal Code, on certain real property and subject to certain conditions of approval as expressly described and set forth in said Resolution No. PC84- 106; and WHEREAS, thereafter, within the time prescribed by law, an interested party or the City Council, on its own action, caused the review of said action of the Planning Commission approving Conditional Use Permit No. 2525 at a duly noticed public hearing held by the City Council on July 31, 1984; and WHEREAS, on July 31, 1984, the City Council adopted its Resolution No. 84R-299 approving Conditional Use Permit No. 2525 to permit the aforesaid use of the aforesaid property subject to certain conditions of approval set forth in said Resolution No. 84R-299; and WHEREAS, pursuant to Section 18.03.091 of the Anaheim Municipal Code, the City Council conducted a public hearing on August 19, 1986, which hearing was continued to August 26, 1986, and then again continued to September 2, 1986, to consider whether Conditional Use Permit No. 2525 (together with Conditional Use Permit No. 1703) should be modified or terminated due to activities being carried on in violation of said use permit, in violation of state and local laws and ordinances, and the uses being exercised in a manner detrimental to public health, safety and welfare; and WHEREAS, on September 2f 1986, the City Council adopted its Resolution No. 86R-395 modifying Conditional Use Permit No. 2525 by the addition of new conditions of approval thereto and amending Resolution No. 84R-299 accordingly; and WHEREAS, pursuant to Section 18.03.091 of the Anaheim Municipal Code, the City Council conducted a public hearing on March 17, 1987, to consider whether Conditional Use Permit No. 2 2525 (together with Conditional Use Permit No. 1703) should again be modified or terminated due to activities being carried on in violation of said use permit, in violation of federal, state and local laws and ordinances, and the use being exercised in a manner detrimental to public health, safety and welfare; and WHEREAS, on March 17, 1987, the City Council adopted its Resolution No. 87R-92 further modifying Conditional Use Permit No. 2525 by an amendment to the conditions of approval thereof and amending Resolutions No. 84R-299 and 86R-395 accordingly; and WHEREAS, on August 15, 1988, the Planning Commission adopted its Resolution No. PC88-225 approving Conditional Use Permit No. 3052 to permit a retail used automobile sales facility, with waivers of certain provisions of the Anaheim Municipal Code, on certain real property and subject to certain conditions of approval as expressly described and set forth in said Resolution No. PC88-225; and WHEREAS, pursuant to Section 18.03.091 of the Anaheim Municipal Code, the City Council scheduled a public hearing for August 13, 1991, to consider whether Conditional Use Permit Nos. 1703, 2525 and 3052 should be modified or terminated on the grounds provided therein, including due to activities being carried on in violation of said use permits, activities in violation of statute, ordinance, law or regulation, and the uses being exercised in a manner detrimental to public health or safety or to constitute a nuisance; and WHEREAS, prior to conducting the evidentiary portion of said public hearing, such matter was continued by the City Council to October 8, 1991; and WHEREAS, on October 8, 1991, pursuant to Section 1.12.110 of the Anaheim Municipal Code, the City Council, by motion, referred the aforesaid public hearing to a hearing officer to be selected by the city Attorney from the Judicial Arbitration and Mediation Services, Inc., and the aforesaid matter was continued by the City Council until following receipt of the report and recommendations of the hearing officer; and WHEREAS, on December 23, 1991, the Honorable John L. Flynn, the hearing officer selected by the City Attorney, conducted a duly noticed public hearing for the purposes of viewing the aforesaid property; and WHEREAS, on April 3, April 8, April 22, and May 1, 1992, the hearing officer conducted a duly noticed public hearing to receive testimony and evidence concerning the possible modification or termination of Conditional Use Permits Nos. 1703, 2525 and 3052; and 3 WHEREAS, the evidentiary portion of said public hearing was closed on May 1, 1992; and WHEREAS, closing arguments on such matter were scheduled for June 24, 1992 and continued to July 15, 1992, at the request of the permit holder; and WHEREAS, the administrative record of said public hearing certified by the hearing officer and the written recommendations of the hearing officer concerning such matters were received by the City of Anaheim on August 24, 1992; and WHEREAS, on September 1, 1992, the City Council did consider the administrative record and the written recommendations of the hearing officer. NOW, THEREFORE, BE IT RESOLVED by the city Council of the City of Anaheim that the City Council hereby adopts those certain findings as set forth in Paragraphs 1.1 through 8.1, and 9.7 through 9.9, inclusive, of the Final Findings and Recommendations of the Hearing Officer to the Anaheim City Council attached hereto, marked Exhibit A, and incorporated herein by this reference as if set forth in full. (The exhibits adopted as part of the findings in Paragraph 4.2 are on file and available in the office of the City Clerk). BE IT FURTHER RESOLVED that Conditional Use Permits Numbers 1703, 2525 and 3052 be, and each of such permits is hereby, terminated upon the grounds and for the reasons set forth in Paragraphs 9.1 through 9.9 of the Final Findings and Recommendations of the Hearing Officer to the Anaheim City Council attached hereto, marked Exhibit A, and incorporated herein by this reference, and which grounds and reasons, and each of them, are hereby adopted. BE IT FURTHER RESOLVED that the City Council hereby finds and determines that it would have terminated each of said Conditional Use Permits Nos. 1703, 2525 and 3052 upon each of the grounds and reasons hereinabove adopted. BE IT FURTHER RESOLVED that Resolution Numbers PC77- 184, 77R-670, 86R-394, 87R-91, PC84-106, 84R-299, 86R-395, 87R- 92, and PC88-225 be, and the same are hereby, declared null and void. BE IT FURTHER RESOLVED that the time within which rehearings must be sought is governed by the provisions of Section 1.12.100 of the Anaheim Municipal Code and the time within which judicial review of final decisions must be sought is governed by Section 1094.6 of the Code of Civil Procedure and Section 18.02.060 of the Anaheim Municipal Code. 4 THE FOREGOING RESOLUTION is approved and adopted by the City Council of the City of Anaheim this 1st day of September, 1992. F THE CITY OF~NAHEIM ~ ATTEST: CITY CLERK OF THE CITY OF ANAHEIM 5 STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss. CITY OF ANAHEIM ) I, LEONORA N. SOHL, City Clerk of the City of Anaheim, do hereby certify that the foregoing Resolution No. 92R-192 was Introduced and adopted at a regular meeting provided by law, of the Anaheim City Council held on the 1st day of September, 1992, by the following vote of the members thereof: AYES: COUNCIL MEMBERS: Simpson, Ehrle, Pickler, Daly and Hunter NOES: COUNCIL MEMBERS: None ABSENT: COUNCIL MEMBERS: None AND I FURTHER CERTIFY that the Mayor of the City of Anaheim signed said Resolution No. 92R-192 on the 2nd day of September, 1992. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City of Anaheim this 2rid day of September, 1992. CITY CLERK OF THE CITY OF ANAHEIM (SEAL) I, LEONORA N. SOHL, City Clerk of the City of Anaheim, do hereby certify that the foregoing is the original of Resolution No. 92R-192 was duly passed and adopted by the City Council of the City of Anaheim on September 1, 1992. CITY CLERK Of THE CiTY OF ANAHEIM HONORABLE JOHN L. FLYNN, (RETIRED) JUDICIAL ARBITRATION & MEDIATION SERVICES, INC. 500 N. State College Blvd., Suite 600 P.O. Box 14095 Orange, CA 92668 (714) 939-1300 HEARING OFFICER JUDICIAL ARBITRATION AND MEDIATION SERVICES ORANGE COUNTY PUBLIC HEARING IN RE: ) CONDITIONAL USE PERMIT NOS. ) 1703, 2525, AND 3052 AND ) FINAL FINDINGS AND ASSOCIATED BUSINESSES (ADAMS ) RECOMMENDATIONS OF INTERNATIONAL METALS ) THE HEARING OFFICER CORPORATION SELF-SERVE AUTO, ) TO THE ANAHEIM CITY DISMANTLERS, COUNTY AUTO ) COUNSEL RESALE SERVICES, INC., AND ) DBW SERVICES). ) PROPOSED FINDINGS THE CUPS 1.1 This proceeding concerns the proposed revocation of three CUPs previously granted by the city of Anaheim: CUP No. 1703, CUP No. 2525 and CUP No. 3052. 1.2 Since 1976 the Adams family has conducted business on the subject property. The Adams family, particularly George Adams, Jr., George Adams, Sr. and Terry Adams, have been responsible for most of these activities including the operation o'f Orange County Steel Salvage (OCSS), Adams International Metals (AIM), WCS International (WSC), EXHIBIT A Anaheim-Fullerton Auto Dismantlers, Self Serve Auto Dismantlers (aka Pull Your Part), County auto Resales Services, Inc. (Auto Resales), and the hel!port; 1.3 In many instances the Adamses initiated a particular use on' the property without obtaining the necessary action, they subsequently applied for a CUP and other zoning approvals. This is true of CUPs 1703, 2525, 2774, and 2756. .~ 1o4 CUP 1703 was granted by the City Council on October ll, 1977 subject to certain conditions "to permit a resource recovery and recycling operation" on specified portions of Lots 11, 12, 13, 31 and 32 and adjoining portions of Pomelo Drive. 1.5 CUP 2525 was granted by the City Council on June 11, 1984 subject to certain conditions "to expand a resource recovery operation including an automobile dismantling business with wholesale and retail sales of auto parts" on the identical property covered by CUP 1703 and, in addition, specified portions of Lots 14 and 15. All of these uses are allowed on any portion of the lots identified in CUP 2525. 1.6 The auto dismantling portion of the operation was conducted by the Adamses on the parcels subject to CUP 1703 beginning in at least 1980 and was operated at that time under a different name as part of OCSS (now AIM). OCSS and George Adams were among the applicants but not the auto dismantling operation. The petitioners (including OCSS and George Adams) proposed no new buildings or structures and all of the seven different operations conduoted by Orange County Steel Salvage, including the auto dismantling offices and storage, were within the existing building. 1.7 CUP 2525 is one integrated use permit for recycling, resource recovery and auto dismantling. The Adamses could have applied for separate CUPs for the expansion of the resource recovery use and for the auto dismantling use, since a property may have more than one CUP, but they chose to apply for one integrated CUP. (A separate CUP was sought by the Adams for the heliport on the same parcels covered by CUPs 1703 and 2525.) At the hearing before the City Council on July 31, 1984, when CUP 2525 was approved the Adamses' representative, Mr. Philip Anthony told the City CoUncil that: "He was representing the applicant who was the owner and operator of the Recycling and Recovery Center .... The CUP request combined the new lots with the existing operation into one new revised comprehensive use permit to allow the use of the two new lots for the identical operation qoinq on the existinq property. The new CUP clarified some of the terms and conditions of the old permit and simplified and clarified what would be allowed." (Emphasis added.) 1.8 CUP 2525 expanded on the use originally set out in CUP 1703, thereby allowing that use on the adjacent property (Lots 14 and 15), as well as authorizing a new use (auto dismantling) (which was previously conducted illegally by the Adamses' and OCSS) on all of the Lots covered by CUP 2525. The conditions of CUP 2525 and the related zoning 3 actions include almost all of the same conditions as CUP 1703. 1.9 CUP 3052 allowed establishment of a retail used automobile sales facility with maximum area of free-standing sign waived (20 square feet permitted, 308 square feet approved). 1.10 At the hearing George Adams, Jr. testified that the use granted under CUP 3052 had ceased to exist, and there was no opposition to revocation of CUP 3052. PROCEDURAL HISTORY I. THE HISTORY OF THIS PROCEEDING 2.1 The present proceeding was initiated when, after giving the owner/operators additional time to comply with a previous Notice of Code Violation/Order to Comply, Code Enforcement Staff submitted a Staff Report to the City Council and the City Manager on June 2, 1991. The Staff Report recommended the termination of CUP Nos. 1703, 2525 and 3052. 2.2 Public Notice of the hearing on the proposed revocation of CUPs 1703, 2525 and 3052 was provided by publication in the Anaheim Bulletin on August 2, 1991, mailing to property owners within 300 feet on July 30, 1991 and posting of the property on August 2, 1991. On Auqust 13, 1991, the city Council considered the matter at its regular meeting and continued the hearing until October 8, 1991 at the request of Orange County. There was no opposition to the continuance. (Id.) 2.3 On October 8, 1991, pursuant to Anaheim Municipal Code Section 1.12.110, the City Council determined to refer the matter to a hearing officer selected from Judicial Arbitration and Mediation Services to conduct a public hearing on the matter and prepare a recommendation to the City Council. On .December 13, 1991, the Zoning Administrator of the Anaheim City Planning Department published notice that on December 23, 1991, the Hearing officer would hold a public hearing to view the property subject to CUP Nos. 1703, 2525 and 3052. The hearing was held as noticed. 2.4 Subsequently, on March 21, 1992, the City Council of the City of Anaheim published notice that on April 3, 1992, the Hearing Officer would conduct a public hearing where public testimony would be heard to consider the modification or termination of CUP Nos. 1703, 2525 and 3052. In conjunction with the hearing, on March 31, 1992, Anaheim Code Enforcement Staff submitted a staff report to the Hearing Officer and copies of the staff report were made available to interested parties. The Staff Report was an update and expansion of the June 2, 1991, Staff Report and, like the previous Staff Report, also recommended the termination of the CUPs at issue.' 2.5 On April 3, 1992, the Hearing Officer opened the public hearing and began receiving testimony. The hearing 5 remained open and further evidence was taken on April 8, 1992; April 22, 1992; and May 1, 1992. The City of Anaheim ("city") appeared and was represented by John W. Poole, Code Enforcement Manager, Selma J. Mann, Deputy City Attorney, and by Marsha croninger and James Hevener, Jones, Day, Reavis & Poque. Respondents Adams International Metals Corp. ("AIM") and Self-Serve Auto Dismantlers, Inc. appeared and were represented by George Adams, Jr. and Terry-Adams. Witnesses were presented by both sides, and evidence, both oral and in writing, was received. Testimony was also received from interested members of the public. At the conclusion of testimony on May 1, 1992, the Hearing Officer closed the evidentiary portion of the hearing and ordered each side to submit position papers to be followed by closing arguments on June 24, 1992. 2.6 on May 21, 1992, the City submitted its brief supporting the termination of the CUPs. On June 12, 1992, a brief opposing termination was submitted on behalf of Adams International Metals (AIM) and Self-Serve Auto Dismantlers, Inc. ("Pull Your Part") (collectively "Respondents"). That brief contained two factual exhibits not previously entered into the record. On July 22, 1992, the City submitted its reply brief and concurrently submitted a motion to strike one of the exhibits in Respondent~' opposition brief as improper and prejudicial. On July 24, 1942, the Hearing officer considered the City's motion to strike and also a request for a continuance made by Respondents to allow them an opportunity to more fully respond to the motion to strike and to allow additional briefing in response to one of city's arguments. Respondents and the City wwere allowed briefing on two issues: (1) collateral estoppel; and (2) the weight to be accorded Respondents' Exhibit 71 which was the exhibit the City had moved to strike. The Hearing officer also.~rdered that the closing arguments would be continued to July 15, 1992, at which time both sides were to submit proposed findings. On time both sides were to submit proposed findings. On July 2, 1992, Respondents submitted their supplemental brief and on July 10, 1992, the City submitted its supplemental brief. III. PREVIOUS REVOCATION OR MODIFICATION HEARINGS 2.7 Before the present revocation hearing, the Anaheim City Council held previous hearings concerning the revocation or modification of CUP Nos. 1703 and 2525. Two separate public hearings were noticed and conducted over several months before the City Council in 1986 and 1987. both hearings resulted in identical modifications to CUP 1703 and CUP 2525 concerning the management of the shredder waste. The first hearing was initiated by the City Council on July 15, 1986, when it set an Order to Show Cause Hearing "as to why Conditional Use Permit Nos.1703 and 2525 should not be revoked" for August 19, 1986. Hearings were held before the City Council on August 19, 1986 and September 2, 1986 concerning both CUPs 1703 and 2525. 2.8 On August 19, 1986, the first day of the revocation hearing for both CUP 1703 and CUP 2525, the City Council made the following finding: The Council then determined that the following public hearings to consider modification or termination of Conditional Use Permit No. 1703 and Conditional Use Permit No. 2525 would be heard as a combined hearing since they involved the same business and location. 2.9 A staff report dated August 12, 1986, recommended termination of CUPs 1703 and 2525 based on a history of noncompliance with CUP and Code requirements, including violations relating to landscaping, parking and an illegal crane, as well as the Adamses' illegal storage of shredder waste on the property. At the revocation hearing, the case for revocation was presented by planning staff from the City and Adamses were represented by their legal counsel, Mr. Farano. There was extensive testimony including testimony from Mr. George Adams Jr., owner and operator of the affected business, Mr. Philip Anthony on behalf of Mr. Adams, Mr. Poole on behalf of the City staff, and representatives of the State Department of Health Services, the Regional Water Quality Control Board, the U.S. Environmental Protection Agency and members of the public. 2.10 After two days of hearings on August 19, 1986 and September 2, 1986 the City Council determined to modify both CUP 1703 and CUP 2525 to impose identical specific conditions requiring the submission within ninety days of a plan for the removal and cleanup of the large hazardous shredder waste pile and a plan for the future treatment and storage of all new shredder waste so that none was stored on the property. The ~onditions also required removal of all new shredder waste daily and submission of all manifests weekly to the City Code Enforcement indicating shipment of at least 1000 tons of shredder waste each month. 2.11 The Adamses' legal counsel, Mr. Farano, submitted a request for a rehearing on the modification of CUP 2525 as well as request for rehearing on the denial of CUP 2756. The Request for reheating was heard by the City Council on December 2, 1986, again with extensive testimony by Mr. Farano, Mr. George Adams, Jr. and a oonsultant for Mr. Adams. Mr. Farano testified that the shredder waste was not being removed as it was being. generated as required by Conditions 11 and 12 of CUPs 1703 and 2525. Both requests for rehearing were denied. No appeal was taken and both decisions became final on December 2, 1986. 2.12 At the same time another Order to Show Cause Hearing on why Conditional Use Permits 1703 and 2525 should not be revoked was set for January 20, 1987 by a City Council. 2.13 Extensive hearings were again held before the City Council on February 17, 1987 and March 17, 1987. At the hearings George Adams Jr. and the affected business were 9 again represented by Mr. Farano. The case for revocation was presented by City staff. City staff submitted a Staff Report dated January 13, 1987 which recommended termination of CUPs 1703 and 2525 based on the history of violations, the same violation as at the previous hearing in September 1986 and violations of the CUP conditions relating to the shredder waste which had been imposed on both CUPs as a result of that hearing. There was testimony from representatives of the State Department of Health Services; Mr. Farano and Mr. George Adams Jr. (on behalf of himself and the affected business); and Mr. John Poole of Cede Enforcement and Mr. Michael Doty, the Fire Marshall, (on behalf of the city Staff). 2.14 At the conclusion of the hearings the City Council decided to make further identical modifications to both CUP 1703 and 2525 with regard to the management of the shredder waste. 2.15 No request for rehearing was filed and the decision of the city Counsel became final on expiration of the applicable time period for such filing. THE PROPERTY 3.1 The affected property consists of three parcels totalling approximately 18.5 acres. It is adjacent to the Santa Ana River, located in the river floodplain, and next to an interstate freeway. A hotel and disabled senior citizens facility are located nearby. Just across the river are residential homes in the City of Orange. The property is also within the Orange County Water Distriot's groundwater recharge facilities which supply 65% of the drinking water for central Orange County. 3.2 Part of the property is zoned "RS-A-43,000" (Residential/Agricultural) and the remainder is zoned "ML" (Limited Industrial). BRIEF ENFORCEMENT BACKGROUND ~- 4.1 As stated above, the Adamses initiated business operations on the property illegally in 1976 without CUP authorization. From that time up to and including the present, the Adamses have operated on the property and adjacent parcels in violation of various city Code requirements, land use laws, numerous environmental laws and CUP Conditions. These violations vary from extremely serious violations, which represent a serious threat to public health and safety, to less serious violations which should have been easily corrected by the Adamses, but have continued to be a problem throughout the history of this facility. 4.2 Exhibit 1 to the city's Reply Brief is a "Brief Summary of Enforcement Efforts Involving the Subject Property" and is hereby adopted as a part of the~e findings. In addition, Exhibits 1, 2, 3, 4 and 7 to the City's Initial Brief in SUpport of Revocation set forth a number of the more serious violations of environmental laws and those Exhibits are also adopted as part of these findings. A few of the enforcement activities and violations will also be further discussed here. 4.3 The Adamses' current operations include an auto shredder which is used to separate metal parts from crushed automobiles, appliances, and the leftover automobiles and parts after the auto d~smantling operation. The auto shredder produces a waste known as auto shredder waste which consists of "ground-up seats, carpeting, wood, glass, insulation, plastic, every conceivable thing that you could possibly think of ...". 4.4 Under state hazardous waste management laws, generators of a waste are required to characterize their waste to determine if it is hazardous. Federal hazardous waste laws contain the same requirement. (40 CFR 262.11.) This requirement has been in place under state law since at least 1979. From the beginning of the shredder operation in about 1979 until sometime after October 1986 the Adamses did not test any of their waste at all to determine if it was hazardous and refused to do so when directed by the State Department of Health Services (DHS). 4.5 In March 1984, the DHS gave written notice to the Adamses that their shredder waste was a hazardous waste and must be managed in accordance with the'hazardous waste laws. Despite this notice, the Adamses continued to dispose of their waste in a Riverside Class III landfill which is not authorized to accept hazardous waste and they did not use manifests or registered haulers as required. Adams disposed of hazardous shredder waste in Riverside Class III landfill without manifest or registered haulers after a Maroh 1984 letter from DHS n6tifying him that shredder waste was hazardous. When the landfill discovered that the waste was hazardous, it refused to accept the waste. 4.6 DHS issued several more notices of violation directing the Adamses to comply with hazardous waste laws, including the requirement to legally dispose of the shredder waste and not to store it without a hazardous waste facility permit. DHS also conducted extensive testing of the shredder pile which demonstrated that it was a hazardous waste. 4.7 Nevertheless the Adamses did not comply, and from about mid-1984 until about 1987, the Adamses continued to operate the shredder and illegally stockpiled increasing amounts of hazardous waste onsite until that pile reached 40,000 to 50,000 tons. This large pile remains onsite today and has never been removed. Thus, beginning in at least 1984 and continuing to the present, the Adamses have been illegally storing hazardous shredder ~waste in the large shredder pile and they did not apply for or obtain the required hazardous waste facility permit for the storage of such hazardous waste in violation of the hazardous waste control laws and the federal Toxic Substances Control Act. 4.8 The large shredder waste pile is ~1ocated on a parcel adjacent to the subject businesses and was place there by the Adamses in violation of zoning and land use laws. The Adamses' application for a CUP authorizing storage of the shredder waste was denied by the City Council on July 15, 1986 and, as set forth in paragraph 2.11, the request for rehearing was denied on December 2, 1986 and became final on that date. Extensive hearing were.~held on the application before the Planning Commission on January 20, 1986, and then (on appeal by George Adams to the City Council) before the City Council on March 18, 1986, April 15, 1986, and July 15, 1986 including testimony by Phil Anthony and George Adams Jr. on behalf of the applicant, testimony from representatives of the State Department of Health Services and'from the Regional Water Quality Control Board and from members of the public. 4.9 In denying the Adamses' application from CUP 2756 authorizing storage of the hazardous shredder waste, the City Council made the following finding: That the granting of the conditional use permit would be detrimental to the peace, health, safety and general welfare of the citizens of the City of Anaheim. 4.10 On September 17, 1986 DHS filed a civil enforcement action against the Adamses and OCSS seeking a preliminary and permanent injunction to prevent OCSS from adding more shredder waste to the existing hazardous shredder waste pile, civil penalties for illegal storage of hazardous waste and numerous other violations of hazardous waste laws, and, recovery or investigative costs. An injunction was obtained by the state, requiring, among other things, that the Adamses ship all newly generated shredder waste off the property. 4.11 Between October 1986 and March 6, 1986 the Adamses continued to stockpile shredder waste onsite in violation of CUP Conditions 11 of CUP 2525 and CUPt703 and the Superior Court injunction. CUP Conditions 11 were imposed by the City Council on September 2, 1986 and provided: That no new shredder waste is to be stored on the subject property or other property under the control of Orange County Steel Salvage. All new shredder waste is to be removed from the premises daily and disposed of in a legal manner. 4.12 Due to these violations both the City Council and the state required the Adamses to stop operating the shredder, the state through a supplemental temporary restraining order and the City Council by amending both CUPs 2525 and 1703 to provide That the operator of Orange County Steel Salvage shall immediately cease all metal shredding operations, including, but not limited to, the shredding of automobiles, appliances and other related items, until the operator submits proof satisfactory to the Code Enforcement supervisor.that all shredder waste produced since January 6, 1987 has been lawfully removed from the premises and disposed of in a lawful manner. Manifests shall be submitted to satisfy the above 'specified removal requirement which shall indicate the shipment of at least one thousand (1,000) tons of shredder waste per month. 15 4.13 By January 1987, due to the Adamses' refusal to move the large hazardous shredder waste pile offsite and legally dispose of it, the state had placed the site on the state superfund list, making it eligible for public funds to oleanup the property'. At that time the estimated cost of the cleanup was $18,245,000. 4.14 On June 25, .1987 the state issued a Remedial Action Order requiring the Adamses and OCSS, to "implement an effective fire prevention system for the shredder pile" within 30 days to timely submit and implement workplans and cleanup plans to pay for the cleanup within 30 days of receipt of an invoice from the DHS and to carry out the order "in compliance with all local, state and federal requirements..." Testimony and evidence at the hearing showed that the Adamses, OCSS and its successor AIM violated each of these requirements as described in more detail below. 4.15 In September 1987, the Adamses resumed shredding and almost immediately began storing the shredder waste onsite in violation of the Superior Court injunction and the CUPs. The Adamses also did not submit any proof to city Code Enforcement that they had lawfully removed all shredder waste produced since January 6, 1987, before they started shredding again, as required by the CUP conditions imposed on CUPs 1703.and 2525 on March 17, 1986. /// 16 4.16 The state filed a contempt action and on November 30, 1987 George Adams, Jr., George Adams, St. and OCSS were found guilty on four counts of contempt for storing waste beyond the time limits specified in the injunction. 4.17 In late 1987, it was discovered that wastewater from the properties was being illegally discharged into the Santa Ana River. The City issued two Notices of Violation on December 8, 1987 and December 29, 1987 and the .Regional Water Quality Control Board issued a Notice of Violation on February 3, 1988. The Regional Board's notice directed George Adams, Jr. to submit a report detailing corrective action to abate the discharge and a schedule by February23, 1988 and state in part The waters of concern are stormwater runoff, fluff sprinkler water,. process and fire fighting water... Metals found in the water not meeting the Basin Plan objectives were cadmium, chromium, copper, iron, lead, and mercury. In addition, the fire fighting water also contained polychlorinated biphenyl, benzene, toluene, and ethylbenzene, all of which would cause the water to be prohibited from being discharged to surface or subsurface waters. Discharges of untreated water from your facility can no longer be tolerated." 4.18 In January 1988, a serious fire occurred involving the large shredder pile which is contaminated by PCBs among other hazardous chemicals. A hotel and senior citizen facility nearby were evacuated due to the toxic smoke from the fire. Burning of PCBs can produce highly toxic compounds dangerous to persons who are exposed. 4.19 ~ June 14, 1988 the Regional Board wrote to George Adams Jr. regarding wastewater discharges on and from the property. The letter stated in part: This is to summarize the results of the meeting held at Orange County Steel Salvage, Inc. (OCSS) on June 2, 1988... The site includes the auto dismantling facility as well as the auto shredding facility. Wastewater at the site results from process water used for sprinkling the shredder waste pile and from stormwater runoff that commingles with pollutants at the site. As we previously informed you, the discharqe of wastewater off your property or the Dercolation of wastewater on your property, is not allowed without appropriate waste discharge requirements issued by this Board. In addition, the discharge of any water to areas overlying the inactive landfill is prohibited... It is imperative that an approved surface water manaqement plan be in effect as soon as possible, but absolutely no later than the be~innin~ of the next rainy season (i.e. October 15, 1988). As a result, i_~t was a~reed that Mr. Stirrat, on behalf of OCSS, would submit a draft plan by July 1, 1988, a final plan by July 15, 1988, and that the system would be installed and operational no later than October 15, 1988. In the interim, OCSS is still responsible for assuring that the prohibitions on discharges noted above are complied with. 4.20 The wastewater management plan was not approved until well after October 15,1988, and was never implemented as approved. After the plan was approved, George Adams unilaterally changed the plan, did not obtain the discharge permit which was part of the approved plan and did not make any changes to the plan to accommodate the lack of a discharge permit. 4.21 On July 30, 1990 the state filed a claim for the costs of cleanup against AIM alleging that AIM has operated a steel salvage business at the site since 1976 and that it is responsible for the release of various hazardous substances at the site, including PCBs and lead and claiming 18 that the state had incurred response costs of at least $500,000. 4.22 On September 17, 1990, the state entered into a Consent Decree with AIM in which AIM "voluntarily and irrevocably assumes responsibility for all past, present and future legal obligations and liabilities of OCSS with respect to California and federal laws and regulations relating to any hazardous substance at the AIM facility". Under this Consent Decree, AIM is required to comply with the Remedial Action Order issued by DHS and to implement the Remedial Action Plan to perform"all obligations required by the Permanent Injunction Pursuant to Stipulation entered in Orange County Superior Court Case No. 50-11-04" and to make monthly payments to DHS starting at $20,000 per month and increasing to $70,000 per month "until all the costs associated with removal and remedial work concerning Hazardous Substances at the site, including oversight costs of DHS, have been paid". 4.23 In the March 17, 1987 CUP revocation hearing Mr. Robinson had testified on behalf of the state and informed the city Council that it would be "in the vicinity of 6 months before arriving at a plan that will be implemented immediately" for the cleanup of the site. On June 28, 1992, over four years later, DHS finally approved a partial Remedial Action Plan. /// HEALTH AND SAFETY RISKS 5.1 At the hearing, both sides presented oral testimony and documentary evidence on the hazardous chemicals released on the property and the health and safety risks presented by ~he conditions at the site. 5.2 George Adams, Jr. testified as to his opinion of the risks posed by PCBs and the shredder waste. Mr. Adams' also testified that he is a lawyer, but has no training or qualifications in chemistry or toxicology, or relating to the flammability of materials or the causes and suppression of fires, so his opinions on these subjects have been disregarded. Mr. Adams also presented testimony from Alon Label, an employee of Brian A. Stirrat & Associates an engineering firm. No information was given with regard to Mr. Label's educational background or area of expertise or whether he had any education or experience in chemistry or toxicology. Mr. Label stated he had been the project manager for the site for about a year, but no information was provided on his past experience, duties or qualifications for that position. Therefore, his opinions were given little weight. 5.3 The City presented testimony by Mr. James McNally with regard to the history of the site, the hazardous waste violations and the health risks presented. Mr. McNally's testimony agd resume indicate that he was employed by the Regional Water Quality Control Board for one year and then. 20 by the State Department of Health Services in the Toxic Substances Control Division for six years, three years in surveillance and enforcement and three years in site assessment and cleanup. In 1988, Mr. McNally joined Dames & Moore, a private '~nvironmental cgnsulting firm, where he manages the Los Angeles office's environmental practice and work on environmental site characterizations and cleanups and compliance. Mr. MeNally has a Master's degree in Public Health in Environmental Health from UCLA and an undergraduate degree in Environmental Science also from UCLA. He publishes and teaches regularly on hazardous waste compliance and cleanup issues. Mr. McNally was very familiar with the subject property and its history during the time he worked at DHS and with cleanup and enforcement actions at other auto shredders as he worked directly on the OCSS site for DHS and supervised other staff working on the case until he left DHS in 1988. Based on his background and experience, both academic and work, Mr. McNally qualifies as an expert on both the violation and the health risks at the site. 5.4 Michael Doty, Fire Marshall for the City of Anaheim, also testified as an expert with regard to fires which had taken place at the subject facility. The City also submitted a declaration by Timothy Riley, the previous Fire Marshall for the City, with supporting exhibits including a resume. Both Mr. Doty and Mr. Riley are experts in matters relating to the fires at the facility. The City also presented a letter from Dr. Michael Sullivan regarding the potential health risks associated with the shredder waste on site. Dr. Sullivan has a B.S., M.S. and PhD. in toxicology. He i~ a principal Health scientist for McLaren/Hart/Chemrisk at their Burbank office and is responsible for supervision of staff and technical oversight for risk assessments. Dr. Sullivan qualifies as an~expert in toxicology. 5.5 The large shredder waste pile and the new shredder waste piles contain a wide variety of hazardous chemicals. Extensive testing was conducted of the large shredder pile by DHS. These tests showed that the pile contained hazardous concentrations of lead and PCBs and was therefore a hazardous waste. The Stipulation for Entry of Supplemental Permanent Injunction reads, "It is hereby stipulated as follows:... Defendants George Adams, St., George Adams, Jr. and Adams International Metals, are represented by George Adams, Jr., attorney at law... Defendants have illegally accumulated the following two waste piles on their premises: (i) A pile containing approximately 3000 tons of shredder waste, located on the North Side of the Defendants premises near the Santa Ana River (the "River Pile") .... Tests from material in this pile show that it is contaminated with PBCs at levels greater than 50 ppm. (ii) A pile containing approximately 700 tons of fine waste (the "Fine Waste Pile")... Tests from materials in this pile show that it is contaminated with PCBs at levels greater than 50 ppm." 5.6 Additional tests during the RIFS demonstrated the presence of many 0~her hazardous chemicals. Among the chemicals listed as hazardous by state hazardous waste regulations in 22 CCR 66261.126 Appendix X are lead, zinc, copper, nickel and cadmium compounds, arsenic, ·mercury, polychlorinated biphenyl (PCBs), and various volatile organics including acetone,.ethylbenzene, styrene, toluene, and xylene. All of these chemicals were found in the large shredder waste pile and some in the new shredder waste. 5.7 The City presented testimony and submitted extensive documentation on the health hazards presented by PCBs and lead including the official Toxicology Profiles for each of these chemicals prepared for the federal Agency for Toxic Substances and Disease Registry (ATSDR) of the U.S. Public Health Service in collaboration with the U.S. Environmental Protection Agency as required by Section 110(3) of the federal Superfund Amendments and Reauthorization Act of 1986. 5.8 Lead is a persistent and bioaccumulative toxic substance. "Lead compounds are cumulative poisons that accumulate in the bones and soft tissue, particularly the brain, resulting in reduced functioning." The ASTD report includes the following information on lead: Lead in air can be carried long distances from where it is released. Lead in air attaches to dust. The lead- containing dust is removed from the air by rain. Lead stays in soil for many years. However, heavy rain can cause lead-containing soil to move into water... you might be exposed to lead and lead compounds from breathing air, drinking water and eating soil or foods that contain lead. Breathing in air with dust that contains lead or swallowing lead-containing soil such as might be found at a hazardous waste site .... are also sources of exposure .... Children who put toys or other items in their mouths may also swallow lead if lead-containing dustand dirt are on these items... The major sources of lead are... lead-containing dust and soil carried into water by rain and wind; and wastewater from industries that use lead. Lead is released to soil from such sources as lead-containing waste in ... hazardous waste dumps .... Plants can take up lead from soil such as might be found at a hazardous waste site .... Lead can enter your body when you breathe in air with lead-containing dust or particles of lead. Almost all of the lead in the lungs enters the blood and moves to other parts of the body .... when children swallow food or soil containing lead as might be found at a hazardous waste site... much more of the lead enters their blood and moves to other body parts... Because some lead is stored in the body ~h time you are exposed, the levels of lead in bone and teeth get higher as a person gets older... The effects of lead once it is in the body are the same no matter how it enters the body. However, exposure to lead is especially dangerous for unborn children because their bodies can be harmed while they are being formed. If a pregnant woman is exposed to lead, it can be carried to the unborn child and cause premature birth, low birth weight, or even abortion .... More of the lead swallowed by children enters their bodies, and they are more sensitive to its effects. For infants or young children, lead exposure has been shown to decrease intelligence (IQ) scores, slow their growth, and cause hearing problems. These effects can last as children get older and interfere with successful performance in school. These health effects can happen at exposure levels once thought to be safe .... To date, workplace studies do not provide enough information to determine the risk of cancer for workers exposed to lead. However, because laboratory animals fed lead in their diet throughout their lives have developed tumors, lead should be thought of as a probable cancer-causing substance in humans. Exposure to high levels of lead can cause the brain and kidneys of adults and children to be badly damaged. Lead exposure may increase blood pressure in middle-aged men .... Also, a couple may have trouble having children if the man is exposed to lead because high levels of lead may affect his sperm or damage other parts of the male reproductive system. The new shredder waste piles and the large shredder waste piles as well as the leachate (including precipitation run-off) are hazardous wastes. The new shredder waste piles and the large shredder waste pile are also regulated under the federal Toxic Substances Control Act. .~ 5.9 Three lead compounds--lead acetate, lead phosphate and lead subacetate--have been listed by the State of California under Proposition 65 (The Safe Drinking Water and Toxic Enforcement Act of 1986) as chemicals known to the state to cause cancer and lead has been listed under the same law as a chemical known to the state to cause reproductive toxicity. 5.10 The ATSDR report on PCBs includes the following information: The manufacture of PCBs stopped in the United States in October 1977 because of evidence that PCBs accumulate in the environment and may cause health hazards for humans .... Although PCBs are no longer manufactured, human exposure still occurs. Many older transformers and capacitors still contain fluids that contain PCBs. The Useful lifetime of many of these transformers can be 30 years or more. The two main sources of human exposure to PCBs are environmental and occupational. PCBs are very persistent chemicals ... Eating contaminated fish can be a major source of PCB exposure to humans. These PCBs originate in contaminated water, sediment, PCB-laden particulates and in fish that have eaten PCB-contaminated prey .... PCBs in water, or on soil surfaces, evaporate and are then returned to earth by rainfall or settling of dust particles .... Once in the air, PCBs can be carried long distances; they have been found in snow and seawater in the Antarctic .... PCBs can be released into the environment from: poorly maintained toxic waste sites that contain PCBs, illegal or improper dumping of PCB wastes, such as transformer fluids .... PCBs enter the body through contaminated food and air and through skin contact .... Animal experiments have shown that some PCB mixtures produce adverse health effects that include liver damage, skin irritations, reproductive and developmental effects, and cancer .... Human studies to date show that irritations such a acnelike lesions and rashes, can occur in PCB-exposed workers. Other studies of people with occupational exposure suggest that PCBs might cause liver cancer. Reproductive and developmental effects may also be~related to occupational exposure .... ~. 5.11 PCBs have been listed by the State of california under Proposition 65 (The Safe Drinking Water and Toxic Enforcement Act of 1986) as a chemical known to the state to cause cancer and as a chemical known to the state to cause reproductive toxicity. 5.12 A hazardous waste is defined as "a waste, or combination of wastes, which because of its quantity, concentration, or physical, chemical, or infectious characteristics may either: (A) Cause, or significantly contribute to an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness, or (B) Pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, disposed of, or otherwise managed." (Health and Safety Code Section 25117.) The record has clearly established that the Adamses have improperly treated, stored, transported, disposed of and otherwise managed their hazardous shredder waste. These violations 26 and the shredder waste present a serious health risk. 5.13 As discussed above in Section 4, the state has determined that the subject property should be included in the state superfund program in order to allow the use of public funds for Cieanup to protect public health and safety. This program was specifically enacted by the state legislature to address s~tes which pose a threat to public health and the environment. 5.14 The proposed cleanup of the property includes all parts of the site, including contaminated soil where the shredder operates and contaminate~ soil in the auto dismantling area. As of 1989 soil testing showed that there are an estimated 60,000 tons of soil contaminated with PCBs, lead, zinc and petroleum hydrocarbons on this property which rests above Orange County's drinking water and in a floodplain. All of this soil must be remediated. This is in addition to the 50,000 ton large hazardous waste shredder pile. The highest levels of PCB and lead metals are processed and reclaimed due to the ongoing operations at AIM. The Pull Your Part area was also found to be contaminated and must be remediated. The levels of toxic chemicals found are so high that they make the contaminated soil a hazardous waste. This soil contamination increases each day that operations on the property continue and the threat to groundwater increases also. III 5.15 The Adamses argued that a risk assessment prepared by his consultant in 1989 showed that the shredder waste pile did not present a significant risk to human health or the environment. These arguments rested on three premises: that the· shredder waste being produced is nonhazardous; that the study provided in Adams' Exhibit 24 was complete and reliable to demonstrate a lack of exposure to the relevant individuals; that the risk assessment performed in 1989 was complete. These arguments wer~ not convincing for the reasons discussed above in the preceding paragraphs of this Section as well as the following reasons. 5.16 The "study" submitted in Adams' Exhibit 24 was performed by Terry Adams. No testimony or documentation concerning his qualifications to perform such a study or the scope and acceptability of the study for the purposes stated was presented. The methodology of the "study" is not described. The study does not include testing for PCB exposure which is one of the primary concerns with regard to the large shredder waste pile and the lime treatment process used in the shredder operation, which studies show to cause evaporation of PCBs. The study does not consider potential exposure to lead, PCBs and other hazardous chemicals for nonworkers including customers, pregnant women and children who are at particular risk. OSHA standards are not applicable to these individuals and these types of exposures. 5.17 The shredder waste being produced is not nonhazardous and testing has shown it to be hazardous. Both the shredder waste which the Adamses were disposing at the Orange County landfill in July 1991 and the shredder waste stored on the property beginning July 1991 through February 1992 have been shown to be hazardous. The Stipulation for Entry of Supplemental Permanent Injunction reads, "It is hereby stipulated as follows: ... Defendants GeorgeAdams, $r., George Adams, Jr. and Adams International Metals, are represented by George Adams, Jr., attorney at law .... Defendants have illegally accumulated the following tow waste piles on their premises: (i) A pile containing approximately 3000 tons of shredder waste, located on the North Side of the Defendants premises near the Santa Ana River (the "River Pile") .... Tests from material in this pile show that it is contaminated with PCBs at levels greater than 50 ppm. (ii) A pile containing approximately 700 tons of fine waste (the "Fine Waste Pile") .... Tests from materials in this pile show that it is contaminated with PCBs at levels greater than 50 ppm." Waste with more than 50 ppm PCBs is hazardous waste. 5.18 The risk assessment described in Adams' Exhibit 39 and the Remedial Action Plan is incomplete in that it does not consider important potential exposure routes, including fire and toxic smoke and surface water contamination and sensitive populations such as the disabled senior citizens and it is also outdated. Even if it were accepted, its conclusions are limited to the estimated risks during a five year period and the large shredder pile has already been on the property since 1984 which is eight years. 5.19 The risk assessment states that "there were no sensitive populations as~0ciated with schools or hospitals identified within one half mile of the site." However, facility for disabled senior citizens is located nearby and had to be evacuated in the January 1988 fire. The risk assessment stated that "surface water runoff from the fluff pile following rainfall... is discharged into the sanitary sewer ... Therefore, the surface water runoff was not considered to be a pathway ... This is incorrect as George Adams testified that he discharged surface runoff to the Santa Ana River during rainfall in February 1992, and that surface water also percolated into the ground and that the 17 waste piles were unlined. 5.20 Both the Orange County Water District and the 19 Regional Water Quality Control Board have expressed serious concern about the infiltration of surface water into the contaminated soil and in to the landfill beneath portions of the site which may be contaminating groundwater. The City's Supplementary Binder Exhibit 71 contains a letter from the Regional Board to DHS dated November 1988, which states: /// 26 /// 30 The continued presence of the pile at this site presents a threat to the quality of the Santa Ana River. For this reason we would like to see the pile removed as quickly as possible. Storm water runoff from the pile and the generation of leachate from fire prevention sprinklers utilized on the pile are generally maintained onsite since the site is situated in a depression.where there is no natural drainage of these wastes off-site. However this creates a flooding problem on-site which has previously hampered site operations to the extent that representatives of OCSS have pumped this water directly to the River or have redirected the water.to areas where it could discharge to the River. These discharges contain salinity and several heavy metals in excess of our Basin.--Plan's water quality objectives. . Another goal of the surface water management plan'~to minimize ponding of all water at the site. The site, including the pile, overlies a portion of an old municipal landfill. Percolation of water over this landfill would increase the moisture content in the landfill and promote generation of leachate which could affect the quality of local groundwater .... Any contaminants emanating from the pile as a result of surface water runoff would be available for percolation to the ground ... In summary, the pile presents an ongoing threat to ground and surface waters as long as it remains in place. The longer it remains in place, the greater will be the extent of soil remediation that may be necessary beneath the pile once the pile is removed." As noted above, the surface water management plan which the Board relied upon to minimize these risks was not implemented as approved and further discharges to the River and into the soil resulted. Since the fire prevention program requires the continual application of water to the large shredder waste pile, a constant stream of leachate from the pile is generated and seeps into the soils carrying contaminants, infiltrating the landfill and threatening the groundwater resource beneath. 5.21 'The risk assessment also did not consider exposures of workers or persons offsite to fire and toxic smoke or the unusually toxic chemical compounds which are produced when PCBs burn. 5.22 There have been several fires at the facility as a result of ongoing business operations, including the shredding of cars and metal salvage. There is a serious risk of future fires at the facility as a result of the business activities of the Adamses, including the auto shredder and metal salvage activities. .~' 5.23 Fires at the facility may burn the new and older shredder waste and other materials onsite producing toxic smoke which is a health hazard to persons at the facility and in the vicinity. 5.24 In January 1988, a serious fire occurred involving the large shredder pile which is contaminated by PBCs, among other hazardous chemicals. A hotel and senior citizen facility nearby were evacuated due to the toxic smoke from the fire. Burning of PCBs can produce highly toxic compounds dangerous to persons who are exposed. 5.25 The Risk Assessment was not accepted by the DHS toxicologist, and when they reviewed portions of it they found it to be out of date and required considerably more stringent cleanup levels. 5.26 For all of the foregoing reasons and based on the level of contamination described in the Remedial Action Plan which is atbributable to the business operations on the property (see paragraph 5.14 above) and the pattern of new, repeated and continuing violations set forth in Section 4 above and Section 6 below, the operations of the Adamses on the property present a serious hazard to public health and safety and the environment. Furthermore, the Adamses are collaterally estopped from arguing that the storage of the large hazardous shredder waste pile is not detrimental to the public health, safety. and welfare in that this issue has already been finally determined as to these par~ies in a previous adjudicatory hearing before the city Council which decision has become final. THE VIOLATIONS 6.1 The Adamses and the affected businesses are in violation and have recently been in violation of numerous CUP conditions, and of numerous statutes, ordinances, regulations or laws. Specific violations and citations to the record are set forth in Exhibits 1, 2, 3, 4, 5 and 7 of the City's Initial Position Brief and in Section V of that Brief. The Exhibits have been adopted as part of these findings, but some violations will be set. forth here. 6.2 The Adamses argued that the Pull Your Part operation was separate from the shredder operation and was therefore not responsible for complying with the CUP conditions relating to shredder waste and the related violations. This argument is incorrect legally and factually. ..First, the Adamses are collaterally estopped from arguing (1) whether CUPs 1703 and 2525 can be separately considered, (2) whether the uses approved under CUP 2525 can be severed, and (3) whether any use, including Pull Your Part, can be held not responsible for complying with all of the conditions of the CUP authorizing it, including the conditions concerning the shredder waste. 6.3 Second, the shredder operation and the auto dismantling business wereoperated as one business under one unified CUP which was CUP 2525. (See paragraphs 1.5~- 1.8.) All the Adamses' business activities on the property, including AIM, Pull Your Part and Auto Resales, are controlled by George Adams, Jr. and operated in an integrated manner, as parts of a single business. The Auto Resale and the former Auto Auction were represented to the City by the applicant, Mr. Adams, as a means to generate more income to clean up the "old" shredder pile. Abandoned vehicles, in various states of decay and related parts and materials for the different operations are often stored throughout the property, including on the Auto Resale lot and on adjacent parcels in unpermitted locations, without regard to which operation they belong to. The discharges and wastewater run off from the Pull Your Part lot, the shredder waste pile and the AIM shredder yard all commingle and are discharged together. 6.4 All of the violations discussed in'this Section are either Qurrent ongoing violations or recent violations. III 6.5 In 1991 the Adamses created multiple new illegal hazardous waste piles on the property, in violation of CUP Conditions 11 and 12 of CUPs 1703 and 2525, in violation of the Hazardous Waste Control Laws (HWCA), and in contempt of court. (This is pa~t of a pattern of conduct as the same illegal activity occurred between 1984 and 1986 and twice in 1987.) (See Section IV qf these Findings.) 6.6 Between July 1991 through and in¢luding.F~bruary 4, 1992 during the pendency of this hearing newly-generated shredder waste contaminated with PCBs in excess of 50 parts per million was stored on the subject property for more than 15 days in violation of CUP Conditions 11 of CUP 2525 and 1703 and the Superior Court Injunction. The Adamses continued to operate the shredder during this time period. George Adams, Jr., George Adams, St. and AIM stipulated to this violation. The Stipulation for Entry of Supplemental Permanent Injunction reads, "It is hereby stipulated as follows: ... Defendants George Adams, Sr., George Adams, Jr. and Adams International Metals are represented by George Adams, Jr., attorney at law ..... 5. Defendants acknowledge that they violated the Permanent Injunction in that, since July, 1991, they have continued to operate their shredder at times when they continuously had on their premises, newly- generated shredder waste which was well over 15 days old. 6. As a result of this violation, Defendants have illegally aocumulated the following two waste piles on their premises: 35 (i) A pile containing approximately 3000 tons of shredder waste, located on the North Side of the Defendants premises near the Santa Ana River (the "River Pile") .... Tests from material in this pile show that it is contaminated with PCBs at levels greater than 50 ppm. (ii) A pile containing approximately 700 tons of fine waste (the "Fine Waste Pile") .... Tests from materials in this pile show that it is contaminated with PCBs at levels greater than 50 ppm." 6.7 On February 21, 1992 and on February 26, 1992, during the pendency of this hearing, newly generated shredder waste was stored on the property more than 15 days while the shredder operated in violation of CUP Conditions ll and 12 of CUPs 1703 and 2525 and the Superior Court Injunction. 6.8 In August 1991, the Adamses were caught illegally disposing of hazardous shredder waste in an Orange County Class III landfill. This was in violation of the HWCA and the Superior Court Injunction because they illegally transported and disposed of hazardous shredder waste offsite. (This was part of a pattern of violations in that the Adamses had previously been caught illegally disposing of hazardous shredder waste in a Riverside Class III landfill (See paragraph 4.5 above) and similarly they were found to be illegally disposing of PCB contaminated shredder waste in Arizona in October 1986 and February 1987 without previous testing or the use of registered haulers or 36 manifests as required by the HWCA.) 6.9 The Adamses argued that this recent and repeated illegal storage was "caused" by the Orange County Landfill,s refusal to accept their waste after it was tested and found to be hazardous. 'This argument is insufficient and not credible. The Landfill was a Class III landfill which is not authorized to accept hazardous waste. The Adamses' attempt to dispose of hazardous waste in the landfill was illegal under the HWCA and contrary to the Superior Court injunction. Furthermore the County tested for heavy metals an~ found them in hazardous concentrations, but did not test for PCB's. The new shredder waste piles known as the River Pile and the Fines pile were contaminated with greater than 50 ppm PCB's and could not be accepted for disposal by a Class III landfill. Furthermore, the piles were created beginning in July 1991, before the County notified the Adams that the shredder waste had tested hazardous and could not be accepted. 6.10 In addition, CUP Conditions 12 have not and are not being complied with. Manifests or other shipping documents are not currently being submitted to Code Enforcement and have not been submitted except occasionally, after pressure from Code Enforcement since Conditions 11 and 12 were originally imposed. The one thousand ton per month minimum shipment of waste is not being met or documented as required. (Id.) These are continuing violations. /// ~ 37 ' 6.11 The plan for treatment and removal of all new shredder waste was not submitted by December 2, 1986 to the Planning Department as required by CUP Conditions 15 to CUPs 2525 and 1703. 6.12 Condition 13 of CUPs 1703 and 2525 has not been complied with and is not being complied with because no written plan was submitted by the Adamses by December 2, 1987 to the Planning Department Code Enforcement -Mousing Supervisor, describing the specific means and scheduling, including the estimated date of completion for removal of the existing shredder waste pile, nor'has any such plan ever been submitted. 6.13 As to both the new shredder waste pile and the large shredder waste pile, the Adamses failed to apply for or obtain a hazardous waste facility permit as required by the HWCA and failed to operate the piles in accordance with the management and closure requirements for hazardous waste piles. 6.14 Beginning in at least 1984 and oontinuing to the present the Adamses and the responsible businesses have failed to apply for or obtain a hazardous waste facility permit for the storage of hazardous waste in the large shredder pile in violation of the hazardous waste control laws and the federal Toxic Substance Control Act. 6.15 The Adamses and the responsible businesses have failed to prepare and to implement a closure plan for the large hazardous waste pile as required and in a timely manner. 6.16 The Adamses and responsible businesses are not in compliance with financial assuranoe and construction operation and maintenance requirements for hazardous waste piles, with respect to the large shredder pile. 6.17 The Adamses stored hazardous waste resulting from their business operations..under CUPs 1703 and 2525 in waste piles (the "River Pile and the Fines Pile") on the facility on and after July 1991, without applying for or obtaining a 9 ~ 10 hazardous waste facility permit in violation of the California Hazardous Waste Control Laws. 11 6.18 On or about December 1991 through February 1992, 12 the Adamses treated hazardous waste from the "River Pile and the Fines Pile" (which piles contained more than 50 ppm PCBs) without first Obtaining state and federal permits or variances authorizing such treatment in violation of the 16 California Hazardous Waste Control Laws and the federal 17 Toxic Substances Control Act. 18 6.19 From July 1991 through February 1992, the Adamses 19 stored hazardous waste in waste piles including the "River Pile and the Fines Pile" (which contained more than 50 ppm PCBs) without complying with the construction and operation and closure requirements applicable to such waste piles in violation of the California Hazardous Waste ControlLaws and the federal .Toxic Substance Control Act. These violations include failure to place a liner beneath each pile; failure to install a leachate collection system above the liner to 39 collect and remove leachate from the pile; failure to cover the piles and take steps to prevent wind dispersal; failure to maintain access for emergency vehicles such as fire trucks; and failure to prepare or implement a closure plan and to sample for contamination from the pile after removal of the waste piles. 6.20 Each of the wiolations of Paragraph 3 of the Permanent Injunction of March 12, 1991, issued by theOrange County Superior Court in Case No. 50-11-04 identified in paragraphs 6.6, 6.7 & 6.8, is also a violation by AIM of the District Court Consent Decree in Case No 5ACV 90-617 AHS (RWRX). 6.21 The Adamses and AIM recently violated the Permanent Injunction in Case No. 50-11-04 beoause they failed to maintain the fifty foot fire access around the entire perimeter of the existing waste pile. (Inspections on: 05-09-91; 10-14-91; and, 10-17-91 observe that there was not a 50 foot access around the shredder waste pile.) 6.22 AIM is in violation of the Consent Decree in Case No. 5ACV90-617 AHS (RWRX) because it has not paid the monthly payments as required. In addition AIM, George Adams, Sr. and George Adams, Jr. did not pay the DTSC the cost of its oversight, which is $800,000.00, within thirty days as required by the Remedial Action Order issued in June 1987. Further, the receipts submitted by the Adamses for remediation of the site showed that in the last year that receipts are provided (February 25, 1991 through March 1, 40 1992) the Adamses spent only a total of $27,445.29 or an average of $2,287.11 per month. This includes the months following the approval of the Remedial Action Plan (RAP) by the state on June 30, 1991, when Respondents should have been working at top Speed on the preparation of the detailed Remedial Design Plan (which was due sixty days after the RAP was approved under the state's Remedial Action Order) and on implementation of the RAP. 6.23 The Adamses have failed to implement the Remedial Action Plan in accordance with the requirements of the Remedial Action Order and are in violation of the Remedial Action Order. 6.24 George Adams recently illegally discharged contaminated wastewater and hazardous waste leachate into the Santa Ana River On February 12, 1992. 6.25 Throughout the entire time the Adamses have operated, there have been options for disposal of the shredder waste in permitted hazardous waste landfills and legal means to avoid violating the law. First, the Adamses could stop producing hazardous waste at any time. Second, the Adamses could have, and were required by law to characterize their waste and legally dispose of it as it was produced. (See City's Initial Brief.) Third, at any time from 1984 to and including the present, they could have taken the ~!legally stored hazardous waste to a legal disposal site. Finally, at any time from 1979 up to and including the present, they could have applied for a hazardous waste storage permit and taken steps to comply with the construction, operation, financial assurance and closure requirements for hazardous waste piles. ADDITIONAL FINDINGS AND VIOLATIONS 7.1 Violation No. 4 as presented in the March 31, 1992, Staff Report states: [a]11 steps necessary to protect against flooding at the Subject P~operty and to avoid the unauthorized discharge/disposal of wastewater, leachate and/or runoff from the Subject Property 'must be taken in a timely manner, including the construction of necessary grading and other improvements and the obtaining of all necessary permits or variances for discharge/disposal of wastewater. In short, the violation concerns the need for adequate steps to protect surface and ground water from pollution created by operations at the Subject Property. 7.2 There was a significant amount of evidence presented that established the long-term nature of this problem and its effects. The city presented testimony and documentary evidence in the form of a letter from the California Regional Water Quality Control Board, dated FebruarY 3, 1988, concerning illegal discharges. Other documentary evidence supports the fact that the Adamses failed to take the necessary steps to develop and implement a plan necessarY to address the problem in a timely manner. 7.3 ,.Mr. LaRochelie, a City Code Enforcement Supervisor, presented extensive oral testimony establishing that Mr. Adams had received notice of the problem, but that drainage problems were never adequately addressed. 7.4 The City established that the long-term continuing violation concerning drainage has still not been rectified through reference to a July 9, 1991, Code Enforcement inspection log where grey water was observed pooling in the property and no approved drainage plan was in place, and also the February, 1992,.illegal discharges of contaminated wastewater and leachate into the Santa Ana Rive~. The February 7, 1992, letter from the RWQCB clearly supports the fact that the discharge was illegal and due in part to the failure to have an adequate drainage system. 7.5 The city also established that the contaminated run-off from the Adamses' activities on the ~ubject Property present a risk of contamination of the groundwater which is beneath the site. 7.6 The continuing failure to have an adequate drainage system is a violation of Condition 3 of CUP 2525 that requires that drainage be disposed of in a manner approved by the City. 7.7 The discharge of contaminated wastewater and leachate in February, 1992, was illegal. 7.8 The discharges to adjoining surface waters and the risk of contamination of the groundwater under the Subject Property is detrimental to public health and safety so as to constitute a. nuisance. 7.9 Violation No. 5 as presented in the March 31, 1992, Staff Report states: 43 [a]11 buildings or structures over 120 square feet in the area shall be authorized by a building permit. Obtaining required permits and inspectors, or present finalized permits for said building or structures, as required. This violation~ in short, concerns the fact that the Adamses have built or maintained structures without proper permits. ~ 7.10 The City presented evidence in the March 31, 1992, Staff Report and back-up documents that established that several of the structures on the property had never been properly permitted including memoranda from various City Employees with authority over theserequirements. 7.11 During the Public Hearing, Peggy Flanagan, a City of Anaheim Code Enforcement. officer, presented oral testimony that outlined basic permitting requirements and substantiated the fact that Mr. Adams had notice that the permit requirements had not been satisfied, yet the violation remained outstanding. 7.12 The failure to obtain necessary building and associated permits is a violation of Anaheim Municipal Code Section 18.04.090.020 which requires such permits. It is also part of a pattern of conduct that establishes the CUPs have been exercised in violation of law. 7.13 Violation No. 6 presented in the March 31, 1992, Staff Report.states: [a]11 signs over 20 square feet in area are required to be authorized by approval of a Conditional Use Permit. Obtain Conditional Use Permit approval for, or remove the freestanding billboard sign advertising "Pull Your Part" located at the property identified as 3300 East Frontera Street. This violation speaks for itself and concerns the fact that the size of allowable signage is controlled by the zone a property is located in. 7.14 The City established that a sign in excess of twenty square feet was l~cated in a portion of the Subject Property zoned RS-A-43,000. The evidence was in the form of a Code Enforcement log indicating the existence of the sign and photographs 25(D) (1-4) that document the sign and its approximate size. This evidence was confirmed by testimony by Ms. Flanagan during hearing who explained the fact that the Adamses had never finalized the reclassification associated with CUP 2525 and that the sign had been erected anyway. 7.15 There was evidence that Mr. Adams should have been aware that the reclassification was not completed as far back as at least 1985. Also, Mr. Adams could have checked a.zoning map and seen that it was obvious the reclassification had never been completed. (A zoning map for the Subject Property was reproduced as part of the notice for the public hearing and is included as p. 2 of the March 31, 1992, Staff Report)° 7.16 Violation No. 7 presented in the March 31, 1992, Staff Report states: [a]11 on-site and on-street vehicle repair activities shall cease. This violation concerns both the off-site problem of people repairing vehicles in the street which is associated with the operations.at the Subject Property and the on-site problem of the operation of vehicle repair facilities at the Subject Property. 7.17 Although the persons actually involved in the on- street vehicle repair violations were not directly associated with the operations at the Subject Property, the City established that the problem was significant and was caused by the operation of the "Pull-Your-Part" business at the Subject Property. Evidence of this included Coded Enforcement inspection log references; numerous citations issued to persons violating the prohibition against on- street vehicle repair; and photographs of the activity taking place. Mr. LaRochelie substantiated these violations through oral testimony. Mr. Poole also provided testimony establishing the causal connection between the operation at the Subject Property and the violations. 7.18 The on-street vehicle repair is a violation of Anaheim Municipal Code Section 12.16.070 and can be considered to constitute evidence that the CUPs have been, and are being, exercised in a manner constituting a nuisance. 7.19 The existence of an on-site vehicle repair facility was also established by the City. The evidence included Code Enforcement inspection log references; as well as oral testimony by Mr. LaRochelie. Mr. LaRochelie explained that private vehicles are being repaired at the site, presumably for resale at the used car lot. This is an additional use and'unpermitted under CUPs which relate to storage operations and sales of used cars. 7.20 The on-site vehicle repair operations at the Subject Property violate Anaheim Municipal Code~.Section 18.61.050.070 and 18.02.040 whioh prohibit commercial vehicle repair in an RS-A-43,000 zone and require a CUP for such activities in an ML Zone. The p~oof of on-site vehicle repair also is evidence of a pattern of conduct establishing that the CUPs have been, and are being, exeroised contrary to law. 7.21 Violation No. 8 presented in the March 31, 1992, Staff Report states: [¢]ease all tow truck operations at or originating from 3200 East Frontera Street. A towing operation is not allowed within an "ML" Limited Industrial Zone. This violation relates to the fact that although tow trucks can be used on-site for moving wrecked vehicles, a tow-truck operation where vehicles are moved from off-site to on-site is not permitted under the current CUPs. 7.22 The City presented evidence that established that a tow truck operation where vehicles from off-site were brought on-~ite had been operated at the Subject Property for many years. Numerous Code Enforcement inspection logs and photographs concerning this violation were referenced by the City in its March 31, 1992, Staff Report. Testimony by Mr. LaRochelie and Mr. Poole corraborated the fact that at least one tow truck, advertising the Pull-Your Part business, had been Operating out of the Subject Property and that the problem was that this operation had never been permitted. Mr. Adams even admitted having operated the tow trucks since 1977. 7.23 The operations of the tow trucks out of the Subject. Property is a violation of Anaheim Municipal Code Sections 18.61.020 and 18.61.030 because towing operations are not allowed in an RS-A-43,000 or an ML Zone. It is also evidence of a pattern of ¢onduot establishing that the CUPs have been, and are being exercised contrary to law. 7.24 Violation No. 9 presented in the March 31, 1992, Staff Report states: [i]mplement mitigation measures to eliminate heavy accumulations of dust and smoke caused by and emanating from time-to-time from the business operations. This violation addresses two related air quality problems. The first is the hazard from smoke and fires at the Subject Property and the second is the problem of dust from the operations. The fire issues have been discussed in Section 5. 7.25 The City also established that there has been a long-terma~d continuing dust problem at the facility. The' evidence presented ranged from City Counsel hearing minutes showing that the City had a real concern over the potential for such a problem, to a memorandum from Rod Hallock, the city of Anaheim's Sanitation Superintendent, that as of April 2, 1992, additional street sweeping was necessary on the street in fron~ of the Subject Property despite any efforts allegedly made by the Adamses to control dust and additional oral testimony substantiating the problem and that Mr. Adams had notice of the problem. -~ 7.26 The dust problem at the Subject Property is part of an overall pattern of conduct that establishes that the CUPs have been and are being exercised in a manner that constitutes a nuisance. 7.27 Violation No. 10 presented in the March 31, 1992, Staff Report states: [i]nadequate provision has been made for employee customer traffic being generated from these facilities, creating an undue burden on existing public rights of way, and causing potential traffic hazards. Mitigating measures shall be taken to provide adequate egress, ingress and on-site parking facilities to reduce or eliminate potential traffic safety methods. This violation involves the fact that traffic, in and out of the Subject Property, has dramatically increased from levels originally represented when the CUPs were granted, yet no adequate provision has been made to remedy the effects. 7.28 M~inutes from the Planning Commission and City Counsel Meetings where CUPs 1703 and 2525 were considered established that vehicular traffic originally was to be in the range of 40-50.vehicles per day, and even with expanded operations under CUP 2525, traffic was estimated at less than 60 customers a day with an average of 50 trucks a day. Several traffic counts submitted by the City show that traffic now exceeds'~000 vehicles per day. In addition, the City provided evidence showing the impact of this problem, including Code Enforcement Inspection Logs, photographs and oral testimony from Mr. LaRochelie concerning- heavy congestion and the possibility of traffic accidents. Further, David Williams, the operator of DBW & Associates located at the Subject Property, complained of the impact on his business of traffic congestion problems associated with the other businesses. 7.29 The fact that the Adamses may have begun the process for applying for a CUP for an additional parking lot does not relieve them of their responsibility for the traffic problem. First, the city is not obligated to give the Adamses permission to build the additional parking area as this is an expansion of their use (traffic has increased nearly ten-fold from original representations) that may not be compatible with surrounding land uses. Second, oral testimony from Greg McCafferty, Associate Planner with the City of Anaheim, showed that the Adamses had not followed through on their CUP application. 7.30 The traffic problems associated with the Subject Property are part of an overall pattern of use that establishes that the CUPs have been, and are being, 50 exercised in a manner constituting a nuisance. 7.31 Violation 12 presented in the March 31, 1992 Staff Report states: [a]11 commercial vehicles making deliveries to businesses at this location shall immediately cease loading, unloading and/or double parking in the public street. This violation is similar to Violation No. 10 in that it involves traffic problems, but addresses a particular concern over loading and unloading that was expressed as part of the conditions for CUP 3052. 7.32 The City established that there was a distinct problem with vehicles used for delivering and removing junked and used cars and as well as processed scrap metal to and from the Subject Property. Evidence was presented in the Violation Binder supporting the March 31,. 1992 Staff Report. 7.33 The loading and unloading of vehicles in the street constitutes a violation of condition No. 4 of CUP 3052 that requires all loading and unloading to take place on-site. It is also part of a pattern of conduct that establishes that the CUPs have been, and are being, exercised in a manner constituting a nuisance. 7.34 Violation No. 13 presented in the Staff Report of March 31, 1992, states: [r]emove all inoperable vehicles currently stored within the designated off-street parking area located':~on the west side of (abandoned) Newkirk Road, and on the south portion of the property designated and approved for used car sales. 1 7.35 The City established that there was a continuing 2 problem with the storage of junked vehicles on the property 3 permitted as a used car lot. In conjunction with the March 4 31, 1992, Staff Report, documentary and photographic 5 evidence was submitted. Also, Mr. LaRochelie testified that 6 there was an ongoing problem. 7 7.36 Although not a particularly serious violation by 8 itself, this is a direct violation of condition 13~-of CUP 9 3052 that specifically prohibits the storage of inoperable ~ I0 vehicles on the property permitted by CUP 3052. As such, it 1I is evidence of an overall pattern of conduct that 12 establishes the CUPs were exercised, and are being 13 exercised, in a manner contrary to the conditions of their 14 approval. 15 7.37 The storage of inoperable vehicles on the 16 property permitted by CUP 3052 is also.evidence that the ~ Adamses ran their various businesses .as one overall ~ 18 operation and made little effort to keep impacts from one business from affecting adjoining properties. 7.38 Violation No. 14 presented in the March 31, 1992 Staff Report states: [r]epair fencing so that waste pile and business activities are not visible from the street and trails. Remove and replace overgrown, missing and dead vegetation along the north and south property lines. This violation involves a disregard primarily for aesthetic considerations. The property is located at an entryway to the City and complaints were received from the 52 public. The City Council imposed aesthetic conditions to minimize the adverse impact of these otherwise inappropriate activities. 7.39 Problems with landscaping have been continuous since before CUP 170~ was first granted. At a City Planning Commission meeting an Adams representative responded to concerns raised by the. Commissioners by stating that adequate fencing to screen the operation would be installed within 90 days. Notices of violations stretch baok as far as 1982, continue through 1984 and the City presented evidence that the violation continues to recur. 7.40 The failure to maintain adequate site-screening and landscaping is a violation of conditions 2, 3 and 4 of CUP 1703 that require such measures and is evidence of a pattern of conduct that establishes that the CUPs at issue have been, and are being, exercised in manner contrary to the conditions of approval. 7.41 Violation 15 presented in the Maroh 31, 1992, Staff Report states: [r]emove refuse, waste, and debris, consisting of but not limited to tires, batteries, auto parts, abandoned motor cycle chassis, trash, debris, and other discarded items located in, and adjacent to, the public right-of-way and along all property boundaries. 7.42 The Citypresented evidence that established that the accumulation of used auto partS, including batteries which contain hazardous substances, is a long-term problem at the Subject Property. 53 7.43 The accumulation of used auto parts in the street is a direct result of operations at the Subject Property and is a violation of Anaheim Municipal Code Section 6.44.010.050 that prohibits the accumulation of refuse and waste matter. More importantly, it is evidence of a pattern of conduct at the Subject Property which establishes that the CUPs have been, and are being, exercised in a manner ? 8 constituting a nuisance. 9 ~RAUD 8.1 The City also presented convincing evidence that the Adamses had obtained CUP 2525 by fraud. In addition to the grounds for termination described above, Section 18.03.092 also provides for termination of a CUP if the CUP was obtained by fraud. George Adams, Sr. initially applied for CUP 2525 (to expand a resource recovery facility including an automobile dismantling business) in 1983. See Exhibit 38 of the Supplemental Binder. In this application, l? he specifically represented on the initial study form that the property was not going to be used for storage of hazardous wastes. Id. As with CUP 1703, the applicant had 20 initiated the use without the required CUP and rezoning. A general plan amendment was also required. The application was reviewed by the Planning Commission on May 14, 1984 after two continuances had been requested by the Petitioner. The Plannin??ommission required further tests regarding the proposed septic system, because of their concerns about the proximity of the property to the Santa Ana River and water 54 supplies and the resulting potential for contamination. The Planning Commission reviewed and discussed the zoning and application and tests on June 11, 1984 and approved the CUP and negative declaration. All three matters came before the City Council on JulyS31, 1984 and after further discussion they were approved including the negative declaration and CUP 2525. In March 1984 Adams had received notice from the Department of Health Services that the shredder waste in the waste pile on site was in fact a hazardous waste. Adams' failure to correct the error in his application despite three hearings, and to inform the city that hazardous wastes in fact were and would be stored and pre~ent on the property, constituted a material omission and misrepresentation. This constitutes a wholly separate and independent basis for termination of CUP 2525. CONCLUSIONS Based on the foregoing findings of fact and conclusions of law the hearing officer recommends that CUPs 1703, 2525 and 3052 be revoked for the following reasons: 9.1 CUPs 1703, 2525 and 3052 should be terminated because the uses for which approval was granted have been so exercised as to be detrimental to the public health or safety; 9.2 CUPs 1703, 2525 and 3052 should be terminated because the use and activities and conditions on the property constitute a nuisance; 9.3 CUP 1703, and CUP 2525 should be revoked because 55 they are being, or recently have been, exercised contrary to the terms or conditions of such CUPs; 9.4 CUP 1703, CUP 2525 and CUP 3052 should be terminated because they are being, or recently have been, exercised in violation of statues, regulations, ordinances and laws; 9.5 CUP 3052 should be terminated because the use for which such approval was granted ceased to exist; 9.6 CUP 2525 should be terminated because the approval was obtained by fraud. I also conclude that 9.7 AIM, Orange County Steel Salvage, Self Serve Auto Dismantlers aka Pull Your Part are all controlled by George Adams Jr. and the Adams family and operated as one business under CUPs 1703 and 2525 and the Adamses are collaterally estopped from claiming otherwise; 9.8 The operations of the Adamses and the business on the property present a very serious risk to health, safety and the environment; and the Adamses and the businesses are collaterally estopped from claiming otherwise; and 9.9 The City of Anaheim has made extensive efforts to obtain compliance by the Adamses and the businesses operated by the Adamses on the subject property from 1977 to the present and has taken numerous previous enforcement actions short of termination of CUPs '1703, 2525 and 3052 and considered and tried reasonable alternatives to revocation which have failed to be effective in obtaining compliance and reducing or preventing the risk to public health and safety and the environment due to the Adams' failure or ~ refusal to comply. DATED: August 20, 1992 Jo g officer 57 PROOF OF SERVICE BY MAIL I, STEPHANIE A. CATTERALL, not a party to the within action, hereby declare that on August 21, 1992, I served the attached FINDINGS AND RECOM~ENDATION0n the parties in the within action by depositing true copies thereof enclosed in sealed envelopes with postage thereon fully prepaid,. in the United States Mail, at Orange, California, addressed as follows: · JAMES J. HEVENER, ESQ. SELMA J. MANN, ESQ. JONES, DAY, REAVIS & POGUE DEPUTY CITY ATTORNEY 555 WEST FIFTH STREET 200 SOUTH ANAHEIM BOULEVARD SUITE 4600 SUITE 356 LOS ANGELES, CA 90013-1025 ANAHEIM, CA 92805 JEAN A. MARTIN, ESQ. PILLSBURY, MADISON & SUTRO 725 SOUTH FIGUEROA STREET SUITE 1200 LOS ANGELES, CA 90017-2513 I declare under penalty of perjury the foregoing to be true and correct. Executed at Orange, California on the 21TH day of AUGUST, 1992. STEPHANIE A. CATTERALL