IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
March 15, 2011
POWER INN ALLIANCE, PLAINTIFF AND APPELLANT,
COUNTY OF SACRAMENTO ENVIRONMENTAL MANAGEMENT DEPARTMENT/LOCAL ENFORCEMENT AGENCY ET AL., DEFENDANTS AND RESPONDENTS; ZANKER ROAD RESOURCE MANAGEMENT CO., ET AL., REAL PARTIES IN INTEREST AND RESPONDENTS. COLLEGE/GLEN NEIGHBORHOOD ASSOCIATION, PLAINTIFF AND APPELLANT,
COUNTY OF SACRAMENTO ENVIRONMENTAL MANAGEMENT DEPARTMENT/LOCAL ENFORCEMENT AGENCY ET AL., DEFENDANTS AND RESPONDENTS; ZANKER ROAD RESOURCE MANAGEMENT CO., ET AL., REAL PARTIES IN INTEREST AND RESPONDENTS.
(Super. Ct. Nos. 34-2008-00012179-CU-WM-GDS; 34-2008-80000009-CU-WM-GDS; 34-2008-80000010-CU-WM-GDS; 34-2008-80012182-CU-WM-GDS)
Power Inn Alliance v. County of Sacramento Environmental Management Dept. CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Zanker Road Resource Management Company (Zanker) proposed to reopen a solid waste facility in Sacramento County (the County) and sought a solid waste facility permit from the Local Enforcement Agency of Sacramento County. The Local Enforcement Agency prepared an initial study under the California Environmental Quality Act (CEQA), Public Resources Code section 21000 et seq. Because the initial study concluded that impacts of the project would be less than significant in every environmental category, the Local Enforcement Agency issued a negative declaration and granted the permit.
Power Inn Alliance and others sued the County and others, asserting that issuance of the permit based on a negative declaration violated CEQA. The trial court disagreed and entered judgment in favor of the County and other defendants, respondents, and real parties in interest. On appeal, Power Inn Alliance and the other appellants contend that the trial court erred because (1) the negative declaration mischaracterized the project, (2) the City of Sacramento, not the County's Local Enforcement Agency, was the proper lead agency, and (3) substantial evidence supported a fair argument that the project would have a significant impact in several environmental categories. Finding that the contentions are without merit, we affirm.
The project that was subject to the initial study and negative declaration is a solid waste facilities permit for a large volume transfer station and materials recovery facility (the facility) to be run by Zanker. The site of the facility is 4201 Florin-Perkins Road in the City of Sacramento (the City). The site was previously used for the same purpose and an initial study and negative declaration had been used when the previous operator obtained approval to run the facility. However, the facility was no longer in use when Zanker sought approval.
The initial study, prepared for Zanker's application by Sacramento County's Local Enforcement Agency, acting as the lead agency, discussed various environmental impacts of the proposed project and concluded that all were less than significant. We need not recount the analysis of environmental impacts here but will do so as each becomes relevant to the discussion of the issues raised by Power Inn Alliance.
Based on the initial study concluding that the project would not have a significant impact on the environment, the county's environmental coordinator issued a negative declaration. She declared that an environmental impact report (EIR) was not required. Thereafter, the California Department of Resources Recycling and Recovery, formerly called the Integrated Waste Management Board (the Waste Board) concurred in the proposed solid waste facility permit, and the Local Enforcement Agency issued the permit.
Power Inn Alliance filed a petition for writ of mandate and complaint for injunctive and declaratory relief, naming as defendant and respondent the County's Local Enforcement Agency and as real parties in interest Zanker and others associated with the project. The petition and complaint alleged that the County's Local Enforcement Agency abused its discretion in issuing the negative declaration and sought a writ directing the Local Enforcement Agency to set aside the negative declaration and enjoin further action related to the project that would harm the environment until the Local Enforcement Agency complies with environmental laws. The petition and complaint also sought a declaration that the City, rather than the County's Local Enforcement Agency, is the proper lead agency for the project.
By stipulation of the parties, Power Inn Alliance's petition and complaint (case No. 34-2008-00012179-CU-WM-GDS) was consolidated with another petition and complaint filed by Power Inn Alliance (case No. 34-2008-80000009-CU-WM-GDS) and two similar petitions and complaints filed by College/Glen Neighborhood Association (case Nos. 34-2008-00012182-CU-WM-GDS and 34-2008-800000100-CU-WM-GDS). Because they filed a joint opening brief, we refer to the petitioners and plaintiffs collectively as Power Inn Alliance.
C. Trial Court Judgment
After a hearing on the case, the trial court issued a ruling on the submitted matter. The court concluded that Power Inn Alliance's contentions were without merit. It therefore denied the petition for writ of mandate and entered judgment in favor of the Local Enforcement Agency on the complaint for declaratory and injunctive relief.
Power Inn Alliance appeals.
Characterization of Project
A. Whole of the Action
Power Inn Alliance claims the initial study's characterization of the project for the purpose of environmental review was too narrow and did not fully subsume the "whole of the action" and that the Local Enforcement Agency failed to disclose key information in this regard. We conclude that the Local Enforcement Agency's characterization of the project was proper.
"Under CEQA, a 'project' means 'the whole of an action, which has a potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment . . . .' (Guidelines, § 15378, subd. (a), italics added; see also [Pub. Res. Code,] § 21065.)[*fn1 ] It refers to the underlying 'activity' for which approval is being sought. (Guidelines, § 15378, subd. (c).) The entirety of the project must be described, and not some smaller portion of it. (Santiago County Water Dist. v. County of Orange (1981) 118 Cal.App.3d 818, 829-831 [EIR for mining operation failed to include extension of water facilities, obscuring from view an important aspect of the project].)" (San Joaquin Raptor Rescue Center v. County of Merced (2007) 149 Cal.App.4th 645, 654.)
"[A]n EIR must include an analysis of the environmental effects of future expansion or other action if: (1) it is a reasonably foreseeable consequence of the initial project; and (2) the future expansion or action will be significant in that it will likely change the scope or nature of the initial project or its environmental effects. Absent these two circumstances, the future expansion need not be considered in the EIR for the proposed project." (Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 396.)
The project application, initial study, and negative declaration describe a material recovery facility and large volume transfer station to accept loads of waste, recover recyclable materials, and transfer non-recyclable materials to appropriate destinations. The solid waste facility permit, for which the negative declaration was required, allows for no landfill operations. Yet, Power Inn Alliance claims that other evidence evinces Zanker's intent eventually to run a public landfill. For example, (1) Zanker's yellow pages listing describes the business as public landfill; (2) the site plan included facilities, such as a future office, circulation, and infrastructure that could support a landfill; and (3) the lease between Zanker and the property owner allows Zanker to use the property as a landfill.*fn2
None of this evidence supports a finding that approval of the solid waste facility permit was simply a prelude to expansion of the site into a public landfill. (1) Zanker's advertisement in the yellow pages is for current operations which do not include a landfill, not some anticipated future operation. (2) The possible future improvements in the site plan do not include a landfill. And (3) the permission in the lease to use the property as a landfill, in addition to the permitted recycling and transfer facility, does not bind Zanker to do so. Furthermore, Zanker stated that it does not intend to expand the site into a landfill, and the permit issued to Zanker does not allow landfill operations.
This case is distinguishable from Santiago County Water Dist. v. County of Orange, supra, 118 Cal.App.3d 818, cited by Power Inn Alliance. In that case, the applicant sought a permit to engage in mining operations. The environmental review, however, failed to consider the water facilities that would be required to deliver water to the mining operations. For this reason, the court found the environmental review inadequate for failing to consider the whole of the action. (Id. at pp. 829-830.) Here, there is no landfill planned for the project site, and a landfill is not a necessary component of a recycling and transfer facility. Therefore, there is no requirement to include landfill activities in the whole of the action.
Use of the property as a landfill is not a reasonably foreseeable consequence of the recycling and transfer facility. (See Laurel Heights Improvement Assn. v. Regents of University of California, supra, 47 Cal.3d at p. 396.) The project application, initial study, and negative declaration properly represented the whole of the action. (CEQA Guidelines, § 15378, subd. (a).)
B. Alleged Mischaracterizations
In a related argument, Power Inn Alliance claims the negative declaration (1) mischaracterizes the types of waste processing activities to be undertaken at the facility, (2) withholds crucial documents, and (3) glosses over significant features of the project. None of these claims has merit.
1. Project Description
Power Inn Alliance asserts that the negative declaration deceptively stated that a "majority of wastes at the site will be construction debris." To support this accusation, Power Inn Alliance cites a chart contained in the transfer/processing report prepared by Zanker that states that 19 percent of the waste accepted at the facility will be "inert wastes" and 50 percent will be "other/non-recoverable." Without further explanation, Power Inn Alliance argues: "Fifty percent (50%) of the estimated 'average' composition of the waste types to be handled at the site will not be inert or other recoverable waste, but instead will be 'Other/Non-recoverable' waste types." (Original italics.) Because Power Inn Alliance fails to explain the correlation among "construction debris," "inert wastes," and "other/non-recoverable," this argument makes no sense and fails to support the assertion that the negative declaration deceptively stated that a "majority of wastes at the site will be construction debris."
2. Non-recoverable Wastes
As noted, the transfer/processing report states that 50 percent of the waste accepted at the facility will be "other/non-recoverable." The same report states that "no drugs, cosmetics, foods, beverages, hazardous wastes, poisons, medical wastes, syringes, needles, pesticides and other materials capable of causing public health problems shall not be salvaged at the [facility]. Should household hazardous wastes be retrieved from the load checking, these items will not be salvaged, but stored and disposed of in accordance with the load-checking program."*fn3 From this statement, Power Inn Alliance attempts to establish that the negative declaration was required to state that these types of waste would be processed. To the contrary, the transfer/processing report states that "no" waste of the type described is to be salvaged at the facility. That the report also provides for the eventuality that the facility might improperly receive some of the prohibited types of waste does not mean the negative declaration mischaracterized the project.
3. Availability of Documents
Power Inn Alliance maintains that "the true nature of the waste that the proposed facility will process -- much of which may be putrescible[fn] [such as food, which decomposes and emits odors] -- is buried in the [transfer/processing report], which the [Local Enforcement Agency] did not circulate with the negative declaration or identify for public review. [Citation.] This approach hindered the public's access to basic information and shielded the negative declaration from meaningful public review." To the contrary, the public had access to the transfer/processing report. The negative declaration stated: "The proponent of the current project, Zanker Road Resource Management, Ltd . . . has prepared a Transfer/Processing Report (TPR) for the proposed project." The report was available to the public. And several interested parties, including those associated with Power Inn Alliance and other petitioners and plaintiffs, obtained the report.
Despite this availability of the transfer/processing report, Power Inn Alliance, in its reply brief, complains that the reference to the transfer/processing report in the negative declaration did not meet the CEQA requirements for incorporating a document by reference. However, incorporation by reference was not necessary. Instead, Power Inn Alliance's assertion in the opening brief was that the document was not available for public review. As discussed, that assertion is without merit. In any event, availability of the transfer/processing report, even if the report was not included in the negative declaration, did not hinder the public's access to basic information about the project.
Under CEQA, the lead agency has principal responsibility for carrying out or approving a project and making decisions regarding the proper manner of complying with CEQA. (Pub. Res. Code, § 21067; CEQA Guidelines, § 15050.) "If the project will be carried out by a public agency, that agency shall be the lead agency even if the project would be located within the jurisdiction of another public agency." (CEQA Guidelines, § 15051, subd. (a).) In this case, the Local Enforcement Agency was the proper lead agency because it would issue the solid waste facility permit.
Power Inn Alliance contends that the City, not the Local Enforcement Agency, should have been the CEQA lead agency for the project because the City's action would be needed for three discretionary approvals: (A) a use permit, (B) a master plan approval, and (C) a permit to build a future shop and office. To the contrary, no City action was required and, therefore, the Local Enforcement Agency was the proper lead agency.
A. City Use Permit
Power Inn Alliance argues that the City should have been the lead agency because it would be necessary for the City to issue a use permit for the facility. This argument is without merit because, as the City determined, the use permit obtained from the City by the prior operator of the facility was still valid.
Sacramento City Code section 17.212.100, subdivision (g), states: "Any special permit, the exercise of which is voluntarily or involuntarily interrupted for a period in excess of two years, shall be deemed automatically revoked." Power Inn Alliance argues that the City's use permit was automatically revoked, by operation of law, because the exercise of the permit was interrupted for a period in excess of two years.
Florin Perkins Landfill, Inc., the prior operator of the facility, obtained a use permit (not to be confused with the solid waste facility permit to be issued by the Local Enforcement Agency), special permit No. Z98-114, from the City allowing operation of the facility. In response to concerns expressed about Zanker's subsequent operation of the facility under the same permit, the City stated: "The prior operator of the site, Florin Perkins Landfill, Inc., . . . vacated the site on February 5, 2005. Since then, several meetings have been held between the owner and City staff to discuss the status of the site, code violations existing on the site as reflected in formal orders issued by the City and as discussed informally with the owner, and abatement of such violations. . . . [¶] The owner has provided extensive documentation that clean-up operations were ongoing throughout the time since the prior operator vacated the site to the present in order to comply with the [Local Enforcement Agency], Water Resources Board and City orders and requests. In the Spring of 2007, City staff determined that facts could not be established to support a finding that the exercise of the owner's special permit was voluntarily or involuntarily interrupted for a period in excess of two (2) years so as to justify revocation of the permit under Sacramento City Code section 17.212.100. Rather, staff reviewed extensive documentation that confirmed that the owner engaged in an active clean-up operation to comply with the orders of various agencies to come into compliance. This activity and indications that the site at present is 85% cleaned and/or abated demonstrates that the owner did not abandon the site."
Zanker was involved in clean-up of the site by summer of 2006, less than two years after the prior operator's surrender of the solid waste facility permit. And Zanker leased the property in October 2006.
Power Inn Alliance asserts that, despite the City's determination that use permit did not lapse, the use permit was revoked by operation of law and it would be necessary for Zanker to obtain a new use permit. This assertion is without merit because (1) the City has already determined that no new permit is required and (2) the City's determination that the use permit did not lapse was not an abuse of discretion.
Power Inn Alliance offers no authority for the proposition that it can challenge the validity of the use permit through this environmental litigation. The complaint and petition makes no attempt to have the court invalidate the permit. Instead, it asserts causes of action based on CEQA and prays for relief only as to CEQA requirements and procedures. This is not a mandamus action against the City for relief from its determination that the use permit is still valid. Therefore, by the determination of the City, the use permit stands unrevoked, and it is not necessary for Zanker to obtain a new use permit to operate the facility.
In any event, even if we consider Power Inn Alliance's argument concerning revocation of the use permit, it is unavailing. Power Inn Alliance notes that the use permit authorizes the operation of a waste facility and requires compliance with the solid waste facility permit issued by the Local Enforcement Agency but surrendered by the prior operator; therefore, Zanker could not exercise the use permit. Nonetheless, the City's determination that clean-up activities were an exercise of the use permit is reasonable because clean-up is an integral part of operating a solid waste facility. "The construction placed on a piece of legislation by the enacting body is of very persuasive significance. [Citations.] Also, construction of a statute by officials charged with its administration must be given great weight. [Citations.]" (City of Walnut Creek v. County of Contra Costa (1980) 101 Cal.App.3d 1012, 1021.) Accordingly, Power Inn Alliance's argument that the City should have been the lead agency because Zanker was required to obtain a use permit is without merit.
B. Applicability of Settlement Agreement
Power Inn Alliance also asserts that the City should have been the lead agency because Zanker was bound by a settlement agreement between the City and Florin Perkins Landfill, which required Florin Perkins Landfill to submit to the City a master plan for the site. To the contrary, Zanker was not a party to the settlement agreement and is not bound by its terms. Therefore, there is no need for a master plan to be submitted to the City for approval.
In 2000, Florin Perkins Landfill sued the City because of enforcement actions the City had taken against the facility. In 2002, the parties and the property owner entered into a settlement agreement which required, among other things, the City's payment of $375,000 to Florin Perkins Landfill and Florin Perkins Landfill's submission to the City of a master plan for the overall use of the property. The settlement agreement provided: "The City shall be the lead agency with respect to Master Plan review."
Power Inn Alliance asserts that the settlement agreement must be enforced, despite the absence of Florin Perkins Landfill, because (1) Zanker is the successor of Florin Perkins Landfill, (2) Zanker has accepted the benefits of the settlement agreement and, therefore, must accept the burdens, and (3) the property owner is bound by the settlement agreement. Power Inn Alliance's arguments are unpersuasive.
Before we consider Power Inn Alliance's three arguments, however, we note, as did the trial court, that Power Inn Alliance has no standing to enforce the settlement agreement. It was not a party to the contract; neither was it an intended beneficiary. (See Civ. Code, §§ 1550 [parties to the contract]; 1559 [third-party beneficiaries].) Furthermore, this is not an action to enforce a contract. Therefore, on this basis alone Power Inn Alliance's arguments fall short.
1. Successor of Florin Perkins Landfill
The settlement agreement states that it is "binding on and shall inure to the benefit of the successors and assigns of the Parties hereto." Based on this language, Power Inn Alliance argues that Zanker is bound by the settlement agreement to submit a master plan to the City. This argument is frivolous.
The settlement agreement did not run with the land (it was not recorded and did not purport to run with the land (Civ. Code, § 1468, subd. (d)), and Zanker was neither a party to the settlement agreement nor a successor in interest of Florin Perkins Landfill. Yet Power Inn Alliance asserts Zanker is bound by the settlement agreement merely because the settlement agreement stated that it was binding on "successors," regardless of the legal relationship. Thus, Power Inn Alliance, a nonparty to the settlement agreement, attempts to enforce the settlement agreement against Zanker, another nonparty to the settlement agreement. This is not good advocacy.
2. Alleged Acceptance of Benefits of Settlement Agreement
Power Inn Alliance also argues that Zanker is bound by the settlement agreement because it accepted some of the benefits of that agreement, namely the opportunity to forego certain permit conditions. To the contrary, nothing in the record establishes that Zanker was able to avoid any legal obligations by relying on the settlement agreement. The dealings between the City and Zanker have been undertaken without regard to the settlement agreement.
3. Role of Property Owner
Finally, Power Inn Alliance notes that the property owner was a party to the settlement agreement. While this is true, the obligations under the settlement agreement that Power Inn Alliance wishes to impose on Zanker were those of Florin Perkins Landfill, not the property owners. Therefore, this argument also fails.
C. Permit for Future Shop and Office
The initial study concluded that the project does not include construction of new buildings. Citing to a letter from its own attorney, Power Inn Alliance asserts that, in the future, Zanker intends to build a shop and office. And, since such construction would require a City permit, the City was the proper lead agency. This assertion fails because (1) a citation to a letter from Power Inn Alliance's own attorney does not establish the intent of Zanker (Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545-546 [we will not search the record for proper support for appellant's argument]) and (2) Zanker has not submitted a permit application to the City to build a shop or office and therefore there is nothing on which the City would act.
Power Inn Alliance contends that an EIR was required for the project. To support this contention, it cites several subjects for which it claims further environmental review was necessary. We conclude that the trial court did not err in concluding that the negative declaration, incorporating the initial study, was sufficient.
In Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903 (Pocket Protectors), we addressed our role when asked to review an agency's decision not to prepare an EIR. We therefore quote that discussion of the appropriate standard of review at length:
"'With certain limited exceptions, a public agency must prepare an EIR whenever substantial evidence supports a fair argument that a proposed project "may have a significant effect on the environment." ([Pub. Res. Code,] §§ 21100, 21151, 21080, 21082.2 [fair argument standard]; Guidelines, §§ 15002, subd. (f)(1), (2), 15063; No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, 75 [fair argument standard of review] . . . .) "'Significant effect on the environment' means a substantial, or potentially substantial, adverse change in the environment." ([Pub. Res. Code,] § 21068; see also Guidelines, § 15382.)' [Citation.]
"If there is substantial evidence in the whole record supporting a fair argument that a project may have a significant nonmitigable effect on the environment, the lead agency shall prepare an EIR, even though it may also be presented with other substantial evidence that the project will not have a significant effect. ([Pub. Res. Code,] § 21151, subd. (a); [Guidelines] § 15064, subd. (f)(1), (2); [citations].) 'May' means a reasonable possibility. ([Pub. Res. Code,] §§ 21082.2, subd. (a), 21100, 21151, subd. (a); [citation].)
"'Substantial evidence' means 'enough relevant information and reasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions might also be reached.' (Guidelines, § 15384, subd. (a).) Substantial evidence 'shall include facts, reasonable assumptions predicated upon facts, and expert opinion supported by facts.' (Guidelines, § 15384, subd. (b).) 'Argument, speculation, unsubstantiated opinion or narrative, evidence which is clearly erroneous or inaccurate, or evidence of social or economic impacts which do not contribute to or are not caused by physical impacts on the environment does not constitute substantial evidence.' (Guidelines, § 15384, subd. (a).)
"The fair argument standard is a 'low threshold' test for requiring the preparation of an EIR. [Citations.] It is a question of law, not fact, whether a fair argument exists, and the courts owe no deference to the lead agency's determination. Review is de novo, with a preference for resolving doubts in favor of environmental review. [Citations.]
"Although our review is de novo and nondeferential, however, we must '"giv[e] [the lead agency] the benefit of [the] doubt on any legitimate, disputed issues of credibility."' [Citations.] The lead agency has discretion to determine whether evidence offered by the citizens claiming a fair argument exists meets CEQA's definition of 'substantial evidence.' [Citations.]" (Pocket Protectors, supra, 124 Cal.App.4th at pp. 927-928, fn. omitted, original italics.)
A. Air Quality
The initial study discussed the air quality impacts of the project, during both the construction and operation of the facility. It concluded that the impacts were less than significant. Power Inn Alliance contends that the analysis in the initial study was insufficient because it (1) understated the impact of construction of the facility on air impacts and (2) failed to analyze properly the air quality impact of operating the facility. We conclude the analysis in the initial study was sufficient to establish that there is no fair argument that the project will have a significant impact on air quality.
The initial study noted that the County is subject to state and federal air quality standards. The Sacramento Metropolitan Air Quality Management District (Air Quality District) "is responsible for insuring that emission standards are not violated. Project related air emissions would have a significant effect if they would result in concentrations that either violate an ambient air quality standard or contribute to an existing air quality violation. Moreover, [the Air Quality District] has established significance thresholds to determine if a proposed project's emission contribution significantly contributes to regional air quality impacts [citation]." Using these emissions standards, the Local Enforcement Agency concluded that the project's air quality impacts would not be significant. The Air Quality District concurred.
1. Project Construction
Concerning construction of the project, the initial study stated that the extent of activities relevant to air quality would be some grading and paving. Relying on the screening levels adopted by the Air Quality District, the initial study found impacts from construction would be less than significant. The study stated: "Although the project site is approximately 10 acres in size, most operations will occur within 2.5 acres. It is not likely, based on the screening levels and the description of the project, to exceed air quality thresholds for construction activities."
Because the Air Quality District has not adopted any screening levels for material recycling facilities and large volume transfer facilities, the initial study used the screening levels for construction of warehouse or manufacturing facilities. Power Inn Alliance asserts that use of the screening levels for construction of warehouse or manufacturing facilities was improper because the Local Enforcement Agency did not explain why air quality impacts for construction of the project would be similar to those for construction of a warehouse or manufacturing facility. We disagree. For the limited construction activities associated with the project, it was reasonable to use the standards for construction of a warehouse or manufacturing facility. Even though the project was neither a warehouse nor a manufacturing facility, the construction activities would be similar, though less extensive, given that only grading and paving was necessary.
2. Project Operations
Concerning operation of the facility, the initial study stated that "air quality impacts include emissions from trucks bringing wastes to and from the site and large equipment for moving the wastes around (such as bulldozers, forklifts, etc.)." In determining whether air quality impacts from project operations were less than significant, the initial study relied on the levels expected from warehousing and manufacturing activities. According to the initial study, "The operational screening level for warehouses is 1,011,500 square feet (approximately 23 acres) and for manufacturing it is 1,056,500 square feet (approximately 24 acres). As the project site will only operate on 2.5 acres, it is not likely, based on the screening levels, to exceed air quality thresholds."
Power Inn Alliance asserts that the analysis of operational air impacts was insufficient because (a) the initial study relied on air impacts from a warehouse or manufacturing facility and (b) it ignored emissions from heavy-duty mobile sources. Neither assertion has merit.
Power Inn Alliance criticizes the use of the levels expected from warehousing and manufacturing facilities because the project facility would not be similar to those facilities. For example, Power Inn Alliance argues that the project will be in the open air, will produce fugitive dust, and will entail open-air processing of 500 tons of waste, with 233 vehicles entering and exiting the facility daily.
Again, use of the screening levels related to warehousing and manufacturing facilities was reasonable. Contrary to Power Inn Alliance's protestations, warehousing and manufacturing typically involve the general types of air quality impacts engendered in a materials recovery facility and large volume transfer station. Trucks enter and exit warehousing and manufacturing facilities, and other activities having an impact on the air quality occur. Power Inn Alliance offers no persuasive authority or argument that operating in the open-air is significantly different from closed facilities when considering air quality impacts, and, in any event, manufacturing activities can occur in the open-air. Furthermore, the size of the project is much smaller than the size of a warehouse or manufacturing facility that would be deemed to have a significant impact on air quality. Therefore, the initial study's reliance on the Air Quality District's screening levels for operation of warehousing and manufacturing facilities did not render the initial study insufficient.
Power Inn Alliance argues that, because the initial study did not explicitly include and break down the emissions from heavy-duty mobile sources and other vehicles, such as passenger vehicles, it was insufficient. To support this assertion, Power Inn Alliance cites two cases in which a thorough analysis of all air quality impacts was required in the EIR. (Riverwatch v. County of San Diego (1999) 76 Cal.App.4th 1428, 1453-1455; Kings County Farm Bureau v. City of Hanford (1990) 221 Cal.App.3d 692, 712-718.) Here, however, the question is not whether an EIR was adequate. Instead, the question is whether there is a fair argument that the project will have a significant impact on the environment, in which event preparation of an EIR would be mandatory. As did the trial court, we conclude that use of the general air quality screening levels for warehousing and manufacturing activities was sufficient and that there is no substantial evidence of a fair argument that the project will have a significant impact on air quality.
B. Biological Resources
Power Inn Alliance contends that there is a fair argument that the project will have a significant impact on the biological resources on the property. Specifically, it asserts that the property may be habitat for a variety of important bird species. We conclude that the evidence was insufficient to raise a fair argument that the project would have a significant impact on biological resources.
Concerning biological resources, the initial study stated: "The project site was used as a recycling center and transfer station in the past. The proposed operations/tipping areas will be located in the same areas as the prior operations, which [are] highly disturbed. Little vegetation remains in the project area. Surrounding the site are areas vegetated with grasses and some scattered trees. These areas are located outside the project area. There are landscaped trees lining Florin-Perkins Road. The project will not have any impacts to biological resources; impacts are considered less than significant." (Original italics and bold text.)
Responding to the initial study, Power Inn Alliance submitted to the County the report of Jeffery Little, vice president of Sycamore Environmental Consultants, Inc. Little stated: "We have frequently observed many fallow industrial sites in Sacramento County and in the City of Sacramento that have nesting and foraging migratory birds and birds of prey. In particular, burrowing owls, a State species of concern to Department of Fish and Game, are frequently displaced from one fallow lot onto adjacent properties. Over a several year period, burrowing owls can be displaced several times. As a result, an evaluation of burrowing owl [sic] is needed in the biological section of CEQA documents for projects proposed in Sacramento to ensure that impacts to active burrows are disclosed and mitigated. There is a burrowing owl record from 2003 approximately a mile and a half south of the project."
Based on this letter, Power Inn Alliance claims that the impact on biological resources on the property is potentially significant. We disagree.
"Relevant personal observations of area residents on non-technical subjects may qualify as substantial evidence for a fair argument. [Citations.] So may expert opinion if supported by facts, even if not based on specific observations as to the site under review. [Citation.] Where such expert opinions clash, an EIR should be done. [Citation.] [¶] On the other hand, mere argument, speculation, and unsubstantiated opinion, even expert opinion, is not substantial evidence for a fair argument. [Citations.]" (Pocket Protectors, supra, 124 Cal.App.4th at pp. 928-929.)
The trial court rejected Power Inn Alliance's argument about biological resources, stating: "Even if Mr. Little is an expert, his opinions are not based on facts taken from or viewed on the site. He has not submitted facts supporting the opinion that there are burrowing owls on the Project site. The [Local Enforcement Agency] confirmed that a survey of the site was performed by [staff of the Sacramento County Department of Environmental Review and Assessment], and based on that the survey, the [Local Enforcement Agency] concluded that no special status species are known to exist on or utilize the project site."
We agree. Little's statement concerning the possibility that the property may be habitat for burrowing owls is not substantial evidence for a fair argument of a significant impact. The general observation that burrowing owls exist in the County and that one was seen one and a half miles from the property five years before the preparation of the initial study is insufficient. The same is true of migratory birds and birds of prey. The general observation that they may nest or forage on fallow industrial land is insufficient. Such arguments based on generalizations about migratory birds and birds of prey would require preparation of an EIR report for virtually every project in the County. That is not the legislative intent behind CEQA, as evidenced by provision for negative declarations.
Power Inn Alliance also claims that the biological impacts analysis of the initial study was flawed because the Local Enforcement Agency failed to consult with the California Department of Fish and Game as the trustee agency responsible for wildlife concerning whether an EIR should be prepared. (Pub. Res. Code, § 21080.3, subd. (a).) However, such consultation is necessary only for resources affected by the project. (CEQA Guidelines, 15063, subd. (g).) Since there is no substantial evidence that wildlife will be affected by the project, it was unnecessary to consult with the Department of Fish and Game.
C. Greenhouse Gas Emissions
Power Inn Alliance contends that an EIR was necessary because the Local Enforcement Agency relied on thresholds of significance of greenhouse gases, which thresholds had not been adopted by ordinance, resolution, rule, or regulation, in determining that the impact on greenhouse gases (climate change) would be less than significant. The contention is without merit.
The initial study did not discuss the project's greenhouse gas impacts. However, in response to comments, the Local Enforcement Agency stated: "The County has recently established significance thresholds and screening criteria for greenhouse gases. The screening criteria are used to determine whether a project is large enough to warrant quantitative analysis, instead of relying on qualitative analysis. Because traffic is a significant contributor of greenhouse gas emissions, the screening threshold is based on the number of trips a given project may generate. If a project generates less than 100 peak-hour trips and less than 1,000 total daily trips, quantitative modeling will not be required. The project does not generate more than 100 peak hour trips or more than 1,000 total daily trips; therefore quantitative modeling is not required. Mitigation is not required and impacts of the project on climate change are less than significant."
The relevant CEQA Guideline states: "(a) Each public agency is encouraged to develop and publish thresholds of significance that the agency uses in the determination of the significance of environmental effects. A threshold of significance is an identifiable quantitative, qualitative or performance level of a particular environmental effect, non-compliance with which means the effect will normally be determined to be significant by the agency and compliance with which means the effect normally will be determined to be less than significant. [¶] (b) Thresholds of significance to be adopted for general use as part of the lead agency's environmental review process must be adopted by ordinance, resolution, rule, or regulation, and developed through a public review process and be supported by substantial evidence." (CEQA Guidelines, § 15064.7, subds. (a) & (b); Pub. Res. Code, § 21082.)
Power Inn Alliance asserts that the thresholds used by the Local Enforcement Agency had not been officially adopted, as required by CEQA and, therefore, the Local Enforcement Agency could not rely on them. However, even though there is no evidence the thresholds used by the Local Enforcement Agency were officially adopted, Power Inn Alliance's argument fails to establish that substantial evidence in the whole record supports a fair argument that the project may have a significant nonmitigable effect on greenhouse gases. Nothing in the record contradicts the Local Enforcement Agency's conclusion that the project was so small that it was unnecessary to engage in further environmental review concerning greenhouse gases. Furthermore, there is no indication in the record that greenhouse gas thresholds, when officially adopted, will be any different from what the Local Enforcement Agency used. There is no fair argument of a significant impact.
D. Hydrology and Water Quality
Power Inn Alliance contends that there is a fair argument that there will be significant impacts on hydrology and water quality. It claims that harmful or toxic materials may leach into the ground. It also claims the initial study discloses neither the amount of storm water and wash water that will be generated nor how the waste water will be transported to the Sacramento Regional County Sanitation District. The contention has no merit.
The initial study stated that "all areas where waste materials are tipped, processed and stored will have a concrete and/or asphaltic concrete surface, where the operations area will be sloped to prevent the ponding of water and to provide positive surface water drainage. This design will direct stormwater and wash water from station maintenance activities to a set of drain inlets. This contact water is then transferred by gravity flow to underground detention tanks . . . . The drainage contained in the tank/sump will then be transferred to the Sacramento Regional County Sanitation District (SRCSD) regional Publicly Owned Treatment Works (POTW) system in accordance with the conditions of the Discharge Permit from SRCSD."
Power Inn Alliance argues that, despite this description of how waste water would be handled, the initial study was insufficient because it "provided no data or evidence to show that storm water saturation will not result in leachate that will affect water quality." We conclude that this does not establish a fair argument that the project may have significant impacts on hydrology and water quality. The description quoted above establishes that waste water will be channeled into detention tanks then transported offsite.
Nonetheless, Power Inn Alliance continues to assert the initial study was insufficient because there was no data or further evidence included. It relies on Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296, at page 311, which states: "While a fair argument of environmental impact must be based on substantial evidence, mechanical application of this rule would defeat the purpose of CEQA where the local agency has failed to undertake an adequate initial study. The agency should not be allowed to hide behind its own failure to gather relevant data."
Here, the Local Enforcement Agency provided evidence concerning how waste water would be collected and disposed of. That was sufficient. Lack of additional evidence and data does not establish a fair argument.
2. Amount and Transportation of Waste Water
Likewise, Power Inn Alliance's argument concerning the failure to identify the amount of waste water and how it would be transported to the Sacramento Regional County Sanitation District does not establish a fair argument that the project would have a significant impact on hydrology and water quality. An analysis of the manner of waste water collection and the statement that disposal of the waste water would be in compliance with a discharge permit were sufficient.
E. Land Use
Power Inn Alliance contends there is a fair argument that land use conflicts are significant. It claims the Local Enforcement Agency failed to study the potential conflict between the project and (1) the unadopted 2030 General Plan of the City of Sacramento and (2) the City's Solid Waste Policy 7 and Solid Waste Restricted Overlay Zone. We conclude the contention does not support a fair argument.
1. 2030 General Plan
In the initial study, the Local Enforcement Agency noted that the current City of Sacramento General Plan was adopted in 1988. The initial study continued: "At the time of writing this document, the City is in the process of writing a draft environmental impact report (DEIR) for the proposed  General Plan. As such, the proposed land use changes are only speculative and have not been approved by the City." And later: "Because of the speculative nature of these land uses at this point in time, it is not within the scope of this Initial Study to evaluate potential impacts of the proposed project upon these uses." Finding that the project was compatible with the 1988 general plan, the Local Enforcement Agency concluded that the project's environmental impacts were less than significant.
"The EIR shall discuss any inconsistencies between the proposed project and applicable general plans, specific plans and regional plans. . . ." (CEQA Guidelines, § 15125, subd. (d).) "Applicable" general plans are those that have been adopted. (Chaparral Greens v. City of Chula Vista (1996) 50 Cal.App.4th 1134, 1145, fn. 7.) Therefore, because the 2030 General Plan had not been adopted, the Local Enforcement Agency properly did not consider it.
2. Solid Waste Policy 7 and Solid Waste Restricted Overlay Zone
The initial study concluded that the project "is compatible with the surrounding land uses, and environmental impacts associated with land uses are considered less than significant." (Original italics and bold text.) However, Power Inn Alliance asserts the Local Enforcement Agency failed to consider whether the project was consistent with the City's Solid Waste Policy 7 and Solid Waste Restricted Overlay Zone, which provide policies concerning where solid waste facilities are located within the City. This assertion is without merit because the City had already issued a use permit for a solid waste facility on the site. Therefore, the issue of whether the location of the project was consistent with the City's land use policies had already been decided by the City in favor of the location. Furthermore, the continuing validity of the City's use permit provided a vested right to operate the facility there. (Anza Parking Corp. v. City of Burlingame (1987) 195 Cal.App.3d 855, 858.)
Concerning odor impacts, the initial study stated: "The majority of wastes at the site will be construction debris. Any reject material will be hauled off site within 48 hours. Objectionable odors are not expected from the proposed project." Attempting to refute this statement and establish that there is a fair argument that odor impacts on the environment will be significant, Power Inn Alliance cites the facts that up to 10 tons, out of the total of 500 tons, per day of the waste may be putrescible and may be left on site up to 48 hours. The waste will be stored outside, subject to the elements and, therefore, according to Power Inn Alliance, no expert analysis is necessary to conclude that there may be significant odor impacts.
As the trial court found: "The Transfer/Processing Report includes specific procedures on storage and containment of wastes [citation][;] the [permit] will require that wastes susceptible to composting must be contained at a temperature under 122 Fahrenheit [citation]; no composting is permitted [citation]; Zanker is bound to a detailed odor control plan contained in the [transfer/processing report] [citation]; and the site is only allowed to receive two percent of the daily amount of [waste as] putrescible waste [citation]. The majority of wastes recyclables." We agree with the trial court that Power Inn Alliance failed to establish a fair argument that the odor impacts will be significant.
G. Public Services
Power Inn Alliance attempts to establish a fair argument that the project will have a significant impact on public services in two regards: water and sewer. We conclude there is no fair argument of a significant impact on public services.
The initial study stated: "There are two water wells located on the project site and a water supply main is located along Florin-Perkins Road. The project proponent has indicated that the existing wells will mainly be used for irrigation/ industrial uses until it is tested. If the water is suitable for potable uses, the proponents have indicated that they would use the wells for such uses. The proponent[s have] indicated that they will request to hook into the City of Sacramento's water supply at a later date. Until then, bottled water will be provided to users and employees of the project site. If the City denies the proponents connection to the water supply line, the proponents have indicated that they have no problems providing bottled water to the site. If the City allows for connection to the water main, a 2-inch pipe will be installed on the site. Impacts associated with the installation of water lines on the site and impacts to the water supply are considered less than significant." (Original italics and bold text.) The maximum number of employees needed to run the operation at any given time is 18.
Because the Local Enforcement Agency did not expressly quantify the water needs for the project, Power Inn Alliance contends the initial study was insufficient. To the contrary, the initial study states that well-water will be used for irrigation and industrial uses. Water will be provided to the relatively small number of employees and users from bottles. At some future date, Zanker may apply to the City to connect to the water main for its minimal water needs. No further quantification of water needs was necessary to establish that the impacts on water services were less than significant.
The initial study's discussion of impacts on sewer services was similarly sufficient. It stated that there are two septic tanks on site and the property is not connected to public sewer service. The condition of the septic tanks was uncertain, and, until any necessary improvements are made, the property will be served by portable chemical toilets. The initial study concluded that the project would have no significant impact on public sewer services.
Power Inn Alliance asserts that the Local Enforcement Agency is simply guessing that the project will not have significant impacts on public sewer services. To the contrary, there appear to be no plans for the project to use public sewer services. Therefore, there is no fair argument that impacts on the public sewer services will be significant.
Power Inn Alliance contends that there is a fair argument that traffic impacts will be significant. It asserts that (1) traffic from the site will exacerbate a known traffic problem and (2) the initial study failed to analyze the cumulative effects of the project on area roadways. Neither assertion supports a fair argument the traffic impacts will be significant.
The initial study contained a detailed, quantitative analysis of the impact the project would have on traffic. It concluded that any impacts would be less than significant.
1. Known Traffic Problem
The vehicle entrance and exit point for the project is not at an intersection, but is on Florin-Perkins Road 450 feet north of the intersection of Florin-Perkins Road and Belvedere Avenue. The initial study stated: "Comments received by the Power Inn Alliance suggest that the entrance road be realigned and conform to the intersection at Florin-Perkins Road and Belvedere Avenue. The Alliance states that the current entrance was a troublesome intersection in the past and with the increase in traffic along Florin-Perkins Road, this is a safety concern. The Florin-Perkins Road and Belvedere Avenue intersection is a stoplight controlled 3-way intersection. [Sacramento County Department of Transportation] staff acknowledges that moving the entrance to the intersection would be a safer option, but stopped short of calling the existing configuration a safety hazard. City of Sacramento staff is looking into the possibility of requesting a condition of approval be placed on the [permit] to move the entrance to the Florin-Perkins/Belvedere intersection. If the project were conditioned to take access from this intersection, improvements to the intersection (by the proponents) would be required. Impacts associated with access controls are considered less than significant." (Original italics and bold text.)
Power Inn Alliance obtained information from the California Highway Patrol that, from 1997 through 2006, there were 25 traffic collisions at or near the intersection of Florin-Perkins Road and Belvedere Avenue, resulting in 25 injured people. More of the injuries occurred in the later years of the stated period. In addition, a City traffic engineer expressed the opinion that relocation of the project's entrance and exit to the intersection of Florin-Perkins Road and Belvedere Avenue should be made a condition of the permit.
Based on the initial study, the information obtained from the California Highway Patrol, and the opinion of the City traffic engineer, as well as concerns expressed by Power Inn Alliance and others, Power Inn Alliance contends that there is a fair argument that the project will have a significant impact on traffic.
Responding to Power Inn Alliance's assertion about exacerbation of the intersection risks, the trial court stated that Power Inn Alliance "cite[s] no facts to support [its] assertion that these accidents were directly related to the amount of traffic or vehicles attempting to access the site. Additionally, they fail to present any connection between the injuries and the potential traffic generated from the project." We agree. Power Inn Alliance has established that injury accidents occur at the intersection, but we are not told whether the number of injury accidents is unusually high or whether traffic from the site has in the past or will in the future exacerbate any existing risk. Absent such correlation, there is no fair argument that the project will have a significant impact on traffic risks. "Unsubstantiated opinions, concerns, and suspicions about a project, though sincere and deeply felt, do not rise to the level of substantial evidence supporting a fair argument of significant environmental effect. [Citations.]" (Leonoff v. Monterey County Bd. of Supervisors (1990) 222 Cal.App.3d 1337, 1352.)
2. Cumulative Impact
In discussing the project's impact on traffic, the initial study looked at traffic projections for 2025. It stated: "In the cumulative conditions, without the project, all roadways would be operating at LOS F [meaning 'Level of Service F,' denoting 'jammed flow with substantial delay']. In the cumulative plus project condition, all roadways would remain LOS F. Consistent with the City['s] significance thresholds, the change in the V/C [volume-to-capacity] ratio was determined and the change in V/C ratio for all roadway segments is less than 0.02." In other words, even though the roadways around the project were projected to be inadequate for 2025 traffic flow, with or without the project, the Local Enforcement Agency found that traffic impacts were less than significant because the change in the traffic flow (volume-to-capacity ratio) would be less than .02, which is less than the threshold of significance used by the City.
Power Inn Alliance criticizes the use of the change to volume-to-capacity ratio to determine whether the traffic impacts were significant because, in its words, "CEQA requires a lead agency to assess whether the overall traffic situation, taking the Project's impacts into account, results in significant impacts." (Original italics.) For this proposition, Power Inn Alliance cites a case in which the court stated that the lead agency, when considering a project's contributions to ozone levels, could not simply conclude that the project would emit relatively minor amounts of precursors compared to the total volume of precursors emitted in the county. (Kings County Farm Bureau v. City of Hanford, supra, 221 Cal.App.3d at p. 718.) The court in that case concluded that the relevant question was "whether any additional amount of precursor emissions should be considered significant in light of the serious nature of the ozone problems in [the relevant] air basin." (Ibid.)
Despite Power Inn Alliance's authority concerning ozone impacts, the use of levels of service and volume-to-capacity ratios to analyze traffic impacts has been accepted by the courts. (Gentry v. City of Murrieta (1995) 36 Cal.App.4th 1359, 1412-1415.)
Here, the initial study noted that traffic in the project area was projected to be a problem by 2025. It concluded, however, that the impact of the project's traffic on the larger problem would be minimal, below the City's threshold of significance; therefore, the initial study reasonably concluded that traffic impacts would be less than significant. No substantial evidence supports a fair argument of a contrary finding.
I. Mitigation Measures
Power Inn Alliance asserts that, because the record contains substantial evidence supporting a fair argument that the project will result in significant impacts in several environmental categories, the Local Enforcement Agency could not approve the project without imposing mitigation measures. (See Pub. Res. Code, §§ 21002 [requiring feasible mitigation for significant environmental impacts]; 21064.5 [allowing "mitigated negative declaration" if identified significant impacts in project plans].) Since we conclude that there is no substantial evidence supporting a fair argument that the project will result in significant impacts in any environmental category, the argument that the Local Enforcement Agency could not approve the project without imposing mitigation measures is without merit.
The judgment is affirmed. The respondents are awarded their costs on appeal. (Cal. Rules of Court, rule 8.278(a).)*fn4
We concur: RAYE P. J. HULL , J.