(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
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.
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
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.
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.
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, ...