Val Verde Civic Assn. v. County of L.A. CA2/2

Filed 2/10/21 Val Verde Civic Assn. v. County of L.A. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
VAL VERDE CIVIC ASSOCIATION B302885
et al.,
(Los Angeles County
Plaintiffs and Appellants, Super. Ct. No. BS170715)
v.
COUNTY OF LOS ANGELES,
Defendant;
CHIQUITA CANYON, LLC,
Real Party in Interest and
Respondent.
APPEAL from an order of the Superior Court of Los
Angeles County, Mitchell L. Beckloff, Judge. Affirmed.
Law Office of Babak Naficy and Babak Naficy for Plaintiffs
and Appellants.
Cox, Castle & Nicholson, David P. Waite, Michael H.
Zischke and Lisa M. Patricio for Real Party in Interest and
Respondent.
No appearance for Defendant.
_____________________________________
Petitioner and appellant Santa Clarita Organization for
Planning the Environment (SCOPE) appeals from the order
denying its petition for writ of administrative mandamus.
SCOPE’s petition sought to set aside the County of Los Angeles’s
(County’s) approval of a master plan revision (the Project) that
continued and expanded operations at the Chiquita Canyon
Landfill (Landfill). The Landfill is currently operated by real
party in interest Chiquita Canyon, LLC (Chiquita Canyon or
respondent). SCOPE contends the County failed to comply with
the California Environmental Quality Act (Pub. Resources Code,
§ 21000, et seq. (CEQA).) We affirm the trial court’s order.
BACKGROUND
The Landfill
The Landfill is a 639-acre Class III municipal solid waste
facility located in the northwestern portion of unincorporated Los
Angeles County. Hillsides separate the Landfill from the nearby
residential community of Val Verde. The nearest residence in
Val Verde is approximately 500 feet from the Landfill.
The Landfill was originally approved and began operations
in the mid-1960s. The County approved a series of conditional
use permits (CUPs) to continue and expand Landfill operations in
1977, 1982, and 1997. The 1997 CUP was scheduled to expire on
November 24, 2019, or when the Landfill reached the waste
disposal limit of 23 million tons, whichever occurred first. The
1997 CUP allowed the Landfill operator to apply for new permits
to expand or modify the conditions of the CUP.
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Project approval process
The Landfill’s prior operator filed a CUP application in
2004 to continue and expand the Landfill’s operations. Chiquita
Canyon purchased the Landfill in 2009 and in 2011 reinitiated
the prior operator’s CUP application.
In November 2011, the County published a Notice of
Preparation of an environmental impact report (EIR) for the
Project, with an initial public review period through January 12,
2012, extended to February 13, 2012, for a total of 77 days. On
December 6, 2011, the County held a scoping meeting in Val
Verde to solicit public comment. Thereafter, the County
circulated a Draft EIR (DEIR) for an initial public review of 45
days -- from July 10 to August 23, 2014, extended to October 23,
2014, for a total of 105 days. On July 31, 2014, the County held a
public hearing on the DEIR in Castaic.
While the CUP application review process was pending, the
Landfill was approaching its 29-million-ton disposal capacity
limit. Chiquita Canyon therefore requested a waiver, pursuant
to Los Angeles County Code section 22.04.110, to allow continued
operation of the Landfill. The County approved a waiver in
March 2016.
In response to comments on the DEIR, the County
published on November 9, 2016 a Partially Recirculated Draft
EIR (PR-DEIR) that presented new information on certain
chapters, including air quality, greenhouse gas emissions, and
climate change. The PR-DEIR was circulated for 60 days,
through January 9, 2017. The County held a further public
hearing on the PR-DEIR on December 15, 2016.
The County published the Final EIR (EIR) in February
2017. A public hearing on the EIR was held in the spring of
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2017. At the conclusion of the hearing, the Project was approved,
with certain modifications.
Chiquita Canyon, SCOPE, and two other entities1 appealed
the Project approval to the County Board of Supervisors (the
Board). The Board held a public hearing on the appeals on
June 27, 2017. At the conclusion of the hearing, the Board
certified the EIR, adopted the CEQA findings, Statement of
Overriding Considerations (SOC), and Mitigation Monitoring and
Reporting Program (MMRP), and indicated its intent to deny the
appeals.
The Board instructed County Counsel to prepare final
findings and conditions for the Board’s consideration, including
modifications to conditions approved by the County’s Regional
Planning Commission. On July 25, 2017, the Board found the
Project was necessary to achieve the County’s sustainable waste
management goals, denied the appeals, certified the EIR, adopted
the CEQA findings, the Statement of Overriding Considerations
and the Mitigation Monitoring and Implementation Plan, and
adopted the Project as revised. The County filed a Notice of
Determination on July 25, 2017.
Writ petition
SCOPE filed a writ petition to set aside the County’s
approval of the Project, arguing, among other things, that the
County failed to adequately analyze Landfill impacts on air
quality, odor, and climate change, and that the County’s findings
__________________________________________________________
1 Val Verde Civic Association and Citizens for Chiquita
Canyon Landfill Compliance, who are not parties to this appeal,
participated in the administrative appeal process and the
mandamus proceedings below.
4
in support of the Project were not supported by substantial
evidence. The trial court denied the petition, finding that
substantial evidence supported the County’s methodology for
assessing air quality impacts, odor emissions and mitigation, and
greenhouse gases.
This appeal followed.
CONTENTIONS ON APPEAL
SCOPE contends the County’s approval of the Project
violated CEQA because the EIR is deficient in the following ways:
1. The EIR fails to quantify and document existing Landfill
emissions.
2. The ambient air quality analysis improperly relies on criteria
air pollutant data from offsite regional air monitoring stations
instead of local air quality data the County could have collected
in the Project’s vicinity.
3. The odor impact analysis is based on an unreasonable
threshold of significance.
4. The EIR improperly defers the formulation of odor mitigation
measures and fails to set forth the necessary details of the odor
impact minimization plan required by California law.
5. The EIR fails to adequately estimate the Landfill’s capture of
methane and other greenhouse gases.
DISCUSSION
I. Standard of review
In an action challenging the decision of a public agency
under CEQA, our review is limited to determining whether a
prejudicial abuse of discretion occurred. Abuse of discretion is
established if the agency failed to proceed in a manner required
5
by law or if the decision is unsupported by substantial evidence.
(Pub. Resources Code, § 21005; Santa Clarita Organization for
Planning the Environment v. City of Santa Clarita (2011) 197
Cal.App.4th 1042, 1050 (Santa Clarita).) We review de novo
whether the agency has followed the correct procedures; however,
we accord greater deference to the agency’s factual conclusions.
(Vineyard Area Citizens for Responsible Growth, Inc. v. City of
Rancho Cordova (2007) 40 Cal.4th 412 435.) The substantial
evidence test applies “to conclusions, findings, and
determinations, and to challenges to the scope of an EIR’s
analysis of a topic, the methodology used for studying an impact,
and the reliability or accuracy of the data upon which the EIR
relied because these types of challenges involve factual
questions.” (City of Long Beach v. Los Angeles Unified School
Dist. (2009) 176 Cal.App.4th 889, 898 (City of Long Beach).)
“‘Substantial evidence’” is defined in CEQA’s implementing
regulations, commonly referred to as the CEQA Guidelines,2 as
“‘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.’
(Cal. Code Regs., tit. 14, § 15384, subd. (a).) ‘The agency is the
finder of fact and we must indulge all reasonable inferences from
the evidence that would support the agency’s determinations and
resolve all conflicts in the evidence in favor of the agency’s
__________________________________________________________
2 Regulations guiding application of CEQA, found in title 14
of the California Code of Regulations, section 15000 et seq., are
often referred to as the CEQA Guidelines. (Communities for a
Better Environment v. South Coast Air Quality Management Dist.
(2010) 48 Cal.4th 310, 319.)
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decision. [Citation.]’ [Citation.]” (Santa Clarita, supra, 197
Cal.App.4th at p. 1050.)
The public agency’s decision is presumed to be correct. The
project opponents bear the burden of proving that that the
methodology used in an EIR rendered the analysis legally
inadequate. (City of Long Beach v. City of Los Angeles (2018) 19
Cal.App.5th 465, 485-486 (Long Beach).)
II. Existing emissions
SCOPE did not argue in the mandamus proceedings below
that the EIR is deficient because it contains no quantification or
analysis of existing Landfill emissions and therefore forfeited
that argument on appeal. (K.C. Multimedia, Inc. v. Bank of
America Technology & Operations, Inc. (2009) 171 Cal.App.4th
939, 948-949 [failure to properly tender an issue in the trial court
forfeits the issue for purposes of appellate review].) We
accordingly do not address the argument.
III. Use of monitoring station data for criteria air
pollutants
A. Regulatory framework
Criteria air pollutants (ozone, carbon monoxide, particulate
matter, nitrogen dioxide, sulfur dioxide, and lead) are regulated
by federal and state ambient air quality standards. Criteria air
pollutant levels are measured by their concentrations in the
general atmosphere. In the South Coast air basin, which
includes Los Angeles County, criteria air pollutant concentrations
are measured at regional air monitoring stations operated and
maintained by the South Coast Air Quality Management District
(SCAQMD). The SCAQMD is the agency responsible for
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regulating nonvehicular air pollution in certain counties in
Southern California, including Los Angeles County.
(Communities for a Better Environment v. South Coast Air
Quality Management Dist., supra, 48 Cal.4th at p. 317.)
The SCAQMD reviews air quality impact issues for
individual project approvals by local governments during the
CEQA EIR process. (Del Duca and Mansueto, Indirect Source
Controls: An Intersection of Air Quality Management and Land
Use Regulation (1991) 24 Loy. L.A. L.Rev. 1131, 1170.) The
SCAQMD analyzes a project’s impact on criteria air pollutants by
determining whether the project will cause or contribute to the
South Coast air basin’s exceedance of ambient air quality
standards. SCAQMD guidelines3 recommend using five years of
regional monitoring data as a baseline for assessing a project’s
impact on criteria air pollutants. This data can be obtained from
regional air quality monitoring stations operated and maintained
by the SCAQMD.
In accordance with SCAQMD guidelines, the County
obtained regional air quality data for a six-year period from the
three SCAQMD monitoring stations closest to the Landfill to
establish a baseline for ambient air concentrations of criteria
pollutants. The County input that data, along with projected
criteria air pollutant emissions for the Project, into AERMOD, a
__________________________________________________________
3 The SCAQMD guidelines are set forth in the agency’s
CEQA Handbook, a document “intended to provide local
governments, project proponents, and consultants who prepare
environmental documents with guidance for analyzing and
mitigating air quality impacts of projects.” The CEQA Handbook
also describes the criteria the SCAQMD uses when reviewing and
commenting on the adequacy of environmental documents.
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standard dispersion model approved by the U.S. Environmental
Protection Agency and the SCAQMD. The AERMOD model was
used to assess potential ambient air quality impacts for the
Project in comparison with federal and state ambient air quality
standards and SCAQMD thresholds for CEQA analysis.
B. Substantial evidence supports the use of
monitoring station data
Substantial evidence supports the County’s use of
SCAQMD monitoring station data on criteria air pollutants, its
reliance on SCAQMD guidelines to establish the baseline for
assessing the Landfill’s impact on criteria air pollutants, and the
air quality findings based on the data. (City of Long Beach,
supra, 176 Cal.App.4th at p. 898 [substantial evidence test
applies to “the methodology used for studying an impact, and the
reliability or accuracy of the data upon which the EIR relied”].)
SCAQMD guidelines recommend that five years of regional
meteorological data be used to establish a baseline for ambient
air concentrations of criteria pollutants. The County used six
years of meteorological data from SCAQMD monitoring stations
at three locations closest to the Landfill. The monitoring stations
are part of a statewide network operated continuously by the
SCAQMD in accordance with strict protocols for sampling,
analysis, data validation, and reporting.
There is no evidence that the County’s reliance on data
from the SCAQMD’s air quality monitoring stations resulted in
inadequate or deficient ambient air quality baseline information.
SCOPE’s unsupported assertions that site-specific data could
have been obtained, or that other methodologies could have been
applied to assess the Landfill’s air quality impacts, are
9
insufficient to satisfy its burden of proving that the air quality
analysis in the EIR is legally inadequate. (Save Our Peninsula
Committee v. Monterey County Bd. of Supervisors (2001) 87
Cal.App.4th 99, 117.)
SCOPE cites CUP Condition 68 as evidence that collecting
local air quality data was feasible and should have been
undertaken as part of the EIR process. CUP Condition 68
requires Chiquita Canyon, as a condition to issuance of the new
permit, to install air monitoring stations at locations within a
five-mile radius of the Landfill, to conduct random air quality
tests at these locations, and to report quarterly and annual test
results to the SCAQMD and the Department of Public Health.
That local air monitoring might have been useful at the time the
EIR was prepared does not mean it was necessary. “CEQA does
not require a lead agency to conduct every recommended test and
perform all recommended research to evaluate the impacts of a
proposed project. The fact that additional studies might be
helpful does not mean they are required.” (Association of
Irritated Residents v. County of Madera (2003) 107 Cal.App.4th
1383, 1396.) “A project opponent or reviewing court can always
imagine some additional study or analysis that might provide
helpful information. It is not for them to design the EIR.”
(Laurel Heights Improvement Assn. v. Regents of University of
California (1988) 47 Cal.3d 376, 415 (Laurel Heights).)
The SCAQMD guidelines undermine SCOPE’s argument
that collecting air quality data in the vicinity of the Landfill
would have yielded a more accurate baseline for criteria
pollutants. The guidelines state in pertinent part:
“Modeling for criteria pollutants . . . should use the
most recently available and meteorologically-
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appropriate 5-year data set. . . . Considerations for
choosing a meteorological station include[] the
source’s meteorological conditions (such as prevailing
winds, mixing heights, etc.), terrain, surrounding
land use and surface characteristics, and proximity.
This means that the closest meteorological station to
the source under review is not always the most
representative meteorologically.”
SCOPE fails to meet its burden of establishing that the
County’s use of regional monitoring station data on criteria
pollutants rather than data collected locally resulted in a legally
inadequate analysis of the Project’s ambient air quality impacts.
The record shows, moreover, that the County did use local,
site-specific air quality data when available and appropriate. The
EIR used site-specific data to estimate Project-related landfill gas
emissions. The EIR also used local data for analyzing carbon
monoxide impacts, composting operation impacts, and odor
analysis.
SCOPE cites Long Beach as support for its argument that
the County’s reliance on the SCAQMD data and methodology was
improper. That case, however, is distinguishable. The court in
Long Beach found the EIR’s air quality analysis of a proposed
railyard to be incomplete because it failed to discuss or analyze
relevant data that had been collected and included in the EIR.
That data indicated that concentrations of particulate matter
(PM10, a criteria air pollutant), would be substantially increased
in the area immediately surrounding the proposed railyard.
(Long Beach, supra, 19 Cal.App.5th at p. 487.) The EIR in Long
Beach failed to disclose or estimate how frequently and for what
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length of time the level of PM10 in the surrounding area (in which
homes and schools were located) would exceed the standard of
significance. (Ibid.) Here, there is no evidence showing
substantial geographic variations in criteria pollutant emissions
or concentrations, and the EIR does not fail to discuss or analyze
the collected data.
Save Our Peninsula Committee v. Monterey County Bd. of
Supervisors, supra, 87 Cal.App.4th 99, on which SCOPE also
relies, is equally distinguishable. In that case, the project
proponents, owners of 891 acres of ranch property in the Carmel
River watershed, sought county approval to develop and build
117 homes. Water availability is a critical problem in the Carmel
Valley, and the EIR required that post-development water usage
not exceed pre-project baseline levels. (Id. at pp. 108, 114.) No
documentation existed that could confirm the property’s
historical water usage. (Id. at p. 111.) The EIR proposed
alternative methods for calculating baseline water usage. One
method used a standard formula for estimating water use on
irrigated pastureland, based on representations by the project
applicants that 21 acres had been irrigated. (Id. at p. 114.) An
alternative method relied on recent water meter readings;
however, extensive aquifer testing had been performed during
some of the years that meter readings were recorded. (Id. at
pp. 123-124.) The court found both methodologies to be legally
insufficient. The first method was rejected based on a lack of
substantial evidence that the property had been irrigated. (Id. at
p. 121.) The court discounted the project proponent’s
representations about the property’s historical water use as
“‘unsubstantiated opinion or narrative.’” (Id. at p. 122.) The
second method, which relied on water meter readings, the court
12
found deficient because it failed to account for substantial
quantities of water used for aquifer testing rather than
irrigation. (Id. at p. 124.) No similar issues are present in this
case. The relevant analysis here was whether the Project would
cause or contribute to the South Coast air basin’s exceedance of
federal and state ambient air quality standards for criteria air
pollutants. In the South Coast air basin, ambient air
concentrations of criteria air pollutants are measured at regional
air monitoring stations operated and maintained by the
SCAQMD. The County’s use of SCAQMD monitoring station
data to establish a baseline for assessing Project impacts on
ambient air concentrations of criteria air pollutants was not
unsubstantiated or legally deficient.
IV. Odor impacts
A. Methodology used in the EIR
To analyze odor impacts, the County used Appendix G of
the CEQA Guidelines, which assesses whether the Project would
result in “other emissions (such as those leading to odors)
adversely affecting a substantial number of people.” The
SCAQMD threshold for determining whether a use is a
substantial source of odor is whether it constitutes a nuisance
under SCAQMD rule 402.4 Because the SCAQMD rules set no
__________________________________________________________
4 SCAQMD rule 402 states: “A person shall not discharge
from any source whatsoever such quantities of air contaminants
or other material which cause injury, detriment, nuisance, or
annoyance to any considerable number of persons or to the
public, or which endanger the comfort, repose, health or safety of
any such persons or the public, or which cause, or have a natural
tendency to cause, injury or damage to business or property. [¶]
The provisions of this rule shall not apply to odors emanating
13
numerical threshold of significance for odor emissions, the
County applied the methodology used by the Bay Area Air
Quality Management District (BAAQMD). The BAAQMD CEQA
guidelines recommend reviewing odor complaints from the
previous three years. The BAAQMD guidelines consider a source
to have a substantial number of odor complaints if the complaint
history includes five or more confirmed complaints per year
averaged over a three-year period. A verified complaint is one in
which an Air Quality Management District inspector performs an
odor survey in response to the complaint and confirms the
presence of an odor outside the landfill boundaries that can be
attributed to the landfill.
SCAQMD records for the Landfill show three verified odor
complaints, an average of 0.6 confirmed complaints per year over
the five-year period between August 2007 to July 2012. Under
the BAAQMD CEQA guidelines for odors, the EIR concluded that
the Landfill did not have significant odor impact on receptors.
In its comments on the PR-DEIR, the SCAQMD noted that
the Landfill is in a remote area, its inspectors cannot always
investigate odor complaints in a timely manner, and “odors may
dissipate by the time an inspector arrives to investigate odor
complaints.” For this reason, the SCAQMD commented that the
total number of complaints, rather than verified complaints, was
a more appropriate indicator of odor impacts.
The County disagreed with the SCAQMD and explained in
the EIR its reasons for assessing odor impacts based on verified
__________________________________________________________
from agricultural operations necessary for the growing of crops or
the raising of fowl or animals.” (Rule 402 Nuisance (May 7, 1976)
[as of Feb. 4, 2021].)
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complaints instead of all complaints received. Verified
complaints, the County noted, are substantiated by an inspector,
who confirms that the Landfill is the source of the odor. Absent
such verification, the number of complaints is a less reliable
indicator. The County noted that a substantial increase in odor
complaints occurred after the DEIR was released in July 2014
(73 complaints, none verified by the SCAQMD, within one month
of the DEIR release, as compared to 10 complaints, also
unverified, for the month preceding release), suggesting a
NIMBY effect rather than an increase in odor events.
B. Substantial evidence supports the odor impact
analysis
SCOPE’s challenge to the odor impact analysis is based
primarily on the SCAQMD’s comment to the PR-DEIR that the
total number of complaints is a more reliable indicator of odor
impacts than verified complaints. The SCAQMD’s disagreement
with the County’s metric for significance is not a sufficient basis
for setting aside the EIR. (California Native Plant Society v. City
of Rancho Cordova (2009) 172 Cal.App.4th 603, 625-626.)
“[E]vidence of a disagreement with other agencies is not enough
to carry the burden of showing a lack of substantial evidence to
support the [EIR] finding.” (Id. at p. 626.)
Substantial evidence supports the County’s methodology
for assessing odor impacts. As the trial court noted, the record
shows the SCAQMD generally investigates Landfill odor
complaints in a timely manner. From January 1, 2014 through
September 8, 2014, the SCAQMD received 146 odor complaints
concerning the Landfill. Approximately one-half of these
complaints were resolved by telephone and/or investigated the
15
next business day. None of these investigated complaints were
verified.
That inspectors cannot timely respond to all odor
complaints (many of which are received by telephone at night
when the SCAQMD offices are closed), does not demonstrate that
the County’s reliance on verified odor complaints as a threshold
of significance is unsupported by substantial evidence. Under the
substantial evidence standard, a reviewing court “may not set
aside an agency’s approval of an EIR on the ground that an
opposite conclusion would have been equally or more reasonable.”
(Laurel Heights, supra, 47 Cal.3d at p. 393.) We do not reweigh
conflicting evidence but must resolve all reasonable doubts in
favor of the administrative findings and decision. (Ibid.)
SCOPE also takes issue with the method the County used
for counting verified complaints, claiming it undercounts the
actual number of verified odor complaints. The EIR treats each
day on which one or more verified complaints was received as a
single complaint rather than counting each verified complaint
individually. As respondent notes, SCOPE’s claim fails to
recognize that verified complaints received on the same day are
related to a single odor event. Multiple complaints about the
same odor event reflect multiple complainants, not multiple odor
events. SCOPE fails to establish that the County’s method of
counting verified complaints was unreliable or unreasonable.
The record shows, moreover, that in the EIR the County
provided an updated and expanded odor analysis that included
the results of an odor study conducted by experts who visited
approximately 50 locations within the Landfill and nearby areas
on 25 different mornings over two seasons. The study concluded
“very few odors believed to originate from the landfill were
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detected outside of the landfill boundaries and landfill odor was
confirmed only once within the Val Verde community.” The
conclusions derived from the odor analysis study constitute
substantial evidence. (Pub. Resources Code, § 21082.2, subd. (c)
[substantial evidence includes “expert opinion supported by
facts”].) SCOPE challenges the methodology used in the odor
analysis study and the validity of the conclusions reached;
however, the issue is not whether the study is irrefutable or
whether it could have been better. The relevant issue is whether
the study is sufficiently credible to constitute substantial
evidence in support of the conclusions. (Laurel Heights, supra, 47
Cal.3d at p. 393; Eureka Citizens for Responsible Government v.
City of Eureka (2007) 147 Cal.App.4th 357, 372.) Substantial
evidence supports the odor impact analysis and findings.
V. Odor mitigation measures
A. Regulatory framework
“CEQA requires an EIR to propose and describe mitigation
measures to minimize a project’s significant environmental
impacts. (Pub. Resources Code, §§ 21002.1, subd. (a), 21100,
subd. (b)(3).)” (Center for Biological Diversity v. Department of
Fish & Wildlife (2015) 234 Cal.App.4th 214, 240.) “An EIR may
not defer the formulation of mitigation measures to a future
time. . . . ([Cal. Code Regs., tit. 14, § 15126.4] subd. (a)(1)(B).)”
(Preserve Wild Santee v. City of Santee (2012) 210 Cal.App.4th
260, 280.) The specific details of a mitigation measure may be
developed after project approval, however, if including those
details in the EIR is impracticable or infeasible, so long as the
lead agency commits itself to mitigation, adopts specific
performance standards, and identifies actions for achieving the
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performance standards that will be considered, analyzed, and
potentially incorporated into the mitigation measure. (CEQA
Guidelines, § 15126.4, subd. (a)(1)(B); Endangered Habitats
League, Inc. v. County of Orange (2005) 131 Cal.App.4th 777,
793.)
The EIR identified two potential odor sources at the
Landfill: composting operations and landfill operations. All
commercial composting operations in California must comply
with California Code of Regulations, title 14, section 17863.4,
which requires implementation of an odor impact minimization
plan (OIMP). (Cal. Code Regs., tit. 14, § 17863.4 (section
17863.4).) Although California law does not require an odor
mitigation plan for landfill operations, Chiquita Canyon agreed to
adopt an Odor Reduction Measure for those operations.
Section 17863.4 requires that an OIMP include the
following elements, or an explanation as to why an element was
not included:
“(1) An odor monitoring and data collection protocol that
describes the proximity of possible odor receptors and a method
for assessing odor impacts at the locations of the possible odor
receptors;
“(2) A description of meteorological conditions affecting
odor migration and/or transport of odor-causing material off-site.
Seasonal variations that affect wind velocity and direction must
also be described;
“(3) A complaint response and recordkeeping protocol;
“(4) A description of design considerations and/or projected
ranges of optimal operation to be employed to minimize odor,
including method and degree of aeration, moisture content of
materials, feedstock characteristics, airborne emission
18
production, process water distribution, pad and site drainage and
permeability, equipment reliability, personnel training, weather
event impacts, utility service interruptions, and site specific
concerns as applicable;
“(5) A description of operating procedures for minimizing
odor, including aeration, moisture management, feedstock
quality, drainage controls, pad maintenance, wastewater pond
controls, storage practices (e.g., storage time and pile geometry),
contingency plans (i.e., equipment, water, power, and personnel),
biofiltration, and tarping as applicable.” (Cal. Code Regs., tit. 14,
§ 17863.4, subd. (b).)
The OIMP must be reviewed annually and revised, as
necessary, to reflect any changes. The OIMP and any revisions
must be provided to the local enforcement agency, in this case,
the County, within 30 days of any changes. (Cal. Code Regs., tit.
14, § 17863.4, subds. (c), (d).) The County can enforce the OIMP
by issuing a compliance order. (Id. subd. (e); 18304.)
B. The OIMP for the Landfill
SCOPE fails to establish that the County improperly
deferred formulation of odor mitigation measures. The conditions
to issuance of the CUP incorporate SCAQMD rule 401 as a
qualitative performance standard, requiring Chiquita Canyon to
comply with all odor abatement and prevention rules
promulgated by the SCAQMD and the County Department of
Public Health. The OIMP requires Chiquita Canyon to abate any
nuisance odors in the adjacent residential and business areas,
and to terminate composting operations if it is unable to do so.
The OIMP adopts specific mitigation measures, including a
requirement that the location of the composting operations be
19
approved by the County Director of Public Works in an area away
from residences and businesses. The OIMP requires Chiquita
Canyon to maintain a log demonstrating compliance with the
OIMP and documenting the effectiveness of odor mitigation
measures. Both the County Department of Public Works and the
Department of Public Health are authorized to require Chiquita
Canyon to implement additional corrective measures for odor
complaints when “deemed necessary to protect public health and
safety.”
The EIR also identifies specific odor control management
practices to be considered and potentially included in the OIMP.
These include requiring substrate haulage to the composting
facility in covered, liquid leak-proof containers; setting time
limits for onsite retention of undigested compostable materials;
providing enclosed, negative pressure buildings for indoor
receiving and pre-processing of compostable materials; treating
the air in the indoor receiving buildings with a biofilter or
scrubbing system; and managing delivery schedules to facilitate
prompt handling of odorous materials.
Substantial evidence supports the trial court’s findings that
the County did not improperly defer formulation of the OIMP but
committed to odor mitigation, adopted performance standards,
and identified measures to achieve those standards.
VI. Greenhouse gas emissions
A. Methodology used in the EIR
Landfill gas is a natural byproduct of the decomposition of
organic material in landfills. It consists primarily of carbon
dioxide and methane, greenhouse gases that contribute to global
warming. Chiquita Canyon collects most of the landfill gas
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generated at the Landfill and combusts it in either an onsite
landfill gas-to-energy plant or onsite flares.
Chiquita Canyon can measure the amount of landfill gas
that is flared or collected by the landfill gas-to-energy plant but
must rely on a model to estimate the quantity of landfill gas that
is generated. The EIR uses the U.S. Environmental Protection
Agency’s Landfill Gas Emissions Model (LANDGEM) to estimate
the amount of landfill gas produced at the Landfill. The data
produced by LANDGEM is a reasonable forecast of landfill gas
generation; however, it is not actual, historical data. As with all
models, LANDGEM has its limitations. For example, it assumes
unchanging conditions in predicting landfill gas generation
whereas landfill conditions are constantly changing. The
LANDGEM model is nevertheless considered to be the industry
standard and it is regularly used to predict landfill gas
generation in California. The difference between the amount of
landfill gas generated (a modeled data point) and the amount of
landfill gas collected (based on actual historical data) represents
the amount of fugitive landfill gas emissions.
The EIR concludes that the Project will result in less than
significant greenhouse gas emissions impacts until 2020. That
conclusion is based on an assumed landfill gas emission capture
rate of 81.7 percent, which would be increased to 85 percent upon
implementation of a best management practice.
The 81.7 percent and 85 percent landfill gas capture rates
are based on two site-specific engineering analyses -- one
prepared by Golder Associates, and the other by SCS Engineers.
The Golder analysis initially determined that the Landfill on
average achieves an estimated landfill gas capture rate of 85
percent. The 85 percent capture rate was incorporated into the
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DEIR. The SCAQMD, in its comments to the DEIR, however,
noted that it had not been provided with a copy of the Golder
report to verify the calculations and assumptions supporting an
85 percent collection efficiency rate and recommended using an
industry default rate of 75 percent. After further review and
consultation by and among the SCAQMD, the County, and
Golder Associates, an estimated landfill gas collection efficiency
rate of 81.7 percent was included in the EIR.
SCS Engineers prepared a second analysis, concluding that
implementing a best management practice -- converting 40 acres
of existing intermediate landfill cover to a more efficient final
cover -- would increase the landfill gas capture efficiency rate
from 81.7 to 85 percent. The County accepted SCS Engineers’
analysis and incorporated that best management practice and the
enhanced landfill gas capture efficiency rate into the EIR.
B. Substantial evidence supports the greenhouse gas
findings and analyses
SCOPE contends the landfill gas capture efficiency rates
used in the EIR are unreliable and unsupported by substantial
evidence. SCOPE cites data included in the EIR showing that
from 2008 to 2014, the average reported landfill gas capture rate
ranged from 71 to 78 percent -- very close to the 75 percent
default rate initially recommended by the SCAQMD.
SCOPE also cites data in the EIR showing landfill gas
collection efficiency rates for the years 2001 to 2007 ranging from
88 to 106 percent -- substantially higher than the capture rates
for the years 2008 to 2014. SCOPE argues that EIR provides no
explanation for this discrepancy or why a collection efficiency rate
that exceeds 100 percent can be considered reasonable. SCOPE
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further argues that the collection efficiency rates are unreliable
given these data discrepancies.
SCOPE raised these same arguments in its public
comments to the DEIR. In the EIR and in its response to public
comments, the County acknowledged that a default landfill gas
collection efficiency rate of 75 percent was generally used prior to
the California Air Resources Board’s adoption of California’s
Landfill Methane Regulation (Cal. Code Regs., tit. 17, §§ 95460 to
95476), which imposed more stringent methane emissions
standards and emission collection and control requirements on
landfills in California. The County explained, however, that
since the June 2010 effective date of the Landfill Methane
Regulation, the California Air Resources Board had undertaken
more recent technical analyses and found landfill gas collection
efficiencies of 83 percent and 87 percent to be more
representative of California landfills. The County further
explained that an efficiency rate exceeding 100 percent is not an
anomaly in the data, but the result of comparing data from actual
and modeled sources. When the LANDGEM model predicts less
landfill gas generated than is actually collected onsite, it can
result in a landfill gas collection efficiency rate that exceeds 100
percent.
The Golder report included in the EIR explains the year to
year variations in landfill gas collection efficiency rates. The
report states that landfill conditions are constantly changing,
including some years of record-setting drought in California and
varying municipal solid waste streams, whereas the LANDGEM
model assumes unchanging conditions in predicting landfill gas
generation.
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The CEQA Guidelines in effect at the time the EIR was
finalized gave a lead agency “discretion to determine, in the
context of a particular project, whether to: [¶] (1) Use a model or
methodology to quantify greenhouse emissions resulting from a
project, and which model or methodology to use . . . provided it
supports its decision with substantial evidence. . . .” (CEQA
Guidelines, former § 15064.4, subds. (a), (b).) Substantial
evidence supports the County’s use of modeled data to quantify
greenhouse gas emissions and to determine the landfill gas
collection efficiency rate at the Landfill. That evidence consists of
site-specific engineering studies prepared by two different experts
and studies and analyses performed by the California Air
Resources Board. Substantial evidence for purposes of CEQA
review, includes “expert opinion supported by facts.” (Pub.
Resources Code, § 21080, subd. (e)(1).) SCOPE fails to
demonstrate that the methodology used by the County to
quantify greenhouse gas emissions was legally inadequate.
DISPOSITION
The order denying the petition for writ of administrative
mandamus is affirmed. Respondent shall recover its costs on
appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
____________________________, J.
CHAVEZ
We concur:
_________________________, P. J. ________________________, J.
LUI HOFFSTADT
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