Citations
- 52 Cal. App. 4th 1165
Full opinion text
Opinion
WOODS, J.
I
Introduction
In view of the length and complexity of the opinion, we deem it necessary to give an expansive preview of the subject matter in the introduction.
This matter came to this court initially when Azusa Land Reclamation Company, Inc., filed a “petition for writ of mandate joined with request for stay or, alternatively, appellant’s opening brief joined with petition for writ of supersedeas and application for expedited appeal. . . .” On October 11, 1996, this court issued an order requesting respondents to file a response to the petition of appellant. Following the filing of the response, this court issued an order denying the petition for writ of supersedeas and further ordering the filing of a respondents’ brief and permitting the filing of a reply brief by appellant.
The Main San Gabriel Groundwater Basin (the Basin) is an underground reservoir that supplies the water needs of approximately 1,000,000 Southern Californians and is a vital link in California’s statewide water planning. The Legislature, observing that municipal solid waste landfills located in empty sand and gravel quarries atop the Basin are believed to have contributed to the pollution of the Basin, has prohibited new or expanded landfills in sand and gravel pits—even if the landfill were to have a liner designed to capture pollutants before they hit the Basin.
The Azusa landfill, owned by appellant, Azusa Land Reclamation Company, Inc. (ALR), is an 80-acre unlined municipal solid waste landfill located in an empty sand and gravel pit atop the Basin. In 1991, the State Water Resources Control Board (the State Board) rescinded the permit allowing the disposal of municipal solid waste at the site and ordered that further discharge at the site would be henceforth limited to inert waste because of the unsuitability of the site for a municipal solid waste dump. Accordingly, the landfill closed.
In 1994, after all of its challenges to the 1991 State Board order had failed, ALR announced that it would reopen the unlined 80-acre area and deposit 3,200,000 tons of municipal sold waste over a 7-year period. The State Board refused to stand in the way, deciding that the rescission of the earlier permit had only served to reinstate a permit issued in 1960. The State Board did, however, order ALR to submit a report of waste discharge by October 1995 and directed the Regional Water Quality Control Board for the Los Angeles region (the Regional Board) to decide whether to authorize the additional disposal.
In April 1995, the Regional Board decided to defer a decision until October 1995, after concluding that it could not allow ALR to dump 3,200,000 more tons of garbage at the site unless ALR proposed some sort of mitigation measures to overcome the obvious site deficiencies. The Main San Gabriel Basin Watermaster (Watermaster), the Metropolitan Water District of Southern California (Metropolitan), several municipal water districts, several elected officials, and numerous members of the public opposed the issuance of a new permit. Metropolitan retained several world-renowned experts to review ALR’s proposal and, before the October public meeting, its experts submitted reports concluding that ALR’s proposed mitigation measures would not work. ALR disagreed. After looking at all the evidence, Regional Board staff concluded that the impact of ALR’s dumping—even with ALR’s proposed mitigation measures—could be “significant.”
On October 30, 1995, the Regional Board held a public meeting. After listening to comments from the public, the board closed the public comment period and then voted five to four to adopt an order that authorized the continued disposal of municipal waste at the site and that simultaneously declared the project exempt from the California Environmental Quality Act (CEQA). The State Board dismissed the petitions for failing to state a “substantial issue.”
The trial court reversed the Regional Board’s decision, concluding that CEQA applied because there was substantial evidence that the project would have a significant effect on the environment. ALR filed a timely notice of appeal. The State Board did not appeal.
II
Contentions
ALR contends the trial court erred: (1) by granting respondents relief when they failed to exhaust their administrative remedies by raising CEQA issues before the Regional Board; (2) by mistakenly applying the “significant effect” exemption to the existing facility categorical exemption; (3) by not applying the “ongoing project” exemption which should have been applied by the Regional Board; and (4) by failing to agree the landfill permit did not constitute a “project” under CEQA.
Respondents contend they have exhausted their administrative remedies and the trial court properly found that the “significant effect” exception applies. They further contend that the public policy goals of CEQA, environmental review, full disclosure and informed decisionmaking, have been upheld by the trial court’s decision. Respondents contend that CEQA was not enacted for the purpose of granting a permit authorizing pollution while the project manager experiments with mitigation measures to reduce the suspected environmental impacts of the continued pollution—all without any environmental review.
Ill
Factual and Procedural Background
The Parties.
Appellant, ALR, is a company engaged in the business of waste disposal, and owns and operates the landfill.
Respondent, Watermaster, is a nine-member board established by the Los Angeles Superior Court to implement its 1973 judgment adjudicating water rights in the Basin.
The State Board was a respondent in the trial court proceedings but elected not to appeal the judgment or file a brief in this appeal.
The following public water supply agencies are respondents in this appeal: Metropolitan; the San Gabriel Valley Municipal Water District (Four Cities); the Upper San Gabriel Valley Water District (Upper District); and the Three Valleys Municipal Water District (Three Valleys). For purposes of brevity, all of these respondents will be collectively referred to as the “Water Agencies.”
The Main San Gabriel Water Basin.
The Basin’s groundwaters are beneficially used for municipal, industrial, and agricultural water supply. The Basin produces approximately 200,000 acre-feet of water annually, supplying “drinking water for the lion’s share of the San Gabriel Valley’s more than 1,000,000 residents.” (Main San Gabriel Basin Watermaster v. State Water Resources Control Bd. (1993) 12 Cal.App.4th 1371, 1374 [16 Cal.Rptr.2d 288].) Forty-six separate municipal water departments, private water companies, and other water agencies rely upon the Basin as a continuous source of high-quality water.
In addition to its value as a source of water, the Basin is an irreplaceable natural water storage facility. The estimated total capacity of the Basin is more than 10,000,000 acre-feet and has an unused storage capacity of at least 400,000 to 500,000 acre-feet. Substantial amounts of water are imported at considerable expense, spread at recharge areas adjacent to the Azusa landfill, and stored in the Basin for use in times of need. Regrettably, the Basin is polluted. “[Pollution of the Basin already poses a significant threat to public health, and consequently, the Basin is on the United States Environmental Protection Agency’s (EPA) national priority list for cleanup under the federal superfund program.” (Main San Gabriel Basin Watermaster v. State Water Resources Control Bd., supra, 12 Cal.App.4th at pp. 1374-1375.)
The Legislature has characterized the Basin contamination problem as “urgent.” (Stats. 1989, ch. 736, § 1, p. 2433.) Observing that “[t]he existence of landfills [atop the Basin] are believed to have contributed significantly to this groundwater contamination,” (ibid.) the Legislature in 1989 prohibited any new or expanded municipal solid waste landfills in former sand and gravel pits atop the Basin. (Pub. Resources Code, § 40060.)
The AIR Landfill Site.
The unlined 80-acre area lies within an active sand and gravel quarry. The site comprises 302 acres within the cities of Azusa and Irwindale. The property consists of (a) the unlined 80-acre area; (b) a 22-acre lined portion where only inert waste may be deposited; and (c) a 200-acre area consisting primarily of sand and gravel operations. The Legislature, the courts, and the state and regional water quality control boards have declared that the Azusa Landfill site is particularly ill-suited for the disposal of waste.
The landfill sits in a unique “geologic setting . . . ideally suited to receive, store, and transmit large volumes of potable water.” The landfill is located on rock debris, deposited by the San Gabriel River. “[T]he material is highly permeable and will transmit water readily.”
The permeability of the geologic material beneath and near the landfill makes the area ideal for recharging the Basin. It is surrounded by important recharge areas. To the north is the San Gabriel Canyon recharge area; one mile west is the San Gabriel river and the Santa Fe spreading grounds; and to the south is the Irwindale recharge site. Just as water rapidly percolates in the Basin, so do liquid contaminants from the landfill, known as “leachate,” making the site the worst location for a landfill. In 1993, the Court of Appeal observed that “It is undisputed that the ALR landfill sits on a sand and gravel quarry, which renders the site particularly inappropriate for waste disposal.” (Main San Gabriel Basin Watermaster v. State Water Resources Control Bd., supra, 12 Cal.App.4th at p. 1377, fn. 3.) In the words of the State Board, “Logically, an environment suited for rapid ground water recharge is the least suited for waste disposal.”
Regional Board order No. 95-151 authorizes ALR to deposit “municipal solid waste” in the unlined 80-acre area. Although “[s]uch waste is nominally classified ‘nonhazardous’ under the current regulatory scheme .... [it] typically contains known contaminants found in many commonly used household and automobile-related products. Leachates from the decomposition of such nonhazardous solid waste can render groundwater unfit for domestic purposes.” (Main San Gabriel Basin Watermaster v. State Water Resources Control Bd., supra, 12 Cal.App.4th at p. 1374.)
Background.
A. Commencement of landfilling at the site.
According to the Environmental Protection Agency (EPA), “ ‘[Ljandfilling began [at the site] ... in about 1952, before liners, containment structures, leachate collection or removal systems, or leak detection systems were commonly used or required, so the [site has] none of these features.’ ” In 1959, the Legislature enacted former Water Code section 13054.1 which required persons discharging sewage (defined to include any waste associated with human habitation) or industrial waste to file a report on waste discharge with the local regional water pollution control board, which was directed to prescribe requirements as to the nature of the discharge. (Stats. 1959, ch. 1299, § 15, p. 3453.) Unlike a regional water quality control board today, a regional pollution control board in 1959 lacked the authority to prohibit, or even limit the volume of, discharge of sewage or industrial waste to land anywhere in California. (Stats. 1959, ch. 1299, § 18, p. 3453; 48 Ops.Cal.Atty.Gen. 85, 88 (1966).)
On February 11, 1960, the regional water pollution control board for the Los Angeles region, having no authority to do otherwise, prescribed requirements authorizing Azusa Rock and Sand Company to deposit “ordinary household and commercial refuse,” and “nonwater soluble nondecomposable inert solids” at the landfill. (Res. No. 60-22.)
B. Passage of the Porter-Cologne Water Quality Control Act of 1969.
As California’s population grew and the adverse environmental impacts associated with that growth were recognized, the Legislature enacted numerous new laws to protect California’s water resources. In 1961, the Legislature enacted the Porter-Dolwig Ground Water Basin Protection Law, finding “that the greater portion of the water used in this State is stored, regulated, distributed and furnished by its ground water basins, and that such basins are subject to critical conditions of . . . degraded water quality causing great detriment to the peace, health, safety and welfare of the people of the State.” (Wat. Code, § 12922.1.)
The law governing the production of water quality changed significantly in 1969 with the passage of the Porter-Cologne Water Quality Act, a comprehensive legislative plan for protecting the quality, and thus maximizing the beneficial use, of California’s waters. (Stats. 1969, ch. 482, § 18, p. 1051.) The Porter-Cologne Water Quality Act provides: “The Legislature finds and declares that... the quality of all the waters of the state shall be protected for use and enjoyment by the people of the state.” “[A]ctivities and factors which may affect the quality of the waters of the state shall be regulated to attain the highest water quality which is reasonable ....’’ (Wat. Code, § 13000, italics added.)
The regional water quality control boards were required (i) to establish water quality objectives that “will ensure the reasonable protection of beneficial uses” of state waters (Wat. Code, § 13241, italics added), and (ii) prescribe waste discharge requirements (WDR’s) governing discharges to land and waters within the regions. In addition, the Porter-Cologne Water Quality Act gave the regional water boards authority to specify “areas where the discharge of waste, or certain types of waste, will not be permitted.” (Wat. Code, § 13243.)
C. 1982 emergency amendment to Porter-Cologne to protect against the threat posed by waste disposal sites.
In 1982, the Legislature enacted emergency legislation to amend the Porter-Cologne Water Quality Act to protect against the threat that landfills pose to the State’s water resources. (Stats. 1982, ch. 90, § 4, p. 291, eff. Mar. 2, 1982.) The 1982 legislation required the State Board to “(a) Classify wastes according to the risk of impairment to water quality . . . . [*1D (b) Classify the types of disposal sites according to the level of protection provided for water quality, taking into account the geology, hydrology, topography, climatology, and other factors relating to ability of the site to protect water quality. [<]D (c) Adopt standards and regulations to implement Sections 13226 and 13227.” (Wat. Code, § 13172.)
Water Code section 13226 required regional boards to review and classify all currently operating waste disposal sites.
In 1984, the State Board adopted a comprehensive regulatory scheme (Chapter 15) that established three categories of waste management units, based on their ability to contain wastes, and four categories of waste based on an assessment of the potential risk of water quality degradation associated with each category of waste. (Cal. Code Regs., tit. 23, § 2520, subd. (a)(2).) Each category of waste (with the exception of inert waste) may be discharged only to a suitably classified waste management unit. (Cal. Code Regs., tit. 23, § 2520, subd. (a)(2).) Municipal solid waste (MSW) denominated “Nonhazardous Solid Waste” or “Class III” waste (Cal. Code Regs., tit. 23, § 2523) may be discharged at a new or existing Class III waste manage unit “where soil characteristics, distance from waste to ground water, and other factors will ensure no impairment of beneficial uses of. . . ground water beneath or adjacent to the landfill.” (Cal. Code Regs., tit. 23, § 2533, subd. (b)(1), italics added.) Class III landfills must have “containment structures which are capable of preventing degradation of waters of the state as a result of waste discharges to the landfills if site characteristics are inadequate.” (Cal. Code Regs., tit. 23, § 2540, subd. (c).) These siting and containment requirements apply to both new and existing landfills. (Cal. Code Regs., tit. 23, § 2510, subd. (d).)
Existing waste management units were given five years to show compliance with the new, tough regulations and obtain new operating permits, or prepare for closure under new regulations adopted at the same time. (Cal. Code Regs., tit. 23, § 2510, subd. (d).) The regulations allowed discharges to “operate existing waste management units under existing classifications and waste discharge requirements until those classifications and requirements are reviewed in accordance with [California Code of Regulations, title 23, section 2591, subdivision (c)]. . . . Pending review and reclassification . . . dischargers are required to develop monitoring programs . . . and shall submit such programs to regional boards for approval.” (Ibid.) Regional boards were instructed to consider the results of such monitoring programs (Cal. Code Regs., tit. 23, § 2510, subd. (e)), and to “fully review[]” “[W]aste management unit classifications and waste discharge requirements.” (Cal. Code Regs., tit. 23, § 2591, subd. (c).)
In short, the Porter-Cologne Water Quality Act, the 1982 amendments regarding classification of wastes and sites, and the 1984 Chapter 15 regulations which implemented the 1982 legislation worked a major change in the law from that which existed in 1960 when Resolution No. 60-22 was issued by the former regional water pollution control board. Whereas that board could not prohibit the discharge of sewage to land anywhere, the new regional water quality control boards were directed to ensure that within five years only landfills that ensured nonimpairment of water were accepting municipal solid waste.
D. Regional Board order No. 86-59 limited Resolution No. 60-22 pending the implementation of the new regulations.
In 1986, the Regional Board issued Regional Board order No. 86-59 to ALR (Order No. 86-59). It said that “Pending the full implementation at this site of the new requirements of [Chapter 15] . . . the disposal of Class III wastes should be limited to [the unlined 80-acre area].”
ALR claims that the Regional Board “reclassified” the unlined 80-acre area as a Class III landfill in 1986 when it issued Order No. 86-59. For the reasons explained below, we find ALR’s claim to be erroneous, but this court does not have to decide what the Regional Board’s intent was in 1986 when it issued Order No. 86-59. In 1994, the State Board concluded that Order No. 86-59 did not reclassify the unlined 80-acre area under the Chapter 15 regulations, and instructed the Regional Board to do so. In response to the State Board’s instruction, the Regional Board issued Regional Board Order No. 95-151, the order that is the subject of this suit.
The State Board’s conclusion that Order No. 86-59 did not reclassify the site pursuant to the 1984 regulations is correct. First, Order No. 86-59 does not say that it classified the unlined 80-acre area as a Class III landfill. By contrast, when the Regional Board did later classify the landfill as a Class IÚ landfill, it explicitly said so in unmistakable terms at the outset of its order. (See Regional Bd. order No. 88-133 [“1. Azusa Land Reclamation Landfill is a Class III landfill.”]; Regional Board order No. 95-151 [“A.l. ALRC may continue disposing MSW in the 80-acre unlined portion only ... as an interim Class III landfill. . . .”].)
Second, by its terms Order No. 86-59 was issued “[p]ending the full implementation at this site” of the new regulations. Order No. 86-59 explicitly says that Chapter 15 had not been implemented at the site. Order No. 86-59 also does not purport to impose the new Chapter 15 regulations on ALR. Again, by contrast, the Regional Board explicitly directed in issuing Order No. 88-133 that “This site shall comply with all applicable provisions, requirements, and procedures contained in [Chapter 15].”
Third, there is nothing in Order No. 86-59 that indicates that, in issuing the order, the Regional Board undertook the review mandated by the 1984 regulations, namely, a determination whether the site met the siting criteria, or that ALR had proposed an engineered alternative that overcame the site deficiencies. ALR claims that it had proposed a “groundwater monitoring program” as an engineering alternative. We find no support in the record for this claim. ALR implemented a groundwater monitoring program because it was ordered to do so in order that the Regional Board could use the data in deciding whether to reclassify the site. (Cal. Code Regs., tit. 23, § 2510, subd. (d).) ALR does not refer to anything in the record that supports the claim that its groundwater monitoring program was a proposed “engineered alternative” that would itself “ensure” non-impairment of groundwater quality. A program to sample and analyze groundwater cannot prevent pollution, it can only measure it. More importantly, there is nothing in Order No. 86-59 that suggests that the Regional Board, by issuing Order No. 86-59, found the groundwater monitoring program would ensure non-impairment.
E. The site was reclassified in 1988 by Regional Board order No. 88-133, but order No. 88-133 was rescinded or severely limited in 1991.
After Order No. 86-59 issued, ALR began the process of obtaining revised waste discharge requirements. In December 1986, ALR represented to the Regional Board that it had overestimated the remaining capacity in the unlined 80-acre area. “ ‘Instead of 4.9 years remaining, only 3 years are left.’ ” ALR thus focused on the proposed expansion of the site.
In 1988, the Regional Board issued Regional Board order No. 88-133 (Order No. 88-133) which did classify the unlined 80-acre area as well as the remaining 220 acres of the site, as a Class III landfill, and implemented numerous new requirements over the landfill’s operations. The Regional Board initially denied revised waste discharge requirements for the expansion area, but after ALR offered to install additional protective measures, the board approved the project and issued waste discharge requirements to govern the entire 300-acre site.
Watermaster and the other Water Agencies opposed Order No. 88-133, and petitioned the State Board to review it. Watermaster also sought to stay Order No. 88-133 to prevent ALR from depositing waste in the expansion area. ALR opposed the stay, representing to the State Board that “ALR needs to begin disposal activities in the [expansion] zone within the next 30 to 45 days .... ALR is very near the end of the available space in its unlined landfill area.” The State Board denied a stay and later modified Order No. 88-133 by issuing State Board order No. 89-17, but otherwise approved the issuance of waste discharge requirements for the site as a Class III landfill.
Watermaster and the other Water Agencies brought a mandate proceeding to challenge State Board order No. 89-17. In 1991, the Court of Appeal found that the State Board erred in approving an expansion of the site without first preparing an environmental impact report (EIR) to consider the impact of expansion and the superior court issued a peremptory writ of mandate that (i) vacated State Board order No. 89-17 and (ii) prohibited further disposal outside the unlined 80-acre area pending compliance with CEQA.
The State Board then undertook a further review of the site, which resulted in State Board order No. 91-09. In the order, the State Board observed that “[t]here is virtually no capacity remaining in [the unlined 80-acre area] .... The landfill is virtually shutdown at the present time. Only inert wastes may be discharged.” (Italics added.)
The State Board order dealt with the following contention and made the following finding: “1. Contention: Petitioner and other interested persons contend that further use of the landfill for other than the disposal of inert wastes should be denied. They contend that such use poses an unacceptable risk to ground water quality of an already polluted basin. [(] Finding: For the reasons discussed below, we find that further discharges of nonhazardous waste at the landfill do pose an unacceptable risk to water quality. We, therefore, find that such discharges should be prohibited.” (State Bd. order No. 91-09, fns. omitted.) Likewise, in section III of State Board order No. 91-09, “Conclusions,” the State Board concluded that “[t]he further discharge of nonhazardous waste at the Azusa landfill should not be permitted.” Finally, order No. 91-09 provided that “Waste Discharge Requirement order No. 88-133 ... is rescinded except as it authorizes the disposal of inert wastes” and “the Regional Board [shall] consider what additional measures are appropriate to regulate the existing landfill.”
ALR challenged State Board order No. 91-09 in several ways. First, ALR claimed that the State Board was required to comply with CEQA before denying waste discharge requirements. One of ALR’s main arguments was that an impending trash crisis would be accelerated if the ALR landfill is closed to Class HI waste, so CEQA required the State Board to prepare an EIR before issuing State Board order No. 91-09. We are unable to find support in the record that ALR advised the trial court or the Court of Appeal that there was seven years’ capacity remaining in the unlined eighty-acre area. The trial court and the Court of Appeal rejected that claim. (Main San Gabriel Basin Watermaster v. State Water Resources Control Bd., supra, 12 Cal.App.4th 1371.) ALR also filed a separate action claiming that the State Board, by issuing order No. 91-09, violated the Porter-Cologne Water Quality Act. The trial court rejected that claim and the court’s decision became final in February 1994 after ALR elected not to appeal.
F. In 1994, ALR announced it would begin dumping 3,200,000 tons of municipal garbage in the unlined area.
Watermaster and the Water Agencies assert that they believed that the matter of the Azusa landfill was closed but, were dismayed when, ALR unexpectedly announced in April 1994 that it had discovered seven years’ additional capacity in the unlined eighty-acre area, and would begin filling the remaining capacity in May 1994. Watermaster immediately contacted the Regional Board and reminded it that State Board order No. 91-09 limited disposal at the site to inert waste and asked the Regional Board, therefore, to prohibit the disposal of Class III waste, at least until the Board could consider whether ALR had authority to accept such waste. The Regional Board asked the State Board for guidance.
Watermaster immediately petitioned the State Board to review the Regional Board’s failure to act. The petition contained arguments that (1) Order No. 88-133, as limited by State Board order No. 91-09, governed the unlined 80-acre area so only inert waste could be accepted at the site, or (2) if, somehow, the State Board were to conclude that Order No. 88-133 was not in effect, the unlined 80-acre area would necessarily be governed by the old Resolution No. 60-22, as limited by Order No. 86-59, and the site would be operating under an order that predated the implementation of Chapter 15 regulations by more than 20 years. Watermaster also maintained that it was too late to “reclassify” the unlined 80-acre area, because more than five years had elapsed since the 1984 regulations went into effect, which were mandated to be fully implemented by 1989.
On July 20, 1994, the State Board’s executive officer issued a memorandum to the Regional Board’s executive officer concluding, based on a legal opinion from the State Board’s office of chief counsel, that “[n]onhazardous solid waste may be discharged within the original 80-Acre landfill pursuant to RWQCB Resolution No. 60-22 and Order No. 86-59. [U . . . Since the landfill is operating pursuant to the earlier waste discharge requirements that have not been reclassified under the SWRCB’s Chapter 15 regulations, the landfill operator must submit a revised report of waste discharge by October 9, 1994.” The State Board reached this result by concluding that “Since RWQCB Order No. 88-133 was rescinded (except for inert disposal) the earlier RWQCB orders, which had been rescinded by Order No. 88-133, are reinstated. . . . Because the discharge of solid waste to the 80-acre site is governed by the earlier waste discharge requirements, these requirements must be reviewed by the RWQCB for compliance with the SWRCB’s Chapter 15 regulations.”
In October 1994 ALR submitted its revised report of waste discharge seeking classification as a Class III landfill and declaring that there was room for an additional 3,400,000 tons of municipal solid waste in the unlined 80-acre area. Watermaster immediately asked the Regional Board to hold a hearing and deny revised waste discharge requirements to ALR because the site itself plainly did not meet Chapter 15 requirements for a Class III landfill and ALR had still not even proposed an “engineered alternative” that could overcome the site deficiencies. The Regional Board did nothing substantive.
In January 1995, the EPA notified the Regional Board that the Azusa landfill was named a potentially responsible party for the Baldwin Park Superfund site, and that ALR appeared to be “one of the largest contributors of 1,4-DCB, 1,2-DCB, and CBN to the groundwater, and may be a lesser to moderate contributor of other compounds to the groundwater.” In response, the Regional Board at a public meeting in April 1995 voted not to decide anything on ALR’s October 1994 report of waste discharge, but instead granted ALR six months to study the site further and propose an engineered alternative that might satisfy the requirements of Chapter 15.
G. The October 30,1995, public meeting.
During the six-month study period, Metropolitan retained a team of experts to investigate the site in order to augment the substantial evidence that had already led the Legislature to enact Public Resources Code section 40060, and the State Board to issue State Bar order No. 91-09, based on the overwhelming evidence that the landfill was simply in the wrong site, regardless of what mitigation measures ALR might propose.
In September 1995, ALR’s consultants submitted a report that concluded that the unlined 80-acre area was in fact contaminating the Basin. ALR’s consultants opined, however, that all of the degradation of the groundwater was caused by (1) gas migration, (2) silt in the soil beneath the landfill and (3) other businesses operating in the area. Concluding that it was responsible only for contamination caused by gas migration, ALR proposed to construct 20 additional gas wells.
After reviewing the data and ALR’s reports, Metropolitan’s experts concluded that the data was consistent only with leachate migration from the landfill—not gas migration alone—and that the leachate migration could not be corrected by installing gas wells. Metropolitan’s experts calculated that ALR’s proposal to add 3,200,000 tons of waste to the site would roughly double the waste in the unlined 80-acre area; the additional waste would generate an additional 5,000,000 to 6,000,000 gallons more leachate percolating into the groundwater; ALR’s proposed mitigation measures of installing gas wells could not possibly prevent leachate migration and there was no viable technology that existed to do so.
Regional Board staff also analyzed the data, and met with both ALR’s experts and Metropolitan’s experts. On October 13, 1995, it sent its report summarizing its findings to ALR and notified other interested parties that the report was on file in staff’s office and was available upon request. The report concluded that the unlined 80-acre area had degraded water quality; while gas migration in the landfill was “the most likely mechanism by which pollutants have reached and degraded groundwater[,] [i]t is still unclear whether [leachate]” also has degraded groundwater; the site itself could not ensure no future impairment of groundwater quality; the landfill did not currently have in place mitigation measures capable of preventing degradation of groundwater quality; the effectiveness of ALR’s proposed additional mitigation measures have not yet been demonstrated; if the proposed mitigation measures turned out to be ineffective, “continued disposal of municipal solid waste will have added a potential source of pollution” and, in conclusion, the “potential impacts” of additional waste disposal at the site—even with ALR’s proposed additional mitigation measures—“range from none to significant” (Italics added.)
At the regularly scheduled public meeting, the Regional Board took comments from staff, ALR and other interested members of the public including Watermaster, Metropolitan, Metropolitan’s experts and others. The Regional Board then closed the public comment session, discussed the project amongst themselves and with the staff and then voted five to four to adopt Regional Board Order No. 95-151 (Order No. 95-151), which approved continued disposal of municipal solid waste and simultaneously found the project to be exempt from CEQA as an ongoing project.
On November 28, 1995, Watermaster filed a supplemental petition for review with the State Board, arguing that Order No. 95-151 violated the Porter-Cologne Water Quality Act and CEQA. Four Cities, Three Valleys, Upper District, and Metropolitan Agencies brought a separate petition for review with the State Board. On January 24,1996, the State Board dismissed the petitions, finding that they failed to raise any “substantial issues.”
On February 23, 1996, Watermaster filed its verified petition for writ of mandate, alleging violations of the Porter-Cologne Water Quality Act and CEQA. The Water Agencies also filed a petition. After full briefing, the court held a hearing and then issued its tentative statement of decision on August 12, 1996, that Order No. 95-151 had been issued in violation of CEQA. Judgment was entered on September 11, 1996, over ALR’s objection.
IV
Discussion
Regional Board’s Decision to Authorize the 80-Acre Unlined Area to Accept Class III Waste.
ALR asserts that CEQA is inapplicable because there is no “project” involved in this instance. We deal with this threshold claim first.
CEQA defines a “project” extremely broadly as “an activity which may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment, and which is any of the following: ...(c) [a]n activity that involves the issuance to a person of a lease, permit, license, certificate, or other entitlement for use by one or more public agencies.” (Pub. Resources Code, § 21065; see Bozung v. Local Agency Formation Com. (1975) 13 Cal.3d 263, 277, fn. 16 [118 Cal.Rptr. 249, 529 P.2d 1017] [CEQA defines “ ‘project’ so broadly that it covers activities having no conceivable effect on the environment.”]; McQueen v. Board of Directors (1988) 202 Cal.App.3d 1136, 1143 [249 Cal.Rptr. 439] [“ ‘Project’ is given a broad interpretation in order to maximize protection of the environment.”]; Bloom v. McGurk (1994) 26 Cal.App.4th 1307, 1312 [31 Cal.Rptr.2d 914] [“The ‘project’ in this case is the ongoing operation of a . . . facility under a new regulatory scheme.”].)
ALR concedes that the Regional Board’s decision to issue Order No. 95-151 involved the discretionary issuance of waste discharge requirements by a public agency, but now disputes that the dumping of waste is an activity which may cause a direct physical change in the environment. It is clear to this court that ALR’s proposal to discharge 3,400,000 tons of municipal waste in an unlined, emptied sand and gravel pit directly atop the Main San Gabriel Basin, is an activity which may cause a physical change in the environment.
Appendix G to the CEQA Guidelines provides that “A project will normally have a significant effect on the environment if it will: ...(g) Contaminate a public water supply; (h) Substantially degrade or deplete ground water resources; (i) Interfere substantially with ground water recharge; . . . (v) Create a potential public health hazard . . . .” These potential effects are, therefore, plainly the sort of “physical change[s] in the environment” that CEQA is designed to address. There cannot be a serious question that a “fair argument is extant in this instance” that the disposal of 3,400,000 tons of municipal solid waste in an unlined sand and gravel quarry atop the Basin and adjacent to the recharge areas of the Basin is an activity that “may” contaminate or degrade water quality in the Basin, or “may” interfere with ground water recharge. (Friends of “B” Street v. City of Hayward (1980) 106 Cal.App.3d 988, 1022 [165 Cal.Rptr. 514] [applying fair argument test to issuance of a mitigated negative declaration]; Dunn-Edwards Corp. v. Bay Area Air Quality Management District (1992) 9 Cal.App.4th 644, 655 [11 Cal.Rptr.2d 850], disapproved on other grounds by Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559 [38 Cal.Rptr.2d 139, 888 P.2d 1268] [applying fair argument test to finding of a categorical exemption]; Gentry v. City of Murietta (1995) 36 Cal.App.4th 1359, 1406, fn. 24 [43 Cal.Rptr.2d 170] [applying fair argument test to finding of a statutory exemption].)
ALR’s theory is that there will be no change in the environment because ALR has been operating as a landfill for some time. Implicitly, ALR equates its environment with the environment.
ALR relies on two cases to support its theory. Simons v. City of Los Angeles (1976) 63 Cal.App.3d 455 [133 Cal.Rptr. 721] is inapposite. Beginning in 1935, the Los Angeles Police Department used 21 acres in Elysian Park for a police training division, pursuant to permits issued by the department of parks and recreation. In 1972, the electorate passed a charter amendment transferring the 21 acres to the department of public works. The Court of Appeal concluded that the vote to transfer the property was not a project, relying on a CEQA Guideline that specifically provides that “ ‘project’ shall not include ‘. . . [t]he submittal of proposals to a vote of the people of the State or of a particular community.’ ” (Simons v. City of Los Angeles, supra, 63 Cal.App.3d at p. 465.) That provision does not apply here.
ALR’s reliance on Committee for a Progressive Gilroy v. State Water Resources Control Bd. (1987) 192 Cal.App.3d 847 [237 Cal.Rptr. 723] is also misplaced. Progressive Gilroy concerned a wastewater treatment constructed in Gilroy in the mid-1970’s. Gilroy caused to be prepared an EIR that authorized a projected capacity of 6,400,000 gallons per day (mgd). (Id. at p. 852.) The regional water quality control board then issued waste discharge requirements authorizing a flow of 6.1 mgd. In 1984, after an unauthorized release of wastewater, the regional board reduced the permitted flow to 5.15 mgd and the facility undertook remedial action to develop percolation ponds. After the ponds were constructed, the regional board increased the authorized flow to 5.3 mgd and, in May 1984, the regional board increased the flow to the originally approved level of 6.1 mgd.
The Court of Appeal rejected the argument that a new EIR needed to be prepared when the regional board reauthorized 6.1 mgd. The court concluded that Public Resources Code section 21166 explained when, after an EIR is prepared for a project, a subsequent or supplemental EIR is required and plaintiffs had not alleged that any of those conditions existed.
Here, an EIR has never been prepared for the discharge of municipal solid waste at the Azusa site. This is not, therefore, a question of whether a supplemental EIR needs to be prepared because of new information, or substantial changes in the project or the circumstances under which the project is being undertaken. (Pub. Resources Code, § 21166.)
The Regional Board’s decision to classify the unlined 80-acre area as an interim Class III landfill, and to authorize disposal of municipal solid waste is plainly a project for purposes of CEQA.
The Regional Board Finding That the Project Was Exempt From CEQA as an Existing Facility.
A. The statutory and regulatory framework.
The Legislature has made certain categories of projects exempt from CEQA. Many of these exemptions appear in Public Resources Code section 21080, subdivision (b). (Sierra Club v. Club State Bar of Forestry (1994) 7 Cal.4th 1215, 1230 [32 Cal.Rptr.2d 19, 876 P.2d 505] [The Legislature “has specified in section 21080 those projects that are categorically exempt from CEQA”, citing Pub. Resources Code, § 21080, subds. (b)(l)-(15).].) Public Resources Code section 21080, subdivision (b)(9) exempts from CEQA “[a]ll classes of projects designated pursuant to Section 21084.”
Public Resources Code section 21084 authorizes the Secretary of the Resources Agency to include in the Guidelines a list of classes of projects exempt from CEQA provided that the Secretary makes “a finding that the listed classes ... do not have a significant effect on the environment.” The classes of projects identified by the Secretary of the Resources Agency appear in Guideline section 15300 et seq. and are sometimes referred to as “categorical exemptions.” The Secretary of the Resources Agency’s authority to identify classes of projects exempt from CEQA is not unfettered. “The secretary is empowered to exempt only those activities which do not have a significant effect on the environment. (Pub. Resources Code, § 21084.) It follows that where there is any reasonable possibility that a project or activity may have a significant effect on the environment, an exemption would be improper.” (Wildlife Alive v. Chickering (1976) 18 Cal.3d 190, 205-206 [132 Cal.Rptr. 377, 553 P.2d 537].) To implement the rule laid out in Chickering, Guidelines section 15300.2, subdivision (c) was adopted, which provides: “Significant Effect. A categorical exemption shall not be used for an activity where there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances.”
When a public agency receives an application for a project, it is allowed 30 days to conduct a preliminary review. (Guidelines, § 15060.) As part of the preliminary review “[A] public agency shall determine whether a particular activity is exempt from CEQA.” (Guidelines, § 15061, subd. (a).) If the agency determines that the project is exempt for any reason, it “may prepare a notice of exemption” which is “kept with the project application.” (Guidelines, § 15061, subd. (d), italics added.) After approving a project found to be exempt, the agency or the applicant “may file a notice of exemption” with the Office of Planning and Research or with the county clerk. (Guidelines, § 15062, subd. (a), italics added.) If a notice of exemption is filed, the filing starts a 35-day statute of limitations “on legal challenges to the agency’s decision that the project is exempt from CEQA. If a Notice Of Exemption is not filed, a 180 day statute of limitations will apply.” (Guidelines, § 15062, subd. (d).)
The Regional Board determined that the project was exempt from CEQA pursuant to the exemption for an existing facility. The Regional Board did not file or prepare a notice of exemption at any time. As hereafter discussed, we find this exemption determination constituted a prejudicial abuse of discretion. Although the trial court did not decide the issue of abuse of discretion, the issue provides this court with an independent ground for affirming the judgment. The issue is one of law because it turns on the interpretation of the Guidelines. An issue involving a rule of law is one which this court decides de novo.
B. The categorical exemption for an existing facility should not be construed to include a large, municipal waste landfill.
The language of the exemption for an existing “facility” is ambiguous with respect to its application to a solid waste landfill. We therefore rely on other terms and provisions of the Guidelines, the environmental hazards associated with waste disposal sites and the policy of CEQA in determining that the exemption for a “facility” should not be given an expansive construction that includes solid waste disposal sites.
1. A categorical exemption should be construed to carry out the purposes for which such exemptions were intended.
Categorical exemptions may be provided only for “classes of projects which have been determined not to have a significant effect on the environment.” (Pub. Resources Code, § 21084, subd. (a), italics added.) These exemptions should be construed in the light of that authorization. Hence, a term that does not have a clearly established meaning, such as the exemption for existing “facilities,” should not be so broadly interpreted so to include a class of businesses that will not normally satisfy the statutory requirements for a categorical exemption, even if the premises on which such businesses are conducted might otherwise come within the vague concept of a “facility.”
This principle of interpretation is embodied in the Guidelines, which state that CEQA should be interpreted to “afford the fullest possible protection to the environment within the reasonable scope of the statutory language. [Citation.]” (Guidelines, § 15003, subd. (f); see also Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 390 [253 Cal.Rptr. 426, 764 P.2d 278]; and Castaic Lake Water Agency v. City of Santa Clarita (1995) 41 Cal.App.4th 1257, 1268 [49 Cal.Rptr.2d 79] [rejecting “an attempt to use limited exemptions contained in CEQA as a means to subvert rules regulating the protection of the environment”].)
2. The landfill is not a facility.
The Regional Board found that the new requirements it was issuing were exempt from CEQA because the landfill was an existing facility. The categorical exemption for existing facilities is part of the Class 1 exemption, which states: “Class 1 consists of the operation, repair, maintenance, or minor alteration of existing public or private structures, facilities, mechanical equipment, or topographical features, involving negligible or no expansion of use beyond that previously existing . . . .” (Guidelines, § 15301, italics added.)
These terms are not defined. The concept of a facility is vague. For example, a “facility” is normally defined as “something (as a hospital, machinery, plumbing) that is built, constructed, installed, or established to perform some particular function or to serve or facilitate some particular end” (Webster’s New Internal. Diet. (3d ed. 1981) pp. 812-813); or “[s]omething that is built or installed to perform some particular function . . . .” (Black’s Law Diet. (6th ed. 1990) p. 591.) A landfill, however, is excavated, and a “facility” is not necessarily inclusive of a landfill.
The Guidelines provide various nonexclusive examples of what is included as a facility, and ALR contends, without citation of authority, that its landfill comes within the example for public utility services. The Class 1 exemption states that it “includes] but [is] not limited to: . . . (b) [e]xisting facilities of both investor and publicly-owned utilities used to provide electric power, natural gas, sewerage, or other public utility services; . . .” (Guidelines, § 15301, italics added.) To the contrary, we find that a landfill for solid waste is not a public utility as defined by Public Utilities Code section 216. That section defines a public utility as a “common carrier, toll bridge corporation, pipeline corporation, gas corporation, electrical corporation, telephone corporation, telegraph corporation, water corporation, sewer system corporation, and heat corporation.” A solid waste landfill is obviously not a sewage system. (Cf. Pub. Util. Code, § 11508 [defining “solid waste resource recovery”].) Nor is a solid waste landfill otherwise subject to the jurisdiction, control and/or regulation of the Public Utilities Commission. (See, e.g., Cal. Code Regs., tit. 20, art. 2.5 [Protests—Requests for Hearings]; id., art. 5 [Applications for Authority to Increase Rates].)
3. Continued waste disposal at the landfill does not satisfy the implied requirement that alterations be limited to “minor” alterations.
It could be suggested that a landfill is close enough to a sewage system that it ought to be included within the vague concept of a facility, but there are good reasons—based both on other provisions of the Guidelines and the purpose of a categorical exemption—for not doing so. First, one of the significant features of a landfill is that its long-term operation will change the characteristics of both the landfill and the land itself, because it will be filled up with alternating layers of solid waste and dirt. Thus, the operation of a landfill inevitably involves its alteration. While the Guidelines provide a Class 1 exemption for alterations of existing facilities, the alteration must be “minor” only. (Guidelines, § 15304.) There is no way in which the dumping of 3,200,000 tons of municipal solid waste under the WDR’s in this case can be considered to be a “minor” alteration in an existing facility. The Board found that ALR had determined that at the time that dumping was resumed in May 1994, the 80-acre unlined site had an additional 3,200,000 tons of capacity that would require approximately 6 years to fill.
Thus, since each of the terms in the Class 1 exemption should be construed in the light of the other terms—and of the purpose of the exemption— neither “existing facilities” nor the “operation” of such facilities should be construed to include landfills where the proposed dumping will exceed the “minor alteration” that the Guidelines permit.
Although the Guidelines do not define a minor alteration, it has to be one that is so small that it does not cross the threshold level set by the Guidelines for an exception to the categorical exemptions. Thus, a “minor” alteration cannot be an activity that creates a reasonable possibility of a significant environmental effect.
Here, however, the board found that the existing landfill was actually polluting the underground water supply, and the report submitted by Metropolitan’s experts concluded dumping on the 80-acre site would generate an additional 5,000,000 to 6,000,000 more gallons of leachate, and that ALR’s proposed mitigation measures could not and would not prevent the continued pollution of the water basin. The fact that ALR disputed these conclusions is irrelevant. Under the fair argument standard of review, expert opinions supported by facts constitute substantial evidence, that, as a matter of law, precluded the Regional Board from finding that the continued dumping did not create a reasonable possibility of a significant adverse environmental effect. This kind of massive filling cannot be a minor alteration.
Second, the Guidelines’ treatment of “minor alterations to land” indicates that landfilling with municipal solid waste should not in any event be treated as a minor change. Thus, while the examples of “minor . . . alteration in the condition of land . . .” for which the Guidelines provide a Class 4 exemption are not exclusive, the example that deals with the filling of “previously excavated land” does not include filling with municipal solid waste; it applies only if the filling is “with material compatible with the natural features of the site.” (Guidelines, § 15304, subd. (c).)
Third, the legislative determination in 1989 that some of the state’s existing landfills “pose a threat to groundwater, air quality and public health” (Pub. Resources Code, § 40000, subd. (b)), provides confirmation that landfills do not constitute a suitable class of properties for a categorical exemption, and the Class 1 exemption for the operation and minor alteration of existing facilities should therefore not be construed to include such landfills.
C. The rationale for the existing facility exemption does not apply to solid waste landfills that have not been reclassified.
The apparent rationale for the existing facilities exemption is that the environmental effects of the operation of such facilities must already have been considered. That assumption, however, cannot justify the adoption of an expansive construction for the language of the Class 1 exemption to include waste disposal landfills because the Legislature has determined that waste disposal sites operating as of November 1984 present sufficient environmental hazards as a class so that the environmental impact of every such site must be reconsidered. Consequently, the Legislature directed the State Board to reclassify all existing waste disposal sites (except for sewage treatment plants and sites used primarily for fertilizer or radioactive materials), according to the level of protection that the site affords for water quality (Wat. Code, § 13172), and the board adopted new and stricter requirements for existing landfills that accept municipal solid waste. (Cal. Code Regs., tit. 23, §§ 2510, subd. (d), 2591, subd. (c).)
Thus, even if, arguendo, the exemption for the operation and minor alterations of existing facilities could be construed to apply to waste disposal landfills, that interpretation would not satisfy the apparent rationale for the existing facility exemption unless it was limited to those landfills that have actually been reclassified pursuant to the Legislature’s 1982 directive. However, in this case, because of a chain of unusual circumstances, the unlined 80-acre area had not been reclassified before it was given an existing facilities exemption.
D. ALR’s cases are distinguishable.
In Committee for a Progressive Gilroy v. State Water Resources Control Bd., supra, 192 Cal.App.3d 847, 864-865, the court held that a project for the expansion of a municipal sewage waste water treatment plant was entitled to an existing facility exemption because a sewer system was one of the examples that the Guidelines provided for an existing facility, and the expansion did not exceed the capacity for which the system was originally approved. “Since the project was originally built and approved for 6.1 mgd in full compliance with CEQA, the order restoring that capacity related to an existing facility and was exempt from CEQA.” (Id. at p. 864.) Thus, the decision implicitly supports a position that the existence—or nonexistence —of a prior environmental evaluation is a relevant factor in deciding whether the existing facility exemption should be applied.
In Bloom v. McGurk, supra, 26 Cal.App.4th 1307, 1313-1315, the court declined to follow Committee for a Progressive Gilroy to the extent that that case suggested that a facility does not exist for the purposes of a Class 1 exemption unless it predates CEQA or was originally implemented in compliance with CEQA. Bloom concluded that whether a particular facility is “existing” depends on its status at the time when the agency determines whether environmental review is warranted, and that a medical waste incinerator that had been permitted since 1982 was entitled to an existing facility exemption, even though it had apparently been established without compliance with CEQA. The court relied on the legislative policy embodied in CEQA’s short statute of limitations, the fact that thousands of permits are renewed every year, and that there was no legislative or regulatory directive to reexamine each facility’s prior CEQA compliance whenever a permit was renewed.
We discern that the issue presented in this case is different from Bloom. An implied exception is not being sought—based on the fact that this particular site has not received an environmental evaluation—to the language of the Class 1 exemption; we perceive respondents’ position to be that the language of the Guidelines provides a reasonable basis for refusing to extend the exemption for the operation and minor alteration of existing facilities to massive filling of large solid waste landfills. Considering the nature of such landfills, the policy of CEQA supports such an interpretation. In this case—unlike Bloom—there is a regulatory directive calling for the environmental reevaluation of all such solid waste landfills. City of Pasadena v. State of California (1993) 14 Cal.App.4th 810, 822, 824 [17 Cal.Rptr.2d 766], disapproved on other grounds by Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559 [38 Cal.Rptr.2d 139, 888 P.2d 1268], involves examples of minor alterations to existing facilities that appear to be irrelevant to the alteration issue here—whether the addition of 3,200,000 tons of solid waste constitutes a minor alteration.
The alterations in City of Pasadena involved the types of minor changes necessary to ensure that a building met health and safety standards, and the court found that those changes came within examples (a) and (f) of Guidelines section 15301.
In summary, the language of the Class 1 exemption for the operation and minor alteration of existing facilities, including without limitation, sewer systems, does not compel a construction to include large solid waste landfills, and we refuse to make such a construction. The operation of such landfills involves significant alterations that may threaten the environment and the intent and spirit of that exemption preclude its extension to those classes of businesses that the Legislature has determined may threaten the environment and must be reclassified. This interpretation will not create unreasonable administrative burdens. Once the environmental effects of a waste disposal landfill have been reevaluated, CEQA provides ample means for avoiding duplicative environmental evaluations in the future. (See, e.g., Guidelines, § 15006, subd. (f) [public agencies should use “a previously prepared EIR when it adequately addresses the proposed project”].)
The Regional Board’s Implied Finding That the Significant Effect Exception Did Not Preclude a Categorical Exemption.
The Guidelines provide that categorical exemptions may not be used (i) where there is a reasonable possibility that the activity will have a significant effect on the environment (ii) due to unusual circumstance. (Guidelines, § 15300.2, subd. (c).) A significant effect is a “substantial, or potentially substantial, adverse change.” (Pub. Resources Code, § 21068.) This means that an activity has a significant effect if it “has the potential to degrade the quality of the environment.” (Pub. Resources Code, § 21083.)
We find that the Regional Board committed a prejudicial abuse of discretion in impliedly finding that the significant effect exception did not preclude a categorical exemption. First, the Regional Board’s own findings, its own staff’s studies, the scientific evidence presented by the respondents’ experts and ALR’s admission that pollutants were leaking from the landfill into the water supply incontrovertedly established that—at the time the WDR’s were issued—there was a reasonable possibility that continued dumping would have a significant effect on the environment because it had the potential of degrading the underground water supply. Second, the Regional Board’s finding that ALR’s mitigation measures—when installed— “could” or “should” prevent further pollution are irrelevant. The board’s findings ignored the governing issue—whether there was substantial evidence of a reasonable possibility that continued dumping would have a significant effect on the environment. The scientific evidence presented by respondents compelled a finding in their favor on that issue as a matter of law.
A. The board’s findings establish the first requirement of the significant effect exception as a matter of law.
The evidence before the board did not simply show that there was a reasonable possibility that continued dumping would have a significant adverse effect on the environment; it showed that pollutants escaping from the landfill were actually polluting the