Filed 8/17/20 Stein v. Alameda County Waste etc. CA1/2

                  NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      FIRST APPELLATE DISTRICT

                                                   DIVISION TWO


 ANTOINETTE W. STEIN et al.,
             Plaintiffs and Appellants,
                                                                        A154804
 v.
 ALAMEDA COUNTY WASTE                                                   (Alameda County
 MANAGEMENT AUTHORITY,                                                  Super. Ct. No. RG17858423)
             Defendant and Respondent,


 WASTE MANAGEMENT OF
 ALAMEDA, INC. et al.,
      Real Parties In Interest and
 Respondents.



         Antoinette W. Stein and Arthur R. Boone, III, have separately appealed
from the judgment denying their petition for a writ of mandate directing
Alameda County Waste Management Authority (County Waste) to set aside
its approval of a waste composting process inside an existing facility for
alleged noncompliance with the California Environmental Quality Act (Pub.
Resources Code1 § 21000 et seq. (CEQA).) We affirm.


         1    Statutory references are to this code unless otherwise indicated.

                                                               1
                               BACKGROUND
      The trial court explained its reasoning at length, first in a 33-page
Order Denying Petition for Writ of Mandate, and then with a 21-page Order
Denying Motion to Vacate Judgment and Enter New Judgment or,
alternatively, for a New Trial. The following narrative is taken from these
documents, and quoted excerpts (with record citations omitted) are in them.
      Real Party in Interest Waste Management of Alameda County, Inc.
(Waste Management) owns and operates a 53-acre facility (called the DSTS
in the trial court’s documents, this being an acronym for Davis Street
Transfer Station) in San Leandro. In 1998, Real Party in Interest City of San
Leandro made its initial study of the project, adopted a mitigated negative
declaration,2 and issued Waste Management a permit to accept up to 5,600
tons per day (tpd) of waste at the facility. Waste Management “then built
various facilities at the DSTS.”
      In 2011, the City adopted a negative declaration and approved a
permit, in the trial court’s words, for “improvements” in “the construction of
buildings and installation of equipment for composting and waste diversion
at the DSTS.”3 The “improvements” were two-fold.

      2   The administrative record leaves no doubt that what was adopted
was a mitigated negative declaration. However, this document was
universally called a straight negative declaration by the trial court in the
orders that will be extensively quoted herein. Because the distinction is
without practical significance, at this time and for purposes of this appeal, we
made the editorial decision not to disfigure those excerpts with innumerable
“[sic]”s after the words “negative declaration.” We also note the City itself
occasionally called the document adopted a negative declaration with no
qualifier.
      3 Although the permit refers to a mitigated negative declaration, the
actual document clearly identifies it as a negative declaration. CEQA defines
a negative declaration as “a written statement briefly describing the reasons

                                       2
      “1. Food Waste/Organic Recycling Facility (approximately 62,000
square feet). The Recycling Facility would ‘be capable of receiving and
processing between 1,000 to 1,300 tpd of waste from residential and
commercial generators’ and ‘[a]n estimated 600 tpd of food and mixed
organics [was] expected to be recovered for compositing.’
      “2. Food Waste/Organics/Green Waste Compost Facility
(approximately 200,000 square feet). The Compost Facility would ‘process
approximately 1,000 tpd of food and green wastes along with other mixed
organics’ and ‘[b]etween 250 and 350 tpd [would] be composted on site, and
the rest of the material [would] be shipped for compositing off site.’ The
anaerobic process would take place in an enclosed tunnel. The resulting
methane gas would be a renewable energy source. The resulting liquid
percolate would be recycled as part of the compost process.”
      In 2017, Waste Management submitted a “revised application” to
County Waste. “The proposed changes were:
      “1. The Food Waste/Organic Recycling Facility would be renamed the
Organic Materials Recovery Facility (‘OMRF’) and remain approximately
62,000 square feet. The OMRF would be automated. The new facility would
be capable of processing up to 300,000 tons per year (1,500 tpd assuming 200
work days per year) of waste and would be expected to recover 600,000 tpy
[tons per year] of organics (300 tpd assuming 200 work days per year) for
composting.
      “2. Food Waste/Organics/Green Waste Compost Facility would be
divided into the Organics Materials Composting Facility (135,000 square


that a proposed project will not have a significant effect on the environment
and does not require the preparation of an environmental impact report.”
(§ 21064.)

                                       3
feet) and the Organics Digester Facility (65,000 square feet), and would
remain a total of approximately 200,000 square feet.
      “a. The Organics Materials Composting Facility (‘OMCF’) would
process up to 165,000 tpy (550 tpd assuming 300 work days per year).
      “b. The Organics Digester Facility (‘Digester’) would process up to an
additional 40,000 tpy of organic materials (133 tpd assuming 300 digesting
days per year.”
      In February 2017, the Local Task Force held a meeting and apparently
approved the staff report that “concluded that (1) there had been no changes
to the project, and (2) further CEQA review was not required.” County Waste
then held two public hearings on Waste Management’s application. Both
Stein and Boone “attended and objected” at both hearings. At the third
hearing, on March 22, 2017, County Waste “adopted Ordinance 2017-02,
which (1) found no further CEQA review was required, (2) amended the
ColWMP [Countywide Integrated Waste Management Plan], and (3) found
that the project was in conformance [sic: conformity] with ColWMP as
amended (the ‘2017 Conformance Decision’).”4

      4   The Local Task Force is an advisory body to County Waste, which has
responsibility for administering Alameda’s Countywide Integrated Waste
Management Plan by way of periodic review and revision. (Cal. Code Regs.,
tit. 14, §§ 18777, 18781, 18785, 18788.) The plan is required by the Waste
Management Act (originally the Integrated Waste Management Act of 1989,
§ 40000 et seq.), whose purposes are “to reduce, recycle and reuse solid waste
generated in the state to the maximum extent feasible in an efficient and
cost-effective manner to conserve water, energy and other natural resources,
to protect the environment, to improve regulation of existing solid waste
landfills, to ensure that new solid waste landfills are environmentally sound,
to improve permitting procedures for solid waste management facilities, and
to specify the responsibilities of local governments to develop and implement
integrated waste management programs.” (§ 40052.) As is apparent from
this language, “the Waste Management Act looks to a partnership between

                                      4
      Although this Ordinance is the target of Stein and Boone, several
subsequent follow-up events are pertinent. First, County Waste “amended
the ColWMP to add the project at the DSTS to the ColWMP’s list of System
Components. Condition of Approval No. 5 was that the facilities would be
constructed and operated in compliance with the assumptions in the 2011
[negative declaration].” Second, the Alameda County Department of
Environmental Health “was required to,” and did, “make a discretionary
decision to approve a [permit] for the OMF.” Third, the Bay Area Air Quality
Management District (BAAQMD) “was required to,” and did, “make a
discretionary decision to approve an ‘Authority to Construct’ and ‘Permit to
Operate’ the OMRF.”
                        The Trial Court’s Decision
      After taking care of various housekeeping matters, the trial court (Hon.
Ronni B. MacLaren) got down to business.
      The first issue was whether County Waste’s “determination that the
2011 [negative declaration] retained informational value for the 2017
Resolution [that, is, the Ordinance]”.
      “CEQA requires public agencies to undertake environmental review
before making decisions. A public agency can comply with CEQA by
approving a negative declaration, a mitigated negative declaration, or [an]
environmental impact report. If there are subsequent changes to the project,
then the public agency must determine whether to conduct subsequent
environmental review.



the state and local governments, with the latter retaining a substantial
measure of regulatory independence and authority.” (Waste Resource
Technologies v. Department of Public Health (1994) 23 Cal.App.4th 299, 306.)

                                         5
      “The first step in this process is to determine the continuing usefulness
of the earlier CEQA review. Friends of the College I holds that the public
agency must make a ‘determination—whether implicit or explicit—that the
original environmental document retains some informational value.’
([Friends of College of San Mateo Gardens v. San Mateo County Community
College Dist. I (2016)] 1 Cal.5th [937,] 951.) The inquiry ‘is a predominantly
factual question . . . for the agency to answer in the first instance, drawing on
its particular expertise.’ (Id. at p. 953.) The Court emphasized that
‘occasions when a court finds no substantial evidence to support an agency’s
decision to proceed under CEQA’s subsequent review provisions will be rare,
and rightly so: “a court should tread with extraordinary care” before
reversing an agency’s determination, whether implicit or explicit, that its
initial environmental document retains some relevance to the decision-
making process.’ (Id. at p. 951.)
      “[County Waste] made an implicit finding that the 2011 [negative
declaration] retains some informational value. [County Waste] compared the
2011 [negative declaration] with the 2017 proposed Conformance Finding and
reached this implicit conclusion. The court has independently compared the
2011 [negative declaration] and the 2017 Conformance Decision and finds
that substantial evidence supports this conclusion. Specifically:
      “1. The footprint of the buildings remains substantially the same.
      “2. The volume of compost to be processed and sorted remains
substantially the same.
      “3. The volume of compost to be produced onsite might have changed.
      “4. The composting process remains substantially the same.
      “5. The anaerobic digestion process remains substantially the same.



                                        6
      “[County Waste’s] decision to rely on the 2011 [negative declaration]
was supported by substantial evidence and it properly then moved to the
section 21166 evaluation of whether CEQA permitted or required further
environmental review.”
      “When the original CEQA document has continuing informational
value, then the public agency must determine whether any proposed changes
in the project, changes in the circumstances, or changes in available
information are so substantial that CEQA requires additional environmental
review. [¶] . . . [¶]
      “If the initial CEQA review was an environmental impact report (‘EIR’),
then the interests of finality are favored over the policy of favoring public
comment and environmental examination. . . .
      “In contrast, if the initial CEQA review was a negative declaration or a
mitigated negative declaration, then the public agency has not conducted a
thorough environmental review and the court reviews the public agency’s
subsequent review determination for whether the record contains evidence
that the changes to the project might have a significant environmental
impact not previously considered. (Friends of the College I, supra, 1 Cal.5th
at p. 958 . . . .) The court reviews a public agency’s findings regarding the
existence of ‘substantial changes’ that will involve ‘new significant
environmental effects or a substantial increase in the severity of previously
identified significant effects’ . . . using the ‘fair argument test.’ [Citation.]
Under the fair argument test, if a lead agency is presented with a fair
argument that a project may have a significant effect on the environment, the
lead agency must prepare an EIR even though it may also be presented with
other substantial evidence that the project will not have a significant effect.
[Citations.]”

                                          7
      The court then addressed Stein’s claim whether there was a fair
argument that the volume of material to be “processed, composted and
digested onsite” constituted a substantial change, or new or increased
environmental effects.
      After a lengthy discussion of the administrative record, the trial court
purported to make findings that “there is no substantial evidence of a change
in the total tons per day to be processed onsite,” but “there is substantial
evidence of a change in the total tons per day to be composted and digested
onsite.” Moreover, “[t]he court finds there is substantial evidence in the
administrative record to support a fair argument that the project as
considered by [County Waste] in 2017 did not limit the onsite composting to
350 tpd.”
      However, “[a]pplying the fair argument standard, and assuming that
the volume of the composting and digesting onsite increases from 350 tpd to
1,000 tpd, the court finds there is no substantial evidence that the increase in
volume would have a significant environmental impact. Regarding water
quality, the 2011 [negative declaration] states: ‘The proposed Project
includes tanks to store the percolate liquid, which is then used as makeup to
initialize the compost process forming a closed loop system. Any excess water
will be conveyed to the sanitary sewer.’ A significant increase in the tons per
day of onsite compositing on its face presents a fair argument that there will
be a corresponding increase in the percolate liquid, which would then lead to
an increase in that water to ‘be conveyed to the sanitary sewer.’
      “There is, however, no fair argument that an increase in the volume of
water conveyed to the sanitary sewer might have a significant environmental
effect. First, ‘percolate liquid’ and ‘water’ are not synonymous, and it is water
that would be conveyed to the sewer. The 2011 [negative declaration] states

                                        8
that the percolate liquid is ‘collected and stored in tanks’ and is ‘then recycled
as part of the compost process.’ The 2011 [negative declaration] also states
that the percolate liquid is part of a ‘closed loop system.’ Second, the water
would be conveyed to the sanitary sewer, and would therefore be treated in a
waste water plant. . . . If the water were not conveyed to a sanitary sewer,
and were instead treated as storm water, then it would be subject to the
specific requirements for storm water treatment in the 2011 [negative
declaration]. Third, Petitioner Stein did not raise the issue that ‘[a]ny excess
water will be conveyed to the sanitary sewer’ in the administrative process,
and she therefore failed to exhaust her administrative remedies on this
issue.”
      “Petitioner Stein also argues that the increase in the volume of liquid
will have an environmental effect because there is no mention of the
percolate liquid storage tanks. As discussed below, the number and location
of the storage tanks does not change from 2011 to 2017. The storage of the
liquid in the tanks has no environmental effect—it is the release that has a
potential environmental effect.
      “Regarding air quality, a significant increase in the tons per day of
onsite composting on its face appears to present a fair argument that there
will be a corresponding effect on air quality. But, as discussed below, the
composting and digesting onsite will take place in enclosed facilities with
filters, and therefore any effect on air quality is speculative. Regarding
vehicle traffic, the total volume of waste processed will not increase above
1,000 tpd and thus the possible increase in the volume of composted and
digested material would not increase vehicle traffic. Petitioner’s air quality
and vehicle traffic concerns are speculative and not supported by evidence.”



                                        9
      Next, “Stein asserts that the 2017 changes to the DSTS changed the
sorting process by replacing a hand-sorting process with an automated
process. The court finds that there was a change in the sorting process, but
that it would not require additional environmental review.
      “The 2011 [negative declaration] states that the facility will receive
only separated green waste, which would be manually sorted and transferred
to the Compost facility to be mixed with other green waste. Under that
procedure, household hazardous waste would be identified and removed
before anaerobic digestion and composting
      “The 2017 Conformance Decision states that the facility will have a
mechanical hydro-pulping process to separate organic and inorganic
materials from the waste materials that come to the DSTS. After separation
in the hydro-pulping process, ‘[t]he organic materials recovered from the
OMRF will be directly conveyed to the adjacent Composting and Digester
facility buildings for processing.’ The inorganic materials that can be
recycled ‘including aluminum, metals, plastics, and glass will be shipped off-
site for recycling.’
      “Applying the fair argument standard, the court finds there is no
substantial evidence that the change in the sorting process may have any
environmental impact. The change from hand-sorting to mechanical-sorting
by itself is immaterial for CEQA purposes.
      “The change in the sorting process is possibly material for CEQA
purposes to the extent that it ‘may’ result in inorganic and hazardous
material in the digestive process, which in turn ‘may’ have an adverse
environmental impact. Petitioner Stein has not, however, identified any
substantial evidence that hand separation does a better job than the proposed
mechanical hydro-pulping process at separating organic from inorganic

                                       10
materials. Petitioner’s speculation is not substantial evidence. [Citation.] At
the 2/9/17 meeting, [Waste Management] employee Shawn Tackitt stated
that the mechanical hydro-pulping process is an advanced process designed
to separate and remove contaminants before the composting and digestion
process.”
       “Petitioner Stein asserts that the 2017 Conformation Decision changes
the composting process by replacing a three-step compositing process with a
different process. The court finds there was no significant change in the
composting and digestion process.
       “The 2011 [negative declaration] states that the composting will be a
three-step composting process consisting of (1) anaerobic digestion in an
airtight tunnel, followed by (2) aerobic digestion in a secondary tunnel,
followed by (3) processing to separate fine, medium, and large particles.
       “The 2017 Conformance Decision states that the facility will
(1) automatically process waste in the OMRF to separate organic and
recyclable materials from landfill waste and then send the organic waste to
either (2) the aerobic composting facility or (3) the anaerobic digesting
facility.
       “The composting and digesting processes described in the 2011
[negative declaration] and in the 2017 Conformance Decision are both in
closed facilities. The staff report for the 2017 decision states:
       “1. ‘The Composting facility will be a 135,000 square foot fully-enclosed
operation. The building will house the entire composting process, and will be
operated under a negative air system with exhaust vented through a biofilter
to control potential odors and mitigate emissions from the composting
process.’



                                        11
       “2. ‘The Digester facility will be an anaerobic process which will occur
in a 65,000 square foot building. . . . . The digester facility will be fully-
enclosed allowing for the collection of biomethane from the digestion
process. . . .’
       “Applying the fair argument standard, the court finds there is no
substantial evidence that the change in the composting and digestion process
may have any environmental impact.
       “Regarding air quality effects, both the 2011 [negative declaration] and
the 2017 Conformance Decision require that the composting and digestion
take place in closed buildings. At the meetings on 2/9/17 and 2/22/17,
Petitioner Stein, who is an environmental engineer with a Ph.D. in air
pollution control, expressed concern about odor from the facility, expressed
concern about increased volume, identified the CalEPA and BAAQMD
reports, and expressed concern that San Leandro is in a high air pollution
area. Expressions of concern and requests to conduct further environmental
review are not substantial evidence of environmental impact. [Citation.] The
letter of 3/22/17 makes a conclusory allegation that the proposed project does
not address air pollution. At the meetings on 2/9/17 and 2/22/17, [Waste
Management] employee Shawn Tackitt explained that the composting and
digestion processes each have biofilter systems to treat air exhaust. There is
no substantial evidence that the change in process may result in an
environmental impact regarding local or regional air quality.
       “Regarding effectiveness and quality of composting and digesting, the
[County Waste] staff requested and obtained information on similar recovery
projects operating elsewhere. The [County Waste] staff also obtained
confirmation that the anaerobic Digester was approved in the 2011 [negative
declaration] and that [Waste Management] would need to obtain [a permit]

                                         12
for the Digester. There is no substantial evidence that the effectiveness and
quality of composting and digesting may result in an environmental impact.”
      “Petitioner Stein asserts that the 2017 DSTS changes altered the
storage of methane gas by omitting reference to the storage tanks at the
DSTS. Petitioner asserts that the 2017 Conformance Decision does not
adequately disclose or discuss production, collection, storage, and use of
methane.
      “The 2011 [negative declaration] states that the anaerobic
decomposition will produce methane, which will be collected, stored in onsite
tanks, blended with methane from the now closed Oyster Bay Landfill Gas
facility, and provide a renewable energy source. The map attached to the
2011 [negative declaration] identifies the methane storage tanks by location.
      “The 2017 Conformance Decision does not address how the facility will
manage methane gas. The [County Waste] staff report and the ColWMP
amendment both state only that ‘[t]he digester facility will be fully-enclosed
allowing for the collection of biomethane from the digestion process’ and ‘[t]he
gas will be either utilized for on-site production of renewable energy to power
the Davis Street operations, or utilized as vehicle grade renewable natural
gas to power [Waste Management’s] waste hauling fleet.’ The map presented
by [Waste Management] via PowerPoint at the 2/22/17 meeting identifies the
methane storage tanks by location, and there is no change in location.
      “Neither the [Waste Management] application nor the [County Waste]
staff report addressed how the facility will manage percolate liquid. The map
presented by [Waste Management] via PowerPoint at the 2/22/17 meeting
identifies the percolate liquid storage tanks by location, and there is no
change in location.



                                       13
      “Applying the fair argument standard, the court finds there is no
substantial evidence that any change in the storage of percolate liquid may
have any environmental impact. As with the methane, Petitioner’s argument
is that there was no disclosure or discussion of how the facility will manage
percolate liquid. As with the methane argument, Petitioner’s speculation
about a change is not substantial evidence, the absence of any identified
change means the project remains the same as described in the 2011
[negative declaration] and [County Waste’s] 2017 Conformance Decision at
Condition No. 5 and 8 requires [Waste Management]to comply with the
assumptions and conditions in the 2011 [negative declaration].”
      The court also concluded “that Petitioners have not identified
substantial evidence that raises a fair argument that ‘[n]ew information,
which was not known and could not have been known at the time the
environmental impact report was certified as complete, becomes available.’
[Citations.]
      “Petitioner Stein argues that the CalEPA and BAAQMD reports were
significant new information and that under CEQA, [County Waste] was
required to consider regional needs and cumulative impacts. [Citations.]
      “When San Leandro adopted the 2011 [negative declaration], it did not
have access to the CalEPA and BAAQMD reports. The CalEPA report is
dated February 2017 and is entitled ‘Identifying Disadvantaged
Communities.’ The BAAQMD report is dated March 2014 and is entitled
‘Identifying Areas with Cumulative Impacts from Air Pollution in the San
Francisco Bay Area, Version 2.’
      “On 3/22/17, the date of the last hearing and the date [County Waste]
was to vote on the DSTS issue, Petitioner Stein referenced the CalEPA and
BAAQMD reports.

                                      14
      “Applying the fair argument standard, the court finds there is no
substantial evidence that there was new information that the project as
approved by the 2011 [negative declaration] may cause an environmental
impact. First, as a matter of procedure and evidence, the court finds that
Petitioner Stein’s reference to the CalEPA and BAAQMD reports was too
vague to add the reports to the administrative record. [Citation.]
      “Second, and in the alternative, the reports were not information that
raised a fair argument that the 2017 DSTS project might case [sic: cause] an
environmental impact. The court applies the fair argument standard based
on the limited information in the administrative record. [Citation.]
      “The BAAQMD report is a Community at Risk Evaluation and
indicates that San Leandro is in Pollution Index range 70-80, which means
that it is on the high end of the pollution indices. The BAAQMD report is a
high-level report focused on the existence of air pollution by zip code. The
report does not discuss causation of air pollution and does not mention the
DSTS project.
      “The CalEPA report builds on the BBQMD report, and concerns how
best to distribute funds from California’s cap-and-trade program. The
CalEPA report indicates that San Leandro is on the high end of the pollution
indices in the Bay Area. The CalEPA Report is a high-level report, does not
discuss causation, and does not mention the DSTS project.
      “The court is guided by Save the Plastic Bag Coalition v. City of
Manhattan Beach (2011) 52 Cal.4th 155, in which a city considered a generic
study regarding the impact of paper bags and plastic bags and then adopted a
negative declaration regarding an ordinance banning plastic bags. The Court
found that the generic study did not have an ‘evaluation of actual impacts
attributable to the project at hand’ and therefore the issues identified in the



                                       15
generic study did not require the city to prepare an EIR. (52 Cal.4th at
pp. 171–175.) In a different context, Association of Irritated Residents v.
County of Madera (2003) 107 Cal.App.4th 1383, 1396, states: ‘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 that they are
required.’ [Citation.] CEQA does not require an agency to reopen
environmental review when a commenter presents new information that does
not relate directly to the proposed project even if it concerns local
environmental quality generally.”
      In its Order Denying Motion to Vacate Judgment and Enter New
Judgment or, alternatively, for a New Trial filed by Stein (but not Boone), the
court began by “amending” the previous order “to clarify that the court did
not make findings of fact in its review of the administrative decision by
[County Waste] under Code of Civil Procedure section 1094.5.”
      The court initially determined that Stein was incorrect in asserting it
“made in error of law” in determining that the 2011 negative declaration
retained information value for County Waste’s 2017 decision. “The Order of
3/20/18 correctly found that substantial evidence supported [County Waste’s]
determination and that it was appropriate for the agency to proceed to decide
under CEQA’s subsequent review provisions whether project changes would
require major revisions to the original environmental document because of
the involvement of new, previously unconsidered significant environmental
effects.”
      Next the court made another “clarification”:




                                        16
      “The Order of 3/20/18 interpreted Public Resources Code section 21166
and Guidelines [Cal. Code. Regs., tit. 145] section 15162(a) as having two
distinct clauses. The Order of 3/20/18 therefore divided the analysis into two
parts: (1) whether there was substantial evidence to support a fair argument
that substantial changes were proposed in the project, and (2) whether there
was substantial evidence to support a fair argument that any such changes
might have new significant environmental effects. The Order of 3/20/18
concluded that the administrative record contained substantial evidence to
support a fair argument that substantial changes were proposed in the
project, but did not contain substantial evidence to support a fair argument
that any such changes might have a new significant substantial effect.
Petitioner’s current motion rests in large part on the two-step analysis,
arguing that because [County Waste] decided in the first step there were no
changes, the agency never reached the second step of whether the changes
might have new significant environmental effects.
      “On further consideration, the court finds that section 21166,
[subdivision] (a) requires a public agency to make the single decision of
whether ‘[s]ubstantial changes are proposed in the project which will require
major revisions of the environmental impact report.’ The question of whether
a change is ‘substantial’ is determined by whether it might have a significant
environmental effect that would, in turn, require major revisions of the
CEQA document. For purposes of Public Resources Code section 21166 and
Guidelines section 15162[, subdivision] (a), the issues of ‘substantial changes’


      5 “All references to ‘Guidelines’ are to the State CEQA Guidelines,
which implement the provisions of CEQA. . . . [C]ourts should afford great
weight to the Guidelines except when a provision is clearly unauthorized or
erroneous under CEQA.” (Laurel Heights Improvement Assn. v. Regents of
University of California (1988) 47 Cal.3d 376, 390, fn. 2 (Laurel Heights).)

                                       17
and ‘significant environmental effect’ are part of a single intertwined inquiry.
(Guidelines sections 15064[, subdivisions] (b) and (e) [considerations for
determining significant effect on the environment, noting that economic and
social changes are not environmental changes].)”
      The court then concluded that County Waste’s “Board made express
factual findings and a determination”:
      “The [County Waste] staff considered the San Leandro 2011 [negative
declaration] and in a report dated February 9, 2017 stated:
      “ ‘Authority staff has reviewed the City of San Leandro’s documents for
the [negative declaration]. Authority staff finds that, based on the whole
record before it, the facility underwent the review required under CEQA and
that the ColWMP amendment is within the scope of activities addressed by
the City of San Leandro’s [negative declaration]. Since preparation and
adoption of the [negative declaration], there have been no changes to the
project. In addition, the conditions at the project site have not changed since
preparation of the [negative declaration], nor are there any other changed
circumstances, or new information that has become available that would
result in any new significant impacts or a substantial increase in impacts
considered in the [negative declaration].’
      “The [County Waste] Board was permitted to rely on the
recommendations of the [County Waste] staff. [Citation.]
      “The [County Waste] Board’s 2017 Conformance Decision, dated March
22, 2017, makes factual findings and a CEQA determination. Section 2
(Findings) states:
      “ ‘(i) The Authority finds that the Authority Board considered all
materials and testimony presented by the public, Local Task Force, applicant
for the Facility, and Authority staff.’



                                          18
       “ ‘(j) The Authority finds that it is a Responsible Agency under CEQA,
that this project underwent the required review under CEQA, and that the
Authority’s action is within the scope of activities addressed by the City of
San Leandro’s negative declaration . . . .’
       “ ‘(k) The Authority finds that the Authority Board has independently
reviewed and considered the City of San Leandro’s [negative declaration].’
       “ ‘(l) The Authority finds that since the City of San Leandro’s adoption
of the [negative declaration], no substantial changes have occurred and no
new information or changed circumstances exist that require revisions of the
[negative declaration] due to new significant environmental effects or a
substantial increase in the severity of previously identified significant
effects.’
       “Relying on Finding 2(l), the [County Waste] Board at Section 3
(Determination) states: ‘The Authority’s approval of the ColWMP
amendment and conformance determination, as conditioned, will have a less
significant impact on the environment as documented in the [negative
declaration].’
       “The [County Waste] Board did more than what was required in
making express findings and an express determination. ‘CEQA does not
require that findings be adopted when an agency determines that a
subsequent EIR is not required. An implied finding that a further EIR is not
required under [Public Resources Code] § 21166 is sufficient as long as it is
supported by substantial evidence.’ [Citation.]”
       The court then moved to the subject that absorbed the most attention:
       “The court finds that the administrative record does not contain
substantial evidence to support a fair argument that there were substantial
changes in the project that required major revisions to the San Leandro 2011



                                        19
[negative declaration]. This presents four sub-issues: (a) when a public
agency must make a section 21166 finding; (b) the investigation and analysis
required by a public agency in making a section 21166 finding; (c) whether
the court is permitted or required to enlarge the scope of fair argument if the
agency fails to undertake the required investigation and analysis (Sundstrom
v. County of Mendocino (1988) 202 Cal.App.3d 296); and (d) application of
these principles to the facts of this case.
      “A. When a Public Agency Must Make a Section 21166 Finding
      “There is no dispute in this case that [County Waste] was required to
make a CEQA determination as part of [County Waste’s] independent,
discretionary decision, even though the City of San Leandro was the ‘lead
agency’ and [County Waste] was a ‘responsible agency.’
      “B. Investigation and Analysis Required When a Public Agency Makes
       a Section 21166 Finding
      “It is unclear what investigation, if any, a public agency must conduct
in a section 21166 inquiry. There are no clear mandates in this area. The
court in Friends of the College I, supra, 1 Cal.5th at p. 956, states: ‘No
provision of CEQA directly addresses the subsequent environmental review
obligation for projects that were initially approved via negative declaration.’
In Committee for Re-Evaluation of the T-Line Loop v. San Francisco
Municipal Transportation Agency (2016) 6 Cal.App.5th 1237, 1256, the court
states: ‘CEQA does not set forth any particular procedure to support an
agency’s decision that a new EIR is not required.’
      “Procedurally, it is clear that when a single public agency is reviewing
a project that it approved previously, and the project has incremental
changes, the public agency is not required to conduct formal inquiries or




                                        20
public hearings when conducting a section 21166 investigation and analysis.
In Committee for
Re-Evaluation of the T-Line Loop v. San Francisco Municipal Transportation
Agency (2016) 6 Cal.App.5th 1237, 1256, the court stated that ‘CEQA does not
require an initial study or public hearing in these circumstances.’ [Citation.]
      “Where, as here, a lead agency has made a CEQA determination
(negative declaration or EIR) and a responsible agency is making a
subsequent separate discretionary decision, the responsible agency must
follow whatever public notice and hearing procedure is appropriate for its
subsequent separate discretionary decision. (Pub. Res. Code, § 21080[,
subdivision] (a).) [County Waste] provided notice and held three public
hearings before making its decision. [County Waste] made express factual
findings that provided ‘a brief explanation of the decision not to prepare’
subsequent CEQA review. (Guidelines, § 15164[, subdivision] (e).) [County
Waste’s] staff report and the agency’s three public hearings were a more
thorough process than the staff report and one hearing found to be adequate
in Committee for Re-Evaluation of the T-Line Loop, supra, 6 Cal.App.5th at
p. 1256.
      “Substantively, when a single public agency is reviewing a project that
it approved previously, the public agency presumably must conduct sufficient
investigation and analysis to make an informed decision ‘whether the
modification requires major revisions to the negative declaration.’ (Friends of
the College I, supra, 1 Cal.5th at p. 958, fn. 6 [‘the inquiry prescribed by the
Guidelines is . . . whether the modification requires major revisions to the
negative declaration . . . .’].)
      “Where, as here, a lead agency has made a CEQA determination
(negative declaration or EIR) and a responsible agency is making a



                                        21
subsequent separate discretionary decision, the responsible agency must also
conduct sufficient investigation to make an informed decision ‘whether the
modification requires major revisions to the negative declaration.’ The
responsible agency can rely on the CEQA document of the lead agency, but
must then exercise its independent judgment. [Citation.] There is
substantial evidence in this case that [County Waste] conducted sufficient
investigation to make an informed decision. [County Waste] staff made
various inquiries to [Waste Management] and prepared a staff report.
[County Waste] staff stated in an email: ‘It seems that there are some
differences between the project currently proposed and that approved in the
1998 permit and analyzed in the 2010 Negative Declaration. While we do not
believe these will result in any additional environmental impacts, we do need
to understand the differences.’ [Waste Management] provided a letter in
response. The [County Waste] Board or a committee of the Board held public
meetings on February 9, 2017, February 22, 2017, and March 22, 2017.
      “C. Sundstrom Analysis
      “In Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296, the
court stated: ‘CEQA places the burden of environmental investigation on
government rather than the public. If the local agency has failed to study an
area of possible environmental impact, a fair argument may be based on the
limited facts in the record.’ (Id. at p. 311.) The Sundstrom court then stated
that any failure to investigate does not support a separate cause of action but
rather ‘[e]nlarge[s] the scope of fair argument by lending a logical plausibility
to a wider range of inference.’ (Ibid.)
      “[County Waste] argues that the Sundstrom analysis is inapplicable to
a section 21166 decision and applies only where the court is evaluating a
public agency’s approval of an EIR. This court disagrees. The Sundstrom



                                          22
analysis that a public agency cannot rely on its own lack of investigation and
resulting sparse record applies equally to judicial review of EIRs, negative
declarations, and section 21166 decisions.
      “The Sundstrom analysis is, however, contextual. In an EIR, a public
agency is required to undertake a thorough review. (Guidelines,
§§ 15120–15151.) Under Sundstrom, the absence of investigation and
analysis in an EIR enlarges the scope of fair argument. In a negative
declaration, a public agency may base a decision on Guidelines section 15060
preliminary review, a Guidelines section 15063 initial study, and public
comments. (Guidelines, §§ 15070 and 15074[, subdivision] (b).) A negative
declaration does not require thorough investigation and analysis, and
therefore may be based on a cursory initial study if the public agency obtains
additional information that cures any defects in the initial study. [Citations.]
A section 21166 determination is made in the context that there has been a
prior EIR or negative declaration that is entitled to a degree of finality.
[Citations.] Given that a section 21166 determination requires even less
investigation and analysis than a negative declaration, the Sundstrom
analysis has even less effect.
      “D. Application to Facts of this Case
      “The court finds no substantial evidence in the record ‘to support a fair
argument that the modification requires major revisions to the negative
declaration.’ (Friends of the College of San Mateo Gardens v. San Mateo
County Community College Dist., I (2016) 1 Cal.5th 937, 958, fn. 6.)
      “The Order of 3/20/18 states:
      “ ‘[Waste Management] and [County Waste]’s presentation of
information could have been clearer. The information in the 2011 [negative
declaration] and the 2017 Conformance Decision did not consistently identify



                                       23
the total capacity of the facility, the total amount delivered to the facility, the
amount sorted at the facility, the amount of non-compost waste processed at
the facility, the capacity for onsite composting, the amount of composting
input, and the amount of composting output. In addition, the 2011 [negative
declaration] used tons per day as the unit of measurement and the 2017
Conformance Decision used tons per year. This complicated the analysis of
whether there was a significant change in the project.’
      “As a result, the court had to estimate how many days per year the
various facilities would operate and convert the tons per day in the San
Leandro 2011 [negative declaration] to the tons per year in the proposed 2017
Conformance Decision. The written public disclosure was not a model of
clarity.
      “The public hearings, however, provided greater clarity. At the Local
Task Force meeting on February 9, 2917, Wendy Somer [County Waste]
Board member, explained that the limited issue for the Board was whether
there were changes that required additional CEQA review.
      “On February 22, 2017, at the [County Waste] Board meeting on the
first reading of the ordinance, Debra Kaufman explained that the CEQA
inquiry was whether ‘the ColWMP amendment is within the scope of
activities addressed by the City of San Leandro’s initial study neg. dec.’
Shawn Tackitt, [Waste Management] project manager, stated: ‘CEQA was
completed by San Leandro [consultant] CH2M Hill. There is no volume
change at the facility and there’s no new volume.’ Tackitt explained that all
the emissions would be filtered. Petitioner Stein raised concerns with air
quality and that the compost volume would increase. Tackitt explained that
due to the composting process there would be a reduction in the outbound
trucks.



                                        24
      “The [County Waste] Board addressed Petitioner Stein’s concern about
the difference between the 2011 plan and the 2017 plan as follows:
      “ ‘DIANNE MARTINEZ: For Mr. Tackitt or for staff, would someone be
able to address Ms. Stein’s comments about the discrepancies between the
2010 initial study and neg. dec. with the description of the current proposed
project?’
      “ ‘SHAWN TACKITT: The current description of the project is exactly
what is written in the negative dec. and the master plan for San Leandro.
We have a component that’s anaerobic digestion. We have a component that
is composting. And we have a component that is the OMRF that separates
the materials.’
      “ ‘We are choosing to build the compositing facility first to get that up
and running and meet some of our diversion goals that we have and then
build anaerobic digestion secondarily. That anaerobic digestion will take a
fraction of the material that will be going into the compositing. It will go into
anaerobic digestion. So we don’t need it to happen first and we prefer to be
able to get up and running and make the compost and see the material and
then deploy the right technology and anaerobic digestion.’
      “ ‘So from my perspective and I think everyone else who has reviewed
the CEQA documents, including legal counsel, the description matches the
master plan and the CEQA documentation exactly, not only from a
description perspective but from a capacity perspective and permitting
capacity, it is exactly. I think there’s some confusion about that, but we are
operating this facility under the permitted capacity.’
      “Tackitt explained why there were changes in the weight of input and
output as follows:




                                       25
      “ ‘The inbound volume in traffic does not change. The outbound
volume—semi transfer trailers—those change, because if you can think about
a dehydration—like, if you have a dehydrator, you dehydrate food. You start
out with something that’s relatively heavy and full and by the time you’re
done dehydrating, it’s a very wafer-thin piece of banana, right? So this is the
same thing. As the food goes into the composting, it is dehydrated down. All
the moisture is taken out of it and that is where you get the reduction in
weight.’
      “On March 22, 2017, at the [County Waste] Board meeting on the
second reading of the ordinance, Debra Johnson again explained the CEQA
process, including that San Leandro was the lead agency and that [County
Waste] was a responsible agency. The [County Waste] Board considered the
Greenfire letter6 filed two hours before the meeting.
      “Addressing concerns about changes from 2011 to 2017, Anjana
Mepani, City of San Leandro senior planner, stated:
      “ ‘The Davis Street transfer station’s organics facilities were approved
by the City of San Leandro in 2011 through a site-plan review process for the
Davis Street transfer station master plan improvement. That’s what the
project is called. We did a thorough CEQA analysis and findings, which
included outreach to the neighborhoods, property owners, businesses, as well
as the agencies. So that was completed as part of the process.’
      “ ‘There’s also some confusion about the terminology. What you have
before you as part of the Countywide Integrated Waste Management Plan.
And the terminology we used in the site-review plan and the CEQA approvals
were referring to the same buildings, but they’re just called different terms.


      6 This was an eight-page letter prepared by an attorney on behalf of
Stein and Boone.

                                      26
They are one and the same. Where the organics materials recovery facility is
the same as the food waste organics recycling facility in the CEQA document.
So I just wanted to clarify that.’
      “Petitioner Stein raised concerns about changes from 2011 to 2017 as
follows:
      “ ‘And the importance of CEQA, the California Environmental Quality
Act, is that it needs to be clear to the public. It can’t be—you know, the staff
or highly trained people understand it in a different way than just citizens.
And the fact of the matter is that this project describes the amount of
waste—food waste—that will be processed in the organics area is not going to
be within the scope of the 2010 documents that clearly, clearly pronounce
that it should be between 240 and 350 tons per day. In fact, the staff report
from StopWaste.org on this so-called state-of-the-art facility says 1,000 tons
per day, which is nearly three times as much. And with a project that
expands to three times over a two-decade period has impacts that have not
been fully reviewed by the public or for the environmental mitigations that
are needed for this.’
      “Petitioner Boone raised concerns about adequate disclosures as
follows:
      “ ‘When I tried to figure out, reading all the papers in front of me, what
do they want to do now that’s different from what they wanted to do in 2011,
I was very confused. It wasn’t very clear. The project description, as it’s
called, was kind of a little of a mess and the language was such that, if you
really wanted to know what it’s going to look like on paper, you couldn’t tell. .
. . It’s very possible to go back and rewrite the beginning of this document
and get the 2010 stuff that was approved correlated with the [unintelligible].’
      “Addressing comments in the letter and at the meeting, Tackitt stated:



                                       27
      “ ‘I just received this letter today when I arrived, so I haven’t had a
chance to thoroughly review it. But I can tell you that, as I skimmed through
it, there is nothing that’s been presented in the StopWaste report, the
negative dec., or our master plan that is not consistent. We are today
permitted to receive 5,600 tons. We are receiving much less than that in
actuality. There will be no increase in truck traffic. In actuality, there will
be a decrease in truck traffic of eight to ten trucks a day. The volume that’s
described in here there’s not a very good understanding . . . . ’
      “ ‘These tons, when you look at the negative dec. analysis, they were up
to a thousand tons per day for the composting part of this facility. A
thousand
tons—up to a thousand tons a day. What’s being described here is subsets of
that thousand tons. That’s where the confusion is occurring.’
      “ ‘The other part of the project, which is the material organics recovery
facility, is up to 1,300 tons a day. Some of those tons they go into the
organics composting. So, again, they are subsets of the tons. That’s where
the confusion is. These figures were analyzed in the negative dec. It’s very
clear. Each step of the process that’s in the master plan and which was
analyzed in the negative dec. is described in this StopWaste report. It is still
our current objective to implement those processes. They are being done in
phases, which I think is also the cause of some confusion. This is one
building. As the phases are built, the wall is taken down and another
building is attached to it to become a continuous building.’ ”
      “There is no substantial evidence in the record ‘to support a fair
argument that the modification requires major revisions to the negative
declaration.’ [Citation.] First, information provided at the hearings indicates
that there were no changes. Petitioner points to the confusing written



                                       28
materials and asserts that there were changes. In the Order of 3/20/18, the
court likewise concluded that the confusing written materials created a fair
argument that there were changes. However, the court must look at the
record as a whole, which includes the explanations at the hearings.
      “Second, and more importantly, the question is not whether there were
changes but whether there were changes that required major revisions to the
negative declaration. Assuming that there were changes, Petitioners do not
identify evidence in the record that supports a fair argument that the
changes might cause ‘new, and previously unstudied, potentially significant
environmental effects.’ (Friends of the College I, supra, 1 Cal.5th at p. 959;
see also Guidelines, § 15162[, subdivision] (a).)
      “Petitioners postulate that if there were an increase in the volume of
material composted above the level permitted in the San Leandro [negative
declaration], then there will be a corresponding decrease in air quality and
increase in the volume of percolate liquid and methane, and that these
decreases and increases will have ‘new, and previously unstudied, potentially
significant environmental effects.’ Petitioners do not, however, identify
substantial evidence that suggests the ‘potentially significant environmental
effects.’ Not all evidence is substantial, and speculation is not substantial
evidence.
      “The court reaffirms the following statements in the Order of 3/20/18:
      “1. Applying the fair argument standard, and assuming that the
volume of the composting and digesting onsite increases from 350 tpd to
1,000 tpd, there is no substantial evidence that the increase in volume would
have a significant environmental impact.
      “2. There is no fair argument that an increase in the volume of water
conveyed to the sanitary sewer might have a significant environmental effect.



                                       29
      “3. The composting and digesting onsite will take place in enclosed
facilities with filters, and therefore any effect on air quality is speculative.
      “4. Applying the fair argument standard, there is no substantial
evidence that the change in the sorting process may have any environmental
impact.
      “5. Petitioners have not identified any substantial evidence that hand
separation does a better job than the proposed mechanical hydro-pulping
process at separating organic from inorganic materials.
      “6. Applying the fair argument standard, there is no substantial
evidence that the change in the composting and digestion process may have
any environmental impact.
      “7. Expressions of concern and requests to conduct further
environmental review regarding air quality effects are not substantial
evidence of environmental impact.
      “8. Applying the fair argument standard, there is no substantial
evidence that any change in the production, collection, storage, or use of
methane may have any environmental impact.
      “9. Applying the fair argument standard, there is no substantial
evidence that any change in the recycling of percolate liquid may have any
environmental impact.”
                                 DISCUSSION
      Before we address the merits, there are several preliminary points to
be made.
      The first notice of appeal was filed by Boone, who has elected to
represent himself in this court. That is his right. But a person “who
exercises the privilege of trying his own case must expect and receive the
same treatment as if represented by an attorney—no different, no better, no



                                        30
worse.” (Taylor v. Bell (1971) 21 Cal.App.3d 1002, 1009.) Moreover, “as is
the case with attorneys, pro per litigants must follow correct rules of
procedure.” (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1247.)
      Rule 8.204 of the California Rules of Court specifies that “Each brief
must: State each point under a separate heading or subheading,
summarizing the point, and support each point by argument and, if possible,
by citation of authority,” and “support any reference to a matter in the record
by a citation to the volume and page number of the record where the matter
appears.” (Italics added.) It also directs that “An appellant's opening brief
must: Provide a summary of the significant facts limited to matters in the
record.” (Italics added.)
      Boone’s opening brief does not comply with these requirements. There
is nothing like a summary of “significant facts.” Several of the unnumbered
pages of the brief purport to narrate historical events without a single
reference to either the administrative record or the record on appeal. The
sole case cited appears in what appears to be the conclusion, where, under
“REQUESTED RELIEF,” Boone “asks that the Superior Court order of June
2018 be vacated, that the ongoing construction and operational activities on
the project be suspended, that [County Waste] be held to CEQA standards as
the responsible agency, and that matters of significant change and
consideration of alternatives be determined accurately and completely
following the holdings in Friends of the College of San Mateo Gardens v. San
Mateo County Community College District, 11 Cal.App.5th 596 (2017).”
      Next, both Stein and Boone (supported by amici Zero Waste USA,
Urban Ore, Conservatree, and Green America) direct argument at the
wisdom, desirability, efficiency, or effectiveness of the processes that Waste




                                       31
Management intends to install and operate at the Davis Street facility.7 This
is not a proper focus of CEQA, particularly once a project has already been
the subject of environmental review.
      These parties may not like the trial court’s analysis, but they cannot
dispute the correctness of its essential outline. There is no doubt that the
2011 negative declaration adopted by the City of San Leandro qualified as
the initial environmental review required by CEQA. A negative declaration
is only permitted when “there is no substantial evidence that the project or
any of its aspects may cause a significant effect on the environment.”
(Guidelines, § 15063, subd.(b)(2), italics added.) Because it was not judicially
challenged, the negative declaration is “final and conclusive on all persons”
(§ 21080.1, subd. (a)), as Stein acknowledges. There is no room for dispute
that our Supreme Court did, as extensively shown from the trial court’s
orders, expressly authorize a public agency to make “a determination—
whether implicit or explicit—that the original environmental document
retains some informational value” (Friends of College of San Mateo
Gardens v. San Mateo County Community College Dist. I, supra, 1 Cal.5th at
p. 951 (Friends of the College I)), that such a determination “is a
predominately factual” determination, and that courts must respect that
determination if it is supported by substantial evidence. (Id. at p. 953.)
      Nor can the dissatisfied parties contest the emphatic and unambiguous
language from our Supreme Court that CEQA’s subsequent review process is
confined to “environmental consequences associated with the project.”


      7  Boone admitted to the Board that “aerobic composting . . . that’s been
around for 15 years. I think most of the bugs are out of that system pretty
well.” Accordingly, it should be understood that at issue is not the basic
concept of anaerobic digestion composting, but only a variation or application
of the general idea.

                                       32
(Friends of the College I, supra, 1 Cal.5th at p. 951.) CEQA defines
“environment” to mean “the physical conditions which exist within the area
which will be affected by a proposed project, including land, air, water,
minerals, flora, fauna, noise, objects of historic or aesthetic significance.”
(§ 21060.5.) It defines “significant effect on the environment” to mean “a
substantial or potentially substantial, adverse change in the environment.”
(§ 21068; Guidelines, § 15382.) And “project” is defined as activity likely to
cause either direct or reasonably foreseeable indirect “physical change in the
environment.” (§ 21065.)
      CEQA does not guarantee the Garden of Eden. “CEQA is more or less
a procedural scheme that makes no guarantees that environmental
considerations will prevail.” (Save San Francisco Bay Assn. v. San Francisco
Bay Conservation etc. Com. (1992) 10 Cal.App.4th 908, 923.) “CEQA does not
purport to approve or disapprove environmentally related activities. . . .
[T]he courts . . . do not decide whether something is good or bad for the
environment.” (South Orange County Wastewater Authority v. City of Dana
Point (2011) 196 Cal.App.4th 1604, 1612.)
      Economic changes or social effects are not to be considered unless they
manifest as significant consequences to the physical environment. (E.g.,
Chico Advocates for a Responsible Economy v. City of Chico (2019) 40
Cal.App.5th 839, 847 [“CEQA is concerned with physical changes in the
environment”]; San Franciscans for Reasonable Growth v. City and County of
San Francisco (1989) 209 Cal.App.3d 1502, 1516 [“CEQA’s mitigation
requirements speak to . . . changes in the environment, i.e., changes in
physical conditions within an area”]; Cathay Mortuary v. San Francisco
Planning Com. (1989) 207 Cal.App.3d 275, 279 [“CEQA will come into play




                                        33
only [with] a disruption of the physical environment”]; Guidelines, § 15131,
subd. (a) [“The focus of the analysis shall be on the physical changes”].)
      As Division Four of this District summarized: “An examination of the
CEQA definitions . . . yields a common theme—in general, they deal with
tangible physical manifestations that are perceptible by the senses.
‘Environment’ is a very broad concept encompassing both tangible and
intangible factors. But the intangible has CEQA consequence only if there is
a nexus to a physically perceivable reality. The major statutory emphasis is
on matters that can be seen, felt, heard, or smelled, i.e., consequences
resulting from physical impacts on the environment.” (Martin v. City and
County of San Francisco (2005) 135 Cal.App.4th 392, 403.) That court also
noted that “CEQA is not to be stretched beyond ‘the reasonable scope of the
statutory language,’ ” and “is to receive a practical, common sense
construction.” (Id. at p. 402.)
      Accordingly, it is not a judicial concern whether Waste Management
has selected—or whether County Waste has approved—processes that may
not be the most technologically sophisticated, the most economically sensible,
or the most optimally efficient.
                             Standard of Review
      “In any action or proceeding . . . to attack, review, set aside, void or
annul a determination, finding, or decision of a public agency on the grounds
of noncompliance with this division, the inquiry shall extend only to whether
there was a prejudicial abuse of discretion. Abuse of discretion is established
if the agency has not proceeded in a manner required by law or if the
determination or decision is not supported by substantial evidence.”
(§ 21168.5.)




                                        34
      “An appellate court’s review of the administrative record for legal error
and substantial evidence in a CEQA case . . . is the same as the trial court’s:
The appellate court reviews the agency’s action, not the trial court’s decision;
in that sense appellate judicial review under CEQA is de novo.” (Vineyard
Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007)
40 Cal.4th 412, 427 (Vineyard Area).) And “ ‘[i]n applying the substantial
evidence standard “the reviewing court must resolve reasonable doubts in
favor of the administrative finding and decision.” ’ ” (Laurel Heights
Improvement Assn. v. Regents of University of California (1993) 6 Cal.4th
1112, 1135.)
      “[W]hile we determine de novo whether the agency has employed the
correct procedures, ‘scrupulously enforc[ing] all legislatively mandated CEQA
requirements’ [citation], we accord greater deference to the agency’s
substantive factual conclusions. In reviewing for substantial evidence, the
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,’ for, on factual questions, our task ‘is not to weigh conflicting
evidence and determine who has the better argument.’ ” Vineyard Area,
supra, 40 Cal.4th at p. 435.) “We have neither the resources nor scientific
expertise to engage in such analysis, even if the statutorily prescribed
standard of review permitted us to do so.” (Laurel Heights, supra, 47 Cal.3d
at p. 393.)
      And, we reiterate, by “ ‘better argument,’ ” we mean we cannot concern
ourselves with policy issues that are entrusted to local agencies and are
outside CEQA’s judicial scope. (See Save San Francisco Bay Assn. v. San
Francisco Bay Conservation etc. Com., supra,10 Cal.App.4th at p. 923
[“CEQA is more or less a procedural scheme that makes no guarantees that



                                        35
environmental considerations will prevail”].) Unless tangible environmental
consequences are involved, courts do not adjudicate between policy
arguments, for those are entrusted to the public agency. (See California
Native Plant Society v. City of Santa Cruz (2009) 177 Cal.App.4th 957,
1001–1002 and decisions cited; Santa Teresa Citizen Action Group v. City of
San Jose (2003) 114 Cal.App.4th 689, 704 [“ ‘We do not judge the wisdom of
the agency’s action’ ”].)
                              Responsible Agency
      There are suggestions and asides in Boone’s brief that County Waste
was “not clear” that it was the responsible agency and, thus, “there is no
responsible agency in this case.” Boone appears to believe that the City of
San Leandro—which all agree was the lead agency when it adopted the
negative declaration and permitted the facility in 2011—retains that status,
and therefore “the project should be sent back to the City of San Leandro for
concurrence before [County Waste] should consider this highly revised
proposal.” The point is easily refuted.
      First, Boone does not assert that he made this argument at the
administrative level. This is what the trial court meant by failing to exhaust
administrative remedies, which is a jurisdictional bar to presenting the issue
for the first time to the courts. (See § 21177, subd. (a) [“An action . . . shall
not be brought . . . unless the alleged grounds for noncompliance with this
division were presented to the public agency”]; City of Long Beach v. City of
Los Angeles (2018) 19 Cal.App.5th 465, 474–475 [“ ‘ “ ‘[t]he “exact issue” must
have been presented to the administrative agency’ ” ’ ”].)
      Second, even if the point had been preserved for review, it would fail on
the merits. CEQA makes a distinction between a lead agency and a
responsible agency. The City of San Leandro was the lead agency because it



                                        36
approved the facility’s permit and issued the negative declaration in 2011.
(See § 21067 [“ ‘Lead agency’ means the public agency which has the
principal responsibility for . . . approving a project”]; Guidelines, § 15050,
subd. (a) [lead agency is the agency “responsible for preparing [a] . . . negative
declaration for the project”].) By contrast, a “responsible agency” is “a public
agency, other than the lead agency, which has responsibility for carrying out
or approving a project.” (§ 21069, italics added; Guidelines § 15381 [“For the
purposes of CEQA, the term ‘responsible agency’ includes all public agencies
other than the lead agency which have discretionary approval power over the
project”].) By considering, and approving, Waste Management’s proposal,
County Waste was clearly acting as the responsible agency.
      Finally, in “the Greenfire letter” (see fn. 6, ante), Boone himself
addressed County Waste as the responsible agency.8
                 Addendum To The Negative Declaration
      Guidelines section 15162, subdivision (a) provides that: “When an EIR
has been certified or a negative declaration adopted for a project, no
subsequent EIR shall be prepared” unless there exist either “[s]ubstantial
changes . . . which will require major revisions of the previous EIR or
negative declaration due to the involvement of new significant environmental
effects or a substantial increase in the severity of previously identified
significant effects,” or “[n]ew information of substantial importance, which
was not known and could not and could not have been known with the
exercise of reasonable diligence at the time” showing “one or more significant
effects” not previously addressed or significant effects “previously examined
will be substantially more severe.”

      8For her part, Stein states flatly: “Respondent Alameda County
Waste Management Authority was indisputably the responsible agency
under CEQA.”

                                        37
      Guidelines section 15164 provides that the responsible agency “shall
prepare an addendum” to a previously certified EIR or adopted negative
declaration “if . . . changes or additions are necessary or none of the
conditions described in Section 15162 . . . have occurred.” It also provides
“An addendum to an adopted negative declaration may be prepared if only
minor technical changes or additions are necessary, or none of the conditions
described in Section 15162 calling for the preparation of a subsequent . . .
negative declaration have occurred.”
      Citing Friends of the College of San Mateo Gardens v. San Mateo
County Community College Dist. (2017) 11 Cal.App.5th 596 (Friends of the
College II), Stein contends reversal is required because County Waste did not
adopt an addendum to the 2011 negative declaration.
      First of all, the follow up Friends of the College II decision is instantly
distinguishable because there the public agency did adopt an addendum, the
precise converse of what Stein asserts occurred here.
      More importantly, CEQA specifies that no “action or proceeding shall . .
. be brought . . . unless the alleged grounds for noncompliance with this
division were presented to the public agency orally or in writing during the
public comment period . . . or before the close of the public hearing on the
project.” (Guidelines § 21177, subd. (a).) This has been treated as a
requirement that a person exhaust his or her administrative remedies, and
satisfying this requirement is a jurisdictional prerequisite to seeking judicial
relief. (E.g., Hines v. California Coastal Com. (2010) 186 Cal.App.4th 830,
853; California Native Plant Society v. City of Rancho Cordova (2009) 172
Cal.App.4th 603, 615–616.) In other words, issues not addressed at the
administrative level cannot be raised for the first time in court, and the
CEQA plaintiff has the burden of showing that administrative remedies were



                                        38
in fact exhausted. (Bridges v. Mt. San Jacinto Community College Dist.
(2017) 14 Cal.App.5th 104, 115–116.)
      Stein’s brief does not mention that the addendum issue was raised by
her, or by someone else, when County Waste adopted the resolution under
challenge. Thanks to modern technology, we were able to digitally search the
hundreds of pages of comments in the administrative record for the word
“addendum.” It was never once used. We read the transcripts of the public
hearings, and neither Stein, nor Boone, nor anyone else, ever uttered the
word. Nor does it appear in the Greenfire letter Stein and Boone sent to
County Waste’s Board (see fn. 6, ante), although, to be fair, Guidelines section
15162 is twice cited. Still, the clear import of the letter was to urge the Board
not to adopt the Ordinance, not that an additional document was required.
      “ ‘The purpose of the rule of exhaustion of administrative remedies is to
provide an administrative agency with the opportunity to decide matters in
its area of expertise prior to judicial review. [Citation.] The decision making
body “ ‘is entitled to learn the contentions of interested parties before
litigation is instituted.’ ” ’ ” (California Native Plant Society v. City of Rancho
Cordova, supra, 172 Cal.App.4th at p. 616.) Because Stein failed to bring the
absence of an addendum to the Board’s attention, she was precluded from
raising it in court. (Bridges v. Mt. San Jacinto Community College Dist.,
supra, 14 Cal.App.5th at pp. 115–116; Hines v. California Coastal Com.,
supra, 186 Cal.App.4th at p. 853.)
      In point of fact, the issue is doubly barred. It is an elemental principle
of appellate review that issues will not be considered on appeal unless they
were first raised at trial. (E.g., Burden v. Snowden (1992) 2 Cal.4th 556, 570;
13 Witkin, Cal. Procedure (5th ed. 2020) Appeal, § 400, p. 458.) But the point
Stein now presses was not mentioned in her amended petition, in her



                                        39
statutorily-required statement of issues she intended to raise (see Guidelines
§ 21167.8, subd. (f)), in her briefs filed in the trial court, or in the papers
supporting her motion to vacate the judgment or for new trial. The absence
of the issue from the trial court’s lengthy orders is conspicuous.
      Finally, there is no reason the Ordinance itself cannot serve as the
addendum to the negative declaration.9
                        Consideration Of Alternatives
      The Legislature has declared it to be the policy of the state to “Require
governmental agencies at all levels to consider . . . alternatives to proposed
actions affecting the environment.” (§ 21001, subd. (g).) Boone contends
County Waste did not do so. However, the obligation to consider alternatives
applies to the original environmental review document, which in this case
was the 2011 negative declaration. (§ 21002 [“public agencies should not
approve projects . . . if there are feasible alternatives”]; see §§ 21002.1,


      9  Guidelines section 15164 does not specify the content of an addendum
beyond that it should include a “brief explanation of the decision” that may be
“included as an addendum” to the previous environmental document, “or
elsewhere in the record.” The Ordinance has recitals that County Waste “is a
Responsible Agency under CEQA, that this project underwent the required
review under CEQA, and that [County Waste’s] action is within the scope of
activities addressed by the City of San Leandro’s negative declaration and
initial study (‘ND/IS’).” It also, under the heading “CEQA Determinations,”
stated that the Board’s “approval of the ColWMP amendment and
conformance determination, as conditioned, will have a less than significant
impact on the environment as documented in the ND/IS.” Most significantly,
another of the Board’s findings was that “since the City of San Leandro’s
adoption of the ND/IS, no substantial changes have occurred and no new
information or changed circumstances exist that require revisions of the
ND/IS due to new significant environmental effects or a substantial increase
in the severity of previously identified significant effects.” This last quoted
language is obviously taken from Guidelines section 15162 as quoted at the
beginning of this analysis.



                                         40
subds. (a), 21061, 21100; Guidelines, §§ 15252, subds. (a)(2)(A) & (B); Laurel
Heights, supra, 47 Cal.3d at p. 400 [“project alternatives must be discussed in
an EIR”].) In addition, this court long ago noted that “the requirement as to
the discussion of alternatives is subject to a construction of reasonableness.
The statute does not demand what is not realistically possible, given the
limitation of time, energy, and funds. [A] ‘crystal ball’ is not required.”
(Foundation for San Francisco’s Architectural Heritage v. City and County of
San Francisco (1980) 106 Cal.App.3d 893, 910)
      Waste Management proposed to continue operating an existent
recycling facility, but modifying the recycling process inside that facility. It is
clear from their briefs that Boone and amici read “alternatives” as an
opportunity to revisit the relative merits of the new recycling process
approved by County Waste. Here our caution against straying beyond CEQA
is decidedly applicable.
                                Fair Argument
      The primarily contention made by Stein—and to a lesser extent by
Boone—is that the recycling process proposed by Waste Management was
sufficiently different, both qualitatively and quantitively, from the existing
process, that County Waste was obligated to prepare a new environmental
document, and no longer rely on the negative declaration adopted back in
2011. As shown by the trial court’s detailed analysis, the contention has
several analytical steps.
      As with her addendum argument, Stein bases her contention on
Guidelines section 15162, subdivision (a). As relevant here, it reads:
      “When . . . a negative declaration adopted for a project, no subsequent
EIR shall be prepared for that project unless the lead agency determines, on




                                        41
the basis of substantial evidence in the light of the whole record, one or more
of the following:
      “(1) Substantial changes are proposed in the project which will require
major revisions of the . . . negative declaration due to the involvement of new
significant environmental effects or a substantial increase in the severity of
previously identified significant effects;
      “(2) Substantial changes occur with respect to the circumstances under
which the project is undertaken which will require major revisions of the . . .
negative declaration due to the involvement of new significant environmental
effects or a substantial increase in the severity of previously identified
significant effects; or
      “(3) New information of substantial importance, which was not known
and could not have been known with the exercise of reasonable diligence at
the time . . . the negative declaration was adopted, shows any of the
following:
      “(A) The project will have one or more significant effects not discussed
in the . . . negative declaration;
      “(B) Significant effects previously examined will be substantially more
severe than shown in the [negative declaration].”
      As already discussed, our Supreme Court’s decision in Friends of the
College I requires that we first test County Waste’s implicit determination
that the negative declaration retained informational value. Stein does not
challenge that determination, which, upon de novo review, we conclude is
sound and supported by substantial evidence. (Friends of the College I,
supra, 1 Cal.5th at p. 953.)
      The second stage would be whether, or what extent, Sundstrom v.
County of Mendocino, supra, 202 Cal.App.3d 296 (Sundstrom) is pertinent.



                                        42
Sundstrom exerts a natural allure, dealing as it did with a private sewage
treatment facility, approved with a negative declaration by the local agency.
The major point in Sundstrom, and for which it is most cited, is that a local
agency cannot defer to a future date, or delegate to the applicant, its duty to
assess whether the proposed project might entail environmental impacts.
(Id. at p. 307; see, e.g., Save Tara v. City of West Hollywood (2008) 45 Cal.4th
116, 141; California Clean Energy Committee v. City of Woodland (2014) 225
Cal.App.4th 173, 194; California Native Plant Society v. City of Rancho
Cordova, supra, 172 Cal.App.4th at p. 621.) As one court put it: “In
Sundstrom, the lead agency under CEQA, in proceeding under a negative
declaration, ‘had determined, before the required studies were even
performed, that the project would not have a significant impact on the
environment.’ ” (San Joaquin River Exchange Contractors Water Authority v.
State Water Resources Control Bd. (2010) 183 Cal.App.4th 1110, 1132.) This
is not the point of Stein’s reliance upon Sundstrom.
      Stein focuses upon this language in Sundstrom: “While a fair
argument of environmental impact must be based on substantial evidence,
mechanical application of this rule would defeat the purpose of CEQA where
the local agency has failed to undertake an adequate initial study. The
agency should not be allowed to hide behind its own failure to gather relevant
data. . . . CEQA places the burden of environmental investigation on
government rather than the public. If the local agency has failed to study an
area of possible environmental impact, a fair argument may be based on the
limited facts in the record. Deficiencies in the record may actually enlarge
the scope of fair argument by lending a logical plausibility to a wider range of
inferences.” (Sundstrom, supra, 202 Cal.App.3d at p. 311.) Stein also invokes




                                       43
the “less deferential” language in the follow-up Friends of the College II
decision (2017) 11 Cal.App.5th 596, 607).
      Yet there is a crucial reason why these two decisions are inapposite.
Missing in Sundstrom, and in the follow-up Friends of the College II decision,
was what is present here—an initial study that no one challenges as
environmentally inadequate. 10 Moreover, the bottom line of those decisions
would merely set up the next, and last, analytical step—whether there is fair
argument that the Waste Management project will have adverse
environmental impacts.
      We note that our Supreme Court has held: “A negative declaration is
permitted when ‘there is no substantial evidence that the project or any of its
aspects may cause a significant effect on the environment.’ . . . [W]hen a
project is initially approved by negative declaration, a ‘major revision’ to the
initial negative declaration will necessarily be required if the proposed
modification may produce a significant environmental effect that had not
previously been studied. [Citation.] Indeed, if the project modification
introduces previously unstudied and potentially environmental effects that
cannot be avoided or mitigated through further revisions to the project plans,


      10 The Sundstrom court also noted that “Even if the initial study is
defective, the record may be extensive enough to sustain the agency’s action.”
(Sundstrom, supra, 202 Cal.App.3d at p. 305.) The court also found no CEQA
objection to requiring the project proponent to satisfy the environmental
demands of other agencies. (Id. at p. 308 [such conditions “are beyond
criticism”].) Both of these options are present here because the
administrative record reaches: (1) the County Waste amendment of the
ColWMP to add the project at the DSTS to the ColWMP’s list of System
Components; (2) County Waste conditioning its approval on the facility being
constructed and operated in compliance with the assumptions in the 2011
negative declaration; (3) the Alameda County Department of Environmental
Health granting a permit for the OMRF; and (4) the BAAQMD approving
construction and operation of the OMRF.

                                       44
then the appropriate environmental document would no longer be a negative
declaration at all, but an EIR.” (Friends of the College I, supra, 1 Cal.5th at
p. 958, third italics added.)
        And we reiterate that CEQA requires an EIR “only for those aspects of
a project likely to have significant environmental effects. Section 21151,
subdivision (b), governing local agency preparation of EIRs, specifies that
‘any significant effect on the environment shall be limited to substantial, or
potentially substantial, adverse changes in physical conditions which exist
within the area as defined in Section 21160.5.’ (Italics added.) Section
21060.5 refers to ‘the physical conditions which exist within the area which
will be affected by a proposed project, including land, air, water, minerals,
flora, fauna, noise [and] objects of historic or aesthetic significance.’ ” (Save
the Plastic Bag Coalition v. City of Manhattan Beach (2011) 52 Cal.4th 155,
172.)
        We recognize that a public agency has a certain amount of discretion in
deciding “whether to classify an impact . . . as ‘significant,’ depending on the
nature of the area affected. [Citations.] In exercising its discretion, a [public]
agency must necessarily make a policy decision in distinguishing between
substantial and insubstantial adverse environmental impacts based, in part,
on the setting.” (North Coast Rivers Alliance v. Marin Municipal Water
District Board of Directors (2013) 216 Cal.App.4th 614, 624–625.) Also, the
standard for the agency “is not whether any argument can be made that a
project might have a significant environmental impact, but rather whether
such an argument can fairly be made.” (Friends of “B” Street v. City of
Hayward (1980) 106 Cal.App.3d 988, 1003.)
        Our review may be de novo, but that does mean the trial court’s
extensive reasoning is of no use to us. Quite the contrary, we have quoted



                                        45
from the trial court’s orders because they have considerable worth as an
impartial framing of the issues. And they demonstrate how Boone and Stein
have narrowed their focus on these appeals.
      Another merit is the trial court’s discussion of the evidence in the
administrative record, which we would ordinarily expect to be addressed by
Stein. (See Mani Brothers Real Estate Group v. City of Los Angeles (2007)
153 Cal.App.4th 1385, 1402 [“As with all substantial evidence issues, an
appellant challenging the evidence must lay out the evidence favorable to the
other side and show why it is lacking. A reviewing court need not
independently review the record to make up for an appellant’s failure to carry
this burden”].) Both as a petitioner for writ relief, and as appellant here,
Stein “bears the burden of proof to demonstrate by citation to the record the
existence of substantial evidence supporting a fair argument of significant
environmental impact.” (Jensen v. City of Santa Rosa (2018) 23 Cal.App.5th
877, 886.)
      Stein makes a passing reference to the new process being “more
hazardous,” but the only impacts she identifies are “air quality and odor.”
Reflecting her own expertise, much of her analysis is technical. We are not
obliged either to match her scientific knowledge or to acquire a complete
understanding of the technology. (Vineyard Area, supra, 40 Cal.4th at p. 435;
Laurel Heights, supra, 47 Cal.3d at p. 393.) And we are certainly
unimpressed with her attacks on the trial court’s intelligence.
      On page 49 of her brief, Stein states she “asserted that tripling the
amount of material composted onsite will increase the odors and the air
pollutants into the neighborhood proportionately to the amount processed
and that by tripling the amount, air pollutants will inevitably leave the
enclosed building. See infra



                                       46
p. 43-44 and AR 841.” But pages 43 and 44 of her brief have nothing
demonstrating that Stein “asserted” anything to anyone. And page 841 of the
administrative record is a page from the draft “Initial Study and Mitigated
Negative Declaration” prepared for the Alameda County Planning
Department in 2011that makes no mention of Stein.11 On page 45 we are
told that “Dr. Stein testified that when the material is tripled from 350 tpd to


      11 The following is marked on the page: “In addition to air quality
regulations, it is also assumed the project would comply with CCR Title 14,
Division 7, Chapter 3.1, Article 3, Compostable Materials Handling
Operations and Facilities Regulatory Requirements. Specifically, the project
would comply with the requirements of Section 17863.4 to have an Odor
Impact Minimization Plan. It is assumed that compliance with the plan, in
addition to the design of the facilities (i.e., enclosed buildings), would result
in controlling odor emissions.” There is no way of knowing who did the
marking.
      The page cited is in a four-page-long section titled “Regulatory Setting,”
which outs the extensive federal, state, and local Stein may have meant to
cite page 843, where is the following:
       “Construction and operation of the project would result in emissions of
criteria pollutants and air toxics. Construction of the project would create a
short-term increase in emissions, however, the emissions would be less than
the BAAQMD thresholds. Therefore, construction would be consistent with
the BAAQMD air quality plans.
        “Operation of the project would be anticipated to generate criteria
pollutant and air toxics emissions. It is assumed that fugitive dust from
onsite unpaved roads would be controlled following current permit conditions
. . . . Operation of the project would be consistent with the BAAQMD 2010
CAP.”
      Finally, on pages 844–845, is the following: “As shown in Table 3-4,
emissions would be less than the BAAQMD thresholds except for daily
emissions of PM10 and PM2.5. [¶] The exhaust PM10 and PM2.5 emissions
would be much lower than the BAAQMD thresholds.” Because these
conditions could be mitigated, one of the four air quality criteria was
determined to have “No Impact,” while the other three were deemed to have a
“Less Than Significant Impact.”

                                        47
1,000 tpd, air pollutants will leave the building even if ‘enclosed.’ Her
testimony on this point is corroborated by a County report discussing [Waste
Management’s] Altamont Landfill. See AR 841 and p. 44–44 infra.”
      So, Stein is instancing what might have been the situation at a
different facility in 2011. The page in the administrative record she cites
clearly implies that existing structures and requirements, particularly the
BAAQMD (see Health & Saf. Code, §§ 40232–40233), are more than adequate
to preserve air quality. Stein does not document that she asserted, or
testified, concerning the point she now raises. This does not establish “the
existence of substantial evidence supporting a fair argument of significant
environmental impact.” (Jensen v. City of Santa Rosa, supra, 23 Cal.App.5th
at p. 886.)
      Stein makes much of the fact that she is an expert, and thus her
environmental opinions and conclusions have more than ordinary credibility.
The Guidelines do direct that expert opinion can constitute substantial
evidence to support a fair argument, but only when it is “expert opinion
supported by facts.” (Guidelines § 15384, subds. (a) & (b).) But unsupported
opinion by an expert is excluded, as this court has repeatedly noted. (See
Hines v. California Coastal Com., supra, 186 Cal.App.4th at p. 857
[“ ‘Opinions which state “nothing more than ‘it is reasonable to assume’ that
something ‘potentially . . . may occur’ do not constitute substantial
evidence . . . .” ’ ”]; Association for Protection of Environmental Values v. City
of Ukiah (1991) 2 Cal.App.4th 720, 735–736 [“project opponents must produce
some evidence, other than their unsubstantiated opinions”].)
      The question of air quality merges with Stein’s next point. There
appears to be no disagreement that up to Waste Management’s proposal, in
Stein’s words, “all of the three processing steps involved in the approved



                                        48
DSTS compost process were to take place indoors in one single building with
no breaks to the outdoors.” In other words, the entire compositing process
took place inside an enclosed building.
       However, again in Stein’s words, “the approved 2011 Project was
changed in 2017 so that the compost process was no longer entirely indoors
and no longer delineated to be inside of one single building but was instead
changed to be in 3 separate buildings and only the initial stage of anaerobic
digestion was to occur before the product of this anaerobic digestion, the
digestate, was shipped offsite. The change was from ‘all indoors’ to ‘partly
indoors’. The material to be processed in the 2017 Project was tripled from
the amount permitted by the 2011 Project” Specifically, “in the 2017
approval all digestate material was allowed by the amended ColWMP to be
shipped offsite without the onsite indoor anaerobic composting or curing
steps that were required in 2011.” Thus, “there is a different level of odors
and air pollution generated and emitted to the outdoors when uncured and
once-processed digestate is taken outside and loaded into trucks and shipped
offsite.”
       It is true that Stein can point to several instances where, at various
stages in the administrative and the legal proceedings, persons associated
with both Waste Management and County Waste made comments that can
be read as indicating perhaps a less than complete familiarity with whether
the proposed project would have one or three buildings. The confusion may
be the result of the somewhat unorthodox manner in which the new facility
will be constructed, a point addressed by Mr. Tackitt and quoted in the trial
court’s second order. The point is of no real significance, and may trace to the
fact that there having always been, and will continue to be, three processes.
Ultimately, the point is without environmental significance because however



                                       49
many buildings, all will be enclosed. The only material point is whether
there is substantial evidence in the administrative record that the proposed
Waste Management facility might entail adverse environmental impacts.
      In her opening brief, Stein repeatedly asserts or implies that the new
recycling processes would be “open” and exposed to the air. However, the
materials in the administrative record clearly show that the processes,
particularly the OMRF, are intended to be within an enclosed building.
      Whether Stein’s generic “odors and air pollution” includes methane is
unclear. She makes no argument that the trial court incorrectly reasoned
that no methane would be released into the atmosphere.
      The original project building was analyzed before San Leandro adopted
the negative declaration in 2011. In the part of the initial study captioned for
“Odor Control/Management,” was the following: “Both the Food
Waste/Organic/ Green Waste Compost and the Food Waste /Organic
Recycling operations will occur in enclosed buildings. To contain odors
generated by the unloading and handling of organic material, the buildings
will be designed to minimize the number of openings and large vehicle access
doors will be equipped with high-speed doors. To control odor, the buildings
will be equipped with an air handling and ventilation system to capture
exhaust from the building so that it can be treated for odor prior to release to
the atmosphere. The air will be treated using a bio-filter system and/or a
mechanical air handling and treatment system, such as a misting system.
Bio-filters have been proven effective at removing odors from air that are
caused by mixed organics and sulfur compounds, which are the main source
of odor associated with green waste and food waste handling and processing.”
“The proposed Project is required to and will comply with the applicable . . .
BAAQMD . . . regulations, including the guidelines for composting facilities



                                       50
through the collection and control of biogas, and through the use of a bio-
filter system.” The project was assessed as having a “less than significant
impact” on air quality, it being noted that “the proposed Project would not
create objectionable odors affecting a substantial number of people.”
      Moreover, for the new facility, Waste Management added a new
feature: an internal negative air pressure system to prevent the escape of
contaminated air.
      When the County Waste Board adopted the Ordinance under challenge,
it attached a number of “Conditions of Approval,” including:
      “1. Operations at the DSTS Organics Facilities (facilities) shall comply
with all requirements governing the design and operation of compost
operations under the Compost Materials Handling Facility permit as set
forth in Title 14 of the California Code of Regulations [§ 17850 et seq.].
      “2. The materials that may be processed through the DSTS organics
facilities are limited to the materials that the Davis Street Transfer Station
is currently permitted to take.
      “3. The facilities will not result in an increase of currently permitted
tonnage of . . . incoming material per day.
      “4. The facilities shall operate within the conditions contained within
the CUP [conditional use permit] from the City of San Leandro.
      “5. The Facilities shall be constructed and operated in compliance with
the assumptions made in the Initial Study and Negative Declaration adopted
by the City of San Leandro to the extent applicable to the facilities.”
      Stein insists that the increase made the new project fundamentally
different from that approved in 2011. County Waste and Waste Management
counter that the trial court erroneously concluded that new project entailed
an increase in the amount of material processed, thereby ignoring the Board’s



                                       51
findings that Waste Management’s proposal was “within the scope of
activities addressed” by the 2011 negative declaration, and that “no
substantial changes have occurred” and no changed circumstances exist that
require revision of the negative declaration. This is not an issue that
demands our resolution. By itself, an increase in amount or volume that the
new facility will handle is not per se an environmental impact, as CEQA
defines that term. Indeed, with more material being processed, and fewer
trucks needed to transport the processed material off site, the new project
would appear to promote the goals of increasing the amount of recycled
material that Stein and Boone so vigorously advocate in their briefs.
      “[A] condition requiring compliance with regulations is a common and
reasonable . . . measure, and may be proper where it is reasonable to expect
compliance.” (Oakland Heritage Alliance v. City of Oakland (2011)
195 Cal.App.4th 884, 906, citing Sundstrom.) Here, County Waste’s approval
was conditioned on Waste Management complying with “ ‘a host of specific
performance criteria imposed by various ordinances, codes, and standards . . .
.’ ” (Id. at p. 910.) As County Waste and Waste Management point out in
their joint brief, the new facility “must comply with California’s strict,
multifaceted regulations governing compost and digestate handling and
quality.”
      Ever since the DSTS opened, Waste Management has operated under
the numerous regulatory restrictions imposed by the original permit, many of
which are intended to preserve air quality. There is no evidence in the record
that Waste Management has ever failed to comply with those restrictions, or
that air quality at the DSTS was compromised. In light of this history, it was
reasonable for County Waste to believe that Waste Management would
continue to obey the “ ‘host of specific performance criteria’ ” imposed by other



                                       52
agencies and that those official requirements would be sufficient to preserve
air quality in the future.
      Stein’s final point, which she argues at great length, is that there is a
fair argument “that the project changes will cause environmental impacts by
modifying legislative policies that require recycling to be maximized,” citing
provisions in the Waste Management Act, and Measure D, an initiative
enacted by Alameda County voters in 1990 (which was examined and
sustained in City of Dublin v. County of Alameda (1993) 14 Cal.App.4th 264).
Our response will be brief.
      Initially, we note that here Stein’s increased volume argument works
against her, because the amount of recycled material will obviously be
greater, thus promoting the goal of maximizing recycling. As for the state
act, its administration is entrusted to County Waste, which, by approving it,
presumably found it compatible with the state statutes and goals. (§ 41750;
cf. Evid. Code, § 664 [“It is presumed that official duty has been regularly
performed”].) Moreover, the County Waste Board is composed of persons and
elected representatives from throughout Alameda County, and it would be
most unlikely that they would be oblivious to the state and local measures
now invoked by Stein. Indeed, the Oakland supervisor of Oakland’s solid
waste and recycling program advised the Board that the proposed project was
necessary to fulfilling Oakland’s recycling goals. Finally, maximizing
recycling policy is not a CEQA purpose.
      In light of the foregoing, there is no need to discuss Stein’s argument
that the trial court erred in not augmenting the administrative records with
these legislative measures.
      In sum, after independently reviewing the administrative record, and
due allowance for the Board’s discretion and expertise (Vineyard Area, supra,



                                       53
40 Cal.4th at pp. 427, 435; Laurel Heights, supra, 47 Cal.3d at p. 393; North
Coast Rivers Alliance v. Marin Municipal Water District Board of Directors,
supra, 216 Cal.App.4th at p. 624), we conclude Stein and Boone have not
identified substantial evidence establishing that a fair argument significant
environmental impacts that are either new or substantially more severe than
was the case when the negative declaration was adopted in 2011.
(Guidelines, § 15162(a); Friends of “B” Street v. City of Hayward, supra,
106 Cal.App.3d at p. 1003.)
                                DISPOSITION
      The judgment is affirmed. County Waste and Waste Management, who
filed a joint brief, shall recover their costs on these appeals. (Cal. Rules of
Court, rule 8.278.)




                                        54
                                       _________________________
                                       Richman, Acting P.J.


We concur:


_________________________
Stewart, J.


_________________________
Miller, J.




Stein et al. V. Alameda County Waste Management (A154804)




                                  55
