Majority
In this court, SPRAWLDEF reasserts its conformance argument and claims the Board, as an administrative body, had no right to invoke the judicial doctrine of failure to exhaust administrative remedies to decline to hear SPRAWLDEF's administrative appeal. SPRAWLDEF also complains the Board deliberated in closed session, in violation of the Bagley-Keene Open Meeting Act ( Gov. Code, § 11120 et seq. ).
We conclude SPRAWLDEF failed to preserve the conformance issue at all stages of the administrative proceedings. The Board was not required to entertain the administrative appeal. To the extent the Board nevertheless addressed the merits, given the statutory language, SPRAWLDEF fails to demonstrate reversible error. As to the open meeting law, we conclude that even if closed session deliberations were improper, SPRAWLDEF fails to show prejudice warranting the nullification remedy it seeks.
6 The previous owner/operator, Republic Services, Inc., was named in the petition but was dismissed, and the current owners were substituted.
The Waste Management Act also authorizes the establishment of local enforcement agencies (LEAs), which have broad duties and powers (§§ 43200-43209), including issuance of solid waste permits to operate landfills (§ 44001), inquiry into the violation of the terms or conditions of solid waste permits (§ 43200; Regs., §§ 18302-18303), temporary suspension of permits (§ 44305, subd. (a) ), issuance of cease and desist orders (§ 45005), assessment of civil penalties (§ 45011), issuance of notices and orders requiring correction of permit violations (§ 45000, subd. (a); Regs., § 18304), and, in the absence of correction, initiation of judicial proceedings (Regs., § 18304).
The Waste Management Act expressly provides that "the responsibility for solid waste management is a shared responsibility between the state and local governments" (§ 40001, subd. (a) ), and that local governmental responsibilities "are integral to the successful implementation" of the Waste Management Act. (Former § 40703.) DRRR consults and coordinates with LEAs. (Former § 40703, §§ 40910, 41791.2, 42500, 42501, 42511, 42540, 42600, 42650, 43217, 43301, 43307, 47103.) DRRR may investigate LEA performance (§ 43216.5) and initiate judicial action if it finds that the LEA has failed to take appropriate steps. (Regs., § 18350; see also San Elijo Ranch, supra , 65 Cal.App.4th at p. 613, 76 Cal.Rptr.2d 601 .)
Anyone who wants to operate a solid waste facility must apply to the LEA for a permit. (§ 44001.)
Permit holders who wish to change the design or operation of the landfill must comply with section 44004, which provides in pertinent part: "(a) An
After the hearing panel issues its decision (§ 44310, subd. (c) ), any party to the hearing may pursue an administrative appeal to the Board "to review the written decision of the hearing panel ...." (§ 45030, subd. (a).)[13] The appeal is not a matter of right. Under section 45031, the Board may: "(a) determine not to hear the appeal if the appellant fails to raise substantial issues. [¶] ... [¶] (c) Determine to accept the appeal and to decide the matter ... [or] [¶] (d) Determine to accept the appeal and hold a hearing." (§ 45031, see fn. 4, ante .)
A former statute allowed a party to proceed to court without pursuing an administrative appeal to the Board, but that statute was repealed in 2008. (Former § 45033, repealed by Stats. 2008, ch. 500, § 34, eff. Jan. 1, 2009.)
A party aggrieved by the Board's decision "may file with the superior court a petition for a writ of mandate for review thereof." (§ 45040.) "The evidence before the court shall consist of the records before the hearing panel or hearing officer and the [B]oard, if any, including the enforcement agency's records, and any other relevant evidence that, in the judgment of the court, should be considered to effectuate and implement the policies of this division [Division 30, Waste Management, § 40000 et seq. ]." (§ 45041.) "Except as otherwise provided in this chapter, Section 1094.5 of the Code of Civil Procedure shall govern proceedings pursuant to this article." (§ 45042.)
The statutes and regulations call for periodic review and revision, if necessary, of permits, CIWMPs, and siting elements.[14] (E.g., § 44015 ["A solid waste facilities permit issued or revised under this chapter shall be reviewed and, if necessary, revised at least once every five
12 Section 45030 states: "(a) A party to a hearing held pursuant to Chapter 4 (commencing with Section 44300) of Part 4 may appeal to the [B]oard to review the written decision of the hearing panel or hearing officer .... [¶] ... [¶] (b) An appellant shall commence an appeal to the [B]oard by filing a written request for a hearing together with a brief summary statement of the legal and factual basis for the appeal. [¶] ... [¶] (e) The [B]oard shall conduct the hearing on the appeal in accordance with the procedures specified in Article 10 (commencing with Section 11445.10 ) of Chapter 4.5 of Part 1 of the Government Code [i.e., informal hearings under the Administrative Procedure Act (APA) ]."
13 We discuss the question of mootness, post .
With this background in mind, we turn to the background of this case.
FACTUAL AND PROCEDURAL BACKGROUND
Potrero Hills operates a landfill in Solano County pursuant to a county permit. The permit first issued in 1989, was revised in 1996, and was revised again in 2006. At issue in this appeal is the 2006 revision.
The landfill is described in the 1995 Solano County CIWMP "Siting Element," adopted by county resolution No. 96-5. The trial court allowed
On October 25, 2006, the LEA sent a proposed revised permit with conditions to the Board, as required by section 44007. In December 2006, the Board voted but did not attain the necessary four votes to concur in or object to the proposed revised permit, and therefore the Board, by inaction, was deemed to have concurred in issuance of the permit in accordance with section 44009.[19]
17 SPRAWLDEF's arguments at times imply that it is this initial, superseded proposal that is at issue.
18 Section 44009, subdivision (a)(3), provides: "If the [B]oard fails to concur or object in writing within the 60-day period specified in paragraph (1), the [B]oard shall be deemed to have concurred in the issuance of the permit as submitted to it."
20 Tipping fees are the fees charged to those who want to dump waste at the landfill. On appeal, SPRAWLDEF agrees LEA has no authority to increase tipping fees. SPRAWLDEF says that, by arguing the inconsistency of the tipping fees with diversion goals of Solano County and other counties, its argument adequately raised the conformance issue it later raised to the Board, i.e., that the expanded operations had to be rejected because they did not conform with the siting element. As we discuss post , we disagree that SPRAWLDEF preserved this issue.
"Third, SPRAWLDEF's new basis for the appeal is without merit under the IWMA and could not be the basis for the Board overturning the LEA's actions. SPRAWLDEF maintains that the LEA should have denied or conditioned the 2006 revised solid waste facility permit for Potrero Hills Landfill because it was not 'in conformance with' the Countywide Siting Element. This contention is based on the fact the description of the facility in the proposed revised permit is not the same as the description of the facility in the Countywide Siting Element. However, the permitting requirements do not require 'conformance with' the Countywide Siting Element for a permit to be issued. Public Resources Code section 44009 [[23] ] authorizes objection to a proposed permit if it is not consistent with the requirements of Public Resources Code section 50001 [see fn. 5, ante ]. Public Resources Code section 50001(a)(1) provides that no facility shall be established or expanded unless 'the location ... is identified in the countywide siting element (emphasis added).' In this case, the location of the facility was identified (SPRAWLDEF has not contested otherwise) and therefore, the proposed permit was consistent with the requirements of Public Resources Code section 50001. SPRAWLDEF's contention would require the Board to expand this requirement beyond its plain meaning in the statute (it should be noted that the term 'conformance' appears nowhere in either ... section 44009 or
22 Section 44009, subdivision (a)(2), provides: "If the [B]oard determines that the permit is not consistent with the state minimum standards adopted pursuant to Section 43020 [i.e., the regulations], or is not consistent with Sections 43040, 43600, 44007, 44010 ["enforcement agency shall issue permit only if it finds that the proposed solid waste facilities permit is consistent with the standards adopted by the board"], 44017, 44150, and 44152 or Division 31 (commencing with Section 50000), the [B]oard shall object to provisions of the permit and shall submit those objections to the local enforcement agency for its consideration."
Over objections by other parties, the trial court allowed SPRAWLDEF to supplement the record with documents that had not been submitted in the administrative proceedings, including the County's 1995 siting element. Also included in the supplemental record were records documenting Board debates over the meaning of the word "expansion" and the Board's interpretation of section 50001 as requiring identification only, not description, in the siting element, i.e., as long as the siting element shows the location of a facility as a "dot on the map," the operations may be expanded without revising the siting element to include a description of the expanded operations. One such document is resolution No. 2000-330, adopted by the Board on September 19, 2000, which stated in part:
24 Section 45040 provides: "(a) Within 30 days from the date of service of a copy of a decision or order issued by the [B]oard pursuant to Section 45031 or 45032, any aggrieved party may file with the superior court a petition for a writ of mandate for review thereof. [¶] (b)(1) The filing of a petition for writ of mandate shall not stay any enforcement action taken or the accrual of any penalties assessed, pursuant to this part or Part 5 (commencing with Section 45000). [¶] (2) Paragraph (1) shall not prohibit the court from granting any appropriate relief within its jurisdiction."
"The requirement that a full presentation be made before the adjudicating agency applies equally when a second administrative agency, exercising appellate functions, enters the picture. A party may not raise new issues on review before such a tribunal if the issues could have been asserted before the lower administrative body." (Cal. Administrative Mandamus, supra , § 3.73, p. 3-50; Harris v. Alcoholic Bev. etc. Appeals Bd . (1961) 197 Cal.App.2d 182 , 187, 17 Cal.Rptr. 167 ( Harris I ).) "When the facts are not in dispute, however, a party may not be precluded from raising a new question of law." (Cal. Administrative Mandamus, p. 3-50; Harris v. Alcoholic Bev. etc. Appeals Bd . (1966) 245 Cal.App.2d 919 , 924, 54 Cal.Rptr. 346 ( Harris II ).)
Harris I, supra , 197 Cal.App.2d 182 , 17 Cal.Rptr. 167 , is instructive in the context of an administrative procedure involving an appeal at second level of administrative review. The Harris I court held the Alcoholic Beverage Control Appeals Board improperly considered a new issue raised by a liquor licensee for the first time on administrative appeal of a decision of the Department of Alcoholic Beverage Control suspending the liquor license. ( Id . at pp. 184, 187, 17 Cal.Rptr. 167 .) The Harris I court wrote: " 'It was never contemplated that a party to an administrative hearing should withhold any defense then available to him or make only a perfunctory or "skeleton" showing in the hearing and thereafter obtain an unlimited trial de novo, on expanded issues, in the reviewing court. [Citation.] The rule compelling a party to present all legitimate issues before the administrative tribunal is required in order to preserve the integrity of the proceedings before that body and to endow them with a dignity beyond that of a mere shadow-play.' " ( Id . at p. 187, 17 Cal.Rptr. 167 , italics added.)
We conclude the tipping fees issue was not the equivalent of the conformance issue SPRAWLDEF belatedly asserted. Indeed, the siting element was never presented to the LEA so that it could determine whether the revised permit was in conformance thereof. SPRAWLDEF simply did not present the conformance issue to the LEA.
We do note that Harris I is not directly on point factually. There, the licensee stipulated at the beginning of the initial administrative hearing that the specific matter was not at issue, causing the department to forego its witnesses. ( Harris I, supra , 197 Cal.App.2d at p. 186, 17 Cal.Rptr. 167 .) In a subsequent appeal, Harris II, supra , 245 Cal.App.2d 919 , 54 Cal.Rptr. 346 , the court held that the appeals
Unlike exhaustion of administrative remedies, which is a jurisdictional requirement ( Tahoe Vista Concerned Citizens v. County of Placer (2000) 81 Cal.App.4th 577 , 589, 96 Cal.Rptr.2d 880 ( Tahoe Vista ) ), forfeiture for failure to preserve issues affords some discretion to the reviewing body. A treatise on administrative hearings notes: "At the administrative proceeding, a party must preserve all points he or she intends to urge on appeal. Authorities differ on whether this doctrine of preservation of issues is part of the exhaustion of remedies or is a separate but related rule. Professor Pierce includes it in his discussion of exhaustion of administrative remedies. 2 Pierce, Administrative Law Treatise § 15.8 (5th ed 2010). Cooper views it as a separate but related rule. 2 Cooper, State Administrative Law 595 (1965). The preservation of issues doctrine differs from the exhaustion of remedies doctrine. The latter is jurisdictional, while the former does not bar a reviewing court from considering an issue not raised before the agency when circumstances warrant ( e.g. , when an injustice would result). Hormel v. Helvering (1941) 312 U.S. 552 , 557, [ 61 S.Ct. 719 , 721-722, 85 L.Ed. 1037 , 1041]. See also Greenblatt v. Munro (1958) 161 [Cal.App.]2d 596, 606 [ 326 P.2d 929 ]...." (Cal. Administrative Hearing Practice (Cont.Ed.Bar 2d ed. (2013) § 8.108, p. 8-69.) )
" 'The essence of the exhaustion doctrine is the public agency's opportunity to receive and respond to articulated factual issues and legal theories before its actions are subjected to judicial review.' " ( Citizens for Open Government v. City of Lodi (2006) 144 Cal.App.4th 865 , 873, 50 Cal.Rptr.3d 636 ( Citizens for Open Government ).) But the same reasoning justifies the requirement that a party fully present all issues at every stage of administrative proceedings. It is unfair to criticize the County for something that
In another CEQA case, the court in Browning-Ferris , supra , 181 Cal.App.3d 852 , 226 Cal.Rptr. 575 , held there was no failure to exhaust administrative remedies where the appellant had not presented its issue to the city planning commission during public hearings on the draft EIR, but did present the issue to the city council before that body approved the EIR. ( Id . at p. 860, 226 Cal.Rptr. 575 .) By doing so, the appellant had pursued its administrative remedies before the agency with the ultimate responsibility for giving final approval of the EIR. ( Ibid . ) The municipal code specified that the planning commission must find an EIR complete and in compliance with CEQA, but the process did not end at that point, and the city council had to approve the EIR. ( Ibid . )
Here, it is the LEA which issues the permit, though with opportunity for Board input. The Board has discretion to entertain an appeal from a LEA decision, but it need not do so. ( § 45031.) If the Board does not exercise that
Accordingly, we conclude section 50001 does not require an LEA or the Board to deny a permit revision on the ground that the expanded operations are not already described in the siting element. If SPRAWLDEF believes that expansions should not be allowed unless the siting element is revised and that allowing landfill operations more expansive than those described in the siting element will result in unchecked growth of landfills, then that is something to be taken up with the Legislature. We will not rewrite the statute.
We conclude SPRAWLDEF fails to show grounds for reversal of the judgment.
DISPOSITION
The judgment is affirmed. Respondents shall recover their costs on appeal. ( Cal. Rules of Court, rule 8.278(a)(1)-(2).)
We concur:
RAYE, P. J.
ROBIE, J.
SPRAWLDEF appeals from the trial court's denial of its petition for a writ of administrative mandamus (§ 45042; Code Civ. Proc., § 1094.5 ), which was filed against: (1) the County Department of Resource Management as the local enforcement agency (LEA) (§§ 40130, 43200) for integrated waste management, which granted the revised permit and rejected SPRAWLDEF's administrative challenge to the revised permit; (2) the former California Integrated Waste Management Board (the Board), which has since been replaced by the California Department of Resources, Recycling and Recovery (DRRR),[4] which declined to entertain an administrative appeal (§ 45031),[5] on the grounds that (a) SPRAWLDEF failed to exhaust administrative remedies by failing to assert the conformance issue at the County level, and (b) that the conformance argument lacked merit
1 Undesignated statutory references are to the Public Resources Code in effect at the time of the relevant events, except where otherwise noted.
2 "Regulations" references are to title 14 of the California Code of Regulations in effect at the time of the events discussed herein.
3 Though DRRR replaced the Board in 2009 (§§ 40400-40401), some statutes continue to use the term "Board." The Legislature did not amend the statutes but instead stated in section 40400 that, "[a]ny reference in any law or regulation to [the Board] shall hereafter apply to the Department of Resources Recycling and Recovery. ..." We shall use the term "Board" because that was the entity which handled this case.
4 Section 45031 states: "Within 30 days from the date that an appeal is filed with the [B]oard, the [B]oard may do any of the following: [¶] (a) Determine not to hear the appeal if the appellant fails to raise substantial issues. [¶] (b) Determine not to hear the appeal if the appellant failed to participate in the administrative hearing [without good cause]. ... [¶] (c) Determine to accept the appeal and to decide the matter on the basis of the record before the hearing panel, or based on written arguments submitted by the parties, or both. [¶] (d) Determine to accept the appeal and hold a hearing, within 60 days, unless all parties stipulate to extending the hearing date."
5 Section 50001 states: "(a) Except as provided by subdivision (b), after a countywide or regional agency integrated waste management plan has been approved by [DRRR] pursuant to Division 30 (commencing with Section 40000 ), no person shall establish or expand a solid waste facility, as defined in Section 40194, in the county unless the solid waste facility meets one of the following criteria: [¶] (1) The solid waste facility is a disposal facility or a transformation facility, the location of which is identified in the countywide siting element or amendment thereto, which has been approved pursuant to Section 41721. [¶] (2) The solid waste facility is a facility which is designed to, and which as a condition of its permit, will recover for reuse or recycling at least 5 percent of the total volume of material received by the facility, and which is identified in the nondisposal facility element or amendment thereto, which has been approved pursuant to Section 41800 or 41801.5. [¶] (b) Solid waste facilities other than those specified in paragraphs (1) and (2) of subdivision (a) shall not be required to comply with the requirements of this section. [¶] (c) The person or agency proposing to establish a solid waste facility shall prepare and submit a site identification and description of the proposed facility to the task force established pursuant to Section 40950 [county convenes local task force every five years to assist in development of goals and plans]. Within 90 days after the site identification and description is submitted to the task force, the task force shall meet and comment on the proposed solid waste facility in writing. These comments shall include, but are not limited to, the relationship between the proposed solid waste facility and the implementation schedule requirements of Section 41780 and the regional impact of the facility. The task force shall transmit these comments to the person or public agency proposing establishment of the solid waste facility, to the county, and to all cities within the county. The comments shall become part of the official record of the proposed solid waste facility. [¶] (d) The review and comment by the local task force required by subdivision (c) for amendment to an element may be satisfied by the review required by subdivision (a) of Section 41734 for an amendment to an element." (Italics added.)
STATUTORY/REGULATORY OVERVIEW
The Waste Management Act establishes a comprehensive program for solid waste management. (§ 40002.) It established the Board, and subsequently DRRR, with power to enforce the Waste Management Act with corrective action orders, cease and desist orders, cleanup orders, and civil penalties. (§§ 40400-40510, 43300, 45000, 45005, 45010-45024; San Elijo Ranch, Inc. v. County of San Diego (1998) 65 Cal.App.4th 608 , 613-614, 76 Cal.Rptr.2d 601 ( San Elijo Ranch ).) Section 40052 states: "The purpose of this division is to reduce, recycle, and reuse solid waste generated in the state to the maximum extent feasible in an efficient and cost-effective manner to
7 As we explain post , we deny the County LEA's request for judicial notice filed August 8, 2012, while this appeal was pending. We note the administrative record appears to be missing pages 7 and 8, but it does not appear they are of consequence to this appeal.
Under section 41701, "Each countywide siting element and revision thereto shall include, but is not limited to, all of the following: [¶] (a) A statement of goals and policies for the environmentally safe transformation or disposal of solid waste that cannot be reduced, recycled, or composted. [¶] (b) An estimate of the total transformation or disposal capacity in cubic yards that will be needed for a 15-year period to safely handle solid wastes generated with the county that cannot be reduced, recycled, or composted. [¶] (c) The remaining combined capacity of existing solid waste transformation or disposal facilities existing at the time of the preparation of the siting element, or revision thereto, in cubic yards and years. [¶] (d) The identification of an area or areas for the location of new solid waste transformation or disposal facilities, or the expansion of existing facilities, that are consistent with the applicable city or county general plan, [[10] ] if the county
8 " 'Transformation' means incineration, pyrolysis, distillation, or biological conversion other than composting. [It] does not include composting, gasification, or biomass conversion." (§ 40201.)
9 Section 41702 provides: "An area is consistent with the city or county general plan if all of the following requirements are met: [¶] (a) The city or county adopted a general plan which complies with the requirements of Article 5 (commencing with Section 65300) of Chapter 3 of Division 1 of Title 7 of the Government Code. [¶] (b) The area reserved for a new solid waste facility or the expansion of an existing solid waste facility is located in, or coextensive with, a land use area designated or authorized for solid waste facilities in the applicable city or county general plan. [¶] (c) The land use authorized in the applicable city or county general plan adjacent to or near the area reserved for the establishment of new solid waste transformation or disposal of solid waste or expansion of existing facilities is compatible with the establishment or expansion of the solid waste facility."
10 A 2011 amendment substituted "shall not" for "may not." (Stats. 2011, ch. 476, § 14.) This did not change the meaning; " 'may' " can be mandatory where permissive use would render a statute's criteria illusory. ( California Correctional Peace Officers Assn. v. Tilton (2011) 196 Cal.App.4th 91 , 99, 126 Cal.Rptr.3d 623 .)
11 The provision allowing changes through modification, rather than revision, of the permit, was added in 2011 (§ 44004, amended by Stats. 2011, ch. 476, § 14, eff. Jan. 1, 2012), after the events at issue in this appeal. The legislative history of the 2011 legislation includes a bill analysis stating: "An operator of a solid waste facility cannot make a significant change to design or operation unless specified criteria are met and approved by the LEA. And, depending on the modification, the [Board] must also approve the change. This bill attempts to clarify that if an operator is proposing changes to the facility that are within the permitted parameters that those changes would trigger a permit modification rather than a full permit revision. However, the language proposed in the bill requires clarification to accomplish this." (Sen. Com. on Environmental Quality, Analysis of Assem. Bill No. 341 (2011-2012 Reg. Sess.) as amended May 5, 2011, p. 6.)
The LEA may issue the permit only "if it finds that the proposed solid waste facilities permit is consistent with this division and any regulations adopted by the [B]oard pursuant to this division [Division 30, Waste Management, § 40000 et seq. ] applicable to solid waste facilities." (§ 44008, subd. (b).) "The enforcement agency shall issue the permit only if it finds that the proposed solid waste facilities permit is consistent with the standards adopted by the [B]oard." (§ 44010.) The permit shall contain conditions determined appropriate by the LEA. (§ 44014.) The LEA may issue a revised permit only after sending a copy to the Board, which may concur or object and must object if the permit is inconsistent with the statutes and regulations (§§ 44004, subd. (h), 44007, 44009).
If the Board objects to the proposed changes, the LEA shall consider the objections. (§ 44009, subd. (a)(2) [Board "shall submit those objections to the [LEA] for its consideration"].) If the Board does not concur or object within 60 days, it is deemed to have concurred in issuance of the permit. (§ 44009, subd. (a)(1).) The LEA shall issue, modify, or revise a permit "if the [B]oard has concurred in that issuance, modification, or revision of the permit pursuant to Section 44009." (§ 44014, subd. (a).) The permit shall contain conditions determined appropriate by the LEA. (§ 44014, subd. (b).)
In addition to these provisions regarding modification of permits, section 50001 speaks of establishment or expansion of solid waste facilities. (See fn. 5, ante .) Section 50001 provides that, after a LEA has a state-approved CIWMP in place, "a person shall not establish or expand a solid waste facility, as defined in Section 40194, in the county unless" (1) it is a disposal facility (like Potrero Hills), "the location of which is identified" in the countywide siting element or amended siting element, or (2) it meets specified recycling requirements and is identified in a nondisposal facility element or updated element. (§ 50001, see fn. 5, ante , italics added.)
If the LEA in issuing a permit fails to act as required by law, "any person" may petition the LEA for a hearing (§ 44307), which may be heard by an
14 Section 41770 provides: "(a) Each countywide or regional agency integrated waste management plan, and the elements thereof, shall be reviewed, revised, if necessary, and submitted to the board every five years in accordance with the schedule set forth under Chapter 7 (commencing with Section 41800 [Board approval].) [¶] (b) Any revisions to a countywide or regional agency integrated waste management plan, and the elements thereof, shall use a waste disposal characterization method that the board shall develop for the use of the city, county, city and county, or regional agency. The city, county, city and county, or regional agency shall conduct waste disposal characterization studies, as prescribed by the board, if it fails to meet the diversion requirements of Section 41780 [diverting from disposal to recycling], at the time of the five-year revision of the source reduction and recycling element. [¶] (c) The board may review and revise its regulations governing the contents of revised source reduction and recycling elements to reduce duplications in one or more components of these revised elements."
15 Regulations section 18788 provides in part: "Prior to the fifth anniversary of Board approval of the CIWMP ..., or its most recent revision, the LTF [local task force] shall complete a review ... to assure that the county's ... waste management practices remains consistent with [statutory] waste management practices .... [¶] ... [¶] (3) ... [The] Review Report ... shall address .... [¶] ... [¶] (B) changes in quantities of waste within the county ... [¶] ... [¶] (F) changes in permitted disposal capacity, and quantities of waste disposed of .... [¶] ... [¶] (4) ... [The Board shall review the Review Report and approve or disapprove it and identify areas needing revision]. [¶] (b) ... If a revision is necessary the county ... shall [revise and resubmit its CIWMP] ...."
The siting element, in addition to describing the Potrero Hills Landfill as it existed at that time, discussed an anticipated expansion of Potrero Hills that has since been processed and is not at issue in this appeal. The siting element said: "When [Potrero Hills Landfill] decides to move forward with its proposed landfill expansion, additional CEQA environmental analysis will be required. A part of this analysis will include a siting criteria evaluation to determine whether the proposed landfill expansion conforms to the Solano County Countywide Siting Element solid waste disposal facility siting criteria." A map showed a proposed expansion area to the east of the existing Potrero Hills Landfill.[17] A five-year review by the LEA in 2002 found no changes from the operations allowed by the 1996 permit.
In 2006, Potrero Hills initially proposed a design change increasing the landfill height as well as other significant
16 As set forth in Potrero Hills' unopposed request for judicial notice granted by the trial court, Potrero Hills applied for this expansion (which is unrelated to the expanded operations at issue in this appeal) in 2002 and, after environmental review, received a new land use permit from the county in 2005. SPRAWLDEF and others filed a lawsuit in Solano County Superior Court, which in February 2007 found the environmental impact review (EIR) was deficient under the California Environmental Quality Act (CEQA, § 21000 et seq.). After EIR revisions, the Solano County Superior Court ultimately found the EIR adequate and discharged its writ in November 2009.
As noted, a petitioner's request for a hearing must include a statement of the issues. (§ 44310, subd. (a)(1).) SPRAWLDEF's administrative petition to the LEA did not include the conformance issue. Instead, the petition set forth a list of six other issues.[20] As we will discuss post , SPRAWLDEF attempts on appeal to shoehorn the conformance issue into the sixth issue it listed in its petition: "6. The
19 The first five issues listed were the following: "1. The LEA failed to reject or condition the landfill permit application due to repeated violations of state minimum operating standards relating to consistent and unabated litter from landfill operations which has significant aesthetic impact as well as impact on the surrounding marshlands and grassland ecology, and the natural life of the marshlands and grasslands. [¶] 2. The LEA failed to reject or condition the landfill permit application due to defective leachate discharge operations at the landfill, including but not limited to the destruction of pumps and outflow systems by the weight of landfill tonnage. [¶] 3. The LEA failed to reject or condition the landfill permit to prevent or limit the impact of noise and lighting from both the landfill operations and trucking to the landfill which would detrimentally impact the habitat and viability of marshland species. [¶] 4. The LEA failed to reject or condition the landfill permit application on the basis that it misstated, improperly counted, or otherwise misrepresented materials counted as alternative daily cover, recycling or beneficial use, in violation of state regulations, statutes or policies. The proposed permitted level of tonnage accepted for disposal is therefore inaccurate and fails to properly state the expected landfilled tonnages into the facility. [¶] 5. The LEA failed to reject or condition the landfill permit application for failing to properly provide and describe slopes stability standards and construction."
The LEA rejected the request for an administrative hearing. SPRAWLDEF filed a petition for writ of mandate in Solano County Superior Court, which denied the petition but was reversed by the Court of Appeal, First Appellate District, Division Three, which in October 2008 published an opinion holding SPRAWLDEF was entitled to a hearing under section 44307. ( Sustainability of Parks, Recycling & Wildlife Legal Defense Fund v. County of Solano Dept. of Resource Management (2008) 167 Cal.App.4th 1350 , 1353, 84 Cal.Rptr.3d 889 ( SPRAWLDEF I ).)
On May 18, 2009, the LEA hearing was held before an independent hearing panel. (§ 44308.)
During the hearing panel's discussion of issue number 6, one panel member said, "Item number six was a little -- very wide ranging in terms of diversion goals and talking about tipping fees and all that stuff. [¶] I know that tipping fees are basically market driven and, you know, ... if you're trying to compare things to San Francisco or Alameda County, stuff in Solano County is going to be cheaper. [¶] I do know that there was some concern about, you know, there's plenty of landfill capacity, there was evidence -- or there was information that was submitted to this panel regarding unused capacity and how much capacity there is in landfills. [¶] It seemed to me that the argument was about not allowing the landfill to expand, but I don't believe that that's the issue being brought to us right -- today. The issue is about whether or not the LEA failed to reject or condition the landfill application. The application was not necessarily for an expansion of a landfill. ..." Another panel member said, "For me it wasn't a decision about whether or not we should have allowed the expansion in the first place, but whether or not the LEA did what it was supposed to do. [¶] So leaving aside the issue of whether the permit should have ever been granted in the first place, I am completely satisfied as to the issues that have been before this panel today, the applicant or the petitioner has not met their burden." SPRAWLDEF did not disagree with the panel members that the hearing was not about expansion.
In May 2009, the hearing panel issued its written "DECISION ON SUBMITTED MATTER," concluding SPRAWLDEF failed to show that the LEA failed to act as required by law or regulation in issuing the revised permit to Potrero Hills. Regarding issue No. 6 (tipping fees), the hearing panel stated: "Considerable evidence was presented concerning tipping
In June 2009, SPRAWLDEF appealed the hearing panel's decision to the Board. There, SPRAWLDEF argued for the first time that the revised permit did not "conform" to the description in the siting element, and the siting element had not been amended with a proper description of the expanded operations. Although section 50001 (see fn. 5, ante ) allows expansion of a landfill "the location of which is identified" ( ibid. ) in the siting element, SPRAWLDEF argued that other statutes and regulations made it clear that a "description" of proposed expanded operations, not mere identification of location, was required in the siting element in order to approve a revised permit.
The Board gave notice that, at its regular meeting on July 21, 2009, it would consider whether or not to hear the appeal (§ 45031, see fn. 4, ante ) in "an informal hearing considering what is essentially a legal matter - has SPRAWLDEF properly raised substantial issues in its appeal." The Board advised the parties that, "[f]ollowing the hearing, the Board may decide the matter in open session or may retire to closed session to deliberate." No one objected.
At the meeting, the Board heard arguments as to whether the Board should decline to hear the appeal on the ground the conformance issue was a new issue which had not been raised before the hearing panel.
The Board then went into closed session to deliberate. Again, no one objected to deliberations in closed session. The Board returned and informed the parties that the appeal was rejected, and a written decision would follow. The written decision, dated July 22, 2009, showed the vote was unanimous, and said the Board decided not to hear the administrative appeal based on "three separate and independent grounds," as follows:
"First, SPRAWLDEF appealed to the Board an issue that [SPRAWLDEF] did not raise in its 2006 Petition and did not raise to the [h]earing [p]anel.
21 Waste collection fees are within the purview of county or a local governmental agency. (§ 40059.)
"Second, SPRAWLDEF has submitted no legal authority for its contention that the LEA has a duty or the authority to deny or condition a proposed solid waste facilities permit on the ground that tipping fees differ among landfills in various counties in the region, even if, as
"For these reasons, SPRAWLDEF failed to raise a substantial issue in its Appeal to the Board. Because SPRAWLDEF failed to raise a substantial issue in its Appeal, the Board, acting pursuant to Section 45031(a) determines that it will not hear the Appeal."
On August 20, 2009, SPRAWDEF filed a petition for writ of mandate and complaint
23 On appeal, the Board's successor, DRRR, says the Board decided "that because SPRAWLDEF's conformance argument was not exhausted below, it was not substantial." The County makes the same assertion. This assertion misreads the Board's written decision. The Board said the issue was insubstantial because it lacked merit. We observe that the Board's staff counsel told the Board that it had discretion to consider the new issue if the Board thought it substantial, even though the issue had not been raised at the county level. The County appears to argue the Board must decline to consider new issues. We need not go that far. We read the Board's decision as saying that, in determining whether the administrative appeal raised a substantial issue, the Board did not need to consider the new issue, and even if the Board were to consider it, it failed on the merits.
"WHEREAS, at those hearings and workshops, the Board received an overwhelming amount of testimony indicating that there had been specific legislative intent to limit the 'Post-Gap' finding to a requirement that a facility's location be identified in the CSE [countywide siting element] or NDFE [nondisposal facility element], but not require (as had been during the 'Gap') that the facility's description be in conformance with the description in the CSE or NDFE.
"NOW, THEREFORE, BE IT RESOLVED that in considering proposed Solid Waste Facility Permits, the Board shall interpret PRC 50001 to only require a finding that the facility's location be identified in the CSE or NDFE, either by the facility address or general location on a map, and shall not review the facility's conformance to the description set forth in those documents for the purposes of this finding."[26]
After hearing argument, the trial court on September 28, 2010, issued its written order denying the mandamus petition and declaratory relief complaint and entered judgment.
Regarding the open meeting law, the trial court noted SPRAWLDEF had received advance notice in the formal notice of hearing that the Board may choose to deliberate in closed session, yet SPRAWLDEF never objected. The trial court cited Government Code section 11126, subdivision (c)(3), which allows closed deliberations in proceedings required
25 SPRAWLDEF notes the Board did not promulgate any regulation on this point.
The trial court then determined that the doctrine of exhaustion of administrative remedies applies to an administrative appeal to the Board; the tipping fee issue raised before the hearing panel was not equivalent to the conformance issue raised for the first time in the administrative appeal to the Board; the failure to raise the conformance issue at the county level afforded a proper basis for the Board to determine absence of a substantial issue for administrative appeal; the Board was not required to hear the case as an appeal from its own deemed concurrence in the revised permit; and SPRAWLDEF failed to show a substantial issue regarding tipping fees. The trial court also rejected SPRAWLDEF's claim for declaratory relief to declare that an expansion must be described in a siting element, because declaratory relief is unavailable when the Legislature has designated a remedy to review administrative action. (See County of Los Angeles v. State Water Resources Control Bd . (2006) 143 Cal.App.4th 985 , 1002, 50 Cal.Rptr.3d 619 .)
DISCUSSION
I.-IV.[27]
V. Preserving All Issues at Each Administrative Stage
SPRAWLDEF argues the Board, as an administrative agency, lacked authority to invoke the judicial doctrine of exhaustion of administrative remedies. We conclude the Board had discretion to find that SPRAWLDEF forfeited the conformance issue by failing to preserve it at all stages of the administrative proceedings.
The real issue here is not exhaustion of administrative remedies, but "a corollary principle to the doctrine that administrative remedies must be exhausted. That principle is: a litigant must fully present its arguments and evidence at the administrative hearing. ' "Before seeking judicial review a party must show that he has made a full presentation to the administrative agency upon all issues of the case and at all prescribed stages of the administrative proceedings ." ' [Citation.] 'The requirement that a litigant present his or her arguments and evidence fully at the administrative hearing level is analogous to the doctrine of exhaustion of administrative remedies,
** * See footnote *, ante .
Here, we observe that while there is a legal question as to whether a revised permit must conform to the siting element, there are also factual disputes, e.g., what constitutes "expansion,"[28] whether the revised permit reflects an expansion, and whether the expansion conflicts with the siting element. SPRAWLDEF views the revision as an enormous expansion of operations, while its opponents disagree. These are matters that would have been fleshed
30 Indeed, it is not a foregone conclusion that extending operation hours, as opposed to expanding physical area, is an expansion within the meaning section 50001. SPRAWDEF assumes that it is, but did not specifically address this issue in its briefing.
SPRAWLDEF quotes from this court's opinion in Tahoe Vista, supra , 81 Cal.App.4th 577 , 96 Cal.Rptr.2d 880 , that the purpose of the doctrine of exhaustion of administrative remedies "is fully served when parties raise all issues before the administrative body with ultimate or final responsibility to approve or disapprove the project, even if those issues were not raised before subsidiary bodies in earlier hearings." ( Id . at p. 594, 96 Cal.Rptr.2d 880 , citing Browning-Ferris Industries v. City Council (1986) 181 Cal.App.3d 852 , 860, 226 Cal.Rptr. 575 ( Browning-Ferris ).) However, LEA is not a mere subsidiary body, but rather has independent authority as an enforcement agency to issue revised landfill permits (§ 44008), though it must consider any objections raised by the Board ( § 44009 ) and is subject to discretionary review by the Board ( § 45031 ). (See generally §§ 43200-43222, 44300-44310; No Wetlands Landfill Expansion v. County of Marin (2012) 204 Cal.App.4th 573 , 581-582, 138 Cal.Rptr.3d 873 [approval of landfill permit is vested in LEA, not the county itself].)
Moreover, Tahoe Vista was a CEQA case subject to CEQA's specific exhaustion requirements. There, the county planning commission was a subsidiary body to the county board of supervisors, and the county code expressly stated that an issue had to be presented to the planning commission first in order to be considered by the board of supervisors. ( Tahoe Vista, supra , 81 Cal.App.4th at p. 592, 96 Cal.Rptr.2d 880 .) The appellants had raised the issue at the first level but failed to raise it to the
SPRAWLDEF argues the instant case is like Citizens for Open Government, supra , 144 Cal.App.4th 865 , 50 Cal.Rptr.3d 636 . In that CEQA case, the court held that a citizens' group, which voiced its objections at planning commission hearings and had its contentions reviewed by the city council in an administrative appeal filed by another party , could pursue mandamus relief in the trial court, even though the citizens' group had not filed its own administrative appeal to the city council. That scenario is clearly different from the circumstances presented here. SRAWLDEF quotes language from that case, that the city code did not require specification of issues for an administrative appeal, and the city council gave independent and new consideration of the matter as the final decisionmaker. ( Id . at p. 877, 50 Cal.Rptr.3d 636 .) However, the appellate court observed that CEQA expressly requires a final decision by an elected body, and exhaustion of administrative remedies turns on procedures specific to the particular public agency. ( Id . at p. 876, 50 Cal.Rptr.3d 636 .) SPRAWLDEF argues section 45030 requires only that the administrative appellant raise a substantial issue; it does not require that the issue must have been raised before the LEA. However, as we have noted, here Board review is discretionary, unlike in CEQA cases where the decision must be made by an elected body.
SPRAWLDEF argues this court should consider the issue even if it was not raised to the LEA, because section 45041 states: "The evidence before the court shall consist of the records before the hearing panel or hearing officer and the board ... and any other relevant evidence that, in the judgment of the court, should be considered to effectuate and implement the policies of this division ." (Italics added.) In its reply brief, SPRAWLDEF suggests for the first time that the Board should have considered the issue even if it was not raised to the LEA, because section 45032[29]
31 Section 45032 provides: "(a) In the [B]oard's hearing on the appeal, the evidence before the board shall consist of the record before the hearing panel or hearing officer, relevant facts as to any actions or inactions not subject to review by a hearing panel or hearing officer, the record before the [LEA], written and oral arguments submitted by the parties, and any other relevant evidence that, in the judgment of the [ B ] oard, should be considered to effectuate and implement the policies of this division. [¶] (b) The [B]oard may only overturn an enforcement action, and any administrative civil penalty, by a [LEA] if it finds, based on substantial evidence, that the action was inconsistent with this division. If the [B]oard overturns the decision of the [LEA], the hearing panel, or the hearing officer, or finds that the enforcement agency has failed to act as required, the board may do both of the following: [¶] (1) Direct that the appropriate action be taken by the [LEA]. [¶] (2) If the [LEA] fails to act by the date specified by the [B]oard, take the appropriate action itself." (Italics added.)
Additionally, as stated by the trial court, the importance of preserving issues at all administrative stages is reflected in the Legislature's 2008 repeal of former section 45033,[30] which had provided that a person could file a court action despite failure to appeal to a hearing panel or the Board. The legislative history of the bill in which former section 45033 was repealed did not address the appeal specifically but indicated, "This bill revises the enforcement responsibilities of the solid waste law, as specified," and further stated, "[a]ccording to the sponsor, [the Board], there are gaps in the statutory authority of [the Board] that impede the agencies from taking enforcement actions to protect the public health and the environment from illegal or inappropriate solid waste disposal and solid waste handling practices. This proposal will fill in those gaps with the necessary language that clarifies [the Board] and LEA responsibilities." (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading of Assem. Bill No. 2679 (2007-2008 Reg. Sess.) as amended Aug. 14, 2008, pp. 1, 5.)
We conclude the Board was not required to entertain the administrative appeal of the conformance issue, because that issue was not presented to the LEA.
VI. The Board's Decision on the Merits
Despite declining to entertain the administrative appeal, the Board went further
32 Former section 45033 stated: "A failure to appeal to the hearing panel, the hearing officer, or the board for review, or the refusal of the [LEA], a hearing panel, the hearing officer, or the board to hear an appeal does not preclude a person from filing an action with the superior court to contest any action or inaction of the [LEA] or the board." (Added by Stats. 1995, ch. 952, § 35, repealed by Stats. 2008, ch. 500, § 34, eff. Jan. 1, 2009.)
In construing a statute, "our fundamental task is 'to ascertain the intent of the lawmakers so as to effectuate the purpose of the statute.' [Citations.] We begin by examining the statutory language because it generally is the most reliable indicator of legislative intent. [Citation.] We give the language its usual and ordinary meaning, and 'if there is no ambiguity, then we presume the lawmakers meant what they said, and the plain meaning of the language governs.' [Citation.] If, however, the statutory language is ambiguous, 'we may resort to extrinsic sources, including the ostensible objects to be achieved and the legislative history.' [Citation.] Ultimately we choose the construction that comports most closely with the apparent intent of the lawmakers, with a view to promoting rather than defeating the general purpose of the statute. [Citations.] Any interpretation that would lead to absurd consequences is to be avoided." ( Allen v. Sully-Miller Contracting Co . (2002) 28 Cal.4th 222 , 227, 120 Cal.Rptr.2d 795 , 47 P.3d 639 .) While in exercising our independent judgment regarding the construction of a statute we may give deference to an agency's interpretation ( Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal.4th 1 , 7-8, 78 Cal.Rptr.2d 1 , 960 P.2d 1031 ), no such deference is required here given the plain language of the statute.
Section 50001, subdivision (a), provides that a waste facility cannot be "established or expanded" unless it is (1) a disposal facility "the location of which" is identified in the "countywide siting element," or (2) a facility that recycles at least five percent of its waste that is identified in a nondisposal facility element. (See fn. 5, ante .) To "establish" a facility, subdivision (c) of section 50001 adds additional requirements of "identification and description." Subdivision (c) does not address expansions. Thus, for expansions, the statute only requires that the location of the disposal facility appear in the siting element. It does not require that the siting element be changed so that the expansion conforms with the siting element.
SPRAWLDEF's position-that an expansion must be described in the countywide siting element in order for a revised permit to issue-would require us to judicially delete from the statute the words "the location of" (see fn. 5, ante ). Principles of statutory construction require that we avoid interpretations that would render some words surplusage. ( Grupe Development Co. v. Superior Court (1993) 4 Cal.4th 911 , 921, 16 Cal.Rptr.2d 226 , 844 P.2d 545 .) Moreover, it would require that we read into the statute language not
Cases cited
- In re Electric Refund Cases 184 Cal.App.4th 1490 p. 414
- Harris v. Alcoholic Beverage Control Appeals Board 197 Cal.App.2d 182 p. 414
- Harris v. Alcoholic Beverage Control Appeals Board 245 Cal.App.2d 919 p. 414
- Tahoe Vista Concerned Citizens v. County of Placer 81 Cal.App.4th 577 p. 415, p. 698
- Hormel v. Helvering 312 U.S. 552 at 557, at 1041 p. 415
- Citizens for Open Government v. City of Lodi 144 Cal.App.4th 865 p. 415, p. 699
- Browning-Ferris Industries v. City Council 181 Cal.App.3d 852 p. 416, p. 698
- San Elijo Ranch, Inc. v. County of San Diego 65 Cal.App.4th 608 p. 682
- Sustainability of Parks, Recycling & Wildlife Legal Defense Fund v. County of Solano Department of Resource Management 167 Cal.App.4th 1350 p. 690
- County of Los Angeles v. California State Water Resources Control Board 143 Cal.App.4th 985 p. 695
- No Wetlands Landfill Expansion v. County of Marin 204 Cal.App.4th 573 p. 698
- Reichardt v. Hoffman 52 Cal.App.4th 754 p. 700
- Librers v. Black 129 Cal.App.4th 114 p. 701
- Allen v. Sully-Miller Contracting Co. 28 Cal.4th 222 p. 701
- Yamaha Corp. of America v. State Board of Equalization 19 Cal.4th 1 p. 701
- Grupe Development Co. v. Superior Court 4 Cal.4th 911 p. 701
- People v. Connor 115 Cal.App.4th 669 p. 702
- Jurcoane v. Superior Court 93 Cal.App.4th 886 p. 702
- Yao v. Superior Court 104 Cal.App.4th 327 p. 702