Opinion
NOT TO BE PUBLISHED
APPEALS from judgments of the Superior Court of Los Angeles County Nos. BS111277, BS111322, BS116431, John A. Torribio, Judge.
Carmen A. Trutanich, City Attorney, and Claudia McGee Henry, Senior Assistant City Attorney for Plaintiffs and Appellants City of Los Angeles and Community Redevelopment Agency of the City of Los Angeles.
Communities for a Better Environment, Adrienne L. Bloch and Shana Lazerow for Plaintiff and Appellant Communities for a Better Environment.
Kamala D. Harris, Attorney General, and Thomas G. Heller, Deputy Attorney General, for Defendant and Respondent California Department of Toxic Substances Control.
Law Offices of Claudia C. Bohorquez and Claudia C. Bohorquez for Real Party in Interest and Respondent Industrial Service Oil Company, Inc.
JACKSON, J.
INTRODUCTION
Appellants City of Los Angeles, Community Redevelopment Agency of the City of Los Angeles, and Communities for a Better Environment appeal from judgments in favor of respondents California Department of Toxic Substances Control and Industrial Service Oil Company, Inc. after issuance of an order denying appellants’ petitions for a writ of administrative mandamus. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Additional facts relevant plaintiffs’ contentions on appeal are set forth in the discussion.
Since 1974, Industrial Service Oil Company, Inc. (Industrial) has operated a petroleum recycling facility for used oil and a transfer facility for spent antifreeze at the same location at 1701 South Soto Street in Los Angeles. The Industrial property originally consisted of a 2.7 acre parcel and was expanded in 2003 by an additional approximately 2.6 acres. The facility is in a heavy industrial area and is surrounded by industrial land uses.
For compliance with California’s hazardous waste management program, founded in the late 1970’s, Industrial began the process of obtaining a hazardous waste facility permit in 1986 by submitting an application for a Part A interim status permit to the California Department of Toxic Substances Control (Department). Department is the state agency responsible for issuing hazardous waste facility permits and otherwise enforcing California’s hazardous waste laws. (Health & Saf. Code, §§ 25111, 25200.) Department issued a Part A interim status permit to Industrial in May 1986, which was subsequently modified to add operations and facilities in 1989 and 2004. The Part A interim status permit allowed Industrial to continue to treat, store, recycle, and transfer used oil and oil/water mixtures and to accept antifreeze for transfer purposes—to be treated elsewhere while Industrial’s application for the Part B final permit was processed.
Industrial submitted a Part B Permit (Permit) application in 1988, with eight revisions thereafter, the last one made in August 2005. Industrial’s Permit application requested authorization for the then-current operation as well as expanded operations and facilities including increased tank and container storage capacity, installation of waste water treatment facilities, oil sludge processing equipment, antifreeze recycling, treating additional streams of hazardous wastes regulated by California and the federal Resource Conservation and Recovery Act (RCRA) (42 U.S.C. § 6901 et seq.), handling operations for bulk waste (including increased rail car loading/unloading facilities), solids stabilization treatment, and waste fuels blending facilities.
Department, acting as the lead agency, initiated the associated environmental assessment process required by the California Environmental Quality Act (CEQA) by issuing a notice of preparation (NOP) of an environmental impact report (EIR) in October 1995. Ten years later, in November 2005, Department issued a draft environmental impact report (DEIR) together with a draft permit. Department issued a notice of a 60-day public comment period to begin December 15, 2005 and end on February 13, 2006, and it subsequently extended the public comment period for 60 more days to April 14, 2006. In January, Department held a public hearing to receive comments on the draft Permit and DEIR. The Community Redevelopment Agency of the City of Los Angles (CRA) and Communities for a Better Environment (CBE) submitted multiple sets of comments; the City of Los Angeles (City) did not submit comments.
In its written response to public comments dated December 18, 2006, Department explained: “[T]he timeframe for preparation and completion of the draft EIR was extended to allow the applicant additional time to submit clarifying information about the project in order for [Department] to deem the application complete, and to allow for a full understanding of all aspects of the project so that a thorough analysis of potential impacts could be undertaken. The preparation of the DEIR began in 1995 and was periodically revised and updated to reflect changes required by [Department] to ensure that the final document accurately reflects all project activities and potential impacts.... Department determined that the application was complete as of December 14, 2005.”
A member of the Los Angeles City Council, Jose Huizar, submitted a letter dated February 8, 2006 to Department, but the letter did not purport to provide comments on the DEIR on behalf of City. The letter included requests for a 60-day extension of the public comment period, additional public outreach meetings for residents of Boyle Heights, and for the City to be allowed to have input on the project. We note that Department did extend the public comment period for 60 days, and City had the opportunity to have input by submitting comments during the public comment period.
In December 2006, Department issued the final version of the EIR, the Permit and Department’s written response to comments received. The Permit processing period had extended for approximately 10 years after Department issued the NOP and almost 20 years after Industrial filed its Part B permit application. Department revised and reissued the Permit in February 2007.
The Permit allowed Industrial to continue its existing services, with increased processing capability, to add services to recycle waste antifreeze, and to expand its facilities. No hazardous waste disposal was permitted, nor has such disposal occurred at Industrial.
After Department issued the Permit, CRA and CBE filed appeals; City did not file an appeal. The Permit’s effectiveness was stayed during the ensuing 18-month administrative appeal process. Department issued its Final Decision on Appeal of Permit in June 2008. Most of the appeal comments were denied. The decision made few changes in the Permit. One of the changes was to delete “[t]he second sentence of permit condition V. (2)u., ‘Pursuant to California Health and Safety Code section 25199.3(a) the permit for the proposed units shall not become effective until the applicant is granted a local land use permit.’”
City, CRA and CBE each filed a petition for writ of mandate in the Los Angeles County Superior Court; the three petitions were subsequently consolidated for administrative purposes. They sought a writ of mandate ordering Department to set aside and withdraw its approval of the Permit. They alleged Department abused its discretion in preparing and certifying the EIR. They also alleged Department improperly designated itself as “lead agency” to process Industrial’s permit application, failed to comply with the Tanner Act (Health & Saf. Code, § 25199 et seq.), and failed to review and consider some public comments.
The three cases are (1) City of Los Angeles v. California Department of Toxic Substances Control (Industrial Service Oil Company, Inc., Real Party in Interest) (Super. Ct. L.A. County, 2010, BS116431), (2) Community Redevelopment Agency of the City of Los Angeles v. California Department of Toxic Substances Control (Industrial Service Oil Company, Inc., Real Party in Interest) (Super. Ct. L.A. County, 2010, BS111277), and (3) Communities for a Better Environment v. California Department of Toxic Substances Control (Industrial Service Oil Company, Inc., Real Party in Interest) (Super. Ct. L.A. County, 2010, BS111322).
The trial court issued a written decision and an order denying each petition on January 26, 2010. The court entered three judgments, one against each appellant, on March 15, 2010.
CBE and CRA each filed a notice of appeal, and the two appeals were designated by the same appeal number, B223396. Subsequently, City filed a notice of appeal and its appeal was designated as appeal number B223380. We granted City’s motion to consolidate the three appeals for purposes of briefing, oral argument, and decision, under appeal number B223380. (See Save our Peninsula Committee v. Monterey County Bd. of Supervisors (2001) 87 Cal.App.4th 99, 116, fn. 3.) Although City and CRA filed separate notices of appeal which were given different appeal numbers, City and CRA jointly presented their arguments in a single opening brief and reply brief.
DISCUSSION
Appellants’ primary contention is that the EIR fails to comply with CEQA with regard to several specific matters addressed in the EIR. They also claim that the Permit approval process did not comply with the Tanner Act. We disagree and affirm the judgments.
A. CEQA Challenges
1. The CEQA Process
The California Supreme Court summarized the CEQA process as follows: “With narrow exceptions, CEQA requires an EIR whenever a public agency proposes to approve or to carry out a project that may have a significant effect on the environment[] ([Pub. Resources Code, ] § 21100 [state agencies]; § 21151 [local agencies]; Guidelines, § 15002, subd. (f)(1)[])[, that is, ] ‘a substantial, or potentially substantial, adverse change in the environment.’ ([Pub. Resources Code, ] § 21068; see also Guidelines, § 15002, subd. (g).)... [A]n EIR is ‘an informational document’ and... ‘[the] purpose of an [EIR] is to provide public agencies and the public in general with detailed information about the effect which a proposed project is likely to have on the environment; to list ways in which the significant effects of such a project might be minimized; and to indicate alternatives to such a project.’ ([Pub. Resources Code, ] § 21061; Guidelines, § 15003, subds. (b)-(e).)
“The regulations guiding application of CEQA, found in title 14 of the California Code of Regulations, section 15000 et seq., are often, and will sometimes be here, referred to as the... Guidelines.... ‘In interpreting CEQA, we accord the Guidelines great weight except where they are clearly unauthorized or erroneous.’ [Citation.]” (Communities for a Better Environment v. South Coast Air Quality Management Dist. (2010) 48 Cal.4th 310, 319, fn. 4.)
“Under CEQA, the public is notified that a draft EIR is being prepared ([Pub. Resources Code, ] §§ 21092 and 21092.1), and the draft EIR is evaluated in light of comments received. (Guidelines, §§ 15087 and 15088.) The lead agency then prepares a final EIR incorporating comments on the draft EIR and the agency’s responses to significant environmental points raised in the review process. (Guidelines, §§ 15090, 15132, subds. (b)-(d).) The lead agency must certify that the final EIR has been completed in compliance with CEQA and that the information in the final EIR was considered by the agency before approving the project. (Guidelines, § 15090.) Before approving the project, the agency must also find either that the project’s significant environmental effects identified in the EIR have been avoided or mitigated, or that unmitigated effects are outweighed by the project’s benefits. ([Pub. Resources Code, ] §§ 21002, 21002.1, and 21081; Guidelines, §§ 15091-15093.)” (Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 390-391, fns. omitted.)
2. Standard of Review
In reviewing a trial court’s denial of a writ of mandate to overturn an agency’s decision for compliance with CEQA, we review the administrative record to determine whether the agency prejudicially abused its discretion. (Pub. Resources Code, § 21168.5; Sierra Club v. State Bd. of Forestry (1994) 7 Cal.4th 1215, 1236.) We review “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.)
CEQA provides that an agency abuses its discretion if it “has not proceeded in a manner required by law, ” which we determine de novo, or if the agency’s “determination or decision is not supported by substantial evidence” in the administrative record. (Pub. Resources Code, § 21168.5; Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova, supra, 40 Cal.4th at p. 435.) For CEQA review purposes, “‘[s]ubstantial evidence’... means enough relevant information and reasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions might also be reached.... Argument, speculation, unsubstantiated opinion or narrative, evidence which is clearly erroneous or inaccurate, or evidence of social or economic impacts which do not contribute to or are not caused by physical impacts on the environment does not constitute substantial evidence.” (Guidelines, § 15384, subd. (a).)
In reviewing an agency’s decision under CEQA, we presume the correctness of the decision. (Save Our Peninsula Committee v. Monterey County Bd. of Supervisors, supra, 87 Cal.App.4th at p. 117.) We draw all reasonable inferences from and resolve all conflicts in the evidence in favor of the agency’s decision. (Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 571.) We may not substitute our judgment for that of the agency’s decision makers. (Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 564.) We must, however, “scrupulously enforce all legislatively mandated CEQA requirements.” (Ibid.)
We may overturn the agency’s action only if we further determine that the abuse of discretion is prejudicial. There is no presumption that an error is prejudicial and, in general, insubstantial or de minimis errors are not prejudicial. (Pub. Resources Code, § 21005, subd. (b).) “[P]rejudice generally flows from the violation of a significant CEQA regulation, given the fundamental right of the public to a protected environment and the policies underlying CEQA.” (Environmental Protection Information Center, Inc. v. Johnson (1985) 170 Cal.App.3d 604, 623, fn. 11.) “‘The purpose of CEQA is not to generate paper, but to compel government at all levels to make decisions with environmental consequences in mind.’... [Citation.]” (Laurel Heights Improvement Assn. v. Regents of University of California, supra, 47 Cal.3d at p. 393.) The legislatively declared policy to be accomplished through CEQA is to “take all action necessary to protect, rehabilitate, and enhance the environmental quality of the state.” (Pub. Resources Code, § 21001, subd. (a).) To that end, “noncompliance with the information disclosure provisions of [CEQA] which precludes relevant information from being presented to the public agency, or noncompliance with substantive requirements of [CEQA], may constitute a prejudicial abuse of discretion....” (Id., § 21005, subd. (a).)
We do not review the correctness of the EIR conclusions but only whether the EIR is sufficient as an informative document. (Laurel Heights Improvement Assn. v. Regents of University of California, supra, 47 Cal.3d at pp. 392-393.) “An evaluation of the environmental effects of a proposed project need not be exhaustive, but the sufficiency of an EIR is to be reviewed in the light of what is reasonably feasible.... The courts have looked not for perfection but for adequacy, completeness, and a good faith effort at full disclosure.” (Guidelines, § 15151.) If the EIR fails to include information needed for “‘informed decisionmaking and informed public participation, ’” the statutory goals of the EIR process are thwarted and, therefore, the error is prejudicial. (Save Our Peninsula Committee v. Monterey County Bd. of Supervisors, supra, 87 Cal.App.4th at p. 118.)
3. Notice of Preparation
CEQA requires that, prior to issuing a hazardous waste facilities permit, the lead agency must prepare and certify the completion of an EIR. (Pub. Resources Code, § 21151.1.) CEQA Guidelines section 15082, subdivision (a), provides: “Immediately after deciding that an environmental impact report is required for a project, the lead agency shall send to the Office of Planning and Research and each responsible and trustee agency a notice of preparation stating that an environmental impact report shall be prepared.... [¶] (1) The notice... shall provide... sufficient information describing the project and the potential environmental effects to enable the responsible agencies to make a meaningful response. At a minimum, the information shall include: [¶] (A) Description of the project, [¶] (B) Location..., and [¶] (C) Probable environmental effects of the project.” (See also Pub. Resources Code, § 21080.4, subd. (a); Guidelines, § 15375.) No later than 30 days after receiving the NOP, each notified agency must submit a written response to “specify to the lead agency that scope and content of the environmental information that is germane to the statutory responsibilities of that” agency which must “be included in the [EIR].” (Pub. Resources Code, § 21080.4, subd. (a).) At a minimum, the response must identify the “significant environmental issues and reasonable alternatives and mitigation measures... to have explored in the draft EIR....” (Guidelines, § 15082, subd. (b)(1)(A).)
As previously noted, in 1995, Department determined that an EIR was required for issuance of a Permit, assumed the role of “lead agency, ” and promptly issued the CEQA-required NOP. Department issued the final EIR in 2006. Appellants contend that Department’s failure to update the NOP and to recirculate the DEIR to cover certain expansions made in the operations to be permitted (Project) during the approximately 10-year process constituted a prejudicial abuse of discretion. They claim that, given the expansions, the NOP failed to achieve its essential purpose, to wit, to apprise responsible agencies and other interested persons of the “potential environmental effects” of the Project so that each could make a “meaningful response.” (Guidelines, § 15082, subd. (a)(1).) Respondents assert that applicable law did not require the reissuance of an updated NOP or recirculation of the DEIR to address the expansions. Respondents further maintain that the NOP, as originally issued, provided sufficient information about potential environmental impacts and the cited expansions did not change the nature of the impacts. We agree.
Pursuant to Public Resources Code section 21067, “‘Lead agency’ means the public agency which has the principal responsibility for carrying out or approving a project which may have a significant effect upon the environment.” In the criteria for identifying the lead agency, Guidelines section 15051, subdivision (b), states, “If the project is to be carried out by a nongovernmental person or entity, the lead agency shall be the public agency with the greatest responsibility for supervising or approving the project as a whole.” Department is designated by statute as the agency having authority to issue hazardous waste facilities permits. (Health & Saf. Code, §§ 25111, 25200.) No one attempted to initiate the statutory process for resolving any dispute as to which public agency is the “lead agency” for a project. (Pub. Resources Code, § 21165.) Hence, there is no merit to the claims raised by appellants that Department was not the proper “lead agency.”
City and CRA also contend that CEQA required recirculation of the EIR after CRA submitted comments on the DEIR about the redevelopment plans’ goals regarding alleviating conditions of “blight” in the project area. City and CRA cite the CEQA requirement that a DEIR must be renoticed and recirculated if “significant new information is added to [the] report” after the initial notice of availability of the DEIR for public review and before certification of the final EIR. (Pub. Resources Code, § 21092.1; Guidelines, § 15088.5, subd. (a).) Under the circumstances, however, the recirculation requirement did not apply. City and CRA do not cite to any information subsequently added to the EIR as a result of their comments nor explain why any such information would be “new” or “significant.” The California Supreme Court has concluded “that the addition of new information to an EIR after the close of the public comment period is not ‘significant’ unless the EIR is changed in a way that deprives the public of a meaningful opportunity to comment upon a substantial adverse environmental effect of the project or a feasible way to mitigate or avoid such an effect... that the project’s proponents have declined to implement.” (Laurel Heights Improvement Assn. v. Regents of University of California (1993) 6 Cal.4th 1112, 1129.) Review of the DEIR reveals that it did, in fact, analyze the redevelopment plans and determined they were consistent with the Industrial Project. Thus, recirculation of the EIR was not required, in that the public had a meaningful opportunity to comment upon any substantial adverse environmental effect related to the plans.
One expansion cited by appellants was the increase in the size of the Project land area from approximately 2.7 acres in 1995 to approximately 5.3 acres by the time of certification of the EIR, due to Industrial’s purchase of an adjacent parcel of approximately 2.6 acres in 2003. As Industrial explains, however, addition of the land did not result in any expansion of the processing plant or create any types of potential environmental effects not identified in the NOP.
According to CBE, another expansion of the Project evolved through the series of technical corrections and updates of the Permit application made during the 10-year process. The examples of expansions cited by CBE were all increases in capacity rather than changes in the types of activities involved in Industrial’s planned operations. As with the land area expansion, the nature of the potentially significant adverse environmental impacts of the Project described in the NOP did not change as the result of the increases in capacity. The NOP met its statutory mandate to identify “probable environmental effects” of the Project sufficiently to enable each responsible agency to identify the “significant environmental issues and reasonable alternatives and mitigation measures” germane to the agency’s statutory responsibilities which Department should address in the DEIR. (Guidelines, § 15082, subd. (b)(1)(A); see also Pub. Resources Code, § 21080.4, subd. (a); Guidelines, §§ 15082, subd. (a), 15375.)
The application revisions were in response to Department’s requests during the eight years from 1997, when Department rescinded its prior determination the application was technically complete, and when Department made its final determination of application completion in 2005.
Appellants have cited no authority expressly requiring the updating and/or reissuance of an NOP. To the contrary, applicable law requires that the NOP must be issued immediately after a lead agency decides that an EIR is required. (Guidelines, § 15082, subd. (a).) The NOP “should be prepared as early as feasible in the planning process.” (Guidelines, § 15004, subd. (b).) In fact, issuing an NOP at a later time may be sufficient cause to invalidate the subsequent approval of a project. (See, e.g., Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116, 131 & fn. 10, 139.) Essentially, appellants are claiming that the legislative intent to protect the environment through informed decision making which underlies CEQA gives rise to an inference that a supposedly “stale” NOP must be updated and any draft EIR based upon that “stale” NOP must be revised and recirculated. We decline to draw so tenuous an inference, in that it would be inconsistent with the principle that “CEQA is not to be interpreted ‘in a manner which imposes procedural or substantive requirements beyond those explicitly stated in [the CEQA statutes] or... guidelines.’ (Pub. Resources Code, § 21083.1.)” (Martin v. City and County of San Francisco (2005) 135 Cal.App.4th 392, 402.)
CBE argues that Save Tara supports CBE’s claim that a subsequent NOP should have been issued. CBE explains that Save Tara does not mention NOPs, but rather stands for the proposition that “‘EIRS and negative declarations should be prepared as early as feasible in the planning process to enable environmental considerations to influence project program and design and yet late enough to provide meaningful information for environmental assessment.’” (Save Tara v. City of West Hollywood, supra, 45 Cal.4th at p. 129, quoting Guidelines, § 15004, subd. (b).) However, Save Tara does not mention NOPs, but rather the timing for EIRs. Additionally, CBE interprets Guidelines section 15004, subdivision (b), out of the applicable statutory and Guidelines context, which expressly requires the issuance of an NOP “immediately” after the agency determines an EIR will be required for approval of the project. (Pub. Resources Code, § 21080.4, subd. (a); Guidelines, § 15082, subd. (a).) The issue before the court was whether entering into a certain agreement prior to initiating the EIR process constituted an “approval” for the subject project in violation of CEQA, and the court determined that was the case. (Save Tara, supra, at p. 128.) The holding does not support CBE’s claim that the NOP should have been either issued later than it was or updated years after it was issued.
City and CRA also claim the NOP was deficient in its description of the area around the Project, in that the NOP identified only “residences” and stated that the nearest ones were “approximately three quarters of a mile from the facility.” They claim the NOP description should have also included a recreational area, a center for youth operated by the Los Angeles Unified School District, and a senior housing community, which were nearer to the facility, approximately 0.31 to 0.39 miles away. We disagree. That the NOP did not mention a certain playground, school center, and senior housing community was not a CEQA violation. An NOP is not required to list each and every community feature around a proposed project. (Guidelines, § 15082, subd. (a).)
In addition, during the approximately 10-year Permit application process, two redevelopment plans were implemented for areas of the City in which the Industrial facilities were located: the Adelante Eastside Redevelopment Plan, adopted in 1999 (Adelante Plan) and the Boyle Heights Community Plan (Boyle Heights Plan). CRA was not aware of the Project until 2006, when Department contacted CRA. As the agency responsible for reviewing whether proposed projects conformed to the Adelante Plan, CRA requested Department to update and reissue the NOP. Department denied the request. CRA claims the denial was an abuse of discretion.
CRA also contends that Department erred in failing to provide CRA with an administrative draft of the DEIR before it was issued to the public. CRA cites no supporting legal authority; we know of none. The contention is without merit.
CBE contends that, as a result of the abuse of discretion in not updating the NOP to address the redevelopment plans, the EIR did not evaluate the Project’s potential impacts on two categories of information: Population and Housing, and Recreation. The administrative record does not support CBE’s contention. It is true that the two categories are not listed in the EIR as “Environmental Resource Areas Examined.” However, in the discussion entitled “Environmental Resource Areas Not Examined, ” the EIR explains the reasons there was no need to include the categories as examined areas. The proposed Project would require only a small increase in the Industrial workforce of 10 to 12 employees, and such a small increase would not result in a significant impact on either category of possible areas to be examined.
Not only are there no statutory mandates or judicial holdings that support plaintiffs’ claims Department’s failure to update the NOP constituted an abuse of discretion, but their claims are also inconsistent with the differences in the statutory roles of the NOP and the EIR. The NOP is a starting point for gathering information to be analyzed in the DEIR. (Guidelines, § 15082(a)(1).) The final EIR, not the NOP, provides information for decision making. (See Laurel Heights Improvement Assn. v. Regents of University of California, supra, 47 Cal.3d at p. 392.) The law does not require the NOP to be exhaustive in its coverage of features or factors possibly relevant to environmentally-sound decision making. Even the evaluation set forth in the EIR “need not be exhaustive, but the sufficiency of an EIR is to be reviewed in the light of what is reasonably feasible.” (Guidelines, § 15151.)
In any event, the public was adequately informed of the expansion of the Project, the redevelopment plans, and the potential impacts in the Population and Housing as well as the Recreation categories when the public comment period was announced. The notice of public comment on the DEIR and the related fact sheet included explanations of specific increases with regard to rail car storage, the wastewater treatment system, the glycol recovery system, and the waste solids treatment unit. The DEIR discussed the consistency between the redevelopment plans and the Project and explained the potential impacts to Population and Housing as well as Recreation. Thus, the public, including the “responsible and trustee agencies, ” had opportunity to make comments and raise issues as to the adequacy of the DEIR’s consideration of the matters cited by plaintiffs well in advance of Department’s approval and certification of the EIR. The NOP was sufficient to achieve the ultimate goals of the EIR to include information needed for “‘informed decisionmaking and informed public participation.’” (Save Our Peninsula Committee v. Monterey County Bd. of Supervisors, supra, 87 Cal.App.4th at p. 118.)
Having rejected appellants’ claims regarding the NOP, we need not address Department’s argument that CRA and CBE lack standing to assert the claim that, in the absence of an update, the NOP failed to enable other agencies and interested persons to provide comments or mitigation suggestions for the Project.
4. Reasonable Range of Alternatives
Appellants contend that the EIR did not adequately evaluate a reasonable range of alternatives to the Project as proposed. CBE claims that the EIR should have evaluated a reduced development alternative in addition to the three alternatives considered. Further, according to CBE, the EIR analysis of the “facility relocation alternative” was inadequate, in that it included three regions or cities but did not describe any particular site within any of them. We disagree.
In In re Bay-Delta etc. (2008) 43 Cal.4th 1143, the California Supreme Court explained the criteria for evaluating whether an EIR adequately sets forth a reasonable range of alternatives as follows: “The basic framework for analyzing the sufficiency of an EIR’s description of alternatives is set forth by the Legislature in CEQA, by the Governor’s Office of Planning and Research in the CEQA Guidelines... and by this court in [Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553 (Goleta)]. CEQA requires that an EIR, in addition to analyzing the environmental effects of a proposed project, also consider and analyze project alternatives that would reduce adverse environmental impacts. ([Pub. Resources Code], § 21061; see also id., §§ 21001, subd. (g), 21002, 21002.1, subd. (a), 21003, subd. (c); Goleta, supra, 52 Cal.3d at pp. 564-565....) The CEQA Guidelines state that an EIR must ‘describe a range of reasonable alternatives to the project... which would feasibly attain most of the basic objectives of the project but would avoid or substantially lessen any of the significant effects of the project....’ ([Guidelines], § 15126.6, subd. (a).) An EIR need not consider every conceivable alternative to a project or alternatives that are infeasible. (Ibid.; see also Goleta, supra, at p. 574....)
“‘In determining the nature and scope of alternatives to be examined in an EIR, the Legislature has decreed that local agencies shall be guided by the doctrine of “feasibility.”’ ([Goleta, supra, 52 Cal.3d] at p. 565....) CEQA defines ‘feasible’ as ‘capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, social, and technological factors.’ ([Pub. Resources Code], § 21061.1; see also [Guidelines], § 15364.)
“‘There is no ironclad rule governing the nature or scope of the alternatives to be discussed other than the rule of reason.’ ([Guidelines], § 15126.6, subd. (a).) The rule of reason ‘requires the EIR to set forth only those alternatives necessary to permit a reasoned choice’ and to ‘examine in detail only the ones that the lead agency determines could feasibly attain most of the basic objectives of the project.’ (Id., § 15126.6, subd. (f).) An EIR does not have to consider alternatives ‘whose effect cannot be reasonably ascertained and whose implementation is remote and speculative.’ (Id., § 15126.6, subd. (f)(3).)” (In re Bay-Delta etc., supra, 43 Cal.4th at pp. 1162-1163, fn. omitted.)
The EIR for the Industrial Project analyzed three project alternatives in depth and rejected each of them as “infeasible.” They were the “no project alternative, ” the “facility relocation alternative, ” and the “reduced operations alternative.” Each alternative was analyzed as to effects on aesthetics, air quality, geology and soils, hazards and hazardous materials, hydrology and water quality, land use and planning, noise, public services, transportation and traffic, utilities and service systems, and other factors. As the EIR stated, the analysis of alternatives was affected by the fact that the project being analyzed was not “for a proposed new development or facility, or even the proposed expansion of an existing facility. [¶] The [Industrial Project] differ[ed] in that it involve[d] the permitting of an already existing facility and operation that, except for the RCRA Part B Permit, has all its necessary permits and authorizations.”
According to the EIR analysis, the “no project alternative” (Guidelines, § 15126.6, subd. (e)) would require shutting down all Industrial facilities, even though the facilities had been providing hazardous waste management services for 30 years and had obtained required approvals except for the final Part B Permit. One result would be, for example, that the hazardous wastes Industrial had been handling would then have to be transported greater distances, some up to 250 additional miles, which in turn would result in negative air quality effects due to higher truck emissions and higher risk of accidents during transport. Substantial evidence supported rejection of this alternative as infeasible.
The “facility relocation alternative” would also result in shutting down Industrial and relocating to another site. The EIR lists several cities and areas that have been recognized as potentially suitable areas for siting hazardous waste treatment facilities in the 1988 Los Angeles County Hazardous Waste Management Plan and other specified general areas. As CBE noted, the EIR analyzes only three hypothetical alternative sites, described as the Antelope Valley, the City of Industry, and Wilmington. The EIR acknowledged that the discussion was general in nature but gave the reason for not going into greater depth: “[I]t is doubtful that an alternative site could be found within Los Angeles County where permits could be secured and land could be found that has a greater distance to residential areas than the current site. The feasibility of securing all necessary permits is remote given the fact that no new hazardous waste facilities have been permitted in Southern California in the last 20 years.” Thus, contrary to CBE’s claim otherwise, analysis of only three general areas as relocation sites was adequate. Substantial evidence supported rejection of this alternative as infeasible.
The “reduced operations alternative” would simply keep Industrial operations as they were when the NOP was issued in 1995, without further environmental impact. Unlike increased capacities in the proposed Project, the alternative would do nothing to further the 1988 Los Angeles County Hazardous Waste Management Plan objective of having additional hazardous waste management facilities to meet the growing demand in Los Angeles County and to increase the capacity to manage hazardous waste in Southern California, which capacity had been projected to be inadequate by the 1994 update of the Plan by the Southern California Hazardous Waste Management Authority. In addition, the alternative would be inconsistent with the County Plan’s objective of locating hazardous waste management facilities as close as possible to waste generators. Substantial evidence supported rejection of this alternative as infeasible.
Additionally, CBE is mistaken in its claim that the EIR’s “no project” alternative is inconsistent with applicable law. CBE maintains that it does not comport with the “no project” alternative described in Guidelines section 15126.6, subdivision (e)(2), that is, that the “‘no project’ analysis shall discuss the existing conditions at the time the notice of preparation is published....” According to CBE, the EIR’s alternative is also inconsistent with case law criteria that a “no project” alternative description “provides... specific information about the environment if the project is not approved” and a “forecast of the environmental impacts of preserving the status quo” to provide a “base line” for measuring “the environmental advantages and disadvantages of the project and alternatives to the project.” (Planning & Conservation League v. Department of Water Resources, supra, 83 Cal.App.4th at pp. 917-918.)
As the EIR explained, however, the Project is for a Permit for a facility in operation long before RCRA mandated a Part B Permit. If Industrial’s application for a Part B Permit were denied, the result would be that Industrial would have to cease its existing services and operations. Thus, for the Industrial Project, a “no project” alternative would consist of shutting down operations and removing the facility.
“The proposition that an agency sometimes can choose a baseline other than existing physical conditions is implicit in the Guideline’s statement [in section 15125, subdivision (a)] that existing physical conditions are ‘normally’ the baseline.” (Woodward Park Homeowners Assn., Inc. v. City of Fresno (2007) 150 Cal.App.4th 683, 710.) There is no requirement that a “no project” alternative is limited to “‘“maintenance of the existing environment as a basis for comparison of the suggested alternatives to the status quo.”’ [Citation.]” (Id. at p. 715.)
For the same reasons, the “reduced operations alternative” for the Project is the one which would leave the facilities and operations at status quo but appropriately serves as a reduced operations scenario. Consequently, there is also no merit to CBE’s claim that the EIR failed to consider a reduced development alternative.
5. Redevelopment Plans
City and CRA contend that the EIR fails to take into account the Adelante and Boyle Heights Plans and adequately to evaluate inconsistencies between the Plans and the proposed Project. We disagree.
Department and Industrial cite several portions of the EIR that address the Adelante and Boyle Heights Plans. They also cite Department’s specific discussion of possible conflicts between the Project and the Plans in Department’s written responses to comments received during the public comment period on the DEIR. As they point out, the conclusion in the EIR was that the Project was consistent with the Adelante and Boyle Heights Plans.
CEQA does not require the “evaluation of the impacts of a proposed project on an existing general plan [or redevelopment plan]; it concerns itself with the impacts of the project on the environment, defined as the existing physical conditions in the affected area.” (Woodward Park Homeowners Assn., Inc. v. City of Fresno, supra, 150 Cal.App.4th at p. 709.) There is no requirement that the EIR be consistent with the redevelopment plans. (City of Long Beach v. Los Angeles Unified School District (2009) 176 Cal.App.4th 889, 918.) As City and CRA maintain, however, CEQA does require that an EIR identify and discuss inconsistencies between a community general plan or, as here, a redevelopment plan, and a proposed project. (Id. at pp. 918-919, citing Guidelines, § 15125(d).) On the other hand, where, as here, the EIR considers such plans and concludes the project is consistent with the plans, no further analysis is required. (Ibid.) Department addressed the Adelante and Boyle Heights Plans in a manner sufficient to comply with CEQA requirements.
City and CRA make additional specific claims about the inadequacy of the EIR with respect to two redevelopment-related matters. First, City and CRA claim that “blight” is not adequately addressed in Department’s written responses to comments from the public comment period. They point out that the elimination and prevention of “blight” was a central objective of both the Adelante and Boyle Heights Plans.
The “blight” contention lacks merit. Review of the record shows that, in its response to comments, Department expressly addressed CRA’s comments about “blighting conditions in the Eastside.” Department discussed that the Industrial facility was well-maintained, would not be considered “blight, ” and did not come within the Adelante Plan’s definition of “blight.” Department concluded that the Project would not conflict with the Adelante Plan’s objectives with respect to reducing “blight.” Department’s response was sufficient to comply with CEQA requirements. “An evaluation of the environmental effects of a proposed project need not be exhaustive, but the sufficiency of an EIR is to be reviewed in the light of what is reasonably feasible.... The courts have looked not for perfection but for adequacy, completeness, and a good faith effort at full disclosure.” (Guidelines, § 15151; see also id., § 15125, subd. (a).)
Having resolved the issue regarding consideration of “blight” in the EIR on this basis, we decline to address respondents’ argument that the City and CRA are barred from raising their claim regarding “blight, ” in that they are raising it for the first time on appeal. We note, however, that as respondents point out, the term “blight” is not used in the statements of issues, trial court briefs, or oral arguments presented by City and/or CRA in the trial court proceedings. As a rule, a litigant may not assert a new theory against the opposing party on appeal. (Brown v. Boren (1999) 74 Cal.App.4th 1303, 1316.)
Second, City and CRA mistakenly assert that the EIR failed to acknowledge and adequately consider that the expansion of the Industrial facility conflicts with the proposed mixed use development of the nearby Sears Tower property, which was to include about 650 residential housing units, almost 600, 000 square feet of commercial space, and parks. The record reveals, however, that the EIR concluded there was no such conflict with the proposed Sears Tower development, in that the developer indicated that it would not proceed with development of the property and announced plans to sell it. Any analysis of the effect on the Sears Tower project of the Industrial Project would have been based on speculation, and Department could not rely on it for decision making purposes. (See Guidelines, § 15384, subd. (a).) Nevertheless, the EIR discussed potential impacts of the proposed Sears Tower development. There was no abuse of discretion in Department’s consideration of the cumulative impacts of the proposed Sears Tower development.
6. Cumulative Impacts
City and CRA contend that the EIR did not adequately evaluate the cumulative impacts of the Project with respect to the proposed Sears Tower development. There is no merit to the contention.
Not counting the proposed Sears Tower development, the EIR analyzed the cumulative impacts of the Project with nine projects in the vicinity of the Industrial facility. City and CRA do not raise any contention of inadequate evaluation as to any of them.
As we previously discussed, the Sears Tower developer indicated that it would not proceed with development of the property and announced plans to sell it. Department therefore was not required to analyze the cumulative effect of the Sears Tower and Industrial Projects. (See Guidelines, § 15384, subd. (a).) Nevertheless, the EIR mentioned the proposed Sears Tower development. There was no abuse of discretion with regard to the finding of adequacy of Department’s consideration of the cumulative impacts of the proposed Sears Tower development.
Before approving the final EIR, Department inserted the following note in the cumulative impacts provision regarding the proposed Sears Tower development: “(Note: since the completion of the Draft EIR, MJW [Investments, Inc., the developer] has indicated that it will not develop the property and has announced plans to sell the property).”
7. Other Claimed EIR Deficiencies
CBE contends that Department abused its discretion, in that it refused to acknowledge or respond to the comments of CBE’s expert, Julia May (May), on the DEIR. Review of the record does not support this contention. Counsel for CBE, Adrienne Bloch, also submitted comments together with the May comments as part of CBE’s petition for review. The Bloch comments raised the same points as the May comments. Department’s Response to Comments did not mention the May letter but did respond to all the issues.
Failure to consider specific comments is not a prejudicial abuse of discretion where “the material not considered was, on its face, demonstrably repetitive of material already considered.” (Environmental Protection Information Center v. California Dept. of Forestry & Fire Protection (2008) 44 Cal.4th 459, 487.) Department did not prejudicially abuse its discretion by not discussing May’s duplicative comments separately. (Ibid.)
CBE further claims that the EIR did not analyze or mitigate energy consumption impacts of the Project. We agree with respondents that CBE’s energy impacts claim is barred under the exhaustion of administrative remedies doctrine.
In the EIR process, the time to raise an issue is during the public comment period and the public hearing on the DEIR. (Pub. Resources Code, § 21177.) An issue that is not timely raised by some party (not limited to the party raising it on appeal) before the administrative agency is waived for failure to exhaust administrative remedies. (Central Delta Water Agency v. State Water Resources Control Bd. (2004) 124 Cal.App.4th 245, 273.) The issue of energy consumption impacts of the Project was not raised by anyone during the public comment and public hearing period. CBE first raised the issue in its administrative appeal, well after the public comment period and the public hearing on the DEIR were completed.
In any event, review of the record reveals that the EIR did, in fact, address energy consumption issues. CEQA does not require that an EIR discuss an exhaustive range of potential energy impacts. (Tracy First v. City of Tracy (Winco Foods) (2009) 177 Cal.App.4th 912, 935.) The EIR discussed various energy-related factors listed in Appendix F of the CEQA Guidelines: alternative fuels and energy systems, extent of Project compliance with existing energy standards, and mitigation of transportation energy usage. A topic of analysis in the EIR was Utilities/Services Systems, which was found to have no potentially significant adverse effects.
B. Tanner Act Challenges
Appellants assert that the judgment should be reversed and the matter remanded with direction to Department to comply with requirements of the Tanner Act (Health & Saf. Code, §§ 25199-25199.14). They argue that Department’s issuance of the Permit without regard to the Tanner Act and Industrial’s failure to apply for land use approval, specifically, a conditional use permit, together with its application for the Permit violate the Tanner Act. The issue presented is one of statutory interpretation which is a question of law and, therefore, we review it de novo. (See Catalina Investments, Inc. v. Jones (2002) 98 Cal.App.4th 1, 6.)
In examining the relevant Tanner Act provisions, “we are guided by the well-established principle that our function is to ‘ascertain the intent of the lawmakers so as to effectuate the purpose of the law.’ [Citations.] We determine such intent by first focusing on the words used by the Legislature, giving them their ordinary meaning. [Citation.] This is because ‘it is the language of the statute itself that has successfully braved the legislative gauntlet.’ [Citation.]” (California School Employees Assn. v. Governing Board (1994) 8 Cal.4th 333, 338.) “When, as here, ‘“‘statutory language is... clear and unambiguous there is no need for construction, and courts should not indulge in it.’”’ [Citation.]” (California Fed. Savings & Loan Assn. v. City of Los Angeles (1995) 11 Cal.4th 342, 349.)
By its terms, the Tanner Act did not require Department to withhold issuing a hazardous waste facility permit, or conditioning its becoming effective, unless and until Industrial obtained a land use permit. The Legislature enacted the Tanner Act, in part, in recognition of the fact that “before a hazardous waste facility can be constructed and operated, ” “[e]xisting laws require numerous permits” to be issued by government agencies “under land use, planning, ... hazardous waste, air quality [and] water quality... laws.” (Health & Saf. Code, § 25199, subd. (a)(1).) The Legislature intended for the Tanner Act to facilitate the coordination of the multiple permitting processes for hazardous waste facilities in order “to expedite the approval of needed hazardous waste facilities.” (Id., § 25199, subds. (a), (c).) The Tanner Act distinguishes between processes for land use approvals and those for obtaining hazardous waste facility permits. The statute expressly allows, but does not require, an applicant for a hazardous waste facility project to comply with the Act’s land use approval process simultaneously with the hazardous waste facility permit process. Health and Safety Code section 25199.3, subdivision (a), provides that “an applicant for a hazardous waste facility project may submit applications for a land use decision and for one or more permits... simultaneously.” (Italics added.)
The Tanner Act provides a process for local public involvement in land use decisions regarding the siting of a hazardous waste facility through a local assessment committee. (Health & Saf. Code, § 25199.7.) However, the Act does not require compliance with the public involvement process as a prerequisite for a public agency to issue a hazardous waste facility permit. Rather, Health and Safety Code section 25199.3 mandates that, subject to an exception not applicable here, a “state agency shall not refuse to issue a permit for a hazardous waste facility project on the grounds that the applicant has not been granted a land use permit....” (Italics added.)
The draft Permit included condition V.2(u), which would have required Industrial to complete a land use approval process and obtain a conditional use permit (CUP) from City as a condition to the Permit becoming effective. Department deleted condition V.2(u), however, and issued the final Permit without including it. Department explained that the Permit already contained a provision requiring Industrial to “obtain the permits required by other governmental agencies, including but not limited to, the applicable land use planning [and] zoning... laws.” (Permit, Part III, 2. (a).)
Department’s final decision on the permit appeal states that Department “strikes the following language in permit condition V. (2)u., ‘Pursuant to California Health and Safety Code section 25199.3(a) the permit for the proposed units shall not become effective until the applicant is granted a local land use permit.’”
CBE argues that evidence showed that a CUP was required and, therefore, a Tanner Act process was required prior to Department issuing the Permit. While the Tanner Act expressly allows an agency to condition the effectiveness of a hazardous waste facility permit upon the applicant’s obtaining a local land use permit, it does not require the agency to do so. (Health & Saf. Code, § 25199.3, subd. (a).) Assuming arguendo that a CUP was required for the Project, the Tanner Act did not mandate that Department include a condition requiring Industrial to obtain a CUP or other land use approval in the final Permit. (Ibid.)
Moreover, appellants have not cited any authority that substantiates their contentions regarding noncompliance with the Tanner Act. In any event, in the EIR, Department recognized the separate and distinct requirements of the Tanner Act from Department’s statutory responsibilities for permit approvals. For example, the EIR acknowledged that the Tanner Act process would apply to Industrial in connection with City’s requirement that Industrial obtain a CUP, and Industrial had initiated the Tanner Act process by submitting the initially required Notice of Intent to the Office of Permit Assistance. The EIR described the Tanner Act requirements as “siting requirements for specified hazardous waste facility projects.” Also, in support of the conclusion that the “facility relocation alternative” was infeasible, the EIR acknowledged that compliance with the Tanner Act would be required if the Industrial facilities were relocated to an alternative site, and it would be a long and arduous process. In sum, we conclude none of appellants’ Tanner Act contentions have merit, and Department’s issuance of the Permit did not constitute prejudicial abuse of discretion on such basis.
C. Procedural Claims
Respondents contend that City’s appeal is barred, in that City failed to exhaust its administrative remedies because it did not raise any objections during Department’s administrative proceedings on the Permit and the EIR. (Pub. Resources Code, § 21177, subd. (b); Cal. Code Regs., tit. 22, §§ 66271.12, 66271.18, subd. (e), 66260.10.) City does not cite to any portion of the record that provides evidence that it submitted any comments or objections or that it participated in the administrative appeal. City claims its appeal is subject to the exception for matters of public interest and is not jurisdictionally barred by the failure to exhaust administrative remedies. (Pub. Resources Code, § 21177, subd. (b); Woodward Park Homeowners Assn., Inc. v. City of Fresno, supra, 150 Cal.App.4th 683, 712-714.)
We note that City and CRA submitted joint briefs setting forth arguments which did not differentiate whether they were raised by City or by CRA. Even if we assume arguendo that City’s appeal is barred and must be dismissed, the substantive resolution of the appeals would be the same; the trial court’s judgment would stand as to each of them.
Respondents also contend that some issues raised by appellants should be deemed waived because of appellants’ incomplete and possibly misleading representations of the EIR contents and related evidence. (See State Water Resources Control Bd. Cases (2006) 136 Cal.App.4th 674, 749.) Having resolved the appeal on other grounds, however, we need not address this claim of waiver.
DISPOSITION
The judgments are affirmed. Respondents shall recover their costs on appeal.
We concur: WOODS, Acting P. J.ZELON, J.