Ass'n of IRRITATED RESIDENTS v. SAN JOAQUIN VALLEY UNIFIED AIR POLLUTION CONTROL Dist.

• Decision Date: 19 November 2008
• Docket Number: No. F053956.,F053956.
• Citation: 85 Cal.Rptr.3d 590,168 Cal.App.4th 535
• Court: California Court of Appeals Court of Appeals
• Parties: ASSOCIATION OF IRRITATED RESIDENTS, Plaintiff and Appellant, v. SAN JOAQUIN VALLEY UNIFIED AIR POLLUTION CONTROL DISTRICT, Defendant and Respondent; Community Alliance for Responsible Environmental Stewardship et al., Interveners and Respondents.

168 Cal.App.4th 535

85 Cal.Rptr.3d 590

ASSOCIATION OF IRRITATED RESIDENTS, Plaintiff and Appellant,

v. SAN JOAQUIN VALLEY UNIFIED AIR POLLUTION CONTROL DISTRICT, Defendant and Respondent;Community Alliance for Responsible Environmental Stewardship et al., Interveners and Respondents.

No. F053956.

Court of Appeal, Fifth District, California.

Nov. 19, 2008.

COPYRIGHT MATERIAL OMITTED.

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Center on Race, Poverty & the Environment, Brent J. Newell, San Francisco, Luke W. Cole, Sofia L. Sarabia, Caroline Farrell, and Ingrid Brostrom, for Plaintiff and Appellant.

Philip M. Jay and Catherine T. Redmond for Defendant and Respondent.

Greenberg Glusker Fields Claman & Machtinger, David E. Cranston and Sedina L. Banks, Los Angeles, for Interveners and Respondents.

OPINION

WISEMAN, Acting P.J.

In this opinion, we hold that rule 4570, promulgated by the San Joaquin Valley Unified Air Pollution Control District (district), as mandated by Health and Safety Code ¹ section 40724.6, was adopted without conducting an adequate assessment of its impact on public health. We also conclude that section 40724.6 is intended to address the district's failure to meet federal and state ambient air quality standards for ozone and does not regulate ammonia emissions produced by large confined animal facilities. Finally, we determine that the district's findings were not arbitrary and capricious.

Procedural and Factual Summaries

This appeal is from the denial of a writ of mandate sought by petitioner Association of Irritated Residents (association) to compel the district to comply with section 40724.6. Section 40724.6 initially was passed in 2003 as part of Senate Bill No. 700. (Stats. 2003, ch. 479, § 6 (SB 700).) The statute mandates that those state air pollution control districts ² designated federal nonattainment areas for ozone, ³ as of January 1, 2004, adopt and implement a rule requiring confined animal facilities (facilities) ⁴ to reduce emissions of air contaminants. The rule is to apply to existing facilities and does not apply to expanded or new facilities. Prior to the passage of section 40724.6, agricultural sources of air contaminants were exempted from air pollution control district regulation. (Assem. Com. on Appropriations, Rep. on Sen. Bill No. 700 (2002-2003 Reg. Sess.) as amended Aug. 21, 2003, p. 4.) The Legislature declared its intent when enacting SB 700: “The purpose of the act adding this section is to establish a new set of programs at the state and regional levels to reduce air emissions from agricultural sources in order to protect public health and the environment.” (Stats. 2003, ch. 479, § 1, subd. (7).) The agricultural industry, including the many facilities located in the San Joaquin Valley (valley), contribute large quantities of emissions and particulates (PM₁₀ and PM_2.5) that significantly contribute to the air pollution impacting the valley and its residents. (Stats. 2003, ch. 479, § 1.) The valley's air basin, home to one of the largest agricultural industries in the world, is a nonattainment area according to federal and state standards for three pollutants: ozone, PM₁₀, and PM_2.5. (Stats. 2003, ch. 479, § 1, subds. (1), (2), & (3).)

The district, in compliance with section 40724.6, and after a series of public hearings and studies, adopted its rule 4570. Rule 4570 establishes a permit process for large confined animal facilities and is intended to control volatile organic compounds (VOC's) by controlling animal enteric, feed, and waste emissions with improved management practices. VOC's combine with nitrogen oxides, heat, and sunlight to form ozone. Rule 4570 requires that facilities choose from a variety of mitigation measures-generally feed and waste management practices-with the goal of reducing VOC emissions. The rule also provides for compliance testing, sets up a compliance schedule, and establishes recordkeeping requirements for all facilities.

According to the association, the district did not comply with the statutory mandates when it passed rule 4570 because the district (1) failed to perform a health-effects analysis before adopting rule 4570; (2) failed to adopt a rule that reduces all air contaminants; (3) failed to regulate ammonia as an air contaminant; (4) failed to adopt a rule that actually reduces VOC emissions; and (5) acted arbitrarily and capriciously by claiming emission reductions that lack evidentiary support. The Community Alliance for Responsible Environmental Stewardship, the California Dairy Campaign, the Milk Producers Counsel, and the Western United Dairymen have intervened on behalf of the district and in support of rule 4570.

The trial court denied the petition deciding that (1) the district did consider the public health impact of rule 4570 and that all issues related to public health raised by the association were addressed; (2) the intent and language of section 40724.6 do not require rule 4570 to include within its parameters air contaminants other than those directly related to the district's nonattainment of federal and state ozone standards; (3) there is no requirement that rule 4570 address ammonia emissions; and (4) the claimed emission reductions are not lacking in evidentiary support.

Discussion

I. Standard of review

[1] [2] The adoption of rule 4570 was a quasi-legislative act reviewable by a petition for traditional mandamus. (Code Civ. Proc., § 1085; Muzzy Ranch Co. v. Solano County Airport Land Use Com. (2008) 164 Cal.App.4th 1, 13, 78 Cal.Rptr.3d 691; Santa Margarita Area Residents Together v. San Luis Obispo County Bd. of Supervisors (2000) 84 Cal.App.4th 221, 227-228, 100 Cal.Rptr.2d 740.) A writ of mandate under Code of Civil Procedure section 1085 is a method for compelling an agency to perform a legal duty. ( Pomona Police Officers' Assn. v. City of Pomona (1997) 58 Cal.App.4th 578, 583-584, 68 Cal.Rptr.2d 205.)

[3] [4] The trial court's role in a traditional mandamus proceeding is a limited one. It must determine whether the agency's action was arbitrary, capricious, or without evidentiary support, and/or whether it failed to conform to the law. The trial court may not substitute its judgment for that of the agency or force the agency to exercise its discretion in a certain way.

( Neighbors in Support of Appropriate Land Use v. County of Tuolumne (2007) 157 Cal.App.4th 997, 1004, 68 Cal.Rptr.3d 882.)

[5] [6] The reviewing court exercises independent judgment in determining whether the agency action was “consistent with applicable law.” ( Associated Builders & Contractors, Inc. v. San Francisco Airports Com. (1999) 21 Cal.4th 352, 361, 87 Cal.Rptr.2d 654, 981 P.2d 499.) Where the issue is one of statutory interpretation, the question is one of law for the courts, which are the “ ‘ultimate arbiters' ” of statutory construction. ( San Francisco Fire Fighters Local 798 v. City and County of San Francisco (2006) 38 Cal.4th 653, 667-668, 42 Cal.Rptr.3d 868, 133 P.3d 1028; Katosh v. Sonoma County Employees' Retirement Assn. (2008) 163 Cal.App.4th 56, 62, fn. 4, 77 Cal.Rptr.3d 324.) Since we apply the same standard as the trial court, its determination is not binding on us. ( Personnel Com. v. Board of Education (1990) 223 Cal.App.3d 1463, 1466, 273 Cal.Rptr. 288.)

II. Public health impacts

The association contends that the district failed to consider the public health impacts of rule 4570 prior to its adoption. According to the association, the district's Final Staff Report (staff report) and the appendices prepared in connection with rule 4570 do not adequately assess public health issues as required by the statute. Although the association acknowledges that information concerning public health was submitted during the rule-making process, it claims the district must do more than “abstractly consider information in the record”; it must actively perform an assessment equivalent to the assessment provided for the other eight factors listed in section 40724.6, subdivision (e)(1)-(8).

Section 40724.6, subdivision (e), reads:

“(e) Prior to adopting a rule or regulation pursuant to subdivision (b), a district shall, to the extent data are available, perform an assessment of the impact of the rule or regulation. The district shall consider the impact of the rule or regulation in a public hearing, and make a good faith effort to minimize any adverse impacts. The assessment shall include all of the following:

“(1) The category of sources affected, including, but not limited to, the approximate number of affected sources, and the size of those sources.

“(2) The nature and quantity of emissions from the category, and the significance of those emissions in adversely affecting public health and the environment and in causing or contributing to the violation of a state or federal ambient air quality standard.

“(3) The emission reduction potential.

“(4) The impact on employment in, and the economy of, the region affected.

“(5) The range of probable costs to affected sources and businesses.

“(6) The availability and cost-effectiveness of alternatives.

“(7) The technical and practical feasibility.

“(8) Any additional information on impacts that is submitted to the district board for consideration.”

[7] The language of the statute unambiguously requires that, prior to adopting the rule, the district must perform an assessment of the rule's impacts and that assessment must include the impact of the regulated emissions on the public health. (§ 40724.6, subd. (e)(2).) The association claims that a public health assessment should have been done in the same manner as was done in other assessments provided by the district as attachments to the staff report. These include an analysis of emission reductions, cost effectiveness, socioeconomic impacts, ammonia reduction, environmental, and rule consistency. These are independent analyses done by experts that provide more than...