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March 28, 2012

Marin County Board of Supervisors Had No Power to Approve or Disapprove Redwood Landfill and Could Not Hear Plaintiffs’ CEQA Appeal

Marin County Board of Supervisors Had No Power to Approve or Disapprove Redwood Landfill and Could Not Hear Plaintiffs’ CEQA Appeal  

No Wetlands Landfill Expansion v. County of Marin [First District Court of Appeal No. A131651, filed March 20, 2012]

By Andrea A. Matarazzo

Redwood Landfill is located on a 420-acre site and handles the majority of Marin County’s solid waste.  Real Party Redwood Landfill, Inc. operates the landfill based on a solid waste facilities (SWF) permit issued pursuant to the Integrated Waste Management Act (Waste Act).  Solid waste management is a shared responsibility between both state and local governments.  (Pub. Resources Code, § 40001, subd. (a).)  The California Department of Resources Recycling and Recovery (CalRecycle) generally enforces the Waste Act, but may certify a local government agency as the enforcement agency in a given community.  In 1992, CalRecycle certified Marin County Environmental Health Services (Marin EHS) as the local enforcement agency for Marin County.  Marin EHS issued the SWF permit to Redwood Landfill, which filed an application with Marin EHS to revise the permit.  The application requested operational changes and expansion of the capacity of the landfill.  Redwood Landfill also has a use permit for operation of the landfill with no expiration date that was issued by Marin County in 1958.

 

Under CEQA, Marin EHS, was the lead agency for the revised SWF permit, and the agency completed a Final EIR in 2005.  The Final EIR was twice amended and finally certified by Marin EHS in 2008.  An association of local residents and environmental groups appealed Marin EHS’s certification of the Final EIR to the Marin County Board of Supervisors.  The Marin County Counsel advised the plaintiffs that Marin EHS was CalRecycle’s designated representative, and no appeal to the Board of Supervisors was available.

 

Marin EHS found that the revised SWF permit was consistent with state standards, and provided a copy to CalRecycle.  In November 2008, plaintiffs petitioned Marin EHS for an administrative review hearing under the Waste Act challenging the recommended issuance of the SWF permit.  Marin EHS scheduled a hearing and after public hearing and deliberations, CalRecycle concurred in issuance of the revised SWF permit.  Marin EHS issued the requested permit in December 2008.

 

Plaintiffs sued Marin County, the Board of Supervisors, and Marin County agencies, including Marin EHS and one of its officers.  In their opening brief, plaintiffs “relied upon a CEQA provision stating that, ‘[i]f a nonelected decisionmaking body of a local lead agency certifies an environmental impact report … that certification … may be appealed to the agency’s elected decisionmaking body, if any.’  (Pub. Resources Code, § 21151, subd. (c).) Plaintiffs asserted that the Board of Supervisors was Marin EHS’s elected decisionmaking body and, therefore, should review Marin EHS’s EIR certification.

 

Respondents countered that there was no appeal to the Board of Supervisors because Marin EHS was acting as the CalRecycle representative under the Waste Act.  Marin EHS is an entity separate from the County of Marin and does not have an elected decisionmaking body to hear an appeal.

 

In October 2010, the trial court issued an order granting Plaintiffs’ petition for writ of mandate on the cause of action alleging a CEQA violation for refusing appeal of the EIR certification to the Board of Supervisors.  The trial court ordered Respondents to vacate certification of the EIR and issuance of the SWF permit.  Respondents appealed, and the First District Court of Appeal reversed the judgment.

 

According to the appellate court:

 

The question presented on appeal is a narrow one: is Marin EHS’s certification of an EIR for issuance of an SWF permit appealable to the Board of Supervisors?  The answer is no.  The source of the answer lies in the regulatory structure created by the Waste Act and the Waste Act’s intersection with CEQA.  That regulatory structure reveals that approval of an SWF permit, and certification of the EIR for that approval, is a power vested in Marin EHS as a distinct local enforcement agency and is not a power vested in the county itself.

. . .

 

Marin EHS is the local enforcement agency under the Waste Act and the lead agency under CEQA.  Marin EHS is a separate and distinct legal entity from Marin County.  Marin EHS’s decisionmaking body is its deputy director.  Marin EHS has no elected decisionmaking body.  While the Board of Supervisors is an elected governing body, it is not a decisionmaking body of Marin EHS.  As noted above CEQA provides: “If a nonelected decisionmaking body of a local lead agency certifies an environmental impact report … that certification … may be appealed to the agency’s elected decisionmaking body, if any.” (Citations omitted.)  CEQA regulations define a decisionmaking body as “any person or group of people within a public agency permitted by law to approve or disapprove the project at issue.” (Guidelines, § 15356.)  The Board of Supervisors has no power to approve or disapprove the project at issue and thus is not an elected decisionmaking body empowered to hear plaintiffs’ appeal.

 

The trial court thus erred in directing the County’s Board of Supervisors to hear an administrative appeal of the Marin EHS’s EIR certification.

 

Authored by:

Andrea A. Matarazzo

(916) 496-8500

(916) 737-5838 (Direct)

andrea@pioneerlawgroup.net

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