1 of 1 DOCUMENT

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.

F053956

COURT OF APPEAL OF CALIFORNIA, FIFTH APPELLATE DISTRICT

168 Cal. App. 4th 535; 85 Cal. Rptr. 3d 590; 2008 Cal. App. LEXIS 2267; 39

ELR 20281

November 19, 2008, Filed

PRIOR HISTORY: [***1]

APPEAL from a judgment of the Superior Court of Fresno County, No. 06 CE CG 02302, D. Tyler Tharpe,

Judge.

CASE SUMMARY:

PROCEDURAL POSTURE: Appellant, an association of residents, challenged an order of the Superior

Court of Fresno County, California, which denied its petition for a writ of mandate to compel respondent air

pollution control district to comply with Health & Saf. Code, § 40724.6.

OVERVIEW: The association argued the district did not comply with § 40724.6 in passing a rule that

established a permit process for large confined animal facilities and was intended to control volatile organic

compounds (VOC) by controlling animal enteric, feed, and waste emissions with improved management

practices. The court held that the rule was adopted without conducting an adequate assessment of its impact

on public health. It was impossible for the public or the district's governing body to know how the

acknowledged public health interest fared when balanced against other competing interests. Section 40724.6

was intended to address the district's failure to meet federal and state ambient air quality standards for ozone

and did not regulate ammonia emissions produced by large confined animal facilities. The district's findings

were not arbitrary and capricious. Section 40724.6 mandated that the district adopt a rule to control VOC

emissions generated by large confined animal facilities based on the available science and, to the extent

feasible, balance all statutory concerns. Thus, any numerical error in the assumptions used by the district

failed to undermine the rule's validity.

OUTCOME: The court reversed the order and ordered the trial court to grant the writ, instructing the district

to complete an assessment on the public health impacts of the rule.

CORE TERMS: emission, air quality, public health, ozone, ambient, reduction, pollutant, animal,

nonattainment, particulate, air, air pollution, mitigation measures--, confined, agricultural, valley, staff report,

regulated, Clean Air Act, lagoon, statute requires, attainment, pollution, ammonia, manure, "air

contaminants", capricious, technology, Conservation Laws, evidentiary support

LexisNexis(R) Headnotes

Administrative Law > Judicial Review > Remedies > Mandamus

Page 1
Administrative Law > Judicial Review > Standards of Review > Arbitrary & Capricious Review

[HN1] The adoption of an administrative rule is a quasi-legislative act reviewable by a petition for traditional

mandamus. Code Civ. Proc., § 1085. A writ of mandate under § 1085 is a method for compelling an agency

to perform a legal duty. A trial court's role in a traditional mandamus proceeding is a limited one. It must

determine whether an 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.

Administrative Law > Judicial Review > Standards of Review > De Novo Review

Administrative Law > Judicial Review > Standards of Review > Statutory Interpretation

[HN2] A reviewing court exercises independent judgment in determining whether an agency action was

consistent with applicable law. 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. Because an appellate court applies

the same standard as the trial court, its determination is not binding on the appellate court.

Environmental Law > Air Quality > State Implementation Plans

[HN3] See Health & Saf. Code, § 40724.6, subd. (e).

Environmental Law > Air Quality > State Implementation Plans

[HN4] The language of Health & Saf. Code, § 40724.6, unambiguously requires that, prior to adopting a rule,

an air pollution control 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 statute does

not require that the assessment take any particular form or be performed by independent experts. The

statute requires only that an assessment be done prior to the adoption of the rule and that it include an

analysis of the identified factors. § 40724.6, subd. (e).

Governments > Legislation > Interpretation

[HN5] Courts decline to construe a statute in a way that makes meaningless the words chosen by the

legislature.

Environmental Law > Air Quality > State Implementation Plans

Governments > Legislation > Interpretation

[HN6] Health & Saf. Code, § 40724.6, requires that a rule be assessed in light of the identified problem and

that the actual words of the statute be given their plain and commonsense meaning. It is not enough to say

that volatile organic compounds emissions from large confined animal facilities add to poor air quality, which

in turn impacts public health. The statute requires that the nature and quantity of emissions from the

category, and the significance of those emissions in adversely affecting public health and the environment,

be assessed in connection with the impact of the rule or regulation. § 40724.6, subd. (e) & (e)(2).

Environmental Law > Air Quality > State Implementation Plans

[HN7] Health & Saf. Code, § 40724.6, subd. (e)(2), requires an assessment that answers the question of how

a rule will impact human health or, at the very least, why the rule will have no impact.

Environmental Law > Air Quality > State Implementation Plans

[HN8] Health & Saf. Code, § 40724.6, subd. (e)(5), expressly requires assessment of the cost of

implementing a rule to the affected sources and businesses that are regulated. By the same token, an equal

part of the required assessment is whether the controls imposed are sufficient to move the San Joaquin

Valley toward cleaner air.

Environmental Law > Air Quality > State Implementation Plans

[HN9] Health & Saf. Code, § 40724.6, requires that a rule be assessed prior to adoption and submitted to a

public-hearing process. § 40724.6, subd. (e). As with any environmental regulation, a delicate balancing of

competing policies and interests must occur.

Administrative Law > Agency Rulemaking > State Proceedings

[HN10] Although an agency is free to make a policy call, it can do so only when the balancing process is

Page 2

168 Cal. App. 4th 535, *; 85 Cal. Rptr. 3d 590, **;

2008 Cal. App. LEXIS 2267, ***1; 39 ELR 20281
exposed to public view. Health & Saf. Code, § 40724.6, subd. (e).

Environmental Law > Air Quality > Nonattainment Areas

Environmental Law > Air Quality > State Implementation Plans

[HN11] A complete reading of the statutory changes accomplished by Sen. Bill No. 700, Stats. 2003, ch. 479,

§ 6, and the statement of legislative intent provided in Sen. Bill No. 700, compel the conclusion that the

legislative intent is to control agricultural emission sources as they impact state and federal ambient air

quality standards, particularly those for which the state is classified as being in nonattainment. This means

that Health & Saf. Code, § 40724.6, is an ozone-specific statute.

Environmental Law > Air Quality > Nonattainment Areas

Environmental Law > Air Quality > State Implementation Plans

[HN12] Sen. Bill No. 700, Stats. 2003, ch. 479, § 6, consistent with its statement of intent, includes

rule-mandating provisions addressing both ozone and particulate matter in Health & Saf. Code, §§ 40724,

40724.5, 40724.6, and 40724.7. These sections address the two identified problems, ozone and particulate

matter, depending on whether an air pollution control district has achieved attainment of state and federal

ambient air quality standards related to these pollutants. Section 40724, using language similar to § 40724.6,

applies to districts designated as serious federal nonattainment areas for the applicable ambient air quality

standard for particulate matter. Similar to § 40724.6, the statute requires that the district adopt a rule

regulating agricultural sources of particulate matter (including large confined animal facilities) using the

best-available retrofit control technology. Section 40724.5 applies to districts designated as moderate federal

nonattainment areas for applicable ambient air quality standard for particulate matter. It requires the adoption

of control measures unless the district determines that agricultural practices do not significantly cause or

contribute to a violation of state or federal standards.

Environmental Law > Air Quality > Nonattainment Areas

Environmental Law > Air Quality > State Implementation Plans

[HN13] Health & Saf. Code, § 40724.6, parallels Health & Saf. Code, § 40724, in that it requires a rule

regulating large confined animal facilities where an air pollution control district is classified as severe or

extreme nonattainment for ozone. Health & Saf. Code, § 40724.7, parallels Health & Saf. Code, § 40724.5,

in that it requires a rule controlling large confined animal facilities unless the district finds that the facilities will

not contribute to a violation of state or federal standards.

Environmental Law > Air Quality > National Ambient Air Quality Standards

Environmental Law > Air Quality > Nonattainment Areas

Environmental Law > Air Quality > State Implementation Plans

Governments > Legislation > Interpretation

[HN14] Health & Saf. Code, §§ 40724, 40724.5, 40724.6, and 40724.7, contain triggering language related to

attainment or nonattainment of either ozone or particulate matter. The trigger is not capricious: It relates

directly to the level of attainment or nonattainment achieved by an air pollution control district related to the

triggering pollutant. The legislature has determined that if a district has attained federal and state ambient air

quality standards for either particulate matter or ozone, it will be given greater deference in addressing the

problem pollutant. If not, the statute mandates more stringent controls of sources for the identified pollutant.

The words chosen in these four sections are not identical, but they must be read in harmony with one

another.

Governments > Legislation > Interpretation

[HN15] Under the rule of noscitur a socilis, the meaning of a word may be enlarged or restrained by

reference to the intent of the whole clause in which it is used. Under the rule of ejusdem generis, the general

term or category is restricted to those things that are similar to the more specific term or category

enumerated.

Environmental Law > Air Quality > National Ambient Air Quality Standards

Environmental Law > Air Quality > Nonattainment Areas

Environmental Law > Air Quality > State Implementation Plans

[HN16] The legislative use of the general term "air contaminants" is restricted by the more specific references

Page 3

168 Cal. App. 4th 535, *; 85 Cal. Rptr. 3d 590, **;

2008 Cal. App. LEXIS 2267, ***1; 39 ELR 20281
to the ambient air quality standards for ozone in Health & Saf. Code, §§ 40724.6 and 40724.7, and for

particulate matter in Health & Saf. Code, §§ 40724 and 40724.5. § 40724.6, subd. (a). The express

references in § 40724.6, subd. (d)(1)(B), to severe and extreme nonattainment areas can only be read as a

reference to ozone, for only nonattainment to ozone ambient air quality standards is classified as severe or

extreme.

Environmental Law > Air Quality > National Ambient Air Quality Standards

Environmental Law > Air Quality > State Implementation Plans

[HN17] Although only the "trigger" language in Health & Saf. Code, § 40724.6, is limited specifically to ozone,

the statutory language also generally refers to applicable emissions thresholds, emissions of air pollutants

that cause or contribute to a violation of a state or federal ambient air quality standard, all regulated air

pollutants, and pollutants that contribute to the nonattainment of any ambient air quality standard. This

language consistently refers to pollutants regulated by ambient air quality standards, such as ozone and

particulate matter. Even if Health & Saf. Code, § 40724.6, were to be read as applying to all or any "ambient

air quality standards," a term of art under the federal Clean Air Act, 42 U.S.C. § 7401 et seq., ammonia is not

a pollutant that is subject to a national ambient air quality standard. National standards have been set for

only six pollutants: particulate matter, sulfur dioxide, ozone, nitrogen dioxide, carbon monoxide, and lead.

Other hazardous air pollutants are not regulated through ambient air quality standards.

Governments > Legislation > Interpretation

[HN18] The primary role of a court when interpreting a statute is to ascertain the intent of the lawmakers to

effectuate the purpose of the law.

Environmental Law > Air Quality > State Implementation Plans

Governments > Legislation > Interpretation

[HN19] A fair reading of Sen. Bill No. 700, Stats. 2003, ch. 479, § 6, and Health & Saf. Code, § 40724.6, is

consistent with an interpretation that § 40724.6 addresses ozone and ozone precursors. There is nothing in

the statute or the legislative history to suggest that the rule was intended to address all other air pollutants.

Administrative Law > Judicial Review > Remedies > Mandamus

Administrative Law > Judicial Review > Standards of Review > Abuse of Discretion

[HN20] Courts have a limited standard of review in mandamus actions and may reverse only where the

action taken is so palpably unreasonable and arbitrary as to show an abuse of discretion as a matter of law.

Courts grant deference to an agency's decision and may not substitute their judgment for that of the public

agency granted authority over a particular area of subject matter expertise.

Environmental Law > Air Quality > State Implementation Plans

[HN21] Health & Saf. Code, § 40724.6, requires an analysis of the emission reduction potential of the rule

and an assessment of the availability and cost effectiveness of alternatives. § 40724.6, subd. (e)(3) & (6). It

then limits implementation to feasibility. § 40724.6, subd. (b).

SUMMARY:

CALIFORNIA OFFICIAL REPORTS SUMMARY The trial court denied the petition of an association of

residents for a writ of mandate to compel an air pollution control district to comply with Health & Saf. Code, §

40724.6. According to the association, the district did not comply with the statutory mandates when it passed

a rule that established a permit process for large confined animal facilities and was intended to control

volatile organic compounds (VOC) by controlling animal enteric, feed, and waste emissions with improved

management practices. (Superior Court of Fresno County, No. 06CECG02302, D. Tyler Tharpe, Judge.)

The trial court denied the petition of an association of residents for a writ of mandate to compel an air

pollution control district to comply with Health & Saf. Code, § 40724.6. According to the association, the

district did not comply with the statutory mandates when it passed a rule that established a permit process

for large confined animal facilities and was intended to control volatile organic compounds (VOC) by

controlling animal enteric, feed, and waste emissions with improved management practices. (Superior Court

Page 4

168 Cal. App. 4th 535, *; 85 Cal. Rptr. 3d 590, **;

2008 Cal. App. LEXIS 2267, ***1; 39 ELR 20281
of Fresno County, No. 06CECG02302, D. Tyler Tharpe, Judge.)

The Court of Appeal reversed the order and ordered the trial court to grant the writ, instructing the district to

complete an assessment on the public health impacts of the rule. The court held that the rule was adopted

by the district without conducting an adequate assessment of its impact on public health. The subject was

not adequately covered by comments raised or reports submitted during the public hearing process. The

district provided no insight into how it balanced public health concerns against other interests during the

rulemaking process. It was impossible for the public or the district's governing body to know how the

acknowledged public health interest fared when balanced against the other competing interests. Accordingly,

the trial court erred when it denied the petition for writ of mandate. The court further held that Health & Saf.

Code, § 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.

The court concluded that the district's findings were not arbitrary and capricious. The court agreed with the

district that § 40724.6 does not require that the rule result in any specific numeric reduction of VOC's; it

simply mandates that the district adopt a rule to control VOC emissions generated by large confined animal

facilities based on the available science and, to the extent feasible, balance all statutory concerns. As a

result, any numerical error in the assumptions used by the [*536] district failed to undermine the validity of

its rule. (Opinion by Wiseman, Acting P. J., with Levy and Dawson, JJ., concurring.)

HEADNOTES CALIFORNIA OFFICIAL REPORTS HEADNOTES

(1) Administrative Law § 111--Judicial Review and Relief--Administrative Mandamus--Scope and

Extent.--The adoption of an administrative rule is a quasi-legislative act reviewable by a petition for

traditional mandamus (Code Civ. Proc., § 1085). A writ of mandate under § 1085 is a method for compelling

an agency to perform a legal duty. A trial court's role in a traditional mandamus proceeding is a limited one. It

must determine whether an 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.

(2) Pollution and Conservation Laws § 4--Air Pollution--Powers and Duties of Control

Districts--Adoption of Rules--Impact Assessments.--The language of Health & Saf. Code, § 40724.6,

subd. (e)(2), unambiguously requires that, prior to adopting a rule, an air pollution control 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. The statute does not require that the assessment take any particular form or

be performed by independent experts. The statute requires only that an assessment be done prior to the

adoption of the rule and that it include an analysis of the identified factors (§ 40724.6, subd. (e)).

(3) Statutes § 28--Construction--Language--Meaning.--Courts decline to construe a statute in a way that

makes meaningless the words chosen by the Legislature.

(4) Pollution and Conservation Laws § 4--Air Pollution--Powers and Duties of Control

Districts--Adoption of Rules--Impact Assessments--Large Confined Animal Facilities.--Health & Saf.

Code, § 40724.6, requires that a rule be assessed in light of the identified problem and that the actual words

of the statute be given their plain and commonsense meaning. It is not enough to say that volatile organic

compounds emissions from large confined animal facilities add to poor air quality, which in turn impacts

public health. The statute requires that the nature and quantity of emissions from the category, and the

significance of [*537] those emissions in adversely affecting public health and the environment, be

assessed in connection with the impact of the rule or regulation (§ 40724.6, subd. (e), (e)(2)).

(5) Pollution and Conservation Laws § 4--Air Pollution--Powers and Duties of Control

Districts--Adoption of Rules--Impact Assessments.--Health & Saf. Code, § 40724.6, subd. (e)(5),

expressly requires assessment of the cost of implementing a rule to the affected sources and businesses

that are regulated. By the same token, an equal part of the required assessment is whether the controls

imposed are sufficient to move the San Joaquin Valley toward cleaner air. The statute requires that the rule

be assessed prior to adoption, and submitted to a public hearing process. As with any environmental

Page 5

168 Cal. App. 4th 535, *; 85 Cal. Rptr. 3d 590, **;

2008 Cal. App. LEXIS 2267, ***1; 39 ELR 20281
regulation, a delicate balancing of competing policies and interests must occur.

(6) Administrative Law § 6--Powers and Functions of Agencies--Policy Calls.--Although an agency is

free to make a policy call, it can do so only when the balancing process is exposed to public view (Health &

Saf. Code, § 40724.6, subd. (e)).

(7) Pollution and Conservation Laws § 4--Air Pollution--Powers and Duties of Control

Districts--Adoption of Rules--Impact Assessments--Large Confined Animal Facilities--Public Health

Interest.--An air pollution control district failed to comply with Health & Saf. Code, § 40724.6, where it

adopted a rule that established a permit process for large confined animal facilities and was intended to

control volatile organic compounds by controlling animal enteric, feed, and waste emissions with improved

management practices without conducting an adequate assessment of its impact on public health. On the

record, it was impossible for the public or the district's governing body to know how the acknowledged public

health interest fared when balanced against the other competing interests.

[Manaster & Selmi, Cal. Environmental Law & Land Use Practice (2008) ch. 41, § 41.21; 12 Witkin,

Summary of Cal. Law (10th ed. 2005) Real Property, § 898.]

(8) Pollution and Conservation Laws § 4--Air Pollution--Control of Agricultural Emission

Sources--Pollutants Addressed.--A complete reading of the statutory changes accomplished by Sen. Bill

No. 700 (2003-2004 Reg. Sess.) (Stats. 2003, ch. 479, § 6), and the statement of legislative intent provided

in Sen. Bill No. 700, compel the conclusion that the legislative intent is to control agricultural emission

sources as they impact state and federal ambient air quality standards, particularly those for which the state

is classified as being in nonattainment. This means that Health & Saf. Code, § 40724.6, is an ozone-specific

statute. [*538] A fair reading of Sen. Bill No. 700 and § 40724.6 is consistent with an interpretation that §

40724.6 addresses ozone and ozone precursors. There is nothing in the statute or the legislative history to

suggest that the rule was intended to address all other air pollutants.

(9) Pollution and Conservation Laws § 4--Air Pollution--Powers and Duties of Control

Districts--Adoption of Rules--Control Measures--Large Confined Animal Facilities--Federal

Nonattainment Areas.--Sen. Bill No. 700 (2003-2004 Reg. Sess.) (Stats. 2003, ch. 479, § 6), consistent

with its statement of intent, includes rule-mandating provisions addressing both ozone and particulate matter

in Health & Saf. Code, §§ 40724, 40724.5, 40724.6, and 40724.7. These sections address the two identified

problems, ozone and particulate matter, depending on whether an air pollution control district has achieved

attainment of state and federal ambient air quality standards related to these pollutants. Section 40724, using

language similar to § 40724.6, applies to districts designated as serious federal nonattainment areas for the

applicable ambient air quality standard for particulate matter. Similar to § 40724.6, the statute requires that

the district adopt a rule regulating agricultural sources of particulate matter (including large confined animal

facilities) using the best-available retrofit control technology. Section 40724.5 applies to districts designated

as moderate federal nonattainment areas for applicable ambient air quality standard for particulate matter. It

requires the adoption of control measures unless the district determines that agricultural practices do not

significantly cause or contribute to a violation of state or federal standards. Section 40724.6 parallels §

40724 in that it requires a rule regulating large confined animal facilities where the district is classified as

severe or extreme nonattainment for ozone. Section 40724.7 parallels § 40724.5 in that it requires a rule

controlling large confined animal facilities unless the district finds that the facilities will not contribute to a

violation of state or federal standards.

(10) Pollution and Conservation Laws § 4--Air Pollution--Powers and Duties of Control

Districts--Adoption of Rules--Control Measures--Large Confined Animal Facilities--Federal

Nonattainment Areas.--Health & Saf. Code, §§ 40724, 40724.5, 40724.6, and 40724.7, contain triggering

language related to attainment or nonattainment of either ozone or particulate matter. The trigger is not

capricious: It relates directly to the level of attainment or nonattainment achieved by an air pollution control

district related to the triggering pollutant. The Legislature has determined that if a district has attained federal

and state ambient air quality standards for either particulate matter or ozone, it will be given greater

deference in addressing the problem pollutant. If not, the statute mandates more stringent controls of

sources for the [*539] identified pollutant. The words chosen in these four sections are not identical, but

Page 6

168 Cal. App. 4th 535, *537; 85 Cal. Rptr. 3d 590, **;

2008 Cal. App. LEXIS 2267, ***1; 39 ELR 20281
they must be read in harmony with one another.

(11) Statutes § 33--Construction--Language--Noscitur a Sociis (Meaning Derived from

Context).--Under the rule of noscitur a sociis, the meaning of a word may be enlarged or restrained by

reference to the intent of the whole clause in which it is used.

(12) Statutes § 34--Construction--Language--Ejusdem Generis (General Limited by Specific).--Under

the rule of ejusdem generis, the general term or category is restricted to those things that are similar to the

more specific term or category enumerated.

(13) Pollution and Conservation Laws § 4--Air Pollution--Control of Agricultural Emission

Sources--Pollutants Addressed--Ozone--Ambient Air Quality Standards.--The legislative use of the

general term "air contaminants" is restricted by the more specific references to the ambient air quality

standards for ozone in Health & Saf. Code, §§ 40724.6 and 40724.7, and for particulate matter in Health &

Saf. Code, §§ 40724 and 40724.5. § 40724.6, subd. (a). The express references in § 40724.6, subd.

(d)(1)(B), to severe and extreme nonattainment areas can only be read as a reference to ozone, for only

nonattainment to ozone ambient air quality standards is classified as severe or extreme. Although only the

"trigger" language is limited specifically to ozone, the statutory language also generally refers to applicable

emissions thresholds, emissions of air pollutants that cause or contribute to a violation of a state or federal

ambient air quality standard, all regulated air pollutants, and pollutants that contribute to the nonattainment of

any ambient air quality standard. This language consistently refers to pollutants regulated by ambient air

quality standards, such as ozone and particulate matter. Even if § 40724.6 were to be read as applying to all

or any ambient air quality standards, a term of art under the federal Clean Air Act (42 U.S.C. § 7401 et seq.),

ammonia is not a pollutant that is subject to a national ambient air quality standard. National standards have

been set for only six pollutants: particulate matter, sulfur dioxide, ozone, nitrogen dioxide, carbon monoxide,

and lead. Other hazardous air pollutants are not regulated through ambient air quality standards.

(14) Statutes § 21--Construction--Legislative Intent.--The primary role of a court when interpreting a

statute is to ascertain the intent of the lawmakers to effectuate the purpose of the law. [*540]

(15) Pollution and Conservation Laws § 4--Air Pollution--Control of Agricultural Emission

Sources--Analysis Required.--Health & Saf. Code, § 40724.6, subd. (e)(3), (6), requires an analysis of the

emission-reduction potential of the rule and an assessment of the availability and cost effectiveness of

alternatives. It then limits implementation to feasibility (§ 40724.6, subd. (b)).

COUNSEL: Center on Race, Poverty & the Environment, Brent J. Newell, 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 for Interveners and

Respondents.

JUDGES: Opinion by Wiseman, Acting P. J., with Levy and Dawson, JJ., concurring.

OPINION BY: Wiseman

OPINION

[**594] 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.

Page 7

168 Cal. App. 4th 535, *539; 85 Cal. Rptr. 3d 590, **;

2008 Cal. App. LEXIS 2267, ***1; 39 ELR 20281
1 All further statutory references are to the Health and Safety Code [***2] unless otherwise noted.

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 (2003-2004 Reg. Sess.) (Sen. Bill 700). (Stats. 2003, ch. 479, § 6.) The

statute mandates that those state air pollution control districts 2 designated federal [**595] nonattainment

areas for [*541] 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 Senate Bill 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 [***3] protect public health and the environment." (Stats. 2003, ch. 479, § 1, subd.

(a)(7).) The agricultural industry, including the many facilities located in the San Joaquin Valley (valley),

contribute large quantities of emissions and particulates (PM10 and PM2.5) 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 PM2.5. (Stats. 2003, ch. 479, § 1, subd. (a)(1), (2), (3).)

2 The Clean Air Act requires that each state adopt a state implementation plan to address air pollution problems and identify

how the state will achieve and maintain national air quality standards for identified pollutants. (El Comite Para El Bienestar v.

Warmerdam (9th Cir. 2008) 539 F.3d 1062; see generally Wooley & Morss, Clean Air Act Handbook (17th ed. 2007) § 1:16, pp.

34-35.) The state in turn has created air quality control districts to address regional air quality problems stemming from sources

other than motor vehicles, of which the [***4] district is one. (§ 40000.) The district includes within its jurisdiction the counties of

Fresno, Kern, Kings, Madera, Merced, San Joaquin, Stanislaus, and Tulare. (§ 40600, subd. (a).) For a helpful overview of the

federal and state legislative and regulatory scheme designed to combat national air pollution, see Association of Irritated

Residents v. Fred Schakel Dairy (E.D.Cal., Dec. 2, 2005, No. CIV F 05-00707 AWI SMS) 2005 WL 3299508, 61 ERC (BNA)

1801.

3 Ozone is an air pollutant that is regulated by the Clean Air Act, 42 United States Code section 7401 et seq., through the

adoption of national ambient air quality standards. National ambient air quality standards are intended to protect public health

from the adverse effects of ambient air pollutants based on the latest scientific knowledge. (Whitman v. American Trucking

Assns., Inc. (2001) 531 U.S. 457, 465 [149 L. Ed. 2d 1, 121 S. Ct. 903]; Lead Industries Ass'n v. Environmental Protection (D.C.

Cir. 1980) 208 U.S. App.D.C. 1 [647 F.2d 1130, 1152].) Those areas of the country not meeting the national standards are

classified depending on the severity of their nonattainment. Ozone is not controlled directly, but by limiting emission of volatile

organic compounds and nitrogen oxides. (See generally Wooley & Morss, Clean Air Act Handbook, supra, § 1:3, [***5] pp.

9-11.)

4 A confined animal facility is one in which animals raised for commercial purposes are confined in large pens or corrals and are

fed primarily by a method other than grazing. (§ 39011.5, subd. (a)(1).)

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 [*542] 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.

Page 8

168 Cal. App. 4th 535, *540; 85 Cal. Rptr. 3d 590, **594;

2008 Cal. App. LEXIS 2267, ***1; 39 ELR 20281
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 [***6] 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 [**596] 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

[HN1] (1) The adoption of rule 4570 was a quasi-legislative act reviewable by a petition for traditional

mandamus. (Code Civ. Proc., § 1085; [***7] 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].)

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 [*543] Appropriate Land Use v. County of

Tuolumne (2007) 157 Cal.App.4th 997, 1004 [68 Cal. Rptr. 3d 882].)

[HN2] 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 [***8] 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]; see 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 [**597] assessment equivalent to the assessment provided for the

other eight factors listed in section 40724.6, subdivision (e)(1) through (8).

Section 40724.6, subdivision (e), [***9] reads:

"(e) [HN3] 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

impacts 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

Page 9

168 Cal. App. 4th 535, *542; 85 Cal. Rptr. 3d 590, **595;

2008 Cal. App. LEXIS 2267, ***5; 39 ELR 20281
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 [*544] 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."

[HN4] (2) The language of the [***10] 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 impacts, and rule consistency.

These are independent analyses done by experts that provide more than conclusory or summary

information. We agree with the district, however, that the statute does not require that the assessment take

any particular form or be performed by independent experts. The statute requires only that an assessment

be done prior to the adoption of the rule and that it include an analysis of the identified factors. (§ 40724.6,

subd. (e).) The question here is whether the district's staff report is sufficient to meet the statutory

requirements. On this point, we agree with the association and conclude that the staff report [***11] is

insufficient because it does not assess the rule's impact on public health.

The staff report acknowledges the statutory requirement that certain items be assessed in the rulemaking

process. The report provides a table identifying each required assessment and states where in the report the

required analysis appears. According to the report, the impact of the regulated emissions on public health is

done in "Section IB and Section II of the Staff Report." However, these sections do not speak to the impact of

the regulated emissions on public health. Section II begins at page 9 and ends at page 22 of [*545] the staff

report. It provides general background information on the agricultural animal industry, without any reference

to public health. Section IB is a general overview of the purpose of rule 4570 and offers no analysis of the

rule's impact on public health. The staff report does contain section VIII, which is labeled "Health [**598]

Effects." The section consists of one paragraph and reads in its entirety as follows: "Respiratory diseases

associated with agriculture were one of the first-recognized occupational hazards. According to the Institute

for Agriculture and Trade Policy (Wallinga 2004), [***12] studies at beef, swine, and poultry facilities show

increased occurrences of asthma, sinusitis, bronchitis, decreased lung function, and depression among

workers at concentrated animal feeding operations. Of the 331 VOC and gaseous compounds found in

odorous samples from North Carolina swine facilities, 157 are known airway irritants; chronic irritation can

permanently scar lungs and lead to respiratory problems. (Wallinga 2004.)"

(3) This single paragraph is inadequate and does not comply with the statutory directive. The district

conceded at argument that this single paragraph was not intended to comply with section 40724.6,

subdivision (e)(2), although it argued it does not matter. The paragraph addresses occupational health, not

general public health concerns, and does not touch upon the required analysis, i.e., the impact of the rule on

public health. The district suggests that there is no need to discuss the impact on public health during the

rulemaking process because the rule is intended to assure compliance with health-based federal ambient air

quality standards. If this were true, there would be no need for the Legislature to mandate such an

assessment. To the contrary, an "assessment" [***13] is an evaluation, a determination of significance.

(Webster's New World Dict. (2d college ed. 1982) p. 83.) [HN5] We decline to construe a statute in a way

that makes meaningless the words chosen by the Legislature. (People v. Western Air Lines, Inc. (1954) 42

Cal.2d 621, 638 [268 P.2d 723].)

(4) [HN6] The statute requires that the rule be assessed in light of the identified problem and that the actual

Page 10

168 Cal. App. 4th 535, *543; 85 Cal. Rptr. 3d 590, **597;

2008 Cal. App. LEXIS 2267, ***9; 39 ELR 20281
words of the statute be given their plain and commonsense meaning. (Mercer v. Department of Motor

Vehicles (1991) 53 Cal.3d 753, 763 [280 Cal. Rptr. 745, 809 P.2d 404].) It is not enough to say that VOC

emissions from large confined animal facilities add to poor air quality, which in turn impacts public health.

This fact was acknowledged in the legislative history for Senate Bill 700. (Stats. 2003, ch. 479, § 1, subd.

(a)(7).) In addition, it is insufficient to discuss the adverse health impact of ozone generally, for example, the

general discussion in the district's Extreme Ozone Attainment Demonstration Plan included in the district's

rule-adoption materials. Section 40724.6, subdivision (e)(2), expressly requires that the district undertake an

assessment of the impact of rule 4570 on [*546] public health. (Sen. Rules Com., Off. of Sen. Floor

Analyses, Sen. Bill [***14] No. 700 (2002-2003 Reg. Sess.) as amended Sept. 9, 2003, p. 3 [bill requires

district to perform assessment of rule's impact prior to adoption].) The statute requires that "[t]he nature and

quantity of emissions from the category, and the significance of those emissions in adversely affecting public

health and the environment," be assessed in connection with "the impact of the rule or regulation." (§

40724.6, subd.(e)(2).)

There is nothing in the administrative record that provides this analysis. Without this information, important

competing policy issues cannot adequately be addressed or weighed. When adopting rule 4570, the district's

governing board stated that VOC emission reductions would benefit the valley's public health by reducing

unhealthful concentrations of ambient ozone. This, however, is a conclusory statement offered at the end of

the rulemaking process and is unsupported by any [**599] analysis of the true impact of the rule on public

health. It is not an adequate assessment of the issue.

We conclude that the subject was not adequately covered by comments raised or reports submitted during

the public hearing process. During the public hearing process, the association [***15] provided an analysis

of the cost impact the ill health effects of poor air quality has on the valley. This report, however, did not

address the impact of rule 4570 on public health and is insufficient to meet the district's duty to assess the

impact of its rule on public health before its adoption. (§ 40724.6, subd. (e).) Likewise, the air quality report

prepared by the American Lung Association, which was provided during the public comment period and

which addresses the impact of air pollution (including ozone) on public health nationally, does not address

the impact of rule 4570 on public health in the valley.

At the public hearing, the district's executive officer told those present that the district was "all about" public

health. However, he offered no insight regarding what the district expected to achieve concerning public

health benefits with the adoption of rule 4570. He simply stated that the district had reduced emissions

significantly in the recent past, even though he acknowledged that asthma rates continue to climb. This

explanation misses the point. [HN7] Section 40724.6, subdivision (e)(2), requires an assessment that

answers the question of how this rule will impact human health or, [***16] at the very least, why the rule will

have no impact.

(5) Similarly, the district claims that the statutory assessment requirement is "a proportionality requirement,"

and requires that the district "be mindful of imposing large economic burdens for de minimis air quality

benefits." The district is correct and this consideration is a part of the required assessment. [HN8]

Subdivision (e)(5) of section 40724.6 expressly requires assessment of the [*547] cost of implementing rule

4570 to the affected sources and businesses that are regulated. By the same token, an equal part of the

required assessment is whether the controls imposed are sufficient to move the valley toward cleaner air.

Senate Bill 700 was enacted in recognition that valley air must be improved to protect public health and that

the past practice of exempting agricultural sources of air pollutants was not justified by potential adverse

economic impacts on the agricultural industry. (See Stats. 2003, ch. 479, § 1, subd. (a)(1), (4), (7).) If, as the

district claims, the rule is intended to assist in meeting federal health-based ambient air quality standards, it

is not surprising that the Legislature has required the district to evaluate how its rule [***17] will impact the

health concerns which led to the Clean Air Act in the first place. (Wooley & Morss, Clean Air Act Handbook,

supra, § 1:1, p. 4 [Clean Air Act requires identification of air pollutants believed to cause/contribute to air

pollution levels that may endanger public health; national ambient air quality standards set at levels adequate

to protect public health].) After all, the Clean Air Act's primary consideration is the public welfare of the

nation. (See 42 U.S.C. §§ 7602, 7408(a) & 7409(b)(1); Whitman v. American Trucking Assns., Inc., supra,

531 U.S. at pp. 465-467 [air quality standards set to protect public health; cost not a factor to be considered

in setting standards].)

Page 11

168 Cal. App. 4th 535, *545; 85 Cal. Rptr. 3d 590, **598;

2008 Cal. App. LEXIS 2267, ***13; 39 ELR 20281
From this record, we cannot tell whether rule 4570's planned reduction in VOC emissions will have any

impact on public health at all. The association suggests there will be no significant impact, claiming that the

district has simply required the status quo. Whether the association is correct is something the district

[**600] should have considered in its public health analysis and that should have been contained in the

rulemaking process record. To the contrary, the district obviously knows how to provide [***18] an

appropriate assessment. When faced with other assessment requirements, like those found in section

40727.2, subdivision (a) (requires rule-consistency analysis) and section 40920.6 (requires best-available

retrofit control technology), it responded with a full-blown independent assessment of the identified factor.

The district provides no insight into how it balanced public health concerns against other interests during the

rulemaking process. [HN9] The statute requires that the rule be assessed prior to adoption and submitted to

a public-hearing process. (§ 40724.6, subd. (e).) As with any environmental regulation, a delicate balancing

of competing policies and interests must occur. For example, the need for jobs, economic viability in the

valley, a consistent high-quality food source, plentiful clean water, and many other interests must compete

with each other when government seeks to regulate human activity [*548] to protect the environment. (See

San Francisco Ecology Center v. City and County of San Francisco (1975) 48 Cal.App.3d 584, 596 [122 Cal.

Rptr. 100] [court recognizes agency must balance competing interests; key is whether agency's "mode of

analysis" is exposed].)

In addition, the purpose of requiring [***19] that proposed regulations be submitted to a public hearing

process is to ensure that every interest is represented, that the rule makers are well informed, and that an

equally well-informed public is able to persuade and monitor government through the democratic process. (In

re Bay-Delta et al. (2008) 43 Cal.4th 1143, 1162 [77 Cal. Rptr. 3d 578, 184 P.3d 709] [purpose of California's

environmental impact report is to give public and government agencies information needed to make informed

decisions, protecting not only environment but also providing informed self-government]; Schoen v.

Department of Forestry & Fire Protection (1997) 58 Cal.App.4th 556, 573-574 [68 Cal. Rptr. 2d 343] [purpose

of requiring public review is to demonstrate to an apprehensive citizenry that agency has analyzed and

considered ecological implications of its action; public review permits accountability and informed

self-government]; Salmon River Concerned Citizens v. Robertson (9th Cir. 1994) 32 F.3d 1346, 1356

[informed decisionmaking and informed public participation are purpose of required public hearing process].)

It is for this reason that the interveners' argument (that for the association to be successful on appeal, it must

prove that the rule would not have [***20] been adopted had the assessment been provided) fails. The

prejudice is not that the rule was adopted, but that it was adopted without informed and transparent

decisionmaking.

For example, the district claims that rule 4570 will reduce VOC's by 7,563 tons per year; however, it makes

no statement about how this will impact public health concerns. The report discusses how much the changes

in feed and waste management will cost facilities and identifies a number of possible controls which have

been rejected because of their high cost. If costs are going to justify mandating lesser controls instead of

tougher ones, the public is entitled to know what the cost of this decision will be to public health. If the

available science is insufficient to justify more expensive, tougher environmental controls, the public is

entitled to know this as well.

(6) We have no quarrel with the district's legislatively granted authority to apply its expertise to these

questions. (San Francisco Fire Fighters Local 798 v. City and [**601] County of San Francisco, supra, 38

Cal.4th at p. 667 [court gives deference to presumed expertise of agency within its scope of authority].)

However, [HN10] although an agency is free to make this [***21] policy call, it can do so only when the

balancing process is exposed to public view. (Schoen v. [*549] Department of Forestry & Fire Protection,

supra, 58 Cal.App.4th at pp. 573-574; § 40724.6, subd. (e).) Neither the staff report nor the district

representatives during the review process addressed rule 4570's impact on public health, despite the

expressed concern for public health. Will this rule make a significant measurable difference in air quality

(ozone levels) and bring improvement to public health concerns related to poor air quality? If not, are higher

costs justified based on the cost of public health issues that are tied to air pollution? These are questions that

remain unanswered because the required assessment was never done. If the goal is healthier air, the district

has not shown whether it has taken steps toward reaching that goal.

(7) As with any environmental regulation, there are difficult choices to be made. On this record, it was

impossible for the public or the district's governing body to know how the acknowledged public health interest

Page 12

168 Cal. App. 4th 535, *547; 85 Cal. Rptr. 3d 590, **599;

2008 Cal. App. LEXIS 2267, ***17; 39 ELR 20281
fared when balanced against the other competing interests. For this reason, the trial court erred when it

denied the petition for writ of [***22] mandate.

III. Air contaminants besides ozone

The association claims the district's decision to address only VOC emissions in rule 4570 violates the

statutory requirement that the rule reduce "emissions of air contaminants" from facilities. (§ 40724.6, subd.

(a).) According to the association, the statutory reference to ozone nonattainment in section 40724.6,

subdivision (b), is simply a trigger for application of the statute. Air pollution control districts that are

designated as federal nonattainment areas of ozone as of January 1, 2004, are those districts that must

comply with this statute, but no other district. (Ibid.) The association also contends that the remaining

language of the statute suggests an intent to address all air contaminants, including ammonia emissions.

The district, on the other hand, claims section 40724.6 applies only to ozone and ozone precursors. It argues

that ammonia is not an ozone precursor and, as a result, regulation of ammonia is not mandated or permitted

under the statute.

[HN11] (8) A complete reading of the statutory changes accomplished by Senate Bill 700, and the statement

of legislative intent provided in Senate Bill 700, compel the conclusion that the legislative intent is [***23] to

control agricultural emission sources as they impact state and federal ambient air quality standards,

particularly those for which the state is classified as being in nonattainment. This means that section 40724.6

is, as the district contends, an ozone-specific statute.

The legislative preamble for Senate Bill 700 begins, "[a]gricultural operations necessary for growing crops or

raising animals are a significant source of directly emitted particulates, and precursors of ozone and fine

particulate [*550] matter. These emissions have a significant adverse effect on the ability of areas of the

state, including, but not limited to, the San Joaquin Valley, to achieve health-based state and federal ambient

air quality standards." (Stats. 2003, ch. 479, § 1, subd. (a)(1), italics added.) The very next statement refers

to nitrogen oxides, particulate matter, and VOC's, which are expressly identified as contributing "twenty-six

percent of the smog-forming emissions in the San Joaquin Valley." (Id., § 1, subd. (a)(2).) Ozone is the prime

ingredient of smog. (U.S. EPA Green Book [**602] Criteria Pollutants

<http://www.epa.gov/oar/oaqps/greenbk/o3co.html#Ozone8> [as of Nov. 19, 2008].) These statements

unquestionably link the ambient [***24] air quality standards to the pollutants identified, particulate matter,

nitrogen oxides, and VOC's. The latter two are ozone precursors. Along with particulate matter, these are the

pollutants with which California struggles to reach attainment with national ambient air quality standards.

(Ibid.)

(9) [HN12] Senate Bill 700, consistent with its statement of intent, includes rule-mandating provisions

addressing both ozone and particulate matter in sections 40724, 40724.5, 40724.6, and 40724.7. These

sections address the two identified problems, ozone and particulate matter, depending on whether the district

has achieved attainment of state and federal ambient air quality standards related to these pollutants.

Section 40724, using language similar to section 40724.6's, applies to districts designated as serious federal

nonattainment areas for the applicable ambient air quality standard for particulate matter. Similar to section

40724.6, the statute requires that the district adopt a rule regulating agricultural sources of particulate matter

(including large confined animal facilities) using the best-available retrofit control technology. Section

40724.5 applies to districts designated as moderate federal nonattainment [***25] areas for applicable

ambient air quality standards for particulate matter. It requires the adoption of control measures unless the

district determines that agricultural practices do not significantly cause or contribute to a violation of state or

federal standards. [HN13] Section 40724.6 parallels section 40724 in that it requires a rule regulating large

confined animal facilities where the district is classified as severe or extreme nonattainment for ozone.

Section 40724.7 parallels section 40724.5 in that it requires a rule controlling large confined animal facilities

unless the district finds that the facilities will not contribute to a violation of state or federal standards.

(10) [HN14] All four of these sections contain triggering language related to attainment or nonattainment of

either ozone or particulate matter. The trigger is not capricious: It relates directly to the level of attainment or

nonattainment achieved by the district related to the triggering pollutant. The Legislature has determined that

if a district has attained federal and state ambient air quality standards for either particulate matter or ozone,

it will be given greater [*551] deference in addressing the problem pollutant. If not, [***26] the statute

mandates more stringent controls of sources for the identified pollutant. We appreciate the fact that the

Page 13

168 Cal. App. 4th 535, *549; 85 Cal. Rptr. 3d 590, **601;

2008 Cal. App. LEXIS 2267, ***21; 39 ELR 20281
words chosen in these four sections are not identical, but they must be read in harmony with one another.

(Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1387 [241 Cal. Rptr. 67, 743

P.2d 1323]; Mannheim v. Superior Court (1970) 3 Cal.3d 678, 687 [91 Cal. Rptr. 585, 478 P.2d 17].)

(11) We reach the same conclusion when we apply the statutory construction canons ejusdem generis and

noscitur a sociis. [HN15] Under the rule of noscitur a sociis, the meaning of a word may be enlarged or

restrained by reference to the intent of the whole clause in which it is used. (People v. Stout (1971) 18

Cal.App.3d 172, 177 [95 Cal. Rptr. 593].) (12) Under the rule of ejusdem generis, the general term or

category is restricted to those things that are similar to the more specific term or category enumerated.

(Kraus v. Trinity Management Services, Inc. (2000) 23 Cal.4th 116, 141 [96 Cal. Rptr. 2d 485, 999 P.2d

718].) [HN16] (13) The legislative use of the general term "air contaminants" is restricted by the more

specific references to the ambient air [*552] quality standards for ozone in sections 40724.6 and 40724.7

[**603] and for particulate matter in sections 40724 and 40724.5. (§ 40724.6, subd. (a).) As the district

argues, [***27] the express references in section 40724.6, subdivision (d)(1)(B), to "severe and extreme

nonattainment areas" can only be read as a reference to ozone, for only nonattainment to ozone ambient air

quality standards is classified as "severe" or "extreme." (See 40 C.F.R. § 51.903 (2008).) These

classifications do not exist for other pollutants regulated by national ambient air quality standards. (See 40

C.F.R. §§ 50.4-50.12 (2008); U.S. EPA Green Book, supra,

<http://www.epa.gov/oar/oaqps/greenbk/o3co.html#Ozone8> [as of Nov. 19, 2008]; U.S. EPA Air Quality

Maps, Attainment Designations <http://www.epa.gov/region09/air/maps/maps_top.html> [as of Nov. 19,

2008].)

The language used in section 40724.6 is not as broad as the association contends. [HN17] Although only

the "trigger" language is limited specifically to ozone, the statutory language also generally refers to

"applicable emissions threshold[s]," ?emissions of air pollutants that ... cause or contribute to a violation of a

state or federal ambient air quality standard," "all regulated air pollutants," and "pollutants that contribute to

the nonattainment of any ambient air quality standard ... ." 5 This language consistently refers to pollutants

regulated [***28] by ambient air quality standards, such as ozone and particulate matter. Even if we were to

read section 40724.6 as applying to all or any "ambient air quality standard[s]," a term of art under the federal

Clean Air Act, ammonia is not a pollutant that is subject to a national ambient air quality standard. National

standards have been set for only six pollutants: particulate matter, sulfur dioxide, ozone, nitrogen dioxide,

carbon monoxide, and lead. Other hazardous air pollutants are not regulated through ambient air quality

standards. (Wooley & Morss, Clean Air Act Handbook, supra, § 1:3, pp. 10-11.) In any event, the district

determined that, when adopting its rule 4570 pursuant to section 40724, the regulation of ammonia was not

necessary for attainment of any air quality standard, and the association has not shown otherwise.

5 The quoted language is found in section 40724.6, subdivisions (c), (c)(1), (d)(1)(A), and (B), respectively, with italics added.

[HN18] (14) The primary role of the court when interpreting a statute is to ascertain the intent of the

lawmakers to effectuate the purpose of the law. (People v. Carron (1995) 37 Cal.App.4th 1230, 1236 [44 Cal.

Rptr. 2d 328].) We believe [HN19] a fair reading of Senate Bill 700 [***29] and section 40724.6 is consistent

with the district's interpretation that section 40724.6 addresses ozone and ozone precursors. There is

nothing in the statute or the legislative history to suggest that the rule was intended to address all other air

pollutants.

IV. Arbitrary, capricious, and lack of evidentiary support

The association's last contention is that the district's findings are arbitrary, capricious, and lack evidentiary

support. [HN20] We have a limited standard of review in mandamus actions and may reverse only where the

action taken is "so palpably unreasonable and arbitrary as to show an abuse of discretion as a matter of law."

(Carrancho v. California Air Resources Board (2003) 111 Cal.App.4th 1255, 1265 [4 Cal. Rptr. 3d 536].) We

grant deference to the agency's decision and may not substitute our judgment for that of the public agency

granted authority over a particular area of subject matter expertise. (See Neighbors in Support of [**604]

Appropriate Land Use v. County of Tuolumne, supra, 157 Cal.App.4th at p. 1004.)

Page 14

168 Cal. App. 4th 535, *551; 85 Cal. Rptr. 3d 590, **602;

2008 Cal. App. LEXIS 2267, ***26; 39 ELR 20281
The association claims that the district (1) relied upon unsupported reduction assumptions; (2) double

counted reduction estimates; (3) assumed a 50 percent control efficiency for all liquid [***30]

manure-handling mitigation options based on the control efficiency of only phototropic lagoons; (4) relied on

emission-reduction estimates for applying manure to croplands without evidentiary support; and (5) failed to

analyze more expensive mitigation measures based on an assumption that facilities would choose the

cheapest mitigation measure. We reject each of these contentions because the district applied its expertise

to the scientific and policy considerations before it and reached a conclusion that was neither arbitrary nor

capricious given the record evidence. Further, we agree with the district that section 40724.6 does not

require that the rule result in any specific numeric reduction of VOC's; it simply mandates that the district

adopt a rule to control VOC emissions generated by large confined animal facilities based on the available

science [*553] and, to the extent feasible, balance all statutory concerns. As a result, any numerical error in

the assumptions used by the district fails to undermine the validity of its rule.

A. Reduction assumptions

The association claims that the district arbitrarily relied on default assumptions to reach its conclusion that

rule 4570 will reduce [***31] VOC emissions by 9,594,705 pounds per year, a 65 percent reduction in

VOC's. According to the association, this assumption was arrived at by assigning a 10 percent reduction for

13 of the 19 mitigation measures offered to facilities although there is no scientific data to support a

conclusion that a 10 percent reduction would occur upon implementation of any of these 13 mitigation

measures. The district acknowledged that many of its assumptions were based on studies and data showing

that these practices would result in some reduction, but that there was insufficient science to know exactly

what the reductions would be. The district assigned a conservative percentage to the anticipated reduction to

be achieved and stated that, as science becomes available, a more exact percentage will be attached to

each of these measures. As the district repeatedly stated in the rulemaking process, this is a newly regulated

industry and the supporting science is still developing. In the absence of more specific science, the district

relied on the available studies and industry expertise to assign its numbers. It was not overly optimistic,

assigning conservative numbers to estimated reductions. The [***32] association has not provided any

science to refute the estimates assigned by the district.

B. Double counting

The association also claims that the district acted arbitrarily when it "double counted" reduction estimates.

Rule 4570 allows facilities to feed their animals according to National Research Council (Council) guidelines

as a chosen mitigation measure. It is estimated that this option will reduce valley VOC emissions by 10

percent. However, the association argues that this assumption is based on scientific studies in which the

animals already were being fed according to the guidelines. As a result, the district's estimated reduction of

10 percent arbitrarily double counts the benefits of feeding according to the guidelines and is unlikely to bring

an actual reduction in VOC emissions. We disagree with the association's position. A number of studies

considered by the district suggested [**605] that dietary manipulations cause a reduction in animal VOC

emissions. According to one study, changing diet from dry corn to high-moisture corn potentially reduces

VOC emissions by 63 percent. Other studies suggest reductions to a lesser extent, but there appears to be

agreement that the type of [***33] feed an animal receives impacts its enteric emissions. The district chose

the lowest reduction reported as a [*554] conservative estimate of what might be accomplished if a facility

chose to feed according to Council guidelines. Although there is a conflict in the record regarding whether

the studies being done involved animals fed according to Council guidelines, any dispute must be resolved in

favor of the district. (Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1087 [4 Cal. Rptr. 2d 874, 824 P.2d

680] [on appeal, we view record most strongly in favor of judgment], overruled on other grounds in Green v.

Ralee Engineering Co. (1998) 19 Cal.4th 66, 80, fn. 6 [78 Cal. Rptr. 2d 16, 960 P.2d 1046].)

Additionally, the district staff has determined that a significant number of facilities do not consistently feed

according to Council guidelines and that adopting this as a mitigation measure will result in real reductions of

VOC's. Even if the 10 percent is an overly optimistic number, the statute does not mandate a quantitative

reduction in VOC emissions. It leaves the number crunching and the science to the agency, which has the

expertise to make these types of decisions. Based on this record, we cannot say that the district's

assumptions are arbitrary and capricious.

C. [***34] Liquid manure mitigation measures

Page 15

168 Cal. App. 4th 535, *552; 85 Cal. Rptr. 3d 590, **604;

2008 Cal. App. LEXIS 2267, ***29; 39 ELR 20281
According to the association, the district improperly assumed a 50 percent control efficiency for each of the

liquid manure mitigation measures based on the control efficiency of phototropic lagoons, which are

managed to encourage the growth of photosynthetic bacteria. These bacteria get their energy from the sun

and generate about 80 to 90 percent fewer VOC's in the decomposition of organic materials. Since only one

of the mitigation measures identified is the use of what would be a deliberately managed phototropic lagoon,

the association claims the assumed reduction of 50 percent is arbitrary.

While we agree that not all the mitigation measures for liquid manure management are linked directly to

evidence of a 50 percent reduction in VOC emissions, we cannot say that the district's conservative

assignment of a 50 percent reduction in emissions for this category of mitigation measures is arbitrary.

VOC's are formed as intermediate metabolites in the degradation of organic material, e.g., manure. VOC's

will be higher where there are storage tanks, ponds, overloaded anaerobic lagoons, and land application

sites allowing the escape of VOC's as they form. [***35] Anaerobic systems are the most common liquid

waste management systems used. Effective anaerobic systems minimize VOC emissions. The management

practices listed for this category of mitigation measures is designed to make existing anaerobic systems

more effective. VOC's are minimized when open storage ponds are eliminated; where existing lagoons are

managed under properly stabilized anaerobic [*555] conditions, causing photosynthetic bacteria to flourish;

where solids are eliminated or reduced; and where lagoon pH is maintained between 6.5 and 7.5.

According to the staff report, loading rates are the same for phototropic lagoons, for anaerobic lagoons

managed according to Council guidelines, and for facilities using a solids separator. Also according to the

staff report, this justifies an assumption [**606] that control efficiencies are similar when facilities use either

a phototropic lagoon or a solids separator. The rulemaking materials corroborate the staff's analysis of the

management practices listed. In the absence of scientific data proving the contrary, and in the absence of

any requirement that rule 4570 achieve a specific quantitative reduction in emissions, it is not arbitrary for the

district [***36] to exercise its subject matter expertise and assign a conservative estimate to the category of

mitigation measures for all liquid waste management by using the studies related to the use of phototrophic

lagoons as a starting point.

D. Application of manure to cropland

Another available mitigation measure challenged by the association is the application of manure to cropland.

According to the association, the district, without evidentiary support, assigned a 50 percent reduction in

emissions to this measure, despite wide variation in reported reduced emissions achieved by applying

manure to cropland. According to the district, rapid incorporation of animal waste into cropland by tilling,

injection, and other methods, is an effective control measure. One study by the South Coast Air Quality

Management District staff shows a reduction of 23 percent in VOC emissions when manure quickly is

incorporated into soil. According to the district, this occurs because soil acts as a biofilter, defined as a

medium of organic material with microbial activity. Additional studies show that use of biofilters generally can

reduce emissions by 10 to 90 percent, depending on how the biofilters are maintained. [***37] The

association has not provided persuasive authority for its contention that soil is not a biofilter, and we must

defer to the district's expertise in the absence of any showing to the contrary. Although we question why the

district rejected the 23 percent number reported under the same conditions, i.e., when actual application to

cropland was studied, we cannot say the number used by the district (50 percent) is arbitrary in light of the

studies showing a much higher reduction obtained with use of properly maintained biofilters.

E. Failure to assess more expensive mitigation measures

(15) Finally, according to the association, the district arbitrarily assumed that facilities would choose only the

cheapest mitigation measures when [*556] complying with rule 4570 and therefore failed to attach

emission-reduction estimates to the more expensive measures. First, there is no requirement that the district

provide quantitative emission estimates for measures considered outside the best-available retrofit control

technology. [HN21] The statute requires an analysis of the emission-reduction potential of the rule and an

assessment of the availability and cost effectiveness of alternatives. (§ 40724.6, subd. (e)(3), [***38] (6).) It

then limits implementation to feasibility. (§ 40724.6, subd. (b).) The various alternative technologies were

discussed in the staff report, and those outside the best-available retrofit control technology criteria were

identified and evaluated.

Page 16

168 Cal. App. 4th 535, *554; 85 Cal. Rptr. 3d 590, **605;

2008 Cal. App. LEXIS 2267, ***34; 39 ELR 20281
Although no number was assigned, the superior control efficiency of most of the identified mitigation

measures was discussed. For example, at pages 30 and 31 of the staff report, the district identified housing

animals in an enclosed structure with emissions vented through a biofilter as an alternative mitigation

measure. According to the district "[t]his option alone may achieve highest VOC reductions of all the

management practices proposed combined." This measure was considered outside best-available retrofit

control technology because of its high cost and because it [**607] has not yet "been achieve[d] in practices

at facilities similar in size to those defined as large [confined animal facilities] by the [Air Resources Board]."

Likewise, the staff report identifies complete aeration of lagoons for liquid manure management as a superior

management practice because complete aeration allows decomposition of the organic materials with minimal

[***39] VOC emissions. The district notes, however, that the technology requires significant energy

consumption and has not been achieved in practice at facilities within the valley air basin. As a result, the

district concluded that the measure is beyond best-available retrofit control technology. The district's

conclusion is not arbitrary, especially in light of the statutory requirement that the emission reductions be

assessed to determine the rule's "potential" for emission reduction. (§ 40724.6, subd. (e)(3).) These

mitigation measures were included in the control measure menus in order to allow those facilities willing to

implement the more expensive measures credit for their economically challenging choice, in other words, to

encourage voluntary practices exceeding the scope of the statutory mandate. It is reasonable to assume that

the facilities would opt not to use those measures so expensive that the cost far outweighs annual profits. It

is not unreasonable for the district to calculate the potential emission reduction of its rule based on the

likelihood that only the cheapest options will be chosen. This is a conservative approach, not an arbitrary

one. [*557]

DISPOSITION

The order denying [***40] the writ of mandate is reversed and the trial court is ordered to grant the writ,

instructing the district to complete an assessment on the public health impacts of the rule. Costs on appeal

are awarded to the association.

Levy, J., and Dawson, J., concurred.

Page 17

168 Cal. App. 4th 535, *556; 85 Cal. Rptr. 3d 590, **606;

2008 Cal. App. LEXIS 2267, ***38; 39 ELR 20281