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CC Exhibit 03-03-15 Oral Communications ot 1 1 � 11 14. Olqbm 1 • —. t F i} • f%� .s , t { u ^ t 1• r � o y M ry + P m d; 14 37°fie [� TT _ F - „� � i �� - -.__}•4`ar € /1 ��e 'f� to iie s Sunnyvale Town Center Vallco Sized Up Vallco Developer Plans Lot Size 36.5 acre 4 STC*137% 4 50.0 acre 50.0 acre =19589,940 ft2 291781000ft2 2,178,000ft2 Retail 991,761 ft2 113589712 ft2 600,000ft2 Office 315,000 ft2 413,550 ft2 29000900oft2 Housing 452,637 ft2 (292 units) 620,112 ft2 (400 units) 589,048 ft2 (380 units) 389 Hotel 133,256 ft2 (200 rm) 182,560 ft2 (274 rm) 256,518 ft2 (385 rms) ------------- -------------- ---------------- 198329278 ft2 295749934 ft2 394459566ft2 116% FAR 119% FAR 4 +37% 4 158% FAR = 37% Density Over SVTC + Parking Garages + Parking Garages + Parking Garages SUNNYVALE TOWN CENTER 41 t � pw FEE , >> r . iv x v r r j yP0 y C M lip • #� o ri dl f4( NC Cupertino residents are not no growth 4 it's Sensible Growth -tensible Growth Critical Mass Growth #1 Consider impact on schools Yes No #2 Consider traffic impact on residents Yes No #3 Consider quality of life Yes No #4 Consider Cupertino landscape Yes No #5 Consider Cupertino Residents Yes No CSC ff,A L- aaAl/'t- u er i no OfficeAllocation Ho - - - . �S. - . . ? , Proposed Vallco 2000000 --------------- --------------------------------------- office space ------ --------- ------- - 1500000 _ -- --- ---- --- � 1000000 U) Apple Campus 2 Other proposed s ace 500000 ------- office Net new office demand ABAG Pro'ections) 0 What is said in Dec. 2nd staff report (http://www.cupertinogpa.org/files/managed/Document/369/ STAFFREPORT.pdf) Request- rom a potential applicant and consultant response:_ On October 13, 2014, the City received a letter from a potential developer of the Vallco Shopping District generally stating that the costs of assembling the site, providing a minimum of 600,000 square feet of retail in a high quality mixed-use "Town Center" envisioned for the area, community benefits and off-site infrastructure costs, would require at least 2,000,000 square feet, or 1,000,000 square feet more than was recommended in the Balanced flan (see Attachment CC). The City's retail consultant reviewed the request and noted that given the: high cost of site assembly and construction, an office allocation of up to 2,000,000 could potentially be necessary to make the project economically viable. However, it could not be verified without a proforma review, �'_� Where is this review? 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Lehigh Hanson i-I IDELBIERG+CEAAENTGroup Gregory Knapp Director Environmental Affairs,Region West 12667 Alcosta Blvd,San Ramon,CA 94583 (925)244-6570 January 15, 2015 Mr. Rob Eastwood Principal Planner, County of Santa Clara Santa Clara County Planning,Department RE: Pond 30 December Stormwater Results Dear Mr. Eastwood Attached are the lab sheets for the December 2014 storrnwater analysis results from discharges out of Pond 30. We have included a summary of the results below,as you -,rquestecl. Note that the sampling results show a general increase in recorded total recoverable selenium in comparison to the past two seasons. We are analyzing the causes for this,which may include the large storm flows associated with December storms and reclamation grading during the fall which was anticipated to generate a temporary increase in selenium in runoff. We intend to meet in short order to discuss the results in more detail. Sample Date December Total Recoverable Selenium: 26 micrograms/liter(ug/L or parts per billion) Mercury: 2.47 ug/L Oil &Grease: Non Detect(ND) Settleable Solids: 80 milliliters per liter/hour(ml/L-hr) Total Suspended Solids(TSS):7100 milligrams/liter(mg/L) Hexavalent chromium ("Chromium 6"): 1.5 ug/L Total Recoverable Nickel: 890 ug/L Thallium:3.2 ug/L Sample Date December 12 Total Recoverable Selenium: 65 ug/L Mercury: ND Total Dissolved Solids(TDS): 170 mg/L Total Recoverable Nickel: 14 ug/L Total Recoverable Thallium: 0.24 ug/L Total Recoverable Antimony: 1.1 ug/L Total Recoverable Arsenic 3.4 ug/L Total Recoverable Beryllium: ND Total Recoverable Cadmium:0.26 ug/L Total Recoverable Chromium: 3.9 ug/L Total Recoverable Copper:9.6 ug/L Total Recoverable Lead: 0.15 ug/L Total Recoverable Silver: ND Total Recoverable Zinc:67 ug/L Sample Date December 22 Total Recoverable Selenium: 81 ug/L Mercury: ND Total Dissolved Solids(TDS): 2800 mg/L Total Recoverable Nickel: 21 ug/L Total Recoverable Thallium: ND Total Recoverable Antimony: ND Total Recoverable Arsenic 3.9 ug/L Total Recoverable Beryllium: ND Total Recoverable Cadmium:0.31 ug/L Total Recoverable Chromium:3.3 ug/L Total Recoverable Copper:8.3 ug/L Total Recoverable Lead: 0.25 ug/L Total Recoverable Silver: ND Total Recoverable Zinc:60 ug/L Any page labeled "Quality Control' indicates reported laboratory method tests using spiked samples to assure actual result accuracy.These results are not actual samples from Pond 30.Any page labeled "Chain of Custody" indicates the transfer of samples from the field through the various laboratories. Please contact me with any questions. Gregory Knapp Director Environmental Affairs Lehigh Hanson Region West County of Santa Clara coU 1- Department of Planning and Development ',, Pi aming office County Government Center,East Wing,7th Floor 70 west Hedding Street San Jose,California 95110-1705 Est'4"` (408)299-5770 FAX(408)288.91-98 www,sccpianning.org STAFF REPORT Planning Commission. November 20, 2014 Item File No. 2250-10PAM Lehigh Permanente Quarry Public Hearing to Consider (a) Reclamation Plan Annual Status Report; (b) Compliance with Stormwater Discharge Requirements for the East Materials Storage :Area (ESA.); and (c) Feasibility of Facility (or Alternative) to Treat Selenium at Lehigh Permanente Quarry during Reclamation Staff Recommendation: 1. Accept the Reclamation Plan Annual Report for Reporting Period July 1, 2013 to June 30, 2014; and 2. Determine Lehigh is currently complying with storn-water discharge requirements for the SMSA; and 3. Determine that it is feasible to construct, install and operate a facility to treat selenium for water discharged from the West Materials Storage Area(WMSA) and.Quarry Pit during Reclamation; and, 4. Continue the hearing to January 22, 2015 to determine the feasibility of a facility (or alternative) to treat selenium from water discharged from the EMSA to allow Lehigh-Pe n anente Quarry additional time to evaluate the feasibility of alternative options. Board of Supervisors:dike Wasserman.Cindy Chavez,DaveCortese, Ken Yeager,S.Joseph SIAIIIRrfa a County Executive;:Jeffrey V.smith Monitoring and Determination of BHP Effectiveness for the EMSA: a. Within 30 days of RPA approval, sampling and testing shall occur within 24 hours after a qualifying rain event. If no qualifying rain event occurs within 30 days of RPA approval, then testing shall begin,at the fiat qualifying rain event. Testing shall be conducted in accordance with the Interim Stormwater Monitoring Plan developed and approved in accordance with Condition#`79. b. If test results for two consecutive years show that, stormwater discharging from the EMSA into Permanente Creek exceeds total recoverable selenium of Basin Plan Water Quality Objective, currently 5 gglL (micrograms pet, liter), or other applicable discharge requirement as determined by the RWQCB, then the County shall schedule a public hearing before the Planning Commission to determine whether the Mine Operator is complying with stormwater discharge requirements. For purposes of triggering Planning Commission review, the sampling shall occur at locations where water discharges to Permanente Creek c. If Che Planning Commission determines that the Mine Operator is not complying with discharge requirements, then the operator shall install a treatment system(or alternative)as described in Condition 982. (Implements Mitigation Measures 4.4-5 and 4.10-2c)' Stormwater tests of water discharging from.the EMSA into Permanente Creek were conducted by Lehigh during the 2012-2013 and 2013-2014 winter(rainy) seasons. Stormwater was only collected and tested when water was discharging fi-om Pond 30 in the, EMSA (which collects all stormwater runoff for the EMSA area) into Pertnanente Creek. Attachment 3 is a map showing the locations of the various Lehigh ponds and discharge points for water discharging into Permanente Creek. In total,two tests were taken during the 2012-2013 season and two tests were taken during the 2013-2014 season. The selenium concentrations measured in these test results are shown in the table below: Pond 30 Sampling Results 2012-201.4 Date Result(in ug/1) 12/5/12 5.9 12 2 / 6-,x- 12/26/12 Non-Detect 2/27/14 14.6 2- ZlIq 4/2/14 129.2 *Non-aetecl below detectable linifts. -2/2 Z//Y Y 'zv) As shown, the EMSA has had two consecutive years in which the stormwater discharge has exceeded the total recoverable selenium of Basin Plan Water Quality Objective of 5 µg/L and triggers the requirement for a public hearing by the 13 1 P el g " Case No. H040789 CALIFORNIA COURT OF APPEAL SIXTH APPELLATE DISTRICT BAY AREA CLEAN ENVIRONMENT, INC. Plaintiff/Appellant, V. SANTA CLARA COUNTY et al, Defendants/Respondents LEHIGH SOUTHWEST CEMENT COMPANY et al. Real Parties in Interest/Respondent Appeal from the Superior Court of California County of Santa Clara Honorable Joseph Huber, Judge Case No. 112CV229236 APPELLANT'S REPLY BRIEF Stuart M. Flashman (SBN148396) Law Offices of Stuart M Flashman 5626 Ocean View Drive Oakland, CA 94618-1533 Tel./Fax (510) 652-5373 Attorney for Plaintiff/Appellant, Bay Area Clean Environment, Inc. TABLE OF CONTENTS TABLEOF CONTENTS ..................................................................................ii TABLEOF AUTHORITIES...........................................................................iv INTRODUCTION..............................................................................................1 ARGUMENT......................................................................................................1 I. COMPLIANCE WITH SMARA REGULATIONS IS NOT LIMITED TO THE STATE AT COMPLETION OF RECLAMATION...................................................................................... 1 A. The Plain Language of SMARA and of the SMARA Regulations Indicates that the Regulations Cover the Entirety of the Reclamation Process. ............................................................................2 1. The SMARA Statutes Require Minimizing Adverse Environmental Impacts During the Reclamation Process.................2 2. The SMARA Regulations and Application of CEQA to Reclamation Plans focus on Preventing Impacts During the ReclamationProcess..........................................................................3 B. The Logic and Legislative Intent of the SMARA Regulations show they Apply to the Entire Reclamation Process.............................6 II. THE SMARA REGULATIONS DO NOT ALLOW THE COUNTY TO IMPAIR A BENEFICIAL USE OR DEGRADE WATER QUALITY IN VIOLATION OF STATE AND FEDERALLAW.......................................................................................7 C RESPONDENTS MAY NOT RELY ON THE OFFICE OF MINE RECLAMATION OR THE REGIONAL WATER QUALITY CONTROL BOARD TO CORRECT DEFICIENCIES INTHE RPA. ............................................................................................8 IV. THE RPA DIRECTLY VIOLATED §3703 OF THE SMARA REGULATIONS BY HARMING A FEDERALLY LISTED SPECIES AND ITS HABITAT..............................................................10 V. UNDER ESTABLISHED CEQA LAW, THE SOUTH QUARRY, OR OTHER SIMILAR PROJECT, QUALIFIED AS A REASONABLY FORESEEABLE FUTURE PROJECT...................13 ii VI. CONTRARY TO RESPONDENTS' ASSERTIONS, THE FINDINGS WERE INADEQUATE.......................................................17 A. The CEQA Findings Concerning Impacts on the CRLF are Directly Contradicted by the Evidence in the Record and the EIR....................................................................................................... 17 B. Because it Failed to Address Impacts on CRLF, the Statement of Overriding Considerations was also Inadequate............................ 19 C. The Project's Findings of Consistency with SMARA and the SMARA Regulations Were not Supported by the Evidence in the Record and Therefore must be Rejected..............................................20 VIII. THE TRIAL COURT WAS NOT JUSTIFIED IN ADMITTING EVIDENCE THAT WAS NOT PROPERLY PART OF THE ADMINISTRATIVE RECORD. ............................................................20 CONCLUSION.................................................................................................23 CERTIFICATION...........................................................................................24 PROOFOF SERVICE....................................................................................25 iii TABLE OF AUTHORITIES CASES Apple Inc. v. Superior Court (2013) 56 CalAth 128...........................................................................12 Bozung v. LAFCO (1975) 13 Cal.3d 263 ............................................................................13 City of Ukiah v. County of Mendocino (1987) 196 Cal.App.3d 47......................................................................5 Commission on Peace Officer Standards & Training v. Superior Court (2007) 42 CalAth 278...........................................................................22 Consolidated Irrigation Dist. v. Superior Court ("CID') (2012) 205 Cal.App.4th 697...........................................................22, 23 County of Orange v. Superior Court (2003) 113 Cal.AppAth 1 ...............................................................21, 22 Defenders of Wildlife v. E.P.A. (8ffi Cir. 1989) 882 F.2d 1294...............................................................13 Gentry v. City of Murietta (1995) 36 Cal.App.0' 1359..............................................................9, 10 Gray v. County of Madera (2008) 167 Cal.App.4`f' 1099................................................................16 Karlson v. City of Camarillo (1980) 100 Cal.App.3d 789..................................................................18 Laurel Heights Improvement Assn. v. Regents of University of California ("Laurel Heights I') (1988) 47 Cal.3d 376..........................................................13, 14, 16, 18 Madera Oversight Coalition, Inc. v. County of Madera (2011) 199 Cal.App.4 h 48....................................................................21 No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68..............................................................................14 Pacific Lumber Co. v. State Water Resources Control Bd. (2006) 37 CalAth 921 ...........................................................................11 iv People Ex. Rel. Dept. of Conservation v. El Dorado County (2005) 36 CalAth 971 ...........................................................................19 Ramirez v. Yosemite Water Co. (1999) 20 CalAth 785.............................................................................2 Resource Defense Fund v. Local Agency Formation Com. (1987) 191 Ca1.App.3d 886..................................................................18 San Francisco Tomorrow v. City& County of San Francisco ("SFT') (2014) 229 Cal.App.4"`498............................................................22, 23 Sunnyvale West Neighborhood Assn. v. City of Sunnyvale City Council (2010) 190 Cal.App.4th 1351 ...............................................................11 Yamaha Corp. of America v. State Bd. of Equalization ("Yamaha') (1998) 19 CalAth 1 .................................................................................2 STATUTES 16 U.S.C. §1532 ..........................................................................................13 Public Resources Code §2002.5 ................................................................................................. 10 §2010 .................................................................................................... 10 §2712 ......................................................................................................6 §2733 ..................................................................................................2, 5 §2755 ......................................................................................................2 §2773 ......................................................................................................3 §2774 ......................................................................................................9 §21081 .................................................................................................. 12 §21167.6 .........................................................................................21, 22 REGULATIONS 14 Calif. Code of Regulations §3500 et seq............................................................................................2 §3700 ..............................................................................................3, 4, 5 §3703 .............................................................................................passim §3706 .............................................................................................passim §3710 .............................................................................................passim V INTRODUCTION Respondents Santa Clara County ("County"), Santa Clara County Board of Supervisors ("Supervisors"), Lehigh Southwest Cement Company and Hanson Permanente Cement, Inc. (the latter two collectively, "Lehigh" and all the foregoing, collectively hereinafter, "Respondents") make much of the volume of studies that went into preparing the Reclamation Plan Amendment ("RPA") at issue here. But regulatory compliance, like profitable operation of a mine, is not determined simply by the total output. As Lehigh well knows (see, 1 AR 323 [importance of local, reliable source of cement-grade limestone]), success depends at least as much on the quality of the product. The question is not how many studies were done or how many pages of material were produced. The question is whether all that output resulted in substantial evidence to support the County's decisions in certifying the EIR and approving the RPA as complying with the Surface Mining and Reclamation Act of 1975 ("SMARA"). In this case, contrary to the trial court's conclusion, the answer must be no. ARGUMENT I. COMPLIANCE WITH SMARA REGULATIONS IS NOT LIMITED TO CONDITIONS AT THE TIME WHEN RECLAMATION IS COMPLETED. The main thrust of Respondents' position—that the RPA complied with the state's SMARA regulations—is that compliance is only important at the endpoint of the process. According to Respondents, regardless of what happens over the twenty-year course of the reclamation plan's implementation, as long as the end result is satisfactory, the plan is in compliance. (Respondents' Brief ("RB") at p.23.) The plain meaning of 1 SMARA and the SMARA regulations' themselves, as well as the Legislative intent behind the statute and regulations and the logic underlying that intent, undercut Respondents' argument. A. THE PLAIN LANGUAGE OF SMARA AND OF THE SMARA REGULATIONS INDICATES THAT THE REGULATIONS COVER THE ENTIRETY OF THE RECLAMATION PROCESS. In construing a regulation, courts are guided by several general principles. First, the regulation must be consistent with the statute that authorized it. (Yamaha Corp. ofAmerica v. State Bd. of Equalization ("Yamaha") (1998) 19 CalAth 1, 17.) Second, when the Legislature has delegated to an agency the power to implement a statute by adopting appropriate regulations, that delegation carries with it an implied delegation of legislative authority, and regulations so adopted are entitled to the same deference as the statutes themselves. (Id. at 7, 10; Ramirez v. Yosemite Water Co. (1999) 20 CalAth 785, 799.) Finally, as with statutes, and especially when interpreting regulations adopted under a delegation of legislative authority, the regulations are interpreted to effectuate the intent of the agency adopting them and the intent of the Legislature in enacting the authorizing statutes. (Yamaha, supra, 19 Cal.App.0' at 17-18.) 1. The SMARA Statutes Require Minimizing Adverse Environmental Impacts During the Reclamation Process The regulations adopted by the State Mining and Geology Board ("Board") implement Public Resources Code §2755, directing the Board to adopt regulations establishing state policy for reclamation of mined lands, and §2733, which defines reclamation as: ' The SMARA regulations are found at 14 Calif. Code of Regulations §3500 et seq. 2 [T]he combined process of land treatment that minimizes water degradation, air pollution, damage to aquatic or wildlife habitat, flooding, erosion, and other adverse effects from surface mining operations, including adverse surface effects incidental to underground mines, so that mined lands are reclaimed to a usable condition which is readily adaptable for alternate land uses and create no danger to public health or safety. [Emphasis added.] Even more specifically, §2773 subd. (b), required the Board to establish reclamation standards, including standards for wildlife habitat and stream protection. Thus the Legislature explicitly delegated to the Board the duty of establishing reclamation policy and standards consistent with the Legislature's general intent under SMARA of preventing or minimizing the environmental impact of the reclamation process and its associated activities. 2. The SMARA Reclamation Standards Regulations and Application of CEQA to Reclamation Plans focus on Preventing Impacts During the Reclamation Process. Article 9 of the SMARA regulations, Reclamation Standards, begins with §3700, which states: Applicability. Reclamation of mined lands shall be implemented in conformance with the standards in this Article. (a) The standards shall apply to each surface mining operation to the extent that: (1) they are consistent with required mitigation identified in conformance with the California Environmental Quality Act, provided that such mitigation is at least as stringent as the standards; and (2) they are consistent with the planned or actual subsequent use or uses of the mining site. (b) Where an applicant demonstrates to the satisfaction of the lead agency that an exception to the standards specified in this article is necessary based upon the approved end use, the lead agency may approve a different standard for inclusion in the approved reclamation plan. Where the lead agency allows such an exception, the approved reclamation plan shall specify verifiable, site-specific standards for reclamation. The lead agency may set standards which are more stringent than the standards set forth in this Article; however, in no case may the lead agency approve a reclamation plan 3 which sets any standard which is less stringent than the comparable standard specified in this Article. (c) When substantial amendments are proposed to reclamation plans which were approved prior to January 15, 1993, the standards set forth in this Article shall be applied by the lead agency in approving or denying approval of the amended reclamation plan. (d) The standards in this Article shall not apply to mining operations: (1) which completed reclamation prior to January 15, 1993, in conformance with an approved reclamation plan; or (2) for which a reclamation plan has been approved prior to January 15, 1993. Thus the basic premise of the reclamation standards is that "reclamation of mined lands shall be implemented in conformance with the standards in this Article," [emphasis added] not merely that the standards apply to the resulting reclaimed lands. While the section allows the lead agency to apply a different reclamation standard upon a showing that an exception is necessary based on the approved end use, any such exception must apply a site-specific standard that is no less stringent than the standard specified in the regulations. Further, Lehigh did not request, nor did the County grant, any such exception. Section 3703 of the SMARA regulations states that wildlife and wildlife habitat shall be protected by standards that include protection of state and federally protected species and their habitat as provided for in the respective state and federal statutes and regulations. Under §3700, these protections apply to the entire process of implementing the reclamation plan. Section 3706 of the SMARA regulations begins by requiring that surface mining and reclamation activities be conducted to protect on-site and downstream beneficial uses of water. [Emphasis added.] This is consistent with the statutory definition of reclamation as a process of land treatment. Thus the focus of the regulation is on activities involved in 4 mining and reclaiming the site—not just on the end result of reclamation. Likewise, §3710 subd. (a) calls for protection from siltation and pollutants which may diminish water quality.2 This is again consistent with §2733's definition of reclamation and its emphasis on minimizing water quality degradation during the land treatment process involved in reclaiming mined lands. Indeed, the Legislature's definition of reclamation itself emphasizes the importance, during the process of reclamation, of minimizing water quality degradation and damage to aquatic and wildlife habitat, the two areas at issue here in the County's approval of the RPA. This is also consistent with the application of CEQA to a reclamation plan. In applying CEQA, the lead agency under SMARA must determine the significant environmental impacts of the reclamation plan, not merely of the end result of the plan— a reclaimed former mining site. (City of Ukiah v. County of Mendocino (1987) 196 Cal.App.3d 47, 54 [CEQA analysis of reclamation plan did not include effects of mining activities allowed under vested mining rights but instead focused on environmental impacts of reclamation activities].) Section 3700 subd. (a)(1) of the SMARA regulations emphasizes that the application of reclamation standards is to be consistent with mitigation measures identified by the CEQA analysis of the Reclamation Plan and its environmental impacts, so long as those mitigation measures are at least as stringent as the explicit standards set by the regulations. Again, this emphasizes that the reclamation standards apply to the entire reclamation process and its associated environmental impacts, not merely to the resulting reclaimed land. 2 Respondents assert that §3710 is inapplicable because it is specific to in- stream mining operations. (RB at p. 23 fn.11.) While that is true for subdivisions (b) through (d), subdivision (a) is not so limited and is generally applicable to all mining and reclamation activities. 5 B. THE LEGISLATIVE INTENT AND LOGIC OF THE SMARA REGULATIONS SHOW THAT THEY APPLY TO THE ENTIRE RECLAMATION PROCESS. Even if the plain text of the statutes and the regulations were ambiguous, the legislative intent underlying both the statutes and the regulations, as well as the logic behind that legislative intent, show that the regulations are intended to cover the entire reclamation process, not merely the end result. In Public Resources Code §2712, the Legislature stated the overriding legislative intent in enacting SMARA. Significantly, that statement highlights the intent of the Legislature to ensure that, "Adverse environmental effects are prevented or minimized ...." (§2712 subd. (a).) The provisions of§3703, §3706 and §3710(a) of the SMARA regulations directly implement this intent by requiring that reclamation activities under a reclamation plan protect listed species and their habitat and on-site and downstream beneficial uses of water as well as protecting against pollutants that might degrade water quality. Unlike Respondents' interpretation, this interpretation as covering the entire reclamation process also makes logical sense. Protection of listed species and of beneficial uses of water, especially beneficial uses for wildlife and aquatic species, are time-dependent. More specifically, in the situation (as here) where the beneficial uses include protection of rare and endangered species (4 AR 1713), if degradation of water quality during the reclamation process resulted in the damage to, and eventual extirpation of the species from the watershed and from the creek or stream being impacted, restoring that water quality in the final fully reclaimed site would not restore the extirpated population. As the popular slogan states, "Extinction is forever." Consequently, protection of listed species and their habitat, water quality, and beneficial uses must be a continuing effort 6 throughout the reclamation process, not just something that is assessed at the endpoint of the process. II. THE SMARA REGULATIONS DO NOT ALLOW THE COUNTY TO IMPAIR A BENEFICIAL USE OR DEGRADE WATER QUALITY IN VIOLATION OF STATE AND FEDERAL LAW. Respondents point to §3706 subd. (b) as allowing diminished water quality if necessary to complete reclamation. (RB at p. 26.) Respondents misread the regulation. While subdivision(b) allows diminished groundwater quality if allowed in the approved reclamation plan, that subdivision is separate from subdivision(a), which requires protection of downstream beneficial uses. Thus, subdivision (b) allows reducing groundwater quality during the reclamation process provided that such reduction would not adversely affect a beneficial use. For example, a pollutant's concentration in the groundwater might be allowed to increase, so long as the increase did not exceed the Maximum Contaminant Level ("MCL") for that pollutant under the Clean Water Act and Porter-Cologne Water Quality Control Act or other standard necessary to protect a designated beneficial use.3 Similarly, the requirement under §3710 subd. (a) of the SMARA regulations that pollutant concentrations not be allowed to exceed the MCL under the Clean Water Act or Porter Cologne Act would override the ability for a reclamation plan to allow a decrease in groundwater quality . The currently existing concentrations of selenium in Permanente Creek already exceed the MCL. (2 AR 701, 702.) Thus, any further 3 The provision allowing a reduction in groundwater quality during the reclamation project does not indicate that it overrides the separate requirements on the Porter-Cologne Water Quality Control act, and of course could have no effect on the requirements of the federal Clean Water Act or Endangered Species Act. 7 increase in selenium concentrations during the twenty-year interim period would violate both the state and federal water quality standards, including the Clean Water Act's anti-degradation provision(see, 4 AR 1703) as well as impairing designated beneficial uses. Such a reduction in water quality would therefore also violate both §§3706 and 3710 of the SMARA regulations. Respondents argument on water quality impacts during the process of reclamation is that, so long as the end result of reclamation complies with the SMARA regulations and the County has required feasible mitigation measures, it is acceptable for the SMARA regulations to be "bent" during the reclamation process. Nothing in the SMARA regulations allows this result. If the regulations had intended to ignore impairment of beneficial uses or degradation of water quality in violation of state or federal standards during the reclamation process, that would have needed to be explicitly set forth in the regulations. III. RESPONDENTS MAY NOT RELY ON THE OFFICE OF MINE RECLAMATION OR THE REGIONAL WATER QUALITY CONTROL BOARD TO CORRECT DEFICIENCIES IN THE RPA. Faced with the apparent violations of SMARA regulations, Respondents resort to pointing to other agencies to make it all okay. (RB at pp. 26-27, 28-29, 34-35.) Yet the County's requirements under the SMARA regulations are independent of actions by either the Office of Mine Reclamation("OMR") or the Regional Water Quality Control Board ("RWQCB"). (See, County findings on conformity with SMARA and SMARA regulations, 1 AR 172, 173.) While the RWQCB can issue, and has issued,Notices of Violation against Lehigh and in theory could file litigation against them if it found a violation (See, 6 AR 2749 [proposed Condition of Approval accepted in part by County]; 33 AR 16972 [administrative complaint against Lehigh 8 Hanson Cement Company by RWQCB]), such actions cannot be relied upon by the County as relieving it of its responsibility to comply fully with the SMARA regulations in approving the RPA. As for OMR, Department of Conservation("DOC") was required to receive a copy of the RPA (Public Resources Code §2774 subd. (c)), and had the ability to comment on it(Id. at subd. (d)(1)), but nothing in SMARA or its regulations required the County to modify the RPA to conform to changes requested by DOC or OMR, nor did OMR have any authority to reject the RPA.4 Further, while OMR may have general expertise in the area of mine reclamation, there is no evidence in the record to indicate that it had or exercised any expertise in the specific areas of water quality or water quality impacts on rare or endangered species, and more specifically on the California red-legged frogs. Thus, while the Assistant Director of OMR may have, in his official capacity, commented in general terms on the RPA, those comments failed to address in any way the question of the RPA's compliance with §3703, §3706, or §3710 of the SMARA regulations. Nor did they identify any specific fact to support an opinion that the RPA complied with any of those sections of the SMARA regulations. In short, they did not constitute expert opinion supported by facts and therefore were not substantial evidence in support of the RPA's compliance with the SMARA regulations at issue here. Respondents cite to Gentry v. City ofMurietta (1995) 36 Cal.App.4ffi 1359, 1379-1380 as analogous. It is not. In Gentry, the court noted that the 4 Indeed, OMR, in its comments, asked that the County include in the RPA relevant provisions of RWQCB permits prior to the County approving the RPA. (24 AR 12265.) The County ignored DOC's request and approved the RPA before any RWQCB permits were issued. 5 OMR's comments on the RPA were prepared by an engineering geologist. (24 AR 12245.) 9 city's planning staff, with its knowledge of the local community and its detailed review of the project, had sufficient information to be able to opine that the project involved would not impact scenic or historic resources. Here, by contrast, the review of the RPA was done by an engineering geologist with no demonstrated knowledge of the local area other than the information provided in the RPA. The presumed factual knowledge that the court used to justify the staff opinion in Gentry is absent here. Respondents also assert that DOC made a formal determination of the RPA's compliance with SMARA and the SMARA regulations. (RB at 35.) It provides no cite to the record for any such determination.6 While OMR submitted comments on the RPA, Appellant can find no evidence in the record showing that DOC made a formal determination of compliance. IV. THE RPA DIRECTLY VIOLATED §3703 OF THE SMARA REGULATIONS BY HARMING A FEDERALLY LISTED SPECIES AND ITS HABITAT. Respondents' arguments that the RPA complied with §3703 of the SMARA regulations are no stronger than those for water quality compliance. The EIR itself had acknowledged that the RPA, by increasing selenium concentrations in Permanente Creek during the reclamation process, would have a significant and unavoidable impact on aquatic organisms. (2 AR 563.) The EIR also acknowledged that populations of the California red-legged frog ("CRLF") a listed species under the federal Endangered Species Act, lives in Permanente Creek just outside of and 6 If Respondents are claiming that Mr. Pompy's testimony at the County's hearing on the RPA constituted a"formal determination" by the Board or DOC, that assertion is little short of ludicrous. Neither the SMARA statutes nor regulations provide for any such determination. Further, if one were to be made, one would expect it to be in writing, approved by the Board, and signed by the Director of Conservation (see, Public Resources Code §§2002.5, 2010 [Director defined as Director of Conservation]), not provided orally by an Assistant Director of OMR. 10 downstream from the RPA project area. (2 AR 538, 541, 554, 555, 570; 5 AR 2247-2250.) Thus, the increased selenium levels in Permanente Creek caused by implementing the RPA would adversely affect the CRLF population in the creek, potentially causing its extirpation. Respondents focus their argument on the extensive surveys for CRLF within the RPA project area and argue that these studies support a conclusion that the RPA would have no impact of CRLF within the project area. (RB at pp. 30-32.) That conclusion is itself open to question, as suitable CRLF habitat was unquestionably present within the project area. (5 AR 2249; 17 AR 8596 [table].) However, more to the point, an impact need not be within the project area to be a direct project impact. Indeed, it is extremely common for a large development project to have significant traffic impacts well outside of the project area. (See, e.g., Sunnyvale West Neighborhood Assn. v. City of Sunnyvale City Council(2010) 190 Cal.App.4th 1351, 1387.) Likewise, timber harvest operations can have water quality impacts outside of the area being harvested. (See, e.g., Pacific Lumber Co. v. State Water Resources Control Bd. (2006) 37 CalAth 921, 929 [water quality of Elk River could be adversely affected by timber harvest plan in its watershed].) Similarly here, the impacts of increased selenium content in Permanente Creek on CRLF are just as real, direct, and significant regardless of whether the CRLF populations are inside of or downstream of the RPA project area. Respondents argue that the RPA did take into account the downstream impacts on the CRLF. (RB at p. 32.) They note that the County imposed a range of water quality protections, including study of a possible water treatment system, but still made findings that the impact was significant and unavoidable. (Id.) Respondents conclude, "Thus, the impacts to downstream CRLF were not only considered, they were 11 mitigated to the fullest extent." (Id.) However, this is not what §3703 of the SMARA regulations requires. CEQA allows an agency to adopt a statement of overriding considerations to justify moving ahead with a project in spite of it causing significant and unavoidable environmental impacts. (Public Resources Code §21081.) The SMARA regulations, by contrast, have no analogous provision. If the Legislature or Board had intended there to be a similar option to override a significant impact on a protected species, they could have placed such a provision in either the statutes or the regulations. They did not. "In this regard, the court must assume that the Legislature knew how to write an exception if it wished to." (Apple Inc. v. Superior Court (2013) 56 CalAth 128, 158.) When the Legislature (and the Board) have failed to enact a certain provision, the court is powerless to do so. (M) The fact that once reclamation is complete CRLF would no longer be threatened by high selenium concentrations would be cold comfort if they had already been extinguished in the interim period. Respondents also argue that despite the fact that the EIR acknowledged a significant and unavoidable impact on aquatic organisms, that did not necessarily mean it would impact the CRLF. (RB at 33.) Certainly, Respondents cannot gainsay the fact that the CRLF is an aquatic organism, and that it spends the early part of its life cycle living entirely in the water and feeding on organisms, be they plant or animal, that also live in the water. Whether the selenium in Permanente Creek directly kills or injures CRLF or only starves them to death by killing their food sources, the result is the same. Placing high concentrations of selenium in a water body known to contain CRLF would be a"take"just as much as placing any other toxic substance would be.7 7 Under the Endangered Species Act, "take" of a protected species includes to "harass, harm, pursue, hunt, shoot, wound, kill trap, capture, or collect, 12 V. UNDER ESTABLISHED CEQA LAW, THE SOUTH QUARRY, OR OTHER SIMILAR PROJECT, QUALIFIED AS A REASONABLY FORESEEABLE FUTURE PROJECT. Respondents argue that even though the just-preceding version of the RPA had included establishing a new"South Quarry Pit" south of Permanente Creek, its removal from the present RPA and the withdrawal of Lehigh's use permit application for that pit made it no longer a reasonably foreseeable future project. (RB at p.37.) This flies in the face of the seminal case on cumulative impacts under CEQA,Laurel Heights Improvement Assn. v. Regents of University of California ("Laurel Heights I') (1988) 47 Cal.3d 376. In Laurel Heights I, The University of California Regents had proposed to relocate the University of California's San Francisco School of Pharmacy to anew campus. The Regents prepared an EIR for the project, but restricted its scope to covering only the initial phase of the relocation, asserting that it would only initially be occupying roughly 1/3 of the building involved, even though the Regents had purchased the entire building. The EIR considered impacts from anything beyond that point to be speculative. (Id. at 395.) The court disagreed. It pointed out that, as first enunciated in Bozung v. LAFCO (1975) 13 Cal.3d 263: EIRs should be prepared as early in the planning process as possible to enable environmental considerations to influence project, program or design. (Id. at 282.) The court pointed to the analysis in No Oil, Inc. v. City of Los Angeles (1974) 13 Ca1.3d 68, where the court had noted that the issue was whether the public agency had "sufficient reliable data to permit preparation of a meaningful and accurate report on the impact of commercial production." or attempt to engage in any such conduct." (16 U.S.C. §1532 subd. (19).) Poisoning was specifically recognized as a"take" in Defenders of Wildlife v. E.P.A. (8ffi Cir. 1989) 882 F.2d 1294 [strychnine poisoning of listed species violated ESA]. 13 (Id. at 77.) The court concluded that the Regents had sufficient information available about the amount of space that would be occupied by future Pharmacy School expansion and the types of uses that would fill the space to prepare a meaningful analysis of the types and amounts of cumulative impacts to be expected from that future expansion. (Id. at 398.) The analysis here is similar. Work was already well underway on preparing a RPA and associated EIR including the new South Quarry pit (see, 10 AR 4930 — 15 AR 7823)before Lehigh, and the County, feeling pressured by OMR to quickly complete and approve a RPA to cover the current mining area, put aside the plans for the new pit and revised the RPA accordingly. However, as with the Pharmacy School relocation, the mere fact that Lehigh was no longer applying to the County for a use permit did not make the need for a new pit disappear any more than the near-term presence of Caltrans offices in 2/3 of the Laurel Heights building purchased by the Regents meant that the Regents did not expect to consolidate more pharmacy school facilities onto the Laurel Heights campus. While Respondents characterize the plans for a new South Quarry pit as "in all respects defunct" (RB at p. 37), a more accurate characterization is that they have been placed in hibernation, or perhaps suspended animation; in all likelihood pending only the termination of this litigation. After all, the primary objectives of the current RPA include maintaining a local, reliable, and economic source of Portland cement- grade limestone, and continuing operation at an existing limestone quarry.$ (1 AR 323.) With the existing North Quarry pit being slated for reclamation in the RPA, the only way to satisfy these objectives is to establish a new 8 Respondents provide no explanation of how these objectives can be satisfied by a RPA that proposes to reclaim, and hence cease to mine, the only active mining pit in the Quarry. 14 quarry pit; if not the previously proposed South Quarry pit, then another pit in the same general vicinity and of the same general size. Even if the specifics of the new pit change somewhat, the previously proposed South Quarry pit remains appropriate as a proxy for whatever the new proposal's details might be, and certainly adequate to be provide sufficient reliable data to permit preparation of a meaningful and reasonably accurate report identifying the nature and expected extent of cumulative impacts, including those on traffic, noise, air and water quality, wildlife, etc. Respondents argue that the South Quarry pit would be "operationally incompatible" with the current RPA, since that plan calls for partially backfilling the current North Quarry pit with overburden from the WMSA. (RB at p.37.) However, in responding to comments on the DEIR, the FEIR admits that a future quarry expansion would require a new amendment to reclamation plan. (4 AR 1610 -1611.) While that response asserts that consideration of a future pit"would be premature" (Id.), there can be little doubt that the approximate size (approximately 250 acres, able to produce approximately 150 million tons of limestone over the next 20 years [10 AR 4937, 4948]) and general location (within Lehigh's land holdings in Permanente Quarry) would almost certainly be very similar to that of the previously-proposed South Quarry pit and would entail similar plans for storing overburden taken from the new pit.9 Indeed, the introductory chapter to the 2010 RPA (see, 10 AR 4948-4971) makes a convincing case that a new quarry pit is a necessity within the next few years,just as the Regents' documents showed that the movement of additional facilities from UC's Parnassus campus to the new Laurel Heights campus could be predicted at the time the initial EIR for that project was prepared. (Laurel Heights I, supra, 47 Cal.3d at 397.) 9 The 2010 draft RPA proposed a new"Central Material Storage Area" to store overburden from the new South Quarry Pit. (10 AR 5191.) 15 Respondents cite to Gray v. County of Madera (2008) 167 Cal.App.4'h 1099 for the premise that mere awareness of a developer's plans does not warrant their inclusion in the cumulative impact analysis. (RB at p. 38.) Respondents, however, leave out the key term "necessarily." As Gray explained, whether a project being planned by a developer should be included in the cumulative analysis depends on whether it is a "reasonably probable future project." (Gray, supra, 167 Cal.App.4ffi at 1127.) That case went on to explain that [A]ny future project [sic] where the applicant has devoted significant time and financial resources to prepare for any regulatory review should be considered as probable future projects for the purposes of cumulative impact. (Id. at pp. 1127-1128.) Here, the record shows that Lehigh and the County spent a year doing extensive work on the 2010 RPA and its EIR before dropping the South Quarry pit from the RPA. (10 AR 4930 -15 AR 7823.) Almost 3,000 pages of documentation were produced for that proposal before it was "abandoned." Given that investment of resources, one must question how real the "abandonment" was, especially as Lehigh acknowledged that years of exploration for the South Quarry pit had occurred even before work began on the 2010 RPA. (See, e.g., 1 AR 365-366, 357 [map of RPA project area showing South Quarry pit area as "Exploration Area"].) Respondents argue that the evidence supporting the need for a future new quarry pit is nothing more that Appellant's "speculation." (RB at p. 39.) However, this "speculation" is, in reality, the explanation and justification, contained in Lehigh's own prior draft RPA, of why it needed to develop the South Quarry pit. (10 AR 4948-4949.) Respondents provide no explanation of why those justifications no longer apply, other than that Lehigh was forced to withdraw its application by the pressure from OMR and the County to quickly approve a RPA for current mine operations. 16 Respondents also argue that the current RPA is not a phase of a larger project but a complete self-contained project in itself. (RB at p. 40.) What Respondents fail to explain is how the Quarry operations, mining operations, and cement plant operations will continue to function once the current North Quarry pit is being filled in and reclaimed. Where will the cement plant obtain a"local, reliable, and economic source of Portland cement-grade limestone?" How will quarry operations be able to continue? Both of these are listed as primary objectives of the current RPA. Without a new source of limestone within the Quarry, the current RPA is anything but self-contained. In any case, even if elimination of the new quarry pit was not improper project segmentation, the future quarry pit remained a reasonably foreseeable future project whose impacts would significantly change the analysis in the EIR. Its inclusion in the EIR's cumulative impacts analysis was therefore required. VI. CONTRARY TO RESPONDENTS' ASSERTIONS, THE FINDINGS WERE INADEQUATE. A. THE CEQA FINDINGS CONCERNING IMPACTS ON THE CRLF ARE DIRECTLY CONTRADICTED BY THE EVIDENCE IN THE RECORD AND THE EIR. Respondents begin by asserting the Appellant has not supported its claim that the Project's CEQA findings should have identified a potentially (and actually) significant impact on the CRLF by any citations to substantial evidence in the record. It should be obvious that the citations contained in the discussion of the inadequacy of the RPA under §3703 of the SMARA regulations constituted the evidence showing significant impacts on the CRLFI0. The EIR itself acknowledged that the increase in io Petitioner also cited the approval documents, which included the findings (AOB at p. 8) and Statement of Overriding Considerations - part of the findings (AOB at p. 33), as well as individual findings. (AOB at p. 32.) 17 selenium concentrations in Permanente Creek constituted a significant and unavoidable impact on aquatic organisms. (2 AR 563.) Respondents argue that the general finding as to the impact on aquatic organisms suffices to cover impacts on the CRLF. (RB at p. 41.) Not so. In fact, while the EIR acknowledged a significant and unavoidable impact on aquatic organisms, it specifically asserted that the RPA would not have a significant impact on any special status aquatic species. (5 AR 2249-2250.) Further, while the Supervisors' findings called out a potentially significant impact on"special status bats" (1 AR 157), they made no mention of the CRLF, or even of special status amphibians or aquatic organisms. This flies in the face of the prime purpose of CEQA findings. The purpose of the statutory requirement for findings is to ensure that the decisionmaking agency actually considers mitigation measures." (Resource Defense Fund v. Local Agency Formation Com. (1987) 191 Ca1.App.3d 886, 896.) CEQA findings inform the public about the project's potentially significant impacts, how those impacts might be mitigated or avoided, and, to the extent those impacts are unavoidable, the reasons why the project must move forward in spite of those impacts. Because the EIR must be certified or rejected by public officials, it is a document of accountability. If CEQA is scrupulously followed, the public will know the basis on which its responsible officials either approve or reject environmentally significant action, and the public, being duly informed, can respond accordingly to action with which it disagrees.... The EIR process protects not only the environment but also informed self-government. (Laurel Heights I, supra, 47 Cal.3d at 392.) If the CEQA findings are to fulfill their function of providing accountability, they must be accurate. Otherwise, they do not fulfill CEQA's purpose of vindicating the "right of the public to be informed in such a way that it can intelligently weigh the environmental consequences" of a proposed project. (Karlson v. City of Camarillo (1980) 100 Cal.App.3d 18 789, 804) Here, the failure of the findings to specifically call out the significant and unavoidable impact on the CRLF deprived the public of important information upon which to evaluate the appropriateness of the County's action. This violated CEQA's mandate of full disclosure. (People Ex. Rel. Dept. of Conservation v. El Dorado County(2005) 36 Cal.4th 971, 996.) Respondents also argue that there would be no direct impact on the CRLF. (RB at pp. 41- 42.) They cite to the numerous studies included in the record, most of which'' indicate that CRLF are not currently found within the RPA Project area. (Id.) Even if it were true that CRLF were not found within the RPA project area, that would not be determinative of the absence of a significant direct Project impact on the CRLF. As discussed earlier, it is common for significant direct project impacts to occur outside of the project area itself. (See Section IV at p. 8, supra.) That was clearly the case here, where the EIR itself acknowledged a significant direct impact from increased selenium concentrations on aquatic organisms downstream of the Project site. Yet the EIR also identified a breeding population of CRLF downstream of the site. These CRLF, and particularly their tadpoles, would, like other aquatic organisms, be directly and adversely impacted by the increase in selenium concentrations during the 20-year interim period while site reclamation was in progress. That impact should have been, but was not, disclosed in the findings. B. BECAUSE IT FAILED TO ADDRESS IMPACTS ON CRLF, THE STATEMENT OF OVERRIDING CONSIDERATIONS WAS ALSO INADEQUATE. " As will be discussed further below, the evidence in the record in fact supports the presence of CRLF habitat, and CRLF, within the RPA project area. 19 According to Respondents, the Statement of Overriding Considerations for approving the RPA was adequate in spite of not even mentioning the CRLF because the RPA's impacts on the CRLF were not significant. As Appellant has already shown, however, Respondents are in error on this point. The impacts of the RPA on CRLF populations, and specifically on CRLF populations located downstream of the Project site in Permanente Creek, would be, as the EIR implicitly admits, significant and unavoidable. Consequently, the Statement of Overriding Considerations was required to call out those impacts and determine if the importance of the Project justified moving ahead with approving the RPA in spite of those impacts. The failure to do so makes the Statement of Overriding Considerations inadequate and requires that the approval of the RPA based on that Statement of Overriding Considerations be ordered rescinded. C. THE PROJECT'S FINDINGS OF CONSISTENCY WITH SMARA AND THE SMARA REGULATIONS WAS NOT SUPPORTED BY THE EVIDENCE IN THE RECORD AND THEREFORE MUST BE REJECTED. The County also adopted a finding that the RPA fully complied with SMARA and the SMARA regulations. As already explained in Sections I- IV supra, that finding was not supported by the evidence in the record because the RPA is not, in fact, consistent with the SMARA regulations, and specifically violates §§ 3703, 3706, and 3710(a). For this reason, this finding was also improper and the approval supported by it must be ordered rescinded. VIII. THE TRIAL COURT WAS NOT JUSTIFIED IN ADMITTING EVIDENCE THAT WAS NOT PROPERLY PART OF THE ADMINISTRATIVE RECORD. Respondents argue that an e-mail "string" between a sub-consultant on the EIR and a staff person within the California Department of Fish& 20 Wildlife12 (1 JA 179) was properly added to the Administrative record by the trial court. (RB at pp. 43-46.) The e-mail string was added to the record to show that the evidence in the record was inaccurate in indicating that CRLF had been found within the RPA project area.13 Respondents base their argument that the e-mail string belongs in the Administrative Record on Madera Oversight Coalition, Inc. v. County of Madera (2011) 199 Cal.App.4ffi 48, a case that discussed the proper procedure for handling disputes over the content of the administrative Record in a CEQA challenge. (Id. at p. 61.) Respondents' citation to that case quotes the case's citation to an earlier case, County of Orange v. Superior Court(2003) 113 Cal.App.4th 1, which, referring in general terms to the portion of Public Resources Code §21167.6 that specifies the contents of the Administrative Record (subsection (e)), makes the general comment, " ...that the administrative record will include pretty much everything that ever came near a proposed development or to the agency's compliance with CEQA in responding to that development." Obviously, the County of Orange court was engaging in a bit of hyperbole in describing what should be included in the administrative record. Taken literally, the quote from County of Orange would mean that documents that almost literally never saw the light of day, such as preliminary drafts of a memo prepared by a subcontractor to an EIR consultant that were never even transmitted to the primary consultant, would arguably be part of the record. By this criterion, it would be almost impossible to place any limit on the scope of the administrative record. 12 At that time, the Department of Fish& Wildlife was known as the California Department of Fish & Game. 13 It should be noted that whether CRLF have been found in the Project area is irrelevant to Appellant's arguments about violations of SMARA regulations and the inadequacy of the CEQA findings. Those arguments focus on harm to CRLF populations downstream of the Project area. 21 Even with the expansive language included in Public Resources Code §21167.6 subd. (e), establishing such an unworkable criterion cannot have been the intent of the legislature in enacting the subdivision. (Commission on Peace Officer Standards & Training v. Superior Court (2007) 42 CalAth 278, 290 [the Legislature is presumed not to intend an interpretation of a statute that would lead to absurd results].) Subsequent cases have clarified the actual limits on the scope of the Administrative Record under §21167.6 subd. (e). Particularly relevant is a case cited by Respondents, San Francisco Tomorrow v. City & County of San Francisco ("SFT') (2014) 229 Cal.App.4t'498. In that case, what was at issue was the transcript of a hearing before a committee of the Board of Supervisors that took place shortly before the Board of Supervisors itself took up and, without further hearing, certified the EIR and approved the project at issue. (Id. at 530.) The appellant had argued that the transcript of the board committee's hearing should not have been included in the Administrative Record. (Id.) While the SFT court referenced the quotation from County of Orange, it also discussed a more recent case, Consolidated Irrigation Dist. v. Superior Court ("CID') (2012) 205 Cal.AppAth 697, that included an in-depth discussion of the proper scope of the Administrative Record in a CEQA challenge. (Id. at 718-723.) CID discussed specific criteria for inclusion of items in the Administrative Record under several of the provisions of§21167.6 subd. (e), notably those involving submissions to the lead agency and studies and other documents relied upon in the preparation of the EIR. For the former, the key question was whether the document was readily accessible to the lead agency. For the latter, whether it was either made available to the public during the DEIR public review period or included in the lead agency's files. CID went on to explain that inclusion in the agency's files 22 included both direct inclusion and being under the control of the agency. (Id. at 727.) The situation here, however,unlike that in SFT, satisfies neither criterion. The e-mail string in question had never been provided to the County, nor to ESA,the consultant that the County contracted with to prepare the EIR. (2 AR 883.) Nor could it be considered to have been made readily accessible to the County. In fact, both the County and the Supervisors remained totally unaware of the e-mail string's existence until long after the EIR had been prepared and certified and the RPA approved. Further, because the e-mail string was not even in the possession of ESA, it, like the files of subcontractors at issue in CID, cannot be considered as being contained in the County's files. Consequently,the e- mail string cannot be considered part of the Administrative Record,and the trial court erred in allowing its inclusion or consideration. CONCLUSION For all the above reasons,and those previously stated, the Court should grant the appeal and reverse the trial court's judgment. Dated:February 20,2015 Respectfully submitted, Stuart M. Flashman Attorney for Plaintiff/Appellant Bay Area Clean Environment, Inc. 23 CERTIFICATION I, Stuart M. Flashman,as attorney for Appellant Bay Area Clean Environment, Inc.,hereby certify that the above brief, exclusive of caption, tables,exhibits, and this certification, contains words,as determined by the word-counting function of my word processor, Microsoft Word for Mac 2011. Dated:February 20, 2015 Stuart M. Flashman 24 PROOF OF SERVICE BY MAIL I am a citizen of the United States and a resident of Alameda County. I am over the age of eighteen years and not a party to the within above titled action. My business address is 5626 Ocean View Drive, Oakland, CA 94618-1533. On February 23, 2015, I served the within APPELLANT'S REPLY BRIEF on the parties listed below by lacing true copies thereof enclosed in sealed envelopes with first class mailpostagethereon fully prepaid, in a United States Postal Service mailbox at Oakland, California, addressed as follows: Elizabeth Pianca, Deputy County Counsel Office of the County Counsel 70 West Heddirt East Wing,9"'Floor San Jose, CA 95110-1770 Mark Harrison,Esq. Sean K. Hungerford,Esq. Harrison, Temblador, Hungerford&Johnson LLP 980 90'Street, Ste. 1400 Sacramento, CA 958144413 1, Stuart M. Flashman, hereby declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed at Oakland,California on February 23, 2015. Stuart M. Flashman 25