HomeMy WebLinkAbout17 - Coyote Canyon Landfill Gas to Energy Facility Appeal (PA2022-063) - CorrespondenceFrom: Alisha C. Pember <apember@adamsbroadwell.com>
Sent: October 13, 2025 5:11 PM
To: City Clerk's Office; Stapleton, Joe; Kleiman, Lauren; Barto, Michelle; Blom,
Noah; Grant, Robyn; Weber, Sara; Weigand, Erik;
murillo@newportbeachca.gov; Perez, Joselyn
Cc: Kelilah D. Federman
Subject: Agenda Item 17: Resolution No. 2025-66: Coyote Canyon Landfill Gas to
Energy Facility Appeal (PA2022-063)
Attachments: 7499-032acp - Agenda Item 17 Archaea LNG Project and Exhibits A and B.pdf
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Good afternoon,
Please find attached Comments re Agenda Item 17: Resolution No. 2025-66: Coyote Canyon Landfill
Gas to Energy Facility Appeal (PA2022-063) and Exhibits A-B.
We are providing a Dropbox link containing supporting
references: https://www.dropbox.com/scl/fo/kv9dpihlOpchdhlc*vlou/AFncwxMLtPI26-
pE4iN52OA?rlkey=fxOyOxauv3xpgrvvnr6iur5bo&st=orhndff2&dl=0
A hard copy of our Comments and Exhibits A-B will go out via overnight delivery.
If you have any questions, please contact Kelilah Federman.
Thank you.
Alisha Pember
Alisha C. Pember
Adams Broadwell Joseph & Cardozo
601 Gateway Boulevard, Suite 1000
South San Francisco, CA 94080
(650) 589-1660 voice, Ext. 24
apember(a)adamsbroadwell.com
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ADAMS BROADWELL JOSEPH & CARDOZO
A PROFESSIONAL CORPORATION
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ANDREW J. GRAF
TANYA A. GULESSERIAN
DARION N. JOHNSTON TEL: (650) 589-1660
RACHAEL E. KOSS FAX: (650) 589-5062
AIDAN P. MARSHALL kfederman@adamsbroadwell.com
ALAURA R. McGUIRE
ISABEL TAHIR
Of Counsel October 13, 2025
DANIFL L. CARDOZO
MARC D. JOSEPH
Via Email & Overnight Mail
Mayor Joe Stapleton
Mayor Pro Tem Lauren Kleiman
Councilmembers Michelle Barto, Noah Blom,
Robyn Grant, Sarah J. Weber, Erik Weigand
Newport Beach City Council
c/o City Clerk
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Email: cityclerk@newportbeachca.gov; jtapleton@newportbeachca.gov;
lkleiman@newportbeachca.gov; mbarto@newportbeachca.gov;
nblom@newportbeachca.gov; rgrant@newportbeachca.gov;
sweber@newportbeachca.gov; eweigand@newportbeachca.gov
Via Email Only
Jaime Murillo, Deputy Director
Joselyn Perez, Senior Planner
Emails: murillo@newportbeachcaxov
jperez@newportbeachca. gov
Re: Agenda Item 17: Resolution No. 2025-66: Coyote Canyon Landfill
Gas to Energy Facility Appeal (PA2022-063)
Dear Mayor Stapleton, Councilmembers, City Clerk, Mr. Murillo, Ms. Perez:
On behalf of Appellant Orange County Residents for Responsible Industry
("Appellant" or "Residents"), we submit these comments on Agenda Item 17,
Residents' appeal of the City of Newport Beach Planning Commission's
("Commission") July 17, 2025 approval of the Coyote Canyon Landfill Gas to Energy
Facility ("Project"), titled Resolution No. 2025-66.• Coyote Canyon Landfill Gas to
Energy Facility Appeal (PA2022-063) ("Appeal").'
1 City of Newport Beach City Council Agenda (Oct. 14, 2025 4:30 PM), available at:
https:Hnewportbeach.le--istarl.com/newportbeach/meetings/2025/10/3752 A City Council 25-10-
14 Agenda.pdf?id=66fdf70d-d4d8-4feb-b7aa-6426blb21577; City of Newport Beach City Council
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The Project, proposed by Biofuels Coyote Canyon Biogas LLC, on behalf of
Archaea Energy Inc. ("Applicant"), proposes to develop the 4.14-acre Project site
with a new renewable natural gas ("RNG") processing plant and a pipeline
interconnection facility.2 The Project site is located at 20662 Newport Coast Drive.3
The Project would be constructed under a lease agreement with OC Waste &
Recycling ("OCWR"), within the boundary of the closed Coyote Canyon Landfill
("CCL"), which is owned by the County of Orange and operated by OCWR.4 The
RNG Plant will be under separate ownership and control from the CCL. The
Applicant seeks approval of a conditional use permit ("CUP") and Initial Study/
Mitigated Negative Declaration (SCH No. 2024120012) ("MND") from the City, as
well as newly proposed exemptions from the California Environmental Quality Act
("CEQA" )5 which were not considered by the Planning Commission.
The Staff Report incorrectly recommends that the City Council deny
Residents' Appeal and uphold the Planning Commission's approval of the Project in
reliance on three separate and contradictory CEQA findings — the MND, a
categorical exemption, and a finding that the Project was previously analyzed in a
1985 CEQA Addendum for a different landfill gas ("LFG") recovery project. Each of
Staffs proposed CEQA findings is legally and factually inadequate. Residents'
Appeal was taken from the Commission's July 17, 2025 Project approvals, which
included Resolution No. PC2025-008 adopting the MND, and approving CUP
PA2022-063, due to the City's failure to comply with CEQA, land use laws, and the
Newport Beach Municipal Code ("NBMC").6 The Appeal was supported by expert
reports which provided the City with substantial evidence supporting a fair
argument that the MND did not comply with CEQA because the Project results in
significant, unmitigated air quality, public health, greenhouse gas emissions, and
noise impacts which require the City to prepare an environmental impact report
("EIR") for the Project.
The Appeal provided substantial expert evidence demonstrating that
construction emissions and fugitive air pollutant emissions from leaks during
Staff Report Agenda Item No. 17 (Oct. 14, 2025) (hereinafter "Staff Report"); Staff Report
Attachment H — City Appeal Response Letter (Sept. 26, 2025), (hereinafter "Appeal Response
Letter").
2 The Applicant has also separately applied for a Permit to Construct/Permit to Operate from the
South Coast Air Quality Management District ("SCAQMD") the Project (Dec. 11, 2023 Rev. July 22,
2024).
3 City of Newport Beach, Initial Study Mitigated Negative Declaration, Landfill Gas to Energy Plant
Project, (Nov. 27, 2024), p. 3, (hereinafter "MND").
4 Id. at 15.
5 Pub. Res. Code ("PRC") §§ 21000 et seq.; 14 Cal. Code Regs. ("CCR") §§ 15000 et seq.
6 NBMC § 20.64.020(D); NBMC § 20.64.030(B)(1).
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Project operation may result in significant, unmitigated air quality impacts. Second,
the Appeal demonstrated that the Project would have significant, unmitigated
hazards and public health impacts from a potential facility upset, including
flammable vapor clouds, jet fire, and toxic vapor clouds that would jeopardize the
safety of nearby sensitive receptors, absent additional binding mitigation. Third,
the Appeal demonstrated that the Project's proposed annual shutdown and 10
potential additional shutdown days per year would result in flaring of potentially
significant greenhouse gases emissions. Finally, the Appeal provided substantial
expert evidence demonstrating that construction noise would result in significant
impacts to nearby sensitive noise receptors, and that the MND lacked adequate
mitigation to reduce construction noise to less than significant levels.
Under CEQA's fair argument standard, the City was required to prepare an
EIR where, as here, substantial evidence in the record supports a fair argument
that a project may have a significant effect on the environment.? Rather than
comply with CEQA, the City is doubling down on its efforts to avoid environmental
review by proposing that the City Council uphold the Planning Commission's
adoption of the MND and simultaneously find that the Project is exempt from
CEQA under two inapplicable exemptions.
First, Staff asks the Council to uphold the MND, despite substantial
unrebutted evidence from Residents' experts which supports a fair argument that
the Project has significant, unmitigated impacts. This approach violates CEQA.
Moreover, air quality expert Ray Kapahi provides new substantial evidence
supporting a fair argument that the Project would result in significant fugitive
emissions from volatile organic compounds ("VOCs") from leaking components
(connectors, valves, compressor) which exceed SCAQMD's 4 tons/yr offset limit, and
significant nitrogen oxide ("NOx") emissions from construction equipment which
violate the federal and state 1-hour ambient air quality standards.$ The City must
prepare an EIR under these circumstances.
Second, Staff asks the Council to find that the Project is exempt under CEQA
Guidelines Section 15308, which exempts actions taken by regulatory agencies to
ensure the maintenance, restoration, enhancement, or protection of the
environment.9 Staff asserts that the Project will convert LFG to RNG and eliminate
7 Pub. Resources Code, §§ 21080(d), 21082.2(d); CEQA Guidelines, §§ 15002(k)(3), 15064(f)(1), (h)(1);
Laurel Heights Improvement Assn. v. Regents of the Univ. of Cal. (1993) 6 CalAth 1112, 1123; No Oil,
Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, 75, 82; Stanislaus Audubon Society, Inc. v. County of
Stanislaus (1995) 33 Cal.AppAth 144, 1501-51; Quail Botanical Gardens Found., Inc. v. City of
Encinitas (1994) 29 Cal.ApplAth 1597, 1601-1602.
8 Kapahi Comments, p. 2.
9 14 CCR § 15308.
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flaring, thus qualifying for the exemption.10 However, Staff ignore that the Project
is proposed by a private applicant, that flaring will continue during facility
shutdowns, and that the Project results in significant, unmitigated construction and
operational air pollution. Section 15308 expressly excludes "construction activities
and relaxation of standards allowing environmental degradation"11— both of which
occur here. Moreover, the City has already determined in the MND that the Project
has significant impacts which require mitigation. Only projects having no
significant effect on the environment may be categorically exempted from CEQA
review,12 and CEQA prohibits mitigated categorical exemptions. 13 The courts have
held that an agency may not rely on a categorical exemption if to do so would
require the imposition of mitigation measures to reduce potentially significant
effects to less than significant levels. 14 Here, the Project has impacts that are
significant and require mitigation, both by the City's own admission and based on
substantial, unrebutted evidence in the record presented by Residents' experts. This
exemption does not apply to the Project.
Next, Staff inexplicably asks the Council to find that the Project is exempt
from CEQA under CEQA Section 21094.5, a CEQA section which applies only to
"infill" projects. Section 21094.5 defines "infill project" to include "(i) residential; (ii)
retail or commercial, where no more than one-half of the project area is used for
parking; (iii) a transit station; (iv) a school; [or] (v) a public office building."15 The
Project is an industrial RNG facility which does not qualify as an "infill project"
under Section 21094.5.
Assuming Staff meant to refer to a different CEQA provision, the Project is
still not exempt based on the City's 1985 CEQA Addendum for the earlier LFG-to-
energy facility which was reviewed as part of Addendum No. 84-104 to EIR No. 507,
and operated from 1988 to 2015.16 The old LFG project was an entirely different
project which involved different equipment, a different facility, different chemical
processes and resulted in different environmental and public health impacts than
those of the proposed Project. The Project therefore was not analyzed in the 1985
10 Staff Report, p. 8.
11 14 CCR § 15308.
12 Pub. Res. Code §§ 21080(b)(9); 21084(a).
13 Salmon Pro. & Watershed Network v. County of Marin ("SPAWN) (2004) 125 Cal.AppAth at 1102;
Azusa Land Recl. Co. v. Main San Gabriel Basin Watermaster (`Azusa") (1997) 52 Cal. AppAth 1165,
1198-1201.
14 Id.
15 Pub. Res. Code § 21094.5(e)(1).
16 Staff Report, pp. 2, 8.
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Addendum and the City may not rely on the Addendum to avoid environmental
review of the Project.17
Finally, the record before the City Council lacks substantial evidence to
make the findings required to uphold Project approval because the Project does not
conform to local codes and results in significant, unmitigated impacts which
constitute hazards to public health, interest, safety, and the general welfare of
persons residing and working near the Project.18
Residents respectfully requests that the City Council uphold this
Appeal, vacate the Planning Commission's approvals, and remand the
Project to Staff to prepare a legally adequate environmental impact report
("EIR") which accurately discloses and mitigates the Project's significant
environmental and public health impacts before bringing the Project back
for future approvals. The City Council has broad authority under Newport
Beach Municipal Code Section 20.50.030(D) to reverse the Commission's decision.
These comments are accompanied by expert technical reports of Ray Kapahi
and Jack Meighan documenting significant impacts to air quality, public health,
and noise from the Project's construction and operational phases which the MND
failed to disclose or mitigate. Their reports and qualifications are incorporated by
reference and included as Exhibit A and Exhibit B, respectively.19
I. APPEAL SUMMARY
Residents appealed the Commission's approval of the Project because the
Commission abused its discretion and failed to proceed in the manner required by
law by approving the Project in reliance on a deficient CEQA document and without
substantial evidence to support the approval findings.20
CEQA requires the lead agency to prepare an EIR "whenever substantial
evidence supports a fair argument that a proposed project may have a significant
17 Even if the Addendum had analyzed the current Project, the current Project has impacts that are
new and more severe than previously analyzed, and which require new and different mitigation.
CEQA Guidelines § 15162.
18 Newport Beach Municipal Code ("NMBC"), Section 20.52.020.
19 Exhibit A, Letter from Ray Kapahi re: Comments on Landfill Gas to Energy Plant Project
(PA2022-06; SCH No. 2024120012) (Oct. 2025) (hereinafter "Kapahi Comments").
Exhibit B, Letter to Kelilah Federman Adams Broadwell Joseph & Cardozo from Jack Meighan
Wilson Ihrig re: Response to Appeal on Archaea Landfill Gas Project (Oct. 10, 2025) (hereinafter
"Meighan Comments").
20 Code Civ. Proc § 1094.5(b); Topanga Assn. for a Scenic Community v. County of Los Angeles (1974)
11 Cal.3d 506, 515.
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effect on the environment."21 Residents' experts provided substantial evidence
supporting a fair argument that the Project results in significant, unmitigated air
quality, public health, hazards, greenhouse gas emissions, and noise impacts which
require the City to prepare an EIR for the Project pursuant to CEQA.22
First, the Project results in significant air quality and health risks.
Substantial evidence in Residents' expert's comments demonstrates that Project
construction will result in emissions of NOx and emissions of toxic metals from
welding, which the MND fails to analyze or mitigate. Project operation will also
result in significant fugitive air pollutant emissions of volatile organic compounds
VOCs, which are not mitigated by the measures included in the MND.
Second, flammable vapor clouds, jet fire, and toxic vapor clouds from the
Project would jeopardize the safety of nearby sensitive receptors, absent additional
binding mitigation. The MND fails to incorporate measures to reduce potentially
significant risk of upset from fire, vapor clouds, and other accidents or operational
upsets in systems such as the Project's thermal oxidized ("TOV) system and flaring
systems. Hazards impacts remain significant.
Third, construction noise would result in adverse impacts to nearby sensitive
noise receptors, but the MND does not mitigate noise to less than significant levels.
The Planning Commission failed to resolve these issues or require preparation of an
EIR before approving the Project, in violation of CEQA.
Fourth, the Project is not exempt from CEQA due to its significant,
unmitigated impacts.
Finally, the Council lacks substantial evidence to make the findings to
uphold approval of the CUP pursuant to NBMC Section 20.52.020(F) which
mandates that a Conditional Use Permit may only be approved where "Operation of
the use at the location proposed would not be detrimental to the harmonious
and orderly growth of the City, nor endanger, jeopardize, or otherwise
constitute a hazard to the public convenience, health, interest, safety, or
general welfare of persons residing or working in the neighborhood of the
proposed use."
21 Laurel Heights Improvement Assn. v. Regents of University of California, 6 CalAth at 1123; Pocket
Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903, 928.
22 Pub. Res. Code ("PRC") §§ 21000 et seq.; 14 Cal. Code Regs. ("CCR") §§ 15000 et seq. Laurel
Heights Improvement Assn. v. Regents of University of California, 6 CalAth at 1123.
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The Project results in a significant public detriment due to potentially
significant fugitive air emissions, greenhouse gas emissions, flammable and toxic
vapor clouds, fire hazards, and construction noise. These impacts are not reduced to
less than significant levels by the Project's mitigation measures or conditions of
approval, and may result in a significant public detriment to the community,
including endangering nearby sensitive receptors at Sage Hill High School, located
within 1,700 feet of the Project site and residences located within 1,385 feet of the
Project site. The Commission abused its discretion and failed to proceed in the
manner required by law by approving the CUP, in violation of Municipal Code
Section 20.52.020(F).
Review of an appeal from a decision of the Planning Commission shall be
de novo, meaning that the City Council is not bound by the decision that has been
appealed or called for review or limited to the issues raised on appeal or at the
lower hearing. 23 Evidence provided by Residents and its expert consultants
demonstrates that substantial evidence supports a fair argument that the Project
results in significant environmental impacts requiring preparation of an EIR.
The City Council should uphold Residents' Appeal by vacating the
Planning Commission's approvals and remanding the Project to Staff to
prepare a legally adequate EIR which adequately analyzes and mitigates
the Project's significant environmental and public health impacts before
the Project can proceed.
II. SUBSTANTIAL EVIDENCE SUPPORTS A FAIR ARGUMENT
THAT THE PROJECT WILL HAVE SIGNIFICANT
UNMITIGATED AIR QUALITY IMPACTS
Substantial evidence in Residents' Appeal and the comments of its expert
consultants supports a fair argument that the Project would result in significant,
unmitigated air quality impacts requiring preparation of an EIR. Under the fair
argument standard, if there is any substantial evidence the project may have a
significant impact — and regardless of the existence of other substantial evidence to
the contrary — an MND is improper and an EIR must be prepared.24
The Commission's approvals should be vacated and the City Council should
require staff to prepare an EIR which protects local and regional air quality, health
risk, and public safety, and complies with CEQA by disclosing and mitigating the
significant impacts detailed herein.
23 Newport Beach Municipal Code § 20.50.030(C)(3)(a).
24 Upland Community First v. City of Upland (2024) 105 Cal.App.5th 1, 15.
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A. Construction Emissions of NOx Are Significant and Unmitigated
New evidence in Residents' expert consultant Mr. Kapahi's report
demonstrates that NOx emissions during construction will exceed the state and
federal hourly NOx emission threshold. Mr. Kapahi conducted an independent air
dispersion model using data in the MND and appendices to calculate emissions
during construction.25 The maximum daily emissions of NOx reported in Appendix
B1 of the MND is 47.5 pounds per day.26
Mr. Kapahi used the data in the MND, after mitigation, to conduct an
independent air dispersion model. Mr. Kapahi's model found that Project
construction results in NOx emissions of 820 ug/m3.27 This significantly exceeds
the California Air Resources Board ("CARB") Ambient Air Quality Standard for
NOx of 339ug/m3 and the Federal Standard of 188 ug/m3.28 This exceedance was
not identified in the MND, and is not mitigated by the measures proposed in the
Mitigation Monitoring and Reporting Program.
Here, Mr. Kapahi's independent NOx air dispersion modeling used data from
the MND including all mitigation. Therefore, mitigation measures in the MND
would not reduce NOx emissions below the Ambient Air Quality Standards for NOx.
Substantial evidence supports a fair argument that construction NOx emissions will
be significant and that additional mitigation is required to mitigate the significant
NOx emissions. CEQA requires preparation of an EIR where substantial evidence
demonstrates a significant impact. An EIR must be prepared for this Project.
B. Construction Emissions from Welding Were Not Analyzed and May
Be Significant
Emissions associated with pipeline construction welding may pose significant
air quality and health risks to on -site and off -site receptors.29 Toxic fumes
generated during welding contain hexavalent chromium, nickel, cobalt, manganese
and other heavy metals.30 The Staff Report, Appeal Response Letter, and the MND
and appendices fail to resolve this issue.
25 Kapahi Comments, p. 2.
26 MND, Appendix B1 p. B1-42, -71, -72,
27 Kapahi Comments, p 2.
28 California Air Resources Board - Ambient Air Quality Standards (July 2024), available at:
https:Hww2.arb.ca.gov/sites/default/files/2024-08/AAQS%2OTable ADA FINAL 07222024.pdf.
29 Kapahi Comments, p. 5.
30 Id.
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The Responses to Comments on the MND stated that "protections and safety
to project -related construction workers from potential hazards associated with
welding, such as from toxic fumes, are provided through the federal Occupational
Safety and Health Administration (OSHA) regulations (e.g., Standard Number
1926.353)."31 But, the MND failed to quantify the emissions of toxic fumes from
welding to conclude that emissions would not pose a risk to public health and
safety.
The Responses to Comments on the MND stated that the air quality
modeling in the MND accounted for welding equipment as part of the pipeline
installation activity construction equipment mix.32 But this is not correct. The
MND Appendix B1 provides that for pipeline installation, 3 welders would operate
welding trucks for 8 hours a day and the Appendix B1 includes the trucks'
horsepower and their engine tier.33 But, the MND and Appendix B1 fails to
calculate actual emissions from the pipeline welding process.34
Mr. Kapahi's comments demonstrate that the MND failed to follow SCAQMD
and EPA guidance on calculating welding emissions and failed to quantify welding
emissions.35 Emissions from welding may include NOx, carbon monoxide ("CO"),
and particulate matter ("PM"). Additionally, welding releases toxic metals such as
hexavalent chromium —a known carcinogen —as well as cobalt, manganese, nickel,
and lead.36 The MND's conclusion that emissions associated with pipeline
construction welding would not pose a health risk to on -site and off -site receptors,
and project -related construction health impacts would be less than significant is not
supported by substantial evidence in the record before the City Council.37 Rather,
substantial evidence in Mr. Kapahi's comments support a fair argument that
emissions from welding may be significant and unmitigated.
C. Fugitive Emissions of VOCs Are Significant and Unmitigated
Mr. Kapahi's comments provide substantial evidence supporting a fair
argument that fugitive emissions from Project components will be significant and
unmitigated. 38
31 MND, Responses to Comments, p. 1-109.
32 MND, Responses to Comments, p. 1-108.
33 MND, Appendix B1-58, 60, -61,
34 Kapahi Comments, p. 5.
35 Id.
36 Id.
37 MND, Responses to Comments, p. 1-109.
38 Kapahi Comments, p. 5.
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The MND's Responses to Comments stated that "For fugitive emissions,
there would be no fugitive emissions associated with the proposed project during
normal/planned operations because the only sources would be the point sources
listed above. The remainder of the proposed plant would be an all -closed system
with no fugitives.1139 Staff assert that fugitive emissions will be zero.40 But this is
not supported by any evidence in the record, and is contradicted by readily available
evidence and Mr. Kapahi's report. Emissions from fugitive sources are quantifiable
based on the Process and Instrumentation ("P&ID") Diagram provided in the
Responses to Comments.41 Mr. Kapahi quantified emissions fugitive sources and
identified a significant air quality and public health impact. Mr. Kapahi's comments
provide substantial evidence supporting a fair argument that emissions from
fugitive leaks from project components will be significant.
The MND failed to accurately quantify fugitive emissions in violation of
SCAQMD Rule 1302. SCAQMD Rule 1302 requires that "Fugitive emissions
associated with the source shall be included in the potential to emit."42 Mr.
Kapahi's calculations of fugitive emissions were based on EPA guidance from the
1995 Protocol for Equipment Leak Emission Estimates.43 According to Mr. Kapahi's
calculations, the Project's Pumps (4), Flanges (150), Valves (10), Compressor (1),
Pressure Relief Valves (2), will result in emissions of fugitive VOCs at levels of 5.29
tons per year.44 See below.
39 MND, Responses to Comments, p. 1-26.
40 MND, Responses to Comments, p. 1-26.
41 Responses to Comments, Point of Receipt Coyote Canyon MID, Drawing No. 34250-2001-D-PID,
pdf p. 175 of 296.
42 SCAQMD Rule 1302 (ad).
43 US EPA, 1995 Protocol for Equipment Leak Emission Estimates (Nov. 1995), available at:
https://www. epa. gov/sites/default/files/2020-
09/documents/protocol for equipment leak emission estimates.pdf.
44 Kapahi Comments, p. 7.
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Table 1
Calculation of Fugitive VOC Emissions from Equipment Leaks
Organic Compounds EF
Organic Emissions
Equiprnent How Many? kgi�)
(lbslyr)
(tonslyr)
Pumps 4 2.40E-03
185.01
0.09
Flanges 150 3.90E-04
1,127.4
0.56
Valves 10 4.50E-03
867.24
0.43
Compressor 1 228E-01
4,394.0
220
Pressure Relief Valves 2 1.04E-01
4,008.6
2.00
TOTAL
10,592
5.29
Table 24 Oil and Gas Production Operations A verage Emission Factors
Avadabre at: htIpsJ/www.epa.gov{sites defaulUfiJesf�02Q
09ldocuments{pratocoi far egvpment_resk emission estimates.pdf
calculation: rbs r = # of sources x EF ft4ulsourse) x B. 7M hrs x(2.2 ibs/kg)
Mr. Kapahi's calculations identified fugitive VOC emissions of 5.29 tons per
year.45 When added to the Project's annual emissions of 2.35 tons per year of VOC,
the total annual emissions would equal 7.64 tons per year.46 Mr. Kapahi's
comments demonstrate that these VOC emissions are for normal, properly working
components (not leaking components) and would not be avoided or mitigated by the
measures detailed in the MND.47 Fugitive emissions of VOC is a significant
environmental impact which the MND fails to analyze or mitigate. Substantial
evidence detailed herein, and in Mr. Kapahi's comments, supports a fair argument
that fugitive VOC emissions from Project components result in significant
environmental impacts, requiring preparation of an EIR in accordance with CEQA.
D. Operational Fugitive Emissions of VOCs Are Not Mitigated by
Measures in the MND
MND Appendix H includes a Preparedness, Prevention, and Contingency
(PPC) Plan/Emergency Action Plan (EAP)/Spill Prevention Control and
Countermeasure (SPCC) Plan ("Emergency Action Plan") for the Project.48 But, the
Emergency Action Plan fails to include any measures to mitigate fugitive VOC
emissions. The Emergency Action Plan makes no mention of fugitive VOC
emissions whatsoever. The Emergency Action Plan includes measures only for gas
leaks of Methane and H2S/SO2 leaks49, not VOC fugitive VOC emissions.
45 Kapahi Comments, p. 8.
46 Kapahi Comments, p. 8.
47 Kapahi Comments, p. 5.
48 MND, Appendix H, Preparedness, Prevention, and Contingency (PPC) Plan/Emergency Action
Plan (EAP)/Spill Prevention Control and Countermeasure (SPCC) Plan Biofuels Coyote Canyon
Biogas, LLC Renewable Natural Gas Facility (April, 2024)
49 MND Appendix H, p. H-19.
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The Responses to Comments stated that the Applicant would monitor to
measure the Lower Explosive Limit and hydrogen sulfide.50 But, Mr. Kapahi's
comments provide substantial evidence that this monitoring will not reduce the
amount of fugitive VOC emissions. Mr. Kapahi's comments explain that the main
constituent of the natural gas from the Project is methane. The lower
flammability limit ("LFL") for methane is 5% or 50,000 ppm. A sensor designed to
detect LFL for methane would not detect VOCs that will be well below 10,000ppm.51
The concentration of fugitive VOCs would be too low to be detected by the LFL
sensors.52 Further, the LFL of benzene in air is 1.2% by volume.53 This is
equivalent to 12,000 ppm of benzene.54 Mr. Kapahi's comments present substantial
evidence that monitoring for the Lower Explosive Limit would not detect fugitive
VOC emissions, and would not adequately mitigate significant fugitive VOC
emissions. Fugitive VOC emissions therefore remain significant, such that
preparation of an EIR is required.
The Appeal Response Letter asserts that the Project's conformance with Rule
466 would mitigate potential impacts from leaks, and that the Project would be
equipped with leak detection sensors, alarms, and an automatic shutdown system.55
But, substantial evidence in Mr. Kapahi's comments demonstrates that compliance
with Rule 466 and onsite monitoring sensors will not reduce fugitive VOC emissions
to zero. The MND's conclusion that fugitive emissions is zero is therefore not
correct. Compliance with Rule 466 means that Project VOC emissions may not
reach 10,000 parts per million, but fugitive VOC emissions would still result in
significant emissions, according to Mr. Kapahi.56
The Responses to Comments states that the Project will comply with Rule
1173, but this would not reduce fugitive emissions to less than significant levels.
Mr. Kapahi's comments demonstrate that compliance with Rule 1173 would not
reduce or mitigate impacts of fugitive VOC emissions, because VOC emissions may
not reach the level considered a leak pursuant to Rule 1173.57 Emissions from
fugitive sources may not reach the level of a leak (400 ppm) to require compliance
with Rule 1173, but would still be cumulatively significant over the course of a year
of fugitive emissions from Project components. Mr. Kapahi's comments provide
substantial evidence that VOC emissions from fugitive sources would not be
50 MND, Responses to Comments, p. 1-109.
51 Kapahi Comments, p. 8.
52 Kapahi Comments, p. 8.
53 Id.
54 Id.
55 Appeal Response Letter, p. 17-174.
56 Kapahi Comments, p. 8.
57 SCAQMD Rule 1173, Table 2.
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mitigated through compliance with Rule 1173. Mr. Kapahi's comments support a
fair argument that fugitive VOC emissions from operation of Project components
remain significant and unmitigated.
E. The Applicant is Required to Offset the Increase of VOC Emissions
Pursuant to SCAQMD rules, a new facility is required to offset its emissions
of VOC equal to or in excess of 4 tons per year.58 The Project is a new facility. The
Project site would be developed with a new RNG facility.59 The Applicant applied
for a Permit to Construct Application for a new facility.60 The Permit to
Construction Application relies on conformance with South Coast AQMD Rule
1304(d)(1)(A) which provides that "Any new facility that has a potential to emit less
than the amounts in Table A shall be exempt from Rule 1303(b)(2)".61
Pursuant to SCAQMD Rule 1302(p), "facility means any source or group of
sources or other air contaminant emitting activities which are located on one or
more contiguous properties within the District, in actual physical contact or
separated solely by a public roadway or other public right-of-way, and are owned or
operated by the same person." The Project and the Coyote Canyon Landfill are not
under common ownership. According to the Permit to Construct Application "[n]one
of the existing operations at the CCL will be under common ownership or control
with the proposed RNG Plant.62
Pursuant to SCAQMD Rule 1304, "Any new facility that has a potential to
emit equal to or more than the amounts in Table A shall offset the total amount of
emission increase pursuant to Rule 1303(b)(2)." Because the Project is a New
Facility, the Project is required to include offsets because VOC emissions exceed 4
tons per year. The MND fails to disclose this mitigation requirement.
Mr. Kapahi calculated that fugitive VOC emissions will result in 5.29 tons
per year.63 This is in addition to the VOC emissions accounted for in the MND of
2.35 tons per year. Total annual emissions of VOC will therefore be 7.64 tons per
year. VOC emissions exceed the annual threshold of 4 tons per year, such that
offsets are required pursuant to SCAQMD Rules 1303 and 1304.
58 SCAQMD Rules 1303(b)(2); 1304(d); 1304 Table A.
59 MND, P. 90.
60 MND Appendix B3, p. B3-14.
61 MND Appendix B3, p. B3-14.
62 MND Appendix B3, p. B3-7.
63 Kapahi Comments, p. 6.
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Offsets are required pursuant to the following ratio: "Offset ratios shall be
1.2-to-1.0 for Emission Reduction Credits and 1.0-to-1.0 for allocations from the
Priority Reserve, except for facilities not located in the South Coast Air Basin
(SOCAB), where the offset ratio for Emission Reduction Credits only shall be 1.2-to-
1.0 for VOC, NOX, SOX and PM10 and 1.0-to-1.0 for CO.1164 Offsets must be
incorporated into binding mitigation in a Mitigation Monitoring and Reporting
Program in an EIR.
F. Operational Emissions of NOx Will be Significant and Offsets Are
Required
The MND concludes that NOx emissions will not be significant and offsets
are not required. But, Mr. Kapahi concluded that NOx emissions of 3.996 tons per
year should have accurately been rounded to 4 tons per year, pursuant to the
SCAQMD standard rounding convention. The principle that project's emissions (or
any other data) are compared against factors of the same precision, is uniformly
adopted in SCAQMD regulations.65 The precision, or number of decimal places that
need to be reported for the project emissions, need to be the same as the precision
stipulated in Rule 1304.
Project NOx emissions must be rounded to whole numbers, from 3.996 to 4
tons per year.66 If that had been done, the Project's NOx emissions would be 4 tons
per year, thus triggering the requirement for NOx offsets.
The MND's conclusion that the permitted equipment would not exceed the
offset trigger levels and the Project would not be required to offset emissions is
therefore not correct.67 Emissions of NOx will reach the levels shown in Rule 1304
Table A, 4 tons per year. Offsets are therefore required under Rule 1304.
64 SCAQMD Rule 1303(b)(2)(A).
65 SCAQMD routinely uses this principle in determine how a measured concentration is to be
compared with a standard. See
https://www.agmd.gov/docs/default-source/compliance/Paramount/sample-averaging.pdf [ Working
with Ray to demonstrate how this document demonstrates this principle];
https://www.agmd.gov/docs/default-source/rule-book/support-documents/rule-1193/auidance-
document.pdf ["for rounding purposes, the number of allowable non -rule compliant vehicles will be
determined by rounding up to the nearest whole number when the decimal fraction of a number is
equal to or greater than 0.5, and down if the decimal fraction of a number is less than 0.5."];
https://www. agmd. gov/docs/default-source/clean-air-plans/air-quality-management-plans/2022-air-
g_uality-management-plan/draft-final-2022-agmp/dfagmp.pdPsfvrsn=7e06be61 13 ["Values are
rounded to the nearest integer and may not sum due to rounding"].
66 Kapahi Comments, p. 10.
67 MND, Appendix B3, p. B3-15.
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Offsets are required pursuant to the following ratio: "Offset ratios shall be
1.2-to-1.0 for Emission Reduction Credits and 1.0-to-1.0 for allocations from the
Priority Reserve, except for facilities not located in the South Coast Air Basin
(SOCAB), where the offset ratio for Emission Reduction Credits only shall be 1.2-to-
1.0 for VOC, NOX, SOX and PM10 and 1.0-to-1.0 for CO.1168
An EIR must be prepared which includes accurate disclosure of significant
NOx emissions and an analysis of the offsets required for the Project.
III. SUBSTANTIAL EVIDENCE SUPPORTS A FAIR ARGUMENT
THAT THE PROJECT WILL HAVE SIGNIFICANT
UNMITIGATED HAZARDS IMPACTS
The Preliminary Site Consequence Assessment ("PSC") prepared by the
Applicant for the Project identified significant impacts from risk of upset associated
with fire and explosion, and recommended mitigation. Specifically, the PSC found
impacts on the occupied county landfill building and surrounding vegetation to be
significant.69 The City's own record therefore provided the Planning Commission
with substantial evidence supporting a fair argument that hazards impacts are
significant.
The Appeal Response Letter provides that "[t]he Preliminary Site
Consequence Assessment includes blast overpressure design requirements that
mitigate impacts to the county building to less than significant. These measures
will be implemented as part of the proposed project.1170 But the blast overpressure
design requirements are not included in the MND's MMRP, as required by CEQA.
Significant hazards impacts therefore remain unmitigated. CEQA requires the lead
agency to prepare an EIR "whenever substantial evidence supports a fair argument
that a proposed project may have a significant effect on the environment."71 CEQA
further prohibits reliance on unenforceable measures or design features to mitigate
significant impacts; all mitigation must be incorporated into the MMRP.72
The PSC recommended mitigation to reduce hazards impacts which have not
been included in the MMRP or included as conditions of approval. The PSC
68 SCAQMD Rule 1303(b)(2)(A).
69 PSC, pp. 4-10.
70 Appeal Response Letter, p. 17-174.
71 Laurel Heights Improvement Assn. v. Regents of University of California, 6 CalAth at 1123; Pocket
Protectors v. City of Sacramento (2004) 124 Cal.AppAth 903, 928.
72 Lotus v. Dept of Transp. (2014) 223 Cal. App. 4th 645, 651; CEQA Guidelines § 15126.4(a)(2)
(mitigation measures must be fully enforceable through permit conditions, agreements or other
legally binding instruments).
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recommended mitigation to prevent catastrophic events from occurring, including:
(1) Fire and gas detection; (2) Process control alarms; (3) Process control shutdowns
(Pressure safety high -highs, (4) Pressure safety low -lows, composition analyzers);
(5) Plant ESD (emergency shutdown) System; (6) Ignition Source Control,
Hazardous Area Classification.73
However, even following Residents' appeal, the PSC's recommended
mitigation measures are still not included in the Project's MMRP or the Project's
conditions of approval. Thus they remain non -binding and unenforceable.
Dr. Shukla's comments on the MND and the evidence in the PSC provided
the City with substantial evidence supporting a fair argument that the Project's
risk of upset remains potentially significant and unmitigated. The Planning
Commission's decision to approve the Project and adopt the MND violated CEQA
because the MND underreported potential hazards, ignored substantial evidence
from Residents' expert documenting significant, unmitigated hazards impacts,
relied on an inadequate PSC which did not disclose the full extent of the Project's
impacts, and failed to incorporate mitigation recommended by the City's own
experts into the Project's MMRP or conditions of approval.
The Commission's approvals should be vacated and the City Council should
require staff to prepare an EIR which protects public safety and complies with
CEQA by disclosing and mitigating these impacts.
IV. SUBSTANTIAL EVIDENCE SUPPORTS A FAIR ARGUMENT
THAT THE PROJECT WILL HAVE SIGNIFICANT
UNMITIGATED NOISE IMPACTS
Acoustical expert Mr. Meighan's comments provided substantial evidence
supporting a fair argument that the Project results in significant adverse noise
impacts to nearby sensitive receptors due to a significant noise increase above
ambient noise levels.74 Neither the Appeal Response Letter, Staff Report, MND,
MMRP, or Conditions of Approval resolved these issues.
Mr. Meighan's comments provided substantial evidence supporting a fair
argument that Project construction will result in a significant increase above the
ambient noise levels to sensitive receptors at Sage Hill Highschool and residences
73 PSC, p. 8.
74 Meighan Comments, p. 1-2.
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on Renata Street, and that the MND relied on an excessively high and unsupported
noise threshold to conclude that noise impacts would be less than significant.75
Substantial evidence in the record before the Planning Commission
supported a fair argument that the Project results in significant unmitigated
construction noise impacts requiring preparation of an EIR.
CEQA requires the lead agency to prepare an EIR "whenever substantial
evidence supports a fair argument that a proposed project may have a significant
effect on the environment."76
Mr. Meighan's comments demonstrate that the conditions requiring
construction noise only within certain times does not reduce the potentially
significant impact from construction noise. Mr. Meighan's comments demonstrate
that all construction work for the Project would be within the allowable time, but
would result in noise so loud it would be perceived as doubling compared to existing
ambient noise.77 Mr. Meighan's comments demonstrate that measures in the MND
do nothing to reduce potentially significant construction noise.
The Planning Commission's decision to adopt the MND and approve the
Project without requiring an EIR violated CEQA. The City Council should uphold
this appeal, vacate the Planning Commission's approvals, and remand the Project to
staff to prepare a legally adequate EIR for public review and comment, which
includes analysis and mitigation of the Project's significant noise impacts before
bringing the Project back for further consideration.
V. THE PROJECT IS NOT EXEMPT FROM CEQA
On the eve of the October 14, 2025 appeal hearing on the Project, the City
added two CEQA exemptions, which are not applicable to this Project.
First, the City is seeking to rely on a categorical exemption under CEQA
Guidelines Section 15308. CEQA Guidelines Section 15308 provides an exemption
for actions taken by regulatory agencies to "assure the maintenance, restoration,
enhancement, or protection of the environment where the regulatory process
involves procedures for protection of the environment", but provides that
"construction activities and relaxation of standards allowing environmental
75 Meighan Comments, p. 2.
76 Laurel Heights Improvement Assn. v. Regents of University of California, 6 Cal.4th at 1123; Pocket
Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903, 928.
77 Meighan Comments, p. 2.
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degradation are not included in this exemption.1178 The Project does not assure
restoration, enhancement, or protection of the environment because it results in
significant adverse environmental impacts, as detailed herein and in Residents'
expert consultant reports.
Second, the City is seeking to rely on a statutory exemption under CEQA
Guidelines Section 21094.5 which only applies to infill projects like: residential,
retail or commercial, transit station, school, or public office buildings.79 The Project
is none of these — it is an industrial RNG project. The Project therefore does not
qualify for this exemption and cannot tier from the 1985 Addendum No. 84-104 to
EIR No. 507 (SCH No. 82082004) to support a statutory exemption for the Project.80
The City also imposed a number of mitigation measures without which, it
found, the Project would result in significant impacts. Mitigated categorical
exemptions are prohibited under CEQA. An agency may not rely on a categorical
exemption if to do so would require the imposition of mitigation measures to reduce
potentially significant effects to less than significant levels.81 The MND provides
that without mitigation the following impacts would be significant:
• Biological Resources
• Cultural Resources
• Geology and Soils
• Hazards and Hazardous Waste
• Hydrology and Water Quality
• Public Services
• Transportation
• Tribal Cultural Resources
• Wildfire.82
To address these potentially significant impacts, the MND listed several
mitigation measures, including 17 measures in the MMRP, and 37 Conditions of
Approval.83 These are mitigation measures designed to reduce the Project's
potentially significant environmental impacts and impacts on public health that
will otherwise result from the Project without mitigation. The Staff Report
78 14 CCR § 15308.
79 Pub. Res. Code § 21094.5(e)(1)(A).
80 Staff Report, Attachment A, Exhibit G.
81 SPAWN,125 Cal.AppAth at 1102; Azusa Land Recl. Co. v. Main San Gabriel Basin Watermaster
("Azusa") (1997) 52 Cal. AppAth 1165, 1198-1201.
82 MND, p. 4.
83 MND, MMRP, p. 8.
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specifically provides that "[s]pecific mitigation measures have been required to
reduce the potentially significant adverse effects to a less than significant level.1184
The recognition that the Project results in significant impacts prohibits the reliance
on categorical exemption.
"If a project may have a significant effect on the environment, CEQA review
must occur, and only then are mitigation measures relevant.1185 As the courts have
held, "an agency should not be permitted to evade standards governing the
preparation of a mitigated negative declaration `by evaluating proposed mitigation
measures in connection with the significant effect exception to a categorical
exemption.11186 The City's improper attempt to include mitigation measures in a
categorical exemption is contrary to law, and deprives the public of its statutory
rights to participate and comment on the sufficiency of the mitigation measures
proposed to be applied to the Project.
By continuing to assert that the Project —which clearly requires mitigation of
significant impacts —should proceed under both an MND and CEQA exemptions,
the City fails to acknowledge that its recommendation is incompatible with
established law.
A. The Project is Not Subject to a Statutory Exemption Under
Public Resources Code Section 21094.5
As detailed above, the Project is not subject to a statutory infill exemption
under Public Resources Code Section 21094.5, because the Project is not an "infill
project" within the definition of Section 21094.5. The Project is not residential, or
retail or commercial, or a transit station, or a school, or a public office building.87
Therefore, the statutory exemption under 21094.5 does not apply to the Project.
The City's reliance on Section 21094.5 is unsupported and unreasonable. The City
therefore cannot tier from the 1985 Addendum No. 84-104 to EIR No. 507 (SCH No.
82082004) to support a statutory exemption for the Project.88
City Staff may have intended to refer to Section 21094. Regardless of the
CEQA section Staff relies to exempt the Project from CEQA review, substantial
evidence in Residents' comments and those of our expert consultants demonstrate
that the Project results in significant environmental impacts, as a result of the new
84 Staff Report, p. 5.
85 SPAWN (2004) 125 Ca1.AppAth at 1108.
86 Id.
87 Pub. Res. Code § 21094.5.
88 Staff Report, Attachment A, Exhibit G.
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RNG facility proposed for the Project which preclude reliance on an exemption.
Where there is a reasonable possibility that a project or activity may have a
significant effect on the environment, an exemption is improper.89 Specific
mitigation measures have been required to reduce the potentially significant
adverse effects to a less than significant level.90
First, the Project proposes is an entirely distinct Project from the 1985 project
described in the Addendum IS 84104 to EIR 507 (SCH#82082004) for Coyote
Canyon Landfill Gas Recovery Permit LGR 84-1. The Project includes substantial
new processes, chemicals, and different risks associated with hazards and
explosions.
The Staff Report provides that the Project proposes a new renewable natural
gas (RNG) processing plant and a pipeline interconnection facility, collectively
referred to as the "RNG Facility."91 The Project relies on air district permit
applications for a new facility, new process flow diagrams, and new components
including the thermal oxidizer, compressors, pipes and valves that were not
contemplated in the 1985 Addendum No. 84-104 to EIR No. 507 (SCH No.
82082004).92 The Project results in significant new impacts which were not
accounted for in the 1985 Addendum or EIR.
Second, the new Project includes different equipment with different chemical
processes and impacts than the 1985 project. The current Project requires a
thermal oxidizer to process the LFG which was not proposed in the 1985
Addendum. Mr. Kapahi's comments provide substantial evidence that the thermal
oxidizer generates new significant NOx emissions.93
The Project also involves installation of a compressor, pressure relief valves,
pumps and piping.94 This new equipment releases fugitive VOC emissions that are
significant and would result in degradation of local and regional air quality, and
result in significant impacts under CEQA as shown herein.95 The Addendum does
not analyze fugitive VOC emissions, which were found to be significant in Mr.
Kapahi's comments. The Addendum does not quantify VOCs at all. The Addendum
refers only to fugitive dust, but not fugitive air pollutant emissions, which were
found to be significant and unmitigated in Mr. Kapahi's Comments.
89 Wildlife Alive v. Chickering (1976) 18 Cal.3d 190, 206.
90 Id.
91 Staff Report, p. 3.
92 Staff Report, Attachment A, Exhibit G.
93 Kapahi Comments, p. 12.
94 Id.
95 Id.
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The Project also involves substantial welding of pipeline. As detailed herein
and in Mr. Kapahi's expert report, welding releases significant amounts of airborne
toxic metals. These emissions were not quantified in the MND, Staff Report, or in
the 1985 Addendum or EIR. These emissions may result in significant degradation
of local and regional air quality. The air quality, health risk, and cumulative
impacts of the Project are significant and preclude reliance on a statutory
exemption.96
1. The Project Has Significant Noise Impacts Yet Does Not
Incorporate Mitigation from the Addendum
The Project results in significant noise impacts, but does not include
mitigation measures detailed in the 1985 Addendum to reduce construction noise.
The Addendum provides that "plywood barriers [are] proposed to partially mitigate
noise impacts from landfill grading operations... [P]lywood barriers are currently
being used to mitigate noise impacts in a landfill in San Diego."97 The Project fails
to incorporate feasible mitigation including the plywood barriers and temporary
berms to block line of sight from construction to the most sensitive receivers. Mr.
Meighan's comments demonstrate that this leaves construction noise impacts
unmitigated.98 The Project's noise impacts therefore remain significant and
unmitigated, precluding reliance on a statutory exemption.
Moreover, the Addendum never analyzed conformance with City of Newport
Beach Noise Ordinance. The Addendum compares the 1985 project's noise only to
the County of Orange and the City of Irvine's noise ordinances.99 As shown below,
the Addendum compares the 1985 project's noise to "the County of Orange and the
City of Irvine's noise standards." 100
Mitigation measures:
Present gas turbine locations in the to basin have demonstrated
very effective noise mitigation measures through the use of noise
blocking waTls and acoustic enclosures. Since much of the equipment
proposed for this project is Similar to existing installations it
will be possible to measure the ambient noise of these installations
prior to submitting final building plans to the County, We are
confident, therefore, that we will be able to meet and exceed all of
the County of Orange and the City of Irvine's noise standards.
The City cannot rely on an Addendum which did not analyze noise impacts
based on the City of Newport Beach thresholds. The Addendum's failure to analyze
96 Wildlife Alive v. Chickering (1976) 18 Cal.3d 190, 206.
97 Staff Report, Attachment A, Exhibit G, pdf p. 234 of 888.
98 Meighan Comments, p. 3.
99 Staff Report, Attachment A, Exhibit G, pdf p. 94 of 888.
100 Staff Report, Attachment A, Exhibit G, pdf p. 94 of 888.
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noise impacts to City of Newport Beach precludes the City from tiering from the
Addendum for analyzing noise impacts.
Further, as shown in Mr. Meighan's comments substantial new information shows
the construction noise impacts will be more significant than described in the
Addendum or prior EIR such that the City cannot rely on a CEQA exemption under
Section 21094.5. Mr. Meighan's comments demonstrate that construction noise
would be significant if compared to thresholds based on existing noise levels. This
is substantial new information which was not addressed by the City in the MND or
Staff Report. The Project's noise impacts remain significant and unmitigated. The
City cannot rely on a statutory exemption due to the Project's significant
unmitigated construction noise impacts.
B. The Project is Not Subject to a Categorical Exemption
Under CEQA Guidelines Section 15308
The City of Newport Beach failed to provide any substantial evidence that
the Project would assure the enhancement or protection of the environment to
support approval of the Project under a categorical exemption pursuant to Section
15308.101 The City concludes that the Project is exempt under Section 15308 in
that, instead of flaring exhaust into the atmosphere, the LFG generated by the CCL
into a pipeline -quality natural gas equivalent with the RNG being transferred from
the facility into SoCal Gas infrastructure for use in their system through an
existing onsite tie-in point. 102
Substantial evidence in Residents' comments demonstrates that the Project
results in significant adverse environmental impacts. Where a Project results in
significant environmental impacts, an exemption under CEQA Guidelines Section
15308 will not be upheld. Moreover, CEQA specifically provides that
"Construction activities and relaxation of standards allowing
environmental degradation are not included in this exemption."103
The degradation of air quality from NOx and VOC emissions associated with
construction and operation of the Project preclude reliance on this exemption. It is
clear that the Project cannot be characterized as one taken "to assure the
maintenance, restoration, enhancement, or protection of the
environment."104 Substantial evidence in Residents' comments demonstrates that
101 14 CCR § 15308.
102 Staff Report, Attachment A, p. 6 of 7.
103 14 CCR § 15308.
104 14 CCR § 15308.
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the Project will result in new air quality impacts from NOx, VOCs, and heavy
metals from welding which require analysis in an EIR. The Legislature has
determined that oxides of nitrogen are dangerous substances.105 The City therefore
lacks substantial evidence to make the findings to support a Class 8 categorical
exemption.
Evidence in the Staff Report itself demonstrates that the Project cannot rely
on a Class 8 categorical exemption. The Staff Report's Attachment A, Exhibit F
provides that "LFG is currently being flared off by existing site infrastructure. The
Project will divert the LFG from the flares and into the RNG Facility to convert it
into RNG through a proprietary process. The LFG will undergo moisture,
particulate, and contaminant removal to be upgraded and compressed into pipeline
quality RNG. Contaminants removed from the LFG will be destroyed in the thermal
oxidizer. While the Project generally replaces existing LFG flaring, the
Project still has the potential to release gaseous emissions of criteria
pollutants and dust into the ambient air."lob The Project's "potential to release
gaseous emissions of criteria pollutants and dust into the ambient air" precludes
reliance on a Class 8 exemption. The significant adverse effects of the Project
identified in the MND, Staff Report, and detailed herein do not "assure the
maintenance, restoration, enhancement, or protection of the environment" as
required by CEQA to support an exemption.
C. The Exemption Was Not Included in the Agenda
The Agenda prepared for the October 14, 2025 hearing on the Project does
not provide that the Project is proposed to be approved under CEQA categorical and
statutory exemptions. This is new information that was not provided in the Agenda
for public notice. The Agenda provides only: "17. Resolution No. 2025-66: Coyote
Canyon Landfill Gas to Energy Facility Appeal (PA2022-063) a) Conduct a de novo
public hearing; and b) Adopt Resolution 2025-66; A Resolution of the City Council of
the City of Newport Beach, California, Denying an Appeal and Upholding the
Decision of the Planning Commission to Adopt a Mitigated Negative Declaration
and Approve a Conditional Use Permit to Construct and Operate a Landfill Gas -to -
Energy Facility at 20662 Newport Coast Drive (PA2022-063)."107 The Agenda
makes no mention of the CEQA exemptions sought for Project approval.
When a lead agency is required to provide notice of the underlying approval
or action in accordance with the Brown Act, the lead agency must separately
105 Clean Air Constituency v. California State Air Resources Bd. (1974) 11 CaUd 801, 808.
106 Staff Report, Attachment A, Exhibit F, p. 17-58 (emphasis added).
107 Agenda, p. 9.
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identify its CEQA action on its agenda.108 The court in Defend Our Waterfront v
State Lands Comm'n (2015) 240 CA4th 570, 583 held that the State Lands
Commission's failure to include statutory exemption on the meeting agenda "did not
provide legally sufficient public notice of the SLC's CEQA decision..."109 "The
agenda did not notify anyone that the SLC would also consider invoking a statutory
exemption..."110 The court held that the CEQA exhaustion requirement under
Section 21177 applies to categorical exemption determinations "as long as the public
agency gives notice of the ground for its exemption determination.""'
A prerequisite to bringing a legal challenge under CEQA is the requirement
to present, either orally or in writing, specific objections to the agency decisions in
question, either during the public comment period or before the close of the public
hearing on the project.112 The Agenda provides that "If in the future, you wish to
challenge in court any of the matters on this agenda for which a public hearing is
to be conducted, you may be limited to raising only those issues which you (or
someone else) raised orally at the public hearing or in written correspondence
received by the City at or before the hearing."113 The Agenda fails to include the
statutory and categorical exemptions sought.
The court in Tomlinson v County of Alameda (2012) 54 C4th 281, 285 held
that CEQA's exhaustion of administrative remedies requirement applies to decision
that project is categorically exempt only if public agency gives notice of grounds for
its exemption determination and that determination is preceded by public hearings
at which members of the public had the opportunity to raise any concerns or
objections to the proposed project. Here, the Agenda for the appeal hearing fails to
give notice for the exemptions. Residents therefore reserve the right to supplement
any issues raised regarding CEQA exemptions in any subsequent review for the
Project.
D. The Project is Subject to Exceptions to the Exemptions
As detailed above, the Project is not subject to the categorical or statutory
exemptions cited in the Staff Report and Attachment A. Regardless, the Project
cannot be approved under any exemption because it qualifies for an exception
pursuant to CEQA Guidelines Section 15300.2. The Project's significant air quality
108 San Joaquin Raptor Rescue Ctr. v County of Merced (2013) 216 CA4th 1167, 1176.
109 Defend Our Waterfront v State Lands Comm n (2015) 240 CA4th 570, 584.
110 Id.
111 Id.
112 Pub Res. Code §21177.
113 Agenda, p. 1.
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and public health impacts, combined with the Project's significant cumulative
impacts, preclude reliance on an exemption.
CEQA Guidelines Section 15300.2 provides:
(b) Cumulative Impact. All exemptions for these classes are inapplicable
when the cumulative impact of successive projects of the same type in the
same place, over time is significant.
(c) Significant Effect. A categorical exemption shall not be used for an activity
where there is a reasonable possibility that the activity will have a significant
effect on the environment due to unusual circumstances.
Here, the Project results in significant cumulative air quality impacts due to
the Project's exceedance of the California Air Resources Board Ambient Air Quality
Standard for NOx. Mr. Kapahi conducted an independent air dispersion model
utilizing the data in the MND, after mitigation.114 Mr. Kapahi's model found that
Project construction results in NOx emissions of 820 ug/m3.115 This significantly
exceeds the California Air Resources Board Ambient Air Quality Standard for NOx
of 339ug/m3 and the Federal Standard of 188 ug/m3.116 Mr. Kapahi's calculations
identified that the 1-hour NOx emissions would be twice the State Standard and 4
times the Federal Standard.117 When added to background concentration, the
cumulative impact is significant.118 This results in a significant cumulative air
quality impact, which the City must address and mitigate in an EIR.
Moreover, the Project results in significant effects due to unusual
circumstances associated with the significant hazards and explosion impacts which
may endanger nearby sensitive receptors at Sage Hill High School, located within
1,700 feet of the Project site and residences located within 1,385 feet of the Project
site. Evidence of potentially significant impacts due to these circumstances
precludes reliance on an exemption, and mandates CEQA review.
114 Kapahi Comments, p 2.
115 Kapahi Comments, p 2.
116 California Air Resources Board - Ambient Air Quality Standards (July 2024), available at:
https:Hww2.arb.ca.gov/sites/default/files/2024-08/AAQS%2OTable ADA FINAL 07222024.pdf.
117 Kapahi Comments, p. 3.
118 Id.
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Page 26
VI. THE CITY COUNCIL LACKS SUBSTANTIAL EVIDENCE TO
SUPPORT APPROVAL FINDINGS DUE TO THE PROJECT'S
SIGNIFICANT UNMITIGATED PUBLIC HEALTH AND
ENVIRONMENTAL IMPACTS
The Planning Commission lacked substantial evidence in the record to
support the findings required for approval of the Conditional Use Permit pursuant
to NBMC Section 20.52.020(F)(5). The record before the City Council similarly
lacks substantial evidence to support these findings.
The Commission lacked substantial evidence to make the necessary finding
that "[o]peration of the use at the proposed location would not be detrimental to the
harmonious and orderly growth of the City, or endanger, jeopardize, or otherwise
constitute a hazard to the public convenience, health, interest, safety, or general
welfare of persons residing or working in the neighborhood of the proposed use."119
The Project's significant air quality, health risk, greenhouse gas emissions,
hazards, and noise impacts may jeopardize the public health and general welfare of
the City. These impacts are not mitigated by the mitigation measures in the MMRP
or the Project's conditions of approval.
The record before the Commission lacked substantial evidence to support the
conclusion that the Project would not result in a hazard to the public convenience,
health, interest, safety, or general welfare. As detailed herein, the record does not
contain substantial evidence to support the conclusion that the mitigation measures
for hazards and hazardous material impacts are sufficient to fully mitigate the
significant hazards, fire, and wildfire impacts from the Project in the event of a fire,
explosion, or other catastrophic equipment failure at the Project site.
Substantial evidence in Residents' comments and those of our expert
consultants provided the City substantial evidence supporting a fair argument that
the Project results in a significant public detriment and may jeopardize public
safety and the general welfare absent additional analysis and mitigation in an EIR.
VII. CONCLUSION
For the forgoing reasons, the Planning Commission abused its discretion and
failed to proceed in the manner required by law by approving the CUP and the
Project's MND after being presented with substantial evidence supporting a fair
119 NBMC Section 20.52.020(F)(5).
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Page 27
argument that the Project will have potentially significant, unmitigated impacts on
air quality, greenhouse gases, public health, hazards and noise.
The Planning Commission violated the City's Municipal Code by approving
the Project's CUP after being presented with substantial evidence that the Project
is detrimental hazards to public health, interest, safety, and the general welfare of
persons residing and working near the Project and is not consistent with the
General Plan.
The City Council should uphold this appeal, vacate the Planning
Commission's approvals, and remand the Project to staff to prepare an EIR to
address the impacts identified by Residents and its experts. These actions are
critical to ensure that the Project complies with CEQA and all applicable laws, and
to ensure that the health and safety of City residents and workers is protected.
Attachments
KDF:acp
7499-032acp
Sincerely,
Kelilah D. Federman
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EXHIBIT A
Comments on
Landfill Gas to Energy Plant Project
(PA2022-06; SCH No. 2024120012)
October 8, 2025
by
Ray Kapahi
Senior Air Quality Consulting Engineer
Environmental Permitting Specialists (EPS) reviewed the Initial Study/Mitigated Negative
Declaration (MND) prepared by the City of Newport Beach for the Landfill Gas to Energy Plant
Project and its supporting documents.
The Landfill Gas to Energy project would build a renewable natural gas processing plant and a
pipeline interconnection to an existing pipeline. The project would convert landfill gas to
pipeline quality natural gas that would be exported using the existing pipeline.
We have identified 4 key issues that indicate that the project will have significant impacts to air
quality. These are summarized below and discussed in detail in these comments.
1. The IS/MND and the City's response misinterpret and misstate the SCAQMD's offset
requirement for NOx. Offsets are required if NOx emissions are equal to or exceed 4
tons/yr. The project's annual NOx emissions need to be rounded to the nearest whole
number from 3.996 to 4 tons/year
2. Fugitive VOC emissions from leaking components (connectors, valves, compressor) were
not quantified. Had this been done, the VOC emissions from these leaking components
would exceed the 4 tons/yr offset limit. The City's response erroneously concluded that
compliance with District Rules 466 and 1173 would mitigate fugitive VOC emissions to
zero. This is incorrect, These rules limit the concentration of VOCs to 10,000 ppm not
zero ppm. Fugitive VOC emissions will continue to be releases but at a lower rate.
3. NOx emissions from construction equipment would violate the federal and state 1-hour
ambient air quality standard. Given that NOx is the precursor that generates smog
(ozone) and the area already violates the 8-hour standards for ozone, these violations
constitute significant air quality impacts. These violations also negate the assertion in
the IS/MND that the project complies the federal air quality Plans.
Emissions of toxic metals from welding were ignored. The City erroneously concluded welding
emissions were included in the emissions model (CalEEMOD). This is incorrect. The emissions model
quantified emissions from the trucks transporting the welder. Not emissions from welding. Emissions
from welding need to be included in the project risk assessment.
I. PROJECT CONSTRUCTION RESULTS IN SIGNIFICANT AIR QUALITY IMPACTS
Violation of Air Quality Standard for NOx
The MND concluded that the project would not cause the violation of any state of federal air
quality standard since the daily project level emissions are below thresholds of significance.
EPS analysis found that NOx emissions during the construction phase as reported in Appendix 131
(47.5 Ibs/day or 5.94 Ibs/hr over an 8-hour workday) would violate the state and federal 1-hour
ambient air quality standard.
The analysis shows 1-hour NOx impacts to be twice the state standard and 4 times the federal
standard. When added to the background concentration, the cumulative impact is significant.
See Table 1.
The fact that both project level and cumulative impacts are significant is especially troubling as
the region has been classified as "Extreme" non -attainment for the 8-hour ozone standard. NOx
is one main precursor to regional ozone formation. High concentrations of ozone lead to
increased levels of asthma and other respiratory diseases. The very young and the elderly are
most at risk from these air pollutants.
Table 1
Project Level and Cumulative Air Quality
Concentrations Caused by Project Emissions
Background
project Level
Cumulative
Standard
(2018)
1-Hr NOx (NO2)
99.0 ug/m3
820 ug/m3
919.8 ug/m3
State 339 ug/m3
Federal188 ug/m3
Background NOx data from Table 4, Appendix B1 of the MND.
California Air Resources Board - Ambient Air Quality Standards (July 2024), available at:
https:Hww2.arb.ca.gov/sites/default/files/2024-08/AAQS%2OTable ADA FINAL 07222024.pdf
Ambient Air Quality Stan€lar€is
Averaging
Calftnnia Standards
National Standards `
Pollutant
Timm
Concentration 3
Method 4
Primary 3
5ecandary'd
Method '
1 Hour
i M pprrr (190 Frgrr P
Ozone+�5`B
4 +
L.rY a4lblei
Strnt hd
�4ro
L1trFei
8 Hour
ik070 ppM (137 Porn)ii.0i0
ppM (137 pgrm')
phdmf5 fty
Pnmbry Sgtrtidt.E
M-Pa r5eby
Respirable
24 I lour
50 Fly
15D pgrM'
Inertial .Separation
Particulate
GrAvOndlrlt 6r
Sanie as
Md Grrarfi
,tinMMI
20 F9N^}
—
Mather (PMi 0?
9ebAmenuamon
Primary S7andard
6ebit
yti
luilhw!Ut. Mein
Flee
Particulaw
24 Hour
—
—
5 rr5'
&01! M
Prirrmry Si&idad
Ir*6&1 _Separation
btafler
SrrE GrtrriM6trit
An�lyd'a
A nnLmI
12 y
Gim-hetric ur
{Jl0 F s
i 5.D Ng�Tu'
PM2.5)i
fvl�hmefit Memn
Be18 Aaenuaw5rk
1 Hwr
20 ppm123Mgrm)
39 ppm (a0 Mgem)
Carbon
Nori Dspersivr
Nem4Mpemive
Monoxide
a Hour
9.0 ppm (Am pYn)
lnrrarrd PrmAuniL-Vy
9 ppmi10mgftn)
IMIY&Ied PhAMs M ]r
(C 0)
[NaIR}
(NaIR}
9 F� mm
Ffm17 mgAm'l
—
—
iLakeTahael
ogen
�CN
1 Fkne
0.18 Mpm (339 4_13
1i 0 � (1M )
xide
Gas Ptmie
Gas PF'mte
AmrLml
.030 PPm &7 E 3F
Wh q i �0 �$hnij
�' e! hS
i8
4.1}
Ch*Mhuft* SC&rWa
CPeMi JnWeSMrMM
Ai lhrre it Mrnn
Pdmery 91Ed
MODELING METHODOLOGY (NOx EMISSIONS)
NOx emissions for the construction phase were modeled using Environmental Protection Agency
(EPA) and South Coast Air Quality Management District (SCAQMD) recommended AERMOD
dispersion model (Version 24142). The air dispersion model is used to translate an emission rate
(e.g., Ib/hr) into a concentration (e.g., parts per million or micrograms per cubic meter [ug/m3]).
Other modeling inputs are described below.
Model Set -Up
The following options were used:
• Use of Calm Wind Processing
• Use of Missing Data Processing
• Averaging Times: 1 hour
• Use of terrain adjustment
For the construction phase, emissions were modeled as a single elevated area source 1,700
meters x 1,700 meters) 2 meters above ground.
Modeling Grid and Coordinate System
A rectangular (x-y) Cartesian coordinate system was used. A region 1,700 x 1,700 meters (1 mile
x 1 mile) was used. The modeling region divided into 50 meter square cells for a total of 1,225
individual receptors in the vicinity of the project area. See Figure 1 for a layout of the modeling
grid.
Meteorological Data
Six years of hourly meteorological data (2012 to 2016) were used in the analysis. The surface
data (wind speed, wind direction, temperature, etc.) were recorded at John Wayne airport
SCAQMD provides model ready meteorological files at their web site'.
Construction Emissions
Maximum daily emissions of NOx reported in Appendix A of the MND (47.5 pounds per day or
5.94 pounds and hour over an eight hour day.
FINDINGS
'Available at: http://www.agmd.gov/home/air-quality/meteorological-data/data-for-aermod
The results of this analysis indicate that NOx emissions during the construction phase would
result in ambient concentrations that would violate California's 1-hour ambient air quality
standard for NOx emissions. These findings are summarized below.
Table 2
Summary of Project Level NOx Impacts
Maximum Construction
State or Federal Ambient Air
Pollutant
Related Impact
Quality Standard'
(ug/m3)
(ug/m3)
NOx (1-hour)
820
Federal: 188
State: 339
The spatial distribution of NOx is provided in Figures 2 and 3. Area within the contour marked
"188" exceed the federal 1-hour NOx standard. Figure 3 provides numerical concentrations at
each grid point at and around the project site. On concentration outside the project site are
subject to the air quality standards. A copy of the modeling files is attached (Exhibit - -)
These results indicate that the construction phase of this project would lead to significant NOx
related air quality impacts, which were not disclosed in the MND. This is a critical omission as
Orange County areas suffers from the worst air quality in the County. NOx emissions are one of
the main precursors that cause ozone (smog).
I modeled NOx emissions that incorporate mitigation. Therefore, the measures proposed in the
IS/MND do not reduce NOx emissions to below the level of significance.
It is not possible for the IS/MND to conclude that the project would comply with existing air
quality plans while the project creates new violations.
Emissions of Toxic Metals from Welding Not Quantified
Dr. Shukla's comments on the MND identified welding as a source of toxic emissions. In response (Q2-10),
the City indicated that welding emissions were calculated and appear in the CalEEMOD emissions report.
The emissions that the City is referring to are the emissions from a diesel truck used to transport the
welder.
The emissions identified by Dr. Shukla are release of hazardous toxic metals from welding associated with
the pipeline construction. The process of welding would involve joining two sections of pipe by melting
the steel and filling the joint with molten metal. The most common welding methods are gas metal arc
Z Copy of ambient air quality standards available at: https://ww2.arb.ca-gov/sites/default/files/2020-07/aags2.pdf,
incorporated herein by this reference. The City should print out and include with this letter this referenced
material.
and flux core arc welding. Fumes are generated during the welding process that contain hexavalent
chromium, nickel, cobalt, manganese and other metals.
SCAQMD issued specific guidance3 on how welding emissions are to be calculated and reported. EPA has
also issued guidance' on how emissions from welding are to be quantified.
Calculation of emissions from welding requires data on the types and pounds of welding rods that would
be used. No such data appears in the IS/MND or in the response to comments. Nevertheless, the emissions
from welding are likely to be significant due to the scale of pipeline installation over a three -to -four month
construction period.
For example, if just 500 pounds of welding rods are used, the emissions of toxic metals would be as
follows:
EF Emissions
Toxic Metal lb/lb rod (Ibs)
Chromium (total)
7.72E-03
3.86E+00
Hexavalent Chromium
2.84E-05
1.42E-02
Cobalt
1.00E-06
5.00E-04
Manganese
3.46E-04
1.73E-01
Nickel
1.84E-04
9.20E-02
Amount of welding rods 500 Ibs
Emission Factors (Efs) from SCAGPdD Dec 2D24
Guidelines for Calculating and Reporting Emissions
from Welding Operations
Most of these emissions are of the same order or higher than emissions from the thermal oxidizer or
flare.
PROJECT OPERATION RESULTS IN SIGNIFICANT AIR QUALITY IMPACTS
Fugitive Emissions from Leaking Components Not Quantified
The City failed to adequately address Dr. Shukla's comment related to fugitive VOC emissions from
components (Comment 02-11).
3 SCAQMD (2024): Guidelines for Calculating and Reporting Emissions from Welding Operation. (December 2024).
Available at:
https://www.agmd.gov/docs/default-source/planning/annual-emission-reporting/guidelines-for-calculating-and-
reporting-emissions-from-welding-operations.pdf?sfvrsn=6
' EPA (1995): Electric Arc Welding. Available at: https://www.epa.gov/sites/default/files/2020-
11/documents/c12s19.pdf
The City responded by indicating that LFG is a closed loop, pass through treatment system and therefore,
there would be "no fugitive emissions associated with the proposed project during normal/planned
operations... the proposed plant would be an all -closed system with no fugitives". This response ignores
the fact that there are fugitive VOC emissions from valves, connectors, pumps and compressors will occur
even from a closed loop, pass through system. Use of a closed loop, pass through system eliminates vent
emissions. It does not eliminate fugitive emissions.
EPS reviewed the process and instrumentation diagram (P&ID)' included in the Response to Comments,
to estimate emissions of VOCs from leaking components (connectors, valves, pumps, compressors). The
results show that annual emissions of VOCs attributed to leaking components would equal 5.2 tons/yr.
The calculation is as follows:
Organic Compounds EF
Organic Emissions
Equipment How Many? kg;?w
0WY0
00_n yr)
Pumps 4 2.40E-03
185.01
0.09
Flanges 150 3.90E-04
1,127.4
0.56
Valves 10 4.50E-03
867.24
0.43
Compressor 1 2.28E-01
4,394.0
2.20
Pressure Relief Valves 2 1.04E-01
4.008.6
2.00
TOTAL
10.582
5.29
Table 2-4 Olt ead Gas ProducUon Operations Average Emisslon Factors
AvarlaNe at: https:lNMM.epa.govlsrtes�defaUl les/2Q20-
091documen"rotocol for eourpment leak emwbn estrmates.pdf
Calculatran: lbor = # of sources x FF ft.4misource) x 8.760 hrs x(2.2 lbsWg)
The calculation is based on an estimate of the number of valves, compressors and pressure relief valves
detailed in the P&ID. This calculation is based on published emission factors by the Environmental
Protection Agency (EPA)' that quantify the emission rate of VOCs from leaking components. An excerpt
of the EPA emission factors appears in the Table 2-1 of the protocol and appears on the next page. .
5 Response to Comments May 2025, Point of Receipt Coyote Canyon P&ID. PDF Page 135
' EPA (1995): "Protocol for Equipment Leak Emission Estimates". EPA-453/R-95-017 (November 1995. Available
at: https://www.epa.gov/sites/default/files/2020-
09/documents/protocol for equipment leak emission estimates.pdf
TABLE 2-1. SOCMI AVERAGE EMISSION FACTORS
Emission factora
Equipment type Service (kg/hr/source)
valves
Gas
0.00597
Light liquid
0.00403
Heavy liquid
O.00D23
Pump sealsh
Light liquid
0,0199
Heavy liquid
0,00B62
Compressor seals
Gas
0,228
Pressure relief valves
Gas
0,104
Connectors
All
0.00183
Open-ended lines
All
0.0017
Sampling connections
All
0.0150
"These factors are for total organic compound emission
rates.
bThe light liquid pump seal factor can be used to estimate the
leak rate from agitator seals.
Project components including Pumps (4), Flanges (150), Valves (10), Compressor (1), Pressure Relief
Valves (2), will result in emissions of fugitive VOC at levels of 5.29 tons per year. These VOC emissions are
for normal, properly working components and therefore would not be avoided or mitigated by the
measures detailed in the MND, as detailed below.
When added to the project's estimate? of 2.35 tons/yr, the total annual emissions would equal 7.64
tons/yr which is almost twice the threshold of 4 tons/yr requiring emission offsets.
TABLE 14
NEW SOURCE REVIEW THRESHOLD EMISSION LEVELS
COYOTE CANYON RNG FACILITY
NEWPORT BEACH, CALIFORNIA
Pnlluianl
Proposed
RRG Facility
Emissions
Major Source
Threshold'
Major
Sourca9
Offset
Trigger
Lerels°
Offsets
Re uimd8
q
Offsets
Required to
Purchase
Proposed Source
RACT
Thresholds
Trigger
BACTY
TG]UFlars
TOX
RNG Flare
tons!4r
L-1yr
t-ty,
Ratio 1:1.2
Ibm.y
IWd.y
119day
Ndrogen0xides(N0r)
3.998
10.00
No
4.0G
14o
NA
29.32
40.67
1.OG
Y.Wy-
Carbon N-ide(CO)
12.51
50.00
No
29_DO
No
NA
97.75
112.01
1.01)
Y%lYes
Sulfur Oioxide(SO2)
2.35
70.00
No
4.01)
U.
NA
11.25
17.97
1.00
y-fy s
Vdatile Organ. Comp-ds(VOCs)
2.35
10.00
No-
4.01)
No
NA
II.G4
11.0
1.0G
YevYes
Particulate MsHer(PMie)
1.24
70.00
No
4.OG
No
NA
5.83
32.03
1.0G
YsuYss
o[al Ha2erdous Pd, Fbld-ts (HAPe)
8-23
25.00
No
WA
NfA
NA
NIA
WA
hVA
NIA
Single HAP
1.94
10.00
No
WA
WA
NA
NiA
NiA
NIA
NIA
nMapr source tlredtc4ds were taken Iram SChgMO Flue 13Ad[aj
' ONaM nigger IaVMa were taken from SCAgMD flue 13Wd)(2)
' ONae1 evelu9llon P.1.1 red n ecaartlance lath SCAgMO fine I3M (h)(2)
' RACT thrmhom taken from SCAOMD SkCT psay
Fugitive emissions can be a significant source of VOC emissions and in response, the SCAQMD has
promulgated Rules 466 and 1173 to limit fugitive emissions. Compliance with these Rules does not
eliminate fugitive emissions to zero. The City's response that the Project's fugitive emissions will be zero
is therefore unsupported.
7 Table 4, Section 3 of the IS/MND (November 2024); Table 14 of the Permit to Construct/Permit to Operate for a
Renewable Natural Gas Plant for Biofuels Coyote Canyon Biogas, LLC Newport Beach, California, (December 11,
2023 Rev. July 22, 2024).
The City's response asserts that the Project will comply with Rule 466 (Pumps and Compressors).
Compliance with Rule 466 does not mean that fugitive emissions from compressors will be eliminated. It
simply means that the emission concentrations would be below 10,000 parts per million (ppm). Such
emissions will continue 24/7 even when the plant is off-line.
For example, a compressor leaking VOCs at a concentration of 9,999 ppm would comply with Rule 466
but continue to leak VOC emissions. Compliance with Rule 466 does not mean that fugitive VOC emissions
from the compressor are reduced to zero. The same is true with fugitive emissions from valves, pumps
and connectors that are subject to Rule 1173.
The City's response also indicated that the project would monitor to measure the Lower Explosive Limit
and hydrogen sulfide.' This monitoring will not reduce the amount of VOCs released from leaking
components. The proposed monitoring is related to the health and safety of the workers and nearby
community from explosions or fires and is unrelated to fugitive VOC emissions. For example, the LFL of
benzene, a component of LFG, in air is 1.2% by volume.' This is equivalent to 12,000 ppm of
benzene. The maximum ppm allowed under Rule 466 for compressors in 10,000 ppm which would be
below the explosive limit.10 Monitoring for the Lower Explosive Limit would not detect fugitive VOC
emissions, and would not adequately mitigate significant fugitive VOC emissions. As noted previously,
even if the plant went off-line because the gas concentrations exceed flammability limits, the various
components would continue to release VOCs.
MND Appendix H includes a Preparedness, Prevention, and Contingency Plan/Emergency Action
Plan/Spill Prevention Control and Countermeasure Plan (Emergency Action Plan) for the Project. The
Emergency Action Plan is designed to prevent an accidental explosion and includes only measures only
for gas leaks of Methane and H2S/SO2 leaks, not VOC fugitive VOC emissions.11 The Emergency Action
Plan makes no mention of VOC emissions, and fails to include any measures to mitigate fugitive VOC
emissions.
Project is Subject to NOx Emission Offsets
In the discussion related to the need for project offsets, the IS/MND incorrectly concludes that emission
offsets for NOx will not be required. A comparison of project emissions with SCAQMD's Offset Trigger
Levels is presented in Table 4. The project NOx emissions were estimated to equal 3.996 tons/yr. The
offset trigger level is 4 tons/yr.
8 Response to Comments, May 2025, 02-11 PDF Page 113.
1 National Institute of Health, National Library of Medicine, National Center for Biotechnology Information,
Benzene (Compound) 12.1.7 Explosion Hazards, https://pubchem.ncbi.nlm.nih.gov/compound/Benzene.
10 South Coast Air Quality Management District, Rule 466.
11 MND Appendix H, Page H-19.
Table 4 Comparison of Project Emissions to South Coast Air Quality Management District Offset
Trigger Levels
snuroe
Crilerla Air Pollutants (tans ear)
Voc
NOx
Co
S02
PM,,y
pmt5
Thermal Cxidixer — Main Fuel
2.12
2.60
8.65
2.01
0.92
0.92
Thermal Oxidizer — Supplemental
Fuel
0-004
0.54
1.81
0.01
0.06
0.06
Enclosed RNG Flare
0.21
0.88
2.04
0.33
025
0.25
Natural Gas-Pbwemd Emergency
Generator
0.02
0.01
0.01
0-0001
0.002
0-002
Tolal Annual Emissions
2.352
3.996
12.515
2.347
1.236
1.236
Rule 13D4 Offset Trigger Limits'
4
4
29
4
4
NA
Exceeds Limits?
No
No
No
No
No
NA
Source: SCS Erxj Wts (S22 Appel ix R1 }.
Wbn: VOG = volable orgardr compound: NO, = nimgen addss: CO = carbon morla>ade: SGp = sulfur dioxide: PMio = roarse inhalable particulate matter PK 5 = fine
inhalable par i ulale: RNG = reruwatre rwehral gm: NA = nol appkable
South Coast A4MU Rule 1304(dli21$).
12
The comparison of the project's NOx emissions (3.996 tons/yr) with the District NOx trigger level (4
tons/yr) is flawed. The precision, or number of decimal places that need to be reported for the project
emissions, need to be the same as the precision stipulated in Rule 1304. In order words, the project
NOx emissions need to be rounded to whole numbers, the same as the trigger level stated in Rule 1304.
If that had been done, the projects NOx emissions would be 4 tons/yr that would mandate the need for
NOx offsets.
The principle that project's emissions (or any other data) are compared against factors of the same
precision, is uniformly adopted in South Coast Air Quality Management District regulations. 13 For
12 IS/MND, Table 4, p. 68.
13 SCAQMD routinely uses this principle in determine how a measured concentration is to be compared with a
standard. See
httos://www.aamd.L-ov/docs/default-source/compliance/Paramount/sample-averaLinL.Ddf In this
abatement order, SCAQMD specifically instructs the company monitoring hexavalent chrome to round
the monitoring results to 0.1 ng/m3 to determine if the monitoring data are below the standard of 1.0
ng/m3; See https://www.agmd.gov/docs/default-source/rule-book/support-documents/rule-
1193/guidance-document.pdf ["for rounding purposes, the number of allowable non -rule compliant
vehicles will be determined by rounding up to the nearest whole number when the decimal fraction of a
number is equal to or greater than 0.5, and down if the decimal fraction of a number is less than 0.5."];
See https://www.agmd.gov/docs/default-source/clean-air-plans/air-quality-management-plans/2022-
air-quality-management-plan/draft-final-2022-aqmp/dfaqmp.pdf?sfvrsn=7eO6be61 13 ["Values are
rounded to the nearest integer and may not sum due to rounding"]; See guidance from CARB on
rounding data at: https://ww2.arb.ca.gov/sites/default/files/barcu/regact/2024/areades/appd.pdf;
example, the ambient air quality standard for the 8-hour ozone standard in 0.07 ppm. In determining if
an area attains this standard, the air monitoring data must be reported to the same level of precision, to
the hundredth place. Here, the Total Annual Emissions of 3.996 tons/year was required to be rounded
to the nearest integer, 4 tons/year. It is clear, based on the data in the IS/MND itself, that offsets are
triggered under Rule 1304.14
Rule 1304 requires "[a]ny modified facility that has a post -modification potential to emit equal to or
more than the amounts in Table A shall be required to obtain offsets for the corresponding emissions
increase..." See Table A below:
TABLL. A
Emissions in
Pollutant Tons per Year
Volatile Organic Compounds ( IOC) 4
Nitrogen Oxides (NO,,) 4
Sulfur Oxidcs (SO,) 4
Particulate Matter (PlMlo) 4
Carbon Monoxide (CO) 29
The IS/MND's conclusion that the permitted equipment under the proposed project would not exceed
the offset trigger levels and the project would not be required to offset emissions is not correct.
Emissions of NOx will reach the levels shown in Table A, 4 tons per year. Offsets are therefore required
under Rule 1304.
This information must be provided in an EIR circulated for public review.
Project is Not Exempt from CEQA Review
In the final days before Resident's appeal hearing, the City revised the environmental analysis to include
two CEQA exemptions.
CEQA Guidelines Section 15308 Exemption
CEQA Guidelines Section 15308 provides an exemption for "actions taken by regulatory agencies, as
authorized by state or local ordinance, to assure the maintenance, restoration, enhancement, or
protection of the environment where the regulatory process involves procedures for protection of the
EPA provides similar guidance. For example, if an emission standard is 90, then project emissions of
90.357 would be rounded to 90. Project emissions of 90.639 would be rounded to 91.
https://www.epa.gov/sites/default/files/2020-08/documents/tid-024.pdf.
14 See South Coast Air Quality Management District Rule 1304(d)(2)(B) Table A.
environment. Construction activities and relaxation of standards allowing environmental degradation
are not included in this exemption.
The Project would not assure the restoration, enhancement or protection of the environment because
the Project would would create new emissions and still result in significant emissions of air pollutants.
The Staff Report's Attachment A, Exhibit F Findings and Facts in Support of Findings provides that:
The LFG is currently being flared off by existing site infrastructure. The Project will divert the LFG
from the flares and into the RNG Facility to convert it into RNG through a proprietary process.
The LFG will undergo moisture, particulate, and contaminant removal to be upgraded and
compressed into pipeline quality RNG. Contaminants removed from the LFG will be destroyed in
the thermal oxidizer. While the Project generally replaces existing LFG flaring, the Project still
has the potential to release gaseous emissions of criteria pollutants and dust into the ambient
air.15
The current project differs from the previous project that involved flaring of LFG. The current project
involves treatment of LFG to bring it up to pipeline quality. This involves, in part, removal of hydrogen
sulfide. This results in new emissions that would be abated with a thermal oxidizer. The thermal oxidizer
generates new emissions that contribute to the project's overall NOx emissions footprint. The current
project involves installation of a compressor, pressure relief valves, pumps and piping. This new
equipment releases fugitive VOC emissions that are significant and would result in degradation of local
and regional air quality, and result in significant impacts under CEQA as shown herein.
The current project involves welding of a pipeline that releases toxic metals. These emissions were not
quantified and may result in degradation of local and regional air quality.
CEQA Section 21094.5 Statutory Exemption
The Project is not exempt under the statutory infill exemption. Section 21094.5 of the California Public
Resources Code exempts projects from CEQA review where an environmental impact report was
certified for a planning level decision in which case, the approval of the infill project is limited to the
effects on the environment that (A) are specific to the project or to the project site and were not
addressed as significant effects in the prior environmental document, or (B) substantial new information
shows the effects will be more significant than described in the prior environmental document.
"Infill project" for the purposes of Section 21094.5 means a project that meets the following conditions:
(A) Consists of any one, or combination, of the following uses: (i) Residential. (ii) Retail or commercial,
where no more than one-half of the project area is used for parking. (iii) A transit station. (iv) A school.
(v) A public office building.
is Staff Report, Attachment A, Exhibit F, p. 17-58.
This is not an infill project and does not meet the criteria for an infill project. The Project proposes the
installation and operation of a new renewable natural gas (RNG) processing plant and a pipeline
interconnection facility.
The prior approval for Addendum No. 84-104 to Environmental Impact Report No. 507 (SCH No.
82082004) was not certified for a planning decision, but was a distinct project under CEQA which was
operational from 1988 to 2015.
The current project differs from the previous project that involved flaring of LFG. The current project
involves treatment of LFG to bring it up to pipeline quality. This involves, in part, removal of hydrogen
sulfide. This results in new emissions that would be abated with a thermal oxidizer. The thermal oxidizer
generates new emissions that contribute to the project's overall NOx emissions footprint. The current
project involves installation of a compressor, pressure relief valves, pumps and piping. This new
equipment releases fugitive VOC emissions that are significant.
The current project involved welding of a pipeline that releases toxic metals. These emissions were not
quantified and are not addressed in the Addendum.
Ray Kapahi
Senior Air Quality
Consulting Engineer
Ray.Kapahi@gmail.com
Office: 916.687.8352
Mobile: 916.806.8333
Practice Areas
• Air Quality Permitting
• Odor Modeling and Control
• Health Risk Assessment
• Environmental Impact Analysis
• Greenhouse Gas Analysis
• Atmospheric Dispersion Modeling
Industries
• Solid Waste
• Energy Production
• Law Firms
• Construction and Mining
• Cannabis Cultivation
• Oil and Gas Production
• Food Industries
Education and Training
• BSc. Physics (1972)
• MEng. Chemical Engineering (1975)
• CARB Accredited Green House Gas
(GHG) Lead Verifier with Specialization
in Process Emissions and Electricity
Transactions (2009)
News
• Presentation "Numerical Modeling of
Landfill Gas and Odors" 33rd International
Conference on Solid Waste Technology and
Management. March 11 to 14, 2018, Annapolis,
MD.
• Presentation "Integrated Approach to
Effective Odor Control at Landfills and
Composting Facilities" Wastecon 2016,
Indianapolis, IN.
EXPERIENCE
Over 30 years of experience in analyzing impacts to air quality,
permitting of stationary sources, and preparation of environmental
impact documents. I have provided litigation support and testified as
an expert witness in air quality related matters. I have assisted a
broad range of clients and assists them to identify and meet their
regulatory obligations.
The scope of my experience includes siting of new landfills, waste to
energy plants, obtaining conditional use permits from City and County
Governments for new projects or expansion of existing projects.
Specific experience and skills include preparation of emission
inventories, analysis and measurements of odors, dispersion
modeling, analysis of impacts to public health, responding to public
comments, working with law firms and appearing before City and
County Planning Boards and Commissions as an expert witness on
behalf of clients.
Following completion of projects, Mr. Kapahi continues to provide
on -going technical support.
REPRESENTATIVE PROJECTS
Air Quality Permitting
Permitting of a Powdered Milk Plant (Turlock, CA)
Evaluate emissions of various air pollutants from the proposed 30
million gallons per year mild processing/drying facility. Demonstrate
compliance with local and state air quality regulations, including
regulation of toxic air pollutants.
• Permit Revisions for an Existing Fruit Dehydration
Facility (Yuba City, CA)
Assisted a major food processor in revising their operating permits to
allow for additional steam production. Worked cooperatively with the
local air district to ensure timely issuance of the revised permits.
Permitting of a Waste to Energy Plant (Fort Irwin, CA)
Quantify emissions from a proposed 34 tons per day solid waste to
energy project. Analyze emissions associated with pyrolysis and
subsequent utilization of synthetic gas to generate 1.5 MW of electric
power. Prepare the necessary permit applications and supporting
documentation.
• Permitting of a Cannabis CBD Oil Extraction Facility
(Mendota, CA)
Quantify emissions from a proposed solvent extraction process. Assist
in design of an RTO VOC control system. The facility was permitted in
2019 and is currently operating.
Publications and Presentations
Air Quality Impact Analysis and Monitoring
Presentation "Use of Advanced Models to
Control Fugitive Odors from Composting Sites"
US Compost Council Annual Meeting, January
2015, Austin, TX.
"Air Emissions from Landfills and Transfer Stations
— Do they Increase Public Health Risks?"
Presented at Quad State Environmental
Conference, Pigeon Forge TN, Sept 2015.
"Risks of Carbon Credit Invalidation Under
California's Cap -and -Trade Program", Presented
at the 2014 Air and Waste Management
Association Annual Conference. June 24-27,
2014. Long Beach, CA
"Estimate of VOC Emissions from Sludge Drying",
Presented at the 1995 SWANA Conference.
November 1995, Baltimore, MD.
"Use of Biofilters to Control VOCs", Biocycle,
February 1995.
"Impacts of the 1990 Clean Air Act
Amendments", San Jose Business Journal, March
24, 1994.
"Modeling Fine Particulates" in Municipal Waste
Incineration Risk Assessment, Edited by Curtis
Travis, Plenum Press, 1990.
Specialized Training
Calculating Tank Emissions. Trinity Consultants.
Los Angeles, CA February 1-2, 2020.
Accidental Release Modeling Workshop. Trinity
Consultants. Dallas, TX November 1-2, 2018.
HARP2 (Risk Assessment Model) Training at
California Air Resources Board. Redding, CA
Hearing Board Variance Training — California Air
Resources Board (1995)
Air Emissions and Odors from Wastewater —
University of Texas, Austin (1994)
Professional Affiliations
Air and Waste Management Association
(Member)
American Institute of Chemical Engineers
(Member)
Member Technical Advisory Committee (TAC) for
the California Energy Commission
• Environmental Impacts from Warehouse Development
(Oceanside, CA)
EPS is working with local residents and their attorney in identifying impacts
to air quality and public health from the development of a major
warehouse development. At issue are violations of air quality standards
from NOx, PM10 and PM2.5.
• Monitoring for PM10 and PM2.5 (Escalon, CA).
EPS conducted air monitoring for PM10 and PM2.5 to evaluate the
migration of dust from an adjacent solid waste recycling facility to nearby
farms. The results showed that the concentration of dust at the farms
occurred when winds were blowing towards the farms from the solid
waste facility. The results of the study were used to negotiate mitigation
practices that lead to a substantial reduction in the migration of PM10.
• Analysis and Control of Fugitive Dust and Odors from a
Soil Blending Facility (Stockton, CA)
Advanced computational fluid mechanics (CFD) models were used to
predict the air flow and movement of fugitive dust at a soil blending
facility. With this information, the client was able to install appropriate
mitigation services to mitigate off -site migration of fugitive dust.
• Review of Odor Control Systems for Cannabis Cultivation
and Distribution Facilities (Palm Springs, CA)
EPS evaluated the odor control system for over 15 different odor
cultivation and distribution facilities in Palm Springs. The effectiveness of
the proposed system was evaluated and recommendations were made to
the City to Palm Springs on the issuance or denial of the operating permits.
Analysis of Public Health Risks
• Analysis of Public Health Risks Associated with
Composting Operations (Napa County, CA)
Estimate the types and amounts of toxic air contaminants (TAC) released
from green waste and food waste composting. An air dispersion model
was used with local wind data to determine the concentration of each TAC.
The concentration estimates were supplemented with toxicity data to
quantify public health risks from exposure to the various toxic pollutants.
• Analysis of Public Health Risks from Proposed Asphalt
Plant (Kern County, California)
Analyze emissions of any toxic air pollutants from a proposed 250 tons per
day asphalt plant. Emissions from aggregate drying, propane combustion
and asphalt oil were quantified. Acute and chronic public health risks from
exposure to various toxic pollutants were calculated.
EXHIBIT B
WILSON IHRIG
ACOUSTICS, NOISE & VIBRATION
October 131h, 2025
Kelilah Federman
Adams Broadwell Joseph & Cardozo
601 Gateway Blvd., Suite 1000
South San Francisco, CA 94080
CALIFORNIA
WASHINGTON
NEW YORK
WI #25-001
SUBJECT: Response to City Appeal Response Letter on Archaea Landfill Gas Project
Wilson Ihrig prepared this memo in response to the City of Newport Beach Staff Report, as well as
the City Appeal Response Letter and Response to Comments memo prepared by Staffworks for the
Archaea Landfill Gas Project in the City of Newport Beach. The project involves the construction,
operation, and maintenance of a new renewable natural gas processing plant and a pipeline
interconnection facility. The approximately 4-acre site is located to the west of Newport Coast Drive
and south of Highway 73. There are noise -sensitive uses flanking the site - Sage Hill School 1400 feet
to the north and single-family houses as part of the Tesoro Crest gated community 1250 feet to the
south.
Document Contains Unreported Significant Construction Noise Impacts
In the City Appeal Response Letter, the City notes our previous letters, summarizing our concerns
that "the proposed project would result in excessive noise levels to nearby sensitive receptors." They
assert that "this comment was addressed in the response to comment 02-24 in the RTC, and no
additional issues were raised or substantiated in the most recent letter" (City Appeal Response
Letter, page 17-175). In the Staff Report, the Applicant states that a "Noise Impact Analysis was
prepared for the project" and that the "study found that neither the construction of the RNG Facility
nor the long-term operation of the facility would result in noise impacts to the nearby sensitive
receptors" (Staff Report, page 10). However, we believe the issues we outlined have not been
addressed.
In our letter dated December 13th, 2024, we detailed how the Initial Study / Mitigated Negative
Declaration (IS/MND) contains unreported significant construction noise impacts, primarily due to
construction noise lacking evaluation of a substantial increase. This concern - that construction noise
would be considered significant if compared to thresholds based on existing noise levels - was not
addressed and noise impacts remain significant and unmitigated. The MND states that the "combined
construction noise levels from pipe installation and equipment installation would be 55 dBA Leq and
56 dBA Leq, respectively" (MND, page 127). Ambient daytime noise levels ranged from 38 to 48 dBA
at the nearest noise measurement location to the single-family homes to the south (IS/MND, Table F
of Appendix K). This would exceed the existing noise levels, which the Response to Comment
document agrees with, stating the "single-family home would experience an increase in ambient
noise levels ranging from 8 to 18 dBA Leq for four months" (RTC, page 1-118).
The Response to Comment document states that "The change in ambient noise levels at the sensitive
receptors would be minimal and would only last for four months" (RTC, page 1-118). However, we
believe this remains a potential impact pursuant to CEQA since CEQA law requires project to avoid a
5900 HOLLIS STREET. SUITET1 EMERYVILLE. CA 94608 (510)658-6719 1 WWW.WILSONIHRIG.COM
WILSON IHRIG
Archaea Landfill Gas Project
Response to City Appeal Response Letter
"substantial temporary or permanent increase in ambient noise levels in the vicinity of the project"
(IS/MND, page 123). As noted in the IS/MND, a 10 dBA increase is perceived as a doubling of the
sound and thus would cause an adverse impact (IS/MND, page K-5).
The selected construction noise threshold of 80 dBA is 42 dBA higher than the baseline noise
conditions and this threshold does not appear to take into account the baseline condition. While no
impact threshold for substantial increase is specified in the City of Newport Beach General Plan or
Municipal Code, it is the responsibility of the project applicant to assess the noise increase over
ambient levels against the human response observations noted in the IS/MND, or against a 3, 5, or
10 dBA limit that is typically identified by other jurisdictions as the impact threshold. Whether a 3, 5,
or 10 dBA threshold is selected to evaluate the significance of a substantial increase, based on the
construction noise analysis presented in the IS/MND, the noise increase would be substantial and
significant. The Project is potentially significant, and noise impacts must be analyzed in an
Environmental Impact Report (EIR) before the Project can be approved.
The City is Relying on an Improper Interpretation of a CEQA exemption
The City is seeking to rely on a categorical exemption under CEQA Guidelines Section 15308 which
exempts actions taken by regulatory agencies to assure the maintenance, restoration, enhancement
or protection of the environment where the regulatory process involves procedures for protection of
the environment. However, CEQA Section 15308 provides specifically that "construction activities
and relaxation of standards allowing environmental degradation are not included in this
exemption." The significant noise impacts identified above are inherently construction related.
Construction noise also will negatively affect the surrounding environment in a way independent of
and unique from emissions caused by the plant. If construction activities are not included within the
exemption, it stands to reason that this exemption does not apply to the issues raised within both
this letter and our previous letters.
Previous Environmental Documents do not Recognize or Mitigate Significant
Impacts
The City states that the current Project's environmental review has also been studied under a prior
addendum and EIR. The CEQA exemption under Section 21094.5 is not appropriate for the Project
because the Project results in significant effects which will be more significant than described in the
prior environmental impact report.
First, the original environmental documents did not analyze the prior project's conformance with
City of Newport Beach noise ordinance, only the County of Orange and the City of Irvine. The City
cannot rely on an Addendum which did not analyze noise impacts based on the City of Newport Beach
thresholds. Thus, the current IS/MND is the most appropriate document for analyzing noise impacts
within the City of Newport Beach and reliance on the Addendum is misplaced.
Next, based on our review, we believe that impacts are more significant than previously analyzed and
mitigation provided in previous environmental documents would not feasibly reduce the identified
significant impacts. Several of the previous mitigation measures and project design features do not
mitigate construction noise and thus are irrelevant to the issues we have presented. For example, a
permanent sound wall for use during operations, restrictions on maximum sound levels produced by
the plant, and restrictions in operational areas during nighttime hours would reduce operational
noise but inherently would not reduce the significant construction noise identified.
Page 2
WILSON IHRIG
Archaea Landfill Gas Project
Response to City Appeal Response Letter
Of the mitigation measures identified in previous environmental documents, three pertain to
construction noise: the restriction of construction hours, the use of mufflers, and the implementation
of temporary berms and soundwalls.
One set of mitigation measures states that during "noise sensitive periods (5:30 p.m. to 9:00 a.m., and
weekends) grading shall be confined to the eastern portions of the borrow site (1,209 feet away from
residences)." The current IS/MND shows that grading is not the only construction scenario that
produces high noise levels and implies the use of nighttime construction, something that is not
studied in the current IS/MND. If nighttime construction is implemented during the current iteration
project, the IS/MND should be amended to study this.
Previous environmental documents also state that "upgraded mufflers on grading equipment are also
required. To ensure that these measures are effective, periodic monitoring will be conducted and
necessary modifications imposed." While the use of mufflers are a valid and recommended best -
practice noise control procedure, the environmental documents provide no proof that the use of
mufflers would reduce noise exposure. Construction equipment is notoriously loud, and in many
cases source levels of typical construction equipment used in noise modeling software already
include noise mufflers. Additionally, the monitoring plan, also a good best -practice, should include
concrete thresholds and schedules to ensure that the program is effective and is compared to
quantitative limits to ensure compliance with thresholds of significance.
The last mitigation measure in the previous environmental documents is the implementation of
plywood barriers and temporary berms to block line of sight from construction to the most sensitive
receivers. However, these features are not incorporated into the current IS/MND and thus would not
reduce any significant construction noise impacts.
Conditions of Approval do not Mitigate Potential Noise Impacts
The Project is required to comply with Conditions 20 and 21. Conditions 20 and 21 do not resolve
the aforementioned increase above ambient noise, and thus construction noise still results in a
significant impact. Condition 20 states that "noise generated by the proposed use shall comply with
the provisions of Chapter 10.26 (Community Noise Control), under Sections 10.26.025 (Exterior
Noise Standards) and 10.26.030 (Interior Noise Standards), and other applicable noise control
requirements" of the Newport Beach Municipal Code. However, section 10.26.035.D states that
"Noise sources associated with construction, repair, remodeling, demolition or grading of any real
property. Such activities shall instead be subject to the provisions of Chapter 10.28 of this title"'
meaning that Condition 20 does not apply for construction noise.
Condition 21 states that construction activities "shall comply with Section 10.28.040" of the Newport
Beach Municipal Code, which exempts noise -generating construction activities from section 10.28. of
the code as long as construction occurs between the hours of 7:00 a.m. and 6:30 p.m., Monday
through Friday, and 8:00 a.m. and 6:00 p.m. on Saturday. This, again, does not change the potential
impact of this project since all construction work is planned during daytime hours. As such, these two
conditions do nothing to reduce the potential for impacts due to construction noise there are
presented in both this and our previous letter. As such, we believe there is a potential for a significant
impact, and the construction noise issue should be studied more thoroughly in an EIR.
1 Newport Beach Municipal Code 10.26.035
https://www.codepublishing.com/CA/NewportBeach/#!/NewportBeachl0/NewportBeachl026.html#10.26
Page 3
WILSON IHRIG
Very truly yours,
WILSON IHRIG
Jack Meighan
Associate
Archaea Landfill Gas Project
Response to City Appeal Response Letter
Page 4