Minor Deficiencies And Inaccuracies In Environmental Impact Report Did Not Prejudice The Environmental Review Process

November 8, 2012 | Bulletin No. 1013943.2

A court of appeal recently upheld an environmental impact report which only analyzed the proposed project and the no project alternative, upholding the lead agency’s conclusion that none of the proposed alternatives were potentially feasible because they did not meet the proposed project objectives.  The court further concluded that although there were minor deficiencies and inaccuracies in the environmental impact report for the expansion of a manufacturing facility in order to permit cogeneration of electricity for resale, these minor deficiencies and inaccuracies did not prejudice the environmental review process for the project.  (Mount Shasta Bioregional Ecology Center v. County of Siskiyou (--- Cal.Rptr.3d ----, Cal.App. 3 Dist., September 26, 2012).

Facts

Roseburg Forest Products Co. (“Roseburg”) purchased an existing wood products manufacturing facility in the mid-1980s.  The facility is located near the City of Weed (“City”) in an unincorporated area of Siskiyou County (“County”).  Roseburg converted the facility into a softwood veneer processing operation. 

In 2006, Roseburg sought a conditional use permit for expansion of the facility to include a biomass-fueled cogeneration power plant.  Under Roseburg’s plan, the heat generated from the boiler would be used in the veneer manufacturing process and for generation of electricity for resale.  The proposed project (“Project”) included an upgrade and retrofit of the existing power facility so that the boiler house would contain a 15-megawatt steam-driven cogeneration system.  A large amount of the fuel needed for the cogeneration plant would be generated from Roseburg’s facility and other manufacturing facilities by utilizing the bark and trim removed from logs used in the production of wood veneer. 

The County prepared and the Planning Commission certified an environmental impact report (“EIR”) pursuant to the California Environmental Quality Act (“CEQA”) for the Project.  After appealing the Planning Commission’s decision to the County Board of Supervisors (“Board”), the Mount Shasta Bioregional Ecology Center (“MSBEC”) and others initiated this action against the County and the Board seeking a writ of mandate compelling them to vacate their decision to approve the Project and certify the EIR.  The trial court denied their petition.  MSBEC appealed, challenging the EIR on the grounds that the alternatives, air quality, noise, and water supply analysis were inadequate.

Decision

Alternatives

CEQA requires an EIR to “describe a reasonable range of alternatives to the project . . . which would feasibly attain most of the basic objectives of the project but would avoid or substantially lessen any of the significant effects of the project.”  The lead agency considers the feasibility of the alternatives at two different points in the EIR process.  First, the lead agency determines whether an alternative should be included in an EIR.  At this stage, the question is whether the alternative is potentially feasible.  Next, when approving the Project, the lead agency determines whether an alternative is actually feasible.

Siskiyou County determined that there were no feasible alternatives to the Project that would meet most of the Project objectives while substantially reducing the potentially significant impacts.  The EIR discusses three project alternatives that were considered but rejected as not potentially feasible at the first stage because they did not meet the Project objectives.  The only alternative studied in the DEIR is the “No Project” alternative.  Petitioner claims the County considered an inadequate range of alternatives because the three alternatives considered cannot be counted and the No Project alternative alone is not enough.

The court found that an agency rejecting all alternatives as not potentially feasible does not render an EIR inadequate and held, “[a]bsent a showing that the EIR failed to include a particular alternative that was potentially feasible or that, under the circumstances presented . . . did not amount to a reasonable range of alternatives, plaintiff’s challenge to the alternatives analysis fails.”  Noting petitioner’s failure to carry its burden to demonstrate the inadequacy of the alternatives analysis, the court stated, “[a]n appellant may not simply claim the agency failed to present an adequate range of alternatives and then sit back and force the agency to prove it wrong.”

Air Quality

MSBEC claims that the EIR uses the wrong baseline for air quality emissions and consequently understates the Project’s environmental impact.  It claims that the EIR incorrectly used permitted emission rates instead of the existing facility’s actual emission rates and that due to this error, the EIR’s analysis of Project’s impact on air quality is likewise incorrect and misleading.  MSBEC’s argument relied, in part, on evidence submitted to the Board of Supervisors on the day of the appeal hearing.  However, the County’s rules of procedure state that all documentary evidence must be submitted at least five days before the appeal hearing.  The court found the documents were not properly part of the record before the Board of Supervisors and thus inadmissible in the hearing on the writ of mandate.  The court stated, “The Board excluded the letter from the evidence before it for consideration.  Absent error in this regard, the letter is not properly part of the record before us on review of the Board’s decision.”

MSBEC further claimed that the County erred in using an approximation of emissions, rather than actual emissions, as a baseline.  The court rejected this claim because there was only a 7 percent difference between the actual emissions and the approximate emissions rate.  The court found that this small discrepancy would not have precluded informed decisionmaking or informed public participation. 

Noise

MSBEC asserted that the EIR failed to disclose, analyze and mitigate the noise impacts of the Project.  One mitigation measure provides that if noise complaints are received regarding the facility’s new equipment, Roseburg must have a consultant measure the noise.  If the noise is greater than 1 db at the nearest residence, Roseburg must implement additional noise reducing treatments.  MSBEC argued that a mitigation measure’s success cannot be based on complaints being received and subsequent tests being performed.  The court found no legal support for MSBEC’s argument.  The mitigation measure is not vague.  If a complaint is received, Roseburg must investigate and if necessary, act.  Therefore, the court rejected MSBEC’s claim regarding the inadequacy of the mitigation measure. 

The court further rejected MSBEC’s arguments regarding cumulative noise impacts.  The court addressed two noise reports added to the final EIR that were only summarized in the draft EIR.  MSBEC asserted the EIR should have been circulated for further review after the reports were added.  The court found that incorporation of the two reports in the FEIR in their entirety instead of “in summary fashion is not the type of new information requiring recirculation of the EIR.”

Water

The court found that MSBEC failed to show that the EIR was deficient in regard to the Project’s impacts on water quality. 

The court acknowledged that there were some minor deficiencies and inaccuracies in the EIR but concluded that the deficiencies and inaccuracies did not prejudice the environmental review process.  Accordingly, the court of appeal affirmed the judgment of the trial court.

 

Questions

If you have any questions concerning the content of this Legal Alert, please contact the following from our office, or the attorney with whom you normally consult.

Jeffrey L. Massey, Daniel J. O’Hanlon or Leslie Z. Walker | 916.321.4500