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Center for Biological Diversity v. County of San Bernardino

May 25, 2010

CENTER FOR BIOLOGICAL DIVERSITY ET AL., PLAINTIFFS AND RESPONDENTS,
v.
COUNTY OF SAN BERNARDINO, DEFENDANT; NURSERY PRODUCTS, LLC, REAL PARTY IN INTEREST AND APPELLANT.



CONSOLIDATED APPEALS from a judgment and an order of the Superior Court of San Bernardino County, John P. Vander Feer, Judge. Judgment and order affirmed, and remanded for a determination of attorney fees on appeal. (Super. Ct. No. BCVSB09950).

The opinion of the court was delivered by: Mcconnell, P. J.

CERTIFIED FOR PARTIAL PUBLICATION*fn1

The Center for Biological Diversity and Helphinkley.org (together Helphinkley) successfully challenged the County of San Bernardino's (the County) approval of an open-air human waste composting facility, under the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.), and subsequently obtained an order of attorney fees under the private attorney general statute (Code Civ. Proc., § 1021.5). Nursery Products, LLC (Nursery Products), the proponent of the project and real party in interest, contends the trial court erred by decertifying the final environmental impact report (FEIR) for the project on the grounds it does not adequately (1) analyze the feasibility of an enclosed composting facility as an alternative to an open-air facility, or (2) address the issue of water supply for the facility. As to the latter issue, the court determined the proposed project is subject to Water Code section 10910, which requires either the public water system that may provide water for the project, or the city or county when no public water system is identified, to prepare a water supply assessment (WSA) that analyzes whether there are sufficient water supplies for the project. Nursery Products also contends that for a variety of reasons the court abused its discretion by awarding Helphinkley attorney fees under Code of Civil Procedure section 1021.5. We affirm the judgment and the order, and remand for a determination of attorney fees on appeal.

FACTUAL AND PROCEDURAL BACKGROUND

We draw the facts from the record before the County's Board of Supervisors (Board) when it took the challenged action. (See Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 421 (Vineyard).)

Proposed Project

Nursery Products proposes to develop and operate a project referred to as the Hawes Composting Facility (Hawes Project), which "would compost biosolids [derived from human waste] and green material [derived from plants] to produce agricultural grade compost." The organic materials used in compost, and the product's water retention properties, "can improve the agricultural productivity of arid desert soils." Compost can "also be used in nursery and landscaping operations, erosion control, and similar uses in developing areas." The Inland Empire area, including San Bernardino and Riverside Counties, produces more than "219,000 dry metric tons of biosolids," and it is "estimated that currently, about 88% of the biosolids generated in Southern California is being trucked to Arizona and the Central Valley (primarily Kern and Kings County) for disposal in landfills or land application." The proposed project would receive a daily average of 1,100 tons of raw materials, or approximately 400,000 tons annually. It "would have the capacity to compost approximately 200,000 tons per year (182,000 metric tons) of biosolids, and thus could serve the needs of most of the Inland Empire region."

The proposed site is an undeveloped 160-acre parcel in the Mojave Desert, within an unincorporated area of San Bernardino County. A residence is located one and one-half miles from the site, and another residence is located two and one-half miles from the site. The next nearest homes are in the town of Hinkley, which is eight miles from the site.

The proposed Hawes Project is an open-air facility. Nursery Products intends to "use a combination of windrow and modified static pile composting methodologies." The windrow method "uses mechanical turning of the composting piles to provide control of oxygen, moisture, and other parameters to maintain and control the composting process." The static pile method "require[s] a forced air and/or vacuum system to pull air through piles of compost material."

The facility would operate 365 days per year, 24 hours per day. It would receive an average of 48 truckloads of materials per day, increasing to an average of 87 truckloads on peak days. The facility would include an office space of approximately 720 square feet, and areas for parking; a scale; screening and finished product storage; and a 2,000-gallon, double-walled, above-ground diesel fuel tank. The proposed site has no utilities, and the facility would use chemical toilets, cellular phone service, and electricity from a portable diesel-fueled generator and solar equipment.

CEQA Documents

The County is the lead agency directing the environmental review of the proposed Hawes Project under CEQA. The County's May 2006 initial study found the project would potentially affect several environmental factors, including cultural resources, biological resources, hazardous materials planning, hydrology and water quality, and air quality. Thus, the County was required to prepare an environmental impact report (EIR). Here, we are concerned with the sufficiency of the County's environmental review as to the factors of air quality and the source of water supply.

A. Air Quality

In September 2006 the County circulated a draft EIR (DEIR) for public comment. The DEIR concludes that even after implementation of feasible mitigation measures, an open-air composting facility would have a significant adverse impact on air quality in a region already suffering from air pollution. The DEIR states: "Among the compounds regulated as toxic air contaminants by the State of California, [are] two substances, hydrogen sulfide... and ammonia, [which] are known to be emitted by composting facilities, specifically, from active windrow composting." The DEIR also notes the "operational VOC emissions [ozone precursors] from the Project would exceed the MDAQMD [Mojave Desert Air Quality Management District] daily and annual emissions thresholds."

The DEIR evaluates three "project specific alternatives" to the proposed Hawes Project, as follows: (1) the statutorily mandated no project alternative, (2) a reduced capacity alternative, and (3) an alternative site at Fort Cady. The DEIR concludes that all three alternatives are potentially feasible.

The DEIR does not include an enclosed composting facility as a feasible alternative. The DEIR acknowledges that "an enclosed composting facility in which all the compost and resulting emissions are contained within a building and forcibly aerated during curing [is] estimated to reduce VOC and ammonia emissions by 80%." Even with that reduction, however, "VOCs emissions are estimated to be 71 tons/year and would still exceed the significance threshold of 25 tons/year."

The DEIR explains that "[w]hile providing state of the art material and odor control, [an enclosed] system is very expensive"; "the electricity needed to power the conveyors and airflow systems can be substantial"; and "[t]he equipment and operations to implement in-vessel facilities are more extensive." Further, it states the "particular approach proposed by Nursery Products -- open windrows -- has the advantage of being relatively less expensive." The DEIR discusses an enclosed facility the Inland Empire Utility Agency was developing in Rancho Cucamonga, which is also in San Bernardino County. The DEIR states that facility "is over $60 million..., which is about twice the original estimate for the building and equipment."

The California Department of Health Services objected to the DEIR, stating that "[e]nclosed facilities, such as those operating in Los Angeles and Riverside Counties and throughout the country, have been shown to be effective in controlling emissions (VOC's, pathogens, bioaresols [sic], dust, odors)." The County also received numerous complaints from community members about the proposed project's effect on air quality, and the superiority of an enclosed facility. Center for Biological Diversity, a respondent here, complained that the DEIR "completely fails to address building an enclosed composting facility either on this site or close to the sewage treatment plants rather than trucking the sludge out to the proposed site and significantly impacting the air quality... with the plant's operations and truck emissions."

In November 2006 the County issued its FEIR. The FEIR rejects the alternative of an enclosed facility as financially and technologically infeasible, and thus the alternative was not "evaluated in detail." As to economic unfeasibility, the FEIR appears to rely exclusively on a memorandum by Geoffrey Swett, of the environmental consulting firm Arcadis G&M, Inc. The memorandum states: "Capital costs for outdoor facilities are relatively modest, typically $2-3 million for a facility to accommodate a 400,000 ton per year facility. [¶] Capital costs for indoor facilities are significantly larger. The Inland Empire Regional Composting Facility, which is currently being constructed in Rancho Cucamonga, has an estimated capital cost of $62.5 million as of the spring of 2006. [Fn. omitted.] This facility will have a capacity of 300,000 tons per year. [¶] Extrapolating those costs for the 400,000 ton/year Hawes field site results in an estimated capital cost of $83.3 million. This is about 28-41 times the cost of a conventional facility and would make the Hawes project uneconomic and impractical."

The Swett memorandum states the typical operating costs for an open-air facility are $8 per ton. Further: "[O]perating costs are an insignificant cost component for outdoor sites. Indoor sites have significant operating costs, including the following key components: [¶] Electricity - Huge air fans are needed to circulate air through the compost and biofilters. Each of these air ducts [is] 4-8 feet in diameter and there are numerous ducts. [¶] Maintenance and repair - All of the air handling equipment must be maintained and repaired. Typically this amounts to an annual cost of about five percent of mechanical equipment capital cost. [¶] Operator supervision - Managing an indoor composting facility requires staff to manage air flows and operating conditions in the biofilters. [¶] We conservatively estimate the additional operating and maintenance cost to be $5.00/ton. This represents a cost increase of 62.5 percent over an open air site."

The Swett memorandum also states that "Nursery Products['s] primary competitors are open air facilities in Kern County and Arizona. It does not compete with facilities such as the Inland Empire Regional Composting Facility which is owned by two wastewater agencies for managing their own biosolids. Therefore to be economically viable, Nursery Products must have a capital cost roughly equivalent to those facilities in Kern County or Arizona."

Additionally, the Swett memorandum discusses the availability of financing to a private party such as Nursery Products for the development of an enclosed composting facility: "The Inland Empire Regional Composting Facility is a first of its kind facility and requires sophisticated systems to properly operate and ensure it does not adversely impact neighbors. Frankly this is the type of risk that a private composting firm typically can not [sic] accept. Private financing for such a risky proposition would not be available. [¶] New technology not only poses a technology risk, but it also poses a capital cost escalation risk. The Inland Empire Regional Composting Facility has experienced significant capital cost escalation. In September 2002, the estimated capital cost was $30 million. [Fn. omitted.] Further it was projected that the facility could begin operating in December of 2004. [¶] In the spring of 2006, the cost had risen to $62.5 million and the facility was projected to be completed in the summer of 2006. In May 2006, the projected completion date was July 21, 2006. In July 2006, the completion date was estimated to be October 1, 2006." As of November 1, the project was not completed. The memorandum pointed out that "construction delays increase capital costs. At a minimum, six percent interest on capital invested will add $300,000/month to the total project cost."

The FEIR essentially repeats Swett's statements as to economic unfeasibility. As to technological unfeasibility, the FEIR states: "[E]nclosed composting... involves construction of an extremely large enclosure. The proposed Project site is not currently served by any electricity provider, and there are no electric lines within one mile of the site. Nor is other infrastructure necessary for construction of a large building currently present."

B. Water Supply

The Mojave Desert, the proposed site of the composting facility, "is the driest desert in the continental United States with precipitation ranging from 2.23 to 2.5 inches per year, with much of the rain falling October to March and temperatures ranging from 40 to 110 [degrees Fahrenheit]." The site is located within the "regional Mojave River groundwater basin," and the "region relies almost entirely on groundwater for its water supply, which has resulted in increased depths to groundwater due to groundwater extraction (overdraft conditions)."

Information in the DEIR pertaining to water supply is sparse. It states the proposed Hawes Project "will use either groundwater from a well or imported water, or a combination of both. The facility would use approximately 1,000 gallons per day. Most of the water would be used for dust control."

Many citizens voiced concerns about the DEIR's cursory analysis of water demand and supply for the proposed project. For instance, a letter stated: "It is never mentioned where the water for the sludge facility is coming from. A well is mentioned but if a well is not feasible where will Nursery Products get the water?" Another letter noted the proposed project would need water for purposes other than dust suppression, such as fire fighting and sanitation for employees. The City of Barstow wrote that "a considerable amount of water may be necessary to suppress any potential fires," and the "Mojave Water Agency should be consulted." The Mojave Water Agency wrote: "The DEIR does not discuss the water supply required for the project. It has been represented that the project would require about 1,000 gallons per day which, if this is correct, would equate to slightly more than 1.10 acre-feet per year. This appears to be a relatively minor quantity of water for the scope of the project described, particularly considering the need to control fugitive dust."

In response to such comments, the FEIR states: "Water for operations will be provided by an on-site well or be purchased and stored or a combination of both. The water will be stored in a water truck with a 2,000 gallon capacity. As necessary, the water truck will be filled using the on-site well and/or purchased water."

The FEIR also states that before commencing business Nursery Products must provide the County with evidence that it can "maintain an adequate water supply and delivery capacity," and it must "consult with the local fire agency to determine the... quantity of water to maintain on site."

The Mojave Water Agency's Board of Directors voted unanimously to oppose the proposed Hawes Project, in part because the FEIR does not address concerns the agency raised about the DEIR.

Approval of Hawes Project and Helphinkley's Administrative Appeal

On November 30, 2006, the County's Planning Commission certified the FEIR as being in compliance with CEQA and approved a conditional use permit (CUP) for the project. The FEIR provided for a phased project with the initial phase not to exceed 80 acres of the 160-acre site. Before developing a subsequent phase, Nursery Products was required to demonstrate need.

Helphinkley appealed to the Board. On February 27, 2007, after a hearing, the Board approved the project with some modifications. The Board, for instance, conditioned expansion of the operation to more than 80 acres on Nursery Products's additional application and a public hearing.

Petition for Writ of Mandate

In March 2007 Helphinkley filed a petition for writ of mandate and complaint (hereafter petition) against the County for violation of CEQA.*fn2 The petition alleges the FEIR fails to adequately analyze a variety of environmental factors, including air quality impacts; greenhouse gas emissions; protected species, specifically the desert tortoise and the Mojave ground squirrel; and cumulative impacts. The petition also alleges the FEIR does not adequately describe certain project details, including the proposed composting method, composting source material, and water sources and supply.

After a hearing on February 8, 2008, the court took the matter under submission. In an April 11, 2008 statement of decision, the court determined the FEIR's findings that the alternative of an enclosed composting facility is economically and technically infeasible is unsupported by substantial evidence. The court also found the FEIR does not adequately identify the source of water for the proposed Hawes Project. The court determined the proposed project is a "project" within the meaning of Water Code section 10912, subdivision (a)(5), and thus the FEIR must include a WSA under Water Code section 10910. The court rejected Helphinkley's other challenges to the FEIR.

The court issued a peremptory writ of mandate that requires the County to set aside the certification for the FEIR and all approvals for the project, including the CUP, and to comply with CEQA. The writ enjoins Nursery Products from proceeding with any aspect of the project "unless and until such time as the County has certified and adopted an EIR that complies with CEQA." Judgment was entered on June 23, 2008, with the court reserving the issue of attorney fees.

Attorney Fees

In September 2008 Helphinkley moved for attorney fees under Code of Civil Procedure section 1021.5, the private attorney general statute. The court awarded it $265,715.55 in fees. We discuss ...


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