IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Tehama)
December 7, 2011
CITIZENS FOR A HEALTHY COMMUNITY ET AL., PLAINTIFFS,
CITY OF RED BLUFF ET AL., RESPONDENTS; WAL MART, INC., REAL PARTY IN INTEREST AND APPELLANT. RED BLUFF CITIZENS FOR SENSIBLE PLANNING ET AL., PLAINTIFFS AND APPELLANTS,
CITY OF RED BLUFF ET AL., RESPONDENTS; WAL MART, INC., REAL PARTY IN INTEREST AND APPELLANT.
(Super. Ct. No. CI58342) (Super. Ct. No. CI61476)
The opinion of the court was delivered by: Blease , J.
Citizens for a Health Community v. City of Red Bluff
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
This is an appeal and a cross-appeal from a judgment granting in part and denying in part a petition for writ of mandate directing the City of Red Bluff (City) to stay construction activities and remedy deficiencies in the environmental analysis of a project to construct a Wal-Mart supercenter in Red Bluff, California.
Petitioners and appellants Red Bluff Citizens for Sensible Planning, Wilkie Talbert, Clarice Meyer, and Mary Anker challenge the adequacy of the information provided in the Recirculated Portions of the Draft Environmental Impact Report (RPEIR) that concern noise and traffic. Cross appellant Wal-Mart Stores, Inc. (Wal-Mart) challenges the trial court's ruling that the environmental analysis include additional information regarding single event noise impacts.
The challenges involve the California Environmental Quality Act (CEQA) and its Guidelines, which direct that scientific reports be cited in the Environmental Impact Report (EIR) by page and section number where possible, and that technical data be included as an appendix to the EIR. (Pub. Res. Code, § 21061; Cal. Code Regs., tit. 14, §§ 15147 & 15148 (hereafter Guidelines).) Although technical data need not be repeated in its entirety in the appendix it must be "reasonably available for inspection at a public place or public building." (Pub. Res. Code, § 21061.) The information provided shall be "sufficient to permit full assessment of significant environmental impacts by reviewing agencies and members of the public." (Guidelines, § 15147.)
The technical data supporting the RPEIR's conclusions regarding parking lot sweeper noise and single event noise impacts was not contained in the body of the RPEIR or in an appendix thereto, nor does the record indicate that the information was made available to the public. Nor was the report of the City's noise consultant made available.
The trial court found the information provided in the RPEIR was sufficient as to sweeper noise, but not as to single event noise impacts. We agree with respect to single event noise but disagree with respect to sweeper noise. We also disagree with the trial court's conclusion that the doctrine of res judicata barred petitioners from asserting CEQA violations for failure to analyze noise and traffic impacts from the addition of a northwest truck delivery area that was not a part of the original project described in the initial EIR. However, any failure to separately analyze a delivery area on the northwest side of the building was not prejudicial error.
We shall affirm that portion of the trial court judgment directing the City to supplement the environmental analysis with respect to single event noise impacts. However, we shall reverse that portion of the judgment denying petitioners' request to direct City to supplement the environmental analysis with respect to parking lot sweeper noise.
FACTUAL AND PROCEDURAL BACKGROUND
Wal-Mart submitted its application to construct a supercenter (Project) to City on October 16, 2003.*fn1 The Project as originally submitted consisted of 212,000 square feet of retail space plus associated parking. The Project is bordered by: (1) Reeds Avenue on the north, and beyond that a residential development; (2) Mill Street on the east, and beyond that an existing Wal-Mart; (3) Luther Road on the south, and beyond that a church and assisted living facility, and (4) residences on the western border.
The Red Bluff City Council certified the Final Environmental Impact Report (FEIR) for the Project at its meeting on November 13, 2006. Petitioners Citizens for a Healthy Community thereafter filed their first petition for writ of mandate, alleging multiple violations of CEQA.
The trial court partially granted the petition in February 2008. It directed City to prepare and circulate a supplemental EIR addressing the following: (1) parking supply, (2) single event sounds on neighboring residents, (3) nighttime ambient noise, (4) low speed traffic noise, (5) pure tone noise generated by trucks and refrigeration units, (6) precise boundaries and distance of the building to the property line, (7) parking lot sweeper noise, and (8) sound barrier walls.
Thereafter, Wal-Mart filed a revised project application that provided for a reduced building size and located the building closer to the northern border of the property. City made modifications to the project description and site plan, and conducted additional analyses. It revised portions of the EIR in response to the court ruling and recirculated portions of the EIR (RPEIR). The RPEIR contained a revised project description to clarify redesigned features of the project and a revised noise section, since most of the points raised in the trial court's ruling pertained to noise-related impacts.
On November 24, 2008, City certified the FEIR as supplemented by the RPEIR and re-approved the project. Petitioners Red Bluff Citizens for Sensible Planning thereafter filed a second petition for writ of mandate. Again, the trial court granted the petition in part.
Petitioners Red Bluff Citizens et al., appeal from that part of the trial court's ruling holding: (1) that res judicata barred review of whether the RPEIR adequately addressed traffic impacts and noise created by the northwest vendor delivery area; and (2) that the information provided regarding parking lot sweeper noise was adequate. Petitioners also argue the RPEIR did not consider the noise generated by onsite truck circulation.
Wal-Mart's cross-appeal focuses on the trial court's ruling with respect to sound measurements that were taken to satisfy the first judgment, which directed City to include an evaluation of single event sounds on neighboring residents, particularly at night. Wal-Mart argues the trial court erred in holding: (1) that City's response to comments was inadequate with respect to whether tests at the El Camino truck stop sufficiently replicated conditions present at the Project; (2) that City's failure to include background noise levels from the West El Camino truck stop tests violated CEQA's information and disclosure requirements; and (3) that City's conclusion that Reeds Avenue residents will not be subjected to significant single event level sound impacts is not supported by substantial evidence.
Petitioners argue that the redesigned project added a delivery area on the west side of the loading dock, but the RPEIR did not include any information about truck deliveries in this area. They argue that because the project was changed, the trial court erred in concluding that res judicata barred them from challenging the RPEIR based on the RPEIR's lack of information about the potential impacts of including a west side delivery area.
In Federation of Hillside and Canyon Associations v. City of Los Angeles (2004) 126 Cal.App.4th 1180, 1203, the court held that where the "CEQA cause of action in the prior proceeding and the CEQA cause of action in the present proceeding are based on the city's alleged failure to comply with CEQA with respect to the same project, the same EIR, and substantially the same findings[,]" the second cause of action is barred.
Petitioners do not argue that the findings or the EIR are different this time. They do argue that the project has changed because the initial EIR did not disclose that the west side of the loading dock would be used for truck unloading. We agree with petitioners that there is no evidence that the northwest area was previously designated as a delivery area. We nevertheless hold that the failure to separately analyze noise and traffic impact of the west side loading area was not prejudicial.
A. Noise from Northwest Delivery Area
Petitioners, in their opening brief to the trial court, argued that the RPEIR should have considered the noise generated by medium-sized trucks unloading on the northwest side of the building, and that such an analysis was not performed in the first EIR because the area west of the building was not previously designated for truck unloading activities.
Respondents argued below that the original site plan provided for a west side vendor unloading area. Consequently, respondents argued, petitioners' claims regarding truck unloading noise and related traffic impacts from this area are barred by the doctrine of res judicata.
The trial court concluded that the original plans were sufficient to show a delivery area on the northwest side because the area was not available for customer parking, but was accessible to traffic. The court found it was reasonable to assume that both sides of the dock protrusion would be used to receive stock. Because the area was originally intended for deliveries, the trial court concluded petitioners were barred by res judicata from raising any arguments about the area. We disagree.
The revised plan shows a truck dock jutting out from the north side of the store near Reeds Avenue. On the east side of the dock is an area labeled "truck well," and outside the truck well is an area for truck ingress and an area labeled "truck route." On the west side of the dock, a delivery service door is marked. Outside the dock is labeled "pallet/bale recycling area." There is access to Reeds Avenue from both sides of the dock.
The first plan also had a truck dock jutting out from the north side of the store. However, the area off the west side of the dock was smaller in the first plan. It also had an area labeled "bale and pallet storage," but there was no symbol that was marked as a delivery service door.
As evidence that the original plans did not include a delivery area on the northwest side, petitioners point to the following: (1) the plans label the area as bale and pallet storage, but do not label the area as a delivery area; (2) the initial plans show all truck circulation occurring on the northeast side of the store; (3) the initial site plan showed a larger landscaped area which would interfere with circulation in the northwest corner.
It is not necessarily determinative that the original site plan failed to label the northwest side as a delivery area. The northeast side is similarly not labeled for delivery. However, there is an area labeled "truck well" on the northeast side. There is no similar indication of a truck well, truck dock, or anything else having to do with trucks on the west side. In fact, there is absolutely no indication in the draft EIR (DEIR) that the northwest area was intended for deliveries. A delivery service door is marked on the revised plan. The prior plan had a symbol that appeared to be the symbol for a door off of the northwest side, but it is not marked as a delivery service door.
The analysis in the first EIR is also not indicative of a north side loading area. In analyzing the loading dock noise, the DEIR referred to the "loading dock areas, which are identified in Figure 4.7-1[.]" Figure 4.7-1 showed two identical cross-hatched areas to the east and west of the building's northern protrusion, and showed markings for truck bays on both sides. However, Figure 4.7-1 was apparently taken from the initial site plan prepared in 2004, which showed three unloading bays on each side of the dock area. This plan was later changed to the plan approved in the FEIR, which showed six unloading bays, all on the east side of the dock. The diagram to which the DEIR analysis referred was apparently prepared before the change in the Project plan. On January 19, 2005, the developer was informed that the planning staff "prefers the revised truck dock design exhibit submitted, with only one truck well located on the east side facing Mill St. All site plans and diagrams for the final Design Review submittal shall be revised to include this revised truck dock design." Accordingly, Figure 4.7-1 provides no evidence that the area west of the dock was intended for truck unloading.
The analysis of loading dock noise is devoid of any specific analysis of noise from the northwest side. With respect to loading dock noise, the DEIR contained the following analysis:
"Loading Dock Noise
The project will reduce noise impacts at the rear of the building by providing sealed rubber gaskets at the truck docks to reduce noise from loading and unloading activities; prohibiting engine idling trucks, and the construction of a solid block sound/screen wall at the west side of the site along the property line, and a sound/screen wall along the edge of the two truck wells."
Loading Dock Noise
The primary noise source associated with the loading dock areas, which are identified in Figure 4.7-1, is the heavy trucks stopping (air brakes), backing into the loading docks (back-up alarms), and pulling out of the loading docks (revving engines). Once the trucks have backed into the loading dock, they are unloaded from the inside of the store using a fork lift or hand cart, and most of that unloading noise is contained within the building and truck trailer. The project will reduce noise impacts at the rear of the building by providing sealed rubber gaskets at the truck docks to reduce noise from loading and unloading activities; prohibiting engine idling trucks, and constructing a solid block sound/screen wall at the west side of the site along the property line, and a sound/screen wall along the edge of the two truck wells.
The proposed loading dock configuration for the Wal-Mart Supercenter would locate the loading docks approximately 175 feet from the closest residential uses (north of Reeds Avenue). Measured loading dock area noise exposure measured for similar projects to be approximately 63 dB Leq and 85 dB Lmax at a distance of 50 feet.[*fn2 ] Assuming an attenuation of 6 dB per doubling of distance from the loading docks, the predicted hourly Leq and Lmax noise levels at the closest residences (north of Reeds Avenue) were conservatively calculated to be about 52 dB and 74 dB, respectively.
To calculate the Ldn[*fn3 ] associated with this noise source at the closest receivers, it was assumed that the loading docks would be active for a total of five hours of the 24-hour day, including one hour during the nighttime. Therefore, the calculated Ldn at the closest residences to the north is approximately 50 dB. Alone, this noise source does not exceed the City's exterior noise criterion. This impact is less than significant."
Two items in this analysis are of interest. First, as indicated, there is no specific discussion of loading noise from the west side of the loading dock. Instead, the analysis refers to the issue as though all the noise was coming from the same vicinity. Second, the analysis refers to two truck wells. Elsewhere the DEIR explains there are six individual truck loading bays, which are clearly marked on the east side, composed of two, three-bay loading docks. This confirms our conclusion that the project described in the first EIR did not include a west side truck unloading area.
We conclude there is insufficient evidence in the record to indicate the northwest area was originally intended to be for unloading small trucks. Petitioners are not barred by res judicata from raising issues resulting from the revised plan allowing truck unloading on the northwest side.
Nevertheless, any failure to separately consider the noise generated by a west side loading dock was not prejudicial. "A prejudicial abuse of discretion occurs if the failure to include relevant information precludes informed decisionmaking and informed public participation, thereby thwarting the statutory goals of the EIR process." (Kings County Farm Bureau v. City of Hanford (1990) 221 Cal.App.3d 692, 712.) A prejudicial abuse of discretion means the agency did not proceed in a manner required by law, or the determination or decision was not supported by substantial evidence. (Laurel Heights Improvement Assn. v. Regents of University of California (1993) 6 Cal.4th 1112, 1123 (Laurel Heights II).) We conclude the record contains substantial evidence to support an informed decision with respect to loading dock noise as well as traffic from the northwest loading dock.
The total amount of noise from the loading docks would not change, because the same number of trucks would be arriving and unloading, no matter which side of the docks was used for that purpose. The RPEIR estimated the number of large semi-trailer trucks and smaller vendor trucks that would be making deliveries each day. This number would not change, whether the deliveries were made at the east or west side of the loading dock. The noise levels were determined not by measurements taken at the proposed site, but by measuring similar projects, and factoring in the distance to the nearest residences.
The houses north of Reeds Avenue were determined to be the closest residences to the loading docks and the distance to these residences was measured at 140 feet. The plan shows houses on the north side of Reeds Avenue on both the east and west sides of the loading dock. Since the total noise from the unloading of trucks remains the same, the only conceivable difference in using the west side to unload smaller trucks, is that the houses closer to the west side of the docks will experience more noise, and the houses closer to the east side of the docks will experience less noise because the smaller trucks will no longer use that side. The fact that some residences may be more impacted and some less impacted because of the change does not result in a significant impact under CEQA. "Under CEQA, the question is whether a project will affect the environment of persons in general, not whether a project will affect particular persons." (Mira Mar Mobile Community v. City of Oceanside (2004) 119 Cal.App.4th 477, 492.)
The RPEIR does indicate that the center of the loading dock areas would be approximately 140 feet from the closest residential uses, while the original EIR indicated the closest residential uses would be approximately 175 feet from the docks. However, this difference appears to be the result of the entire building being moved 30 feet closer to Reeds Avenue, and not because both the east and west sides will be used for truck unloading. The RPEIR made adjustments in the noise estimates to account for the revised placement of the building, resulting in a two decibel increase from the original estimates.
We conclude the RPEIR sufficiently analyzed the noise from the northwest delivery area, inasmuch as the only change in the noise analysis would have been which of the several residences along Reeds Avenue were more impacted.
B. Traffic from Northwest Truck Bay
Likewise the traffic will not be impacted any differently because of the addition of a loading dock on the west side. If there were no loading dock on the west side, the trucks delivering to that side would have to deliver to the east side dock, because the assumption is that would be the only loading dock. Appellant's issue with the traffic consequences of the west loading dock is that the area is too small to accommodate the trucks, and it will cause the smaller trucks to park and unload on Reeds Avenue. This would be even more of a problem if there were no loading dock at all on the west side. In that case, all of the trucks would unload from the east side, leaving even less room for all of the delivery trucks.
C. On-Site Truck Circulation Noise
When the court previously issued the writ of mandate, on-site truck circulation noise was not included in the list of issues on which the court required additional analysis. Petitioners now argue that the RPEIR did not consider on-site truck circulation noise. They argue that "the RPEIR only discussed the sound generated by a passing vehicle, and not the sound of a vehicle turning into the dock area, stopping, and maneuvering to get into position to back into a dock."
Petitioners could have made this claim following certification of the first EIR, but did not. Res judicata bars the relitigation of this issue. Petitioners imply that the issue is not res judicata because the redesigned project is closer to Reeds Avenue. However, the RPEIR noted that the revised plan reduced from 120 feet to 100 feet the distance between trucks and the nearest residences once on-site. The RPEIR concluded that the approximate change in noise level from the previous plan was one decibel. This amount is so negligible as to be de minimus.
In any event, the RPEIR did evaluate truck noise once on-site. The analysis was not in the section entitled "On-Site Truck Circulation Noise," but was set forth under the section entitled "Loading Dock Noise," where the RPEIR stated: "The primary noise source associated with the loading dock areas, . . . is the heavy trucks stopping (air brakes), backing into the loading docks (back-up alarms), and pulling out of the loading docks (revving engines)."
The first administrative record indicated City made a finding that the noise impacts from parking lot sweepers would be minimal, thus did not need to be expressly addressed in the noise analysis. Petitioners argued in their first petition that the EIR did not describe all noise-generating equipment, including parking lot sweepers. The trial court, reasoning that the EIR must contain sufficient quantity and quality of information to adequately inform the public and decision makers, found that City's failure to include parking lot sweeper noise information in the EIR was contrary to CEQA's informational objective. Accordingly, the court ordered City to prepare a supplemental EIR that contained "[a] description of parking lot sweeper noises and a statement of reasons why such noises are not considered significant impacts[.]"
The RPEIR described its noise impact assessment methodology for analyzing sweeper noise as follows: "The evaluation of single event noise for such sources as parking lot sweepers, which generate steady state noise levels when in use, but from gradually changing locations is different [from the evaluation for loading dock noise or HVAC equipment]. This is because the duration of the event is considerably longer than that of a heavy truck passby, and sweeper noise is not impulsive, such as the release of an air brake at the loading dock. In this assessment noise impacts for parking lot sweepers are evaluated against both daytime and nighttime ambient noise levels measured at the nearest residences, both in terms of average and maximum noise levels."
In response to the court's order, the RPEIR stated that its consultant conducted field measurements at a Home Depot store in Sacramento, and made the following observations:
"Sweeper truck noise levels were measured to be up to 75 dB Lmax at a reference distance of 50 feet. The majority of the parking lot is on the south side of the store, as indicated in Figure 4.7-2. With the sweeping equipment operating in the main parking area, the proposed Wal-Mart building will completely shield sweeper truck noise levels at the residences to the north of the project site. In addition, the proposed 8-foot tall noise barrier along the entire western site boundary, (see Figure 4.7-2 for barrier locations and dimensions) will provide shielding of sweeper noise in that direction. As a result, maximum noise levels associated with sweeper operations are predicted to be below 70 dB Lmax at all existing residences in the immediate project vicinity when the sweeping equipment is in its closest proximity to those residences. When operating at more distant locations, sweeper noise would be much lower. Because sweeper noise levels would be below measured maximum ambient noise levels (which, as indicated in Tables 4.7-1 and Figures 4.7-3 and 4.7-4, are as high as the 80s dB Lmax) and temporary in nature, they are predicted to satisfy the City noise standards and not have an adverse effect on sleep at nearby residences. As result this impact is considered less than significant."
Petitioners submitted a comment to the RPEIR in the form of a letter from their noise consultant, who noted that the data used for the prediction of sweeper noise was "thrown in at the end of the report with no explanation of how the data was gathered or whether the equipment was representative." The consultant also noted that sweepers usually produce a pure tone, and that no sound limits for the source were provided.
Petitioners' consultant later complained that the data had not been provided in a form that allowed independent evaluation of the measurements. The tonal content of the sound was not provided. The sound reduction provided by the barrier wall along the west of the property is dependent on the tonal content of the sweeper. Moreover, neither the average sound level of, nor the duration of, the sweeper event were provided. This information was necessary to determine the impact of a single event sound.
The City's response to petitioners' comments was that petitioners submitted no information to support their claim about pure tones from sweepers, and that the City was satisfied with the analysis provided by the consultant. City concedes that petitioners' counsel requested all noise measurements that were taken for the Project in 2008, but asserts it had no obligation to send any information to petitioners or their counsel.
The trial court agreed that the information in the RPEIR was sufficient. It found that "the City has complied with the Court's directive to include 'A description of parking lot sweeper noise and a statement of reasons why such noises are not considered significant impacts.'"
Petitioners now argue that the RPEIR lacks sufficient information about the sound generated by the sweepers and that the information tendered shows the sweeper noise would create a significant impact. Where the claim is that the EIR has omitted information, the relevant inquiry is whether there was a prejudicial abuse of discretion. (Al Larson Boat Shop, Inc. v. Board of Harbor Commissioners (1993) 18 Cal.App.4th 729, 748.) As noted, a prejudicial abuse of discretion occurs if the agency did not proceed in a manner required by law, or its decision was not supported by substantial evidence. (Laurel Heights II, supra, 6 Cal.4th at p. 1123.)
We conclude that neither standard was met with respect to sweeper noise. However, we need not determine whether the sweeper noise would create a significant impact because the RPEIR lacked sufficient information to satisfy the requirements of CEQA.
The Guidelines require that the EIR be "prepared with a sufficient degree of analysis to provide decisionmakers with information which enables them to make a decision which intelligently takes account of environmental consequences." (Guidelines, § 15151.) Section 21061 of the Public Resources Code states that technical data relevant to an EIR need not be repeated in its entirety in the EIR, but must be "reasonably available for inspection at a public place or public building."*fn4 Guidelines, section 15147 states that the EIR "shall include summarized technical data, . . . diagrams, and similar relevant information sufficient to permit full assessment of significant environmental impacts by reviewing agencies and members of the public." Data that is "highly technical[,] and specialized analysis and data" should not be placed in the body of the EIR, but rather included in appendices to the main body of the EIR. (Ibid.)*fn5
The only information in the RPEIR regarding the sweeper noise study undertaken by the City's noise consultant was the following: "As a means of determining the noise levels associated with sweeper truck activities, [City's noise consultant] conducted field measurements of a sweeper truck during normal operation at the Home Depot Store on Howe Avenue in Sacramento, California, on the morning of January 31, 2007. Sweeper truck noise levels were measured to be up to 75 dB Lmax at a reference distance of 50 feet." No technical information regarding the study was included in the RPEIR, other than the maximum noise level measured. No information was given as to how the data was collected. The RPEIR did not include a technical report from the EIR noise consultant. There is no indication in the record that the public was informed of the availability of any report by the noise consultants containing the technical data upon which their opinion was based.
In El Morro Community Assn v. California Dept. of Parks and Recreation (2004) 122 Cal.Ap.4th 1341, 1352 (El Morro), the petitioners complained that the EIR had not adhered to Guidelines section 15148, which provides, "Preparation of EIRs is dependent upon information from many sources, including engineering project reports and many scientific documents relating to environmental features. These documents should be cited but not included in the EIR. The EIR shall cite all documents used in its preparation including, where possible, the page and section number of any technical reports which were used as the basis for any statements in the EIR."
In that case, as here, the EIR did not include the technical reports as appendices to the EIR, although it was recognized in the EIR that they had been prepared. (El Morro, supra, 122 Cal.App.4th at p. 1352.) However, in El Morro, the agency responded to complaints that the EIR failed to reference the reports with a list of the reports and information allowing petitioners to review the reports or obtain copies of them. (Id. at p. 1353.)
In El Morro, supra, the court held that the agency had fulfilled its good faith effort at full disclosure because, "the Department disclosed the existence of all of the technical reports, by subject matter; it simply failed to give the specific titles to each report." (122 Cal.App.4th at p. 1354.) The EIR had alerted the public to the existence of the technical reports and the public was able to obtain the reports from the agency. (Ibid.) Here, by contrast, there is no indication the public was informed of the availability of the technical data gathered on sweeper noise, and even though petitioners' comments to the RPEIR complained about the lack of data, no attempt was made to provide this information.
"A prejudicial abuse of discretion occurs if the failure to include relevant information precludes informed decisionmaking and informed public participation, thereby thwarting the statutory goals of the EIR process." (Kings County Farm Bureau v. City of Hanford, supra, 221 Cal.App.3d at p. 712.) Although we usually defer to an agency's substantive judgments under CEQA, we demand strict compliance with the procedures required by law. "'[We] do not pass upon the correctness of the EIR's environmental conclusions, but only upon its sufficiency as an informative document.'" (Laurel Heights Improvement Assoc. v. Regents of University of California (1988) 47 Cal.3d 376, 392 (Laurel Heights I), quoting County of Inyo v. City of Los Angeles (1977) 71 Cal.App.3d 185, 189.)
As noted, CEQA requires that technical data must be summarized in the EIR, and highly technical data must be made available to the public either in a public place or as an appendix to the EIR. Thus, it must appear from the record that the data relied upon in the EIR was either provided in an appendix, or that notice was provided to the public as to where and how it could inspect the supporting data. Otherwise, a reviewing court has no way of knowing whether the information was, in fact, available to the public. There is no evidence in the record before us that the technical data relied upon by the EIR noise consultant was available for public inspection.
Having concluded that City was required by law to make public the technical data upon which it based its decision, it is irrelevant that City's decision was supported by the information it selected to include in its own record. The failure to make the data available is a failure to proceed in the manner required by law as set forth in the Guidelines and the statute.
A prejudicial abuse of discretion may also occur where the determination of the agency was not supported by substantial evidence. (Laurel Heights II, supra, 6 Cal.4th at p. 1123.) Substantial evidence is "'enough relevant information and reasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions might also be reached.' (Guidelines, § 15384, subd. (a).)" (Id. at p. 1133.)
We conclude there was not substantial evidence to support City's determination regarding sweeper noise because the RPEIR did not satisfy its own noise analysis requirements, since it set forth only sweeper maximum noise levels.
City included in the RPEIR the measured maximum and average nighttime ambient noise levels. The maximum measured noise level for the sweepers (70 dB Lmax) was exceeded by the maximum ambient noise level in 11 out of 16 measurements, without taking into account the shielding provided by the noise barrier along the edge of the property.
As is relevant to this discussion, the RPEIR states that a project may have a significant impact on noise if: (1) it results in an exterior noise level standard of 60 dB Ldn at the outdoor activity areas of the nearest residential uses; (2) the exposure inside residences to a nighttime single event noise level is in excess of 65 dB SEL*fn6 or the existing ambient conditions, whichever is greater; or (3) it results in a substantial permanent increase (defined as a 3 dB increase) in ambient noise levels above levels existing without the project, evaluated in terms of Leq, Lmax, and Ldn.
Thus, the RPEIR itself indicates that the significance of a noise impact cannot be determined unless the noise is evaluated in terms of Leq, Ldn, and SEL as well as Lmax. No such evaluation appears in the RPEIR, nor is there any explanation why such an evaluation would be improper in the case of sweeper noise.
The RPEIR indicated that sweepers generate a "steady state noise level[,]" which could mean that an average level would be the same as the maximum level. However, the RPEIR also indicates that sweeper noise is emitted from gradually changing locations, which would cause the decibel level to change when measured from a stationary point. Moreover, the RPEIR stated that the sweeper noise would be evaluated both in terms of average and maximum noise levels, but it was not.
Respondents argue there is no violation of CEQA Guidelines Appendix G section XII, subdivisions (c) and (d), because the Guideline does not impose a legal duty to analyze the noise impact based on both maximum and average noise levels.*fn7 However, City apparently determined that in order to perform the analyses suggested by Appendix G, the sweeper noise must be evaluated at both average and maximum noise levels.
Without such an analysis, there was not enough relevant information or reasonable inferences from relevant information to support City's finding that the sweepers would have no significant noise impact. City must either perform the analyses that will satisfy its own standard for determining whether a noise impact is significant as set forth in section 4.7-1 of the RPEIR, or explain why any analysis is unnecessary.
In the first judgment granting the writ, the trial court ordered City to revise the EIR to include an evaluation of single event sound on neighboring residents, particularly at night. In response, City adopted as the standard of significance for single event level noise impacts, the higher of: (1) 65 dB SEL within residences, or (2) existing ambient conditions.
City then conducted measurements at the West El Camino truck stop. The conclusion drawn from these tests was that the single event level noise impacts on neighboring residents would be less than significant.
Petitioners' consultant submitted a written comment, in which he complained that too little information was provided to allow a review of the data. Specifically regarding the tests conducted at the truck stop, petitioners' consultant stated in part:
"Detailed information about the testing is completely lacking, making it impossible to know whether the results can be used to simulate truck movements on the project site. Background sound level data was not provided. The site is next to Interstate 80, high sound levels would be expected from the traffic passing at high speed on this road. The total distance of vehicle travel and variation in distance before and after the microphone is unknown. To be valid, these distances would need to be approximately equal and the same for all trucks. Information about how truck speeds were determined is not furnished. How the influence of other trucks and other sound sources was separated from the data is not explained either. Under these conditions, any result could be claimed, but verification is not possible. Even how this data was used is not known."
Later, petitioners' expert explained his comment more fully. "The Single Event Level or Sound Exposure Level is dependent on the average sound level and duration of the event. The lower the background sound levels, the greater the duration of the event because the source becomes apparent sooner. High background sound levels mask the source until the source is close. . . . Background sound levels at the truck stop next to Interstate 80 would be expected to be greater than 60 dB(A). This difference would result in a lower SEL value because of the higher background sound level."
City's response to this portion of the comment submitted by the consultant was simply that "the test conditions present for the slow-moving truck passby tests were identical in terms of distance and truck movement characteristics to the situation which will occur behind the proposed Wal-Mart store at the residences on Reeds Avenue. Therefore, the City is satisfied with the explanation by the [City's] EIR consultant in the RPDEIR in response to the Court Ruling . . . ." The trial court found that this response provided no information on background noise levels and no explanation of how the test conditions were identical. The trial court concluded that City's response violated Guidelines section 15088, subdivision (a)'s requirement that the lead agency respond to comments, and section 15088, subdivision (c)'s prohibition against "conclusory statement[s] unsupported by factual information[.]"
The trial court further found that City did not rebut the claim that background sound levels influence SEL calculation, or disagree with the claim. The trial court found this omission thwarted CEQA's informational purpose.
Wal-Mart's argument on appeal is threefold. First it argues that petitioners' comments to the RPEIR were so extensive that we should ignore any failure in this single response because CEQA does not mandate perfection, but requires only a good faith effort at full disclosure. We disagree with this argument.
City's response to this particular comment did not make any attempt at full disclosure or reasoned analysis. In response to the comment from petitioners' expert that the background sound level was missing, and the later explanation that a higher background noise would result in a lower SEL value, City said nothing. In response to the comment that insufficient data was given to determine whether the test conditions adequately simulated the Project conditions, City merely stated that the conditions were identical. We can sympathize with the monumental task of making a good faith response to every single comment. However, a response to most, but not all, comments is insufficient. Sanctioning such an approach would allow agencies to simply ignore the most problematic issues.
As the trial court noted, Guidelines section 15088, subdivision (c) requires that "the major environmental issues raised when the lead agency's position is at variance with recommendations and objections raised in the comments must be addressed in detail giving reasons why specific comments and suggestions were not accepted. There must be good faith, reasoned analysis in response. Conclusory statements unsupported by factual information will not suffice." In this case, petitioners specifically complained that no data was provided to compare test conditions to actual conditions, and that no background sound levels were provided, later explaining why this would impact the SEL measurement. City's only response was that test conditions were identical to conditions that would be present behind the store, and that City was satisfied with the EIR consultant's explanation.
We agree with the trial court that City's response violated Guidelines section 15088, subdivision (c) because it was a conclusory statement unsupported by factual information, and because no detail was given explaining either why the SEL measurement was not affected by background noise levels, or that the background noise levels had been considered in the analysis, and the analysis nevertheless supported a finding of no impact.
Wal-Mart secondly attacks the trial court ruling on the ground the trial court used the wrong standard of review. It asserts that the trial court characterized the omission of technical information as a procedural error, but applied the substantial evidence standard of review. It argues that City did not fail to proceed in the manner required by law, the correct standard of review for a procedural error. We conclude City did not proceed in the manner required by law, and that the trial court was correct in granting petitioners' writ.
Wal-Mart argues that petitioners' counsel asked merely for all noise measurements taken in 2008, and did not ask for background noise level data during the truck stop tests. It argues that CEQA imposed no obligation on City to provide any information to petitioners. However, the noise measurements consisting of the technical data collected by City's noise consultant should have been made available to the public as a part of the administrative record. It was not.
Wal-Mart's position seems to be that City had no obligation to provide the technical data upon which its findings of no significance were based. This is not the law. As previously discussed, section 15147 of the Guidelines provides that such data must be summarized in the EIR, and the highly technical data supporting the agency's conclusion must be made available as an appendix to the EIR. Section 21061 of the Public Resources Code states that data relevant to an EIR that is a matter of public record or generally available to the public need not be repeated in its entirety in the EIR, but the source of the data must be "reasonably available for inspection at a public place or public building."
Moreover, since petitioners commented on the lack of background noise data, the Guidelines imposed a duty on City to provide a written response to the comment that contained a reasoned analysis, factual support, and addressed in detail why the comment was rejected. (Guidelines, § 15088, subd. (c).) Wal-Mart's argument that there is no evidence City denied petitioners or the public access to the information is insufficient.
In this case the data was not a part of the administrative record, nor does Wal-Mart point to any place in the administrative record indicating the data on background noise at the test site was available for public inspection separate and apart from the RPEIR itself. Likewise, there is no indication that City informed petitioners or their attorney how such data could be inspected following specific comments on the RPEIR concerning the lack of supporting data in the RPEIR. This failure thwarted the EIR's purpose "to provide public agencies and the public in general with detailed information about the effect which a proposed project is likely to have on the environment[.]" (Pub. Res. Code, § 21061.) As previously stated, "[a] prejudicial abuse of discretion occurs if the failure to include relevant information precludes informed decisionmaking and informed public participation, thereby thwarting the statutory goals of the EIR process." (Kings County Farm Bureau v. City of Hanford, supra, 221 Cal.App.3d at p. 712.)
This answers Wal-Mart's third point, which is that the error was not prejudicial. "[W]hen an agency fails to proceed as required by CEQA, harmless error analysis is inapplicable. The failure to comply with the law subverts the purposes of CEQA if it omits material necessary to informed decisionmaking and informed public participation. Case law is clear that, in such cases, the error is prejudicial." (County of Amador v. El Dorado County Water Agency (1999) 76 Cal.App.4th 931, 946.)
Wal-Mart argues that petitioners' own noise expert analyzed the single-event noise impacts and concluded that the RPEIR's standard of significance would be exceeded by only one decibel, and only within the neighboring residences nearest the Project. To the extent Wal-Mart is arguing that there is no environmental impact if the only impact is to the neighbors surrounding the property, we reject the argument. Noise is an environmental impact. (Pub. Res. Code, § 21060.5.) The physical properties of noise are such that it naturally affects those within hearing distance.
To the extent Wal-Mart is arguing that an impact of one decibel over the standard of significance is de minimus, we reject that argument as well. While a one decibel difference might be de minimus if it was below the cutoff set as the standard of significance, any noise above the standard of significance, even by one decibel, is significant.
We reverse the judgment to the extent it denied the petition for writ of mandate on the issue whether the RPEIR provided sufficient technical data on the noise impacts from the use of parking lot sweepers. In all other respects, the judgment is affirmed.
We remand the matter to the trial court to grant the petition directing the City to provide petitioners with the technical data upon which it relied in determining the sufficiency of the sweeper impacts analysis, to provide a response to petitioners' comments regarding the adequacy of the West El Camino truck stop tests which includes enough facts so that the public can determine whether the tests sufficiently replicated conditions present at the project site, to provide background noise levels from the West El Camino truck stop tests, and to stay the construction of the Wal-Mart supercenter pending provision and review of the data.
The parties shall bear their own costs on appeal.
RAYE , P. J.
DUARTE , J.