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Mount Shasta Bioregional Ecology Center et al v. County of Siskiyou et al

September 26, 2012

MOUNT SHASTA BIOREGIONAL ECOLOGY CENTER ET AL., PLAINTIFFS AND APPELLANTS,
v.
COUNTY OF SISKIYOU ET AL., DEFENDANTS AND RESPONDENTS; ROSEBURG FOREST PRODUCTS CO. ET AL., REAL PARTIES IN INTEREST AND RESPONDENTS.



(Super. Ct. No. SCCVPT081844)

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

Mt. Shasta Bioregional Ecol. Center v. County of Siskiyou

CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

In November 2008, defendant Siskiyou County (County) approved a project to expand an existing wood veneer manufacturing facility owned by real party in interest Roseburg Forest Products Co. (Roseburg) in order to permit cogeneration of electricity for resale (Project). Plaintiffs Mount Shasta Bioregional Ecology Center (MSBEC) and Weed Concerned Citizens (WCC) filed a petition for writ of mandate against the County and the Siskiyou County Board of Supervisors (Board) claiming approval of the Project and certification of the environmental impact report (EIR) for the Project violated the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.). The trial court denied the petition.

Plaintiffs appeal, contending the EIR for the Project failed to include an adequate analysis of alternatives and failed to fully disclose, analyze and mitigate air quality, noise and water impacts of the Project. We agree there are some minor deficiencies and inaccuracies in the EIR for the Project but conclude they did not prejudice the environmental review process. We therefore affirm the judgment of the trial court.

FACTS AND PROCEEDINGS

In the mid-1980's, Roseburg purchased an existing wood products manufacturing facility on more than 300 acres adjacent to the City of Weed in an unincorporated area of Siskiyou County and converted it into a softwood veneer processing operation. In 1996, Roseburg replaced eight boilers at the facility with a single, 120,000-pound-per-hour boiler.

In 2006, Roseburg sought approval of an expansion of the existing facility to accommodate a biomass-fueled cogeneration power plant, whereby heat generated in the boiler could be used both for the veneer manufacturing process and for the generation of electricity for resale. The proposed Project "would include upgrading and retrofitting the existing power facility within the existing boiler house with a 15-megawatt steam-driven cogeneration system, including a General Electric turbine generator, a new exterior cooling tower, and a new electrical substation consisting of a 50-foot-tall communications tower and control building." The Project equipment would be housed on less than one acre of the total 300-acre site, and the closest residence to the Project site would be approximately 250 feet away.

Much of the fuel for the Project will be generated at the facility and other manufacturing facilities from the bark and trim removed from logs used in the wood veneer production. Other fuel would come from forest management activities in the surrounding region, including community fuel breaks and fire-safe thinning.

As stated in the EIR for the Project: "The overarching objective of the proposed project is to generate and sell excess power that is efficiently produced using sustainably-harvested renewable resources, offsetting the need for additional electricity generated from the burning of fossil fuels to support Roseburg's own facility operations. The purpose of the proposed project is also to aid the state power grid as a whole and help reduce regional energy shortfalls, and meet state air quality attainment goals by reducing air pollutants and greenhouse gas emissions."

On December 6, 2006, the Siskiyou County Planning Commission (Planning Commission) approved a categorical exemption from CEQA and a conditional use permit for the Project. Nine days later, MSBEC and others appealed the Planning Commission's decision.

Roseburg later withdrew its application and submitted a new one. On June 29, 2007, the County issued a Notice of Preparation of an EIR for the Project.

On April 18, 2008, the County, as the lead agency, released for public review and comment a draft environmental impact report (DEIR) for the Project. Among other things, the DEIR estimates that, with implementation of the Project, approximately 15 truck trips per day, five days per week, with a peak of 27 trips per day during four months in the fall and winter, will be required to bring additional fuel to the facility. The DEIR also explains that "steam and resulting condensate (steam that has cooled and has converted back to a liquid state) would be processed in a closed-loop system, resulting in no off-site discharge of water product from the boiler or turbine."

Regarding the source for Project water, the DEIR states: "Water usage for Roseburg originates from Boles and Beaughton Creeks, both of which are adjudicated. Beaughton Creek serves a portion of the City of Weed, as well as a local water bottling plant. The dominant water use on site comes from Boles Creek, which is used for sprinkling the log decks through a recirculated sprinkler system. Additional uses include water for the log vats, dryer washing and boiler operation." The DEIR indicates current water consumption at the facility is 64,000 gallons per day (gpd) and the Project will require an additional 56,000 gpd. However, because this total of 120,000 gpd is below historic water usage during the 1990's of 123,000 gpd and below the current maximum allowable consumption by Roseburg of 1,467 million gallons per year (mgy), the DEIR concludes no mitigation of water impacts will be needed.

Regarding air quality issues, the DEIR indicates: "The proposed project will also include the installation of pollution control equipment. [Siskiyou County Air Pollution Control District] Rule 6.1 requires that best available control technology for [nitrogen oxides (NOx)] be applied as part of the project. This will include selective non-catalytic reduction [(SNCR)] equipment to control emissions of NOx from the boiler. In addition, the project applicant has committed to installing filtration to control diesel particulate matter emissions from the fuel handling equipment (i.e., Bobcat and front-end loader)."

On the issue of Project noise, the DEIR indicates major information comes from two noise studies, one prepared by Environmental and Occupational Risk Management (EORM) dated February 19, 2007 (the EORM Report) and one prepared by Expershare dated July 27, 2007 (the Expershare Report). The DEIR contains a table, Table 3.7-2, summarizing 15-minute average sound levels at various locations in the community around the Project site, as reflected in the EORM Report. Another table, Table 3.7-3, summarizes noise measurements from the Expershare Report. According to the DEIR, the daytime noise measurements are below the County's daytime noise standard but above Weed's daytime noise standard in some locations, whereas all nighttime noise measurements are above Weed's nighttime noise standard.

The DEIR adopts a significance standard for Project noise that requires both that the new equipment increase noise in adjacent areas by at least 3.0 decibels (dB) and that overall noise in such areas exceeds the applicable County or Weed noise standard. Based on the EORM Report, the DEIR indicates predicted noise increases from the new Project equipment will be 0.5 A-weighted decibels (dBA), which represents an overall frequency-weighted sound level in dB that approximates the frequency response of the human ear. The DEIR also predicts noise increases from Project equipment and increased truck traffic together to be only 1.0 dBA. Hence, the DEIR concludes the noise impact from the Project will not be significant. Nevertheless, based on measurements reflected in the Expershare Report for residences further from the Project site, the DEIR indicates those residences could experience noise increases in excess of the 3.0 dB threshold and overall noise levels above the Weed nighttime standard. Therefore, the DEIR includes mitigation measure N-1, requiring Roseburg to cease deliveries before 7:00 a.m. or implement other measures to reduce the noise increase below 3.0 dB.

The comment period for the DEIR originally ended on June 2, 2008. However, it was extended to July 21, 2008. Many comment letters were received by the County expressing a wide range of environmental concerns.

A final environmental impact report (FEIR) was prepared in September 2008 which responded to the public comments. Regarding the Project description, the FEIR adds the following: "Treatments will be applied to the boiler building and the new equipment located within the building to control exterior noise. The potential treatments include but are not limited to adding additional mass to the building shell, installing acoustical absorption within the building, and installing enclosures around specific pieces of equipment." (Boldface omitted.)

Regarding noise measurements reflected in the EORM Report, the FEIR clarifies that the closest residence to the Project site would be 275 feet rather than 300 feet. The FEIR therefore amends Table 3.7-5 to reflect a predicted noise increase from Project equipment of 0.6 dBA and amends table 3.7-6 to reflect a predicted noise increase from Project equipment and truck traffic of 1.1 dBA.

Also as to Project noise, the FEIR adds to the summary of Expershare noise measurements in Table 3.7-3 measurements taken from Woodridge Court, which measurements are slightly higher than the other measurements in the report. The FEIR also amends the statement that measured noise levels do not exceed the County's noise standard and adds: "There were several days at Union Street and Woodridge Court where sound levels exceeded 60 Ldn." (Boldface omitted.) "Ldn" is defined in the EIR as "[t]he energy average of A-weighted sound levels occurring during a 24-hour period, with 10 dB added to the A-weighted sound levels occurring during the period from 10:00 p.m. to 7:00 a.m."

The FEIR also adds an explanation that, at the time the EORM Report was prepared, Roseburg had not identified all the Project equipment that will be located within the existing boiler building. However, because the building will provide substantial noise reduction, the noise analysis assumes there will be no meaningful contribution to noise levels from this unidentified equipment. Nevertheless, the FEIR adds mitigation measure N-2, which provides that if noise complaints are received and are attributable to the new Project equipment, Roseburg will retain a qualified acoustical consultant to measure noise levels. If it is determined the new equipment is causing a noise increase greater than 1.0 dB at the nearest residence, Roseburg will implement additional noise-reducing treatments around the equipment to reduce the noise increase below 1.0 dB.

On September 30, 2008, the Planning Commission certified the FEIR and approved the Project. In its resolution approving the Project, the Planning Commission found the DEIR was properly circulated, public comments were received and included in the FEIR, and the FEIR properly replied to the comments when necessary. The Planning Commission found: "The [FEIR] has been properly completed and has identified all significant environmental effects of the Project, and there are no known potential environmental effects that are not addressed in the [FEIR]." The Planning Commission further found: "The Project has been modified with mitigation measures to eliminate significant impacts or to reduce such impacts to a level of insignificance in all instances." The Planning Commission certified that the FEIR "has been completed in compliance with CEQA" and the FEIR "reflects the independent judgment of the Planning Commission . . . ."

MSBEC and others appealed the Planning Commission's decision to the Board. On November 13, the Board affirmed the Planning Commission's decision.

Plaintiffs initiated this action against the County and the Board seeking a writ of mandate compelling defendants to vacate their decision approving the Project and certifying the FEIR. As alleged in the petition, plaintiff MSBEC "is a non-profit organization working toward preserving biodiversity and the integrity of the environment in general in the Siskiyou County area." Plaintiff WCC "is an unincorporated association formed in June 2007 for the purpose of protecting the natural and cultural resources in and around the City of Weed." Both MSBEC and WCC are composed of persons whose economic, health, safety, and aesthetic interests will be injured if approval of the Project is not set aside pending full compliance with CEQA and all other laws. Plaintiffs allege various deficiencies in the DEIR and failure to provide adequate responses to public comments in the FEIR. Plaintiffs further allege defendants' findings regarding Project impacts, mitigation measures and alternatives are not supported by substantial evidence in the record and the Project approval conflicts with the County's general plan.

The trial court denied the petition, concluding the EIR's for the Project were sufficient under the circumstances. On March 16, 2010, the trial court entered judgment for defendants. Plaintiffs appeal.

DISCUSSION

I

Standard of Review

"[T]he Legislature intended [CEQA] 'to be interpreted in such manner as to afford the fullest possible protection to the environment within the reasonable scope of the statutory language.'" (Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 390 (Laurel Heights).) "The EIR is the primary means of achieving the Legislature's considered declaration that it is the policy of this state to 'take all action necessary to protect, rehabilitate, and enhance the environmental quality of the state.' [Citation.] . . . An EIR is an 'environmental "alarm bell" whose purpose it is to alert the public and its responsible officials to environmental changes before they have reached ecological points of no return.' [Citations.] The EIR is also intended 'to demonstrate to an apprehensive citizenry that the agency has, in fact, analyzed and considered the ecological implications of its action.' [Citations.] Because the EIR must be certified or rejected by public officials, it is a document of accountability. If CEQA is scrupulously followed, the public will know the basis on which its responsible officials either approve or reject environmentally significant action, and the public, being duly informed, can respond accordingly to action with which it disagrees. [Citations.] The EIR process protects not only the environment but also informed self-government." (Id. at p. 392.)

"Where an EIR is challenged as being legally inadequate, a court presumes a public agency's decision to certify the EIR is correct, thereby imposing on a party challenging it the burden of establishing otherwise." (Sierra Club v. City of Orange (2008) 163 Cal.App.4th 523, 530.) "[Public Resources Code s]section 21168.5 provides that a court's inquiry in an action to set aside an agency's decision under CEQA 'shall extend only to whether there was a prejudicial abuse of discretion. Abuse of discretion is established if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence.' As a result of this standard, '[t]he court does not pass upon the correctness of the EIR's environmental conclusions, but only upon its sufficiency as an informative document.' [Citation.]" (Laurel Heights, supra, 47 Cal.3d at p. 392.) We will not set aside an agency's approval of an EIR on the ground that a different conclusion would have been equally or even more reasonable. (Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 564 (Goleta Valley).)

Our review in a CEQA case, as in other mandamus actions, is the same as that of the trial court. We review the agency's decision, not that of the trial court. (In re Bay-Delta (2008) 43 Cal.4th 1143, 1162.) Such review differs according to the type of error claimed. (Vineyard Area Citizens for Responsible Growth v. City of Rancho Cordova (2007) 40 Cal.4th 412, 435.) "Whether an 'agency has employed the correct procedures,' is reviewed 'de novo . . . "scrupulously enforc[ing] all legislatively mandated CEQA requirements" [citation] . . . .' [Citation.] But an 'agency's substantive factual conclusions' are 'accord[ed] greater deference.' [Citation.] 'In reviewing for substantial evidence, the reviewing court "may not set aside an agency's approval of an EIR on the ground that an opposite conclusion would have been equally or more reasonable," for, on factual questions, our task "is not to weigh conflicting evidence and determine who has the better argument." [Citation.]'" (Sierra Club v. City of Orange, supra, 163 Cal.App.4th at p. 531.)

"When assessing the legal sufficiency of an EIR [as an informational document], the reviewing court focuses on adequacy, completeness and a good faith effort at full disclosure. [Citation.] 'The EIR must contain facts and analysis, not just the bare conclusions of the agency.' [Citation.] 'An EIR must include detail sufficient to enable those who did not participate in its preparation to understand and to consider meaningfully the issues raised by the proposed project.' [Citation.] Analysis of environmental effects need not be exhaustive, but will be judged in light of what was reasonably feasible." (Association of Irritated Residents v. County of Madera (2003) 107 Cal.App.4th 1383, 1390.)

II

Alternatives Analysis

Plaintiffs contend the EIR in this matter contains an insufficient range of alternatives to the Project. "CEQA requires that an EIR, in addition to analyzing the environmental effects of a proposed project, also consider and analyze project alternatives that would reduce adverse environmental impacts. [Citations.] The CEQA Guidelines state that an EIR must 'describe a range of reasonable 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 . . . .'" (In re Bay-Delta, supra, 43 Cal.4th at p. 1163, quoting from Cal. Code Regs., tit. 14, § 15126.6, subd. (a); all further references to the CEQA Guidelines in California Code of Regulations, title 14, shall be referred to as Guidelines followed by the section number.)

However, an EIR need not consider every conceivable alternative to the project. (In re Bay-Delta, supra, 43 Cal.4th at p. 1163.) "'In determining the nature and scope of alternatives to be examined in an EIR, the Legislature has decreed that local agencies shall be guided by the doctrine of "feasibility."' [Citation.] CEQA defines 'feasible' as 'capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, social, and technological factors.' (Pub. Resources Code, § 21061.1; see also [Guidelines,] § 15364.) [¶] 'There is no ironclad rule governing the nature or scope of the alternatives to be discussed other than the rule of reason.' ([Guidelines,] § 15126.6, subd. (a).) The rule of reason 'requires the EIR to set forth only those alternatives necessary to permit a reasoned choice' and to 'examine in detail only the ones that the lead agency determines could feasibly attain most of the basic objectives of the project.' (Id., § 15126.6, subd. (f).) An EIR does not have to consider alternatives 'whose effect cannot be reasonably ascertained and whose implementation is remote and speculative.' (Id., § 15126.6, subd. (f)(3).)" (In re Bay-Delta, supra, 43 Cal.4th at p. 1163.)

An examination of an EIR's alternatives analysis must begin with the project's objectives, for it is these objectives that a proposed alternative must be designed to meet. (In re Bay-Delta, supra, 43 Cal.4th at p. 1163; Guidelines, § 15124, subd. (b).) The DEIR identifies the following primary objectives of the Project: (1) "generate renewable energy that is produced in an efficient, economically viable and environmentally sound manner;" (2) "generate electricity in a closed-loop system through the utilization of the boiler's steam, which is fueled by a variety of sources, including the facility's wood by-products, Roseburg's timber lands, [United States Forest Service], and numerous small industrial suppliers all of which will supply clean, unaltered hog fuel;" (3) "offset Roseburg's own power needs by selling the excess green power for use in California;" (4) "aid the power grid as a whole and help reduce regional energy shortfalls;" (5) "assist California in meeting its legislated Renewable Energy Portfolio standards for the generation of renewable energy in the state; these standards require investor-owned utilities to purchase 20% of their power from renewable sources by 2010;" (6) "offset the need for additional electricity generated from fossil fuels, which emit more air pollutants than biomass-generated electricity, thereby assisting the state in meeting its air quality goals and reducing greenhouse gas emissions;" and (7) "reduce the need to conduct slash burns of local forest floor, forest thinning, and logging operation debris, which emits uncontrollable air pollutants."

The alternatives section of the DEIR states: "After completing an initial review of the proposed project along with all potential environmental impacts, the County identified a 'reasonable range' of alternatives, as defined by CEQA. There were not any alternatives identified that: 1) would meet most or all of the project objectives, 2) are considered feasible, and 3) would avoid or substantially reduce one or more potentially significant impacts of the proposed project. Several alternatives were considered but rejected from further consideration, as described below. Another alternative, a No Project alternative, was further evaluated and is described below."

The DEIR then identifies three alternatives that were considered but rejected. The first, a "Reduced Capacity Alternative," involves a smaller cogeneration facility sufficient only to supply Roseburg's onsite power needs. According to the DEIR, this alternative was rejected because it would not meet the objectives of an economically viable project, of putting green power into the California energy grid, and of helping meet California's 2010 green energy portfolio goals.

The second alternative, an "Alternative Boiler Location Onsite," was rejected because "there are no economic, operational or environmental benefits to" relocating the boiler, inasmuch as this would require installation of an additional boiler and greater air emissions. It would also eliminate the possibility of using steam generated in the veneer production process. And, according to the DEIR, moving the existing facilities to a new location "would result in increased construction noise and air quality impacts, as well as additional construction truck and vehicle trips."

The third alternative, an "Alternative Location Offsite," involves construction of a new facility at Roseburg's facility in Oregon. This too was rejected as not meeting the Project's objectives. According to the DEIR, "[r]elocation of the cogeneration facility outside of California would require substantial new infrastructure construction, would result in an increase of air emissions resulting from hauling fuel from California to Oregon, and require additional coordination between the state of Oregon and the California Public Utilities Commission as to the logistics of wheeling power between states."

The only alternative considered in depth in the DEIR is the "No Project" alternative.

Plaintiffs contend the three alternatives considered and rejected during scoping cannot be counted for purposes of determining whether the EIR contained an adequate range of alternatives, and the remaining "No Project" alternative alone is not enough. According to plaintiffs, "CEQA does not allow an agency to reject every alternative during the scoping process as infeasible and then claim that the discussion of alternatives as infeasible met the requirement that [the] EIR described a range of potentially feasible alternatives to the project."

We agree alternatives considered and rejected during the scoping phase cannot be counted in determining whether the EIR has considered and analyzed a reasonable range of alternatives. CEQA requires the analysis of feasible alternatives. "The issue of feasibility arises at two different junctures: (1) in the assessment of alternatives in the EIR and (2) during the agency's later consideration of whether to approve the project. [Citation.] But 'differing factors come into play at each stage.' [Citation.] For the first phase--inclusion in the EIR--the standard is whether the alternative is potentially feasible. [Citations.] By contrast, at the second phase--the final decision on project approval--the decisionmaking body evaluates whether the alternatives are actually feasible. [Citation.] At that juncture, the decision makers may reject as infeasible alternatives that were identified in the EIR as potentially feasible." (California Native Plant Society v. City of Santa Cruz (2009) 177 Cal.App.4th 957, 981.)

The EIR must include an analysis of the alternatives that were found during the scoping phase to be potentially feasible. Those rejected during the scoping phase as not potentially feasible are not counted.

Nevertheless, that does not mean an EIR is inadequate if all alternatives considered by the agency during the scoping phase are determined not to be potentially feasible. Plaintiffs' argument presupposes an EIR indicating that no alternatives were found to be potentially feasible violates CEQA. However, as plaintiffs themselves acknowledge, there is no rule specifying a particular number of alternatives that must be included. "CEQA establishes no categorical legal imperative as to the scope of alternatives to be analyzed in an EIR. Each case must be evaluated on its facts, which in turn must be reviewed in light of the statutory purpose." (Goleta Valley, supra, 52 Cal.3d at p. 566.)

Plaintiffs do not identify any alternatives that they contend are potentially feasible given the objectives of the Project. Instead, they argue the burden of identifying alternatives lies with the agency, citing Laurel Heights. However, Laurel Heights merely acknowledged the general obligation on the lead agency to identify alternatives and mitigation measures during the CEQA process. (Laurel Heights, supra, 47 Cal.3d at pp. 405-406.) But, as explained above, it is the appellants' burden to demonstrate inadequacy of the EIR. An appellant must therefore show the agency failed to satisfy its burden of identifying and analyzing one or more potentially feasible alternatives. An 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.

In their reply brief, plaintiffs suggest the EIR should have considered an off-site alternative whereby the plant would be located closer to the trees used as a fuel source, thereby reducing hauling and attendant noise. However, plaintiffs make no attempt to show how such alternative would have met most of the goals of the Project, would have been potentially feasible under the circumstances, or would have reduced overall environmental impacts of the Project.

Also in their reply brief, plaintiffs challenge the rationale used by the County to reject various of the alternatives as not potentially feasible. However, this argument presents nothing more than a difference of opinion. Plaintiffs do not contend, as they must, that there is no substantial evidence to support the County's rejection of the three alternatives as not potentially feasible.

Absent a showing that the EIR failed to include a particular alternative that was potentially feasible or that, under the circumstances presented, including only the Project and the no project alternatives did not amount to a reasonable range of alternatives, plaintiffs' challenge to the alternatives analysis fails.

III

Air Quality Impacts

Plaintiffs challenge that portion of the EIR discussing the air quality impacts of the Project. They contend the EIR failed to identify the proper baseline of air quality emissions, failed to identify and mitigate the Project's air quality impacts, failed to analyze adequately the increase in NOx emissions from the Project, and failed to identify the maximum number of truck trips required by the Project and the air quality impacts associated with those trips. However, plaintiffs provide detailed argument and citations to authority only as to the one claim that the EIR uses the wrong baseline and consequently understates the Project's environmental impacts. We therefore need not address the other contentions. (Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979; Atchley v. City of Fresno (1984) 151 Cal.App.3d 635, 647.)

Guidelines section 15125, subdivision (a), reads in relevant part: "An EIR must include a description of the physical environmental conditions in the vicinity of the project, as they exist at the time the notice of preparation is published, or if no notice of preparation is published, at the time environmental analysis is commenced, from both a local and regional perspective. This environmental setting will normally ...


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