El Pueblo Para el Aire y Agua Limpio v. County of Kings

No. 366045 (Cal. Super. Ct. December 30, 1991)

The court rules that the final environmental impact report that resulted in issuance of a conditional use permit for the construction and operation of a hazardous waste incinerator at the Kettleman Hills site in Kings County, California, was inadequate as an informational document under the California Environmental Quality Act (CEQA). The incinerator could burn hundreds of millions of pounds of toxic waste each year and is a proposed addition to an existing hazardous waste disposal facility in a town whose population is predominately Latino. The court finds that the report inaccurately reasoned under CEQA that the air quality impacts of emissions from incinerator operations would be mitigated to a level of insignificance through use of best available air pollution control technology. The court also finds that the strong emphasis in the CEQA on publicly informed environmental decisionmaking by public officials would have justified the Spanish translation of the report and public hearing documents.

[Pleadings in a related federal action are published at ELR PEND. LIT. 66173.]

Counsel for Petitioners
Ralph S. Abascal, Luke W. Cole
California Rural Legal Assistance Foundation
2111 Mission St., Ste. 401, San Francisco CA 94110
(415) 864-3405

Sharon Duggan
380 Hayes St., Ste. 1, San Francisco CA 94102
(415) 861-1401

Counsel for Respondents
Denis Eymil, Jim LaPorte
County of Kings
1400 W. Lacey Blvd., Hanford CA 93230
(209) 582-3211

Anthony Garvin, Sanford Svetcov
Landels, Ripley & Diamond
350 Steuart St., Hills Plaza, San Francisco CA 94105
(415) 788-5000

[22 ELR 20357]

Gunther, J.:

Ruling on Submitted Matter

The petition for a writ of mandate in the above-entitled proceeding came on regularly for hearing on October 1, 1991, before the Honorable Jeffrey L. Gunther, Judge of the Superior Court. Ralph Santiago Abascal, Luke W. Cole and Sharon Duggan appeared for petitioners. Michael H. Remy and J. William Yeates appeared for respondents. Sanford Svetcov and Anthony Garvin appeared for real parties in interest. Following oral argument, the matter was submitted. The Court now rules.

In this mandate proceeding, petitioners challenge a decision of the Kings County Board of Supervisors ("board") granting a conditional use permit for the construction and operation of a hazardous waste incinerator by Chemical Waste Management, Inc. ("CWM") at CWM's existing hazardous waste treatment, storage and disposal facility in the Kettleman Hills are of southwest Kings County. The board's decision affirmed determinations by the Kings County Planning Commission that (1) the environmental impact report prepared on the incinerator project adequately complied with the requirements of the California Environmental Quality Act ("CEQA"; Pub. Resources Code § 21000 et seq.) and (2) the incinerator project was consistent with the Kings County General Plan and Zoning Ordinance. Petitioners contend that these determinations, and the board's grant of a conditional use permit based on the determinations, are invalid.

Noncompliance With CEQA

For each of the reasons specified below, the Court finds that the Final Subsequent Environmental Impact Report ("FSEIR") on CWM's proposed incinerator project was inadequate as an informational document under CEQA.

Analysis of Air Quality Impacts and Mitigation

Data and analysis in the FSEIR indicated initially that emissions from the operation of the incinerator project would contribute to air pollution in the San Joaquin air basin: incinerator emissions would include nitrogen oxides — the precursors of ozone — and particulate matter under 10 micrometers in diameter ("PM-10"). The FSEIR indicated that ozone and PM-10 levels in the San Joaquin air basin already exceeded ambient air quality standards under federal and state clean air acts, and as a result, the basin was designated as a nonattainment area pursuant to the federal and state laws.

Further data and analysis in the FSEIR indicated that the nitrogen oxide and PM-10 emissions from operation of the incinerator project would be mitigated to a level of insignificance by air pollution control measures required by the federal and state clean air acts. These control measures would include the use of the best available air pollution control technology ("BACT") in the incinerator, the use of emission offsets purchased from the Beacon Oil Refinery in Hanford, and he reduction of incinerator operations so that PM-10 emissions would not exceed the offsets.

This FSEIR analysis is misleading and inaccurate. The use of BACT and emission offsets would avoid further violation of ambient air quality standards for ozone and PM-10 and would produce a net air quality benefit in the San Joaquin air basin within the technical meaning of the federal and state clean air acts. However, the use of BACT and emission offsets would not produce compliance with ambient air quality standards and would not eliminate or reduce the estimated actual emissions of nitrogen oxide and PM-10 from the incinerator. Rather, the offsets would permit the incinerator to emit approximately one-half of the nitrogen oxide and PM-10 previously emitted by Beacon and would not prevent an adverse impact by these emissions on air quality either in the vicinity of the incinerator or in the San Joaquin air basin. For purposes of CEQA, mitigation of the environmental impacts of the incinerator's estimated actual emissions would not occur. (See Pub. Resources Code §§ 21002, 21002.1, 21081, 21100; 14 Cal. Code Regs. § 15370.)

Thus the FSEIR inaccurately reasoned under CEQA that the air quality impacts of emissions from incinerator operations would be mitigated to a level of insignificance through the use of BACT and emission offsets under the federal and state clean air acts. The FSEIR did not identify or consider measures that would actually eliminate or reduce the emissions within the contemplation of CEQA. Nor did the FSEIR consider whether the incinerator's emissions of ozone precursors and PM-10, though one-half of Beacon's emissions and though minor relative to the overall ozone and PM-10 levels in the air basin, should be considered significant in light of the serious problem with these pollutants in the air basin. (See Kings County Farm Bureau v. City of Hanford (1990) 221 Cal. App. 3d 692, 718.)

The analysis of air quality impacts and their mitigation was, accordingly, inadequate under CEQA. The planning commission, affirmed by the board, erroneously relied on this inadequate analysis in determining that the FSEIR complied with CEQA requirements. (See Kings County Planning Commission, Resolution No. 1146 (December 11, 1990), Finding No. 6; Kings County Board of Supervisors, Resolution No. 91-001 (January 3, 1991).)

Analysis of Agricultural Impacts

The FSEIR concluded that air pollutants emitted during operation of the incinerator would have an insignificant effect on agriculture and livestock grazing in the vicinity of the incinerator. This conclusion was based on a study by Robert F. Brewer, Ph.D., which determined that the nitrogen oxide emissions from the incinerator would be expected to increase crop loss from ozone less than 0.3 percent under normal conditions and less than 3.0 under worst case conditions. Dr. Brewer's study also determined that lead emissions from the incinerator would be deposited on nearby rangelands in concentrations too low to be injurious to livestock grazing there.

Both Dr. Brewer's study and the FSEIR noted studies showing [22 ELR 20358] crop losses in the San Joaquin Valley as a result of ozone levels exceeding ambient air quality standards and significant increases in crop yields when ambient ozone was reduced to air quality standards. Dr. Brewer reasoned, however, that nitrogen oxide emissions from the incinerator project would increase ambient ozone and resulting crop losses by very low levels which were "both insignificant and almost impossible to measure." Neither Dr. Brewer nor the FSEIR analyzed whether the very low, almost immeasurable additions to ambient ozone and crop losses of 0.3 to 3.0 percent should be considered significant and subject to CEQA mitigation requirements in light of the serious extent of crop loss attributable to ambient ozone in the area. (See Kings County Farm Bureau v. City of Hanford, supra, 221 Cal. App.3d at p. 718.) Contrary to CEQA requirements, neither Dr. Brewer nor the FSEIR analyzed the significance of the additions to ambient ozone and crop losses from incinerator emissions in the environmental setting of the incinerator. (Ibid.; 14 Cal. Code Regs. § 15064, subd. (b).)

In addition, Dr. Brewer's study was based on an estimated rate of lead emissions from the incinerator of 0.221 pounds per hour. FSEIR data indicated that the estimated rate of lead emissions would be 0.44 pounds per hour, approximately twice the rate used by Dr. Brewer. The FSEIR failed to address whether this discrepancy undercut Dr. Brewer's conclusions about the levels and seriousness of lead concentrations on agricultural and grazing lands as a result of emissions from the incinerator.

The analysis of the significance of agricultural impacts was, accordingly, inadequate under CEQA. The planning commission, affirmed by the board, erroneously relied on this inadequate analysis in determining that the FSEIR complied with CEQA requirements. (See Kings County Planning Commission, Resolution No. 1146 (December 11, 1990), Finding No. 9; Kings County Board of Supervisors, Resolution No. 91-001 (January 3, 1991).)

Analysis of Cumulative Air Quality Impacts

The FSEIR indicated that nitrogen oxide, PM-10 and other criteria pollutants emitted during incinerator operations would contribute cumulatively to similar pollutants emitted in the San Joaquin air basis by existing and anticipated future stationary sources. The FSEIR concluded, however, the incinerator's cumulative impact would be insignificant because the incinerator's emissions would constitute so small a proportion of the emissions in the air basin — approximately 0.25 percent of the total basin emissions in 1985 — that the incinerator's emissions would not significantly worsen the air quality problem in the basin.

The use of such reasoning in an analysis of a project's cumulative air quality impacts under CEQA was specifically rejected in Kings County Farm Bureau v. City of Hanford, supra, 221 Cal. App. 3d at p. 721. The appellate court in that case determined that such reasoning "avoids analyzing the severity of the problem and allows the approval of projects which, when taken in isolation, appear insignificant, but when viewed together, appear startling. . . . [t]he greater the overall problem, the less significance a project has in a cumulative impacts analysis." The appellate court explained that this "ratio" theory of cumulative impacts analysis "improperly focuse[s] upon the individual project's relative effects and omit[s] facts relevant to the analysis of the collective effect this and other sources will have upon air quality." (Ibid.; see 14 Cal. Code Regs. § 15355.)

The cumulative impacts analysis in the FSEIR focused only on the relative effect of the incinerator's emissions upon the air quality of the San Joaquin air basin and did not, as required by CEQA, assess the collective or combined effect of emissions from the incinerator and other sources. In addition, the cumulative impacts analysis in the FSEIR expressly omitted post-1985 data on emissions from new or anticipated sources, emissions from mobile sources (including emissions from the vehicular traffic of the 50 persons employed at the incinerator), and emissions from facilities annually emitting less than 25 tons of criteria pollutants. The FSEIR analysis relied almost exclusively on 1985 data from the California Air Resources Board on stationary sources emitting 25 tons or more of criteria pollutants targeted by the clean air acts and, apparently, did not incorporate post-1985 data obtained from air pollution control districts in the San Joaquin air basin. No effort appears to have been made in conjunction with the FSEIR analysis to secure and incorporate information about stationary sources emitting less than 25 tons of criteria pollutants annually; there was no indication in the record that the emissions from such sources would be cumulatively insignificant and no indication that such information about such sources was unavailable. Data submitted by Citizens for a Healthy Environment during the CEQA public comment period, including information about additional emission sources, were not given serious consideration.

The cumulative air quality impacts analysis was, accordingly, inadequate under CEQA. The planning commission, affirmed by the board, erroneously relied on this inadequate analysis in determining that the FSEIR complied with CEQA requirements. (See Kings County Planning Commission, Resolution No. 1146 (December 11, 1990), Finding No. 10; Kings County Board of Supervisors, Resolution No. 91-001 (January 3, 1991).)

Analysis of Project Alternatives

The FSEIR analyzed a number of alternatives to the construction and operation of an incinerator at the CWM's Kettleman Hills Facility, including a no-project alternative, an alternative employing hazardous waste management methods other than incineration, and alternatives siting the incinerator on CWM property in Bakersfield, the Casmalia Resources facility in Santa Maria, and other unindentified locations in California. The FSEIR analysis rejected all alternatives to the incineration project at Kettleman Hills, concluding that incineration as a method of hazardous wastes disposal would be required as a result of federal and state laws banning land disposal and that none of the site alternatives were practical or superior environmentally.

The FSEIR analysis of project alternatives necessarily relied on previous FSEIR analysis and conclusions regarding the significance of the project's impacts on air quality and agriculture and the project's cumulative air quality impacts. Because, as outlined above, the previous FSEIR analysis and conclusions were inadequate for purposes of CEQA, the analysis of project alternatives was flawed and premature. Until the air quality impacts of constructing and operating the incinerator project at Kettleman Hills were properly defined, the comparative merits of the project and its alternatives could not be properly evaluated. (See 14 Cal. Code Regs. § 15126, subd. (d).)

The FSEIR's analysis of project alternatives was, accordingly, inadequate under CEQA. The planning commission, affirmed by the board, erroneously relied on this inadequate analysis in determining that the FSEIR complied with CEQA requirements. (See Kings County Planning Commission, Resolution No. 1146 (December 11, 1990), Finding No. 11; Kings County Board of Supervisors, Resolution No. 91-001 (January 3, 1991).)

Public Participation and Access

The Court finds that the strong emphasis in CEQA on environmental decisionmaking by public officials which involves and informs members of the public would have justified the Spanish translation of an extended summary of the FSEIR, public meeting notices, and public hearing testimony in this case. The residents of Kettleman City, almost 40 percent of whom were monolingual in Spanish, expressed continuous and strong interest in participating in the CEQA review process for the incinerator project at the CWM's Kettleman Hills Facility, just four miles from their homes. Their meaningful involvement in the CEQA review process was effectively precluded by the absence of the Spanish translation.

The Court, however, does not find that the FSEIR was written in a manner incomprehensible to interested laypersons among the public. The text of the FSEIR perhaps contained a significant amount of technical matter which could have been better placed in appendices, but the text was readable. The inadequacies in the analysis, not the readability of the text, constituted the significant deficiency of the FSEIR.

Inconsistency With General Plan and Zoning Ordinance

The board affirmed the planning commission's approval of a conditional use permit for the construction and operation of a hazardous waste disposal incinerator at the CWM's Kettleman Hills Facility. This approval was based on determinations by the planning commission that the construction and operation of the incinerator was consistent with the Kings County General Plan and Zoning Ordinance, including the siting criteria of the Kings County Hazardous Waste Management Plan. These consistency determination relied heavily [22 ELR 20359] on analysis and conclusions in the FSIER that all significant environmental effects of the incinerator would be mitigated to levels of insignificance. (See, e.g., Findings Nos. 10, 12, 13, and 27 (pursuant to Section 1908b) of Kings County Planning Commission, Resolution No. 1146 (December 11, 1990).)

Because the FSEIR analysis and conclusions have been determined to be inadequate, a substantial portion of the reasoning and information underlying the consistency determinations has been invalidated. The planning commission and board must, accordingly, reconsider the consistency determinations on the basis of accurate analyses of the environmental effects of constructing and operating an incinerator at Kettleman Hills.

The Board as Impartial Decisionmaker

The Court rejects petitioners' contention that the Kings County Board of Supervisors could not impartially adjudicate their appeal from the planning commission's approval of a conditional use permit for an incinerator at CWM's Kettleman Hills Facility. Petitioners have not established that the board's authority to increase county revenues by taxing the gross revenues from the incinerator's operations under Health and Safety Code section 25149.5 unfairly biased the board and caused it to affirm the planning commission's approval of the conditional use permit for the incinerator.

The FSEIR analysis of project alternatives recognized that, without the construction and operation of the incinerator, county tax revenues would be reduced. This recognition, however, may have merely reflected the CEQA provisions requiring the analysis of project alternatives to include a determination of whether the alternatives can be "feasibly accomplished in a successful manner" considering the economic, environmental, social and technological factors involved. (Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal. 3d 553, 566.)

Similarly, the board's determinations of whether the incinerator was consistent with the county's general plan and zoning ordinance required the board to consider and balance a variety of health, safety, environmental and fiscal or economic factors. The board's responsibility for the county budget and revenues was necessarily balanced by the board's responsibility for the county's health, safety and environmental welfare.

Petitioners have presented no evidence that the board was personally tempted by a financial interest to approve the conditional use permit for the incinerator at Kettleman Hills. Petitioners have not overcome the presumption of the board's impartiality in affirming the approval of the use permit by the planning commission. (See Schweiker v. McClure, 456 U.S. 188, 196.)

For the reasons stated above, the Court grants the petition for a writ of mandate and orders the issuance of a writ compelling respondents to set aside the decision certifying the adequacy of the FSEIR and approving a conditional use permit for the construction and operation of a hazardous waste incinerator at CWM's Kettleman Hills Facility. Petitioners are directed to prepare, serve on all parties, and submit to the Court a proposed judgement and writ of mandate in accordance with this decision.