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Lack of Groundwater Analysis Dooms Dump EIR: Ruling Is Only Part of Huge controversy Over Rail Cycle

The Fourth District Court of Appeal has thrown out an environmental impact report for a proposed San Bernardino County landfill because the EIR did not estimate the volume of groundwater underlying the site. Because the landfill could threaten the groundwater resource, decision-makers needed to know how large the resource is before determining whether the landfill was an acceptable risk, the unanimous three-judge panel held. Although the court threw out the EIR for lacking groundwater information, the court rejected numerous other challenges to the EIR and held that the landfill is compatible with the county's general plan. The lawsuit involved the highly contentious Rail Cycle project (see CP&DR November 1999, March 1999, December 1997) and the politically well-connected Cadiz Land Company. Since the San Bernardino County Board of Supervisors approved the Rail-Cycle landfill in 1995, the district attorney's office has undertaken a major criminal investigation that cost county Planning Director Valerie Pilmer her job and resulted in the indictment of Planning Commissioner Michael Dombrowski on unrelated bribery charges. Joseph Lauricella, a con man who claimed he was hired by Rail Cycle owners to ruin Cadiz, is serving six years in state prison for wiretapping, conspiracy and fraud. A trial of Waste Management Inc. (part of the Rail Cycle partnership) and two Waste Management executives on charges they conspired to destroy Cadiz began in late September only days after prosecutors filed fresh securities fraud charges against the same defendants. Cadiz, meanwhile, is run by Keith Brackpool, a Brit who has become a water-policy confidant of Gov. Gray Davis. Cadiz has acquired about 26,000 acres of land in the Mojave Desert. The company wants to pump groundwater from that land and sell it to the Metropolitan Water District and the Mojave Water Agency. During wet years, the Met would store Colorado River water in the aquifer beneath the Cadiz property. The Cadiz plan remains only a proposal, but a leaky garbage dump could run the scheme which explains the lengthy legal battle. In 1991, Rail Cycle (a partnership of Atchison, Topeka & Santa Fe Railway Company and Waste Management, now called WMX Technologies) filed an application for a municipal landfill at a former railroad depot in the desert about 80 miles east of Barstow. The 4,870-acre site, about half of which would be buffer, would accommodate up to 21,000 tons of garbage per day for 60 to 100 years, creating a mound of trash nearly 400 feet tall. Rail cars would deliver garbage to the site. After three years of environmental study, staff review and public hearings, the county Planning Commission recommended the Board of Supervisors certify the EIR and approve the project. In November 1995, the board certified the EIR, and approved a conditional use permit, general plan amendments and a "business agreement" under which Rail Cycle would pay a "business license tax" of $24 million to $30 million annually. (Voters had to approve that tax, but they rejected it in 1996, which appeared to doom the project.) Cadiz filed lawsuits in December 1995, shortly after the Board of Supervisors' vote. Cadiz claimed that its property had been taken without compensation and that it had been deprived of its federal civil rights under 42 U.S.C. 1983. Cadiz also challenged the adequacy of the EIR and the claimed the county's approval of the general plan amendments, rezoning and use permit was improper. Superior Court Judge Carl Davis ruled that the due process claims were not ripe, held that the EIR was adequate under the California Environmental Quality Act (Public Resources Code 21000 et seq.) and said that the county could grant the general plan amendments and conditional use permit. The appellate court did not consider the civil rights claims but did rule on the EIR and the county's project approvals. The court found only one flaw in the lower court's decision, and that regarded the amount of groundwater under the landfill site. "Although the EIR mentions that an aquifer containing potable water underlies the landfill site, and discusses factors such as groundwater recharge, groundwater downgradient, groundwater flow, change to slope of the water table (hydraulic gradient) due to pumping, risk of contamination, overdraft, projected drawdown, groundwater velocity, and cone of depression location, the EIR does not discuss the volume of water contained in the aquifer or the size of the aquifer. Thus, we conclude the EIR's discussion of the environmental setting is not in compliance with CEQA Guidelines 15125," Justice Barton Gaut wrote for the three-judge panel. "An estimate of the volume of groundwater in the aquifer is critical to a well-informed determination of whether the risk of groundwater contamination is worth taking. It would be reasonable to assume that if a large volume of drinking water and/or water suitable for other domestic, industrial and agricultural uses were subject to contamination, the lead agency evaluating the project would be less inclined to approve such a project and the public might vociferously object to the project," Gaut continued. The court ruled that the lack of groundwater volume information made it premature to decide whether the potential for groundwater leakage could be deemed an insignificant impact. But the court upheld all other aspects of the EIR that Cadiz challenged, including reviews of air quality impacts, geologic conditions, and cumulative effects. The court acknowledged that Cadiz's contentions regarding the general plan amendments and use permit were moot because of the EIR ruling, but the court addressed the issues anyway because "if we do not, the issue may be raised in a future appeal, after revision and recertification of the EIR." Cadiz claimed the project was inconsistent with the general plan because it would be an intensive industrial use in an area designated as open space. But the appellate panel disagreed, ruling, "[T]he general plan expressly states that landfills are encompassed within the category of open space land uses." The appellate court also upheld a string of trial court discovery rulings against Cadiz, which wanted to depose Pilmer, Dombrowski and other county officials, Lauricella, several community activists and various project consultants. Cadiz suggested misconduct on the part of Rail Cycle and the county. But the appellate court ruled that some allegations were "ambiguous and evasive" and that Cadiz should have sought other information during administrative proceedings. The Cases: Cadiz Land Company Inc. v. Rail Cycle L.P., No. E024373, and Cadiz Land Company Inc., v. County of San Bernardino, No. E024532, 00 C.D.O.S. 7008, 2000 Daily Journal D.A.R. 9231, filed August 18, 2000. The Lawyers: For Cadiz: John Bowman, Jeffer, Mangels, Butler & Marmaro, (310) 785-5379. For Rail Cycle: Clare Bronowski, Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, (310) 553-3000. For the county: Richard Terzian, LeBoeuf, Lamb, Greene & MacRae, (213) 955-7300.
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