An appellate court has ruled that an environmental impact report for a proposed San Diego County rock quarry was closer to acceptable than a trial judge had ruled, but the EIR still lacked a proper analysis of air quality impacts.
The Fourth District Court of Appeal overturned San Diego Superior Court Judge Judith McConnell's ruling that the rock quarry EIR improperly deferred study of highway widening, and that the EIR failed to account for prior illegal mining on the property. Still, the unanimous three-judge appellate panel sided with Riverwatch, a collection of residents near the proposed quarry and environmentalists, on the air quality issue. The court also rejected the mining company's claim that its project had been "deemed approved" years ago and could no longer be challenged in court.
Palomar Aggregates filed its first application for a rock quarry near State Route 76 and Interstate 15 in northern San Diego County in March of 1987. After a draft EIR was released in mid-1988, Palomar announced it would not pursue the project described in the study because of concerns over the project's size. Palomar revised the project and prepared a second EIR. But the county Planning Commission denied the permit application in January of 1993 because some environmental impacts could not be mitigated. The Board of Supervisors rejected Palomar's appeal.
The company again revised its proposal, and a third draft EIR was released in April of 1996. The EIR's discussion of plans for widening SR 76 in the floodplain of the San Luis Rey River drew criticism from residents, Caltrans, the U.S. Fish & Wildlife Service and local water districts. In response to this criticism, the county required Palomar to widen SR 76 before the quarry opened, and said that the application to Caltrans to encroach onto the floodplain would be subject to environmental study. The Board of Supervisors approved the quarry in March of 1997.
Riverwatch filed a lawsuit against the county challenging the EIR and alleging various land-use and zoning deficiencies. Judge McConnell ruled for Riverwatch. She found that the EIR improperly segmented the project by deferring a full study of the highway widening until after the county approved the quarry. She also ruled that the EIR should have set an environmental baseline that included site conditions prior to illegal mining activity. And she said the EIR failed to consider blowing dust from the quarry and haul road. McConnell never reached Riverwatch's land-use and zoning claims.
On appeal, Palomar argued that the EIR contained adequate information to evaluate impacts of highway construction. The appellate court agreed. In her opinion, Justice Patricia Benke quoted extensively from the EIR's discussion of the highway project, the associated mitigations, and an analysis of an alternative route.
"[O]n its face, the final EIR determined the widening will have a significant impact, requires mitigation which no one disputes will render the impact of the widening insignificant and considers the only feasible alternative route for the widening suggested anywhere in the record," Benke wrote.
"Contrary to Riverwatch's contention," Benke continued, "the fact that the final EIR deferred until a later point more detailed analysis of the realignment of SR 76 did not violate CEQA."
Benke cited extensively No Oil, Inc. v. City of Los Angeles, (1987) 196 Cal.App.3d 223. In that case, Occidental Petroleum sought permission to drill exploratory oil wells. The city approved the test wells, but project opponents sued because the EIR did not fully analyze the location and impacts of oil transport pipelines that eventually would be required if the exploration were successful. The No Oil court said such an analysis "would be mere speculation" and could be deferred until Occidental proposed building a pipeline. "[N]o Oil makes it clear that CEQA does not require project proponents to act imprudently or to bear unnecessary investigative and assessment burdens" Benke wrote.
Although additional data and modeling of the highway widening — requested by Riverwatch and government agencies — would be useful, it would not change the EIR's conclusions, she wrote. "Importantly, no part of the project will go forward until the realignment has been approved by Caltrans and the road has been constructed. Thus, should new information show that any unmitigable impact of the realignment outweighs the benefits of the project, Caltrans can deny the encroachment permit Palomar must obtain and thereby prevent operation of the quarry. The county was certainly entitled to rely on this additional safeguard in deciding to defer a detailed analysis of the highway realignment."
As for the EIR's description of baseline conditions, Riverwatch and the Fish & Wildlife Service argued that the EIR did not assess the value of the floodplain as wildlife habitat had the site not served as an illegal sand mine for Palomar's owners and the previous landowners. The Fish & Wildlife Service recommended the county take no action on the quarry application until a Notice of Violation of the Clean Water Act was resolved. Judge McConnell found that the EIR should have developed an environmental baseline that accounted for the prior illegal activity on and near the project site.
However, the appellate court said an EIR need not deal with prior unauthorized activity. "We believe that in general preparation of the EIR is not the appropriate forum for determining the nature and consequences of a prior conduct of a project applicant. … Because the prior illegality was subject to enforcement actions and the enforcing agency [Army Corps of Engineers] participated in the CEQA process, CEQA did not require any further accounting for prior activity at or within the vicinity of the project," the court ruled.
Potential air pollution was another matter, and the appellate panel upheld McConnell's ruling there. The EIR concluded that the air quality impacts were insignificant because the quarry's processing emission of 95 pounds of particulate matter per day was below the 100-pound threshold of the San Diego Air Pollution Control District. But, the court noted, the study also found that drilling, handling and wind erosion of stockpiles would generate another 82.7 pounds per day of particulate matter (called PM10), and hauling of aggregate would create 111.1 additional pounds per day of PM10.
"While the process emissions met the APCD process emission standard of 100 pounds of PM10, that fact did not permit the drafters of the EIR to presume that the other almost 200 pounds of PM10 was insignificant or that together the process emissions and the fugitive and road haul emissions were insignificant," Benke wrote.
The court also rejected Palomar's contention that its project had been deemed approved more than 10 years ago. Palomar argued that the city's failure to act on the original 1987 application means the project was "deemed approved" under the Permit Streamlining Act, which sets deadlines for local government to rule on land-use applications, and the time to challenge the approval had long since ended. But the court ruled that the deadline for the county to act did not apply because Palomar itself insisted on halting the original EIR process. Furthermore, the court ruled, the public has 180 days to "bring a CEQA challenge to a project which has not been the subject of a ‘formal decision' by a public agency." Thus, even if the project were "deemed approved," a lawsuit could still be filed because Palomar never started work on the proposed quarry.
The Case: Riverwatch v. County of San Diego, No. D030732, 99 C.D.O.S. 9933, 1999 Daily Journal D.A.R. 12743, filed December 22, 1999.
For Riverwatch: Carlyle Hall Jr., Hall & Associates, (310), 441-8300.
For the county: R. Mark Beesley, county counsel, (619) 531-6456.
For Palomar: Tina Thomas, Remy, Thomas & Moose, (916) 443-2745.