A county considering the environmental impact of a proposal to expand a mine may use full-capacity operation of the existing facility as the environmental "baseline" even if the facility is operating at less than full capacity, the Second District Court of Appeal has ruled. The court found that in preparing an environmental impact report, Ventura County could assume that a mining operation outside Moorpark is generating 810 truck trips per day — the maximum number of truck trips that would be generate... A county considering the environmental impact of a proposal to expand a mine may use full-capacity operation of the existing facility as the environmental "baseline" even if the facility is operating at less than full capacity, the Second District Court of Appeal has ruled. The court found that in preparing an environmental impact report, Ventura County could assume that a mining operation outside Moorpark is generating 810 truck trips per day — the maximum number of truck trips that would be generated by the existing mine's peak operations. Environmentalists who challenged the expansion project argued that the county should use a lower number, because the 1976 EIR for the original mining operation assumed only 120 truck trips per day and actual operations have averaged approximately 400 truck trips per day in recent years. The court further concluded that because the project under consideration was merely the expansion of an existing use, it probably did not even require a full new EIR but rather merely a supplemental or tiered EIR. The appellate court also concluded that EIR's requirement for future analysis does not violate the so-called Sunstrom rule if the county determines that the project will create significant unmitigable impacts even after the future mitigation is determined, the appellate court ruled. The case began when Transit Mixed Concrete Co. applied for a conditional use permit to expand an existing sand mining operation in a rural area near Moorpark. The mine provides construction materials for use within the county. A previous CUP permitted Transit to operate the mine at a production level that correlates to the creation of 810 truck trips per day — though the CUP imposed no limit on the number of truck trips and the original EIR assumed that only about 120 truck trips per day would be generated. Although the site already contains plants to make concrete batch, road base, and mortar, Transit sought approval to construct an asphalt batch plant on site as well. The county issued a draft EIR in 1991 and spent the next five years circulating and revising it before certifying the EIR and approving the project, including the asphalt batch plant, in 1996. The EIR certification included a statement of overriding consideration because air, noise, and biological impacts were deemed significant and unmitigable. After approving the project, the county was sued by a citizen group, Fairview Neighbors, which contended that the asphalt batch plant was inconsistent with the county general plan and that the EIR was inadequate. Ventura County Superior Court Judge Roland N. Purnell denied Fairview's petition for a writ of mandate, and Fairview appealed to the Second District, Division Six. Fairview challenged the EIR by arguing, among other things, that the document should have been based on an existing setting reflecting the actual number of truck trips, not the theoretical maximum of 810. In the appellate panel's opinion, Justice Stephen Stone, who recently retired as presiding justice of Division Two, disagreed. Stone concluded that a new EIR probably was not even needed because this was the expansion of an existing facility. He also said it was arguable that the project was categorically exempt from CEQA for the same reason. He noted that, in one peak year, the mine had generated an average of 837 truck trips per day. Fairview argued that the document improperly subjected Transit to additional mitigation measures to be determined by a future study. Such requirements were struck down in the well-known case of Sunstrom v. County of Mendocino, 202 Cal.App.3d 296 (1988). The Sunstrom rule prohibits lead agencies from requiring unspecified mitigation based on future studies. The appellate court rejected Fairview's argument. The court ruled that a county may properly issue a statement of overriding considerations if there is no way to mitigate the impacts below a level of significance. The Second District also ruled that the construction of an asphalt batch plant in a rural area where the Ventura County general plan permits mining does not violate the general plan. And the appellate court affirmed a lower court ruling upholding the county's EIR against several other lines of attack. In the appellate panel's ruling, Stone distinguished the Transit situation from Sunstrom. In Sunstrom, the county had "deferred environmental assessment to a future date after approval of the project," Stone wrote. "That is not what occurred here. Here the EIR explains what the environmental impacts would be, and it concludes that the impacts would be significant and unmitigable regardless of the proposed mitigation measures or future studies. Under such circumstances, the board may adopt a statement of overriding considerations and approve the project." Fairview also challenged the EIR on the grounds that the air quality impacts were based on "illusory" traffic estimates and that the Board of Supervisors should have required mitigation for air quality impacts. Regarding the air quality impacts, the appellate court concluded that the county acted properly. Fairview argued that Transit should have been required to participate in any future assessment district designed to alleviate air pollution from truck traffic in the area. The appellate court accepted the county's conclusion that air quality impacts would have been significant and unmitigable even if such a requirement had been imposed. The court also concluded that the EIR adequately examined cumulative impacts. Fairview claimed that the cumulative impact section of the EIR simply stated the obvious point that more development will destroy resources, and argued that the EIR should have been more comprehensive and specific regarding cumulative impacts. The court ruled that the county had adequately analyzed cumulative impacts by writing "a separate, lengthy section of the EIR" supported by an eight-page appendix describing related projects and their impacts. Fairview contended that both the asphalt and cement manufacturing plants are inconsistent with the site's general plan designation. Under the general plan, most of the property is designated for open space with a mineral resource protection overlay that permits mining and "incidental" uses, such as crushing, batching, and recycling of concrete and asphalt. Fairview argued that under the county's general plan, manufacturing is permitted only in light or heavy industrial zones. But the Second District disagreed. The county general plan "provides some examples of permitted uses, including concrete manufacturing," Stone wrote. "On its face [the general plan] permits batching and concrete products manufacturing, provided on-site materials are used in the process." Stone noted that sand mined on-site constitutes 90% of the weight of the materials manufactured. The Case: Fairview Neighbors, v. County of Ventura, No. B120456, 99 Daily Journal D.A.R. 1805, 99 C.D.O.S. 1465 (issued January 28, 1999, with modifications ordered February 24, 1999). The Lawyers: For Fairview Neighbors: Kate Neiswender, (805) 639-0035. For Ventura County: Steven W. Weston, McClintock, Weston, Benshoof, Rochefort, Rubalcava & MacCuish, (213) 623-2322.