The environmental impact report for a proposed human waste composting facility in San Bernardino County has been rejected by the Fourth District Court of Appeal for failure to examine an alternative facility that would be enclosed rather than open-air, as proposed. In addition, the court ruled the county should have completed a water supply assessment for the project.
This appellate court's decision explores the meaning of "infeasibility" of alternatives under the California Environmental Quality Act (CEQA), as well as what constitutes a "project" under SB 610 (Water Code, § 10910 et seq.). In this case, the court found that the EIR for the proposed open-air composting facility did not satisfy the informational purposes of an EIR in relation to air quality alternatives and water supply.
Nursery Products LLC, the real party in interest, proposed to develop a composting facility on a 160-acre parcel in the Mojave Desert, outside of Barstow. The facility would have the capacity to handle approximately 400,000 tons of green plant material and "biosolids" from wastewater treatment plants annually. There are two residences within three miles of the Nursery Products site; otherwise, the closest residences are eight miles away in the town of Hinkley. The project was nonetheless challenged on multiple environmental and procedural fronts from by the Center for Biological Diversity and a group called Helphinkley.org at virtually every stage of San Bernardino County's administrative review process. The state Department of Health Services and the Mojave Water Agency also raised questions. Still, the San Bernardino County Board of Supervisors approved the project and certified the EIR in February 2007.
The Center for Biological Diversity and Helphinkley.org sued, and the trial court agreed with them on two issues: (1) the EIR failed to adequately analyze an alternative for an enclosed facility that would limit the dissipation of odors and pollutants from the site and further mitigate air quality impacts; and (2) the project required a water supply assessment pursuant to Water Code §§ 10910 through 10915 and CEQA. Nursery Products that decision.
The crux of the project opponents' argument relating to air quality was that the County of San Bernardino failed to analyze an alternative that could mitigate the air quality impacts of the proposed open-air composting facility, namely by making it an enclosed facility. The backdrop of petitioners' argument was the EIR's conclusion that "even after implementation of feasible mitigation measures, an open-air composting facility would have a significant adverse impact on air quality." Additionally, although the EIR failed to extensively analyze the alternative of an enclosed facility, the EIR acknowledged that an enclosed facility "is estimated to reduce VOC [volatile organic compounds] and ammonia emissions by 80%."
In spite of the potential reduction in emissions, the EIR found that the enclosed facility alternative was both economically and technologically infeasible. According to the appellate court, the EIR relied exclusively on a memorandum by Geoffrey Swett, an environmental consultant with Arcadis G&M, for its finding of economic infeasibility. The court ruled the EIR's reliance on the memorandum ill-founded for several reasons: (1) the memorandum discussed only one example – of an enclosed facility in Rancho Cucamonga – but provided no explanation as to why the proposed project would be similar to that example; (2) the Department of Health Services pointed to other examples of enclosed composting facilities that appeared to be working; and (3) the memorandum failed overall to provide facts to support its conclusory assertion that Nursery Products could not get private financing for the more expensive enclosed operation.
Quoting Uphold Our Heritage v. Town of Woodside, (2007) 147 Cal.App.4th 587, 599 (see CP&DR Legal Digest, March 2007 [http://www.cp-dr.com/articles/node-25]), Presiding Justice Judith McConnell wrote, "What is required [for a finding of economic infeasibility] is evidence that additional costs or lost profitability are sufficiently severe as to render it impractical to proceed with the project." For these reasons, the appellate court ruled that the record did not support the conclusion of economic infeasibility.
As to technological infeasibility, the EIR merely contained a statement that there is no electricity at the proposed site and no electric lines within one mile, and, therefore, an enclosed facility would be technologically infeasible. According to the court, this statement did not amount to substantial evidence supporting a finding of technological infeasibility. The court ruled that the EIR should have discussed the cost of bringing electricity to the site, not simply the fact that there was currently no electricity.
On the issue of water supply, the appellate court rejected Nursery Products' argument that, by failing to raise the specific issue of a water supply assessment under SB 610, the petitioners had not exhausted their administrative remedies. The court held that although the petitioners did not cite specific statutes, they adequately raised the issue, and they had asked about water supply and the project's water needs during the county's review process. The court held that they therefore had exhausted their administrative remedies.
Addressing the substantive issue of whether a water supply assessment (WSA) was necessary, the appellate court held that the composting facility qualified as a "project" under SB 610, and, therefore, a water supply assessment was required. Under § 10912 of the Water Code, a "project" requiring a WSA includes a "proposed industrial, manufacturing, or processing plant, or industrial park … occupying more than 40 acres of land." The appellate court found that the plain meaning of "processing plant" includes an open-air composting facility because the dictionary definition of "plant" includes "the land, as well as building, machinery and fixtures used in carrying out a trade or industrial business." Thus, the proposed composting facility, despite its rudimentary infrastructure (essentially a pile of waste), constituted a project under SB 610 and a WSA was required.
Nursery Products additionally argued that no WSA was necessary because the composting facility would not connect to a public water system. Nursery Products relied upon Gray v. County of Madera (2008) 167 Cal.App.4th 1099 (see CP&DR Legal Digest, January 2009 [http://www.cp-dr.com/articles/node-2222]), in which the court stated that a WSA is required only if a public water system is impacted. The Fourth District in this case disagreed with Gray's interpretation of the statute on the grounds that SB 610 specifically contemplates what occurs if a public water system is not impacted (see Water Code, § 10910(b)). According to the Fourth District, the only inquiry is whether the proposed development constitutes a "project" under §10912. Because the composting facility was a project, SB 610's requirements applied.
Center for Biological Diversity v. County of San Bernardino, No. D056648, 2010 DJDAR 7694. Filed May 25, 2010.
For Center for Biological Diversity: Helen Kang, Golden Gate University Environmental Law & Justice Clinic, (415) 442-6693.
For Nursery Products, LLC: Lisabeth Rothman, Brownstein, Hyatt, Farber, Schreck, (310) 500-4600.
Cori Badgley is an attorney with the firm of Abbott & Kinderman, LLP.