Pueblo Para El Aire et al. v.Kings County
Bd. of Supervisors
Filed
7/3/12 El Pueblo Para El Aire et al.
v.Kings County Bd. of Supervisors CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits
courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
FIFTH APPELLATE DISTRICT
EL PUEBLO PARA
EL AIRE Y AGUA LIMPIO et al.,
Plaintiffs and Appellants,
v.
KINGS COUNTY
BOARD OF SUPERVISORS,
Defendant and Respondent;
CHEMICAL WASTE
MANAGEMENT, INC.,
Real Party in Interest and Respondent.
F062297
(Super. Ct. No. 10C0017)
APPEAL
from a judgment of the Superior Court of
California
Rural Legal Assistance, Inc., Kara E. Brodfuehrer, Phoebe S. Seaton, Cynthia L.
Rice, Juan Carlos Cancino, Ron Kurlaender, Ilene J. Jacobs; Center on Race,
Poverty & the Environment, Ingrid Brostrom, Brent Newell and Alegria De La
Cruz for Plaintiffs and Appellants.
Relman
Dane & Colfax, D. Scott Chang and Reed N. Colfax as Amici Curiae on behalf
of Plaintiffs and Appellants.
Colleen
Carlson, County Counsel, Johannah L. Hartley, Deputy County Counsel; Hogan
Guiney Dick and Michael M. Hogan for Defendant and Respondent.
Remy,
Thomas, Moose & Manley, Remy Moose Manley, Andrea K. Leisy and Amanda R.
Berlin for Real Party in Interest and Respondent.
-ooOoo-
INTRODUCTION
Following
approval of a project to expand an existing hazardous waste disposal facility
located in Kings
County (County), plaintiffs/petitioners and appellants Greenaction for
Health and Environmental Justice (Greenaction) and El Pueblo Para El Aire y
Agua Limpio (Pueblo) (collectively appellants) filed a petition for writ of
mandate and complaint alleging violations of the
(CEQA)
title="">[1] and civil rights causes of
action (Gov. Code, §§ 11135, 12955, 65008). The trial court sustained demurrers to the
civil rights causes of action and rejected the claims of CEQA
noncompliance. This appeal followed.
Appellants argue
the demurrers should have been overruled and the environmental impact report
(EIR) that was certified for the project did not adequately analyze the
project’s health, transportation and cumulative impacts. We conclude: (1) the demurrers to the civil
rights causes of action were properly sustained without leave to amend; (2) the
health impacts arguments are meritless; and (3) administrative remedies were
not exhausted on the transportation and cumulative impacts claims. The judgment will be affirmed.
FACTUAL OVERVIEW AND PROCEDURAL BACKGROUND
In 1979, real party in interest Chemical Waste Management, Inc.
(CWMI) purchased and began operating the Kettleman Hills Facility (KHF), which
is one of two currently active permitted hazardous waste disposal facilities in
California.
title="">[3] The KHF is located in a
rural western portion of the County, approximately 3.5 miles southwest of
Kettleman City (KC), 6.5 miles southeast of Avenal, 2.5 miles west of
Interstate 5 and one mile from Highway 41.
The
closest residence is located approximately 2.5 miles away from the KHF boundary
and there are no other permanent residences within 3.5 miles. “The closest sensitive receptors (schools,
hospitals, daycare centers, or eldercare facilities) are in [KC] approximately
6 kilometers (3.7 miles) from the [KHF boundary].â€
In 1985, the Kings County Board of Supervisors (Board of
Supervisors) approved expansion of the KHF site from 1,280 to 1,600 acres,
construction of three landfills (designated as B-17, B-18 and B-19) and
operation of additional hazardous waste treatment and disposal facilities (the
1985 project). The 1985 project
permitted a total of 474 acres within the site to be used for operations to
treat, store and dispose of hazardous waste and municipal solid waste. An EIR was prepared and certified for the
1985 project. Subsequent EIR’s were
prepared and certified for separate projects in 2005 and 2006 to permit the
B-19 landfill to operate as a class II/III landfill, with a portion being a
bioreactor, and to permit the B-17 landfill to operate as a class II/III
landfill.
title="">[4]
The B-18
landfill is scheduled to reach capacity in 2018. On July 12, 2005, CWMI filed an application
for a conditional use permit (CUP) for a project to increase KHF’s capacity by
vertically and laterally expanding the existing B-18 landfill and constructing
and operating a new class I/II hazardous waste disposal landfill, to be known
as the B-20 landfill (the project). The
project would enlarge the permitted landfill operations area within the
existing KHF site by 221.5 acres, bringing the total operations area to 695.5
acres. The B-20 landfill would begin
operating as the B-18 landfill reached its design capacity; the two landfills
might operate concurrently for a limited period of time. The B-20 landfill is anticipated to reach its
potential permitted capacity in 2042.
Types of hazardous waste that are currently prohibited would continue to
be prohibited. The project did not
require a zoning variance, rezoning or general plan amendment.
In
2004, the Kings County Community Development Agency (Agency) prepared and
circulated a notice of preparation (NOP) of a draft subsequent environmental
impact report (DSEIR) and initial study.
A notice of project modification, revised NOP and initial study were
prepared and circulated the following year.
The DSEIR was released in March 2008 and circulated for a 45-day public
review and comment period. The project
description was revised in May 2008 and recirculated. In response to comments received by the
Agency, portions of the DSEIR were revised in May 2009 to provide new
information concerning the potential impacts of the project on traffic and
water supply and circulated for public review and comment. The Agency held public meetings in 2008 and
2009 to receive comments on the DSEIR and recirculated portions of the DSEIR.
The
final subsequent environmental impact report (FSEIR) was compiled and notice of
availability was published on September 18, 2009.
following significant adverse environmental effects which can be mitigated below
significance: “cumulative health related
impacts from [KHF operation] emissions at a distance of 2,000 feet or more from
the KHF property boundary; direct and indirect effects to San Joaquin kit fox,
blunt nosed leopard lizard, loggerhead shrike, and the American badger; and
cultural and archaeological resources.â€
The FSEIR identified the following significant and unavoidable adverse
environmental effects: “cumulative periodic
air quality emissions (PM10, 2.5, ROG/NOx); cumulative air quality emissions
from long-term operations (PM10, 2.5, ROG/NOx); cumulative greenhouse gas
emissions; cumulative traffic impacts due, mainly, to the County’s inability to
control improvements within the jurisdiction of Caltrans; and cumulative
additional lifetime cancer risk, under a hypothetical worst case scenario, at
the KHF property boundary.â€
The Kings County
Planning Commission (Planning Commission) conducted a public hearing on the
FSEIR, after which it voted on October 19, 2009, to adopt resolutions
certifying the FSEIR and approving CUP 05-10 for the project.
Appellants
participated in the CEQA process prior to approval of the project and they
appealed the Planning Commission’s decision to the Board of Supervisors. After conducting a public hearing, the Board
of Supervisors voted on December 22, 2009, to adopt resolutions upholding the
decision of the Planning Commission, and adopting resolutions approving CUP
05-10 and certifying the FSEIR together with findings of fact, a statement of
overriding consideration and a mitigation monitoring plan (Resolution Nos.
09-12 and 09-13).
Separate
and apart from the CEQA process, the project was subject to the requirements of
the Tanner Act (codified at Health & Saf. Code, § 25199 et seq.), which
requires counties to prepare hazardous waste management plans as part of the
conditional use permit process. On
September 13, 2005, the Board of Supervisors approved formation of a local
assessment committee (LAC) for the project.
The LAC conducted 25 public meetings to solicit community input
concerning measures to protect public health and safety and to identify
benefits and remuneration CWMI could provide to the County as compensation for
the local costs associated with KHF operations.
On March 19, 2009, the LAC and CWMI reached a negotiated agreement
concerning the terms and conditions under which the project may be acceptable
to the community. In relevant part, CWMI
agreed to provide $100,000 to fund a community health survey of KC residents. On April 21, 2009, the Board of Supervisors
received the LAC’s final report and recommendation (final report), which
incorporated the negotiated agreement.
The Board of Supervisors accepted the recommendations of the LAC and the
final report was incorporated as an exhibit to the resolution approving the
CUP.
Appellants
filed their initial pleading naming the Board of Supervisors as the sole
defendant on January 21, 2010. On
February 19, 2010, they filed a verified first amended petition for writ of
mandate and complaint for declaratory and injunctive relief alleging eight
causes of action (first petition).
Causes of action one through four alleged violations of CEQA and causes
of action five through eight alleged violations of Government Code
CWMI
demurred to the fifth through eighth causes of action. After hearing, the demurrer was sustained as
to the three causes of action pled under section 11135 without leave to amend
(fifth, sixth and seventh causes of action) and sustained as to the cause of
action pled under section 12955 with leave to amend (eighth cause of action).
Appellants
filed a second amended pleading (second petition) on July 22, 2010, that
realleged the four CEQA causes of action (first through fourth causes of
action), amended the cause of action pled under section 12955 (fifth cause of
action) and alleged two new causes of action alleging violation of section
65008 (sixth and seventh causes of action).
CWMI filed a
demurrer and motion to strike the fifth through seventh causes of action; the
Board of Supervisors joined in this motion.
After hearing, the court sustained the demurrer without leave to amend.
Hearing
on the CEQA causes of action was held on November 22, 2010, after which the
matter was taken under submission. A
written order denying the petition for writ of mandate was filed on January 3,
2011, and judgment was entered in favor of the Board of Supervisors and CWMI on
January 25, 2011. Appellants filed a timely
notice of appeal on March 16, 2011, challenging the orders sustaining the
demurrers to the civil rights causes of actions contained in the first and
second amended petitions and the judgment denying the petition for writ of
mandate.
DISCUSSION
NONCOMPLIANCE ARE NOT PERSUASIVE
Appellants argue the
FSEIR is deficient in three respects.
They contend health-related impacts were not adequately analyzed, the
daily truck traffic baseline was inflated and the cumulative impacts analysis
did not list and analyze all operations at KHF as related projects. In a
thorough and carefully reasoned decision, the trial court decided all of these
issues in the Board of Supervisors’ favor.
It rejected appellants’ challenge to the adequacy of the FSEIR’s study
of health impacts for several reasons: (1) appellants did not set forth the evidence favorable to the
Board of Supervisors; (2) comments concerning a
health survey Greenaction conducted did not contain significant new
information; (3) the FSEIR contains adequate analysis
and study of health impacts; and (4) CWCI’s agreement to fund a health survey
was adopted pursuant to the Tanner Act and was not a substitute for full
analysis during the CEQA process of the potential health impacts of the project. The trial court determined, inter alia, that
administrative remedies were not exhausted on the truck traffic baseline and
the cumulative impacts claims. After
conducting the requisite independent review of the
conclusions. (Communities for a Better Environment v. City of Richmond (2010) 184
Cal.App.4th 70, 80 [“In reviewing compliance with CEQA, we review the agency’s
action, not the trial court’s decisionâ€].)
remedies.
Only a proper
party can bring a CEQA action. To have
standing to maintain a legal proceeding
alleging violation of CEQA, the petitioner must have “objected to the approval
of the project orally or in writing during the public comment period provided
by this division or prior to the close of the public hearing on the project
before the filing of the notice of determination .…†(Pub. Resources Code, § 21177, subd.
(b).)
There exists a
second hurdle petitioners must surmount before a claimed defect in CEQA
compliance can be considered by the courts.
With certain exceptions not shown to be relevant here, a petitioner who
possesses standing to sue may allege as grounds of CEQA noncompliance only
those objections to the proposed project that “were presented to the public
agency orally or in writing by any person during the public comment period
provided by this division or prior to the close of the public hearing on the
project before the issuance of the notice of determination.†(Pub. Resources Code, § 21177, subd.
(a); Porterville Citizens for Responsible
Hillside Development v. City of Porterville (2007) 157 Cal.App.4th 885, 909
(Porterville).) This limitation is known as exhaustion of
administrative remedies. Exhaustion is
not a matter of judicial discretion; it is a mandatory statutory prerequisite
that must be satisfied before an alleged violation of CEQA can be considered in
a legal proceeding. (
Placer (2000) 81 Cal.App.4th 577, 589 (Tahoe);
see also Bakersfield Citizens for Local
Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184, 1199 (
“The exhaustion
doctrine … operates as a defense to litigation commenced by persons who have
been aggrieved by action taken in an administrative proceeding which has in
fact occurred but who have failed to ‘exhaust’ the remedy available to them in
the course of the proceeding itself.†(
Amador (1988) 200 Cal.App.3d 337, 340-341.) It ensures the public agency has an
“opportunity to receive and respond to articulated factual issues and legal
theories before its actions are
subjected to judicial review.†(
Fullerton (1984) 153 Cal.App.3d 1194, 1198.) Our Supreme Court has explained why the
exhaustion doctrine is viewed with favor:
“‘There are several reasons for the
exhaustion of remedies doctrine. “The
basic purpose for the exhaustion doctrine is to lighten the burden of
overworked courts in cases where administrative remedies are available and are
as likely as the judicial remedy to provide the wanted relief.†[Citation.]
Even where the administrative remedy may not resolve all issues or
provide the precise relief requested by a plaintiff, the exhaustion doctrine is
still viewed with favor “because it facilitates the development of a complete
record that draws on administrative expertise and promotes judicial
efficiency.†[Citation.] It can serve as a preliminary administrative
sifting process [citation], unearthing the relevant evidence and providing a
record which the court may review.
[Citation.]’ [Citation.]†(Sierra
Club v. San Joaquin Local Agency Formation Com. (1999) 21 Cal.4th 489,
501.)
To satisfy the
exhaustion of administrative remedies requirement, the petitioner bears the
burden of affirmatively proving that each alleged ground of CEQA noncompliance
was presented to the agency “prior to the close of the public hearing on the
project before the issuance of the notice of determination.†(Pub. Resources Code, § 21177, subd.
(a); Porterville, supra, 157
Cal.App.4th at p. 909; Sierra Club v.
City of Orange (2008) 163 Cal.App.4th 523, 536.) While the petitioner “need not have
the exact issue raised in the lawsuit must have been presented to the
administrative agency so that it will have an opportunity to act and render the
litigation unnecessary.†(
Formation Com. (1987) 191 Cal.App.3d 886, 894.) “‘[O]bjections must be sufficiently specific
so that the agency has the opportunity to evaluate and respond to them. Otherwise, the purpose of the exhaustion
doctrine would not be served, since the courts would be called upon to step
outside their limited role of reviewing the decisionmaking process of the
administrative agency ….’
[Citation.]†(
Community Preservation Group v. City of San Diego (2006) 139 Cal.App.4th
249, 282 (Banker’s Hill).) “‘General objections to project approval or
general references to environmental issues are not sufficient.’ [Citations.]â€
(Porterville, supra, 157
Cal.App.4th at p. 910.)
“An appellate
court employs a de novo standard of review when determining whether the
exhaustion of administrative remedies doctrine applies.†(Sierra
Club v. City of Orange, supra, 163 Cal.App.4th at p. 536;
(2006) 144 Cal.App.4th 865, 873.)
applicable to claims of CEQA noncompliance.
Once it has been
determined that the petitioner possesses standing to bring a CEQA action and
that administrative remedies were exhausted on the issue, the court must then
decide the applicable standard of review.
Our role in a CEQA proceeding, as in other mandamus cases, is the same
as the trial court’s role: “The
appellate court review’s the agency’s action, not the trial court’s decision;
in that sense appellate judicial review under CEQA is de novo. [Citations.]
We therefore resolve the substantive CEQA issues … by independently
determining whether the administrative record demonstrates any legal error by
the County and whether it contains substantial evidence to support the County’s
factual determinations.†(
Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 427 (
In reviewing an
agency’s decision under CEQA, the court must decide if the agency prejudicially
abused its discretion. “Abuse of
discretion is established if the agency has not proceeded in a manner required
by law or if the determination is not supported by substantial evidence.†(Dry
Creek Citizens Coalition v. County of Tulare (1999) 70 Cal.App.4th 20, 26 (
§ 21168.5) “A court’s proper role
in reviewing a challenged EIR is not to determine whether the EIR’s ultimate
conclusions are correct but only whether they are supported by substantial evidence
in the record and whether the EIR is sufficient as an information
document. [Citation.]†(Association
of Irritated Residents v. County of Madera (2003) 107 Cal.App.4th 1383,
1391 (Irritated Residents).)
“Judicial review of these two types of
error differs significantly: While we
determine de novo whether the agency has employed the correct procedures,
‘scrupulously enforc[ing] all legislatively mandated CEQA requirements’
[citation], we accord greater deference to the agency’s substantive factual
conclusions. In reviewing for
substantial evidence, the reviewing court ‘may not set aside an agency’s
approval of an EIR on the ground that an opposite conclusion would have been
equally or more reasonable,’ for, on factual questions, our task ‘is not to
weigh conflicting evidence and determine who has the better argument.’ [Citation.]â€
(Vineyard, supra, 40 Cal.4th
at p. 435.)
“CEQA requires
an EIR to reflect a good faith effort at full disclosure; it does not mandate
perfection, nor does it require an analysis to be exhaustive. ([CEQA] Guidelines, § 15151.)†(Dry
Creek, supra, 70 Cal.App.4th at p. 26.)
“[T]he reviewing court focuses on adequacy, completeness and a good
faith effort at full disclosure.†(
Cal.App.4th at p. 1390.) An EIR must
contain facts and analysis, not just the bare conclusions of the agency. The adequacy of an analysis of environmental
effects will be judged in light of what was reasonably feasible. (Ibid.) There must be “a sufficient degree of analysis
to provide decisionmakers with information which enables them to make a
decision which intelligently takes account of environmental consequences.†(CEQA Guidelines, § 15151.)
“When the
specific claim of legal error concerns an omission of required information from
the EIR, the plaintiff must demonstrate that (1) the EIR did not contain
information required by law and (2) the omission precluded informed
decisionmaking by the lead agency or informed participation by the public. [Citation.]
These two elements constitute an abuse of discretion and prejudice,
respectively, and together form reversible error.†(Madera
Oversight Coalition, Inc. v. County of Madera (2011) 199 Cal.App.4th 48,
76-77.) There is no presumption that an
omission is prejudicial. (Pub. Resources
Code, § 21005, subd. (b); Al Larson
Boat Shop, Inc. v. Board of Harbor Commissioners (1993) 18 Cal.App.4th 729,
748 (Boat Shop).) “Failure to comply with the information
disclosure requirements constitutes a prejudicial abuse of discretion when the
omission of relevant information has precluded informed decisionmaking and
informed public participation, regardless whether a different outcome would
have resulted if the public agency had complied with the disclosure
requirements.†(BCLC, supra, 124 Cal.App.4th at p. 1198.)
Conclusions,
determinations and factual findings must be supported by substantial evidence
in the administrative record. (
1198.) The substantial evidence standard
“also applies to challenges to the scope of an EIR’s analysis of a topic, the
methodology used for studying an impact and the reliability or accuracy of the
data upon which the EIR relied because these types of challenges involve
factual questions.†(
Substantial evidence is defined as “enough relevant information and
reasonable inferences from this information that a fair argument can be made to
support a conclusion, even though other conclusions might also be
reached.†(CEQA Guidelines, § 15384,
subd. (a).) “Disagreement among experts
does not constitute grounds for overturning an EIR.†(Cadiz,
supra, 83 Cal.App.4th 74, 97.) The
petitioner bears the burden of proving that there is not sufficient evidence in
the record to justify the respondent’s action.
(Citizens for a Megaplex-Free
Alameda v. City of Alameda (2007) 149 Cal.App.4th 91, 112-113 (
II. Challenges
to the Adequacy of the FSEIR’s Analysis of Health-Related Impacts are
Meritless.
Facts.
i. DSEIR, Comments & Responses.
To assess whether the
project could create carcinogenic, chronic or acute health hazards the Agency
conducted a multi-pathway health risk assessment (the HRA) and analyzed ambient
air samples. The HRA used a California
Environmental Protection Agency (CALEPA) software program titled the “Hotspots
Analysis and Report Program†(HARP), “which was developed by CALEPA’s Office of
Environmental Health Hazard Assessment to ensure consistency in the statewide
risk assessment process.†The San
Joaquin Valley Air Pollution Control District (Valley Air District) recommends
use of HARP because it “allows for the inclusion of multiple exposure pathways
such as dermal exposure, home-grown produce, soil ingestion, and mother’s milk,
rather than just inhalation.†“HARP
includes a dispersion modeling module and a risk calculation module to create a
comprehensive risk calculation tool.†To
ensure that chronic and acute risks were not underestimated, each pollutant
source was included in the HARP risk analysis at its maximum emission rate
based on the worst-case emission scenarios for construction and
waste-placement. Other
“health-protective assumptions†were made in the HARP risk analysis. For example, it was assumed that a hypothetical
resident would live at the property boundary for 24 hours per day/350 days per
year for 70 years, even though there is no residential land use within 3 miles
of KHF. The HRA results found “[a]ll of
the risk assessment results at the nearest residential location and in [KC]
were at least 30 times lower than the CALEPA and [Valley Air District]
targets.†“[A]cute and chronic risks are
well below the acceptable levels at all receptors including at the [KHF
boundary]. The 70 year cancer risk is
greater than the 10 in a million threshold at some receptors within the
2,000-foot development buffer. However,
the cumulative cancer risks are less than the allowable threshold at all
receptors, including the nearest resident and sensitive receptor, beyond the
2,000-foot development buffer.†“The
risks that were calculated in nearby residential areas would not be of concern
to public health because they were much lower than the [Valley Air District]
target risk level.†The HRA was peer
reviewed by CPF Associates, Inc. and Golder Associates, Inc. They are independent
scientific and engineering consulting firms who possess “expertise in
performing health evaluations for a variety of waste management technologies,
including landfills.â€
The ambient air
analysis is a separate investigative tool that allows “for the calculation of
health risks from existing operations at the location of the downwind
monitors.†The ambient air analysis was
conducted in conjunction with the California Department of Toxic Substances
Control (DTSC). Three ambient monitors
were placed at locations near the KHF boundary to sample concentrations of
toxic air contaminants in the ambient air “in accordance with a workplan
developed in conjunction with DTSC and the California Air Resources
Board.†This allowed for the calculation
of health risks from existing operations.
The results of the ambient air monitoring found that “the cancer health
risk based on actual ambient air monitoring is significantly less than the
modeled cancer health risk in the [HRA].â€
“When compared to the health risk predicted using emission estimates and
modeled concentrations, this can serve as quality assurance that the HARP risk
calculations are conservative estimates of risk.… [¶]… The cancer risk calculated during HARP
is significantly higher than that calculated from the monitored concentrations. This indicates that the HARP model is giving
conservatively high results.â€
Based on the results
of the HRA and the ambient air analysis, the DSEIR concluded that the project
would result in a less than significant health risk for “cancer and noncancerâ€
at the KHF boundary and at a distance of 2,000 feet from the KHF boundary.
Appellants and Center
for Race, Poverty and the Environment (CRPE) and Kids Protecting Our Planet
(Kids) submitted a joint letter opposing CUP Permit No. 05-10. In relevant part, they commented that “[o]ne
of the key flaws†in the DSEIR’s health impacts assessment was that “no health
survey has ever been conducted in [KC] despite strong anecdotal evidence of
increased health problems among residents in the last few years.†CRPE also submitted a separate comment letter
on the DSEIR on behalf of itself and appellants. In relevant part, it stated that County did
not have “sufficient information to judge potential cumulative health impacts
from expanding the facility†because it “failed to conduct any research to
determine whether or not residents have already experienced health effects from
living near [KHF].†County should have
conducted a health survey, asked nearby residents to be tested for chemical
exposures or talked to them “about health concerns or possible disproportionate
health impacts.â€
The responses stated
that anecdotal evidence is not a reliable basis for determining if KHF
operations cause health problems in KC residents, as follows:
“… The commenter claims that such a
survey should have been conducted based on anecdotal evidence of increased
health problems among residents.
Anecdotal evidence, however, is not a reliable basis for concluding the
cause of the residents’ health problems is the KHF operations. Anecdotal evidence is evidence obtained
informally from isolated observations rather than from systematic
investigation, is seldom collected with sufficient care or reported in
sufficient detail to be trusted as a basis for generalization. Such evidence can be appropriately used to
justify empirically verifiable claims; however, anecdotal evidence is not
reliable for backing sweeping claims about a wide class of things, like
people’s health, which are the sort of claims usually examined by science. This is especially true for the health issues
claimed by residents of [KC] who reside in an agricultural community located
next to two highways. Either of those
two factors have the potential to cause to contribute to negative health
effects exhibited by residents.â€
The responses also
stated that based on the results of the HRA, “no further study is warrantedâ€
regardless of anecdotal reports of health problems in KC residents. In addition, “neither CEQA nor CEQA case law
requires an agency to conduct a door to door health survey in connection with
analyzing air quality impacts of a proposed project.†Also, the HRA results “showed that the health
risks from the proposed [p]roject and from the combination of the proposed
[p]roject and the onsite cumulative projects are less than the lifetime cancer
health risk threshold criteria of 10 in one million.†Because the scientific analyses conducted as
part of the DSEIR showed that the project, individually and in conjunction with
existing KHF operations, will not result in “a significant impact to the [KC]
community, the County lacks a nexus to require the applicant to prepare
additional health surveys or tests†of all KC and Avenal residents.
The commenters were
referred to appendix C of the FSEIR because it “addresses most, if not all, of
the concerns†regarding the project’s health risks. Appendix C is the “DRAFT Refined
Environmental Justice Assessment In support of the US EPA Region 9 PCB Permit
Decision for … [KHF] (February 2007)†(EJA).
The EJA was prepared by the United States Environmental Protection
Agency Region 9 (EPA) as part of its review of CWMI’s application to continue
to store and dispose of polychlorinated biphenyls (PCBs) at the KHF. The EJA “studied 30 environmental, community
health, economic and social indicators in [KC] and Avenal†in order to evaluate
“the environmental, health, economic and social issues in a community, with a
focus on the impacts [KHF] will have on the local community.†The EJA considered 19 different environmental
indicators including air toxics, air quality and drinking water quality. It found that the KHF did not cause a
potentially adverse impact in any of these areas. The EJA “found no case where KHF causes a
potential adverse impact to the community.
Thus, based on the indicators analyzed in this Draft EJ Assessment, US
EPA has not found evidence that the communities of [KC] and Avenal experience
adverse impacts from KHF.â€
The section of the EJA
entitled “Community Health†explains that “information on access to health
care, vital statistics, cancer, asthma, low birth weight, elevated blood lead
levels and birth defects for the communities of [KC] and Avenal†was
obtained. KC and Avenal have populations
that are largely Hispanic and poor and both communities are designated as
medically underserved areas.
name="_ftnref7" title="">[7] “[T]he poor have worse health than other
population groups, based on indicators including the following: shorter life
expectancy; higher cancer rates; more birth defects; greater infant mortality;
and higher incidence of asthma, diabetes, and cardiovascular disease. The ways in which poverty creates these
health disparities is not well understood.
Some racial groups can have a higher incidence of some heath problems,
such as asthma.†The EJA found that it
could not develop a conclusion about whether these health impacts are
disproportionately high because the small size of these communities makes
detecting statistically significant increases or decreases in disease rates
difficult and for many data sources, only county level data is available.
With respect to birth
defects, the EJA found that KC and Avenal are “too small to be able to see a
statistically significant difference between observed cases and expected
cases.†A cluster investigation would
not be able to detect an association between a mild teratogen and the
occurrence of a birth defect unless it evaluated hundreds or even thousands of
pregnancies.
The EJA discussed an
investigation conducted by the California Birth Defects Monitoring Program
(CBDMP) concerning a spike in neural tube defects among infants born during
1992-1993 in the Buttonwillow community (the Buttonwillow Study).
“[t]here was no evidence linking the cases to hazardous waste site or to the trucking
of hazardous waste to the site. Overall
birth defects data from 1987 to 1991 suggest no long term birth defects
problems in Buttonwillow.â€
ii. Comments on Greenaction’s Health Survey and
Responses.
On July 8, 2009, the
Fresno Bee newspaper published an article reporting that Bradley Angel, who is
the executive director of Greenaction, said that his group conducted a health
survey of an unspecified number of KC residents (Greenaction’s health
survey). Angel said the results showed a
number of infants had been born with birth defects.
A few days later,
appellants, CRPE and Kids jointly submitted a comment letter on recirculated
portions of the DSEIR. This letter
stated information requiring investigation had been discovered in the responses
to Greenaction’s health survey: “It has
now been confirmed that at least four, and apparently five, infants were born
in [KC] between September 2007 and November 2008 with birth defects. At least four of the infants were born with
cleft palate, and at least one also was born with brain defects. Three of these five infants passed away
during their infancy.†The letter
asserted this is “significant new information that must be evaluated in a DSEIR
and its reality [sic] health and
environmental impact analysis.â€
On August 5, 2009,
County mailed Greenaction a letter which stated that to “provide a complete and
meaningful response to your concerns, it needs to consider all available
information concerning the birth defects to which you refer.†Therefore, it asked Greenaction for copies of
the health survey forms it collected. In
response, Greenaction gave County a blank copy of the health survey form. It did not give County any completed survey
forms or provide County with a compilation of redacted survey responses. Greenaction did not provide any information
concerning survey methodology, the number of survey participants or their ages,
genders or occupations. Greenaction gave
the names and vital statistics of four infants it wrote were born with cleft
palates “and at least two had brain defects and two had heart problems.†Greenaction wrote that the parents of these
infants had testified at a “Listening Session†held on August 12, 2009, and
that the parents reported to it that they did not use illegal drugs, drink “a
lot of alcohol,†and that the mothers did not perform fieldwork during their
pregnancies. Greenaction also wrote that
“[r]esidents estimate that approximately twenty infants were born in this time
period.â€
County contacted the
Kings County Health Department and ascertained that it had not been provided
with any information derived from Greenaction’s health survey.
On October 5, 2009,
appellants and Kids submitted a joint comment letter on the recirculated
portions of the DSEIR. In relevant part,
the letter asserts that “Kings County officials are actively involved in a
cover-up of the birth defect and infant mortality cluster.â€
repeated the same information about birth defects among KC infants. Studies and literature concerning birth
defects, landfills and chemical exposure were submitted.
The response to these
comment letters states that Greenaction’s health survey did not reveal
significant new information because Greenaction expressed similar concerns
about health conditions in KC residents in its comment letter on the
DSEIR. Information contained in the
responses to Greenaction’s health survey did not reveal a new significant
adverse impact caused by the project or an increase in the severity of a
previously identified adverse impact because there is no evidence linking
existing KHF operations or the project to the new birth defect and infant
mortality information. The response then
set forth evidence supporting the determination that the project will not
result in any direct or indirect adverse impacts to human health, including
pregnant mothers living in KC or other surrounding areas.
Citing several
research studies (attached as appendices to the FSEIR), the response explained
that “Cleft palate may be caused by genetic and environmental factors, although
the exact relationships are not clearly understood.†A baby may be at higher risk for being born
with a cleft palate if the mother is a teenager or older than 35, is
malnourished, does not have prenatal care, uses certain medications, takes
illegal drugs, smokes or drinks while pregnant or is exposed to radiation,
infection or pesticide. The response
discussed a 2006 research study examining the association between oral clefts
and mothers living in proximity to waste sites in Texas (the Texas Study). The Texas Study found that women who lived
within one mile of a waste site were not more likely to have offspring with
oral clefts, when compared with women who lived farther away. Then the response explained that the
Buttonwillow Study found no evidence linking the birth defects to the hazardous
waste disposal facility.
The response also
explained that the small size of KC and Avenal communities makes detecting
statistically significant increases or decreases in birth defects
difficult. During preparation of the
EJA, the director of the CBDMP “expressed their concern that the number of
births in [KC] are so small that it is difficult to conduct an effective study
of birth defects.†Further, the HRA and
ambient monitoring data indicates that emissions from the proposed project are
lower than the CALEPA and Valley Air criteria at 2,000 feet from the KHF
boundary. California Birth Defects
Registry states approximately 3 percent of babies in California will be born
with a birth defect. Yet, out of a total
of 337 births in KC between 1998 and 2005 only one infant with a birth defect
was reported and the birth defect rate in KC of 2.97 per 1,000 births is one of
the lowest in the County. The response
concluded that because the analysis in the FSEIR is supported by substantial
evidence, CEQA does not require the County to conduct further studies.
A staff report prepared for the October 19, 2009, meeting of the
Planning Commission analyzed the literature and studies concerning birth
defects that were submitted by commenters.
The staff report concluded that “the additional materials submitted by
CRPE are consistent with the findings and conclusions of the [DSEIR] that the
available research does not show an elevated risk of oral cleft birth defects
for women living 3.5 miles away from a regulated hazardous waste disposal
site.†One of the research studies
analyzed over 1 million births to women living near a Superfund site (the
Superfund Study). The Superfund Study
concluded that women who lived within one-quarter of a mile of a Superfund site
during the first three months of pregnancy had an elevated risk of having
children with heart and neural tube defects but cleft lip and cleft palates did
not occur any more frequently than expected.
The Superfund Study determined that women who lived farther than
one-quarter mile from the site were not at elevated risk of any birth defects. The staff report stated that the “other
materials submitted by CRPE include reports of studies which attempt to
establish a link between environmental conditions in general and birth defects
like cleft lips and cleft palates.
However, these studies acknowledge that their results are
contradictory.â€
iii. Testimony and additional materials before the
Board of Supervisors.
Additional research
studies and publications concerning birth defects and hazardous waste disposal
facilities were submitted to the Board of Supervisors. These included an April 1999 publication by
the CBDMP titled “Investigating Birth
Defects Clusters: A Systematic Approach,†which emphasized that in order for a
teratogen to cause structural defects “[t]here must be a verifiable route by
which the pregnancy was exposed.†A paper
titled “Discussion of Epidemiological Literature Related to Reproductive Health
and Landfills†summarized recent literature related to reproductive health and
landfills. It concluded: “Overall the
studies do not provide convincing evidence for an association between living near
landfills and reproductive health effects.
In general, available studies on the health effects of landfills
indicate … a modern landfill [that is properly managed] … will not be of
concern to public health, including the health of pregnant women and babies.†(Italics omitted.) This paper also stated that single-site
studies of a specific landfill “often have very limited statistical power due
to low population in the landfill area; this means these types of studies
generally do not provide insight into the potential for health effects. Unless a landfill site is located in a
densely populated area, with a large population of residences within about 2-3
km from the facility, a single-site study is unlikely to be able to provide
useful information about health effects potentially associated with a
landfill.â€
Phillip Ross and Bill
Brown testified at the hearing before the Board of Supervisors. Ross is a hydrogeologist who has worked on
groundwater investigations at KHF since 2002.
He testified that the groundwater at the KHF site is isolated from
regional groundwater supplies and will not impact drinking water sources for
KC. The geologic and hydrogeological
data for the KHF site has been collected over a 30 year period and conditions
are well understood. Groundwater samples
are collected from 40 wells and tested four times annually. Brown is a registered engineer and
environmental air quality consultant who worked at KHF for the past 15
years. He testified that the ambient air
monitoring program began in fall 2006 and preliminary results do not show any
evidence of a significant health risk caused by KHF operations. Several female employees testified that they
worked at KHF during their pregnancies and gave birth to healthy infants.
The CEQA findings of
fact found that the project would not have significant adverse health-related
impacts. Also, it found that “requests
for additional studies went beyond the duty to consider the potentially
significant adverse impacts of the project to the physical environment, County
staff determined that additional analysis was not warranted under CEQA.… [¶]
Moreover, where County staff determined that substantial evidence
already exists to support the conclusions of the [FSEIR], staff chose not to
undertake additional analysis.â€
B.
The substantial
evidence standard of review is applied to challenges concerning the scope of
the FSEIR’s analysis of health impacts and to challenges concerning findings
that the project would not have adverse health impacts.
Appellants challenge
the adequacy of the FSEIR’s study of the project’s potential to cause adverse
health-related impacts. They argue that
once County was notified of Greenaction’s health survey, it was obligated to
investigate and conduct a study to determine if existing KHF operations caused
the reported birth defects and assess whether the project would “exacerbateâ€
birth defects among the KC residents, even if “the defects were caused by other
factors.†Appellants also argue that
information derived from Greenaction’s health survey “reflects a different
environmental setting than that analyzed in the [FSEIR] and thus qualifies as
significant new information requiring recirculation.†In appellants’ view, all of these claims should
be reviewed under the less deferential standard of “failure to proceed as
required by law.†The Board of Supervisors disagrees,
arguing that these points are, in actuality, a challenge to the sufficiency of
the evidence supporting the factual finding that the project will not have any
adverse health impacts.
Santa Monica Baykeeper v. City of Malibu (2011) 193 Cal.App.4th 1538 (Baykeeper)
resolved this dispute in the Board of Supervisors’ favor. In
the appellant’s assertion “that de novo review is appropriate since City did
not proceed as required by law because the EIR failed to adequately analyze
impacts.†(Id. at p. 1546.) It
explained:
“Baykeeper’s
argument regarding the standard of review is too simplistic. The court in California Native Plant Society v. City of Santa Cruz (2009) 177
Cal.App.4th 957, 986 … explained: ‘An
EIR will be found legally inadequate—and subject to independent review for
procedural error—where it omits information that is both required by CEQA and
necessary to informed discussion.’ But
CEQA challenges concerning the amount or type of information contained in the
EIR, the scope of the analysis, or the choice of methodology are factual
determinations reviewed for substantial evidence. [Citations.]
Put another way, ‘[w]e apply the substantial evidence test to
conclusions, findings, and determinations, and to challenges to the scope of an
EIR’s analysis of a topic, the methodology used for studying an impact, and the
reliability or accuracy of the data upon which the EIR relied because these
types of challenges involve factual questions.’
[Citation.]†(
1546.)
Appellants’
arguments concerning the scope of the FSEIR’s analysis of the project’s
potential to cause birth defects amount to an objection to the scope and
methodology used to analyze health impacts, and a challenge to the adequacy of
the evidence supporting the findings in the FSEIR and CEQA findings of fact
that the project would not have significant adverse health impacts. These are fact-based challenges that are
reviewed under the substantial evidence test.
(Baykeeper, supra, 193
Cal.App.4th at p. 1546.)
challenge to the findings that the project would not have adverse health
impacts by failing to lay out all the evidence and show why it is lacking.
The Board of Supervisors
forfeited challenge to the sufficiency of the evidence supporting the findings
that the project would not have significant adverse health impacts by failing
to set forth all the evidence supporting these findings and show why it is
lacking. We agree.
It is a
well-established principle that “an appellant challenging an EIR for
insufficient evidence must lay out the evidence favorable to the other side and
show why it is lacking. Failure to do so
is fatal. A reviewing court will not
up for appellant’s failure to carry his burden.†(Defend
the Bay v. City of Irvine (2004) 119 Cal.App.4th 1261, 1266 (
sufficiency of the evidence, a party must cite to the relevant evidence, not to
arguments about the evidence.†(
Cal.App.4th 912, 935, fn. 8 (Tracy).) “The duty to adhere to appellate procedural
rules grows with the complexity of the record.â€
(Western Aggregates, Inc. v.
County of Yuba (2002) 101 Cal.App.4th 278, 290 (Aggregates).)
Alameda, supra, 149
Cal.App.4th 91 explained that the petitioner bears the burden of demonstrating
that the record does not contain sufficient evidence justifying a contested
project approval. “To do so, an
appellant must set forth in its brief all the material evidence on the point,
not merely its own evidence.
[Citation.] A failure to do so is
deemed a concession that the evidence supports the findings.†(Id.
at pp. 112-113.) The court reasoned,
“‘[I]f the appellants fail to present us with all the relevant evidence, then
the appellants cannot carry their
burden of showing the evidence was insufficient to support the agency’s
decision because support for that decision may lie in the evidence the
appellants ignore.’ [Citation.] This failure to present all relevant evidence
on the point ‘is fatal.’
[Citation.] ‘A reviewing court
will not independently review the record to make up for appellant’s failure to
carry his burden.’ [Citation.]†(Id.
at p. 113.)
Most recently,
in Tracy, supra, 177 Cal.App.4th 912,
Tracy first argued that the City of Tracy (City) challenged the finding that a
proposed project would not result in wasteful energy consumption. The court found that the point had been
forfeited, reasoning:
“Tracy First makes no attempt to set
forth fully the facts relating to the City’s decision to certify the EIR with
respect to the energy analysis. Instead,
Tracy First simply makes the bare assertion that the opinion of the City’s
expert that the project would not result in wasteful … consumption of energy
was not supported by facts and there was no Appendix F analysis. Thus, Tracy First forfeited its contention
that substantial evidence does not support the City’s conclusion that the
project’s energy impacts would not be significant.†(Id.
at p. 935.)
Here, just as in
Alameda and Tracy, appellants did not set forth the evidence supporting the
finding in the FSEIR that the project would not have adverse health impacts and
the additional evidence supporting this same finding in the CEQA findings of
fact. Appellants did not discuss the two
health risk studies contained in the DSEIR evaluating the carcinogenic, chronic
and acute health risks associated with exposure to toxic air contaminants
emitted by KHF operations. They did not
reference the contents of the detailed responses to the comments about
Greenaction’s health survey, which are part of the FSEIR. They did not discuss the research studies
referenced in the responses to comments on this topic. Appellants did not mention the testimony
given by Bill Brown and Philip Ross at the hearing before the Board of Supervisors. They did not disclose the
fact that Greenaction failed to provide County with any completed responses to
the health survey questionnaire or a complete summary of responses. Appellants’ failure to set forth all the
evidence is deemed to be a concession that there exists substantial evidence
supporting the findings that the project will not have significant adverse
health impacts. (See, e.g.,
112-113; Tracy, supra, 177
Cal.App.4th at pp. 934-935.)
information disclosure provisions of CEQA by rejecting the suggestion to study
the health of KC residents.
Appellants argue
that once County was informed that the responses to Greenaction’s health survey
indicated, inter alia, that in 2007 and 2008 five babies with birth defects
(cleft palate/cleft lip and unspecified heart defects) were born to mothers
residing in KC, County was obligated to study the health of KC residents to
determine if existing KHF operations caused or contributed to these infants’
birth defects.
name="_ftnref11" title="">[11] Appellants further argue
that the health of KC residents must be studied prior to certification of the
FSEIR in order to adequately assess whether the project could exacerbate
existing health conditions of KC residents, even if those conditions were not
caused by KHF operations. Absent study
of the health of KC residents, appellants contend the FSEIR “does not reflect a
good faith effort at full disclosure as required by CEQA.â€
As we will
explain, County reasonably exercised its discretion to reject the proposal for
additional testing. The FSEIR reflects
an adequate, good faith effort to analyze the project’s potential impacts on
public health, including birth defects.
The responses to the comments on this topic adequately explain why the
Agency rejected the suggestion to study the health of KC residents and this
decision is supported by substantial evidence.
i. CEQA does not require all suggested tests to
be conducted.
“CEQA does not
require a lead agency to conduct every test or perform all research, study, and
experimentation recommended or demanded by commentors. When responding to comments, lead agencies
need only respond to significant environmental issues and do not need to
provide all information requested by reviewers, as long as a good faith effort
at full disclosure is made in the EIR.â€
(CEQA Guidelines, § 15204, subd. (a).) “The fact that additional studies might be
helpful does not mean that they are required.
[Citations.] The agency has
discretion to reject a proposal for additional testing or
experimentation.†(Irritated Residents, supra, 107 Cal.App.4th at p. 1396;
100.) “[A]n EIR need not include all
information available on a subject.†(
748; Irritated Residents, supra, 107
Cal.App.4th at p. 1397.)
The line of
pertinent authority begins with Society
for California Archaeology v. County of Butte (1977) 65 Cal.App.3d 832 (
the petitioner argued the agency failed to proceed as required by law when it
declined suggested archeological testing.
The appellate court disagreed. It
explained: “In essence, this contention
advocates a rule making it mandatory for an agency to conduct every test and
perform all research, study and experimentation recommended to it to determine
true and full environmental impact, before it can approve a proposed
project. We reject this contention,
first because it is unreasonable, and second because neither the statutes (Pub.
Resources Code, § 21000 et seq.) nor the [CEQA Guidelines] … suggest
it.†(Id. at p. 838.) The court
continued, “Such being the purpose of the EIR (environmental information only,
with discretion reserved in the agency to accept or reject it), it is totally
inconsistent with the legislative objective to cease all further consideration
of a project unless recommended testing is performed. Just as an agency has the discretion for good
reason to approve a project which will admittedly have an adverse environmental
impact, it has discretion to reject a proposal for additional testing or
experimentation.†(Id. at pp. 838-839.)
Following and
applying Archeology, in
court rejected the plaintiff’s contention that an EIR prepared for a proposed
project to build a hazardous waste landfill was inadequate because the agency
did not conduct suggested trenching to determine whether there was an active
fault within the vicinity of the project site.
The court explained that three geologists determined the lineament was
not fault-related and, even if it were, it was not large enough to produce a
significant earthquake. (
on the point did not constitute grounds for overturning the EIR. “[T]here is substantial evidence supporting
the finding that lineament A was adequately investigated and discussed in the
EIR, and the County’s decision not to require additional trenching before
certifying the EIR does not constitute an abuse of discretion.†(Id.
at p. 102.)
Most recently,
in Irritated Residents,
determined that refusal to conduct a suggested protocol level study to assess
whether kit fox utilized the site selected for a proposed dairy did not violate
the information disclosure requirements of CEQA. The EIR adequately explained the reasons why
a protocol level study was not conducted and a biological report prepared as
part of the DSEIR constituted substantial evidence supporting the determination
that, as mitigated, the dairy would not significantly affect the kit fox. (Id.
at pp. 1396-1397.)
In support of
their contention that County was required to study the health of KC residents,
appellants rely on BCLC, supra, 124
Cal.App.4th 1184. Such reliance is
misplaced. In BCLC, the lead agency refused to consider whether a proposed retail
shopping center could cause urban decay on the ground that this involved an
economic effect of the project that was outside the scope of CEQA. Several topical research studies submitted by
project opponents were ignored and a member of the Bakersfield City Council
derisively referred to this literature as being “merely fit ‘for
recycling’.†(Id. at p. 1210, fn. 6.) We
held that when there is evidence in the administrative record suggesting that
the economic and social effects of a project could result in physical
deterioration, the lead agency is obligated to assess this indirect impact and
“cannot divest itself of its analytical and informational obligations by
summarily dismissing the possibility of urban decay or deterioration as a
‘social or economic effect’ of the project.â€
(Id. at p. 1207.) BCLC
has no relevance to the matter before us because County did not refuse to
consider potential health effects of the project. In direct contrast to BCLC, studies were conducted as part of the DSEIR to assess the
project’s potential to cause health-related impacts (e.g., the HRA and ambient
air analyses). Research studies
considering the potential relationship between landfills and birth defects
(e.g., the Texas Study, the Superfund Study, the Buttonwillow Study), as well
as literature and data by the CBDMP and other sources, were examined. A detailed, substantive response to comments
on this topic was crafted and included in the FSEIR. Thus, BCLC
is factually and legally inapposite.
ii. Rejection
of suggested study of KC residents’ health was a reasonable exercise of
discretion and this decision is supported by substantial evidence.
Having examined
existing authority on this topic, we now apply the established legal principles
to the facts before us. We first address
appellants’ contention that County was required to investigate the cause of the
birth defects reported in Greenaction’s health survey before approving the
project. Appellants err by failing to
distinguish between preexisting environmental problems in KC and adverse
environmental effects of the proposed project.
Where existing environmental problems are not exacerbated by a project,
an EIR is not required to analyze those existing problems or suggest ways to
improve them. (In re Bay-Delta etc. (2008) 43 Cal.4th 1143, 1167.) For example, in Watsonville Pilots Assn. v. City of Watsonville (2010) 183
Cal.App.4th 1059, the appellants challenged the FEIR prepared for a city’s
general plan because it failed to pinpoint a solution to an existing overdraft
problem. The appellate court rejected
this contention, explaining: “[T]he overdraft problem will remain but will not
be exacerbated by the proposed proj
| Description | Following approval of a project to expand an existing hazardous waste disposal facility located in Kings County (County), plaintiffs/petitioners and appellants Greenaction for Health and Environmental Justice (Greenaction) and El Pueblo Para El Aire y Agua Limpio (Pueblo) (collectively appellants) filed a petition for writ of mandate and complaint alleging violations of the California Environmental Quality Act (CEQA)[1] and civil rights causes of action (Gov. Code, §§ 11135, 12955, 65008). The trial court sustained demurrers to the civil rights causes of action and rejected the claims of CEQA noncompliance. This appeal followed. Appellants argue the demurrers should have been overruled and the environmental impact report (EIR) that was certified for the project did not adequately analyze the project’s health, transportation and cumulative impacts. We conclude: (1) the demurrers to the civil rights causes of action were properly sustained without leave to amend; (2) the health impacts arguments are meritless; and (3) administrative remedies were not exhausted on the transportation and cumulative impacts claims. The judgment will be affirmed. |
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