Legislative Updates

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Highlights of Decision That Blocked the Landfill Expansion

By David Tam

Following are excerpts from Judge Paul Beeman's decision. 

“SUPERIOR COURT, STATE OF CALIFORNIA, COUNTY OF SOLANO DEPARTMENT ONE PROTECT THE MARSH, Petititioner, vs. COUNTY OF SOLANO, et al

NO. FCS026839  DECISION ON PETITION FOR WRIT OF MANDATE 

Hearing Date:  October 20, 2006

“The petition for writ of mandate is granted as to certain limited issues” [p. 2, line 1].

1.             Insufficient analysis of air quality impacts.  “The Final EIR (“FEIR”) corrected a conversion (computation) error, and reported a significantly higher level of ROGs [Residual Organic Gases] would be produced by the project.  Again, it found this to be a significant environmental impact, with the same mitigation measures proposed [as in the draft EIR].  However, the FEIR provided no additional analysis, specific to the higher numbers, to explain how the mitigation measures would adequately address this significantly higher level of ROGs, nor is any provided in the administrative record.…  The Court therefore finds a lack of substantial evidence to support the FEIR’s finding that the corrected ROG levels are adequately mitigated by the mitigation measures.” [Analysis, pp 2 – 3.] 

2.            Insufficient analysis ofwater table impacts.  “In addition, the FEIR included a conclusory statement that neighboring wells would not be significantly affected by the expanded use of a well on the subject property.…  [A]n EIR which concludes that … must contain a statement, with reason(s), for that conclusion, and with backup for this conclusion in the administrative record.  In the oral argument, POTRERO HILLS’ counsel admitted that for the conclusion that neighboring wells would not be significantly affected, the supporting report was not part of the administrative record.” [P 2.] 

“In our case, Petitioner has identified four comments made, both prior to and after the FEIR was released, that arguably raised the issue of the impact of the increased use of the well on neighboring landowners.…  [T]he lone one made after the administrative appeal to the Board of Supervisors, discussed the speaker’s concern “about the loss of wetlands and waters of the US.” and stated that the “degradation to the water table” is “not adequately addressed.” [Pp 5 – 6.] 

“This is a somewhat vague comment, and makes this a very close call.  Still, laypersons cannot reasonably be expected to speak with absolute precision in such settings, and this comment does specifically reference “loss of waters” and the “water table.”  The court finds that this comment is sufficient to constitute exhaustion of administrative remedies.”  [P 6.] 

3.             Lack of reasonable alternatives.  “An EIR must ‘describe a range of reasonable alternatives to the project, or to the location of the project, which would feasibly attain most of the basic objectives of the project but would avoid or substantially lessen any of the significant effects of the project, and evaluate the comparative merits of the alternatives.”  (CEQA Guidelines, Section 15126.6 sub. (a).)  It must contain “sufficient information about each alternative to allow meaningful evaluation, analysis, and comparison with the proposed project.”  (CEQA Guidelines, Section 15126.6, subd. (d).)Association of Irritated Residents v. County of Madera (2003) 107 Cal. App. 4th 1382, 1400. 

“The FEIR only included one alternative to the project, which consisted of raising the height of existing landfill from 220’ to 410’.  Petitioner further complained that the 410’ alternative was not feasible, because it would make landfill operations difficult during its final stages due to land [ sic: limited?] operating space. 

“POTRERO HILLS argued that one altermative was enough, and challenged Petitioner to identify a case that held otherwise. 

“Neither Petitioner nor the Court has found such a case. 

“In contrast, there is some law that suggests one alternative may be enough, at least in some circumstances.… 

“In so doing, the Irritated Citizens Court identified a “rule of reason” approach to consideration of alternatives: 

            “The statutory requirements for consideration of alternatives must be judged against a rule of reason.  Id. at 1400.  

“Just one on-site project alternative might be sufficient for most projects.  However, the specific protections for this marshland, and the limited statutory authorization for a solid waste project only in the absence of a practical, reasonably accessible alternative site, suggest that a range of alternatives for this project must include a meaningful discussion of possible sites outside the marsh area, both within and outside of Solano County.”  [P 7.] 

“The balance of Petitioner's challenges are denied.” [P 7.] 

1.             Recycling not allowable as part of solid waste disposal site under Suisun Marsh  Protection Act (SMPA).  “[T]he SMPA ... directed local government to produce Local Protection Plans.…  The Legislature also carved out an exception for a solid waste site. 

“Notwithstanding the policies of the protection plan, the local protection program may not preclude the future development of a new solid waste disposal site in the Potrero Hills if it can be demonstrated that the construction and operation of solid waste facilities at that site would not have significant, adverse ecological or aesthetic impacts on the marsh.  Public Resources Code §29409.   

“Much has changed in the waste management field since the late 1970s.  Therefore, this court finds that the inclusion in this project of such matters as a recycling center do not violate the intent of the Legislature.…” [Pp 7 – 8.]  

2.             Spring Branch Creek modification violates three public plans with offsite mitigations.  “There is general language declaring the marsh to be an irreplaceable and unique resource, but that does not expressly preclude off-site mitigation.  Similarly, Public Resources Code section 29409 authorizes “the construction and operation of solid waste facilities at that site,” “if it can be demonstrated … [that it] would not have significant, adverse ecological or aesthetic impacts on the marsh.”  Again, though, there is no express language that would preclude mitigation measures nearby, but not necessarily on, the marsh, as long as they are effective in mitigating the significant effects that occur within the marsh itself.  It certainly can be so argued, as Petitioner does, but COUNTY's interpretation to the contrary is not an abuse of discretion.” [Pp 8 – 9.] 

3.             Litter inadequately addressed by FEIR.  “In our case, there is more than a mere ‘get a report and follow its recommendations’ statement in the EIR.  There are some specific actions required by it.

“The Court cannot conclude that COUNTY’s findings on the littering issue were not supported by substantial evidence, and therefore denies this part of Petitioner's challenge.”  [Pp 10 – 11.] 

“Based upon these findings, the Court therefore orders COUNTY to vacate and set aside its September 13, 2005 certification of the FEIR, and orders the COUNTY to vacate its resolution approving the modification of a conditional use permit, for the reasons set forth above. 

“IT IS SO ORDERED.

“DATED: February 26, 2007  

“/s/PAUL L. BEEMAN

“Judge of the Superior Court” [p. 11].